Taxation-Federal Estate and Gift Commons^™

Review: Linking The Certainty Of Death And Taxes, Browne C. Lewis

Law Faculty Articles and Essays

This is a review of "Wills for Everyone: Helping Individuals Opt Out of Intestacy" (53 B.C.L. Rev. 877 (2012)), by Reid Kress Weisbord. Lewis praises Weisbord’s attempt to simplify the testamentary process. She agrees with his assertion that in failing to execute a will, most people are not fearing their own mortality and instead are just not willing or able to navigate a complicated testamentary process. She supports his suggestion to make executing a will more like filing a simple tax return, when possible. In sum, she praises his efforts to reduce the rate of intestacy by simplifying the testamentary …

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 Unconstitutionality Of Eliminating Estate And Gift Taxes, James G. Wilson

Law Faculty Articles and Essays

The recent proposal to eliminate estate and gift taxes is not only immoral and a poor allocation of resources, but also is unconstitutional. Irrespective of their ideology, virtually all American lawyers will initially dismiss this accusation as frivolous because it conflicts with their tradition of equating conceptions of "constitutionality" with United States Supreme Court opinions. The Court has long been highly deferential to Congress in federal tax law cases. It is inconceivable that the current Court would find anything "irrational" in a facially neutral law eliminating all estate and gift taxes. Indeed, if I sat on that bench, I would …

Does The Death Tax Deserve The Death Penalty - An Overview Of The Major Arguments For Repeal Of Federal Wealth-Transfer Taxes , Richard Schmalbeck

Cleveland State Law Review

President Bush campaigned on a platform calling for repeal of the federal estate, gift, and generation-skipping transfer taxes, and, within his first month in office, introduced a bill that would accomplish that result. Whether or not these taxes are repealed this year, however, the debate over them will not immediately end. In the spirit of that on-going debate, I offer this essay considering the major arguments that have been made by advocates of repeal. Although I will focus mostly on those arguments in opposition to the existing system, I will begin with a brief description of the federal wealth transfer …

The Unconstitutionality Of Eliminating Estate And Gift Taxes , James G. Wilson

Cleveland State Law Review

This article discusses why the recent proposal to eliminate estate and gift taxes is not only immoral and a poor allocation of resources, but also is unconstitutional. The author argues that the only way to sustain any allegation of unconstitutionality against these tax policy changes is to extend meanings of "constitutionality" beyond the legalistic paradigm of constitutional adjudication. Explaining that to extend notions of constitutionality this additional distance, we would need to resurrect earlier constitutional conceptions from such influential political thinkers as Aristotle, David Hume, James Madison, and Thomas Jefferson. While pointing out that the United States Constitution embodies a …

How Federal Transfer Taxes Affect The Development Of Property Law , Ira Mark Bloom

Cleveland State Law Review

This topic, How Federal Transfer Taxes Affect the Development of Property Law, makes the basic assumption that, to some extent, property law exists because of the federal wealth transfer tax system. As will be seen, this assumption is correct. In some instances, however, property laws exist because of the federal transfer tax system. I classify such property laws into three categories: the necessary, the appropriate and the unfortunate. In the remainder of this article, I will give examples of federal transfer tax-based property laws in these three categories. By way of illustration, I will primarily rely on statutory laws of …

Federal Transfer Taxes: The Possibility Of Repeal And The Post Repeal World , Joel C. Dobris

Cleveland State Law Review

I do want to focus you on what I now see as the crucial social policy behind transfer taxes in America. And, today I would say, that the death tax, if amended, can vindicate that crucial policy. Rightly or wrongly, I think we do not focus on the key purpose of death taxation in this country. I believe knowing the "secret" makes it easier to explain why the environment is so pro-repeal and it makes it easier for me to prescribe for the future. For better or worse, I believe the crucial purpose of the tax is to assert the …

The Moral Hazard Of The Estate Tax , Carolyn C. Jones

Cleveland State Law Review

The current debate about wealth transfer taxation has its themes of morality as well. Opponents have labeled the tax as “immoral.” Taxation is about morality. It is both useful and necessary to consider moral arguments in the debate about the estate tax. In an area largely consigned to economists and philosophers, it is beneficial to broaden perspectives. One could expand the range of academic disciplines considered-to history, psychology, and sociology, for example. One should also take into account the narratives of those affected by the issue. This essay can only probe into this question, beginning with Andrew Carnegie and the …

Initial Impressions Of The Treasury Report On Foundations, Marcus Schoenfeld

Cleveland State Law Review

Very recently in the United States Treasury Department submitted its study of private foundations to Congress. This is the most recent development in an attempt to delineate the proper role of foundations and their donors in our society, and more particularly their proper tax treatment. Although it is much too soon to predict the effect of the Treasury Report, since Congress itself asked for the study, it is quite likely that some more restrictive legislation will result.

Estate Tax Effects Of Premium Payments After Transfer Of Life Insurance, Michael A. Taylor

Cleveland State Law Review

Ordinarily when a donor lives for three years after the transfer, section 2035 (b) says the gift cannot be attacked as being made in contemplation of death. However, if the transferor of an insurance policy continues to pay the premiums after the transfer several questions are presented. Should each of these payments be regarded as a further gift, with the payments during the last three years considered as gifts in contemplation of death? If so, what amount would be included in the donor's estate because of the subsequent premium payments? Neither question has been answered by the courts. This paper …

In Contemplation Of Death, Hendrick Machoian

Cleveland State Law Review

The phrase "in contemplation of death" is used in connection with gifts in federal estate tax law' and in connection with gifts causa mortis at common law. The purpose of this paper is to determine the difference, if any, between the scope of the phrase for federal estate tax purposes and the scope of the phrase for purposes of gifts causa mortis.

Florida Affords The Ohio Resident Relief From The Problem Of Multiple Inheritance Taxation, George Rubin

Cleveland State Law Review

The transfer or succession of real property and tangible personal property is taxable by the state where it is located irrespective of the domicile of the decedent, and the transfer or succession of intangible personal property maybe taxed by the state where the decedent was domiciled at the time of his death. It becomes clear then that the state must establish the domicile of the decedent at the time of his death in order to impose an inheritance tax on the transmission or right of transmission of the intangible personal property. The problem arises in those cases where a decedent …