Now that we have a new administration and slim Democratic majorities in both chambers of Congress, there are some shifting taxation priorities. Of course, there is formidable resistance from the other side of the aisle.
There are those clamoring for more taxes on the wealthy and proposals that would expand federal transfer taxes. In this post, we will look at potential changes to the federal estate tax exclusion and the step-up in basis.
Potential Exclusion Reduction
The federal estate tax exclusion is an amount that can be transferred before the remainder would be subject to federal estate tax at a top rate of 40 percent. This exclusion is subject to change via legislative mandate and has changed multiple times over the last couple of decades.
In 2010, the federal estate tax was repealed for one year by a provision in the Bush era tax cuts. This provision would have sunset at the end of that year and the tax would have returned to $1 million exclusion.
Then the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (H.R. 4853) was enacted at the end of 2010 that established a $5 million exclusion for 2011. This same exclusion was retained in the American Taxpayer Relief Act of 2012.
This $5 million exclusion, adjusted for inflation annually, remained in place through 2017 when it rose to $5.49 million. In December 2017, the Tax Cuts and Jobs Act was passed, which established an $11.18 million exclusion for 2018.
This $11.18 million exclusion has been adjusted for inflation since so this year, in 2021, it stands at $11.7 million.
This provision of the Tax Cuts and Jobs Act will sunset at the end of 2025, when the exclusion will return to the $5.49 million from 2017, adjusted for inflation.
Whether this happens or not is in question because President Biden has called for the tax exclusion to return to “traditional levels.” Since it was in the $5 million range from 2011 through 2017, he was probably referring to this level.
There is no reason to think President Biden would want the exclusion to be lower than $5 million, but the timetable for reducing the exclusion could be accelerated if a new tax law is passed. Others have recommended even lower exclusions, but without much support. We will monitor the situation and pass along any updates if and when they become available.
Possible Elimination of Stepped-Up Basis
The other possible change could effect far more people. Capital gains taxes apply if you sell an asset that has appreciated in value while in your possession. Under current law, if you inherit an appreciated asset, you are not responsible for taxes on the gains that occurred during the life of the person that left you the inheritance.
Inherited assets currently get a “stepped-up” basis to fair market value, so you start anew when you acquire the asset. If you realize a gain going forward, you will pay capital gains tax on the increase in value.
President Biden has proposed eliminating the step-up in basis and a higher long-term capital gains rate. Currently, the maximum long-term capital gains rate is 20 percent and short-term gains are taxed at your regular income tax rate.
His proposal would tax long-term gains at your regular income tax rate if your household taxable income is $1 million or more.
Many people take advantage of the step-up in basis to transfer wealth to the next generation tax-free. This would change the estate planning playing field, and is another issue we will follow closely.
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Since founding Parman & Easterday in 1985, Larry has led over 1,000 free, community-service education programs and helped more than 10,000 Oklahoma families go from putting off their estate plan to getting it done. His goal for every client is the same: to become the person their family calls "the one who took care of everything."
Larry is the author of three books: The Straight Shooter's Guide to Estate Planning; Estate Planning Basics; and Guiding Those Left Behind in Oklahoma. He served as Oklahoma's Secretary of State and Secretary of Commerce, and his firm is the only member of the American Academy of Estate Planning Attorneys in the state.
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