TAX REFORM – WHAT ARE THE CHANGES IF IT’S ENACTED INTO LAW?

BY: Tim Williams

On Saturday, December 2, 2017, the Senate garnered 51 votes to pass its proposed Tax Reform Bill. It now goes to the Joint Committee on Taxation, a joint creature of the Senate and the House, for reconciliation to try to work out the differences in the two proposed versions of the Tax Bills.

The Senate Bill contains both tax and non-tax legislation. The following explains the basics of the tax and non-tax provisions of the Senate’s Bill. The House is also working on its own version of the Bill. The specifics of the House legislation are not settled at this time and could impact the way these provisions are worded in the final version of the legislation.

TAX PROVISIONS

Business Taxation

The most significant proposed tax change is the tax rate for large corporations, which would fall from 35 percent to 20 percent starting in 2019. This would presumably place the US on an equal footing with other western nations in terms of their business income tax structure.

The second most significant change is that the Bill would transform the tax system on business income from a worldwide approach to a territorial system. Currently, U.S. companies are taxed on all income earned throughout the world. The territorial system would change this, focusing taxation of businesses primarily on their earnings in the U.S., a change corporations have advocated for many years. Historically, the U.S. was the only nation to utilize the worldwide taxation approach to companies and individuals.

The Bill would also allow companies to bring back any money they have stored overseas at a tax rate of 14.5 percent.

Additionally, in an attempt to spur new investment by American businesses, companies would also be able to write off most of their cost for new buildings and other investments for the next five years. The usual method for companies to recover the cost of buildings and other investments is through a deduction for depreciation over many years.  This makes this particular change significant, especially for large corporations seeking to expand their operations.

The Bill also would lower the tax on non-professional service companies that are structured as pass-through entities. This includes S corporations, limited liability companies, and partnerships. The Bill allows owners of such entities to deduct 23 percent of their pass-through earnings. There is an exception for owners of professional service businesses. Owners of professional corporations would only be allowed to take the 23 percent deduction if their income is less than $500,000. If left unprotected, the Bill would create a very strong incentive for owners of pass-through entities to not pay themselves a salary because the salary would be taxable at one of the new tax bracket rates.  By not taking a salary, the business owner would utilize the overall lower effective rate on all income generated by the entity resulting from the 23% deduction of all pass through earnings. In addition, the incentive that exists today, which is to avoid the 15.3% Social Security Tax on Self-Employment income, would continue under the new law. The Bill does have some measures built into it to prevent this from happening.

Individual Income Taxation

The top tax rate for higher income taxpayers would fall under this plan from 39.6 percent to 38.5 percent. The other tax brackets would also be slightly lower than under current law. However, some of the deductions which save taxpayers taxes – particularly in the Midwest – would be limited, which would result in net higher taxes for some starting in 2018, rather than lower taxes.

At the moment, Americans are able to deduct $4,050 as a “personal exemption” for themselves, their spouse and each dependent. The Senate Bill eliminates the personal exemption entirely. Instead, the Bill expands the standard deduction so the first $24,000 of income for a married couple ($12,000 for an individual) would not be taxed. The Bill also would bump up the child tax credit from the current $1,000 to $2,000. The overall effect here is that most people are better off, but not everyone.

Taxpayers would still be able deduct their contributions to charity under the Bill. In addition, the deduction for mortgage interest would still be available. The deduction for state and local property taxes would be capped at $10,000.

The threshold for deducting medical expenses would be reduced from medical expenses exceeding 10 percent of adjusted gross income down to 7.5 percent.

Under the current law, if a taxpayer owns and has lived in their home for two out the past five years and they sell the home, they can exclude up to $500,000 of capital gain. Under the proposed Bill, a taxpayer would have to own and live in the home for five out of the last eight years. This change will discourage “house flippers” and home builders who typically build or rehab, live in the home for two years, and then sell it off at capital gains tax rates, repeating this process every two years. With respect to Michigan construction law in particular, this change may serve to further discourage the abuse of builders failing to obtain a residential builder’s license by “flipping” the house as an unlicensed Michigan builder.  Currently, the tax code is more favorable to unlicensed builders who may utilize the exemption to build houses under the veil of their own personal use and then sell them to unsuspecting buyers after living in the home for a short period.

