After months of anticipation with a ‘two-track’ process of infrastructure and separate tax legislation, Democrats on the House Ways and Means Committee released their tax proposals on September 13… and the measures are very different from what many expected! The legislation touches on a wide range of tax issues, from increasing the top ordinary income tax bracket to cracking down on popular retirement account strategies and bringing the estate and gift tax exemptions back to pre-2017 levels. Notably, though, the proposals do not include some rumored measures, such as equalizing the top ordinary income and capital gains rates or eliminating the step-up in basis. While the legislation will now be debated in Congress and finalized in the weeks to come, these proposals will create a range of planning opportunities for advisors to consider both in the future… and to take action before the legislation is signed and certain planning windows are closed!
As originally proposed by the Biden Administration in its American Families Plan, the bill includes a host of new tax increases on households earning more than $400,000. In addition to restoring the 39.6% top marginal rate (which was reduced to 37% by the 2017 Tax Cut & Jobs Act), the legislation also increases the top capital gains rate to (only) 25%, although it lowers the amount of income needed to get into the top tax bracket (for both ordinary income and capital gains) to only $400,000 (for individuals, or $450,000 for married couples). As a result, the taxpayers who will be most impacted by the new rates are those in the $400,000–$500,000 income range, who will see themselves move from the current 35% bracket to the new 39.6% bracket – as higher earners who were already in the 37% bracket will see ‘only’ a 2.6% increase to 39.6%. Other changes targeting higher earners include a limitation on the Section 199A deduction for Qualified Business Income (QBI), an expansion of the Net Investment Income Tax (NIIT) impacting S Corporation owners, and a 3% surtax for ultra-high earners with over $5 million of income (making the true top tax rate 42.6%).
Another main focus of the bill is reforming retirement plan rules to close perceived “loopholes” commonly used by wealthy individuals. Perhaps most relevant for financial planners and their clients is the bill’s aim to eliminate the ‘backdoor’ Roth strategy, prohibiting Roth conversions of after-tax funds in retirement accounts altogether, as well as prohibiting all Roth conversions for those in the top income tax bracket (but only after a 10-year window, subtly encouraging high-income taxpayers to convert to Roth accounts – and pay taxes – sooner rather than later). Also notable are two new rules for high-income taxpayers with more than $10 million of aggregated retirement account assets: a prohibition on making new IRA contributions, and a new Required Minimum Distribution of 50% of the combined balances above $10 million (and 100% of combined balances above $20M), forcing dollars out of large retirement accounts. However, these forced-distribution rules only kick in for taxpayers in the top tax brackets, meaning those who are able to reduce or shift their income will still be able to contribute and accumulate retirement savings above and beyond the $10 million cap.
The proposed bill also contains significant reforms to estate law, most notably a 50% reduction in the estate and gift tax exemption – while simultaneously increasing the special valuation reduction for real property used in family farms and businesses from $750,000 to $11.7 million. The bill also cracks down on Intentionally Defective Grantor Trusts (IDGTs) by including those trusts’ assets in their grantors’ estates. In addition, any sales between an individual and their own grantor trust will be treated as the equivalent of a third-party sale, and any transfers out of a grantor trust will be considered a taxable gift. Family limited partnership discounts would be similarly curtailed as nonbusiness assets – including stocks, bonds, options, Real Estate Investment Trusts (REITs) or mutual funds, and trademarks – would no longer be eligible for valuation discounts (though any remaining bona fide business assets would still be eligible for a minority and marketability discounts as appropriate).
Ultimately, while some of the proposed changes may require large pivots to be made by advisors and clients, it’s worth remembering that this bill is not yet in its final form – there may still be weeks of negotiation before it is passed. That said, advisors should be prepared to act quickly, as many of the major proposals in the legislation are set to go into effect on January 1, 2022, and some will take effect as soon as the legislation is enacted… which may leave just weeks or even days to act if Congress proceeds!