Expired and Expiring Temporary Tax Provisions (“Tax Extenders”)
Released: 2014-11-06T00:00:00

Introduction

Dozens of temporary tax provisions expired at the end of 2013, and several other temporary tax provisions are scheduled to expire at the end of 2014. The American Taxpayer Relief Act (ATRA; P.L. 112-240 ), signed into law on January 2, 2013, reduced tax policy uncertainty by permanently extending most of the tax cuts first enacted in 2001 and 2003 and permanently indexing the alternative minimum tax (AMT) for inflation. ATRA, however, did not eliminate uncertainty in the tax code. Under ATRA, a number of provisions that had been allowed to expire at the end of 2011 or 2012 were temporarily extended through 2013. Thus, under current law, these provisions expired at the end of 2013.

Collectively, temporary tax provisions that are regularly extended by Congress rather than being allowed to expire as scheduled are often referred to as "tax extenders." Many of these "tax extender" provisions have been temporarily extended multiple times. The research tax credit, for example, has been extended 15 times since being enacted in 1981. Most of the temporary tax provisions that expired at the end of 2013 were previously extended more than once.

The 113 th Congress has considered legislation that would extend selected expired or expiring tax provisions. The Expiring Provisions Improvement Reform and Efficiency (EXPIRE) Act ( S. 2260 ), which would extend most expired and soon-to-expire tax provisions through 2015, was reported by the Senate Finance Committee on April 28, 2014. The act subsequently became an amendment to H.R. 3474 which did not advance in the Senate, as a motion to end debate on H.R. 3474 was voted down on May 15, 2014. In contrast to the Senate, the House has voted to permanently extend certain expired tax provisions as part of the Jobs for America Act ( H.R. 4 ), which passed the House on September 18, 2014. Several expired charitable-related provisions would be made permanent as part of the America Gives More Act of 2014 ( H.R. 4719 ), which passed the House on July 17, 2014. Chairman Camp supports addressing extenders as part of broader tax reform. His proposed Tax Reform Act of 2014 would make certain provisions permanent, such as the research and experimentation (R&D) tax credit and increased expensing under Section 179.

The President's FY2015 Budget proposal would permanently extend or modify certain expired provisions, while temporarily extending others. Proposals that would be permanently extended (and in some cases modified) include (1) the enhanced deduction for conservation easements; (2) increased expensing under Section 179; (3) the exclusion for qualified small business stock; (4) the new markets tax credit (NMTC); (5) the renewable electricity production tax credit (PTC); (6) the deduction for energy-efficient commercial property; (7) the research and experimentation (R&D) tax credit; and (8) the Work Opportunity Tax Credit (WOTC). Proposals that would be temporarily extended include (1) the exclusion for cancellation of home mortgage debt (through 2016); (2) the tax credit for cellulosic biofuel (through 2024); and (3) the tax credit for energy-efficient new homes (through 2024). The President's FY2015 Budget also assumes that the American opportunity tax credit (AOTC), the earned income tax credit (EITC) expansions, and the child tax credit (CTC) expansions, that were extended through 2017 as part of ARTA, are made permanent.

Allowing temporary tax provisions to expire at the end of 2013 does not necessarily mean that these tax provisions will not be available to taxpayers in 2014. In recent years, Congress has chosen to retroactively extend expired tax provisions. Under ATRA, for example, a number of tax provisions that had been allowed to expire at the end of 2011 were retroactively extended through 2013.

This report provides a broad overview of the tax extenders. Additional information on specific extender provisions may be found in other CRS reports, including the following:

CRS Report R43510, Selected Recently Expired Business Tax Provisions ("Tax Extenders") , by [author name scrubbed], [author name scrubbed], and [author name scrubbed]

CRS Report R43688, Selected Recently Expired Individual Tax Provisions ("Extenders"): In Brief , by [author name scrubbed] CRS Report R43517, Recently Expired Charitable Tax Provisions ("Tax Extenders"): In Brief , by [author name scrubbed] and [author name scrubbed] CRS Report R43541, Recently Expired Community Assistance Related Tax Provisions ("Tax Extenders"): In Brief , by [author name scrubbed] CRS Report R43449, Recently Expired Housing Related Tax Provisions ("Tax Extenders"): In Brief , by [author name scrubbed]

