`
`NATIONAL CONGRESS OF AMERICAN INDIANS
`
`
`
`CURRENT TAX NEEDS IN INDIAN COUNTRY
`
`
`
`The National Congress of American Indians (NCAI), along with its partners, the
`Affiliated Tribes of Northwest Indians (ATNI), the California Association of Tribal
`Governments (CATG), the United South and Eastern Tribes (USET), and the Native
`American Finance Officers Association (NAFOA) – collectively, the Intertribal Tax
`Initiative, appreciate the opportunity to share our ideas on tribal tax policy.
`
`As you know, Indian tribal governments have a unique status in our federal system
`under the U.S. Constitution and numerous federal laws, treaties and federal court
`decisions. American Indian and Alaska Native tribes have a governmental structure,
`and have the power and responsibility to enact civil and criminal laws regulating the
`conduct and affairs of their members and reservations. Tribes operate and fund courts
`of law, police forces, and fire departments. Tribes provide a broad range of
`governmental services to their citizens, including education, transportation, public
`utilities, health, economic assistance, and domestic and social programs. Like the
`revenue of states and local governments, tribal revenues are not treated as taxable
`income – but as the governmental revenues of a distinct and unique sovereign
`government.
`
`As such, federal tax reform is of great interest to NCAI, its partners, and our respective
`member tribes. This is because tax reform presents a very real opportunity to protect
`and enhance the many governmental functions and services provided by Indian tribes.
`There are many ways to include tribal governments in any upcoming tax reform. While
`the federal government recognizes that tribal nations are governments, tribes are
`frequently treated less favorably than state and local governments under our federal
`Tax Code. Such differential and unjust treatment typically results in tribal governments
`being denied federal tax exemptions and economic development incentives that state
`and local governments enjoy.
`
`In restructuring the nation’s Tax Code, it is critical that members of Congress clearly
`understand both the unique problems and challenges of Indian Country and the
`governmental status of Indian tribes. Thus, in expressing our views on potential areas
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`to improve tribal tax policy, we do so as partners in American growth and, like each of
`you, as elected governmental representatives of Native American people.
`
`
`
`Tribal Tax Parity--A History of Uneven Progress
`
`While there is no federal statutory provision that "exempts" Indian tribes from federal
`income tax, the IRS has consistently and correctly concluded that federally recognized
`tribes and their federally chartered corporations are not subject to federal income taxes.1
`With respect to tribal governments, the IRS in Revenue Ruling 67-284 based its
`conclusion on the fact that tribes (like states) are political bodies not subject to the
`income tax provisions of the Internal Revenue Code (the "Code").
`
`However, the IRS did not treat Indian tribes like states for all purposes of the Code.
`Revenue Ruling 68-231 provided that tribal bonds could not be treated like state
`government-issued bonds because Code section 103, which exempts interest paid on
`state and local bonds from income taxation, did not specifically mention Indian tribes.
`The IRS took a similar approach to several other Code provisions that explicitly
`exempted state and local governments.
`
`Recognizing that tribal governments should be treated on par with state governments,
`Congress passed the Indian Tribal Governmental Tax Status Act in 1982 to provide
`comparable governmental tax treatment to tribes for federal tax purposes.2 The Tribal
`Governmental Tax Status Act, codified as section 7871 of the Code, provides that
`federally recognized tribes are treated like states with respect to the following:
`
` Deductibility of charitable contributions to governments for exclusively public
`purposes
`
` Deductibility of gifts and bequests for public purposes
`
` Exclusion of interest on tax-exempt bonds (subject to restrictions on tribal bonds
`discussed below)
`
` Exemption from certain federal excise taxes (subject to restrictions)
`
` Deductibility of taxes paid to tribal governments
`
` Private foundation excise tax rules referencing governments
`
` Provisions relating to accident & health plans under Section 105
`
`1 Four revenue rulings address the tax status of tribal governments: Rev. Rul. 67-284, 1967-2 C.B. 55; Rev.
`Rul. 81-295, 1981-2 C.B. 15; Rev. Rul. 94-16, 1994-1 C.B. 19; and Rev. Rul. 94-65, 1994-2 C.B. 14.
