13 April 2018

White House and Treasury Announce Fundamental Change to Tax Rulemaking

After months of trading punches Director Mick Mulvaney of the White House’s Office of Management and Budget (OMB) and Treasury Secretary Steven Mnuchin released a memorandum of agreement (MOA) that creates a new framework for writing, reviewing, and implementing tax regulations.  In short, the MOA requires OMB’s Office of Information and Regulatory Affairs (OIRA) to review major tax regulations—just as it does major rulemakings from any other executive branch agency.  This is a fundamental change from a 1983 agreement, under which Treasury had hitherto operated, that exempted most tax regulations from review.

 

Under the new MOA, tax rulemaking will be subject to review by OIRA if it would:

1.       Create a serious inconsistency with another agency.

2.       Raise novel legal or policy issues.

3.       Have an annual non-revenue effect of $100 million or more on the economy (measured against a no-action baseline).

 

Additionally, Treasury will notify OIRA of any upcoming planned tax rulemakings in a quarterly report.  OIRA generally has 45 days to complete its review of relevant rulemakings, but in certain instances it can be as short as 10 days, if the OIRA administrator and the Treasury Secretary agree to an expedited timetable.

 

Critics of the new MOA argue that it will slow Treasury’s rulemaking significantly just at the time when taxpayers need guidance as quickly as possible. Delayed rulemaking will present significant challenges for taxpayers who are waiting for guidance to determine their tax liability under the new tax law, many of whose provisions are already in effect.  They argue that it will leave businesses flying blind.  The Administration, however, believe that it will not noticeably delay tax rulemaking and noted that the vast majority of tax regulations will still be promulgated by Treasury without review.  OIRA review would only apply to a small subset of rules, like those for the new passthrough deduction, that may have major impacts on the economy.  OIRA has also begun hiring more tax experts to prepare for its new role.

 

Please contact our team if you would like more information.

 

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Overview

The Water Resources Development Act (WRDA) serves as the primary vehicle through which Congress authorizes U.S. Army Corps of Engineers civil works projects and establishes policy frameworks for water resource development nationwide. Enacted on a biennial schedule, WRDAs provide congressional authorization for USACE to conduct feasibility studies, construct flood risk reduction projects, improve navigation infrastructure, restore aquatic ecosystems, and assist with environmental infrastructure development.
Since the enactment of WRDA 1986, Congress has used these omnibus authorization bills to both create new USACE authorities and refine existing programs based on evolving national priorities and lessons learned from program implementation. Recent WRDAs have addressed critical issues including drought resilience, water supply development, infrastructure modernization, and support for economically disadvantaged communities.
The most recent legislation, the Water Resources Development Act of 2024 (WRDA 2024, P.L. 118-272), continued Congress's bipartisan commitment to strengthening America's water infrastructure by authorizing new construction projects, modifying existing authorities, and establishing updated policy guidance for USACE operations. WRDA 2024 also authorized five new regional environmental infrastructure programs, each incorporating flexible delivery mechanisms that allow federal assistance to be provided through grants or reimbursements to nonfederal sponsors.
Authorization through WRDA is typically a prerequisite for USACE activities to receive federal appropriations through the annual Energy and Water Development appropriations process. This two-step framework—authorization followed by appropriation—ensures congressional oversight of both program scope and funding levels.
Section 219 of WRDA 1992, as amended, represents one of USACE's most geographically expansive environmental infrastructure assistance authorities. Originally enacted to authorize design assistance for 18 specific projects, Section 219 has been amended by subsequent Congresses to authorize both design and construction assistance for water-related environmental infrastructure in hundreds of municipalities, counties, and states across the nation.
The Congressional Research Service has identified over 600 environmental infrastructure assistance authorities with cumulative authorizations of appropriations totaling approximately $18.1 billion. Section 219 authorities constitute the majority of these geographically specific project authorizations, covering at least 46 states, the District of Columbia, and four U.S. territories.
Section 219 projects address critical community needs including wastewater treatment facilities, water supply and distribution systems, stormwater management infrastructure, surface water protection, and environmental restoration. These projects support public health, environmental quality, and economic development in communities that have secured congressional authorization for USACE assistance.
Congress has continued to expand Section 219 in recent legislation. WRDA 2022 added 132 new Section 219 authorities and amended 24 existing authorities. WRDA 2024 authorized an additional 193 new Section 219 authorities and amended 53 existing authorities, providing a combined $5.4 billion increase in authorization of appropriations. WRDA 2024 also established a seven-year pilot program to increase the federal cost share from 75 percent to 90 percent for Section 219 projects benefiting economically disadvantaged communities.
Unlike traditional USACE water resource projects, Section 219 assistance does not require completion of the agency's standard feasibility study process. However, projects receiving Section 219 assistance must comply with applicable federal environmental laws, including the National Environmental Policy Act.
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TFG Presents 2025 Congressional Calendar

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