Category: IRS

ESTATE AND GIFT TAXES
Proposed vs Current … a Heads-up!

It’s been in the press for months … the Democrats unveiling of the Build Back Better Act. Within its 881 pages are significant changes to the tax code with drastic impacts on current estate planning strategies and gifting rules. High tax bracket and wealthy taxpayers will be the most affected class of taxpayers … assuming the proposed revisions are passed in current form.

Again, please note that what follows is a brief summary of proposed legislation. As such it is very likely to be altered as negotiations work through the House Rules Committee and the House of Representatives before a final bill is presented to the Senate. So, there may not be an impact on current 2021 rules.

Proposed Estate & Gift Tax Revisions

• Federal estate tax exemption reduced from the 2021 amount of $11.7 million to $5 million effective January 1, 2022. (There are reports that this provision seems to be off the table. We’ll see.)
• Gift tax exemption reduced from the 2021 amount of $11.7 million to $5 million effective January 1, 2022. (To accommodate questions received, we’ll cover Gifting in more detail below.)
• Transfers of interests in a closely held entity … valuation discounts would be eliminated.
• Maximum Estate Tax Rate remains capped at 40 percent.
• Grantor Trusts established and funded before the enactment of the new law would be grandfathered.
• Eliminate or constrain the use of:
  • irrevocable life insurance trusts
  • Grantor Retained Annuity Trusts (GRATs)
  • Qualified Personal Residence Trusts (QPRTs), and
  • Grantor Charitable Lead Annuity Trusts (CLATs).

Gifting … Exclusions and Taxation

Here’s a recap of the 4 key points as they exist today in making gifts:

1. What does the IRS recognize as a gift?
2. What are the gift tax rules?
3. Who pays gift taxes?
4. How do givers gain?

Note: All the following refers to federal gift tax rules. There is no Virginia Gift Tax.

What’s a Gift?

The IRS defines a gift as the transfer of money, property or other assets by one individual to another while receiving nothing, or less than full value, in return. Any type of property may be considered a gift to recipients.

Some examples:

• Stocks
• Land
• Use of or income from property
• New car
• Sale of something at less than its full value
• Interest-free or below-market interest loan

The value of completed gifts, that exceed excludable amounts, may result in a gift tax. More on that in a bit.

Note: A gift is completed when the donor no longer has “dominion and control” over it. Making a completed gift forfeits asset ownership and control by the donor.

There are two time-lines affected by gift tax exclusions: annual and lifetime.

Annual Gifting Limits

This year single taxpayers may make annual tax-free gifts of $15,000 per recipient.

The IRS considers a gift made by a married couple from joint property to be given half from each spouse. That means married couples enjoy an exclusion of $30,000 annually per recipient.

Please note the emphasis on per recipient. That means that a donor can give anyone up to $15,000 in assets a year, free of federal gift taxes. Married couples could give away $30,000 annually to each of an unlimited number of recipients.

If you give more than $15,000 ($30,00 for married couples) in a year to any one person, you need to file a gift tax return. That doesn’t mean you have to pay a gift tax. It just means you need to file IRS Form 709 to disclose the gift.

Additionally, gifts to pay tuition or medical expenses are also free of gift tax. To qualify for this break, the donor must make the payment directly to the institution.

Lifetime Gifting Limits

The federal tax law provides for a lifetime gifting exclusion which sets the dollar limit of what you may gift during your lifetime. Again, the recipient or recipients are your choice.

Single taxpayers may now gift up to $5.49 million per recipient.

Married couples enjoy a lifetime tax-free gift limit of $11.7 million per recipient … $23.4 million combined.

Note: Gifts made that exceed the Annual Gifting Limits are subtracted from the donor’s Lifetime Gift exclusions.

Who Pays Gift Tax … Donor or Recipient?

The gift tax is only an issue for individuals that plan to gift very large amounts over their lifetime or will have big estates when they pass away. The reason … the gift tax exclusion is calculated on cumulative gift amounts

upon the death of the donor. Given the significant lifetime exclusion limits, the vast majority of Americans and their estates will never be faced with paying this tax.

Filing the gift tax return, IRS Form 709, discloses excesses of annual gifting limits. So, if you don’t gift anything in your life and don’t exceed the lifetime gifting limits, your whole lifetime exemption will apply against your estate when you die.