The Concept of "Tax Extenders"

The tax code presently contains dozens of temporary tax provisions. In the past, legislation to extend some set of these expiring provisions has been referred to by some as the "tax extender" package. While there is no formal definition of a "tax extender," the term has regularly been used to refer to the package of expiring tax provisions temporarily extended by Congress. Oftentimes, these expiring provisions are temporarily extended for a short period of time (e.g., one or two years). Over time, as new temporary provisions have been routinely extended and hence added to this package, the number of provisions that might be considered "tax extenders" has grown.

Evaluating Expiring Tax Provisions

There are various reasons Congress may choose to enact temporary (as opposed to permanent) tax provisions. Enacting provisions on a temporary basis, in theory, would provide Congress with an opportunity to evaluate the effectiveness of specific provisions before providing further extension. Temporary tax provisions may also be used to provide relief during times of economic weakness or following a natural disaster. Congress may also choose to enact temporary provisions for budgetary reasons. Examining the reason why a certain provision is temporary rather than permanent may be part of evaluating whether a provision should be extended.

Reasons for Temporary Tax Provisions

There are several reasons why Congress may choose to enact tax provisions on a temporary basis. Enacting provisions on a temporary basis provides an opportunity to evaluate effectiveness before expiration or extension. However, this rationale for enacting temporary tax provisions is undermined if expiring provisions are regularly extended without systematic review, as is the case in practice. In 2012 testimony before the Senate Committee on Finance, Dr. Rosanne Altshuler noted that

an expiration date can be seen as a mechanism to force policymakers to consider the costs and benefits of the special tax treatment and possible changes to increase the effectiveness of the policy. This reasoning is compelling in theory, but has been an absolute failure in practice as no real systematic review ever occurs. Instead of subjecting each provision to careful analysis of whether its benefits outweigh its costs, the extenders are traditionally considered and passed in their entirety as a package of unrelated temporary tax benefits.

Several temporary tax provisions that had previously been extended a number of times were allowed to expire during the 112 th Congress (see the " Tax Extenders in the 112th Congress " section below). Arguably, certain incentives were not extended as it was determined that their benefit did not exceed the cost. For example, tax incentives for alcohol fuels (e.g., ethanol), which can be traced back to policies first enacted in 1978, were not extended beyond 2011. The Government Accountability Office (GAO) had previously found that with the renewable fuel standard (RFS) mandate, tax credits for ethanol were duplicative and did not increase consumption.

Tax policy may also be used to address temporary circumstances in the form of economic stimulus or disaster relief, for example. Economic stimulus measures might include bonus depreciation or generous expensing allowances. Various tax policies have also been enacted to provide relief following natural disasters. Recent examples of other temporary provisions that have been enacted to address special economic circumstances include the exclusion of mortgage forgiveness from taxable income during the recent housing crisis, the payroll tax cut, and the Section 1603 grants in lieu of tax credits to compensate for weak tax-equity markets during the economic downturn. It has been argued that provisions that were enacted to address a temporary situation should be allowed to expire once the situation is resolved.

Congress may also choose to enact tax policies on a temporary basis for budgetary reasons. If policy makers decide that legislation that reduces revenues must be paid for, it is easier to find resources to offset short-term extensions rather than long-term or permanent extensions. Additionally, by definition the Congressional Budget Office (CBO) assumes under the current law baseline that temporary tax cuts expire as scheduled. Thus, the current law baseline does not assume that temporary tax provisions are regularly extended. Hence, if temporary expiring tax provisions are routinely extended in practice, the CBO current law baseline would tend to overstate projected revenues, making the long-term revenue outlook stronger. Thus, by making tax provisions temporary rather than permanent, these provisions have a smaller effect on the long-term fiscal outlook.

