Errold F. Moody Jr






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Tax Planning


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These issues were identified in several classes in financial planning as key items that consumers needed to know and/or were being confronted with in their everyday lives. Always check with a professional on any area of taxes. Further, recognize that the government is changing tax law as we speak and you cannot depend on what was valid even just a few months (days) ago.

Taxes: the 1% of American households with the highest incomes -- those earning an average of about $1 million a year -- pay about 31% of their income in federal taxes, including payroll tax and income tax, according to the Congressional Budget Office. The 20% of households with the lowest incomes -- those earning an average of about $15,000 a year -- pay less than 5% of their incomes in taxes.

In 1980, households in the bottom 20% of the income distribution earned 5.7% of all income and paid 2% of all federal taxes; in 2003 -- the most recent data available -- they earned 4.2% of all income and paid 1% of all taxes. Meanwhile, the highest earning 20% of households earned 45.8% of income in 1980 and paid 56.3% of all taxes. In 2003 those high-income households earned 52.2% of income and paid 65.7% of taxes.

There are 66,498 pages of federal tax rules in the commonly used Standard Federal Tax Reporter. In 1913, when the federal income tax was introduced, there were 400 pages.

1. 1034 Rollover:  Eliminated. Now couples get a $500,000 offset for appreciation upon selling a home and singles get $250,000 if you own and live in it for two out of the last five years. The once in lifetime $125,000 over age 55 exemption is repealed.

The exclusion does not apply to depreciation after 5/6/97 so using a home office deduction may not be the best thing to do since depreciation is recaptured at 25%.

A partial exclusion for the two year ruled is allowed for change in employment, health reasons and and unforeseen circumstances. Then the amount is generally pro-rated.

For those going into a nursing home, the  two year test is reduced to just one year.  

2. Basis- Original basis is what you bought something for (gift basis not covered under this discussion). Current or existing basis is original basis minus any depreciation plus any improvements (taxable additions). Gain or profit is measured from existing basis. This is ABSOLUTELY NECESSARY to understand in the use of investments and for estate planning.

I'll first discuss pension plans, IRA's, annuities and the life. Parts are addressed later anyway. Remember again, that this cannot be the complete treatise on all the intricacies, so be sure to contact an expert before proceeding to do anything.

When you put money into a standard NON QUALIFIED annuity, you have taken previously taxable money and put it into a tax sheltered account. That's because the funds grow tax deferred until withdrawn. Once withdrawn, the growth is taxable as (REMEMBER THIS) ordinary income on amounts above basis.

Example. Assume you put $25,000 into an annuity. Since the $25,000 was already taxed, it becomes your taxable basis. If your funds grew to $75,000 by age 65 and you withdrew everything, then $50,000 would be taxed ($75,000- $25,000 basis) as ordinary income.

If you took out sporadic amounts of money, how would they be taxed? As ordinary income first. Under the new tax laws, this process is called last in first out (LIFO) The last money out is the first money taxed. So withdrawing $2,500 is taxed fully as ordinary income. Another $6,345 comes out as ordinary income. Once you have used up all the growth and get down to where nothing is left except your basis of $25,000, then any return of those funds is tax free. (Prior to 1986, it was first in first out (FIFO) and the first distributions were non taxable until the basis was used up and only then became taxable.)

The last method for taking money out is over your lifetime or five years whichever is longer. Using made up numbers, assumed you were 65 and were expected to live to 85. The total funds would be divided by 20 years (simplistic method). As such, you might get $1,000 per month of which part was growth- we'll say $750 as taxable- and the rest of $250 was a return of basis and nontaxable. Once you had received enough of the payments where all the basis is used up, all subsequent payments are fully taxable as ordinary income.

The major consideration is of death. When you die, the basis on the annuities held above does NOT change for your beneficiaries. THERE IS NO STEP UP IN BASIS.$75,000- $25,000 basis = $50,000 as ordinary income.

