AMT Filers May Finally Get Some Needed Relief

The IRS has announced that it will suspend the collection of back taxes from tax filers that have a large AMT liability due to the sale of Incentive Stock Options. Congress is FINALLY working to approve legislation that would help taxpayers who exercised ISOs during the "Dot com" boom and subsequent bust cycle of 2000 and 2001.

Let's take an example to show this point. As part of his incentive package, a mid-level manager of Yahoo receives an option to purchase 1,000 shares of the company at a strike price of $40 a share back in 1999. Quickly, the stock rises and goes over $100 a share by the beginning of 2000. The employee decides to purchase his options at $40. But - rather than immediately sell the stock - he decides to hold on to the 1,000 shares.

Since the stock options are an Incentive Stock Option, the employee has to recognize the unrealized gain on the difference between the option price and the market price at the time the shares were optioned. This means that this mid-level manager now has to pay tax on the $60,000 gain ($100,000 value versus his actual cost of $40,000) - even though he has not sold the stock. Why? The ISO purchase places him in the Alternative Minimum Tax category. Not only that, but Mr. Yahoo Manager isn't eligible for the 15% long-term capital gains rate. He now has to pay 26% of income (or 28% - depending on his income). To make matters worse, this poor fella hasn't even sold the stock yet. He decided to keep it. So, he has to find the cash from other savings to pay the tax. Sound like a disincentive to hold company stock as an investment?

Being a dedicated employee, he hangs on to his stock while watching it fall off its high in January 2000. He becomes anxious but knows the stock will come back. So, when his tax bill comes due on April of 2001 - and this Yahoo employee realizes his tax bill - he realizes he now has to sell the shares to pay the tax. But there's a problem. The stock has declined to $10 a share! This AMT tax filer has watched his stock get decimated and now doesn't even have enough net proceeds from the sale to pay his Alternative Minimum Tax!

Under the provisions of what Congress is attempting to pass, taxpayers that were caught in this unfortunate predicament will not get their AMT completely relieved. However, they will be able to speed up the use of the AMT credits that were generated as a result of these transactions. This, in effect, will provide a "relief" of sorts on subsequent tax bills. Thus, the IRS has decided to hold off on collecting these back taxes until the AMT credit can be recognized.

Shared Tax Burden? Spread The Wealth

According to the most recent data from the IRS, the top 1% of filers are now bearing a record share of the income tax burden. In 2006, people with an adjusted gross income of more than $388,800 paid 39.9% of all federal income taxes while earning just 22% of the overall income. This is up from the 2005 data which showed the top "one-percenters" paying 39.4%.

The top 10% - which includes you if you earn more than $108,900 - pull in 47% of adjusted gross income but pay almost 71% of the total tax burden. The culprit? perhaps it is the Alternative Minimum Tax. In 2006, an estimated 3.8 million taxpayers were affected by the AMT and by 2007 that number is expected to grow to 23 million taxpayers.

It certainly doesn't appear that anyone has increased the number of tax breaks to the "wealthy". With record deficits and talk of increasing taxes, the only thing that appears to be increasing is their share of the overall tax burden.

On final interesting thing to note. The bottom 50% pay roughly 3% of the total income tax bill and the lowest income earners actually have a NEGATIVE income tax. Since their income is low enough to get the earned income credit, they qualify to get a refund on income AND payroll taxes.

The Rules of Boot in a 1031 Exchange

"Boot" is a term that you won't find in the Internal Revenue Code. But, if you talk to your accounting professional, you might find it is something he or she uses when discussing the tax consequences of a Section 1031 tax-deferred exchange. I use this short comparison in some of the courses we teach to describe boot..."two cowboys meet out on the range and decide to trade horses. One horse is worth more than the other, so the cowboy with the lesser valued horse, throws in his six shooter "to boot" in the trading of horses.