`2 Title II of Pub. L. No. 100-203, 96 Stat. 2605 (1982).
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` Provisions authorizing retirement plans under Section 403(b) for educational
`employees
`
`Although Code Section 7871 did not codify the basic tax immunity of tribal
`governments, the legislative history indicates that Congress was aware of the IRS’s
`position in Revenue Ruling 67-284 and did not wish to alter it.
`
`Unfortunately, the Tribal Governmental Tax Status Act did not live up to its original
`promise of treating tribes on par with states for federal tax purposes. For example, the
`provision that allowed Indian tribes to issue tax-exempt bonds was subject to many
`restrictions in the original 1982 Act, and more were added in 1987. Thus, Indian tribal
`bonds were subject to the following restrictions:
`
` An absolute prohibition on the issuance of private activity bonds, except for
`certain tribal manufacturing bonds subject to wage and employment tests that
`are virtually impossible for modern manufacturing facilities to meet
`
` Government bonds issued by tribes were required to meet the essential
`governmental function test (which was considered to be met only when (the
`project does not generate revenue?)substantially all of the proceeds were used in
`the exercise of an essential governmental function)
`
`
`
`"Essential governmental functions" for this purpose were limited to those
`functions "customarily performed" by state and local governments with general
`taxing powers (e.g., schools, roads and sewers).
`
`The Tribal Tax Status Act also applied the "essential governmental function" test to the
`excise taxes from which tribes were exempted, even though state and local government
`exemptions were not so restricted.
`
`In addition to imposing specific restrictions on tribes that were not applicable to states,
`Section 7871 failed to address many areas of the Code where special treatment is
`extended to states. Unfortunately, the IRS took the position that these omissions
`demonstrated that tribes should not be treated like states, and denied governmental
`status with respect to a number of different provisions, including various federal excise
`taxes not covered by Section 7871. See, e.g., Revenue Ruling 94-81, 1994-2 C.B. 412
`("Indian tribal governments have no inherent exemption from federal excise taxes").
`
`
`
`NCAI Priority--Tribal Tax Parity
`
`NCAI, its partners, and our respective member tribes, firmly believe that because
`Indian tribes are governments, they should generally be treated like states for all federal
`tax purposes. As part of a comprehensive tax reform bill, Section 7871 needs to be
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`broadened to treat Indian tribes like states for all tax Code purposes, except in those
`limited instances where a special rule for tribal governments is absolutely necessary. In
`most cases, a special rule will not be necessary.
`
`A special rule is needed so tribes can continue to offer 401(k) retirement savings plans.
`Since Congress amended the Code in 1995 to specifically clarify that tribes, unlike state
`and local governments, could offer 401(k) plans, many tribes have adopted 401(k) plans
`as the primary vehicle for their employees. Many would now like to supplement such
`plans with governmental pension plans, and corrective legislation is needed to
`accomplish that goal. But Congress should preserve the right of tribal employers to
`continue to sponsor 401(k) plans as well.
`
`
`
`Specific Instances where the Tribal Tax Parity is Urgently Needed
`
`While we believe that tribes should be treated like states for all tax purposes (and
`generally should not be subject to special rules or restrictions that states and local
`governments do not have to meet), there are several specific areas where tribal tax
`parity is urgently and particularly needed:
`
` Tax Exempt Bonds (including private activity bonds)
`
` Employee Benefit and Pension Plan
`
` Tribally Funded and Controlled Charities
`
` Treatment as States for purposes of federal streamlined sales tax legislation
`
`Treating tribes like states in these four areas would be a significant step forward, and
`should be taken in the context of comprehensive tax reform.
`
`Tribal issuance of tax exempt bonds
`
`A provision championed by the Senate Finance Committee in the American Recovery
`and Reinvestment Act (ARRA) authorized $2 billion in bond authority for a new
`category of bonds for Indian tribes, known as "Tribal Economic Development ("TED")
`Bonds." TED Bonds were intended to provide tribes with more flexibility to use tax-
`exempt financing than is allowable under the current "essential governmental function"
`standards as noted above. The TED Bond rules are still subject to other restrictions that
`require financed projects to be located on Indian reservations and that prohibit the
`financing of gaming facilities.
