Top 10 Income Tax Planning Ideas for 2013

Transcription

1 Top 10 Income Tax Planning Ideas for 2013 Presented by: Robert S. Keebler, CPA, MST, AEP(Distinguished) Ph: (920)

2 Ideas 1. Bracket Management 2. Real Estate Reorganizations 3. Charitable Lead Trusts 4. Income Shifting 5. Roth IRA Conversions 6. Substantial Sale Charitable Remainder Trust 7. Retirement Charitable Remainder Trust 8. Income Shifting Charitable Remainder Trust 9. IRC 453 Deferred Installment Sale % Surtax on Net Investment Income Bonus: 11. NING Trust

3 Executive Summary The higher rates under American Taxpayer Relief Act (ATRA) and Affordable Care Act (ACA) have necessitated a quantum leap in our approach to tax planning This paradigm shift requires a longer term analysis because of the five-tier system

4 Five Tiers Traditional Income Tax Alternative Minimum Tax 3.8% Tax on Net Investment Income PEP and PEASE limitations The 39.6% and 5% incremental rates

5 Bracket Management

6 Time Frame Shift : 3-5 year horizon : EGTRRA Decade : Time of irresolution 2013-Forward: 5-15 year horizon

7 Recap Flying below the radar $450, % Ordinary Income Tax Rate $300,000 PEP/Pease $250, % Surtax

8 Key Management Issues Capital Gain Rates Income Tax Rates Ordinary Income should at least equal Itemized Deductions plus exemptions Tax liability should equal tax credits available

9 Taxable Income and RMD

10 Amount over 39.6% Tax Bracket

11 Income Tax Rate

12 Capital Gains Tax Rate

13 Taxable Income per Bracket

14 Itemized Deductions

15 Real Estate Reorganizations

16 Real Estate Reorganizations The 3.8% Net Investment Income Tax is imposed on Self-Rentals This tax can be avoided with a tax-free restructuring

17 Today s Ownership 50% 50% 50% 50% Operations, LLC Lease Payments Real Estate, LLC Lease is subject to the surtax

18 New Design Holding LLC 100% 100% Operations LLC Lease Payments Real Estate LLC

19 Summary Tax-free transfer of both entities to Holding LLC The lease no longer exists for tax purposes 3.8% Surtax does not apply

20 Income Shifting

21 Key Transactions Outright gifts to children: Advantages Easy Effective Disadvantages No Asset Protection No Spousal Protection No Spend Thrift Protection

22 Key Transactions LLC and partnership gifts: Advantages Effective from a tax perspective Better control Income without cash flow Some asset protection Disadvantages Not the same level of asset protection as a trust

23 Key Transactions Gifts to non-grantor trusts for family EBSTs & QSSTs Distributions from existing trusts Conversion of grantor trusts to non-grantor trusts

24 Income Shifting Steps to Planning Step 1: Develop a 5 to 15 year projection of income and deductions and compare these projections to the various taxes Step 2: Develop an analysis to determine the client s permanent tax bracket. Analysis will test whether an intrabracket transactions increase the 3.8% surtax, the AMT, impact of PEP/Pease, or the 39.6% tax rate

25 Income Shifting Steps to Planning Step 3: Develop a series of bracket-crossing conversions analysis. Each analysis must be measured autonomously standing on its own and take into account the various taxes.

26 2013 Innovative CRT Strategies

27 Charitable Giving Vehicles Direct contributions Donor advised funds Charitable Trusts Charitable Remainder Trusts (CRTs) Charitable Lead Trusts (CLTs)

28 Substantial Sale CRT Substantial Sale CRT (Standard CRT) CRT to eliminate or reduce/defer the 3.8% Surtax and 5% incremental capital gains tax

29 Retirement Charitable Remainder Trust

30 Charitable Remainder Trust (CRT) A Charitable Remainder Trust (CRT) is a split interest trust consisting of an income interest and a remainder interest. During the term of the trust, the income interest is usually paid out to the donor (or some other named beneficiary). At the end of the trust term, the remainder (whatever is left in the trust) is paid to the charity or charities that have been designated in the trust document.

