November 2022 Update – Year-end Gifts And The Gift Tax Annual Exclusion & Selling Trade Or Business Property? Know The Tax Effects

November 2022 Update – Year-end Gifts And The Gift Tax Annual Exclusion & Selling Trade Or Business Property? Know The Tax Effects

Year-end Gifts And The Gift Tax Annual Exclusion

With the holidays and year-end approaching, you might be considering making gifts of stock or cash to family members and other loved ones. By using your gift tax annual exclusion, those gifts can reduce the size of your taxable estate. For 2022, the annual exclusion is $16,000. The exclusion will increase to $17,000 for 2023.

How it works

The annual exclusion applies to gifts on a per recipient, per year, basis. Therefore, a taxpayer with three children can transfer a total of $48,000 to them in 2022 free of federal gift taxes and another $51,000 gift-tax-free in 2023.

If these are the only gifts made in the applicable year, there’s no need to file a federal gift tax return. If an annual gift exceeds the exclusion, only the excess amount is a taxable gift, though it may not result in tax liability. (See “More ways to save gift tax,” below.)

However, keep in mind that the exclusion doesn’t carry over from year to year. For example, if you don’t make an annual exclusion gift to someone this year, you can’t add $16,000 to your 2023 annual exclusion and make a $33,000 tax-free gift to that person next year.

Married taxpayers and gift splitting

If you’re married, a gift can be treated as split between you and your spouse, even if only one of you gives the gift. That means, by gift splitting, a married couple can use their two exclusions to give a recipient up to $32,000 in 2022 and $34,000 in 2023. For example, in 2022 a married couple with three married children can transfer a total of $192,000 to their children and the children’s spouses ($32,000 for each of six recipients).

Because more than the exclusion amount is being transferred by a spouse, a gift tax return (or returns) will have to be filed, even if the spouses’ combined exclusion covers the total gift. If gift splitting is involved, both spouses must consent to it and that consent should be indicated on each gift tax return (or returns) that each spouse files.

Speaking of married taxpayers, gifts from one spouse to the other aren’t covered here, because these gifts are free of gift tax under separate marital deduction rules, as long as the recipient spouse is a U.S citizen.

More ways to save gift tax

Gifts that are taxable because they aren’t covered by the annual exclusion may still not result in a tax liability. This is because the lifetime gift and estate tax exemption wipes out the federal gift tax liability on taxable gifts up to a cumulative $12.06 million for 2022 (increasing to $12.92 million for 2023). The amount of the exemption you use during your life reduces or eliminates the exemption available for federal estate tax purposes upon your death.

Gifts made directly to an educational institution to pay tuition or to a health care provider to pay for medical expenses on behalf of someone else do not count towards the exclusion. For example, you can pay $20,000 directly to your grandson’s college for his tuition this year, plus still give him a tax-free direct cash gift of up to $16,000.

Why 2022 gifts make sense

Annual exclusion gifts reduce the taxable value of your estate. While the lifetime gift and estate tax exemption amount is historically high right now, it’s scheduled to fall in 2026 to around $7 or $8 million, depending on inflation. Congress could act to extend today’s higher exemption or could change estate tax law in other ways. Making large tax-free gifts now could help insulate you against any later reduction in the gift and estate tax exemption.

Selling Trade Or Business Property? Know The Tax Effects

Many rules can potentially apply to the sale of business property, but what are the tax consequences? For simplicity, let’s assume that the property you want to sell is depreciable property used in your business and you’ve held it for more than one year.

General rules

Under the Internal Revenue Code, your gains and losses from sales of business property are netted against each other. The net gain or loss qualifies for tax treatment as follows:

  1. If the netting process results in a net gain, then long-term capital gain treatment results, subject to “recapture” rules discussed below. This treatment is generally more favorable than ordinary income treatment.
  2. If the netting of gains and losses results in a net loss, that loss is fully deductible against ordinary income (so, none of the rules that limit the deductibility of capital losses apply).

Recapture rules

The availability of long-term capital gain treatment for business property net gain is limited by recapture rules. Recapture rules specify that amounts are treated as ordinary income rather than capital gain because of previous ordinary loss or deduction treatment for these amounts (such as depreciation, for example).

There’s a special recapture rule that applies only to business property. Under this rule, to the extent you’ve had a business property net loss within the previous five years, any business property net gain is treated as ordinary income, not as long-term capital gain.

More tax code details

Here are some more details about two types of property:

Section 1245 property. This is all depreciable personal property, tangible or intangible, and certain depreciable real property (usually, real property with specific functions). If you sell this property, you must recapture your gain as ordinary income to the extent of your earlier depreciation deductions on the asset.

Section 1250 property. This type of property generally includes buildings and their structural components. If you sell such property that was placed in service after 1986, none of the long-term capital gain attributable to depreciation deductions will be subject to depreciation recapture. (Additional rules apply for Section 1250 property placed in service in 1986 or earlier.)

However, for most noncorporate taxpayers, the gain attributable to depreciation deductions up to the amount of the business property net gain will be taxed at no higher than 28.8% (as reduced by the business property recapture rule above). That’s 25% plus the 3.8% net investment income tax (NIIT), rather than the maximum 23.8% rate (20% plus the 3.8% NIIT) that generally applies to long-term capital gains of noncorporate taxpayers.

Proceed with caution

As you can see, the tax treatment of the sale of business assets can be complex. And different rules apply based on property type, such as property held for sale to customers, intellectual property, low-income housing, and farming or livestock property. Contact us for help with specific transactions or additional questions.