`
`The ARRA provision required Treasury to conduct a study of the effectiveness of the
`new bonding authority, and to recommend to Congress whether it should "eliminate or
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`otherwise modify" the essential governmental function standard for Indian tribal bond
`financing. That Treasury study is now complete and was delivered to Congress on
`December 19, 2011.
`
`The core recommendation of the Treasury study is that Congress should adopt the same
`standard for tribal government bonds as applies to governmental bonds issued by State
`and local governments. The Treasury Department clearly recommends repealing the
`"essential governmental function" standard for Indian tribal governmental bond
`financing. The Treasury study explains that it is making this recommendation "[f]or
`reasons of tax parity, fairness, flexibility, and administrability . . . ."
`
`Treasury also recommends that Congress adopt what it calls a "comparable" private
`activity bond standard so that Indian tribal governments could issue some private
`activity bonds. Such bonds would be subject to a national volume cap, and Treasury
`would be authorized to make allocations among Indian tribal governments.
`
`Treasury has further recommended that Congress limit Indian tribal bond issuances in
`two respects: (1) No bonds could be used for gaming projects, and (2) some kind of
`project location restriction would apply. With respect to the latter, Treasury has
`recommended that Congress provide more flexibility than it did for the TED Bonds
`under ARRA. Specifically, Treasury recommends that tribal bonds be allowed to
`finance projects that are located on Indian reservations, together with projects that both:
`(1) are contiguous to, within reasonable proximity of, or have a substantial connection
`to an Indian reservation; and (2) provide goods or services to resident populations of
`Indian reservations.
`
`NCAI, its partners, and our members appreciate the analysis and core
`recommendations in the Treasury study, but have serious concerns about the "project
`location restriction"--even in its modified form. In particular, the requirement that the
`financed project provide "goods or services" to reservation residents would effectively
`kill the chances of using tax-exempt debt for many tribal economic development
`projects. This directly infringes on tribes’ ability to diversify their economic revenue
`generating base. The requirement for proximity to an Indian reservation would
`eliminate a tribe’s ability to meet state-wide government contracting requirements. It is
`our view that tribal governmental bonds--as distinguished from private activity bonds--
`should not be subject to a "project location" restriction of any type. The Congress must
`remember that tribal governments do not have the typical taxing base of state and local
`governments and their business revenues are the core revenue base that enables tribes
`to become less dependent on federal resources.
`
`Tribal pension and employee benefit plans
`
`If the "essential governmental test" is unworkable in the government bond context, it is
`proving to be even more unworkable in the tribal employer plan arena.
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`Under a provision hastily conceived in a House-Senate Conference on the Pension
`Protection Act of 2006, tribal governmental plans are not treated as "governmental
`plans" unless all of the employees in the plan are substantially engaged in "essential
`governmental" functions, and not commercial activities. While the legislative history of
`the provision suggests that Congress intended to exclude casino, hotel, service station,
`casino and marina employees from being covered by a governmental plan (if the
`employer is a tribal government), it did not give much guidance how the test would
`apply in other contexts.
`
`In many cases, because of their lack of a tax base to fund government operations, tribal
`governments tend to have employees engaged in what might be considered to be
`commercial activities. For example, employees in a tribal forestry department or roads
`and construction departments are similar to state and federal employees, but their
`activities sometimes result in generation of revenue. NCAI would also contend that if
`this test applied to contemporary state and local governmental workforces, they would
`find it to be equally unworkable.
`
`The Senate-passed version of the 2006 pension legislation (S. 1783, 109th Cong.), which
`had strong bipartisan support from members of this Committee, contained a much
`more administrable and equitable approach to the treatment of tribal governmental
`plans. This language is reproduced below.
`
`SEC. 1311. DEFINITION OF GOVERNMENTAL PLAN.
