The Advisor's Professional Library

Selected Provisions of the American Taxpayer Relief Act of 2012

March 4, 2013

Introduction

The experts of Tax Facts have produced this comprehensive analysis of selected provisions of the American Taxpayer Relief Act of 2012 (the Act) to provide the most up-to-date information to our subscribers. This supplement analyzes important changes to the tax code with emphasis on how these developments impact Tax Facts’ major areas of focus: Employee Benefits, Insurance, and Investments.

Written by the foremost experts in the field—Robert Bloink, Esq., LL.M, and Professor William H. Byrnes, Esq., LL.M, CWM—this supplement provides the most current information available on these important areas of taxation.

What is the American Taxpayer Relief Act of 2012?

The Act is essentially the legislation that codified the tax compromise reached by Congress in the first days of 2013 in response to the fiscal cliff crisis. The Act prevented a series of widespread tax increases that were scheduled to become effective January 1, 2013, when many of the compromise provisions agreed upon in 2010 legislation were scheduled to expire. Further, the Act extended certain tax credits and preferences through 2013 and beyond, making a number of tax credits retroactively available for the 2012 tax year.

President Obama signed the bill into law on January 2, 2013.

Why is the Act important?

Although the Act creates very little new law, if Congress had not passed the Act, nearly all taxpayers would have seen a massive tax increase in 2013 as tax rates would have automatically increased to the levels seen before the “Bush-era” tax cuts were implemented. In 2010, Congress enacted the Tax Relief Act of 2010 (TRA 2010) to prevent the reversion of tax rates to the pre-2001 levels. TRA 2010 also prevented the expiration of numerous tax incentives that would have effectively increased tax rates for millions of taxpayers.

Despite this, the compromises reached in TRA 2010 provided only a temporary solution, because legislators drafted the bill so that its provisions would “sunset,” or expire, after 2012. Because of this, Congress faced the same challenges in 2012 that it saw in 2010—the potential for huge tax increases that would impact all taxpayers and all sources of income, coupled with expiring tax credits that would further increase effective tax rates.

The Act largely prevented these tax increases by raising taxes and limiting tax preferences for a much smaller group of high-income taxpayers beginning in 2013. Perhaps most importantly, the Act provides certainty for taxpayers by making most tax rates, and many tax breaks, permanent.

S1. What are the major provisions of the Act?

1.   Income Tax Rates—The Act made the Bush-era tax cuts permanent for taxpayers who fall within the 10 percent, 15 percent, 25 percent, 28 percent, 33 percent and 35 percent tax brackets. However, the compromise increased the income tax rate to 39.6 percent for high income taxpayers with annual taxable income above $450,000 ($400,000 for single filers).

2.   Limitations on Itemized Deductions—Beginning in 2013, the Pease limitation on itemized deductions is restored for married taxpayers with adjusted gross income above $300,000, single taxpayers with adjusted gross income above $250,000, and heads of households with adjusted gross income above $275,000. For these taxpayers, itemized deductions are reduced by 3 percent of the amount by which their adjusted gross income exceeds the applicable threshold, but not to exceed 80 percent of the otherwise allowable deductions for the year.

      For more information on the Pease limitation see 2013 Tax Facts on Insurance & Employee Benefits, Supplement, Q. S3(a).

3.   Limitations on Personal Exemptions—Beginning in 2013, the personal exemption phase-out (PEP) limitation on personal exemptions is restored for married taxpayers with adjusted gross income above $300,000, single taxpayers with adjusted gross income above $250,000 and heads of households with adjusted gross income above $275,000. For these taxpayers, the allowable exemption amount will be phased out, or reduced, by 2 percent for every $2,500 by which the taxpayer’s adjusted gross income exceeds the threshold amount.

4.   Capital Gains and Dividend Tax Rates—The maximum capital gains and dividend tax rate was raised to 20 percent for taxpayers with annual taxable income above $450,000 ($400,000 for single filers). For taxpayers taxed at a rate below 25 percent, the capital gains and dividend rate will be 0 percent, and for all other taxpayers the rate will be 15 percent. All capital gains and dividend tax rates were made permanent.

5.   Transfer Taxes—The Act permanently raised the maximum estate, gift, and GST tax rate to 40 percent, maintained the $5 million exemption level (indexed to $5.25 million for 2013) and continued the unification of the three transfer taxes. It also made portability of the $5 million lifetime exemption between spouses permanent.

6.   Alternative Minimum Tax—The Act permanently patched the AMT exemption amount to protect middle class taxpayers from AMT liability. The exemption for tax years beginning after 2011 is $78,750 for joint filers, $39,375 for marrieds filing separately, and $50,600 for singles. These amounts will now be adjusted annually for inflation, beginning with 2013.

7.   Individual Tax Credits—The Act extended a number of tax credits for 2013, including the American Opportunity credit, several rules applicable to the refundable child credit, and certain earned income tax credit provisions.

8.   Business Tax Credits—The Act also extended a number of business tax credits, including the research tax credit, the Indian employment tax credit, the new markets tax credit, the railroad track maintenance credit, the mine rescue team training credit, the employer wage credit for employees who are active duty members of the uniformed services, and the work opportunity credit.

