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Tax Updates and Planning Ideas for 2022

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As we launch into the second quarter of the year, there are many new and proposed laws which impact or may impact businesses and wealthy individuals. Lobb & Plewe will do our best to keep you updated as we move forward.

Proposed Federal Tax Law Changes:

On March 28, 2022, President Biden released his fiscal year 2023 budget (the “2023 Budget”) which consists of approximately $5.7 trillion in spending. The U.S. Treasury has released the “Green Book,” which provides details related to revenue provisions in the 2023 Budget. The revenue proposals in the 2023 Budget rely on a baseline that presumes enactment of the revenue provisions in the Build Back Better Act (the “BBBA”) as passed by the House of Representatives on November 19, 2021.

The revenue proposals described in the Green Book are intended to be in addition to the provisions in the BBBA. This is a curious story line because the BBBA stalled in the Senate at the end of 2021 and never became law.

It is up to Congress to pass a budget so the revenue proposals in the 2023 Budget may be included in future legislation. The way the proposed budget is being presented by the Administration appears to be a plea for Congress to enact pieces of the BBBA in order to declare a win in the context of the failed proposed legislation in 2021.

To raise revenue to pay for the spending contained in the FY2023 Budget, high-net-worth individuals and businesses are the piggy bank. The focus of the revenue raising proposals, encompass raising individual tax rates, raising capital gain and qualified dividend rates, taxing exchanges between grantors and grantor trusts, imposing restrictions on grantor retained annuity trusts and taxing dispositions of appreciated property at death. A summary of the proposed changes of interest to high-net-worth individuals include the following:

  • An increase in the C corporation tax rate from 21% to 28%.
  • An increase to the top marginal individual income tax rate from 37% to 39.6%. For taxable year 2023, the rate would apply to taxable income over $450,000 for married individuals filing jointly ($225,000 for married individuals filing separately), $425,000 for head of household filers and $400,000 for single filers. This proposal will be effective for taxable years beginning after December 31, 2022.
  • A limitation on gain deferred under IRC section 1031 to $500,000 for a single filer and $1MM for married individuals filing a joint return per taxpayer per year.
  • The imposition of ordinary income tax rates on long-term capital gains and qualified dividends for taxpayers with taxable income exceeding $1MM. If the proposal for raising the ordinary income tax rate to 39.6 % becomes law, then the maximum tax rate on capital gains would effectively be 43.4% (39.6% plus net investment income tax rate of 3.8%).
  • The application of ordinary income tax rates and self-employment tax for partners with taxable income from all sources exceeding $400,000. This subjects a partner’s allocable share of income from profits interests in investment partnerships such as carried interest to tax as ordinary income and self-employment tax regardless of the character of the income at the partnership level.
  • A wealth tax which consists of a minimum tax of 20% on taxable income, inclusive of unrealized capital gains, for taxpayers with a net worth in excess of $100 million. Payments of the minimum tax will be treated as a prepayment available to be credited against taxes on future realized capital gains. The minimum tax liability in subsequent years will equal 20% of (1) the taxpayer’s taxable income and unrealized gains reduced by (2) the taxpayer’s unrefunded, uncredited prepayments and regular tax. The tax due for the first year can be paid in nine equal annual installments. For subsequent years, the minimum tax could be paid in five equal annual installments.
  • The proposal does not eliminate the $500,000 exclusion currently available to joint filers nor the $250,000 for unmarried filers, upon the sale of their principal residence. It also does not eliminate the current exclusion on the sale of qualified small business stock under IRC 1202.

