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Step-Up in Basis

A Brief Introduction of Step-Up in Basis

By: Junfen Tang

Definition

Under Internal Revenue Code Section 1014(a), the basis of an inherited property from a decedent is generally (1) the fair market value of the property at the date of the decedent’s death, or (2) the fair market value of the property on the alternative valuation date.

Thus, when the above applicable fair market value of an inherited property is above its original purchase price that had been paid by the decedent, the heir who inherits certain property can use the fair market value as his or her cost basis and minimize the capital gains taxes owed if the property is sold later.

Why Step-Up in Basis

The underlying theory for step-up in basis is avoiding double taxation. Double taxation means that the taxpayer is taxed twice on the same income or assets.

In general, the taxpayer is subject to capital gain taxes for income generated from the sales of appreciated \ assets. If a taxpayer chooses not to dispose of his or her assets on or before his or her death, no capital gain taxes can be collected for the appreciation of these assets. However, the fair market value of these assets at the time of the death of the taxpayer shall be included into the deceased’s estate, thus, will be subject to estate tax, at least for those individuals with taxable estates.

Then, if the heir sells above inherited assets and is required to calculate capital gain based on the original costs in the hand of the deceased, the differences between the fair market value at the time of the taxpayer’s death and the original costs are likely to be taxed twice, which include the estate tax over the deceased’s related estate and the capital gain taxes upon the heir’s sales of these inherited assets.

Therefore, the U.S. tax code allows heirs to raise their cost basis to the inherited assets’ fair market value at the time of the decedent’s death, which means the heir obtains a step-up basis on the inherited assets.

How Step-Up in Basis Works

  1. Scope of application of the step-up in basis.
    The step-up in basis provision applies to real estate, other tangible property, and financial assets like stocks, bonds, and mutual funds as well.
  2. Determination of the step-up in basis.
    First, the step-up in basis is determined on the date of the owner’s death, or by using an alternative valuation date. The former calculation is relatively simple. For example, an inherited public security’s step-up in basis will be its closing price on the date of the decedent’s death or most recent trading date. While the step-up in basis is determined by using an alternative valuation date, the executor of the decedent’s estate must file an estate tax return known as form 706 and elect to use the alternative valuation on that return. Moreover, the step-up in basis must be the fair market value, which may be determined by the public market price of the same assets, the likely determination of the value of publicly traded stocks, or through a professional third-party assessment, for example determining the value of a piece of art.
  3. Step-up in basis for community property.
    Residents of the community property states, which include Washington state, can take advantage of the double step-up in basis rule. Community property means all assets accumulated during a couple’s marriage. A living spouse will be entitled the step-up in basis on the whole community property at the time of the other spouse’s death, not only for the fifty percent of the community property. Here is an example that may help your understanding of the double step-up in basis: Amy and Ben were married couple and residents of the State of Washington, a community property state. The couple purchased a house thirty years ago with a cost basis as $200,000. Ben passed away this year and their house’s fair market value increased to $800,000 at the date of Ben’s death. Ben was entitled to fifty percent of the value of the house and his estate will leave the house to his surviving spouse according to his will. If there are no applicable community property rules, then only Ben’s estate will have a step-up in basis, and Amy will have a new basis of $500,000 on this house. However, the community property rules apply, and Amy is allowed to a new basis of $800,000 on this house.
  4. No step-up in basis for lifetime gift.
    Although the step-up in basis provision applies to the inherited assets, for which titles are passed to heirs, beneficiaries cannot take advantage of the step-up in basis on properties that are gifted during the decedent’s lifetime.

Step-Up in Basis as a Tax Loophole

In fact, the step-up in basis provision has often been criticized as a tax loophole, which focuses mostly on the wealthy families that escape millions in taxes while their next generation enjoys the advantage of owning these assets. Like the above-mentioned underlying theory for the step-up in basis, the extensive amount of the estate tax exemption helps wealthy families to eliminate both estate taxes and capital gain taxes as well. Thus, the Biden administration and legislative leaders have developed a proposal to tax estates on the appreciation of the inherited property’s value. People are still waiting to see if the step-up in basis rules will be changed in the future as pressure on Congress to increase tax revenues continues.

Conclusion

Knowing the rules as outlined above, it is clear that the step-up in basis provisions should be included in your estate plan.  You are advised to consult with a professional tax advisor for assistance in this area of estate planning because of both the possibility of losing the advantages of a step-up in basis of appreciated inherited assets and the complexity of the application of the rules in this area.

