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FULL COMMITTEE HEARING ON 

EXPIRING TAX INCENTIVES: 

EXAMINING THEIR IMPORTANCE 

FOR SMALL BUSINESSES ON THE 

ROAD TO AN ECONOMIC RECOVERY 

HEARING 

BEFORE THE

COMMITTEE ON SMALL BUSINESS 

UNITED STATES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

HEARING HELD 

SEPTEMBER 30, 2009 

Small Business Committee Document Number 111-048 

Available via the GPO Website: http://www.access.gpo.gov/congress/house 


Congress.#13
HOUSE COMMITTEE ON SMALL BUSINESS 

NYDIA M. VELA ́ ZQUEZ, New York, Chairwoman 

DENNIS MOORE, Kansas 

HEATH SHULER, North Carolina 

KATHY DAHLKEMPER, Pennsylvania 

KURT SCHRADER, Oregon 

ANN KIRKPATRICK, Arizona 

GLENN NYE, Virginia 

MICHAEL MICHAUD, Maine 

MELISSA BEAN, Illinois 

DAN LIPINSKI, Illinois 

JASON ALTMIRE, Pennsylvania 

YVETTE CLARKE, New York 

BRAD ELLSWORTH, Indiana 

JOE SESTAK, Pennsylvania 

BOBBY BRIGHT, Alabama 

PARKER GRIFFITH, Alabama 

DEBORAH HALVORSON, Illinois 

SAM GRAVES, Missouri, Ranking Member 

ROSCOE G. BARTLETT, Maryland 

W. TODD AKIN, Missouri 

STEVE KING, Iowa 

LYNN A. WESTMORELAND, Georgia 

LOUIE GOHMERT, Texas 

MARY FALLIN, Oklahoma 

VERN BUCHANAN, Florida 

BLAINE LUETKEMEYER, Missouri 

AARON SCHOCK, Illinois 

GLENN THOMPSON, Pennsylvania 

MIKE COFFMAN, Colorado 

MICHAEL DAY, Majority Staff Director 

ADAM MINEHARDT, Deputy Staff Director 

TIM SLATTERY, Chief Counsel 

KAREN HAAS, Minority Staff Director 

(II) 

STANDING SUBCOMMITTEES 

Subcommittee on Contracting and Technology 

GLENN NYE, Virginia, Chairman 

YVETTE CLARKE, New York 

BRAD ELLSWORTH, Indiana 

KURT SCHRADER, Oregon 

DEBORAH HALVORSON, Illinois 

MELISSA BEAN, Illinois 

JOE SESTAK, Pennsylvania 

PARKER GRIFFITH, Alabama 

AARON SCHOCK, Illinois, Ranking 

ROSCOE BARTLETT, Maryland 

W. TODD AKIN, Missouri 

MARY FALLIN, Oklahoma 

GLENN THOMPSON, Pennsylvania 

Subcommittee on Finance and Tax 

KURT SCHRADER, Oregon, Chairman 

DENNIS MOORE, Kansas 

ANN KIRKPATRICK, Arizona 

MELISSA BEAN, Illinois 

JOE SESTAK, Pennsylvania 

DEBORAH HALVORSON, Illinois 

GLENN NYE, Virginia 

MICHAEL MICHAUD, Maine 

VERN BUCHANAN, Florida, Ranking 

STEVE KING, Iowa 

W. TODD AKIN, Missouri 

BLAINE LUETKEMEYER, Missouri 

MIKE COFFMAN, Colorado 

Subcommittee on Investigations and Oversight 

JASON ALTMIRE, Pennsylvania, Chairman 

HEATH SHULER, North Carolina 

BRAD ELLSWORTH, Indiana 

PARKER GRIFFITH, Alabama 

MARY FALLIN, Oklahoma, Ranking 

LOUIE GOHMERT, Texas 

(III) 

Subcommittee on Regulations and Healthcare 

KATHY DAHLKEMPER, Pennsylvania, Chairwoman 

DAN LIPINSKI, Illinois 

PARKER GRIFFITH, Alabama 

MELISSA BEAN, Illinois 

JASON ALTMIRE, Pennsylvania 

JOE SESTAK, Pennsylvania 

BOBBY BRIGHT, Alabama 

LYNN WESTMORELAND, Georgia, Ranking 

STEVE KING, Iowa 

VERN BUCHANAN, Florida 

GLENN THOMPSON, Pennsylvania 

MIKE COFFMAN, Colorado 

Subcommittee on Rural Development, Entrepreneurship and Trade 

HEATH SHULER, North Carolina, Chairman 

MICHAEL MICHAUD, Maine 

BOBBY BRIGHT, Alabama 

KATHY DAHLKEMPER, Pennsylvania 

ANN KIRKPATRICK, Arizona 

YVETTE CLARKE, New York 

BLAINE LUETKEMEYER, Missouri, Ranking 

STEVE KING, Iowa 

AARON SCHOCK, Illinois 

GLENN THOMPSON, Pennsylvania 

(IV) 

C O N T E N T S 

OPENING STATEMENTS 

Page 

Vela ́zquez, Hon. Nydia M. ....................................................................................... 1 

Graves, Hon. Sam .................................................................................................... 2 

WITNESSES 

Bernstein, Ms. Rachel, Vice President and Tax Counsel, National Retail Federation ................................................................................................................... 3 

Dwyer-Owens, Ms. Dina, Chairwoman and CEO, The Dwyer Group, Chairwoman of the Board, International Franchise Association, Waco, Texas ....... 5 

Feraci, Mr. Manning, Vice President, Federal Affairs, National Biodiesel 

Board ..................................................................................................................... 8 

Frenz, Mr. John, Owner, Frenz & Schmidtknect, Incorporated, On behalf 

of The National Restaurant Association ............................................................ 10 

Hall, Mr. Keith, National Tax Advisor, National Association for the SelfEmployed .............................................................................................................. 12 

APPENDIX 

Prepared Statements: 

Vela ́zquez, Hon. Nydia M. ....................................................................................... 24 

Graves, Hon. Sam .................................................................................................... 26 

Bernstein, Ms. Rachel, Vice President and Tax Counsel, National Retail Federation ................................................................................................................... 28 

Dwyer-Owens, Ms. Dina, Chairwoman and CEO, The Dwyer Group, Chairwoman of the Board, International Franchise Association, Waco, Texas ....... 34 

Feraci, Mr. Manning, Vice President, Federal Affairs, National Biodiesel 

Board ..................................................................................................................... 41 

Frenz, Mr. John, Owner, Frenz & Schmidtknect, Incorporated, On behalf 

of The National Restaurant Association ............................................................ 47 

Hall, Mr. Keith, National Tax Advisor, National Association for the SelfEmployed .............................................................................................................. 55 

Statements for the Record: 

Clarke, Hon. Yvette D. ............................................................................................ 60 

Associated Builders and Contractors, Inc. ............................................................. 62 

International Franchise Association ...................................................................... 63 

(V) 

(1) 

FULL COMMITTEE HEARING ON 

EXPIRING TAX INCENTIVES: 

EXAMINING THEIR IMPORTANCE 

FOR SMALL BUSINESSES ON THE 

ROAD TO AN ECONOMIC RECOVERY 

Wednesday, September 30, 2009 

U.S. HOUSE OF REPRESENTATIVES, COMMITTEE ON SMALL BUSINESS, Washington, DC. 

The Committee met, pursuant to call, at 10:07 a.m., in Room 

2360, Rayburn House Office Building, Hon. Nydia M. Vela ́zquez 

[Chairwoman of the Committee] presiding. 

Present: Representatives Vela ́zquez, Dahlkemper, Schrader, Ellsworth, Graves, and Fallin. 

Chairwoman VELA ́ ZQUEZ good morning, everyone. This hearing is 

now called to order. 

Part of the tax relief has played a key role in our Nation’s recovery efforts. Since February, we have worked to deliver $15 billion 

in credits and deductions to entrepreneurs. These measures are ensuring every small firm has the tools it needs to grow from within. 

When coupled with existing incentives like tax extenders, Recovery 

Act tax relief has created real momentum. But with expiration 

dates looming, many of these provisions will soon run out, putting 

the brakes on much of our progress thus far. 

In roughly 2 months’ time, a wide range of tax provisions, from 

R&D credits to clean energy incentives, will sunset for small firms. 

