Monthly Archives: April 2021

Currently, federal law taxes capital gains at a maximum rate of 20%, plus a 3.8% surcharge on net investment income, for a total of 23.8%. However, under proposals, to the extent a taxpayer’s income is above $1 million, their capital gains would be taxed at the highest rate for ordinary income. That cap for ordinary income would revert to the law prior to 2017, i.e., 39.6%. The surcharge on net investment income of 3.8% would be on top of that for a total of 43.4%. This assumes no state or local taxes.

Thus, for someone who could keep their income below $1 million, their capital gains would be 23.8% or lower. However, to the extent that income is above $1 million, it would be taxed at a marginal rate of 43.4%. That’s nearly double the rate of taxation. So, if they can spread out taxation of the gain over multiple years, they may be able to reduce their taxable income so it fits under that $1 million threshold and gets taxed at the lower level.

A Charitable Remainder Trust (“CRT”) is just such a tool. With a CRT, the donor gets an upfront deduction for the actuarial value of the remainder interest expected to go to charity. This must be a minimum of 10% of the value of the contribution. The value of the income interest could be as much as 90%. So, if a donor contributes $1 million to a CRT and the actuarial value of the interest going to charity is $100,000, the donor can take a $100,000 charitable deduction in the year of the donation to the CRT (subject to typical AGI percentage limitations).

Perhaps the best attribute of a CRT is that it is a tax-exempt entity. So, if the donor contributes appreciated assets and the CRT sells them (without a prior commitment to do so), the CRT doesn’t pay tax on the gain. However, when distributions go out to the donor or other income beneficiary, those distributions are flavored by the income the CRT has earned.

The impact of this is to defer gains so the donor might pay tax on them at a much lower rate of taxation. The impact of this deferral can be even greater in some circumstances. For example, let’s say your client, Tom Taxpayer, is approaching retirement. Tom has accumulated a great deal of stock at a very low basis. In his final year of employment, Tom contributes $1 million of stock to a CRT. He gets an income tax deduction in his final year of employment when his income is high and the deduction is more valuable. The CRT sells the stock but doesn’t pay tax on the gain because it’s tax-exempt. When Tom receives payments from the CRT in his retirement, he’s in a lower income tax bracket and pays tax at lower rates.

The current estate tax exemption is $11.7 million. This is a record high. The “permanent” exclusion is $5 million and is adjusted for inflation from a 2011 base year. Then the Tax Cuts and Jobs Act temporarily doubled it. At the end of 2025, the doubling goes away. So, in 2026, the exemption will be back to only $5 million, and with inflation adjustment it’s expected to be around $6 million at that time. Transfers above the exemption are currently taxed at a rate of 40%. However, those who use their exemption before it drops won’t be penalized. So, if they use the larger exemption before it drops, they won’t lose it.

There’s legislation pending in Congress which would lower the exemption even faster and even lower than current law provides. The “For the 99.5% Act” introduced in the Senate by Sens. Bernie Sanders (I-VT) and Sheldon Whitehouse (D-RI) would reduce the exemption effective January 1, 2022. For transfers at death, the exemption would go down to $3.5 million and wouldn’t be inflation-adjusted. Only $1 million of the exemption would be able to be used during life. Under the legislation, transfers above the exemption would incur a tax at rates beginning at 45% and going to as much as 65%, for those with over $1 billion. This proposed legislation increases the taxes on the less wealthy than it does on the wealthy. We get what we vote for. Thanks boys!!

However, clients could use the exemption this year and avoid the reduction in the exemption. For example, let’s say a person has $15 million. They could give away $11.7 million this year and retain $3.3 million. At their death, they’d only owe tax on the $3.3 million in their estate. If married, they could take advantage of a Spouse And Family Exclusion (SAFE) Trust, (sometimes called a Spousal Lifetime Access Trust (SLAT)). Such a trust is set up by one spouse for the benefit of the other spouse and their children. If there are sufficient differences in the trusts, each spouse could even set up such a trust for the other spouse. By doing this, a couple could utilize their exemptions but still have access to the assets.

For example, Bill and Mary had $30 million, $15 million each, and wanted to take advantage of the current exemption. Bill gifted $11.7 million into a trust for the benefit of Mary and his children. Likewise, Mary gifted $11.7 million into a trust for the benefit of Bill and her children. Each spouse now only has $3.3 million left in their estate.

