President Obama stumped for office on the Robin Hood platform of taking from the rich and giving to the not-so-rich, and some of his early proposals indicate that he wasn't kidding. For advisors, that potentially throws a wrench into estate planning and other planning for clients.
Obama's proposed budget contains $1 trillion in tax hikes over the next decade on high-income families making more than $250,000. Among the highlights (or lowlights, depending on the viewpoint): the top rates on earned income would rise to 36% and 39.6% from 33% and 35% beginning in 2011; and personal exemption and itemized deductions would be limited above certain income levels.
In addition, the effective value of deductions would drop to 28% from as much as 35%, and capital gains tax rates would jump to 20% from 15%. Equally, or maybe even more important, is the uncertain fate of the estate tax.
Obama proposed freezing this year's estate tax rules into 2010, which upends rules from the Bush administration that repealed the tax next year followed by reinstating the tax in 2011. If enacted, the freeze would keep this year's exclusion on the first $3.5 million and tax the the rest at 45%. Beyond that, some observers believe the tax will be significantly reshaped, and perhaps not to the benefit of wealthy families.
"I'm growing concerned that the exemption may not be as liberal going forward," says Michael Foltz, a principal with Balasa Dinverno Foltz LLC in Itasca, Ill. "I'm worried that the estate tax exemption might be lowered."
On the whole, Foltz doesn't think this is the time to hike taxes on the rich. "The wealthy who pay the most tax are the ones driving capital raising decisions," he says "In many ways I feel it's counterproductive to tax the wealthy at higher than current rates because you want to provide more incentives for the wealthy to invest and generate economic activity."
Other advisors are wary, but say it's premature to rip up the game plan. "It's all quite speculative, so it's kind of hard to speculate on speculation," says Sherman Doll, a partner at Capital Performance Advisors in Walnut Creek, Calif. "At this point we're taking a wait and see approach on any serious tax changes that might impact how we can help our clients."
Doll says that over the past few years he's told clients about the window of opportunity to convert to Roth IRAs in 2010, as per current tax laws. "Part of that is knowing what the tax rate in future years will be," he says. "With the Roth conversion you either pay the tax in 2010 or in 2011 and 2012, but the tax rates could be higher in those years."
Martin Shenkman, an estate and tax planning attorney in Paramus, N.J., says one of the best ways to Obama-proof assets is through a grantor retained annuity trust (GRAT). GRATs are trusts that pay out an annuity to the donor for a fixed time period. When the term ends, what's left is passed on to a beneficiary.
Shenkman also recommends a perpetual dynasty trust, where assets held in a trust aren't transferred to a beneficiary, but instead are distributed to future generations. These are allowed in a handful of states.