Top Five Workplace Compensation and Benefits Plan

Many employers are giving employees greater flexibility to work alternative schedules, including hybrid arrangements (i.e., some in-person and some remote work) or continuing to work entirely remotely. To meet the moment and help with retention and recruiting, employers are reexamining their employee benefits, focusing on employees’ immediate needs other than cash compensation.

Based on inquiries from BDO clients, we have identified the following as the top five current workplace compensation and benefits trends.
 
1. Unlimited Paid Time Off (PTO). Chief financial officers might embrace the concept of unlimited PTO, because it eliminates accruals of earned but unused PTO, carryovers and cash-outs upon termination. Getting rid of that liability can boost the employer’s financials and make payroll easier and more consistent. However, management may be concerned that some employees would abuse an unlimited PTO policy, while others would not take enough days off to avoid burnout, so those issues must be addressed.
 
For employees, unlimited PTO has pros and cons. On the one hand, it could improve morale by giving employees the ability to address their individual work-life balance and demonstrate the employer’s commitment to overall employee wellness. With unlimited PTO, employees would have no incentive to go to work when they are sick, which can help avoid spreading COVID and other contagious diseases among the work force. Some employees may value a job that provides greater flexibility over more pay. Offering a unique benefit may attract or retain top talent in a competitive market. On the other hand, extra cash from PTO cash-outs would no longer be available.
 
Of course, having an unlimited PTO policy means that employers can no longer offer greater PTO as a reward (for example, as part of a promotion). Also, switching to an unlimited PTO program may be costly if accrued vacation must be paid out under state or local law. Some employers may simply freeze accrued PTO balances, to be used on a FIFO basis. Unlimited PTO also complicates compliance with certain federal and state mandates, such as the Family Medical Leave Act (FMLA) or minimum PTO rules.
 
2. Employer-paid student loan debt and education. Over the past few years, more employers have expressed an interest in helping employees repay their student loan debt as part of the employer’s recruiting and retention efforts. Unfortunately, if an employer simply pays an employee’s student loan debt, such payment is taxable wage income to the employee and is subject to income and employment tax withholding (and the employer would have to pay its share of employment taxes on those payments).
 
For 2020, the CARES Act allowed employers to repay up to $5,250 in employee student loan debt tax-free. The Consolidated Appropriations Act of 2020 (CAA) extended that relief through December 31, 2025. To make tax-free student loan payments to employees, employers would need a written plan that complies with Internal Revenue Code (IRC) Section 127 tuition assistance rules. Section 127 plans can provide tax-free payments for current education as well as student loan debt. Courses do not need to be job related. Eligibility for such plans is generally broad-based, provided the employee meets the stated criteria, which cannot discriminate in favor of highly compensated employees or owners.
 
Employers can also offer employees tax-free, job-related education as a working condition fringe benefit under IRC Section 132. Working condition fringe benefits can be provided on a case-by-case basis and need not be a broad-based program available to all employees.
 
Some employers want to provide tax-free scholarships to employees (or their family members), but employer-paid scholarships are generally taxable income to the employee (even if the employer pays the school directly). The IRS’s rules for employers providing employees (or their family members) with tax-free scholarships are very narrow.
 
3. Reimbursing work-from-home expenses. For employers’ reimbursements of business expenses incurred by employees who are working remotely to be tax-free, the reimbursements must be made under what the IRS calls an “accountable plan.” An accountable plan requires that the employer must have a written plan or policy to reimburse expenses that have a business connection, so long as employees submit an expense report within a reasonable period of time (i.e., 60 days). Generally, receipts are required for business expenses unless the amounts are under $75 (or are for lodging). Accountable plans are not only used for business travel, meals, lodging and transportation, but also can be used for any other business costs, such as work-from-home expenses.
 
When COVID converted many employees into remote workers, numerous employers began reimbursing employees for their business use of home internet and personal cell phones. Although IRS Notice 2011-72 generally makes employer-provided cell phones a tax-free fringe benefit, reimbursement for business use of a personal cell phone (and internet) remains subject to the IRS’s accountable plan rules. In short, despite many employees’ quick pivot to a mandatory remote work environment, the IRS has not published any tax reporting or income inclusion relief for employer-paid business use of personal internet or cell phone. Therefore, employees must submit an expense report within a reasonable period of time after incurring the expense to obtain a tax-free reimbursement from their employer for the business use of their personal internet or cell phone.
 
