The American Taxpayer Relief Act of 2012 – George Mentz JD MBA CWM QFP

Happy New Year and Welcome to 2013. On January 1, 2013, new legislation was retroactively passed the U.S. Senate, and then later in the House of Representatives. The American Taxpayer Relief Act of 2012 (ATRA) would permanently extend a number of major tax laws and temporarily extends many others. Here are the fundamentals.

Federal Tax rates

The top federal income tax rate on working families and small business will increase to 39.6% beginning in 2013 for individuals with income that exceeds $400,000 ($450,000 for married couples filing joint returns). For most other individuals, the ATRA Law permanently extends the lower income tax rates that have existed since President Bush put the tax relief for working families in place. That means most taxpayers will continue to pay tax according to the typical 6 tax brackets (10%, 15%, 25%, 28%, 33%, and 35%) that were used for 2012.

The new taxes implemented on dividends and capital gains were reversed at the last minute. The lower tax rates that applied to long-term capital gain and qualifying dividends have been extended for most individuals as well. If you’re in the 10% or 15% marginal income tax bracket, a special 0% rate generally applies. If the Congress had not acted, the dividend and capital gains tax rates on the poor would have doubled. If you are in the 25%, 28%, 33%, or 35% tax brackets, a 15% maximum rate will generally apply for capital gains. . Beginning in 2013, however, those who pay tax at the higher 39.6% federal income tax rate (i.e., individuals with income that exceeds $400,000, or married couples filing jointly with income that exceeds $450,000) will be subject to a maximum rate of 20% for long-term capital gain and qualifying dividends.

The ATRA American Taxpayer Relief Act permanently extends AMT Alternative Minimum Tax relief increasing the AMT exemption amounts for 2012, and providing that the exemption amounts will be indexed for inflation going forward. The Act also extends provisions allowing nonrefundable personal income tax credits to be used for offsetting AMT liability.

Wealth Phaseout s and Limits on Deductions and Exemptions
Over the years, itemized deductions personal exemptions were limited for higher-income individuals and families. For the last 2 years, the limits have not been operative.

The new laws provides that personal and dependency exemptions will be phased out for those families earning an amount over about 250 thousand dollars per year. Further, deductions will be limited. For both the personal and dependency exemptions phaseout and the itemized deduction limitation, the threshold is $250,000 for single families ($300,000 for married couples filing joint federal income tax returns).

Estate Taxation Relief
The ATRA Act makes the $5 million exemption amounts permanent for the estate tax, the gift tax, and the generation-skipping transfer tax–the same exemptions that were in effect for 2011 and 2012. The top tax rate, however, is expanded to 40% beginning in 2013.
The Act also permanently extends the “portability” provision in effect for 2011 and 2012 that allows the executor of a deceased individual’s estate to transfer any unused exemption amount to the individual’s surviving spouse.

Other Provisions and Temporary Rules

• Exclusion of qualified mortgage debt forgiveness from income provisions extended through 2013
• Section 179 expense limits extended through 2013
• “Marriage penalty” relief in the form of an increased standard deduction amount for married couples and expanded 15% federal income tax bracket
• Expanded tax credits relating to the dependent care tax credit, the adoption tax credit, and the child tax credit
• Rule changes and expansion of: Coverdell education savings accounts, employer-provided education assistance, and the student loan interest deduction
• Charitable IRA distributions (For age 70½ IRA holders- are able to exclude from income up to $100,000 in qualified distributions made to charitable organizations) extended through 2013
• Provisions relating to increased earned income tax credit amounts for people with 3 or more children are extended through 2017
• The $250 above-the-line tax deduction for educator classroom expenses.
• The option to deduct state and local sales tax in lieu of the itemized deductions for state and local income tax.
• The deduction for qualified higher education expenses are all extended through 2013

If you are seeking professional help, please consult with a CWM Chartered Wealth Manager or Accredited Financial Analyst and consult with a licensed professional before making any important decision.

About the Author: Dr. George Mentz is a world recognized consultant and award winning professor who has authored several revolutionary books. Prof. Mentz, an international lawyer, has been a keynote speaker globally in Asia, Arabia, USA, Mexico, Switzerland, and in the West Indies. Mentz can be contacted for speaking engagements at www.gmentz.com  or www.managementconsultant.us  or www.selfhelpbook.org   Mentz is the founder of the American Academy of Financial Management and the US Academy of Business and Financial Management http://aafm.us
*No tax, insurance, investment or legal advice provided herein. Please consult with a licensed professional in your jurisdiction before making any important financial or legal decision.

