WOODBURY, N.Y., May 31, 2014 /PRNewswire-iReach/ — Gettry Marcus CPA, P.C., a leading tax, consulting and forensic accounting firm, shares information about anew tax that applies to certain taxpayers that began in 2013—the 3.8 percent Net Investment Income (NII) Tax. This is a surtax that certain higher-income taxpayers may owe in addition to their income tax or alternative minimum tax. The tax applies to individuals, estates, and trusts (but not to corporations). Individuals are subject to the tax if they have NII and their adjusted gross income exceeds a specified threshold—$250,000 for married taxpayers filing jointlyand $200,000 for unmarried individuals.

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For trusts, the NII tax applies at a much lower income level—the amount at which the highest tax bracket for a trust begins. This may sound high, but in fact, it is not. For 2014, this bracket begins at $12,150. A trust subject to the NII tax may lower or eliminate its potential liability by distributing NII to its beneficiaries, because the tax applies only to the undistributed NII for the year. The tax may then apply to the recipient, but based on the recipient’s income level.

Exempt and nonexempt trusts

Some trusts are exempt from the NII tax: cemetery perpetual care funds; Alaska Native Settlement Trusts electing to be taxed under Code Sec. 646; wholly charitable trusts; and foreign trusts. However, other trusts are not exempt. These include pooled income funds (where individuals donate remainder interests to charity while retaining an income interest); qualified funeral trusts; electing small business trusts; and charitable remainder trusts.

Passive activity

For individuals, trusts, and estates, the tax applies to income from a trade or business that is a passive activity with respect to the taxpayer. A trade or business is not passive if the taxpayer materially participates in the activity (as determined under Code Sec. 469). There is IRS guidance for determining whether an individual materially participates in an activity.

Material participation

The IRS has never provided guidance on how to determine whether a trust or estate materially participates in a trade or business. When the IRS issued final regulations on the NII tax, it said that the issue was under study, but the IRS has not indicated whether it will issue guidance on the issue.

The IRS regulations conclude that the application of the material participation requirements to trust income potentially subject to the NII tax must be determined at the trust level. The treatment of the income as passive or non-passive, once determined for the trust, flows through to trust beneficiaries who receive a distribution of NII. Thus, if the trust materially participates in the activity that generated the income, the income is non-passive to both the trust and its beneficiaries, regardless of the age or involvement of the beneficiaries. If the trust did not materially participate, the income is passive to both the trust and its beneficiaries, even if a beneficiary materially participated in the activity.

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IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Gettry Marcus CPA, P.C. is a top New York City and Long Island CPA firm with offices in Woodbury, Long Island and New York City. We provide accounting, tax, and consulting services to commercial businesses, high net worth individuals and various industries which include real estate and health care. We have one of the premier and most credentialed business valuation, litigation and forensic accounting groups in the New York Area. Our experience in diverse industries and a highly talented and experienced professional staff gives us the ability to share valuable insights into our clients’ businesses, to better understand their goals and problems and to help them attain the vision they have for their company.

Gettry Marcus is “Always Looking Deeper” to build value for our clients.

Media inquiries: Contact FayellenDietchweiler at 516-364-3390 ext. 225 or at

fdietchweiler(at)gettrymarcus(dot)com

Media Contact: Fayellen Dietchweiler, Gettry Marcus CPA, P.C., 516-364-3390 x 225, fdietchweiler@gettrymarcus.com

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