Congress has released portions of a bill that its proponents hope to pass before year-end. Here’s our list of 10 ways you might respond.
Thomas McGraw, Managing Director, Head of Tax Advisory, Advice Lab
There’s been a lot of talk about Congress wanting to revise the tax law to target the wealthy. Now federal lawmakers have taken some steps to make some much-discussed changes a reality. A new law might be adopted, if at all, as early as mid-November but possibly late into December.
Here, we offer you some ideas as to how you might respond with actions that can support you reaching your financial goals no matter what Congress ultimately does, or doesn’t, do.
But first we’re going to let you know what Congress has put on the table so far, and what it has not.1 We’ll then provide you with a potential to-do list: 10 actions that might suit you to take, before any law may be enacted, by December 31st of this year and at some point in the near future. (Of course, you should always consult your own tax advisor before taking any action, as we do not provide tax or legal advice.)
Key tax changes proposed
On Sept. 13, the House Ways and Means Committee released parts of a bill that, if enacted, would reshape the U.S. tax landscape and likely collect more from wealthier taxpayers. The bill’s provisions include these proposed changes to:
Individual income taxes—generally
- Increase the top ordinary income tax rate to 39.6% (from 37%) effective Jan. 1, 2022, and the top long-term capital gains tax rate to 25% (from 20%)—generally effective for gain realizations after Sept. 13, 2021. Note the proposed retroactivity of the LTCG rate hike.
- Impose a 3% surtax on taxpayers with modified adjusted gross income above $5 million.
- Increase the holding period for capital gains treatment for carried interests to five years (from three), with exceptions for real estate.
- Subject digital assets (including cryptocurrencies), commodities and foreign currency to expanded constructive and wash-sale rules that suspend losses taken only when a taxpayer buys a "substantially identical" security within 30 days of taking the loss.
- Prohibit additions to traditional IRAs with account balances in excess of $10 million, and increase required minimum distributions from large IRAs, both traditional and Roth.
- Prohibit IRAs from investing in assets available only to accredited investors (such as many alternative investment funds).
- Change the treatment of grantor trusts so that, among other things, future exchanges between the trusts and their grantors would be taxable events, effective after date of enactment.
Individual income taxes— specific to business owners
- Subject profits from businesses to the 3.8% net investment income tax, which currently is only applicable to interest, dividends, capital gains, rental and royalty income, non-qualified annuities, income from businesses involved in trading of financial instruments or commodities and businesses that are passive activities to the taxpayer.
- Permanently disallow a deduction for business losses (those greater than business income) in excess of $500,000 (with minor exceptions).
- Limit the qualified small business stock (QSBS) exclusion to 50% for taxpayers with income greater than $400,000.
Gift and estate taxes
- Reduce the gift and estate tax exclusion amount from $10 million (inflation-adjusted) to $5 million effective on Jan. 1, 2022, rather than the date when it’s currently scheduled under law, to drop down to that level: Jan. 1, 2026.
- Take all assets in an irrevocable grantor trust (IGT) that the person who is now deceased happened to establish after this new law is enacted and include it in that person’s estate. Such a change would greatly reduce all IGTs’ transfer tax-effectiveness. Indeed, the proposed law would make it so that even mere “contributions” to an IGT after enactment would taint an otherwise “grandfathered” trust.
- Ignore valuation discounts on the transfer of minority equity interests in partnerships and other private entities holding passive investments.
- Increase the corporate income tax rate to 26.5% (from 21%), and a gradual anti-base-erosion tax increase to 15%.
Not currently proposed
Importantly, this bill does not currently contain:
- A potential repeal or increase of the cap on deductions for state and local taxes (SALT) paid. It’s quite possible this will be added, as many House Democrats from high-tax states such as New York, California and New Jersey insist it is necessary to gain their support for any tax bill. Many expect that any bill that ultimately passes would at least double the currently $10K SALT deduction.
- Proposed elimination of the basis adjustment (step-up in basis) at death rule, which greatly impacts the amount of wealth a family can pass to the next generation.
- Any proposal to deem death a realization event, triggering a capital gain on any unrealized growth; or imposing some type of annual tax, such as a mark-to-market imputed tax event, on the appreciation of taxpayer wealth.
Our tax to-do list: 10 actions you might take
Keep top of mind that it is unclear whether any tax law will be enacted during this session of Congress and, if any is, what that law’s precise terms may be.
Still, there are some actions we think you may be well-advised to consider taking (a) before any bill is signed into law, (b) before Jan. 1, 2022, and (c) at some point in the near future (not tied to a specific date or event).
We urge you to speak with your estate planning lawyer, accountant and other advisors, including your J.P. Morgan team, to determine which of these steps may be right for you and the rest of your family.
And, as always, we advise against letting the tax tail wag the dog: Any and all your decisions should be made in the context of your goals and with this perspective: Tax law will likely continue to change over time—as it has for many decades.
That said, here are our top 10 actions to consider:
Before any bill is enacted:2
1. Establish and fund irrevocable grantor trusts (IGTs)—preferably dynasty trusts that can last in perpetuity—up to the maximum amount that you can give during lifetime without having to pay gift tax (which is currently $11.7 million per person and $23.4 million for a married couple).3
2. Transfer assets whose value may be discounted from their apparent value (because they may be minority interests in illiquid asset) into irrevocable trusts, whether IGTs or “non-grantor” trusts.