9.   Energy Tax Credits—The Act extended a number of energy-related tax credits, including: the credit for energy-efficient existing homes, the credit for alternative fuel vehicle refueling property, the credit for ttwo- or three-wheeled plug-in electric vehicles, the cellulosic biofuel producer credit, the production credit for Indian coal facilities, credits for facilities producing energy from renewable resources, credit for energy-efficient new homes, the credit for energy-efficient appliances, and the alternative fuels excise tax credits.

10. Charitable Donations from Retirement Accounts—The Act retroactively extended the tax-free treatment of charitable donations made directly from an individual retirement account for 2012 and 2013. Donations could be made up to January 31, 2013 for the 2012 tax year.

11. Expanded 401(k) to Roth 401(k) Conversion Rules—The Act expanded the ability of taxpayers to roll funds from a traditional 401(k) into a Roth 401(k) by eliminating the requirement that the taxpayer otherwise be eligible to take a distribution from the 401(k) in order to convert the funds.

Income Tax Rates

S2(a). What were the income tax rates for 2012?

The following rates were applicable in 2012:

 

Taxable Income

Tax Rate

Single

Married Filing Jointly

Married Filing Separately

Head of Household

10 percent

$0 to $8,700

$0 to $17,400

$0 to $8,700

$0-$12,400

15 percent

$8,701-$35,350

$17,401-$70,700

$8,701-$35,350

$12,401-$47,350

25 percent

$35,351-$86,650

$70,701-$142,700

$35,351-$71,350

$47,351-$122,300

28 percent

$86,651-$178,650

$142,701-$217,450

$71,351-$108,725

$122,301-$198,050

33 percent

$178,651-$388,350

$217,451-$338,350

$108,726-$194,175

$198,051-$388,350

35 percent

$388,351 and up

$388,351 and up

$194,176 and up

$388,351 and up

 The standard deduction was $5,950 in 2012 for single filers and married taxpayers filing separately, $11,900 for married taxpayers filing jointly, and $8,700 for heads of household.

The income tax rates applicable to estates and trusts in 2012 were as follows:

Taxable Income

Tax Rate

 

15 percent

$0 to $2,400

25 percent

$2,401-$5,600

28 percent

$5,601-$8,500

33 percent

$8,501-$11,650

35 percent

$11,651 and up

S2(b). What are the changes to the income tax rates for 2013?

In 2013, certain high-income taxpayers will be subject to a 39.6 percent tax rate. These high-income taxpayers include individual taxpayers earning more than $400,000 per year, married taxpayers earning more than $450,000 per year, taxpayers filing as heads of household who earn more than $425,000 per year, and married taxpayers filing separately who earn more than $225,000 per year. These dollar limits are subject to annual inflation adjustment. For all other taxpayers, the Bush-era tax cuts were made permanent.

If Congress had failed to act, all rates would have jumped to their pre-2001 rates (15 percent, 28 percent, 31 percent, 36 percent and 39.6 percent), eliminating the 10 percent tax bracket and increasing rates for all other taxpayers.

The following rates are applicable in 2013:

 

Taxable Income

Tax Rate

Single

Married Filing Jointly

Married Filing Separately

Head of Household

10 percent

$0 to $8,925

$0 to $17,850

$0 to $8,925

$0 to $12,750

15 percent

$8,926-$36,250

$17,851-$72,500

$9,926-$36,250

$12,751-$48,600

25 percent

$36,251-$87,850

$72,501-$146,400

$36,251-$73,200

$48,601-$125,450

28 percent

$87,851-$183,250

$146,401-$223,050

$73,201-$111,525

$125,451-$203,150

33 percent

$183,251-$398,350

$223,051-$398,350

$111,526-$199,175

$203,151-$398,350

35 percent

$398,351-$400,000

$398,351-$450,000

$199,176-$225,000

$398,351-$425,000

39.6 percent

Over $400,000

Over $450,000

Over $225,000

Over $425,000

 The standard deduction is $6,100 in 2013 for single filers and married taxpayers filing separately, $12,200 for married taxpayers filing jointly, and $8,950 for heads of household.

The income tax rates applicable to estates and trusts in 2013 are as follows:

Taxable Income

Tax Rate

 

15 percent

$0 to $2,450

25 percent

$2,451-$5,700

28 percent

$5,701-$8,750

33 percent

$8,751-$11,950

39.6 percent

Over $11,950

 

For more information on the income tax rates applicable in 2013 and earlier tax years, see 2013 Tax Facts on Insurance & Employee Benefits, Q 472.

S2(c). Were there any additional tax increases that impact ordinary income?

Although the marginal income tax rates were increased for only the wealthiest taxpayers, the expiration of the payroll tax cuts will increase the tax burden for all taxpayers in 2013. The payroll tax cuts, which were put into place in 2009 and later extended through 2012, reduced the 6.2 percent Social Security payroll tax on wages by 2 percent. This tax cut was allowed to expire at the end of 2012, resulting in a tax increase on all taxpayers’ income. The tax applies to the first $113,700 of an employee’s wage income in 2013 (up from $110,100 in 2012).

Now that the payroll tax cuts have expired, the average American worker earning $50,000 per year will pay approximately $80 per month more in taxes—and high-income employees will see an increase of up to $2,200 per month.

S2(d). Are there any planning opportunities presented by the new rates?

The increases in marginal tax rates, combined with the limitations now imposed on itemized deductions and personal exemptions for upper middle class and high net worth clients, have created a substantial incentive for these taxpayers to reduce taxable income below the new threshold levels.

