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Tax Planning for the Super Wealthy

Millions of Amer­icans will spend part of this past weekend trying to navigate tax prepa­ration software or filling out the actual paper forms to file their income tax returns before the Tuesday deadline. For those wishing they could pay less tax, outlined below are some tax planning ideas taken from a review of pres­i­dential candidate Mitt Romney’s tax returns.

Don’t Work for a Living

The single best way to reduce your income tax bill is to make sure that your income is subject to the lower pref­er­ential rates for divi­dends and capital gains. The federal tax system taxes “ordinary” income, like salaries and wages, at much higher rates (up to 35%) than investment income (maximum 15%). Many states have capital gains tax breaks, too. The low capital gains tax rate explains Romney’s 14 percent effective federal income tax rate. Almost all of his income is taxed at the low rate — the ordinary income he does have, from interest and speaking fees, is mostly offset by his itemized deductions.

At any level of income, a taxpayer with income from capital gains and divi­dends will pay less than half of the federal income tax paid by a taxpayer with the same amount of wages. Here are some examples:

Federal Income and Payroll Taxes	If Wages	If Capital Gains
Single, doesn’t itemize, $60,000 income	$8,750	$2,400
Married, itemizes, $250,000 income	$43,400	$19,300
Married, itemizes, $20 million income	$6,276,000	$2,695,200

The wage earner pays payroll taxes on top of the income tax. So it’s best, like Romney, to be unemployed.

Federal Income and Payroll Taxes	If Wages	If Capital Gains
Single, doesn’t itemize, $60,000 income	$17,930	$2,400
Married, itemizes, $250,000 income	$63,900	$19,300
Married, itemizes, $20 million income	$6,867,100	$2,695,20

If You Do Work, Disguise Your Compen­sation as Capital Gains

Romney’s return does report quite a bit of compen­sation (in addition to that “not very much” in speaking fees of $529,000), but it’s disguised as capital gains, to make it subject to that special low rate. About half of the $15 million in capital gain and dividend income reported on his 2010 tax return is compen­sation from Romney’s part­nership interests in Bain Capital funds.

These “carried interests” were earned by Romney in exchange for the services he performed while at Bain Capital. Private equity, hedge fund, and other investment fund managers structure their compen­sation so that most of it is received in the form of a part­nership interest — a piece of the deal — and the income from those carried interests is taxed at the capital gain rate. In addition to paying a much lower income tax rate, Romney also avoids paying the Medicare payroll tax on the income.

Give to Charity — But Not Cash

If you give a gift of appre­ciated property, like stock, to a charity, your deduction is the value of the stock, even though you may have paid far less for it. In Romney’s return, there’s a deduction for just under $1.5 million worth of Domino’s Pizza stock (which he likely received in a Bain Capital deal) to the Tyler Foun­dation (more about that below). The price he paid for the stock was zero or some­thing so close to zero that the accountant didn’t bother reporting it. Giving the stock to the foun­dation saved Romney an esti­mated $220,000 in taxes that he would have owed if he had sold the stock and given cash instead.

Give to Charity — But Not Now

In Romney’s tax return, there’s income from the W. Mitt Romney 1996 CRUT (that’s a Char­i­table Remainder UniTrust). That means Romney set up a char­i­table trust in 1996 (with a half million dollars or more) and he kept the right to receive income from the trust for a certain number of years or, quite likely, for the rest of his life.

In 1996 Romney got an income tax deduction for what will go to charity when the trust ends. The charity won’t get a dime until that trust ends (and it’s already been 15 years since the contri­bution), but Romney got a big deduction on his 1996 return (it’s hard to know how big without seeing the return). In addition, he or one of his close advisors can be the trustee of the trust and control the money until the trust ends.

In addition, the trust is a tax-exempt entity, so it can sell whatever assets are in the trust and pay no capital gains taxes, diversify Romney’s port­folio, and increase his investment return. Of course, at the end of the trust’s term, whatever remains in the trust must be distributed to a charity. In the meantime, Romney has enjoyed some generous tax benefits.

Give to Charity — Your Own

Of the almost $3 million in char­i­table contri­bu­tions on Romney’s 2010 tax return, about half went to The Tyler Char­i­table Foun­dation which Mitt and Ann Romney set up in 1999. When Romney makes a contri­bution to the foun­dation, it is fully deductible on his personal income tax return that year.

The foun­dation itself doesn’t provide direct services like a soup kitchen does. The “private” foun­dation (whose dona­tions come from only one or a few supporters) gives money to char­ities like the Boys and Girls Club (known as “public” char­ities because their support is from the public more broadly) that generally do provide direct services.

