Beginning in 2013, certain high-income taxpayers may find themselves subject to additional taxes on their wages, net earnings from self-employment, and/or net investment income as a result of the Patient Protection and Affordable Care Act of 2010,3 and the Health Care and Education Reconciliation Act of 20104 (which, together, are colloquially referred to as ObamaCare). Tax practitioners need to get ready for these additional taxes, because advance planning in connection with these taxes may be important to certain high-income taxpayers. This article describes some of the more important provisions of the new taxes to provide a background for practitioners in planning for the new taxes.
Current Hospital Insurance Taxes
For tax-year 2012, an individual is subject to a 1.45 percent “hospital insurance”(HI) tax on wages earned from employment,5 while the individual’s employer is also subject to a 1.45 percent HI tax on wages paid.6 The employer must collect the employee portion of the HI tax by withholding it from the employee’s wages when paid.7 Likewise, an individual is subject to a 2.9 percent HI tax on his net earnings from self-employment derived from a trade or business, plus his distributive share of income or loss described in Internal Revenue Code (Code) § 702(a)(8) from any trade or business carried on by a partnership of which he is a member (collectively, NESE).8 In contrast, an individual’s net investment income is currently free from such HI taxes.
The HI taxes imposed on employees and employers are a component part (along with the Old Age, Survivors, and Disability Insurance (OASDI tax)) of the Federal Insurance Contributions Act (FICA), which is generally codified in Chapter 21 of Subtitle C (Employment Taxes) of the Internal Revenue Code (i.e., Code §§ 3101 3127). The HI taxes imposed on NESE are a component part (again, along with the OASDI tax) of the Self-Employment Contributions Act of 1954 (SECA), which is generally codified in Chapter 2 of Subtitle A of the Internal Revenue Code (i.e., Code §§ 1401 1403).
Prior to the Revenue Reconciliation Act of 1993, only wages from employment and NESE up to a statutorily-specified “wage base” limit were subject to the above-described taxes (similar to the OASDI tax). The Revenue Reconciliation Act of 1993, however, repealed the dollar limit on wages from employment and NESE subject to the current HI taxes. Consequently, all wages from employment and all NESE are subject to the current HI taxes.
Additional HI and Medicare Taxes Beginning in 2013
As described above, the HI taxes fall exclusively on (or with respect to) (i) wages from employment, and (ii) NESE. Other types of income and gain are not subject to the HI taxes. Thus, an individual could conceivably avoid all HI taxes during his lifetime by avoiding employment and activities which generate NESE, for example by engaging in activities which generate investment income, yet still obtain the health and medical benefits for the aged and disabled (principally through the federal Medicare program) which the HI taxes are designed to fund.
As described below, ObamaCare (i) increases the rate of the HI tax applicable to wages from employment and NESE to the extent they exceed a threshold amount, and (ii) adds a new “unearned income Medicare contribution” tax imposed on certain “net investment income” of individuals (the NII tax).
Beginning in 2013, additional HI taxes and the new NII tax are imposed, but only on certain “high income” taxpayers. First, all taxpayers (other than corporations, estates, or trusts) will be subject to an additional 0.9 percent HI tax imposed upon their wages from employment in excess of a threshold amount ($250,000 for married taxpayers filing jointly; $125,000 for married taxpayers filing separately; and $200,000 for all other taxpayers subject to the tax),9 with a similar 0.9 percent HI tax increase on NESE in excess of the same threshold amounts.10 Second, individuals will be subject to a 3.8 percent NII tax imposed on the lesser of (i) “net investment income” for the taxable year, or (ii) the excess of “modified adjusted gross income” over the above-described threshold amounts.11 Estates and trusts are also subject to the additional 3.8 percent NII tax, which is imposed on the lesser of (i) the undistributed net investment income of the estate or trust for such taxable year, or (ii) the adjusted gross income of the estate or trust which is subject to income tax at the highest tax rate bracket for the taxable year.12
The Additional 0.9 Percent HI Tax
As described above, taxpayers (other than corporations, trusts, or estates) will be subject to an additional 0.9 percent HI tax on their wages from employment in excess of the applicable threshold amount ($250,000 for married taxpayers filing jointly; $125,000 for married taxpayers filing separately; $200,000 for all other taxpayers subject to the tax), and individuals are subject to the same tax on their NESE above the applicable threshold amount. Since, with respect to employees, the additional 0.9 percent HI tax is a function of a taxpayer's wages from employment, little can be done to reduce future tax liability of an employee short of the taxpayer and his or her employer restructuring the taxpayer’s compensation. Similarly, an individual subject to the additional 0.9 percent HI tax on his NESE can only avoid or limit the new 0.9 percent HI tax by reducing his NESE.
