On March 28, 2022, the Biden Administration released the Fiscal Year 2023 Budget, and the “General Explanations of the Administration’s Fiscal Year 2023 Revenue Proposals,” which is commonly referred to as the “Green Book.” The Green Book summarizes the Administration’s tax proposals contained in the Budget. The Green Book is not a proposed legislation and each of the proposals will have to be introduced and passed by Congress.
Summary of the Green Book’s Significant Changes to Current Law:
Enact a 15% minimum “undertaxed profits rule” (a “UTPR”) to replace the “Base Erosion Anti-Abuse Tax” (“BEAT”), and a 15% “qualified domestic minimum top-up tax” (a “QDMTT”). These proposals are intended to comply with “Pillar Two” – the “Global Anti-Base Erosion” (“GloBE”) rules – of the “Inclusive Framework on Base Erosion and Profit Shifting” (“BEPS”), agreed to by the OECD/G20 member states on October 8, 2021.
Increase the “Global Intangible Low-Taxed Income” (“GILTI”) rate from 10.5% to 20%
Provide a 10% tax credit for expenses incurred in “onshoring” and deny deductions for “offshoring” a U.S. trade or business
Authorize the IRS to issue regulations to allow taxpayers to make retroactive “qualified electing fund” (“QEF”) elections for their “passive foreign investment companies” (“PFICs”) without requesting IRS consent
Apply securities loan rules to digital assets
Apply the mark-to-market rules to digital asset dealers and traders
Require information reporting for digital asset transactions
Taxation of investments in real property
Tax carried interests as ordinary income
Prevent basis shifting by related partners
Include the 3.8% Medicare tax and self-employment taxes in the centralized partnership audit regime.
Private Foundation Taxation
I. Business Taxation
Increase the Corporate Tax Rate from 21% to 28%
The Biden Administration proposed to increase the corporate income tax rate from 21% to 28%. For calendar year taxpayers, proposal would be effective for taxable years beginning after December 31, 2022. For fiscal year taxpayers with taxable years ending between January 1, 2022 and December 31, 2023, the corporate tax rate would equal 21% plus 7% multiplied by the portion of the taxable year that occurs in 2023. This proposal was also made by the Biden Administration in the Fiscal Year 2022 Green Book.
II. Individual Taxation
The Biden Administration proposed a 20% minimum tax on individuals who have more than $100 million in assets. The minimum tax would be based on all economic income (which the proposal refers to as “total income”), including unrealized gain. The tax would be effective for taxable years beginning after December 31, 2022. The minimum tax would be fully phased in for taxpayers with assets of $200 million or more.
Under the proposal, an individual’s 2023 minimum tax liability would be payable in nine equal annual installments (e.g., in 2024-2032). For 2024 and thereafter, the minimum tax liability would be payable in five annual installments. The tax may be avoided by giving away assets to section 501(c)(3) organizations (including private foundations or donor advised funds) or 501(c)(4) organizations before the effective date of the legislation so as to avoid the $100 million threshold.
The Biden proposal is an attempt to address some criticisms of Senator Ron Wyden’s (D-Or.) mark-to-market proposal.
The five-year payment period is an attempt to address concerns that Wyden’s proposal might overtax volatile assets, and to “smooth” taxpayers’ cash flows without the need for the IRS to issue refunds. Under the Biden Administration’s proposal, installment payments of the minimum tax may be reduced to the extent of unrealized losses.
The minimum tax is being described as a “prepayment” that may be credited against subsequent taxes on realized income. This description provides a backup argument on constitutionality: the minimum tax isn’t a tax on unrealized income but is merely a prepayment of tax on realized income.
Operation of the Minimum Tax.
The minimum tax would apply to taxpayers with wealth (assets less liabilities) in excess of $100 million. The proposal does not define liabilities, and does not indicate whether a taxpayer would be deemed to own the assets of his or her children, or trusts. Therefore it is unclear as to whether a taxpayer who is close to the $100 million threshold may avoid the tax by giving away assets to children. As mentioned above, a taxpayer can give assets to section 501(c)(3) or 501(c)(4) organizations to avoid the threshold, and so, if the minimum tax is enacted, donations to charity would be expected to dramatically increase.
The proposal phases in for taxpayers with wealth between $100 million and $200 million. The phase in is achieved mechanically by reducing the tax liability to the extent that the sum of (w) the minimum tax liability, and (x) the uncredited prepayments exceeds two times (y) the minimum tax rate, times (z) the amount by which the taxpayer’s wealth exceeds $100 million. Thus, for a taxpayer with $150 million of wealth and a zero basis and no prior prepayments, the $30 million of minimum tax liability would be reduced by $10 million to equal $20 million. ($10 million is amount by which (x) $30 million exceeds (y) $20 million, which is 40% [two times the minimum tax rate] times $50 million [the amount by which the taxpayer’s wealth exceeds $100 million].)
A taxpayer subject to the minimum tax would make two calculations: Their “normal” tax liability under our current realization system, and the “minimum” tax under the proposal. Tax would be paid on the greater of the two.
For purposes of the 20% minimum tax, the taxpayer would include all unrealized gain on “tradeable assets.” The proposal does not define tradeable assets. Tradeable assets would be valued using end-of-year market prices. The taxpayer would also include all unrealized gain on “non-tradeable assets.” Non-tradeable assets would be valued using the greater of (i) the original or adjusted cost basis, (ii) the last valuation event from investment (i.e., a round of equity financing), (iii) borrowing (i.e., a lender’s appraisal), (iv) financial statements, or (v) other methods approved by the IRS. Original or adjusted cost basis would be deemed to increase at a rate equal to the five-year Treasury rate plus two percentage points. The five-year Treasury rate is currently 2.76% and so, at today’s rates, non-traded assets without a valuation event would deemed to increase in value at a 4.76% annual rate. The proposal would not require valuations of non-tradeable assets.
While a taxpayer would be subject to the minimum tax if it exceeds the normal tax, as mentioned above, payment of the minimum tax would be made in equal annual installments (nine for the first year of minimum tax liability and five thereafter).
So, assume that a taxpayer purchases an equity interest in a non-traded C corporation on January 1, 2023 for $200 million. The taxpayer has no realized income and no other assets. The taxpayer would have zero “normal” tax. Assume that the five-year Treasury rate is 2.76%. The investment would be deemed to increase in value by 4.76% (to $209.5 million). The minimum tax would be 20% of $9.5 million, or $1.9 million. If this was the taxpayer’s first year subject to the minimum tax, the minimum tax liability would be $211,111 in each of years 2024-32, subject to the “illiquid exception” described below. If the taxpayer subsequently sells the C corporation, it would credit the minimum tax prepayments against his or her income tax liability.
Payments of the…