CRUCIAL 2013 INCOME AND OTHER TAX PLANNING CONSIDERATIONS – IT MAY ALREADY BE TOO LATE TO GET STARTED
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CRUCIAL 2013 INCOME AND OTHER TAX PLANNING CONSIDERATIONS – IT MAY ALREADY BE TOO LATE TO GET STARTED
2012 will be a historic year for both the United States and tax planners.
We are today sitting at the cusp of one of the greatest income and estate tax increase events ever legislated, as the result of the December 31, 2012 scheduled closure of both the Bush 2001 tax cuts and the Obama/Republican compromises and legislative mis-mash that resulted in no estate tax for those “fortunate” enough to die in 2010 and a $5,000,000 and then $5,120,000 gift and estate exclusion for 2011 and 2012 along with portability to apply where a spouse dies without using his or her entire $5,120,000 allowance, and the unprecedented extension of unemployment benefits along with a reduction of employee paid employment taxes from 6.2% to 4.2%.
What a storm that we have been navigating, and for the wealthy we have only until December 31stto make major moves that can enable precious assets to be brought to safe shore before the tsunami of estate, gift, income, and the new Medicare tax are scheduled to hit.
Of course, what actually happens will depend upon which party places its presidential contender in office and reaches majority control in the House and/or the Senate. There are many close races, and an urgent need for the parties to work together after the election to assure fiscal sanity and predictably for financial markets and income earners.
We see 4 main possibilities that may occur as the result of the elections and a continually challenged economy and budgetary situation for the U.S.:
1. A Democratic Party Sweep. Barack Obama and Democratic candidates in the House and Senate have substantial success in the elections and are able to bring the estate tax to a $3,500,000 per person exemption on death and possibly only a $1,000,000 lifetime gifting exemption, along with income tax hikes and the 3.8% Medicare Tax hits for those able to earn $250,000 or more (or $200,000 if they are single).
2. A Republican Party Sweep. Mitt Romney and the Republican candidates for the House and Senate enjoy a significant victory and are able to roll all Bush tax cuts and the $5,120,000 estate and gift tax exemptions going forward to the relief of the wealthy and those who believe that the monies that would otherwise be taken in taxes should be left in the economy to enhance the chances of economic recovery, notwithstanding significant debt.
3. No Sweep but the Parties Work Out Their Differences. The election is close and we have a situation where it will take cooperation between significant numbers of Democrats and Republicans to make changes to the tax system.
Even as difficult as it has been to have Democrats and Republicans work together in the past 4 years, there must be some degree of support for the proposition that the public is sick and tired of watching our political process cause tax and financial uncertainty for both middle and upper class voters.
Even the President and the members of the House and the Senate who were in office in late 2009 were able to put together the compromise package that brought about the 2-
4. No Sweep and the Parties Do Not Work Out Their Differences. Alternatively, there may be legislative deadlock and no significant compromise so that wealthy and successful taxpayers find themselves unable to continue to pass significant wealth onto family members as easily as they have been able to in 2011 and 2012, and a harsh reality of significantly higher income tax rates will have to be faced and lived with.
What do we tell clients in the meantime, besides be flexible and call me after November 11th, when at least some of the tea leaves will be in formation?
1. Complete use of the $5,120,000 gift allowance in whatever form possible, and keep in mind that valuation discounts may not be available after 2012 based upon the Obama proposals.
2. Consider the use of GRATs, which may also not be around in their present form after 2012.
3. Make your hard decisions about whether the client is financially comfortable placing assets permanently outside of his or her use and benefit or whether a trust with discretionary benefits for the Grantor should be established in a creditor protection jurisdiction and possibly modified a few years up the road when more information is available.
4. Use formula transfer clauses or formula remainder to charity clauses both in transfer documents and in trust agreements as and when possible before these are legislated out of existence.
5. Be ready to unplug great-
6. Installment sales using low interest notes could be the play of the century where a grandfathered defective grantor trust is involved.
7. Take Capital Gains Now. If you have thought about doing a transaction that might trigger capital gains, get it done! 15% is a heck of a lot lower than 20% or 23.8%.
This can go beyond traditional sale transactions. For example, a professional who owns his or her own C Corporation and has been thinking about moving the practice to a new S Corporation might want to do this before year-
8. Also, if it seems most likely that ordinary income will be taxed at 39.6% as opposed to 35%, why not trigger more income for 2012 by having operating companies factor or otherwise transfer their accounts receivable in order to trigger gain if they are on the cash method of accounting. A 4.6% reduction in the tax rate constitutes a 11.62% tax savings, which may certainly be worthwhile.