The person receiving the gift usually doesn’t need to report the gift. If you are a donor who is financially able and generous enough to use up your exclusions, you may indeed have to pay the gift tax … rates range from 18% to 40%.

Takeaways

The federal gift-tax exemption applies to the total of an individual’s taxable gifts made during life. Both the Annual and Lifetime Gifting Limits are substantial. The result is that relatively few American taxpayers are likely to exceed these amounts and be subject to the gift tax. That said, making gifts that don’t exceed the Gifting Limits can yield substantial estate tax savings … particularly if you keep at it for several years.

Note: If the revised Gift Tax exclusion were to pass as written, there will be no “clawback” for use of the current exclusion amounts if the donor passes away at a time when the applicable exclusion amounts have been reduced.

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CRYSTAL BALL GAZING TO THE PAST
2 Proposals for Possible Retroactive Capital Gains Tax Hike

As a Certified Public Accounting firm, Pearson & Co. primarily serves our clients in a two-fold fashion:

1.  A rear-view mirror assessment of tax-related activity, and
2. Forward-looking tax planning advice.

It’s important to note that all the above is conducted with a firm knowledge and understanding of the U.S. tax code for the tax year in question. Now, that frame-of-reference may be upended for upper-income taxpayers.

The following are two descriptions of proposed bumps in the capital gain rate retroactive for asset sales … one proposed by President Biden, the second more recently by the House Ways & Means Committee. We won’t speculate as to how either of those proposals may play out … just a heads-up for you to know what is being considered and how it may affect your taxes in 2021.

What Is the Capital Gains Tax?

Here’s a quick reminder. The capital gains tax applies to the profit from an investment that is incurred when the investment is sold. The emphasis is on “when the investment is sold”. At point of sale, profits (capital gains) are considered to have been “realized”, i.e. a sale price of the asset at a price higher than the original purchase price … often referred to as book value cost.

There is a further distinction between long-term and short-term capital gains. For our discussion we’ll focus on the former. Here’s a recap of this tax year’s current long-term capital gains rates.

While capital gains tax rates have fluctuated over time, they have always been a specific “known quantity” during each tax year. The current proposals point to a variance of what has been a given in past tax years.

Apparent Intent

Both Biden’s plan and that proposed by the Ways & Means Committee appear to seek wealthy Americans and corporations to pay higher taxes to help finance a $3.5 trillion budget that embraces multiple social spending programs. Included is funding for President Biden’s $1.8 trillion American Families Plan.

• Biden’s tax plan would impact long-term capital gains significantly by nearly doubling the rate for high-income investors.
• Experts agree that the Ways & Means Committee proposal is less dramatic than tax hikes proposed by President Joe Biden. As one source stated, “somewhat more taxpayer-friendly in some ways” and “a little less aggressive.” More detail in a bit.

Each proposal contains a retroactive “trigger-date” at which time the wished-for capital gains tax provisions would be initiated. An obvious question is, “Why a retroactive tax?”.

The purpose to make the tax retroactive is based on studies that show whenever a capital gains tax increase is announced, there is a rush by many investors to sell appreciated assets to realize tax savings. If a tax increase is structured so that the effective date already happened months ago, investors would clearly have no chance to unload assets at favorable tax rates before the new policy kicks in. So, a strategy to sell quickly before an anticipated new law takes effect is negated by the retroactive provision … if either proposal is enacted as currently worded.

The Proposals

Here’s a comparison of the key provisions of both proposals as they stand today.

Note: The 3.8% tax linked to the Affordable Care Act remains intact under both proposals.

Biden’s Proposal

President Biden asserts that rich taxpayers should pay as much on their stock sales and investment portfolios as they do on their income. Therefore:

• Increase the maximum income tax rate to 39.6% from its current 37%.
• Make the capital gains tax the same as the maximum income tax rate for taxpayers making $1 million or more annually.
• The new rate would go into effect retroactively on April 28, 2021 … the day the president formally presented his ideas to Congress.