Now consider the standard mutual fund. Assume you bought one for $25,000. Over a period of 10 years, your taxable basis WILL adjust (current or adjusted basis) due to the distributions of dividends and capital gains (even though you just simply checked off the boxes to reinvest dividends and capital gains and never saw the money directly.) Since you could have gotten them (called constructive receipt), they become taxable. You'll get a 1099 each year for these distributions and you need/must adjust your basis upon a subsequent sale. Let's say that your fund is worth $75,000 in ten years and the basis increased over the years to $35,000 and you sold all shares. (The basis for selling individual shares is basically determined by first in first out method (IRS), Share identification (Preferred) and average cost method. There are other methods however.) The gain of $40,000 is taxable as LONG TERM GAIN which is traditionally much lower than ordinary income rates. Nice savings. But the key is this. Assume you die and the $75,000 is passed to your son, friend, me. The assets get a full step up in basis to $75,000 upon death. Subtracting the value from current basis ($75,000- $75,000= $0) leaves zero dollars to be taxed. Now, which is better as a beneficiary? Ordinary income tax from the $50,000 in the annuity or No tax on nothing?

There is one other type of asset to be considered. For personal or real property used in a trade or business or held for the production of income, depreciation is available along with some of the attributes listed above.

Assume you have a rental home worth $100,000. You may depreciate (covered more fully in paragraph 3 below) the asset (EXCEPT FOR THE LAND) over a period of time and deduct the amount from current taxes (many caveats apply. If you want to know which ones contact a CPA or buy a book). Assume $25,000 was land and that the other $75,000 was used a tax deduction through depreciation over the years. When you go sell your property you need to add back in the land value and get $25,000. (If you hadn't taken all depreciation yet, the basis is adjusted accordingly.) If the property was worth $100,000, then you had a $75,000 long term capital gain ($100,000 minus adjusted/current basis of $25,000). Better tax aspects than an annuity though it's like comparing apples and oranges in other considerations. (And just so you know, the capital gains rate is based on your income tax bracket and does not exceed 20%. But depreciation is "recaptured" at a 25% rate.)

But you die again. Guess what? The basis is stepped up to the full value at the date of death- $100,000. Your beneficiaries then sell the property for $100,000 and have $0 tax. So, everything else being equal (caveats can apply), which is better?. Long term capital gains and a full step up in basis for many assets or ordinary income and no step up in basis for pension plans, IRA's, Keogh's.

3. Depreciation- This is a tax deduction that represent the wasting away of an asset. Business personal property is depreciated over various schedules of 3, 5 and 7 years. Residential real estate is depreciated over 27.5 years; commercial over 31.5 years (law changed to 39 years for property placed in service after May 13, 1993- exceptions apply). Do not depreciate land. Take out value of land, set aside and then add back in to existing or current basis when property is sold.

Under the new laws, depreciation is recaptured at a 25% rate. This may preclude the use of a home office deduction.

4. LTCG, LTCL, STCG, STCL-At the end of each tax year, an investor looks at all the long term positions (assets held over one year) and short term positions (held less than one year). If both positions are gains, they are taxed according to the long term capital gain rates and ordinary income as applicable. If there are long term gains and losses, they are offset each year against each other. The same is done with short term capital gains and losses- net them. If there are both long and short term positions when finished and they are different (gains and losses), an investor nets them together and whatever is left retains the characteristic of the larger. If a loss however, only $3,000 net losses may be used per year. The rest is carried over to subsequent years and netted again. The same criteria applies if both the long and short term positions are both negative. In such cases, only $3,000 is allowed as a deduction this year using the short term first. Anything left over is carried forward to the following year and the whole thing starts over.

Example: Assume $40,000 long term capital loss (LTCL) and a $60,000 long term capital gain (LTCG) in 2002

Also during 2002, a $90,000 short term capital loss (STCL) and a $50,000 short term capital gain (STCG).