And if this happens in a C Corporation that will distribute the monies to key shareholders as compensation subject to the extra .9% employee’s share tax, the savings is based on a 5.5% reduction in tax rate constitutes a tax savings of 13.58%.
9. Year end planning. Prior practices that involve paying as much in expenses as possible and delaying the active collection of accounts receivable may be reversed by taxpayers who want to maximize income in 2012 to reduce what they will pay at higher rates in 2013. So get those accounts receivable in and deposited and pay expenses in the normal course for December if rates are going up.
It might also be best to put off paying real estate taxes until 2013, and to delay charitable contributions as well. Next year appreciated investment assets that a client is not inclined to sell this year may be best held under a long term charitable remainder trust that can pay 90% of its overall value to the Grantor and facilitate charitable contribution deductions and deferral of tax on the sale of the investment.
10. Electing Fiscal Years for Estates and for Revocable Trusts where the Grantor has died, or for New Complex Trusts or C Corporations. A fiscal year ending in November 30, 2013 should be taxed under the 2012 rates, and may result in avoidance of the 3.8% Medicare Tax for beneficiaries who would otherwise be subject to this for income distributed up through November 30, 2013.
While it would be most efficient to wait until we know or can better guess which of the above four possible events will occur, we will only have approximately seven weeks when election results come in (assuming that the election does not have to be decided by the U.S. Supreme Court like it was in 2004), which will not be enough time for the vast majority of advisors to get with the majority of their clients, given other challenges that already exist for year-
11. Fortunately, most investment decisions can wait until 2013, although the financial services industry will doubtless do its best to make sure that clients and potential clients are well prepared to make investment changes.
On the other hand, clients who know that they are in the highest brackets and will have the need for cash to be withdrawn from variable annuities, IRA’s and non-
12. Budget, Budget, Budget. A good many clients will have to reduce expenses to a great extent in order to make ends meet if taxes rise and income cannot increase sufficiently to offset this.
Clients can be encouraged to put off large expenses and committments and to begin thinking about how they can reduce their expenses and business and personal overhead in order to enhance personal savings or reduce the need to earn beyond their comfort zone whether or not the tax increases come out as high as they may.
13. Complex trusts may become more popular than defective grantor trusts where beneficiaries are in a lower income tax bracket. Consider using multiple trusts so that one or more can be defective and one or more can be complex. The complex trust can give each beneficiary enough income to bring him or her up to the higher brackets in order to make use of the lower brackets.
14. If the Democratic Party takes a sweep, then “Estate Tax Planning for Those Who Hoped They Would Never Need It” will be en vogue for anyone who may leave more than $1,000,000 –
This would take us back to funding irrevocable life insurance trusts and engaging in more aggressive annual gifting situations. The gift tax allowance should be $14,000 per person per year next year.
15. If the estate tax goes away, then there is time to concentrate on things like:
tuning inheritance planning.
- Elective share planning.
- Homestead planning.
- Trying to make children self-
- Creditor protection planning
16. Marry a trophy spouse with big NOLs (net operating losses), who is a real estate professional (if you own rental property) who has never used his or her $5,120,000 exemption, is self supporting, doesn’t have children by a prior marriage, and has few assets that would reduce portability benefits.
17. Consider delaying charitable contributions to 2013 when the government will subsidize them to a much greater degree based upon a 39.6% tax rate and possible reduction of the 3.8% Medicare tax for charitable donors.
Charitable remainder trusts may also avoid the 3.8% Medicare tax next year.
