Year End: Avoiding the Net Investment Income Tax

The Net Investment Income Tax (NIIT) is a 3.8% tax that applies to certain net investment income of individuals with income above a threshold amount. The threshold amounts are:

• $250,000 (married filing jointly and qualifying widow(er) with dependent child),
• $200,000 (single and head of household), and
• $125,000 (married filing separately).

In general, investment income includes, but is not limited to:

• interest
• dividends
• capital gains
• rental and royalty income
• non-qualified annuities
• income from businesses involved in trading of financial instruments or commodities.

Thus, while the top tax rate for qualified dividend income is generally 20%, the top rate on such income increases to 23.8% for a taxpayer subject to the net investment income tax.

If it appears you may be subject to the Net Investment Income Tax (NIIT), the following actions may help avoid the tax. You should discuss whether any of these options with your CPA to see if they make sense in your particular financial situation.

1. Donate or gift appreciated property. By donating appreciated property to a charity, you can avoid recognizing the appreciation for income tax purposes and for net investment income tax purposes. Or you may gift the property so that the donee can sell it and report the income. In this case, you'll want to gift the property to individuals that have income below the $200,000 (single) or $250,000 (couples) thresholds.
2. Replace stocks with state and local bonds. Interest on tax-exempt state and local bonds are exempt from the NIIT. In addition, because such interest income is not included in adjusted gross income, it can help keep you below the threshold for which the NIIT applies
3. If you are in the real estate business, we should review the criteria for being classified as a real estate professional. If you meet these requirements, your rental income is considered non-passive and thus escapes the NIIT.
4. If you intend to sell any appreciated assets, consider whether the sale can be structured as an installment sale so the gain recognition is spread over several years.
5. Since capital losses can offset capital gains for NIIT purposes, consider whether it makes sense to sell any losing stocks, but keeping in mind the transaction costs associated with selling stocks.
6. If you have appreciated real property to dispose of and are not considered a real estate professional, a like-kind exchange may be more advantageous. By deferring the gain recognition, you can avoid recognizing income subject to the NIIT.

Because the NIIT does not apply to a trade or business unless the trade or business is a passive activity with respect to the taxpayer, or the trade or business consists of trading financial instruments or commodities, you may want to look at ways in which a venture you are involved with could qualify as a trade or business. However, such classification could have Form 1099 reporting implications whereas personal payments are not reportable.