The House Bill, unlike the Senate Bill, would eliminate the tax deduction for ex-spouses that pay alimony for divorces occurring on and after January 1, 2018.

The deductions for moving expenses, casualty losses, biking to work and tax preparation have all been eliminated in the proposed Bill.

Estate Taxation

Under present law, up to $5,490,000 can be excluded from the Estate Tax per individual. This number would be doubled under the Bill, but not eliminated as rumored.  

NON-TAX CHANGES

The Bill would eliminate the individual mandate under the Affordable Care Act. The Congressional Budget Office estimates this will result in 13,000,000 Americans losing health insurance.

The Bill would also allow for oil drilling in the Alaskan Arctic Wildlife Refuge.

ACTION STEP

We urge business and individual clients alike to review their own situation in light of the Senate Tax Bill, and to begin to consider what changes in their future plans may be necessary to take advantage of the positives in the Bill and avoid the negatives. For example, if you are thinking about constructing a building or making long-term capital expenditures, doing so in the next five years makes sense. Additionally, if you live in a home that has greatly increased in value, and you are thinking of selling, beware of the five of eight year “live-in” requirement for exclusion of capital gain that would be imposed by the Bill.

Please contact us if you have questions about the likely impact of the tax legislation on your business or personal situation.

TAX REFORM – WHAT WILL IT MEAN TO YOU?

By:  Tim Williams

The White House first released its proposed Tax Reform Plan in April, 2017. The initial release was one page and short on details. Following that, the Secretary of the Treasury released more details on the proposed “Trump Tax Plan.”

The Trump Tax Plan would have the most dramatic changes for wealthy individuals, as well as for corporations, both large and small. Individual tax rates for the super wealthy and high income families would drop dramatically. Corporate income tax rates would decrease by 57%.

The following highlights will allow you to roughly estimate the impact of the specific proposals on your personal tax situation if the proposed plan becomes law.

INCOME TAX

The Trump Tax Plan would replace the current seven personal income tax brackets with three tax rates – 12%, 25% and 33%. The 33% tax rate is lower than the highest marginal rate today – 39.6%. In addition, the 3.8% Affordable Care Act Investment Tax and the Pease 1.3% unlimited Medicare Tax on compensation would be repealed.

Income up to $24,000 would not be taxed. As such, the present standard deduction of $12,000 would double to $24,000. All itemized deductions would be eliminated except for mortgage interest, the charitable deduction, and child care expenses. This will negatively impact taxpayers who have higher itemized deductions in relation to their adjusted gross income.

Several credible organizations have modeled the income tax impact of the Trump Tax Plan at various income levels for married persons filing jointly. It is concluded that,  for the majority of the middle class, taxpayers would experience only a slight increase in net Federal Income Tax or no change at all.

Under present law, capital gains are most commonly taxed at 15%. Certain high income taxpayers pay these at a 20% tax rate. Capital gain taxes would be restructured and essentially return to the law as it was prior to Congress implementing a flat rate capital gain tax structure. The capital gain tax would be structured such that one-half of a capital gain would be taxable at the taxpayer’s regular tax rate. So, with the highest personal income tax rate at 33%, the highest capital gains tax rate would be 16.5%. The capital gain tax rate would apply to capital gains, interest and dividends.

The Alternative Minimum Tax would be repealed in its entirety. This is a tax that applies to individuals whose calculated income tax is considered to be below a theoretical “acceptable” composite income tax rate. This normally results from having a disproportionately high percentage of income coming from “passive sources” or from very high itemized deductions.

BUSINESS TAXES

The Trump Tax Plan would reduce the corporate income tax from 35% to 15% on C corporations. C corporation taxation status is typically chosen by companies that are larger, and thus can handle the income tax burden. These companies pay tax at the company level on their net taxable income in addition to their shareholders paying tax on dividend distributions. It is believed that this change will make America more competitive with respect to attracting and retaining corporations in relation to other western economies.

