Struggling business owners who took advantage of the government’s Payroll Protection Program (“PPP”) lifeline this year are now caught in the middle of an ugly fight between Congress and the IRS. At stake: Business owners’ ability to deduct several business expenses on this year’s tax returns.
If you are concerned about incurring debt after a family member’s death or are worried how your own debt will impact your family, here are some things you should know.
First things first: At death, your assets become your estate. The process of dividing up debt after your death is called probate. The length of time creditors have to make a claim against the estate depends on where you live. It can range anywhere from three months to nine months. Therefore, you should get familiar with your state’s estate laws, so you are well aware of which rules apply to you.
Beyond those basics, here are some cases where debts are forgiven after death and others where they still must be paid, one way or another:
The Coronavirus Aid, Relief, and Economic Security (CARES) Act was passed with overwhelming, bipartisan support to help defray the economic effects of COVID-19 and the government-mandated shutdowns. With a goal of providing fast, direct economic assistance to small businesses, the PPP was a key component of the CARES Act. The PPP provides small businesses with a dischargeable loan equal to 2.5 times the business’s average monthly payroll costs (up to $10 million). (For full details on the PPP program, please see this excellent online tutorial by attorney Paige L. Minch, a colleague of mine.)
Load Error
The CARES Act allows PPP loan proceeds to be forgiven if used for certain business expenses, including payroll, mortgage interest, rent and utilities, during the “covered period.” The covered period was triggered upon disbursement of the loan to the recipient and could end on the earlier of 24 weeks or Dec. 31, 2020.
As my partner, tax attorney Gary A. Forster explains, “a significant benefit to small businesses is the tax treatment of the PPP loan.” Section 1106(i) of the CARES Act excludes forgiven PPP loan proceeds from taxable income:
Taxability: any amount which (but for this subsection) would be includible in gross income of the eligible recipient by reason of forgiveness described in subsection (b) shall be excluded from gross income.
Without this key feature, forgiven loan proceeds are subject to U.S. income tax.
The IRS Steps in with Its Own Take on the Policy
The Act does not expressly address tax treatment (i.e., deductibility) of business expenses paid with PPP loan proceeds. But as Forster explains, “If the proceeds used to pay the expenses are not taxable as income, then the only logical reading is that the expenses paid must be deductible.” Otherwise, the non-deductibility completely unwinds the tax benefit provided by 1106(i). Nevertheless, the IRS has seized upon the silence as an apparent loophole, by announcing that expenses paid with forgiven PPP loan proceeds are not deductible. The IRS’ position would frustrate the intended tax benefit of the PPP loan by effectively taxing discharged PPP loan proceeds.
About four years ago, Kelley Brooks’s husband, Chris, who was being treated for hypertension, died in his sleep. Like so many other couples in their 40s, they had talked about estate planning but never got around to it. “You think you have forever to do all that, but you don’t,” says Brooks, 49, of Bellingham, Mass.
Experts hear similar stories all the time, even as a deadly pandemic continues to raise awareness about the importance of estate planning. “People often underestimate how much it will cost if they don’t plan,” says Renee Fry, founder of Gentreo, an online estate-planning company.
For people nearly or newly retired, who potentially still have decades ahead for their assets to compound and grow, estate taxes are a huge concern, especially if Congress decides to move the goalposts again. It already did last year with new IRA rules that eliminated the stretch IRA, forcing some families to rethink their tax strategies.
The generous , now a whopping $11.58 million and rising to $11.7 million in 2021, may be next on the chopping block. The exemption is set to expire at the end of 2025—that is, if political and fiscal pressures don’t lead to a change sooner.
The large exemption has lulled many people into thinking they shouldn’t worry about estate taxes or other threats to their money, but they should, says attorney Martin Shenkman, a veteran estate and tax-planning attorney in the New York area.
“Anybody with wealth needs to plan,” says Shenkman, citing looming deficits that could hasten a change in the exemption amount. The federal gift and estate tax is currently 40% on amounts over the $11.58 million threshold, and some states also levy an estate tax. If the gift exemption is cut a lot, he says, it will shut down many ways people reduce their taxable estates.
Asset protection strategies that benefit you during your lifetime can also double as estate tax moves that preserve wealth for your heirs, he says.
“I’ve been jumping up and down about this because in difficult economic times, you tend to see more litigation,” says Shenkman, who uses several types of trusts to move money out of clients’ taxable estates. “When people are hurting, they look at every option to get money.”
