Sunset Of Tax Cuts

CCH Tax Briefing

sunset of 2001 & 2003
Tax cuts and benefits
May 4, 2012 Special Report

Highlights
Uncertainty Grows Over Fate Of
Sunset of EGTRRA’s Reduced
Bush-Era Tax Cuts

T
Individual Income Tax Rates he year 2012 began with the fate What’s Involved: The “Bush-era” tax cuts is
Lower AMT Exemption of the Bush-era tax cuts uncertain, the collective term for the tax measures en-
and no resolution appears in sight. acted in the Economic Growth and Tax Re-
Amounts
Democrats and Republicans remain far lief Reconciliation Act of 2001 (EGTRRA)
Sunset of JGTRRA’s Reduced apart on whether to extend all or some of and the Jobs and Growth Tax Relief Recon-
the Bush-era tax cuts and other tax incen- ciliation Act of 2003 (JGTRRA). In addition
Capital Gains/Dividends Tax
tives scheduled to sunset after 2012. Two to the individual, capital gains, dividends
Rates years ago, President Obama and the GOP and estate tax rates that remain the focus
Expiration of Marriage agreed to extend the Bush-era tax cuts along of the attention, EGTRRA made over 30
with the so-called tax extenders in the Tax other major changes to the Tax Code, which
Penalty Relief Relief, Unemployment Insurance Reau- are now about to sunset. The 2010 Tax Re-
Return of Pease Limitation/ thorization and Job Creation Act of 2010 lief Act extended all these measures through
(2010 Tax Relief Act). Today, prospects 2012. EGTRRA also made many changes
Personal Exemption Phaseout for any agreement between Democrats and to retirement and pension rules in the Tax
$500 Child Tax Credit Republicans before the November elec- Code. These changes were made permanent
tions are murky at best. The likelihood of a by the Pension Protection Act of 2006 (PPA).
Expiration of American lame-duck Congress deciding the fate of the
Opportunity Tax Credit Bush-era tax cuts increases daily. Also grow- IMPACT. Rather than just waiting for
ing daily is the uncertainty many taxpayers Congress to act, taxpayers should con-
$1 Million Estate Tax Exclusion face in tax planning for 2013 and beyond. sider implementing certain protective
With 55 Percent Top Tax Rate tax strategies now. To maximize benefits,
IMPACT. The Congressional Budget Of- advance planning that considers a num-
fice (CBO) has estimated that extend- ber of “what ifs” should be undertaken
ing all of the “Bush-era” tax cuts would soon. With budget pressures looming,
cost $2.84 trillion over 10 years. Un- the likelihood that all EGTRRA and JG-
Inside like 2010, Congress is now confronted TRRA expiring provisions will be rolled
with mandatory reductions in federal over for one or two more years into 2013
Sunsets Facing Individuals.................... 2 spending under the Budget Control Act and 2014 is highly unlikely. Therefore, a
Capital Gains/Dividends Sunsets........ 4 of 2011 (2011 Budget Control Act), strategy that accelerates into 2012 what-
which the CBO has estimated will to- ever tax benefits are now available de-
Alternative Minimum Tax..................... 6 tal approximately $109 billion per year serves careful consideration.
starting in January 2013. Moreover, the
Education Sunsets.................................. 6 2011 Budget Control Act provides for Tax Reform Solution? Since the two-year
Business-Specific Sunsets..................... 8 enforcing the spending limits through extension of EGTRRA and JGTRRA by
sequestration. This added demand on the 2010 Tax Relief Act, several proposals
Federal Estate, Gift and GST Taxes..... 8 resources, together with a still-fragile for comprehensive tax reform have been
economy and a ticking clock on entitle- unveiled in Washington that may hold
Tax-Exempt Bonds............................... 10
ment reform, is creating what has been promise for a more permanent solution. A
termed a “fiscal cliff” by some, and “tax- presidential panel developed the so-called
mageddon or “taxopocalypse” by oth- Simpson-Bowles plan. The GOP has put
ers. By any name, they present difficult forward several proposals for comprehensive
choices for Congress. tax reform, also calling for reduced individ-
Click to continued on next page

