Year-end individual tax planning is especially difficult this year due in large part to the following in 2013: (i) the new 3.8 percent nondeductible Medicare tax on investment income and the new 0.9 percent nondeductible Medicare tax on wages of high income individuals, (ii) the scheduled expiration of the 2001/2003 Bush income tax rates, (iii) possible limitations on itemized deductions and personal exemptions, (iv) doubt regarding renewal of extending various tax benefits, (v) a scheduled dramatic decrease in the estate and gift tax exemption and increase in estate and gift tax rates, and (vi) the threat of massive federal spending cuts. Although 2012 is about to close, it is uncertain whether the lame duck U.S. Congress will successfully avert the "fiscal cliff" resulting from more than $600 billion in federal tax increases and spending cuts automatically scheduled to occur in 2013.
Obamacare Medicare Tax Increase. The following additional Medicare taxes will be imposed on certain individuals, starting in 2013 (individuals not filing joint returns are subject to different thresholds).
Medicare Tax On:
|For married individuals (filing joint) imposed on:||Medicare Tax Rate|
|Net investment income||
Lesser of i) net investment income; or ii) the excess (if any) of the "modified adjusted gross income" (MAGI) over $250,000
|Compensation||Compensation over $250,000||0.9%|
Medicare Tax on Excess Investment Income. Net investment income includes (a) capital gains (including gain on disposition of interests in partnerships or S corporations attributed to the entity's nonbusiness property), (b) income from partnerships, LLCs and S corporations if a taxpayer does not materially participate, (c) dividends, royalties, interest and rental income, and (d) gain from sale of residence exceeding the $500,000 exclusion for married filing joint ($250,000 exclusion for other individuals).
Thus, the 3.8 percent Medicare tax does not apply if the taxpayer's MAGI does not exceed the threshold (e.g., $250,000 for married filing joint).
Medicare Tax on Excess Compensation. Total Medicare tax for affected employees and other service providers increases from 1.45 percent to 2.35 percent on compensation above $250,000 for married filing joint (above $125,000 for other individuals). Compensation subject to 0.9 percent tax includes self-employment earnings. Compensation subject to the new 0.9 percent tax is not capped.
Expiration of Bush Tax Cuts. The Bush Tax Cuts enacted during 2001 and 2003 are scheduled to automatically expire, unless legislation is enacted to extend or modify such cuts.
|Ordinary Income||General Long-Term Capital Gain||Qualified Dividends|
|2013 (Bush rates expire)||39.6%||20.0%||39.6%|
|Medicare tax on net investment income above threshold||3.8%||3.8%||3.8%|
|2013 Possible maximum rate||43.4%||23.8%||43.4%|
Potential Opportunities. Commencing in 2013, the additional 3.8 percent and 0.9 percent Medicare taxes will increase the tax burden of many individuals. Further, if the Bush tax cuts expire at the end of 2012 without modification, the overall tax rates of certain individuals may increase significantly.
Individual taxpayers should consider the possible financial benefits and detriments of tax planning strategies to mitigate the tax costs relating to 2013 tax increases, including (i) accelerating into 2012 capital gain from the sale of assets, or bonuses and other ordinary income, that otherwise would be recognized during 2013, (ii) electing out of any 2012 installment sales, thus subjecting the deferred gain to 2012 tax rates, (iii) completing a Roth IRA conversion before 2013 to offset against income taxed at a higher rate, (iv) invest in tax-exempt bonds (avoiding the 3.8 percent Medicare tax on the exempt interest), (v) defer triggering 2012 losses until 2013, and (vi) possibly deferring deduction of itemized deductions (although the benefit of such deferral may be partially or totally offset by new limitations on itemized deductions in 2013). Of course, it is impossible to predict with any certainty whether Congress will seek to extend, modify or otherwise limit the Bush tax cuts for 2013.
Expiration of the Bush Tax Cuts would also raise the maximum marginal estate and gift tax rate and reduce the federal unified estate and gift tax exclusion, effective Jan. 1, 2013, as follows:
|Maximum Estate/Gift Tax Rate||35%||55%|
|Surtax on Large Estates and Lifetime Gifts (between $10 million and $17.184 million)||--0--||5%|
|Estate/Gift Tax Exclusion||$5,120,000||$1,000,000|
Possible 2012 Estate and Gift Tax Planning. Consideration should be given to making large gifts in 2012 that exceed $1 million to the extent the exclusion is available. Further, estate plans should be reviewed in the near future to determine if they need to be updated for the new exemption thresholds. However, individuals should undertake such planning knowing that it is uncertain whether Congress will extend or modify the current estate and gift tax rates and exclusion.
If you have questions related to the new 2013 income/Medicare taxes, the scheduled expiration of the Bush income tax cuts, or other income tax issues, please contact Michael J. Donohue (email@example.com or 214.999.4231) in Gardere's Dallas office, James Howard (firstname.lastname@example.org or 713.276.5391) in Gardere's Houston office, or any other member of the Gardere Tax Team.
Any questions related to the estate and gift tax provisions of the Act or other gift and estate tax issues, please contact Keith V. Novick (email@example.com or 214.999.4238) in Gardere's Dallas office, Lawrence J. Pirtle (firstname.lastname@example.org or 713.276.5721) in Gardere's Houston office, or any other member of the Gardere Trust and Estate Planning Team.