Tax Withholding Requirements for Gift Annuities

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1 Tax Withholding Requirements for Gift Annuities Background On May 25, 2011, Michigan Governor Rick Snyder signed a tax reform bill into law ( law or Act ) which takes effect on January 1, 2012 (2011 PA 38). The stated purpose of the Act was to close the state budget deficit through taxes on net income and on certain commercial, business, and financial activities. The Michigan Department of Treasury published a 2012 Pension Withholding Guide ( Guide ) detailing the impact of the law. The Guide states that pension and retirement benefits will be subject to income tax for many recipients. Michigan law now requires the administrators of pension and retirement benefits to withhold income tax on payments that will be subject to tax. The amount required to be withheld in 2012 is 4.35% of the taxable portion of any payment. The Guide explains that pension and retirement benefits subject to withholding include most payments that are reported on a 1099-R for federal tax purposes including defined benefit pensions, IRA distributions and most payments from defined contribution plans. It is worth noting that the Guide states most rather than all payments reported on a 1099-R are subject to withholding. This distinction clearly means that there are some retirement-related benefits that are exempt from withholding. This document will discuss the exceptions and provide recommendations for charities which administer charitable plans with payments subject to withholding. How to Qualify for Exemption from Michigan Withholding Q. Under the Act, will charities based in Michigan, or those based outside of the state with Michigan annuitants, be required to withhold tax on the ordinary income and capital gains portionof annuity payments? A. If the charity does not qualify for exemption, yes. There are, however, a number of exceptions to the withholding requirement that charities can use to qualify for exemption from Michigan withholding requirements. These include: 1. Non-Michigan charities with Michigan annuitants are exempt. 2. Annuitants who expect to owe no taxes on their state income tax return may opt-out of withholding. 3. Annuitants born before Jan. 1, 1946 (age 66 and older in 2012) are exempt from withholding provided their annual private benefits do not exceed $45,842 if single, $91,684 if married. 4. Annuitants born on or after Jan. 1, 1946 are exempt if they opt-out of withholding by sending the charity a completed Withholding Certificate. Withholding Requirement Section 703(1) of the Act states: A person who disburses pension or annuity payments is subject to income tax withholding on thetaxable part of payments from an employer pension, annuity, profit-sharing, stock bonus, or other deferred compensationplan as well as from an individual retirement arrangement, an annuity, an endowment, or a life insurance contract issuedby a life insurance company. Withholding is not required on any part of a distribution that is not expected to beincludable in the recipient s gross income. This paragraph clearly imposes a withholding burden on a party who disburses pension or annuity payments. According to the Guide, companies who: (1) are subject to Michigan s taxing jurisdiction, or

