Law News and Tips
Fred L. Vilbig © 2018
It’s spring – at least according to the calendar. And for a lot of people, that means it’s time to start house hunting. If you’re going to move, early summer is probably the best time since the kids will be out of school and the weather should be okay. We’ve moved in February, and that was pretty unpleasant. So what’s involved in finding a house, getting a loan, and closing the deal? I’m going to focus on the contract. I am an attorney after all.
Most people work with a realtor. Realtors help buyers meet sellers. Some people already know each other, so a realtor may not be necessary there, but they can be helpful.
Once you find a home, you need a real estate contract. There is a standard residential form that realtors and most attorneys use, and it covers most situations. If there is something unique about your deal, there are places to include that.
The contract talks about financing. If you’re paying cash or don’t need to worry about financing, you can just check a box. Most people, however, need to find financing, so you can check the other box. You need to put in some limits on the loan amount and the interest rate to protect yourself, but that should be pretty easy to figure out. You just don’t want to have to close if you don’t get the loan you need to.
There are all kinds of riders (attachments) you can add, and a realtor or a real estate lawyer can help you wade through those. They can be pretty important depending on the deal.
You’re going to want to get title insurance. What that does is it protects you against buying a problem. Maybe the seller doesn’t really own the property; maybe there are easements that will keep you from using the property the way you want; or maybe the fence or driveway is on your neighbor’s property.
That last point brings up the survey. A regular title policy includes exceptions to coverage regarding survey matters. Your bank may require a “survey,” but it probably is what we call a “drive-by survey.” The surveyor can literally drive by the property and never get out of their car. Title companies won’t delete the survey exceptions without what we call a “stake-in-the-ground” survey. So be careful.
And if you’re buying a previously owned home, you’re going to want to insist on a detailed inspection. There never perfect, but they give you your best protection.
And something else for buyers to remember: your real estate agent gets paid when the deal closes; and the more the purchase price, the more they get paid. I know they are supposed to be working for you, but there is a built-in conflict of interest. Just something to think about.
The first consultation is free. Or call him now at (314) 241-3963
PLANNING FOR DIGITAL ASSETS
Fred L. Vilbig © 2018
As I’m writing this, Mark Zuckerberg, the CEO of Facebook, is in the middle of testifying before Congress about a data breach of some sort. To be honest, I haven’t really been following all of the reports on this situation, so I won’t pretend to understand what all is involved in this. But I do know that Americans have surrendered a huge amount of privacy to digital businesses. One study found that even with your cell phone off, the GPS on your phone can still track almost everywhere you go. And people put all kinds of personal stuff on line, and it really isn’t private.
That started me thinking about estate planning for your digital assets. More and more of our financial information is on line. Most people buy things on line which requires using credit cards or debit cards. Some people pay bills on line. A lot of people do on-line banking. And then people have all kinds of social media accounts that may have private information or pictures on them.
The question is, what happens to all of that when you die? I’ve had widows and widowers who knew their deceased spouse’s username and password. They have continued to use the deceased spouse’s accounts for quite some time after their death, even investment accounts. I understand the practicality of that, but I don’t endorse it.
The problem arises when no one knows the decedent’s username and password (or whatever the access procedure calls for). There are lots of digital pirates sailing the virtual sea. It’s not uncommon for one of those pirates to commandeer a digital account, steal the information, and run up bills. Your estate in the end might not end up being liable for those, but it can create a real headache for your personal representative or trustee (your “fiduciary”).
So what’s a person to do? First, you need to pick a fiduciary who has some working knowledge of digital finance and social media. They need to be comfortable working in the digital world. You have to name them in your will or trust. It may be that you want to have one fiduciary to handle your regular assets and another to handle the digital assets. Your call.
Next (or maybe even simultaneously) you need to make a list of your digital accounts, the user name, and the password. If a particular digital account has some special access procedure, you need to include that information on your list. The problem with all of this is that I end up changing usernames and passwords fairly frequently. In particular, I forget passwords and have to change them. So this list needs to be fairly accessible.