Ways & Means Proposal

• Taxpayers who currently pay the 20% capital gains tax rate (see above illustration) would pay 25%.
• The new rate would go into effect retroactively on September 13, 2021 … the formal date of the bill’s introduction.
• Households earning more than $5 million pay an additional surtax of 3%.
• A transition rule provides that the preexisting statutory rate of 20% continues to apply to gains and losses for the portion of the taxable year prior to September 13, 2021.

In summary: Under Biden’s plans, millionaires would pay 43.4% … a 39.6% rate capital gains rate plus the 3.8% ACA-linked tax. Under the Ways and Means Committee proposal, a millionaire would pay 28.8% … a 25% capital gains rate, plus the 3.8% ACA-related rate. Households making more than $5 million would also have a 3% surtax, amounting to an effective 31.8% capital gains rate.

How Will American Taxpayers Be Affected

It’s clear from the foregoing that the overriding intent by legislators is to require wealthy Americans and corporations to pay higher taxes to help finance a proposed $3.5 trillion budget. While no similar story has been reported regarding the recent Ways & Means proposal, it is worth summarizing a recent Wall Street Journal article that indicates the Biden proposed retroactive capital gains tax increase may result in unintended consequences for the not-so-wealthy.

Paul Settle, a 64-year-old Kentucky man would see his savings cut in half by the proposal. Mr. Settle’s nest egg is five brick apartment buildings purchased the 27 years ago. Over the years, he has spent almost every day maintaining the grounds, repairing garbage disposals and collecting rent checks.

Mr. Settle pays himself about $75,000 a year. The idea was always to one day sell and retire off the proceeds. The President’s proposal would put the brakes to that plan.

So, the net effect of the proposal would have far-reaching effects for many American taxpayers. For example, consider homeowners (perhaps yourself) … who are a far cry from enjoying a $1 million plus income … but have profited from the surge in home prices in recent years. A home purchased 30 years ago that is today worth over $1 million could severely impact your retirement plans.

What’s Next?

Best guess is that enactment of either proposal will be a Congressional partisan battle … and likely receive little to no support from Republicans. If a final bill makes it to the Senate, Vice President Kamala Harris will need to cast the deciding vote in a 50-50 divided/balanced Senate … assuming all 50 Democrats are aboard with the measure.

And then if passed including the retroactive provision, the bill will most certainly be subject to major Constitutional scrutiny and debate.

Stay tuned!

SMALL BUSINESS OWNERS & TAX EXEMPTS ALERT!
Intent … Confusion … Clarification …Payoffs

The Employee Retention Credit (ERC) is an $80 billion dollars tax savings program that promises financial relief for hundreds of thousands of small and medium businesses as well as tax-exempt entities. The ERC, as part of the CARES Act offers tax credits to encourage employers to retain employees at the height of the COVID-19 pandemic in March 2020.

Regrettably, many of those benefit candidates are ignoring the program … to the detriment of employee retention and job creation. That triggers a major loss to willing workers who have been displaced or are about to be. Likewise, employers suffer when they are unable to maintain their pre-pandemic payroll which further impairs their success to recover from the financial ravages of C-19 and prevail as viable enterprises.

In this article, please consider the facts that likely are limiting employer participation in applying for the ERC:

• Misunderstanding congressional intent for the credit;
• Confusion as to qualification requirements and application procedures; and
• Clarification of status.

Congressional Intent

For Congress … it’s all about the jobs. The driving principle for adoption of the incentive by Congress was to help pandemic-impaired businesses and tax-exempts to retain jobs. Additionally, the intent was to provide a financial platform to expand the U.S. workforce by helping businesses across the board to recover and trigger job creation.

Confusion & Qualification

As noted above, the ERC was included last year as part of the CARES Act. Likewise, the Paycheck Protection Program (PPP) was enacted in that legislation as well. Confusion on the part of employers became an unintended consequence as many believed it was an either/or choice … ERC or PPP.

At inception of the CARES Act, the reality was that the programs were mutually exclusive … qualified employers were eligible to apply for either one, but not both. Revised legislation passed last December reversed that provision and allowed employers a more accommodating set of rules to access the benefits of both the PPP and the ERC.

That said, the PPP proved to be the more popular route for businesses to avail themselves of federal financial support. The chief attraction was the promise of loans becoming forgivable by the Small Business Administration. Additionally, most executives chose to deal with their banker and apply for the PPP rather than contend with the anticipated complexities of IRS compliance.

