December 6, 2021

Bipartisan Infrastructure and Jobs Act (BIJA)

Bipartisan Infrastructure and Jobs Act (BIJA) Tax & Business

In early November 2021, President Biden signed the Bipartisan Infrastructure and Jobs Act (BIJA) into law. While the major tax provisions in the Biden Administration agenda will be contained in the Build Back Better Act (not yet enacted), the Infrastructure bill does contain some tax provisions.

Early Termination of the Employee Retention Tax Credit (ERTC)

The BIJA terminates the ERTC for most employers. This credit was originally set to expire as of December 31, 2021. As described in the new Act, the credit would not be allowed for any wages paid after the third quarter of 2021 other than for a Startup Recovery Business. A Startup Recovery Business is one that:

  • Began conducting any trade or business after February 15, 2020; and
  • Which had average annual gross receipts not exceeding $1 million; and
  • Does not otherwise qualify for the ERTC either by full or partial closure or significant decline in gross receipts requirements.

An early termination of the credit may require employers who reduced employment tax deposits to repay these amounts. The IRS will provide notification of a penalty waiver procedure for this situation.

Information Reporting for Brokers for Digital Assets

The bill contains a controversial provision which produced considerable debate prior to passage that requires any “broker” to report digital asset transfers. The Act’s language contains a rather broad definition of a “broker.” Failure to report subjects the taxpayer to civil penalties without reasonable cause.

Prior to passage, the cryptocurrency industry sought to have the Act’s language modified. However, no amendments were made.

The Treasury will need to issue further guidance with respect to this provision, which applies to returns and statements required to be filed and furnished after December 31, 2023. The delayed effective date likely means that there may be legislative changes to this rule in the future.

Modification of Pension Smoothing Rules

The practice of “pension smoothing” permits the use of higher future interest rates for determining a company’s future pension liability. The interest rate stabilization table issued within the Internal Revenue Code, which was scheduled to expire at the end of the 2025 plan year, is now extended for another five years.

This rule is expected to reduce the level of pension plan contributions and, correspondingly, reduce deductions in determining taxable income. This should generate higher tax revenue.


Most of the provisions within the Bipartisan Infrastructure and Jobs Act include details of new federal investments in America’s infrastructure, encompassing bridges and roads, broadband, water and energy systems. The Act was legislated to ensure safe travel and the efficient transport of goods and produce across the country. We expect additional tax legislation in other future bills, including the Build Better Back Act. Your Marcum tax advisors will continue to keep you apprised as these and other tax initiatives advance through the legislative process.

2021 Year-End Tax Guide