2012 Legislation Update
2

ual income tax rates, while both parties have to the 10 percent rate bracket. Addition- after December 31, 2012. However, the
struggled to strike a “grand bargain.” After ally, the two percent employee-side payroll 33 and 35 percent tax rates would sunset
the November elections, a broader, more tax cut, as enacted under the Middle Class as scheduled after 2012, and would be re-
permanent solution may be found. Tax Relief and Job Creation Act of 2012, placed by 36 and 39.6 percent rates start-
is scheduled to expire after 2012, affecting ing at $200,000 for single individuals and
COMMENT. IRS Commissioner Douglas all workers in 2013 up to $113,700 of $250,000 for joint filers. Additionally, Pres-
Shulman and other officials have warned their earned income (the projected Social ident Obama has proposed to widen the tax
that late legislation will likely delay the start Security wage base for 2013). bracket for the 28 percent rate. The House
of the 2013 filing season. The IRS delayed GOP has proposed to consolidate the six
the start of the 2011 filing season to Feb- IMPACT. By far, the costliest provisions current individual income tax brackets into
ruary 14, 2011 after passage of the 2010 to extend are the reduced individual tax two brackets of 10 and 25 percent.
Tax Relief Act. The delay affected taxpay- rates. According to the Congressional
ers claiming itemized deductions on Form Budget Office (CBO), they account for IMPACT. Individuals who anticipate the
1040, Schedule A; the higher education over half of the total revenue loss. And possibility of being subject to a higher in-
tuition deduction; and other tax benefits. according to the Congressional Research come tax rate after 2012 should explore
Service (CRS), the extension of the re- shifting the timing of income or deduct-
duced income tax rates in the 2010 Tax ible expenses. Deferring deductions into
SUNSETS FACING Relief Act for two years alone reduced fed- 2013 may help to offset income that
INDIVIDUALS eral revenues by $363.55 billion. would be subject to a higher rate of tax.
Accelerating income into 2012 likewise
The impact of the looming expiration of the might lower overall tax liability. Accel-
Bush-era tax cuts on individuals has received “The likelihood of a lame- eration techniques include billing earlier,
the most attention because its effect is so selling appreciated property, avoiding in-
great. If the Bush-era tax cuts expire as sched- duck Congress deciding stallment sales that defer gain, and accel-
uled, the individual income tax rates will the fate of the Bush-era erating bonuses.
increase across-the-board. See also Alterna-
tive Minimum Tax, Capital Gains/Dividends tax cuts increases daily.” COMMENT. The fate of the individual
Sunsets, Education Sunsets, and Federal Estate, tax cuts is further complicated over dis-
Gift and GST Taxes in this Tax Briefing for ad- putes about annual inflation adjust-
ditional provisions affecting individuals. Although the individual tax rates are sched- ments. The Consumer Price Index for all
uled to revert to the levels in place prior to Urban Consumers (CPI-U) is used to
EGTRRA, the bracket amounts to which calculate annual inflation adjustments to
Income Tax Rates for Individuals each rate is applied will continue to reflect personal income tax brackets. Some law-
Under current law, the reduced individual annual inflation adjustments. However, the makers have called for using the Chained
income tax rates created by EGTRRA, ac- entire 10 percent rate bracket will be elimi- Consumer Price Index for all Urban
celerated by JGTRRA, and extended by the nated and become the lower portion of the Consumers (C-CPI-U) instead of the
2010 Tax Relief Act are scheduled to sunset 15 percent bracket. CPI-U. According to the Congressional
after 2012. Unless extended, the individual Research Service, the C-CPI-U has in-
marginal tax rates, currently at 10, 15, 25, 28, IMPACT. The majority of U.S. businesses creased more slowly than the CPI-U and
33, and 35 percent, are scheduled to revert to are passthrough entities, such as partner- applying the C-CPI-U to individual tax
15, 28, 31, 36, and 39.6 percent, effective for ships and S corporations. If the provisions
tax years beginning after December 31, 2012. expire, passthroughs will be hit hard, since
profits are passed through to their indi- Cost Of Extending
IMPACT. Unless Congress acts, all taxpay- vidual owners. A “C” corporation, with Selected Tax Cuts
ers – and not just higher income individu- its current corporate level tax of 35 percent
als – will effectively experience a tax hike (which may drop if recent corporate tax re- Bush-era tax cuts: $2.84 trillion*
after 2012. The top rate will jump from form proposals are adopted), may become
AMT patch $804 billion*
the current 35 percent to 39.6 percent. more attractive if individual tax rates rise.
The lowest 10 percent rate will be elimi- Tax extenders: $839 billion*
nated. Even those taxpayers who may re- President Obama, in his Blueprint for Payroll tax cut: $117 billion**
main in the 15 percent bracket will pay America and other proposals, has called
*Through 2022 **Through 2012
more by not realizing the advantage of for making permanent the 10, 15, 25, and
having their first dollars of income subject 28 percent rates for tax years beginning Source: Congressional Budget Office

CCH Tax Briefing ©2012 CCH. All Rights Reserved.

