New Law Offers Special Tax Option for Philippines Relief Donations
Under special legislation enacted last week, taxpayers can choose to treat cash contributions made on or after March 26, 2014, and before midnight on Monday, April 14, 2014, as if made on Dec. 31, 2013. This special provision only applies to charitable cash contributions for the relief of victims of Typhoon Haiyan.
Eligible contributions can be claimed on either a 2013 or 2014 return, but not both. Contributions made after April 14, 2014, but before the end of this year can only be claimed on a 2014 return.
Contributions made by text message, check, credit card or debit card qualify for this special option. Donations charged to a credit card before midnight on April 14, 2014, are eligible contributions even if the credit card bill isn’t paid until after that date. Also, donations made by check are eligible if they are mailed by April 14.
The Philippines Charitable Giving Assistance Act, enacted March 25, 2014, does not apply to contributions of property. Gifts made directly to individual victims are not deductible.
This benefit is only available to an individual that itemize their deductions. The deduction is not available to those that claim the standard deduction.
Contributions must go to qualified charities. Most organizations eligible to receive tax-deductible donations are listed in a searchable online database available on IRS.gov under Exempt Organizations Select Check. Some organizations, such as churches or governments, may be qualified even though they are not listed on IRS.gov.
Contributions to foreign organizations generally are not deducted. IRS Publication 526, Charitable Contributions, provides information on making contributions to charities.
A record of the name of the charity, the date of the contribution and the amount of the contribution are required for any deductible contribution. Donations by text message, a telephone bill will meet the record keeping requirement. Donations of $250 or more, taxpayers must obtain a written acknowledgment by the charity.
IRS Reverses Long-Standing Position on One-Rollover-per-Year Rule
I discussed a Tax Court case, Bobrow v. Commissioner, in my February 25th blog, “Tax Court Says One Tax-Free Rollover per Year Means just That”. I mentioned that one tax-free rollover per IRA per year was permitted by an IRS publication and proposed regulations. The decision held that a taxpayer may make only one tax-free, 60-day rollover between IRAs within each 12-month period, regardless of how many IRAs an individual maintains.
IRS will not apply this new interpretation to any rollover that involves an IRA distribution occurring before January 1, 2015.
Bobrow v. Commissioner
Mr. Bobrow (anecdotally, a tax lawyer) completed numerous rollovers from various IRAs within 60 days. This was consistent with IRS Publication 590 and the proposed regulations.
The Tax Court relied on its previous rulings, the language of the statute, and the legislative history in deciding this case. The Tax Court held that regardless of how many IRAs an individual maintains, a taxpayer may make only one nontaxable rollover within each 12-month period.
The IRS response
The IRS, in Announcement 2014-15, indicated that it will follow the Tax Court’s Bobrow decision, and apply the one-rollover-per-year rule on an aggregate basis, instead of separately to each IRA you own. However, in order to give IRA trustees and custodians time to make changes in their IRA rollover procedures and disclosure documents, the IRS will not apply this new interpretation to any rollover that involves an IRA distribution that occurs before January 1, 2015.
What this means to you
For the rest of 2014 the “old” one-rollover-per-year rule in IRS Publication 590 (see above) will apply to any IRA distributions you receive. So if you have a need to use 60-day rollovers to move funds between IRAs, you have only a limited time to do so without regard to the new Bobrow interpretation.
You can make unlimited direct transfers (as opposed to 60-day rollovers) between IRAs. Direct transfers between IRA trustees and custodians aren’t subject to the one-rollover-per-year rule. So if you don’t have a need to actually use the cash for some period of time, it’s generally safer to use the direct transfer approach, and avoid this potential problem altogether. The tax consequences of making a mistake can be significant, so don’t hesitate to consult a qualified professional before making multiple rollovers.
*Note: The one-rollover-per-year rule also applies–separately–to your Roth IRAs. Roth conversions don’t count as rollovers for this purpose.
The foregoing is provided for information purposes only. It is not intended or designed to provide legal, accounting, tax, investment or other professional advice. Such advice requires consideration of individual circumstances. Before any action is taken based upon this information, it is essential that competent, individual, professional advice be obtained. JAS Financial Services, LLC is not responsible for any modifications made to this material, or for the accuracy of information provided by other sources.
