Taxation-Federal Estate and Gift Commons^™

Unauthorized Tax Elections, Jay A. Soled

Buffalo Law Review

Unauthorized tax elections are those devices and techniques that taxpayers employ to achieve sought-after objectives but that are not specifically endorsed under the Internal Revenue Code. Often evolving over time, they are a common feature of the nation’s tax system. While unauthorized tax elections can prove subversive, in many instances, if properly and timely addressed, their existence can produce salutary benefits vis-à-vis their eradication or formal institutionalization.

This analysis explores the general contours of unauthorized tax elections and the critical signaling roles that they provide, alerting Congress and the Treasury Department to shortcomings and vulnerabilities in the Internal Revenue Code’s …

Progressive Taxation And A Conservative Supreme Court: Reading The Tea Leaves, Mitchell M. Gans

ACTEC Law Journal

No abstract provided.

Married, With Children At Death, Emily S. Taylor Poppe

ACTEC Law Journal

Despite modern trends in family formation, married individuals with children remain prevalent in the adult population in the United States. To the extent that these individuals forego estate planning, their probate property is distributed at death according to the laws of intestacy of their state of domicile. These laws are motivated by assumptions about probable intent, and on that basis typically prioritize the surviving spouse and children over other potential heirs. However, there is wild jurisdictional variation in the relative interests of the spouse and descendants of married parent decedents under these laws. Historical evidence suggested that most decedents who …

A Defense Of Perpetual Trusts, Danny Fein

ACTEC Law Journal

This essay emphatically defends perpetual trusts and recent state-level repeals of the Rule Against Perpetuities. The scholarly debate over the category of perpetual trusts has focused exclusively on one type—the Dynasty Trust—which is designed to perpetuate wealth within families by exploiting a tax loophole. The unsavory nature of both Dynasty Trusts and the legal reform movement that spawned them has blinded critics to a universe of perpetual trusts that are socially beneficial. Previously, new types of trusts that required perpetuity could only achieve it through statutory exemption. Private Foundations and Stewardship Trusts were each granted perpetuity by legislatures. Now that …

To My Children In Equal Shares: The Flaw Of Estate Planning When Property Is Devised To Beneficiaries As Tenants In Common, Camille M. Davidson

ACTEC Law Journal

No abstract provided.

Flexible Beneficiary Trusts: Reducing Income Tax On Non-Grantor Trusts, Jonathan G. Blattmachr, Martin M. Shenkman

ACTEC Law Journal

No abstract provided.

Front Matter

ACTEC Law Journal

No abstract provided.

Family Limited Partnerships, Bona Fide Sales, And Inadequate Consideration, Grayson M.P. Mccouch

ACTEC Law Journal

No abstract provided.

How Should Inheritance Law Remediate Inequality?, Felix B. Chang

Washington Law Review

This Article argues that trusts and estates (“T&E”) should prioritize intergenerational economic mobility—the ability of children to move beyond the economic stations of their parents—above all other goals. The field’s traditional emphasis on testamentary freedom, or the freedom to distribute property in a will as one sees fit, fosters the stickiness of inequality. For wealthy settlors, dynasty trusts sequester assets from the nation’s system of taxation and stream of commerce. For low-income decedents, intestacy (i.e., the system of property distribution for a person who dies without a will) splinters property rights and inhibits their transfer, especially to nontraditional heirs.

Holistically, …

Federally Mandated Online Sales Tax: A Logistical Solution For The Future Of E-Commerce, Daniel O'Connor

DePaul Business & Commercial Law Journal

No abstract provided.

Economic Structural Transformation And Litigation: Evidence From Chinese Provinces, To Economic Change And Restructuring, Doug Bujakowski, Joan Schmit

DePaul Business & Commercial Law Journal

No abstract provided.

The "Business Interruption" Insurance Coverage Conundrum: Covid-19 Presents A Challenge, Paul E. Traynor

DePaul Business & Commercial Law Journal

No abstract provided.

Misalighned Incentives In Markets: Envisioning Finance That Benefits All Of Society, Dr. Ryan Clements

DePaul Business & Commercial Law Journal

No abstract provided.

Front Matter (Letter From The Editor, Masthead, Etc.)

The Contemporary Tax Journal

No abstract provided.

Monsanto: Creator Of Cancer Liability

DePaul Business & Commercial Law Journal

No abstract provided.

Impact Of Corporate Response To Controversial Presidential Statements Or Policies

DePaul Business & Commercial Law Journal

No abstract provided.

Substance Over Form In Transfer Tax Adjudication, Richard Schmalbeck, Jay A. Soled

Faculty Scholarship

The elevated exemption level under the federal transfer tax system (now in excess of $24 million for a married couple) has opened up new and abusive tax-avoidance opportunities. In many areas of the tax law, the substance over form doctrine historically has been effective in controlling such abuses; however, for a myriad of reasons, transfer tax jurisprudence has been marred by the reluctance of courts to embrace this doctrine. In this analysis, we urge reconsideration of that posture.

