Senate Democrats

H.R. 2, the Fair Minimum Wage Act of 2007

Summary and Background

The federal minimum wage was last raised in the Small Business Protection Act of 1996 (P.L. 104-188).  The law raised the federal minimum wage from $4.25 per hour to $5.15 per hour in two steps over 13 months.  Since then, numerous attempts have been made to increase the federal minimum wage.    

On January 4, Senator Reid introduced S.2, the Fair Minimum Wage Act of 2007.  The following day, Representative Miller introduced an identical bill, H.R.2, the Fair Minimum Wage Act of 2007, in the House of Representatives.  Both bills would raise the federal minimum wage from $5.15/hour to $7.25/hour in three steps over two years and apply the federal minimum wage to the Commonwealth of the Northern Mariana Islands.  On January 10, the House passed H.R.2 on a 315-116 vote, and the bill was sent to the Senate.

On January 22, 2007, the Senate began consideration of H.R.2, the Fair Minimum Wage Act of 2007.  Senator Reid then introduced S.A. 100, a substitute amendment, on behalf of Senator Baucus which would attach the Small Business and Work Opportunity Act of 2007 to H.R.2.  In addition to raising the minimum wage, this title would provide tax incentives to employers and employees of small businesses and revenue offsets to pay for them.  On the evening of January 22, Senator Reid filed a cloture motion on H.R.2.

Major Provisions

Section 2: Minimum Wage.  H.R.2 would amend the Fair Labor Standards Act of 1938 (FLSA) (Section 6(a)(1)) to raise the federal minimum wage incrementally from the current $5.15 per hour to:

·        $5.85 per hour, beginning 60 days after the bill’s enactment;

·        $6.55 per hour 12 months, or one year, after that sixtieth day; and

·        $7.25 per hour 24 months, or two years, after that sixtieth day. 

Likewise, the amendment would take effect 60 days after the date of enactment of H.R.2.

Section 3:Applicability of Minimum Wage to the Commonwealth of the Northern Mariana Islands.  H.R.2 would apply Section 6 of the FLSA to the Northern Mariana Islands.  Notwithstanding the increase set forth in Section 2, the minimum wage for the Northern Mariana Islands would be incrementally increased:

·        to $3.55 per hour, beginning 60 days after the bill’s enactment; and

·        by $0.50 per hour (or whichever lesser amount is needed to equal the federal minimum wage), beginning six months after the bill’s enactment and every six months thereafter until the minimum wage in the Northern Mariana Islands is equal to the federal minimum wage. 

Legislative History

On January 4, Senator Reid introduced S.2, the Fair Minimum Wage Act of 2007, with 29 original co-sponsors.  On January 5, Representative Miller introduced an identical bill, H.R.2, the Fair Minimum Wage Act of 2007, in the House of Representatives with 214 original co-sponsors.  Both bills would raise the federal minimum wage from $5.15/hour to $7.25/hour in three steps over two years.  On January 10, the House passed H.R.2 on a 315-116 vote, and the bill was sent to the Senate.

Expected and Offered Amendments

At this writing, in addition to the amendments that are summarized below, several additional amendments may be offered to H.R.2, including amendments relating to health care, immigration, tipped employees, and the 40-hour work week.

On the first day of debate, Senator Reid offered S.A. 100, a substitute amendment, to H.R.2 on behalf of Senator Baucus, which would attach the Small Business and Work Opportunity Act of 2007.  In addition to raising the minimum wage, the substitute amendment would provide tax incentives to employers and employees of small businesses and revenue offsets to pay for them.  That same evening, Senator Reid filed a cloture motion on S.A. 100.

S.A. 100 to H.R.2

Title I – Fair Minimum Wage Act of 2007

[See Major Provisions Section above.]