Valuation discounts are increasingly challenged by the IRS. Gone are the days when assets could be dropped into a family limited partnership with some transfer restrictions and forgotten about until a valuation discount was needed to reduce a gift or estate tax bill.  A recent U.S. District Court case, Fisher v. U.S., reminds us that times have changed.  Often, placing assets in a business entity is no longer enough to justify a valuation discount—the entity must be run like a business to justify the discount.   Read the analysis by our experts Robert Bloink and William Byrnes located at AdvisorFX Journal Valuation Discounts: Only for a Bona Fide Business

For some good news about valuation discounts, see our article in AdvisorFX Advisor’s Journal on the Jensen case.

From a tax perspective see Tax Facts Q 613. How is a closely held business interest valued for federal estate tax purposes?

After reading the analysis, we invite your questions and comments by posting them below, or by calling the Panel of Experts.

Why is this Topic Important to Wealth Managers? Provides an introduction into the Internal Revenue Code so that tomorrow’s blogticle about specific sections of the Code may be better understood, in particular the taxation of life insurance companies.

How are the laws related to tax organized or in other words, what’s the general process in finding an answer to a tax question?

All federal laws of the United States arise out of the Constitution.  The Constitution has granted Congress certain enumerated powers, such as the power to regulate commerce among the several states.  Congress also has the power to create laws that are necessary and proper in governing based on its listed powers.  All powers not granted to the Federal government are reserved by the States through the 10^th Amendment – meaning only the States may enact laws in those areas (al least this is how it is supposed to work).

Once Congress passes a necessary and proper law to carry out its enumerated powers, that law becomes a United States Statute, or a Statute already existing is either amended or deleted.  The Statutes of the United States are called the United States “Code”.

The United States Code is divided into 50 different titles.  Title 26 is perhaps the most infamous, being the “Internal Revenue Code”.  The Internal Revenue Code, or Title 26 of the United States Code is further delineated, into Subtitles, Chapters, Subchapters, Parts, and finally Sections and Subsections.

Congress has delegated the power of enforcement of these laws, which lies with the executive branch, of Title 26 to the Secretary of Treasury to create Regulations or Administrative Interpretations of the Statutes.  The regulations are not in and of themselves laws but rather, direction from the Secretary of interpretation of the laws.  The regulations have legal authority, which means they may be presented in court.  In almost all tax cases, there is some Statute, that is called into question, therefore the Court’s exclusive job is to rule on interpretation of the Statute as it applies to the situation before the court, not to overrule any statute, unless it found the law unconstitutional.  Therefore, additional law is generated by courts’ interpreting Statutes.  This is known as “case law”.

Let’s look at a simple example to illustrate the concept.  To determine how much tax an individual will pay on a certain transaction say, the receipt of life insurance payments as a beneficiary of a policy. Where do we start?  It is generally unquestioned that since the issue is about taxes we can look in Title 26 of the United States Code to find out what amounts paid to the taxpayer are taxable as income.

Moreover, Subtitle A of Title 26 is entitled “Income Taxes”, so that is a natural place to continue looking to see what taxes will be owed, if any on this payment.  Within Chapter 1 “Normal Taxes”, Subchapter A is called “Determination of Tax Liability”.  Determination of tax liability sounds on point in consideration of what we’re trying to accomplish.  In that Subchapter, Part 1 concerns “Tax on Individuals”.  Here is where we will start.  Section 1 is titled, “Tax Imposed”, and states “There is hereby imposed on the taxable income of” and lists the different filing statuses and applicable rates.

A question should then naturally arise, if there is a tax imposed, what is it imposed on?  The answer is nearby.  The wording of the statute says there will be imposition of tax on the “taxable income” of different filing statuses.  Well we might want to know then what taxable income means for federal legal purposes.  Looking in the index, or though a common search, one will find that Part I of  Subchapter B “Computation of Taxable Income”, is entitled “Definition of Gross Income, Adjusted Gross Income, Taxable Income, Ect.”.  So there it is, and if we look at the sections under Part 1 of Subchapter B, we will see Section 63’s title of “Taxable Income Defined.”

