Category: Taxation and Estate Planning

Your Christmas gift to the richest people in the U.S.

by philg

If you’re concerned that you haven’t spent enough on Christmas this year, the Wall Street Journal reassures you that, via your federal income tax payments, you’re subsidizing some of America’s richest private equity partners, $1,500/hour lawyers, etc. “High-Income Business Owners Escape $10,000 Tax Deduction Cap Using Path Built by States, Trump Administration” (12/6):

More than 20 states created workarounds to the limit, and New York’s law firms and private-equity firms are signing up

Here’s how it works. Normally, so-called pass-through businesses such as partnerships and S corporations don’t pay taxes themselves. Instead, they pass earnings through to their owners, who report income on individual tax returns. That subjects them to state individual income taxes—and the federal limit on deducting more than $10,000, created in the 2017 tax law.

Details vary by state, but the workaround flips that concept. The states impose taxes—often optional—on pass-through entities that are roughly equal to their owners’ state income taxes. Those taxes then get deducted before income flows to the business owners.

The laws then use tax credits or other mechanisms to absolve owners of their individual income-tax liabilities from business income. Thus, they satisfy state income-tax obligations without generating individual state income-tax deductions subject to the federal cap.

In these systems, state revenue is virtually unchanged, because the entity-level tax replaces personal income taxes. Business owners win, because every $100,000 of state taxes that go from nondeductible to deductible yields up to $37,000 in net gain on federal income-tax returns. The federal government loses money.

In New Jersey, pass-through businesses reported $1.3 billion in entity-level liability for the tax’s first year in 2020, suggesting an equivalent amount of federal deductions that might have otherwise been disallowed. In New York, more than 95,000 pass-through entities opted into the tax for 2021 before the Oct. 15 deadline.

“It’s really a slam dunk,” said Phil London, an accountant and partner emeritus at Wiss & Co. in New York, who said he has seen the owners of one business save $1.5 million and expects law and accounting firms to use the workaround. “The larger-income entities and real-estate investors and real-estate operators, they’re going to benefit from it.”

Private-equity firms have been particularly interested, said Jess Morgan, a senior manager at Ernst & Young LLP. And some businesses have restructured themselves to take maximum advantage of the benefit, she said.

After rejecting other workarounds, the Treasury Department blessed these a few days after the 2020 election, citing a footnote in a committee report from the 2017 law and a handful of entity-level taxes that predated 2017. The Trump administration, which had pressed for the $10,000 cap, offered the path out of it.

In other words, many of the richest Americans in high-tax states will be able to deduct nearly all of what would have been their state tax liability, thus keeping the subsidies flowing from workers in low-tax states and from ordinary W-2 slaves who can’t work around what was advertised as the law.

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Bidenflation will make it easier for rich people to avoid estate tax?

by philg

President Biden promised chicken soup for our envious souls in the form of taking money away from rich people. But the inflation associated with Big Government and Bigger Government is already making rich corporate executives richer (easier to meet targets expressed in nominal dollars; see Is Elon Musk one of the bigger winners from inflation?). A recent Bloomberg article makes it look as though inflation also makes it much easier to work around the estate tax. From “The Hidden Ways the Ultrarich Pass Wealth to Their Heirs Tax-Free”:

First, Knight cycled millions of Nike shares through a series of trusts that effectively moved billions of dollars’ worth of stock price gains from his estate to his heirs, tax-free. Then he put most of his remaining shares into a vehicle called Swoosh LLC and let a trust controlled by his son, Travis, purchase a stake at a big discount. The chain of trusts let hundreds of millions of dollars in dividends flow to Knight’s heirs with him covering the income taxes. All this planning also ensured his family would retain control of his sneaker empire.

The foundation of Knight’s strategy is the grantor-retained annuity trust, or GRAT. His first step was to set up nine GRATs, which successfully transferred Nike shares now worth $6.1 billion to heirs tax-free from 2009 to 2016. Two other GRATs that show up in public filings received about $970 million of unspecified assets from Knight. The filings don’t disclose the ultimate beneficiaries, but Lord says that, based on how family wealth transfers usually work, they might include the family of Knight’s late son, Matthew, who died in 2004.

Officially, gifts are taxable: If you send someone more than $15,000 per year, you’re supposed to file a separate gift tax return, with the total counting toward your $11.7 million lifetime estate-and-gift-tax exemption. (Double that for married couples.) Once you reach that threshold, you must pay a 40% levy. But giving heirs the right to profit, risk-free, from your investments? Not a taxable gift if you route it through a GRAT. “It looks like the heirs didn’t receive anything of value, but in fact they have been given all of the upside growth potential,” says Ray Madoff, a law professor at Boston College.

[section on the grantor-retained annuity trust machinery]

Put in assets, such as stocks, that have a good chance of making money over time. Technically this isn’t a taxable gift, as long as the GRAT is set to repay you the initial value of the assets in the form of an annuity, usually over two or three years.

If the assets go up in value during this period, the gains can stay in the GRAT, minus a (usually low) minimum rate tied to interest rates. Whatever’s left goes to the heirs tax-free.

If the assets drop in value during that time, your heirs are unaffected. You can pretend the GRAT never existed and try again. The more GRATs you set up—and some of the ultrarich open one monthly—the higher the chance some will succeed.

In our current inflationary environment, it is a lot more likely that assets in the trust will go up in value (expressed in nominal dollars rather than real (inflation-adjusted)). Thus, the more money President Biden and the Democrats promise to spend, the richer the children and grandchildren of today’s super rich should become. American tax law in general and estate-/trust-related law in particular are so complex that it takes a $600/hour lawyer to figure it all out and a layperson’s head will be left spinning, but I think the Bloomberg article is worth reading.

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