Distracted from Distraction by Distraction: Reimagining Estate Tax Reform

Abstract

Recent legislation has left a gift and estate tax that will apply to far fewer than 1% of all decedents each year. This Article, prepared for a symposium on Tax Advice for the Second Obama Administration, argues that the estate tax has become largely irrelevant, except ironically as a spur to the creation and perpetuation of dynastic wealth via 'Dynasty Trusts.' The tax no longer meets any compelling policy rationale, such as raising revenue, 'backing up” the income tax, injecting progression into the tax system, or breaking up large concentrations of wealth. It is time to move on, and to meaningfully address the 800lb gorilla in the room – the problem of unrealized appreciation. The de facto demise of the death tax gives policymakers reason to reconsider the 'stepped-up basis' rule of IRC Section 1014 for assets acquired from a decedent. This rule allows those with financial capital to live tax-free and escape all taxation. Its rationale has been linked to the estate tax. Out of the ashes of the estate tax, then, a path for hope arises – lawmakers should consider a capital gains/realization-on-death rule, as Canada has, or a consistent carryover basis regime for all gratuitous transfers, whether on life or at death.