Grown-Up Income Shifting: Yesterday’s Kiddie Tax Is Not Enough

36 Pages Posted: 7 Nov 2009 Last revised: 27 Jan 2012

Samuel D. Brunson

Loyola University Chicago School of Law

Date Written: November 4, 2009

Abstract

In 1986, concerned that wealthy parents were sheltering some of their income from taxes by giving some portion of their securities portfolios to their children, Congress enacted the “kiddie tax,” which taxes a child’s passive income at the child’s parents’ tax rate. By doing so, Congress intended to reduce tax-motivated income-shifting. Since its passage, however, there has been little serious consideration of whether the kiddie tax successfully prevents the targeted income-shifting.

This Article reexamines the kiddie tax and concludes that it is both over- and underbroad. The kiddie tax subjects all of a child’s passive income, not just income resulting from tax-motivated income-shifting, to her parents’ higher tax rates, which distorts children’s saving and investing decisions. At the same time, the kiddie tax does nothing to prevent the transfer of appreciated property to children, itself a significant means of income-shifting.

The Article concludes that, in order to more effectively prevent income-shifting while at the same time reducing its distortions on non-abusive decisions, the kiddie tax needs to grow up. A grown-up kiddie tax would apply only to income a child earned on assets received as a gift at her parents’ rate; all other income would be taxable to a child at her own rate. At the same time, the kiddie tax would be triggered based on when a child received the asset, not when she realized income. By replacing the current kiddie tax with the grown-up kiddie tax, the tax law will have better tools to police against income-shifting.

Keywords: income tax, kiddie tax, realization, income-shifting, economic unity, distortions, gifts, mark-to-market, efficiency, family, joint returns, savings, investment

JEL Classification: H24, K34

Suggested Citation

Brunson, Samuel D., Grown-Up Income Shifting: Yesterday’s Kiddie Tax Is Not Enough (November 4, 2009). Kansas Law Review, Vol. 59, No. 3, 2011; Loyola University Chicago School of Law, Public Law & Legal Theory Research Paper No. 2009-0017 . Available at SSRN: https://ssrn.com/abstract=1501316

Samuel D. Brunson (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States

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