The Trump Tax Plan calls for S corporations, limited liability companies and partnerships to be taxed at a rate of 15% on flow through income to the shareholders, members or partners. This rate would be payable by the shareholders, members or partners, as opposed to the current rule which taxes S corporation, LLC, or partnership income at the individual taxpayer’s income tax rate. The new structure would create a strong bias towards not paying compensation to the shareholders, members or partners which would be taxed at one of the three new tax rates. If the net S corporation, LLC or partnership income is allowed to “flow through” to the individual shareholder’s Form 1040, as opposed to reporting it as compensation, it will be taxed at a flat 15% rate, as opposed to 12%, 25%, or 33%.  In addition, such a payment structure would avoid Social Security Tax of 15.3% to the extent it is not paid as wages.

With the restructuring of the C corporation and S corporation tax structure, there would be a strong incentive for C corporations to elect S corporation status to take advantage of the single 15% tax on net corporate income. Under present law, in order for a C corporation to elect to be treated as an S corporation for tax purposes, one of the key requirements is that the corporation can have no more than 100 shareholders. Thus, that avenue would not be open to large, publicly traded companies.

ESTATE TAX

The estate tax proposal is radical. First, the Trump Tax Plan would eliminate the estate tax. This is a tax imposed on individuals with over $5,490,000 in total assets (adjusted annually), or $10,980,000 for a married couple. Assets over this amount are taxed at 40%.

The Trump Tax Plan would replace the estate tax with a deemed capital gain tax.

Under current law, upon death, any assets owned by the deceased taxpayer are marked up to their fair market value on the date of death. Thus, death transfers do not incur any capital gain taxes if the appreciated asset is sold immediately following death. The Trump Tax Plan would tax the capital gain that is deemed to occur at death whether or not the deceased taxpayer’s beneficiaries have sold the assets. The decedent’s tax basis would be deducted from the fair market value of the appreciated asset, and the capital gain tax immediately payable on the difference.

The capital gains tax would be payable even though the individual has no cash proceeds to pay the capital gain tax. This suggests that if this part of the Trump Tax Plan is enacted, it would make sense for individuals to purchase life insurance on the decedent’s life to pay the tax associated with the deemed capital gain tax. Otherwise, the requirement to pay the deemed capital gain tax would necessitate selling the appreciated asset to pay the tax. This would be particularly harmful if the asset is in a “value through”, such as stocks and securities were in 2007 - 2011.

SUMMARY

Congress and the Trump Administration have set December 31, 2017 as the deadline for enacting tax legislation. Please review your specific situation and let us know if there is any aspect you wish to address.

SHOULD YOU BE CONCERNED WITH THE IMPACT OF THE ALLARD DECISION ON PRENUPTIAL AGREEMENTS?

By:  Andrew Burrows

On January 31, 2017, the Michigan Court of Appeals issued an opinion in Allard v. Allard (Allard III) that seemed to have a dramatic impact on the status of prenuptial and postnuptial agreements under Michigan law. Despite the initial outcry, the actual impact of this decision on such agreements is fairly negligible, with prenuptial agreements remaining an important tool for couples contemplating marriage.

Above all, Michigan contract law protects the principle of freedom to contract by recognizing all contracts entered into upon the mutual agreement of the parties. As such, many legal provisions that provide specific rules or expectations can be modified, waived, or supplanted by contractual agreements. That being said, it is also well recognized that freedom of contract does not permit contracting parties to impose obligations or waive the rights of third parties without their permission to do so.

In its most simple form, Allard affirmed the power of a divorce court to invade the separate property of one spouse if the martial estate is insufficient to provide for the suitable support and maintenance of the spouse seeking additional support.  This accounts for the needs of any children in their care despite the presence of a contractual agreement to the contrary. In exercising this equitable power, the court is also limited, as it may only be exercised over property for which the spouse seeking additional support contributed to the acquisition, improvement or accumulation. Necessarily, this would likely include all property accumulated during the course of the marriage.