Restricting Funeral Expense Deductions, William A. Drennan

Dickinson Law Review (2017-Present)

During the Middle Ages, the wealthy often requested burial in mass graves with their fellow mortals, as a sign of humility. But since the rise of the cult of the individual during the Renaissance, individual burial plots have been an expression of prestige, wealth, and social status for some. For example, Leona Helmsley, real estate baroness and “Queen of Mean,” dedicated $3 million upon her death for the care and maintenance of her 1300 square foot, $1.4 million mausoleum. Respectful disposition of the body is a hallmark of civilization and a common law requirement of estate administration, but an extravagant …

Broken Infrastructure, Del C. Wright Jr.

Faculty Works

This article examines the cryptocurrency-related provisions of the Infrastructure Investment and Jobs Act of 2021, focusing on amendments to the Internal Revenue Code that expand tax reporting and surveillance obligations for digital assets. Specifically, it analyzes the new “Broker” and “Tax” provisions, which extend reporting requirements beyond traditional financial intermediaries to actors in the blockchain ecosystem who may lack access to the necessary data. The article situates these provisions within the broader regulatory and political context, tracing their roots to prior Treasury rulemaking efforts and exploring their intended role in closing the “tax gap.” It highlights the significant compliance challenges, …

Estate Planning For Cannabis Business Owners: An Introduction, Bridget J. Crawford, Jonathan G. Blattmachr

Elisabeth Haub School of Law Faculty Publications

As more states legalize cannabis sales, estate planners may increasingly be called upon to advise clients with interests in cannabis-related businesses. This essay seeks to assist estate planners in two ways. First, it aims to raise general awareness of cannabis business owners' unique concerns. Second, the essay provides an overview of some of the fundamental issues about which cannabis business owners are likely to seek estate planning advice: business formation matters, wealth transfers, the ability of trusts to own cannabis-related businesses, and gift, estate, and income tax considerations.

In most states that permit legal cannabis sales, there is limited (or …

Front Matter (Letter From The Editor, Masthead, Etc.)

The Contemporary Tax Journal

No abstract provided.

Front Matter

ACTEC Law Journal

No abstract provided.

An Alternate Approach To Situs Determination For Partnership Interests, Jack Spencer

ACTEC Law Journal

No abstract provided.

The Ultimate Gift Horse: Modernizing The Upc On Advancements To Avoid Unintended Redistributions, Jackie Elder, Frederick E. Vars

ACTEC Law Journal

A common tax avoidance strategy is to make annual lifetime gifts in the maximum amount exempt from the gift tax in order to reduce or avoid the estate tax. These gifts are likely intended as an intergenerational transfer of wealth, only differing from passing through the estate in timing. The donors probably don't intend for their tax avoidance strategy to affect the ultimate equitable distribution of their wealth. However, under the Uniform Probate Code (UPC) and case law applying it, these gifts are generally not treated as advancements, so an uneven distribution can result from something as simple as differing …

When The Stepped-Up Basis Of Inherited Property Is No More, Richard L. Kaplan

ACTEC Law Journal

Written for a symposium on how Trusts & Estates might change in the future, this article considers the implications of repealing the “step-up in basis” rule for inherited property, as President Biden proposed. The article begins by explaining how this century-old tax rule affects gratuitous transfers and then reviews previous repeal efforts before it examines the impact of such repeal on family tax planning, retirement account funding, and charitable donations.

Alkaline Hydrolysis, Victoria J. Haneman

ACTEC Law Journal

Hollywood has developed its own villainous death disposition trope that is often a link in a nefarious narrative chain—disposition of human remains through some form of chemical dissolution. Spanning decades and genre, popular cinema and television have warmly embraced liquification of the dead, including but not limited to The Wizard of Oz, House on Haunted Hill, Thief, Who Framed Roger Rabbit, Point of No Return, Palmetto, Walker, Texas Ranger, NCIS, Bones, The Wire, Breaking Bad, Dexter, Blacklist, Homeland, Elementary, 10 Cloverfield Lane, Ozark, Rick and Morty. The specifics vary dramatically from one work of fiction to the next but the …

Estate Planning For Cannabis Business Owners: An Introduction, Bridget J. Crawford, Jonathan G. Blattmachr

ACTEC Law Journal

As more states legalize cannabis sales, estate planners may increasingly be called upon to advise clients with interests in cannabis-related businesses. This essay seeks to assist estate planners in two ways. First, it aims to raise general awareness of cannabis business owners’ unique concerns. Second, the essay provides an overview of some of the fundamental issues about which cannabis business owners are likely to seek estate planning advice: business formation matters, wealth transfers, the ability of trusts to own cannabis-related businesses, and gift, estate, and income tax considerations.

In most states that permit legal cannabis sales, there is limited (or …

Black Deaths Should Matter, Too! Estate Planning As A Tool For Antiracists, Terrence M. Franklin

ACTEC Law Journal

No abstract provided.

The Nonfiduciary "Trust", Jeffrey Schoenblum

ACTEC Law Journal

This article identifies and details the emergence in an increasing number of states of a new trust law that rejects the fundamental tenets of traditional trust law. This alternative concept of the trust liberates the trustee from any meaningful accountability to the beneficiary, the very core concept of traditional trust law. In short, these states are enabling the creation of what might be described as a "nonfiduciary trust."

Modernizing Trusts And Estates: Introduction, Alyssa A. Dirusso

ACTEC Law Journal

No abstract provided.