Employers who simply “reimburse” employees a flat amount periodically for business use of their personal internet or cell phone outside of the accountable plan rules generally must treat such amounts as taxable wage income.
 
Separate from the accountable plan rules, IRC Section 139 allows employers to make tax-free, tax-deductible “qualified disaster relief payments” to employees who incurred expenses that “but for” COVID (or another federally declared disaster, such as fires, floods, hurricanes, etc.), they would not have incurred. COVID was declared a federal disaster on March 13, 2020 and at some point, the federal disaster declaration will be lifted. Until that time, IRC Section 139 offers broad relief.
 
4. State and local taxes and withholding on remote work. Remote employees who work in a state or local jurisdiction that is not the same as their regular work location can trigger state and local taxes for the employer. This is known as the employer having a “nexus” with that state or local area based on the employee’s work presence. Although some taxing authorities announced special COVID relief from their general nexus rules, some did not (and some have lifted the relief). For example, in addition to withholding and paying state and local income and employment taxes, state and local sales tax, property tax, “doing business” tax and other taxes may apply to the employer, even if the employer was unaware that an employee was working in that jurisdiction.
 
Employers need to have systems in place to know where all of their employees are working at all times. Some employers give employees flexibility on where they can work, but list states or local areas that are off limits.
 
5. Back-up child care. As the number of COVID-vaccinated individuals increases, many of those vaccinated individuals feel more confident about returning to regular life, including work, child care and school. But since children under age 12 cannot yet get a COVID vaccine and as the highly contagious Delta variant continues to spread even to vaccinated individuals, employees may find that their regular child care provider has sent their child home because of a low-grade fever or coughing or sneezing more than once, or that the employee or their children must self-quarantine due to COVID exposure. To address the sudden, unexpected need for child care, some employers are providing emergency, “back-up” child care, either in employees’ homes or in child care centers.
 
If an employer pays for a specified number of hours of child care from a provider on a contingency use basis (that is, the employer pays for the care regardless of whether it is used or not) and the employee uses the available back-up child care, the employee generally has imputed taxable wage income equal to the fair market value of the child care provided (regardless of any discount the employer may have received when it purchased the block of child care hours), minus any co-pay the employee may have paid. Employers are generally required to report the imputed income on the employee’s Form W-2 and to withhold income and employment taxes from other earned pay.
 
For back-up child care to be tax-free to the employee, the employer needs to have a dependent care assistance plan that complies with IRC Section 129. Employers generally can provide, at the employer’s expense (and exclude from employees’ taxable income) up to $5,000 of child care as long as the employer satisfies Section 129’s nondiscrimination and usage rules.
 
If employers want employees to pay for the back-up child care, employees can do so on a tax-free basis if the employer makes the IRC Section 129 plan available under an IRC Section 125 cafeteria (“flexible benefits”) plan. In that case, the employee must have made a timely election under the cafeteria plan to set aside a designated amount of their salary to be used to pay dependent care expenses pre-tax.
 
Annual caps apply to how much can be set aside tax-free under IRC Section 129 plans (the cap is generally $5,000 per year, but for 2021 only, the cap is $10,500). Cafeteria plans have a “use it or lose it” rule, although certain carryovers are allowed as part of plan design. Even though the IRS has issued some COVID relief for IRC 129 and 125 plans for 2021 and 2022, it is not nearly as broad as what taxpayers had hoped.
 
Employers are likely to continue to face many other COVID-related issues. Federal, state and local authorities continue to issue rules intended to help them collect their fair share of taxes. At the same time, those agencies also continue to issue rules intended to help employers and employees rebound from the pandemic and avoid triggering further public health emergencies, often in the face of natural disasters. Tax rules generally lag in providing relief, and the rules frequently change.