3. Fund grantor retained annuity trusts (GRATs), and consider setting a longer term than is customary for those GRATs. Usually, GRATs are created for brief terms, often two or three years. Longer-term GRATs, while inviting greater mortality risk, would keep assets in a transfer tax-efficient structure for longer.
Before Jan. 1, 2022:
4. Use up whatever is left of your lifetime exclusion of $11.7 million, no matter where you make those gifts (IGTs, funded prior to enactment, non-grantor trusts or outright to the recipient). The exclusion is already, under current law, scheduled to be reduced on Jan. 1, 2026 , to around $6 million and the present Bill proposal would accelerate that reduction to Jan. 1,2022.
5. Accelerate income into 2021—particularly if your income is above $5 million, as your total rate increase might be 5.6% (2.6% for ordinary bracket + 3% surtax). If you have retirement accounts, now may be a good time to consider a Roth conversion, so you might pay this year’s income tax rates on the converted assets4 (and also, to avoid a potential imposition of the 3% surtax in 2022).
6. Defer deductions including charitable deductions into 2022. A deduction’s economic value is higher when the taxpayer’s tax rate is higher. To be sure, deferring the deduction, or accelerating discretionary income, requires paying tax sooner on income, so taxpayers would have to weigh the economics of paying more tax now at a lower rate rather than recognizing more income in a future year at higher rates. If 2021 was an outsized income year for you or you are donating appreciated assets to charity, it could still make sense to donate in 2021 even if rates increase next year.
7. If feasible, divide a large non-grantor trust (with $5 million or more) that benefits multiple beneficiaries into smaller trusts, each for the benefit of a single beneficiary. The 3% surtax on high-income taxpayers is proposed to apply to trusts whose adjusted gross income (after deductions for distributions to beneficiaries) is greater than $100,000 (for individual taxpayers, that figure is, as noted above, $5 million). As written now, separate trusts (with distinct tax identification numbers) would each be allowed $100,000 of income before the surtax applied.
8. Take losses on the sale of cryptocurrencies and other property that starting in 2022 might be subject to the wash sale rule.
At some point in the near future:
9. Invest some of your liquid assets in an insurance policy that invests in insurance-dedicated funds. Assets invested by an insurance company on behalf of a policyholder—through a properly designed and managed contract—appreciate free of income tax. The benefits of this tax deferral and in many instances tax forgiveness feature increases when tax rates are higher.
10. Review the tax classification of operating businesses, comparing flow thru forms (such as partnerships or Subchapter S corporation) versus C corporate form which considers both shareholder and entity level taxation under the current and proposed law changes to determine the most tax efficient classification within the context of your business model. The differences to your ultimate take-home can be substantial—especially as the BBB Act currently proposes that high-income taxpayers would not able to avail themselves of the 100% exclusion from capital gains tax of a significant portion of their qualified small business stock (QSBS)--potentially making the conversion to a pass through more appealing.5
How we can help you
We do not advise our clients on which tax moves may be best for them. However, we can provide you, your tax advisors and your estate planning attorneys with our financial modeling of your assets and insights into markets, wealth planning and trusts, as well as observations on other similar transactions we have participated in —all of which can help inform your decisions.
For more detail on the potential changes on the horizon, we offer highlights of the bill in the Tax Change Watch List.
1 As of September 2021.
2 The Report of the Committee on the Budget, which accompanied introduction of the bill, indicates that all GRAT annuity payments (even those made from GRATs created before enactment) satisfied with appreciated assets are intended to trigger a capital gains tax. “Pre-enactment” GRATs should be funded with an awareness of this potential tax drag over the course of the GRAT in mind. More generally, the absence of greater definition of certain words and terms in the bill’s grantor trust-related provisions creates the risk of income and transfer tax events for transactions that are tax-free under current law (such as asset swaps) that occur after date of enactment between a grantor and a grantor trust that was funded before enactment.
3 All wealth transfer actions outlined here are recommended only for those who have both the capacity and the desire to make such gifts.
4 Under the current proposal, minimum distributions from a taxpayer’s aggregated retirement accounts that are worth over $10,000,000 at the end of the prior tax year would be increased by 50% of the difference between the aggregate value and $10 million. Additional minimum distributions would be required from Roth IRAs if the total retirement account balances were over $20,000,000
5 For example, with a top corporate income tax rate of 26.5% and a qualified dividend tax rate of 25%, a shareholder’s after-tax receipts from $100 of a C corporation’s earnings might be $55.13 (versus $63.20 under current law). However, the bill proposes increased tax rates on owners pass-through entities – not only the increase from 37% to 39.6% but also the imposition of the 3.8% Medicare surtax on business profits and a 3% surtax on taxpayers’ income in excess of $5 million. So that same $100 in a pass through could be $55.60. It also proposes that high-income taxpayers would not able to avail themselves of the 100% exclusion from capital gains tax of a significant portion of their qualified small business stock, potentially making the conversion to a pass through more appealing. Consequently, the determination of how to organize would be significantly different than it has been the past four years.