So, how can you save as much as possible on fees and taxes and preserve the most for the people you leave behind? Consider these 13 estate-planning moves, which may be as simple as designating a different IRA beneficiary or as complex as setting up a trust.
Rethink IRA Investing Strategies
Passage of the Setting Every Community Up for Retirement Enhancement Act in 2019 upended estate plans by forcing most nonspouse beneficiaries of traditional IRAs into a 10-year window for distributing assets. Before the law took effect this year, those beneficiaries could “stretch” the distribution of an inherited IRA over their own lifetime. Now, some families must rethink how they leave assets, particularly to children and grandchildren. (Minor children have until they reach the age of majority before the 10-year clock for distributing assets starts ticking.)
Beneficiaries such as siblings or partners who are not more than 10 years younger than the account owner can still spread the distribution based on their life expectancy. People with disabilities also are exempt from the new rule. That could argue in favor of leaving a traditional IRA to them and other assets to children, the reverse of previous advice.
“Previously, people wanted to leave money to a grandchild and spread those [distributions] over 60 or more years. Now the window is different,” says Eric Bronnenkant, head of tax for Betterment.
Sneak in a Roth Conversion
The SECURE Act also raised the age for taking required minimum distributions from 70½ to 72. If you’re younger than the RMD age, you could take a voluntary distribution and convert it to a Roth IRA, Bronnenkant says. It’s a smart estate-planning move. Although nonspouse beneficiaries such as children and grandchildren will still need to deplete the account within 10 years, Roth distributions are tax-free.
Leverage the Annual Gift Tax Exclusion
Every year, anyone can give anyone else, or multiple people,a gift up to the annual gift tax exclusion amount, $15,000 in 2020. Couples can each give someone up to that limit, for a combined total of $30,000, without incurring gift tax. Go over this amount, and you’re required to file a gift tax return, with any amount in excess applying toward your lifetime exclusion.
Usually, the annual gift tax exclusion is the first thing we talk about “because it has no impact on the estate tax exemption, so you’re basically saving 40% on those gifts,” if you’re going to be subject to the estate tax, says Bronnenkant, referring to the top marginal estate tax rate. “Leveraging the annual exclusion every year is fantastic.”
Even better, he says, is the 529 college savings plan kicker, which allows a gift giver to contribute up to $75,000 at once to a plan, effectively spreading the exclusion over five years. If you’re married, the limit per couple is $150,000 per beneficiary. On the downside, you can’t spread the deduction over multiple years on your state taxes, or make additional gifts to the same person during the five years. And if you die during the five years while you’re spreading the exclusion, only a prorated amount applies to your estate. But Bronnenkant still thinks it’s a great deal for many people.
Use Up Your Lifetime Gift Exemption Early
If you think gift and estate tax limits are heading lower, Bronnenkant suggests using up your lifetime gift exclusion now.
“If you have an asset you think will appreciate and want to leverage today’s exclusion because you’re concerned it’s going lower, the IRS has given guidance that indicates you won’t be penalized for using up your exemption while you’re alive,” he says.
If you hold onto an appreciated asset and die when the exemption is lower, your estate tax will be higher because more of the estate will be taxable. What happens if you use up the exclusion and Congress doesn’t lower the lifetime exemption amount? You’ll still benefit because there is less in the estate that can be taxed when you die. There’s a tradeoff, however: The cost basis of gifted assets carries over to the person receiving the gift. “If you were going to end up being below the estate tax exemption in either scenario, you may be better off holding onto the asset until death so [your heirs] can benefit from the step-up in basis,” he says.
Plus, you’ll have more security in case you need the money. “I would prioritize economic security currently over a potential tax benefit in the future that is uncertain,” he says.
Another gifting strategy that doesn’t sacrifice economic security: Giving appreciated assets, such as stocks, to an ill spouse who is expected to die sooner than you will. Have your spouse name you as a beneficiary, putting you in line for a stepped-up basis at your spouse’s death.
“The IRS is hip to this strategy, and they’ve said the person who receives it must have it for at least a year,” he notes. And remember, the “ill” spouse could outlive the other.
Pay Medical or Education Expenses Directly
Another way to save on future estate taxes is to write checks for someone else’s medical expenses or education. Paying medical bills or tuition—for preschool through graduate school—doesn’t count toward the annual exclusion or the estate tax exemption, provided the checks are written directly to the health care provider or school, Bronnenkant notes.
