WASHINGTON, DC—Congress is on a roll, at least as far as the commercial real estate industry is concerned. Earlier this week the House of Representatives introduced a bill that would allow states to collect taxes from online retailers –- a measure very dear to the hearts of the brick-and-mortar retail industry. (Not so much the industrial sector, though, which has been the beneficiary of the increased e-commerce flows, but that sector is flourishing for many reasons and is not likely to be too much affected).

Then, earlier this month Senate Judiciary Committee Chairman Chuck Grassley and ranking member Senator Patrick Leahy introduced bipartisan legislation to reauthorize and reform the EB-5 Regional Center program. The measure may not check off every box for the CRE community, but then again, it is still early in the process.

Last month Congress also took off the table the source of perennial worry for the industry: carried interest, as in, there won't be any action on the subject until 2017. So said House Ways and Means Committee Chairman Paul Ryan, R-Wis. "That is on the individual side of the code, so it's not something that we're looking at right now," he said.

And in February, the Senate Finance Committee approved a part of the reform measure to the Foreign Investment in Real Property Tax Act, doubling the FIRPTA free investment that a foreigner can make in a publicly traded REIT to 10%.

So what's left? Well, there is the sorry state of the nation's infrastructure -- which, in fact, was the subject of a hearing on Wednesday. House Ways & Means Committee explored long-term funding solutions for the Highway Trust Fund, whose latest funding patch expires July 31.

One suggestion was put forth by The Real Estate Roundtable as part of a coalition of business and labor interests: why not use a liberated FIRTA to help make the necessary investment?

In a letter submitted for the record, the coalition said the 1980 law "is a major hurdle for the foreign investor seeking to invest in US infrastructure projects." A similar letter is being submitted to Senate tax-writers for their scheduled HTF hearing on Thursday.

A reformed FIRPTA could "spur domestic real estate investment, create jobs and help provide the capital we need to rebuild the nation's crumbling infrastructure," said Roundtable President and CEO Jeffrey D. DeBoer, in a prepared statement.

The letter noted that passive foreign investors could play a significant role in financing public-private partnerships for ports, bridges, airports, tunnels, toll roads, light rail, freight rail, and other income-producing infrastructure assets.

There plenty examples around the world of this being done, it also said.

"Pooled and syndicated capital is already being deployed in infrastructure projects through infrastructure funds organized as partnerships. REITs are another model that has been used with some success for infrastructure investment. Nonetheless, the United States is far behind other regions of the world in harnessing private investment for infrastructure development."

Will Congress listen? Who knows, but its recent track record has clearly been positive. There is a new energy in the law-making body, one political observer tells GlobeSt.com, in the run up to the presidential elections.

But while that energy could very well translate into some discrete wins such as an online sales tax measure or FIRPTA, it is debatable whether it can overcome the extremely complicated, well-entrenched and grossly underfunded state of infrastructure. Then again, discrete wins could well be applied in this area too – and as the Real Estate Roundtable has helpfully pointed out, an updated FIRPTA could further national interests by addressing at least some of these projects.

EB-5 too, it should be added. Last month, when the Real Estate Roundtable released its quarterly "Sentiment Index", which showed an increasing sense of optimism about industry growth and market conditions, DeBoer didn't miss a beat as he turned the conversation to policy.

"Another common-sense policy step to attract foreign investment in job-creating projects would be to reauthorize the EB-5 "immigrant investor" program that is scheduled to expire in September," he said at the time.

Instant Insights /

Coalition Gives Congress Another Reason to Consider FIRPTA

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