2021 Tax Proposals: Rate Changes
With the holiday season in the rear view mirror, it is a good time to reflect on tax proposals and changes for 2021 and forward as they might impact real estate.
This Note is directed toward this goal of reflection and to examine on an overview basis the considerations that should be weighed by professionals connected with real estate investments and how such positions will fare in the coming months and years because of Federal tax changes that have been made or are proposed as new tax Federal tax positions.
These new positions in the Federal tax setting are indispensable topics for those connected with real estate, be they investors, dealers, tax advisors, attorneys, CPAs, consultants, financial advisors, brokers, and many others.
This Note will present, on a broad perspective, some of these tax proposals and recently approved changes to the Federal tax laws, mainly as to the income tax issues. The discussion is in no order of priority as what is crucial in these changes and proposals that have the greatest impact to a given party. Thus, for example, a home builder, as a dealer in a given piece of real estate, will recognize ordinary income. Therefore, a discussion on the subject of capital gains, for this dealer, is not relevant. However, the issue of the given tax bracket, including a major increase in tax rates, would be very important to the investor in real estate, among others.
Proposed Changes and Recently Enacted Changes, Tax Rates/Brackets:
Ordinary Income Tax Brackets:
One of the more basic issues in the Federal income tax area is to determine the tax rates applicable to income subject to taxation.
As to ordinary income earned by taxpayers, the rate in 2017, prior to the Tax Cuts and Jobs Act of 2017, would be higher as compared to the rates applicable to such income for the year 2020. As an example, a married couple filing a tax return in 2017 would pay a rate of 39.6% for taxable income in excess of $480,050. Yet, the same income earned by the same couple in 2018 would pay 35% on income in excess of $480,050, until the income of the couple exceeded $600,000. Under the TCJA changes, the maximum rate would be (and is, today) a maximum of 37%; yet, the rate, prior to the TCJA changes would have been 39.6%. Thus, the taxpayers saved on the level of the bracket as to moving up in rates; and, they saved as to the highest tax bracket, viz., the bracket moved down from 39.6% to a maximum of 37%.
Under the tax plan proposals by President Joe Biden, this reduced rate of 37% would move back to a 39.6% (highest rate) position.Further, this highest rate would be applicable at a lower level of taxable income. As an example, referring to the rates noted above, prior to the TCJA, the highest rate of 39.6%, with the change noted, would come in to play by a married couple, filing a joint return, when their taxable income exceeded $470,700.
Capital Gain Tax Brackets:
Ordinary income is taxed at a higher rate than is true for what are labeled as long term capital gains. Assets that are disposed of at a gain, where the asset is held for a period of time in excess of one year and held not for resale, but for investment, can normally generate a capital gain. This is, of course, is a favorable position for the taxpayer, since such gain is taxed, normally, at a rate that is much below the rate of tax applied to ordinary income.
The Biden Administration has proposed that long term capital gains would not receive the lower tax rates discussed above, where the income by the taxpayer is in excess of one million dollars. In such instance, the rate would be the ordinary income tax rate, as increased as discussed above, to 39.6%.
It is of interest to speculate as to what taxpayers will and will not do if some of these proposals become law. Will, for example, taxpayers be less inclined to dispose of property if the tax rate on capital gains moves from the current rate of, generally, a maximum of 20% to almost 40%?
In addition to the above rate changes on capital gain sales, the Biden Proposal-- for gains from qualified capital gain dividends-- is to also increase the rates from the current maximum level that normally applies to such sales (20%) to 39.6%, as noted above, where taxpayers have income over one million dollars. *
Dr. Mark Lee Levine,
Professor, University of Denver
 In this Note, we will examine many of the proposals that are being put forth by the Biden Administration to change current Federal income tax laws, among others. Biden Tax Plan: Details & Analysis | Election 2020 | Tax Foundation It should be stressed that even without the Biden Administration proposals, many tax changes will occur for years commencing after 2025. This change was built into much of the TCJA, which made many changes that were effective only through 2025, such as the reduced tax rates for individuals.  A “dealer” is one that normally buys and sells the given property in question on a regular basis. For a detailed discussion of this issue, see 26 USCA Code Section 1221 (a) (1) (I.R.C. 1986, as amended). (Hereinafter, the reference to 26 USCA as amended, will be by reference to “Code” or “Internal Revenue Code.”  For a discussion of the distinction between ordinary income and other types of Federal taxable income, see Levine, Mark Lee and Levine, Libbi Segev, Real Estate Transactions, Tax Planning, Chapters 1, 8 and 16.  See Code Section 1221 (a). See also the Levine text, cited supra, Footnote 3, Chapter 8.  See Code Section 1.  See Code Section 1.  “Ordinary income” is normally contrasted with capital gain rates. See Code Section 1.  The Tax Cuts and Jobs Act of 2017, herein normally referred to as the TCJA, was signed by the President on 12/22, 2017.  At the time of preparing this Note, President Trump and others are continuing their challenge to the election of President elect Joe Biden.  A good summary of some of the proposals by the Biden Administration can be found in publications by the Tax Foundation. Biden Tax Plan: Details & Analysis | Election 2020 | Tax Foundation https://taxfoundation.org/joe-biden-tax-proposals/; see also Eastman, Scott, “Unpacking Biden’s Tax Plan for Capital Gains,” Tax Foundation, July 31, 2019.  Id.  This type or category of income is generally income from services or other ordinary activity. See Code Section 1 (a) and the Levine text, cited supra, Footnote 3, Chapters 1 and 8.  Id.  It is assumed the reader is generally familiar with the demarcation between ordinary income and capital gain. For more detail on this and related issues as to capital gain, including such issues as the formal definition of a capital asset, the holding period, intent for use as an investment, etc., see the Levine text, cited supra, Footnote 3. See also Code Sections 1 and 1221.  See the earlier discussion on tax rates in this Note and Code Section 1.  See the Biden Administration proposals as examined in the Tax Foundation analysis at Biden Tax Plan: Details & Analysis | Election 2020 | Tax Foundation  The 20% rate is generally the 2020 ceiling of tax rates applied to tax long term capital gains. However, there are other higher rates on some capital gain items, such as collectibles; these can be taxed at a rate as high as 28%. Recapture tax on sale of real estate that was depreciated is generally taxed at 25%. For more on these rates and items, see the Levine text, cited supra, Footnote 3, Chapters 14 and 15. See also Code Section 1250.  See the Tax Foundation study, cited supra, Footnote 10.
* This Note highlights a few of the 2021 possible Federal Income Tax Proposed changes by the Biden administration as to tax rates. This Tip was drawn from the full article by Mark Lee Levine and Libbi Levine Segev as to possible Federal Income Tax Changes in 2021.
For an examination of the full article, scheduled to be published in early 2021, send an email request to email@example.com.