Estate tax in the United States

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The estate tax in the United States is a tax imposed on the transfer of the "taxable estate" of a deceased person, whether such property is transferred via a will, according to the state laws of intestacy or otherwise made as an incident of the death of the owner, such as a transfer of property from an intestate estate or trust, or the payment of certain life insurance benefits or financial account sums to beneficiaries. The estate tax is one part of the Unified Gift and Estate Tax system in the United States. The other part of the system, the gift tax, imposes a tax on transfers of property during a person's life; the gift tax prevents avoidance of the estate tax should a person want to give away his/her estate.

In addition to the federal government, many states also impose an estate tax, with the state version called either an estate tax or an inheritance tax. Opponents of the estate tax call it the "death tax".

If an asset is left to a spouse or a Federally recognized charity, the tax usually does not apply. In addition, up to $5,250,000 can be given by an individual, before and/or upon their death, without incurring federal gift or estate taxes.

Federal estate tax

Estate tax returns as a percentage of adult deaths, 1982 - 2008.

The federal estate tax is imposed "on the transfer of the taxable estate of every decedent who is a citizen or resident of the United States." The starting point in the calculation is the "gross estate." Certain deductions (subtractions) from the "gross estate" amount are allowed in arriving at a smaller amount called the "taxable estate."

The "gross estate"

The "gross estate" for federal estate tax purposes often includes more property than that included in the "probate estate" under the property laws of the state in which the decedent lived at the time of death. The gross estate (before the modifications) may be considered to be the value of all the property interests of the decedent at the time of death. To these interests are added the following property interests generally not owned by the decedent at the time of death:

• the value of property to the extent of an interest held by the surviving spouse as a "dower or curtesy";
• the value of certain items of property in which the decedent had, at any time, made a transfer during the three years immediately preceding the date of death (i.e., even if the property was no longer owned by the decedent on the date of death), other than certain gifts, and other than property sold for full value;
• the value of certain property transferred by the decedent before death for which the decedent retained a "life estate", or retained certain "powers";
• the value of certain property in which the recipient could, through ownership, have possession or enjoyment only by surviving the decedent;
• the value of certain property in which the decedent retained a "reversionary interest", the value of which exceeded five percent of the value of the property;
• the value of certain property transferred by the decedent before death where the transfer was revocable;
• the value of certain annuities;
• the value of certain jointly owned property, such as assets passing by operation of law or survivorship, i.e. joint tenants with rights of survivorship or tenants by the entirety, with special rules for assets owned jointly by spouses.;
• the value of certain "powers of appointment";
• the amount of proceeds of certain life insurance policies.

The above list of modifications is not comprehensive.

As noted above, life insurance benefits may be included in the gross estate (even though the proceeds arguably were not "owned" by the decedent and were never received by the decedent). Life insurance proceeds are generally included in the gross estate if the benefits are payable to the estate, or if the decedent was the owner of the life insurance policy or had any "incidents of ownership" over the life insurance policy (such as the power to change the beneficiary designation). Similarly, bank accounts or other financial instruments which are "payable on death" or "transfer on death" are usually included in the taxable estate, even though such assets are not subject to the probate process under state law.

Deductions and the taxable estate

Once the value of the "gross estate" is determined, the law provides for various "deductions" (in Part IV of Subchapter A of Chapter 11 of Subtitle B of the Internal Revenue Code) in arriving at the value of the "taxable estate." Deductions include but are not limited to:

• Funeral expenses, administration expenses, and claims against the estate;
• Certain charitable contributions;
• Certain items of property left to the surviving spouse.
• Beginning in 2005, inheritance or estate taxes paid to states or the District of Columbia.

Of these deductions, the most important is the deduction for property passing to (or in certain kinds of trust, for) the surviving spouse, because it can eliminate any federal estate tax for a married decedent. However, this unlimited deduction does not apply if the surviving spouse (not the decedent) is not a U.S. citizen. A special trust called a Qualified Domestic Trust or QDOT must be used to obtain an unlimited marital deduction for otherwise disqualified spouses.