As such, where prenuptial agreements are concerned, this does not change the effectiveness of these agreements where property accumulated prior to marriage is concerned, nor does it affect provisions controlling any inheritance by a spouse. In addition, unless there is an equitable reason for the court to invade the individual property of a spouse, the terms of a prenuptial agreement will remain binding.

As the Court of Appeals stated in Allard III, however, a divorce proceeding is an equitable one that allows the court the freedom to afford whatever relief is necessary to accomplish its own directives. In the decision, the Court emphasized these equitable principles and pointed out that the couple’s children are third parties whose rights are impacted without their consent via a prenuptial agreement.

The broad impact of the decision is that the bounds of contractual freedom for creating a prenuptial agreement have been diminished, at least to the extent to which these agreements may be utilized to maintain economic inequity between spouses upon divorce. Practically speaking, most couples signing prenuptial agreements are doing so to protect property accumulated prior to marriage, and inherited during marriage, not to ensure that they will retain a disproportionate portion of property accumulated during the marriage.

In summary, here are the key highlights:

• Prenuptial agreements continue to be critical to protect the separate property of each spouse accumulated prior to marriage, as well as any property or assets inherited during marriage by a spouse.

•  A divorce court will only employ equitable principles to redistribute property – despite such property having been deemed as separate by a prenuptial agreement – when necessary to resolve an inequity of property between the spouses that makes support of one of the spouses impossible without such redistribution.

• Continued and future support of minor children is an extremely important factor in the court’s decision to judicially redistribute separate marital property.

If you are looking to have a prenuptial agreement drafted, please contact your attorney to address your individual concerns.

The Elimination of Dower Rights in Michigan

By:  Adrienne B. Knack

Michigan recently repealed widow’s dower rights going forward after a long history of granting dower to widows.

The concept of dower rights dates back centuries and was intended to protect a surviving widow following  her husband’s death.  The widow could elect to retain one-third of (her deceased husband’s real estate that her deceased husband had held during their marriage. This included all real estate brought into the marriage and acquired during the marriage, whether by purchase, gift or inheritance.  In Michigan, dower rights were recognized in common law, as well as in the Michigan Constitution, statutes, and land title standards. 

One of the consequences of dower rights in Michigan was the statutory provision that a real estate deed show the male seller’s marital status on the document, in order to identify the spouse as having a potential dower right in the property being sold.  Additionally, language needed to be included in deeds addressing the spouse’s dower rights in the property.  If this was not addressed on the deed, it became an issue when the husband attempted to sell the property and created a cloud on the title.  Because of this, although dower rights were considered inchoate (incomplete) until the husband’s death, the presence of dower rights prevented a husband from selling or transferring property without  his spouse’s permission and completely disinheriting his wife.  This was the case even if the wife was not an owner of the property.  It also created an issue when the husband attempted to mortgage the property.  Whether dower should be applied and how to handle it also became a unique issue in the case of same-sex marriages in Michigan. 

Legislation to abolish dower in Michigan had been presented to the legislature many times, but did not pass and until recently, Michigan was the only state to continue to recognize this archaic concept.  However, since the United States Supreme Court’s landmark decision in 2015 in Obergefell v. Hodges, holding that states must license same-sex marriages, Michigan’s dower was put in question again since it applied only to “wives” and not to “spouses.”  Rather than extend the protection to husbands, the Michigan Legislature voted to abolish dower rights.  On January 5, 2017, Governor Rick Snyder signed into law a package of bills that formally abolished dower rights in the State of Michigan.  The legislative package consisted of House Bill 5520, Senate Bills 558 and 560. They are now Public Acts 378, 489 and 490 of 2016.  The new law took effect April 6, 2017. 

This means that a widow will no longer have the option to elect the dower share when her husband dies, unless he died prior to April 6, 2017.  It also means that a wife should no longer have to join in the signing of a deed for property owned solely by her spouse. However, while Michigan works out the kinks with the new laws, it may make sense to still address dower rights in a deed, especially if the property was conveyed to the husband while the spouses were married and before the abolishment of dower. Additionally, the abolishment of dower does not affect or alter Michigan’s laws regarding “homestead”, and so a spouse may still be required to sign the mortgage for their homestead property, depending on whether the mortgage is granted to secure debt which was not incurred in the purchase of the property.