Title II – Small Business and Work Opportunity Act of 2007

General Provisions

Extension of increased expensing for small businesses.  In lieu of depreciation, small business taxpayers would be able to deduct (or expense) the cost of qualified assets (or property) they purchase in the year when the assets are placed in service, within certain limits.  Under the Jobs and Growth Tax Relief Reconciliation Act of 2003, the amount that small businesses may expense under section 179 was increased from $25,000 to $100,000 for tax years beginning after 2002 through the end of 2005 and indexed for inflation. The American Jobs Creation Act of 2004 extended a slightly expanded version of small business expensing (with higher phase-out levels for small business) through 2007.  The Tax Increase Prevention and Reconciliation Act of 2005 extended that enhanced provision through the end of 2009.  In 2007, small business taxpayers are allowed to expense $112,000 (indexed for inflation), and the phase-out threshold is $450,000 (indexed for inflation).  The provision would extend the present-law rules for one year, through the end of 2010.  The provision would be effective for taxable years beginning after December 31, 2009.  The provision is estimated to cost $4.861 billion over five years and $257 million over ten years.

Extension and modification of 15-year straight-line cost recovery for qualified leasehold improvements and qualified restaurant improvements; 15-year straight-line cost recovery for certain improvements to retail space.  In the American Jobs Creation Act of 2004, Congress shortened the cost recovery of certain leasehold and restaurant improvements from 39 to 15 years for the remainder of 2004 and 2005.  The Tax Relief and Health Care Act of 2006 extended this provision to property placed in service after December 31, 2005 through December 31, 2007.  The provision would extend the present-law rules for qualified leasehold and restaurant improvements to March 31, 2008.  The provision would generally apply to property placed in service after December 31, 2007.  The provision is estimated to cost $345 million over five years and $847 million over ten years.

The provision would extend the 15-year recovery period for qualified restaurant improvements to new restaurant buildings.  The provision would generally apply to property placed in service after the date of enactment.  Repeal of the three-year rule for restaurant property would be effective for property placed in service after the date of enactment.  The provision would expire on March 31, 2008.  The provision is estimated to cost $379 million over five years and $847 million over ten years.

The provision would also extend the 15-year recovery period for qualified leasehold improvements to improvements made by retailers who own their buildings.  For purposes of the provision, qualified retail improvement property does not include any improvement for which expenditure is attributable to the enlargement of the building, any elevator or escalator, or the internal structural framework of the building.  For purposes of this provision, retail establishments that qualify for the 15-year recovery period include those with a physical store front open to the general public in order to sell tangible personal property and/or services.  The provision would apply to property placed in service after the date of enactment.  The provision would expire on March 31, 2008.  The provision is estimated to cost $467 million over five years and $1.012 billion over ten years.

Clarification of cash accounting rules for small business.  Currently, cash method of accounting may not be used by any C corporation, by any partnership that has a C corporation as a partner, or by any tax shelter.  Exceptions are made for farming businesses and qualified personal service corporations.  An exception is provided for C corporations and partnerships that have a C corporation as a partner if the average annual gross receipts in the three previous tax years do not exceed $5 million.  In addition, companies that keep inventory must generally use the accrual method of accounting unless they have less than $1 million in gross receipts.  Under cash method, income is recorded when it is received in the form of cash or its equivalent.  Expenses generally are recorded when they are paid.  Under the accrual method, income and expenses typically are recorded when the transactions giving rise to them are completed, regardless of when cash is received or paid.  The provision would permanently increase the threshold for the exception from $5 million to $10 million and index the threshold for inflation.  This allowance would apply irrespective of whether inventories are maintained.  The provision would be applicable to taxable years beginning after the date of enactment.  The provision is estimated to cost $547 million over five years and $931 million over ten years.

Extension and modification of combined work opportunity tax credit (“WOTC”) and welfare-to-work credit.  WOTC allows employers credits against wages for hiring individuals from one or more of nine targeted groups (such as recipients of public assistance, qualified veterans on assistance, and “high risk youth”).  The provision would extend WOTC for five years (for qualified individuals who begin work for an employer after December 31, 2007 and before January 1, 2013).  The provision would expand the qualified veterans’ targeted group to include an individual who is certified as entitled to compensation for a service-connected disability incurred after September 10, 2001.  In the case of individuals certified as entitled to compensation for a service-connected disability incurred after September 10, 2001, the provision would expand the definition of qualified first-year wages from $6,000 to $12,000.  The provision would expand the definition of high risk youths to include otherwise qualifying individuals age 18 but not yet age 40 on the hiring date.  The provision also changes the name of the category to the “designated community residents” targeted group.  Generally, the extension of the credit would be effective for wages paid or incurred to a qualified individual who begins work for an employer after December 31, 2007 and before January 1, 2013.  The other provisions would be effective for individuals who begin work for an employer after the date of enactment in taxable years ending after such date.  The provision is estimated to cost $1.788 billion over five years and $3.624 billion over ten years.

