The capital gains tax is a subset of our income tax system. It is imposed by both the federal government (IRS) and the state of California (Franchise Tax Board). The recipient of the income is the one on the hook for paying it.
You’re probably most familiar with paying income tax on your earnings through work. Since our wages are fairly predictable year over year, most wage earners have their employers take out (or “withhold”) their income taxes from each paycheck ahead of time. Then, every April, with a timely filed tax return, each wage earner claims a refund for any excess due back to the wage earner. But our wages are only one form of income we may receive in any given year.
Other forms of income may come in the way of rents from an income property we own and lease to a tenant. Or maybe we receive dividends paid to us because we hold shares in a company that generated profits for the year. Or maybe we own an interest in an oil well and are entitled to royalties from that interest.
Or, more commonly, we sold something for more money than we purchased it for. Profit from a sale is considered income, and it is called a “gain”. (Similarly, if we lost money on a sale, we would call it a “loss”). If something is valued more than what it was purchased for, but hasn’t been sold, it’s considered a “potential” or “built in” gain. It becomes an “actual” or “recognized” gain once you actually sell the asset. A capital gain is a gain on the sale of a capital asset. A capital asset can be a house, vehicle, office equipment, art, construction equipment, stocks, bonds, a trademark, etc. Capital assets are essentially anything you own that is not cash or a retirement account.
Let’s use an example. (The following example is going to be significantly simplified not to include tax deductions or financing instruments like mortgages. We’re also not discussing short-term capital gains in this example).
You purchase a home for $500,000 in cash. That purchase price is considered your “cost basis”, or the starting point for calculating gains and losses. Five years later, your home is worth $750,000. Your cost basis remains the purchase price at $500,000, but you now have a potential gain of $250,000 built into your property. At this point no taxes are due or owed. You don’t actually have the $250,000 sitting in your bank account. You have the fleeting possibility of making that $250,000 if you sell the house today. If your home value dips to $450,000 tomorrow, you would then have a potential loss of $50,000. Your home value is a fluctuating number from year to year, and your potential losses and gains flow accordingly.
Let’s say you decide to sell it to a willing buyer at that $750,000 price. At this point you took an asset that you purchased for $500,000, and you converted it into $750,000. That means you resulted in a recognized capital gain of $250,000. You now have income that actually went into your bank account. You will be taxed by both the federal government and the state of California on that income as a capital gains tax.
Now’s a great time to remind you that this is not a CPA’s post. This is about estate planning, right? Why are capital gains significant in an estate planning context?
Capital gains, as explained above, are taxed when someone makes a profit selling an asset. If you don’t ever sell the asset, there is no taxable event. So what happens if you have an asset with a built in capital gain, and give it away or gift it during your life?
When you make a lifetime gift of an asset, and it has potential gains built into it, you are also giving the recipient a future capital gains tax problem. Let’s use the same example from above, with the house that is worth $750,000, and was purchased for $500,000. If you gave that house to your children instead of selling it, your children also receive the built in capital gains. So if/when your children sell the home, and it’s sold for more than $500,000, then they owe any capital gains tax. Since you never sold the house, someone has to pay the tax, and it’s going to be the owner that sells it.
What if you give the house after you die?
There is a federal tax law that says any gift of a capital asset after death receives what is called a step up in basis to fair market value upon date of death. In plainspeak that means that an asset gifted at death gets all of the built in capital gains eliminated. That’s not a typo. If instead of giving the $750,000 house to your children during life you gave it to them as an inheritance, then they receive the home as if they purchased the home for $750,000! If/when they sell the home, their capital gains exposure is measured from the $750,000 amount and not the original purchase price of $500,000. This significantly reduces or eliminates anyone ever paying capital gains tax on the sale of this home. It’s quite the benefit! You do not need to do anything to receive this benefit. It’s a tax feature available whenever someone dies owning capital assets.
To apply this knowledge to a real world situation, think of a time when a parent added a child to title of their home. The parent’s idea might be to shortcut the transfer of the home by adding the child to title during life, and upon the parent’s death the child receives the home… which is partially correct. They will receive the home. But they will also receive a portion of the parent’s built in capital gains. You see, when the parent dies, only the portion of the capital gains associated with the home that the parent owns gets eliminated. The portion that the child owns stays in place until the child dies or sells the property. In situations with joint title, part of the interest gets the step up at death, but the portion in the hands of the person still living remains untouched. So in most cases, we prefer to transfer appreciated assets after death and not during life.
You can see how knowing the nuances of “everyday” taxes can help when planning ahead. And you can also probably see how once you’ve made certain transfers, you cannot “unring the bell”. We strongly recommend speaking to a professional prior to making large or substantial transfers, even when it involves something mundane like adding a child onto title. Even non wealthy, “straightforward” estate plans can benefit from speaking to an estate planning professional to create a robust and comprehensive plan.