Section 63 (a) states, in part, “the term ‘taxable income’ means gross income minus the deductions allowed.”  Well it would certainly be helpful to know then what “gross income” means.  Not too far away, in the same Part, one can find in Section 61, which is entitled, “Gross income defined”.  Section 61(a) states in part, “Except as otherwise provided in this subtitle, gross income means all income from whatever source derived, including (but not limited to) the following items:

…
(3) Gains derived from dealings in property.”  Life insurance contracts are property, generally.

Notwithstanding the meaning of “all income from whatever source derived” we know if some item is “otherwise” excepted in Subtitle A, “Income Taxes”, that such item would not be included in gross income.  Further, if the item is not included in gross income, it will not be included in taxable income, and even further, if the item is not included in taxable income, the imposition of a tax on such item does not apply.

We now must look in Subtitle A to see what, if any items are excepted.  Part III of Subchapter B, is conveniently enough titled “Items Specifically Excluded From Gross Income.”  The first Section of this Part is entitled “Certain Death Benefits”.  Payments from a life insurance contract to a beneficiary is on point with this Section, so it should be read.  Section 101 states, in pertinent part, “gross income does not include amounts received (whether in a single sum or otherwise) under a life insurance contract, if such amounts are paid by reason of the death of the insured.” So if life insurance payments are not included in gross income, the life insurance payments are not taxable income, and therefore are not subject to an imposition of income tax, or in other words – no tax is due.

In this simple example, there was no need to examine the Regulations or any court cases, as our issue was straightforward.  However, most issues will involve additional questions which then the practitioner will look to further sources, i.e., regulations and case law, to determine the answer to the question presented.

For further explanatory discussion of the structure and sources of federal tax law, please see the AdvisorFX Main Library Section 50.6  Sources And Structure Of Federal Tax Law: A—Sources And Structure Of Federal Tax Law

We invite your questions and comments by posting them below, or by calling the Panel of Experts.

Why is this Topic Important to Wealth Managers? Provides a view with respect to revocable trust concepts and estate planning. Presents identifying factors of the trust, what it’s commonly used for, as well as some of the benefits and detriments of its implementation.

This week has mainly discussed the use of trusts with characteristics of complete transfers by grantors. This edition will explore the revocable nature of trusts and how they are applicable to estate planning.

The main difference between a revocable trust and one that is not is that “the settlor reserves the right to terminate the trust and recover the trust property and any undistributed income.” [1] “The creation of a revocable living trust involves either the transfer of property to one or more trustees or the settlor’s declaration that he holds the property in trust for himself and that upon his death the property is to be held for other beneficiaries.” [2]

The revocable trust is frequently used “in estate planning, especially where a person wishes to relinquish title to property but to retain a right to reclaim it later should economic need arise.” [3] It allows for the “the swift and efficacious transfer of the grantor`s property to trust beneficiaries.”

One benefit of this arrangement is that revocable trusts avoid probate—“Upon the death of the grantor, assets that are owned by the trust, rather than by the decedent, will not be subject to the probate process.” Secondly, assets in a living trust are afforded “extra protection [because]…the trustee can be given the power to withhold distributions” along with spendthrift provisions enacted by state legislators.

However, the revocable trust income is taxed to the grantor[4], “and the trust assets will be included in his gross estate upon his death.”[5] In other words, the “decedent’s gross estate includes the value of any interest in property transferred by the decedent whether in trust or otherwise, if the enjoyment of the property transferred was subject to any change at the date of the decedent’s death through the exercise by him of a power to alter, amend, revoke or terminate.” [6]

The artificial construction of the law holds that “although the grantor has relinquished title to the trust property, trust income will still be taxed to him, and the trust property will be subject to estate tax.”  [7] Even though,  “a revocable trust yields no income tax advantages during the settlor’s lifetime, significant income tax savings may be realized after his death if the trustee is given discretionary powers in the payment of income and principal.” [8]

[2] Bogert.  The Law Of Trusts And Trustees § 233 (2010).  Westlaw.

[3] AUS MAIN Libraries. 21 Trusts Guardianships, and Minors, A-Trust Terms –Use in Estate Plans, Subsection 8. “The Living Trust In Family Settlements”. Last Accessed 9/19/2010.

