United States: Tribal Tax Parity Legislation Gains Ground In Congress

Kathleen M. Nilles is a partner, Nicole Elliott, Kenneth W. Parsons are attorneys and Kayla Gebeck is a public affairs advisor in the Washington D.C., office of Holland & Knight.

In the past month, members of Congress have introduced two important bills that promote parity for tribal governments and their tribal council members.

  • The Tribal Social Security Fairness Act would allow tribal governments, like state and local governments, to "opt-in" to Social Security coverage for their otherwise excluded tribal council members.
  • The Tribal Tax and Investment Reform Act would provide parity for tribal governments in the areas of tax-exempt financing, excise tax exemptions, employee plan administration, tribal charity funding, child support enforcement and adoption tax credit determinations.  

Below is an overview of the bills.

FICA Tax Parity Legislation Introduced in Both Houses

Under current law, elected tribal council members (i.e., legislative officials) are unable to contribute to or receive social security benefits with respect to their compensation as council members. The Internal Revenue Service (IRS) has consistently held that amounts paid to tribal council members are considered taxable income under section 61 of the Internal Revenue Code, but do not constitute "wages" for the purpose of the Federal Insurance Contributions Act (FICA). As a result, tribal council members are required to pay income tax on such amounts but do not have the option to pay into and receive benefits from the Social Security program. A legislative fix is needed to correct this inequity.  

Understanding the frustration that tribal leaders face, Sens. Maria Cantwell (D-Wash.), Patty Murray (D-Wash.) and John Thune (R-S.D.) introduced S.1309, the Tribal Social Security Fairness Act, on June 7, 2017. The bill would allow tribal council members (including tribal council chairmen) to contribute to, and receive, social security benefits. The following day, Reps. David Reichert (R-Wash.), Suzane DelBene (D-Wash.), Derek Kilmer (D-Wash.) and Tom Cole (R-Okla.) introduced an identical version, H.R.2860. Note that under the legislation, an election to contribute must first be made by the tribal council as a whole, and not by individual council members.

The Tribal Social Security Fairness Act is widely supported by the National Congress of American Indians and other organizations. Although the Trump Administration has not yet officially offered its support, staff from the U.S. Social Security Administration and the IRS informally advised staff of the legislative sponsors during the drafting of the bills. The legislation is not expected to have a material impact on federal revenues. If the Tribal Social Security Fairness Act is included in tax reform or in a separate social security reform package, there is a good chance that it will be enacted.  

Tribal Tax and Investment Reform Legislation Introduced in House

State and local governments often use federal tax and financing tools to promote economic development, increase employment opportunities and build important infrastructure in order to address their citizens' needs. Many of these tools are unavailable to tribal governments or are difficult for tribal governments to utilize because of restrictive compliance and reporting requirements. For example, the "essential governmental function" test, which only applies to tribes, puts the tribes at a distinct disadvantage in issuing tax-exempt bonds. The test also prevents tribes from establishing and maintaining flexible pension and employee benefit plans.

In response to input from tribal leaders on these barriers to development, several members of the House Ways and Means Committee, the Chairman and Ranking Member of the House Subcommittee on Indian, Insular and Native American Affairs, along with the Co-Chair and Vice-Chair of the Native American Caucus have banded together to advance five important tax provisions that will put tribes on a more level playing field with state and local governments.

Reps. Ron Kind (D-Wis.), Lynn Jenkins (R-Kan.), Suzan DelBene (D-Wash.), David Reichert (R-Wash.), Tom Cole (R-Okla.), Norma Torres (D-Calif.) and Doug LaMalfa (R-Calif.) on June 29, 2017, introduced H.R.3138, the Tribal Tax and Investment Reform Act. The legislation amends the Internal Revenue Code to treat tribal governments in the same manner as state governments with regard to:

  • bond issuances
  • excise taxes
  • treatment of pension and employee benefit plans maintained by tribal governments
  • treatment of tribal foundation and charities
  • providing access to the Federal Parent Locator Service and tax refund offset program for purposes of collecting child support
  • determination under the adoption tax credit whether a child has "special needs"

The enactment of these provisions will reinforce the governmental status of tribes, facilitate equal access to federal tax and financing tools that state and local governments already enjoy, and allow tribes to make important investments in their own communities.

The U.S. Chamber of Commerce and the National Congress of American Indians have consistently expressed their support for the bill. However, a Senate companion bill has yet to be introduced. Advocates hope to generate sufficient support among the U.S. Department of the Treasury and both houses of Congress to have the provisions added to a consensus tax reform package that is being worked on by Republican leadership. One potential hurdle could be the size of the expected loss of tax revenue associated with excise tax exemptions, the more relaxed tax-exempt financing rules and the ability of tribal plans to achieve exemption from certain tax rules applicable to private employer plans. However, if the revenue loss scored by the Joint Committee on Taxation proves to be too high, the scope of the bill's provisions could be cut back.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.