In today’s hearing we will examine those measures. In doing so, we 

will look for ways to ensure effective efforts are continued and ineffective ones are either allowed to sunset or enhanced to spark 

growth. 

Whether we are talking about home office deductions or bonus 

depreciation for equipment purchases, entrepreneurs rely on tax 

measures to expand their ventures. This is the case in both bad 

times and good times, but rings particularly true in today’s economy. 

For small firms facing tightening credit and shrinking capital, incentives can make all the difference. In some instances, they are 

a deciding factor for things like hiring workers and making investments. That is why targeted relief is so important, and that is why 

we need to be reauthorizing measures that work for small firms. 

There are a number of valuable, soon-to-expire tax extenders. 

Perhaps the best example is the R&D credit, an incentive that has 

been reauthorized 13 times since 1981. This provision yields $2 in 

2 

research for every $1 in investment, and helps create high-wage 

jobs for workers like engineers and scientists. Yet, despite its obvious economic benefits, the R&D credit is slated to expire in December, leaving countless small firms in the lurch. 

The R&D credit is just one example of an expected but endangered tax provision. Reauthorizing this credit could ease the anxiety associated with last-minute extensions. It could also provide 

small firms with the stability they need to plan budgets and attract 

investments. In that same vein, extending certain recurring incentives could also go a long way in stimulating small businesses. 

While not considered extenders in the traditional sense, Recovery 

Act tax breaks are also set to expire. These incentives were designed to boost consumer spending and spur investment. Credits 

for first-time home buyers, for example, are sparking growth in the 

real estate and construction industries. The $8,000 incentive has 

already contributed to a rebound in the housing market, one that 

some experts say could drive an additional 400,000 home sales this 

year. Reauthorizing this particular provision will undoubtedly stimulate future growth. Failure to do so, however, could create greater 

uncertainty in the marketplace and dampen recovery for small 

businesses. 

Entrepreneurship is an inherently high-risk, high-reward endeavor, one that is often characterized by uncertainty. Since the beginning of the downturn, that uncertainty has been compounded. 

Now, more than ever, small firms need stability and incentives to 

grow. But, unfortunately, the lack of finality in our tax policy may 

be undermining these very goals. 

As we look for ways to strengthen small businesses, we need to 

be focused on the tools that are already sparking progress. By extended and expanding these measures, we can give small firms the 

certainty they need to make new investments and the encouragement they need to help grow our economy. 

I would like to take this opportunity to thank all the witnesses 

for coming here today to shed some light on how these tax credits 

have helped businesses and especially the small businesses that 

you represent. I would like to thank the witnesses in advance for 

their testimony, and I will now yield to Ranking Member Graves 

for his opening statement. 

[The statement of Chairwoman Vela ́zquez is included in the appendix.] 

Mr. GRAVES. Thank you, Madam Chair. And I too would like to 

thank the witnesses for coming in today for this very important 

hearing. 

Year after year, taxes rank as a top concern for small businesses. 

According to the IRS National Taxpayer Advocate, small firms 

must deal with a particularly complex array of laws, such as depreciation, employment taxes, and independent contractor rules. It is 

even more difficult for companies to operate when tax provisions 

are temporary, because they cannot effectively budget or plan for 

the long term. Small businesses pay more per employee to comply 

with the Internal Revenue Code and often can’t afford to hire tax 

experts to help them. 

For small businesses, these are difficult times. Unemployment is 

rising, credit is tight and energy prices remain steep. Every exVerDate Aug 31 2005 15:11 Jan 05, 2010 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 G:\CLERKS~1\HEARINGS\TRANSC~1\52888.TXT DARIEN
3 

pense is an added burden and can make the difference between 

whether a firm stays open or is forced to close. 

The tax provisions we are considering today are critically important to entrepreneurs. Because small businesses are constantly 

squeezed by ever-growing costs, tax relief is essential. I would prefer that Congress pass permanent tax rate reductions rather than 

narrower, temporary provisions that must be renewed by Congress 

year after year. 

I am particularly concerned that we extend the 2001 and 2003 

tax cuts. Although not the topic of this hearing, these provisions 

are scheduled to expire in 2010; if they do expire, working families 

will see their taxes increase and their prospects for employment decline. For entrepreneurs, these provisions are a necessary incentive 

to keep our economy moving. 

I support temporary tax relief, but we need to go further. Making 

the 2001-2003 tax benefits permanent would give small firms the 

confidence to purchase new equipment and hire more workers. 

That is why I introduced legislation to permanently extend the 

2001-2003 provisions. I hope Congress will act to provide this predictability for our Nation’s small businesses. 

Finally, a word about the alternative minimum tax, which has 

been called the most serious problem faced by taxpayers. The AMT 

hits many small business owners very hard. It reduces business deductions, is needlessly complex, and increases tax uncertainty. I 

would prefer that we repeal it, but failing that, we should at least 

extend AMT relief. 

So again, thank you, Madam Chairwoman, for holding this hearing. I look forward to the testimony. 

[The statement of Mr. Graves is included in the appendix.] 

Chairwoman VELA ́ ZQUEZ. Thank you. 

Chairwoman VELA ́ ZQUEZ. And I welcome Ms. Rachel Bernstein. 

She is the Vice President and Tax Counsel for the National Retail 

Federation. Ms. Bernstein joined the organization 13 years ago and 

specializes in tax matters facing the retail industry. 

NRF represents an industry with more than 1.6 million U.S. retail establishments and more than 24 million employees. 

Welcome. You have 5 minutes to make your statement. 

STATEMENT OF RACHEL BERNSTEIN 

Ms. BERNSTEIN. Thank you, Chairwoman Vela ́zquez, for the opportunity to provide testimony to evaluate the impact tax provisions scheduled to expire at the end of 2009 and other stimulus 

measures. 

I am Rachelle Bernstein, Vice President and Tax Counsel for the 

National Retail Federation which represents 1.6 million U.S. retail 

establishments, about one in the five American workers, and had 

2008 sales of $4.6 trillion. Most retailers, as you know, are small 

businesses. 

In 2008, retailers’ holiday sales, which typically represent 25 to 

50 percent of their annual sales, declined by 2.8 percent. During 

the past year, consumer confidence hit its lowest level since records 

have been kept. For the first time in its long history, NRF is forecasting a decline in annual retail sales for 2009. Retailers lost 

4 

835,000 jobs since the beginning of 2008. Retail sales for the past 

3 months continue to show sharp year-over-year declines. 

The tax proposal that would provide the most immediate and 

beneficial help to retailers that are struggling to survive is the 5- 

year net operating loss carry-back. In our current recession where 

access to credit is so severely limited, the NOL carry-back will provide an important source of capital to finance ongoing operations 

and retain employees. 

An NOL can be used to obtain a refund for taxes paid in the past 

and/or carried forward to offset tax obligations that arise in the future. Under current law, taxpayers may carry losses back 2 years 

and forward 20 years. 

Although both the House and Senate versions of the 2009 economic stimulus legislation would have permitted all businesses except those that have received TARP funds to carry their losses back 

for 5 years, the final version of that legislation permitted only businesses with less than $15 million in gross receipts to carry back 

their 2008 losses for 5 years. This provision needs to be expanded 

so that the size of business is not a factor in limiting the benefit 

of the carry-back. It also should be extended to cover losses incurred in 2009, because it appears that the sales decline for 2009 

will be worse than it was in 2008. 

NRF strongly supports H.R. 2452, bipartisan legislation introduced by Representatives Richard Neal and Pat Tiberi, the chairman and ranking member of the Select Revenue Measures Subcommittee of the House Ways and Means Committee, which would 

permit businesses to carry back losses from 2008 and 2009 for 5 

years. President Obama included a similar proposal in his fiscal 

year 2010 budget. 

Because current law allows taxpayers to carry losses forward for 

as many as 20 years to reduce future tax liability, allowing for this 

longer carry-back period is merely an advance on a tax refund that 

would be due to them in the future. This advance of a future tax 

refund provides a much-needed source of cash for operations, as 

businesses are struggling through this recession. 

This problem can be illustrated with the stories of two of our 

smaller chain retail members. These retailers are too large to be 

able to qualify for loans from the Small Business Administration, 

too small to have been able to negotiate large enough lines of credit 

to carry them through this recession, not creditworthy enough to 

qualify for TALF, and too large to be eligible for the NOL carryback permitted to only small businesses earlier this year. In both 

of these situations, the retailers are struggling to find ways to finance their inventory for the holiday season, which is their greatest opportunity for revenue this year. 