“You can keep writing checks all day long and it reduces the taxable estate while making someone else very happy they don’t have to pay,” he says.
What if we give away too much? “It’s a fair question,” Bronnenkant says, noting the job loss and economic uncertainty brought on by the pandemic as well as their effect on future stock returns. “A lot of people are re-evaluating their charitable contributions and their gifting to grandchildren to see if those are sustainable, and people are at least considering cutting back temporarily.”
Build an Irrevocable Trust for Your Spouse
Many have a similar unease with an irrevocable trust because, by definition, it means largely giving up control of assets. But creating one now could help you take advantage of today’s high exemption, Shenkman says.
“If you move some money into a trust today, you can still benefit from [the exemption.] Spouse 1 puts money into a trust for Spouse 2 and all descendants,” he says. “You still as a couple can access the money.” Staying under the exemption amount gets money out of an estate now without gift tax, and you can still have some access to the funds through a spouse with the rest going to other heirs.
The trusts he’s talking about are called spousal lifetime access trusts. SLATs are irrevocable trusts with a spouse as beneficiary and perhaps children or grandchildren as remainder beneficiaries. While you’re still alive, your spouse can tap the trust for health, education and general living expenses, which indirectly benefits you. Meanwhile, your spouse can set up a SLAT naming you as beneficiary, but the trusts cannot be identical or the IRS may come knocking.
Shenkman creates SLATs frequently for clients, and established them for himself and his wife. “We’re both [each other’s] beneficiaries, and it has been untouched for over eight years,” he says, though if they end up needing the money down the road in retirement, it’s there. Generally, longevity helps prove the trusts weren’t thrown together quickly to hide assets from creditors.
To avoid a legal challenge to the trust, he recommends hiring an independent trustee to oversee distributions. And there are other caveats, including a cautionary note about dumping a big portion of your retirement wealth into them.
As PNC Insights, a wealth management publication of the financial institution, advises: “A couple should not fund a SLAT to such an extent that the couple’s asset base is reduced below what is necessary to maintain their lifestyle.” That’s because at their core, SLATs are irrevocable. Thinking you could be heading for a gray divorce? Steer clear.
As with other more complex trust strategies discussed here, it’s important to consult an experienced attorney about these ideas.
Bypass the Need for a Portable Exemption
Surviving spouses can choose to carry forward any remaining estate tax exemption unused by their deceased spouse, but it may not be the best strategy if you have appreciated assets, Bronnenkant says.
In that case, you may be better off preserving assets for heirs with a bypass trust, which is similar to a SLAT except it is funded at the first spouse’s death. The second spouse retains limited access to the funds inside the trust, with expenses for health, education, maintenance and support generally approved. When the second spouse dies, remaining heirs simply assume control of the appreciated assets, which are outside of the second spouse’s taxable estate.
Some blended families use these trusts to provide for a surviving spouse and then eventually for children from a previous marriage. The tax savings happen when the second spouse dies, as the funds in the bypass trust go directly to the children, avoiding estate tax. They don’t get a stepped-up basis, but even the top marginal capital gains rate is lower than the federal estate tax rate, Bronnenkant says.
Safeguard Assets from Creditors
Uncle Sam isn’t always the biggest threat to preserving assets for heirs. If you’re a doctor, board member or an owner of a closely held business who wants assets protected from lawsuits and estate taxes, domestic asset protection trusts are a way for you to move money out of the estate and still be able to access it, Shenkman says.
You can create these irrevocable, self-settled trusts in 19 states, he says. Although the money in them is out of the person’s estate and protected from creditors, the person funding the trust can also be a beneficiary.
“We have the most litigious society in history now,” Shenkman says.
Manage Assets with Revocable Trusts
Some experts, including Shenkman, believe revocable trusts are a lot like annuities—more of them are sold than bought. He says they are often sold to clients as a blanket strategy for avoiding probate and cutting taxes, but the fact that they are revocable renders them ineligible for a lot of estate tax strategies. And in many states probate isn’t that onerous. So why does he still use them? To manage assets as clients age or have health issues.
“It’s easier as successor trustee to take charge of assets in a revocable trust than as an agent under a power of attorney,” he says. Easy typically means less costly, too, because you have professionals on the clock for shorter amounts of time. A revocable trust with a separate tax identification number can help avoid scams on seniors as well, he says, preserving even more money for potential heirs.