There are apps you can use to store all of that information. I am not endorsing any of these, but the ones I have heard about are PasswordBox, PasswordSafe, and SecureSafe.There are many more. If you’re old fashioned (or tech-challenged) like me, then maybe having a paper list in a safe or a Word document on your computer can work too. Just make sure that your digital fiduciary knows how to access that information. I’ve put a sample table at the end of this blog if you want to use that.
And when you’re doing all of this, be sure to investigate the particular terms and conditions of the digital accounts. For instance, Facebook has a way of deleting digital information or notifying certain people you have designated if your account remains inactive too long. Google has something similar. Twitter is much more draconian: it requires, among other things, a death certificate, a government issued ID, and a signed statement from a personal representative (which may require that you open a probate estate).
So planning for digital assets does require work, but besides the basic will or trust, it is work that you have to do. If you have any questions, contact me.
DIGITAL ACCOUNT LIST
|Digital Account||Username||Password||Special Instructions|
TAXES AND DEATH
Fred L. Vilbig © 2018
Tax Day is just around the corner.For those getting refunds, the date is probably irrelevant. You’ve probably already filed your tax return, deposited your refund check, and bought that big screen TV.
Tax Day is much more relevant for those who still owe some taxes. They may still be gathering information for their preparer.They most certainly are trying to figure out where they are going to get the money to pay the remaining taxes due.And they resent the fact that it costs probably over 50% of their earned income to be an American.
Yes, between state and federal income taxes, personal property tax, real estate tax, and sales tax, a number of people pay over 50% of their income in taxes.Sure there may be some who can avoid paying some of their taxes by making certain investments and things, but that is a very small number of people. The vast majority of American citizens don’t have those kinds of options. They have to work for a living, and so they pay taxes, and lots of them.
One of the only remaining (legal) tax savings (and it’s really only a tax deferral) options open to taxpayers is saving for retirement. It used to be that employers provided pensions to workers, and it was up to the company to worry about how that was going to get funded. Government employees (including teachers) still get this. But those days are gone.
For most of us, we have to take money out of our paychecks and put it in 401(k)s or IRAs. Although that can be painful now, it is critically important for the future. Although some people have gotten lazy and think that the government will take care of us all through Social Security and Medicare, Social Security checks don’t really go that far. And since the US has to borrow literally billions of dollars each year just to keep this flimsy boat afloat, who knows how much longer we can keep plugging the fiscal holes with foreign money.It’s a scary thought, so putting money away for retirement is absolutely critical.
And for those who have saved money, what happens to it if you die unexpectantly. I often have clients tell me they just going to live until they run out of money. The problem is no one really knows when that day will come.
So you do need to plan for that. If you’re married, your retirement money will probably go to your spouse. On the death of the second of you to die, you probably have named your children as the beneficiaries. The problem is that inherited IRAs can be taken away in lawsuits, and they can even get caught up in divorce settlements.If you don’t do any planning, then within five (5) years of your death, the government can take a huge chunk of your hard-earned money in taxes.
Although we surprisingly still get a lot of pushback from financial advisors on this, the best plan for retirement assets after a spouse is a trust. In 1999, the IRS gave us some “magic” language that allows us to do that. IRAs that go through a trust are protected from bankruptcies and court judgments, and they should never enter into any divorce settlement discussions.In my opinion, it’s the best way to go. But like I said, we still get pushback for some reason.
Call me to discuss further.It would be sad if all that money you worked so hard to save just went up in flames … I mean taxes …wait, that’s kind of the same things, isn’t it.
A CLIENT LETTER
Fred L. Vilbig © 2018
Let me commend you on what you are doing. Having helped my wife care for her parents as their health and mental capacity declined, I know how physically, intellectually, and emotionally draining this can all be. Growing up, we never really think about the kinds of things you have to deal with now. Some people walk away. Some people delegate the duties. Some people just want to end it all. But you are caring for your mother at what is probably the most difficult time in her life, and also of your life up to now. As I said at the beginning, I commend you.
