Article summary. The Tax Increase Prevention and Reconciliation Act, enacted by Congress, contains several provisions of interest to church leaders, including an extension of various tax provisions that were scheduled to expire in the near future, and relief from the alternative minimum tax. This article summarizes the key provisions in the new legislation.
On May 17, 2006, President Bush signed into law the Tax Increase Prevention and Reconciliation Act of 2005. The Act contains a number of provisions of interest to church leaders. For example, it extends the lower tax rates on capital gains and dividends that were scheduled to increase after 2008; prevents several tax provisions from expiring in the near future; and protects millions of Americans from being subject to the alternative minimum tax (AMT).
1. Section 179 deduction
Instead of claiming depreciation deductions over the useful life of a business asset, section 179 of the tax code allows taxpayers to deduct the cost of such an asset in the year of purchase. The maximum amount that can be deducted in the year of purchase is $100,000 through 2007. The $100,000 amount is adjusted annually for inflation, and is $105,000 in 2006. For taxable years beginning in 2008 and thereafter the $100,000 amount was to be reduced to $25,000, and would not be adjusted annually for inflation.
TIPRA extends for two years the increased amount that a taxpayer may deduct and the other section 179 rules applicable in taxable years beginning before 2008. As a result, these present-law rules continue in effect for 2008 and 2009.
Comment. This provision will have limited effect on ministers and other church employees, since few purchase business assets costing more than $25,000. For those few who do, the section 179 deduction will be available under the current higher limits through 2009.
2. Reduced tax rates for capital gains
In general, gain or loss reflected in the value of an asset is not recognized for income tax purposes until a taxpayer disposes of the asset. On the sale or exchange of a capital asset, any gain generally is included in income. Any net capital gain of an individual is taxed at maximum rates lower than the rates that apply to ordinary income. Net capital gain is the excess of the net long-term capital gain for the taxable year over the net short-term capital loss for the year. Gain or loss is treated as long-term if the asset is held for more than one year.
Capital losses generally are deductible in full against capital gains. In addition, individual taxpayers may deduct capital losses against up to $3,000 of ordinary income in each year. Any remaining unused capital losses may be carried forward indefinitely to another taxable year.
A capital asset generally means any property, except for several items that are specifically exempted by law (including property held primarily for sale to customers in the ordinary course of business, and property used in a taxpayer’s business).
For taxable years beginning before 2009, the maximum rate of tax on the adjusted net capital gain of an individual is 15 percent. Any adjusted net capital gain which otherwise would be taxed at a 10 or 15 percent ordinary income rate is taxed at a five percent rate (zero for taxable years beginning after 2007).
For taxable years beginning after 2008, the maximum rate of tax on the adjusted net capital gain of an individual was scheduled to increase to 20 percent. Any adjusted net capital gain which otherwise would be taxed at a 10 or 15 percent rate was to be taxed at a 10 percent rate. In addition, any gain from the sale or exchange of property held more than five years that would otherwise have been taxed at the 10 percent rate was to be taxed at an eight percent rate. Any gain from the sale or exchange of property held more than five years and the holding period for which began after 2000, which would otherwise have been taxed at a 20 percent rate, was to be taxed at an 18 percent rate.
TIRPA extends through 2010 the lower capital gain rates that were scheduled to expire at the end of 2008.
• Example. In 2006 Pastor Andy sells stock that he has owned for three years. The sale results in a long-term capital gain of $5,000. Assuming that Pastor Andy has taxable income of $40,000 for 2006, his capital gain will be taxed at a 5% rate since he is in the 15% income tax bracket.
• Example. Same facts as the previous example except that Pastor Andy sells the stock in 2009. If TIRPA had not been enacted, Pastor Andy’s capital gain would have been taxed at a rate of 10%. However, TIRPA reinstates the prior 5% tax rate through 2010.
3. Reduced tax rates for dividends
Under current law, dividends are taxed at the same rates that apply to capital gains (see above). As a result, for taxable years beginning before 2009, dividends are taxed at rates of 5 percent (zero for taxable years beginning after 2007) and 15 percent.
