The Marvelous Multimillionaires’ Tax Loss Machine

 

The actual components will be fancier than shown above, but you can bet tax practitioners are hard at work on mechanisms to offset tax on substantial capital gains. Early descriptions of president Biden't tax plans include a top income tax rate of over 40 percent, and that rate also would apply to capital gain realized by taxpayers who are income millionaires. Also vulnerable, nonmillionaires who realize once-in-a-lifetime gains that push their income into seven figures. If stepped-up basis is altered so that gains over $l million are taxed at death, inheritances would be diminished by what amounts to a junior-varsity estate tax.

For estates of the genuinely rich, the Tax Foundation estimates  the tax on gains plus the usual federal estate tax would produce a combined tax rate of 61%. The usual reliable sources think such a punishing blow is unlikely to become reality.

Meanwhile, wealth holders seek defensive measures. The Marvelous Multimillionaires Tax Loss Machine should help a lot. A Wharton study estimates the IRS  could receive 90% less revenue than expected from the proposed tax increases.

The $60,000 Estate Tax Exemption Lives On

You thought the punitive $60,000 federal estate tax exemption vanished back in the 1970s? Not entirely. It lives on for foreigners who move assets to the perceived safety of the U.S. but are not domiciled here.

Unless, of course, they hire an ingenious U.S. tax lawyer.

Tax Wealth by Taxing the “Squatters”?

When it comes to taxing wealth, Eugene Steuerle believes we should pay more attention to three issues.

1. A stockholder’s investment income is already taxed twice, at the corporate and personal levels. Current proposals for an annual wealth tax would result in what amounts to triple taxation.

2. If most returns on investment wealth receive a stepped-up basis at the owner’s death, why are inherited investment gains taxed when the heir withdraws them from an IRA?

3. The best time to tax the returns from wealth is at the owner’s death, as productive New Money passes to heirs and becomes less productive Old Money.

To bolster his last point, Steuerle quotes Winston Churchill:

 “The process of creation of new wealth is beneficial to the whole community. The process of squatting on old wealth though valuable is a far less lively agent.”

Is the Estate Tax a Good Wealth Redistributer?

The concentration of wealth among the very few is a problem. In a WSJ op-ed ten years ago, Art Laffer argued that estate taxation is not the solution:

Advocates of the estate tax argue that such a tax will reduce the concentrations of wealth in a few families, but there is little evidence to suggest that the estate tax has much, if any, impact on the distribution of wealth. To see the silliness of using the estate tax as a tool to redistribute wealth, realize that those who die and leave estates would be taxed just as much if they bequeathed their money to poor people as they would if they left their money to rich people. If the objective were to redistribute, surely, an inheritance tax (a tax on the recipients) would make far more sense than an estate tax.

Should Brits Kill Their Death Tax?

The Resolution Foundation believes the UK inheritance tax should be abolished. Potential heirs should not celebrate. The foundation wants the inheritance tax replaced with a Lifetime Receipts Tax. This levy, to be paid by the receipients of gifts, would be imposed cumulatively on gifts over £3000 at rates of 20 or 30 percent. The first £125,000 a Brit received would be exempt.

The present inheritance tax has a 40 percent rate.

HNWIs Will Have Seven Years to Die Prudently

The rush to pass the tax bill sows confusion. David Leonhardt in the NY Times, for instance, assumes the doubling of the federal estate tax exemption, like the lowered income tax rate for corporations, is intended to be permanent.

Not so, according to this Times report and other sources. Along with the personal income tax changes, the higher estate exemption will expire after 2025.

Grey-haired High Net Worth Individuals may wish to plan their demise accordingly.

Inheritance REDUCES Inequality?

As great wealth spreads from generation to generation, it provides more and more people with smaller and smaller inheritances.  Maybe, The Times (London) suggests, inheritance actually reduces inequality.  Not likely, but there's some interesting Swedish research.

Death Taxes on Life Support

Estates of the newly deceased have long been a tax target. Augustus, the first Roman emperor, imposed the vicesima hereditatium or "20th of inheritance" in 6 AD. 

Have death taxes finally run their course?

Could be, according to The Economist. Australia, Canada, Russia, India, Norway and Sweden are among the countries that have abolished their death duties.

