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GOP Tax Reform Proposal

The GOP has released its “Unified Framework for Fixing Our Broken Tax Code”.  Unfortunately, the framework is heavy on generalities and light on specifics, so there is still a long way to go.  Nonetheless, I wanted to take this opportunity to discuss the proposals, and provide some observations, as follows:

Standard Deduction/Personal Exemptions.  The plan roughly doubles the existing standard deduction – making it $24,000 for married taxpayers filing jointly (as compared to $12,700 under current law), and $12,000 for single taxpayers ($6,375 under current law).  In doing so, however, the former personal exemptions for the taxpayers (currently $4,050 per person) are eliminated.  The idea behind this increased deduction is to exclude more income, thus reducing the tax burden and even reducing the number of taxpayers required to file a tax return.

Observation 1 – By eliminating the personal exemptions and increasing the standard deduction, the plan results in only a modest increase in the aggregate deduction, shown as follows:

                                                                     Single Taxpayers                   Married Filing Jointly 

                                                                   Current       Proposed               Current           Proposed

Standard Deduction                           $   6,350       $ 12,000              $ 12,700          $ 24,000

Personal Exemptions                          $   4,050       $          0              $   8,100          $          0

Total Deduction/Exemptions           $ 10,400       $ 12,000              $ 20,800          $ 24,000

Observation 2 – The above example assumes no children or other dependents. If you include one dependent in the above example, the Personal Exemption amounts would go to $8,100 and $12,150 respectively. Thus, the Total Deductions/Exemptions for a single person with one dependent would be $14,450; and for a married couple with one dependent it would be $24,850. Therefore, with only one dependent, under the current law the amount of the aggregate deduction would be higher than the new standard deduction under the proposed law.

Observation 3 – The standard deduction benefits only those taxpayer who do not itemize their deductions.  In other words, if a taxpayer does not have itemized deductions in excess of the standard deduction, then they can claim the standard deduction.  If, on the other hand, the taxpayer’s itemized deductions are in excess of the standard deduction, the taxpayer would forego the standard deduction and choose instead to itemize.  Under current law, a taxpayer who itemizes deductions would nonetheless still receive the benefit of the personal exemptions (although taxpayers with adjusted gross incomes in excess of $313,800 for MFJ and $261,500 for individual saw those exemptions phased out).  Taxpayers who itemize under the proposed law will no longer receive the benefit of the personal exemptions, thus lowering their aggregate deduction.

Planning Idea – Taxpayers whose itemized deductions in any given year are close to the standard deduction amount will want to consider doubling up the payment of itemized deductions every other year.  The idea would be to itemize in year one, take the standard deduction in year two, itemize again in year 3, and so on.  This will maximize the total deductions benefitting the taxpayer.

Individual Income Tax Rates.  Under current law, the income tax rates on individuals consist of seven brackets – 10%, 15%, 25%, 28%, 33%, 35% and 39.6%.  The proposal is to reduce this to three brackets – 12%, 25% and 35%.  The lowest bracket is higher under the proposal than under current law; however, the idea is that the increased standard deduction and the increased child tax credit (discussed later) will offset any additional cost.

The proposal also leaves open the possibility of an additional top tax rate on the highest-income taxpayers, although there is no indication of a proposed tax rate or the income threshold over which that rate would apply.

Observation 4 – There is no indication of the income thresholds to which each of the newly-proposed brackets would apply.  As a result, there is no way to compare the tax burden under the current law versus the proposed law.

Observation 5 – There is also a provision whereby the individual income tax rate on business income from small businesses operated as sole proprietorships, partnerships, or S corporations would be limited to a maximum of 25%.  This is to reduce the tax burden on the owners of small businesses that operate as pass-through entities.  It is unclear how the proposed law will define the distinction between business income and non-business income for this purpose.

Child Tax Credit.  The proposal is to increase the amount of the refundable and non-refundable child tax credit for low and middle-income taxpayers, and to increase the threshold of income levels at which this credit is phased out.  However, the plan proposal specifies neither the amount of the credit, nor the applicable income threshold.

Middle Class Tax Relief.  The proposal contains a sentence stating “the committees will work on additional measures to meaningfully reduce the tax burden on the middle-class.”  The proposal provides no specifics in this regard, nor what will be considered “middle-class.”

Alternative Minimum Tax.  The alternative minimum tax (AMT) has become an increasing problem for many taxpayers over the last couple of decades.  The AMT was originally designed to ensure that high income taxpayers pay at least a minimum amount of tax.  With much tinkering over the years, the AMT now impacts many more taxpayers than it was ever designed to do.  The proposal would repeal the AMT.

Observation 6 – The AMT effectively disallowed the deduction of certain itemized deductions for those taxpayers who were subject to the AMT.  Many of these taxpayers have been deferring the payment of itemized deductions because the AMT disallowed  deductions such as state income taxes, investment fees, etc., and there was the hope of a repeal.  The repeal of the AMT might benefit those persons who have been deferring these payments; however, many of these itemized deductions are now on the chopping block under the proposal anyway (see below).