• Key point. If a shareholder does not hold a share of stock for more than 60 days during the 121-day period beginning 60 days before the ex-dividend date, dividends received on the stock are not eligible for the reduced rates.
For taxable years beginning after 2008, dividends received by an individual were to be taxed as ordinary income at rates of up to 35 percent. TIRPA extends for two years the current provisions relating to lower dividend tax rates (through 2010).
4. Capital gains treatment for certain self-created musical works
The maximum tax rate on the net capital gain income of an individual is 15 percent. By contrast, the maximum tax rate on an individual’s ordinary income is 35 percent. The reduced 15-percent rate generally is available for gain from the sale of a capital asset that the taxpayer has held for more than one year.
An exclusion from the definition of a capital asset applies to copyrights, literary, musical, or artistic compositions, letters or memoranda, or similar property held by a taxpayer whose personal efforts created the property. As a result, when taxpayers sell a musical work that they created, any gain from the sale is treated as ordinary income, not capital gain.
• Key point. A taxpayer generally is allowed a deduction for the fair market value of property contributed to a charity. If a taxpayer makes a contribution of property that would have generated ordinary income (or short-term capital gain), the taxpayer’s charitable contribution deduction generally is limited to the property’s adjusted basis.
Under TIPRA, the sale before 2011 of musical compositions or copyrights in musical works created by a taxpayer’s personal efforts is treated as the sale of a capital asset. This change generally will result in less taxes for composers who sell their musical works.
5. Extend and increase alternative minimum tax exemption amount for individuals
Current law imposes an alternative minimum tax. The alternative minimum tax is the amount by which the “tentative minimum tax” exceeds the regular income tax. An individual’s tentative minimum tax is the sum of (1) 26 percent of so much of the taxable excess as does not exceed $175,000 ($87,500 in the case of a married individual filing a separate return) and (2) 28 percent of the remaining taxable excess. The taxable excess is so much of the alternative minimum taxable income (“AMTI”) as exceeds the exemption amount. The maximum tax rates on net capital gain and dividends used in computing the regular tax are used in computing the tentative minimum tax. AMTI is the individual’s taxable income adjusted to take account of specified preferences and adjustments.
The exemption amount is $45,000 in the case of married individuals filing a joint return and surviving spouses; $33,750 in the case of unmarried individuals other than surviving spouses; and $22,500 in the case of married individuals filing a separate return. The exemption amount is phased out by an amount equal to 25 percent of the amount by which the individual’s AMTI exceeds $150,000 in the case of married individuals filing a joint return and surviving spouses; $112,500 in the case of unmarried individuals other than surviving spouses; and $75,000 in the case of married individuals filing separate returns. These amounts are not indexed for inflation.
For taxable years beginning in 2006, TIRPA increases the exemption amounts to: (1) $62,550 in the case of married individuals filing a joint return and surviving spouses; (2) $42,500 in the case of unmarried individuals other than surviving spouses; and (3) $31,275 in the case of married individuals filing a separate return.
6. Partial payments required with submissions of offers-in-compromise
The IRS has the authority to compromise any civil or criminal case arising under federal tax law. In general, taxpayers initiate this process by making an “offer in compromise,” which is an offer by the taxpayer to settle an outstanding tax liability for less than the total amount due. The IRS currently imposes a user fee of $150 on most offers, payable upon submission of the offer to the IRS. Taxpayers may justify their offers on the basis of doubt as to collectibility or liability or on the basis of effective tax administration. In general, enforcement action is suspended during the period that the IRS evaluates an offer. In some instances, it may take the IRS 12 to 18 months to evaluate an offer. Taxpayers are permitted (but not required) to make a deposit with their offer; if the offer is rejected, the deposit is generally returned to the taxpayer. There are two general categories of offers in compromise—lump-sum offers and periodic payment offers. Taxpayers making lump-sum offers propose to make one lump-sum payment of a specified dollar amount in settlement of their outstanding liability. Taxpayers making periodic payment offers propose to make a series of payments over time (either short-term or long-term) in settlement of their outstanding liability.