Estate Planning Changes:

Once again, the Administration seeks to limit estate tax planning. The proposal includes the following in the context of estate planning:

Transfers of appreciated assets by gift or death will be treated as realization events subject to capital gains tax, subject to a $5MM per donor lifetime exclusion. The proposal to tax unrealized capital gains on transferred appreciated property upon the occurrence of certain realization events, include:

  • Transfers of appreciated property by gift.
  • Transfers of appreciated property on death.
  • Transfers of property to, or distributions of property from, trusts, other than wholly revocable trusts.
  • Distributions of property from a revocable grantor trust to any person other than the deemed owner or U.S. spouse of the deemed owner, other than distributions made in discharge of an obligation of the deemed owner.
  • Terminations of a grantor’s ability to revoke a trust at death or during life.
  • Transfers of property to, and distributions of property from, partnerships or other non-corporate entities if the transfer is a gift to the transferee.
  • Recognition of gain on the unrealized appreciation of property held by trusts, partnerships or other non-corporate entities.

The proposal allows for some exclusions which include the following:

  • Transfers by a donor or decedent to a U.S. spouse will not be a taxable event, and the surviving spouse will receive the decedent’s carryover basis. The surviving spouse will recognize the gain upon disposition or death.
  • Transfers to charity will not generate a taxable capital gain. Transfers to a split interest trust, such as a charitable remainder trust, will generate a gain with an exclusion allowed for the charity’s share of the gain. Transfers of tangible personal property, such as household furnishings and personal effects are excluded. This exclusion does not include collectibles.
  • Once a donor has exhausted the lifetime gift exemption, the proposal allows a $5MM per donor exclusion from the recognition of additional unrealized capital gain on property transferred by gift or held at death. Any unused exemption by a deceased spouse would be portable to the surviving spouse, effectively making the exclusion $10 million per couple. This additional exclusion amount would be indexed for inflation after 2022. The transferee’s basis in the property shielded by this exemption will be the fair market value of the property at the time of the gift or the decedent’s death.

If passed into law, the proposal will be effective for transfers by gift, and on property owned at death by decedents dying after December 31, 2022, and on property owned by trusts, partnerships and other non-corporate entities on January 1, 2023.

The proposal allows payment of the tax on the appreciation of certain family owned and operated businesses to be deferred until the business is sold or ceases to be family owned and operated. The capital gains tax on appreciated property transferred at death is eligible for a 15-year fixed rate payment plan. Family businesses electing the deferral will not be eligible for the payment plan. Furthermore, contributions of appreciated property to charitable remainder trusts, will no longer have the favorable tax treatment afforded under current law.

Planning in 2022:

We are back to the same looming uncertainty experienced in 2021 as to how to plan for taxable events and estate tax. Because of Democrats not coming together to support the full BBBA, the manner in which the BBBA has been delivered to Congress by the Administration, it is clear the Administration is looking for pieces of the BBBA to be consumed in the final budget. Some of the “pieces” such as the wealth tax have been altered, but the underlying theme of raising taxes on companies and individuals to cover the massive budget remain. Which pieces will survive? Guessing could be costly so my mantra of “plan for the worst and hope for the best” will be repeated this year.

As to the changes in tax rates, planning early is best. If the changes in capital gains are to occur, the changes may be made with a retroactive effective date. This was the push by Democrats in 2021. Contrary to the opinion of some legal pundits, Congress can enact retroactive tax legislation. The Supreme Court unanimously upheld a retroactive increase in the estate tax rate in the 1994 case of United States v. Carlton. There are a few hurdles, but it can be done.

As to estate tax planning, many people began the creation and funding of grantor trusts in 2021 but did not complete the effort when it became clear the BBBA was not going to get through the Senate. If you have begun the process of creating and funding a grantor trust, it is a good idea to pick up where you left off.

If you have not begun the process, now is the time. Like 2021, professional advisors assisting clients with estate planning will become overloaded with work and may stop taking in new matters earlier in the year than normal.

In the context of estate planning, the revenue generating provisions of the 2023 Budget materially alters the rules for recognition of income when it comes to capital assets. Under current law, there generally must be a sale or exchange of property to generate a capital gain. The proposal will “deem” a sale when there was no sale. You must consider an estate’s likely liquidity. To pay the tax, the taxpayer will need cash to pay the capital gains tax. If the estate will not have sufficient cash, life insurance options must be considered.