That said, I wanted to answer some of your questions. The first was whether having your mom declared incompetent created any problems for you personally. To answer that, I need to define what I mean by declaring your mom incompetent.
If she had not done any planning, that would mean getting a court involved. It’s not the end of the world, but it is sort of a pain. You’d need to get a doctor to answer a formal set of questions (“interrogatories”) to say that your mom can’t perform certain basic functions of daily living. For instance, can she remember to take her medicine at the proper time? Does she know to wear a coat when it’s cold outside?
Once you have the interrogatories, you have a hearing. Assuming all goes as planned, the judge would then put you in charge of her finances (a conservatorship) and her person (a guardianship). You would next need to get a court order authorizing you to spend money, and then you have to file an annual financial report with the court.
Fortunately, your mom did all the necessary planning. She has a general durable power of attorney, a medical directive (which includes a medical power of attorney and a living will), and a trust. Although people can put others in charge of things even while they’re competent, your mom (as most people) wanted to retain control as long as she could. So in her case, in order for you to take over, you just need a doctor to certify that she is not able to perform some of the necessary basic functions of daily living.
Just as a caution to you, although getting that kind of certification from a doctor used to be fairly easy, I have noticed in recent years that doctors have become more cautious. They are often reluctant to make that certification. However, given the right circumstances, they will.
Once you do get the certification, you can pay your mom’s bills and make decisions regarding her care. There is no need for any court proceeding. I know you were worried about having to testify, so I’m assuming that is a relief.
I now want to return to your main question about liability. The doctor’s certification does not impose any additional personal liability on you. You are basically already doing what needs to be done. With the certification, you will just have the proper authority to do it. And you can do everything with your mother’s assets, not yours. You will have no additional personal financial liability for your mom.
Once again, I want to commend you on what you are doing. Even though it can be very challenging, it is the right thing to do. Our parents took care of us when we were young, and now it’s our turn. Life is funny that way.
Let me know if you have any more questions.
Fred L Vilbig
Fred L. Vilbig © 2018
One of my sons texted me the other day. He needs money. Not the way you’re thinking. He’s getting into the real estate business – multifamily units. He was renting an apartment but got tired of that, so he bought a 4-family, lives in one unit, and rents the other three. I wish I would’ve been that smart.
He’s going into business with one of his grade school buddies to buy more properties. But they want to get bigger properties. The problem is that that requires more money than the two of them have.
That seems to be a perennial problem for businesses – money. It happens all the time where a business needs to buy more equipment or expand facilities in order to grow and make more money. But the question is how.
Owners can borrow money, but banks can be stingy. They don’t like lending money when there’s a chance they won’t get it back. It has to be a pretty certain business opportunity for them to lend a bunch of money. Just to make sure, they will usually put some kind of a lien against the assets, and they’ll impose a bunch of financial covenants or promises on the business. Those covenants can be kind of a pain, but it is their money that they are lending you.
Instead of a bank loan, business owners can go to friends and family to get private loans. Those can get messy. It’s important to have a clear understanding about what’s going on. If things go well, your “lender” will want to treat it as an investment so that they get to share in the growth of the business. If things go badly, your “investor” will want to be treated as a lender so they can get paid back before the shareholders. And the understanding needs to be in writing – people are funny about remembering things the way they want to.
My son knew that he wanted to sell interests in the business. He also knew that this would raise securities law issues. He thought that meant he had to register with the federal Securities and Exchange Commission. That is a horrendous effort, so you try to avoid it at all costs… that is, short of prison. So small business owners need to fit into a federal exemption.
Generally, small (under $5 million with less than 35 investors) or purely intrastate security sales are exempted, though the devil is in the details. If you have investors in more than one state, you’ll probably need to file a Reg. D registration which is a simplified (although not simple) process. But even if you have all of your investors in one state (and intrastate offering), you may still be subject to that state’s securities law, so you need to look for a state exemption. In Missouri, you’re pretty safe if you have fewer than 25 investors.