Written by Norma Sharara and Joan Vines. Copyright © 2021 BDO USA, LLP. All rights reserved. www.bdo.com

Department Of Homeland Security’s Cybersecurity Requirements For Pipeline Owners And Operators

On Friday, May 7, 2021, Colonial Pipeline fell victim to a cyberattack that resounded throughout the pipeline owners and operators industry, resulting in the Department of Homeland Security (DHS) issuing two directives in response to the threat. The Colonial Pipeline cyberattack forced the company to proactively close down operations and disable IT systems. The perpetrators targeted the business side of the pipeline rather than operational systems as the motive was monetary rather than meant to halt pipeline activities.[1] Colonial Pipeline leadership made the difficult decision to cease the operations systems as well as the internal IT systems for purposes of protecting this critical infrastructure from possible compromise.

The shutdown of operations resulted in gasoline shortages from Texas through the Southeast, up the Eastern seaboard and through New Jersey. This type of disturbance in the supply chain was considered a threat to our national security.

Therefore, on May 27, 2021, DHS issued an initial cybersecurity requirement (“initial security directive” or “Security Directive”) for critical pipeline owners and operators: “The Security Directive [required] critical pipeline owners and operators to report confirmed and potential cybersecurity incidents to the DHS Cybersecurity and Infrastructure Security Agency (CISA) and to designate a Cybersecurity Coordinator, to be available 24 hours a day, seven days a week.  It also require[d] critical pipeline owners and operators to review their current practices as well as to identify any gaps and related remediation measures to address cyber-related risks and report the results to TSA and CISA within 30 days.”[2]

On July 20, 2021, after further review of this Security Directive, DHS’ Transportation Security Administration (TSA) issued a second Security Directive that requires “…operators of TSA-designated critical pipelines that transport hazardous liquids and natural gas to implement a number of urgently needed protections against cyber intrusions.”[3]

The TSA has stated: “[T]his Security Directive requires owners and operators of TSA-designated critical pipelines to implement specific mitigation measures to protect against ransomware attacks and other known threats to information technology and operational technology systems, develop and implement a cybersecurity contingency and recovery plan, and conduct a cybersecurity architecture design review.”

The challenging aspects of the second Security Directive, which builds on the initial Security Directive, are (1) the level of detail of the requirements, and (2) the strict timeframes that are imposed on each of the approximately fifty provisions outlined within the requirements. The timeframes range from 30-120 days for completion of specific criteria.

Additionally, further challenges will now require pipeline owners and operators to focus not only on their internal information technology systems, but also to pay particular attention to their operational technology systems when putting together mitigation measures to protect this portion of U.S. critical infrastructure. Having two systems, internal and operational—or client-facing systems—mirrors the telecommunications industry where each service provider has requirements to protect their internal systems along with those that support the Domestic Communications Infrastructure, or “DCI”.

Mitigations measures that can be considered by pipeline owners and operators include the following:

  • Overall plans for continuous monitoring of internal and operational systems.
  • Dedicated resources to communicate with members of DHS.
  • Annual independent third-party audits of physical and logical security controls.
  • Consideration for independent third-party monitorships who have the resources and expertise in information system infrastructure, security resiliency and working relationships with U.S. governmental agencies.

Knowing and understanding the most current DHS expectations can go a long way in facilitating compliance with the TSA second Security Directive for pipeline owners and operators.


[1] https://www.zdnet.com/article/colonial-pipeline-ransomware-attack-everything-you-need-to-know/

[2] https://www.dhs.gov/news/2021/05/27/dhs-announces-new-cybersecurity-requirements-critical-pipeline-owners-and-operators

[3] https://www.dhs.gov/news/2021/07/20/dhs-announces-new-cybersecurity-requirements-critical-pipeline-owners-and-operators

Priorities Of The Biden Administration In First 100 Days

The Biden administration’s first 100 days are officially over.

In what is typically a period characterized by a flurry of executive orders that establish early policy priorities, President Joe Biden has understandably focused much of his energy on one of the most pressing challenges the United States has faced in generations: bringing an effective end to the COVID-19 crisis.

During the first three months in office, the Administration has been able to accelerate vaccination distribution after a record-speed vaccine development process, offering hope of a world less impacted by the spread of the pandemic.

However, with 100 days now in the rearview mirror, the Biden administration is setting its sights on the future—one in which the United States still faces both short- and long-term challenges that would be daunting for any administration. From continuing to chip away at a COVID-heightened unemployment rate to addressing domestic and social unrest to thinking through a climate change strategy, the Administration has its hands full over the next few years. With a challenging midterm election on the horizon, the motivation to advance its agenda quickly and decisively is top of mind.

