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President Biden’s promise to raise taxes only on the richest Americans cannot possibly be upheld if he is successful with the centerpiece of his tax plan. That, of course, is to repeal the Tax Cuts and Jobs Act (TCJA) passed during the Trump administration. The primary effect of the TCJA was to reduce taxes for Americans in the bottom 80 percent of the income distribution. Put another way, the top 20 percent of earners were the only ones who did not get a tax cut under the TCJA. Americans earning between about $40,000 and $80,000 per year benefited most from the TCJA, and millions of others at the lowest income levels were taken off the tax rolls altogether.
President Biden, along with House and Senate Democrats, have pledged to reverse all that.
For example, the president vows to eliminate the so-called “stepped-up basis” rule for inherited property. The president refers to this as a “loophole” that allows the rich to game the system. It is no loophole. In fact, it is a specific rule of law under Internal Revenue Code §1014. This law was not a part of the TCJA. It has been on the books since 1954 but is only now under attack by Democrats looking for ways to take more of your money.
Here’s how it works.
Suppose your parents own a home worth $200,000. They purchased the home decades ago for, say, $50,000. If they gift the home to you prior to their passing, your basis in the home is the same as theirs: $50,000. That means if you sell the home for its current value of $200,000, you must pay capital gains tax on the profit of $150,000 — the difference between basis and sale price.
By contrast, if you inherit the home after their death, your basis is equal to the fair market value of the property as of the date of death — in this example, $200,000. See: Code §1014(a)(1). Now if you sell the property for $200,000, there is no capital-gains tax because there’s no gain (sale price minus basis equals gain).
This is what we refer to as “stepped-up basis.” And the rule absolutely does not apply only to “rich people.” The operation of Code §1014 is not controlled by one’s annual income, the value of the inherited asset, or the total value of one’s estate. It applies across the board. Every American taxpayer enjoys the benefit of stepped-up basis on inherited property.
If Code §1014 were repealed in its entirety, all inherited property would be taxed on sale at the capital-gains rate. In general, the gain would be calculated on the difference between the sale price and the price at which the deceased person paid for it (plus any capital improvements that add to the cost basis). To go back to your parents’ home, if they paid $50,000 for it, and you sold it for $200,000 after their death, that $150,000 would be subject to tax. And that example might not be as extreme as it seems. It’s not unlikely that your parents would have held on to their last home for many years.
One consolation, however, is that the White House appears to be contemplating exempting the first $1 million in unrealized gains from these new rules, a limit which, if left unchanged, will likely be eroded by inflation over the years, if not outright reduced or eliminated. Moreover, you can expect the tax bill to be calculated at a much higher rate than those currently in effect.
According to Gallup, as of 2017, 82 percent of Americans over age 65 own their own homes. That is the highest rate of homeownership for any age group. When these people die, their property passes to their heirs. If President Biden and the Democrats have their way, the coming years will see an increased transfer of wealth — not from parents to children (as it should be) — but from parents to the federal government.
For now, there may be a way for those affected by these proposed changes to reduce the impact of the law, by (to oversimplify) selling a primary residence eligible for capital-gains-tax relief on its sale, but then how many elderly people are going to want to go through the disruption of selling their homes at a late stage in their lives?
And of course, to the extent that there are ways to reduce the impact of the step-up rules, we cannot be sure that they will endure, considering how desperate the federal government will be for money in light of the multi-trillion-dollar spending spree it’s been on for the past year.
Meanwhile, keep an eye on the estate tax, too. In 2021, estates valued under $11.7 million are not subject to the estate tax. But if President Biden has his way, that threshold will be cut to $3.5 million, and the rate of tax increased to 45 percent (from 40 percent). Considering that as recently as 2001 the threshold was just $675,000, it’s not difficult to foresee this tax hitting middle-income Americans. So much for tax hikes on “only the rich.”
Author’s Note: Any tax strategy depends upon the totality of your own circumstances. Before engaging in any tax strategy, you should first consult competent advisors to whom you make full disclosure of all the relevant facts and circumstances of your case.