Net long term positions= $20,000 LTCG

Net short term positions= $40,000 STCL

Net together. Whatever is larger is what it is. $40,000 STCL- $20,000 LTCG= $20,000 STCL. But an investor is allowed to use only $3,000 of a loss each year. So there would be a $17,000 STCL carryover and the process is started all over again.

The above numbers were developed as though everything was bought and sold during the year without taking into account the end result. The point being is that $17,000 of a Short term loss will need to be carried over to the next year. Wasn't there are possibility that something else might have been sold for a gain this year in order to absorb some of the excess loss?

The maximum capital gains rate is currently 15% bracket. Enjoy it while you can

5. Expensing option-

6. Social Security  and Medicare-

7. Business Use of Home- Must be principal place of business and most of business income is attributable to activities there. Space must be used exclusively for business. Physical separation from rest of home is helpful. Taxpayer can deduct applicable percentage of maintenance and utilities for space and can actually depreciate space over 31.5 or 39 years. But value is lower of fair market value at time of business start or its basis. Deductions cannot exceed net income from business.

SPECIAL NOTE: Remember that when the home is sold, there is a lower basis overall and more appreciation and tax to pay. Additionally, any depreciation MUST be recaptured at 25%.

Before you take the deduction, check with an expert. The IRS has been contesting this. However, starting in both 1997, if you have inventory in a separate room, you may count that as part of the room "space" so the policy is now a little more liberal. And under the new 1998 tax rules, the office does NOT have to be the exclusive place of business.

8. Social Security Benefit taxation- Workers add their AGI, tax exempt interest income and one half of the social security benefits received that year. If the amount exceeds $25,000 single; $32,000 married filing joint; $0 if married filing separately, then the LESSER of the following is declared as taxable income- one half of the social security benefits which the worker received that year or one half the excess over the $25,000, $32,000 or $0 level.

If AGI exceeds $34,000 single or $44,000 MFJ, then the taxpayer must include in taxable income the LESSER of

1. 85% of social security benefits or

2. a fixed amount ($6,000 for MFJ or $4,500 for individuals) or the amount included under present law whichever is less; PLUS 85% of income (includes tax exempt interest) that exceeds $44,000 MFJ or $34,000 single.

In other words, the government is taxing the benefits received at 50% or 85% if there is too much money received from all sources- and that includes municipal bond interest. This is different losing benefits if you make too much money- item 6 above.

9. Deductible Interest- $0 for personal interest. All interest on a residential loan of $1,000,000 or less. But to that can be added another $100,000 of an HEL (Home Equity Line) and that is also fully deductible. Obviously many many homeowners have converted non deductible personal, credit card and car interest by taking out an HEL loan.

But consider this. Assume you had a $400,000 home paid in cash. When rates were low, you refinanced for a $250,000 loan. How much of the interest is deductible? Only the amount on $100,000. (Yes, there are issues regarding acquisition debt, substantial improvements, etc. but that is why you would need to contact a CPA.)

10. Kiddie Tax- Idea in past was to gift property to children and have assets taxed at lower tax rate. Parents could act as trustees on UGMA and UTMA's (Uniform Transfers to Minors).

SPECIAL NOTE: Parents may gift money to these accounts and put them into growth funds that might appreciate well until the child turns 18. However, the funds belong solely to the child at the age of majority and he/she may do anything they want. Most parents do not want to take the risk. Further, if the funds were to be used for college, college formulas look to take 35% of a child's assets but only 6% of a parents. Therefore it might be cheaper for a parent to pay the higher tax on any earnings, maintain control and actually give less to the college.

11. Gifting up to $12,000 per person per year is allowable without any reporting or tax consequences. Gifts over $12,000 per year up to the lifetime exemption of $1,000,000 must be reported but no tax need be paid. Gifts over $1,000,000 (excluding $12,000 amount available each year) is subject to gift tax.

