Tax Return That Surprised An Accountant

Let’s do something a little different this time.

I want you to see numbers the way a tax CPA does.

Let’s say that you are semi-retired and you bring me your following tax information:

                    W-2                                         24,000

                    Interest income                            600

                    Qualified dividend income      40,000

                    Long-term capital gains          10,000

                    IRA                                         24,000

Looks to me like you have income of $98,600.

How about deductions?

                    Real estate taxes                    10,000

                    Mortgage interest                      5,000

                    Donations                                26,000

I am seeing $41,000, not including your exemptions.

You did some quick calculations and figure that your federal taxes will be about $6,500. You want to do some tax planning anyway, so you set up an appointment. What can you do to reduce your tax? 

What do I see here?

I’ll give you a hint.

Long-term capital gains have a neat tax trick: the capital gains tax rate is 0% as long as your ordinary income tax rate is 15% or lower. This does not mean that you cannot have a tax, mind you. To the extent that you have taxable income in excess of those capital gains, you will have tax.

Let’s walk though this word salad.

Income $98,600 – deductions $41,000 – exemptions $8,100 = $49,500 taxable income.

You have capital gains of $10,000.

Question: will you have to pay tax on the difference – the $39,500?

Answer: qualified dividends also have a neat tax trick: for this purpose, they are taxed similarly to long-term capital gains.

NOTE: Think of qualified dividends as dividends from a U.S. company or a foreign company that trades on an U.S. exchange and you are on the right path.

You have capital gains and qualified dividends totaling $50,000.

Your taxable income is $49,500.

All of your taxable income is qualified dividends and capital gains, and you never left the 15% tax bracket.

What is your tax?

Zero.

How is that for tax planning, huh?

From a tax perspective, you hit a home run.

Let me change two of the numbers so we can better understand this qualified dividend/capital gain/taxable income/15% tax bracket thing.

                    W-2                                         36,000

                    Qualified dividends                 28,000

As you probably can guess, I left your taxable income untouched at $49,500, but I changed its composition.

You now have capital gains and qualified dividends of $38,000. Your taxable income is $49,500, meaning that you have “other” income in there. You are going to have to pay tax on that “other” income, as it does not have that qualified dividend/capital gain trick.

The tax will be $1,153.

You still did great. It is just that no tax beats some tax any day of the week.

It is something to consider when you think about retirement planning. We are used to thinking about 401(k)s, deductible IRAs, Roth IRAs, social security and so on, but let’s not leave out qualified dividends and capital gains. Granted, capital gains are unpredictable and not a good fit for reliable income, but dividend-paying stocks might work for you. When was the last time Proctor & Gamble missed a dividend payment, for example?

OK, I admit: if you leave the 15% tax bracket the above technique fizzles. That however would take approximately $76,000 taxable income for marrieds filing jointly. Congrats if that is you.

BTW I saw scenario one during tax season (I tweaked the numbers somewhat for discussion, of course). The accountant was perplexed and asked me to look at the return with him. The zero tax threw him.

Now he knows the dividend/capital gain thing, and so do you.

Facebook and Tax Planning With Trusts

You may know that Facebook is going public. This means an IPO, hotly anticipated and all but guaranteed to make the founders incredibly wealthy. You may have read about Eduardo Saverin, who has renounced his U.S. citizenship and intends to become a resident of Singapore. There is discussion about tax motivations for his expatriation. Could be. Singapore has more lenient tax treatment of capital gains than the U.S. To be fair, Saverin only became a U.S. citizen in 1998, so his ties may not be as strong as that of a natural-born citizen.

I intend to blog about on Saverin and his tax implications, but for today I wanted to talk about founder Mark Zuckerberg. Facebook’s prospectus lists eight “annuity trusts” set up by insiders, including Zuckerberg, Dustin Moskovitz, Sean Parker, Sheryl Sandberg, Reid Hoffman and Michelle Yee. These trusts hold approximately 22 million shares, which could be worth around $700 million at IPO.

You can afford a lot of tax planning with $700 million. The insiders have not spoken about this matter, nor should one expect them to. I have been reading tax commentary speculating that these trusts are grantor retained annuity trusts, also called GRATs. I agree. Let’s talk about it.

A GRAT is used to shift wealth from one taxpayer to another. In my experience, it has been from one generation to another.

The GRAT has to pay-out a stream of payments to its settlor (the grantor). The payment stream is called the annuity. There are two more considerations: how much to pay out and for how long. The shortest GRAT I have seen is two years. At the end of the term, the remaining money in the GRAT goes to the beneficiary.

All right, so the settlor gifts the remaining money in the GRAT. There may be gift tax, depending on the amount of money gifted. There is a version of a GRAT where “nothing” passes at the end, so the gift is zero. Why the quotation mark around “nothing?” Ah, there is where tax planners make their money.

You see, “nothing” does not actually mean nothing. In this area of the tax world, “nothing” can be something, and quite a lot of something. The “nothing” is a mathematical calculation and not an actual dollar amount. The key to the calculation is the interest rate. 