In the first case, a retailer in business for 45 years suffered its 

first-ever loss in 2008. For them, the ability to use a modest 2008 

NOL carry-back to finance inventory worth five times that carryback could mean the difference in staying in business for its 2,000 

permanent employees and 6,000 additional seasonal employees. 

In a second situation, a regional specialty chain operating in four 

Western states predicts that it will close one-third of its remaining 

stores if it does not get a cash influx from its 2008 NOL carry-back. 

That will result in a loss of 800 jobs. 

5 

For businesses that are not on the brink of survival, the NOL 

carry-back will allow them to make some new investments, like improvements to their stores, for which there is no capital to finance 

in this current environment. 

Another provision that will help create jobs is the extension of 

the 15-year depreciable life for improvements made to retail stores, 

restaurants, and leaseholds. If this provision is not extended, the 

depreciable life of these improvements will revert to 39 years, 

which will drive up costs and hurt investments and jobs. 

Both the NOL carry-back and the extension of the 15-year life for 

improvements to retail, restaurant, and leasehold property will 

have a direct and positive impact on employment in the current 

economy. It is not only important for Congress to extend these provisions, but also it is important that these extensions be enacted 

soon. Delaying action will impact thousands of jobs. We urge the 

Small Business committee to lend its support to extension of these 

important tax provisions. 

Thank you for the opportunity to participate in this important 

hearing. 

Chairwoman VELA ́ ZQUEZ. Thank you, Ms. Bernstein. 

[The statement of Ms. Bernstein is included in the appendix.] 

Chairwoman VELA ́ ZQUEZ. Our next witness is Ms. Dina DwyerOwens. She is the chairwoman and CEO of the Dwyer Group. The 

Dwyer Group is a family-owned business that has grown into a 

holding company of service-based franchise companies. 

Ms. Dwyer-Owens is also chairwoman of the board for the International Franchise Association. With more than 10,000 members, 

IFA represents all aspects of the franchise community. 

Welcome. 

STATEMENT OF DINA DWYER-OWENS 

Ms. DWYER-OWENS. Good morning, Chairwoman Vela ́zquez, 

Ranking Member Graves, and all the committee members. My 

name is Dina Dwyer-Owens, and I am grateful to have the opportunity to speak before you today. And during my statement, I have 

three key points that I would like to make. 

Number one, extending certain elements of the American Recovery and Reinvestment Act of 2009 and the Emergency Economic 

Stabilization Act of 2008, which are helping to strengthen the foundation of our economic recovery; 

Number two, enacting legislation to put veterans returning from 

service overseas into business for themselves; and 

Three, bolstering the ability of franchisees to obtain the capital 

necessary to expand their operations thereby creating more sustainable jobs for the economy. 

I am the chairwoman and CEO of the Dwyer Group, franchisor 

of six service industry concepts, including Rainbow International, 

Mr. Rooter, Air Service, Mr. Electric, Mr. Appliance, and Glass 

Doctor. 

Across these brands, the Dwyer Group provides support and opportunity to 1,200 franchisees in the United States and Canada 

and additional franchisees in seven other countries. My father 

founded the Dwyer Group in 1981 with the intent to build a system 

of related businesses that would provide high-quality residential 

6 

and light commercial services; and through the systems, we have 

enabled thousands of entrepreneurs to own their own small businesses. 

I also have the privilege of serving as the chairwoman of the 

International Franchise Association. The IFA represents more than 

85 industries, including more than 11,000 franchisees, 1,200 

franchisors, and 600 supplier members. This is nationwide. 

According to the 2008 study conducted by the IFA Educational 

Foundation, there are more than 900,000 franchise establishments 

in the U.S., creating 21 million American jobs and generating $2.3 

trillion in economic output. 

Since the economy went into recession, Congress has enacted numerous provisions designed to help small business. The Nation is 

only now starting to see signs of recovery, and those fragile businesses that operate in your communities need these programs to 

continue. Bonus depreciation and a shortened, straight-line cost recovery for qualified leasehold improvements, qualified restaurants, 

buildings and improvements, and qualified retail improvements 

provide valuable benefits to franchise businesses. 

In addition, the Recovery Act added a 15-year schedule for new 

construction and improvements placed in service in 2009. It is clear 

that our recovery will not be fully under way in this tax year, and 

these provisions must be extended beyond 2009. Extending these 

provisions will entice franchise business owners to reinvest and expand their businesses. This will create a tremendous spillover effect on other industries. 

Madam Chair and members of the committee, I sincerely hope 

that Congress can also address the upcoming expiration of the important estate, or death, tax that is set to expire in 2010. The estate tax has long cost our economy more than the revenue it generates for the Federal Government. The IFA has advocated for a 

permanent solution to the estate tax, and I urge Congress to address the situation now before the tax returns to its pre-2001 level. 

There is another policy objective that I would like to discuss, and 

that idea was inspired by a provision in the Recovery and Reinvestment Act, but not included in the bill. 

The Recovery Act included a provision providing a tax credit to 

employers to hire qualified military veterans. Taking this concept 

and expanding it to the entrepreneurial level, Congressmen Leonard Boswell and Aaron Schock proposed a bill that creates an incentive to not only give our veterans jobs, but to give them the keys 

to the front door. 

H.R. 2672, the Help Veterans Own Franchises Act, establishes a 

tax credit for franchise businesses that choose to offer qualified veterans a discounted initial franchise fee. The tax credit would 

amount to 50 percent of the total franchise fee discount offered by 

the franchisor to the franchisee and would be capped at $25,000 

per unit. More importantly, the bill would also provide a tax credit 

to the veteran who chooses to purchase a franchise and open a 

business in their local community equal to 25 percent of the remaining fee. 

So just to kind of net it out for you, in our business, for example, 

we give approximately a $6,000 discount on the initial franchise fee 

to the veteran. So we are asking for a 50 percent credit back to one 

7 

of our brands for giving that discount to the veteran, and then the 

veteran would pick up another $4,500 tax credit. So, basically, he 

is buying the franchise for about $14,000. 

Given the current economic climate, many franchise businesses 

are finding it harder to access the capital they need to open new 

stores and recruit investors. In order to encourage economic growth 

and to make it easier for veterans to own their own businesses, the 

IFA supports enactment of this tax credit for the franchise systems 

that choose to offer qualified veterans a discounted franchise fee. 

Assisting the transition of military veterans from active service 

to civilian life holds a special place for me, since it was my father, 

Don Dwyer, Sr., who helped launch a program with the IFA nearly 

2 decades ago as the United States was in the midst of the first 

Gulf War. At that time, nearly 100 members of the IFA stepped up 

to show their gratitude to our men and women in the military, to 

provide financial incentives and aid them in acquiring their own 

franchises. 

We relaunched that program in 2002, and to date, there have 

been 1,500 veterans who have become franchisees through these 

generous franchisors that have given discounts. The Dwyer Group 

of companies alone are responsible for 170 of those veterans becoming franchisees. 

The same leadership qualities and adherence to established 

structures of operation that make our military the finest in the 

world translate perfectly into the successful operation of franchise 

businesses. I thank Representative Schock for his leadership in introducing this bill together with Representative Boswell, and I ask 

you to help support the Help Veterans Own Franchises Act. 

Before I close, I cannot pass the opportunity to impress upon you 

ongoing concerns of the franchise community that we have with access to capital. Credit is the lifeblood of small business, as you 

know. Beyond the daily credit needed to keep a small business 

afloat, franchise investors need access to capital to expand their 

brands and create jobs. 

Unlike many jobs created by the Federal infrastructure spending, 

we firmly believe that franchise jobs are sustainable. They will be 

here when the asphalt dries. As tourism recovers, franchise jobs 

will provide services at hotels and restaurants, at rental car 

counters and travel agencies. When Americans resume buying and 

fixing up their homes, franchise jobs will be there to broker the 

sale, remodel the kitchen; they will also be there to paint the house 

and beautify the yard. 

A recent study of the IFA Foundation revealed that for every $1 

billion in lending to franchise businesses, 34,100 jobs—sustainable 

jobs—are created, which will help our economy recover faster. 