`
`(a) Amendment to Internal Revenue Code of 1986- Section 414(d) of the Internal
`Revenue Code of 1986 (definition of governmental plan) is amended by adding
`at the end the following: `The term `governmental plan' includes a plan
`established or maintained for its employees by an Indian tribal government (as
`defined in section 7701(a)(40)), a subdivision of an Indian tribal government
`(determined in accordance with section 7871(d)), an agency instrumentality (or
`subdivision) of an Indian tribal government, or an entity established under
`Federal, State, or tribal law which is wholly owned or controlled by any of the
`foregoing.'
`(b) Amendment to Employee Retirement Income Security Act of 1974- Section
`3(32) of the Employee Retirement Income Security Act of 1974 (29 U.S.C.
`1002(32)) is amended by adding at the end the following: `The term
``governmental plan' includes a plan established or maintained for its employees
`by an Indian tribal government (as defined in section 7701(a)(40)), a subdivision
`of an Indian tribal government (determined in accordance with section 7871(d)),
`an agency instrumentality (or subdivision) of an Indian tribal government, or an
`entity established under Federal, State, or tribal law that is wholly owned or
`controlled by any of the foregoing.'
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`Tribal Charities
`
`Under current federal tax law, the public charity status of section 501(c)(3)
`organizations funded by or formed to support Indian tribal governments is unclear. By
`contrast, the tax treatment of such charitable organizations funded by or formed to
`support federal, state and local governments is made clear by specific provisions of the
`Code (e.g., provisions treating such government funding as public support).
`
`Consistent with the intent of the Tribal Government Tax Status Act to treat tribal
`government on par with other units of government, Congress should pass legislation to
`technically resolve this issue. The Senate has previously addressed it with a provision
`contained in Section 153 of the Senate-passed version of the Tax Administration Good
`Government Act (H.R. 1528, 108th Congress). That provision would have done the
`following: (1) treated tribal funding as public support for purposes of Section
`170(b)(1)(A) (vi) (i.e., the public charity classification test that is satisfied on the basis of
`how much support a charity derives from "public" sources), and (2) treated charitable
`organizations formed to support Indian tribal governments the same as organizations
`formed to support state, local and federal government for purposes of Section 509(a)(3).
`
`Unfortunately, the House and Senate did not go to Conference on that bill in 2006,
`although the provision was included in a bill passed by the House in 2007. This is a
`small technical fix that should be included in any comprehensive tax reform bill.
`
`Tribal Tax Parity in the Context of Streamlined Sales Tax Legislation
`
`When Indian tribal governments undertake economic development efforts, one reality
`that almost all tribes confront is the lack of a tax base. Tribes are not able to impose
`property tax on trust lands, and imposing an income tax on reservation residents or the
`businesses that choose to locate on reservations is rarely feasible. Recent federal court
`decisions have compounded the "tribal tax gap" by permitting the imposition of state
`taxation on Indian lands, while limiting the ability of tribal governments to tax non-
`Indians.
`
`At the same time, Indian tribal governments do have the authority to impose and collect
`sales taxes on any product sold within their territorial jurisdiction. Although not all
`tribes exercise this inherent authority, tribes are increasingly relying on the imposition
`of taxes on transactions within their territory as a stable and long-term revenue source
`for tribal government operations.
`
`For example, the Navajo Nation currently imposes a 4 percent general sales tax, which
`raises over $10 million dollars per year in revenue. In some situations, a tribal tax has to
`compete with applicable state taxes resulting in double taxation. However, in other
`cases, the state tax may be preempted, particularly if the incidence of the tax would fall
`directly on the tribe or a tribal member for a transaction occurring in Indian Country.
`
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`Several bills are pending in the Senate that would clarify which state has the right to
`impose its tax on on-line or Internet sales transactions. However, neither S. 1452 (the
`Main Street Fairness Act) nor S. 1832 (the Marketplace Fairness Act) takes into account
`the taxing jurisdiction of Indian tribes with respect to sales that are sourced within
`Indian Country, particularly where the purchaser is the tribe or a tribal member.