Tentative tax

The tentative tax is based on the tentative tax base, which is the sum of the taxable estate and the "adjusted taxable gifts" (i.e., taxable gifts made after 1976). For decedents dying after December 31, 2009, the tentative tax will, with exceptions, be calculated by applying the following tax rates:

Lower Limit	Upper Limit	Initial Taxation	Further Taxation
0	$10,000	$0	18% of the amount
$10,000	$20,000	$1,800	20% of the excess
$20,000	$40,000	$3,800	22% of the excess
$40,000	$60,000	$8,200	24% of the excess
$60,000	$80,000	$13,000	26% of the excess
$80,000	$100,000	$18,200	28% of the excess
$100,000	$150,000	$23,800	30% of the excess
$150,000	$250,000	$38,800	32% of the excess
$250,000	$500,000	$70,800	34% of the excess
$500,000	$750,000	$155,800	37% of the excess
$750,000	$1,000,000	$248,300	39% of the excess
$1,000,000	and over	$345,800	40% of the excess

--Internal Revenue Code section 2001(c), as amended by section 302(a)(2) of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (H.R. 4853), Pub. L. No. 111-312, ___ Stat. ___ (Dec. 17, 2010), as amended by section 101(c)(1) of the American Taxpayer Relief Act of 2012.

The tentative tax is reduced by gift tax that would have been paid on the adjusted taxable gifts, based on the rates in effect on the date of death (which means that the reduction is not necessarily equal to the gift tax actually paid on those gifts).

Credits against tax

There are several credits against the tentative tax, the most important of which is a "unified credit" which can be thought of as providing for an "exemption equivalent" or exempted value with respect to the sum of the taxable estate and the taxable gifts during lifetime.

For a person dying during 2006, 2007, or 2008, the "applicable exclusion amount" is $2,000,000, so if the sum of the taxable estate plus the "adjusted taxable gifts" made during lifetime equals $2,000,000 or less, there is no federal estate tax to pay. According to the Economic Growth and Tax Relief Reconciliation Act of 2001, the applicable exclusion increased to $3,500,000 in 2009, the estate tax was repealed for estates of decedents dying in 2010, but then the Act was to have "sunset" in 2011 and the estate tax was to reappear with an applicable exclusion amount of only $1,000,000.

However, On December 16, 2010, Congress passed the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, which was signed into law by President Barack Obama on December 17, 2010. The 2010 Act changed, among other things, the rate structure for estates of decedents dying after December 31, 2009, subject to certain exceptions. It also served to reunify the estate tax credit (aka exemption equivalent) with the federal gift tax credit (aka exemption equivalent). The gift tax exemption is now equal to $5,250,000.

The 2010 Act also provided portability to the credit, allowing a surviving spouse to use that portion of the pre-deceased spouse's credit that was not previously used (e.g. a husband died, used $3 million of his credit, and filed an estate tax return. At his wife's subsequent death, she can use her $5 million credit plus the remaining $2 million of her husband's).

If the estate includes property that was inherited from someone else within the preceding 10 years, and there was estate tax paid on that property, there may also be a credit for property previously taxed.

Before 2005, there was also a credit for non-federal estate taxes, but that credit was phased out by the Economic Growth and Tax Relief Reconciliation Act of 2001.

Requirements for filing return and paying tax

For estates larger than the current federally exempted amount, any estate tax due is paid by the executor, other person responsible for administering the estate, or the person in possession of the decedent's property. That person is also responsible for filing a Form 706 return with the Internal Revenue Service (IRS). In addition, the form must be filed if the decedent's spouse wishes to claim any of the decedent's remaining estate/gift tax exemption.

The return must contain detailed information as to the valuations of the estate assets and the exemptions claimed, to ensure that the correct amount of tax is paid. The deadline for filing the Form 706 is 9 months from the date of the decedent's death. The payment may be extended, but not to exceed 12 months, but the return must be filed by the 9 month deadline.

Exemptions and tax rates

Year	Exclusion Amount	Max/Top tax rate
2001	$675,000	55%
2002	$1 million	50%
2003	$1 million	49%
2004	$1.5 million	48%
2005	$1.5 million	47%
2006	$2 million	46%
2007	$2 million	45%
2008	$2 million	45%
2009	$3.5 million	45%
2010	Repealed
2011	$5 million	35%
2012	$5.12 million	35%
2013	$5.25 million	40%

As noted above, a certain amount of each estate is exempted from taxation by the federal government. Below is a table of the amount of exemption by year an estate would expect. Estates above these amounts would be subject to estate tax, but only for the amount above the exemption.

For example, assume an estate of $3.5 million in 2006. There are two beneficiaries who will each receive equal shares of the estate. The maximum allowable credit is $2 million for that year, so the taxable value is therefore $1.5 million. Since it is 2006, the tax rate on that $1.5 million is 46%, so the total taxes paid would be $690,000. Each beneficiary will receive $1,000,000 of untaxed inheritance and $405,000 from the taxable portion of their inheritance for a total of $1,405,000. This means the estate would have paid a taxable rate of 19.7%.