But even if you’re exempt from state registration, you probably still are subject to the disclosure requirements. If you’re offering securities to people who will not be directly involved in the business, you cannot make a material misstatement (that is, tell a lie) and you cannot fail to disclose some material information about the business. And again, this kind of disclosure needs to be in writing because of that memory issue I mentioned earlier.
If you’re thinking about raising money to expand your business, give us a call. It’s important to everyone to get it right.
THE GREAT TRANSITION
Fred L. Vilbig © 2018
As I’ve said before, everyone is predicting that over the next decade or so, we are going to see the largest business transition in history. The aging baby boomers are either voluntarily or involuntarily going to pass their businesses on to the younger generation. It is important to plan. As I mentioned in my last column, my grandfather (God bless him) didn’t.
Although early in this process we thought that mom and dad would be giving their businesses to their kids, it looks like that is not the case. Many of the business owners put little away for retirement. Their businesses are their retirement savings. They can’t put that in jeopardy.
But why not sell the business to the kids? Many times the kids aren’t interested. Other times, the kids wouldn’t be a good fit for one reason or another. Quite often, the kids can’t get a loan, even an SBA loan, or they don’t want to personally guarantee a loan, putting everything they own at risk. What we are seeing more and more is sales to insiders or sales to outside third-parties. We recently closed on the sale of an asphalt company for these very reasons.
When we represent a buyer, we always suggest that the transaction be structured as a purchase of the company assets. The reason for that is that the buyer doesn’t want the seller’s liabilities. For instance, in preparation for the sale, the seller may have recently fired some employees without getting adequate releases. Or maybe there are pending income or employment tax issues. Maybe they’re unsatisfied liens. A buyer doesn’t want any of that baggage, so they buy the assets but leave the liabilities.
The problem is that liabilities can be pesky-particularly in product liability and environmental cases. The courts have decided that if you are buying an entire business and plan to continue it (even using the old name), then the buyer should be liable for some, if not all, of those liabilities. It’s very annoying.
That’s where “due diligence” comes in. In a well written purchase agreement, the seller will give the buyer lots of warranties and representations regarding all kinds of things. It would be nice if we could trust people, but we can’t. As President Reagan once said, “Trust, but verify.” That is due diligence.
For the buyer, due diligence takes many forms depending on the particular assets. If there is real estate, you’ll want title insurance. If you are buying things (like equipment or vehicles), you need to make sure there are no liens for loans. You’ll want to make sure there are no tax liens or outstanding judgments. And you’ll want the seller’s lawyer to certify the existence and authority of the seller. Buyers may not want to take the time or pay the money to do these investigations, but you ignore them at your peril. It’s sad when a buyer thinks he or she has purchased a golden nugget only to find out that they have iron pyrite (that is, fool’s gold).
So if you are in the market to buy your own business, caveat emptor, that is “Buyer beware.” The old saying applies: an ounce of prevention is worth a pound of cure. Sometimes that cure can be terribly expensive.
Call if you have any questions.
THE FAMILY BUSINESS
Fred L. Vilbig (c) 2018
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My great-great-grandfather came from Bavaria in 1860. After some conflicts between his farming and the Missouri River, he moved in about
1876 to Dallas where there wasn’t as much water. He found that pecan trees grew in sandy soil, so he bought some land with pecan trees. He dug up the
sand and gravel and took it into town. Dallas at the time was a growing city with lots of building, so they needed lots of sand and gravel. The streets
of downtown Dallas have a layer of asphalt over cobblestone that was laid on Vilbig Brothers sand and gravel. Our roots are deep.
The family business survived to the third-generation. That’s kind of remarkable. Most family businesses don’t survive the second generation. It even survived a family feud.
Over time the business changed. They were good at digging up sand and gravel, so they moved into excavation work digging basements for many of the major buildings in downtown Dallas. From there they moved into building dams and doing the dirt-work for roads. When I was a teenager, I drove dump trucks, bulldozers, and scrapers. I wasn’t very good at all that, so I went to law school.