Although the US Congress seems unlikely to abolish the federal estate tax this year, the exemption might be raised high enough to eliminate tax for families that are not at least entry-level rich.

This Year 50 to 80 Family Farms or Businesses Face Estate Tax

Most owners of family farms or businesses needn't worry about federal estate tax. Most, but not all.

The Center on Budget and Policy Priorities estimates that 50 estates consisting mostly of a farm or business will pay the death tax this year. Data from the Tax Policy Center suggest the number is 80.

Repeal of the estate tax would make life easier for those 50 to 80 families. But repeal would also allow more than 5,000 other wealthy families to retain their diversified wealth tax free.

At the moment, chances of repeal have dimmed. The House version of the tax bill leaves the federal estate tax in place for seven years, albeit with a doubled exemption. The Senate version deletes the delayed repeal.

At Last! Family Farms Worth Taxing

Opponents of the federal estate tax habitually warn that it imperils family farms. But they've hemmed and hawed when asked for examples. Now some family-owned farms actually may be large enough for death tax. Two thirds of our national agricultural output, the WSJ($) reports, comes from super-sized farms with annual sales of $l million or more.

Example described in the article: a Kansas farm that stretches for over 30 miles and encompasses more than 30,000 acres.

Tax Legislation, Anyone?

Last spring the Trump administration came up with a vague, one-page proposal for revising the Internal Revenue Code. After months of reportedly serious effort, a six-man task force has expanded  the proposal to a vague, nine-page plan.

But "it's not really a plan," as Catherine Rampell points out in The Washington Post:

At best it’s an outline, offering barely more detail than the bullet points the Trump administration released in April. It doesn’t even specify the thresholds for the individual income-tax rates it proposes. It also doesn’t identify a single individual tax preference it would kill, despite claiming to simplify the code and close lots of “loopholes.” Even the state and local tax deduction, which administration officials have talked about eliminating, isn’t explicitly mentioned.

While we wait for Congressional Republicans to come up with an actual tax bill, there's plenty to wonder and worry about. How can abuse of the proposed 25% tax rate on income "passed through" businesses such as partnerships  be prevented? What if repeal of the estate tax (which affects almost nobody) exposes millions of Americans to capital gains tax on inherited assets?

Death Should Not Be a Taxable Event

“The basic argument against the estate tax is moral. It taxes virtue - living frugally and accumulating wealth. It discourages saving and asset accumulation and encourages wasteful spending.”

Milton Friedman's 2001 open letter urging the abolishment of the federal estate tax was signed by 276 of his fellow economists. Now, eleven years after Friedman's death, the letter has been revived, signed this time by more than seven hundred economists, including four Nobel Prize winners. 

To whom it may concern: 

Spend your money on riotous living - no tax; leave your money to your children - the tax collector gets paid first. That is the message sent by the estate tax. It is a bad message and the estate tax is a bad tax.

The basic argument against the estate tax is moral. It taxes virtue - living frugally and accumulating wealth. It discourages saving and asset accumulation and encourages wasteful spending. It wastes the talent of able people, both those engaged in enforcing the tax and the probably even greater number engaged in devising arrangements to escape the tax. 

The income used to accumulate the assets left at death was taxed when it was received; the earnings on the assets were taxed year after year; so, the estate tax is a second or third layer of taxation on the same assets. 

The tax raises little direct revenue- partly because the estate planners have been so successful in devising ways to escape the tax. Costs of collection and compliance are high, perhaps of the same order as direct tax receipts. The encouragement of spending reduces national wealth and thereby the flow of aggregate taxable income. These indirect effects mean that eliminating the tax is likely to increase rather than decrease the net revenue yield to the federal government. 

The estate tax is justified as a means of reducing the concentration of wealth. However, the truly wealthy and their estate planners avoid the tax. The low yield of the tax is a testament to the ineffectiveness of the tax as a force for reshaping the distribution of wealth. 

The primary defense made for the estate tax is that it encourages charity. If so, there are better and less costly ways to encourage charity. Eliminating the estate tax will lead to higher economic growth, which is the most important variable in determining the level of charitable giving. 

Death should not be a taxable event. The estate tax should be repealed. 

Trumping Death and Taxes

President Trump, in his WSJ interview:

When George Steinbrenner died, like with the estate taxes, the estate paid nothing. And if he would have died like two weeks later, they would have paid 50 percent of the Yankees. That would have been the end of the team, right?

