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The 1% bets on the fiscal cliff

November 19, 2012: 4:18 PM ET

The threatening tax increase is leading to a rocky market, and an opportunity for the government.

fiscal-cliff

What the rich see: Trouble ahead.

FORTUNE -- Here's another reason the rich are different than the rest of us: They can't do math. Or maybe they just don't bother.

Apparently rich folk are betting that the fiscal cliff, the mix of tax increases and spending cuts that are set to kick in January 1, is going to happen. They are doing so by selling everything not tied down in a tax-free trust or in an offshore account in a bid to avoid the looming possibility that they may have to pay higher taxes if they sell after December 31.

George Lucas' recent sale of his movie studio and Star Wars rights to Disney (DIS) was interpreted in part as a move to avoid the fiscal cliff tax hike. And now casino king Steve Wynn looks to be cashing out whatever he can via a special one-time dividend to shareholders, of which Wynn is one of the biggest, of $750 million. Among the other investments the wealthy are selling to avoid paying more taxes: Apple (AAPL) stock, which is down $150 since the end of September, and dividend-paying stocks.

MORE: The fiscal cliff may be over hyped

Is this a good move? First you have to believe the fiscal cliff is coming, and won't be put off by some kind of deal. Or at least that the deal that we get will still result in higher taxes on dividend income and capital gains -- up from their current 15% to over 20% and nearly 40%, respectively.

I'm not sure what odds to put on that outcome. No one wants a recession, and both Obama and the Republicans look interested in making a deal. But Obama clearly wants taxes on the wealthy to go up. The question is how that gets done. The low capital gains rate is the main way the 1% gets its effective tax rate well below the stated 35%. So you expect the rich and the Republicans to guard that tax break even more than the regular income tax rate, an increase of which would probably have more symbolism and come as more of a political win for Obama. That leads me to believe an increase in income tax rates is where we are headed. So let's put the odds of an investment tax increase at 50%.

On top of that, if you are selling now, you have to assume that taking advantage of the lower taxes will get you more than if you were to hold onto the investment and sell later. In something like the shares of Apple, that may be an easy call. You can sell now, lock in your capital gains and then immediately buy back in.

But if you are selling dividend stocks and moving your money elsewhere, then you have to believe that elsewhere is a better bet. And as CNNMoney's Ben Rooney points out, with Treasury bonds paying less than 1.6%, you are still better off putting your money in, say, Merck (MRK) yielding nearly 4%, even with the higher taxes if what you are looking for is investment income.

MORE: Why Obama's win may boost housing

And if you are Wynn or Lucas selling out or taking huge chunks of capital out of your business, that's very hard to undo. Right now, equity values are still historically cheap. What's more, all the data suggests that the economy is recovering. The stock market is likely to follow. So it doesn't seem reasonable to me to think that selling out at something that is closer to a bottom than a top is a good deal in order to avoid 5 percentage points or more in taxes.

What might be happening, then, is that the rich are just throwing their hands up and saying it's easier to sell, without really doing the math at all.

But we know this much is true: If we do go over the cliff, we are probably headed for a recession. That will likely send stocks down. It makes sense to sell ahead of that. So at least some of the selling probably has nothing to do with tax rates, and all to do with prudent portfolio hedging.

MORE: A deal that may save the Twinkie

Here's the good news: Even if the wealthy are selling now to avoid a bigger tax hit, the government is still going to collect more taxes in 2012 than it normally would have from the wealthy. Wynn and his shareholders' tax bill will collectively be $112 million to the government this year. And that's money the government will get in the next few months. It might have been more if Wynn had paid out the dividend next year, or the year after, but then the government would have had to wait to get the money. Without the tax prodding, Wynn may have never made the payment.

But the biggest takeaway from the pre-fiscal-cliff selling could be this: Higher taxes actually means higher tax revenue for the government, and lower deficits. Imagine that.

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About This Author
Stephen Gandel
Stephen Gandel

Stephen Gandel has covered Wall Street and investing for over 15 years. He joins Fortune from sister publication TIME, where he was a senior business writer and lead blogger for The Curious Capitalist. He has also held positions at Money and Crain's New York Business. Stephen is a four-time winner of the Henry R. Luce Award. His work has also been recognized by the National Association of Real Estate Editors, the New York State Society of CPA and the Association of Area Business Publications. He is a graduate of Washington University, and lives in Brooklyn with his wife and two children.

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