When my grandfather died in 1976, my brother wanted to take over the business. He had a civil engineering degree and had worked in the company for a few years. The problem was that there was no plan in place. I know my grandfather had an attorney (Bill Burrows) he worked with a lot. He’d often complained that Bill was making him do something. But evidently no succession plan was in place.
My grandmother survived my grandfather. Although I remember my grandfather as being successful (although he never did get us that pony he always promised us), I know it wasn’t always easy. My grandmother would remind us that in business, “Some years you eat the chicken, and some years you eat the feathers.”
I don’t know if my grandmother ever really liked the construction company. After my grandfather died, instead of working something out with my brother, she decided to just sell the equipment and close the business. She told my brother he should start from scratch just like my grandfather did. That wasn’t true. After the family feud, my great-grandfather bought to surplus WWI Army dump trucks to restart the business, and that’s what my grandfather had when he got started.
The problem with my grandmother’s strategy was that she wasted perhaps the most valuable company asset. Sure the dump trucks, bulldozers, and scrapers were worth something, but they were all used and beat up. The biggest asset of the company was the name and the 100 years of goodwill in the community. She got nothing for that. It just evaporated.
I don’t know why my grandfather didn’t have a succession plan or why my grandmother just liquidated a 100-year-old family business. I’ll never know. It’s just sad.
If you have a family business, you need to give some thought to what happens if you become incompetent or die. Is there a child involved? If not, are there key employees who could buy the business? There needs to be some sort of a plan. Otherwise, a lot of hard work and good will can just evaporate. And like I said, that’s just sad.
Let’s get together if you want to talk about your options.
RESOLUTIONS AND TAXES
Every year when the New Year rolls around, we all talk about making resolutions. We make resolutions to improve our appearance and physical health. We make resolutions to become better people. We make resolutions to improve our finances. I saw one study that says that people achieve less than 10% of their New Year’s resolutions. I wonder if it’s even that high.
I would like to propose a resolution for the New Year (I know this will be published in late January, but we had the new tax law to deal with). I want people to resolve to update their estate plans, and the new tax law provides an incentive. Here’s why.
The federal estate tax exemption used to be $600,000. With homes and life insurance and retirement benefits, a lot of people got caught by this tax. We wrote a lot of estate plans with tax planning included, which was the right thing to do at the time.
A typical plan for a married couple involved two separate trusts. We used two trusts to make administration simpler on the death of the first spouse to die. The trusts were generally equal in value. Every year or so we wanted to look at the assets in the separate trusts to make sure they were still generally equal, and the clients were supposed to periodically rebalance the trusts by shifting assets from one to the other where possible.
On the death of the first spouse to die, the assets in his or her trust would be distributed first to a tax-sheltered trust up to the amount of the exemption. The trustee of that trust (typically the surviving spouse) was required to distribute all of the income to the beneficiary. The surviving spouse was almost always entitled annually to demand a distribution of 5% of the trust for no reason at all. In addition, the trustee could use the principal for the health, education, maintenance, and support of the spouse in the trustee’s discretion. The amounts in the tax-sheltered trust would avoid estate taxes even on the death of the second of the spouses to die, provided that the trust was properly administered. Clients generally felt that these restrictions were reasonable enough to avoid estate taxes. Any amounts in excess of the exemption would be distributable to a marital trust that could be subject to estate taxes on the death of the second spouse to die.
The problem with this plan is that the tax-sheltered trust was an irrevocable trust. Irrevocable trusts are taxable. They have to file tax returns. Failure to file the return can result in penalties and interest. And these trusts can generate taxes on trapped capital gains. Taxes on trust income are particularly bad because although the rates are comparable to individual rates, they kick in very quickly. For instance, any trust income over $11,950 will be taxed at 39.6%.
With the new tax law, the exemption amount is around $11 million. A married couple can avoid taxes on approximately $22 million. It is estimated that only two in every 100,000 people will be subject to federal estate tax. What that means is that for most married couples, an estate plan with tax planning is not only unnecessary, but it can also end up costing money.