Expansion of the ERC has been extended twice … making it much easier for businesses and tax-exempts to qualify for increased benefits. Eligible employers can now claim a refundable tax credit against the employer share of Social Security tax equal to 70% of the qualified wages they pay to employees after December 31, 2020, through June 30, 2021.

For the third and fourth quarters of 2021, eligible employers claim the credit against the employer’s share of Medicare tax rather than its share of Social Security tax … (more on that in a bit).

Qualified wages are limited to $10,000 per employee per calendar quarter in 2021. Thus, the maximum ERC amount available is $7,000 per employee per calendar quarter, for a total of $14,000 in 2021.

A second area of qualification-confusion surfaced. Many business owners and tax-exempt managers incorrectly interpreted the rules. The first misconception was that to qualify an enterprise must have suffered a 50 percent reduction in revenues … not so. There are two alternate tests to qualify:

1. a revenue test, or
2. demonstration that your operating entity was significantly, negatively impacted by government order, e.g. a partial or full shutdown due to a government order at the federal, state, municipality, county or other local level authority.

With this knowledge of qualification criteria, hundreds of businesses and tax-exempt organizations have applied for and been approved for ERC assistance … under one or another of the above tests.

Where Things Stand at This Writing

Within the last few weeks, the IRS and the Treasury issued amplified guidance in Notice 2021-49 relating to various issues that apply to the ERC in both 2020 and 2021. The new notice explains changes made by the American Rescue Plan Act of 2021 to the employee retention credit that are applicable to the third and fourth quarters of 2021.

Note: The above guidance comes as the Senate is debating a bipartisan infrastructure package that would end the credit three months early, on Sept. 30. If passed as drafted, the infrastructure bill would render wages paid after Sept. 30, 2021, ineligible for the credit … except for wages paid by an eligible recovery startup business that began carrying on a trade or business after Feb. 15, 2020, had less than $1 million in annual gross receipts and meet several other conditions.

Additionally, the notice offers guidance on ERC related questions posed to the IRS regarding whether wages paid to majority owners and their spouses may be treated as qualified wages …a frustrating provision for some family-owned companies.

The National Conference of CPA Practitioners has issued a call to action requesting its members to petition Congress to remedy this interpretation. Specifically, NCCPAP registers its objection that under the guidance the wages of small-business owners and their spouses do not qualify for the ERC if either the owner or their spouse has any living relatives.

The open letter signed by the co-chairs of the NCCPAP tax policy committee states that enforcement of the current guidance text, … “may make the difference between closing the doors or enabling those businesses to remain open and continue employing their staff for years to come. The loss of these funds could destroy an already struggling small business at a time when our economy is trying to mount a recovery.”

The Treasury and the IRS announced it “will continue to monitor potential legislation related to the employee retention credit,”. Stay tuned … we’ll keep you posted!

If any of the foregoing seems unclear as to how it applies to your specific circumstances, please keep in mind that Pearson & Co. will help. Give us a call or drop an email.

AMERICAN RESCUE PLAN
Review, Resources, Child Tax Credit Emphasis

The American Rescue Plan was enacted in response to the families, workers and employers impacted by the ravages of the COVID-19 pandemic. In this article, we’ll highlight those elements of the Plan that are most likely to deliver meaningful relief for readers of the Pearson Perspective.

One of the key provisions is the Child Tax Credit which authorizes payments to eligible households on July 15. That date being imminent … special attention is dedicated to the Credit in this piece.

Click here if you choose to review the American Rescue Plan in detail.

CHILD TAX CREDIT

The credit amount has been increased from $2,000 to $3,600 for children under age 6, and $3,000 for other children under age 18.

Qualifying dependents has been expanded to include children 17 years old and younger.

Advance payments of one-half of the Credit will be made in 2021 via periodic payments from July 1, to December 31, 2021 … thus providing immediate financial assistance rather than waiting for tax filing in 2022.

Most people will receive their money via direct deposit. The IRS will also mail checks or deposit funds to debit cards.

Here’s a breakdown of maximum payments.

Note: The amount of the credit is determined by the child’s age on December 31, 2021.  Newborns and U.S. citizen children adopted in 2021 may qualify for the credit.