Sales between a grantor and the grantor’s intentionally defective trust are not currently taxable events. The proposal will recognize such sales and require the seller to recognize gain on the sale of appreciated assets. It is imperative to understand the size of a taxable estate under the current rules as opposed to the rules which will exist if the 2023 Budget is passed in order to evaluate the planning which needs to be accomplished. An updated financial plan will be a great place to start.

The proposal will overturn IRS Revenue Ruling 85-13, which disregarded transactions between a grantor and the grantor’s trust for income tax purposes. This proposal will not be retroactive to transactions which occur before passage of the 2023 Budget. Under no circumstances should planning of this nature be delayed to the end of the year. Hastily structuring installment sales into grantor trusts is not prudent.

This article briefly touches on some of the provisions of the 2023 Budget and the fallout for companies and wealthy individuals, but it should spur some concern to plan now and not wait for the end of the year to see how things are going to settle. We are already in the second quarter of the year and it is not advisable to wait to the fourth quarter to start planning so we are left with five months to start and finish a comprehensive strategy to deal with the 2023 Budget. Provisions will obviously change but there will be a budget and the attack on companies and wealthy individuals will be a source of revenue funding.

The Inland Empire Business Journal (IEBJ) is the official business news publication of Southern California’s Inland Empire region - covering San Bernardino & Riverside Counties.

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Inland Empire job market fully recovered from pandemic as supply chain employment continues to grow

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The Inland Empire job market recovered faster than anywhere in Southern California, with payrolls and a labor force climbing above pre-pandemic levels, according to a new economic report.

The report, released Thursday by the Southern California Association of Governments (SCAG) as part of its 13th Annual Southern California Economic Summit, documents San Bernardino and Riverside Counties’ growth as a global supply chain hub, adding 63,700 jobs in transportation, warehousing and wholesale trade since shortly before the pandemic. Other major employment gains have been reported in leisure and hospitality, which has fully recovered from its early pandemic losses and is up 17,600 jobs year-over-year, and the government sector, up 9,400 jobs year-over-year.

“Barring a recession, the Inland Empire labor markets will continue to perform well,” said Dr. Manfred Keil, Chief Economist for the Inland Empire Economic Partnership. “Clearly, the two-county region’s role in the supply chain is driving much of this, though sustaining growth in the long-term would benefit from prioritizing a diverse range of industries.”

Keil is part of a new Economic Roundtable convened by the SCAG – which hosted the Summit in downtown Los Angeles – to provide both a snapshot of the region now as well as a preview of economic opportunities and challenges ahead. Their research was compiled in a report that offered caution on turbulence ahead from global forces, but also promise that Southern California is better positioned than other regions to withstand it.

Among the factors that could moderate the impacts of a possible recession across the six-county SCAG region:

  • Continued growth in core industries, such as information, logistics and tourism
  • Measurable increases in labor productivity in 2022
  • New development and construction in infrastructure and housing, both public and private
  • Household debt and real estate values that are less likely to decline than elsewhere

“With improvements in the global inflation picture, combined with continuing 2022’s positive momentum, the region’s economy raises hopes that the much-anticipated global recession of 2023 will not severely impact Southern California,” said Dr. Gigi Moreno, Senior Economist at SCAG.

However, threats do remain. In the Inland Empire, housing affordability and rising interest rates are among the biggest challenges. Even as home sales have fallen for the past 15 months, higher prices and mortgage rates have reduced affordability by one-third, Keil said.

“Housing affordability becomes an even bigger issue as more and more people move to the IE, forcing prices up even higher,” Keil said, noting studies that have shown the Inland Empire among the fastest-growing population centers in the country.

Click here for the complete Southern California Economic Update.

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From Goats to Soaps

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An Inland Empire small business journey to responsible, clean beauty products

By Jessica Anguiano, Southern California Outreach Manager, Small Business Majority

Of all the ways of starting a new business, one that included the purchase of a Nigerian dwarf goat named Barnaby was not on the mind of Michele Jimenez. As the owners of a ranch in Riverside, Michele and her husband wanted to teach their five young daughters about caring for and raising farm animals, and Barnaby would be a perfect way to do just that.