Tax Court Says One Tax-Free Rollover per Year Means Just That
| Background The Internal Revenue Code says that if you receive a distribution from an IRA, you can’t make a tax-free (60-day) rollover into another IRA if you’ve already completed a tax-free rollover within the previous 12 months. The long-standing position of the IRS, reflected in Publication 590 and proposed regulations, is that this rule applies separately to each IRA you own. Publication 590 provides the following example: “You have two traditional IRAs*, IRA-1 and IRA-2. You make a tax-free rollover of a distribution from IRA-1 into a new traditional IRA (IRA-3). You cannot, within 1 year of the distribution from IRA-1, make a tax-free rollover of any distribution from either IRA-1 or IRA-3 into another traditional IRA. However, the rollover from IRA-1 into IRA-3 does not prevent you from making a tax-free rollover from IRA-2 into any other traditional IRA. This is because you have not, within the last year, rolled over, tax free, any distribution from IRA-2 or made a tax-free rollover into IRA-2.” Very clear. Clear, that is, until earlier this year, when the Tax Court considered the one-rollover-per-year-rule in the case of Bobrow v. Commissioner. Bobrow v. Commissioner On April 14, 2008, he withdrew $65,064 from IRA #1. On June 10, 2008, he repaid the full amount into IRA #1. On June 6, 2008, he withdrew $65,064 from IRA #2. On August 4, 2008, he repaid the full amount into IRA #2. Mr. Bobrow completed each rollover within 60 days. He made only one rollover from each IRA. So, according to Publication 590 and the proposed regulations, this should have been perfectly fine. However, the IRS served Mr. Bobrow with a tax deficiency notice, and the case went to the Tax Court. The IRS argued to the Court that Mr. Bobrow violated the one-rollover-per-year rule. The Tax Court agreed with the IRS, relying on its previous rulings, the language of the statute, and the legislative history. The Court held that regardless of how many IRAs he or she maintains, a taxpayer may make only one nontaxable rollover within each 12-month period. “Taxpayers may rely on a proposed regulation, although they are not required to do so. Examiners, however, should follow proposed regulations, unless the proposed regulation is in conflict with an existing final or temporary regulation (Internal Revenue Manual 4.10.7 issue resolution). “IRS Publications explain the law in plain language for taxpayers and their advisors. They typically highlight changes in the law, provide examples illustrating Service positions, and include worksheets. Publications are nonbinding on the Service and do not necessarily cover all positions for a given issue. While a good source of general information, publications should not be cited to sustain a position” (Internal Revenue Manual 4.10.7 issue resolution). This maybe why neither the IRS nor Mr. Bobrow appears to have cited the Service’s long-standing contrary position in Publication 590 and the proposed regulations. So what’s the rule now? And don’t forget–you can make unlimited direct transfers (as opposed to 60-day rollovers) between IRAs. Direct transfers between IRA trustees and custodians aren’t subject to the one-rollover-per-year rule. *The one-rollover-per-year rule also applies–separately–to your Roth IRAs. Roth conversions don’t count as a rollover for this purpose.
The foregoing is provided for information purposes only. It is not intended or designed to provide legal, accounting, tax, investment or other professional advice. Such advice requires consideration of individual circumstances. Before any action is taken based upon this information, it is essential that competent, individual, professional advice be obtained. JAS Financial Services, LLC is not responsible for any modifications made to this material, or for the accuracy of information provided by other sources. |
Rules Eased for Health FSAs
Recent changes announced by the Internal Revenue Service (IRS) modify the “use-it-or-lose-it” rule that applies to health flexible spending arrangements (FSAs). Plan sponsors will now have the option of allowing participants in health FSAs to carry over up to $500 of unused funds in a health FSA to the following plan year.
Background
Health FSAs are tax-advantaged employer-provided benefit plans that employees can use to pay for qualifying medical expenses. While generally funded through voluntary employee salary reductions, employers are able to contribute as well. Prior to the start of a plan year, employees decide how much to contribute to the health FSA (the maximum annual employee contribution to a health FSA that is part of a cafeteria plan is $2,500 for 2014). Contributions to the plan are excluded from income for federal income tax purposes, as are any reimbursements made from the plan for qualified medical expenses, including co-payments, deductibles, and dental and vision care expenses.
Any funds left unspent in the health FSA at the end of the plan year are forfeited–this is commonly referred to as the “use-it-or-lose-it” rule. Plan sponsors have the option of providing for a grace period of up to 2½ additional months after the end of the plan year (e.g., a calendar year plan might cover expenses incurred through March 15).
New rules
In Notice 2013-71, the IRS modified the “use-it-or-lose-it” rule that applies to health FSAs:
Plans may now be amended to allow participants to carry over up to $500 of unused health FSA funds at the end of a plan year.
Any carryover will not count against the $2,500 limit in the next plan year.
A plan may allow participants a grace period, as described above, or the ability to carry over unused funds–but not both.
A plan does not have to allow either the grace period or the carryover option.
To adopt the carryover option, plans must be amended on or before the last day of the plan year from which amounts may be carried over, and may be retroactive to the first day of the plan year, provided certain requirements, including participant notification, are met.
Special rules apply to plan years beginning in 2013–these plans may be amended to retroactively adopt the carryover provision at any time on or before the last day of the plan year that begins in 2014.
Word of caution
A health FSA plan can’t have both a grace period and a carryover option, so plans with existing grace periods will have to be amended to remove the grace period feature in order to add carryovers. Plan sponsors should consult carefully with a benefit specialist before taking any action, however, as eliminating an existing grace period feature raises potential issues relating to the Employee Retirement Income Security Act of 1974 (ERISA). IRS Notice 2013-71 itself states that “the ability to eliminate a grace period provision previously adopted for the plan year in which the amendment is adopted may be subject to non-Code legal constraints.”
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Tax and Planning Impact of Supreme Court’s Ruling in the Defense of Marriage Act (DOMA) Same-Sex Marriage Rights Case
Background
On June 26, 2013, the U.S. Supreme Court ruled on a landmark case related to same-sex marriage (SSM) (United States v. Windsor). The 5-4 decision changes the application of federal tax rules for married same-sex couples. Generally, the ruling should enable same-sex married couples to obtain the same treatment under federal rules as has been available to heterosexual married couples. Federal agencies are working on issuing guidance on the effect of the Windsor decision, including whether federal rules treat a couple as married based on the state of celebration (where the marriage was performed) or state of domicile (where the couple lives). In late August, the IRS released guidance stating that for federal tax purposes, a marriage is recognized if validly entered into in a domestic or foreign jurisdiction that has the legal authority to sanction marriages. Thus, for federal tax purposes, the IRS is following the state of celebration rule to determine if a couple is married. The Departments of Labor, Defense and Homeland Security have also adopted a state of celebration rule. However, it is important to realize that the Social Security Administration, by law, currently uses a state of domicile rule.