TIRPA amends federal tax law to require a taxpayer to make partial payments to the IRS while the taxpayer’s offer in compromise is being considered by the IRS. For lump-sum offers, taxpayers must make a down payment of 20 percent of the amount of the offer with any application (in addition to the applicable user fee). For purposes of this provision, a lump-sum offer includes single payments as well as payments made in five or fewer installments. For periodic payment offers, the provision requires the taxpayer to comply with the taxpayer’s own proposed payment schedule while the offer is being considered. Offers submitted to the IRS that do not comport with these payment requirements may be returned to the taxpayer as unprocessable and immediate enforcement action is permitted.
• Key point. TIRPA clarifies that an offer is deemed accepted if the IRS does not make a decision with respect to the offer within two years from the date the offer was submitted.
7. Increase in age of minor children whose unearned income is taxed as if parent’s income
A single unmarried individual eligible to be claimed as a dependent on another taxpayer’s return generally must file an individual income tax return if he or she has: (1) earned income only over $5,150 (for 2006); (2) unearned income only over the minimum standard deduction amount for dependents ($850 in 2006); or (3) both earned income and unearned income totaling more than the smaller of (a) $5,150 (for 2006) or (b) the larger of (i) $850 (for 2006), or (ii) earned income plus $300. As a result, if a dependent child has less than $850 in gross income, the child does not have to file an individual income tax return for 2006.
A child who cannot be claimed as a dependent on another person’s tax return is subject to the generally applicable filing requirements. Such a child generally must file a return if the individual’s gross income exceeds the sum of the standard deduction and the personal exemption amount ($3,300 for 2006).
Special rules (generally referred to as the “kiddie tax”) apply to the unearned income of a child who is under age 14. The kiddie tax applies if: (1) the child has not reached the age of 14 by the close of the taxable year; (2) the child’s unearned income was more than $1,700 (for 2006); and (3) the child is required to file a return for the year. The kiddie tax applies regardless of whether the child may be claimed as a dependent on the parent’s return.
For these purposes, unearned income is income other than wages, salaries, professional fees, or other amounts received as compensation for personal services actually rendered. For children under age 14, net unearned income (for 2006, generally unearned income over $1,700) is taxed at the parent’s rate if the parent’s rate is higher than the child’s rate. The remainder of a child’s taxable income (i.e., earned income, plus unearned income up to $1,700 (for 2006), less the child’s standard deduction) is taxed at the child’s rates, regardless of whether the kiddie tax applies to the child. In general, a child is eligible to use the preferential tax rates for qualified dividends and capital gains.
The kiddie tax is calculated by computing the “allocable parental tax.” This involves adding the net unearned income of the child to the parent’s income and then applying the parent’s tax rate. A child’s “net unearned income” is the child’s unearned income less the sum of (1) the minimum standard deduction allowed to dependents ($850 for 2006), and (2) the greater of (a) such minimum standard deduction amount or (b) the amount of allowable itemized deductions that are directly connected with the production of the unearned income. A child’s net unearned income cannot exceed the child’s taxable income.
Unless the parent elects to include the child’s income on the parent’s return (as described below) the child files a separate return to report the child’s income. In this case, items on the parent’s return are not affected by the child’s income. The total tax due from a child is the greater of:
1. The sum of (a) the tax payable by the child on the child’s earned income and unearned income up to $1,700 (for 2006), plus (b) the allocable parental tax on the child’s unearned income, or
2. The tax on the child’s income without regard to the kiddie tax provisions.
Parental election to include child’s dividends and interest on parent’s return
Under certain circumstances, a parent may elect to report a child’s dividends and interest on the parent’s return. If the election is made, the child is treated as having no income for the year and the child does not have to file a return. The parent makes the election on Form 8814, Parents’ Election to Report Child’s Interest and Dividends. The requirements for the parent’s election are that:
1. The child has gross income only from interest and dividends (including capital gains distributions);
2. Such income is more than the minimum standard deduction amount for dependents ($850 in 2006) and less than 10 times that amount ($8500 in 2006);
3. No estimated tax payments for the year were made in the child’s name and taxpayer identification number;
4. No backup withholding occurred; and
5. The child is required to file a return if the parent does not make the election.
Only the parent whose return must be used when calculating the kiddie tax may make the election. The parent includes in income the child’s gross income in excess of twice the minimum standard deduction amount for dependents (i.e., the child’s gross income in excess of $1,700 for 2007). This amount is taxed at the parent’s rate. The parent also must report an additional tax liability equal to the lesser of: (1) $850 (in 2006), or (2) 10 percent of the child’s gross income exceeding the child’s standard deduction ($850 in 2006).