After learning about an Inland Empire 4-H youth development and mentoring organization, Michele enrolled her daughters, ages 2 to 15, to learn about responsibilities and appreciation for nature. During the training, the young girls focused on agricultural project-based learning and chose to launch a dairy goat breeding program as their project. But after their goat population began to grow, they faced an unimaginable challenge: what to do with 3-5 gallons of milk per goat on a daily basis? 

The children were quick to propose an avenue: cook and create recipes with goat milk. The idea seemed simple at the time, but they soon realized that goat food products are an acquired taste–which meant this wasn’t a recipe for success. By this time, the COVID-19 pandemic had paralyzed businesses in Riverside, and like everyone else, Michele’s daughters followed lockdown protocols and stayed home. Michele and her daughters began making soap with goat milk at home with not much to do and nearly 30 goats in stock.

At first, they gave away the soap to friends and family to see how their prospective customers would respond to this new product. And then after only [est. time], the Jimenez Sisters Ranch business was up and running, full steam ahead. 

The family-owned small business exemplifies the core values of the Jimenez family: resilience, entrepreneurship, sustainability, and a fond appreciation for eco-friendly, socially responsible, and ethically sourced practices and products. In addition to stylish apparel and accessories, the Jimenez sisters sell handcrafted goat milk soaps, lotions, and creams to consumers and wholesale retailers throughout California and across Wisconsin, North Carolina, New Mexico, Louisiana, and Washington. 

“My daughters have been the face of the Jimenez Sisters Ranch since its inception. I’ve encouraged them to take an active role in the business, despite their age. They deserve a seat at the table and I believe they can confidently shape their future as entrepreneurs,” said mom Michele. “Small business ownership comes with its own set of challenges and opportunities and for us, it has turned into a new source of income, inspiration and a great way to start building generational wealth.”

As the Jimenez family continues to navigate business ownership and with plans of scaling up, they are actively looking for ways to lower prices on low-volume purchases and sourcing raw materials ahead of the holiday season. Michele says, “We’re a solutions-oriented business, so we’re networking and connecting with leaders in the industry to get us in the front door. Although our competitors are beauty industry giants, we know what we offer and what sets us apart–our clean, beauty products.” This holiday season and ahead of Small Business Saturday, the Jimenez Sisters Ranch is offering a 25% discount on storewide buttercream purchases through the Small Business Majority’s holiday gift guide. 

With the support of their community and peers, Michele and her family have made a number of appearances on TalkShopLive, a live streaming, social buying, and selling platform. By showcasing her small business on this platform, Michele hopes to reach more customers to eventually set up her business as an international exporter. She believes in the power of supporting women’s entrepreneurship, which is why she’s advocated and spotlighted the need for funding Women’s Business Centers. Michele explains, “these centers provide the tools and resources that entrepreneurs like my daughters and I require to scale up businesses and are an important source of community building.

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20 Years of Spirit in the Making

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Inland Empire visionaries, innovators, problem solvers, and risk-takers have been celebrated center-stage at the Spirit of the Entrepreneur Awards black-tie gala for two decades.

The Spirit of the Entrepreneur Awards recognizes the accomplishments and resilience of local entrepreneurs who have strived to build businesses into major contributors to the Inland Empire’s economy. The program was founded in 2003 by Mike Stull, Director of the Inland Empire Center for Entrepreneurship (IECE) at California State University San Bernardino (CSUSB), and in the years since, more than 200 entrepreneurs have been honored with a Spirit of the Entrepreneur Award.

The IECE, established in 1999, has always been ahead of the curve and launched the Spirit of the Entrepreneur Awards eight years before President Barack Obama designated November as National Entrepreneurship Month in the United States. Dr. Mike Stull came up with the idea for the awards shortly after becoming director of IECE, when he discovered students in the CSUSB Entrepreneurship program couldn’t name any local entrepreneurial role models.