[4] Bogert § 233 citing, 26 U.S.C. § 676.

[5] Bogert § 233  citing 26 U.S.C. § 2038; Desmond, 116 Trusts & Est. 218 (1977).

[6] 34A Am. Jur. 2d Federal Taxation ¶ 143,402

[7] AUS Main Libraries Section 21.

[8] Bogert § 233

In December of last year, President Obama turned the standard estate plan upside down when he signed the Tax Relief Act of 2010. In addition to a record $5 million applicable exclusion amount and continued 35% top rate, the estate tax included a brand new concept that may force your clients to re-evaluate their estate plan.

That concept is the Deceased Spouse Unused Exclusion Amount (DSUEA). Advisor’s Journal covered the DSUEA shortly after the concept was introduced [Does the New Estate Tax Make the Bypass Trust Obsolete? (CC-10-122)]. In that article, we concluded that the DSUEA not only makes bypass trusts unnecessary, but may even hurt an estate’s beneficiaries by reducing the basis of assets they receive from the bypass trust. We hinted at one solution to the bypass trust problem—disclaimers. Here we’ll discuss a particular solution to the bypass trust problem, the so-called “A-B Bypass Trust.”

Read this complete analysis of the impact at AdvisorFX (sign up for a free trial subscription with full access to all of the planning libraries and client presentations if you are not already a subscriber).

For previous coverage of the new estate tax in Advisor’s Journal, see IRS Finally Issues Guidance on 2010 Estate Tax (CC 11-160), Does the New Estate Tax Make the Bypass Trust Obsolete? (CC-10-122), & Obama Tax Agreement Passed by House (CC 10-117).

For in-depth analysis of the estate tax, see Advisor’s Main Library: Estate, Gift and GST Taxes

When an estate is facing a liquidity crisis, why not tap the family limited partnership (FLP) for cash? After all, the decedent was a partner in the partnership and the partnership can make distributions to the estate, which is now a partner in the FLP.

No so fast. Although an FLP may look like a prime source of cash for paying an estate tax bill, the move can come back to bite the estate in a big way. Done the wrong way, it could jeopardize the valuation discounts and estate planning objectives your clients and their estate planning professionals worked so hard to secure.

The IRS is perpetually on the lookout for new weapons to use against FLPs, but Section 2036 of the Internal Revenue Code has been the IRS’s weapon of choice against FLPs over the past decade.

Read this complete analysis of the impact at AdvisorFX (sign up for a free trial subscription with full access to all of the planning libraries and client presentations if you are not already a subscriber).

For previous coverage of family limited partnerships in Advisor’s Journal, see Use Charitable Giving to Enhance Family Business Succession Planning (CC 10-76) and
Practical Succession Planning for the Family-Owned Business (CC 08-22).

For in-depth analysis of family limited partnerships, see Advisor’s Main Library: FF—Family Limited Partnership.

Looking to extend your firm’s reach overseas to expatriates and foreign nationals? The Financial Industry Regulatory Authority (FINRA) is warning you to look before you leap. Both U.S. and foreign regulators may have jurisdiction over U.S. firms soliciting foreign citizens, greatly complicating compliance for cross-border operations.

FINRA recently issued Notice to Members 11-34 (NTM 11-34), reminding members that, whether they’re soliciting business on or offshore, they’re still bound by U.S. law—regardless of whether foreign law permits an activity. The notice, issued at the end of July, reaffirms prior notice NTM 00-02.

Read this complete analysis of the impact at AdvisorFX (sign up for a free trial subscription with full access to all of the planning libraries and client presentations if you are not already a subscriber).

For previous coverage of the debt talks in Advisor’s Journal, see Democrats Call Debt Limit Unconstitutional (CC 11-134), Debt Limit Standoff Boils Over (CC 11-115) and Storm Clouds over U.S. Debt (CC 11-85).

Trusts offer your clients asset protection and tax benefits, giving them the power to say how and when their cash and property are distributed. They also offer a mechanism for putting the decision-making process in the hands of someone other than the grantor—the power of appointment (POA).

But for all their flexibility, powers of appointment also have the tendency to throw estate plans off track, resulting in unplanned-for tax liability and unforeseen results.

Although a person who has a general power of appointment over property isn’t said to own the property, if they die holding the POA, their gross estate can include the value of that property. And that’s where the dispute in Estate of Chancellor v. Comm’r, T.C. Memo 2011-172 (2011) begins.