And I am just about out of time here. But while Congress and 

the administration have taken important steps to address the challenges of small businesses in assessing credit, franchise businesses 

and prospective franchise investors with strong credit histories continue to have loan applications denied or delayed. In fact, according 

to the 2009 Senior Loan Officer Survey conducted by the Federal 

Reserve, more than one-third of these bankers reported tightening 

terms for small business loans, while one reported easing terms. 

8 

These tight standards continue to keep capable and willing franchise business owners on the sidelines. 

Chairwoman VELA ́ ZQUEZ. Time has expired, so you will have an 

opportunity during the question-and-answer period to expand on 

any idea that you feel hasn’t been covered. Thank you. 

[The statement of Ms. Dwyer-Owens is included in the appendix.] 

Chairwoman VELA ́ ZQUEZ. Our next witness is Mr. Manning 

Feraci. He is the Vice President of Federal Affairs for the National 

Biodiesel Board. Before joining NBB, Mr. Feraci had more than 14 

years of experience working for Members of the U.S. House of Representatives. 

The NBB is the national trade association representing the biodiesel industry. 

Welcome. 

STATEMENT OF MANNING FERACI 

Mr. FERACI. Chairwoman Vela ́zquez, Ranking Member Graves, 

members of the committee, I appreciate having the opportunity to 

testify this morning. I am here today on behalf of the National Biodiesel Board, the national trade association for the U.S. Biodiesel 

industry. Our membership produces a renewable, high-quality diesel replacement fuel that is readily accepted in the marketplace. 

The U.S. biodiesel industry is the only game in town when it comes 

to the commercial-scale production of biomass-based diesel as defined in the renewable fuel standard. 

The production and use of biodiesel is consistent with an energy 

policy that values the displacement of petroleum diesel fuel; and 

there are significant energy, security, environmental, and economic 

public policy benefits associated with biodiesel use. In this regard, 

the biodiesel tax incentive has achieved its desired goal of promoting the domestic production and use of biodiesel. In 2004, the 

U.S. produced 25 million gallons of fuel; last year, that number 

rose to 690 million gallons. The biodiesel tax incentive is primarily structured as a $1 per 

gallon blenders’ credit that is triggered when biodiesel is blended 

with petroleum diesel fuel. The incentive can be used to offset excise tax liability and is refundable to the degree that the credit exceeds an excise tax owed by a taxpayer. The liquidity of this structure is designed to make biodiesel price competitive in the marketplace with diesel fuel. 

Biodiesel must meet both the ASTM B6751 fuel specification and 

the EPA’s Clean Air Act registration requirements to qualify for 

the incentive. Last year’s tax extender package provided a 1-year 

extension of the credit, and thus the incentive is currently set to 

expire at the end of this year. 

Due to volatile commodity prices, unfavorable market conditions, 

difficulty accessing operating capital, and uncertainty regarding 

Federal policy, the U.S. biodiesel industry is facing severe economic 

challenges. The industry’s viability and the Nation’s ability to reap 

the policy benefits associated with domestic biodiesel production 

will be seriously compromised if the biodiesel tax incentive is allowed to lapse at the end of the year. 

It is difficult for small businesses and investors to make longterm business decisions based on year-to-year extensions of the bioVerDate Aug 31 2005 15:11 Jan 05, 2010 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 G:\CLERKS~1\HEARINGS\TRANSC~1\52888.TXT DARIEN
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diesel tax incentive. A multiple-year extension of the incentive is 

absolutely necessary to provide the certainty and stability that is 

needed in the marketplace. 

NBB also supports a structural reform of the tax incentive. Restructuring the current blenders’ credit with a production excise 

tax credit of equal value will streamline administration of the credit and promote tax compliance while preserving the liquidity of the 

existing incentive. This reform proposal is encompassed in S. 1589, 

the Biodiesel Tax Incentive Reform and Extension Act of 2009, 

which has been introduced in the Senate by Senators Cantwell and 

Grassley. Representative Pomeroy will be introducing the House 

version as legislation in the near future. 

There are several shortcomings associated with the current 

blenders’ credit that will be remedied by restructuring the incentives of production credit. Since biodiesel blending can occur at 

multiple stages in the distribution chain, it can be difficult to ensure that only qualifying fuel receives a credit. 

This also makes it difficult for both taxpayers and the IRS to determine when a fuel becomes subject to the Federal 24.3-cent-pergallon diesel fuel excise tax. The IRS is currently pursuing several 

courses of action designed to collect this excise tax liability, and 

what they are pondering would be particularly burdensome and onerous on small business. A change to a production credit in tandem 

with treating biodiesel as regular diesel fuel for tax purposes would 

remove the need for these regulatory burdens while improving tax 

compliance. A change to a production credit would also stop abusive transshipment schemes. 

With NBB’s full support, Congress last year closed the so-called 

′′splash and dash′′ loophole that had previously allowed foreign-produced fuel to enter the United States, claim the biodiesel tax incentive, and then be sent to a third country for end use. Now, if you 

think about that, there is clearly no energy or tax policy justification for these sorts of transactions. 

With that said, the current blenders’ credit could still inadvertently allow for other potential abuses associated with the transshipment of foreign fuel through the U.S., and a change to a production excise tax credit would remedy this problem in a WTO-consistent manner. 

In conclusion, the biodiesel tax incentive has helped achieve the 

desired goal of increasing domestic production and use of biodiesel. 

These benefits, however, will be lost if the biodiesel tax incentive 

is allowed to lapse at the end of the year. The NBB, on behalf of 

the U.S. Biodiesel industry, urges Congress to provide a multiyear 

extension of the reformed incentive. 

Again, Chairwoman Vela ́zquez, Ranking Member Graves, members of the committee, I really appreciate having the opportunity 

to testify this morning. 

Chairwoman VELA ́ ZQUEZ. Thank you, Mr. Feraci. 

[The statement of Mr. Feraci is included in the appendix.] 

Chairwoman VELA ́ ZQUEZ. And the Chair recognizes Mr. Ellsworth for the purpose of introducing our next witness. 

Mr. ELLSWORTH. Thank you, Madam Chair. It is a pleasant surprise for me this morning to welcome Mr. John Frenz. He is not 

10 

only a constituent, but he is a very good friend of mine from Indiana. 

Mr. Frenz is owner of Frenz & Schmidtknect, Incorporated, 

which includes two Montana Mike’s family restaurants. The restaurants are located both in Illinois and Indiana. Mr. Frenz today, 

though, is testifying on behalf of the National Restaurant Association, which represents more than 380,000 member-restaurant establishments. 

John also sits on my small business advisory committee, so we 

are in close contact all the time. And if you are ever in Indiana, 

I can recommend Montana Mike’s with the highest—it is a fourstar in my book. 

And, John, when you go home, tell them I was at work today, 

if you don’t mind telling the folks in Knox County. 

But I would offer Mr. John Frenz. 

STATEMENT OF JOHN FRENZ 

Mr. FRENZ. Thank you. 

Chairwoman Vela ́zquez, Ranking Member Graves, Congressman 

Ellsworth, and other members of the Small Business Committee, 

thank you very much for this opportunity to testify before you 

today for the National Restaurant Association. As Brad has said, 

my name is John Frenz and am part owner of Frenz & 

Schmidtknect, Incorporated. 

My business partner of 28 years now, Greg, and I, we operate 

two Montana Mike’s Steakhouses in Vincennes, Indiana, and 

Danville, Illinois. I am here today to strongly urge this committee 

and Congress to extend certain expiring tax provisions before the 

end of this year. 

The 15-year depreciation schedule for leasehold improvements, 

restaurant improvements, and new construction is stimulative and 

creates jobs. It should be extended and is the tax revision on which 

I will focus my comments today. However, I just want to touch on 

a couple other areas that are also very important. One is about the 

deduction for charitable donations of food. 

At the end of the night, you have got food left over. We have got 

to throw it away. If we go and extend this on, it goes and allows 

the small business the same deduction that the C Corp already 

gets. It is extended already for them, but for the small business it 

is the same whether we throw it in the trash or whether we give 

it to charity. It is the same unless we extend this, and that helps 

out. 

Second of all is about, as she had touched on, about the net operating loss carry-back 5 years and two. When we get in trouble in 

economic times, you get those years. Business is down, dollars 

didn’t come in like you expected. If you can carry that back, you 

can still make the payroll, you can still make the withholding deposits on time, and you can make it through. That cash flow matters, and especially in these times. 