“Similarly, in my many conversations with leaders in the community, none could cite successful entrepreneurs that were key drivers to the local economy,” Stull said. “To me, this represented a significant gap — we have many successful entrepreneurs in the region, and our students and community leaders needed to know who they were. Thus, I endeavored to bring an event to life that would celebrate and honor local entrepreneurs in a format that would be inspiring, fun, and entertaining. Hollywood had the Academy Awards, so why couldn’t we have a similar event focused on entrepreneurs!”

The annual Spirit of the Entrepreneur black-tie awards program — held this year on November 17 at the Riverside Convention Center — starts with networking receptions, where mingling can often lead to deal-making. The main event is a mix of entertainment, with performances by acclaimed musicians and performers, heartfelt acceptance speeches from featured award recipients from categories such as General Entrepreneur, Service-based Entrepreneur, Social Entrepreneur, Emerging Entrepreneur, and The Mary Anne Fox Top Female Entrepreneur of the Year. At the end of the program, one recipient will also receive the Best of the Best Award, sponsored by Best Best & Krieger LLP. This honor goes to the person who best exemplifies what it means to be an entrepreneur.

“We come up with award categories in two ways,” Stull said. “First, over the 20 years of the program, we have developed a large number of standard categories that capture just about every type or industry represented in the region. Second, each year we carefully review all the submitted nominee profiles and adjust or add award categories as appropriate. For example, in recent years we have added a Healthcare Entrepreneur category, and in some years we have so many great manufacturing company nominees that we segment them by focus area, such as consumer products manufacturing and industrial manufacturing.”

In order to be nominated, a person must meet two requirements: they need to have been in business for at least two years and have a minimum annual revenue of $400,000. Beyond that, they should be an innovator with a solid character known for having an entrepreneurial mindset and a record of strong leadership and performance. Judges, who are selected based on their business experience and integrity, work independently of one another to evaluate the nominees, with almost all being previous winners of a Spirit of the Entrepreneur Award.

Several notable names have received the signature Spirit Award — Garner Holt, founder of Garner Holt Productions, the late Stater Bros. CEO Jack Brown, and the late Baker’s Burgers founder Neal Baker all were honored with Lifetime Achievement Awards. Looking back on the last 20 years, Stull has countless fond memories of ceremonies past, including performances by Eddie Money and Troy Clarke & His Big Band Orchestra, but his favorite just might be when Holt was recognized with this Lifetime Achievement Award in 2019. “We completely surprised him, and his emotional speech was one for the ages,” Stull said.

When the winners are revealed, Stull hopes they feel “all the great positive emotions at once. Surprise, joy, excitement, happiness, pride, gratitude — all those we tend to see from the moment their name is announced to the completion of their acceptance speech. It gives us no greater satisfaction than to see entrepreneurs be overwhelmed at that moment and realize that their hard work and commitment are being recognized in front of their families, team members, the business community, and their peer entrepreneurs. As one past award recipient told me, ‘Mike, this is the pat on the back and recognition that we hardly ever get as entrepreneurs.'”

To celebrate the 20th anniversary, there will be a few surprises during this year’s ceremony, with the biggest being the announcement of the Spirit of the Entrepreneur Legacy Awards. Two previous Spirit of the Entrepreneur Award recipients — one from the first ten years, and one from the second — will be selected by a judging panel for this special, one-time-only honor.

“The Spirit of the Entrepreneur Awards has reached an incredible milestone, and we hope that everyone comes out to join the celebration,” Stull said. “Our last full-scale event prior to the pandemic had over 1,000 attendees, so we’d love to see a record turnout in 2022.” Starting with the very first ceremony in 2003, “the event wouldn’t be possible without the incredible nominations we get each year, and of course, the fantastic support we get from our sponsors,” Stull added. “We have nine sponsors that have supported us for more than 10 years, and two that have been with us for 16 of our 20 years.”