If you have any questions about dower rights, please contact us.

Protecting Yourself in Residential Real Estate Transactions

By: Ashley Prew

When selling or purchasing a new home, individuals often do not think to hire an attorney to assist with the transaction and review the key legal documents.  Generally, it seems that consumers tend to rely solely on real estate agents to assist with the transaction.  Although we absolutely recommend hiring a real estate agent when buying or selling a home, we also recommend using a trusted legal professional to review the documents prior to the execution of any agreements with the agent or the other parties to the transaction.

    

The sale of real property is a legal transaction that has very specific requirements.  All sales require a purchase agreement, which is a legally binding contract whereby the seller agrees (and becomes contractually bound) to sell the property to the purchaser under the particular terms of that purchase agreement.  Oftentimes, standard form purchase agreements fail to address key issues in the transaction as they do not contemplate the particular agreement between the parties.  For example, many standard form real estate purchase agreements fail to include what is known as a “risk of loss provision” which designates who is liable for any potential loss to the property during the period between the execution of the purchase agreement and the closing.  If, for example,  the property burns down the day before closing, there should be adequate provisions to address what would happen and how that unfortunate event would be handled.

Another example of a key provision that is often missing from a purchase agreement is a provision to address what happens if the property does not appraise for the purchase price or higher.  If the sale requires financing through a mortgage, this provision becomes particularly relevant.  Mortgage lenders typically will not lend for the purchase of property if the sale price is higher than the appraised value.  There are equitable ways to address this scenario, such as readjusting the purchase price or allowing the parties to rescind the contract.

 

As stated above, once the purchase agreement is signed, it is a legally binding contract and typically can only be amended by an additional signed writing between the parties.  Therefore, the time to negotiate the contractual provisions is before the agreement is signed.  In order to avoid disputes after the fact, we highly recommend having an attorney review the purchase agreement, explain the key provisions, and indicate whether any major provisions are missing. Given the magnitude of most real estate transactions, the failure to do so often creates catastrophic results for one party, or simply creates costly litigation between the parties.

Beyond the purchase agreement, the review of the closing documents by an attorney prior to closing is also an important step.  The closing documents – specifically the deed conveying the property to the buyer, closing statements, and title commitment – are what transfers and guarantees title to the property.  It is imperative that the deed is one hundred percent accurate in order to ensure there are no title discrepancies or disputes in the future. As a purchaser, it is also extremely important to have an adequate title insurance policy to ensure that if a title dispute  arises in the future, there  will be insurance to cover that issue.  Again, once the closing documents are signed, they are legally binding. The time to have them reviewed for accuracy by an attorney is prior to the closing.

Residential real estate transactions often reflect an individual’s biggest investment and can be an exciting and emotional time.  In order to ensure the transaction goes smoothly, it is important to protect this investment by hiring a qualified attorney, in addition to other chosen real estate professionals, to assist with the buying or selling process.

UTILIZING BUSINESS AGREEMENTS AS A DETERRENT TO LAWSUITS AND AS AN OFFENSIVE WEAPON

By:  Andrew Burrows

Despite the inherent usefulness of service agreements and/or purchase agreements in memorializing the terms of a transaction between businesses (“Business to Business” or “B2B”), or between businesses and their customers (“Business to Customer” or “B2C”), many entrepreneurs forego having these documents drafted. From our experience, the primary reason for delaying or altogether avoiding having a formal agreement drafted for their business dealings is one of cost. Unfortunately, clients who do not have effective agreements and who find themselves in a B2B or B2C dispute are at a drastic disadvantage once they find themselves in the negotiation or litigation.