And then—I have been in the restaurant business many years, 

but 28 in business myself. I still remember back when businessmen 

visited, we got—they could take a 100 percent deduction of that 

business expense. I remember when it went to 80 and then it went 

11 

to 50, and you saw it drop off more. That three-martini lunch 

doesn’t exist anymore. Maybe it did exist 30 years ago. 

That doesn’t exist anymore. If a businessman can bring another 

businessman to close a sale, to potentially find new customers, if 

they can go and deduct that meal as a business expense, it brings 

in business to the restaurant industry, generates dollars, generates 

jobs, generates income tax. 

And the main thing that hits me is the extension of the 15-year 

rather than the 39-year depreciation schedule, and there are further details on that stuff on my written form that I had turned in. 

But for restaurateurs, this provision has made significant capital 

available for expenditures with the tax savings that result. Those 

capital expenditures for expansion and remodeling translate into 

jobs in the rest of the economy, as well as increased sales and employment at the restaurant, all of which are really needed right 

now. 

When restaurants invest in construction and renovations, the impact spreads throughout the economy. Before the economic downturn, the restaurant industry spent more than $10 billion in 2007 

on construction of restaurant buildings. According to the Bureau of 

Economic Analysis, every dollar spent in the construction industry 

generates an additional $2.39 in spending in the rest of the economy, and every $1 million spent in the construction industry generates another 28 more jobs in this economy. That means the restaurant industry construction spending created 280,000 jobs in 

2007. 

In fact, Congress has frequently enacted shorter depreciation 

schedules to stimulate the economy and create jobs. As far back as 

the 107th Congress, shorter depreciation schedules for different 

pieces of this entire provision for leasehold improvements, restaurant and construction have been included in various economic 

stimulus bills. 

Even during those difficult economic times, some business owners are in the position to expand. In fact, 42 percent of restaurateurs like me and my business partner are planning to make 

a capital expenditure for equipment over the next 6 months. In our 

business, Montana Mike’s in Vincennes, right now we are planning 

to put on an addition. We have those times—on Friday nights, Saturday nights, and Sunday at lunchtime, we have people waiting for 

20 minutes to 30 minutes. Well, when we have got those customers, we have got to expand and take care of those customers. 

This 15-year depreciation expires at the end of this year, so we 

have a short period of time to get the financing arranged, get the 

building built and put into use. Depreciation doesn’t start until the 

project is actually put into use. So if it doesn’t get done until January 1, first time used, then we will be on the 39-year depreciation 

schedule. 

What does that mean? Over that 15 years on, say, it was—I will 

just take a figure of $150,000 to add that addition on—that will 

allow us to have an additional $6,154 in depreciation a year now 

for those first 15 years. 

It all equals out. You pay less taxes now, but you pay more taxes 

later. The same amount of taxes will be paid over that period of 

12 

time. It is just so when you start out, that is when the cash flow 

is needed. 

And, once again, I want to thank you for the opportunity to testify before you today regarding these important tax provisions in 

the restaurant industry. I strongly urge Congress to extend and, in 

some cases, expand these benefits before the end of this year. 

Doing so will give small business owners like me—certainly when 

it comes to those tax provisions, that will not only help my 

business’s employees, but will also help create jobs in construction 

and stimulate the overall economy. Thank you very much. 

And, when it is appropriate, I will be open for questions. Thank 

you very much. 

Chairwoman VELA ́ ZQUEZ. Thank you, Mr. Frenz. 

[The statement of Mr. Frenz is included in the appendix.] 

Chairwoman VELA ́ ZQUEZ. Our next witness is Mr. Keith Hall. He 

is the National Tax Advisor for the National Association for the 

Self-Employed. Mr. Hall is the primary consultant available to the 

self-employed of microbusiness owners. 

NASE was founded in 1991, and represents hundreds of thousands of entrepreneurs in microbusinesses. 

Welcome. 

STATEMENT OF KEITH HALL 

Mr. HALL. Thank you. Madam Chair, Ranking Member Graves, 

members of the committee, thank you for the opportunity to be 

here. My name is Keith Hall, and I am a small business owner. 

That is what I do, and I am very proud of that. 

On behalf of the National Association for the Self-Employed and 

the 250,000 microbusiness owners it represents, I would like to say 

thank you, guys, for your commitment to small business owners everywhere. You guys really do make a difference. 

I don’t want to be overly dramatic today, but I want to talk about 

commitment. I have been fortunate enough through my association 

with the NASE to see the commitment of thousands of small and 

microbusiness owners—both to their families and to their businesses. 

I have also been extremely lucky to be able to see the commitment to those same families and those same small businesses from 

this committee, from you guys. Today, I am here to ask you to continue that commitment. I know you guys have a tough job with lots 

of challenges trying to help people, trying to help the economy, trying to find new ways to meet the needs of so many people, and 

then trying to figure out some way to pay for it all. I know that 

is not easy. 

The Tax Code has always been an effective tool in helping you 

guys to meet those goals, not just funding the government, but encouraging or discouraging activities and actions; and I believe Congress has used that tool well. But a number of those tools are 

scheduled to expire, as we talked about. Bonus depreciation options, increased expensing under Section 179, accelerated recovery 

periods, as Mr. Franz has talked about; all of those things have 

been extremely effective at creating jobs for small business and 

have contributed greatly to the economic recovery that I believe is 

13 

under way. These tax incentives show a commitment to small business that shouldn’t come to an end. 

So the real question today that we need to evaluate is whether 

or not we want to continue that commitment to small business. The 

country finally seems to be seeing a light at the end of the tunnel. 

Taking away these incentives that clearly are making a difference 

seems to be the wrong signal at the wrong time. 

Now, I could spend my whole 5 minutes talking about any one 

of those areas, but I would like to concentrate on just one, and that 

is the Alternative Minimum Tax exemption amount. I want to talk 

about this one in particular, because I think at the end of the day 

this cost really is levied almost exclusively on the small business 

guy. 

The original idea behind the AMT was to prohibit the taxpayers 

with the most resources at their disposal, the wealthiest of Americans, from taking advantage of loopholes in order to avoid paying 

any tax at all. However, the effects of inflation, the growth of earnings and expenses weren’t taken into account. 

Now, Congress has recognized this over time and adjusted the 

exemption amount to keep track with inflation, but now that adjustment is scheduled to end. If we allow that adjustment to end, 

then the tax burden for many Americans who had no increase in 

earnings year over year will be paying more tax immediately—the 

same level of earnings, but more tax. A penalty. 

And why? Many would pay the extra tax simply because they 

live in a State with a higher-than-average State income tax. Others 

would pay more simply because they have a larger-than-average 

family. Clearly, that was not the intent of the AMT when it began 

so many years ago; and ending that provision now would punish 

the people that the original AMT provision set out to protect. 

Here is the real kicker: Even if the AMT system does not result 

in any additional tax, it still has to be calculated. Allowing this 

provision to end would force many Americans to do the math even 

if they don’t meet the test and end up paying any tax. So the AMT 

requires a completely different set of rules. 

Now, this committee, particularly, has continually promoted the 

need for simplification in the Tax Code; yet, here is the single topic 

that results in a completely new tax return, a second tax return, 

a second set of records, a second tax liability, and a second set of 

headaches. The instructions for the AMT form actually say, and I 

quote: ′′Therefore, you need to refigure items for the AMT that you 

have already figured for the regular tax. In some cases, you may 

wish to do this by completing the applicable tax form a second 

time.′′ Really, two times? 

Now, the very concept of having a second set of records, a second 

set of tax forms, a second set of calculations goes to the very heart 

of the need for simplification. Again, even if no tax results from the 

AMT, a system that requires two calculations is a tax in itself. 

And, worse, it is a tax that doesn’t even generate any money for 

the Treasury. And without this increased exemption, many more 

small businesses will be stuck in this trap. 

So getting rid of the AMT altogether would be my first choice, 

but that may not be an option. At a very minimum, the exemption 

14 

amount that is included should be indexed to inflation, and this 

fallback should not be allowed. 

Now, my most concerted point here is that the wealthiest of taxpayers will still be affected by the AMT, regardless of this exemption amount. But those taxpayers who have had no real increase 

in earnings, no other resources to call upon, those are the small 

businesses and the individuals who will pay this price. And I know 

that wasn’t the intent of the AMT, and certainly not the intent as 

we consider these expiring tax incentives. 