Clients who are not already making the maximum contributions to their retirement accounts ($17,500 in 2013 plus an additional $5,500 catch-up contribution for taxpayers age fifty and older) can reduce taxable income by taking full advantage of the 2013 contribution limits. While these contributions will eventually be taxed at future tax rates, that taxation will often take place once the client has entered retirement and fallen into a lower tax bracket.

Certain clients who wish to make large charitable gifts can also reduce their taxable income by up to $100,000 by making these gifts directly from an individual retirement account in 2013. The revival of this technique for 2012 and 2013 is discussed in Questions S11(a), (b) and (c).

Itemized Deduction Limits

S3(a). How were itemized deductions treated under 2012 law?  

Taxpayers who itemized deductions on their 2012 tax returns were permitted to subtract the allowed itemized deductions from adjusted gross income (AGI) in arriving at taxable income, effectively reducing their tax burden. A variety of deductions were allowed in 2012, including deductions for mortgage interest, charitable contributions, and state and local taxes.

Prior to 2010, most itemized deductions were reduced dollar-for-dollar by the lesser of (1) 3 percent of the amount of the taxpayer’s AGI that exceeded $166,800, as adjusted annually for inflation ($83,400 for married taxpayers filing separately) or (2) 80 percent of the amount of such itemized deductions otherwise allowable for the tax year. This limitation was known as the “Pease” limitation. Beginning in 2005, the Pease limitation on itemized deductions was gradually reduced until it was eventually repealed for 2010-2012. Despite this, the reduction was temporary and was always scheduled to expire at the end of 2012, when the limitation on itemized deductions would resume beginning January 1, 2013.

The repeal of the Pease limitation was especially valuable to high-income taxpayers, who are often able to take advantage of itemizing deductions to a greater extent than low-income taxpayers.

S3(b). How did the Act change the way that itemized deductions will be treated beginning in 2013?

The Act allowed the income-based phaseout to resume in 2013, so that upper middle class and high net worth clients who have earned income above the annual threshold levels are limited in the itemized deductions they are allowed to recognize. This results in a substantially higher tax burden for these taxpayers.

For 2013, the threshold levels are $300,000 for married taxpayers filing joint returns (and surviving spouses), $275,000 for taxpayers filing as heads of household, $250,000 for individual filers, and $150,000 for married taxpayers filing separately. These amounts will be adjusted annually for inflation.

Thus, for higher income taxpayers in 2013, itemized deductions will be reduced by 3 percent of the amount that the taxpayer’s AGI exceeds the applicable threshold amount, not to exceed 80 percent of the itemized deductions otherwise allowable for the tax year.

For more information on the treatment of itemized deductions, see 2013 Tax Facts on Insurance & Employee Benefits, Q 464.

S3(c). How will revival of the Pease limitation on itemized deductions impact tax planning in 2013?

The income-based limitations on tax deductions should cause taxpayers with earned income above the threshold levels to carefully evaluate their financial plans to determine whether current plans will continue to further their financial goals. For example, some clients may have maintained mortgages on their homes only because of the associated mortgage interest tax deductions. For high net worth clients, the limitations on itemized deductions may eliminate the benefit of that tax deduction, meaning that it will make more sense for the client to pay off the mortgage if possible.

Taxpayers who make regular charitable donations will also need to closely examine these choices and the rationale behind them. Clients who make charitable gifts in order to reduce their tax burden should be advised that the revival of the Pease limitation could make it more difficult to realize this goal.

However, as discussed in Questions S11(a), (b) and (c), the Act also revived the tax-free treatment given to charitable donations of up to $100,000 per year by certain individuals, if those donations are made directly from individual retirement accounts. For taxpayers with substantial retirement assets who wish to continue to make large charitable gifts, this method may prove more beneficial than a direct gift in 2013.

Personal Exemption Limits

S4(a). Was the personal exemption limited or subject to phaseout under 2012 law?

There was no phaseout of the personal exemption based on adjusted gross income (AGI) in 2010-2012. The phaseout that existed prior to 2010 was gradually reduced beginning in 2006 by multiplying the otherwise applicable phaseout amount by an “applicable fraction” designated for the specific year. The applicable fraction for each year was as follows: 66.6 percent (⅔) in 2006 and 2007; 33.3 percent (⅓) in 2008 and 2009; and 0 percent in 2010, 2011, and 2012. Like many other tax provisions, this treatment was temporary, and was scheduled to expire beginning January 1, 2013.

S4(b). How did the Act change the way that personal exemptions will be treated beginning in 2013?

The Act permitted the revival of the personal exemption limitations. Beginning in 2013, the personal exemptions of certain upper income taxpayers are phased out over defined income levels. The dollar amount of personal and dependency exemptions of taxpayers with adjusted gross income above the threshold levels is reduced by an “applicable percentage” in the amount of two percentage points for every $2,500 or fraction thereof ($1,250 in the case of a married individual filing separately) by which the taxpayer’s adjusted gross income exceeds the threshold. For 2013, the threshold amounts are: $300,000 for married taxpayers filing jointly (and surviving spouses); $275,000 for heads of households; $250,000 for individual filers; and $150,000 for married taxpayers filing separately. These amounts are adjusted annually for inflation.

The personal exemption for 2013 is $3,900, so that the phaseout is completed at the following income levels: $372,500 for individual filers, $422,500 for married taxpayers filing jointly (and surviving spouses), $397,500 for heads of households, and $211,250 for married taxpayers filing separately.