Nope. Steinbrenner died on July 13, 2010. Had he died on July 27 (or even December 27) his estate would have escaped federal estate tax.

And even if Steinbrenner had died in 2011, when the estate tax reappeared, most likely the Yankees would still be around to trail the Red Sox.

Fact-checkers tend to label Trump talk fibbing. He prefers hyperbole.

Could the Ideal Estate Tax Rate be 100%?

If the Republicans ever agree on a tax bill (dream on!) the federal estate tax may die for longer than it did in 2010. But the urge to tax inherited wealth never dies – especially, it seems, in the U.K.

Excerpts from a Guardian op-ed, Why not fund the welfare state with a 100% inheritance tax?

Yes, the desire to pass on property to your descendants may be natural – but why should we be slaves to our biology? Social progress has frequently depended on our ability to transcend individualistic urges and work together for the common good.

***

Cultural norms teach us that the inheritance of private property is the default and any expropriation of this wealth must be justified. It should be the other way round.

***

A 100% estate tax (perhaps with a small allowance for objects of sentimental value) isn’t a policy we can expect to see in a party manifesto any time soon. It’s well outside the current spectrum of mainstream political opinion. Questioning the status quo is always going to be a somewhat uncomfortable process, though, and all kinds of major social changes seemed impossible until suddenly they weren’t.

The crack about "slaves to our biology" is interesting. Would adopted children still get inheritances?

Confiscation of wealth at death would promote every possible method of lifetime transfer. With lifespans lengthening, that might not be such a bad idea. Why should someone age 70 still be waiting for his parents to part with their worldly goods?

When Bombers Trumped Inheritance

From a  Bessemer Trust lawyer's notes on the recent Heckerling Institute on Estate Planning.

Estate tax repeal has been considered by various administrations. One staffer from 1986 has stated that negotiation of the momentous 1986 Tax Reform Act came down to one last item. The legislative staffers told President Reagan that he could get rid of the estate tax but he would have to give up the B-2 bomber. President Reagan replied that he would rather keep the B-2 bomber.

One Hundred Years Old and Still Raising a Fuss

Next to establishing the national park system, the federal estate tax was our government's best idea a century ago. Or was it? According to the Tax Foundation, the estate tax may shave almost one percentage point off GNP over the next decade. 

Harvard's N. Gregory Mankiw asserts the estate tax is unfair:

Consider the story of two couples. Both start family businesses when they are young. They work hard, and their businesses prosper beyond anything they expected. When they reach retirement age, both couples sell their businesses. After paying taxes on the sale, they are each left with a sizable nest egg of, say, $20 million, which they plan to enjoy during their golden years. 

Then the stories diverge. One couple, whom I’ll call the Frugals, live modestly. Mr. and Mrs. Frugal don’t scrimp, but they watch their spending. They recognize how lucky they have been, and they want to share their success with their children, grandchildren, nephews and nieces. 

The other couple, whom I’ll call the Profligates, have a different view of their wealth. They earned it, and they want to enjoy every penny of it themselves. Mr. and Mrs. Profligate eat at top restaurants, drink rare wines, drive flashy cars and maintain several homes. They spend their time sailing the Caribbean in their opulent yacht and flying their private jet from one luxury resort to the next. 

So here’s the question: How should the tax burdens of the two couples compare? Under an income tax, the couples would pay the same, because they earned the same income. Under a consumption tax, Mr. and Mrs. Profligate would pay more because of their lavish living (though the Frugals’ descendants would also pay when they spend their inheritance). But under our current system, which combines an income tax and an estate tax, the Frugal family has the higher tax burden. To me, this does not seem right.

Almost all commenters on Mankiw's column were pro estate tax. Some considered frugality un-American. 

Teddy Roosevelt, godfather of the national parks (and a Republican), advocated a stiff, highly progressive estate tax.  The national parks were a really good idea. The estate tax? That issue is far from settled.

Below, Teddy on a visit to Yellowstone. More early national park photos here.

A Meltdown for Family Limited Partnerships?

The family limited partnership, Wealth Management declared back in 2000, is the ice cream sundae of estate planning strategies.

By using a partnership to pass portions of a family business, real property or even a portfolio of marketable securities to family members, wealthy donors can generate substantial valuation discounts for gift or estate tax purposes.