The bottom line: Keep these incentives, keep the commitment. 

Thanks again for the chance to be here. And, more importantly, 

thank you guys for your commitment to small business. 

Chairwoman VELA ́ ZQUEZ. Thank you, Mr. Hall. 

[The statement of Mr. Hall is included in the appendix.] 

Chairwoman VELA ́ ZQUEZ. And if I may, I would like to address 

my first question to Ms. Bernstein. 

For the first time, the 15-year depreciation schedule also applies 

to qualified retail improvements. What impact has this change had 

on your industry? And even in the current economic climate, are 

more retailers undertaking construction projects? 

Ms. BERNSTEIN. That is a good question. 

It has had a positive impact. I actually was recently talking with a small business member in Montana who is putting in a $1.5 million dollar improvement to the retail store that they own as a result of this provision, and actually looking to maybe improve—they 

have got a total of three stores—their other two stores down the 

line. 

Unfortunately—that would probably be something they would 

have to do in 2010—and cost is going to be a factor; and if the cost 

goes back up to 39 years, that is going to be very difficult to do 

in these times. 

I will tell you, though, that when I talk to the vast majority of 

our retail members, they have cancelled whatever plans they could 

cancel for projects in 2009 because of their very slim earnings or 

loss situations. 

As you know, with all businesses, but especially retail, sales have 

been down so much that the businesses really are cutting back everything that is not essential. Now, that builds up more pent-up 

demand for improvements that must be made and that they are 

trying very hard to be able to make in 2010, at least to put some 

more of those projects on the line; cost is going to be critical. And 

if the cost is—if they can only depreciate 1/39th of the cost per 

year, which is virtually nothing, then it is going to make a big difference. 

Chairwoman VELA ́ ZQUEZ. Let me ask you, has this provision been 

used in concert with bonus depreciation and 179 expensing? 

Ms. BERNSTEIN. I don’t think that—you can’t use the 179 expensing, I don’t think, for the same, exact property. I don’t think you 

can double—that would be a double benefit. 

So I do believe that the leasehold improvement did qualify for 

bonus depreciation, though. 

Chairwoman VELA ́ ZQUEZ. Thank you. 

Mr. Frenz, IRS Commissioner Shulman recently said that he expects to see a record number of tax refund requests, and this jump 

15 

can be attributed to the Recovery Act provisions that allow small 

firms to carry back losses. 

Have restaurants been taking advantage of that provision, and 

has it helped them survive for the last 12 months? 

Mr. FRENZ. Yes, especially in these economic times. 

You can be operating for many years—the restaurant industry, 

you have heard before, our median bottom line or median percentage is 3 to 5 percent. It is very low compared to other industries 

because there is so much competition. 

You can be doing fine for years. You get in tough economic times, 

the manufacturing facility in your area gets shut down or laid off, 

and all of a sudden your business drops down. And you are on such 

a thin margin, all of a sudden, boom. You are in that provision— 

or in that situation where you have got to decide whether to talk 

to the employees. 

Either you need to reduce hours so you have to—everyone, do 

you want to just take a little reduction in hours or are we going 

to have to lay some people off? What do you want to do? You work 

with them on that. 

But then the bottom line comes negative. And if you have got 

that, where you can carry back—this is what they are talking 

about the carry-back, that is, taxes you paid on income; you can’t 

get any more than that, than what you have already paid. It is just 

allowing that credit or that deficit to be carried back. 

And, yes, it is very important, especially in these economic times. 

You can’t operate in the red all the time or you are out of business. 

In these situations when business gets tough, if you have that possibility, it really helps them. And it is used. 

Chairwoman VELA ́ ZQUEZ. Ms. Dwyer-Owens, this committee has 

always been very concerned about helping those returning veterans 

from the Iraq and Afghanistan wars, including provisions on the 

small business lending programs under SBA that we specifically instructed to be in place for returning veterans. 

Can you talk to us about what is so unique about returning veterans, that helps them succeed in becoming small business owners? 

Ms. DWYER-OWENS. Especially as it relates to franchising. 

Franchising is a set of systems, so—in the military they are 

trained to follow systems, so it is a perfect fit. And they are also 

disciplined. So we find that franchisees who come into our businesses, that have that strong discipline to follow systems, do very 

well in business. 

So they have got strong ethics. They have been trained to have 

strong ethics in business, so it is a perfect fit for franchising. 

And I have not heard of many of them getting benefits from the 

SBA. 

Chairwoman VELA ́ ZQUEZ. Well— 

Ms. DWYER-OWENS. I should only speak for my franchisees; I 

shouldn’t speak for others. My own franchisees are having a terrible time, even those that are veterans, getting help. 

Chairwoman VELA ́ ZQUEZ. I don’t know if any person here is from 

SBA, but that is the story that we hear not only for veterans but 

other small businesses. And we are working very hard to make 

sure that the sensitivity is there. So this is the time to make sure 

that the system is provided. 

16 

As we look at moving a tax bill, one revenue offset that some 

have talked about is changing the taxation rules for carried interest. How would changing the tax rate for such interest impact private equity investment in your industry; and how would this impact private equity investment? 

Ms. DWYER-OWENS. I think it would be a big challenge. 

Entrepreneurs are the ones really driving the economy, from my 

perspective. And in my own personal situation—I am a private equity owner, and I will tell you with certainty that today we would 

not be where we are as an organization without the help of the private equity owner because we finance our franchisees. So we will 

have a record year in new unit sales for our franchise companies 

because we finance in house, and we would not be doing that without the support of our private equity partner. 

So this is not the time, from my perspective, to make that kind 

of a change. 

Chairwoman VELA ́ ZQUEZ. Mr. Feraci, in your statement you stated that if the biodiesel tax incentive is not extended, production in 

the U.S. will stop completely. 

Have you made any analysis as to how many jobs we stand to 

lose if we don’t extend the tax credit? 

Mr. FERACI. Thanks for the question, because that really does 

kind of highlight the importance of extending the tax incentive and 

not having there—letting there be a lapse. 

Right now, the U.S. biodiesel industry supports, directly and indirectly, approximately 52,000 jobs in the United States. And if you 

look and think about how the tax incentive is structured, what it 

does is, it makes the fuel price competitive with diesel fuel. So absent that incentive, the fuel is selling at a premium to diesel fuel. 

And the fuels business, in general, is a very high-volume, lowmargin business. So if you have that much of a disparity in the 

price, it is going to be hard to move any product in the marketplace 

and get contracts. You know, you put that in tandem with the fact 

that there is not—the renewable fuel standards not yet in place, I 

don’t think it is being alarmist to say that you would see production in the United States come to a screeching halt. 

Chairwoman VELA ́ ZQUEZ. In order to give your industry certainty, the extension should be how for how long? Two years? Five 

years? 

Mr. FERACI. What you see in the legislation that I mentioned in 

my testimony is calling for a 5-year extension. And if you look back 

to the Recovery Act, you had similar-length-duration extensions for 

wind and other section 45 tax incentives. And the idea is the same; 

you want to provide that certainty and reliability to businesses so 

they can make planning decisions; to the investment community so 

you can have capital come in to continue to grow the business. 

Chairwoman VELA ́ ZQUEZ. Mr. Hall, I heard you make your case 

on AMT, but I would like to ask you what other tax policy should 

we be looking at to encourage entrepreneurship among the self-employed? 

Mr. HALL. I think, consistent with some of the other panelists, 

small business continues to have issues with access to credit. So 

whether they are financing restaurant equipment or they are financing a franchise fee, whatever they are challenged with, whethVerDate Aug 31 2005 15:11 Jan 05, 2010 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 G:\CLERKS~1\HEARINGS\TRANSC~1\52888.TXT DARIEN
17 

er they are a veteran or just like me, still finding access to invest 

in their new idea, their new effort, their contribution to the economy is still difficult. 

And when I look at the bonus depreciation items, section 179 

limits, the recovery periods that Mr. Frenz talked about, all those 

things seem to be tax comments or tax issues, but I view those as 

credit issues as well. Because, as Mr. Frenz said also, that I agree 

with, those issues really are just timing issues. They don’t increase 

the deduction or the expense of an item over time; it just puts the 

small business in the position of more readily financing their new 

idea. 

