Proposed Tax Law Changes and their Planning Implications

As reported on Thursday, President Biden is expected to release a tax proposal this coming week to help finance the ambitious American Families Plan. There is still uncertainty as to what will be included in this proposal, when such changes would be effective (retroactive to Jan 1, 2021?), and most importantly, whether any of the proposed tax changes would get through Congress. It is important to keep in mind that tax law does not come from the executive branch so any proposals from the President would simply be proposals that Congress could choose to act on or not.

It is even more important to remember that the Senate is split across parties at 50/50 – limiting options for the Democrats to make any meaningful changes to tax law. Without 60 votes to avoid a filibuster, Senate Democrats hoping to push through tax reform are left to choose one of three options:

a) compromise with Republicans so as to get at least 60 votes and avoid filibuster;

b) use budget reconciliation measures which can bypass the filibuster but come with important restrictions; or

c) take the highly controversial step of changing Senate rules to eliminate the filibuster.

The most likely of these options is the budget reconciliation route and because it still requires the votes of all 50 Senate Democrats, any tax reform through budget reconciliation will have to accommodate even the most moderate Democrats who may be opposed to more extreme measures.

Because a few clients have recently asked about the proposals and the related financial planning implications, I felt it may be useful to summarize the major tax proposals. Obviously, we are dealing with significant uncertainty right now so none of this is intended as a call to action. As we all learn more about the specific proposals and the likelihood of the proposals advancing into law, the advice will become more specific and tailored to the unique circumstances of each Golden Bell Financial client.

Income Tax

Here is what we know: President Biden wants to increase the top marginal rate from its current level of 37.0% back to 39.6% where it was before the 2017 Tax Cuts and Jobs Act. What is unclear is whether the top rate would just shift from 37% to 39.6% (affecting income above $628,300 for married filers; above $523,600 for single filers) or whether taxpayers with income above $400,000 will also be subject to this higher 39.6% rate. Also, we do not know when such a change, if enacted, would be effective. While anything is possible in Washington DC and law permits for tax reform to be retroactive (see the Tax Reform Act of 1993), it seems unlikely that any changes to income tax would begin before January 1, 2022 just due to the significant political challenges (needing to get all 50 Democrats on board would make it very challenging to pass a retroactive income tax change).

Planning Implications: This one would be a non-event for all taxpayers earning under $400,000/year and perhaps for taxpayers earning under $628,300 (it is unclear where the “line” will be drawn for individuals). For higher income taxpayers who stand to be affected, there is some talk of accelerating Roth conversions before any tax changes to take advantage of the lower rates that exist today before the increase. Personally, I think that annual strategic Roth conversions for retirees before age 72 continue to be a great planning idea regardless of changes to the highest income tax rate. However, the advice of large one-time Roth conversions is a terribly flawed planning idea for all but ultra high net worth taxpayers.

Consider a married couple in their early 50’s who currently earn $800,000/year, have roughly $3 million saved, and face a marginal tax rate of 37% on any additional income under the current tax law. They are worried about that rate increasing to 39.6% and are considering an immediate $400,000 Roth conversion which would result in an added tax liability of $148,000 (37% x $400,000). The reality is that when they retire in the next ten years, their marginal tax rate will likely drop to either 12% or 22% as their only taxable income will be dividends and interest from their taxable investment portfolio. As a result, a Roth conversion today would simply accelerate taxes at the 37% rate that they could have waited to convert at dramatically lower tax cost upon retirement (they pay taxes earlier and at a much higher rate – neither of which is good).

There is one case where a large one-time Roth conversion could makes sense as a planning opportunity in light of the proposed income tax change to 39.6%: the ultra-high net worth taxpayer who reasonably expects to stay in the highest tax bracket into retirement. This tends to be someone with at least $25-$30 million of investment assets (where interest and dividends would likely get to the highest bracket) or someone who has a pension that will pay more than $400,000/year upon retirement.

Capital Gain Tax

The expected recommendation is to tax long-term capital gains as ordinary income for taxpayers earning more than $1 million. This fits with what the Biden camp proposed during the campaign. For taxpayers with less than $1 million of income, there would be no impact. For taxpayers earning over $1 million, this is expected to work as a marginal tax where only gains above the $1 million level would be subject to the higher rate. The marginal tax rate on such gains would increase from a current rate of 23.8% (accounting for the net investment income tax of 3.8%) to 43.4% (39.6% + 3.8%).

Planning Implications: If this new tax goes in as outlined in the recent White House leaks, married filers with annual income below $1 million would see no impact on their personal taxes (uncertainty again as to where the line would be for individual taxpayers). For taxpayers who annually earn more than $1 million and hold appreciated assets or just for taxpayers with annual income below $1 million who own highly appreciated assets, the tax calculus will get really interesting and really case specific. Some people will be well-served to realize large gains in 2021 whereas many others will be best-suited to do nothing or hold on to assets until retirement when their income is expected to decline. This is going to be an area where quality financial planners and tax accountants will be extremely valuable and bad advice will be really expensive.

One quick note: There is precedence for mid-year updates to the capital gains rate so it is not a foregone conclusion that this change – if enacted in 2021 – would be deferred until January 1, 2022. The Jobs and Growth Tax Relief Reconciliation Act of 2003 imposed a new (lower) capital gains rate for gains realized after May 6th of that year. That said, I expect that this proposed change to capital gains – again because of the political complexity of implementing it mid-year – would not take effect until 2022, at the earliest.