IMPORTANT: Read again the above. It is possible to use your $1,500,000 (2005) lifetime exemption during life. You do not have to wait till you die. It may be very beneficial to take a highly appreciating asset out or your estate well before anticipated death. (However, tax is only offset for the first 1,012,000)

One other item. When you gift something, the asset received will normally carry the same basis as it had from the giftor. Sometimes it is not a good idea to gift. For example, if you were 75 years of age and in ill health, gifting an asset worth $10,000 with a $2,000 basis means the recipient, if they sold the asset then, would have long term capital gains on the $8,000 of profit. However, if you died and they received it as a beneficiary, the basis would have been stepped up to the value at the date of death. They would incur NO tax upon a sale at that price. The issue, is of course, timing and when you will die. But it's what you are supposed to think about in order to do good estate planning.

Lastly, there are a couple exceptions to the general rules. If, say, a grandparent pays your hospital expenses of $25,000 DIRECTLY to the hospital, there is not gift per se. If a grandparent pays your son's tuition directly to the University, there is not a gift, per se. Obviously, these are just the main elements and you need to review each tax section carefully to assure that you are not violating some section.

12. Real Estate losses- Most losses on real estate or other activities where there is not active involvement are not (usually) currently deductible against earned income. However, if an investor has an AGI under $100,000 and can be shown to have some form of involvement in the management of a property, then up to $25,000 of losses may be offset against the AGI. The allowance is only available on real estate and is phased out between AGI between $100,000 and $150,000.

Current law also says that passive losses may be deducted directly against ordinary income as long as taxpayers spend at least 50% of their personal services in real estate trades or businesses and spend more than 750 hours during the year performing real property related personal services.

Tricky area- check with a professional

13. $125,000 exemption on home sale- Gone under new tax law. See Number 1

14. new minimum required retirement distribution rules.

15. IRA's: IRA Highlights


16. Points on a loan. If the loan is for the purchase of a home are deductible in the year of sale if:

1. The loan was for a purchase or improvement of and secured by your principal residence

2. The charging of points in your area is a normal practice

3. The amount is computed as a percentage of the stated principal amount of the mortgage.

4. The amount must be paid directly by you and not from the mortgage funds borrowed.

If these requirements are not met, the points are deducted rateably over the period of the loan. If the property is sold before the mortgage is paid off, the remaining points are a deduction that year.

17. Tax Credits

Tax Bracket Maximum Tax credit per year Investment required
15% 3,750 37,000
25 6,250 62,000
28 7,000 70,000
33 8,250 82,000
35 8,750 87,000

18. Basis upon gift and death. Assume your grandmother had stocks worth $1,000,000 and had a current basis of $200,000. If she were to gift them to a nephew, the nephew would receive the assets with a basis of $200,00 as well (basis may be adjusted if value has gone down- check tax codes for further information) and would incur a substantial tax when they were sold. However, if she were to die and bequeath the stock to the nephew, there is a step up in basis at the date of death to the full $1,000,000, The assets may then be sold for no taxable gain.

Note: This has essentially nothing to do with the issues of estate or gift tax- that's a separate issue.

19. Gains on discounted bonds purchased after April 30, 1993 are taxed at ordinary income tax rates- as high as 39.6% federal instead of the long term capital gain rate.

20. Pension plans payouts. Recognize that literally all pension plan payments are taxed as ordinary income since none of the assets had ever been taxed. But that's also true when the assets are given to beneficiaries upon death. There is no step up in basis. If you had $250,000 in a pension plan and died, your beneficiary will need to pay ordinary income tax on the entire $250,000 (though various payout schedules may be used).

The planning that one may consider therefore is if there were other assets that were being used during retirement that might be better left alone. Consider some real estate rentals that the retiree was selling off to fund retirement with the hopes of leaving as much of the IRA and pension plans to beneficiaries. Wrong idea. Better to take payments at full tax from the pensions and leave the real estate to the beneficiaries where the could get a full step up in basis and incur NO tax.