Same-sex couples who have not been legally married are unaffected by this ruling until their marital status is legally changed according to domestic or foreign country law.
This discussion will provide:
- An overview of the Supreme Court’s decision and what it may mean for you;
- Considerations with respect to estate, retirement, income tax, and health and welfare benefits plans; and
- Actions to consider with respect to long-term planning and tax return preparation.
Tax Implications
Federal tax treatment now available to legally married same-sex couples includes:
- Joint filing of federal income tax returns
- Amending of prior tax returns
- Pre-tax basis of employer-provided health-care benefits
- Deductible and includable alimony
- Income tax-free transfers between spouses
- Lifetime gift tax-free property transfers to spouses
- Estate tax relief for surviving spouses
- Spousal IRA contributions, rollovers, required minimum distributions
Filing of Tax Returns
Guidance from the IRS issued in August 2013 provides that any original return, amended return, claim for refund or credit, filed on or after September 16, 2013 by a same-sex married taxpayer must use a married filing status. So the married filing joint or married filing separately status, must be used for 2013 returns and beyond.
Amending of Tax Returns
Consideration should be given to amending federal income tax returns and gift and estate tax returns (for years that are still open under the tax law’s statute of limitations) to change marital and filing status and other information that will alter the tax calculations and potentially result in a lower tax liability. State tax implications also should be reviewed. Returns may be amended to correct filing status, dependents, income, deductions, or tax credits. Couples may want to estimate the income tax liability that would have been due in previous years if the couple had been able file a joint return. Even basic items are impacted, such as standard deductions, child-related tax credits, and phase-outs of certain benefits, such as the education expense deduction. Another example of a tax change is where one spouse could have had capital losses on investments in prior years that the other spouse’s gains would offset if they could have filed joint federal returns. However, the “marriage penalty” could be applicable for some couples and the married filing joint or married filing separate filing status may result in a higher tax liability, especially high-earning couples where both spouses are working. Each situation will need to be reviewed carefully. The guidance from the IRS does not require the filing of amended returns for 2012 and earlier years.
Excludable Employer-Provided Fringe Benefits
Employer-provided fringe benefits for the same-sex spouse of an employee will now be excludable from gross income. Employers should stop including this benefit in income as of September 16, 2013. The IRS issued guidance on September 23, 2013, on how employers can claim a refund of Social Security and Medicare taxes that they and the employee paid on these benefits for prior years, as well as amounts withheld during the current tax year.
Also, now that taxes should no longer be a factor, some couples may want to re-evaluate their health insurance choices. One spouse may now be able to move onto the other’s more generous plan, which may also be more affordable. You should check with your employer to see if perhaps an open enrollment period was created for this purpose.
Also, even if not changing health plans, you can file an amended return to obtain a refund of taxes you paid on those benefits in previous years that are still open for amending (generally returns filed within the last three years). We can discuss this option with you in more detail so you can see the tax effect of other changes that would occur on the amended return when you change your filing status.
Adoption Credit
Some couples will need to consider the impact of amending past returns on the adoption tax credit and whether the change in federal filing status will have an impact on the credit.
Deductible and Includable Alimony
Married same-sex couples who later divorce should be able to take a deduction for alimony, which would be includable in the income of the recipient. Previously married same-sex couples who are now divorced may be able to amend returns for the same reason.
Income Tax-Free Transfers of Property Between Spouses
Gain or loss should not be recognized on the transfer of property between same-sex spouses or between former spouses incident to a divorce. It remains unclear how previous transfers and the basis of those assets will be affected. The IRS may issue further guidance on this point.
Gift and Estate-Tax Free Transfers/Unlimited Marital Deduction
Married same-sex couples may claim the unlimited marital deduction for federal estate and gift tax purposes, allowing a spouse to transfer an unrestricted amount of assets to his or her spouse at any time, including at the death of the transferor, free from gift and estate taxes. The unlimited marital deduction is considered an estate preservation tool because assets can be distributed to a surviving spouse without incurring estate or gift tax liabilities. Some couples that set up trusts to avoid double taxation on assets being passed along to their partners may find that a trust is no longer necessary now that assets can be passed directly to a spouse tax-free. Others may want to update their trusts to give their spouses tax-free access to the trust’s income or principal, an option this is now available to married same-sex couples.
In addition, married same-sex couples can now elect to split gifts in order to take advantage of doubled annual gift tax exclusion ($14,000 for 2013, for a total tax-free gift of $28,000). Married same-sex couples may also share assets without being subject to gift taxes. For example, prior to the ruling, couples that owned a house together but did not equally split mortgage payments and other expenses may have had those expenses covered by one spouse be subject to gift taxes if they exceeded $14,000 annually. Now that same-sex marriages are recognized for federal tax purposes, some married same-sex couples may feel more comfortable adding their spouse’s name to the property title, knowing that they have more flexibility on how they choose to split those expenses and with no gift tax implications.