2 (2) which voluntarily agree to withhold for Michigan residents, must register with the state in order to remit tax payments to the state. (Registration is made by filing Form 518). Under Section 703(1), withholding is required under, but limited to, two specific categories. The first category that is subject to withholding applies only in the context of employment-based retirement plans. Section 703 lists five such retirement or pension arrangements that will be subject to withholding ( employer pension, annuity, profit-sharing, stock bonus, or other deferred compensation plan ). Taken in context, it is clear the law intends for this category of withholding to apply to employment-related retirement/pension plans (reference to annuity refers to an employment-based annuity). This portion of Section 703 does not apply to charitable gift annuities as they are outside the employment context. The second category that is subject to withholding is limited to the individual retirement context. Here, Section 703 lists four individual retirement plans subject to withholding ( individual retirement arrangement, an annuity, an endowment, or a life insurance contract issued by a life insurance company ). Section 703 closely mirrors Section 72(a) of the Internal Revenue Code which requires a taxpayer to include in gross income amounts received from annuities. Unfortunately for charities, the Act makes no distinction between an individual commercial retirement annuity and a charitable gift annuity. Accordingly, this provision appears to subject payments related to a charitable gift annuity to the withholding requirement. Section 703 also provides that the 4.35% withholding is not required on any portion of a distribution that is not expected to be included in an individual s gross income. It is, therefore, not necessary to withholdany amount related to the non-taxable portion of an annuity payment; in cases where an annuitant determines their payments are not part of their gross income and are therefore not subject to taxation; or if the annuitant opts-outof the withholding requirement (see infra). As already discussed, withholding is not required on any portion of a payment that is not included in an individual s gross income. A considerable portion of the Act addresses how to determine this amount. Beginning in 2012, an individual s taxable income means their federal adjusted gross income, further adjusted by a series of additions and deductions specifically required/allowed by state law (See Section 30 of the Act). Under state law (Section 30(1)(f)), many individuals will be allowed to exempt from their taxable income certain payments received as retirement or pension benefits (Section 30(1)(f)(i)-(iii)). Under the Act, retirement or pension benefits are defined generally as distributions from: (1) employment and self-employment based plans (such as stock option plans, Keogh, 401(k), and 403(b) tax-sheltered annuity plans); (2) government or church pension plans; and (3) certain spousal death benefits; but specifically excludes certain employer contributions, severance and early retirement benefits. There are, however, limitations for the exemption of retirement or pension benefits. First, the exemption is allowed only to the extent the retirement or pension income was already included in adjusted gross income under federal law. (Section 30(1)(f)). Second, the timing and applicability of the exemption differs for taxpayers based on three age brackets (those born before 1946, those born in 1946 through 1952 and those born after 1952). Exemption FromMichigan Withholding Under the Act, there are a number of instances which do not require the payment of taxes and/or any withholding, including: (1) Non-Jurisdiction Charities. Charities that are not subject to Michigan s taxing jurisdiction are not required to make withholdings on behalf of annuitants (Exception: if a charity voluntarily agrees to withhold, they must do so and register with the state). While an annuitant with Michigan domicile may still be responsible for paying taxes on a portion of any payments, a

3 charity outside the state s jurisdiction does not have to withhold. (Note: charities located in Michigan or with employees in Michigan are already subject to the state s taxing jurisdiction and, therefore, must withhold). (2) Exclude Non-Taxable Benefits from Withholding. The Act provides that no withholding is necessary on any portion of a pension or retirement payment that is non-taxable. In the case of a charitable gift annuity, a significant portion of each payment is not included in gross income under federal law and is, therefore, not subject to withholding under Michigan law. Charities should be sure to only withhold on that portion of the payment that is taxable. EXAMPLE 1. Assume an 85 year old donor funds a gift annuity with $20,000 cash. Assume further that the donor receives a gift annuity paying $1,680 per month and that $1, of that monthly payment is tax-free during their estimated life span. At most, only the remaining portion of the monthly payment ($273.84) would be subject to withholding under Michigan law, at the 4.35% rate. The maximum amount withheld each month would then be $ (3) Beneficiary Opt-Out. Individual beneficiaries of any age who believe they will not have a balance due on their state income tax return (MI-1040) may opt-out of the withholding requirements altogether by completing a Withholding Certificate (MI W-4P) and providing that form to each administer/trustee of a pension or retirement plan (including a charity). Charities subject to Michigan s tax jurisdiction may choose to notify each annuitant located in Michigan of the withholding requirement and suggest the annuitant return a completed and signed Withholding Certificate to the charity (with a check in the box on Line 1 stating payments are not taxable if the annuitant chooses to opt-out of the withholding requirement). By opting out, the individual will not have their annuity payment reduced by the amount of any required withholding. (Note: a taxpayer who opts-out of withholding may still be required to pay taxes on benefit payments together with interest and penalties if applicable). (4) Beneficiaries Born Before Persons born before 1946 (people who are 66 and older in 2012) receive special treatment under the Act (the Act does not change the tax treatment for their pension and retirement income). These senior annuitants can exclude from tax all benefits from private retirement plans up to $45,842 if single, $91,684 if married ( Exemption Amount ). (Note: benefits paid from public pension/retirement sources do not count against the Exemption Amount). No withholding is necessary for a senior annuitant unless the sum of their annual private pension/retirement benefits exceeds the Exemption Amount. All senior annuitants may opt-out of the withholding requirement by completing a Withholding Certificate (MI W-4P) and checking the box on Line 2 (in cases where a senior annuitant s private pension/retirement benefits exceed the Exemption Amount, the annuitant may still have to pay taxes on the excess portion of any benefits). In the absence of a completed Withholding Certificate from a senior annuitant, the Michigan Department of Treasury has stated withholding is NOT required unless the taxable portion of all benefits exceeds the Exemption Amount. (5) Beneficiaries Born Between 1946 and Persons born between 1946 and 1952 are permitted, under certain circumstances, to exclude a portion of their pension/retirement benefits from taxation. The Guide includes a series of tax tables for individuals/couples in this age group to assist them in determining their tax liability. A single individual who receives less than $1,650 in aggregate pension benefits is not required to pay tax and may opt-out of the withholding requirements. Individuals can opt-out of withholding by submitting a completed copy of the