Income Qualifications

The Child Tax Credit is based on the taxpayer’s adjusted gross income. To qualify for the remaining half-payment next year the following 2021 AGI amounts will apply:

• Single taxpayers – $75,000 or less;
• Head of household – $112,500 or less;
• Married filing jointly – $150,000 or less.

To accelerate financial relief to taxpayers, the IRS will review your 2020 income tax return to determine qualification. For those who have not yet filed for 2020, the IRS will accommodate by basing qualification on the 2019 return. In the event a taxpayer’s 2021 income exceeds the qualifying amounts, any excess credits will be refunded to the Treasury when filing their 2021 return.

Important! There is a phaseout provision. For every $1,000 a taxpayer earns over the AGI limit will reduce their credit by $50. That can be significant. For example, a single filer declaring an AGI of $85,000 will forfeit $500 per child.

Your Choice of When to Receive Payments

Beginning immediately, taxpayers may access two IRS portals to choose to receive checks monthly or opt for a single payment in 2022.

One portal will support people who don’t usually file an income tax return to provide information to receive payments. The other of the two portals will provide families the facility to update their info if their circumstances have changed … and to choose monthly payments in 2021 or a lump sum next year.

Accessing the Update Portal: The IRS says to access the Child Tax Credit Update Portal, a person must first verify their identity. If a person has an existing IRS username or an ID.me account with a verified identity, they can use those accounts to easily sign in. People without an existing account will be asked to verify their identity with a form of photo identification using ID.me, a trusted third party for the IRS. Identity verification is an important safeguard and will protect your account from identity theft.

For those qualifying taxpayers that choose advance monthly payments, here’s what to expect.

Child Tax Credit Payments Timeline

Note: The amount of tax you owe when you file your 2021 tax return next year will be reduced by the credits you enjoyed this year … or increase your tax refund if applicable.

What If You Received Too Much?

When you file your 2021 tax return next year, you may find that you received more money than you were entitled to. The payment amount is based on an IRS estimate. Overpayments may result in a smaller tax refund next year or a larger tax bill.

And If You Don’t Qualify?

The new Act does not negate the Child Tax Credit provided for in 2017 under the Tax Cuts & Jobs Act. The existing Child Tax Credit is still available!  Single taxpayers with an AGI of $200,000 or less or taxpayers filing married with an AGI of $400,000 or less will still qualify for a $2,000 tax credit for each child under age 17.

ECONOMIC IMPACT PAYMENTS

Those eligible will automatically receive an Economic Impact Payment of up to $1,400 for individuals or $2,800 for married couples, plus $1,400 for each dependent. Unlike the prior rounds of Economic Impact Payments, families will get a payment for all their dependents claimed on a tax return, not just their qualifying children under 17.

Normally, a taxpayer will qualify for the full amount if they have an adjusted gross income of up to $75,000 for singles and married persons filing a separate return, up to $112,500 for heads of household, and up to $150,000 for married couples filing joint returns and surviving spouses. Payment amounts are reduced for filers with incomes above those levels.

HOMEOWNER ASSISTANCE FUND

Nearly $10 billion is allocated to provide relief for America’s most vulnerable homeowners. Applicable funding uses include delinquent mortgage payments to minimize foreclosures, alleviate emergency shelter capacity, and mitigate potential COVID-19 infections.

EMPLOYEE RETENTION CREDIT AND PAID LEAVE CREDIT PROGRAMS

The Employee Retention Credit for small businesses is extended through December 2021. This permits businesses who have suffered revenue decline or closing due to C-19 to offset their current payroll tax liabilities by up to $7,000 per employee per quarter … up to $28,000 per employee for 2021.

Paid Leave Credits for small and midsize businesses that offer paid leave to employees due to illness, quarantine, or caregiving are extended through September 2021. Businesses can take dollar-for-dollar tax credits equal to wages of up to $5,000.

UNEMPLOYMENT COMPENSATION

Federal income taxes are waived on the first $10,200 of unemployment benefits received in 2020 by middle- and lower-income taxpayers … whether received by workers through federal unemployment programs as well as those who received traditional benefits through their state unemployment insurance fund.

You’ll likely have questions regarding your specific circumstances, so be sure to give us a call or drop an email.