Portability of Unused Estate Tax Exemption Amount
The American Taxpayer Relief Act of 2012 extended permanently the concept of portability, which generally allows the estate of a surviving spouse to utilize the unused portion of the estate tax applicable exclusion amount ($5.1 million in 2012, and $5.25 million in 2013) of his or her last predeceased spouse. Now, the surviving spouse of a married same-sex couple can take advantage of portability of the unused estate tax exemption amount of his or her deceased spouse.
Related Party Rules
Same-sex married couples who are now considered married for federal income and gift and estate purposes are subject to related party rules. This could impact the tax consequences of transactions between same-sex spouses. Prior to this ruling, married same-sex couples were treated for tax purposes as not related for certain transactions such as selling property between them and recognizing a loss. After this ruling, recognition of this same loss would not be allowed under the related party rules.
Spousal IRA Contributions, Rollovers, and Required Minimum Distribution
Married same-sex couples now have many more retirement plan options and issues to consider, including spousal IRAs, contributions, beneficiary designations, rollovers, and required minimum distribution (RMD) rules. Married same-sex couples with the only beneficiary a spouse who is more than 10 years younger can now use the joint table rather than the “uniform table” for distributions. A surviving spouse can now consider whether to make a spousal rollover of a deceased spouse’s IRA or 401(k). The IRS has promised further guidance regarding both prospective and retroactive changes to pension plans, IRAs and retirement distributions.
Other Federal Benefits
In addition, below are some of the federal benefits or protections that may now be available to legally married same-sex couples:
- Social Security, Medicare, and Medicaid benefits
- Certain veterans benefits, such as pensions and survivor’s benefits
- Military spousal benefits
- Family medical leave rights
- Spousal visas for foreign national spouses
- Private pension benefit options (e.g., survivor annuities)
- Application of the thresholds for the tax penalties and health insurance subsidies available under the Patient Protection and Affordable Care Act
Income and Estate and Gift Tax Planning Issues
Some of the specific individual income tax and estate and gift tax planning issues that may be impacted and should be considered are:
- Income Tax Planning Issues
- Joint tax returns
- Amended income tax returns
- Estimated tax payments for 2013
- Income tax returns beyond the statute of limitations
- Rollover IRAs at death
- Spousal IRA contributions and rollovers
- IRA required minimum distributions
- Review of the designated beneficiary on retirement and other benefits provided by an employer
- Divorce tax issues
- Application of the adoption tax credit
- Estate & Gift Tax Planning
- Updated estate plans and documents
- Inter vivos gifts
- Amended gift tax returns
- Gift and estate tax returns beyond the statute of limitations
- Portability of unused applicable lifetime exemption
- Grantor trusts
- Spousal rollover
- Beneficiary designations
- Retirement plans
- Community property rules
- Marital Agreements
Guidance From the Federal Government
The Supreme Court’s DOMA ruling generally means that married same-sex couples are entitled to the same federal benefits as heterosexual couples, but it does not necessarily make financial planning and tax compliance for married same-sex couples less complicated. Also, it may take time to fully implement the Supreme Court’s decision. Marriage is the “trigger” for more than 1,000 tax and benefit provisions in the Tax Code and other federal statutes.
Federal government agencies, including the Treasury Department and Internal Revenue Service, will continue to review and modify rules and regulations. Employers will need to review and revise their policies and procedures regarding benefits and withholding. Married same-sex couples will need to consider the new rules and policies, including their tax situation. Affected couples should consider updating their estate plans based upon the estate and gift tax impact, as well as their financial plans.
There may be some state tax issues to address as well. For example, federal employees may be entitled to certain benefits that others are not, and states likely will need to clarify what the state tax treatment is if the state does not recognize same-sex marriage. Also, for couples living in states that do not recognize same-sex marriage, the state will likely provide guidance on how to obtain the federal tax amounts to file state income tax returns.
It is expected that the IRS publications and website information that provide guidance to married individuals will be revised.
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IRA and Retirement Plan Limits for 2014
| The release of the 2014 limits is a reminder to make sure you maximize your 2013 contributions before December 31, 2013 in addition to starting your 2014 planning. | |||||||||||||||||||||||||||||||||||
| IRA contribution limits The maximum amount you can contribute to a traditional IRA or Roth IRA in 2014 remains unchanged at $5,500 (or 100% of your earned income, if less). The maximum catch-up contribution for those age 50 or older in 2014 is $1,000, also unchanged from 2013. (You can contribute to both a traditional and Roth IRA in 2014, but your total contributions can’t exceed this annual limit.)Traditional IRA deduction limits for 2014 The income limits for determining the deductibility of traditional IRA contributions have increased for 2014 (for those covered by employer retirement plans). For example, you can fully deduct your IRA contribution if your filing status is single/head of household, and your income (“modified adjusted gross income,” or MAGI) is $60,000 or less (up from $59,000 in 2013). If you’re married and filing a joint return, you can fully deduct your IRA contribution if your MAGI is $96,000 or less (up from $95,000 in 2013). If you’re not covered by an employer plan but your spouse is, and you file a joint return, you can fully deduct your IRA contribution if your MAGI is $181,000 or less (up from $178,000 in 2013).
*If you’re not covered by an employer plan but your spouse is, your deduction is limited if your MAGI is $181,000 to $191,000, and eliminated if your MAGI exceeds $191,000. Roth IRA contribution limits for 2014 The income limits for Roth IRA contributions have also increased. If your filing status is single/head of household, you can contribute the full $5,500 to a Roth IRA in 2014 if your MAGI is $114,000 or less (up from $112,000 in 2013). And if you’re married and filing a joint return, you can make a full contribution if your MAGI is $181,000 or less (up from $178,000 in 2013). (Again, contributions can’t exceed 100% of your earned income.)