Unlike the current HI tax with respect to wages from employment (which imposes both a 1.45 percent HI tax on employees and a 1.45 percent HI tax on employers), there is no counterpart employer tax for the new 0.9 percent HI tax. Employers do, however, have an obligation to withhold the new 0.9 percent HI tax from employee wages, and are liable for the tax if they fail to withhold it.
It should also be noted that there is a marriage penalty built into the new 0.9 percent HI tax. For example, an unmarried couple, each with wages of $200,000, will avoid the tax entirely. If the same couple were married, $150,000 of their combined wages will be subject to the tax. In addition, the threshold amounts for the new 0.9 percent HI are not indexed for inflation. Therefore, more taxpayers will become subject to this tax in the future.
Currently, an income tax “above-the-line” deduction is allowed for one-half of self-employment taxes.13 Alternatively, in computing NESE, in lieu of the above-described deduction, a taxpayer is allowed a deduction in computing self-employment tax equal to (i) NESE, multiplied by (ii) one half of the sum of the current 2.9 percent HI tax and the 12.4 percent OASDI tax.14 Notably, the new 0.9 percent HI tax will not be taken into account when computing both the above-described income tax “above-the-line” deduction and the above-described deduction in computing self-employment tax.15
The New 3.8 Percent NII Tax
ObamaCare created a new Code § 1411, which is the only Code section in new Chapter 2A (Unearned Income Medicare Contribution) of Subtitle A of the Internal Revenue Code. Section 1411(a)(1) of the Code provides that, beginning in 2013, individuals shall pay a 3.8 percent Medicare contribution tax for each taxable year on the lesser of (i) their net investment income for the taxable year, or (ii) the excess of their modified adjusted gross income (MAGI) over the threshold amount ($250,000 for married taxpayers filing jointly; $125,000 for married taxpayers filing separately; $200,000 for all other individual taxpayers).
Conceptually, the new 3.8 percent NII tax is a tax on net income from investments. The MAGI component of the formula for determining the amount subject to the tax is only for the purpose of ensuring that the tax on net investment income falls only on the shoulders of high-income individuals. Accordingly, since the 3.8 percent NII tax applies to the lesser of a taxpayer’s MAGI in excess of the threshold amount or the taxpayer’s net investment income, taxpayers with MAGI under the threshold amount entirely avoid the tax. Similarly, taxpayers with MAGI greater than the threshold amount but with no net investment income will also entirely avoid the tax.
In general, MAGI means adjusted gross income plus foreign earned income that is otherwise excluded from tax under Code § 911(a)(1).16 Similar to the additional 0.9 percent HI tax, the threshold amount for the 3.8 percent NII tax is not indexed for inflation. Therefore, over time, inflation will cause more taxpayers to become subject to the tax. Also similar to the additional 0.9 percent HI tax, the 3.8 percent NII tax has a marriage penalty built into it.
Net Investment Income. Determining the net investment income of a taxpayer is a two-step process. First, the following items are added together:
Gross income from interest, dividends, annuities, royalties, and rents (other than such income which is derived in the ordinary course of a trade or business which constitutes a non-passive activity with respect to the taxpayer;
other gross income derived from a trade or business which constitutes a passive activity (within the meaning of Code § 469), or is a trade or business of trading in financial instruments or commodities (as defined in Code § 475(e)(2)); and
net gain (to the extent taken into account in computing taxable income) attributable to the disposition of property other than property held in a trade or business which constitutes a non-passive activity with respect to the taxpayer.17
Second, the sum of the above-described items is then reduced by allowable deductions which are properly allocable to such gross income or net gain.18 The result is “net investment income.”
Items of income of a partnership, LLC, or S corporation which fall within the definition of net investment income will presumably pass through to the respective partners, members, and shareholders of such entities, and such persons will be subject to the 3.8 percent NII tax on such amounts based on their individual situations.
Passive Activities. The passive activity loss rules of Code § 469 are critical to the application of the new 3.8 percent NII tax. If a trade or business activity is determined to be passive with respect to a taxpayer under the passive activity loss rules, then the gross income derived from such passive trade or business activity (less deductions properly allocable to such gross income) will be net investment income of that taxpayer.19 Conversely, if a trade or business activity is determined to be non passive with respect to a taxpayer under the passive activity loss rules, then the gross income derived from such non-passive trade or business activity is not considered net investment income of that taxpayer.