The foun­dation only has to distribute 5 percent of its assets each year. So while Romney got a $1.5 deduction for the amounts trans­ferred to the foun­dation in 2010, the foun­dation can take its sweet time getting the money in the hands of a public charity. At the end of 2010, the foun­dation had over $10 million in assets.

Use Offshore Investment Vehicles

An American citizen is taxable on all of his income, no matter where he lives or where the income is earned. If the income is subject to any foreign tax, the taxpayer gets a credit against his U.S. tax, to avoid double taxation. Romney reduced his U.S. tax bill by almost $130,000 in foreign tax credits on his 2010 return.

The earnings on any foreign invest­ments would be fully taxable in the year earned, so it seems there would be no tax advantage to investing offshore. But using certain foreign investment vehicles allows a U.S. taxpayer to avoid some rules and thereby save some tax.

(For tax nerds: Investing in a Bain Capital fund formed in the Cayman Islands through a PFIC (Passive Foreign Investment Corpo­ration), for example, can save an indi­vidual investor tax by avoiding the limi­ta­tions on miscel­la­neous itemized deduc­tions. A tax-exempt investor, like Romney’s Indi­vidual Retirement Account, can avoid the Unre­lated Business Income Tax (UBIT) by investing through a foreign corpo­ration as well, instead of investing in the fund directly.)

There are reports that Romney may have taken advantage of the tax savings offered by investing through these offshore vehicles, although it’s not apparent from the tax return. The return does have 55 pages of forms for reporting Romney’s trans­ac­tions with foreign corpo­ra­tions, foreign part­ner­ships, and PFICs. At least eleven of the entities from which Romney earns income are located in coun­tries considered to be offshore tax havens, such as Bermuda, the Cayman Islands, and Luxembourg.

Invest in Sexier Financial Instruments

If you’re investing in plain vanilla stock and bonds, you’re missing some tax planning oppor­tu­nities. For example, Romney’s return includes a $415,000 gain from certain invest­ments that get special treatment under the tax rules (for tax nerds: section 1256 contracts).

The gain on these invest­ments is treated as 60 percent long-term capital gain and 40 percent short-term gain, no matter how long you’ve actually held the investment — even if it’s for only one day! The amount treated as long-term gain gets taxed at that special low capital gains rate. Romney’s return also discloses income from foreign currency trans­ac­tions, swaps and other deriv­a­tives, and invest­ments which are written up to market value each year.

Borrow Money Only to Invest

If you borrow money to buy a car, the interest is not deductible even if you need your car to get to work. If you use a credit card to buy personal items, that interest is not deductible. If you borrow money to buy a house, the interest is deductible but only on a loan of $1 million or less. (Romney’s three homes are valued in the neigh­borhood of $25 million.) If you borrow money against the equity in your home, interest on only $100,000 of prin­cipal is deductible.

But if, like Romney, your interest expense is “investment interest expense,” it is deductible, limited only by the amount of your investment income. When your investment income is in the millions of dollars, you can deduct a lot of interest.

Be Aggressive in Your Tax Planning

When a taxpayer engages in a type of trans­action that the Internal Revenue Service has iden­tified as poten­tially abusive, he must disclose that in his tax return. It’s called a “reportable trans­action” and the taxpayer has to file a Form 8886 to tell the IRS about it. Romney’s 2010 return included six Forms 8886 (16 pages) related to invest­ments in hedge funds and private equity funds.

But Don’t Do Anything Illegal

There’s nothing in Romney’s tax return that indi­cates anything neces­sarily illegal or improper. On the contrary, it appears that he has been consci­en­tious in filing the necessary forms and disclosures.

In addition to the disclo­sures noted above, on Schedule B, Interest and Divi­dends, the “yes” box is marked on that pesky question about foreign financial accounts and “Switzerland” is shown as where the account is located. If Romney was going to use offshore accounts to ille­gally evade taxes (as opposed to merely avoid them), he might decide not to complete that part of the return or he might omit some of those disclosure forms.

For Your Return

While in theory any taxpayer could use the tax planning tech­niques outlined above, in reality only the wealthy can take advantage of them. It takes a substantial amount of money to set up a char­i­table trust, for example. In addition to the money you put in the trust, you have to pay the attorney who draws up the trust docu­ments and the accountant who files the trust’s annual tax returns. So unless you’re making a pretty substantial contri­bution, the costs would outweigh the tax benefits.

You have to have signif­icant resources to be able to structure your debt for the best tax result. Or to set up a private foun­dation. Or make offshore invest­ments. Or structure your compen­sation as capital gains.

The fact that there doesn’t appear to be anything improper in Romney’s tax return — and yet the return is full of ways only a wealthy person can reduce his tax bill — is the problem.