Including the child’s income on the parent’s return can affect the parent’s deductions and credits that are based on adjusted gross income, as well as income-based phaseouts, limitations, and floors. In addition, certain deductions that the child would have been entitled to take on his or her own return are lost. Further, if the child received tax-exempt interest from a private activity bond, that item is considered a tax preference of the parent for alternative minimum tax purposes.
TIRPA increases the age to which the kiddie tax provisions apply from under 14 to under 18 years of age for tax years beginning after 2005. TIRPA also creates an exception to the kiddie tax for distributions from certain qualified disability trusts, and clarifies that the kiddie tax does not apply to a child who is married and files a joint return for the taxable year.
8. Eliminate income limitations on Roth IRA conversions
There are two general types of individual retirement arrangements (“IRAs”): traditional IRAs and Roth IRAs. The total amount that an individual may contribute to one or more IRAs for a year is generally limited to the lesser of: (1) a dollar amount ($4,000 for 2006); and (2) the amount of the individual’s compensation that is includible in gross income for the year. In the case of an individual who has attained age 50 before the end of the year, the dollar amount is increased by an additional amount ($1,000 for 2006). In the case of a married couple, contributions can be made up to the dollar limit for each spouse if the combined compensation of the spouses that is includible in gross income is at least equal to the contributed amount. IRA contributions in excess of the applicable limit are generally subject to an excise tax of six percent per year until withdrawn.
Contributions to a traditional IRA may or may not be deductible. The extent to which contributions to a traditional IRA are deductible depends on whether or not the individual (or the individual’s spouse) is an active participant in an employer-sponsored retirement plan and the taxpayer’s AGI. An individual may deduct his or her contributions to a traditional IRA if neither the individual nor the individual’s spouse is an active participant in an employer-sponsored retirement plan. If an individual or the individual’s spouse is an active participant in an employer-sponsored retirement plan, the deduction is phased out for taxpayers with AGI over certain levels. To the extent an individual does not or cannot make deductible contributions, the individual may make nondeductible contributions to a traditional IRA, subject to the maximum contribution limit. Distributions from a traditional IRA are includible in gross income to the extent not attributable to a return of nondeductible contributions.
Individuals with adjusted gross income (“AGI”) below certain levels may make contributions to a Roth IRA (up to the maximum IRA contribution limit). The maximum Roth IRA contribution is phased out between $150,000 to $160,000 of AGI in the case of married taxpayers filing a joint return and between $95,000 to $105,000 in the case of all other returns (except a separate return of a married individual). Contributions to a Roth IRA are not deductible. Qualified distributions from a Roth IRA are excludable from gross income. Distributions from a Roth IRA that are not qualified distributions are includible in gross income to the extent attributable to earnings. In general, a qualified distribution is a distribution that is made on or after the individual attains age 59-1/2, death, or disability or which is a qualified special purpose distribution. A distribution is not a qualified distribution if it is made within the five-taxable year period beginning with the taxable year for which an individual first made a contribution to a Roth IRA.
A taxpayer with AGI of $100,000 or less may convert all or a portion of a traditional IRA to a Roth IRA. The amount converted is treated as a distribution from the traditional IRA for income tax purposes, except that the 10-percent additional tax on early withdrawals does not apply.
In the case of a distribution from a Roth IRA that is not a qualified distribution, certain ordering rules apply in determining the amount of the distribution that is includible in income. For this purpose, a distribution that is not a qualified distribution is treated as made in the following order: (1) regular Roth IRA contributions; (2) conversion contributions (on a first in, first out basis); and (3) earnings. To the extent a distribution is treated as made from a conversion contribution, it is treated as made first from the portion, if any, of the conversion contribution that was required to be included in income as a result of the conversion.
Includible amounts withdrawn from a traditional IRA or a Roth IRA before attainment of age 59-1/2, death, or disability are subject to an additional 10-percent early withdrawal tax, unless an exception applies.
