The Estate Tax Fundamentals of Celebrity and Control

Yale Law Journal Pocket Part, Vol. 118, p. 50, 2008

Hofstra Univ. Legal Studies Research Paper No. 09-15

6 Pages Posted: 2 Oct 2008  

Mitchell Gans

Hofstra University - School of Law

Bridget J. Crawford

Pace University School of Law

Jonathan G. Blattmachr

Milbank, Tweed, Hadley & McCloy LLP

Abstract

We previously suggested that post-death publicity rights could be excluded from the decedent's estate for tax purposes if state legislation precluded the decedent from exercising post-death control. In other words, if state legislation designated who would hold these rights after the decedent's death, the value of these rights should not be subject to estate tax. Professor Joshua Tate, in his response to our essay, argues that under current law, estate tax inclusion would be required regardless of the decedent's ability to exercise control. So, for example, in Professor Tate's analysis, the estate tax would apply even if the legislation vested those rights in the decedent's oldest daughter and even if the decedent had no right to alter this outcome. Professor Tate's analysis misconstrues fundamental estate tax principles and misunderstands the precedents on which he relies. Post-death control is an essential prerequisite for estate tax inclusion under Section 2033. In its absence, as a general rule, the section cannot apply. In suggesting that publicity rights are somehow not subject to this requirement, Professor Tate misreads the significance of case law and ignores well engrained principles of tax law.

Keywords: estate, estate tax, tax, postmortem, publicity, celebrity, Monroe

JEL Classification: K34, K11

Suggested Citation

Gans, Mitchell and Crawford, Bridget J. and Blattmachr, Jonathan G., The Estate Tax Fundamentals of Celebrity and Control. Yale Law Journal Pocket Part, Vol. 118, p. 50, 2008; Hofstra Univ. Legal Studies Research Paper No. 09-15. Available at SSRN: https://ssrn.com/abstract=1275997

Mitchell M. Gans

Hofstra University - School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States
(516) 463-5876 (Phone)

Bridget J. Crawford (Contact Author)

Pace University School of Law ( email )

78 North Broadway
White Plains, NY 10603
United States

Jonathan G. Blattmachr

Milbank, Tweed, Hadley & McCloy LLP ( email )

1 Chase Manhattan Plaza
New York, NY 10005
United States
212-530-5066 (Phone)

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