Ms. Tang received her Master’s in Tax degree from the University of Washington School of Law

tax cuts and reform

The Tax Cuts and Jobs Act of 2017 is now the “law of the land” starting in 2018

Tax laws have significantly changed with the passage of The Tax Cuts and Jobs Act of 2017. Our focus in this article is on the impact of this new law on individuals. Future newsletters will address the impact on Corporations, Pass-Through Entities, Trusts & Estates and Exempt Organizations.

Changes for Individuals – A Summary

  • Capital Gains rates remain at 20%
  • The Obamacare surtax of 3.8% on net investment income remains
  • The Medicare .9% surtax on wages and other ordinary income remains
  • The “Kiddie Tax” is new. It taxes minors like they are a trust. Rates start at 37% on unearned income over $12,500 annually
  • No more retroactive re-characterization of contributions to IRAs, as traditional or as Roth, or visa-versa
  • Personal exemptions were merged into the doubled Standard Deduction
  • The “Teacher Deduction” was doubled from $250 per year to $500 per year maximum deduction for classroom supplies
  • The Mortgage Interest deduction remains available on loans up to $1,000,000, but for homes acquired after 1/1/18, the mortgage amount is reduced to $750,000 and the deduction of HELOC interest has been eliminated
  • No more miscellaneous deductions or deductions for tax preparation fees
  • No more moving expense deduction except for Armed Forces members forced to move under military order

If you have any questions or would like to schedule a free consultation, please contact us at:

Port Orchard Office: (360) 876-6425

Seattle Office: (360) 509-4329

We hope these tax tips are helpful. Wishing all of our clients and friends a Prosperous New Year! From the Law Offices of Seward and Associates, Attorneys at Law

The Tax Cuts and Jobs Act of 2017. Key year-end tax planning tips.

Tax law changes are coming so we have some key year-end tax planning tips and summaries of The Tax Cuts and Jobs Act of 2017.

Our focus in this article is this proposed law and the potential major changes to both the income tax laws and the estate and gift tax laws that we can likely expect. See our planning tips below.

Changes to Income Tax Laws – A Summary

  • Corporate rates – corporate tax rates are reduced to a flat 20% rate which is 2.5% below the average marginal rate for corporations worldwide. The intention is to make US corporations more competitive in the global marketplace. To partially pay for this, Congress increased the tax rate for C Corporations with taxable income up to $50,000 a year from 15% to 20%, but for most, rates will go down. If your income tax rates will be decreasing, then accelerate income to the current year to take advantage of the lower tax rates while you can.
  • The Section 179 expense – This deduction allows expensing the full cost of assets used in a trade or business. It will be increased from a current maximum deduction of $500,000 to a maximum deduction of $5,000,000 through 2022 with a 50% bonus for new property (except for depreciable real property). So, you can buy that jet or a fleet of bulldozers now.
  • Section 1031 “like kind” real estate exchanges – If you are contemplating a Section 1031 “like kind” exchange – Complete the transaction as soon as possible as there will be severe limits to the benefits of this section going forward.

Read more

New tax cuts are “pending” and investment diversification as an asset protection strategy is more important than ever.

Have you considered diversifying your investments from the stock market to income-producing real estate?

We are seeing increased investment in income producing real estate such as apartments. The investment vehicle of choice for protection of business and personal assets and preferred tax treatment is the single member limited liability company (“LLC”) [1].

Single member LLCs – This entity is disregarded by the IRS for income tax purposes so all the tax benefits flow through to the member/investor on his or her 1040 personal tax return. The LLC files no tax return. Tax benefits include depreciation and interest deductions to offset the taxable rental income. Depreciation is a valuable non-cash deduction and it is based on the full purchase price excluding the land. The deduction is based on the premise that the improvements have a limited useful life so the investment is returned pro-rata over the useful life of the asset through depreciation deductions. This also lowers the tax payer’s basis in the property which increases the taxable gain on sale. That is where the magic of IRS Section 1031 comes into play.

IRS Section 1031 Like-Kind Exchanges – 1031 exchange tax deferral is available on sale if the net proceeds are reinvested in a qualifying “like kind” replacement property generally within 6 months of the sale. [2]The theory of tax deferral is that it is more of a theoretical gain if the investment continues in similar replacement property. This theory ignores the “step-up” in basis that is gained when the investor dies, and the “gain” avoids tax entirely. With the pending “tax cuts” this tax benefit may well be the first “offset” to go away.

Positive Leverage – With 75% positive leverage, a typical investment example follows:

A Typical Transaction:

A $1,000,000 purchase price, determined at a .06 capitalization rate, would look like this at the closing:

1) $250,000 cash down (this can be bifurcated into 5 LLC’s investing $50,000 each) and;

2) $750,000 in debt at a 4% interest rate, secured by the Property.