Itemized Deductions.  The proposal indicates it will eliminate most itemized deductions, retaining only the deductions for home mortgage interest deduction and charitable contributions.  Most notably, the deduction for state income taxes paid would be eliminated.

Observation 7 – The proposal does not specify an effective date for the repeal of the itemized deductions.  I believe it is unlikely this change would be retroactive to January 1, 2017.  However, it could be effective as of the date the proposal was released (September 27, 2017), or perhaps prospectively from the date of passage of a new law, or some specified date thereafter.

Planning Idea – It may be beneficial to accelerate the payment of the itemized deductions that will be repealed, in order to obtain a tax benefit in 2017 for those deductions.  There is a risk, however, that those deductions may be of no benefit if the effective date of the repeal is prior to their payment.

Work, Education and Retirement.  The proposal says it will retain tax benefits that encourage work, higher education, and retirement security, and that the committees are encouraged to simplify these benefits.  There are no further specifics in this regard.

I have, however, heard other proposals regarding retirement accounts, specifically Individual Retirement Accounts (IRAs). Under current tax law, if a beneficiary inherits an IRA, then that beneficiary may be able to “stretch” that IRA out over that beneficiary’s lifetime, thereby allowing tax deferral of that IRA. However, I have heard that there is a proposal to eliminate this “stretch out” and require the beneficiary to instead liquidate the IRA within five years of the original IRA owner’s death, thereby accelerating recognition of the IRA within that five year period. This could have a significant impact on IRA beneficiary planning in the future.

Estate Tax Repeal.  The proposal is to eliminate the estate tax and the generation-skipping transfer tax.  It does not, however, eliminate the gift tax (the proposal is silent on the gift tax). I plan to expand on the impact of this in a later Blog Post.

Observation 8 – Under current law, an asset held by a decedent at death, and included in the decedent’s estate, is allowed a step-up in the cost basis of that asset to its fair market value on the date of death.  This effectively erased any pre-death appreciation on these assets that would otherwise be subject to capital gain tax. There is no mention in the proposal whether this step-up in basis would still be allowed, or whether the basis of the decedent would instead carry over to the beneficiaries, or whether there would be a forced recognition of gain at death.

Observation 9 – Under current law, the gift tax and estate tax enjoyed a lifetime exemption effectively precluding tax on the first $5,490,000 of transfers (in excess of annual exclusions and indexed for inflation each year).  While it appears the gift tax would remain in effect, there is no indication whether the amount of annual exclusion (currently $14,000 for 2017) or the lifetime exemption would remain the same, or become an entirely different amount.

Tax Rate Structure for C Corporations.  The proposal is to reduce the maximum tax rate on “C” corporations to 20%.  This is below the average tax rate for the industrialized world and is intended to keep companies from moving operations overseas.

Expensing of Capital Investments.  The proposal is to allow the immediate expensing of capital investments (other than structures) for depreciable assets purchased and placed in service any time during the five year period following September 27, 2017.

Repatriation.  There are also some proposals to encourage the repatriation of money currently held overseas by U.S. companies, as well as to discourage U.S. companies from leaving the U.S.  There is little specificity with regard to these proposals.

I had hoped, by this time this year, we would have a more specific idea of the proposed tax laws, such that we could begin the implementation of some tax planning ideas.  Unfortunately, it appears we have a long way to go before these proposals become law.  It is likely some of these proposals will be tweaked, others deleted, and still others added.

To read the Tax Proposal yourself click Here.

I hope this helps!

-Matt

 

© 2017 Matthew D. Brehmer and Crummey Estate Plan.

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Beneficiary Designations: An Overlooked Estate Planning Tool

While a vast majority of the population has not prepared the “staple” estate planning documents that every person over the age of 18 should have, almost everyone has prepared a beneficiary designation form of some sort. When I say “staple” estate planning documents, I am talking about a Last Will & Testament, Health Care Power of Attorney (with a Living Will and HIPAA Authorization), and Durable (Financial) Power of Attorney. It is essential that every person have at least all of these documents to effectuate their estate plan; and, most importantly, they must all work together!

In honor of Halloween, in the following scenario, I am going to use Frankenstein, Frank for short, age 40. Frank is very proactive about preparing his estate plan – he does have a pretty dangerous job creating monsters so probably a good thing he’s proactive, right? Frank discusses his final wishes with his attorney and his attorney prepares him a perfect set of “staple” estate planning documents. Per his wishes, his Last Will & Testament states that everything is to go to his wife, if she survives him, and if she does not, then to be split equally among his children (age 15 and 13). Further, if his children are under the age of 25 at the time of his death, their share of his estate shall be held in trust until they are age 25. Great, Frank thinks he is all set to go, like many people would.

