1. 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-
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3. 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
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CCH Tax Briefing
5. 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).
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CCH Tax Briefing
7. 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
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CCH Tax Briefing
9. 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-
Click to continued on next page
CCH Tax Briefing
11. CCH Provides the Analysis You Can Trust
What are the Consequences… and the
Opportunities for You, Your Business and Your
Clients? Do You Have the Resources You Need?
Sunset of the 2001 & 2003 Tax Relief Acts: Law, Explanation & Analysis —
CCH provides the critical explanation and analysis to help readers make sense of federal tax provisions enacted in 2001
and 2003 that are scheduled to expire December 31, 2012, so they can plan, respond and advise with confidence.
CCH’s Law, Explanation and Analysis of the Sunset of the 2001 & 2003 Tax Relief Acts provides tax professionals with timely
and practical guidance on the impending sunset of the tax cuts and benefits originally enacted as part of the Economic
Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA) and the Jobs and Growth Tax Relief Act of 2003 (JGTRRA),
CCH editors, together with leading tax practitioners and commentators, have created a complete practical analysis,
guidance, examples and planning tips.
The Internal Revenue Code provisions impacted by the sunset provisions of EGTRRA and JGTRRA are arranged in Code
section sequence with caution language. CCH also provides several special tables and lists to facilitate quick and thorough
understanding of how the sunset works, impacts the Internal Revenue Code, and how it affects taxpayers. Pub: May 2012 •
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