And, again, it is my belief that is where the economic recovery 

comes from. That is where the jobs come from. And so having access to those tax incentives helps with the credit issue as much as 

having better rates at the bank even. 

Chairwoman VELA ́ ZQUEZ. Thank you. 

Now I recognize Mr. Graves. 

Mr. GRAVES. Thank you, Madam Chair. 

The estate tax expires next year, goes back to the way it used 

to be, with much higher rates and lower exemptions. 

I don’t know if you, Mr. Feraci, want to comment. 

But I would ask each of you—and I would start Ms. Bernstein— 

how you feel about that and the state of the estate tax. Obviously, 

it doesn’t have that much effect on running your business. But it 

does if something happens to you and you pass it on; it has a huge 

effect. But I would be very curious about that and including it in 

the extenders. 

Ms. BERNSTEIN. It is very important that something be done 

about the estate tax—obviously, you know, for small businesses. 

Everybody here represents small businesses; the businesses are 

very often family businesses that are passed on to children, and it 

is important to be able to pass that on without having to pay so 

much in tax that you don’t even have the ability to pass on that 

business because it all has to go to the Federal Government. 

There also is some certainty that is needed here. The situation 

that we are in right now is one where the tax would be repealed 

completely for next year and then go back up to pre-2001 levels, 

which is obviously an absurd thing and something needs to be done 

before that happens. 

We are very hopeful that this is something that Congress will 

put on the fast track and deal with the permanent solution, so that 

people can plan on something that clearly is not as onerous as the 

levels that we remember, pre-2001, which were really confiscatory. 

Ms. DWYER-OWENS. I had a personal experience. 

My father died of a sudden heart attack at the age of 60 in 1994. 

And thank goodness my mother survived, because our family would 

have lost probably almost everything that he worked so hard to 

build in our organization. So we would have lost employees; our 

family members wouldn’t have had anything to go forward with. 

And our franchisees would have been very upset in that whole 

process as well. 

So I agree. I think we just have to find a permanent solution to 

this. And going back to this is not the solution. 

18 

Mr. FERACI. Your average biodiesel plant has an average of about 

15 million gallons of production and less than 20 employees, which 

is a way of saying they are small businesses. So to the degree that 

you could have an impact on estate planning and the costs associated with that, and then not being ready for that if you do get hit 

with the estate tax, it would have an impact on some of these businesses in our industry. 

Mr. FRENZ. Very good question. 

In the restaurant industry, seven out of ten restaurants are single-unit, family-owned/operated restaurants, and that has a huge 

effect on the estate tax in its current form. 

And I fully agree with you, something needs to be done. 

Mr. HALL. And it is complicated, because it is a revenue issue. 

It certainly speaks straight to budget issues, and it is very complicated for most small businesses, I think—the uncertainty—and 

that may be the same thing with so many tax issues, not being 

able to plan, not knowing exactly what is going to happen. 

Finding some permanent exemption amount, whether that is $5 

million—our microbusiness base, that seems to be the right amount 

that I think the NASE would support. 

But the key point there is finding some remedy that is permanent so that people could then actually plan and then know what 

they are facing so that they can make the appropriate decisions. 

Mr. GRAVES. Thank you. 

Chairwoman VELA ́ ZQUEZ. Mr. Schrader. 

Mr. SCHRADER. Thank you, Madam Chair. 

I guess I would like to open with a general question here. I 

mean, one of the things that has concerned me—I like a lot of what 

I have heard, and I appreciate the succinctness of the testimony 

from all the witnesses; it has been very, very good and on point, 

and hopefully our committee will have an opportunity to deal with 

some of these. 

But all of these cost money. And when I go back to the district, 

I keep getting hit up on, How much money are you all spending? 

And then I also get hit up on, How come you are not doing anything for small business? And I would suggest that, in the Recovery 

Act, we did a lot of the things, at least during this past year, that 

are good for small business. 

And how do we—and I guess I would ask, how do you get the 

message out to your Members that this Congress has stepped up, 

at least in the very near term of the Recover Act, and done a lot 

of these things already, to make sure they didn’t expire this year 

so they can continue on and, hopefully, during this year at least, 

be all right? 

And I guess my question: If we extend some of these things, like 

we already talked about doing the estate tax, we are already talking about doing the AMT, we are talking—I think there is some 

discussion about the net operating loss issue, particularly for smaller businesses. If we do go down that road, how do you and we communicate that successfully to small business so that they realize 

this Congress has helped them? 

Because we have not done that so far. I need your help, and I 

would ask each of the members of the panel here, maybe starting 

with Mr. Hall, and go the other way. 

19 

Mr. HALL. Well, I still would use—I am not a PR person, so I 

apologize for that. 

Mr. SCHRADER. But you are still a businessman. 

Mr. HALL. I would still use the word ′′commitment.′′ That is one 

of the things I talked about in my oral comments, and I think that 

is the word small business wants to hear. 

And I think it is easy to say that word, but when you pass things 

extending these types of things for investment in property, for useful lives of equipment, for the AMT exemption—and, again, that 

represents a situation that only the people caught in that middle 

bracket are going to be affected by if it is not extended. 

Passing those type of things, I think, says commitment to small 

business. And I think that is the way to communicate it to small 

business. I think—I am sitting here in this chair and that is what 

I hear; I hear a commitment to that. 

Mr. SCHRADER. But do you communicate back to your membership that Congress has done X, and this should help you; please 

take advantage of it? 

Mr. HALL. Absolutely. In fact, I would love to selfishly say, because of our testimony, some things happened to promote small 

business. But absolutely we communicate procedures like that, and 

we communicate again back. We communicate that the commitment to this committee, to small business, is very important. 

Mr. SCHRADER. Thank you. 

Mr. FRENZ. It is real easy with the restaurant industry, because for every dollar spent in the restaurant industry it is another $2.34 

that expands out. And the issue with accelerated depreciation, the 

same amount of taxes does need to be paid, it is just paid later. 

More cash flow early on when you need it, and then you pay it 

later. So there is no loss of tax dollars, it is just when it is paid 

on that speed-up of depreciation. 

On the other issues, when you save a business on the block, especially the family-operated restaurant, you are saving a lot in that 

neighborhood, a lot of that in the economy. And those are jobs that 

are saved. 

Mr. SCHRADER. Well, I agree with all that. But my problem is, 

I don’t think we have communicated that successfully to our restaurants on the street. They don’t realize we have already done 

some stuff. And if we do more stuff, if we have already failed in 

communicating the first part, what is the-- 

Mr. FRENZ. I am a restaurant operator and I am—I have a very 

big smile when my restaurant is full and the dollars are being 

spent and the employment is up and dollars going out. As far as 

the actual taxation dollars, I don’t know. 

Mr. SCHRADER. Talk to some of your buddies, if you wouldn’t 

mind. Thank you, though. 

Mr. FERACI. The biodiesel tax incentive plays such a critical role 

for the industry. Our membership is keenly aware in terms of what 

is going on with the incentive, when it is going to expire. You just 

have to check my voice mail to see that they are very aware of 

what is going on with that. 

They have been very appreciative of what this committee has 

done in providing a forum to discuss renewables and talk about the 

benefits that come from displacing petroleum with renewable fuels, 

20 

and in terms of communicating to—you know, good policy will 

trickle down and our membership will understand and benefit and 

country at large will benefit if you have a longer-term extension 

and continue to get the benefits of displacing petroleum with renewables. 

Ms. DWYER-OWENS. I was here just 2 weeks ago with about 450 

other franchisors and franchisees on the Hill, and one of the big 

messages we pushed at is, we need to thank our representatives, 

especially the Small Business Committee, for all the good work 

they are doing for us. So we recognize. 

And it is constantly pushed. We have a government relations 

side, of course, on our franchise association Web site, and we are 

pushing the positives as well as where we need help. But I would 

say that we try to keep a lot of balance there; and on the Hill, we 

have probably said as many thank-yous as we have said, ′′We need 

more.′′ 

Ms. BERNSTEIN. I can tell you that when Congress enacted the 

NOL carry-back, 5-year, for the businesses with less than $15 million in gross receipts, the IRS put out some very quick advice on 

how to go for a quick refund on that. We put that material into our 

newsletter on our Web site, so that our small retailers could figure 

out how to take advantage. Because, as was pointed out, they don’t 

have the advisers who are right there to say, Let’s go right away 

and apply. 