In this example, there is positive leverage on the $750,000 in debt of 2%. This is possible in the early years if interest rates stay at these historically low levels.

We are available to answer any questions you may have and we offer free consultations for anyone interested in discussing these investment diversification options. Call us at (360) 876-6425.

1. The 2003 Ashley Albright, Debtor, Case No. 01-11367 in the United States Bankruptcy Court for the District of Colorado made it more difficult for single-member LLCs where the member is in Chapter 7 to protect the business assets of the LLC from the trustee. Protection still exists from most creditors and personal assets continue to be protected from creditors of the LLC.

2. Property held for investment or for use in a trade or business qualify and the “like kind” requirements are very broad in terms of the kinds of real estate that qualifies. For example, an easement can be sold and reinvested in a fee interest.

Photo by Sweet Ice Cream Photography on Unsplash

Protecting your assets in a Trump administration – Planning Tips Revisited

This is Part 2 of a two-part article. Read Part 1 here…

Now that Donald Trump has been in office for several weeks, the expected changes that we discussed in our last newsletter — repeal of the Obamacare surtax, lower corporate income tax rates, lower individual tax rates, taxes on imports, and child care credits — seem to be on track given the rhetoric from the White House and the majority in the house and senate.

“Risky times are ahead.” – Gerald F. Seib

Read more

Tax Rates. How to protect your Assets in a Trump Administration.

tax ratesTax rates and asset protection in a Trump Administration.

Let’s talk tax rates. Now that Donald Trump is transitioning to the Presidency and we have a republican controlled House and Senate we can anticipate some “Reagan like” tax law changes. [1] When Reagan came into office, tax rates on unearned income were at 70% and the prime rate was at an all-time high of 21.5% and averaged 12.65% over the decade of the 80’s. [2] The Reagan administration lowered the tax rate on unearned income to individual rates on earned income and long-term capital gains were taxed at a reduced rate of 40%. Now with a Trump administration we might see tax rates as low as 15% on interest and dividends.

This article will discuss the “clues” that were revealed during the campaign [3] as to what changes we can expect and how to protect our assets going forward.

What changes, what tax rates can we expect?

  1. Repeal of the Obamacare surtax – The Patient Protection and Affordable Care Act of 2010 surcharge is equal to 3.8% of a taxpayers “net investment income” from dividends, rents and capital gains. [4]
  2. Lower corporate income tax rates. – Currently we have the highest corporate tax rate in the world, at 38.82 %, The next highest is France at 34.43% and the lowest is the United Kingdom at 20%. Expect Trump to push for a corporate tax as low as 15%. Businesses can also expect to benefit from an election that allows fully expensing plant and equipment costs by waiving the deduction to write off interest on business loans.
  3. Lower individual tax rates – Tax brackets will be reduced from 7 to 3 with tax rates at 12%, 25% or 33%, down from 39.6%.
  4. Taxes on imports – You can expect higher consumer prices through tariffs on imported goods which leads to inflation which in turn leads to higher interest rates.
  5. Child Care Credits – even for the wealthy. These credits are a central part of his tax reduction plan.

8 Year-End TAX Planning Tips. What are the key planning tips for asset protection?

  1. Consider deferring sales of assets such as income producing real estate as these will become more valuable if the surtax is repealed and your net proceeds after tax will be higher if the sale is deferred to 2017.
  2. May make sense to use C corporations to lower your overall tax rate. With corporate tax rates at 15% and your individual tax rates as high as 33%, the C Corporation can be used to shelter your income from income taxes while you grow equity in your C corporation.
  3. Increased job creation through government funded infrastructure type public improvements – see article by John Paul Turner below on The Power of Eminent Domain and the Government’s Right to Take Your Property.
  4. Protect investment accounts by diversifying into inflationary hedges and investments that do well as interest rates rise while avoiding health care and related industry investments that presents obvious risks due to the uncertainty in the industry.
  5. Refinance floating rate loans to fixed rates. Lock in these historic low interest rates!
  6. Defer income into 2017 and accelerate expenses into 2016. Income will be taxed at lower rates and expenses taken in 2016 will be more valuable.
  7. Defer gains on sales and even consider a 1031 exchange on sales of real estate assets. Even the sale of a conservation easement qualifies as a sale of a “real property interest” that would allow the net proceeds to be reinvested in income producing real estate assets with the rental income being spared of the surtax charge.
  8. Defer major capital equipment purchase to 2017 to take advantage of the write-offs. Pay cash if possible to avoid the loss of the business interest deduction.