For more information on the personal exemption and the limitations imposed on personal exemptions beginning in 2013, see 2013 Tax Facts on Insurance & Employee Benefits, Q 462.

S4(c). Does the reinstatement of the phaseout of personal exemptions impact client planning?

The phaseout applies only to income levels above a certain threshold amount. While many clients will be unable to reduce their income to fall below the threshold levels, clients who are close to the applicable limit will want to ensure that they are taking steps that can reduce their taxable income. For example, contributing the maximum amounts to retirement accounts or health savings accounts can reduce taxable income so that the phaseout may not apply to the particular client.

Capital Gains, Dividends, and Investment Income Taxes

S5(a). What were the capital gains and dividend tax rates in 2012?

Under 2012 law, investments held for more than one year (long-term capital gains) were taxed at a maximum rate of 15 percent for taxpayers in the 25 percent or higher tax bracket. Taxpayers in the 10 percent and 15 percent tax brackets were taxed at 0 percent on long-term gains recognized in 2012.

Under prior law, dividends were treated as ordinary income and were subject to ordinary income tax rates. For 2003 through 2012, however, dividend income was taxed in the same manner as long-term capital gains, so that the tax on dividend income was 0 percent for taxpayers in the 10 percent and 15 percent tax brackets, and 15 percent for all other taxpayers. This treatment was scheduled to expire effective January 1, 2013, when dividends would once again be taxed as ordinary income.

S5(b). How did the Act change the capital gains and dividend tax rates for 2013?

Like the income tax rates, the favorable tax rates applicable to capital gains and dividends were part of a compromise agreement set to expire at the end of 2012. The Act prevented the expiration of the favorable 2012 rates for most taxpayers, but increased the capital gains and dividend tax rates for those in the highest income tax bracket: individual taxpayers earning over $400,000 annually, joint filers earning over $450,000, and heads of households earning over $425,000 annually.

In 2013 and beyond, dividend income will continue to be taxed in the same manner as income from capital gains.

For taxpayers who fall within the new 39.6 percent top income tax bracket, the 15 percent rate was increased to 20 percent effective January 1. When coupled with the new investment income tax (discussed in Questions S5(c) and (d)), the capital gains and dividend rates will rise to 23.8 percent for these high-income taxpayers.

Taxpayers who are taxed below 25 percent on ordinary income will be taxed at 0 percent on capital gains and dividends, and the 15 percent capital gains and dividend rate will continue to apply to taxpayers in the 25 percent, 28 percent, 33 percent, and 35 percent tax brackets. The 3.8 percent investment income tax will increase the rate to 18.8 percent for certain taxpayers in the 15 percent capital gains and dividend tax bracket, however, if their AGI is above the income thresholds discussed below ($200,000 for individual filers and $250,000 for joint filers).

For an in-depth discussion of the applicable capital gains rates, see 2013 Tax Facts on Insurance & Employee Benefits, Q 455.

S5(c). Are there any additional new taxes that will apply to investments in 2013?

An additional 3.8 percent tax on the investment income earned by certain higher income taxpayers was created by the Patient Protection and Affordable Care Act (PPACA). Under the PPACA, this additional tax becomes effective on investment income recognized on or after January 1, 2013. Though this tax was not a part of the fiscal cliff negotiations, it will result in a tax increase for many investors.

The 3.8 percent tax on “unearned income” will affect taxpayers with AGI of more than $200,000 for single filers, or $250,000 for married couples filing jointly. The 3.8 percent will be added to the rates currently in effect, increasing the capital gains and dividend tax rates for many taxpayers.

Though the tax is deemed to be a tax on unearned investment income, in some circumstances it can apply to a portion of a taxpayer’s AGI. In calculating the tax owed, the taxpayer must first determine his or her net investment income for the year. If net investment income is less than the amount by which the taxpayer’s AGI exceeds the $200,000/$250,000 threshold, the tax applies to the investment income. If net investment income is greater than the difference between AGI and the threshold amount, the tax applies to the portion of AGI that exceeds the threshold.

Therefore, if a married couple has $300,000 of earnings in 2013, the tax applies to all investment income, but if the couple has $225,000 in earnings and $100,000 in investment income, the tax applies only to the $75,000 because the first $25,000 falls below the $250,000 threshold.

What is “Investment Income”?

Essentially, net investment income is income that is considered “unearned”—meaning income received from investments such as stocks, bonds, and mutual funds. Net investment income obviously includes dividends and interest received through investment in these vehicles, but, in some cases, can also apply to income derived from the sale of a primary residence.

To determine whether the tax applies to the sale of a primary residence, special rules apply. A single taxpayer is permitted to exclude the first $250,000 of capital gain from his or her AGI (the amount is increased to $500,000 for a married couple filing jointly). So, for example, if a married couple purchases a home for $100,000 and later sells it for $700,000, their capital gain is $600,000. The couple would then subtract the $500,000 exclusion and add the $100,000 excess to their AGI. There is no exclusion for gain on the sale of a secondary residence.

Amounts received from Social Security, 401(k) plans, IRAs, pensions, and similar retirement income sources are not included in net investment income, though these types of income could still increase AGI above the threshold levels so that a taxpayer’s income from other investment vehicles becomes subject to the tax.

S5(d). How should clients plan for the 2013 changes to the taxation of investments?

Though the Act did bring certainty by making the tax rates for capital gains and dividend income permanent, many taxpayers will see a higher tax burden because of the increased rates for higher income taxpayers. However, clients should be advised that there are planning strategies that can help reduce this tax burden.