TIRPA eliminates the income limits on conversions of traditional IRAs to Roth IRAs. As a result, taxpayers may make such conversions without regard to their AGI.
For conversions occurring in 2010, unless a taxpayer elects otherwise, the amount includible in gross income as a result of the conversion is included ratably in 2011 and 2012. That is, unless a taxpayer elects otherwise, none of the amount includible in gross income as a result of a conversion occurring in 2010 is included in income in 2010, and half of the income resulting from the conversion is includible in gross income in 2011 and half in 2012. However, income inclusion is accelerated if converted amounts are distributed before 2012. In that case, the amount included in income in the year of the distribution is increased by the amount distributed, and the amount included in income in 2012 (or 2011 and 2012 in the case of a distribution in 2010) is the lesser of: (1) half of the amount includible in income as a result of the conversion; and (2) the remaining portion of such amount not already included in income. The following example illustrates the application of the accelerated inclusion rule.
• Example. Pastor Terry has a traditional IRA with a value of $100, consisting of deductible contributions and earnings. Pastor Terry does not have a Roth IRA. He converts the traditional IRA to a Roth IRA in 2010, and, as a result of the conversion, $100 is includible in gross income. Unless he elects otherwise, $50 of the income resulting from the conversion is included in income in 2011 and $50 in 2012. Later in 2010, Pastor Terry takes a $20 distribution, which is not a qualified distribution and all of which is attributable to amounts includible in gross income as a result of the conversion. Under the accelerated inclusion rule, $20 is included in income in 2010. The amount included in income in 2011 is the lesser of (1) $50 (half of the income resulting from the conversion) or (2) $70 (the remaining income from the conversion), or $50. The amount included in income in 2012 is the lesser of (1) $50 (half of the income resulting from the conversion) or (2) $30 (the remaining income from the conversion, i.e., $100 – $70 ($20 included in income in 2010 and $50 included in income in 2011)), or $30.
9. Modification of exclusion for citizens living abroad
U.S. citizens generally are subject to U.S. income tax on all their income, whether derived in the United States or elsewhere. A U.S. citizen who earns income in a foreign country also may be taxed on that income by the foreign country. The United States generally cedes the primary right to tax a U.S. citizen’s non-U.S. source income to the foreign country in which the income is derived. This concession is effected by the allowance of a credit against the U.S. income tax imposed on foreign-source income for foreign taxes paid on that income. The amount of the credit for foreign income tax paid on foreign-source income generally is limited to the amount of U.S. tax otherwise owed on that income. Accordingly, if the amount of foreign tax paid on foreign-source income is less than the amount of U.S. tax owed on that income, a foreign tax credit generally is allowed in an amount not exceeding the amount of the foreign tax, and a residual U.S. tax liability remains.
A U.S. citizen or resident living abroad may be eligible to exclude from U.S. taxable income certain foreign earned income and foreign housing costs. This exclusion applies regardless of whether any foreign tax is paid on the foreign earned income or housing costs. To qualify for these exclusions, an individual (a “qualified individual”) must have his or her tax home in a foreign country and must be either (1) a U.S. citizen who is a bona fide resident of a foreign country or countries for an uninterrupted period that includes an entire taxable year, or (2) a U.S. citizen or resident present in a foreign country or countries for at least 330 full days in any 12-consecutive-month period.
The foreign earned income exclusion generally is available for a qualified individual’s non-U.S. source earned income attributable to personal services performed by that individual during the period of foreign residence or presence described above. The maximum exclusion amount for any calendar year is $80,000 in 2002 through 2007 and is indexed for inflation after 2007.
