Scarinci Hollenbeck, LLC
The Firm
201-896-4100 info@sh-law.comFirm Insights
Author: Scarinci Hollenbeck, LLC
Date: June 23, 2023
The Firm
201-896-4100 info@sh-law.comThe 2022 Secure 2.0 Act signed into law, December 29, 2022, provides a onetime election for qualified charitable distributions (QCD) of $50,000 (increased annually for inflation) from one’s IRA in return for an annuity. In essence it allows for a one-time election to a “qualified charitable entity” of a gift annuity (CGA) if such annuity is funded exclusively by a QCD and commences fix payments of 5% or greater not later than one year from the date of funding.
The origin of the election is under IRS code section 408, “Individual Retirement Accounts”. Section 408 was amended by the Secure 2.0 Act to allow this one-time election.
What are the requirements?
The QCD is tax neutral for federal tax purposes; meaning you do not have to report the distribution/contribution as income, but the distribution/contribution is not eligible for a charitable deduction; (state laws, however, may vary).
All payments from a CGA will be taxed as ordinary income. The key point is that the CGA counts towards one’s Required Minimum Distribution (RMD) but does not count as income for federal income tax purposes thus reducing the RMD in the year the gift is made.
The income from the CGA is paid for life, or for the life of the donor and his or her spouse. Note: Payments to children or others are not allowed.
Individuals who are age 73 (younger in prior years), must take their RMD every year. By making a CGA they receives the benefit of not having to pay tax on the QCD amount and since they do not receive it and the CGA does not count as income. Additionally, their Medicare premium will decrease somewhat because they will have less income.
The typical annual payout for $50,000 gift annuity is:
Source: American Council on Gift Annuities | Note: Suggested maximum rates as of Jan. 1, 2023, for singlelife 65 years old (5.4%)
The law still provides for charitable gifts from retirement accounts for up to $100,000 per year but there is no annuity portion. It’s simply a gift that would reduce one’s RMD.
This new feature under the Secure Act 2.0 enhances charitable giving especially because the federal estate tax exemption has increased dramatically to almost $13 million per individual. As a result, there’s less of an incentive for even wealthy people to make charitable gifts as their estates may not be subject to federal estate tax and their property, which otherwise would be taxed @ 40% was often donated to a charitable entity (think Bill Gates and Warren Buffet). With the dramatic increase in the federal estate tax exemption, wealth now passes to the children with an increase in basis, equal to fair market value at the death of the owner.
Retirement accounts do not receive an increase in basis on the death of the owner, since they are considered to be “income in respect of a decedent” IRC 691, and therefore there is no step up in basis. Consequently, making a gift from the retirement account would be the better choice since owners who receive their parents’ retirement account have the same basis. The principle when withdrawn is income which must be taken out over 10 years. The Secure 2.0 Act features enhance the motivation for someone to make a charitable gift with retirement accounts that otherwise would not be made.
Additionally, it’s important to note that the secure Act 2.0 legislation only applies to Individual Retirement Accounts (IRA’s). The amendment was to IRC sec. 408 -IRA’s. Conspicuously absent is the ability of holders of 401K, 403B, thrift plans, etc. to make similar gift annuities. Why these were excluded is probably because like all legislation it was rushed through at the very end of the year. There are many retired and working 70 ½ year olds that may want to make a gift annuity from their 401K’s, 403B’s, etc. but they can’t. Perhaps exempt organizations, i.e. Universities, Hospitals, etc. need to have congress address this issue?
This Memorandum has been prepared for the general information of colleagues, clients and friends of the Firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.
If you have any questions or if you would like to discuss the matter further, please contact me, Frank Brunetti, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
The Trump Administration’s new tariffs are having an oversized impact on small businesses, which already tend to operate on razor thin margins. Many businesses have been forced to raise prices, find new suppliers, lay off staff, and delay growth plans. For businesses facing even more dire financial circumstances, there are additional tariff response options, including […]
Author: Brian D. Spector
Business partnerships, much like marriages, function exceptionally well when partners are aligned but can become challenging when disagreements arise. Partnership disputes often stem from conflicts over business strategy, financial management, and unclear role definitions among partners. Understanding Business Partnership Conflicts Partnership conflicts place significant stress on businesses, making proactive measures essential. Partnerships should establish detailed […]
Author: Christopher D. Warren
*** The original article was featured on Bloomberg Tax, April 28, 2025 — As a tax attorney who spends much of my time helping people and companies who have large, unresolved issues with the IRS or one or more state tax departments, it often occurs to me that the best service that I can provide […]
Author: Scott H. Novak
On January 28, 2025, the Trump Administration terminated Gwynne Wilcox from her position as a Member of the National Labor Relations Board (NLRB or the Board). Gwynne Wilcox, a union side lawyer for Levy Ratner, was confirmed to the Board for an original term in 2021 and confirmed again for a successive five-year term expiring […]
Author: Matthew F. Mimnaugh
Breach of contract disputes are the most common type of business litigation. Therefore, nearly all New York and New Jersey businesses will likely have to deal with a contract dispute at least once. Understanding when to file a breach of contract lawsuit and how long you have to sue for breach of contract is essential […]
Author: Brittany P. Tarabour
Closing your business can be a difficult and challenging task. For corporations, the process includes formal approval of the dissolution, winding up operations, resolving tax liabilities, and filing all required paperwork. Whether you need to understand how to dissolve a corporation in New York or New Jersey, it’s imperative to take all of the proper […]
Author: Christopher D. Warren
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!