4 Conclusion Withholding Certificate (with the box on Line 3 checked) and providing that to each administrator of a pension/retirement plan (including a charity). Michigan s new tax law that takes effect on January 1, 2012 imposes a burden on administrators of pension and retirement benefits to withhold (at the rate of 4.35% in 2012) on the taxable portion of any payment to a beneficiary. Michigan charities should take steps to qualify for exemption from withholding.

5 Relevant Statutory Language SECTION 30 SECTION 30, subsection (8) Sec. 30. (1) Taxable income means, for a person other than a corporation, estate, or trust, adjusted gross income as defined in the internal revenue code subject to the following adjustments under this section: (f) Deduct the following to the extent included in adjusted gross income subject to the limitations and restrictions set forth in subsection (9): (i) Retirement or pension benefits received from a federal public retirement system or from a public retirement system of or created by this state or a political subdivision of this state. (ii) Retirement or pension benefits received from a public retirement system of or created by another state or any of its political subdivisions if the income tax laws of the other state permit a similar deduction or exemption or a reciprocal deduction or exemption of a retirement or pension benefit received from a public retirement system of or created by this state or any of the political subdivisions of this state. (iii) Social security benefits as defined in section 86 of the internal revenue code. (iv) Beginning on and after January 1, 2007, retirement or pension benefits not deductible under subparagraph (i) or subdivision (e) from any other retirement or pension system or benefits from a retirement annuity policy in which payments are made for life to a senior citizen, to a maximum of $42, for a single return and $84, for a joint return. The maximum amounts allowed under this subparagraph shall be reduced by the amount of the deduction for retirement or pension benefits claimed under subparagraph (i) or subdivision (e) and by the amount of a deduction claimed under subdivision (p). For the 2008 tax year and each tax year after 2008, the maximum amounts allowed under this subparagraph shall be adjusted by the percentage increase in the United States consumer price index for the immediately preceding calendar year. The department shall annualize the amounts provided in this subparagraph as necessary. As used in this subparagraph, senior citizen means that term as defined in section 514. (v) The amount determined to be the section 22 amount eligible for the elderly and the permanently and totally disabled credit provided in section 22 of the internal revenue code. (8) As used in subsection (1)(f), retirement or pension benefits means distributions from all of the following: (a) Except as provided in subdivision (d), qualified pension trusts and annuity plans that qualify under section 401(a) of the internal revenue code, including all of the following: (i) Plans for self-employed persons, commonly known as Keogh or HR10 plans.