`
`NCAI and its partners would like to collaborate with Congress to craft appropriate
`amendments to the legislation in order to accomplish the following:
`
` Facilitate participation by federally recognized Indian tribal governments in the
`Streamlined Sale and Use Tax Agreement as "member states" if they meet certain
`conditions;
`
` Make clear that the federal legislation is not intended to override longstanding
`principles of federal law governing the respective taxing jurisdictions of state
`and tribal governments, particularly with respect to purchases made by tribes
`and tribal members within Indian reservations and trust lands; and
`
` Protect existing bilateral agreements between states and tribes for the collection
`and allocation of sales tax revenues.
`
`Statutory language contained in prior streamlined sales tax bills, such as S. 34
`(introduced by Senator Enzi in the 110th Congress), could be used as a starting point to
`achieve these goals.
`
`Tribal Tax Parity and IRS Audits
`
`The Finance Committee has heard testimony in previous committee hearings--in 2006
`and 2008--regarding the disproportionate number of IRS audits focused on tribal bond
`offerings. The large number of tribal bond audits conducted by the IRS between 2002
`and 2007, together with the restrictive approach taken by the IRS in these audits, had
`the effect of chilling the market for tribal bonds at a time when credit was otherwise
`available for government projects.
`
`More recently, IRS audits have focused on the social welfare programs of tribal
`governments. Starting in approximately 2004, the IRS began a special audit focus on
`tribal government programs providing in-kind benefits to tribal members. As a result of
`that initiative, the IRS began focusing on tribal government programs, including the
`following:
`
` Health Care Programs
`
` Educational Programs
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` Housing Programs (including preparation of reservation home sites for building,
`housing improvement, construction, down payment assistance, and
`maintenance/repairs)
`
` Loan Programs
`
` Emergency Assistance
`
` Cultural Events and Community Activities (e.g., powwows)
`
` Cultural Travel
`
` Elder and Youth Programs (including meals, social events and utility assistance)
`
` Legal Aid
`
` Recreation and sporting events
`
` Landscaping and grounds maintenance
`
`
`
`The underlying premise of these IRS examinations appears to be that Indian tribal
`governments are paying out taxable income (whether in cash or in kind) to or on behalf
`of tribal members. The IRS is auditing the tribal governments based on the premise that
`they (as payors) have obligations to report such payments to the IRS (and the payees)
`by issuing 1099s, and, in certain cases, to also withhold tax on such payments.
`
`In a June 28, 2007 correspondence to Senator Charles Grassley, Steven Miller, the then
`IRS Commissioner for Tax Exempt and Governmental Entities, made the following
`statements under the heading "Tribal Per Capita Payments":
`
`Under the Indian Gaming Regulatory Act, revenues from tribal gaming can be
`used for several authorized purposes, including funding tribal government
`operations, providing for the general welfare of the tribe, and making per capita
`payments to tribal members. Per capita distributions are subject to Federal
`income tax, and the issuer must report the distribution on Form 1099.
`
`To reduce the tax consequences to tribal members, some tribes have created
`mechanisms to classify what should be taxable per capita payments as
`general welfare program payments, excludible from income, often through
`liberal interpretations of what constitutes a "needs-based" program.
`Others have created or invested in purported income deferral programs….
`
`To address this problem we have engaged in educational and enforcement
`activities. We also initiated 139 examinations during the past two years that
`focused specifically on the use of net gaming revenues.
`
`Further, the IRS Indian Tribal Governments (ITG) Work Plan for FY 2009 (posted on the
`IRS website at www.irs.gov/tribes) made the following statement about its Gaming
`Revenue enforcement initiative:
`
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`The Gaming Initiative commenced by the Office of Indian Tribal Governments in
`FY2005 will continue into FY2009. Continuing discussions with the Chairman
`of the National Indian Gaming Commission indicate their extreme interest in
`ensuring that tribes appropriately use gaming revenues, and properly account for
`such use. Since they have limited oversight of that issue, it falls upon the IRS
`to ensure that information reporting requirements are met with regard to
`the expenditure of such revenues. With Indian gaming now surpassing $26
`billion in gross revenue for 2007, and expected to grow by over $2 billion per
`year, our role and responsibilities will continue to expand. We plan to devote 6
`FTEs to this initiative, and our examination goal includes 40 returns from this
`initiative."
