Tax rules will be subject to more OMB review under new memo

Certain tax rules will be subject to review by the Office of Management and Budget (OMB) under a memo released Thursday by OMB and the Treasury Department.

The memo follows a debate over whether OMB should have more oversight of tax rules, as Treasury and the Internal Revenue Service (IRS) work to implement the new tax-cut law.

Under a 1983 document, IRS rules were largely exempted from review by OMB’s Office of Information and Regulatory Affairs (OIRA).

Conservative groups and some GOP lawmakers had been pushing for more OMB oversight and for tax rules to undergo a cost-benefit analysis, arguing that doing so would improve the quality of the tax rules and make IRS rules subject to the same process as those from other agencies.

But other lawmakers, as well as some tax experts and members of the business community, had expressed concerns that more OMB oversight of IRS rules would slow down much-sought guidance by the agency on the new tax law.

Under the terms of the new memo, tax rules will be subject to OMB review if they interfere with an action taken by another agency, raise novel legal or policy issues, or have an annual nonrevenue effect on the economy of at least $100 million.

OIRA’s reviews generally will need to end 45 days after Treasury submits them. The Treasury secretary or deputy secretary may, with approval of the OIRA administrator, designate certain tax rules for expedited review that would take no more than 10 business days, subject to extensions.

Both Treasury Secretary Steven Mnuchin and OMB Director Mick Mulvaney praised the memo in a news release.

“This updated review framework will increase scrutiny of regulations most likely to impose new costs, while preserving Treasury’s ability to ensure taxpayers receive timely, clear rules and guidance on how to comply with our tax code,” Mnuchin said. “Under today’s agreement, Treasury will continue to swiftly and successfully implement historic tax reform while still avoiding needless regulatory costs and delays.”

Mulvaney said the memo “ensures increased accountability and transparency for the American people as we continue to implement tax cuts across the country.”

Senate Finance Committee Chairman Orrin Hatch (R-Utah) also offered support.

“With this agreement, OMB and Treasury have struck the right balance to ensure a transparent, careful and expeditious regulatory process,” his office said in a statement.

But the top Democrat on the committee, Sen. Ron Wyden of Oregon, criticized the agreement, saying the administration “added more bureaucratic red tape to a fundamentally flawed law.”

The watchdog group Public Citizen was also critical, saying it could lead to more political interference in tax rules.

“Applying OIRA review to the IRS is a straightforward power grab by the administration that would weaken the agency’s independence and put a dent in the trust we place in the agency to collect our taxes fairly,” Emily Peterson-Cassin, Bright Lines Project coordinator for Public Citizen, said in a statement.

Treasury General Counsel Brent McIntosh said at a Senate Homeland Security and Governmental Affairs Committee hearing Thursday that he anticipates that guidance on several areas of the new tax law would go through the new review process, including rules on the new deduction for income of pass-through businesses, the limits on businesses’ ability to deduct their interest expenses, and international tax provisions.

Both McIntosh and OIRA Administrator Neomi Rao said their agencies would increase staff to help implement the new review procedures. Each estimated that it would be reasonable for their agencies to add about 10 additional staff members.

Sen. Rob Portman (R-Ohio) asked at the hearing if the guidance Treasury has already released on tax withholding and the repatriation tax would have been released as quickly under the new review process. McIntosh and Rao said they think they probably would have.

Portman, who is also on the Senate Finance Committee, said it appears that the new memo strikes a good balance between providing additional scrutiny of tax rules and allowing those rules to be released quickly.

“It sounds that you have come up with something that I can support and that does walk that fine line between having the oversight but also being able to get things out,” he said.

Sen. Heidi Heitkamp (N.D.), the ranking Democrat on the Homeland Security subcommittee that held the hearing, said it’s important that the IRS have the proper resources to be able to identify any unintended loopholes in the tax law. She also said it’s important for the administration to alert Congress if there are areas of the law that are ambiguous, in order for the federal government to avoid litigation.

“It is really important that we stay on top of this rulemaking process,” she said.

– updated at 12:34 p.m.