Certified professional employer organizations (CPEOs).  The provision would create a voluntary certification program for professional employer organizations (“PEOs”) that meet standards of solvency and responsibility and that maintain ongoing certification by the IRS.  CPEOs would have to accept sole liability for the collection of federal employment taxes with respect to workers (“worksite employees”) performing services for PEO clients.  Small or medium-sized business that contract with CPEOs would be assured they would not be liable for those taxes already paid to the PEO.  The provision would not affect the determination of whether or not an employer-employee relationship exists for any purpose other than liability for payroll tax deposits.  The provision would be effective with respect to wages paid for services performed on or after January 1 of the first calendar year beginning more than 12 months after the date of enactment of the provision.  The Secretary would be directed to establish the certification program for professional employer organizations not later than six months before the provision becomes effective.  The provision is to cost $8 million over five years and $32 million over ten years.

Subchapter S Provisions

Capital gain of S corporation not treated as passive investment income.  An S corporation is subject to corporate-level tax, at the highest corporate tax rate, on its excessive net passive income if the corporation has: (1) accumulated earnings and profits at the close of the taxable year; and (2) gross receipts more than 25 percent of which are passive investment income.  In addition, an S corporation election is terminated whenever the S corporation has accumulated earnings and profits at the close of each of three consecutive taxable years and has gross receipts for each of those years more than 25 percent of which are passive investment income.  This provision would eliminate gains from sales or exchanges of stock or securities as an item of passive investment income.  The provision would apply to taxable years beginning after the date of enactment.  The provision is estimated to cost $111 million over five years and $312 million over ten years.

Treatment of bank director shares.  An S corporation may have no more than 100 shareholders and may have only one outstanding class of stock.  An S corporation has one class of stock if all outstanding shares of stock confer identical rights to distribution and liquidation proceeds.  National and state banking laws require that a director of a bank own stock.  In some cases, a bank enters into an agreement under which the bank (or holding company) will reacquire the stock upon the director’s ceasing to hold the office of director, at the price paid by the director for the stock.  The provision clarifies that qualifying director shares are not treated as a second class of stock for purposes of subchapter S.  The provision would apply to taxable years beginning after December 31, 2006.  The provision is estimated to cost $66 million over five years and $178 million over ten years.

Special rule for bank required to change from the reserve method of accounting on becoming S corporation.  A financial institution which uses the reserve method of accounting for bad debts may not elect to be an S corporation.  If a financial institution changes from the reserve method of accounting, there is taken into account for the taxable year of the change adjustments to taxable income necessary to prevent amounts from being duplicated or omitted by reason of change.  These adjustments are subject two levels of taxation.  The provision allows a bank which changes from the reserve method of accounting for bad debts to elect to take into account all adjustments the year before it changes to an S corporation.  Adjustments taken into account the year before the corporation changes to an S corporation are only subject to corporate-level taxation.  The provision applies to taxable years beginning after December 31, 2006.  The provision is estimated to cost $60 million over five years and $173 million over ten years.  

Treatment of the sale of interest in a qualified subchapter S subsidiary.  If a

subsidiary of an S corporation ceases to be a qualified subchapter S subsidiary (“QSub”) the subsidiary is treated as a new corporation acquiring all its assets immediately before such cessation from the parent S corporation in exchange for its stock.  The provision would provide that where the disposition of stock of a QSub results in the termination of the QSub election, the disposition is treated as a disposition of an undivided interest in the assets of the QSub (based on the percentage of the stock disposed of) followed by a deemed transfer to the QSub.  The provision would apply to taxable years beginning after December 31, 2006.  The provision is estimated to cost $15 million over five years and $40 million over ten years.