31 Charitable Remainder Trust (CRT) Donor (Income Beneficiary) Donor receives an immediate income tax deduction for present value of the remainder interest (must be at least 10% of the value of the assets originally contributed) Transfer of highlyappreciated assets Annual (or more frequent) payments for life (or a term of years) CRT Charity (Remainder Beneficiary) At the donor s death (or at the end of the trust term), the charity receives the residual assets held in the trust

32 CHARITABLE REMAINDER TRUSTS Charitable remainder trusts can be used to reduce or avoid surtax and incremental capital gains tax by smoothing out income CRTs are particularly useful when a taxpayer has a large capital gain that pushes income above the applicable threshold amount (ATA) Before explaining how the planning works, it will be helpful to look at some background information

33 CRTs Taxation The donor will NOT realize gain or loss when property is transferred to the trust However, the grantor may be required to recognize gain if: Property transferred is subject to indebtedness that exceeds grantor basis Grantor receives property from the trust in exchange for the transfer to the trust. The donor will NOT realize gain or loss if and when the transferred assets are subsequently sold by the trustee of the CRT

34 CRTs Taxation The character of income received by the recipient is subject to and controlled by the tier rules of IRC 664(b) First, distributions are taxed as ordinary income Second, distributions are taxed as capital gains Third, distributions are taxed as tax-exempt income (e.g. municipal bond income) Finally, distributions are assumed to be the non-taxable return of principal CRTs are not subject to the 3.8% surtax CRTs are not subject to the new 5.0% incremental capital gains tax

35 CRTs Taxation STEP 1: Current Ordinary Income STEP 2: Accumulated Ordinary Income STEP 3: Current Capital Gains STEP 4: Accumulated Capital Gains STEP 5: Current Tax- Exempt Income STEP 6: Accumulated Tax-Exempt Income STEP 7: Return of Capital Tier 1 Tier 2 Tier 3 Tier 4

36 Charitable Remainder Trust (CRT) Two Main Types of CRTs Charitable Remainder Annuity Trust (Standard - CRAT) The beneficiaries receive a stated amount of the initial trust assets each year The amount received is established at the beginning of the trust and will not change during the term of the trust regardless of investment performance (unless inadequate investment performance causes the trust to run out of assets) Charitable Remainder Unitrust (Standard - CRUT) Income beneficiaries receive a stated percentage of the trust s assets each year. The distribution will vary from year to year depending on the investment performance of the trust assets and the amount withdrawn

37 FLIP Net Income with Makeup Charitable Remainder Unitrust (FLIP-NIMCRUT) Lesser of (until end of NIMCRUT term): (1) Net Income (2) Annual payout percentage (6.0%) each year (plus any makeup amounts in arrearage during NIMCRUT term) Grantor Charitable deduction when gifted After NIMCRUT term, the payment will be based on the annual payout percentage (6.0%) (any makeup amounts in arrearage are irrevocably lost after conversion) Gift of highly-appreciated asset $1,000,000 FLIP-NIMCRUT Highly-appreciated asset is sold Cash is reinvested without any income tax being imposed Wealth Replacement Trust $1,000,000 At death At death (or end of term) Charity Beneficiaries 37

38 Income Shifting CRT Income Shifting CRT (Standard CRT for children) CRT to eliminate or reduce/defer the 3.8% surtax and 5% incremental capital gains tax while shifting the incidence of taxation to children and grandchildren

39 Income Shifting CRT Shifts ordinary income to family Shift capital gains to family members Benefit charity

40 Charitable Remainder Trust (CRT) for Benefit of Donor s Children Donor s Children and Grandchildren Donor receives an immediate income tax deduction for present value of the remainder interest (must be at least 10% of the value of the assets originally contributed) Transfer of highlyappreciated assets Annual (or more frequent) payments for life (or a term of years) Considerations Income Tax Gift/Estate Tax Generation Skipping Tax Standard - CRT Charity (Remainder Beneficiary) At the donor s death (or at the end of the trust term), the charity receives the residual assets held in the trust

41 IRC 453 Deferred Installment Sale

42 IRC 453 IRC 453 allowed for deferral of taxation on Installment Sales $5,000,000 annual limitation $10,000,000 annual limitation for married couple Gain is generally deferred until payment occurs Depreciation recapture provisions IRC 453(i)

43 Increase in Basis Sale from taxpayer to a non-grantor trust or a child receives a basis increase Basis will equal the purchase price