For business leaders, the intersection between politics, economy, consumer behavior, public health, social issues and environmental issues has never been so large—or important. Businesses will continue to be tested in ways that they could not have imagined just a few years ago. Those that can navigate these challenges well will come out ahead.

While there are dozens of policies that will unfold over the next four years, there are several key areas for leaders to watch in the short term and consider for future opportunities and challenges that arise.

Priority: Putting the Pandemic Behind Us

When the American Rescue Plan Act (ARPA) was passed in March, it offered a re-upping of the stimulus—nearly $6 trillion worth in total—that the U.S. economy has been leaning on for support since the pandemic began. The $1.9 trillion ARPA relief plan centered on stimulus checks, expanded unemployment support, expanded paid sick leave, emergency paid leave, reimbursements to small businesses, funds for state and local governments and resources for vaccination programs and testing sites.

This has been the priority for the Biden administration. If the Administration can continue to oversee a successful rollout of vaccinations, the idea is that everything else will fall into place. While the Biden administration moved quickly to juggle multiple priorities in its first 100 days, the faster and more successfully the vaccination rollout goes, the faster the economy can put the COVID-19 lockdowns behind it—and move on to what’s next.

WHAT TO WATCH

While the coronavirus will eventually begin to fade from center stage in American life, the trends that the pandemic turbocharged—from consumer shopping behavior to workplace traditions to upending whole industries—show no signs of turning back.

A so-called “return to normalcy” will have enormous implications for business leaders in terms of planning for employees, customers and business strategy. However, the most successful businesses will not be those looking to go back to business as usual. The companies that drive outsized growth will be those that act on the lessons learned over the past year and adapt for a future where the rules of business are continually reinvented.

While we hope to never experience a pandemic of this scale again in our lifetimes, massive disruption events are proliferating, from natural disasters to widespread cyberattacks to financial turmoil. The next black swan won’t wait 100 years. And while you can’t plan for the unpredictable, you can improve your readiness to respond.

Priority: Doing Well by Doing Good

Beyond tackling the pandemic, one of President Biden’s next highest priorities is around promoting broad environmental, social and governance (ESG) initiatives.

On the environmental front, battling climate change has been a central pillar of President Biden’s campaign, starting with reentering the Paris Agreement hours after he took office through a series of executive orders that placed climate change at the forefront of domestic and foreign policy. President Biden has intrinsically tied his climate policy to his plan for economic recovery, promising a move towards a “Clean Energy Revolution.”

The Administration’s goals are lofty. Included in his $2 trillion proposed climate proposal are plans to:

  • Eliminate fossil fuel emissions entirely from the energy sector by 2035 and in the economy more broadly by 2050.
  • Reengineer old infrastructure to be able to endure the effects of climate change.
  • Encourage electric vehicles and the system of charging stations that would keep them running.
  • Expand zero-emission public transportation.
  • Invest in eco-friendly buildings and housing construction.
  • Improve sustainable agriculture practices.
  • Develop new technologies for clean energy.

On April 21, during his Earth Day Climate Summit speech, President Biden went a step further, calling for the United States to cut emissions 50-52% from 2005 levels by 2030, as well as establish a federal climate task force to help achieve those targets.

In addition to the focus on climate change, the Biden administration has made it clear that it will embrace further mandatory regulatory requirements around ESG reporting broadly.

The first step for regulators will be deciding upon a reporting framework designed to provide more consistent, comparable, and reliable information for investors. Establishing the baseline will help businesses better understand, report, measure and track against key metrics more easily and consistently.

In March, the SEC launched a Climate and ESG Task Force in a concerted effort to encourage businesses to improve corporate practices around environmental, gender, racial and social issues. Consistent with increasing investor focus and reliance on climate and ESG-related disclosure and investment, the Task Force will also develop initiatives to proactively identify and address ESG-related misconduct.

For many boards, the issue of ESG has moved its way up the shareholder meeting agenda in recent years. As sustainability becomes standard and more scrutiny is put on action versus talk, boards are focusing more attention than ever before on issues of diversity, equity, inclusion and environmental stewardship.