Elimination of all earnings and profits attributable to pre-1983 years for certain corporations.  The provision would provide in the case of any corporation which was not an S corporation for its first taxable year beginning after December 31, 1996, the accumulated earnings and profits of the corporation as of the beginning of the first taxable year beginning after the date of the enactment of this provision is reduced by the accumulated earnings and profits (if any) accumulated in a taxable year beginning before January 1, 1983, for which the corporation was an electing small business corporation under subchapter S.  The provision would apply to taxable years beginning after the date of enactment.  The provision is estimated to cost $11 million over five years and $21 million over ten years.  

Expansion of qualifying beneficiaries of an electing small business trust (“ESBT”).  Under current law, an ESBT may be a shareholder of an S corporation.  A nonresident alien may not be a shareholder of an S corporation, but may be a shareholder of a Limited Liability Corporation (LLC).  The provision provides some parity between S corporations and LLCs by allowing nonresident aliens to become a qualified beneficiary of an electing small business trust that owns S corporation stock.  Current law treatment of nonresident aliens as non-qualified shareholders of an S corporation does not change.  The provision would be effective on the date of enactment.  The provision is estimated to cost $10 million over five years and $33 million over ten years.

Revenue Provisions

Modification of effective date of leasing provisions of the American Jobs Creation Act of 2004 The provision would disallow future losses on foreign tax exempt use property for leases entered into on or before March 12, 2004.  A provision in the American Jobs Creation Act applied to leases entered into after March 12, 2004.  In a foreign SILO transaction, a foreign government or other foreign entity that doesn’t pay U.S. tax “sells” property, such as a subway or sewer, to a U.S. taxable investor and then “leases” the property back for use.  The effect is to transfer depreciation deductions from the tax-exempt entity, which cannot use the deductions, to a taxable entity that can, with little economic risk.  The provision would be effective for taxable years beginning after December 31, 2006.  The provision is estimated to raise $4.273 billion over five years and $4.088 billion over ten years.

Application of rules treating inverted corporations as domestic corporations to certain transactions occurring after March 20, 2002.  This provision would revise the corporate inversion effective date of Section 7874 of the American Jobs Creation Act (“AJCA”) from the AJCA date of March 4, 2003 to March 20, 2002.  Section 7874 was enacted to stop U.S. corporations and partnerships from using inversion transactions to escape U.S. tax on their earnings.  Section 7874 applies to two types of inversion transactions that occurred after March 4, 2003.  In the first type of transaction, a U.S. corporation becomes a subsidiary of a foreign-incorporated entity and the former shareholders of the U.S. corporation own 80 percent or more of the foreign-incorporated entity (an “80-percent inversion”).  These foreign-incorporated entities are treated as U.S. corporations for all U.S. income tax purposes.  In the second type of transaction, former shareholders of the U.S. corporation own 60 percent or more, but less than 80 percent, of the foreign-incorporated entity.  In these transactions, the foreign-incorporated entity is treated as foreign, but any applicable corporate-level “toll-charge” taxes are not offset by tax attributes such as net operating losses or foreign tax credits.  Section 7874 also applies inversion transactions involving certain partnerships.  An exception applies for transactions that were substantially completed prior to March 4, 2003.  Under this provision section 7874 would apply to treat foreign corporations as U.S. corporations if they completed an 80-percent inversion after March 20, 2002 but on or before March 4, 2003, subject to the same exception for substantially completed transactions that is contained in present law.  The provision would be effective for tax years beginning after December 31, 2006.  It is estimated to raise $449 million over five years and $1.153 billion over ten years.

Denial of deduction for punitive damages.  This provision would eliminate the deduction for punitive damages, including punitive language in tort action, that are paid or incurred by the taxpayer as a result of a judgment or in settlement of a claim.  Payments made by insurance companies for punitive damages would be included in the gross income of the insured person and the insurer is required to report the amount paid to both the insured person and the IRS.  The provision would be effective for punitive damages that are paid or incurred on or after the date of enactment.  The provision is estimated to raise $130 million over five years and $299 million over ten years.

Denial of deduction for certain fines, penalties, and other amounts.  This provision would clarify that amounts paid or incurred in connection with civil settlements to or at the direction of a government for the violation of any law or the potential violation of law are not deductible for federal income tax purposes.  Amounts for restitution or remediation are deductible.  Government agencies would be required to notify the IRS of settlements.  The provision would be effective for amounts paid or incurred on or after the date of enactment unless paid under a binding order or agreement entered before that date.  The provision is estimated to raise $172 million over five years and $244 million over ten years.