The Spirit of the Entrepreneur Awards isn’t solely about recognizing the ingenuity of Inland Empire business leaders. Proceeds from the event go to the IECE’s Spirit of the Entrepreneur Scholarship Fund, which provides grants to the next generation of entrepreneurs. Since 2003, more than $225,000 worth of scholarships have been awarded to CSUSB students with measurable needs who are studying entrepreneurship.

CSUSB students also have the opportunity to participate in the Garner Holt Student Fast Pitch Competition. Every year, the IECE holds this innovative semi-final qualifying competition at the event’s named sponsor’s headquarters – Garner Holt Productions a week prior to the Spirit Awards gala. Up to 15 student entrepreneurs have the chance to give a 90-second pitch of their business idea to local investors. The students are judged by the panel, and the top five student pitchers move on to the finals at the Spirit of the Entrepreneur Awards. There, they deliver their pitches in front of the live audience, where the audience will vote to determine the winner who will receive the $4,000 cash prize. In years past, students who presented especially impressive pitches have dazzled investors in the crowd and secured funding for their ventures.

Purva Taur is a graduate assistant at IECE and enrolled in the Master of Science Entrepreneurship and Innovation (MSEI) program at CSUSB. An international student from India, Taur grew up in a family where many of her relatives owned businesses, and she knew that one day, she would follow in their footsteps. By working at the IECE with Stull and Assistant Director Stacey Allis, Taur has already noticed a change in how she approaches situations.

“I’ve learned how to be on my toes all the time,” she said. “If there’s a problem, you have to be quick with a solution and back up.” Taur is now working on a business plan to present in front of investors and feels that the comprehensive education she is receiving will give her a boost over her peers. “Being in this program has given me a lot of confidence that not every 22-year-old would have to begin their start-up, or any business,” she said. “I’ve learned how important it is to cultivate your business mindset.”

While Taur is preparing to launch her career, one CSUSB student-led venture named AxoTech is already commercializing technology developed by the Naval Surface Warfare Center in Corona.

“The company is innovating the diagnostic technology space, and is currently a part of the National Security Innovation Network (NSIN) Foundry program,” Stull said. “Overall, the impact to the region is tangible — over 40 percent of our more than 1,000 entrepreneurship alumni have created one or more ventures since graduation, and a large number of our graduates are intrapreneurs: managers and leaders in existing organizations who are innovative changemakers.”

IECE HAS IMPACT

The IECE has been leading the charge since it first opened its doors at CSUSB, with the mission of inspiring, developing, and nurturing up-and-coming entrepreneurs in the Inland Empire. It is the largest organization in the region supporting small business and entrepreneurial growth, and its staff is there every step of the way as people learn the ins and outs of starting and running a business, meeting with investors, finding mentors, and developing business models.

“We have an incredible team of professionals in the IECE — more than 60 — that are in the community every day having an impact on startup and existing companies,” Stull said. “The IECE has been recognized many times for its growth and impact, most recently by AACSB International, the accreditation body for business schools worldwide, as a Top 35 Program for Fostering Entrepreneurship and Innovation.”

There is always something in the works at the IECE, and in 2021, the center collaborated with the CSUSB School of Entrepreneurship to produce the region’s first-ever State of Entrepreneurship Report, which examined the trends and challenges of entrepreneurship in the Inland Empire. This year, the IECE has launched several new initiatives, including the Catapult Business Growth Network. Over the course of this intensive six-session program, entrepreneurs learn how to position their businesses for measurable growth.

The IECE is a driving force behind the economic expansion in the Inland Empire, and the proof is in the numbers — through its counseling, mentoring, and training programs, the IECE has served more than 150,000 entrepreneurs, supported the creation and retention of nearly 40,000 jobs, assisted with the startup of almost 2,000 new ventures, and had an economic impact in excess of $400 million.

“We are very proud that the IECE has grown to become one of the largest university-based Centers for Entrepreneurship in the world,” Stull said. “Since entrepreneurship is such an important driver of our local economy, having such a vibrant and impactful program such as the IECE is critical to supporting local businesses and their startup and growth.”

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