May 4, 2012
3

provisions would slow growth in the fed- creased 15 percent rate bracket and stan- gross income exceeds the applicable thresh-
eral budget deficit. dard deduction for married couples. old. The 2010 Tax Relief Act repealed the
phaseout for 2010 and 2011 only.
Marriage Penalty Relief Pease Limitation IMPACT. The applicable thresholds for
Before EGTRRA, some married couples ex- The “Pease” limitation on itemized deduc- the personal exemption phaseout, had it
perienced the so-called marriage penalty. EG- tions, which was eliminated by EGTRRA remained in effect in 2012, would have
TRRA gradually increased the basic standard and extended by the 2010 Tax Relief Act, been $173,650 for single taxpayers and
deduction for a married couple filing a joint is scheduled to be revived after 2012. The $260,500 for married couples filing a
return to twice the basic standard deduction Pease limitation, named after the member joint return.
for an unmarried individual filing a single re- of Congress who sponsored the original
turn. The 2011 Tax Relief Act extended EG- provision, reduces the total amount of a
TRRA’s marriage penalty relief through 2012. higher-income taxpayer’s otherwise allow-
Earned Income Credit
able itemized deductions by three percent EGTRRA gradually increased the beginning
IMPACT. If marriage penalty relief is not of the amount by which the taxpayer’s ad- and end points of the earned income credit
extended, the deduction for married cou- justed gross income exceeds an applicable (EIC) phaseout for married couples filing a
ples will be 167 percent of the deduction threshold. However, the amount of itemized joint return over and above annual inflation
for single individuals rather than 200 deductions would not be reduced by more adjustments. EGTRRA also simplified the
percent. Based on 2012 amounts, the than 80 percent. Certain items, such as med- definition of earned income, eliminated the
standard deduction for joint filers is esti- ical expenses, investment interest, and casu- rule that reduced a taxpayer’s EIC by the
mated to drop from $11,900 to $9,950 alty, theft or wagering losses, are excluded. amount of alternative minimum tax (AMT)
(with rounding). liability, reformed the relationship test,
COMMENT. The applicable threshold modified the tie-breaking rule, and gave
EGTRRA also gradually increased the size for the Pease limitation, if it was in effect the IRS additional authority with respect to
of the 15 percent income tax bracket for a in 2012, would have been $173,650. mathematical errors. The Working Families
married couple filing a joint return to twice Tax Relief Act of 2004 (WFTRA) and the
the size of the corresponding rate bracket American Recovery and Reinvestment Act
for an unmarried individual filing a single
Personal Exemption Phaseout of 2009 (2009 Recovery Act) further en-
return. The 2010 Tax Relief Act extended Higher income taxpayers may see their de- hanced the EIC. The 2010 Tax Relief Act
this treatment through 2012. duction for personal exemptions reduced extended the enhanced EIC through 2012.
or eliminated under the personal exemp-
IMPACT. Under current law, the upper tion phaseout rules, should the phaseout IMPACT. If the enhancements to the
limit of the 15 percent bracket for joint be revived after 2012. The elimination of EIC sunset after 2012, the EIC phase-
filers is equal to 200 percent of the upper the phaseout was first implemented by EG- out would be determined by reference
limit for single individuals; after 2012 TRRA for certain years and extended by the to modified adjusted gross income rather
the upper limit of the 15 percent bracket 2010 Tax Relief Act through 2012. Under than adjusted gross income. One reason
for joint filers is scheduled to be equal to the phaseout, the total amount of exemp- EGTRRA made the switch to adjusted
167 percent of the upper limit for single tions that may be claimed by a taxpayer is gross income was to reduce the number of
individuals. Based on 2012 amounts, reduced by two percent for each $2,500, calculations needed to compute the EIC.
the 15 percent bracket for joint filers is or portion thereof (two percent for each
estimated to end (and the pre-EGTRRA $1,250 for married couples filing separate COMMENT. Under EGTRRA, as ex-
28 percent bracket is estimated to begin) returns) by which the taxpayer’s adjusted tended by the 2010 Tax Relief Act, the
at $59,000 rather than at $70,700.
Selected Changes If Bush-Era Tax Cuts
COMMENT. The fate of marriage penal-
ty relief remains uncertain since it likely Expire After 2012
will be considered with more politically Top individual income tax rate: 39.6 percent
controversial parts of the sunsetting pro-
visions. As a result, married couples may Child tax credit: $500
want to be ready to increase their with- Maximum contribution Coverdell ESA: $500
holding or make larger estimated tax Top estate tax rate: 55 percent
payments starting in 2013 to avoid any
adverse impact from the sunset of the in- Top gift tax rate: 55 percent