Extenders as Tax Benefits16

Temporary tax benefits are a form of federal subsidy that treats eligible activities favorably compared to others, and channels economic resources into qualified uses. Extenders influence how economic actors behave and how the economy's resources are employed. Like all tax benefits, economic theory suggests every extender can be evaluated by looking at the impact on economic efficiency, equity, and simplicity. Temporary tax provisions may be efficient and effective in accomplishing their intended purpose, though not equitable. Alternatively, an extender may be equitable but not efficient. Policy makers may have to choose the economic objectives that matter most.

Economic Efficiency

Extenders often provide subsidies to encourage more of an activity than would otherwise be undertaken. According to economic theory, in most cases an economy best satisfies the wants and needs of its participants if markets allocate resources free of distortions from taxes and other factors. Market failures, however, may occur in some instances, and economic efficiency may actually be improved by tax distortions. Thus, the ability of extenders to improve economic welfare depends in part on whether or not the extender is remedying a market failure. According to theory, a tax extender reduces economic efficiency if it is not addressing a specific market failure.

An extender is also considered relatively effective if it stimulates the desired activity better than a direct subsidy. Direct spending programs, however, can often be more successful at targeting resources than indirect subsidies made through the tax system such as tax extenders.

Equity

A tax is considered to be fair when it contributes to a socially desirable distribution of the tax burden. Tax benefits such as the extenders can result in individuals with similar incomes and expenses paying differing amounts of tax, depending on whether they engage in tax-subsidized activities. This differential treatment is a deviation from the standard of horizontal equity, which requires that people in equal positions should be treated equally.

Another component of fairness in taxation is vertical equity, which requires that tax burdens be distributed fairly among people with different abilities to pay. Most extenders are considered inequitable because they benefit those who have a greater ability to pay taxes. Those individuals with relatively less income and thus a reduced ability to pay taxes may not have the same opportunity to benefit from extenders as those with higher income. The disproportionate benefit of tax expenditures to individuals with higher incomes reduces the progressivity of the tax system, which is often viewed as a reduction in equity.

An example of the effect a tax benefit can have on vertical equity is illustrated by two teachers who have both incurred $250 in classroom-related expenses and are eligible to claim the above-the-line deduction for expenses. Yet the tax benefit to the two differs if they are in different tax brackets. A teacher with lower income, who may be in the 15% income tax bracket, receives a deduction with a value of $37.50, while another teacher, in the 33% bracket, receives a deduction value of $82.50. Thus, the higher-income taxpayer, with presumably greater ability to pay taxes, receives a greater benefit than the lower-income taxpayer.

Simplicity

Extenders contribute to the complexity of the tax code and raise the cost of administering the tax system. Those costs, which can be difficult to isolate and measure, are rarely included in the cost-benefit analysis of temporary tax provisions. In addition to making the tax code more difficult for the government to administer, complexity also increases costs imposed on individual taxpayers. With complex incentives, individuals devote more time to tax preparation and are more likely to hire paid preparers.

The Cost of Extending Expired and Expiring Tax Provisions

The Congressional Budget Office (CBO) provides estimated costs of extending all tax provisions scheduled to expire before 2024 (see Table 1 ). CBO's estimates can be viewed as the cost of a long-term extension. The cost of a short-term extension, as proposed in the EXPIRE Act, is presented in Table 2 below. The cost of permanent extension of certain provisions as passed by the House can be found in Table 3 below. According to CBO's estimates, over the 2014 to 2024 budget window,

extending all expiring tax provisions would cost $963.4 billion; extending temporary provisions that expired in 2013 would cost $762.1 billion; extending bonus depreciation would cost $296.4 billion; and extending expansions to the child tax credit, the earned income tax credit, and the American Opportunity Tax Credit currently scheduled to expire at the end of 2017 would cost $165.4 billion.

This cost of extending "all other expiring provisions" includes the extension of all provisions scheduled to expire in 2013 (see Table 1 and the associated discussion below) as well as those scheduled to expire in years between 2013 and 2024. However, most of the cost of extension (79%) is associated with provisions that expired at the end of 2013.

