Federal Estate Tax Awakens From Lengthy Coma

Mr. Federal Estate Tax, who had slipped into a coma on New Years’ Day 2010, came out of his year-long stupor on December 17, 2010, much to the surprise of his friends and adversaries. “The reports of my death have been greatly exaggerated,” he declared in a prepared statement released shortly after his awakening. His medical team cautioned that he would remain in a weakened state for a considerable period of time.

His many admirers hailed his recovery and predicted he would regain his old vigor by the end of 2012. His many detractors expressed confidence that he would never again have the strength to strike terror into the hearts of American taxpayers.

His twin brother Mr. Income Tax, and his much younger sibling Mr. Gift Tax, left their brother’s bedside without issuing any statements. They seemed relieved that their year long vigil had ended. Members of the Tax Family have long been viewed as immortal. Many speculated that if Federal Estate Tax could die, the lives of other family members could also be at risk.

So much for my attempt at Explanation-through-Anthropomorphism. Here’s a more straightforward description of the estate tax and gift tax legislation that passed in mid-December.

Background. Prior to Election Day, Democrats who wanted to raise income tax rates and reinstate the estate tax seemed to hold a winning hand. If Congress did nothing, the Bush Tax Cuts would expire on the last day of 2010, and the tax laws that were in effect on January 1, 2001 would be reinstated automatically. In particular, the federal estate tax, which had been repealed for calendar year 2010, would be back with a maximum rate of 55% and a per person exemption of only $1 million.

But elections matter. The Republicans captured the House of Representatives on Election Day, and within 24 hours, President Obama’s key domestic advisor signaled his willingness to accept a temporary across-the-board extension of the Bush Tax Cuts. On December 17, the President did just that, signing into law the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010. Paul Gigot, editor of the Wall Street Journal, was one of many conservatives to engage in a moment of triumphalism, crowing how he loved the symbolism of two Democratic presidents endorsing the heretofore hated Bush Tax Cuts.

Key Changes in Estate Tax and Gift Tax Laws. The Temporary Estate Tax Relief provisions found in Title III are of the most interest to me, as an estate planning and estate administration attorney. Here are the most significant changes in the estate and gift tax laws.

1. Federal Estate Tax Reinstated. The federal estate tax has been reinstated. The reinstatement is retroactive to January 1, 2010.

2. Per Person Exemption Increased. The per person exemption from the estate tax is raised to $5.0 million. It was $3.5 million per person in 2009. It was 1.0 million in 2001.

3. Estate Tax Rates. The maximum tax rate on an estate in excess of the exemption is 35%. In 2009, the maximum estate tax rate was 45%. It was 55% in 2001.

4. Stepped Up Basis Rules Reinstated. Carryover basis is repealed for 2010. Click here for an explanation of these rules. Instead, the assets in the estates of decedents who died in 2010 are entitled to a stepped-up tax basis under the rules in effect since the early 1980′s.

5. Executor Can Elect Estate Tax Repeal for Those Dying in 2010. For the estate of decedents who died in 2010, an executor may elect out of the estate tax and instead be governed by the rules that had been in effect throughout 2010, prior to December 17, 2010. In those cases, there will be no estate tax. However, those estates will not be entitled to a stepped-up tax basis for appreciated assets, but instead will be governed by the rules of carryover basis. So, the estates of wealthy men and women who died in 2010 will forever escape estate tax.

6. Changes in Gift Tax Begin in 2011. The gift tax rules for 2010 are not changed. The gift tax exemption remains at $1 million and the gift tax rates on gifts not shielded by the exemption remains at 35%. However, the gift tax rules change dramatically in 2011. The gift tax exemption will increased to $5 million per person. Thus for the first time since 2004, the estate tax exemption and the gift tax exemption will be “unified.” Beginning in 2011, a person can use up all or any portion of his $5 million exemption during his lifetime or at his death.

7. Portability. The new law allows for the “portability” of the unified credit between spouses. Starting in 2011, a widow or widower can add the unused estate tax exemption of his or her deceased spouse to his or her own exemption. I plan to write more on portability in a future post, but my initial thought is that most married couples will still want to create by-pass trusts in their estate plans to preserve the exemption of the first spouse to die. The portability option should only be used as a backstop for spouses who did not do proper planning.