21. Five year and ten year averaging from a pension plan. Depending on your age, you may elect to "average out" the tax on a lump sum payment from a pension at retirement rather than having it taxed in full. Worthwhile? Well, recognize that you can roll the funds to an IRA- as most people do- and keep deferring tax on any growth. However, in doing so you will lose the ability to do the averaging at a later date. Further, all IRA funds are taxed only as ordinary income. Needs a lot of review before you commit including how old are you, what would you invest the money in and at what rate, do you need money now, how long will you live, what other asset do you have, etc. Five year averaging terminated at year end 1999.

22 Premature distributions from a pension plan. If you leave a company- quit, laid off, etc.- most will require you terminate their pension plan. If you take the money and do a transfer to an IRA, you can defer any tax on the funds. But if you did a supposedly standard ROLLOVER, you could get hit with a big tax.

Under normal methods, you are allowed to take money from an IRA, use it for whatever, and then pay it back within 60 days and incur no tax.

But if you take money from a pension plan- even with the intent to roll it to an IRA, congress requires your employer to WITHHOLD 20% of the amount form the distribution. So if you were to get $100,000 normally, you'd get only $80,000. But then you'd have to pay an IRA the full $100,000 back- which means taking an extra $20,000 out of your pocket. If you don't do that, you will be taxed on the $20,000 as ordinary income plus an additional 10% penalty if you are under 59 1/2.

You can avoid the problem by doing a trustee to trustee transfer. In such case, the money is NEVER received by the employee and no 20% "holdback" occurs.

23. Long Term Care: Proceeds on long term care insurance is tax free if you buy the special policies. A portion of the premiums for a policy may be deductible- but only against the 7.5% AGI. This means that perhaps only 5% of recipients will be able to get the deduction.

If your Tax Qualified policy pays "benefits", they are not taxable. But taxable benefits from Non Qualified policies  are a medical deduction against 7.5% of AGI. After all said and done, the Non TQ policy may provide more and faster benefits for an acceptable cost.

24. Comparison of Coverdell account with Section 529 plan

25. Shorting Against the Box: This used to be a method of insulating a stock holding that was losing value by going short the stock at the same time. Gain is now recognized when you sell the borrowed shares.

26. Capital Gains:                     

27. Estimated Taxes:

ALTERNATIVE MINIMUM TAX: "Millions more taxpayers will become subject to the alternative minimum tax..."

ALTERNATIVE MINIMUM TAX LINK: The Alternative Minimum Tax for individuals is subjecting more and more Americans to complex tax rules and higher income taxes than they would otherwise pay. Here is the pdf report by the Joint Economic Committee, "The Alternative Minimum Tax for Individuals: A Growing Burden"  

ASSET PROTECTION LINK:  As many as 80% of Web advice-givers are also advocating tax fraud. Here is some straightforward advice covering family limited partnerships, selecting a foreign trustee, foreign bank accounts, avoiding scams and much more.

AUDIT STATISTICS:  Want to know the odds for being audited? Of course you don't, but here they are anyway.

BONUS CALCULATOR LINK:  This calculator uses supplemental tax rates to calculate withholding on special wage payments such as bonuses. If your state does not have a special supplemental rate, you will be forwarded to the aggregate bonus calculator. This is state-by state compliant for those states who allow the aggregate method or percent method of bonus calculations.

DISTRIBUTION FOR DEFERRED COMPENSATION AND IRA BENEFITS LINK: Intense material on distribution prepared by an attorney. Once in awhile I will designate how distributions are made on IRA's- but only if it is SIMPLE. Most of the time it gets to be VERY convoluted and you need a specialist. I am not kidding here. Never do this at home!! Very scary material.

EARLY ANNUITY DISTRIBUTIONS LINK:  Section 72(c) and its recent revisions.


FAQ 401(k)

FAQ 403(b)

FAQs on Employee Stock Purchase Plans

FAQs on IRA Accounts

FAQs on Lump Sum Distributions

FAQs on Pension Plans

FAQs on Profit Sharing Plans

FAQs on Rollovers

FAQs on Roth IRAs


FAQs on Simple IRAs

FAQs on Social Security Benefits

IRA RETIRE EARLY CALCULATOR LINK:  If you retire before 59 1/2, you can take out portions based on your actuarial lifetime and current rates. This calculator requires a Java browser.

