On January 1, 2013, one day after the “fiscal cliff” deadline, Congress passed the American Taxpayer Relief Act (H.R. 8) (“ATRA”). ATRA made a number of permanent changes to the structure of income and estate taxes. This article summarizes those provisions and provides a brief explanation of some of the new health care taxes.
Federal Estate Tax Rate Increase.
The $5,000,000 federal gift, generation skipping and estate tax exemption was extended and made permanent, but the estate tax rate was increased from 35% to 40% beginning January 1, 2013. The $5,000,000 federal exemption that became the law in 2011 will continue to be adjusted for inflation. The combined federal gift, estate, and generation skipping tax exemption for 2013 is $5,250,000. Also the portability provision, which allows a surviving spouse to use the deceased spouse’s unused exclusion amount, was extended permanently.
Federal Income Tax Changes
The federal income tax rate changes were significant for taxpayers with higher incomes; however, for married joint filers with less than $250,000 in combined income and for single taxpayers with less than $200,000 in income, very little has changed, because the Bush tax cuts were extended.
Some of the more notable tax increases are:
Income, Dividend and Capital Gains Tax Rate Increases
Joint filers with income over $450,000 and single filers with income over $400,000 (the “39.6 % thresholds”) will now have to pay taxes at the rate of 39.6% for income in excess of these amounts. In addition, the tax rate on capital gains and qualified dividends for taxpayers with income above the 39.6% thresholds has increased from 15% to 20%. Ordinary dividends above the 39.6% thresholds will be taxed at 39.6%. These 39.6% threshold amounts will be adjusted for inflation for tax years after 2013.
The 39.6% threshold amount for trusts and estates in 2013 is $11,950. As a result, any trust with taxable income in excess of $11,950 will be subject to the 39.6% tax; in addition, capital gains in excess of the threshold amount will be subject to the 20% tax.
Personal Exemption Phaseout (“PEP”)
Joint filers with income over $300,000 and single filers with income over $250,000 (the “PEP/Pease thresholds”) will be subject to a personal exemption reduction equal to 2% for each $2,500 (or portion thereof) by which the taxpayer’s adjusted gross income exceeds the PEP/Pease thresholds. Under this formula personal exemptions will be completely phased out at $375,000 for single individuals and at $425,000 for married joint filers.
Itemized Deduction Limitation
Itemized deductions for single filers and joint married filers with incomes above the PEP/Pease thresholds will be reduced by 3% of the amount by which their adjusted gross income (“AGI”) exceeds the PEP/ Pease thresholds. This reduction will not exceed 80% of the otherwise allowable itemized deductions. The PEP/Pease thresholds are also indexed to inflation.
0.9% Healthcare Tax and 3.8% Surtax Increase
In addition to the ATRA tax increases described above, the Patient Protection and Affordable Care Act, that became law on March 23, 2010, added a new 0.9% Healthcare tax and a 3.8% Surtax beginning on January 1, 2013.
The 0.9% Healthcare tax is imposed on wages and self-employment income over $250,000 for married taxpayers filing jointly, $125,000 for married taxpayers filing separately, and $200,000 for single taxpayers. There is no employer match for this tax, and the thresholds for this tax are not indexed to inflation.
The 3.8% Surtax applies to individuals, trusts and estates that have certain types of passive investment income. This tax is imposed on the lesser of (a) net investment income (“NII”) for the taxable year, or (b) modified adjusted gross income (“MAGI”) above a “threshold amount.” The threshold amount for this tax is $250,000 for married couples, $125,000 for married couples filing separately, and $200,000 for single taxpayers. For trusts and estates, the threshold amount is the beginning of the top income tax bracket ($11,950 in 2013) (the “Surtax thresholds”). The Surtax thresholds are not indexed to inflation for future years.
