Recent Tax Law Changes Make Income Tax Planning More Important Than Ever

January 23, 2018
Recent Tax Law Changes Make Income Tax Planning More Important Than Ever

One universal and challenging objective in wealth preservation planning is reducing taxes.  Recent tax law changes have in many cases shifted the focus of such planning from estate and gift tax reduction to income tax reduction.

As part of the American Taxpayer Relief Act of 2012, Congress amended the Federal tax law, effective January 1, 2013, to establish a permanent unified Federal estate and gift tax exemption of $5 Million for each person.  This exemption was indexed for inflation, and in 2017 an individual could shield up to $5.49 Million of assets from Federal estate and gift taxes. This tax law also made permanent a “portability” feature which allows a surviving spouse to elect to use his or her deceased spouse’s unused exemption.  This gave a married couple the potential to protect up to $10.98 Million from Federal estate and gift taxes in 2017.  The Federal estate and gift tax rate is currently 40% for any portion of the estate exceeding the available Federal estate tax exemptions. There is an unlimited exemption from the Federal estate and gift tax for assets passing from one spouse to another (either outright or in trust) and for assets passing to charitable organizations.

The Tax Cuts and Jobs Act of 2017 (TCJA) has kept the current estate and gift law in place, but has now approximately doubled the estate and gift tax exemption to $11.18 Million in 2018 for each person, and $22.36 Million in 2018 for a married couple. This exemption will continue to be indexed for inflation.  However, this doubling of the exemption “sunsets” on January 1, 2026, reverting to the pre-2018 exemption levels, as indexed for inflation.

TCJA provides for some people a window of opportunity for gifting due to this significant expansion of federal estate and gift tax exemption at least until the end of 2025.  A person (the donor) can use all or any portion of his or her exemption by making gifts outright to or in trust for the benefit of the donor’s descendants or any other beneficiaries.  Such gifts will correspondingly reduce the amount of the exemption that will remain available upon the donor’s death to shelter assets in his or her estate from estate tax.  Making gifts during lifetime can keep any future appreciation on the gifted assets out of the donor’s taxable estate, and in this manner could save substantial estate tax.

However, as a result of the recent changes to the estate and gift tax law, planning for these taxes is no longer relevant for more than 99% of all taxpayers. Income tax planning is now more important than ever for many more people, including those with modest estates.  Income taxes for most individuals have not been significantly reduced by TCJA.  The top long term capital gain rate of 20% has not been changed.  In addition, the 3.8% Medicare surtax on net investment income which went into effect in 2013 still remains in effect.

In many cases, income tax planning focuses on the adjusted basis of a person’s assets.  The adjusted basis is the original cost of an asset which is then adjusted for various tax-related items.  Such adjustments include increases for the cost of improvements to property, increases for purchase and selling costs, and decreases for depreciation and amortization, where applicable.  In addition, the basis in stock, partnership interests and other ownership interests in certain closely held businesses is adjusted up and down annually based on the amount of any distributions made from the business to the owners, taxable income or losses of the business passed through from the business to the owners, and certain other tax events occurring in the business during the year.

The amount realized from a sale of an asset is generally an amount equal to the total consideration given for that asset, less the seller’s adjusted basis in the asset. If the difference is positive, then the amount realized is a gain. If the difference is negative, the amount realized is a loss.  Taxable gain upon the sale of an asset can be reduced if that asset has a high adjusted basis at the time of sale.

For lifetime gifting of an asset, the general rule is that the adjusted basis of the donor carries over to the person receiving the gift (the “donee”), subject to certain exceptions.  One exception to the general rule is that if the basis is greater than the fair market value of the asset at the time of the gift, then, for the purpose of determining loss on the future sale of the asset, the basis must be adjusted to the fair market value at the time of the gift.  The effect of these rules is that any unrealized gain in the gifted asset will be taxed to the donee when the asset is sold, but unrealized losses are lost to both the donor and donee. The donor’s accumulated depreciation, where applicable, on a gifted asset carries over to the donee.

Upon death, the general rule for basis is different.  The basis of property which is inherited gets “stepped up” to the then current fair market value of such property on the date of death (subject to certain exceptions).  This increase in basis can reduce or eliminate capital gain tax liability on subsequent sale transactions by heirs, and can also provide heirs with a larger basis for depreciation and amortization deductions going forward.

For example, assume that a father who is seriously ill owns rental real estate worth $500,000 which has an adjusted basis close to zero as a result of depreciation of the property over the years.  He is thinking about gifting the property to his son.  This plan would probably not be a good idea.  If he follows through with the gift, the father’s zero basis in the property will carry over to his son.  On the other hand, if the father holds on to the property until his death, and passes the property to his son under his will, the son will receive a new “stepped up” basis in the property equal to the fair market value at the time of father’s death.  A stepped up basis will give the son the ability to receive valuable depreciation deductions against his income if he holds on to the property, and will allow the son to sell the property after father’s death with little or no capital gain tax liability.

Individuals who are no longer subject to estate and gift taxes may have current estate plans that are still focused on saving estate and gift taxes, and are not designed to obtain a stepped up basis to save income taxes.  Existing plans should be reviewed and updated as soon as possible to be consistent with the new tax law.  The increase in the estate and gift tax exemptions does not alleviate the need for proper and careful estate planning for everyone to assure that property is preserved and passes to the appropriate beneficiaries in the appropriate manner.

Our firm can work with you to review and update your current estate plan and to assure that proper provisions are in place to meet your needs and goals.  Wealth preservation planning can involve a number of areas of law, including, estate law. taxation, business law, litigation, asset protection planning, real estate law and divorce law.  HRMM&L takes a multi-disciplinary approach to wealth preservation planning involving attorneys with expertise in a number of different areas of law.  Please contact our office if you have any questions or want to learn more about our capabilities in this area.

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