I took a brief look at this last night and have to read more about how the mechanism works, associated risks, etc.
1. One man's tax dodge is another man's smart investing. In theory, ETFs don't have an advantage over mutual funds - the statute that makes cap
gains disappear in a puff of smoke (via in-kind distributions) originally applied to corporations as well as mutual funds. Decades ago it was rewritten, maintaining the break for mutual funds while excluding corporations from this benefit.
This all happened before ETFs existed. ETFs benefit because they just happen to be a form of mutual fund. In practice, ETFs have the advantage because they redeem shares in-kind, while OEFs rarely do so.
That said, my personal feeling is that this dodge "provides an unfair tax subsidy for ETFs and encourages the transfer of
capital from other kinds of investment vehicle to ETFs." This has got little to do with Washington scrounging up extra dollars - a fix could be revenue neutral. IMHO it's a matter of providing a level playing field.
Jeffrey M Colon,
The Great ETF Tax Swindle: The Taxation of In-Kind Redemptions, Penn State Law Review (2017)
There are lots of loopholes begging for attention, such as carried interest. And one that seems to curry favor here - unrestricted Roth conversions - a way of getting around income restrictions intended to limit tax benefits that higher earners receive. As the saying goes, it all depends on
whose ox is being gored.
2. NYC is unusual in that it has both a high tax rate (combined NYS + NYC) and that rates go up pretty fast with income. This combination makes it quite possible for one to owe more taxes if the income is treated as cap
gains (state/local taxable) than if it is treated as Treasury interest (ordinary tax, but only at federal level).
For example, in 2023 a couple with taxable income of $90K would pay 22% on ordinary income and 15% on cap
gains. That 7% savings by treating the Treasury interest as cap
gains would be more than offset by an added
NYS tax of 5.5% plus a
NYC tax of 3.876%.
Now this assumes that the taxpayer can't deduct the NY taxes due to SALT limits on deductions. That may change in 2026. In this particular example, even with a SALT deduction (worth 22% x 9.376% or about 2.06%), one would still pay more in net state and local taxes (7.3%) than one would save in fed taxes (7%). But it is close and one can easily conceive of other brackets where deductibility of SALT would make a difference.
In California, look at a couple with taxable income of $110K. As with the $90K NY couple, they'd be paying 22% fed tax on ordinary income and 15% on cap
gains - a 7% difference. At the state level, they'd be paying 0% on Treasury interest but 8% on cap
gains. Same problem.
This transmutation of Treasury interest into cap
gains works very well for high earners - where the cap
gains rate (even at 20%) is well below the fed rates of 35% or 37%. Of course it also works well for the hoi polloi in states with low or no local income taxes.