CCH Tax Briefing

4

EIC is not reduced by AMT liability ing or making permanent the $1,000 for work. A child, for purposes of this tax
through 2012. child tax credit after 2012. benefit, must be under 13 years of age at the
close of the tax year. A qualifying dependent
COMMENT. The maximum amount of who is disabled, however, may be of any age
Child Tax Credit credit a taxpayer can receive is equal to if he or she is a dependent, or spouse, who
The $1,000 child tax credit under current the number of qualifying children times lives with the taxpayer for more than half the
law is scheduled to revert after 2012 to $500 $1,000. If the value of the taxpayer’s year. EGTRRA and subsequent legislation
per qualifying child (dependents under age child tax credit is greater than his/her increased the maximum amount of eligible
17 at the close of the year). In addition to actual tax liability, the taxpayer may employment-related expenses for purposes
increasing the amount of the credit, EG- be eligible to receive the difference as a of the dependent care credit and made other
TRRA also modified the refundable compo- refund. In April 2012, the House Ways enhancements. The 2010 Tax Relief Act ex-
nent, provided that the refundable portion and Means Committee approved a bill tended these enhancements through 2012.
of the child tax credit does not constitute that would require taxpayers claiming
income, provided that the child tax credit the additional child tax credit to provide COMMENT. Expenses qualifying for the
is allowable against regular income tax and a Social Security number. child and dependent care credit must be
allowable against AMT, repealed the AMT reduced by the amount of any dependent
offset against the additional child tax credit care benefits provided by the taxpayer’s
for families with three or more children, employer that are excluded from the tax-
and eliminated the supplemental child tax “Passthroughs will be hit payer’s gross income. Total expenses quali-
credit. These enhancements to the child tax hard, since profits are fying for the dependent credit are capped
credit were extended by the 2010 Tax Relief at $3,000 in cases of one qualifying in-
Act through 2012 only. passed through to their dividual or at $6,000 in cases of two or
individual owners.” more qualifying individuals subject to
IMPACT. Taxpayers with qualifying de- income thresholds. Absent extension, these
pendent children should consider adjust- monetary amounts are scheduled to be
ing withheld income tax (or estimated reduced to $2,400 in cases of one qualify-
tax payments) to account for the reduc- Adoption Credit/Adoption ing individual or $4,800 in cases of two
tion from $1,000 to $500. Current di- Assistance Programs or more qualifying individuals subject to
vorce settlements in which child credits income thresholds. The current 35 per-
and other EGTRRA-sensitive benefits are EGTRRA increased the dollar limitation for cent credit rate is scheduled to fall to 30
allocated may need to be recalibrated to the adoption credit and the income exclu- percent after 2012.
accommodate the lower amounts. sion for employer-paid or reimbursed adop-
tion expenses to $10,000 (indexed for infla-
IMPACT. The child tax credit is reduced by tion) (both for non-special needs adoptions CAPITAL GAINS/
$50 for each $1,000, or fraction thereof, and special needs adoptions). The 2010 Tax DIVIDENDS SUNSETS
of modified adjusted gross income above Relief Act extended the enhancements to the
threshold amounts. Those thresholds are adoption credit under EGTRRA through Under current law, reduced tax rates on qual-
$110,000 for joint filers, $55,000 for 2012. In addition, the Patient Protection ified capital gains and dividends are sched-
married individuals filing separately, and and Affordable Care Act made the adoption uled to sunset after 2012. The pre-JGTRRA
$75,000 for other taxpayers. If the credit credit refundable for 2010 and 2011. treatment (as extended by the 2010 Tax Re-
is reduced to $500 after 2012, the small- lief Act) of qualified capital gains and divi-
er credit will phase out more quickly. COMMENT. The adoption credit phases dends would apply thereafter.
out for taxpayers above specified infla-
The 2009 Recovery Act lowered the refund- tion-adjusted levels of modified adjusted
ability threshold for the child tax credit gross income. For 2012, the phase-out
Capital Gains
from $8,500 to $3,000 (not adjusted for level starts at $189,710. The 2010 Tax Relief Act extended the re-
inflation) for 2009 and 2010. The $3,000 duced maximum tax rate of 15 percent on
threshold (not adjusted for inflation) was adjusted net capital gains through 2012.
extended by the 2010 Tax Relief Act, again,
Child and Dependent Care Credit The 15 percent rate had originally been en-
only through 2012. The child and dependent care credit is in- acted in JGTRRA and was extended by the
tended to help individuals pay child and de- Tax Increase Prevention and Reconciliation
COMMENT. President Obama and the pendent care expenses so the taxpayer (and Act of 2005 (TIPRA). Additionally, taxpay-
GOP have expressed support for extend- spouse if filing jointly) can work or look ers in the 10 and 15 percent tax brackets are


May 4, 2012
5

eligible for a zero percent tax rate on quali- IMPACT. For higher-income taxpayers, cent after 2012), despite the highest rate
fied capital gains through 2012. the 15 percent rate under the 2010 Tax for net capital gains rising to 20 percent.
Relief Act applies if the taxpayer has held Qualified corporations may want to ex-
IMPACT. Absent extension, the maximum the asset for more than one year, but only if plore declaring a special dividend to share-
tax rate on net capital gain of noncorpo- the taxpayer sells the asset by no later than holders before January 1, 2013. President
rate taxpayers will revert to 20 percent December 31, 2012. The 18 percent rate Obama’s proposed fiscal year (FY) 2013
(10 percent for taxpayers in the 15 per- for qualified five-year property applies if federal budget recommended increasing
cent bracket) after 2012. Thus, the accel- the taxpayer acquired the asset in 2001 or the dividends rate to the ordinary income
eration of capital gains into 2012 while later, has held the asset for more than five tax rate for higher-income individuals.
the tax rates are lower is one strategy for years, and sells it after December 31, 2012.
taxpayers to consider. Accelerating the sale The 20 percent rate applies if the taxpayer COMMENT. Generally, dividends re-
of capital assets is the general means by acquired the asset in 2001 or later, sells ceived from a domestic corporation or a
which taxpayers effectuate this strategy. As the asset after December 31, 2012 and qualified foreign corporation, on which
long as the sale is bona fide, and the pro- has held the asset for more than one but the underlying stock is held for at least 61
ceeds are received in 2012, capital gains not more than five years; or has held the days within a specified 121-day period,
can be accelerated. The “wash sale” rules asset for more than five years but acquired are qualified dividends for purposes of the
that apply to claiming losses do not apply the asset by exercising an option, right or reduced tax rate. Certain dividends do
to gains. Accordingly, capital gains can be obligation to acquire the property and the not qualify for the reduced tax rates. They
recognized at any time and, immediately taxpayer has held such since before 2001. include (not an exhaustive list) dividends
thereafter, the identical asset can be repur- paid by credit unions, mutual insurance
chased, with a new tax basis established in companies, and farmers’ cooperatives.
the amount of the purchase price.
Dividends
The 2010 Tax Relief Act extended the re-
COMMENT. Under current law, the 28 duced net capital gains tax rates for qualified
Other Dividend-Related
and 25 percent tax rates for collectibles dividends through 2012. These rates had Provisions
and recaptured Code Sec. 1250 gain, re- originally been enacted by JGTRRA and
spectively, are scheduled to continue un- were extended by TIPRA. The maximum The following business-entity related tax
changed after 2012. Also unchanged are tax rate for qualified dividends received by breaks associated with dividends are also
the ordinary income rates paid on short- an individual is 15 percent for tax years scheduled to sunset after 2012:
term capital gains; only long-term capital beginning before January 1, 2013. A zero
gains realized on assets held for more than percent rate applies to qualified dividends Dividends received from a regulated in-
one year can benefit from the reduced net received by an individual in the 10 or 15 vestment company (RIC), real estate in-
capital gain rate. percent income tax rate brackets. vestment trust (REIT) and other quali-
fied pass-through entities are treated as
Caution: Installment payments re- IMPACT. Absent extension, qualified div- qualified dividends for purposes of the
ceived after 2012 are subject to the tax idends will be taxed at the applicable or- reduced tax rates through 2012;
rates for the year of the payment, not the dinary income tax rates after 2012 (with Temporary repeal of the collapsible cor-
year of the sale. Thus, the capital gains the highest rate scheduled to be 39.6 per- poration rule would end after 2012;
portion of payments made in 2013 and
later may be taxed at the 20 percent rate.
Health Care Reform Impact Also Looms
Five-Year Holding Period for Capital As-
sets. Under the 2010 Tax Relief Act, there
Along with uncertainty over the fate of the Bush-era tax cuts is uncertainty
is no special capital gain treatment in 2011
over numerous individual and business tax provisions in the Patient Protec-
or 2012 for property held for more than
five years. After 2012, the JGTRRA-based tion and Affordable Care Act (PPACA) and the Health Care and Education
lower capital gain rates for five-year gain of Reconciliation Act of 2010 (HCERA). The Supreme Court is expected to
individuals, estates and trusts are scheduled hand down its decision in litigation challenging the constitutionality of the
to be revived. Long-term gain on the sale PPACA in June. Beginning in 2013, the PPACA imposes a 0.9 percent addi-
or exchange of property held for more than tional Medicare tax on higher income individuals and a 3.8 percent Medi-
five years generally will be taxed at 18 per- care contribution tax on unearned income. These additional taxes would be
cent (eight percent for taxpayers in the 15 a tax cost to be figured on top of the capital gains tax.
percent bracket).

