High-income traders are hit with ObamaCare's 3.8% Medicare tax on investment income

By Robert A. Green, CPA

The Patient Protection and Affordable Care Act (ObamaCare) makes a big political point of raising taxes on the rich — defined as individuals with adjusted gross income (AGI) exceeding $200,000 (single), $250,000 (married filing jointly), or $125,000 (married filing separately) — and on the investor class, too. On Jan. 1, the first revenue raisers — the Medicare tax hikes on earned and unearned income — kick in. (The more contentious health-insurance mandate or tax penalties don't start until 2014.)

The current Medicare tax rate of 2.9 percent applies to all earned income. But if you're in one of the previously stated income groups, a new 0.9 percent Medicare hospital insurance tax raises this rate to 3.8 percent.

Starting in 2013, the 3.8-percent Medicare tax will be applied to unearned income, too, for individuals exceeding these income thresholds. (Technically, it's modified AGI, which means U.S. residents abroad must add back any foreign earned income exclusion reported on Form 2555.)

Unearned income includes investment or portfolio income (interest, dividends, most capital gains, and annuities), royalties, rents, and passive activity income, as well as gains from the sale of property not used in an active business.

The 3.8-percent Medicare tax on unearned income doesn't apply to qualified plan distributions (retirement plans) or income from the disposition of, or pass-through from, active (earned-income related) LLCs, partnerships, and S-corps, among other revenue sources. But it does apply to taxable income of trusts with undistributed net income in excess of the dollar amount at which the highest tax bracket for trusts begins (this amount is $11,650 in 2012).

While the Medicare tax on earned income is 50-percent tax deductible, it is not deductible on unearned income. Employers pay half the 2012 Medicare tax and withhold the other half from employees' paychecks. Investors have to pay the tax on unearned income through estimated taxes and with their tax balance due.

Selling profitable investment positions before year-end 2012 and accelerating other unearned income could be a wise tax move if you know you are going to be over the $200,000/$250,000 income threshold in 2013, triggering the Medicare tax. Plus, if Bush-era tax cuts expire, ordinary, qualifying dividend, and capital gains tax rates will rise in 2013, too.

As is the case with self-employment tax calculations, the Medicare tax on unearned income is assessed on net investment income. That's defined as net trading gains — proceeds minus cost basis on securities — less “properly allocable” expenses. For traders and investors, these allowable expenses include trading expenses. For business traders, all trading expenses are deducted on Schedule C or on a pass-through entity tax return. For investors lacking trader tax status, Section 212 investment expenses don't include education, home office, and some other expenses.

Historically, social security and Medicare taxes were limited to a social security base amount on earned income only. The 2012 social-security-base amount is $110,100. Congress raises the base every few years by around $3,000 or more. The base was $76,200 in 2000, $51,300 in 1990 and $25,900 in 1980. That's a serious tax hike on the middle class. Benefits have risen too with the inflation index.

In 1994, Congress untethered Medicare taxes from the social security base, applying them to unlimited earned income. While Congress failed in passing universal health care reform during the first Clinton administration, it did pass this Medicare tax hike which was intended to pay for that health care reform. Go figure.

Medicare costs are spiraling upwards and Congress seems bent on raising Medicare taxes to pay for these runaway costs. There seems to be credence to the popular saying that “spending equal tax hikes.”

An important proposal in Obama's 2008 presidential campaign was

. To use the regular social security tax base and have the base return again on earnings over $250,000 in an unlimited manner. This proposal seems to be a precursor to ObamaCare's Medicare tax hike on incomes over $250,000.

Even though the Senate's recent attempt to repeal the S-Corp self-employment (SE) tax loophole on earned income failed, taxpayers won't be able to avoid the Medicare tax by operating their trading activities in an S-Corp. Initial suggestions in the media and tax webinars have indicated otherwise: In the

tax report “About That Investment Tax,” a CPA suggested the loophole might work to avoid Medicare taxes on investment income. However, our tax research clearly shows these advisers are wrong.

Tax attorney Mark Feldman, JD, says recent articles covering the loophole are referring to S-corps that engage in active businesses, such as cleaning carpets, not businesses trading financial instruments. Feldman says that even though active income normally is not subject to the unearned income Medicare contribution tax but is subject to SE tax, in the case of these active S-Corp businesses, the active income is subject to neither.

According to Feldman's research, Temp. Regs. Sec. 1.469-1T(e)(6) states, “An activity of trading personal property for the account of owners of interests in the activity is not a passive activity.” Some taxpayers may argue that their investment is an active trade or business based on this regulation and thereby Medicare tax doesn't apply to them. Feldman says Congress expected tax advisers to try this loophole and specifically ruled it out in the new law. ObamaCare specifically lists businesses to which this tax applies, including “a trade or business of trading in financial instruments or commodities.”

Underlying earned-income businesses conduct their activities within an S-corp. S-corps do not pass through SE taxable income from earned income activities as LLC partnership returns do. The IRS requires S-corps to pay “reasonable compensation” to officers/owners. This area of the law is under challenge and the IRS is becoming more aggressive. In the past, 25 percent of income could be attributable to officers' compensation, but the factors are much more complex and beyond the scope of this article. Check with a tax adviser before you proceed.

If the Bush-era tax cuts expire as scheduled at the end of December 2012, for either everyone, or as President Obama proposes, for taxpayers making more than $200,000 (single) and $250,000 (married), the significant marriage tax penalty will return. Plus, it will be even greater with ObamaCare's Medicare tax on unearned income.

Many taxpayers don't remember the significant marriage tax penalties from before the Bush-era tax cuts 2001 in 2003. Read about the

.