Employer retirement plans The maximum amount you can contribute (your “elective deferrals”) to a 401(k) plan in 2014 remains unchanged at $17,500. The limit also applies to 403(b), 457(b), and SAR-SEP plans, as well as the Federal Thrift Savings Plan. If you’re age 50 or older, you can also make catch-up contributions of up to $5,500 to these plans in 2014 (unchanged from 2013). (Special catch-up limits apply to certain participants in 403(b) and 457(b) plans.) If you participate in more than one retirement plan, your total elective deferrals can’t exceed the annual limit ($17,500 in 2014 plus any applicable catch-up contribution). Deferrals to 401(k) plans, 403(b) plans, SIMPLE plans, and SAR-SEPs are included in this limit, but deferrals to Section 457(b) plans are not. For example, if you participate in both a 403(b) plan and a 457(b) plan, you can defer the full dollar limit to each plan–a total of $35,000 in 2014 (plus any catch-up contributions). The amount you can contribute to a SIMPLE IRA or SIMPLE 401(k) plan in 2014 is $12,000, unchanged from 2013. The catch-up limit for those age 50 or older also remains unchanged at $2,500.
Note: Contributions can’t exceed 100% of your income. The maximum amount that can be allocated to your account in a defined contribution plan (for example, a 401(k) plan or profit-sharing plan) in 2014 is $52,000 (up from $51,000 in 2013), plus age-50 catch-up contributions. (This includes both your contributions and your employer’s contributions. Special rules apply if your employer sponsors more than one retirement plan.) Finally, the maximum amount of compensation that can be taken into account in determining benefits for most plans in 2014 has increased to $260,000, up from $255,000 in 2013; and the dollar threshold for determining highly compensated employees remains unchanged at $115,000. |
IRS provides guidance for recognition of same-sex marriages
IRS recently ruled (Rev. Rul. 2013-17) that all legal same-sex marriages will be recognized for Federal Tax purposes. This applies to all taxes including: income, gift and estate taxes. That would include qualified retirement plans and other employee benefits. The determination is based on the status under the laws of the state where the marriage was established. This is the rule even if the state of their domicile does not recognize the marriage.
The ruling does not apply to registered domestic partnerships, civil unions or similar relationships recognized under state law that are not denominated as marriages. Currently Illinois has authorized civil unions but does not denominate them as marriages. Individuals that have had a civil union in Illinois are not considered married for Federal tax purposes.
The ruling was triggered by the recent decision of the Supreme Court in “United States v. Windsor”. That case ruled that a portion of the “Defense of Marriage Act “ (DOMA) relating to the definition of “marriage’ was unconstitutional.
Following are excerpts from the ruling:
“There are more than two hundred Code provisions and Treasury regulations relating to the internal revenue laws that include the terms ‘spouse’, ‘marriage’ …” husband and/or wife. “The Service concludes that gender-neutral terms in the Code that refer to marital status, such as ‘spouse’ and ‘marriage, ‘include, respectively, (1) an individual married to a person of the same sex if the couple is lawfully married under state law, and (2) such a marriage between “individuals of the same sex.”
“Given our increasingly mobile society, it is important to have a uniform rule of recognition that can be applied with certainty by the Service and taxpayers alike for all Federal tax purposes. Those overriding tax administration policy goals generally apply with equal force in the context of same-sex marriages.”
“For Federal tax purposes, the Service adopts a general rule recognizing a marriage of same-sex individuals that was validly entered into in a state whose laws authorize the marriage of two individuals of the same sex even if the married couple is domiciled in a state that does not recognize the validity of same-sex marriages.”
“Except as provided below, affected taxpayers also may rely on this revenue ruling for the purpose of filing original returns, amended returns, adjusted returns, or claims for credit or refund for any overpayment of tax resulting from these holdings, provided the applicable limitations period for filing such claim under section 6511 has not expired. If an affected taxpayer files an original return, amended return, adjusted return, or claim for credit or refund in reliance on this revenue ruling, all items required to be reported on the return or claim that are affected by the marital status of the taxpayer must be adjusted to be consistent with the marital status reported on the return or claim.”
Taxpayers may rely (subject to the conditions in the preceding paragraph regarding the applicable limitations period and consistency within the return or claim) on this revenue ruling retroactively with respect to any employee benefit plan or arrangement or any benefit provided there under only for purposes of filing original returns, amended returns, adjusted returns, or claims for credit or refund of an overpayment of tax concerning employment tax and income tax with respect to employer-provided health coverage benefits or fringe benefits that were provided by the employer and are excludable from income under sections 106, 117(d), 119, 129, or 132 based on an individual’s marital status. For purposes of the preceding sentence, if an employee made a pre-tax salary-reduction election for health coverage under a section 125 cafeteria plan sponsored by an employer and also elected to provide health coverage for a same-sex spouse on an after-tax basis under a group health plan sponsored by that employer, an affected taxpayer may treat the amounts that were paid by the employee for the coverage of the same-sex spouse on an after-tax basis as pre-tax salary reduction amounts.”
