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Net unrealized appreciation tax break: Still a tax break in 2013?

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The tax break provided for net unrealized appreciation (NUA) on 401(k) account distributions once provided a powerful tax savings strategy for clients with large 401(k) balances — allowing some clients to reduce their taxes on these retirement funds by as much as 20 percent.

Today, as high-net-worth clients are increasingly seeking strategies to help minimize their tax burdens in light of higher 2013 tax rates, the NUA strategy may have become more complicated than ever. Therefore, it’s important for advisors to help clients evaluate whether or not the NUA strategy still works, because for some clients, what was once a significant tax-savings strategy might be gone in 2013 — especially for those who are newly subject to the 3.8 percent investment income tax.

NUA strategy: The basics

The NUA strategy allows certain taxpayers whose 401(k) plans contain appreciated securities of their employers to pay taxes on the appreciated value of those securities at the capital gains tax rate. The remaining 401(k) funds are taxed at the taxpayer’s ordinary income tax rate under the traditional rule for taxation of 401(k) plan distributions.

In order for a client to take advantage of the NUA strategy, he or she must be eligible to take a lump sum distribution from the 401(k) account in question — meaning the taxpayer must have reached age 59½, become disabled or retired (for certain employees), or died. The eligible client transfers the funds in his or her tax-deferred account into a taxable account, realizing the gain on the sale of the employer securities.

This strategy has proven effective for some clients — for example, if employer securities within a client’s 401(k) are worth $100,000 but originally cost $20,000, only that $20,000 would be taxed at the client’s ordinary income tax rate. The remaining $80,000 would be taxed at the applicable long-term capital gains rate.

NUA considerations today

Today, the ordinary income tax rate for high income clients has increased from 35 percent to 39.6 percent — but the top long-term capital gains rate has also increased, from 15 percent to 20 percent. Taken alone, these rate hikes would seem to preserve the benefits of the NUA strategy — but the additional 3.8 tax on net investment income requires closer consideration.

While retirement account distributions are generally exempt from the 3.8 percent investment income tax, the NUA strategy means that the appreciated value of the employer securities held within a client’s retirement account will be treated as capital assets. This means that the 3.8 percent tax may be added to the otherwise applicable capital gains tax.

Therefore, while the highest earning taxpayers were able to realize a 20 percent tax break in 2012 (the difference between the 35 percent ordinary income tax rate and 15 percent capital gains rate), today that break is reduced to 15.8 percent.

While this might not seem like a huge difference, because the 401(k) must be emptied into a taxable account in order to use the NUA strategy, the tax-deferred growth potential on the securities is lost at the time of the transaction.

For clients who need immediate access to the funds transferred out of their 401(k)s, the NUA strategy may remain effective. Further, if the client has held the shares for many years and realized substantial appreciation in their value, the strategy may continue to provide significant tax savings.

However, for those clients who might otherwise allow their funds to grow, advisors should carefully weigh the potential tax savings against the loss of tax deferral. If the appreciation in value is relatively small, it may be more beneficial for these clients to allow their value to grow inside the tax-deferred account.


Though the increase in the long-term capital gain tax rate for 2013 may seem modest when the corresponding income tax rate hike is considered, clients seeking to use the NUA strategy should keep in mind that there is more to the picture — the potential gain that could be realized based on tax-deferred growth may outweigh the tax benefits for many clients.

For more, see:

Disclosure rules help bring down 401(k) fees

Small-business retirement plan balances up 20% since 2007

Fewer employers match 401(k) contributions


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