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Taking ‘Build Back Better’ to the farm gate

Estate Plan Edge: Here’s how the administration’s tax proposals might affect agriculture — both directly and indirectly.

Curt Ferguson

November 8, 2021

4 Min Read

Just before President Joe Biden flew off to Europe on Oct. 28, he met with congressional leaders, then released a framework for his pared-down “Build Back Better” legislative proposal. The White House issued a summary, along with an actual draft of legislation.

At this point, there is not bipartisan support for the “Build Back Better” proposal. Worse for Biden, there is not consensus among Democrats in Congress. The reconciliation process allows for a majority approval rather than the historical 60-vote requirement in the Senate. With the Senate split 50-50, and the Democrats holding only a thin majority in the House, Biden needs all 50 Democratic senators and 99% of the Democratic House members to agree in order to move the legislation. As of this writing, he doesn’t have it.

The so-called progressive wing of the House Democrats says the proposal doesn’t do enough; they want more money allocated to social programs and climate change. Moderates say it goes too far because they don’t want to raise tax rates in the COVID-19-recovering economy, and they believe major government policy changes should have bipartisan support.

Very often, progressives can vote for the most liberal legislation imaginable and be reelected. But moderates are vulnerable to being voted out if they further expand the welfare state, fund questionable environmental projects and raise taxes on productive people. Frankly, it would not surprise me if we reach the end of the year and none of the president’s proposal has been enacted.

But as of this writing, the president’s proposals include few tax increases, none of which would directly affect the average farm family (although all tax increases affect the cost of goods and services, and each of us indirectly). Here’s a look:

Corporate minimum tax. C corporations with over $1 billion in profits would be subject to a corporate minimum tax of 15%. High levels of personal income would see an individual surtax: 5% on income over $10 million per year, and an additional 3% for income over $25 million.

Medicare loophole. There is also a proposal to close loopholes that allow some wealthy taxpayers to avoid paying the 3.8% Medicare tax on their earnings. Depending on implementation, it might affect farmers who operate subchapter S corporations, which can help control self-employment and Medicare taxes.

On the other hand, efforts to garner support of tax-increase-opposing moderates give us a lot to be thankful for. The proposal does not change individual tax rates, capital gains taxes or typical corporate tax rates. The capital gains tax point is important for 1031 “tax-free” exchanges, a common practice among farmers.

What about estates? The good news is, there are no estate tax changes in the proposal. It leaves stepped-up basis in effect. Also, there are no revisions in the complicated grantor trust tax rules, which means that if your estate exceeds your estate tax exemption ($4 million in Illinois), you can still use planning strategies to transfer significantly more than your exemption amount to your heirs free of tax.

Tax and spend?

So, how will they pay for the $1.75 trillion in spending? The surtax on incomes over $10 million sure isn’t going to do it, nor will capturing more of the 3.8% Medicare tax. The proposal aims to collect more from corporations that do business overseas. But those projections are not nearly enough.

The White House says 99% of regular workers pay the taxes they owe, but many wealthy taxpayers hide their income from the IRS. But remember: The typical wage earner never handles their taxes — they are withheld from their checks by the employer. The self-employed and small-business owners don’t have that luxury and have to navigate the maze of the tax code at their own expense.

It seems the president thinks you cheat as you try to comply. Solution? The proposal would spend $80 billion hiring enforcement agents, what the White House calls “transformation investments in the IRS.” The Congressional Budget Office estimates these enforcement efforts would bring in $200 billion in revenue.

With such fiscal insanity being seriously considered by our current rulers, I am reminded again of what President Calvin Coolidge said: “Nothing is easier than spending public money. It does not appear to belong to anybody. The temptation is over­whelming to bestow it on somebody.”

Ferguson, an attorney, owns The Estate Planning Center in Salem, Ill. Learn more at The opinions of this writer are not necessarily those of Farm Progress/Informa.

About the Author(s)

Curt Ferguson

Curt Ferguson is an attorney who owns The Estate Planning Center in Salem, Ill. Learn more at

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