IRS recognizes marriaged based on state of the ceremony
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DOMA RULING POTENTIAL TAX IMPACT
The Supreme Court’s Ruling in the Defense of Marriage Act (DOMA) Same-Sex Marriage Rights Case impact planning.
Background
On June 26, 2013, the U.S. Supreme Court ruled on a landmark case related to same-sex marriage (SSM) (United States v. Windsor). The 5-4 decision increases the federal tax (and non-tax) benefits available to married same-sex couples. The ruling affords same-sex couples, who are married and reside in a state which recognizes same-sex marriages, with the same federal rights and obligations (including tax benefits and rules) as heterosexual married couples. As discussed further at the end of this letter, there are many remaining issues that need to be clarified, including if and how the right to federal benefits will be protected when a couple marries in a state where same-sex marriage is legal, then moves to a state where the marriage is not recognized. For many of the possible impacts of this ruling mentioned below in this letter, it may depend on how the federal government interprets the decision and modifies the rules. The IRS is already working on clarifying guidance, so we expect to know more details in the coming months.
Same-sex couples who have not been legally married are unaffected by this ruling until their marital status is legally changed according to state or foreign country law.
The case has broad federal tax planning and compliance implications. This letter will provide:
- An overview of the Supreme Court’s decision and what it may mean for you;
- Considerations with respect to estate, retirement, income tax, and health and welfare benefits plans; and
- Actions to consider with respect to long term planning and tax return preparation.
Tax Implications
Tax benefits that may now be available to and issues facing legally married same-sex couples include:
- Joint filing of federal income tax returns
- Amending of prior tax returns
- Filing of protective refund claims
- Pre-tax basis of employer-provided health-care benefits
- Deductible and includable alimony
- Income tax-free transfers between spouses
- Lifetime gift tax-free property transfers to spouses
- Estate tax relief for surviving spouses
- Spousal IRA contributions, rollovers, required minimum distributions
Filing of Tax Returns
Following the decision, same-sex couples that the federal tax law now recognizes as married may have the option or even be required to use married filing joint or married filing separate filing status. Filing joint returns may also allow married same-sex couples to exclude up to $500,000 of gain from gross income on the sale of a principal residence, as opposed to $250,000 for unmarried individuals. Married same-sex couples with foreign assets may want to reconsider their foreign information reporting requirements as filing thresholds for a married couple are often lower than the combined filing thresholds for two unmarried individuals and constructive ownership rules apply to spouses.
Amending of Tax Returns
Consideration should be given to amending federal income tax returns and gift and estate tax returns (for years that are still open under the tax law’s statute of limitations) to change marital and filing status and other information that will alter the tax calculations and potentially result in a lower tax liability. State tax implications also should be reviewed. Returns may be amended to correct filing status, dependents, income, deductions, or tax credits. Couples may want to estimate the income tax liability that would have been due in previous years if the couple had been able file a joint return. Even basic items are impacted, such as standard deductions, child-related tax credits, and phase-outs of certain benefits, such as the education expense deduction. Another example of a tax change is where one spouse could have had capital losses on investments in prior years that the other spouse’s gains would offset if they could have filed joint federal returns. However, the “marriage penalty” could be applicable for some couples and the married filing joint or married filing separate filing status may result in a higher tax liability, especially high-earning couples where both spouses are working. Each situation will need to be reviewed carefully.
Amending returns most likely means that both spouses need to amend. It is likely that one spouse will owe taxes (and interest) and the other will receive a refund. Upcoming IRS guidance may indicate how these returns are to be filed, such as with some explanation or filed together. IRS guidance may indicate whether amended returns are required or optional.
Filing of Protective Refund Claims
If the right to a refund is contingent on future events (including issuance of guidance by the IRS) and is not determinable until after the time period for amending returns expires, a taxpayer can file a protective claim for refund. The claim is often based on current litigation (constitutionality); expected changes in tax law; changes in legislation, or regulations. A protective claim preserves the right to claim a refund when the contingency is resolved. Generally, the IRS allows taxpayers to amend returns for up to three years after the filing deadline or up to two years after the taxes are paid. Some couples may have more time if they filed protective claims for previous tax years that would give them an extension for amending returns. If the statute is soon expiring on an extended return or estate tax return, we should discuss immediately the possibility of filing a protective refund claim, even if the forthcoming IRS guidance is not yet issued.
Excludable Employer-Provided Fringe Benefits
Employer-provided fringe benefits used by the same-sex spouse of an employee should also be excludable from gross income. Now that taxes should no longer be a factor, some couples may want to re-evaluate their health insurance choices. One spouse may now be able to move onto the other’s more generous plan, which may also be more affordable.
Also, even if not changing health plans, some couples may be able to file an amended return to collect the taxes they may have paid on those benefits in previous years. Consideration should be given to claiming refunds of overpaid income and payroll taxes based on previous denial of tax-free extensions of employer-provided medical and dental benefits.
Adoption Credit
Some couples may want to consider any adoption tax credit and whether a change in federal filing status will have an impact on the credit.
Deductible and Includable Alimony
Married same-sex couples who later divorce should be able to take a deduction for alimony, which would be includable in the income of the recipient.
Income Tax-Free Transfers of Property Between Spouses
In addition, gain or loss should not be recognized on the transfer of property between same-sex spouses or between former spouses incident to a divorce.