Clients who will become subject to the additional investment income tax can move some of their investments to minimize the impact of the tax in 2013 and beyond. For example, income from municipal bonds is currently exempt from the tax. Gains realized on investments in retirement accounts are also not subject to the additional 3.8 percent tax. In many cases, contributions to these accounts can be made with pre-tax dollars that can reduce a client’s AGI to below the threshold income levels that trigger the tax.

The increased taxes on investment income will make life insurance a more attractive investment vehicle for many clients in 2013. While the primary purpose of life insurance is usually to provide income for an insured’s beneficiaries upon his or her death, certain types of life insurance can also function as tax-preferred investment vehicles. The increases in capital gains and dividend tax rates under the Act, coupled with the new 3.8 percent tax on investment income, substantially increase the tax burden on income received from traditional investments. Because of this, many clients will be looking for ways to realize gain on investments without the corresponding tax burden.

As a result, life insurance policies that provide coverage for an insured’s life will likely become a more attractive product. This type of permanent life insurance policy is one that remains in effect for the client’s entire life, as long as they continue paying the premiums. Although these policies are more expensive than term life insurance, which insures the client for only a specific term, they are guaranteed to provide a death benefit as long as the policy is maintained.

In addition to the guaranteed death benefit, permanent life insurance policies allow the policyholder to accumulate cash in the policy that can be withdrawn tax-free. Much like a Roth IRA, the growth realized on the cash value of the policy is not subject to tax, making these policies a powerful savings vehicle for clients who have already maximized their contributions to traditional retirement accounts. The longer a client can afford to allow the investment in the product to grow, the greater the investment return that can be realized. Therefore, these products are best suited for long-term investors who have pulled their investments from the equity markets because of higher taxes on traditional investments.

At its most basic level, a whole-life insurance policy requires that an investor pay a level premium each year and provides for a guaranteed death benefit on the death of the insured. However, these policies also contain an investment component, which is why they can provide a viable alternative for long-term investors. A portion of the premiums paid are invested by the life insurance company issuing the policy, building cash value in the policy that the insured can borrow against in the future. As noted above, premiums may have to be paid into the policy for a long period—sometimes fifteen to twenty years—before substantial appreciation on the investment can be seen.

Investing in Dividend-Paying Stocks

Investors attracted to dividend-producing stock may find fewer reasons than anticipated to alter their investment strategies for 2013. Like capital gains rates, tax rates applicable to dividend income were increased for most high-income investors—but by a substantially smaller margin than anticipated. While many investors expected dividend rates to be increased to match ordinary income tax rates, Congress acted to permanently set them at the same level applicable to capital gains. For some investors, that difference represents nearly a 20 percent difference in the applicable tax rate.

Many investors who acted late in 2012 to sell dividend-producing stocks may be interested in repurchasing some of these assets during 2013. However, clients should keep in mind that, in order to reduce shareholders’ tax burden, many companies may have actively decided to pull dividends into 2012 that could otherwise have been distributed in 2013. These investments may therefore produce less income in 2013 than they would have in other tax years.

Transfer Tax Provisions

S6(a). What were the basic transfer tax rates applicable in 2012?

In 2012, the maximum estate tax rate was 35 percent for taxpayers who were not able to shelter their entire estate through the generous $5.12 million lifetime exemption (indexed annually for inflation). The estate, gift, and generation-skipping transfer (GST) taxes were unified in 2012, meaning that the estate tax rates applied to the gift and GST taxes as well.

These rates were reached through a series of phased-in reductions in the tax rate and increases in the lifetime exemption amount. However, like most of the other favorable tax provisions implemented during the Bush era, these rates were scheduled to expire, effective January 1, 2013, when they would revert to their pre-2001 levels. Had the transfer tax provisions been allowed to expire, the top tax rate would have reverted to 55 percent with an exemption level of only $1 million.

S6(b). How did the Act impact transfer taxes for 2013?

The Act permanently set the maximum estate tax rate at 40 percent and the exemption was fixed at $5 million as of January 1. As under 2012 law, the $5 million exemption will continue to be indexed annually for inflation (the 2013 inflation-adjusted amount is $5.25 million). The estate, gift, and GST taxes will remain unified, so that the estate tax rates and exemption level continue to apply for gift and GST tax purposes.

Further, the Act continues the estate tax portability provision that allows a surviving spouse to automatically take advantage of his or her deceased spouse’s unused exemption amount. This provision allows a surviving spouse to avoid complicated estate planning by allowing the exemption to be portable between the two spouses, recognizing that gifts between spouses are typically tax-free.

For more information on the estate tax rates, see 2013 Tax Facts on Insurance & Employee Benefits, Q 497. The gift tax rates are discussed in Q 541, and information on the GST tax can be found in Q 525.

S6(c). Are there estate planning opportunities presented by the new rules?

Estate planning in 2013 and beyond will be simplified for most families because the exemption level will permanently remain at its generous 2012 level and will also remain portable between spouses. Even those high-income taxpayers who expect to leave estates in excess of $5 million can now plan with certainty.

Because the estate, gift, and GST taxes remain unified, the $5 million exemption will continue to allow clients to make large lifetime gifts and to establish trusts to pass assets to future generations. Many clients may have delayed establishing these trusts in 2012 because they can be expensive to administer, or simply because they were not ready to create an estate plan in the rushed 2012 planning environment. Now that the rates have been made permanent, clients can take their time to carefully evaluate their estate planning goals.