General Recommendations – We can expect change and with change comes uncertainty, which makes investors nervous and more cautious, so it is a good time to re-evaluate your investment portfolio to make sure you have good diversification, including assets and liabilities that grow in value as interest rates increase, such as adjustable rate assets (adjustable rate bonds or annuities) and fixed rate liabilities (on your home loan, for example). Time to lock in these historically low interest rates!

1. I was 30 years old when Reagan took over the oval office. The prospect of change was exciting for young professionals at the time.
2.  The Prime Rate is the rate banks charge their best customers on loans. See http://www.fedprimerate.com/wall_street_journal_prime_rate_history.htm.
3. You can also visit the Donald J. Trump website at http://donaldtrumppolicies.com/
4. Or, alternatively, taxable income minus a threshold amount of $250,000 for married couples filing jointly, $125,000 for single filers, and $200,000 for all others.

Estate Tax and Estate Planning Updates

Estate Tax Update

Federal Estate Tax, Gift Tax and Generation-Skipping Tax Exemptions

The 2016 federal exemption against estate and gift taxes is up to $5,450,000 per person adjusted for inflation, up $20,000 from the 2015 exemption which was $5,430,000 per person. This is up from $5,120,000 in 2012. Estates in excess of this exemption amount are subject to a 40% federal estate tax. The federal generation-skipping transfer tax exemption was also increased to $5,450,000 per person.

State Estate Tax Exemption

The 2016 Washington State estate tax exemption is $2,078,000 per person up from $2,054,000 per person in 2015, adjusted for inflation. Washington estates in excess of this amount are subject to a 10% – 20% Washington State Estate Tax. Even though the Washington State estate tax exemption has been increased to $2,078,000, the filing threshold for the Washington State Estate and Transfer Tax Return remains at $2,000,000. Each estate over $2,000,000 is required to file a Washington State Estate and Transfer Tax Return. The exemption amount remained at $2,000,000 during 2012 and 2013, and was first increased to $2,012,000 in 2014.

Federal Gift Tax Annual Exclusion

The federal annual gift tax exclusion remains at $14,000 for 2016.

Estate Planning Update

Supreme Court States Inherited IRAs Are Not Exempt From Creditors’ Claims

If you have an Individual Retirement Account (IRA), funds held in your account are exempt from your creditors. In other words, if you are in a car accident and a judgment is awarded against you, your IRA cannot be seized as payment. However, it was unclear previously whether the beneficiaries who received your IRA following your death would receive the same creditor protection that you received. Recently, in Clark v. Rameker, the US Supreme Court clarified this. The Court reasoned that Inherited IRAs (e.g., IRAs left to a spouse, children, grandchildren, or friends upon a participant’s death) are not “retirement funds” and therefore do not receive creditor protection. The one exception to this rule is for IRAs left to a surviving spouse who then “rolls over” the IRA and treats it as his/her own account. In this case, the IRA will remain creditor protected.

IRA Trusts – Creditor Protection For Inherited IRAs

When one door closes, another opens. In the wake of Clark v. Rameker, IRA Trusts have become much more popular. While an Inherited IRA left to an individual is not protected from that individual’s creditors, an IRA left to an IRA Trust for the benefit of an individual can be protected from that individual’s creditors. An IRA Trust is a trust specifically designed to allow the IRA to remain tax-deferred – stretching the required minimum distributions from the IRA over the life expectancy of the beneficiary. The IRA Trust can allow these distributions to be accumulated in the trust and held for the beneficiary’s benefit, or the distributions can pass directly to the beneficiary. If the IRA Trust includes language that prohibits the IRA Trust beneficiary from voluntarily or involuntarily alienating his or her interest in the IRA Trust (commonly referred to as a “spendthrift” provision), the beneficiary’s creditors cannot reach the funds in the IRA or in the IRA Trust.

Key Asset Protection Strategy – Based on the above we are recommending that clients use an “IRA Trust” as their IRA beneficiary instead of directly to their children in what becomes an “Inherited IRA” on your death which is not protected from creditors. If you have questions or would like to discuss your personal situation, please contact us and we would be happy to discuss how you can protect your hard earned assets for the benefit of your family.

2nd Mortgage Avoidance in Chapter 20

Traditionally, debtors have had the opportunity to remove or “strip” a second mortgage from their home or rental property through a chapter 13 bankruptcy petition and plan. Debtors may strip their second mortgages from their home if they can demonstrate that there is no equity beyond the first mortgage that the second mortgage to attach to. If the Debtor can prove that the second mortgage is completely unsecured, it can be removed, provided the Debtor is able to complete their chapter 13 plan obligations – i.e.: make their proposed plan payment for each of the 36 or 60 months required under their chapter 13 plan.