The focus on ESG will only continue to increase—both in the public discourse as well as the in the eyes of regulatory watchdogs. Public sentiment around climate change, corporate ethics, diversity, equity & inclusion, worker health & safety, sustainability and other related issues are stronger than ever, and the momentum around ESG reporting is unlikely to reverse course.

WHAT TO WATCH

The good news for the Biden administration and others who see climate change and ESG matters as key concerns is that these issues are increasingly in focus across society—politically, socially and economically. Popular sentiment is pushing companies to think more critically about their relationships with employees, customers, shareholders, communities, the environment, the economy and the general public overall.

The economy itself has already shifted over the past several years toward accepting and championing clean energy and sustainability as a core global priority. Sustainability, racial equity, diversity and corporate responsibility are increasingly baked into what it means to do business—and the link to ROI in higher profitability, higher valuations and lower investment risk is strengthening.

However, the relative lack of clarity and consistency on reporting criteria and lack of regulatory oversight has made the issue of ESG subjective and difficult to substantiate.

For businesses that haven’t had a corporate purpose centered on sustainability or broader ESG issues in the past, making that transition toward a new approach without clear guidelines can be tricky. However, it is clear that the issue of ESG is becoming one that corporate boards and leadership teams are increasingly focused on. The move requires a top-down commitment to alter—sometimes dramatically—the way the company operates, redefining success in terms that marry profit with purpose.

Attitudinal shifts from employees and executives alike have led many businesses—large and small—to focus on addressing ESG issues as a corporate goal, and major investors have made it a prerequisite. When you can do well by doing good, everyone wins.

More than ever before, people want to work for organizations that stand for clear values. Whether around racial justice, gender equity, environmental protection, wealth equity, or any other cause, businesses are learning to get the most out of their workforces by leading by example.

Priority: Innovation in the Spotlight

The Biden administration inherited a country that is more reliant on technology than ever before. From technologies that have helped large parts of the economy run remotely for a year to those that kept us connected in isolation to those that have helped towards solving the pandemic itself, the trends in how businesses are using technology have accelerated years within the space of months.

There is no doubt that the technology sector has, by and large, benefitted from these changes. At the same time, the Biden administration appears to have an increasingly scrutinous eye on Big Tech’s influence, leaning into a bipartisan effort to put guardrails up around the country’s largest tech firms—in many cases guardrails that technology leaders themselves are on the record as welcoming.

The United States’ reliance on technology brings enormous opportunities but also vast vulnerabilities in the form of antitrust concerns, cybersecurity and privacy threats, in addition to malevolent uses of social media for purposes of spreading misinformation.

As Biden considers a permanent nominee to the Federal Communications Commission, whoever ends up sitting in that role will have important implications for the Tech community, ensuring that while innovation occurs, it is done with what’s best for the greater good in mind.

The push and pull between innovation and risk is continual, and businesses—both in the technology industry and those that rely on technology—will have to contend with increasing regulatory guidelines to better manage the true impact that these technologies have on the economy and on society.

WHAT TO WATCH

An increase from the Biden administration in regulation around the tech industry brings greater scrutiny on companies of any industry that collect and store data. Privacy rules are constantly evolving and, with more focus on data privacy and consumer rights, both globally and in the United States, the more that businesses can effectively manage their customer data, the less risk they will take on.

Finding the right balance between investment in digital capabilities and ensuring compliance with data privacy and cybersecurity regulations is not easy.

The opportunity is clear. According to BDO’s recent CFO Outlook Survey:

  • 55% of CFOs said they will increase R&D spending in the next year
  • 39% of CFOs said the pandemic has accelerated their investment in digital transformation

However, being able to effectively manage digital risk and compliance will be more important than ever.

This Administration is likely to tilt the balance of data privacy in favor of the consumer over the business. How businesses adapt to changing dynamics will be crucial. As on the global geopolitical stage, businesses that invest in new technologies will be those that succeed, and the rate of progress is only getting faster. Investing today will no doubt pay off dividends in the economy of tomorrow—as long as data privacy, cybersecurity and regulatory compliance stay priorities along the way.

Privacy laws are constantly evolving around the world and in the United States, at both a statewide and federal level.