Gift and Estate-Tax Free Transfers/Unlimited Marital Deduction
Married same-sex couples should be able to claim the unlimited marital deduction for federal estate and gift tax purposes, allowing a spouse to transfer an unrestricted amount of assets to his or her spouse at any time, including at the death of the transferor, free from gift and estate tax. The unlimited marital deduction is considered an estate preservation tool because assets can be distributed to surviving spouses without incurring estate or gift tax liabilities. Some couples that set up trusts to avoid double taxation on assets being passed along to their partners may find that a trust is no longer necessary now that assets can be passed directly to a spouse tax-free. Others may want to update their trusts to give their spouses tax-free access to the trust’s income or principal, an option this is now available to married same-sex couples.
In addition, married same-sex couples should be able to elect to split gifts in order to take advantage of a doubled annual gift tax exclusion ($14,000 for 2013, for a total tax-free gift of $28,000). The ruling could also make it possible for married same-sex couples to share assets without being subject to gift taxes. For example, prior to the ruling, couples that owned a house together but did not equally split mortgage payments and other expenses may have had those expenses covered by one spouse be subject to gift taxes if they exceeded $14,000 annually. Now that those marriages are recognized by the federal government, some married same-sex couples may feel more comfortable adding spouses name to the property title, knowing that they have more flexibility on how they choose to split those expenses and with no gift tax implications.
Portability of Unused Estate Tax Exemption Amount
The American Taxpayer Relief Act of 2012 extended permanently the concept of portability, which generally allows the estate of a surviving spouse to utilize the unused portion of the estate tax applicable exclusion amount ($5.1 million in 2012, and $5.25 million in 2013) of his or her last predeceased spouse. Now, the surviving spouse of a married same-sex couple should be able to take advantage of portability of the unused estate tax exemption amount of their deceased spouse.
Related Party Rules
Same- sex married couples who are now considered married for federal income and gift and estate purposes are subject to related party rules. This could impact the tax consequences of transactions between same-sex spouses. Prior to this ruling, married same-sex couples were treated for tax purposes as not related for certain transactions such as selling property between them and recognizing a loss. After this ruling, recognition of this same loss would not be allowed under the related party rules.
Spousal IRA Contributions, Rollovers, and Required Minimum Distribution
Married same-sex couples now have many more retirement plan options and issues to consider, including spousal IRAs, contributions, beneficiary designations, rollovers, and required minimum distribution (RMD) rules. Married ame-sex couples with the only beneficiary a spouse who is more than 10 years younger can now use the joint table rather than the “uniform table” for distributions. A surviving spouse can now consider whether to make a spousal rollover of a deceased spouse’s IRA or 401(k).
Other Federal Benefits
In addition, below are some of the federal benefits or protections that may now be available to legally married same-sex couples:
- Social Security, Medicare, and Medicaid benefits
- Certain veterans benefits, such as pensions and survivor’s benefits
- Military spousal benefits
- Family medical leave rights
- Spousal visas for foreign national spouses
- Private pension benefit options (e.g., survivor annuities)
- Application of the thresholds for the tax penalties and health insurance subsidies available under the Patient Protection and Affordable Care Act
Income and Estate and Gift Tax Planning Issues
Some of the specific individual income tax and estate and gift tax planning issues that may be impacted and should be considered are:
- Income Tax Planning Issues
- Joint tax returns
- Amended income tax returns
- Income tax returns beyond the statute of limitations
- Rollover IRAs at death
- Spousal IRA contributions and rollovers
- IRA required minimum distributions
- Divorce tax issues
- Application of the adoption tax credit
- Estate & Gift Tax Planning
- Updated estate plans and documents
- Inter vivos Gifts
- Amended gift tax returns
- Gift and estate tax returns beyond the statute of limitations
- Portability of unused applicable lifetime exemption
- Grantor trusts
- Spousal rollover
- Beneficiary designations
- Retirement plans
- Community property rules
- Marital Agreements
IRS Guidance Expected Soon
The Supreme Court’s DOMA ruling means that married same-sex couples are entitled to the same federal benefits as heterosexual couples, but it does not necessarily make financial planning and tax compliance for married same-sex couples less complicated. Even though federal benefits are immediately extended, it may take some time to fully implement the Supreme Court’s decision. Marriage is the “trigger” for more than 1,000 tax and benefit provisions in the Tax Code and other statutory provisions.
Federal government agencies, including the Treasury Department and Internal Revenue Service, will need to review and modify rules and regulations. Employers will need to review and revise their policies and procedures regarding benefits and withholding. Married same-sex couples will need to consider the new rules and policies, including their tax situation. Affected couples should consider updating their estate plans based upon the estate and gift tax impact, as well as their financial plans.
One tax issue to be addressed is the reality that at least 30 tax rules use the term “husband and wife” rather than married couple or spouses. Another issue to resolve is whether the federal tax law treats a couple as married based on the law of the state of celebration (where the marriage was performed) or the state of domicile (where the couple resides). The answers may not be the same for the federal tax law and Social Security law. This may be a matter that Congress may need to address rather than the IRS.
There may be some state tax issues to address as well. For example, federal employees may be entitled to certain benefits that others are not, and states likely will need to clarify what the state tax treatment is if the state does not recognize same-sex marriage. Also, if the federal tax law uses the state of celebration to determine if a married same-sex couple is married and the state of domicile does not respect that, the state will need to provide guidance on how to convert the federal joint return to separate state returns.