If the trusts are designed to avoid the “reciprocal trust doctrine,” neither trust would be included in either of their estates at death. So, the terms of the trusts should vary somewhat. While the trusts avoid inclusion and estate taxation, this is a double-edged sword. While gifting to an irrevocable trust such as a SAFE trust avoids estate taxation, it’s only inclusion in the taxable estate that provides a step-up in basis at death. Thus, you can have your cake, but you cannot eat it, too.

Under current law, estate taxation starts at 40%, whereas long-term capital gains rates generally cap out at 23.8% for federal purposes. Thus, if the assets gifted would have been subject to federal estate taxation, the taxpayer usually would be better off to have them removed from the estate, even if it means losing a step-up in basis.

Also, if Bill sets up the trust for Mary, in the above example, there’s a risk Mary might not set up a trust for Bill since the trusts aren’t set up contemporaneously due to the reciprocal trust doctrine. Of course, each situation is different, and you’d want to explain the tradeoffs to your clients.

Whether you choose to use a SAFE trust or some other method, utilizing the current exemption can make a great deal of sense.

Every year there are numerous tax proposals. These proposals run the gamut. We start paying attention when there’s a change in power in Washington, D.C., especially when there’s not divided government.

Right now, Democrats control the House by a narrow margin and the Senate is evenly divided, with Vice President Harris able to cast a deciding vote if the chamber is split. So, while a tax change is certainly possible, it’s not at all certain.

A recent proposal by Senators Sanders (I-VT) and Whitehouse (D-RI), “For the 99.5% Act,” would dramatically alter the Estate Planning landscape. Here’s a summary of the Act from Senator Sanders. Here are some of the changes the Act would make:

• Lower the amount that can be passed to $3.5 million at death, with only $1 million available during life. These amounts would not be inflation-adjusted. Today’s amount is $11.7 million and is inflation-adjusted. (However, even under current law, the exemption drops in half after 2025.)
• Amounts in excess of the exemption are taxed at rates from 45% to 65%. The current rate is 40%. Amounts from $3.5 million to $10 million would be taxed at 45%, from $10 million to $50 million would be taxed at 50%, from $50 million to $1 billion would be taxed at 55%, and amounts in excess of $1 billion would be taxed at 65%.
• Change the rules for Generation-Skipping Tax exemption so that assets cannot be left in a trust which avoids estate taxes for more than 50 years.
• Change the rules for Grantor Retained Annuity Trusts so that they aren’t nearly as attractive as a way of transferring value to others.
• Limit valuation discounts, such as minority discounts. Such discounts are often used to pass as much as possible with the least possible use of exemption or the least possible tax.

The Act might change considerably or might not pass at all. But, if it passes in its current form, it would dramatically alter Estate Planning. So, what can you do? I encourage you to plan under the current rules. For example, you could use the current, historically high exemption while it is available. You could use strategies to take advantage of discounting while they’re available.

What’s the role of an Estate Planning attorney? Is it merely to document a client’s wishes? Or is it to counsel the client regarding those wishes and then craft a plan that best fits their situation? Clearly, it’s the latter.

For example, if a client walks into my office and says they want to leave everything outright to their three children, is it appropriate to draw up a plan to do so? The proper course would be to find out more information about the three children. What are their situations?

Perhaps the first child, Betty, is 30 years old and in a rocky marriage. Perhaps the second child, John, is 25 years old and has creditor issues. Perhaps the third child, Ben, is 20 years old and has Special Needs. In each of these situations, it would be best to advise the client about the possible advantages of leaving the assets to the children in a continuing trust. This could provide divorce protection for Betty, creditor protection for John, and preservation of public benefits for Ben.

An Estate Planning attorney should explain the different relevant options available and the range of consequences with each option. Explaining to the client the benefits of leaving the assets in trusts with various attributes for the various beneficiaries. Explaining the advantages and the disadvantages of the different alternatives. For example, in order to provide creditor protection in John’s situation, I’d use a trust with a third-party trustee and a completely discretionary standard. This would also require a tax return for the trust each year.

If, after a thorough explanation of the pros and cons, the client still chooses their original course, then what?

As long as the course chosen by the client is not illegal or unethical, a Trusts & Estates lawyer should carry out the client’s wishes and prepare the desired documents. An Estate Planning attorney is not a mere scrivener. Our most important product is not the documents we produce, rather our counsel which is based on a wealth of professional experience based on years of technical training.