Clearing Up Confusion: The 3.8% Tax Is Not a Real Estate Transfer Tax

Now that the Supreme Court has upheld the health care legislation, all of its major provisions remain in effect, including the new tax that was designed to affect upper income taxpayers. Among the concerns expressed among consumers is that the tax amounts to a transfer tax on real estate. Not true.

Shortly after the federal government enacted sweeping healthcare reform, there was considerable concern over a last-minute addition to the legislation: a 3.8 percent tax on investment income of upper-income households to help shore up Medicare. The tax takes effect in 2013.

The 3.8% tax is imposed ONLY on those with more than $200,000 of Adjusted Gross Income (AGI) ($250,000 on a joint return). The tax applies to investment income, defined as interest, dividends, capital gains and net rents. These items are all included in an individual's AGI. A formula will determine what portion, if any, of these types of investment income would be subject to the tax. The tax is NOT a transfer tax on real estate sales and similar transactions.

Not long after the tax was enacted, erroneous and misleading documents went viral on the Internet and created a great deal of misunderstanding and made the tax into something far more draconian than the actual provisions. The new tax does NOT eliminate the benefits of the $250,000/$500,000 exclusion on the sale of a principal residence.

Thus, ONLY that portion of a gain above those thresholds is included in AGI and could be subject to the tax. REALTORS should familiarize themselves with the tax, but should not advise their clients about the application of the tax. The amount of tax will vary from individual to individual because the elements that comprise AGI differ from taxpayer to taxpayer.

Each household's situation will be different. Consult your tax advisor for complete information about how this legislation could impact you, and download a good reference guide here: 3.8% Tax Scenarios.pdf.