As shown, the 2001 tax act would have repealed the estate tax for one year (2010) and would then have readjusted it in 2011 to the year 2002 exemption level with a 2001 top rate. However, on December 17, 2010, Congress passed the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010. Section 301 of the 2010 Act reinstates the federal estate tax. The new law sets the exemption at $5 million per person. A top tax rate of 35 percent is provided for the years 2011 and 2012.

On January 1, 2013, the American Taxpayer Relief Act of 2012 was passed which permanently establishes an exemption of $5 million (as 2011 basis with inflation adjustment) per person with a maximum tax rate of 40% for the year 2013 and beyond.

Non-residents

For estate tax purposes, the test is different in determining who is an non-resident alien (NRA), compared to the one for income tax purposes (the inquiry centers around the decedent's domicile). This is a subjective test that looks primarily at intent. The test considers factors such as the length of stay in the United States; frequency of travel, size, and cost of home in the United States; location of family; participation in community activities; participation in U.S. business and ownership of assets in the United States; and voting. A foreigner can be a U.S. resident for income tax purposes, but not be domiciled for estate tax purposes.

An NRA is subject to a different estate tax regime than a U.S. taxpayer. The estate tax is imposed only on the part of the gross NRA's estate that at the time of death is situated in the United States. These rules may be ameliorated by an estate tax treaty. The U.S. does not maintain as many estate tax treaties as income tax treaties, but there are estate tax treaties in place with many of the major European countries, Australia, and Japan.

U.S. real estate owned by the NRA through a foreign corporation is not included in an NRA's estate. The corporation must have a business purpose and activity, lest it be deemed a sham designed to avoid U.S. estate taxes.

Inheritance tax at the state level

Many U.S. states also impose their own estate or inheritance taxes (see Ohio estate tax for an example), and some, such as Kentucky, impose both. Some states "piggyback" on the federal estate tax law in regard to estates subject to tax (i.e., if the estate is exempt from federal taxation it is also exempt from state taxation, e.g. Pennsylvania, 72 P.S. Section 9111(r). Some states' estate taxes, however, operate independently of federal law, so it is possible for an estate to be subject to state tax while exempt from federal tax. In Kentucky, the inheritance tax operates separately from either the state or federal estate tax; the inheritance tax is imposed on beneficiaries and based on the amount received from the estate, with some close relatives exempt from this tax by statute.

Washington state

In 2005, the Washington estate tax law was challenged in a class action suit Hemphill, et al. v. State of Washington.

Tax mitigation

Estate tax rates and complexity have driven a vast array of support services to assist clients with a perceived eligibility for the estate tax to develop tax avoidance techniques. Many insurance companies maintain a network of life insurance agents, all providing financial planning services, guided towards providing death benefit that covers paying estate taxes. Many suggested techniques involve costly or overcomplicated products. Brokerage and financial planning firms, and charities, also use estate planning and estate tax avoidance as a marketing technique. Many law firms also specialize in estate planning, tax avoidance, and minimization of estate taxes.

Many techniques recommended by those selling products with high fees do not really avoid the estate tax. Instead they claim to provide a leveraged way to have liquidity to pay for the tax at the time of death. It is very important for those whose primary wealth is in a business they own, or real estate, or stocks, to seek professional legal advice. In one technique marketed by commissioned agents, an irrevocable life insurance trust is recommended, where the parents give their children funds to pay the premiums on life insurance on the parents.

Structured in this way, life insurance proceeds can be free of estate tax. However, if the parents have a very high net worth and the life insurance policy would be inadequate in size due to the limits in premiums, a charitable remainder trust may be recommended, but should be critically reviewed. The client, however, may lose access to the asset placed in the CRUT. Proponents of the estate tax, and lobbyists for high commission financial products, argue the tax should be maintained to encourage this form of charity.

Debate

Arguments in favor

Proponents of the estate tax argue that it serves to prevent the perpetuation of wealth, free of tax, in wealthy families and that it is necessary to a system of progressive taxation. Proponents point out that the estate tax affects only estates of considerable size (over $5 million USD, and $10 million USD for couples) and provides numerous credits (including the unified credit) that allow a significant portion of even large estates to escape taxation. Proponents note that abolishing the estate tax will result in tens of billions of dollars being lost annually from the federal budget.

Furthermore, supporters argue that many large fortunes do not represent taxed income or savings, that wealth is not being taxed but merely the transfer of that wealth, and that many large fortunes represent unrealized capital gains which (because of a step up in basis at the time of death) will never be taxed as capital gains under the federal income tax.

Proponents further argue that the estate tax serves to encourage charitable giving, one way in which individuals can avoid paying the tax. A 2004 report by the Congressional Budget Office found that eliminating the estate tax would reduce charitable giving by 6-12 percent.