Though the exemption rate remains high, wealthy clients will be subject to a higher estate tax on assets that exceed that $5 million level. These clients should be more motivated than ever to use trust vehicles and other techniques to reduce the value of their taxable estates.

Alternative Minimum Tax

S7(a). How was the Alternative Minimum Tax calculated prior to the Act?

Because the alternative minimum tax (AMT) was originally intended to apply to higher income taxpayers who are able to reduce their tax burden through the widespread use of tax preferences, only taxpayers with income levels above a certain threshold amount are required to calculate their AMT liability. However, because the AMT exemption amount was not indexed for inflation, in the past Congress typically passed legislation each year to retroactively “patch” the AMT exemption amount for the prior tax year so that millions of lower income taxpayers would not become subject to the AMT as their income levels rose with inflation.

For the 2011 tax year, the AMT exemption amount was $74,450 for married taxpayers filing jointly (or surviving spouses) and $48,450 for single filers. Without a “patch,” these exemptions would have been lowered to $45,000 for married taxpayers filing jointly (and surviving spouses) and $33,750 for single filers on their 2012 tax returns.

S7(b). How did the Act change the way the AMT will be calculated in 2013?

The Act permanently patches the AMT exemption amount, applying retroactively to 2012. The Act also includes an inflation adjustment provision so that the exemption amount will be increased annually for inflation for all tax years beginning after 2012, eliminating the need for Congress to annually patch the AMT. Under the Act, the exemption amount for 2012 is $78,750 for joint filers (or surviving spouses), $50,600 for single filers, and $39,375 for marrieds filing separately. The IRS has released the 2013 inflation-adjusted amounts, as well, increasing the exemption amount to $80,800 for joint filers, and $51,900 for single filers.

S7(c). How do changes to the AMT under the Act impact clients’ planning in 2013?

By permanently patching the AMT by requiring annual inflation adjustments to the AMT exemption amount, the Act eliminates the need for many lower-income taxpayers to calculate their alternative tax liability. This should simplify tax planning for many taxpayers.

Higher income families who are already subject to the AMT may not be as strongly impacted by the 2013 limitations on itemized deductions and personal exemptions because many tax preferences are already eliminated or reduced under the AMT. Regardless of the higher exemption limits under the Act, clients should continue to monitor changes to the AMT (and their income levels) to determine whether they are liable for the tax. Clients should also note that proposals to eliminate the AMT entirely remain relatively popular among some in Congress, so it is possible that legislators will revisit the AMT system. In addition, the Act permanently allows individuals to offset AMT liability by the nonrefundable personal credits.

For more information on the alternative minimum tax, see 2013 Tax Facts on Insurance & Employee Benefits, Q 481.

Individual Tax Credits

S8(a). What credits were allowed against income tax in 2012?

American Opportunity Credit

The American Opportunity Credit (also known as the Hope Scholarship credit) provides a credit for each eligible student equal to the sum of: (1) 100 percent of qualified tuition and related expenses up to $2,000 (in 2009 through 2012); plus (2) 25 percent of qualified tuition and related expenses in excess of $2,000, up to the applicable limit. The applicable limit was twice the usual $2,000 amount ($4,000) in 2009 through 2012.

In 2009, the credit amounts for 2009 and 2010 were increased. In later years, the amounts used to calculate the credit are adjusted for inflation and rounded to the next lowest multiple of $100. The maximum credit for 2010-2012 was $2,500 ($2,000 + (25 percent × $2,000)).

Before 2009, the credit was available only for the first two years of postsecondary education. This limit was expanded to four years for 2009 through 2012.

The credit can be used only for qualified tuition and related expenses. Qualified tuition and related expenses are tuition and fees required for the enrollment or attendance of the taxpayer, the taxpayer’s spouse, or any dependent of the taxpayer (for whom he or she is allowed a dependency exemption) at an “eligible education institution.” Qualified tuition and related expenses do not include nonacademic fees such as room and board, medical expenses (including required student health fees), transportation, student activity fees, athletic fees, insurance expenses, and similar personal, living or family expenses unrelated to a student’s academic instruction.Additionally, qualified tuition and related expenses do not include expenses for a course involving sports, games, or hobbies, unless it is part of the student’s degree program. In 2009, the definition of qualified tuition and related expenses was expanded to include required course materials for 2009 through 2012.

Child Tax Credit

For years prior to 2001, in the case of a taxpayer with three or more qualifying children, the credit was refundable to the extent of an amount equal to the amount by which the taxpayer’s social security taxes exceed the taxpayer’s earned income credit. For later years, the credit is refundable, without regard to the number of children, but if there are fewer than three children a limitation based upon earned income applies. Thus, the credit is refundable to the extent of 15 percent of the taxpayer’s earned income in excess of $10,000 (10 percent in years before 2005).

For example, in 2012 a taxpayer with two eligible children and $17,000 of earned income would be entitled to a credit of $2,000 (2 x $1,000), of which $1,050 would be refundable (15 percent x ($17,000-$10,000)). The $10,000 floor amount for purposes of the foregoing rule is subject to adjustment for inflation in years after 2001.

In 2009, the floor amount was reduced to $3,000 for 2009 through 2012, which effectively increased the refundable amount.