CCH Tax Briefing

6

The accumulated earnings tax rate im- exemption amounts for the growing number — drop precipitously to $33,750 for un-
posed on corporations which had been of taxpayers subject to the AMT. The patches married individuals filing a single return,
reduced to 15 percent would rise to 39.6 also allowed nonrefundable personal credits and $45,000 for married couples filing a
percent after 2012; and to the full amount of the individual’s regular joint return and surviving spouses.
The tax on undistributed personal hold- tax and AMT. The most recent patch, in the
ing company (PHC) income would also 2010 Tax Relief Act, expired after 2011. IMPACT. The “patch” in the 2010 Tax
rise from its temporary 15 percent rate Relief Act provided that all nonrefund-
to the highest individual tax rate. IMPACT. For 2011, the exemption able personal credits are allowed to the
amounts were $48,450 for unmarried full extent of the taxpayer’s regular tax
ALTERNATIVE individuals filing a single return, and and AMT liability. If a similar patch
$74,450 for married couples filing a is not enacted for 2012, only certain
MINIMUM TAX joint return and surviving spouses. Un- nonrefundable credits would be allowed
EGTRRA and subsequent laws enacted so- der current law for 2012, the exemption against AMT liability; including (not
called AMT “patches.” The patches increased amounts — unless changed by Congress an exhaustive list) the child tax credit,
the American Opportunity Tax Credit
(AOTC) and the retirement savings con-
tribution credit (saver’s credit).
IMPACT OF SUNSETS – ILLUSTRATIONS
COMMENT. The House GOP has pro-
#1: Assume a couple, two children eligible for the child tax credit, filing a posed to eliminate the AMT. However,
joint return and taking the standard deduction, with $130K wage income, proposals to abolish the AMT have stalled
in Congress, largely due to the projected
$10,000 net capital gains, and $2,000 dividend income. Their tax liability
loss of revenue. The AMT is a “cash cow”
for 2013 (all figures are estimates and, for illustration, assume no inflation
for the federal government and lawmak-
adjustments between 2012 and 2013): ers under tight budgetary constraints in
No Sunset:................................................. $19,485 tax due for 2013 the 2011 Budget Control Act are reluc-
tant to eliminate the AMT. However,
Full Sunset:................................................ $25,898 tax due for 2013 they are expected to patch the AMT for
2012 and possibly 2013, until a more
Difference:................................................. $6,413* permanent solution is found. The Joint
#2: Assume a couple, no children, filing a joint return and taking the stan- Committee on Taxation (JCT) has es-
dard deduction, with $300K wage income, $50,000 net capital gains, and timated that an AMT patch for 2012
would cost $92 billion over 10 years.
$5,000 dividend income. Their tax liability for 2013 (assuming for illustra-
tion, no inflation adjustments between 2012 and 2013): COMMENT. President Obama has pro-
No Sunset:................................................. $77,721 tax due for 2013 posed to replace at least part of the AMT
with the so-called Buffett Rule under
Full Sunset:................................................ $89,934 tax due for 2013 comprehensive tax reform. The White
House has explained the Buffett Rule in
Difference:................................................. $12,213* general terms as ensuring that taxpayers
#3: Assume a single filer, no children, taking the standard deduction, with making over $1 million annually would
$70K wage income, $5,000 net capital gains, and $1,000 dividend income. pay an effective tax rate of at least 30 per-
cent. In April 2012, the Senate rejected
The individual’s tax liability for 2011 (assuming for illustration, no inflation
the Paying a Fair Share Act, which would
adjustments between 2012 and 2013):
implement the Buffett Rule. Democrats
No Sunset:................................................. $11,992.50 tax due for 2013 are expected to reintroduce the bill.