One of the primary benefits of effective agreements is the impact they have on litigation, or a situation that may give rise to litigation. A well-drafted service agreement or purchase agreement will lay out all the material terms for a service based business, and will ideally leave no “grey area” for the parties to dispute. Although litigation sometimes arises because of outright wrongdoing by one party, lawsuits also often arise because of a misunderstanding of the terms of an agreement between the parties. This most often occurs where the agreement between the parties is never memorialized by a writing (an oral agreement), or where the parties use an agreement that is not specifically tailored to their business. The most common example of this is finding a service agreement from the Internet and modifying it in an attempt to tailor it to the needs of the business.

Despite the  perceived initial cost savings, these patchwork agreements fail to address key areas that give rise to disputes. Although it may be difficult to rationalize shouldering the cost of a formal agreement as a business owner, the cost of preparing an agreement to protect your business is small in comparison to having your business involved in disadvantageous litigation.

Beyond the protective aspects of these agreements, a service agreement or purchase agreement is often a business’ best weapon in taking action to collect a receivable or right a wrong. A well-drafted agreement will specifically define the terms of the agreement between the parties. This is of utmost importance. First, the mere existence of a well drafted agreement will almost always cause customers and suppliers to live by it without a lawsuit. If there has to be lawsuit, the chances of good result are much better with a soundly written agreement. In these situations, litigation may be avoidable, allowing the parties to negotiate a resolution without the expensive legal fees associated with business litigation.

MICHIGAN ADOPTS DOMESTIC ASSET PROTECTION TRUSTS

By:  Tim Williams

On December 8, 2016, Michigan signed into law two bills that allow the creation of  Domestic Asset Protection Trusts (DAPT). The law goes into effect on March 8, 2017. Michigan is now the seventeenth state to allow such trusts.

The Basics

A DAPT is an irrevocable trust that protects the assets of the person who sets up the trust from the usual claims that apply to trusts. The person who creates the trust, called the "Grantor", transfers a portion of his or her assets into the trust. The Grantor is typically a lifetime beneficiary of the trust. The Grantor can also retain decision-making authority over the administration of the trust. The assets in the DAPT are not subject to the Grantor’s creditors, even though the Grantor is a beneficiary. Moreover, under recent IRS rulings, if drafted properly, the assets in a DAPT are not included in the Grantor’s Gross Estate for Federal Estate Tax purposes.

The creditor protection aspect of the law with respect to DAPTs is quite lenient. The law provides that the Grantor’s creditors may not attack assets transferred to the DAPT upon expiration of a two-year period, which begins with the date the assets are transferred to the Trust. There are only a few exceptions to this protection, including instances of fraudulent transfers and bankruptcy.

Practical Uses for a DAPT

Adult Child Needing Protection

The first situation where a DAPT is useful is one in which a person’s adult child needs to be financially supported but it is not desirable to make out-right gifts to the child annually. Circumstances that could make out-right gifts undesirable include if the child is involved in bankruptcy, insolvency, divorce, child support issues, judgments against the child, student loan default, or an IRS Federal Tax Lien.

The DAPT can be set up so that funds are available to support the child, enable the purchase of a house for the child’s use, etc., but not subject the assets or income to risk of loss if placed directly in the hands and ownership of the child.

Reducing Federal Estate Tax

A second situation where a DAPT will be useful is where the Grantor needs to reduce the size of his or her estate for Federal Estate Tax Purposes. The use of a DAPT will allow the Grantor to shift an amount of assets into the DAPT to reduce his or her Federal Estate Tax below the Federal Estate Tax dollar exclusion, thus eliminating any Federal Estate Tax at his or her passing.

Despite the benefits of the DAPT to persons in situations such as those described above, care should be taken to consider the Capital Gain Tax consequences when planning a Federal Estate Tax Reduction DAPT. The IRS may take the position that the Grantor has “gifted” the capital gain tax to the beneficiaries. This is known as carryover tax basis. If assets are transferred at death, the Capital Gain Tax is forgiven.

Overall, the Michigan DAPT can be a powerful tool in both estate planning and asset protection planning. Considering whether a DAPT is appropriate involves many considerations. Therefore, an attorney that specializes in estate planning and estate tax issues should be consulted to ensure a DAPT is appropriate for your situation.