Op-ed: Here’s how to position your portfolio today for higher taxes


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While it’s not guaranteed that taxes are going up for wealthy Americans, it does look likely.

To help fund the American Families Plan, the Biden Administration has proposed increasing capital gains taxes to 43.4%, including the net investment income surtax of 3.8%, from 23.8% for those who are making more than $1 million a year.

Additionally, the current estate, gift and generation skipping transfer tax exemption of $11.7 million is scheduled to drop by half to $5 million (inflation adjusted) at the end of 2025. However, Sen. Bernie Sanders, I-Vt., has proposed this amount be lowered to a $3.5 million exemption.

Any of these changes will make it much more difficult for those with large sums of wealth to transfer it to their beneficiaries in a tax-efficient manner.

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While politicians on Capitol Hill haggle over the details of the final tax legislation, it behooves all high-net-worth investors to evaluate proactive steps to plan for a world with higher taxes. Here are three strategies to consider today.

Capital gains recognition: Someone with large gains in their portfolio may consider recognizing the gains now in order to potentially lock in the lower capital gain tax rate of 23.8%. It’s important to note that if the Biden tax proposal is enacted in its current form, investors will be hit with the higher tax rate retroactively as of April 2021.

But the solution for many will be to time gains over several years to stay below the $1 million income threshold where the higher capital gains rates apply.

A better strategy may be to comb through your accounts for investments that have been duds. Investors with a diversified portfolio likely have some positions that have underperformed. They’ve been sitting in your account for years.

Now may be a good opportunity to recognize the losses, utilizing them to help offset large capital gains and avoid the higher tax rate on some of their investments.

Donor-advised funds: For those who are charitably inclined, a DAF is another way to shield gains from taxes. A DAF is a fund that is set up to manage charitable assets. Investors can contribute highly appreciated securities, real estate and even some cryptocurrencies to a DAF.

When the contribution is made, it’s not subject to capital gains taxes and the donor gets a tax deduction at the current fair-market value. Under current law, you may qualify for a charitable contribution deduction to offset the income at the maximum income tax rates.

As an example, a client is looking to rebalance their taxable account and sell some highly appreciated stocks. Instead of recognizing the gains, they may consider donating a portion to a DAF.

This will accomplish several goals for the investor simultaneously: bring their portfolio back to its intended allocation, sidestep capital gains tax, receive a tax deduction and allow them to contribute to the charity of their choice.

Spousal Lifetime Access Trust: Sanders has proposed reducing the estate tax exemption to $3.5 million from $11.7 million per person and raise the estate tax rate to 65% from 40%. This means a family with a nest egg larger than $7 million could owe a substantial estate tax upon a death.

One estate-planning strategy is to take advantage of the current high exemption amount and gift up to $11.7 million per spouse to an irrevocable trust. Those assets may grow outside of one’s estate, thereby escaping estate taxes.

One of the drawbacks of using some traditional irrevocable trust is the lack of access. If you set up a trust for your kids, you cannot benefit from it.  The assets may be outside your estate, but most people cannot afford to gift millions to a trust if they cannot access the money if needed.

However, a popular technique called a SLAT allows married couples to create an irrevocable trust for the benefit of one another. In such a strategy, they will each be a beneficiary of the other’s trust.

Executed today, such a strategy could allow one couple to protect up to $23.4 million of assets from the proposed higher estate taxes, plus savings on the potential growth that takes place after the gift.

Naturally, consulting a competent attorney and other financial experts is essential to properly executing this type of strategy.

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