Earned Income Tax Credit

The earned income credit provides a credit for certain lower income taxpayers with children. The credit is equal to a “credit percentage” of the taxpayer’s earned income that falls below certain income thresholds. For 2009 through 2012, the earned income tax credit for certain taxpayers with three or more qualifying children was increased so that the credit percentage was 45 percent.

State Death Taxes

In 2012, there was a federal tax deduction allowed for any estate taxes paid at the state level.

S8(b). Did the Act change the allowable credits for 2013?

American Opportunity Credit

The Act extended the American Opportunity Credit through 2017, including the increased credit amounts and applicable limit. The Act also extends the four-year availability of the credit and continues the 2009 expansion of the credit so that the “qualified tuition and related expenses” that the credit can be used to cover continues to include a student’s required course materials.

Child Tax Credit

The Act extended the favorable child tax credit provisions enacted in 2009 through 2017, so that the dollar amount for determining the “floor” for calculating the refundable portion of the credit will remain at $3,000.

Earned Income Tax Credit

Various provisions relating to the earned income tax credit were extended through 2017, including increased income phaseout levels and increased credit amounts for certain taxpayers with three or more children.

State Death Tax Credit

The Act extends the allowable federal tax deduction for estate taxes imposed at the state level.

See 2013 Tax Facts on Insurance & Employee Benefits, Q 479 for an in-depth summary of the American Opportunity credit. For more information on allowable tax credits, see 2013 Tax Facts on Insurance & Employee Benefits, Q 476.

S8(c). How does the Act’s extension of various individual tax credits impact tax planning in 2013?

Clients can continue to take advantage of education and child-related tax credits in 2013 with the certainty that the current treatment will remain in place for at least another five years.

Business Tax Credits

S9(a). What business-related tax credits were allowed in 2012?

Many business-related tax credits expired at the end of 2011. Because Congress took no action to extend these credits during the 2012 tax year, many taxpayers proceeded under the assumption that the credits would be unavailable during 2012.

S9(b). Did the Act change the allowable business tax credits for 2013?

The Act extended a number of business tax credits, including:

1.   the research tax credit,

2.   the Indian employment tax credit,

3.   the new markets tax credit,

4.   the railroad track maintenance credit,

5.   the mine rescue team training credit,

6.   the employer wage credit for employees who are active duty members of the uniformed services, and

7.   the work opportunity credit.

These credits were extended through the 2013 tax year, but they were also made retroactive to the 2012 tax year.

S9(c). How does extension of these business-related tax credits impact clients’ tax planning?

While clients can be certain that these tax credits will be available for the 2012 and 2013 tax years, they should also keep in mind that Congress has a history of extending credits for future tax years. Even though there is no certainty that Congress will continue to allow any particular credit, clients who may be able to use these credits should continue to monitor legislative activity to determine whether they will remain available beyond the 2013 tax year.

For more information on the allowable business-related tax credits, see 2013 Tax Facts on Insurance & Employee Benefits, Q 476.

 

Energy Tax Credits

S10(a). What energy-related credits were allowed in 2012?

Many energy-related tax credits were allowed in 2012 in an effort to support energy-efficient behavior among both individual taxpayers and businesses. Several of these tax credits were allowed to expire for the 2012 tax year, but have been retroactively renewed through 2013 (see Question S10(b)).

S10(b). Did the Act change the allowable energy-related tax credits for 2013?

The Act extended a number of energy-related tax credits, including:

1.   the credit for energy-efficient existing homes (extended for 2012 and 2013),

2.   the credit for alternative fuel vehicle refueling property (extended for 2012 and 2013),

3.   the credit for two- or three-wheeled plug-in electric vehicles (extended and modified for 2012 and 2013),

4.   the cellulosic biofuel producer credit (extended and modified for 2012 and 2013),

5.   the production credit for Indian coal facilities (extended for one year),

6.   credits for facilities producing energy from renewable resources (extended and modified through 2013),

7.   credit for energy efficient new homes (extended for 2012 and 2013),

8.   the credit for energy-efficient appliances (extended for 2012 and 2013), and

9.   the alternative fuels excise tax credits (extended for 2012 and 2013).

S10(c). How does extension of these energy-related tax credits impact clients’ future tax planning?

As with the extended business tax credits, clients should keep in mind that Congress has a history of extending credits for future tax years. Even though there is no certainty that Congress will continue to allow any particular credit, clients who may be able to use these credits should continue to monitor legislative activity to determine whether they will remain available beyond 2013.

Charitable Donations from IRAs

S11(a). Before the Act, how were charitable donations made directly from retirement accounts treated?

Prior to 2012, a special rule allowed an owner of an IRA who was more than 70½ years old to directly transfer IRA funds to the charity of his or her choice without counting the donation as income. Because IRA owners who have reached age 70½ are required to withdraw a certain amount, called a minimum distribution, from their IRA assets each year and count this as taxable income, the donation rule was attractive to clients who wished to minimize income.

Until the end of 2011, it was possible to exclude the entire required minimum distribution from income, assuming that the IRA owner’s annual minimum distribution requirement was below $100,000 and he or she donated the entire amount to a qualified charity. The taxable gifts were not deductible as itemized tax deductions under the pre-2012 provision, but the income-reducing benefits made it a smart choice for many IRA owners.

This tax provision expired at the end of 2011, and Congress did not renew the treatment during the 2012 tax year. Allowing the provision to expire would have required those taxpayers making donations from an IRA to recognize the income and take the corresponding itemized deduction for the charitable gift.