Say that I put $1 million into a GRAT. I want payments over ten years. I have to use an interest rate, because payments are being made over time. The IRS publishes minimum interest rates for this purpose. As long as I use their interest rate (or higher), there is no problem. Say that their interest rate is 5% and I am looking to zero-out the GRAT. In year one I would take out $150,000 ($1,000,000 divided by 10 years plus $1,000,000 times 5%). What if the money was invested in something that pays – or appreciates – at more than 5%? That is the key that starts the GRAT engine. Let’s say that the investment actually pays 10%. The GRAT is paying out 5%, or only ½ of its actual earnings. The trust is accumulating, isn’t it? Let it accumulate for 10 years and I can transfer a tidy sum at the end. However, for IRS purposes I am deemed to have transferred zero, zippo, nada, because the IRS allows me to assume that the investment is paying only 5%. According to IRS math, there is no money left over to accumulate. Ten years of zero is zero. There is no gift. There is no gift tax. The IRS cannot be wrong.

Let’s go back to the Facebook insiders. What interest rate do they have to use? Last time I checked it was around 1.6%. Do you think there is an accumulation possibility here with Facebook stock? Yes, I think so.

I am not making this up. I wish I could have been one of the advisors.

Actually, I wish I could have been one of the insiders.

The Use Of A Dynasty Trust

President Obama’s 2012 budget included a provision to limit dynasty trusts to approximately 90 years.

What is a dynasty trust? This creature exists because of estate taxes and generation-skipping taxes. Say that you and your spouse are worth $25 million. You have a daughter, and you come to me because you want to plan your estate. You think you can live on $10 million. To make this easy, say that all your wealth is in publicly-traded stocks. We call the broker and transfer $15 million in stocks to her. At the end of the year you will have a gift tax return. The gift tax exemption this year is $5 million per person, which means that you and your spouse combine for a total exemption of $10 million. You will have a gift tax, as the net gift subject to gift tax is $5,000,000 ($15,000,000 - $10,000,000).

When your daughter passes away, that $15 million will be included in her estate again and she will pay estate tax.

Ah, you say. You now understand what the estate tax is doing. What if you gift to your grandson, that way the $15 million will escape estate tax at your daughter’s death. You “skipped” a generation. Enter the generation-skipping tax, whose purpose is – you guessed it – to tax that transfer to your grandson. No skipping allowed.

Let’s tweak this a bit. Say that you gift $10 million to your daughter and $5 million to your grandson. Now you have an interesting case study. You see, the generation-skipping tax has an exemption. That exemption amount is currently $5 million per person, or $10 million for you and your spouse. You can transfer up to $10 million to your grandson, have it escape the estate tax (at the daughter’s death) and also escape the generation-skipping tax.

Let’s tweak this again. Say that your grandson receives the gift amount (at some point in the future – it doesn’t matter when). When he passes away, the $5 million is in his estate and there will be estate tax. Is there some way to skip his estate tax?

Enter the dynasty trust. You put the $5 million in a dynasty trust. Your grandson is a beneficiary and receives distributions. He does not have enough retained power to dragnet the trust into his estate upon death. The trust escapes his estate and passes on to the next tier of beneficiaries, which are presumably your great-grandchildren.

This trust is designed to never be snared by the estate or generation-skipping tax ever again. Wow!

Enter the rule against perpetuities. There is a common law principle that allows a trust to carry-on for only so long without vesting, which is about 90 years. I studied trust law at the University of Missouri Law School and, frankly, its application in practice confused me both then and now. However, there are 23 states (including Kentucky and Ohio) that have “waived” the rule against perpetuities and allow dynasty trusts. So we can employ a dynasty in Ohio, for example, and sidestep the rule against perpetuities.

Enter Obama’s proposal to limit these trusts to 90 years or so. It would do so, not by limiting the trust, but by limiting the generation-skipping exclusion. As the trust is a creature of tax policy, the effect would be the same. Do not overly worry about this happening soon, however, as Obama’s budget was voted down without dissent in the Senate. However, the proposal does provide insight into future sources of revenue that Congress may revisit.

Because of the long-lived nature of these trusts, you are (almost by default) looking at a corporate trustee. If you haven’t reviewed trustee rates recently, you may be surprised at how expensive this can be. This in turn means that you want a certain minimum amount of money to seed the trust in order to justify the fees. This tax planning is not for the middle class. You also have to be careful in how much power is reserved to the beneficiaries, as too much may result in the trust being included in a beneficiary’s estate. You have to reserve a certain minimum, of course, such as the ability to dismiss and replace a trustee that has become unproductive or overly expensive.

I see these trusts primarily as a means of asset protection against creditor claims and divorces. It may also be a means to keep family businesses under family control, such as by placing the business(es) in a family limited partnership and then placing the partnership units into the dynasty. This would also allow one to utilize gift tax discounts, further magnifying the leverage of the dynasty trust. However, I can also see that society has an interest in not bankrolling a class of nonproductive trust-fund-uberwealthies. Perhaps the President has it right on this one: maybe 90 years is enough time for this tax vehicle.