With the passage of the Protecting Americans from Tax Hikes (PATH) Act of 2015, Congress has significantly curtailed business tax uncertainty while putting “extenders” on a path to extinction.

While it was largely drowned out by the buzz of the presidential election and talk of the broader bipartisan spending deal, this was a quiet but significant accomplishment for the much-maligned do-nothing Congress before breaking for the year. And while its impact might not be immediately apparent on this year’s tax return, it stands to have a serious impact on contractors’ decision-making for years to come.

For decades, Congress has tethered an increasingly disparate and unruly list of tax provisions to year-end temporary extensions. Beginning in the wake of Watergate, Congress subjected so-called tax expenditures to sunset provisions, requiring them to be renewed or expire after five years. Doing so ostensibly meant these expenditures had to be paid for, and justified, each time they were renewed. But starting in 1981, with the creation of the research tax credit, the process of renewing temporary provisions became a pro forma annual event. After all, who could be against corporate research? With the enactment of the Tax Reform Act of 1986 and its technical companion in 1988, scores of other temporary provisions entered the code, and “tax extenders” were born.

Flash forward two decades and consensus policies like research and development (R&D) and small business expensing have been rendered hostage to obscure, parochial and downright questionable tax expenditures that have finagled a ride over the years. From Puerto Rican rum distilleries and movie studios to horse tracks and Nascar racing, a widening array of carve-outs have insinuated themselves into the tax code thanks to Congress’ unwillingness (or inability) to separate the wheat from the policy chaff.

Even the more substantively defensible provisions have been fodder for fierce partisan and ideological battles. For example, in the renewable energy sector, the production tax credit that forms the very basis of the wind power business model makes for a perennial political football between conservatives arguing against government subsidies and liberals favoring greener energy sources. These discussions often are delayed until the end of the year and almost invariably end in the extenders being moved en bloc.

As the list of extenders has snowballed, so too has the cost. While it was once feasible and routine to pass an extension for multiple years, recently the package has fallen prey to budget battles and D.C. dysfunction. The hefty price tag has emboldened Congress to charge well beyond its statutory expiration and into the next calendar year. While governing by crisis increases political pressure and therefore the likelihood of passage, it also undermines the intended economic effects of the policies. This limbo means business owners are left in a lurch for the better part of the year.

The previous iteration of the extenders process is a great example. On the cusp of a large, long-term and bipartisan deal in late 2014, Congress was thwarted at the last minute by a White House veto threat. Instead of a multi-year extension with various provisions made permanent, Congress was forced to default to a one-year kick of the can. But because it was already late December, this “extension” was applied retroactively, meaning that the 55 provisions would expire less than two weeks later.

Following this most recent stop-gap, Congress placed new chairmen at the helm of the tax-writing committees in both chambers—Paul Ryan (R-Wis.) in the House and Orrin Hatch (R-Utah) in the Senate—and the message became clear early on that the extenders charade was on borrowed time. Ryan in particular moved individual bills to make permanent various consensus tax provisions, passing them through the full House and putting pressure on the Senate and the White House to make a deal. These efforts had languished by the time a leadership shake-up handed Ryan the speaker’s gavel, but members were quietly working behind the scenes. The extenders negotiation ended up occurring alongside a contentious omnibus process, and bipartisan support for good tax policies helps alleviate some of the frustrations of a more bombastic spending debate.

In the end, to the great shock of most onlookers, Congress agreed to make 22 consensus provisions a part of the underlying tax code. Most importantly for contractors, the $500,000 small business expensing limit under Section 179 was made permanent, along with the R&D tax credit and 15-year depreciation for leasehold improvements. All of these stand to keep more money in the hands of businesses and allow for long-term planning and decision-making.

The remaining temporary provisions have been extended, but will have to justify their existence going forward with greater scrutiny. Congress has further divided them into two separate tracks: a five-year extension that applies to the New Markets Tax Credit, the Work Opportunity Tax Credit, bonus depreciation, and the so-called “look-through” rule; and a two-year (through 2016) extension that applies to everything else. The latter track suggests a likely phase-out, as congressional leaders insist that the days of extenders kabuki will be left in the rearview mirror.

Not only has Congress made good policy permanent, acknowledging the true budgetary cost while giving businesses needed certainty, but it also has reset the baseline against which future changes to the tax code will be considered, easing the path for comprehensive tax reform.


Liam Donovan is director of legislative and political affairs for Associated Builders and Contractors. For more information, email donovan@abc.org.