44 Two-year Rule IRC 453(e)(2) provides a sale by a related party within two years results in realization of the original deferral

45 Two Years and a day? No realization of the original gain if the sale is two years and a day

46 Example Dad sells to Son in exchange for a 20 year note with payments of principal and interest of $250,000 per year Dad flies below the radar

47 Nevada Incomplete Gift Non-Grantor Trust (NING)

48 Payment of Income Tax Gift Tax PLRs Grantor created an irrevocable trust for the benefit of himself and his issue and their issue. A corporate trustee is the sole trustee. During Grantor's lifetime, Trustee must distribute such amounts of net income and principal to Grantor and his issue as directed by the Distribution Committee and/or Grantor. The Distribution Committee is initially composed of Grantor and his sons. The Distribution Committee will cease to exist upon Grantor's death. Trust provides that at all times at least two Eligible Individuals must be members of the Distribution Committee. An Eligible Individual means a member of the class consisting of the adult issue, the parent of a minor issue, and the legal guardian of a minor issue.

49 Payment of Income Tax Gift Tax PLRs , Cont. A vacancy on the Distribution Committee must be filled by the eldest of Grantor's adult issue other than any issue already serving as a member of the Distribution Committee, or if none of Grantor's issue not already serving as a member of the Distribution Committee is an adult, then the legal guardian of the eldest minor issue shall serve, or if such minor issue does not have a legal guardian, then the parent of such minor issue. If at any time fewer than two Eligible Individuals are members of the committee, the Distribution Committee shall be deemed not to exist. Grantor, in a non-fiduciary capacity, may, but shall not be required to, distribute to any one or more of Grantor s issue, such amounts of the principal (including the whole thereof) as Grantor deems advisable to provide for the health, maintenance, support and education of Grantor s issue. Grantor held a testamentary limited power of appointment.

50 Payment of Income Tax Gift Tax PLRs , Cont. Rulings Received: During the period the Distribution Committee is serving, no portion of the items of income, deductions, and credits against tax of Trust shall be included in computing the taxable income, deductions, and credits of Grantor. The contribution of property to Trust by Grantor is not a completed gift subject to federal gift tax. Any distribution of property by the Distribution Committee from Trust to Grantor will not be a completed gift subject to federal gift tax, by any member of the Distribution Committee. Any distribution of property by the Distribution Committee from Trust to any beneficiary of Trust, other than Grantor, will not be a completed gift subject to federal gift tax, by any member of the Distribution Committee. Any distribution of property from Trust to a beneficiary, other than Grantor, will be a completed gift by Grantor. 50

51 Statutory Tax Reduction Opportunities 1. Master Limited Partnerships 2. Qualified Dividends 3. Return of Capital dividends 4. Low-turnover Index funds 5. Buy and Hold blue chip strategies 6. IRC /40 Investments 7. Real Estate & Leveraged Real Estate 8. Real Estate Investment Trusts 9. Life Insurance Strategies 10. Annuity Strategies 51

52 Statutory Tax Reduction Opportunities 11. Charitable Lead Trusts 12. Charitable Remainder Trusts 13. Charitable Remainder Retirement Trusts 14. IRAs, Non-deductible IRAs, Roth IRAs 15. Profit sharing plans 16. Defined Benefit plans 17. Oil & Gas Investments 18. Land investments followed by 1031 exchanges 19. Tax-exempt bonds 20. Wind, biofuel and solar investments 52

53 Required Disclosure Under Circular 230 Pursuant to the rules of professional conduct set forth in Circular 230, as promulgated by the United States Department of the Treasury, nothing contained in this communication was intended or written to be used by any taxpayer for the purpose of avoiding penalties that may be imposed on the taxpayer by the Internal Revenue Service, and it cannot be used by any taxpayer for such purpose. No one, without our express prior written permission, may use or refer to any tax advice in this communication in promoting, marketing, or recommending a partnership or other entity, investment plan or arrangement to any other party. For discussion purposes only. This work is intended to provide general information about the tax and other laws applicable to retirement benefits. The author, his firm or anyone forwarding or reproducing this work shall have neither liability nor responsibility to any person or entity with respect to any loss or damage caused, or alleged to be caused, directly or indirectly by the information contained in this work. This work does not represent tax, accounting, or legal advice. The individual taxpayer is advised to and should rely on their own advisors.