On April 24, 2021, the Washington State Legislature passed Senate Bill 5096. That bill enacts a 7 percent capital gains tax on some taxpayers’ long-term capital gains starting in 2022. Governor Inslee says he will sign the bill. Accordingly, individuals living or investing in Washington state need to learn how the law works. And also how to minimize its impact.
A caution? The new law burdens both the state and investors with surprisingly complicated rules…
Washington State Capital Gains Tax in a Nutshell
The new income tax only hits long-term capital gain or other income the Internal Revenue Code treats as long-term capital gains. Tax accoutants will recognize this as Section 1221 gain and some Section 1231 gain.
Further, though the law isn’t that clear, any Internal Revenue Code section that excludes or defers recognization of long-term capital gains for federal taxes also excludes or defers recognization of gain for Washington state’s capital gains tax.
For example, Qualified Opportunity Zones (more details here), Section 1202 Qualified Small Business Stock (more details here and here), Section 351 transfers, and similar statutes probably also exclude or defer gain for Washington state’s new capital gains tax.
Note: An awkward but important planning point: One can fairly assume the Washington State Department of Revenue will struggle to administer this new tax law as it learns how to apply complex federal tax laws for the first time.
Washington State Capital Gains Tax Exemptions
The Washington state capital gains tax exempts long-term capital gains on:
- Real estate (whether held directly or indirectly),
- Assets held inside retirement accounts,
- “Cattle, horses, or breeding livestock if for the taxable year of the sale or exchange, more than 50 percent of the taxpayer’s gross income for the taxable year,”
- Property depreciable under Internal Revenue Code sections 167(a)(1) or 179,
- “Timber, timberland, or the receipt of Washington capital gains as dividends and distributions from real estate investment trusts derived from gains from the sale or exchange of timber and timberland,”
- Commercial fishing privileges, and
- Goodwill received from the sale of an auto dealership
Further, the tax includes three deductions.
The Qualified Family-owned Small Business Deduction
For example, the new tax law provides a deduction for gains from the sale of most family owned small businesses as long as the owner actively operated the firm for the five years preceding the sale of the business and also materially participated in the business.
“Small” for purposes of this deduction means the business recognizes $10 million or less of worldwide revenue.
Example 1: An entrepreneur residing in Washington state sells her $10-million-in-revenue business and realizes a $10 million long-term capital gain. If her business qualifies–and it probably should–she escapes paying Washington state’s capital gains tax.
A heads-up warning here: A slightly complicated set of requirements exists for situations where two or three families (as opposed to a single family) own (or primarily own) the business.
The $250,000 Standard Deduction
The new tax law also provides a $250,000 standard deduction.
Example 2: One of the founders of a Washington technology company realizes a $1,250,000 gain on the sale of her stock in the company. Assuming that $1,250,000 represents her only long-term capital gains for the year, she pays the 7 percent tax on the $1,000,000 gain.
But the standard deduction includes some wrinkles.
First, note that the $250,000 makes no differentiation between single and married taxpayers. Both get the same $250,000 deduction. (Further, the state treats domestic partners as married for purposes of the tax law.)
Second, in a nod to the possibility that some part or all of the new tax will be found unconstitutional, taxpayers add to the $250,000 deduction amount any part of the capital gains tax found unconstitutional under federal or state law.
The Alternative Charitable Deduction
As an alternative to the standard $250,000 deduction, taxpayers can use up to $350,000 of charitable contributions to Washington state nonprofit organizations.
Example 3: An investor realizes $10,250,000 of capital gain subject to Washington state capital gains tax. The investor contributes $1,000,000 to a Washington state nonprofit organization. To calculate the capital gains taxed by Washington state, he may deduct either the $250,000 standard deduction or $350,000 of his $1,000,000 of charitable deductions.
Note: The $250,000 deduction and the $350,000 charitable deduction limit get adjusted upwards for inflation starting in 2023.
Residents vs. Non-residents
The new state law works a little differently for residents than for nonresidents.
Washington state residents pay the 7 percent income tax on essentially all of their long-term gains in excess of $250,000. Both capital gains connected to Washington state and those, in a sense, connected to some other state.
Example 4: One of the founders of a Washington company resides in Washington. If she realizes a $1,250,000 gain on the sale of founders’ stock in the Washington-based company, she pays the 7 percent tax on that $1,000,000 of the gain. If she sells a capital asset located in another state for a $1,000,000 gain, she probably also pays the 7 percent tax on that gain.
Non-residents typically won’t pay the tax however.
Example 5: Another founder in the same Washington-based company referenced in Example 4 lives in Texas. He also realizes a $1,250,000 gain on the sale of founders’ stock in the Washington-based company. But he does not pay the 7 percent Washington state capital gain tax on this gain. Further, if he sells capital assets located in his home state of Texas and realizes another $1,000,000 of gain, predictably, Washington state can’t tax that income.
Note: A nonresident might pay the capital gains tax on tangible personal property he or she moves out of Washington state.
A Trap in Treatment of CarryForwards
One quirk in the way the new capital gains tax works? Capital losses don’t necessarily carry forward.
Example 6: A taxpayer residing outside of Washington state coincidentally suffers a $1 million Washington state long-term capital loss in year 1 and then enjoys a $1 million Washington state long-term capital gain in year 2. Though she “breaks even” over the two years, she may pay substantial Washington state capital gain taxes in year 2.
Note that had the taxpayer from Example 6 been able to bunch her gains and losses in the same year, she might have avoided paying taxes entirely.
Planning Ideas for Washington’s New Capital Gains Tax
Will the new Washington state capital gains tax actually become law? Good question. In the past, state courts ruled income taxes to be unconstitutional. One probably wants to recognize the possibility this law ultimately gets discarded…
However, investors and entrepreneurs probably want to consider a handful of tax planning gambits–and soon–in case the courts accept the new law. And a variety of tax minimization techniques exist, including:
- Realizing taxable gains in 2021 so before the new tax law becomes effective.
- Delaying taxable losses until 2022 or later so these losses can shelter gains.
- Relocating to another state that either doesn’t tax income or taxes the income at a lower rate.
- Starting any new business that incents employees with stock in another state that doesn’t tax income or taxes income at lower rates.
- Using other tax exclusions and deferrals (like the Qualified Opportunity Zones and Qualified Small Business Stock mentioned earlier) to avoid or delay recognition of federal long-term capital gains.
- Spreading out the recognition of capital gains over multiple years (for example, splitting a $500,000 into two $250,000 chunks recognized in different years)
Which of these options make sense for a taxpayer? Or in a given situation? You want to confer with your tax advisor. Probably after tax season ends given this is at least the third major income tax law change your tax accounant has had to deal with this tax season.
The full text of the new bill appears here: Engrossed Substiture Senate Bill 5096