Another problem with these old plans is that the separate assets of spouses can be liable for the debts of the individual spouse.Jointly held marital assets are protected from the claims of the creditors of either individual spouse. In 2011, the Missouri legislature passed a law allowing joint, marital trusts to be protected from the claims of individual spouses as well. Separate trusts could be liable for the debts of an individual spouse.
I would like to propose a resolution with couples with old estate plans: update your plan. Don’t leave the surviving spouse with a headache.When one of you dies, it probably is not a good time to deal with this sort of thing.
It’s the right thing to do. I’ll wait for your call.
LLCs AND TAXES
When I first started practicing law, we formed a lot of corporations.That was because corporations offered limited liability, and generally partnerships would not.The problem with a corporation, though, is that they are taxable entities (exclusive of S-corporations); they have to file annual reports with the state; and they have to have annual director and shareholder meetings (which, of course, most small businesses don’t do).It was kind of a pain.
In order to at least reduce the tax burden on small businesses, Congress (followed by the states) allowed smaller corporations to be taxed as partnerships under Subchapter S, the S-corporation.There wasn’t a corporate tax, but the paperwork remained.
In 1977, the State of Wyoming (of all places) did something very unusual. Their legislature came up with a new form of business entity that had limited liability like a corporation but otherwise acted like a partnership: no paperwork; no required meetings; and no company level taxation.The limited liability company was born!The idea caught on big time. When Hawaii adopted a similar law in 1996, all 50 states had some form of LLC law.Company profits generally flow through the business to the LLC members according to their percentage interest.
Now it is pretty rare for us to see incorporated small businesses.Almost all small businesses are now formed as LLCs.In order to form an LLC, you first need to file Articles of Organization. The problem is that a lot of people just stop there.As I’ve written about before, the law requires an operating agreement.It doesn’t say what has to be in the operating agreement, but just that you must have one. A single member LLC operating agreement can be very basic. A multi-member LLC operating agreement is going to be more complex.
Under current law, a single member LLC doesn’t even have to file a separate tax return.Instead, the company income just flows through to Schedule C of the owner’s Form 1040.With multi-member LLCs, they have to file a partnership tax return (a Form 1065)( unless they opt to be taxed as an S-corporation, in which case they file a Form 1120-S), and each member’s share of the profits and losses are reported on a Schedule K-1 and flow through to the individual owner’s return.
The new tax law, the Tax Cuts and Jobs Act, includes a new deduction for LLC owners (actually it’s for any non-corporate business owner).Basically it’s a 20% deduction for “qualified business income,” subject to numerous calculations, including wage limitations.To me, along with the reduction in the corporate income tax, this seems the heart of the jobs and pro-business purpose of the new law.The problem is that the devil is in the details.It will be interesting to see how this plays out for small business owners.The limitations are designed to cut down on abuses, but there are a lot of wily characters out there.We’ll have to see how things work out.
In any event, this new deduction should help small business owners, and given the competitive world we live in, they can use all of the help they can get.
The first consultation is free. Or call him now at (314) 241-3963
We finally have the much ballyhooed and vilified 2017 tax act, the “Tax Cuts and Jobs Act” (the “2017 Act”) – don’t you just love these names. The 2017 Act changes a lot of fairly obscure provisions of the tax code that will affect a relatively small number of people, but some of the changes will impact a lot of people. How they affect individual taxpayers will have to be seen. It should be noted that a number of provisions under the old law have not been repealed, but they have only been suspended through 2025. This is probably due to budgetary requirements.
For purposes of this post, I want to provide a very brief summary of some of the provisions that I think will affect the most people. I can assure you that much more will be written on it in the future.
New Income Tax Rates and Brackets: The 2017 Act reduces most of the tax rates for individuals by 2 or 3 %. The 2017 Act also creates new tax brackets for trusts and estates. Under the old law, trust and estate rates were the same as those for individuals, but they were telescoped down so that you hit the maximum tax rate at about $12,500. This will change.