Full Sunset:................................................ $13,606.50 tax due for 2013
EDUCATION SUNSETS
Difference:................................................. $1,614*
* Loss of Current 2% Payroll Tax Reduction up to Social Security Wage Base A number of education-related tax incen-
(anticipated to be $113,700 in 2013) not included. tives are scheduled to expire, or be signifi-
cantly reduced, after 2012.


May 4, 2012
7

Coverdell Education IMPACT. After the sunset, employer-paid deduction and expanded the modified AGI
Savings Accounts educational assistance will be excludable range for phase-out. The 2010 Tax Relief Act
from gross income only if it qualifies un- extended these enhancements through 2012.
The maximum contribution amount to der the more stringent working condition
a Coverdell Education Savings Account fringe rules. Under the fringe benefit rules, IMPACT. For 2012, the student loan in-
(ESA) is $2,000 but is scheduled to re- the employee must be able to meet the busi- terest deduction is reduced when modified
vert to $500 after 2012. Current law also ness expense requirements that call for a adjusted gross income exceeds $60,000
treats elementary and secondary school direct relationship between the course and for single individuals ($125,000 for
expenses, in addition to post-secondary the employee’s current job. married couples filing a joint return)
school expenses, as qualified expenses for and is completely eliminated when modi-
Coverdell ESAs. COMMENT. Tax-free educational assis- fied adjusted gross income is $75,000 or
tance benefits include payments for tuition, more for single individuals ($155,000
IMPACT. Contributions to a Coverdell fees and similar expenses, books, supplies, for married couples filing a joint return).
ESA are not tax-deductible, but amounts and equipment. The payments may be for If the enhancements to the deduction
deposited in the account grow tax free either undergraduate- or graduate-level sunset after 2012, the deduction would
until distributed for qualified distribu- courses. To qualify as an educational as- begin to phase out for single individuals
tions. Total contributions for the benefi- sistance program, the plan must be written whose modified adjusted gross income,
ciary of a Coverdell ESA under current and must meet certain other requirements. estimated with inflation adjustments,
law cannot be more than $2,000 in any exceeds $50,000 ($75,000 for married
year, no matter how many accounts have couples filing a joint return) and would
been established.
Federal Scholarships be completely eliminated when modified
The 2010 Tax Relief Act extended the exclu- adjusted gross income is $65,000 or more
sion from income for the National Health for single individuals ($90,000 for mar-
Educational Assistance Exclusion Service Corps Scholarship Program and the ried couples filing a joint return).
The 2010 Tax Relief Act extended the Armed Forces Scholarship Program though
$5,250 exclusion from income and employ- 2012. These scholarships carry obligatory COMMENT. The student loan interest
ment taxes of employer-provided education service requirements. deduction is taken as an adjustment to
assistance through 2012. The benefit is not income and is available to non-itemizers.
taxable to the employee. Employers may
deduct up to $5,250 annually for qualified
Student Loan Interest Deduction
education expenses paid on behalf of an em- EGTRRA eliminated a 60-month rule for the
Higher Education
ployee through 2012. $2,500 above-the-line student loan interest Tuition Deduction

The above-the-line deduction for higher
Other Sunsetting Provisions education tuition and related expenses ex-
pired after 2011. The higher education tu-
EGTRRA and JGTRRA provisions are not the only tax benefits scheduled to ition deduction was created by EGTRRA
expire after 2012 (or that already expired after 2011). Among these provi- and extended by subsequent laws, most re-
sions (not an exclusive list) are the following: cently by the 2010 Tax Relief Act, but only
through the end of 2011.
Payroll tax cut
100 percent bonus depreciation IMPACT. In 2011, the last year in which
Enhanced Code Sec. 179 expensing the deduction was available under cur-
Research credit rent law, the deduction reached a maxi-
State and local sales tax deduction mum of $4,000 for taxpayers whose
modified AGI did not exceed $65,000
Teacher’s classroom expense deduction
($130,000 for joint filers), and $2,000
Exclusion for charitable contributions of IRA proceeds for taxpayers whose modified AGI exceed-
Parity for transit benefits ed $65,000 but did not exceed $80,000
Mortgage insurance premium deduction ($160,000 for joint filers).
Cancellation of mortgage indebtedness exclusion for personal residence
Energy tax incentives COMMENT. The higher education tu-
ition deduction is typically included