Plan for Medicaid and Special Needs
Some people bristle at the term “Medicaid planning” because it suggests that someone is trying to cheat the system by preserving assets that could have been spent before Medicaid kicked in. But the rising cost of care in nursing homes, assisted living facilities and retirement homes means many middle-class households would be wiped out by a long stay, impoverishing the spouses of those in care.
“I look at it as long-term care cost planning,” says Regina Spielberg, an elder law attorney and partner with Schenck, Price, Smith & King LLP in Paramus, N.J. “For middle-class people, if one or both members of a couple need long-term care services, their assets are quickly being consumed.”
Medicaid has a five-year lookback period for examining income sources and transfers out of an estate. If the transfers aren’t to spouses or children with disabilities, it’s a problem, Spielberg says. She often helps clients construct a portfolio that can be drawn down to pay for the person’s care while safeguarding some assets for the spouse.
The best ways to do that vary by state. For New York clients, she often creates income-only trusts that let a spouse of someone on Medicaid stay in their home. These irrevocable trusts prevent assets from being sold to pay for care costs. Her New Jersey clients, meanwhile, typically use life estate deeds, which transfer a property to heirs while bypassing probate, she says.
Special-needs trusts can also help you protect some money for loved ones. Shortly after her husband, Michael, 42, was struck and killed by a car in 2015, Melinda Campbell set up a special-needs trust for one of her children, who has a disability. The trust can provide income for her son without affecting his eligibility for public assistance.
“We [she and Michael] had met with the lawyer and received life insurance recommendations but nothing had been finalized” before he died, she says. Even so, directing a portion of her modest estate in this way will provide some peace of mind and cost savings, she says.
Reduce Fees for a Simple Estate
With most attorneys charging fees of several hundred dollars to about $2,000 for basic estate planning, you can pocket most of that money by going online. In addition to Gentreo, players include Trust & Will, Rocket Lawyer, Fabric, and Legal Zoom.
Just be sure to shop carefully if you go this route, as the capabilities and customization vary. Some of them offer trust preparation—Gentreo rolled these services out recently—others don’t.
“A will is going to protect families, but some people feel they need that revocable trust,” says Gentreo’s Fry.
High-net-worth families with complex situations, such as multiple homes or a need for asset protection, will still need a lawyer to set up some of the other trusts discussed in this article.
Clean Up Investment Clutter
Settling the estate is another place to find ways to keep fees down. On the time-is-money front, someone with accounts spread over multiple banks and brokerage accounts is making things difficult not only for themselves but especially for heirs.
“When [a person like this] dies, someone’s going to have to find all these accounts, figure out the basis in the stocks, and I’ll bet there are stock and bond certificates stuffed in a safe deposit box. That, without question, is going to be a more costly, complicated estate settlement than if he had consolidated everything at one institution with everything saved on a laptop and backed up,” Shenkman says.
Consider Hiring a Professional to Serve as Trustee
Litigation also costs more, so don’t forget the power of peace when trying to preserve money for heirs, experts say. To that end, consider hiring a professional to serve as trustee not only to relieve heirs of time-consuming duties but also to help avoid direct conflicts that tend to occur, for example, when one sibling is in charge of decision-making.
14/14 SLIDES
It seems senseless to forgive tax on $100 of PPP loan proceeds – if and only if used for deductible business expenses – only to turn around and disallow a deduction on the very same $100 expenses paid for with the forgiven loan. The IRS position negates the taxability language of section 1106(i) of he CARES Act by eliminating the tax savings on expenses paid with the PPP loan.
Senators Fire Back, But IRS Stands Firm
In response, Senate Finance Committee Chairman Chuck Grassley (R-Iowa), Ranking Member Ron Wyden (D-Ore.) and House Ways & Means Committee Chairman Richard Neal (D-Mass.) wrote a letter to Treasury Secretary Steve Mnuchin (under whose authority the IRS operates), explaining congressional intent. They wrote that the IRS position essentially renders the tax language in the CARES Act meaningless and stressed that:
providing assistance to small businesses, only to disallow their business deductions as provided in Notice 2020-32, reverses the benefit that Congress specifically granted by exempting PPP loan forgiveness from income …
Undeterred, the IRS recently doubled-down on its position in Revenue Ruling 2020-27 by stating that a taxpayer may not deduct eligible PPP expenses in the year 2020 if the taxpayer reasonably expects the loan to be forgiven later. In response, Sens. Grassley and Wyden issued a joint statement on Nov. 19:
Since the CARES Act, we’ve stressed that our intent was for small businesses receiving Paycheck Protection Program loans to receive the benefit of their deductions for ordinary and necessary business expenses. We explicitly included language in the CARES Act to ensure that PPP loan recipients whose loans are forgiven are not required to treat the loan proceeds as taxable income. As we’ve stated previously, Treasury’s approach in Notice 2020-32 effectively renders that provision meaningless.