Revision of tax rules on expatriation of individuals.  This provision would apply to certain U.S. citizens who relinquish their U.S. citizenship and certain long-term residents who terminate their U.S. residency.  The provision would generally tax these individuals on the net unrealized gain in their property as if such property were sold for fair market value.  Any net gain on the deemed sale would be recognized to the extent it exceeds $600,000 ($1.2 million in the case of married individuals filing a joint return, both of whom relinquish citizenship or terminate residency), and it is taken into account at the time of expatriation without regard to other tax code provisions.  Any loss from the deemed sale would generally be taken into account to the extent otherwise provided in the tax code.  In addition, the exclusion from income for the value of property acquired by gift or inheritance would not apply to the value of any property received from a covered expatriate.  This provision would generally be effective for U.S. citizens who relinquish citizenship or long-term residents who terminate their residency on or after the date of enactment.  The provision is estimated to raise $220 million over five years and $417 million over ten years.

Limitation on annual amounts which may be deferred under non-qualified deferred compensation arrangements.  The annual deferral on behalf of an individual to nonqualified deferred compensation arrangements of an employer is limited to the lesser of $1 million or the average taxable compensation for the previous five years.  Failure to comply will result in ordinary income tax and the penalties applicable to other failures to comply with deferral rules.  The provision would apply to taxable years beginning after December 31, 2006; however, earlier years will be taken into account for purposes of computing the five-year average.  The provision is estimated to raise $307 million over five years and $806 million over ten years.

Increase in criminal monetary penalty limitation for the underpayment or overpayment of tax due to fraud.  The provision would increase the criminal penalties for tax evasion and failure to file.  It also institutes an “aggravated” failure to file penalty that is a felony when there is a failure to file for at least three years.  It would apply to actions and failures to act after the date of enactment.  The provision is estimated to raise $1 million over five years and $5 million over ten years.

Doubling of certain penalties, fines, and interest on underpayments related to certain offshore financial arrangements.  The provision would double the amounts of civil penalties, interest, and fines related to taxpayers’ underpayments of U.S. income tax liability through the direct or indirect use of certain offshore financial arrangements. The provision would apply to taxpayers who did not voluntarily disclose such arrangements through the IRS Offshore Voluntary Compliance Initiative, or who do not otherwise disclose.  The provision would apply to open tax years on or after the date of enactment.  The provision is estimated to raise $5 million over five years and $10 million over ten years.

Increase in penalty for bad checks and money orders.  For bad checks or money orders paid to the IRS of less than $1,250, the penalty would be raised to the lesser of $25 or the amount of the check or money order.  This is an increase from the current threshold of less than $750 and $15.  For amounts of $1,250 or more, the penalty remains at two percent of the check amount.  It would be effective to checks or money orders received on or after the date of enactment.  The provision is estimated to raise $10 million over five years and $20 million over ten years.

Treatment of contingent payment convertible debt instruments.  The provision would create a consistent “apples to apples” approach to value contingent convertible debt for purposes of computing original issue discount (OID).  A “comparable rate” for a contingent convertible debt instrument would be based on a non-contingent, convertible debt instrument (instead of a non-convertible debt instrument, as the IRS now applies the law).  It would be effective for debt instruments issued on or after the date of enactment.  The provision is estimated to raise $222 million over five years and $448 million over ten years.

Extension of IRS user fees.  The provision would extend the statutory authorization of the IRS to impose user fees for two additional years, through September 30, 2016.  The authorization was extended through 2014 in the American Jobs Creation Act.  The provision is effective for requests after September 30, 2016.  It is estimated to raise $60 million over ten years.

Modification of collection due process procedures for employment tax liabilities.  Levy is the IRS’s administrative authority to seize a taxpayer’s property to pay the taxpayer’s tax liability.  The IRS is required to notify taxpayers that they have a right to a fair and impartial collection due process (“CDP”) hearing before levy may be made on any property or right to property.  Under the provision, levies issued to collect federal employment taxes are excepted from the pre-levy CDP hearing requirement.  Taxpayers have full rights after the CDP hearing.  This provision would apply to levies issued on or after 120 days after the date of enactment.  The provision is estimated to raise $156 million over five years and $271 million over ten years.  