Another argument in favor of the estate tax relates to comparative incentives. Proponents argue that the estate tax is a better source of revenue than the income tax, which is said to directly disincentivize work. While all taxes have this effect to a degree, some argue that the estate tax is less of a disincentive since it does not tax money that the earner spends, but merely that which he or she wishes to give away for non-charitable purposes. Moreover, some argue that allowing the rich to bequeath unlimited wealth on future generations will disincentivize hard work in those future generations. Winston Churchill argued that estate taxes are “a certain corrective against the development of a race of idle rich”. Research suggests that the more wealth that older people inherit, the more likely they are to leave the labor market.

Proponents of the estate tax tend to object to characterizations it operates as a double or triple taxation. They point out many of the earnings subject to estate tax were never taxed because they were "unrealized" gains. Others note double and triple taxation is common (through income, property, and sales taxes, for instance) or argue the estate tax should be seen as a single tax on the inheritors of large estates.

Supporters of the estate tax argue there is longstanding historical precedent for limiting inheritance, and note current generational transfers of wealth are greater than they have been historically. In ancient times, funeral rites for lords and chieftains involved significant wealth expenditure on sacrifices to religious deities, feasting, and ceremonies. The well-to-do were literally buried or burned along with most of their wealth. These traditions may have been imposed by religious edict but they served a real purpose, which was to prevent accumulation of great disparities of wealth, which, estate tax proponents suggest, tended to avoid destabilizing societies and prevented social imbalance, eventual revolution, or disruption of functioning economic systems.

Arguments against

To quote an Investor's Business Daily editorial, "People should not be punished because they work hard, become successful and want to pass on the fruits of their labor, or even their ancestors' labor, to their children. As has been said, families shouldn't be required to visit the undertaker and the tax collector on the same day.".

Free market critics of the estate tax also point out that many attempts at validating the estate tax assume the superiority of socialist/collectivist economic models. For example, proponents of the tax commonly argue that "excess wealth" should be taxed without offering a definition of what "excess wealth" could possibly mean and why it would be undesirable if procured through legal efforts. Such statements exhibit a predilection for collectivist principles that opponents of the estate tax have long opposed on moral grounds. The spending choices of wealthy individuals often provide more public benefit than the spending choices of governments (e.g. by supporting churches, hospitals and other charities; or by investing in risky ventures that create new capabilities).

Many countries have inheritance tax rates at or near zero^{[citation needed]}. The disparity between rates encourages wealthy individuals to relocate to avoid or minimize taxation. This moves the wealth -and all associated future tax revenue- outside the United States. As a result of transferring wealth abroad, the 'estimated' tax generation claimed by proponents of the estate tax will likely be far less than that claimed and will likely lower the future tax base within the United States.

The Tax Foundation, a think tank tied to various conservative groups, has published research claiming that the estate tax acts as a strong disincentive toward entrepreneurship. Their 1994 study found that the estate tax’s 55 percent rate at the time had roughly the same disincentive effect as doubling an entrepreneur’s top effective marginal income tax rate. The estate tax has also been found to impose a large compliance burden on the U.S. economy. Similar past economic studies from the same group have estimated the compliance costs of the federal estate tax to be roughly equal to the amount of revenue raised—nearly five times more costly per dollar of revenue than the federal income tax—making it one of the nation’s most inefficient revenue sources.

Another argument against the estate tax is that the tax obligation in itself can assume a disproportionate role in planning, possibly overshadowing more fundamental decisions about the underlying assets. In certain cases, this is claimed to create an undue burden. For example, pending estate taxes could become an artificial disincentive to further investment in an otherwise viable business – increasing the appeal of tax- or investment-reducing alternatives such as liquidation, downsizing, divestiture, or retirement. This could be especially true when an estate's value is about to surpass the exemption equivalent amount. Older individuals owning farms or small businesses, when weighing ongoing investment risks and marginal rates of return in light of tax factors, may see less value in maintaining these taxable enterprises. They may instead decide to reduce risk and preserve capital, by shifting resources, liquidating assets, and using tax avoidance techniques such as insurance policies, gift transfers, trusts, and tax free investments

The estate tax burdens farmers because agriculture involves the use of many capital assets, such as land and equipment, to generate the same amount of income that other types of businesses generate with fewer assets. Individuals, partnerships, and family corporations own 98 percent of the nation’s 2.2 million farms and ranches. The estate tax may force surviving family members to sell land, buildings, or equipment to keep their operation going. The National Farmers Union advocated relief for farmers by increasing the exemption per estate to $5 million.

