Democrats Supported 5-Year Net Operating Loss Carrybacks Before They Opposed Them

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Posted by Alex Hendrie on Tuesday, May 19th, 2020, 2:31 PM PERMALINK

House Democrats and the media are taking aim at a tax cut enacted in the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The tax cut allows businesses to carryback net operating losses (NOLS) incurred in 2018, 2019, and 2020 back five years. Democrats now want to retroactively impose tax increases on these struggling companies.

However, Democrats used to vocally support this tax cut. In 2009, Congress passed and President Obama signed into law the “Worker, Homeownership, and Business Assistance Act of 2009,” which allowed businesses to carryback losses incurred by businesses in 2008 and 2009 back five years. Many Democrats including House Speaker Nancy Pelosi (D-Calif.) spoke in support of the NOL provision on the House Floor.

Despite this past support, Pelosi's “Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act,” seeks to repeal this tax cut by preventing losses from being carried back before 2018 and imposing a number of other restrictions on NOLs, a move that will deny businesses liquidity, speed up job losses, and endanger the economic recovery.

[See more: Pelosi Proposes Retroactive Tax Increase on Struggling Companies]

Meanwhile, the press is incorrectly arguing that NOLs are a “handout for big business”. For instance, a recent Bloomberg article argues that this tax cut was a “stealth bailout” for oil and gas companies.

This is not true. As leading Democrats noted a decade ago, NOL carrybacks are available to any industry, help provide businesses emergency liquidity in an economic downturn, and are largely a timing shift in taxes paid, not a bailout.

A list of Democrat quotes in support of NOLs are below:

The Obama White House  

“Business losses incurred in 2008 or 2009 can now be used to recoup taxes paid in the prior five years. This provision is a fiscally responsible economic kick-start, putting $33 billion of tax cuts in the hands of businesses this year when they need it most, while enabling Treasury to recoup the majority of that funding in the coming years as these businesses regain their strength and resume paying taxes.”

Speaker Pelosi

“The bill also has the net operating loss carryback, which businesses tell us is necessary for them to succeed and to hire new people, and also to mitigate some of the damage that has been done to the economy from past policies.”

Ways and Means Chairman Richie Neal (D-Mass.)

“Finally, the bill provides net operating loss relief for many businesses that have been simply hanging on in this country over the last year. It is particularly important to retailers. Based on a bill that I filed with Representative Tiberi which became the basis for this provision, this relief for businesses, big and small, will provide quick capital at a time when it is currently impossible to find.”

Former Ways and Means member Rep. Shelley Berkley (D-Nev.)

“Additionally, this bill includes important tax provisions, extending and expanding the homebuyer tax credit and allowing businesses to carryback losses in 2008 or 2009 for 5 years… The net operating loss provision will help keep businesses afloat during the tough times, preventing further layoffs.”

Former Ways and Means Chairman Sander Levin (D-Mich.)

“As to growth, there are two provisions here. I am surprised that the previous speaker says nothing is being done to create jobs when we have two provisions here that are aimed to do that. The homeowners’ tax credit is extended and is also expanded, and the net operating loss provision is inserted here to create jobs. This is a bill that combines equity and, hopefully—and I think it will—create jobs.”

Photo Credit: Chambre des Députés

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