Code § 469(c)(1) defines a “passive activity” as any activity which involves the conduct of any trade or business, and in which the taxpayer does not “materially participate.” In general, a taxpayer is treated as materially participating in an activity only if the taxpayer is involved in the operations of the activity on a basis which is regular, continuous, and substantial.20 Except for limited regulatory exceptions (described below), no interest in a limited partnership as a limited partner is treated as an interest with respect to which a taxpayer materially participates.21 Additionally, any rental activity is a per sé passive activity22 (unless the taxpayer is a “real estate professional,”23 and except with respect to certain rental activities specified in the Treasury Regulations24).
Under Treasury Regulation § 1.469-5T(a), an individual will be deemed to have “materially participated” in an activity for a given tax year if:
The individual participates in the activity for more than 500 hours during the year;
the individual’s participation in the activity for the tax year constitutes substantially all of the participation in the activity of all individuals (including individuals who are not owners of interests in the activity) for such year;
the individual participates in the activity for more than 100 hours during the year, and such individual’s participation is not less than the participation in the activity of any other individual (including individuals who are not owners of interests in the activity) for such year;
the activity is a “significant participation activity” (which is a trade or business activity in which the individual participates for more than 100 hours during the year, but in which the individual does not materially participate under the other material participation rules for the year), and the individual’s aggregate participation in all significant participation activities during the year is greater than 500 hours;
the individual materially participated in the activity for any five of the preceding ten tax years immediately preceding the current tax year;
the activity is a personal service activity, and the individual participated in the activity for any three tax years prior to the current tax year; or
based on the facts and circumstances, the individual participates in the activity on a regular, continuous, and substantial basis during the year.
Only paragraphs (1), (5), and (6) above apply to limited partners in limited partnerships.25 Also, partners of partnerships, members of limited liability companies (taxed as partnerships), and shareholders of S corporations generally cannot include work not customarily performed by an owner or work done as an investor as participation at the entity level.26
If a taxpayer can demonstrate that he meets one of the foregoing tests, the taxpayer is deemed to have materially participated in the trade or business activity for the given tax year. As a result, the income from such activity will be deemed a non-passive activity under the passive activity loss rules, will not be classified as “net investment income” under Code § 1411(c)(1)(A), and will not be subject to the new 3.8 percent NII tax. Generally, if a taxpayer cannot demonstrate that he meets one of the foregoing tests, the taxpayer is deemed to have not materially participated in the trade or business activity for the given tax year. As a result, the income from such activity will be deemed a passive activity under the passive activity loss rules, will be classified as “net investment income” under Code § 1411(c)(1)(A), and will be subject to the new 3.8 percent NII tax.27
Trade or Business. The 3.8 percent NII tax will only apply to income from a trade or business if such trade or business is a passive activity within the meaning of Section 469, or a trade or business of trading in financial instruments or commodities, as defined in Section 475(e)(2), and will not apply to income from any other trade or business.28 Consequently, income from a trade or business which is not a passive activity under Code § 469 (i.e., a non-passive activity) will not be subject to the tax, whether conducted as a proprietorship, partnership, limited liability company, or an S corporation.29 Thus, if a taxpayer does not engage in a passive activity trade or business, or a trade or business of trading in financial instruments or commodities, “net investment income” will only include non-business net investment income.
The term "trade or business" is not defined in Code § 1411.30 Accordingly, case law applicable to the phrase "trade or business" with respect to Code § 162 other Code provisions will presumably apply.31
Dispositions. Gain from the disposition of an interest in an entity taxed as a partnership or an S corporation will be included in “net investment income” only to the extent of the net gain that the transferor would take into account if the entity had sold all of its property for fair market value immediately before the disposition of the interest.32 A similar rule applies to a loss from such a disposition of an interest in an entity taxed as a partnership or an S corporation.33 Hence, only gain or loss attributable to property held by an entity that is not attributable to a non passive trade or business will be taken into account for determining the net investment income resulting from the sale of an interest in the entity.
Relationship of the Two New Taxes
It is important to keep in mind that the new 0.9 percent HI tax and the new 3.8 percent NII tax are two separate, mutually exclusive taxes. It is easy to consider them as related taxes because they both fund the federal Medicare program and because each tax uses the same threshold amounts in the computation of income subject to the tax. But, as described above, the new 0.9 percent HI tax applies only to wages from employment and NESE above the applicable threshold amount, whereas the new 3.8 percent NII tax applies only to net investment income, limited however to the amount of the MAGI of the individual taxpayer in excess of the applicable threshold amount.