CCH Tax Briefing

8

among the tax extenders for renewal. 17, 2009, and on or before September FEDERAL ESTATE,
Although the deduction was renewed for 27, 2010, and to 100 percent for stock
2010 and 2011, renewal for 2012 and acquired after September 27, 2010, and
GIFT AND GST TAXES
beyond is uncertain. before January 1, 2012. When Congress passed EGTRRA in 2001,
many lawmakers believed that the federal
Under JGTRRA, seven percent (rather than estate tax would be permanently repealed
American Opportunity Tax Credit 42 percent) of the excluded gain is treated after 2009 and its stepped-up basis rules
The 2009 Recovery Act enhanced and re- as a tax preference item subject to the AMT would be replaced with a modified carried
named the Hope education credit as the for tax years beginning before January 1, over basis regime. Instead, the 2010 Tax Re-
American Opportunity Tax Credit (AOTC). 2011. The Tax Relief Act of 2010 extended lief Act revived the estate tax for decedents
For qualified taxpayers, the AOTC is par- this exclusion through 2012 and, at the 100 dying after December 31, 2009 (but gave
tially refundable. The 2010 Tax Relief Act percent exclusion level, none of the gain will estates of decedents dying in 2010 the op-
extended the AOTC through 2012. After be subject to AMT. tion to opt out of the estate tax and apply
2012, the Hope credit, with its lower ben- EGTRRA’s rules). Because the 2010 Tax
efits would return. COMMENT. To qualify as small busi- Relief Act is temporary, its estate tax regime
ness stock, the stock must be issued by a C is scheduled to expire after 2012.
IMPACT. The AOTC reaches up to $2,500 corporation that invests 80 percent of its
of the cost of tuition, fees and course mate- assets in the active conduct of a trade or
rials paid during the tax year. The AOTC business and that has assets of $50 mil-
Estate Tax Rates/Exclusion Amount
is based on 100 percent of the first $2,000, lion or less when the stock is issued. Under EGTRRA, the estate tax would have
plus 25 percent of the next $2,000. Forty been abolished for decedents dying in 2010
percent of the AOTC (up to $1,000) is re- and then revived at its pre-EGTRRA levels
fundable for lower-income taxpayers.
Employer-Provided after 2010. The 2010 Tax Relief Act modi-
Child Care Credit fied EGTRRA’s timeframe. First, the 2010
The full credit is available to individu- Tax Relief Act provides for a maximum
als whose modified adjusted gross income The 2010 Tax Relief Act extended through estate tax rate of 35 percent for decedents
is $80,000 or less, or $160,000 or less for 2012 the credit for employer-provided dying after December 31, 2009 and before
married couples filing a joint return. The child care facilities and services created by January 1, 2013, and an applicable exclu-
credit is phased out for taxpayers with in- EGTRRA. The credit to which a business sion amount of $5 million for decedents
comes above these levels. is entitled is the sum of 25 percent of the dying after December 31, 2009 and before
qualified child care expenses and 10 per- January 1, 2013. Second, the 2010 Tax Re-
IMPACT. The Hope credit was limited to cent of the qualified child resource and lief Act allowed estates of decedent’s dying
the first two years of post-secondary edu- referral expenses incurred by the employer in 2010 to opt out of the revived estate tax.
cation. The AOTC may be claimed for all for the tax year. The maximum amount Estates of decedents dying after December
four years of post-secondary education. of the credit allowable is $150,000 in any 31, 2009 and before January 1, 2011 have
given tax year. the option to elect not to apply the estate
tax regime under the 2010 Tax Relief Act.
BUSINESS-SPECIFIC IMPACT. The tax credit for employer-pro- Estates may elect to apply either (1) the es-
SUNSETS vided child care facilities will disappear tate tax based on the 2010 Tax Relief Act’s
under the sunset provision of EGTRRA (as 35 percent top rate and $5 million appli-
extended by the 2010 Tax Relief Act) for tax cable exclusion amount, with stepped-up
Small Business Stock years beginning after December 31, 2012. basis or (2) no estate tax and modified car-
ryover basis rules under EGTRRA.
Non-corporate investors may exclude a IMPACT. Employers that terminate
percentage of the gain they realize on the child-care services may have to recap- IMPACT. Because the 2010 Tax Relief Act
sale or exchange of qualified small business ture a portion of the credit. While em- sunsets after 2012, indexing for inflation
stock. Generally, the stock must have been ployers would be reluctant to eliminate is only applicable to 2012 (the estate tax
issued after a certain date by a qualified child-care services, they could seek to save applicable exclusion amount for estates of
C corporation and held by the taxpayer money by spending less or by charging decedents dying in 2012 is $5,120,000).
for more than five years. Since 1993, a employees more for child-care services
50-percent exclusion of gain applies. The which they may be able to fund, at least IMPACT. Absent extension, the maximum
exclusion, however, is increased to 75 partially, through a pre-tax dependent federal estate tax rate is scheduled to re-
percent for stock acquired after February care spending account. vert to 55 percent after 2012 with an ap-


