The New York Times's disclosure of 1995 tax information showing that Donald Trump booked $916 million in losses that year — and potentially carried them over to avoid paying income taxes for many years following — threw the candidates' tax proposals into stark relief, as well as their often different concepts of what a “loophole” entails.
For starters, it doesn't appear that Clinton or Trump's plan would affect the tax provision that, the Times reported, the real estate magnate could have employed to avoid paying federal income taxes for as much as 18 years, tax experts said. That provision states that a business that loses money in one year can apply those losses toward income gained in two previous and 15 future years.
But more broadly, both candidates would change the tax code in important ways. Trump would cut taxes on the wealthy and offer tax breaks to working parents so they can pay less to the government. Clinton would look to significantly raise taxes on millionaires — and make sure their heirs pay more, too.
“Both candidates would introduce new complexities,” said Leonard Burman, who directs the independent Tax Policy Center. “In a lot of cases, complexity gives smart tax lawyers opportunities to manipulate the rules in the way policymakers never intended.”
The Trump campaign, while not confirming the details of the New York Times' report, argued that Trump's tax planning strategies revealed his business smarts.
“There's no one who has shown more genius in their way to maneuver around the tax code and to rightfully use the laws to do that,” Chris Christie, the governor of New Jersey and a top Trump surrogate, told Fox News on Sunday, “and he's already promised in his tax plan to change many of these special interest loopholes and get rid of them so you don't have this kind of situation.”
Trump's tax plan would eliminate one major such “loophole,” called carried interest, which is often employed by private-equity firms to reduce tax liability. He would also cap the value of itemized deductions the highest-earning taxpayers could claim on their returns, at $100,000 for individuals and $200,000 for couples, and he would reduce the number of tax brackets from seven to three. He would eliminate “most corporate tax expenditures” except those for research and development.
Nothing in those plans would prevent someone from declaring a huge loss one year and then using it to offset tax liability for years afterward.
Many other parts of Trump's plans, though, would create new complexities for tax filers. Among them:
*He would create two, parallel systems of tax breaks for child care. Campaign policy aides have stressed that if Trump's proposed breaks would be less advantageous for a family to claim than the current benefits offered by the code, the family could simply revert to the previous system.
*He would allow manufacturing companies to write off their capital investments in America, but only if they waive their ability to write off corporate interest. Per the campaign, such a decision “once made can only be revoked within the first 3 years of election; if revoked, returns for prior years would need to be amended to show revised status.”
*He would tax some “pass through” entities — a popular corporate structure for many small businesses and for Trump's own companies — at a much reduced rate of 15 percent. But not all pass-throughs. The campaign has still not clarified the distinction fully.
Several independent analyses project the Trump plan would generate modest income boosts for lower- and middle-income taxpayers, on average, while delivering much larger boosts for the top 1 percent of income earners.
Clinton's plans, meanwhile, include a slew of new policies aimed at reducing tax avoidance by the rich.
She would add a new de facto minimum tax, known as the Buffett rule, and an additional surtax on incomes above $5 million a year. She would limit a tax provision that allows real estate developers to essentially switch out properties to minimize tax liability, and she would force the heirs of large estates to pay taxes on the increased value of the properties they inherit.
She would also raise the estate tax rate for multimillionaires and billionaires; Trump would eliminate the tax entirely.
Clinton's team says she would also order Treasury Department officials to shut down loopholes that allow the most sophisticated filers to avoid tax liability.
Several analyses, including one by the Tax Policy Center, predict the Clinton plan would not appreciably change incomes for most American workers. The highest earners, however, would pay significantly higher taxes, the analyses find.
There's a reason both candidates are talking about closing loopholes: It's what voters say they want. Nearly two-thirds of respondents to a Gallup poll this year said they favored a plan to “Eliminate most federal income tax deductions and loopholes available to the very rich.”
Part of the appeal of simple tax plans, Burman said, “is the sense that rich people are basically getting away with murder” when they file. Wealthier people are more likely to spend a lot of money on professional tax-avoidance strategy, he said.
On the other hand, very rich people, on the whole, pay higher effective tax rates than low- or middle-income Americans. But there's a lot of variation at the top — and a lot of incentive, in the current code, for very rich people to legally game the system.