Law Commons^™

Legislating Morality: The Duty To The Tax System Reconsidered, Watson

Scholarly Works

Four years ago, I presented a paper at a symposium on professionalism jointly sponsored by the University of Kansas Law School and the Kansas Bar Association. That paper espoused the view (contrary to what appears to be the popular view among tax scholars) that tax lawyers owe no special duty to the "tax system" other than to abide by the law and the applicable standards of professional conduct. During the four-year interim since my last visit to Kansas, however, we have witnessed the deleterious effect of the IRS Restructuring and Reform Act of 1998 (RRA '98) on IRS enforcement and …

Estate Planning Topics, W. Birch Douglass Iii, Dee Ann Remo, Michael L. Layman

William & Mary Annual Tax Conference

No abstract provided.

Revisiting Byrum, Brant J. Hellwig

Scholarly Articles

In the landmark case of United States v. Byrum, the Supreme Court determined that a majority shareholder's retention of voting rights over stock transferred in trust did not cause the stock to be included in his gross estate under Section 2036(a)(1) or (a)(2). The Court grounded its decision in the fiduciary duty owed by the board of directors and the majority shareholder to exercise their discretion over corporate distributions to promote the best interests of the entity. Despite legislative action quickly reversing the Court's holding in Byrum, the case continued to influence decisions concerning the estate tax consequences of a …

Spousal Election: Suggested Equitable Reform For The Division Of Property At Death, Angela M. Vallario

All Faculty Scholarship

Testators have traditionally enjoyed immense discretion in directing the disposition of their wealth upon death; however, when a spouse survives the testator, public policy dictates a limitation on the testator's ability to dispose of property. American jurisdictions impose this limitation through the elective share in common law states and by the nature of property ownership in community property states. Ideally, this limitation should ensure equitable financial protection for the surviving spouse and protect his or her interest in assets that were accumulated with the decedent, yet the current elective share methods fall short of these goals.

Estate Planning Malpractice: Is Strict Privity Here To Stay?, Angela M. Vallario

All Faculty Scholarship

Under Maryland case law, a plaintiff in an estate planning malpractice action must be in strict privity with the attorney who drafted the will. To date, Maryland has not extended the third-party beneficiary exception to the estate planning arena.

Legatees specifically identified in a will by name or class are generally precluded from bringing a cause of action against the attorney for the attorney's alleged negligence, because in Maryland in order to recover for legal malpractice, a plaintiff must:show: "(1) the attorney's employment; (2) his neglect of a reasonable duty; and (3) loss to the client proximately caused by that …

Kimbell: Is The Party Over For Family Limited Partnerships, Brant J. Hellwig

Scholarly Articles

Professor Brant J. Hellwig of the University of South Carolina School of Law examines the impact of the recent Kimbell decision on the future use of family limited partnerships for estate planning purposes.

Sample Forms, In Estate Planning Law And Taxation, 4th Ed., Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Sample estate planning forms.

When The Endowment Tanks, Jeffrey J. Haas

Articles & Chapters

No abstract provided.

"Gifts, Gafts And Gefts" – The Income Tax Definition And Treatment Of Private And Charitable "Gifts" And A Principled Policy Justification For The Exclusion Of Gifts From Income, Jeffrey H. Kahn, Douglas A. Kahn

Scholarly Publications

No abstract provided.

When The Endowment Tanks: Some Lessons For Nonprofits, Jeffrey J. Haas

Other Publications

No abstract provided.

Incremental Versus Fundamental Tax Reform And The Top One Percent, Deborah A. Geier

Law Faculty Articles and Essays

This article describes the historical shift from consumption taxation at the federal level to income taxation with the enactment of the 16th amendment (the intent of which was chiefly to tax the capital income of the wealthy) and the incremental shifts since then back toward consumption taxation (which frees capital from tax) through expansion of both the payroll taxes as well as the consumption tax features of our current hybrid income/consumption tax that target the middle class.

It then addresses the issue of whether we ought to expand consumption tax treatment to the very wealthy by reviewing two recently published …

The Rise Of The Perpetual Trust, Jesse Dukeminier, James E. Krier

Articles

For more than two centuries, the Rule against Perpetuities has served as the chief means of limiting a transferor's power to tie up property by way of successive contingent interests. But recently, at least seventeen jurisdictions in the United States have enacted statutes abolishing the Rule in the case of perpetual (or near-perpetual) trusts. The prime mover behind this important development has been the federal Generation-Skipping Transfer Tax. This Article traces the gradual decline of the common law Rule against Perpetuities, considers the dynamics behind the recent wave of state legislation, examines the problems that might result from the rise …

Gifts, Gafts And Gefts: The Income Tax Definition And Treatment Of Private And Charitable 'Gifts' And A Principled Policy Justification For The Exclusion Of Gifts From Income, Douglas A. Kahn, Jeffrey H. Kahn

Articles

Gifts have been given special treatment by the income tax laws since the first post-16th Amendment tax statute was adopted in 1913. The determination of how the income tax law should treat gifts raises a number of issues. For example: should gifts be given special treatment? If so, what should qualify as a gift? Should gifts to a private party be taxable to the donee? Should gifts to a private party be deductible by the donor? Should the donee's basis in a gift of property be determined by reference to the basis that the donor had, and should any modifications …