Fiduciary Problems and Traps

Understanding the New 3.8% Investment Income Tax

Richard Gaberman

Richard Gaberman

The new 3.8% tax on ‘passive’ income known as the Medicare tax, which was included in the Patient Protection and Affordable Care Act, will now affect individuals whose adjusted gross income, depending on marital and filing status, is more than $125,000, $200,000, or $250,000.
However, it does affect trusts and estates with adjusted gross income in excess of $11,950. Thus, it is more important than ever for the executor or trustee to determine the adjusted gross income for the individual beneficiaries in order to determine whether to distribute income from the estate or trust to such beneficiary to avoid the 3.8% tax if that beneficiary’s modified adjusted gross income is below his or her applicable threshold.

Some Basic Information
• This new tax was effective as of Jan. 1, 2013.
• The tax applies to all taxpayers whose income exceeds a certain ‘threshold amount.’
• With respect to individuals, the NIIT is equal to 3.8% of the lesser of (a) net investment income (NII) or (b) the excess (if any) of the modified adjusted gross income (MAGI) less the threshold amount. This is basically adjusted gross income but increased for certain items of an income and for the earned-income exclusion. The threshold amounts for individuals are $250,000 if married and filing jointly, $200,000 if single, and $125,000 if married but filing separately. These are not inflation-protected.
• With respect to estates and trusts, the NIIT is equal to 3.8% of the lesser of (a) the undistributed NII or (b) the excess (if any) of the adjusted gross income over the dollar amount at which the highest tax bracket begins for that taxable year. For 2013, the highest tax bracket applicable to estates and trusts starts at $11,950. The estate and trust threshold amount is inflation-protected.
• NII includes interest, dividends, annuity distributions (if taxable), rents, royalties, income derived from passive activity, and net capital gain derived from disposition of property. It does not include salary, wages or bonuses, distributions from IRAs or qualified plans, any income taken into account for self-employment-tax purposes, gain on a sale of an active interest in a partnership or S corporation, and items that are otherwise excluded or exempt from income under the income-tax laws, such as tax-exempt bond interest, capital gain excluded under IRC §121, and veterans’ benefits.
• The NIIT will be paid with Form 1040 or Form 1041. The NIIT is subject to estimated tax penalties.
• NII includes income and gains from trades and businesses that are either passive activities (within the meaning of IRC §469) or a trade or business of trading in financial instruments or commodities. Note that, under IRC §469(c)(1), passive activity is any activity involving a trade or business in which the taxpayer does not ‘materially participate.’ Thus, one needs to review the passive-activity rules. If the taxpayer does materially participate in the activity, then NIIT will not apply to that income. The IRS regulations describe material participation for individuals, but not for an estate or trust.
• Dispositions of an interest in partnerships and S corporations require advanced planning. If the taxpayer is not active in the business, the 3.8% tax will apply to the capital gains. Note that there are ways to avoid (or defer or reduce) the 3.8% tax. Examples would involve a charitable sale, an installment sale, a 1031 real-state exchange, and a sale to family members in lower tax brackets provided the later sale to a third party occurs after two years.
Also, with respect to estates and trusts, how does an estate or trust become active in a trade or business? The executor or trustee must be active in the trade or business. An active beneficiary (who is not a trustee) will not cause the estate or trust to be ‘active.’ For example, a mother is the trustee of the trust that owns a business, but the business owned by the trust is managed by her child, who is the beneficiary of that trust.

Estates and Trusts
• The estate trust that accumulates income will pay the income taxes attributable thereto unless and to the extent that such income is distributed to any beneficiaries thereof. Note that, if a beneficiary is below his own applicable threshold, then the estate/trust may avoid the 3.8% NIIT to the extent the NII is distributed to such beneficiary who, after that distribution, is still below his threshold.
• However, note that if an irrevocable trust is a ‘grantor trust,’ then all of the income of that trust is reportable by the grantor on his or her personal income-tax return.
• Trusts not subject to NIIT generally involve split-interest charitable trusts and grantor trusts. However, distributions from a charitable trust to a non-charitable beneficiary may carry out NII subject to the 3.8% tax.
• What about electing small-business trusts (ESBT)? Although the proposed regulations recognized the ESBT as separate trust funds for each beneficiary, it does require consolidation into a single trust for determining the adjusted gross income threshold amount.

Planning for Reducing NII
• Consider municipal bonds, a 1031 exchange, an installment sale, tax-deferred annuities; life insurance; ROTH IRA conversions (helps to reduce MAGI), rental real estate (due to the benefit of the depreciation deduction), and oil and gas investments (helps reduce MAGI).
• Regarding estate/trust distributions, principal issues include the executor and trustee fiduciary duties and liability when making distributions to one or more beneficiaries. From an income-tax-planning point of view, consider distributions to lower-income-tax-bracket beneficiaries to save income taxes that would otherwise be payable by the estate or trust which may be in a higher income-tax bracket. Consider distributions to beneficiaries who may not have to pay the 3.8% NIIT. You need to read the applicable provisions of the will or trust that governs the executor’s or the trustee’s right to make distributions to the beneficiaries. Also, although accumulated pre-2013 NII is exempt from the 3.8% NIIT, under the proposed regulations, the first NII being distributed to beneficiaries does not come from the pre-2013 NII income. It is deemed to come from 2013 or later NII first.
• The gain on the funding (pecuniary bequests) of a marital deduction and bypass trust may be subject to the 3.8% tax. The tax planning for estates and trusts is now more complicated due to the new 3.8% tax, the high 39.6% income tax rate, and the huge spread between the low $11,950 threshold for estates and trusts and the high threshold for individual beneficiaries. At the same time, the fiduciary must be aware of potential fiduciary liability when making or not making distributions to the beneficiaries. Read the will and trust documents, and seek the advice of a qualified attorney and accountant.

Richard M. Gaberman, Esq. is of counsel at Springfield-based Robinson Donovan, P.C. He has been recognized for 20 consecutive years by Best Lawyers in America in the practice areas of tax law, trusts and estate, real-estate law, and corporate law. He has also been recognized for 10 years by Super Lawyers for New England in the practice area of estate planning; (413) 732-2301;

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