The media narrative around Donald Trump’s 1995 tax deduction of a business loss would have you think it had been the crime of the century. Last weekend, the New York Times presented an analysis of a Trump tax return from 1995 showing a loss of $916 million, which was eligible for “carry forward” to reduce taxes on his business income in future years. The Times characterized it as something of a scandal, and the Clinton campaign was quick to jump on board. However, the ability to deduct losses or carry them forward to deduct in future years are basic features of the U.S. income tax code. Hillary Clinton used the same tax provisions as recently as 2015, albeit on a smaller scale than Trump, and the Clinton’s have engaged in other forms of tax avoidance. The point here is that if your business realizes gains from some winning investments, but suffers losses on a few others, a basic and reasonable feature of the tax code is to allow the losses to offset a like amount of gains for tax purposes. Similarly, your winnings at the casino (assuming you report them) are not taxed without first netting out the bad bet you made at the roulette table. So far, so good.
When you or your business suffers a loss in a given year, the income tax code allows that loss to be carried forward to offset taxable income in subsequent years. Since the Times article, the term “net operating loss” has been thrown around in some circles as if it’s an arcane tax loophole, but it’s simply good tax policy. John Cochrane provides an example of an entity which alternately reaps gains of $1,000,000 in one year and losses of $900,000 in the next, with an average pre-tax income of $50,000. Without loss carry-forward, this entity would be forced out of business in short order by the IRS. The use of this provision is not uncommon, and it prevents the tax code, such as it is, from being even more threatening to enterprises and jobs that are otherwise viable. Suggesting the elimination of this provision leaves tax experts in disbelief. The effects would be punitive to many businesses, not just corporate behemoths, and would be destructive to the economy.
Cochrane also puts the “blame” for this much-maligned deduction where it should be: the existence of the income tax itself! A consumption tax would not be as sensitive to changes in income, as people tend to smooth their consumption levels over time.
Another question related to the Trump tax revelations would be more controversial, if true: that he might have engaged in so-called “debt parking“. That’s unproven, but Bronte Capital Management‘s John Hempton blogged that it’s highly likely that he did. The alleged sequence of events is as follows: Trump borrowed money and invested it in assets that resulted in massive losses. The losses meant the debt held by Trump’s lender was nearly worthless. If that debt had been forgiven and written off by the original lender, Trump would have been forced to report a large gain, offsetting the tax benefit of the loss on his assets. But as Hempton’s story goes, the lender did not write it off. Rather, in the meantime, Trump created an entity that bought the debt from the lender for pennies on the dollar. After the sale, the write-down taken by the lender was not attributable to Trump as income. Trump’s “entity” simply served as a place to “park” the debt, protecting Trump’s tax benefits via loss carry-forward.
Megan McArdle addresses this issue, but she first reinforces the policy wisdom of the loss provisions in the tax code. McArdle ridicules the notion that businesses seek to generate losses in order to obtain tax deductions. She then debunks the debt-parking theory of Donald Trump’s tax management:
“This theory seemed to have a lot of credibility among folks on social media. Among the tax professionals I spoke to, it had none: the IRS would treat this sort of structure just as it would if a third party had forgiven the debt.
‘Look,’ says [tax attorney Ron] Kovacev, ‘you put a $900 million loss on your tax return, that’s audit bait. The IRS is going to look into it. The notion that you could just move the money and the IRS wouldn’t ask questions?’ There was a sort of incredulous pause before he finally said: ‘That’s hard to fathom.’“
One other question about the 1995 tax return is whether the $916 million loss proves that Trump is a lousy businessman. In fact, there is speculation that Trump’s losses around that time might well have been much larger than that. He suffered staggering failures in his casino business, his airline, and his investment in New York’s Plaza Hotel. It might not be so remarkable, however, to see a few losses on this scale for a developer investing in a variety of large projects. Big risk goes with the territory. Nevertheless, it doesn’t appear that Trump, having begun his business career with large amounts of family money, has achieved tremendous success with that capital over the years, on balance. Rather, it looks more like the kind of success an average investor would have achieved under the same initial circumstances. The losses claimed on his 1995 tax return obviously restrained his overall gains, but they don’t prove he’s a terrible businessman. He’s probably fairly average.
Both Trump and Clinton have exploited a rule in the income tax code that helps smooth after-tax profits and is a basic element of income tax rationality (given that it exists in the first place). It’s rather absurd for anyone to condemn them for it. Even more absurd for either of them to cast aspersions at the other on these grounds. Would Hillary Clinton do anything to restrict the longstanding ability to carry forward losses to deduct against future taxes? I’m thankful that I haven’t heard her say so!