Additionally, I.R.C. § 1411(c)(6) prevents the 3.8 percent NII tax from being imposed on self-employment income that is subject to the 0.9 percent HI tax, as that Section provides that “[n]et investment income shall not include any item taken into account in determining self-employment income for such taxable year on which a tax is imposed by section 1401(b).” Therefore, while the same taxpayer could be subject to both the 0.9 percent HI tax and the 3.8 percent NII tax in the same year, the same income will not be subject to both taxes; instead, depending on the character and amount of income, it could be subject to either the 0.9 percent HI tax or the 3.8 percent NII tax.
Their relationship, then, is limited to the fact that together the two taxes ensure that certain high-income taxpayers (and their employers) will contribute at a 3.8 percent rate to the federal Medicare program on (a) wages from employment and NESE above the applicable threshold amounts, and (b) net investment income in excess of a taxpayer’s MAGI above the applicable threshold amounts.
Planning for the Two New Taxes
The description in this article of the two new taxes enacted by ObamaCare hopefully provides practitioners with a basis for planning for the new 0.9 percent HI tax and the new 3.8 percent NII tax.
1 This article is intended to be generally informative about a complex area of tax law; however, nothing in this article should be construed as (i) providing tax or other legal advice with respect to any particular transaction or matter, or (ii) creating an attorney-client relationship.
2 Douglas J. Becker and Erik J. Jensen are tax attorneys with the Denver law firm Otten, Johnson, Robinson, Neff & Ragonetti, P.C. Doug Becker received his LL.M. in Tax from the University of Denver, and Erik Jensen received his LL.M. in Tax from New York University. Doug Becker is an adjunct professor in the DU Graduate Tax Program teaching Taxation of Property Transactions, and he also teaches Accounting for Lawyers in the DU Sturm College of Law.
3 P.L. 111-148, enacted March 23, 2010.
4 P.L. 111-152, enacted March 30, 2010.
5 I.R.C. § 3101(b).
6 I.R.C. § 3111(b).
7 I.R.C. § 3102(a).
8 I.R.C. §§ 1401(b)(1) and 1402(a). There are numerous exceptions to the 2.9 percent HI tax on NESE, most notably (i) real estate rental income pursuant to I.R.C. § 1402(a)(1), (ii) dividends and certain interest pursuant to I.R.C. § 1402(a)(2), (iii) gain or loss from the sale or exchange of a capital asset pursuant to I.R.C. § 1402(a)(3), and (iv) the distributive share of a “limited partner” pursuant to I.R.C. § 1402(a)(13) (other than Section 707(c) guaranteed payments).
9 I.R.C. § 3101(b)(2).
10 I.R.C. § 1401(b)(2).
11 I.R.C. § 1411.
12 I.R.C. § 1411(a)(2).
13 I.R.C. § 164(f).
14 I.R.C. § 164(f).
15 I.R.C. §§ 164(f) and 1402(a)(12) as amended by ObamaCare.
16 I.R.C. § 1411(d).
17 I.R.C. § 1411(c)(1)(A). “Thus, only net gain or loss attributable to property held by the entity which is not property attributable to an active trade or business is taken into account.” Joint Committee on Taxation Rep. No. JCX 18 10.
18 I.R.C. § 1411(c)(1)(B).
19 I.R.C. § 1411(c)(1)(A)(ii) and 1411(c)(2)(A).
20 I.R.C. § 469(h)(1).
21 I.R.C. § 469(h)(2).
22 I.R.C. § 469(c)(2).
23 I.R.C. § 469(c)(7).
24 See Treas. Reg. § 1.469 1T(e)(3)(ii).
25 Treas. Reg. § 1.469 5T(e).
26 Treas. Reg. § 1.469-5T(f)(2).
27 Except to the extent any of such income constitutes NESE. I.R.C. § 1411(c)(6).
28 Such income from non-passive businesses, however, may be subject to the 0.9 percent HI tax as wages from employment or NESE.
29 However, some of that income could constitute NESE and be subject to the self-employment tax in I.R.C. § 1401. Notably, however, Rev. Rul. 59 221 held that S corporation pass-through income does not constitute NESE for purposes of the self-employment tax.
30 However, I.R.C. § 1402(c) provides that the term “trade or business,” when used with reference to self-employment income or net earnings from self-employment, shall have the same meaning as when used in I.R.C. § 162 (relating to trade or business expenses).