And I did get phone calls with people asking how to use it, and 

we tried to help them through it. So we certainly do that. 

But I do want to stress that in this economy, from the retail side, 

obviously what all of our small business and large business members need is more consumer spending. It is 70 percent of GDP. 

Until the consumer comes back, the economy can’t come back. And 

what probably is going to help the most with that, we all know the 

answer: It is more employment. The employment numbers are 

making people who have good jobs afraid to go out and spend in 

the retail stores, in the restaurants that are represented at this 

table and with your members. So we need to give them the confidence. We need to do that through employment. So, with that, I 

urge you also to support expanding that NOL carry-back for larger 

than $15 million in gross receipts. 

I have talked about some not very big businesses today because 

of the slim margins in the retail industry. You would be surprised 

how little money it is that some of these companies need for their 

NOL carry-back. But they have got a lot of employees, and I think 

that we wouldn’t want to see more of those jobs cut. 

And I think it is an important issue across the board, and I urge 

your support. 

Mr. SCHRADER. Thank you. 

I yield back. 

Chairwoman VELA ́ ZQUEZ. Ms. Dahlkemper. 

Ms. DAHLKEMPER. Thank you, Madam Chair. And thank you. I 

apologize for coming in late. I had a hearing in another committee 

to go to first. So I hope I am not actually repeating questions that 

were already asked. 

But, Mr. Hall, as part of the Recovery Act, Congress increased 

the AMT exemption to spare nearly 20 million taxpayers from the 

21 

AMT liability. And if we are unable to reach a deal on AMT, how 

would it slow the recovery process? 

Mr. HALL. Well, again, I think the key issue there is, depending 

on estimates, the original AMT impacted about 1 percent of taxpayers. And that was 1 percent by definition of the more wealthy 

taxpayers, and I think that was its intent. 

Recent estimates, particularly in States like New York, New Jersey, California, who have a higher State income tax, as many as 

8 to 10 percent of taxpayers are affected by AMT. 

Ms. DAHLKEMPER. And how many of those are small business 

owners? 

Mr. HALL. Again, back to one of my original comments, the thing 

that scares me most about the impact of this exemption on small 

business is, all of them have to do the calculation anyway. Even 

if it doesn’t have a revenue impact to the Treasury, it still causes 

a drain on the small business because they are having to go 

through the process. 

But estimates have been as many as 10 percent of small businesses will be affected by AMT, and overall, one out of five, 20 percent, would be affected by AMT. 

And, again, the biggest concern there for me, back to your original question: Is that is going to be tax out of their pocket? That 

is money that they would be using to finance business investment. 

And whether that is dollar for dollar, or that kind of changes that 

their perception or their optimism on their future, the uncertainty 

involved, all those things put an optimism strain on small business, 

which then translates back into lower investment. 

So that is my real concern, uncertainty. 

But then also having just the exemption amount being the only 

thing that is changed, it is only going to capture people in the 

lower-income levels, anyway, which again wasn’t the original intent 

of AMT to begin with. 

Ms. DAHLKEMPER. Thank you. 

Mr. Feraci, the biodiesel industry is clearly facing challenges in 

the current economy. But despite these obstacles, I know you are 

very aware of the producer in my district, Lake Erie Biofuels, who 

has actually now changed their name. But they are finding a way 

to thrive in these really tough business conditions. 

Can you maybe elaborate on the role of tax incentives in the successes of firms such as Lake Erie Biodiesel? 

Mr. FERACI. Sure. 

They have done a fantastic job. And when you talk to them, they 

have a business model that is utilizing some feedstock that other 

providers own, and that is a huge component of the input cost. And 

they make a quality fuel. 

The State of Pennsylvania, as well, has done some good things 

at the State level to promote biodiesel use, which is building a market there. And we have several other biodiesel producers in the 

State who are weathering what is a pretty difficult storm for the 

industry right now. 

All that said, the tax incentive still plays a key role because it 

is performing that role in the marketplace of making biodiesel price 

competitive with conventional diesel fuel. And you have to have 

that, especially in the absence of the RFS being in place right now, 

22 

to have consumers purchase the fuel and actually use it in the 

marketplace. 

So absent that tax incentive, I think that any biodiesel producer 

in the country is going to have—would have a difficult time making 

ends meet. 

Ms. DAHLKEMPER. Do you think any of them would be able to 

survive in the long term if there was not the short-term tax credit? 

Mr. FERACI. I think you would see people—to the degree that you 

couldn’t claim the incentive, I think you would see people start to 

mothball their production facilities, waiting to see if the incentive 

were to come back. 

But if it were to disappear for a long period of time, that—you 

would see the production cease, and then you would start to lose 

the production capacity in the country that we have built up since 

2004 when we put the incentive in place. And that would be a real 

shame, because we do have the capacity now. 

We have commercial-scale production of low-carbon, clean-burning diesel replacement fuel. We are going to be able to meet the 

RFS standards in terms of making volume and displacing petroleum. And if that tax incentive goes away, you are just not going 

to be able to do it. 

Ms. DAHLKEMPER. Thank you. 

I yield back. 

Chairwoman VELA ́ ZQUEZ. Ms. Dwyer-Owens, the committee has 

conducted so many hearings regarding access to capital and the 

condition, the climate, the downturn in our economy. And the biggest issue that small businesses are facing right now is access to 

credit, tightening standards by lenders, and so on. 

So I am interested to hear, what are the advantages of the franchise business model in a bad economy? And how can franchisors 

help franchisees weather the storm? 

Ms. DWYER-OWENS. There are numerous benefits, but just to hit 

on a few of them: In franchising, you are in business for yourself 

but not by yourself. So if you think about somebody starting a business from scratch and trying to figure it out along the way, there 

are going to be a lot of costly mistakes. And if somebody becomes 

part of a franchise organization, a lot of those mistakes have already been made. So, again, if you follow the system, you should 

find success in a franchise organization. 

There are other things, too, like buying power. So when you become part of a franchise organization, there are pooled buying dollars. You know, whether you are buying vehicles—in our business, 

we have a lot of vehicles out on the road, and we get much better 

prices for our franchisees because we are buying those vehicles together versus independently. 

So those are two of the top things that I would focus on. 

Chairwoman VELA ́ ZQUEZ. Mr. Frenz, we know how important 

consumer spending and consumer confidence is to getting this economy turned around, and we hear reports that the retail spending 

has increased. 

My question to you is, can you say the same with the restaurant 

industry, food traffic has increased? 

Mr. FRENZ. I wish I could. We are currently on the—at the location in Indiana, it is riding about—I am trying to remember, beVerDate Aug 31 2005 15:11 Jan 05, 2010 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 G:\CLERKS~1\HEARINGS\TRANSC~1\52888.TXT DARIEN
23 

cause I ran those figures for last month last week. And it is right 

around 12 percent, down, sales from last year, the same period of 

time. 

And in the store in Illinois, it is down 5 percent. 

The price of fuel is much lower this year than last year, so that 

has helped on some of the expenses. And the price of the beef is 

much lower this year, and part of that is the fuel cost. 

So the bottom line is approximately the same as last year, but 

the sales are currently down. 

Last weekend—this last weekend, we were packed. And whether 

it was the cooling-off or whatever that the people, less people went 

out to the park to eat and came in and ate at the restaurant, or 

less people ate on the patio at home, I don’t know. 

But last weekend sales were up, and I hope with—the government reports that the recession is over. I hope that word gets out 

to the people and they back them up on it. 

Thank you very much for that question. 

Chairwoman VELA ́ ZQUEZ. Thank you. 

Well, let me take this opportunity to thank all of you for being 

here today. And when it comes to tax policies, especially in Ways 

and Means, small businesses are an afterthought. So we will be 

there to remind them as to the importance of this provision when 

it comes to small businesses. 

I intend to send a letter to Ways and Means, and especially to 

the chairman, about keeping and extending and expanding some of 

these provisions. 

So, with that, I ask unanimous consent that members will have 

5 days to submit a statement and supporting materials for the 

record. Without objection, so ordered. 

Chairwoman VELA ́ ZQUEZ. This hearing is now adjourned. Thank 

you. 

[Whereupon, at 11:15 a.m., the committee was adjourned.] 

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