Modifications to whistleblower reforms.  The Code currently authorizes the IRS to pay reward money for information received from whistleblowers.  The reward amount varies based on the type of information and the amount of proceeds actually collected.  The provision would expand whistleblower reforms enacted in H.R.6408, the Tax Relief and Health Care Act of 2006, by requiring the establishment of a Whistleblower Office that is responsible for monitoring information received from informants and determining amounts to be awarded.  It would apply to deficiencies exceeding $20,000 and, in the case of individuals, incomes exceeding $200,000.  This provision would apply to information provided on or after the date of enactment.  The provision raises $77 million over five years and $402 million over ten years.

Modifications of definition of employees covered by denial of deduction for excessive employee remuneration.  The provision modifies the definition of a “covered employee” to include: (1) any individual who was the Chief Executive Officer of the company at any time during the taxable year; (2) the four officers with the highest compensation for the year; and (3) any individual who was previously a covered employee with respect to the company (or a beneficiary of such person).  The provision would be effective for taxable years beginning after December 31, 2006.  It is estimated to raise $20 million over five years and $105 million over ten years.

Second Degree Amendments Offered to S.A. 100

As of this writing:

Senator Gregg offered S.A. 101 to S.A. 100, which would attach the Second Look at Wasteful Spending Act of 2007.  This bill would provide the President with a legislative line-item veto over budgetary, spending, and tax measures. 

Senator Michael Enzi offered for Senator Snowe S.A. 103 to S.A. 100, which would amend the Small Business Regulator Enforcement Fairness Act to require that agencies publish compliance guides to assist small business in complying with an agency rule or group of rules. 

Senator Sessions offered S.A. 106 to S.A. 100, which would express the sense of the Senate that Americans should begin saving for retirement and Congress should adopt laws to enhance their efforts.  Further, Senator Sessions offered S.A. 107 to S.A. 100, which would require employers to provide eligible employees with an application for an earned income eligibility certificate and extend advance payment of earned income credit to employees with one or more qualifying children.   Senator Sessions also offered S.A. 108 to S.A. 100, which would commission a study on what impact expanding the advanced earned income tax credit program to include all recipients of the earned income tax credit would have on businesses, especially small businesses.

Additional Amendments Offered to H.R.2

As of this writing:

Senator Roberts offered S.A. 102 to H.R.2, which would establish a grant program to assist States in encouraging employer-operated child care programs in small businesses. 

Senator Wyden offered S.A. 104 to H.R.2, which would extend the Secure Rural Schools and Community Self-Determination Act.

Senator Martinez offered S.A. 105 to H.R.2, which would amend the Fair Labor Standards Act (FLSA) with regards to the house parent exception.  (NOTE: There is a possible error in this amendment with respect to the referenced FLSA section to be amended.)

Senator Vitter offered S.A. 110 to H.R.2, which would suspend civil fines on small businesses for first-time violations of paper work requirements.  An exception is made for those violations which have the potential to cause serious harm to the public interest, would prevent the detection of a criminal activity, relate to an internal revenue law, are not corrected within six months of notice, or present a danger to the public health or safety. 

Senator Sununu offered S.A. 111 to H.R.2, which would attach the Small Public Housing Authorities Paperwork Reduction Act.  This act would exempt certain Public Housing Agencies from filing public housing agency plans.  Senator Sununu also offered S.A. 112 to H.R.2, which would establish a 3-year grant extension for Women’s Business Centers that have performed well. 

Senator Smith offered S.A. 113 to H.R.2, which would permanently extend certain education tax incentives proscribed in Title IV of the Economic Growth and Tax Relief Reconciliation Act of 2001.  The amendment would amend the Internal Revenue Code to permanently extend deductions for certain expenses of elementary and secondary school teachers.

Information on additional amendments will be updated as soon as it is available. 

Statement of Administration Policy

On January 19, the Bush Administration issued a statement in support of H.R.2, provided that the legislation is paired with “tax relief for small businesses.”  The Administration, however, does not feel it necessary to offset these tax incentives with revenue increases.

Additional Reading

DPC Fact Sheets

“A New Direction for America: Better Pay”

Joi Chaney

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