Priority: Defining Bidencare

The healthcare industry has been in the spotlight for the past decade, since the Affordable Care Act was signed in March 2010. After numerous lawsuits and challenges, including in the U.S. Supreme Court, the ACA is set to be bolstered in the Biden administration. The President has already used executive orders to expand enrollment periods for the ACA in an effort to strengthen the program in the short term before turning his eye to his vision of Bidencare.

What might Bidencare include? In short, it will build on the ACA, focusing on lowering premiums, deductibles, and the price of prescription drugs, while expanding access and adding a public option. The Biden administration was even able to secure boosts to the ACA within the COVID-focused ARPA, in the form of a removal of the income cap for health insurance premium tax credits through a federal exchange or state marketplace, as well as a limit of 8.5% of income for healthcare costs.

What Bidencare is unlikely to include, however—at least in the current political climate—is sweeping change to the industry.

While the Biden administration has been able to use multiple tools to make progress on priorities such as pandemic response and battling climate change, any major changes on the immediate future of healthcare in the United States remain in doubt.

WHAT TO WATCH

COVID-19 underscored that healthcare is as important today as it has ever been, in the United States and around the world. While a grand “Medicare for All” plan is unlikely to happen in this Congress, expanding the reach of the ACA while lowering costs to individuals would bring benefits to the economy.

Employer-sponsored healthcare plans continue to be an important recruitment and retention tool for businesses. Providing access to expanded types of care, which took on greater importance during the pandemic, such as mental health and wellness care, are and will continue to be increasingly important.

Interactive: Building Long-Term Resilience

There were many regulatory, legislative, and compliance-related changes that occurred during the pandemic, including several stimulus options, new compliance considerations and an expectation of new and updated regulatory guidance.

Priority: Building Back Better

On the campaign trail, then-candidate Biden outlined his vision of an infrastructure plan dubbed the “Build Back Better” plan.

The new bill, announced in full in late March as the American Jobs Plan, includes several proposed investments in both traditional and modern infrastructure systems.

  • Roads & bridges
  • Public Transport
  • Ports
  • Airports
  • Nationwide electric vehicle charging grid             
  • Water Systems
  • Electric Grid Upgrades
  • Increased Broadband Access

In addition, President Biden is pushing for investment in care for elderly and disabled Americans, new affordable housing and schools, and funding for manufacturing, R&D and job training.

The Biden administration has argued that decades of a lack of investment has left the United States lagging behind others when it comes to competitiveness on the global stage. In particular, the Administration sees this as an opportunity to level the playing field, financing more projects in rural and disadvantaged communities, with a focus on sustainability and “clean infrastructure” investments.

Infrastructure is often seen as a “both-sides-of-the-aisle” issue, yet an agreement has recently been hard to come by. Whether President Biden and his team—particularly Vice President Kamala Harris and Transportation Secretary Pete Buttigieg—will be able to galvanize both sides of the aisle to come together on this shared goal of fixing the widely acknowledged problem of the United States’ aging infrastructure remains to be seen. 

WHAT TO WATCH

If President Biden is able to rally both parties, a large-scale infrastructure plan would increase spending and economic activity in the short term and could vastly improve productivity in the medium and long term.

Businesses that rely on a supply chain—most industries—could stand to profit from an increase in infrastructure spending. At the same time, most businesses in the country would benefit from a workforce, particularly in rural areas, with expanded access to broadband internet and training programs.

Beyond the issue of improving transportation, there is a broader question of investing in America—as a place to live, to work, and to do business. The United States has always positioned itself as a land of opportunity and possibility. With a strong infrastructure bill that rebuilds, rather than papers over, key areas of infrastructure, the United States—and the businesses based here—stand to gain in the short and long term.

Priority: Tax Increases on the Table

President Biden has made it clear that he is willing to consider raising individual, corporate and capital gains marginal tax rates, along with tax treatments of other issues such as pass-through entities, estate taxes and gift taxes, in part to help offset costs of the ARPA and other priority spending packages. During the campaign, he floated raising taxes on those making $400,000 per year and above, in addition to increasing corporate taxes from 21% to 28%.

Tax rates have been a hotly discussed topic since the 2017 Tax Cuts and Jobs Act (TCJA) was passed without bipartisan support. However, while Democrats control the White House and both chambers of Congress, it remains difficult—but not impossible—to see a standalone tax reform bill passing through the Senate due to filibuster rules. The use of the Budget Reconciliation procedures to pass tax legislation, therefore, continues to be a point of discussion.

