Three upcoming tax law changes scheduled by the 2017 Tax Cuts and Jobs Act (TCJA) to help offset its revenue losses would be canceled by proposed legislation that would prevent the tax treatment of investment from worsening over the coming years.

1. Research & Development (R&D) Amortization

Starting in 2022, rather than fully deducting research & development (R&D) costs as has been the norm since 1954, companies will be required to amortize R&D expenses over five years. Amortization raises the marginal cost of investments and reduces growth in the long term by reducing the real value of the deductions to the business.

A bipartisan group of House policymakers introduced the “American Innovation and R&D Competitiveness Act of 2021” and a bipartisan group of Senators introduced the “American Innovation and Jobs Act.” Both would eliminate the five-year amortization requirement for R&D expenses, which would allow companies to continue fully deducting R&D expenses. The American Innovation and Jobs Act would also increase R&D tax credit for small and start-up firms.

2. Tightening of the Business Net Interest Deduction

Prior to enactment of the TCJA, businesses were generally allowed to deduct their total amount of interest paid, subject to a few minor limitations like a debt-to-equity limit and not exceeding 50 percent of adjusted taxable income.

The TCJA introduced a limit on net interest expense to 30 percent of EBITDA (earnings before interest, taxes, depreciation, and amortization) intended to reduce the tax code’s preference for debt over equity. Starting in 2022, the limit will narrow again to 30 percent of EBIT (earnings before interest and taxes).

The limits help put the tax treatment of debt and equity financing on a more level footing, as there is no deduction allowed for equity financing. The tightening of the limit from EBITDA to EBIT will further reduce the tax bias in favor of debt-financed investment and will have a small negative effect on the overall incentive to invest by increasing the cost of new investment.

The Permanently Preserving America’s Investment in Manufacturing Act, introduced by Senators Rob Portman (R-OH), Roy Blunt (R-MO), James Lankford (R-OK), and James Inhofe (R-OK), would maintain the limitation on the business interest deduction at 30 percent of EBITDA. This change would prevent the increased cost of borrowing and keep the interest limitation in line with the income definitions used abroad. However, lawmakers may want to consider reducing the limitation from 30 percent of EBITDA to a lower EBITDA threshold to offset the revenue loss from canceling the switch and further reduce the tax bias in favor of debt-financing.

3. Phaseout and Expiration of 100 Percent Bonus Depreciation

The TCJA enacted 100 percent bonus depreciation for short-lived assets to address a flaw in how the tax system treats investment costs. When a company calculates its corporate income tax liability, it subtracts its costs from its revenue. However, companies are not allowed to immediately deduct all costs. Some assets are deducted over several years based on preset depreciation schedules—a building might be deducted over 39 years while an office desk might be deducted over seven years.

Because of inflation and the time value of money, the present value of write-offs under depreciation schedules is smaller than the original cost of the investment. This raises the marginal tax rate of capital which reduces investment, output, and wages in the long run. The TCJA’s 100 percent bonus depreciation temporarily remedies the issue for short-lived investments, but it will start phasing down after the end of 2022 until it expires entirely at the end of 2026.

The Accelerate Long-term Investment Growth Now Act (ALIGN), introduced by Senators Pat Toomey (R-PA) and Representative Jodey Arrington (R-TX), would make permanent the TCJA’s 100 percent bonus depreciation for short-lived assets. The Cost Recovery and Expensing Acceleration to Transform the Economy and Jumpstart Opportunities for Businesses and Startups Act (CREATE JOBS), introduced by Senator Ted Cruz (R-TX), would cancel R&D amortization and make permanent the TCJA’s 100 percent bonus depreciation for short-lived assets. It would also provide the economically equivalent treatment to long-lived assets, such as residential and commercial structures, by implementing a neutral cost recovery system (NCRS). Under NCRS, companies would continue taking depreciation deductions, but the real value of the deductions would be maintained through adjustments for inflation and the time value of money. 

The three looming tax changes may act as a catalyst to a year-end tax bill that would address these and other year-end tax law expirations. Lawmakers should prioritize permanence for the parts of the code that are conducive to growth, neutrality, and simplicity.