6 (ii) Individual retirement accounts that qualify under section 408 of the internal revenue code if the distributions are not made until the participant has reached 59-1/2 years of age, except in the case of death, disability, or distributions described by section 72(t)(2)(A)(iv) of the internal revenue code. (iii) Employee annuities or tax-sheltered annuities purchased under section 403(b) of the internal revenue code by organizations exempt under section 501(c)(3) of the internal revenue code, or by public school systems. (iv) Distributions from a 401(k) plan attributable to employee contributions mandated by the plan or attributable to employer contributions. (b) The following retirement and pension plans not qualified under the internal revenue code: (i) Plans of the United States, state governments other than this state, and political subdivisions, agencies, or instrumentalities of this state. (ii) Plans maintained by a church or a convention or association of churches. (iii) All other unqualified pension plans that prescribe eligibility for retirement and predetermine contributions and benefits if the distributions are made from a pension trust. (c) Retirement or pension benefits received by a surviving spouse if those benefits qualified for a deduction prior to the decedent s death. Benefits received by a surviving child are not deductible. (d) Retirement and pension benefits do not include: (i) Amounts received from a plan that allows the employee to set the amount of compensation to be deferred and does not prescribe retirement age or years of service. These plans include, but are not limited to, all of the following: (A) Deferred compensation plans under section 457 of the internal revenue code. (B) Distributions from plans under section 401(k) of the internal revenue code other than plans described in subdivision (a)(iv). (C) Distributions from plans under section 403(b) of the internal revenue code other than plans described in subdivision (a)(iii). (ii) Premature distributions paid on separation, withdrawal, or discontinuance of a plan prior to the earliest date the recipient could have retired under the provisions of the plan. (iii) Payments received as an incentive to retire early unless the distributions are from a pension trust. SECTION 30, subsection (9)

7 (9) In determining taxable income under this section, the following limitations and restrictions apply: (a) For a person born before 1946, this subsection provides no additional restrictions or limitations under subsection (1)(f). (b) For a person born in 1946 through 1952, the sum of the deductions under subsection (1)(f)(i), (ii), and (iv) is limited to $20, for a single return and $40, for a joint return. After that person reaches the age of 67, the deductions under subsection (1)(f)(i), (ii), and (iv) do not apply and that person is eligible for a deduction of $20, for a single return and $40, for a joint return, which deduction is available against all types of income and is not restricted to income from retirement or pension benefits. However if that person s total household resources exceed $75, for a single return or $150, for a joint return, that person is not eligible for a deduction of $20, for a single return and $40, for a joint return. A person that takes the deduction under subsection (1)(e) is not eligible for the unrestricted deduction of $20, for a single return and $40, for a joint return under this subdivision. (c) For a person born after 1952, the deduction under subsection (1)(f)(i), (ii), or (iv) does not apply. When that person reaches the age of 67, that person is eligible for a deduction of $20, for a single return and $40, for a joint return, which deduction is available against all types of income and is not restricted to income from retirement or pension benefits. If a person takes the deduction of $20, for a single return and $40, for a joint return, that person shall not take the deduction under subsection (1)(f)(iii) and shall not take the personal exemption under subsection (2). That person may elect not to take the deduction of $20, for a single return and $40, for a joint return and elect to take the deduction under subsection (1)(f)(iii) and the personal exemption under subsection (2) if that election would reduce that person s tax liability. However, if that person s total household resources exceed $75, for a single return or $150, for a joint return, that person is not eligible for a deduction of $20, for a single return and $40, for a joint return. A person that takes the deduction under subsection (1)(e) is not eligible for the unrestricted deduction of $20, for a single return and $40, for a joint return under this subdivision. (d) For a joint return, the limitations and restrictions in this subsection shall be applied based on the age of the older spouse filing the joint return. SECTION 703 Sec (1) A person who disburses pension or annuity payments is subject to income tax withholding on thetaxable part of payments from an employer pension, annuity, profit-sharing, stock bonus, or other deferred compensationplan as well as from an individual retirement arrangement, an annuity, an endowment, or a life insurance contract issuedby a life insurance company. Withholding is not required on any part of a distribution that is not expected to beincludable in the recipient s gross income.

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