On September 13, 2021, the United States House Ways and Means Committee (the “Committee”) released proposed changes to the Federal Tax Code, including significant changes affecting trusts, estates, gifts and rates. tax, among other proposals. The most important of these changes are described below. Individuals are likely to need prompt legal assistance to make the appropriate adjustments in response to these expected changes.
Exemption from inheritance and donation
Currently, individuals benefit from a federal gift and inheritance tax exemption of $ 11,700,000 (or $ 23,400,000 for married couples), less taxable gifts made during their lifetime. life. The amount of the generational transfer tax exemption (âTPSâ) is equal to the gift and inheritance tax exemption. These exemptions are increased each year according to inflation.
The current law is expected to expire at the end of 2025, when the inheritance, gift and GST exemptions will decrease to about half of their current amounts as of 2026. The Committee’s proposal accelerates this sunset and reduces the exemptions to about $ 6,020,000 per person (or about $ 12,040,000 for married couples) starting in 2022. For people who do not use all of the $ 11,700,000 exemptions currently available in 2021, the decrease of the proposed $ 5,700,000 of these exemptions could be lost forever.
Grantor’s Trust Transactions
Some of the most significant changes to the Committee’s proposal relate to trusts that are considered âceding trustsâ for income tax purposes. Grantor trusts are trusts that are not included in the estate of the creator (or grantor) for estate tax purposes, but treat the grantor as the owner for income tax purposes. Under the proposed changes, assets transferred to a grantor’s trust established or funded after the new law comes into force would be subject to possible (1) inclusion in the grantor’s estate for inheritance tax purposes. and (2) recognition events for income tax purposes. In addition, a distribution of a settlor’s trust to persons other than the settlor or his or her spouse would be considered a taxable gift by the settlor during the settlor’s lifetime.
Existing transferor trusts would not be subject to these rules. However, to the extent that there is a contribution made to an existing transferor trust after the date of enactment of the proposed legislation, the portion of the trust’s assets attributable to the contribution would be subject to the new transferor trust rules. . Such contributions would likely include a gift or sale, and possibly other transactions. These rules would dramatically reduce, if not entirely eliminate, the use of trusts such as Spousal Life Access Trusts (commonly referred to as âSLATsâ).
The proposed rules would also significantly change the taxation of income of grantor-retained annuity trusts (âLibresâ). Concretely, under the legislation in force, when an annuity is paid to the settlor from the FREE, there are no tax consequences. However, under the proposed changes, there would be a recognition event for income tax purposes whenever a FREE annuity payment is made using a valued asset. In other words, whenever the FREE pays a required annuity to the settlor, the settlor would be liable for income tax on the distribution as if the distribution were a sale (unless the distribution was carried out in cash).
Valuation rules for transfers of non-commercial assets
The Committee also proposed to eliminate the lack of market value and fractional interest valuation discounts for interests in entities held at death or offered during the life of a transferor where such entities have non-trading assets or liabilities. , including cash, stocks, personal property and other similar assets. Real estate would also be treated as a passive asset, unless the transferor âmaterially participatesâ in the management of the business.
Other tax changes
The capital gains rate would rise to 25% (as of September 13, 2021).
The top marginal tax rate would be 39.6% for people earning over $ 400,000 and married couples earning over $ 450,000.
A 3% surtax would be imposed on individuals with adjusted gross income greater than $ 5,000,000 and estates and trusts with adjusted gross income greater than $ 100,000.
People with retirement accounts totaling more than $ 10,000,000 and earning more than $ 400,000 (or $ 450,000 for married couples) would (i) be prohibited from making additional contributions to their retirement accounts. retirement and (ii) required to make annual account withdrawals of 50% of the value greater than $ 10,000,000 and 100% of the value greater than $ 20,000,000.
What actions should individuals take?
Based on the proposed changes, individuals should consult with their trust and estate lawyer to better understand what steps should be taken now and how the committee’s proposal may affect their current estate planning. Many of the proposed changes will take effect once the Committee’s proposal is promulgated. For example, many of the changes being considered would affect people who plan to use their existing exemptions in 2021. Rather than waiting to see what tax code changes are ultimately passed into law, a quick consultation is advised at this point.