Could the ice cream social be nearing an end? That's the threat posed by newly proposed regulations. Some observers think the regs will be finalized before we have a new president in the White House.

Last weekend Paul Sullivan in The New York Times and Laura Saunders in The Wall Street Journal offered briefings on the potential meltdown. Both columns may prove helpful to wealth managers as they urge wealthy clients to enjoy their sundaes before the feds turn up the heat.

Easing the British Death Tax

After World War II the stately homes of England (think Downton Abbey) took a heavy hit from harsh death taxes. Many were dismantled, given to the government or converted into tourist attractions.

By the harsh standards of fifty years ago, today's UK inheritance tax is fairly tepid. By our American standards, it's still oppressive.  We can leave well over $5 million tax free. Brits are limited, at current exchange rate, to about $460,000.

The UK tax picture lightens a little next year, with the addition of a "family home allowance." With two inheritance-tax exemptions plus the new allowance, married couples will be able to leave about $1.4 million tax free.

Another Tax Skirmish for Campbell's Soup Heirs

John T. Dorrance,  inventor of Campbell's condensed soup, died in 1930. As every student of estate planning learns, Dorrance had maintained a home in New Jersey and another in a classier Pennsylvania neighborhood. At his death, both New Jersey and Pennsylvania claimed him as a resident and levied tax. The U.S. Supreme Court declined to intervene.

Vintage Campbell's Soup ad

In 1995 a grandson, John "Ippy" Dorrance, made news by renouncing his citizenship for tax reasons and moving to Ireland before selling a large chunk of Campbell's stock.

Another grandson sought to  tame the estate-tax dragon with life insurance. In 1966 Bennett and Jacquelyn Dorrance bought policies from five companies with a face value of almost $88 million.

At that time the insurance companies were "mutuals." Policyholders had membership rights. When the insurers became stock companies, the Dorrances and other policyholders received shares.

When the Dorrances later sold their shares, how should they have calculated their capital gain? Were the entire sales proceeds  capital gain?  Or did they have a "cost basis," even though they had merely paid premiums, not purchased stock?

Reversing a District Court decision, the Ninth Circuit U.S. Court of Appeals says the Dorrances' cost basis is zero.

Video clip of Appeals Court panel here.

Divorce Settlement Saves Estate Tax, But . . .

1978: Jimmy Carter was in the White House and an Illinois businessman seems to have been in love, although not with his wife. He divorced her, agreeing in a settlement agreement to leave their three daughters and one son half his estate in equal shares when he died.

He remarried the following year. By the time he made a new will and created a trust he must have forgotten the divorce agreement, for he left the children less than 34% of his estate.

The businessman, Warren Billhartz, died in 2006. The following year his widow must have staged a coup, convincing her stepchildren to waive their rights under the divorce agreement. A federal appeals court summarizes:

According to the Marital Separation Agreement, the four children were to receive 50% of Billhartz’s “estate” (an undefined term), divided evenly. In the end, though, they cumulatively ended up with less than 34% of Billhartz’s assets, divided unevenly. None theless, after receiving notice of this discrepancy, all four children executed an agreement (the “2007 Waiver Agreement”), in which they accepted the lesser shares set out for them in the trust and waived all potential claims they may have been able to assert against either the Estate or the trust. The payments to the children totaled approximately $20 million; each daughter received about $3.5 million, while Ward received $9.5 million.

 How do federal courts enter the story? Even though the divorce agreement was not honored, it was used to claim that $3.5 million per child was a deductible payment of indebtedness rather than an estate-taxable transfer. The IRS objected but ultimately agreed to allow an estate-tax deduction for slightly more than half the payments.

Moneywise, that was good news. Familywise, it was explosive. The children finally realized what they had signed away when they agreed to accept no more than their father had left them by trust.

The daughters and the son went to court seeking their full shares of the estate, and the daughters won an additional $1.45 million each. But that meant the agreement with the IRS no longer looked so good. The children wanted it revised to allow a deduction for at least part of the additional payments. The Tax Court said no, and now the Appeals Court agrees.

Trusts and Estates saves us the trouble of spelling out the details of the story here.

Question for Jim Gust: Did Billhartz hit upon a ploy other wealthy individuals could use to do some estate-tax planning when they shed a spouse?