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Time to Avoid 2013 Capital Gains Hike Is Now

NEW YORK ( TheStreet) -- With higher long term capital gains tax rates on the horizon for 2013, now is the time for investors to assess what if any action they should take.

Current tax law has two long term capital gain (LTCG) rates. The first rate is 0% for those in the 10% tax bracket. The second rate of 15% is for taxpayers in tax brackets greater than 10%. Starting January of next year, the LTCG rate rises to 20% for everyone.

For high earning taxpayers the LTCG rate could be as high as 23.8% due to new 2013 high earner surtaxes. So does that mean investors should rush out and accelerate all their LTCGs into 2012? The answer is a very resounding no. Let's look at a few situations and identify when it does or doesn't make sense to accelerate LTCGs.

The no brainer situation in terms of accelerating LTCGs is for those in the 10% tax bracket. Why is this a no brainer? Simply because at 0% your gain is tax free! Those in the 10% bracket still have some homework to do. They need to determine how much LTCG they can recognize before pushing themselves out of the 10% bracket. For example an individual collecting only social security who takes a large LTCG can increase the taxability of their social security benefits pushing them into a higher tax bracket.

When does it clearly not make sense to accelerate LTCGs? One example is a terminally ill individual who owns a large portfolio with large embedded LTCGs. Taking the LTCGs before death will result in a large tax bill. If the individual passes away owning the portfolio the securities are stepped up to their fair market value at the individual's date of death. The LTCG is effectively eliminated at death. So accelerating LTCGs does not make sense in this situation.

Another example of when accelerating does not make sense is an investor with harvested tax losses. Why not? Using the tax losses now zeros out LTCGs at a lower rate than in the future. Very simply their carried over tax losses will be more valuable in 2013 and beyond when the LTCG rate is higher.

Finally, now is the time for investors to assess whether it makes sense to accelerate LTCGs in 2012. However, each investor needs to assess their unique situation to determine whether accelerating LTCGs makes sense. The best approach is to run the numbers!

--By Michael Maye

Maye is the founder and president of MJM Financial Advisors (, a registered investment advisory firm in Berkeley Heights, N.J. He is a member of the National Association of Personal Financial Advisors (NAPFA) and has been a speaker covering tax topics at NAPFA's national and regional conferences. Maye has also been a frequent contributor to the Star Ledger of New Jersey's "Biz Brain" and "Get With the Plan" articles. In addition to NAPFA, he is a member of Financial Planning Association, American Institute of Certified Public Accountants, New Jersey State Society of CPAs and the Estate Planning Council of Northern New Jersey.

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