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Take Note: Legal Updates, December 2023

The Sunset of the TCJA

If Congress allows many of our current tax provisions to sunset (or expire) as scheduled at the end of 2025, it will significantly impact estate and financial plans, including plans for future charitable gifts. You have the opportunity to start an important conversation about these potential changes now.

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In the 1989 comedy classic Major League, baseball broadcasting legend Bob Uecker plays a hard-drinking, sarcastic baseball play-by-play announcer named Harry Doyle, who covers a home team designed to fail. During a game, a rookie sends a pitch sailing several feet away from the catcher, and Doyle hilariously describes it as “Juuuust a bit outside…” This iconic line has since become a cultural reference (and meme) for any situation where the result was far different than intended.

In December 2017, the Tax Cuts and Jobs Act (TCJA) was the largest revision to the federal tax code in several decades and included many beneficial changes, such as the doubling of the estate and gift tax exemption amount and an increased deduction limit for cash gifts to public charities. However, to comply with Congressional budgeting rules, many of the TCJA changes are scheduled to sunset (or expire) on December 31, 2025. While Congress may choose to extend the affected provisions or make them permanent, the risk that Congress could let the changes expire as scheduled (intentionally or due to an inability to agree on what action to take) should not be ignored, as it would significantly impact estate and financial plans.

No one wants to have to tell a donor on January 1, 2026, that their planned charitable gift is “juuuust a bit outside” of the new rules or see a donor lose out on an itemized charitable deduction simply because they forgot (over the many years of the TCJA’s higher standard deduction) about important record-keeping rules. With those “errant pitches” in mind, let’s look at a few potential changes that could impact donors.

 

ESTATE AND GIFT TAXES

This is the big change coming for donors with the sunset and the biggest risk for estate plans. The TCJA doubled the estate tax exemption amount from $5 million to $10 million ($13.61 million in 2024 after annual inflation adjustments), meaning very few estates have been subject to the estate tax under the TCJA. If Congress allows the exemption amount to drop back to pre-TCJA levels (around $7 million in 2026 with inflation adjustments), many more estates will find they owe federal estate taxes.

Impact on planned giving

Make sure donors whose estates may be worth $7 million or more in 2026 are aware of the upcoming sunset and the changes to the estate and gift tax exemption. At this point, donors have time to revise their current estate and financial plans in case Congress does allow the TCJA to sunset. There are ways donors can mitigate the impact of a reduced estate tax exemption amount, including:

  • Using various estate planning tools to take advantage of the current higher exemption amount. The IRS already confirmed they will not try to apply the lower exemption to transfers made under the higher exemption amount.
  • Using current charitable gifts to help reduce the size of their estate (and therefore the amount of their future estate subject to tax).

 

DEDUCTION FOR CASH GIFTS

Under the TCJA, donors who make cash gifts to public charities and certain private foundations benefit from a 60%-of-AGI limitation. The sunset would drop the limitation back to the previous 50%.

Impact on planned giving

If a donor plans a cash gift but waits until after the sunset, that would be a definite “miss outside.” Encourage donors who could take advantage of this higher limitation to make their cash gifts before December 31, 2025.

 

THE STANDARD DEDUCTION

Another significant TCJA change was the doubling of the federal income tax standard deduction. Many donors who previously itemized and took a charitable deduction for their donations now find that it makes more sense to take the standard deduction.

Impact on planned giving

If the standard deduction reverts to its previous level, more donors will start itemizing again, meaning more people will claim the charitable deduction available for their gifts. It will be important to remind donors to once again start keeping the necessary records to substantiate their gifts.

 

UNDERSTANDING THE SUNSET RULES

With the tax law being less familiar than the rules of America’s pastime, planned giving professionals have an opportunity with the sunset of the TCJA to warn donors of the potential impact and give them a chance to make their “home-run” gift.

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