On Thursday, the U.S. Senate pushed through comprehensive immigration bill, Border Security, Economic Opportunity, and Immigration Modernization Act, S. 744 with a 68-32 vote.
I’ll be honest: I haven’t read the whole thing yet. It’s a whopping 1,200 pages as passed. If you’re willing to wade through it all, you can find it here (a little shorter since it’s formatted for printing):
Bill Text – 113th Congress (2013-2014) – THOMAS (Library of Congress) by Kelly Phillips Erb
But I did read the part that most folks care about: Section 2101, Registered Provisional Immigrant Status. That’s the section that outlines the so-called “pathway to citizenship” for immigrants. I, of course, went straight to the tax provisions and was surprised to find that, despite the debate, the Senate appeared to punt on taxes. The section amends Chapter 5 of title II (8 U.S.C. 1255 et seq.) by inserting a new section 245B. At subparagraph (b) of that section, you’ll find the eligibility requirements and at subparagraph (c), you’ll find the application requirements. That’s where the good stuff – the tax piece – is at. It says:
An alien may not file an application for registered provisional immigrant status under paragraph (1) unless the applicant has satisfied any applicable Federal tax liability.
Sounds good, right? Comprehensive? Not so fast. Applicable federal tax liability is defined at the next subparagraph:
In this paragraph, the term `applicable Federal tax liability’ means all Federal income taxes assessed in accordance with section 6203 of the Internal Revenue Code of 1986.
The Senate seems to have embraced the original proposal which did not require immigrants to prove a tax history. There does not appear to be an obligation to show evidence of prior filings or payments or settle up back taxes. It appears that the only obligation is to pay taxes which have already been assessed – and of course, to remain compliant moving forward. For those purposes, assessed taxes are those not that you potentially owe but those that the Internal Revenue Service has determined (or agreed) that you have to pay.
Specifically, section 6203 of the Internal Revenue Code, as referenced in the bill, says:
The assessment shall be made by recording the liability of the taxpayer in the office of the Secretary in accordance with rules or regulations prescribed by the Secretary. Upon request of the taxpayer, the Secretary shall furnish the taxpayer a copy of the record of the assessment.
So, if you have an outstanding recorded liability in your name, you’ll be obligated to pay up. This is a change from the current rules for applying for residency or citizenship status which makes evidence of complete tax compliance a criteria for legal entry.
As to proof? The bill goes on to say:
An applicant may demonstrate compliance with this paragraph by submitting appropriate documentation, in accordance with regulations promulgated by the Secretary, in consultation with the Secretary of the Treasury.
And there you go. That’s it in a nutshell. There are some minor provisions regarding employer obligations and the like, as well, but that’s the significant piece.
I’ve written before that I appreciate the challenges facing Congress in terms of how to address the outstanding tax issues. I agree that it would be a near impossibility to require previously undocumented persons to show that they had filed and paid taxes. There are simply no records: we call them undocumented workers for a reason. However, to place the responsibility for resolving the tax issues on the back of the Internal Revenue Service is incredibly wrong-headed. And that’s the real outcome here.
As to those tax-related amendments offered by Sen. Orrin Hatch (R-UT) and his colleagues that I mentioned earlier? They failed to make it to the final bill. Those amendments ran the gamut but would have basically required immigrants to show they have paid all federal income and employment taxes and related interest and penalties for the entire time the applicant has lived in the U.S. That did not happen.
As a nod to how monumental this bill is, Vice President Joe Biden presided as head of the Senate for the vote. Senators voted from their desks, calling out their votes. You can see who voted yes and who voted no here. It’s worth noting that the entire Republican Senate leadership voted against the bill which was put forth as a result of the “Gang of 8.” The Gang of 8 includes Sen. Michael Bennet (D-CO); Sen. Richard J. Durbin (D-IL); Sen. Jeff Flake (R-AZ); Sen. Lindsey Graham (R-SC); Sen. John McCain (R-AZ); Sen. Bob Menendez (D-NJ); Sen. Marco Rubio (R-FL); and Sen. Chuck Schumer, (D-NY).
Don’t expect the bill to get through the House unscathed: it doesn’t have the votes. Sen. John McCain (R-AZ), however, had these words for his colleagues in the House:
We ask for your consideration and we stand ready to sit down and negotiate with you.
I’ll post any updates here. Keep reading!
