The future of the (U.S.) Estate Tax

In December 17, 2010 President Obama signed the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (TRA 2010) into law. With one swift stroke, he quashed the hopes of some who thought they could inherit mom’s estate without any estate tax.  Or did he?

What happened?

The Economic Growth and Tax Relief Reconciliation Act of 2001 gradually reduced the top tax rates and raised the federal estate tax exemption levels through 2009.  By January 1, 2010, the estate tax and the generation-skipping transfer taxes (GST) had ‘sunset’ for persons dying in 2010.  In other words, there was no federal estate tax in 2010. However, the statute also specified that, if no Congressional action occurred, those taxes would return to their 2001 level in 2011.

Late in 2009 the House of Representatives passed a bill that would make the 2009 estate tax levels permanent; that is a top estate tax rate of 45% with an exemption of $3.5 million.  That bill did not meet the Senate’s approval.

TRA 2010 is the result of nearly a year of negotiations. It harmonizes the federal estate tax, the gift tax and the GST for two years. They have the same numbers for 2011 and 2012: an exemption amount of $ 5,000,000 for all three taxes and a maximum rate of 35% for non-exempt amounts.

Moreover, TRA 2010 retroactively reinstates the federal estate tax for 2010 with a maximum rate of 35 % and an estate tax exemption amount of $5 million. For estates under $ 5 million, no federal estate tax is payable except if one opts for the ‘portability’ of a spouse’s unused exemption. Thus, starting in 2011, the part of the exemption amount that is not used upon the death of the first spouse to die can be carried over and used to increase the exemption of the surviving spouse.

Moreover, the modified carryover basis rules will come back.  The beneficiary of an asset from an estate will receive a step-up in basis equal to the value of the asset on the date of death.

For 2010, the news is not all bad, though.  For decedents who died in 2010, their estate can opt out of the estate tax, but in that case the beneficiaries will not be entitled to a full step–up in basis.  

Unlike the estate tax, the gift tax had not sunset; the top 2010 gift tax rate remained at  35 percent with an exclusion of $ 1,000,000. For subsequent years, the gift tax is maintained at 35 % but the gift tax exemption is increased to $5 million for 2011 and 2012.

Finally, there is the GST. That is a federal tax on any attempts to avoid the gift or estate tax by skipping a generation. A generation-skipping transfer is a transfer to a person who is two or more generations below the donor (grandchildren).  It can also be a transfer in trust to an unrelated person who is more than 37.5 years younger than the donor.

The GST rate effectively is zero for 2010 just like the federal estate tax. For 2011 and 2012, however, the rate is 35%.

Without further legislation, the tax cuts and the “portability” of the estate tax exemption amount sunset after 2012.  On January 1, 2013, a $1,000,000 estate tax exemption and 55% estate tax rate will kick in.

It is difficult to anticipate what the future of the federal estate tax will be. If Congress lets the new rules sunset, we will be going back to the 2002 rates. Many Americans now have assets worth more than $1,000,000.

The alternative favored by a substantial number of Republicans in Congress is a complete repeal of the estate tax. That possibility is not to be excluded. Republicans are in control of the House and have gained significant ground in the Senate. 

The chances are that the future will be somewhere between both. Some commentators anticipate that the estate tax may take another direction on the assumption that congressional Democrats and Republicans agree on a compromise : a lower estate tax exemption and a higher estate tax rate with numbers that are more in line with the 2009 numbers ($3,500,000 and 45%.).  Part of that discussion will be whether the portability of the estate tax exemption between spouses that is in effect for the 2011 and 2012 is to be maintained.

If a compromise cannot be found, Congress could simply postpone the decision again and pass a bill to extend the 2010 law in 2013.

Apart from an outright repeal of the federal estate tax, a compromise in Congress is the solution favored by most practitioners.  As long as the tax rates and the tax exemptions keep changing, estate planning is like playing football with moving goalposts.  The only solution is to keep estate planning formulas appropriately adjusted for all tax eventualities.

For U.S. citizens living in Belgium, estate planning is a nightmare. They need to take account of both the U.S. estate tax and the Belgian inheritance tax. Estate plans that are sufficient to cover the U.S. side may not offer a solution in Belgium.  At least the fact that three out of the four alternatives described above have quite high exemption amounts may help overcome double taxation.

The uncertainty restricts U.S. citizens married to Europeans even more in their options.  Surviving spouses who are not U.S. citizens cannot claim most of the exemptions available to U.S. spouses. E.g. they are not entitled to the ‘unlimited marital deduction’ against estate tax in their own name. In the U.S., Qualified Domestic Trusts offer a solution but these are hard to implement in a country such as Belgium that does not have trust law.  A decision of the Belgian Ruling Commission from December 2009 shows the difficulties this entails.

Finance Minister Didier Reynders announced in 2009 that he would start negotiations for an Estate Tax Treaty with the U.S., but the U.S. Treasury was not in a position to negotiate double tax treaties as long as the future of the federal estate tax was uncertain.  That is not likely to change for the next two years.

Author: Marc Quaghebeur

Marc Quaghebeur is a Belgian tax lawyer with Cabinet DAVID specialising in international tax issues and cross border estate planning. He is a member of the Brussels Bar and the Society of Trust and Estate Practitioners. He

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