Taxation-Federal Estate and Gift Commons^™

The 2010 Tax Act's Impact On Estate Planning

William & Mary Annual Tax Conference

No abstract provided.

Planning For The Next Generation: Installment Sale To An Intentionally Defective Grantor Trust, John B. O'Grady

William & Mary Annual Tax Conference

No abstract provided.

The New Super-Charged Pat (Power Of Appointment Trust), Wendy G. Gerzog

All Faculty Scholarship

This article proposes to repeal the QTIP provisions in order to collect revenue now for transfers that are essentially transfers to third parties and not to the decedent's spouse. Because there are advantages of increased flexibility attendant to a QTIP as opposed to a PAT, this article proposes to take those repealed QTIP benefits and attach them to the PAT, which would greatly enhance that marital deduction trust form. A super-charged PAT would thereby be able to preserve the decedent's GST tax exemption (like a reverse QTIP), create a decedent's by-pass trust by allowing a PAT (or a partial PAT) …

Excluding Expert Valuation Testimony, Wendy G. Gerzog

All Faculty Scholarship

In Boltar, a case in which the Tax Court addressed the valuation of a conservation easement, the court ruled on the admissibility of expert testimony.

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

The Contemporary Tax Journal

No abstract provided.

Summaries From The Tei-Sjsu Tax Policy Conference-- The State Of Tax Policy In California, Linda Yung, Tim Kelly, Sylvia Han, Vuong Luong, Brian Ross, Zhi Jun Lim, Victoria Lau

The Contemporary Tax Journal

No abstract provided.

Credit Shelter Trusts And Probability: Does One Exclude The Other, Marc S. Bekerman

Articles & Chapters

In the September/ October 2009 issue of Probate & Property, the author published an article titled What Portability Means to Trust and Estate Professionals, contemplating the possibility that the estate of a surviving spouse might be permitted to use the unused estate tax applicable exemption amount from the estate of his or her predeceased spouse. This concept has been referred to as portability of the applicable exemption amount, and the article identified several issues that might arise should portability be permitted. This article is a follow-up to that prior article because portability has indeed been enacted as part of the …

Shapiro: Palimony And The Estate Tax, Wendy G. Gerzog

All Faculty Scholarship

In Estate of Shapiro, the Ninth Circuit held that an individual had a valid palimony claim under Nevada state law. However, the issue was whether the decedent’s estate qualified for a deduction for that claim under federal estate tax law.

Linton Reversed: Indirect Gifts And The Step Transaction Doctrine, Wendy G. Gerzog

All Faculty Scholarship

The Ninth Circuit recently reversed the district court’s summary judgment in favor of the government in Linton on the issues of indirect gift and the applicability of the step transaction doctrine. The circuit court’s analysis focused on the taxpayers’ donative intent. With that emphasis, the Ninth Circuit remanded the case to the district court to determine the sequence of the relevant transactions.

The Politics And Policy Of The Estate Tax – Past, Present, And Future, Michael J. Graetz

Faculty Scholarship

This paper is an edited transcript of the Lloyd Leva Plaine Distinguished Lecture, delivered at the University of Miami’s Heckerling Estate Planning Institute on January 11, 2011. It reviews the history of the estate tax, discusses the politics of its bizarre repeal for the year 2010 only, and outlines the forces that led to reinstatement of the tax for 2011 and 2012 with a $5 million exemption and 35 percent top rate. The paper makes clear that the coalition pushing for repeal of the estate tax will continue to work to eliminate it and also explores potential broader implications of …

The Fundamentals Of Wealth Transfer Tax Planning: 2011 And Beyond, John A. Miller, Jeffrey A. Maine

Faculty Publications

This article discusses basic aspects of all three transfer taxes, with particular emphasis on the estate tax. This article then outlines fundamental estate planning techniques in light of the impact of these taxes. In addition, references are provided in the footnotes to more detailed treatments of the planning techniques described here.

Us Perpetual Trusts, Lawrence W. Waggoner

Articles

In 2009, the UK reconfirmed tis long-standing public policy against perpetual trusts. America has been moving in the opposite direction. Recent years have seen a movement in the states to pass legislation allowing settlors to create family trusts that can last forever or for several centuries. Sadly, and embarrassingly, the American perpetual-trust movement has not been based on the merits of removing the traditional curb on excessive dead-hand control. The policy issues associated with allowing perpetual trusts have not been seriously discussed in the state legislatures. The driving force has been interstate competition for trust business.