18. A list of 34 possible income tax strategies from our book The Essential Estate Planning Guide to the 2013 Income & Estate Tax Increases is as follows:
Planning Tip #1 Be prepared for the marriage penalty in 2013
Planning Tip #2 It may be best to trigger or receive income in 2012
Planning Tip #3 Marry someone who has large capital loss carryforwards
Planning Tip #4 Marry someone with large net operating losses (NOLs)
Planning Tip #5 Invest in the following tax advantaged vehicles
Planning Tip #6 Maximize the use of the standard deduction
Planning Tip #7 Defer receiving Social Security benefits
Planning Tip #8 Taxpayers can reduce their wages below the applicable threshold
Planning Tip #9 Companies that hire non resident aliens as employees avoid paying U.S. FICA and Medicare taxes
Planning Tip #10 To reduce self employment taxes and liability exposure, self employed taxpayers should consider forming a corporation or LLC
Planning Tip #11 Sell appreciated capital assets
Planning Tip #12 Contribute the maximum amount to retirement accounts
Planning Tip #13 Convert traditional IRAs to a Roth IRA
Planning Tip #14 Contribute to deferred compensation plans
Planning Tip #15 Invest in qualified annuities
Planning Tip #16 Invest in life insurance policies
Planning Tip #17 Invest in oil and working gas interests
Planning Tip #18 Invest in tax exempt bonds
Planning Tip #19 Transfer appreciated assets to a Charitable Remainder Trust (CRT)
Planning Tip #20 Convert passive real estate activities into active interests
Planning Tip #21 Convert C corporations to S corporations
Planning Tip #22 Materially participate in your S corporation or partnership to avoid the 3.8% Medicare tax
Planning Tip #23 To avoid the 3.8% Medicare contribution tax on rental income, investors should consider converting triple net lease arrangements
Planning Tip #24 Defer payments of medical expenses to 2013 to exceed the new 10% AGI limitations
Planning Tip #25 Make your parents or other elderly people who you help support dependents
Planning Tip #26 Defer charitable contributions to 2013 to increase the tax benefit
Planning Tip #27 Purchase qualified property in 2012 up to the maximum Section 179 limit before the deduction limit is drastically reduced in 2013
Planning Tip #28 It is possible to structure a partnership so that certain partners are taxed more than others
Planning Tip #29 Elderly people with highly appreciated assets may be best advised to simply hold on to these assets
Planning Tip #30 Pay most of the deductible expenses for an estate in the same year that the remaining estate assets are distributed
Planning Tip #31 High earner taxpayers may consider placing capital gains producing investments into simple trusts
Planning Tip #32 Maximize the election under Code 663(b) to treat distributions made in the first 65 days in 2013 as 2012 distributions
Planning Tip #33 Establish a Charitable Remainder Trust
Planning Tip #34 To avoid the 3.8% Medicare tax on oil and gas working interests convert limited partnership interests to general partnership interests
Be prepared for the worst, don’t wait until it is too late to advise your clients of some money-
Please consider purchasing the book, The Essential Planning Guide to the 2013 Income & Estate Tax Increases by Alan Gassman, J.D., L.L.M. and Erica Pless, J.D., L.L.M. to learn more about this topic. The book can be purchased by visiting our Amazon page at http://www.amazon.com/Essential-
APPLICABLE FEDERAL RATES
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NEWS AND UPCOMING EVENTS
THURSDAY, OCTOBER 18, 2012
Alan S. Gassman, Esq. spoke at the The Tampa Bay Research Institute, Inc. 2nd Annual Estate Planning Seminar, in partnership with the Pinellas Community Foundation. Alan Gassman’s topic was Trust Planning for 2013 and Beyond – How to Keep Wealth in the Family. To request a copy of the outline used for this presentation please email Janine Ruggiero at Janine@gassmanpa.com
THURSDAY, OCTOBER 18, 2012 12:30 p.m. – 2:00 p.m.
Professor Jerry Hesch, Alan Gassman, Esq. and Christopher Denicolo, Esq. will be speaking on a Bloomberg BNA webinar entitled Interesting Interest: Interest Rates for Intra-
THURSDAY, OCTOBER 25, 2012, 4:00 p.m. – 4:50 p.m.
Please join us for The 4-
TUESDAY, OCTOBER 30, 2012 12:30 pm – 2:00 pm
Alan S. Gassman, J.D., LL.M., Kenneth J. Crotty, J.D., LL.M. and Christopher J. Denicolo, J.D., LL.M. will be speaking on a Bloomberg BNA webinar entitled Year-
MONDAY, NOVEMBER 5, 2012 12:30 pm – 1:00 pm
Please join us for Lunch Talk, a free monthly webinar series from the Clearwater Bar Association. This month’s topic is What Lawyers Need to Know About Surveys – How to Read Them and What to Check with guest speaker David Brittain. To register for the webinar please visit: www.clearwaterbar.org
Christopher Denicolo, J.D., LL.M. is a partner at the Clearwater, Florida law firm of Gassman, Crotty & Denicolo, P.A., where he practices in the areas of estate tax and trust planning, taxation, physician representation, and corporate and business law. He has co-
Kenneth J. Crotty, J.D., LL.M., is a partner at the Clearwater, Florida law firm of Gassman, Crotty & Denicolo, P.A., where he practices in the areas of estate tax and trust planning, taxation, physician representation, and corporate and business law. Mr. Crotty has co-
Thank you to our law clerks that assisted us in preparing this report:
Kacie Hohnadell is a third-
Alexandra Fugate earned her B.A. in English from the University of Florida in 2008, and J.D. from Stetson University College of Law in 2012. She has been a Guardian ad Litem for the past two years, a judicial intern for the Twelfth Circuit in Bradenton, and was recently admitted to the Florida Bar. She wants to pursue a career in business, employment, and labor law. Her email is Alexandra@gassmanpa.com
Eric Moody is a third-