However, here’s the kicker: any asset that Frank has prepared a beneficiary designation form for, will NOT pass through his Last Will & Testament at the time of his death (unless he has named his estate as the beneficiary, which in most cases is not advised). That means that whomever Frank named as beneficiary on that form will get that asset at his death (the form may have been filled out 20 years ago when he just started working, was not married and had no children). His wishes as outlined in his Last Will & Testament will not control how that asset is distributed.

Good thing Frank was advised of this. Frank takes heed of this advice and updates his beneficiary designation forms to carry out the same wishes as under his Last Will & Testament. However, typically this is not as simple as just updating the names on the form. Frank needs to ensure that the form is prepared properly, which includes drafting to make sure that any shares his children may receive will be held in trust until they are age 25, identical to his wishes under his Last Will & Testament.

It is important to remember that if he had not updated his beneficiary designations, his “real” final wishes would not have been carried out after his death; his $200,000 IRA may have gone to his ex-girlfriend that he named as beneficiary when he was 20 years old. On the other hand, if he had updated his beneficiary designation but done so improperly, again, his “real” final wishes may not have been carried out after his death; his $200,000 IRA may have gone outright to his two financially immature children, then age 18 and 20, instead of being held in trust until they were 25.

Now Frank was proactive, think about all the people who have not had the “staple” estate planning documents prepared or had their beneficiary designations reviewed to ensure that they are correctly filled out; is their estate going to be distributed as they really intended? Further, Frank’s estate plan was relatively simple; most people’s circumstances and wishes are much more complicated than his. This makes conjunctive planning even more so important – attorneys must advise clients as to both their Last Will & Testament (or Trust) and any beneficiary designations that they may have made to ensure that they are all consistent and carry out the client’s final wishes.

Types of Assets

If you have any of the following assets, you have most likely prepared a beneficiary designation form at some point:

  • Any retirement accounts, including 401(k)s, IRAs, pension plans, profit sharing plans, etc.;
  • Life insurance;
  • Brokerage accounts; and/or
  • Annuities.

In addition, most States now allow owners to name a beneficiary for any real estate property they own (i.e., transfer on death designation) and any bank accounts they have (i.e., payable on death designation). Now, think about all of the assets you have or may have at death. For most people, besides your tangible personal property (e.g., household goods, automobiles, etc.), the above list of assets covers a majority of your estate. That is why beneficiary designation planning is ESSENTIAL to estate planning today.

Non-Probate

A Last Will & Testament directs how and to whom your executor or personal representative should distribute your probate property. However, if you have prepared a beneficiary designation form for one of the types of assets listed above, that asset will not go through probate and therefore, the distribution of that asset will not be controlled by your Last Will & Testament. The distribution of that asset will be controlled by the beneficiary designation form that you filled out, possibly haphazardly and without much thought and advice.

While avoiding probate is great news and on the top of most people’s estate planning goals, the beneficiary designation form must be filled out correctly in order to properly effectuate your final wishes. This is something that should be discussed with an attorney so you can ensure that it is done correctly and that when fully considering the big picture, your final wishes are carried out. The big picture includes all of your assets and how and to whom they will be distributed to at your death, whether that distribution is controlled by beneficiary designations, your Last Will & Testament, and/or your Living Trust.

Naming Your Beneficiaries

Depending on your estate plan, you may choose to name an individual, trust, estate, charity and/or any combination of these as the beneficiary to one or more of the assets listed above. However, this decision is not as easy as just filling in a blank on a beneficiary designation form. There are numerous considerations to contemplate and discuss with an experienced attorney before making any final decisions. Some of the issues that may arise depending on your estate plan include (all of which will be discussed in future posts):

  •  How to effectively and efficiently leave the asset to multiple beneficiaries, whether the asset should be split up immediately among the multiple beneficiaries, held in trust for some or all of the multiple beneficiaries, spread out over future generations, etc.;
  • How to protect the asset from the beneficiary, whether the beneficiary is too young, financially immature, disabled, has creditor/divorce concerns, etc.;
  • How to minimize the tax consequences, whether it is the impact of estate tax, generation-skipping transfer tax, income tax, deferring tax, etc.;
  • How to comply with the complex IRA (or any asset listed above) rules, whether you are naming an individual, estate, trust and/or charity as a beneficiary and the different consequences of naming each; and/or
  • How to prepare and implement an estate plan that considers the big picture and ensures that your estate is distributed effectively and efficiently, according to your final wishes, with the least amount of time and cost involved.

Conclusion

With beneficiary designations possibly controlling the distribution of a majority of a person’s estate, estate planning must include beneficiary designations and how they affect the person’s final wishes as outlined in their Last Will & Testament and/or Living Trust. This is why both the long trusted “staple” estate planning documents and beneficiary designation forms are important and required for every person today. This will, in many cases, inevitably lead to attorneys and financial advisers being required to work together to ensure that the client’s estate plan is carried out correctly. The issues that may arise are complex and the consequences may be severe, therefore, you need to seek professional advice before finalizing your beneficiary designation forms.

– Attorney Matthew D. Brehmer

 

© 2014 Matthew D. Brehmer and Crummey Estate Plan.