`
`In testimony at a September 18, 2009 hearing before the Senate Committee on Indian
`Affairs on the IRS treatment of tribal government health programs, Sarah Hall Ingram,
`the current IRS Commissioner for Tax Exempt and Governmental Entities, denied that
`the agency was targeting Indian tribal governments or that it had any special program
`to examine tribal health programs. Rather, Commissioner Ingram contended that "the
`issue of the taxability of medical benefits and health insurance coverage can arise from
`time to time in the normal course of an audit as we look at whether a tribe, or any other
`type of government or employer, is following appropriate information reporting and
`withholding practices as it administers its various programs."
`
`More recently, on November 15, 2011, the IRS announced that it would be reexamining
`the applicability of the general welfare exclusion as applied to tribal government
`programs. Indian tribes have been asked to submit written comments to the IRS
`describing their programs, particularly the following.
`
` Cultural (for example, programs involving tours of sites that are historically
`significant to a tribe; language preservation programs; community recreational
`programs; cultural and social events);
` Education (for example, programs providing tutors or supplies to primary and
`secondary school students; job retraining programs for adults);
` Elder programs (for example, programs providing heating assistance or meals);
`and
` Housing (for example, programs providing housing on and off the reservation,
`with income limits different from those of the United States Department of
`Housing and Urban Development).
`
`See IRS Notice 2011-94 at http://www.irs.gov/pub/irs-drop/n-11-94.pdf. As a result
`of this recent administrative focus, many tribal leaders are concerned that IRS audits of
`tribal programs are likely to increase, along with potential tax withholding and
`reporting burdens imposed on tribal governments.
`
`Notwithstanding IRS statements to the contrary, NCAI believes that the IRS actions in
`auditing tribal governments on their social welfare and other governmental programs
`are clearly not comparable to IRS treatment of state and local governments. There is no
`
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`evidence that any similar audit initiative exists for state and local government
`programs. Based on this recent history, and in accordance to a recently passed
`resolution at our Midyear Conference (NCAI Resolution #LNK-12-0083), NCAI invites
`Congress to consider a legislative approach to addressing the IRS’ treatment of tribal
`general welfare programs.
`
`
`Need to Evaluate the Effectiveness of Tax Incentives for Tribal Governments
`
`NCAI and its partners understand that Congress is engaged in a review of numerous
`expired or expiring tax provisions and is in the process of reviewing their effectiveness.
`During this process, we would like to offer our assistance in further evaluating the
`following incentives for Indian Country development.
`
` Accelerated Depreciation for Indian Reservation Property
`
` Indian Employment Tax Credit
`
` Indian Coal Credit
`
` Clean Renewable Energy Bonds (CREBs)
`
` New Markets Tax Credit
`
`Based on initial feedback from NCAI member tribes, as well as our partners’ members,
`we believe that providing Accelerated Depreciation for Indian Reservation Property has
`the potential to be a significant and meaningful incentive but only if it is enacted on a
`longer-term basis and appropriately targeted to encourage investment that would not
`otherwise occur. The Indian Employment Credit is too complex and has not been
`widely utilized by the Tribes. We would like to explore why the Clean Renewable
`Energy Bonds have not been allocated to any tribal government users. However, it is
`our understanding that the New Markets Tax Credit and Indian Coal Credits are
`considered to be effective incentives for economic and resource development.
`
`New Proposals
`
`We would also like Congress to consider incentives that tribally-owned enterprises
`could actually use, including the following:
`
` Payroll Tax Credit for On-Reservation Employment
`
` Energy Tax Incentives that Tribes could Utilize More Effectively than CREBs.
`
`
`3 available at: http://www.ncai.org/initiatives/partnerships-initiatives/ncai-tax-initiative/LNK-12-008_-
`_General_Welfare_Exclusion_Resolution.pdf.
`
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`NCAI and its partners look forward to working with Congress on these and other
`issues in the context of comprehensive tax reform.
`
`For further information regarding any of the topics discussed herein, please contact
`John Dossett, General Counsel or Derrick Beetso, Staff Attorney at (202) 466-7767.
`
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