Tax Gap: Should the 3% Withholding Requirement on Payments to Contractors by Government Be Repealed?

James M. Bickley
Specialist in Public Finance

The Internal Revenue Service (IRS) defines the gross tax gap as the difference between the aggregate tax liability imposed by law for a given tax year and the amount of tax that taxpayers pay voluntarily and timely for that year. It defines the net tax gap as the amount of the gross tax gap that remains unpaid after all enforced and other late payments are made for the tax year.

On January 27, 2005, the Joint Committee on Taxation (JCT) published a report titled Options to Improve Tax Compliance and Reform Tax Expenditures. The JCT report identified many options, including several to increase withholding. The first option was titled “Impose Withholding on Certain Payments Made by Government Entities.” The JCT argued that the IRS had extensively and successfully used withholding and information reporting to improve tax compliance. Furthermore, much empirical data supported the use of withholding and information reporting to reduce the tax gap. On May 16, 2006, President George W. Bush signed the Tax Increase Prevention and Reconciliation Act of 2005 (P.L. 109-222), which included Section 511: “Imposition of Withholding on Certain Payments Made by Government Entities” (the JCT option). This section required 3% withholding on payments for goods and services to contractors made by all branches of the federal government and its agencies and all units of state and local governments, including counties and parishes. Local governments with less than $100 million of annual expenditures were excluded from the withholding requirement. The section also imposed information reporting requirements on payments that are subject to withholding. This section was a revenue offset and was scheduled to take effect on January 1, 2011.

Substantial opposition developed to this withholding provision. Critics argued that the public and private compliance costs were unacceptable, existing IRS enforcement tools were adequate, and privacy would be reduced. The American Recovery and Reinvestment Act of 2009 (P.L. 111-5) delayed the implementation of the withholding provision until January 1, 2012. On May 5, 2011, the IRS issued regulations that further delayed the implementation of the withholding provision until January 1, 2013.

In the 112th Congress, three bills to repeal the Section 511 withholding provision have been introduced: S. 89, S. 164, and H.R. 674. In addition, S.Amdt. 405 to S. 782, Economic Development Revitalization Act of 2011, would repeal the withholding provision.

The IRS has attempted to address concerns about compliance costs by proposing a $10,000 threshold on government purchases from contractors and increasing the number of exemptions. Furthermore, there is the possible issue of finding a replacement revenue source. Currently, verifiable data do not exist to objectively compare the costs with the benefits of implementing the 3% withholding requirements.

On August 23, 2011, House Majority Leader Eric Cantor issued a press release, which stated that in September 2011, the House “will repeal the ‘3 percent withholding rule,’ which serves as an unnecessary tax increase on those who do business with the government.... ”

On September 12, 2011, President Obama proposed the American Jobs Act of 2011, which included a section that would delay implementation of the withholding provision until after December 31, 2013. On September 13, 2011, at the request of President Obama, Senate Majority Leader Harry Reid introduced S. 1549, American Jobs Act of 2011.


Date of Report: September 21, 2011
Number of Pages: 17
Order Number: R41924
Price: $29.95

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