Consider this scenario. One unmarried partner could report the couple's unearned income on a tax return filing single, and the other partner could report a high wage job on a second tax return filing single. That would save significant income and Medicare taxes versus filing as a married couple.

I just took an important tax update CPE class with RIA and the instructor suggested that divorce would be good tax planning. Isn't that a little extreme, and have we come to that? Certainly, some taxpayers may think twice about getting married sooner, rather than later.

Many of our clients are full-time business retail traders, combining hard work, skill and capital within the investment arena. Most put in more sweat equity than capital, and they use leverage and volume to make up for insufficient trading capital. They are certainly not coupon-clippers in the rich investor class.

Many aspiring business traders changed careers involuntarily through downsizing, while others pursue their dreams in trading. Some want a business from their home location to fit their lifestyle or family needs. Few online traders make over the $200,000/$250,000 from trading and many traders appreciate ObamaCare.

Even though many traders work full time, their trading gains are still considered unearned income — business-related “portfolio income.” Under the “trading rule” in Section 469, trading gains and losses are exempt from passive income or loss treatment. That's good news. Trading losses are deductible in Section 212 (investment) or Section 162 (trade or business) if other tax-treatment elections for ordinary loss treatment are in place, like Section 475 MTM for securities or Section 988 for forex. Congress didn't want taxpayers with suspended passive losses to invest in hedge funds to easily generate passive income.

A few types of business traders have earned income subject to SE taxes:

-Futures traders who are full members of futures or options exchanges generate earned income — otherwise called SE income — on their trades executed through their exchange membership (Section 1402i in the SE rules).

-Investment management advisory fees — including management fees and incentive fees — are considered SE and earned income.

-Proprietary traders who trade the firm's capital rather than their own as retail traders are sometimes paid as independent contractors and issued a Form 1099-Misc. for non-employee compensation, which is considered SE and earned income.

These traders with SE income have the tax benefit opportunity of AGI deductions for retirement plans and health insurance premiums, both of which require earned income. These income tax savings can outweigh SE tax costs.

Business traders who do not generate SE income start with the earned income glass empty, generally a nice thing. If these traders want AGI deductions for retirement plans and health-insurance premiums to put net tax savings in their pockets, they need to form an entity to financially engineer earned income. They use an administration fee in an LLC/partnership and a salary in an S-Corp. These business traders can also save more in income taxes than they pay in SE taxes.

Business traders affected by the Medicare tax in 2013 have more incentive to form an entity to convert trading gains to earned income with a fee or salary to increase retirement plan tax deductions. If they are going to pay Medicare tax on unearned income, they may as well have AGI deductions to offset that tax cost. Consider a defined benefit plan with a maximum contribution allowed up to $200,000 for 2012. That's far higher than a defined contribution plan deduction of $50,000.

Trading within a retirement plan is already a good idea for saving income taxes — retirement plan earnings and distributions are exempt from the Medicare tax on unearned income — and now it can help save the additional Medicare tax on unearned income, too. When trading in a Roth IRA or Roth qualified plan, the income and Medicare tax savings are permanent. Conversely, in traditional retirement plans, income taxes are only deferred until retirement, when Required Minimum Distributions must start (no later than age 70½).

With the advent of online trading accounts for retirement plans and brokers making commissions competitive, more traders are self-directing their retirement funds into active trading. Some traders simply trade within their retirement plans, avoiding “early withdrawals,” which trigger ordinary tax rates and 10-percent excise taxes before age 59½ in IRAs and age 55 in qualified plans. We recommend business traders set up a qualified plan and then use a qualified plan loan to fund their business trading accounts. Factoring the Medicare tax on unearned income into the mix, some traders may prefer trading more inside of their retirement plans rather than taking distributions or plan loans.

We understand well that many of our trader clients count on trading gains to pay their bills and support their families. Trading is their job and living. Switching to trading retirement plan funds is simply not feasible for them. Others just haven't accumulated much retirement capital. Plus, it's risky to put retirement plan assets at risk and those funds are meant to provide income in retirement and to be a safety net.

Whether you trade taxable accounts individually, in a pass-through entity like a general partnership, LLC or S-Corp, or through estates and trust accounts, keep in mind the unearned income passes through to your individual return and it's subject to this new Medicare tax if you exceed the income thresholds.

The 2013 tax rates on individuals are scheduled to move higher when the Bush-era tax cuts expire. At the same time, Congress is talking about reducing the corporate tax rates. In 2012, the top rates are both 35 percent, but in 2013, individual rates could approach 44 percent (39.6 percent plus phase outs and the 3.8-percent Medicare tax) and corporate rates could drop below 30 percent. Tax advisers then suggest using corporations to report income. But, don't forget to factor in double-taxing including on the state level: The entity pays taxes on income, and the individual pays taxes on dividend payments from the entity.

Generally, trading in a C-corp is a bad idea. Trading losses are trapped in corporations and it's better for individuals to use pass-through entities, utilizing the losses on their individual tax returns. Especially when they're fully deductible as ordinary losses, like with Section 475 MTM on securities and Section 988 on forex. C-corps also can't get lower Section 1256 60/40 tax rates on futures and other Section 1256 contracts.

One strategy is to house your earned income activities in a C-corp and grow accumulated earnings before double taxation on the individual level. Conduct your trading activities in pass-through entities and try to keep your AGI under the higher tax rate thresholds. Caution: The preferential qualifying dividends tax rate (15 percent) expires with the Bush-era tax cuts, and all dividends return to the ordinary income tax rate.

While tax planning is uncertain based on expiration of Bush-era tax cuts and promised tax reform, the ObamaCare Medicare tax changes are on the books and traders should adjust their tax planning accordingly. Even if a new Congress reverses some of ObamaCare, will they reverse these new Medicare taxes? Not if you look to 1994 as a precedent.