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TaxWatch: Biden has pledged to tax the rich — but precisely how will he do that? Experts consider his options

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If President Joe Biden’s campaign pledges to tax the rich were the coming attraction, we’re now coming to the main event.

After unveiling a $2.3 trillion infrastructure spending proposal powered by corporate tax increases, Biden will soon unveil his “American Families Plan” to offer programs like free community college and paid family leave. The president is expected to fund the forthcoming plan with tax increases on wealthy households.

The question is precisely which tax hikes will he propose? And what can he get through a Congress where Democrats have the barest of majorities — one where the president cannot afford any ‘no’ votes?

Biden could formally unveil the plan as soon as April 28, commentators said. So far, the White House hasn’t been specific on details.

Some details are starting to seep out, including a Bloomberg News report Thursday saying Biden will boost the capital gains rate tax to 39.6% for households earning at least $1 million,  citing people familiar with the proposal. Coupled with an added 3.8% tax linked to the Affordable Care Act, that’s a potential 43.4% rate.

All the stock market benchmarks began falling on the news. The Dow Jones Industrial Average
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slid 300 points on the news.

Observers said it was possible to make some educated guesses about which tax provisions are under consideration by reviewing Biden’s stances in a run for president where he said he wouldn’t raise taxes on anyone making less than $400,000.

Reading the taxation ‘tea leaves’

They also try reading the taxation “tea leaves” by looking at the people he has tapped in his administration.

The rate for the top income tax bracket, new rules for estates and new tax treatment for the investment income of rich people are all likely in the mix, they say.

Some proposals might chart new terrain in the tax code, they note, while others might just quickly undo Trump-era tax rules that are set to elapse at the end of 2025. Either way, some array of increases is coming, they note.

“At this point, taxes are not getting any lower,” said David Kirk, a tax partner who leads Ernst & Young’s Private Tax Group. “They are only going to up from here. The question is how?”


“At this point, taxes are not getting any lower. They are only going to up from here. The question is how?”


— David Kirk, a tax partner who leads Ernst & Young’s Private Tax Group

The answers matter a lot for the Biden administration as it presses its policy agenda. It also matters for rich households as they determine tax planning, investment portfolio strategy and end-of-life matters.

Data on tax minimization strategies and financial planners’ busy schedules show they haven’t been waiting.

Here’s a look at some of the specific tax provisions that might be in play, and what’s known and not known yet.

A new top rate

Candidate Biden didn’t propose a wealth tax, but he did propose putting the top marginal rate at 39.6%. That’s where it was before the 2017 Tax Cuts and Jobs Act lowered the rate to 37% (as well as lowering the rates on four other brackets down the income ladder).

Kirk, formerly an attorney in the Internal Revenue Service’s Office of Chief Counsel, said the potential rate raise was “relatively low hanging fruit” for the administration.

Ed Mills, a Washington D.C. policy analyst at Raymond James, agreed the potential rate hike looked likely. “The political sales point is, ‘It’s not necessarily raising those taxes, it’s reverting taxes back to where they were before the Trump tax cuts,’” he said.

One quirk is the top rate in 2021 applies to individuals making at least $523,601 a year or couples making $628,301 a year. So does Biden shuffle things so households making $400,000 now fall under the top rate instead of the second-highest 35% rate? “Those are all political decisions” still to come, Mills said.

Tweaking the top rate could produce $100 billion in new tax revenue, according to a Tuesday note from Evercore ISI — the  investment banking advisory firm calls the change “likely.”

Estate Taxes

The Tax Cuts and Jobs Act doubled the threshold where the 40% federal estate taxes kicked in. It previously was $5.49 million per person ($10.98 million for married couple) and this year is $11.58 million per person ($23.16 million for married couples). The number is indexed for inflation. Like the marginal rates, the 2017 law lets the estate tax exemptions expire after 2025.

But Biden may want to quicken the expiration date and, Kirk noted, he’s brought on people who are keenly aware of estate-tax workings.

Lily Batchelder has been nominated as assistant secretary for tax policy in the Treasury Department, he noted. (The White House formally sent her nomination to the Senate last week.)

Batchelder previously taught at New York University’s School of Law, where she estimated that federal estate taxes would rake in $16 billion last year, making for an effective estate tax rate around 2%.


‘Politically, it makes sense because average working Americans don’t have estates to leave to their children.’


— Professor Donald Williamson, executive director of American University’s Kogod Tax Policy Center. about potential estate tax law changes

“Despite our founding vision as a land of opportunity, the United States ranks at or near the bottom among high-income countries in economic equality and intergenerational mobility. Our tax code plays a key role,” Batchelder, also an Obama administration official, wrote last year.

