Kernutt Stokes Donating $75,000 to Commemorate 75th Anniversary

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On November 7, the Associated Press (AP) called the presidential election for former Vice President Joe Biden. While several legal challenges remain, President-elect Biden’s transition is now underway. Although President-Elect Biden has not released a formal, detailed plan addressing his vision for the tax code, we can gain a sense of how his approach differs through casual mentions of some aspects of tax policy on the campaign trail.

Tax policy underpins business decisions and consumer behavior, so an understanding of Biden’s more detailed vision for tax policy will be intrinsic to successfully navigating the economic downturn triggered by the pandemic. Savvy businesses and individuals should pay close attention to how any proposed policy may ultimately alter their total tax liability.

It’s also important to keep in mind the fundamental role of Congress in passing tax legislation. With the current makeup of the White House, Senate, and House of Representatives, passing tax legislation may be challenging.  For example, if both the Senate and House are of the same party as the successful presidential candidate, any changes in tax law may still have to be passed through the budget reconciliation process, because 60 votes in the Senate generally would be needed to avoid using the reconciliation process (and there are currently not 60 members of the Senate of the same party). Both in 2017 and 2001, passing tax legislation through reconciliation meant that most of the changes were not permanent; that is, they expired within the 10-year budget window. If any of the White House, Senate, or House are of a majority party different than the others, the chances of passing and enacting any agreed-to tax legislation becomes more doubtful.

The following table contains side-by-side snapshots of current and Biden’s potential future tax policies as of Oct. 30, 2020, from what has been mentioned informally on the campaign trail.

  Current Tax Law
Biden’s Stated Goals
Corporate Tax Rates and AMT Corporations have a flat 21% tax rate and no corporate alternative minimum tax (AMT), which were both changed by the TCJA.


These do not expire.

Biden would raise the flat rate to the pre-TCJA level of 28% and reinstate the corporate AMT, requiring corporations to pay the greater of their regular corporate income tax or the 15% minimum tax (while still allowing for net operating loss (NOL) and foreign tax credits).
Capital Gains and Qualified Dividend Income The top tax rate is 20% for income over $441,450 for individuals and $496,600 for married filing jointly. There is an additional 3.8% net investment income tax. Biden would eliminate breaks for long-term capital gains and dividends for income above $1 million. Instead, these would be taxed at ordinary rates.
Payroll Taxes The 12.4% payroll tax is divided evenly between employers and employees and applies to the first $137,700 of an individual’s income (scheduled to go up to $142,400 in 2020). There is also a 2.9% Medicare Tax which is split equally between the employer and the employee with no income limit. Biden would maintain the 12.4% tax split between employers and employees and keep the $142,400 cap but would institute the tax on earned income above $400,000. The gap between the two wage levels would gradually close with annual inflationary increases.
International Taxes (GILTI, offshoring) GILTI (global intangible low-tax income): Established by the TCJA, U.S. multinationals are required to pay a foreign tax rate of between 10.5% and 13.125%.
A scheduled increase in the effective rate to 16.406% is scheduled to begin in 2026.Offshoring taxes: The TCJA includes a tax deduction for corporations that manufacture in the U.S. and sell overseas.
GILTI: Biden would double the tax rate to 21% and assess a minimum tax on a country-by-country basis.


Offshoring taxes: Biden would establish a 10% penalty surtax on profits for goods and services manufactured offshore and a 10% advanceable “Made in America” tax credit to create U.S. manufacturing jobs. Biden would also close offshoring tax loopholes in the TCJA.

Estate Taxes The estate tax exemption for 2020 is $11,580,000.  Transfers of appreciated property at death get a step-up in basis.


The exemption is scheduled to revert to pre-TCJA levels.

Biden would return the estate tax to 2009 levels, eliminate the current step-up in basis on inherited assets, and eliminate the step-up at death provision for inherited property passed along by the decedent.
Individual Tax Rates The top marginal rate is 37% for income over $518,400 for individuals and $622,050 for married filing jointly. This was lowered from 39.6% pre-TCJA. Biden would restore the 39.6% rate for taxable income above $400,000. This represents only the top rate.
Individual Tax Credits Currently, individuals can claim a maximum of $2,000 Child Tax Credit (CTC)plus a $500 dependent credit.


Individuals may claim a maximum dependent care credit of $600 ($1,200 for two or more children).

The CTC is scheduled to revert to pre-TCJA levels ($1,000) after 2025.

Biden would expand the CTC to $3,000 for children age 17 and under and offer a $600 bonus for children age 6 and under. It would also be fully refundable.


He has also proposed increasing the child and dependent care tax credit to $8,000 ($16,000 for two or more children), and he has proposed a new tax credit of up to $5,000 for informal caregivers.

Separately, Biden has also proposed a $15,000 tax credit for first-time homebuyers.

Qualified Business Income Deduction Under Section 199A As previously discussed, many businesses qualify for a 20% qualified business income tax deduction lowering the effective rate of tax for S corporation shareholders and partners in partnerships to 29.6% for qualifying businesses. Biden would phase out the tax benefits associated with the qualified business income deduction for those making more than $400,000 annually.
Education Forgiven student loan debt is included in taxable income.


There is no tax credit for contributions to state-authorized organizations that sponsor scholarships.

Biden would exclude forgiven student loan debt from taxable income.
Small Businesses There are current tax credits for some of the costs to start a retirement plan. Biden would offer tax credits for businesses that adopt a retirement savings plan and offer most workers without a pension or 401(k) access to an “automatic 401(k)”.
Itemized Deductions For 2020, the standard deduction is $12,400 for single/married filing separately and $24,800 for married filing jointly.


After 2025, the standard deduction is scheduled to revert to pre-TCJA amounts, or $6,350 for single /married filing separately and $12,700 for married filing jointly.

The TCJA suspended the personal exemption and most individual deductions through 2025.

It also capped the SALT deduction at $10,000, which will remain in place until 2025, unless repealed.

Biden would enact a provision that would cap the tax benefit of itemized deductions at 28%.


SALT cap: Senate minority leader Charles Schumer has pledged to repeal the cap should Biden win in November (the House of Representatives has already passed legislation to repeal to the SALT cap).

Opportunity Zones   Biden has proposed incentivizing – opportunity zone funds to partner with community organizations and have the Treasury Department review the program’s regulations of the tax incentives.  He would also increase reporting and public disclosure requirements.
Alternative Energy   Biden would expand renewable energy tax credits and credits for residential energy efficiency and restore the Energy Investment Tax Credit (ITC) and the Electric Vehicle Tax Credit.