The day after the ruling, on June 27, 2013, IRS issued a statement that it will “move swiftly to provide revised guidance in the near future,” so we will keep you informed when such guidance is issued and what you should consider doing based on that guidance. We expect that various IRS publications and website information that provide guidance to married individuals will likely be revised.
It may take longer than expected for the IRS to respond. The IRS has been given increased responsabilities and the congressional budget process reduced their funding. With reduced staff and training any resources they devote to these matter will reduce their ability to administer the tax laws that Congress has passed.
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There’s Still Time to Contribute to an IRA for 2012
There’s still time to make a regular IRA contribution for 2012! You have until your tax return due date (not including extensions) to contribute up to $5,000 for 2012 ($6,000 if you were age 50 by December 31, 2012). For most taxpayers, the contribution deadline for 2012 is April 15, 2013.
You can contribute to a traditional IRA, a Roth IRA, or both, as long as your total contributions don’t exceed the annual limit. You may also be able to contribute to an IRA for your spouse for 2012, even if your spouse didn’t have any 2012 income.
Traditional IRA
You can contribute to a traditional IRA for 2012 if you had taxable compensation and you were not age 70½ by December 31, 2012. However, if you or your spouse was covered by an employer-sponsored retirement plan in 2012, then your ability to deduct your contributions may be limited or eliminated depending on your filing status and your modified adjusted gross income (MAGI) (see table below). Even if you can’t deduct your traditional IRA contribution, you can always make nondeductible (after-tax) contributions to a traditional IRA, regardless of your income level. However, in most cases, if you’re eligible, you’ll be better off contributing to a Roth IRA instead of making nondeductible contributions to a traditional IRA.
2012 income phaseout ranges for determining deductibility of traditional IRA contributions:
1. Covered by an employer-sponsored plan and filing as:
a. Your IRA deduction is reduced if your MAGI is:
Single/Head of household: $58,000 to $68,000
Married filing jointly: $92,000 to $112,000
Married filing separately: $0 to $10,000
b. Your IRA deduction is eliminated if your MAGI is:
Single/Head of household: $68,000 or more
Married filing jointly$112,000 or more
Married filing separately: $10,000 or more
2. Not covered by an employer-sponsored retirement plan, but filing joint return with a spouse who is covered by a plan
a. Your IRA deduction is reduced if your MAGI is: $173,000 to $183,000
b. Your IRA deduction is eliminated if your MAGI is: $183,000 or more
Roth IRA
You can contribute to a Roth IRA if your MAGI is within certain dollar limits (even if you’re 70½ or older).
For 2012, if you file your federal tax return as single or head of household, you can make a full Roth contribution if your income is $110,000 or less. Your maximum contribution is phased out if your income is between $110,000 and $125,000, and you can’t contribute at all if your income is $125,000 or more.
Similarly, if you’re married and file a joint federal tax return, you can make a full Roth contribution if your income is $173,000 or less. Your contribution is phased out if your income is between $173,000 and $183,000, and you can’t contribute at all if your income is $183,000 or more. And if you’re married filing separately, your contribution phases out with any income over $0, and you can’t contribute at all if your income is $10,000 or more.
Even if you can’t make an annual contribution to a Roth IRA because of the income limits, there’s an easy workaround. If you haven’t yet reached age 70½, you can simply make a nondeductible contribution to a traditional IRA, and then immediately convert that traditional IRA to a Roth IRA. Keep in mind, however, that you’ll need to aggregate all traditional IRAs and SEP/SIMPLE IRAs you own–other than IRAs you’ve inherited–when you calculate the taxable portion of your conversion.
Finally, keep in mind that if you make a contribution to a Roth IRA for 2012–no matter how small–by your tax return due date, and this is your first Roth IRA contribution, your five-year holding period for identifying qualified distributions from all your Roth IRAs (other than inherited accounts) will start on January 1, 2012.
A financial plan is essential for you to know how to invest your money.
To over simplify, financial planning is how you manage your finances and establish a path to reaching your goals. Investment management is one part of managing your finances. It is the part that determines how your savings will be invested.
Financial planning starts with your goals. The amount and timing are critical. Prioritizing your financial goals is necessary. You can assign a priority of 1 to 10 or categorize your goals by what is needed, what is wanted and what is wished for. This will be essential as you monitor your progress. Life and unanticipated events are not controllable and may require adjustments. Adjustments may result in changes to your goals, the timing of your goals, or your spending.
A reserve fund is needed to absorb unexpected events. Reserves should be held so that they are quickly assessable, that is, liquid. Six months of reserve are generally recommended. As you approach each goal, the reserve fund should be increased. This will avoid the impact of fluctuating investment values when the funds are needed. The amount of liquid assets should be increased as you near retirement. This minimizes the need to sell investments when the market is depressed. Two years of liquid funds are generally recommended for retirees. A portion of the funds for living expenses in retirement might be held in short-term bond funds or bonds.
Investments are purchased with the amount of your savings that exceed your reserves. The amount that is used for investments must be sufficient to reach your goals. Education expenses and health care are two categories of expenses that have exceeded what people anticipated. Many people underestimate the amount they will need in retirement. Because life expectancy has increased and people have retired early, many people will not be able meet their retirement goals.
The planning process needs to consider the above events and your ability to withstand losses.
The above has touched on cash planning, investment planning, education planning, risk assessment and retirement planning. All the planning areas need to fit together. How you manage your investments is dependent on the other areas of your financial plan.
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