May 4, 2012
9

plicable exclusion amount of $1 million Skipping Transfer) Tax Return, pend- determined using a single rate schedule
(not indexed for inflation). ing further guidance. for 2004 through 2009, but the estate
tax applicable exclusion amount was
COMMENT. The election to opt out of the higher than the gift tax applicable ex-
estate tax for 2010 is known as the “Code
State Death Tax Credit/Deduction clusion amount.
Sec. 1022 election.” Before 2005, a credit was allowed against the
federal estate tax for state estate, inheritance, IMPACT. Some estate planners have rec-
COMMENT. Property with a stepped-up legacy, or succession taxes. EGTRRA re- ommended utilizing the full lifetime $5
basis receives a basis equal to the prop- pealed the state death tax credit for decedents million unified estate and gift tax exclu-
erty’s fair market value on the date of the dying after 2004 and replaced the credit with sion before it may sunset at the end of
decedent’s death (or on an alternate valu- a deduction. The state death tax credit as it 2012. While there is concern that any
ation date). Under EGTRRA’s modified existed pre-EGTRRA was scheduled to re- exclusion amount in excess of a future
carryover basis regime for estates of dece- vive after 2010. The 2010 Tax Relief Act ex- exclusion may be “clawed back” into an
dents dying in 2010, an executor may in- tended the deduction through 2012. eventually taxable estate, the worst case
crease the basis of estate property only by in that situation will not prevent any ap-
a total of $1.3 million, with other estate preciation within the gift from escaping
property taking a carryover basis equal to
More Estate Tax Provisions estate tax at that later date.
the lesser of the decedent’s basis or the fair The 2010 Tax Relief Act also extended,
market value of the property on the dece- through 2012, EGTRRA’s provisions affect-
dent’s death. An executor may increase the ing qualified conservation easements, quali-
GST Tax
basis of assets passing to a surviving spouse fied family-owned business interests (QFO- Under EGTRRA, the generation-skipping
by an additional $3 million (for a total of BIs), and the installment payment of estate transfer (GST) tax was scheduled to be re-
$4.3 million). tax for closely-held businesses for purposes of pealed for 2010, after which the pre-EG-
the estate tax. Additionally, the 2010 Tax Re- TRRA GST rules would return. The 2010
COMMENT. President Obama has pro- lief Act extended repeal of the five percent sur- Tax Relief Act modified this timeframe. The
posed to extend the federal estate tax after tax on estates larger than $10 million through GST tax applicable exclusion amount for
2012 with a top tax rate of 45 percent 2012. Absent extension, the pre-EGTRRA decedents dying or gifts made after Decem-
and an applicable exclusion amount of rules for these respective provisions will apply. ber 31, 2009 is equal to the applicable ex-
$3.5 million. clusion amount for estate tax purposes ($5
million for 2010) but the GST tax rate for
Gift Tax transfers made in 2010 is zero. After 2010,
Portability Under EGTRRA, the gift tax for 2010 was the GST tax rate is equal to the highest es-
The 2010 Tax Relief Act introduced the scheduled to be 35 percent with a $1 million tate and gift tax rate in effect for 2011 and
concept of “portability” into the federal es- applicable exclusion amount. After 2010, 2012 (35 percent for each year). Under the
tate tax regime. Portability allows the estate the pre-EGTRRA rules were scheduled to be 2010 Tax Relief Act, the pre-EGTRRA GST
of a decedent who is survived by a spouse revived. The 2010 Tax Relief Act provided a rules are scheduled to return after 2012.
to make a portability election to permit the 35 percent tax rate and a $1 million exemp-
surviving spouse to apply the decedent’s tion for gifts made in 2010. However, the IMPACT. If the GST provisions in the
unused exclusion (the deceased spousal 2010 Tax Relief Act also provided that for 2010 Tax Relief Act are not extended,
unused exclusion amount (DSUE)) to the gifts made after December 31, 2010, the gift there will be a 20 point difference be-
surviving spouse’s own transfers during life tax is reunified with the estate tax, with a tax tween the 35 percent rate applicable to
and at death. Portability is available to the rate through 2012 of 35 percent and an ap- transfers in 2012 and the 55 percent rate
estates of decedents dying after December plicable exclusion amount of $5 million. that would apply after 2012.
31, 2010 and before January 1, 2013.
COMMENT. Before 2004, the estate
COMMENT. The IRS described porta- and gift taxes were fully unified, such
More GST provisions
bility in Notice 2011-82 and updated that a single graduated rate sched- A number of other GST tax-related provi-
its guidance in Notice 2012-21. The ule and a single applicable exclusion sions are scheduled to sunset after 2012.
IRS explained that the estate of a de- amount of the unified credit applied for They include the GST deemed allocation
cedent who is survived by a spouse will purposes of determining the tax on cu- and retroactive allocation provisions; clarifi-
be deemed to have elected portabil- mulative transfers made by a taxpayer cation of valuation rules with respect to the
ity by the timely filing of Form 706, during his or her lifetime and at death. determination of the inclusion ratio for GST
United States Estate (and Generation- The estate and gift tax continued to be tax purposes; provisions allowing for a quali-

CCH Tax Briefing

10

fied severance of a trust for purposes of the School Construction Bonds. Through Exempt Facility Bonds. Bonds used to pro-
GST tax; and relief from late GST alloca- 2012, the additional amount of bonds for vide “qualified public educational facilities”
tions and elections. The 2010 Tax Relief Act public schools that small governmental units are treated as exempt facility bonds under
extended these provisions through 2012. may issue under Code Sec. 148 without be- Code Sec. 142(a)(13) through 2012. Un-
ing subject to arbitrage rebate requirements der current law, this treatment is scheduled
is $10 million. to sunset after 2012.
TAX-EXEMPT BONDS
IMPACT. The arbitrage rebate require- Qualified Zone Academy Bonds. The au-
EGTRRA enhanced several tax-exempt ment is scheduled to decrease from $10 thority for state and local governments to is-
bond programs and these enhancements million to $5 million after 2012. sue qualified zone academy bonds (QZABs)
were extended by the 2010 Tax Relief Act. runs through 2012. Under current law, this
authority is scheduled to sunset after 2012.



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