S11(b). Did the Act change the treatment of charitable donations made directly from retirement accounts in 2013?

The Act revived the pre-2012 treatment so that, once again, up to $100,000 could be excluded from income if it was transferred directly from an IRA to a qualified charity. The provision was made retroactive for 2012, as well, and donors who chose to make gifts in January 2013 were permitted to reflect the donation on their 2012 return. Further, a qualified IRA owner who waited to take a required minimum distribution until December 2012, when the tax-free contribution rule was technically not in effect, was permitted to make a cash contribution to a qualified charity in January 2013 and still qualify for the tax-free treatment.

For more information on charitable donations made directly from an IRA account, see 2013 Tax Facts on Insurance & Employee Benefits, Q 3745.

S11(c). What planning opportunities are presented by revival of the pre-2012 treatment of charitable donations made directly from IRAs?

Minimizing income has always been a goal for many IRA account owners aged 70½ and older. Increased levels of income can push retirees into higher tax brackets for Social Security tax purposes, and can also make them liable for higher Medicare payments. However, these taxpayers must begin taking distributions from certain retirement accounts at age 70½ whether they need the income or not—and they are also required to pay the associated taxes on these mandatory distributions.

The Act makes minimizing taxable income more important than ever—especially for higher income taxpayers. Lower income levels in 2013 will not only push a client into a lower tax bracket, but also can allow the client to avoid limitations on exemptions and itemized deductions, as well as new investment income taxes imposed under the PPACA.

Further, for higher income taxpayers in 2013, a deduction for a charitable donation in 2013 is worth less than it was in 2012 due to itemized-deduction phaseouts. For this reason, some taxpayers who wish to continue donating to charity may find the direct transfer from an IRA is more beneficial than ever before.

Under the newly revived charitable donation rules, clients can satisfy their required minimum distribution requirements by donating up to $100,000 from their IRA to charity. For clients trying to avoid increasing their taxable income, this provision allowed them to satisfy the IRA minimum distribution requirements without ever having to pay federal income tax on the distributions.

A taxpayer’s spouse can transfer an additional $100,000 to charity without subjecting the funds to federal income tax, but only if the spouse has a separate IRA account from which he or she can transfer the funds.

The transfer is required to be made as a “trustee-to-charity” transfer, meaning that a check is written directly from the IRA to the charity, with the account owner having no control over the funds once they are withdrawn from the account. Further, the charity receiving the funds must be a public charity.—Donor-advised funds and private foundations are excluded.

Expanded 401(k) to Roth 401(k) Conversion Rules

S12(a). Was a 401(k) account owner permitted to roll funds over into a Roth 401(k)?

During 2012, a traditional 401(k) account owner was permitted to convert 401(k) account funds to Roth 401(k) account funds, but only if the owner was otherwise eligible to take a distribution from the traditional 401(k). This limitation effectively confined conversions to those clients who had already reached age 59½, or who had died, become disabled, or separated from service. —Other clients were required to pay a 10 percent penalty if they converted when distributions were not otherwise permitted.

S12(b). How did the Act change the rules for rolling funds from traditional 401(k)s into Roth 401(k)s?

The Act expanded the ability of taxpayers to roll funds from a traditional 401(k) into a Roth 401(k) by eliminating the requirement that the taxpayer otherwise be eligible to take a distribution from the 401(k) in order to convert the funds.

S12(c). What planning opportunities are presented by the expansion of the rules allowing 401(k) funds to be rolled over into Roth 401(k) accounts?

Even though the fiscal cliff tax uncertainty is hanging over taxpayers’ heads, the permanence of the income tax rates set by the Act does not mean that clients will be taxed at the same rates when they eventually retire. Inflation adjustments and government budgetary needs will almost certainly mean that tax rates will be higher for many clients when they retire—whether that is in five years or twenty.

The primary benefit of converting to the Roth 401(k) is that clients choosing this path can stop wondering what tax rates will be like when they retire. The taxes are paid up front so that the funds are allowed to grow tax-free. For younger clients, this can represent decades of tax-free growth that can be drawn upon during retirement.

Perhaps the most important consideration in determining whether a conversion is appropriate is whether the client is able to pay the current tax liability. Any amount converted must be recognized as a distribution—which means that the taxes are due as though the client had actually received the funds.

The primary downside of converting a large chunk of 401(k) money in 2013 is that, for many high-income taxpayers, the Act has raised ordinary income tax rates. If the conversion would cause the client to cross the income thresholds for higher income, capital gains, and dividend taxes in 2013, converting may not be worth the cost. Clients who fall into higher income tax brackets and still want to convert should consider converting small amounts each year to avoid the tax hike.

Conversions could be highly beneficial for younger savers, however. These clients may not have reached their full earning potential and may fall into a lower tax bracket today than they expect to reach later in life. Further, these taxpayers have a longer period before retirement—meaning that the funds converted will have more time to grow tax-free within the Roth.

S13. What are some other lesser, yet important, provisions?

A quick mention of some lesser known, yet still important, Act provisions:

  • The Act extended the following items: the deduction for certain expenses of school teachers; the exclusion for discharge of qualified principal residence indebtedness; the option to deduct state and local sales taxes; and the above-the-line deduction for qualified tuition and related expenses.
  • Certain depreciation provisions were modified and extended, such as bonus depreciation for property placed in service after December 31, 2012.

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