Increase in the Standard Deduction: Under current law, the standard deduction for 2018 would have been $13,000 for married couples; $9,550 for heads-of-households; and $6,500 for individuals who were either single or married but filing separately. Under the 2017 Act, the standard deduction is increased to $24,000 for married couples; $18,000 for heads-of-households; and $12,000 for individuals who are single or are married but filing separately. That’s the good news.
Personal Exemptions Suspended: Now for the bad news. In exchange for the increase in the standard deduction amounts, the deduction for personal exemptions is reduced to zero until 2026. It appears that these two changes in conjunction with one another mean that prior non-itemizers may come out ahead while prior itemizers may come up short.
New Inflation Adjustment Factor: Beginning in 2018, several inflation adjusted amounts will use a “chained” consumer price index (“CPI”) formula. Reportedly the chained CPI grows faster than the unchained rate. This is an obscure point, but it might work in the favor of taxpayers.
Kiddie Tax: Since this applies to kids up to 18 (or 22 if full-time students), this is probably a bad name. Perhaps a better name would be “dependent’s tax.” However, the 2017 Act changes the tax charged on a child’s income. Earned income will be taxed at single individual rates. Net unearned income (interest, dividends, rent, and royalties) will be taxed according to the new brackets for trusts and estates.
Capital Gains: The 2017 Act retains the present provisions on capital gains, but the breakpoints will be indexed for inflation using the new chained CPI.
A number of deduction provisions are also modified under the 2017 Act.
State and Local Tax Deductions: Non-business payments for state and local property taxes and income taxes are deductible, but only up to $10,000. This will be a bitter pill to swallow for residents of high income tax states.
Mortgage and Home Equity Loan Interest Deductions: The deduction for interest paid on home equity loans is suspended through 2025. For mortgages created after December 15, 2017, the deduction or mortgage interest is limited to interest paid on mortgages up to $750,000 for married couples (down from $1,000,000), and $375,000 (down from $500,000) for married taxpayers filing separately. This new lower limit does not apply to pre-December 15, 2017, mortgages, but it would apply to any refinancing of old mortgages.
Charitable Contribution Rules: The limitation on the deduction for cash contributions to public charities (generally schools and universities, churches, museums, etc.) is increased from 50% of the donor’s AGI to 60% of his or her AGI. There is no increase in the deductibility of non-cash contributions to public charities or any contributions to what are called private foundations.
Miscellaneous Itemized Deductions: Under current law, a taxpayer can deduct certain expenses (such as the cost of preparing tax returns) to the extent that they exceeded 2% of the taxpayer’s AGI. This deduction has been suspended through 2025.
Individual Mandate: The individual mandate under the Affordable Care Act which imposed a penalty for not maintaining a mandated health insurance policy has been repealed.
Alternative Minimum Tax: The tax code imposes an additional tax on certain “tax preference” items and on excess children. Income is exempt up to a certain amount. For taxpayers who are hit by this tax, the 2017 Act almost doubles the exemption.
529 Accounts: Under current law, 529 plans could be used to pay for qualified higher education expenses. Under the 2017 Act, these plans can be used for tuition at elementary and secondary public, private, or religious schools, and even for certain home school expenses, up to a $10,000 annual maximum.
Estate and Gift Taxes: The 2017 Act doubles the estate tax exemption amount, indexed for inflation. It is expected that the 2018 exemption amount will be $11.2 million ($22.4 million for married couples). I’ll write more on that in the future. This increase also increases the generation skipping tax exclusion amount.
Qualified Business Deduction: The 2017 Act added a new deduction for non-corporate taxpayers engaged in a business activity other than certain service businesses, including law and accounting. The deduction is allowed for S-corporation shareholders. The math is complicated, but it’s basically connected to a business’ W-2 wages. In promoting the 2017 Act, the Republicans said that it would promote the creation of jobs. It seems that this deduction does that, but time will tell.
There has been a lot of spin put on the 2017 Act by both the left and the right. Time will tell how it plays out nationally, but to see how it will affect your taxes personally, you will probably need to see your tax advisor.