Debtors may also strip a second mortgage from their property by means of a “Chapter 20 Bankruptcy,” which is a chapter 7 and chapter 13 together. A chapter 20 bankruptcy is accomplished when a Debtor files a chapter 7 bankruptcy petition and receives a discharge of their debt, then files a subsequent chapter 13 petition and plan. The chapter 13 plan is often only made up of secured creditor debts (car payments, mortgages, etc.) and any arrearages on secured debts, most of the time a mortgage. The chapter 13 allows the debtor the opportunity to receive protection from the bankruptcy court while bringing their mortgage current. Protection can be needed if the debtor is facing foreclosure or garnishment of their wages or bank account.
The only hurdle to a successful outcome in a chapter 20 bankruptcy is the timing upon which the chapter 13 is filed after the chapter 7. Debtors filing a chapter 13 petition may only receive a discharge of their debt if their chapter 13 petition is filed more than four years after the filing of their chapter 7 petition was filed. Many courts in the past have found that the lien stripping action in the subsequent chapter 13 must be contingent upon the issuance of a discharge in the debtor’s chapter 13. So, by deductive reasoning, it would be safe to conclude that if a Debtor who files a chapter 13 petition within four years of their chapter 7 petition, they could not strip the second mortgage from their home due to the fact that they cannot receive a discharge.
But a case in the United States Bankruptcy Court for the Ninth Circuit could ultimately rule that the stripping of the lien from the debtors property is only contingent upon successful completion of the debtor’s chapter 13 plan, and not upon the issuance of a discharge. The case is Litton Loan Servicing v. Robert Blendheim, Ninth Circuit No. 13-35354. For additional information on this case, and other similar cases in other circuits, you can go to http://www.ncbrc.org/

This a potentially ground-breaking ruling, with beneficial consequences for those debtors that have received a chapter 7 discharge within the last four years. If you have a second mortgage that has no equity beyond the first mortgage, you may be able to strip that lien in a chapter 13 bankruptcy. If this is you, it’s time to talk with a bankruptcy attorney right away.

Attorney Jared Bellum is a contributing author to this blog.

Is a Prenuptial Agreement Necessary?

Prenuptial Agreement…Those are two words that hopeless romantics, women like Anna Nichole Smith, and men like Kevin Federline hope to never hear.

While this document may be as un-romantic as your mother-in-law accompanying you and your spouse on your honeymoon, it may be more beneficial to your marriage than you may think. Any psychologist or divorcee will tell you that communication is paramount in a successful marriage and a prenup can function as the AT&T of financial issues. By clearly defining financial issues between the parties, it may reduce conflicts during the marriage.

In addition to providing clarification of any questions regarding financial issues during the marriage, it may act as a crystal ball of sorts and dispel any uncertainty as to the consequences of dissolving that marriage. Finally, if properly executed it may reduce the litigation costs of a divorce.
So how does one properly execute a valid prenup in Washington State? Well, the Supreme Court, in a case called In re the Marriage of Bernard recently set forth strict requirements that must be followed.  First, the agreement must be “substantively fair.” This means the agreement makes fair and reasonable provision for the spouse. Basically, the agreement must be fair in relation to the parties’ respective financial situations.

Second, the agreement must be “procedurally fair.” To meet this requirement, you must: (1) fully disclosure the amount, character, and value of your property and (2) the agreement must be entered into fully and voluntarily with full knowledge by both spouses of their rights. In order to comply with this last part, adequate time must be given to your spouse to seek independent advice from an attorney. While they don’t necessarily have to speak to an attorney, it’s always a good idea to have them do so. As far as the time your spouse must be given, the courts are pretty clear that hours or days before the wedding ceremony is simply not enough time.

To avoid any potential legal pitfalls, you should ALWAYS seek the advice of an attorney before you attempt to draft or execute a prenup. Downloading a boiler-plate prenup from Legal Zoom and having your fiancé sign it could result in its invalidation and could cost you more in legal fees than simply hiring an attorney to do it right the first time.

While many believe marriage is a sacred institution, it’s important to remember that legally speaking, marriage is an institution formalized by a legal contract, and a prenuptial agreement is simply an addendum to that contract. The odds that your fiancé will view marriage this way are about the same as Charlie Sheen becoming a spokesman for the Betty Ford Clinic. However, setting aside some of the emotional aspects and looking at a prenup from an objective standpoint may help to open the lines of communication. Good luck!

oe Schodowski is a contributing author to this blog and has been admitted to practice law in the state of Washington.  He limits his practice to the areas of family law and criminal and civil traffic matters. The Law Offices of Joseph Schodowski, PLLC works in association with the Law Offices of Richard D. Seward, PC.