31 See, e.g., Commissioner v. Groetzinger, 480 U.S. 23 (1987) (“We accept the fact to be engaged in a trade or business, the taxpayer must be involved in the activity with continuity and regularity and that the taxpayer’s primary purpose for engaging in the activity must be for income or profit. A sporadic activity, a hobby, or an amusement or diversion does not qualify“); McCullen v. Commissioner, T.C. Memo. 1997 280 (certain real estate activities did not constitute a trade or business); Moller v. United States, 553 F. Supp. 1071 (Cl. Ct. 1982) (investment activities qualified as a trade or business); Whipple v. Commissioner, 373 U.S. 193 (1963) (certain investment activities did not constitute a trade or business); Higgins v. Commissioner, 312 U.S. 212 (1941) (certain real estate activities qualified as a trade or business, but certain investment activities did not).
32 I.R.C. § 1411(c)(4)(A).
33 I.R.C. § 1411(c)(4)(B).
Get To Know The Tax Section Executive Council
Chair: Andrew Elliott—Andrew is a shareholder at Brownstein Hyatt Farber Schreck. He focuses on corporate and partnership formation, mergers and acquisitions, financing transactions, and federal, state and local taxation, including tax controversy matters. Andrew is the outgoing Vice Chair and will now sit as Chair of the Council. This is his sixth year on the Council.
Vice Chair: Hank Vanderhage—Hank practices federal income tax law in the areas of taxation of corporations, partnerships, individuals, international transactions, and real estate transactions at Vanderhage Law LLC. He is the outgoing Secretary for the Council, and will now sit as Vice Chair. Hank has served on the Council for five years, and also sits on the Newsletter Committee.
Secretary: Peter Rose—Peter is an associate at Davis Graham & Stubbs LLP, in the Tax, Benefits and Estates Group. His area of practice is international, federal, state, and local taxation of entities and individuals. He is the outgoing Treasurer, and will now sit as the Secretary of the Council. This will be his fifth year on the Council.
Treasurer: Jeremy Wysocki—Jeremy is a partner at Krendl Krendl Sachnoff & Way, P.C. He practices in the areas of taxation, general corporate and business law, mergers and acquisitions, nonprofit organizations, and estate planning. Jeremy is licensed to practice law in both Colorado and Texas. Jeremy has served on the Council since 2009, and is also a co-director of the Pro Se Taxpayer Clinic.
Andrew Kroll—Andrew focuses on all levels of estate planning, transfer tax planning, wills, trusts, and asset protection planning at Kroll Law Offices, P.C. He currently serves as the liaison to the Trusts & Estates Section and is on the Scholarship Committee. Andrew has served on the Council since 2003.
Trevor Crow—Trevor is an associate in Dufford & Brown’s corporate transactions group. He focuses on public company securities compliance, public and private finance, M&A, entity formation, and tax. This is his second year serving on the Council, and he sits on the Website Committee.
Tyler Murray—Tyler practices tax law at The Law Offices of Murray & Wright, P.C. He was named Council Member of the Year for 2011–2012. Tyler serves as a co-director of the Pro Se Taxpayer Clinic and editor of the Tax Section Newsletter. This is his second year serving on the Council.
Andrea Welter—Andrea practices corporate law at Burns, Figa & Will, P.C., focusing on complex M&A transactions, debt and equity financing, and the organization of various entities (including non-profit). This is her second year on the Council. She also sits on the Topical Luncheons Committee. Please contact Ms. Welter if you have any interest in speaking at one of the Tax Section’s luncheons, at email@example.com.
Doug Becker—Doug is the senior tax attorney at Otten, Johnson, Robinson, Neff & Ragonetti, P.C. He has practiced tax law in Denver for 23 years and concentrates in partnership, real estate, and corporate tax, particularly with respect to closely-held business and real estate clients. This will be Doug’s first full year on the Council after replacing an out-going member last term. Doug sits on the Topical Luncheons Committee.
Tenley Oldak—Tenley is an Associate in the Tax group at Brownstein Hyatt Farber Schreck, LLP, where she practices in the areas of transactional tax, tax-exempt organizations, and tax controversy. She is a recent transplant to Denver from Boston, MA, and she plays violin in the Denver Philharmonic Orchestra. This is her first year serving on the Council.
Stuart Sargent—Stuart practices estate planning, and tax law at Stuart S. Sargent LLC. During his time on the Council he has served on the Pro Bono and Topical Lunches committees. He is the outgoing Chair of the Council. Stuart has been on the Council since 2005.