Foreign housing expenses
A qualified individual is allowed an exclusion from gross income (or, as described below, a deduction) for certain foreign housing costs paid or incurred by or on behalf of the individual. The amount of this housing cost exclusion is equal to the excess of a taxpayer’s “housing expenses” over a base housing amount. The term “housing expenses” means the reasonable expenses paid or incurred during the taxable year for a taxpayer’s housing (and, if they live with the taxpayer, for the housing of the taxpayer’s spouse and dependents) in a foreign country. The term includes expenses attributable to housing such as utilities and insurance, but it does not include separately deductible interest and taxes. If the taxpayer maintains a second household outside the United States for a spouse or dependents who do not reside with the taxpayer because of dangerous, unhealthful, or otherwise adverse living conditions, the housing expenses of the second household also are eligible for exclusion. The base housing amount above which costs are eligible for exclusion in a taxable year is 16 percent of the annual salary (computed on a daily basis) of a grade GS-14, step 1, U.S. government employee, multiplied by the number of days of foreign residence or presence (as described above) in the taxable year. For 2006 this salary is $77,793; the current base housing amount therefore is $12,447 (assuming the taxpayer is a bona fide resident of or is present in a foreign country every day during the year).
To the extent otherwise excludable housing costs are not paid or reimbursed by a taxpayer’s employer, these costs generally are allowed as a deduction in computing adjusted gross income.
Exclusion limitation amounts
The combined foreign earned income exclusion and housing cost exclusion (including the amount of any deductible housing costs) may not exceed the taxpayer’s total foreign earned income for the taxable year. The taxpayer’s foreign tax credit is reduced by the amount of the credit that is attributable to excluded income.
TIRPA enacts the following changes to the foreign earned income exclusion, beginning with 2006:
(1) It adjusts for inflation the maximum amount of the foreign earned income exclusion in taxable years beginning in calendar years after 2005 (rather than, as under present law, after 2007). The limitation in 2006 therefore is $82,400.
(2) The base housing amount used in calculating the foreign housing cost exclusion in a taxable year is 16 percent of the amount (computed on a daily basis) of the foreign earned income exclusion limitation (instead of the present law 16 percent of the grade GS-14, step 1 amount), multiplied by the number of days of foreign residence or presence (as previously described) in that year.
Reasonable foreign housing expenses in excess of the base housing amount remain excluded from gross income (or, if paid by the taxpayer, are deductible), but the amount of the exclusion is limited to 30 percent of the maximum amount of a taxpayer’s foreign earned income exclusion. The IRS is authorized to adjust this 30-percent housing cost limitation based on geographic differences in housing costs relative to housing costs in the United States.
• Key point. Under the 30-percent rule described above, the maximum amount of the foreign housing cost exclusion in 2006 is (assuming foreign residence or presence on all days in the year) $11,536 (= ($82,400 x 30 percent) – ($82,400 x 16 percent)).
(3) If an individual excludes an amount from income under section 911, any income in excess of the exclusion amount determined under section 911 is taxed (under the regular tax and alternative minimum tax) by applying to that income the tax rates that would have been applicable had the individual not elected the section 911 exclusion. For example, an individual with $80,000 of foreign earned income that is excluded under section 911 and with $20,000 in other taxable income (after deductions) would be subject to tax on that $20,000 at the rate or rates applicable to taxable income in the range of $80,000 to $100,000.
• Example. Tim is an ordained minister who works as a missionary in a foreign country for all of 2006. He receives compensation of $40,000 in 2006 for the services he performs as a missionary. Under TIRPA, he will not be subject to federal income tax on the first $82,400 of foreign earned income. Note that the “foreign housing cost exclusion” does not apply to Tim since his total compensation is below the $82,400 exclusion amount and the additional exclusion is not necessary. Further, as a minister, he is eligible for the housing allowance exclusion available to clergy under section 107 of the tax code. But, since his total compensation is excluded from taxable income (for income tax reporting) as a result of the foreign earned income exclusion, there is no need to use the housing allowance exclusion. Note that Tim is subject to self-employment taxes on his full compensation. The foreign earned income exclusion, and the clergy housing allowance, are not excluded when computing self-employment taxes.
IRS Publication 517 states that a minister’s compensation that is subject to the self-employment tax is determined “without any foreign earned income exclusion or the foreign housing exclusion or deduction if you are a U.S. citizen or resident alien who is serving abroad and living in a foreign country.” The following example is provided: “Paul Jones was the minister of a U.S. church in Mexico. He earned $22,000 and was able to exclude it all for income tax purposes under the foreign earned income exclusion. However, Mr. Jones must include $22,000 when figuring net earnings from self-employment.”
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