Since tax extender provisions are assumed to expire as scheduled by CBO, their extension—even if expected by policy makers—is not included in CBO's current law revenue baseline. As a result, CBO's revenue projections are higher than actual revenue levels that are likely to occur. Consequently, projected budget deficits under the current law baseline are smaller than actual deficits that are likely to occur.

The President's FY2015 budget uses a baseline that assumes that the American Opportunity Tax Credit (AOTC), expansions to the earned income tax credit (EITC), and child tax credit (CTC) are made permanent. The baseline in the President's FY2015 budget, which assumes certain policies are extended, collects less revenue than CBO's current law baseline.

The cost of providing a short-term extension, as proposed in the EXPIRE Act (discussed below), is less than the cost of extending expiring provisions through the budget window, as is done by CBO for the purposes of constructing the alternative fiscal scenario baseline. CBO scores, some might argue, provide a more accurate measure of the budget impact of temporary tax provisions. The JCT scores reflect the budget impact of the temporary extension relative to current law.

If expiring provisions are temporarily extended, the 10-year revenue cost may be less than the cost in year 2015, as many of the expired provisions are tax deferrals, or timing provisions. Bonus depreciation is one example of a timing provision, where the short-term cost of extension is greater than the long-term or budget window cost. Extending 50% bonus depreciation would reduce revenues by $73.6 billion in 2015, while the cost over the 10-year budget window is $2.9 billion.

Tax Provisions Expired at the End of 2013

Dozens of temporary tax provisions expired at the end of 2013 (see Table 2 ). Many of these provisions have been extended as part of previous "tax extender" legislation. For the purposes of this report, expiring provisions have been classified as belonging to one of six categories: individual, business, charitable, energy, community development, or disaster relief. The following sections provide additional details on expiring provisions within each category. Table 2 also notes which provisions would be extended by the EXPIRE Act. Table 2 also includes the 10-year (or budget window) cost of the extension through 2015, as proposed in the EXPIRE Act.

Individual22

All but one of the individual provisions that expired at the end of 2013 have been extended at least once. The longest-standing individual provision that has previously been extended is the above-the-line deduction for classroom expenses incurred by school teachers. This provision was first enacted on a temporary basis in 2002 and has regularly been included in tax extender packages. Other individual provisions that have been extended more than once include the deduction for state and local sales taxes, the above-the-line deduction for tuition and related expenses, the deduction for mortgage insurance premiums, and the parity for the exclusion of employer-provided mass transit and parking benefits.

The one provision that has not been extended in the past, the health coverage tax credit, was first enacted without an expiration date as part of the Trade Act of 2002 ( P.L. 107-240 ). A January 1, 2014, termination date was enacted as part of an act to extend the Generalized System of Preferences in 2011 ( P.L. 112-40 ). Although the health care coverage credit would not have been extended as part of the chairman's mark of the EXPIRE Act, a two-year extension was agreed to during the April 3, 2014, Senate Finance Committee markup.

Business28

All but one of the business provisions that expired at the end of 2013 have been extended at least once. Most of the business provisions scheduled for expiration in 2013 have been extended more than once. Long-standing provisions that are scheduled for expiration include the research tax credit, the rum excise tax cover-over, the Work Opportunity Tax Credit, and the active financing exception under Subpart F. Bonus depreciation and enhanced expensing allowances, which are often viewed as economic stimulus measures, are also scheduled to expire at the end of 2013.

The April 1, 2014, chairman's mark of the EXPIRE Act proposed extending most of the expired business provisions. The three provisions that were not included in the April 1, 2014, proposal—the look-through treatment of payments between controlled foreign corporations, the seven-year amortization for motorsports racing facilities, and the special expensing rules for film and television production—were included in the modification release on April 3, 2014. All of the business-related provisions listed in Table 2 would be extended in the EXPIRE Act as reported by the Senate Finance Committee. The House has also voted to make permanent several business-related extenders (see " Tax Extenders Legislation in the 113th Congress " below).