However, the Biden administration is finding ways to make progress against their tax goals. Included within the ARPA were what resulted in several tax hikes such as removing deductions for wealthy individuals and corporations as Congressional Democrats sought to balance certain tax cuts—for example waiving taxes on unemployment benefits.

In addition, the corporate tax rate increase to 28% proposed as part of the infrastructure plan will no doubt be subject of great debate in Congress as well. Whether the final infrastructure bill includes this exact tax change remains to be seen. Regardless, there will be other opportunities for the Biden administration to introduce incremental change in tax policy, but the future of sweeping legislative reform is still uncertain.

The 2021 BDO Tax Outlook Survey, which polled senior tax executives at middle market companies, outlined key takeaways on the tax landscape.

Highest priorities:

  • Changes to the federal income tax rate (35%)
  • International tax changes (25%)
  • Payroll tax adjustments (24%)
  • Trade & tariffs (17%)

Percentage of tax executives who believe the U.S. federal corporate tax rate will increase within the next year: 92%

WHAT TO WATCH

For tax professionals keeping a close eye on the Biden administration’s approach to corporate tax rates, there is good reason to assume that there will be increases to rates at some point during the first two years of President Biden’s term.

In addition to the corporate rate, there is potential to reinstate the corporate alternative minimum tax, increasing the global intangible low-taxed income (GILTI) rate, enhancing policies that promote a wider U.S. tax base, small business deductions, and other assorted surtaxes and tax credits centered on keeping jobs—and tax bases—within the United States.

The questions around how that will happen, and when the effective date would be, remain.

Depending on the results of the midterm elections, following 2022, there is a chance that any tax-only bill that includes broad tax increases would be a non-starter. Until then, whether there ends up being comprehensive tax reform pre-midterms, minor tweaks of the 2017 TCJA, or something in between, there are certain things that tax professionals are expecting and can begin to plan ahead for.

Priority: Regulating Wall Street

The Biden administration wasted no time in establishing its stance on regulation of the financial services industry, appointing Gary Gensler as head of the Securities and Exchange Commission and Rohit Chopra to direct the Consumer Financial Protection Bureau. Both Gensler and Chopra have already signaled their intent for increased oversight and enforcement.

In general, the Biden administration aims to be more aggressive in enforcement over the financial sector than his predecessor. While the Federal Reserve and the Department of the Treasury may play the most high-profile roles in the financial markets during the next four years, particularly on the topic of setting interest rates and issuing government debt, respectively, other agencies such as the SEC, the CFPB, the CFTC and others will take steps to increase enforcement of financial regulation.

WHAT TO WATCH

As has been the case in recent years, a Democratic presidential administration typically translates to increased regulation and tougher oversight.

Regardless of the administration, robust regulatory reporting and compliance has transformed in recent years from merely a necessity to a potential competitive advantage. As local, state, national and global regulations continue to evolve, businesses that have healthy data governance systems and strong compliance procedures will be able to stay ahead of the curve.

What a Biden administration Means for Businesses

Businesses are being tasked at the moment with navigating a challenging economic recovery while at the same time performing a duty to their customers, their communities and the environment around them. Understanding the political landscape and priority policies of this Administration will help executives make better decisions about their own futures, in the short and long term.

With the ARPA signed into law and the vaccine rollout well under way, the Biden administration has already shifted gears from pandemic response to its other priorities. With a midterm election quickly approaching, President Biden and his allies in Congress will want to make as much progress as possible over the next two years—and businesses should be prepared for swift movement in ESG, innovation, infrastructure, tax policy and other areas of focus.

However, whether President Biden is able to make progress on everything he has set out to accomplish remains to be seen. In a hyper-partisan environment, one where the pendulum may soon—potentially as early as 2023—swing back to a divided government, compromise is rare and trust in the federal government is at historical lows. When progress is slow, leaders step up to fill the void—and that leadership role may ultimately fall to the private sector.

Businesses can—and should—play a role in driving the change they want to see. Over the course of the Biden administration, corporate policy should be shaped not only by new rules and regulations, but by the pursuit of a higher purpose.