The Taxation Of A Gift Or Inheritance From An Employer., Douglas A. Kahn

Articles

The focus of this article is to examine the following questions: 1. whether, despite its unrestricted language, section 102(c) does not apply to some gratuitous transfers to an employee; 2. if so, what are the exceptions to section 102(c); and 3. when section 102(c) does not apply to a transfer, whether it will be excluded from income. Part II of this article examines the conditions under which a gratuitous transfer to an employee will be excluded from income under the Duberstein standard and under the normal tax treatment of testamentary transfers -- in other words, how the section 102(a) gift …

Summaries From The 26th Annual Tei-Sjsu High Technology Tax Institute, Ankit Mathur, Zhihua Cai, Tim Kelly, Marja Mirkovic, Sampada Deshmukh, Ami Shah

The Contemporary Tax Journal

No abstract provided.

Construing Wills And Trusts During The Estate Tax Hiatus In 2010, S. Alan Medlin, F. Ladson Boyle

Faculty Publications

Many estate planners have drafted wills and revocable trusts with dispositive provisions based on formulas. These formulas often use language based on transfer tax terminology. For clients who die in 2010, the language used in these formulas will be ambiguous, if not apparently meaningless, because Congress failed to re-institute the estate tax for 2010. The resulting 2010 estate tax hiatus will result in will and revocable trust construction problems for the estates of many decedents who die during the hiatus. Courts will have to use statutory and common law construction methods to attempt to determine the decedent's dispositive intentions. This …

Morgens: More Qtip Mischief, Wendy G. Gerzog

All Faculty Scholarship

In Morgens, the court ruled in favor of the government that section 2035(b) applied to the gift taxes paid by the qualified terminable interest property (QTIP) trust beneficiaries to gross up the widow’s estate by that amount. Because the surviving (or donee) spouse must be taxed on the underlying property over which she has no ownership rights, Congress enacted section 2207A to allow the second spouse to recover from the beneficiaries of the property the transfer taxes relating to her gift or estate inclusion. However, the court held that section 2207A did not shift the gift tax liability to those …

The Times They Are Not A-Changin': Reforming The Charitable Split-Interest Rules (Again), Wendy C. Gerzog

Chicago-Kent Law Review

This article will review the history of the tax treatment of charitable split interest gifts, explain the inequities that Congress both cured and generated in its 1969 reforms, and propose solutions that are consistent with the goals of the 1969 legislation. The article discusses variations in the 1969 definition of a charitable split interest, which, because of the enacted statutory language, applies in instances where there is no abuse potential. The inequity produced by that definition penalizes the donor and flouts the rationale behind the 1969 legislation. By contrast, the creation of some required statutory forms of charitable split interests …

The Problems With Donor Intent: Interpretation, Enforcement, And Doing The Right Thing, Susan N. Gary

Chicago-Kent Law Review

In a number of recent controversies, the way the charities involved handled restricted gifts resulted in unhappy donors, negative publicity, and costly litigation. This paper examines several of these cases and then argues that donor intent is often more difficult to divine that many people have stated.

The law requires that a charity give effect to a restriction imposed by a donor. This paper examines the legal rules that govern donor-restricted gifts and considers the other reasons a charity will, in most cases, follow the donor's intent. The paper then describes several circumstances in which donor intent may not be …

What Leona Helmsley Can Teach Us About The Charitable Deduction, Ray D. Madoff

Chicago-Kent Law Review

Leona Helmsley named a number of beneficiaries under her will (both human and canine), but among the unnamed beneficiaries are scholars interested in studying the role of philanthropy in the United States. By directing that an estimated $8 billion be used for the benefit of dogs, Mrs. Helmsley brought in to high relief policy issues regarding the appropriateness of the unlimited charitable deduction. I argue that these concerns are equally applicable, albeit less obvious, when it comes to more traditional charitable bequests. In this paper I will discuss the appropriateness of the unlimited estate tax deduction (particularly in light of …

Should Charitable Trust Enforcement Rights Be Assignable?, Joshua C. Tate

Chicago-Kent Law Review

In recent years, scholars have given much attention to the problem of charitable trust enforcement. Departing from the common law, section 405(c) of the Uniform Trust Code provides that "[t]he settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust." Joshua Tate's paper will address the question of whether, and to what extent, a settlor's right to enforce a charitable trust should be assignable to third parties. Should the law permit the settlor of a charitable trust to assign her enforcement rights after the creation of the trust, or should assignments be recognized only if …