Charitable36

The four charitable provisions that expired at the end of 2013 have previously been extended multiple times. Provisions providing an enhanced deduction for non-corporate businesses donating food inventory were first enacted in response to Hurricane Katrina in 2005. The remaining charitable provisions set to expire were first enacted as part of the Pension Protection Act of 2006 ( P.L. 109-280 ). The April 1, 2014, chairman's mark of the EXPIRE Act would extend three of the four charitable provisions that expired at the end of 2013. The April 3, 2014, modification proposed extending the special rule for contributions of capital gain real property for conservation purposes. All four charitable provisions would be extended through 2015 in the EXPIRE Act as reported by the Senate Finance Committee. The House has also voted on July 17, 2014, to make permanent the four charitable-related extenders (see " Tax Extenders Legislation in the 113th Congress " below).

Energy39

The longest-standing energy-related provision that expired at the end of 2013 is the renewable energy production tax credit (PTC). This provision was first enacted in 1992. Several of the temporary energy-related tax provisions that are scheduled to expire at the end of 2011 were first enacted as part of the Energy Policy Act of 2005 (EPACT05; P.L. 109-58 ). These include the credit for construction of energy efficient new homes, the credit for energy efficient appliances, the deduction for energy-efficient commercial buildings, and the credit for nonbusiness energy property (also known as the tax credit for energy efficiency improvements for existing homes). Certain tax incentives for alternative technology vehicles and alternative fuel vehicle refueling property were also first included in EPACT05.

Six energy-related provisions were excluded from the April 1, 2014, chairman's mark of the EXPIRE Act, although three of these provisions were included in the modification released on April 3, 2014, and one other included in the version of the EXPIRE Act that was reported by the Senate Finance Committee. The three provisions that had been excluded from the chairman's mark but were added in the modification are the PTC and the provisions for residential and commercial energy efficiency. The special rule related to the reporting of income from electric transmission restructurings was included in the EXPIRE Act as reported by the Senate Finance Committee. Energy-related provisions that would not be extended include tax credits for manufacturers of energy-efficient appliances and the placed in service date for partial expensing of certain refinery property.

Community Development43

All four of the community development provisions that expired at the end of 2013 have been extended more than once. Qualified zone academy bonds (QZABs) are tax credit bonds available to state and local governments for elementary and secondary school renovation, equipment, teacher training, and course materials. QZABs were first made available in 1998. The New Markets Tax Credit (NMTC), designed to promote investment in low-income and impoverished communities, was first enacted in 2000. Tax incentives designed to encourage economic activity in the American Samoa and empowerment zones are also scheduled to expire at the end of 2013. The chairman's mark of the EXPIRE Act included extensions of the provisions related to QZABs, the NMTC, and the American Samoa economic development credit. The EXPIRE Act, as reported by the Senate Committee on Finance, included an extension of the empowerment zone tax incentives as well as modifications to the NMTC to allow unused allocations to be used for a manufacturing communities tax credit.

Disaster Relief

Disaster relief tax provisions that expired at the end of 2013 are those that provide tax-exempt bond financing authority for facilities in the New York Liberty Zone and provisions related to nonrecognition of gain for areas damaged by the 2008 Midwestern storms. Several other temporary disaster relief provisions have been allowed to expire in recent years. Neither of the disaster relief provisions that expired in 2013 are included in the EXPIRE Act.

Tax Provisions Expiring in 2014

In addition to the provisions that expired at the end of 2013, six tax provisions are scheduled to expire at the end of 2014. Three of these provisions are energy-related: (1) incentives for alternative fuels and alternative fuel mixtures involving liquefied hydrogen; (2) the credit for fuel cell motor vehicles; and (3) the credit for hydrogen alternative fuel refueling property. The other tax provisions expiring in 2014 are the automatic amortization extension for multiemployer defined benefits plans; the additional funding rules for multiemployer defined pension plans in endangered or critical status; and the deemed approval of adoption, use, or cessation of shortfall funding method for multiemployer defined benefits plans.

The EXPIRE Act would extend the energy-related provisions expiring at the end of 2014 as well as the expiring provisions relating to multiemployer defined benefit pension plans through the end of 2015.

