Proposed Billionaires Income Tax & Elimination of 1031 Exchanges

Posted by Jordan Born, J.D., LL.M. | Tue, Nov 09, 2021

Sen. Ron Wyden (D-OR), through the budget reconciliation process, has proposed imposing a one-time billionaires income tax on all the gains that had built up before the tax had been created.

Effective January 1, 2022, applicable taxpayers would owe taxes on the appreciation of stock and other non-financial assets (such as real estate) dating to when they were first acquired. They would have five years to pay the bill.

After that, Wyden's plan would charge capital gains taxes on the subsequent annual appreciation, with different rules for different kinds of assets. Assets like real estate would not be taxed until they are sold but would then face an imputed interest charge designed to approximate the tax people would have faced if they had been publicly traded assets.

An “applicable taxpayer” is an individual who meets either the income test or the asset test for each of the three immediately preceding taxable years. A taxpayer meets the income test if they have applicable adjusted gross income exceeding $100,000,000 (for joint and single filers). A taxpayer meets the asset test if the aggregate applicable value of all covered assets held by the taxpayer at the end of the year exceeds $1,000,000,000 (for joint and single filers). To be considered an applicable taxpayer, a taxpayer need only exceed one of the thresholds in a given year for that year to be counted towards the three-year requirement, and the taxpayer need not meet the same threshold in each of the three years.

An “applicable transfer” is defined as any sale, exchange, disposition, or other transfer that results in recognized gain or loss outside of the ordinary course of a trade or business and any disregarded nonrecognition event. Disregarded nonrecognition events (events that will require applicable taxpayers to recognize gain when it would not otherwise be required) include but are not limited to any exchange to which Section 1031 applies and any other transaction determined necessary to treat as a disregarded nonrecognition event in order to prevent avoidance.

The Billionaires Income Tax would apply to roughly 700 taxpayers and potentially raise hundreds of billions of dollars. The purpose behind the tax is to ensure the wealthiest people in the country pay their fair share toward historic investments in childcare, paid leave, and addressing the climate concerns. Only taxpayers with more than $100 million in annual income or more than $1 billion in assets for three consecutive years would be covered by the proposal.

Under this proposal, like-kind exchanges under Section 1031 would not apply to an exchange by an applicable taxpayer or significant owner of applicable entity if the applicable entity has received a notice that an applicable taxpayer is a significant owner of such entity. As a result, the tax deferral benefits associated with performing 1031 exchange would be eliminated for those applicable taxpayers or entities for exchanges completed after December 31, 2021.

 

Deferral charge on gains from assets like real estate

When a billionaire sells a non-tradable asset (like real estate), they would pay their usual tax, plus a “deferral recapture amount,” which is akin to interest on tax deferred while the applicable taxpayer or entity held that asset.

The deferral recapture amount is calculated by allocating an equal amount of gain to each year in the holding period, determining how much tax would have been owed on the gain in each year, and assessing interest on unpaid tax for the time the tax was deferred. The interest rate used is the short-term federal rate plus one percentage point, and no interest accrues prior to the date of enactment of the proposal or the first tax year the individual is subject to the Billionaires Income Tax, whichever is later.

Although the proposal would only concern approximately 700 taxpayers as written, it would have a chilling effect on those taxpayers selling investment real estate because the tax deferral benefits of 1031 exchanges would no longer inure to their benefit. It is important to maintain 1031 exchanges as written and uniformly apply it to all taxpayers. Otherwise, the limitation could severally curtail real estate purchase and sale transactions and all those related to these deals.

1031 CORP. will continue to monitor the situation closely and share any developments regarding the proposal or threatened action by Congress as soon as they become available. You may also continue to check on 1031 CORP.’s website for any further updates. As always, please contact our Exchange Team at 1031 CORP. regarding any questions or next steps in order to perform your next exchange.

 

Topics: 1031 Exchange, Live, Billionaires Income Tax

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