First Session of 110th Congress Ends with Victories

March 1, 2008

BOMA Intl. highlights victories from the first session of the 110th Congress

In late December, the first session of the 110th Congress came to a close; with it came victory on three of BOMA Intl.'s key issues for 2007. Below are the highlights of the first session, along with what BOMA Intl. expects to see for the remainder of the 110th Session of Congress.

Terrorism Risk Insurance Program Reauthorization Act of 2007 (TRIPRA)
HR 2761 was signed into law on Dec. 26, 2007, and does the following:

  • Extends the federal terrorism insurance backstop program through 2014.
  • Expands the definition of "act of terrorism" to include acts of "domestic terrorism."
  • Clarifies the operation of the $100 billion annual program cap.
  • Changes the manner in which the mandatory portion of post-event policyholder surcharges would be collected.

The new law also directs the Government Accountability Office (GAO) to complete a study on insurance capacity issues for nuclear, biological, chemical, and radiological (NBCR) terrorism attacks. In 2008, BOMA Intl. and its partners in the Coalition to Insure Against Terrorism (CIAT) will be actively engaged in the regulatory process for the implementation of TRIPRA.

Energy Policy Legislation
In January 2007, energy-efficiency legislation was on Congress' "first 100 hours" agenda, and a bill finally gained passage in the closing days. This legislation was a mixed bag for BOMA; the association was instrumental in toning down some of the more onerous provisions and defeating a provision that would have set arbitrary and mandatory energy-efficiency targets for the Intl. Energy Conservation Code (IECC) and ASHRAE 90.1, which BOMA felt thwarted the consensus-based standards development process. The final version of the legislation also includes mandates for federal buildings (including provisions that apply to leased space) and a phased-in requirement that all buildings - new and existing - be zero net energy by 2050. BOMA Intl. will work closely with the U.S. Department of Energy and the U.S. General Services Administration as this new law is implemented.

In addition, 2008 will be the year in which conversations on global warming will ultimately lead to action, and legislation will be actively debated, possibly leading to the implementation of a carbon cap and trade or carbon tax program. BOMA expects to see a green buildings bill, and both of these are likely vehicles for the energy code provisions, defeated in 2007, to resurface.

Tax Legislation
The debate over the taxation of carried interest began when Rep. Sander Levin (D-MI) introduced legislation in 2007 that would tax carried interest as ordinary income for real estate partnerships. The same provision was included in another bill to help offset the cost of a 1-year alternative minimum tax (AMT) relief bill, the Temporary Tax Relief Act of 2007, which passed the House, but not the Senate. Ultimately, the carried interest tax increase was removed from the AMT bill due primarily to the opposition by both Senate Republicans and Democrats. In 2008, BOMA expects continued discussion of how carried interest is taxed as Congress begins debating overall reform of the tax code. Though it is highly unlikely for such a broad, complex, and controversial bill to pass in an election year, it's important for the commercial real estate industry to be a part of the discussion early so that issues such as leasehold depreciation and the taxation of carried interest are addressed fairly.

The end of 2007 brought the lapse of the 15-year timeline for depreciating leasehold improvements. Leasehold depreciation continues to be a part of a large number of tax provisions that have been packaged together and are known as the "extenders," due, in part, to the fact that Congress simply extends them when they expire rather than making them permanent or enacting other policy changes. Leasehold depreciation and the other extenders were jettisoned during debate over legislation geared at patching the AMT in late 2007. BOMA Intl. expects Congress to consider tax legislation to include the extenders in 2008; though most, if not all, of the provisions are non-controversial, nothing is guaranteed to be renewed.

Despite last year's successes, it's no time to relax. The second session has already begun, and real estate's issues are back on the agenda. With a number of important real estate issues up for consideration this year, it is important for industry professionals to remain active and engaged with their elected officials.

For information on this and other issues, visit BOMA Intl. or call (202) 408-2662.

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