If estate taxes are getting revised, one question is where the exemption level is set and whether the rate stays at 40%.

Some estate tax changes are a “done deal” in the eyes of Professor Donald Williamson, executive director of American University’s Kogod Tax Policy Center. “Politically, it makes sense because average working Americans don’t have estates to leave to their children,” he said.


‘Eliminating step-up in basis would require small business owners to pay a new tax when a family business partner dies, and potentially force them to sell their business.’


— Courtney Titus Brooks, senior manager of federal government relations at the National Federation of Independent Business

Approximately 4,100 estate-tax returns will be filed for people who died last year, according to projections from the Urban Institute & Brookings Institution Tax Policy Center. Around 1,900 will be subject to federal estate taxes, the think tank said. To put those figures in context: There were 3.35 million U.S. deaths last year, according to data from the Centers for Disease Control and Prevention.

An increase in estate tax also means the “step up in basis” is on the chopping block, Williamson said. This tax rule says if an heir sells inherited assets, the price appreciation — and resulting capital gains tax — starts from the time of inheritance, not when the asset was originally acquired.

If an asset like long-held shares in a blue-chip company keeps growing in value, that’s a major shield against a major capital gains tax liability.

But there can be capital gains implications when businesses are sold or inherited — and that’s setting up battle lines.

“Eliminating step-up in basis would require small business owners to pay a new tax when a family business partner dies, and potentially force them to sell their business just to pay the tax and associated fees,” said Courtney Titus Brooks, senior manager of federal government relations at the National Federation of Independent Business, an advocacy organization for small businesses.

Biden’s forthcoming proposal “may include” estate tax changes, which could generate $500 billion, and changes to the step-up in basis are “very likely,” Evercore ISI’s note added.

New rules and rates for capital gains

Right now, the capital-gains rate for the richest taxpayers starts at 20%, though the rates may go higher depending on the assets being sold.

Candidate Biden has said he’d raise the capital gains rate to 39.6% for household making at least $1 million so that their investment income is taxed just like their ordinary income.

Income brackets and estate taxes are one thing, but changes to the capital gains rules could be a tougher effort, Kirk said. First off, he wondered, can Biden convince lawmakers to counter a century of tax law — since the 1921 Revenue Act — that has taxed long-term capital gains at a lower, preferential rate?


‘If you choose to adjust capital gains or qualified dividends, what date do you make that effective and how do you prevent a market reaction?’


— Ed Mills, Washington policy analyst for Raymond James

Biden also needs to think hard about the rate number, Kirk said, because a rate that’s too high could be a disincentive to realize gains and, therefore, could actually become a revenue loser for the government.

The timing is another question: If rich investors know the clock is ticking on a low capital gains rate, that might cause a selling spree on securities and other appreciating assets. “If you choose to adjust capital gains or qualified dividends, what date do you make that effective and how do you prevent a market reaction?” Mills said.

The Evercore ISI note said Biden’s plan “probably includes” this change which, combined with other capital gains changes, would create between $300 billion and $400 billion in tax revenue.

State and local tax deductions

The Tax Cuts and Jobs Act put a $10,000 lid on the deduction for state and local taxes. If a taxpayer itemized their deductions, instead of taking the standard deduction, they previously had no limit on the write-off.

Now, some House Democrats coming from states with high local taxes are urging the Biden administration to take the lid off because, they say, the current situation hurts middle-class families in high-cost areas.

If the unlimited deduction is back in the mix, that could have ultra-upper class implications. 96% of the tax savings from a pulled-back lid would go to the highest 20% of households, according a 2018 Tax Policy Center analysis.

Talk of a SALT cap repeal is “ironic” in the current context, Williamson said. “I think repealing the SALT limit is frankly a benefit to the rich.”

Last week, White House Press Secretary Jen Psaki said the administration would at least hear out the lawmakers. Mills said he didn’t foresee Biden starting out with a repeal but “there’s a debate and compromise to be had.”

A beefier IRS budget

There’s law changes, and then there’s more money to enforce the tax laws already on the books.

The Biden administration wants a $13.2 billion IRS budget this year. That’s a 10.4% increase year-over-year. The extra cash would go to more enforcement staff to counteract slipping audit rates for corporations and high-income earners.

There could be an annual $1 trillion gap between taxes owed and taxes paid, IRS Commissioner Charles Rettig said this month.

If lawmakers balk at tax hikes, Mills said more budget cash for the IRS could provide an alternate route to more tax money.

“The more they dial up IRS enforcement, the less they have to dial up tax increases,” he said, later adding, “Enforcing existing tax laws versus increasing taxes is the path of least resistance.”

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