The New Tax Relief Act: How Will You Be Impacted?

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1 STRATEGIC THINKING The New Tax Relief Act: How Will You Be Impacted? The President signed the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 ( the Act ) on December 17th, Extended Individual Income Tax Rates Extended Dividend & Capital Gain Tax Rates Qualified Charitable Distribution Extended Itemized Deductions AMT Patch & Extended Sales Tax Deduction Election Available * $1MM Gift Tax Exemption Payroll Tax Holiday $5MM Estate Tax Exemption $5MM Unified Gift Tax Exemption $5MM GST Tax Exemption, 0% $5MM GST Tax Exemption, 35% Portability of Estate Tax Exemption * The election available is no estate tax with a modified carryover basis or apply the 2011 rules described in the Basis Election section below. continued SEE IMPORTANT DISCLOSURES ON PAGE 8 December 2010

2 STRATEGIC THINKING The Act contains numerous provisions including temporary extensions of Bush-era tax cuts, AMT relief, and expiring provisions such as tax-free IRA distributions to charity. The Act also addresses the estate tax rules for , contains provisions for business tax relief, and institutes a temporary payroll tax decrease. Individual Tax Rates The Act extends the tax rates (10%, 15%, 25%, 28%, 33% and 35%) enacted in The Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA) through The rate extension was granted to taxpayers in the top two tax brackets as well as lower and middle-income taxpayers, which was the subject of much debate among politicians. The ability to accelerate income into 2010 is no longer available but clients may still want to consider a longer-term plan of recognizing income over the next two years as income tax rates may rise after With the tax rate extension, clients who have completed a Roth Conversion in 2010 need to Income Tax Rates extended through 2012 STATUS 2011 BRACKETS INDIVIDUAL TAX RATES CAPITAL GAINS RATES QUALIFIED DIVIDEND RATES NOT OVER $8,500 NOT OVER $17,000 OVER $8,500 BUT NOT OVER $34,500 OVER $17,000 BUT NOT OVER $69,000 OVER $34,500 BUT NOT OVER $83,600 OVER $69,000 BUT NOT OVER $139,350 OVER $83,600 BUT NOT OVER $174,400 OVER $139,350 BUT NOT OVER $212,300 OVER $174,400 BUT NOT OVER $379,150 OVER $212,300 BUT NOT OVER $379,150 10% 0% 0% 15% 0% 0% 25% 15% 15% 28% 15% 15% 33% 15% 15% OVER $379,150 35% 15% 15% Married Filed Jointly 2

3 THE NEW TAX RELIEF ACT revisit whether taking advantage of the provision that allows for spreading the tax payment over 2011 and 2012 makes more sense than paying it in full when they file their 2010 taxes. Qualified Dividends and Capital Gains 15% Many of our Financial Advisors and their clients have been concerned with the looming expiration of reduced rates on qualified dividends and longterm capital gains. The Act extends the 15% rate for qualified dividend and capital gain income through December 31, To the extent you are in the 10% or 15% tax bracket, capital gains and dividends are effectively tax free at a 0% rate. Gifting to a child in these two tax brackets may also be a great strategy but be mindful of the Kiddie Tax. Itemized Deductions The repealed overall limitation on itemized deductions, or Pease limitation, will be in effect for two more years. Likewise, the repealed personal exemption phase-out (PEP) was scheduled to sunset but has also been extended for two years. These are both effective through Itemized deductions may be more valuable in the next two years because the phase-out rules will not apply. For example, if you make a charitable contribution in the next two years, you would get a dollar-for-dollar deduction subject to the charitable AGI (adjusted gross income) limitation however, there won t be a haircut on the charitable deduction due to the limitation on itemized deductions. Qualified Charitable Distribution The Act also contains a provision allowing taxpayers over age 70½ to direct their RMD (required minimum distribution) from their traditional IRA (individual retirement account) to a qualified charity and exempt the distribution (up to $100,000) from taxable income. It is effective for distributions made in 2010 and The provision includes a special rule permitting taxpayers to elect to have qualified charitable distributions made in January 2011 treated as having been made as of December 31, By making a distribution from an IRA directly to qualified charities without having to include it in income, your taxable income will be lower. The taxable portion of your social security benefit might be lower as well. Additionally, this benefits nonitemizers where no charitable deduction is available. No guidance has been released yet for those who have already taken their 2010 RMD and other details in connection with the qualified charitable distribution. Stay tuned for more information. AMT As in years past, the Act provides relief for AMT (alternative minimum tax) by including an AMT patch for 2010 and 2011, indexed for inflation. 3

4 STRATEGIC THINKING The AMT patch increases the AMT exemption amount which is intended to prevent middle income taxpayers from being subject to the AMT. Clients subject to the AMT should continue to work with their tax advisor as to the timing of payments (i.e., state and local income taxes, real estate taxes, etc.) in an attempt to mitigate their AMT liability. Sales Tax Deduction The Act extends the election to deduct state and local sales tax in lieu of state and local income tax for 2010 and The ability to deduct state and local sales tax as an itemized deduction is especially important for those individuals residing in a no-income-tax state such as Alaska, Florida, Nevada, South Dakota, Texas, Washington and Wyoming. Payroll Taxes The Federal Insurance Contributions Act (FICA) tax is composed of two parts: the old age, survivors, and disability insurance (OASDI) tax (6.2% of taxable wages up to $106,800) and Medicare hospital insurance of 1.45% (no wage cap). The total tax of 7.65% is imposed on each the employer and the employee. Self-employed individuals are responsible for the entire 15.3%. For 2011 only, the Act reduces the employee OASDI tax from 6.2% to 4.2%. The self-employed person tax is also reduced by two percentage points to 10.4% This payroll tax holiday is available to all wage earners irrespective of their income level. If you earn at or above the OASDI wage base of $106,800 you will receive a tax benefit of $2,136. Note that self-employed individuals would still calculate their deduction for self-employment taxes without regard to the temporary 2% rate deduction. That is ½ of 15.3% of self-employment income is still deductible. Business Incentives Bonus Depreciation The Act expands the first-year bonus depreciation deduction to 100% of the cost of qualified property purchased after September 8, 2010 through December 31, It then provides for a 50% first-year bonus depreciation deduction for qualified property purchased after December 31, Note that certain longer-lived property and transportation property has an extended period for deduction if placed in service before January 1, This boosts bonus depreciation from 50% to 100% through Its applicability is not just for smaller businesses. Section 179 Deduction Business owners may elect to immediately deduct, or expense, the cost of qualifying property instead of depreciating it over a number of years. For 2010 and 2011, business owners may expense up to $500,000 reduced by the amount by which the 4