Tax Extenders Legislation in the 113th Congress

As discussed above, the Senate's extenders bill, the Expiring Provisions Improvement Reform and Efficiency (EXPIRE) Act ( S. 2260 ), would extend most expiring provisions through 2015. The EXPIRE Act would cost an estimated $84.9 billion over the 2014 through 2024 budget window. Of this cost, $87.4 billion is for the two-year extension of tax provisions that expired in 2013. Extending tax provisions that expire in 2014 would cost $0.1 billion. Other revenue provisions would raise $3.4 billion, while the Hire More Heroes Act of 2014 ( H.R. 3474 ) would cost $0.7 billion.

The House has taken a different approach to tax extenders, instead considering legislation that would make permanent certain expired provisions (see Table 3 ). The House has passed legislation that would make nine of the expired provisions listed in Table 2 permanent. Taken together, permanently extending these nine provisions would reduce revenues by an estimated $511.4 billion over the 10-year budget window. Six of these nine provisions were included in the Jobs for America Act ( H.R. 4 ). Three other charitable-related provisions were passed as part of the America Gives More Act of 2014 ( H.R. 4719 ). The Committee on Ways and Means has reported legislation that would make two additional international-related extender provisions permanent, although this legislation has yet to be considered by the full House.

Some of the legislation proposed in the House would not only extend expired provisions, but would also make policy changes. For example, the House-passed modification and permanent extension of the research credit ( H.R. 4429 and H.R. 4 ) would provide a permanent credit equal to 20% of a taxpayer's qualified research expenditures (QREs) in the current tax year above 50% of average annual QREs in the previous three tax years, 20% of its basic research payments in the current tax year above 50% of average annual basic research payments in the three previous tax years, and 20% of the amounts paid or incurred by the taxpayer in the current tax year for qualified energy research conducted by an energy research consortium. The House-passed proposals to make the increased expensing allowances permanent under Section 179 would index the limits for inflation, starting in 2015. The House-passed proposals to permanently extend 50% bonus depreciation would expand the list of eligible property to include qualified leasehold and retail improvement property, in addition to other changes.

Tax Extenders in the 112th Congress

The American Taxpayer Relief Act (ATRA; P.L. 112-240 ) extended dozens of temporary tax provisions that had expired or were scheduled to expire at the end of 2012 (see Table 4 ). Many of these provisions were extended retroactively, as they had been allowed to expire at the end of 2011. The 10-year budgetary cost of extending temporary expiring provisions under ATRA was an estimated $73.6 billion. The largest of these provisions, in terms of revenue cost, were the credit for research and experimentation expenses ($14.3 billion), the extension and modification of the wind production tax credit (PTC) ($12.2 billion), and the exception under Subpart F for active financing income ($11.2 billion). Information on the cost of extending specific provisions can be found in Table 4 .

Several provisions that might have been considered "traditional extenders"—that is, they had been extended multiple times in the past—were not extended under ATRA. Two charitable provisions, the enhanced deduction for donations of computer equipment, and the enhanced deduction for book inventory to schools, which were first enacted in 1997 and 2005 respectively, were allowed to expire. Other energy-related provisions, including the suspension of the 100%-of-net-income limitation on percentage depletion for oil and gas from marginal wells, first enacted in 1997, and the production tax credit (PTC) for refined coal, first enacted in 2004, were also allowed to expire. Tax incentives for ethanol, which were first enacted in 1978, were also not extended in ATRA, nor were provisions first enacted in 1997 that allowed for expensing of "brownfield" environmental remediation costs. The estate tax look-through rule for regulated investment company (RIC) stock, first enacted in 2004, was also not extended.

A number of other provisions were allowed to expire at the end of 2012. Some of these provisions, such as the Section 1603 grants in lieu of tax credits program and 100% bonus depreciation, might have been classified as having been temporary stimulus measures. Among the other provisions that were allowed to expire were a number of disaster relief measures, including Gulf Opportunity (GO) Zone provisions and tax provisions related to the 2008 Midwestern Storms and Hurricane Ike.