If a taxpayer’s MAGI is less than the Surtax threshold, no Surtax is due. A taxpayer with no investment income will not be subject to the 3.8% Surtax, even if his income is above the Surtax threshold. If a taxpayer has NII and the MAGI is greater than the Surtax thresholds, a 3.8% Surtax is due on the lesser of NII or the amount of the MAGI over the Surtax threshold. A taxpayer with income in the 39.6% tax bracket with an additional 3.8% surtax would have a marginal rate of 43.4%.
“Net investment income” (NII) (that is, income subject to the 3.8% Surtax) includes interest, dividends, annuities, rents, royalties, income derived from a passive activity, and net capital gains derived from the disposition of property (other than property held in an active trade or business), reduced by deductions properly allocable to such income. “Net investment income” (NII) does not include income from the following (that is, the following are not subject to the 3.8% Surtax): income derived from an active trade or business; distributions from IRAs or qualified plans; self-employment income; trusts for charity (except Charitable Lead Trusts), gain on the sale of an active interest in a partnership or S corporation (but note that C corporation dividends would be subject to the Surtax); or items which are otherwise excluded or exempt from income under income tax law, such as interest from tax-exempt bonds, capital gain excluded under IRC §121 (sale of the principal residence exception), and veteran’s benefits.
Because the Surtax threshold amount for trusts and estates is so low ($11,950 in 2013), taking effective tax planning measures for trusts is especially is very important. Simple trusts require all income to be distributed currently, so undistributed net investment income would generally be zero unless the trust has undistributed capital gain income. If the trust beneficiaries would not be subject to the Surtax on distributions, then tax savings can be realized by distributing enough of the trust’s net income to reduce the undistributed trust or estate NII below the threshold amount ($11,950 in 2013).
Although the Surtax is not imposed directly on retirement distributions such as distributions from IRAs, these distributions may increase income in a way that could trigger a Surtax. For example, a married individual with $250,000 of NII would not be subject to the Surtax, but if that individual is required to start taking required minimum distributions from a retirement account (such as an IRA), those required minimum distributions would increase his or her MAGI above the $250,000 threshold amount, and any amount of NII over the threshold amount will be subject to the 3.8% Surtax.
That outcome could be avoided or reduced with careful tax planning. It may be advisable to save within an annuity until after retirement. Income deferred within the annuity will not be subject to the Surtax. Then, at the time of retirement, assuming that the taxpayer’s MAGI will be lower, the probability that withdrawals from the annuity will raise MAGI above the threshold amount is less likely.
The reduction of “net investment income” can be accomplished through a variety of means, including the shifting of assets to such tax exempt bonds, IRAs and qualified plans, tax deferred annuities, life insurance trusts, leveraged real estate, and oil and gas investments.
Another means of effective tax planning is to reduce MAGI. This can be accomplished through a variety of means, including incremental Roth conversions, non-grantor charitable lead trusts, charitable remainder trusts, installment sales, and above the line deductions such as contributions to qualified plans and traditional IRAs and charitable contributions. Now an individual of any age can convert their retirement account to a Roth account. Taxpayers subject to these new tax changes face some pretty complicated challenges.
Other Important Provisions
Besides tax rate increases, ATRA included a number of other important provisions. During 2013, a taxpayer who is 70 1⁄2 or older can direct up to $100,000 from his or her IRA to a qualified charity without having to include the distribution in gross income. Permanent Alternative Minimum Tax (“AMT”) relief was provided by raising the exemption amounts for 2012 and indexing the exemption amounts for inflation in future years. The larger standard deduction and larger income amount in the 15% tax bracket for married couples has also been extended. ATRA extended a number of provisions for individuals and businesses, including several energy tax extensions. There are a number of other changes beyond the scope of this short summary.
These tax changes are permanent; however, further changes could be made during the Congressional debate over spending reductions. As a final note taxpayers who pay estimated taxes need to adjust their tax deposits to take these additional taxes into account.
The author wishes to thank Robert S. Keebler, CPA for permission to use his publications on the 3.8% Medicare Surtax as a resource for this article, and Elizabeth Savage for her contributions to this article.