In modern times, Boot is basically any money or the fair market value of any non-like kind or "other property" received in an exchange. When talking about money, in this context, it should be understood that this includes cash or any cash equivalents - including any debt or obligation the taxpayer assumed by the other party or liabilities to which the property exchanged by the taxpayer is subjected. "Other property" is property that is not like-kind, such as personal property received in an exchange of real property, property used for personal purposes, or "non-qualified property." "Other property" also includes such things as a promissory note received from a buyer (Seller Financing).

Any boot received is taxable (to the extent of exchange gain realized). This is fine when a selling taxpayer desires some cash - and is willing to pay some taxes. Otherwise, boot should be avoided to fully defer the gain in a 1031 Exchange. Boot can sometimes inadvertently appear at closing from a variety of factors. It is important for the exchanging party to understand what miscelaneous items can result in boot if taxable income is to be avoided.

The most common sources of boot include cash boot received during the exchange, debt reduction boot (from trading down in value) and sale proceeds being used to service costs at closing which are not closing expenses. We covered this recently in our article about Closing Costs and 1031 Exchange.

As a recap, the following are examples of some of the non-transaction costs which should be paid with cash brought to closing to avoid "boot":

rent prorata items

utility escrow charges

tenant security or damage deposits

loan acquisition costs

For complete information on the issue of boot, please look at the Rules of Boot section of our Exchange Manual found on the 1031 Corporation Exchange Professionals website.

Market Issues Threaten Investment Mortgage Options

Headlines today are filled with larger banks and mortgage companies in residential real estate lending rushing to raise capital, set aside loan reserves and just simply try to stay in business. Possible government intervention, investor nervousness and changes at Freddie Mac and Fannie Mae in a tightening underwriting market are threatening to topple the mortgage providers and the organizations themselves. While the previous cause for the foreclosure market has been focused on higher loan-to-value loans and faulty or aggressive underwriting, traditional real estate investors are now beginning to feeling the pinch as well.

Earlier this year, Freddie Mac sent an advisory letter to mortgage lenders specifying new product standards. The advisory, now implemented, requires individual real estate investors that obtain loans sold to Freddie to finance no more than four investment properties (previously Freddie capped the number of properties at ten). With Freddie and Fannie responsible for nearly half of the twelve trillion dollar mortgage market in America, many other underwriters have followed suit on the four-property limitation.

You can understand what this drastic change has meant for investment financing options. With the new requirement, real estate investors who already have more than four properties are now unable to refinance their existing loans. This is a potentially big problem for the many investors that have used adjustable rate or fixed initial rate mortgages. As cash flow is squeezed, the change may lead to even greater foreclosure numbers. Those mortgage companies that are continuing to finance investors with greater than four investment mortgages are naturally increasing their costs for providing a mortgage. The rising costs are impacting investment portfolios and dampening tax incentive strategies across the country.

Previously, tax-savvy investors were able to take a mortgage against their primary residence and invest the money in investment property. Many times, these mortgages were larger than $417,000 – the current minimum jumbo mortgage loan amount. The idea was that the return on investment from the property would be higher than the after tax deduction cost of the mortgage interest. However, as investors are forced to pay higher rates on these mortgages, the strategy becomes less attractive.

While real estate investors are definitely more limited today than in the past, they are not completely out of options. It is possible to bypass the four-property rule by taking out a line of credit - rather than a mortgage - at a local bank. Many of these are prime-base products and can possibly be a lower cost option today. Another option is to work with a local or regional lender (1031 Corporation’s parent, FirstBank, is one such option) that holds investment and jumbo mortgages "on their books" as investments and locally underwrites each loan.

Overall, the industry outlook is that the mortgage market is probably going to get tighter. With a hard fought and tight presidential election looming as well as a struggling national economy and financial markets, investor sentiment is that it will take a while for the mortgage market to improve. For investors, that means establishing - or keeping in touch with - strong, trusted local lenders and advisers that are in touch with the rapidly changing mortgage markets.