Government agencies must carry out congressional laws as Congress intends. When considering the propriety of an agency’s interpretation of law, courts consider two factors: first, whether Congress directly spoke to the issue in the law; and, next, whether the agency’s interpretation is based on a permissible construction of the law. Government agencies, like the IRS, are granted interpretive deference, but remain constrained by congressional intent.
The CARES Act is silent regarding the details of tax deductibility, but the Act speaks quite loudly and clearly on the broader question of taxability. The only expenses for which payment results in PPP forgiveness are those which are normally deductible. In other words, you can only get the forgiveness – and the tax benefit – by using the money for payment of normally deductible expenses. Otherwise, the loan is not dischargeable. Disallowing the deduction contradicts the tax benefit. Had Congress intended for forgiven PPP funds to be taxable, it could have said so; or it could have remained silent on the issue. Instead, Congress made its intent quite clear by inserting section 1106(i).
Any doubts about Congress’ intent are addressed by the bipartisan statements of Congressmen Grassley, Wyden and Neal:
… as was expressed to Treasury during the development of the PPP, we did not intend to deny the deductibility of ordinary and necessary business expenses, nor did these small businesses expect to lose deductions for their business expenses when they applied for a PPP loan.
What May Happen Next? And What about Business Owners?
Congress could enact additional legislation in direct response to the IRS. Identical bills have been introduced in both the Senate and House of Representatives, titled the “Small Business Expenses Protection Act of 2020.” The law would amend section 1106(i) to leave undisturbed the tax deductions for business expenses paid with forgiven PPP loan proceeds. If such clarifying legislation is not passed, then it remains to be seen who, if anyone, will defy the IRS by deducting the expenses and take the challenge to court. Any court deciding the issue will undoubtedly look to congressional intent.
What Should Business Owners Do Now?
Congress’ failure to act before tax filings begin could set up a fight between taxpayers and the IRS. While business owners should seek and rely upon the advice of tax advisers and legal counsel, they are likely to face tough choices. A business might forgo the deductions and simply pay the tax. Another option would be to take the disputed deductions but file a Form 8275 Disclosure with the IRS, relying upon the statutory language and congressional intent to contradict the IRS’ stated position. This should not be done without professional guidance and may set up a deficiency lawsuit in U.S. Tax Court or a federal district court; one with the potential to garner national attention.
In the meantime, we should expect that many business owners will delay filing until the last possible moments. In any event, business owners should proceed with caution and should not proceed without competent guidance from professional advisers and counsel.
![a man holding a sign: If you are concerned about incurring debt after a family member’s death or are worried how your own debt will impact your family, here are some things you should know. First things first: At death, your assets become your estate. The process of dividing up debt after your death is called probate. The length of time creditors have to make a claim against the estate depends on where you live. It can range anywhere from three months to nine months. Therefore, you should get familiar with your state’s estate laws, so you are well aware of which rules apply to you. Beyond those basics, here are some cases where debts are forgiven after death and others where they still must be paid, one way or another: SEE MORE Checklist: Steps to Take after Your Spouse Dies](https://www.msn.com/en-us/money/smallbusiness/irs-leaves-business-owners-who-took-ppp-in-a-tax-quandary/"default":"load":"default","w":"80","h":"45","src":"//img-s-msn-com.akamaized.net/tenant/amp/entityid/BB1aC7yh.img?h=450&w=799&m=6&q=60&o=f&l=f","size3column":"load":"default","w":"62","h":"35","src":"//img-s-msn-com.akamaized.net/tenant/amp/entityid/BB1aC7yh.img?h=351&w=624&m=6&q=60&o=f&l=f","size2column":"load":"default","w":"62","h":"35","src":"//img-s-msn-com.akamaized.net/tenant/amp/entityid/BB1aC7yh.img?h=351&w=624&m=6&q=60&o=f&l=f")
More Stories
Sales Build in November as Inventories Grow
A Two-Way Communication Tool for Teachers
My 50th birthday celebrations in Amsterdam