Basis Step-Up at Death

Under current law, individuals do not pay any tax on appreciated assets at death and beneficiaries who inherit assets only pay tax on the growth that occurs after the grantor’s date of death under a provision referred to as the “step-up in basis”. In conjunction with the proposal to increase the capital gains rate for high income individuals, the step-up in basis would also be eliminated (albeit likely with an exemption of $1 million that some Senate Democrats want to see included). Increasing the capital gains rate without also eliminating the step-up in basis would just further incentivize high net worth taxpayers to hold assets until death, thereby skirting the higher capital gain rates. It is expected that appreciated assets (above the exemption amount, if there is one) would be deemed sold at death and the gain subsequently taxed – akin to the “deemed disposition” laws present in Canada.

Planning Implications: This one would have significant implications and likely impact far more people than just the high income earners impacted by the new capital gains rate – especially if the primary residence is not given its own exemption. First, it will be a record keeping nightmare for inheritance beneficiaries who have to go determine how much grandma paid for XYZ stock in 1973. Additionally, individuals who planned to hold highly appreciated assets until death to let heirs benefit from the step-up in basis will need to consider staged liquidations. The use of appreciated assets for charitable giving will become even more of a no-brainer strategy than it already is. Planning strategies – again – will be highly specific to circumstances such as projected income levels, expected inheritance amount, wealth of targeted heirs, and the current level of asset appreciation.

Estate Tax

During his campaign, President Biden suggested a decrease in the estate tax exemption (and similarly gift tax exemption) from $11.7 million per person to the same $5 million level (possibly indexed for inflation) that was in place prior to the Tax Cuts and Jobs Act (TCJA). This change is scheduled to happen in 2026 by way of TCJA sunset without any new legislation.

Planning Implications: Remember that for married couples, the estate/gift tax exemption effectively doubles the individual exemption meaning that a married couple can currently gift up to $23.4 million to their heirs without any gift or estate tax implications. Reducing the exemption back to $5 million per person ($10 million for married couples with a possible inflation index, making the married exemption figure closer to $11 million) before the scheduled sunset in 2026 does not have any impact on families who expect/intend to leave estate values below these levels to their heirs. But if changes to the estate tax gain support, high net worth individuals and married couples who intend to leave estates in excess of $10 million to heirs will want to immediately consider strategies to take advantage of the current gift tax exemption. Such strategies such as gifts to a grantor retained annuity trust (GRATs) or spousal lifetime access trust (SLATs) will become popular for ultra high net worth families if the potential for exemption change seems likely. That said, professional help is warranted to avoid significant problems if any estate tax change is made retroactive to the start of 2021.

Social Security Tax

Currently, only the first $142,800 of employment income is subject to the 6.2% Social Security tax. President Biden has proposed imposing the tax for employment income above $400,000 – creating a doughnut hole between $142,800 and $400,000.

Planning Implications: There will not be much planning here other than the increased popularity of S-corporations for self-employed individuals and small business owners who earn more than $400,000/year.

Itemized Deductions – SALT Limit

There is growing advocacy – especially by Congressional Democrats from blue states such as New York, New Jersey, and California – to repeal the $10,000 deduction limit on the state and local taxes (SALT) enacted by the Tax Cuts and Jobs Act. The interesting thing about repealing the SALT limit is that the biggest beneficiaries would be high income earners with expensive homes – not usually the demographic that Democrats seek to protect. As a result, this is likely to be a proposal where both Democrats and Republicans are divided within their own parties.

Planning Implications: While this doesn’t have the momentum of other tax proposals, the impact would be much more widespread than the income tax and capital gain tax proposals. Repeal of the SALT tax has specific planning implications related to the value of mortgage interest and the value of charitable deductions. If the repeal gained support and seemed likely to be effective starting in 2022, many taxpayers would be wise to defer charitable contributions until 2022 to take advantage of a higher deduction.

Retirement Plan Deduction Elimination

A change that Joe Biden proposed on several occasions during his campaign was an elimination of the deduction for retirement plan (401k/403b) contributions and replacing the deduction with a tax credit (no clarity on the credit percentage although 26% and 28% have garnered attention). This proposal was described by President Biden as “equalizing” the benefit of retirement plan contributions for high and low income workers.

Planning Implications: This tax change would completely reverse the math on Roth vs. Traditional retirement plan contributions. For most taxpayers today, the higher your income is, the more beneficial that Traditional 401k/403b contributions are. Alternatively, the lower your income, the more beneficial that Roth contributions are.

If the current deduction gets replaced with a 26% or 28% credit for retirement plan contributions, the majority of individuals would want to immediately reverse what they are doing now (assuming that what they’re doing now is economically rational). Anyone in a low income year (including semi-retired individuals with reduced income who face a marginal tax rate of 24% or less – below $329,850 of income for a married couple) would want to switch from Roth contributions to Traditional contributions to get the higher tax credit.

Conversely, most high income earners would want to immediately switch to Roth contributions because continuing to make Traditional retirement plan contributions would effectively be penalized by a double tax. Consider an individual in the proposed 39.6% bracket who continued to make Traditional 401k contributions for which he received a 26% tax credit. He pays a 13.6% tax now on any 401k contributions (39.6% – 26%) and then pays tax again upon withdrawing the money in retirement (perhaps an additional 39.6% tax for a combined tax rate of 53.2%).

Closing Comments

We expect to get some specifics later this week on the revenue proposals from President Biden although a lot has to happen before any of those proposals become tax law. It is worth reiterating that even once the president lays out his proposals, a lot probably will change in the details before anything reaches the House or Senate floors for a vote. It will be a real challenge for the Senate to pass meaningful tax reform under budget reconciliation – both because of the restrictions and the need to get all 50 Senate Democrats on board with such reform. As a result, we should take all of the items above with a deep breath and a big grain of salt because there is significant uncertainty as to what, if any, tax reform will come to be this year.

Comments or questions? Please do not hesitate to leave them below in the Comments section and I will do my best to promptly respond.