5 THE NEW TAX RELIEF ACT cost of the qualifying property placed in service during the year exceeds $2 million. For 2012, the maximum expense amount is $125,000 reduced by property exceeding $500,000. Beginning in 2013, the expense amount is $25,000 on $200,000 of property. For 2010 and 2011, the definition of qualifying property has been temporarily expanded to include qualified leasehold improvement, restaurant and retail properties. Additionally, off-the-shelf computer software is treated as qualifying property if placed in service before Small Business Stock The Act extends the 100% capital gain exclusion for an additional year if the qualified small business stock is held for at least five years. The stock must be purchased between September 27, 2010 and January 1, The Act provides a longer window of opportunity to purchase small business stock but you will have to wait at least five years to reap the 100% federal income tax gain exclusion. In addition, the gain is not subject AMT. Estate Taxes Temporary Estate, Gift and GST Tax Changes The estate and GST (generation-skipping transfer) taxes were phased out and eventually repealed in In 2011, the estate and GST taxes were set to return, with the top estate, GST and gift-tax rate reverting to 55% with an applicable exclusion amount of $1.0 million. The Act reinstates the estate and GST taxes. For 2011 and 2012, the top estate-tax rate will be at 35% and the applicable exclusion amount will be $5 million per individual. The Act also reunifies the applicable exclusion amount ($5 million) and rates (35%) for estate, gift and GST taxes. EXEMPTIONS AND RATES 2010 TAX RELIEF 2011 & 2012 * ESTATE TAX EXEMPTION REPEALED * $5,000,000 TOP ESTATE TAX RATE REPEALED * 35% GIFT TAX EXEMPTION $1,000,000 $5,000,000 TOP GIFT TAX RATE 35% 35% GST EXEMPTION $5,000,000 $5,000,000 TOP GST TAX RATE 0% 35% * Executors of 2010 estates are allowed an election to apply 2010 or 2011 laws. Unless extended, the estate, gift and GST tax exemptions and rates revert back to 2001 levels in The estate tax exemption is inflation adjusted in For married persons, it is common for wills and revocable living trusts to include provisions for the funding of a bypass or credit shelter trust at the death of the first spouse. This funding is usually accomplished by a formula. Given the dramatic increase by the Act in the estate tax exemption amount, documents should be reviewed for formula clauses that may no longer meet your goals and objectives. In addition, the increased 5

6 STRATEGIC THINKING exemption may cause an unexpected tax liability upon the death of the first spouse in states with a separate death tax. The $5 million gift tax exemption will open up a lot of lifetime gifting opportunities. Estate freeze transactions like GRATs (grantor retained annuity trusts) and transfers to trust in exchange for promissory notes will also continue to be popular with the current low interest rate environment. Note that the proposed curtailment of the benefits of GRATs was not included in this legislation. Prior bills included a mandatory gift tax and a minimum 10-year trust term. GRATs remain viable estate freeze transactions for the time being. Portability of Exemption Effective for estates of decedents dying after December 31, 2010, the executor of a deceased spouse s estate may elect in a timely filed estate tax return to transfer any unused exemption to the surviving spouse. Unless extended, this expires along with the other estate tax changes at the end of This provision was intended as a simplification to eliminate the need for retitling of assets between spouses and utilizing tax-related trust planning at the first death such as bypass or credit shelter trusts. However, with the provision being only a temporary two-year provision the drafting of estate documents will become more complicated to take into account what may happen when the temporary extension expires. We anticipate an increased emphasis on disclaimer planning to give the surviving spouse maximum flexibility to efficiently incorporate a desire to freeze values at the first death and to accomplish tax and inheritance goals. Basis Election Executors of 2010 estates are allowed to elect whether to apply 2010 or 2011 law (i.e., pay no estate tax and use a modified carryover basis or be subject to estate tax using a $5 million exemption and a top rate of 35% with a full step-up in basis). For an estate of a person that died in 2010 that is below $5 million, the executor may want to elect to apply the 2011 law. By making such an election, the estate will get a full step-up in basis without actually paying any estate tax. For large estates, heirs may be better off if an election is made to apply the 2010 law because the 15% capital gains rate is more favorable than the 35% estate tax rate. Each case is unique and the executor will need to do the math and examine the particular situations with the estate tax and capital gains tax to make the right choice. Please consult your tax and legal advisors regarding your specific situation. 6

7 THE NEW TAX RELIEF ACT 7

8 Morgan Stanley Smith Barney LLC, its affiliates and Morgan Stanley Smith Barney Financial Advisors do not provide tax or legal advice. This material was not intended or written to be used for the purpose of avoiding tax penalties that may be imposed on the taxpayer. Clients should consult their tax advisor for matters involving taxation and tax planning and their attorney for matters involving trust and estate planning and other legal matters Morgan Stanley Smith Barney LLC. Member SIPC / PS-2658v2

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