INTERNAL REVENUE BULLETINS LINK: (PDF format) Weekly bulletins. Just the thing to discuss at family dinner.


IRA CALCULATOR LINK  From Morningstar.

INHERITED 401KS AND IRAS LINK   Kathleen Pender San Francisco Chronicle article in full. Good stuff on complicated area .

IRA/QUALIFIED DISTRIBUTION LINK:  VERY extensive information on all . Hot Topics and Recent developments in plan distribution By Noel C. Ice




PRIVATE LETTER RULING LINK: IRS's private letter rulings and technical memoranda by their most recent publication number.

IRS TAX LINK:  Gets you directly to the forms you might need. You can get to their other sites from there.

NANNY TAX LINK: This site lets you estimate payroll taxes and calculates your Nanny's take home pay for any state.

ROTH IRA:  By George Chamberlain

ROTH IRA LINK 1: Many people wonder about this  non taxable IRA. Here is a page with tons of articles on the value, some software applications, etc.

ROTH IRA LINK 2:  The site provides a calculator, case studies, examples on why IRA calculations differ depending on tax and funding assumptions and more.

ROTH IRA LINK 3: Various example showing how a ROTH IRA works and whether it will be beneficial. Believe it or not, some ROTH IRA's will actually hurt a retiree.

SUBCHAPTER S CORPORATION LINK: Knock yourself out with the U.S.Code.


TAX ESTIMATOR LINK:  A Quicken tool that allows to estimate your taxes as the year goes on

TAX GLOSSARY LINK: Over 2000 entires including some esoteric issues as well.

TAX LINKS 1:  A major link to many tax pages.

TAX LINKS 2: A large sites with links to government, commercial, and academic sites related to taxes.

TAX LINKS 3: An extensive site that includes the potential changes in 2001 and more.

TAX LINK 4: Huge listing of all sorts of tax issues in the United States. You can go to their home page and do the same thing for other countries.

TAX GUIDE FOR ALIENS LINK:  Tough stuff- good info

TAX GUIDES: Investment Income and Expenses ...IRS Publication 550

Tax Guide for Investors ...Fairmark Press

Dividends and Other Corporate Distributions ...IRS Publication 17, Chapter 9

Gains and Losses Topic Page

Interest Income ...IRS Publication 17, Chapter 8

Mutual Fund Distributions ...IRS Publication 564

Passive Activity and At-Risk Rules ...IRS Publication 925

Personal Finance & Investing

Wash Sale Rule ...Fairmark Press

TAX PENALTY LINK:  Having problems with penalties regarding noncompliance with income and payroll taxes withheld for paychecks that were not being quickly turned over to the government? But how much really are the penalties?? This site "enters your information and then automatically tries over 250 ways to reduce the penalty." Worth a look.

TAX RATE COMPARISON LINK  A Quicken site that lets you compare adjusted gross income ranges to see how your return stacks up against others with similar returns.

TAX STATISTICS LINK: The Statistics of Income (SOI) program produces data files  on individuals, corporations, estates, employee plans and much, much  more. Great for dinner conversations. 

TREASURY/IRS GUIDELINES ON LIFE INSURANCE AND ANNUITIES LINK  You have no idea how difficult this material can be.

U.S. TAX CODE LINK:   The entire code. Go for it!

WORLDWIDE TAXATION LINK: Extensive listings and information to many countries around the world.

Consumer links














FAQ 401(k)

FAQ 403(b)

FAQs on Employee Stock Purchase Plans

FAQs on IRA Accounts

FAQs on Lump Sum Distributions

FAQs on Pension Plans

FAQs on Profit Sharing Plans

FAQs on Rollovers

FAQs on Roth IRAs


FAQs on Simple IRAs

FAQs on Social Security Benefits


















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