8. These New Rules Are Temporary. One final but important point: all these provisions will expire on December 31, 2012 unless the current Congress passes and the President signs legislation to extend these provisions or make them permanent. And if nothing is done, the tax laws that were in effect on January 1, 2001, would be reinstated automatically. While it would be a travesty for the federal government to allow that to happen, virtually everything that has happened with the estate tax laws in the past few years has caught me by surprise.

So strap yourself in. The next two years promise to be another wild ride.

Will Estate Tax Repeal Survive?

Will the repeal of the estate tax be a one-year-only phenomenon? Or will it be extended into 2011? Nobody knows – yet. But there is one thing we do know. Elections Matter.

Less than 48 hours after Americans went to the polls on November 2, David Axelrod indicated that the Obama administration would accept an across-the-board temporary extension of the Bush Tax Cuts, including those for the wealthiest taxpayers.

While Mr. Axelrod made no specific mention of estate tax repeal, there is more to the Bush Tax Cuts than just income tax rate reductions. They also (i) cut the capital gains tax rates, (ii) cut the tax rates on corporate dividends paid out to shareholders and (iii) increased the amount of a decedent’s estate that was exempt from the estate tax, until this year when the estate tax was repealed altogether for decedent’s dying in 2010.

So, if the Obama Administration will not oppose a temporary one or two year extension of the Bush Tax Cuts, might estate tax repeal be included as part of the extension?

I have been of the firm opinion that estate tax repeal would be a one-year-only phenomenon. But now I am not so sure. I never expected the Obama Administration would agree to extend the Bush income tax cuts for high income taxpayers. But if it is willing to give up on that issue unilaterally, it is not unthinkable that estate tax repeal might be part of a temporary extension.

Well, at least it is less unthinkable than it was the day before the elections.

Almost every prediction I have made about what was likely to happen with the federal estate tax has been wrong. Until the very last week of December 2009, I was convinced the Congress and the President would enact some legislative fix to prevent a one-year-only repeal. So I am wary of predicting what will happen to this feature of the Bush Tax Cuts.

But right now, I think extending estate tax repeal into 2011 is “in play.” Stay tuned. We should know by the end of January.

Those Expiring Bush Tax Cuts

What are “the Bush tax cuts” ?

In 2001, the Congress passed and the President signed into law a wide range of tax provisions affecting individual income tax rates, tax rates on shareholder dividends, capital gains tax rates, and the per-person exemption from the federal estate tax. These tax provisions have come to be known as “the Bush tax cuts.”

What did the Bush tax cuts do to federal income tax rates?

In 2001, the maximum federal income tax rate was 39.6 percent. Under the Bush tax cuts, the maximum rate was reduced to 35 percent.

What did the Bush tax cuts do to the tax on shareholder dividends?

In 2001, the dividends were taxed as part of a person’s income and could have been taxed at a rate as high as 39.6 percent. Under the Bush tax cuts, the maximum rate on shareholder dividends was reduced to 15 percent.

What did the Bush tax cuts do to the federal capital gains tax?

In 2001, the maximum federal income tax rate on the sale of capital assets, such as stock market investments, was 20 percent. Under the Bush tax cuts, the maximum rate was reduced to 15 percent.

What did the Bush tax cuts do to the federal estate tax?

In 2001, each person had a $1.0 million exemption from the federal estate tax, which could be used during life or at death. A married couple who planned properly could pass $2.0 million to the next generation free of estate tax. Once the tax applied to a decedent’s estate, it began at a rate of about 37 percent and went as high as 55 percent for very large estates. Under the Bush tax cuts, the per-person exemption rose from $1.0 million to $1.5 million (2004), then to 2.0 million (2006), then to 3.5 million (2009). In 2010, the estate tax has been completely eliminated for persons dying in this calendar year.

Why do the Bush tax cuts automatically expire on January 1, 2011 ?

It has to do with the rules of the Senate, particularly the Byrd Rule. Budget legislation cannot be fillibustered during the “reconciliation” process, but if a tax cut is proposed during the reconciliation process, it needs at least 60 votes to be a permanent tax cut. Otherwise, it must sunset after 10 years. The Bush tax cuts passed with less than 60 votes during the reconciliation process in 2001. Thus, on January 1, 2011, the tax laws as they existed on 2001 will automatically become, once again, the law of the land.

Will there really be only a $1.0 million per-person estate tax exemption in 2011 and in future years?

Unless Congress passes and the President signs a new law, the $1.0 million exemption will return on January 1, 2011. I think it is very unlikely this President and this Congress (or the next Congress) will be able to agree on any changes.