Read this complete analysis of the impact at AdvisorFX (sign up for a free trial subscription with full access to all of the planning libraries and client presentations if you are not already a subscriber).

For previous coverage of the estate tax in Advisor’s Journal, see More States Moving to Estate Tax Repeal (CC 11-121) & Does the New Estate Tax Make the Bypass Trust Obsolete? (CC-10-122).

For in-depth analysis of the estate tax, see Advisor’s Main Library: A—Federal Estate Tax General.

Clients often want to use Qualified Terminal Interest Property trusts (QTIPs) to segregate certain funds to care for a surviving spouse, while retaining some measure of control over the ultimate disposition of the funds—whether they will be distributed to children or a charity. But navigating the QTIP rules as client’s circumstances change down the road can be treacherous, with the tiniest misstep eliminating any transfer tax benefit of the trust.

A recent IRS private letter ruling (PLR 201117005) provides us with a good reminder of the QTIP rules and an example of creative QTIP planning that provides the surviving spouse with adequate lifetime income while giving the grantor (and the surviving spouse) a degree of post-death control over disposition of the trust assets.

Read this complete analysis of the impact at AdvisorFX (sign up for a free trial subscription with full access to all of the planning libraries and client presentations if you are not already a subscriber)

For a graphic illustration of the QTIP trust, see the Concepts Illustrated practice aid at G—Credit Shelter Trust and QTIP Trust.

For coverage of QTIPs and other techniques useful in estate planning for blended families, see the Advisor’s Journal article Estate Planning for Blended Families (CC 07-16).

For in-depth analysis of marital deduction planning, see Advisor’s Main Library: G—The Marital Deduction.

Why is this Topic Important to Wealth Managers? Advanced estate planning almost always involves some attention to concept of the legal trust. It is thus essential that wealth managers understand the purposes of trusts and the ways which trusts may be incorporated into in a comprehensive financial plan. Our discussion then focuses on building a foundation to present the credit shelter trust.

“If we were asked what is the greatest and most distinctive achievement performed by Englishmen in the field of jurisprudence, I cannot think that we should have any better answer to give than this, namely, the development from century to century of the trust idea.” [1]

Generally defined, an express trust “is a fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held to equitable duties to deal with the property for the benefit of another person, which arises as a result of a manifestation of an intention to create it.” [2]

The trust is unique in that there is a separation of legal and equitable title in a trustee and beneficiary, respectively. The trust may be a very effective vehicle for accomplishing the grantor’s desires. As was expressed in the beginning of this article, to appreciate the all-important role of the trust in personal and business estate planning, an understanding of the fundamentals of trust law is important.

As was presented in the general definition, an express trust is created only if the grantor manifests an intention to create it. Such manifestation may be evidenced by conduct or words. Generally the creation of an express trust is through a trust document. A great majority of U.S. jurisdictions today require the creation of an express trust to be in writing, with the exception of trusts in some states dealing with personal property.

The trust is a device or instrument for the administration and disposition of property. No other device for this purpose possesses comparable flexibility. This factor of flexibility makes the trust unique; and this extreme flexibility makes the trust a valuable instrument for the framing and execution of estate plans.

The purposes for which trusts may be created are almost unlimited. However, a trust which has as its purpose the accomplishment of illegal objectives or which is against public policy would, of course, not have a valid purpose. Thus, a person may create a trust for any lawful purpose that he or she deems wise and expedient.[3]

One of the basic purposes of most trusts is protection. It may be the protection of a spouse, child, parent, dependent (or even a tax credit) that is desired. It may be the protection of a beneficiary against his or her own possible errors of judgment in the management of the trust property. There may be a desire to protect someone else later, by giving the income to certain persons for their lifetimes, and the principal to others at death. The intention of the grantor, as discussed above, will dictate the terms of the trust arrangement.

See a detailed analysis of trust law in the Main Library Section 21. Trusts, Guardianships And Minors B—The Law Of Trusts.

Tomorrow’s blogticle will discuss the credit shelter trust in general terms.

We invite your questions and comments by posting them below, or by calling the Panel of Experts.

[2] Restatement (Second) of Trusts § 2. (1959).

[3] 90 C.J.S. Trusts § 17 (2011).