The term "death tax"

The term "death tax" is a neologism used by policy makers and critics to describe the estate tax in a way that conveys additional meaning. The terms "death duties" and "inheritance taxes" are also sometimes used.

On July 1, 1862, the U.S. Congress enacted a "duty or tax" with respect to certain "legacies or distributive shares arising from personal property" passing, either by will or intestacy, from deceased persons. The modern U.S. estate tax was enacted on September 8, 1916 under section 201 of the Revenue Act of 1916. Section 201 used the term "estate tax." According to Professor Michael Graetz of Columbia Law School and professor emeritus at Yale Law School, opponents of the estate tax began calling it the "death tax" in the 1940s. The term "death tax" more directly refers back to the original use of "death duties" to address the fact that death itself triggers the tax or the transfer of assets on which the tax is assessed.

Many opponents of the estate tax refer to it as the "death tax" in their public discourse partly because a death must occur before any tax on the deceased's assets can be realized and also because the tax rate is determined by the value of the deceased's assets rather than the amount each inheritor receives. Neither the number of inheritors nor the size of each inheritor's portion factors into the calculations for rate of the Estate Tax.

Proponents of the tax say the term "death tax" is imprecise, and that the term has been used since the nineteenth century to refer to all the death duties applied to transfers at death: estate, inheritance, succession and otherwise. This also is how the phrase "death taxes" is used in the United States' Internal Revenue Code.

Political use of "death tax" as a synonym for "estate tax" was encouraged by Jack Faris of the National Federation of Independent Business during the Speakership of Newt Gingrich.

Well-known Republican pollster Frank Luntz wrote that the term "death tax" "kindled voter resentment in a way that 'inheritance tax' and 'estate tax' do not".

Linguist George Lakoff states that the term "death tax" is a deliberate and carefully calculated neologism used as a propaganda tactic to aid in efforts to repeal estate taxes. The use of "death tax" rather than "estate tax" in the wording of questions in the 2002 National Election Survey increased support for estate tax repeal by only a few percentage points.

Death elasticity

A few commentators have been concerned that changes in estate tax provides incentives to change the timing of death, a phenomenon termed "death elasticity." Stuart Mendenhall has warned that large discontinuities in the estate tax rates, as planned in 2010 and 2011, may provide incentives to hasten death (late 2010) or prolong life (late 2009) with large financial implications for the inheritors.

IRS audits

In July 2006, the IRS confirmed that it planned to cut the jobs of 157 of the agency’s 345 estate tax lawyers, plus 17 support personnel, by October 1, 2006. Kevin Brown, an IRS deputy commissioner, said that he had ordered the staff cuts because far fewer people were obliged to pay estate taxes than in the past.

Estate tax lawyers are the most productive tax law enforcement personnel at the IRS, according to Brown. For each hour they work, they find an average of $2,200 of taxes that people owe the government.

Related taxes

The federal government also imposes a gift tax, assessed in a manner similar to the estate tax. One purpose is to prevent a person from avoiding paying estate tax by giving away all his or her assets before death.

There are two levels of exemption from the gift tax. First, transfers of up to (as of 2013) $14,000 per (recipient) person per year are not subject to the tax. Individuals can make gifts up to this amount to each of as many people as they wish each year. In a marriage, a couple can pool their individual gift exemptions to make gifts worth up to $28,000 per (recipient) person per year without incurring any gift tax. Second, there is a lifetime credit on total gifts until a combined total of $5,250,000 (not covered by annual exclusions) has been given.

In many instances, an estate planning strategy is to give the maximum amount possible to as many people as possible to reduce the size of the estate, the effectiveness of which depends on the lifespan of the donor and the number of donees. (This also gives the donees immediate use of the assets, while the donor is alive to see them enjoy it.)

Furthermore, transfers (whether by bequest, gift, or inheritance) in excess of $1 million may be subject to a generation-skipping transfer tax if certain other criteria are met.

See also

• Inheritance tax
• Lyeth v. Hoey

Further reading

• Cost and Consequences of the Federal Estate Tax, A Joint Economic Committee Study, http://www.house.gov/jec/publications/109/05-01-06estatetax.pdf
• New International Survey Shows U.S. Death Tax Rates Among Highest, American Council for Capital Formation, August 2007, http://www.accf.org/media/dynamic/1/media_133.pdf
• Ian Shapiro and Michael J. Graetz, Death By A Thousand Cuts: The Fight Over Taxing Inherited Wealth, Princeton University Press (February, 2005), hardcover, 372 pages, ISBN 0-691-12293-8
• William H. Gates, Sr. and Chuck Collins, with foreword by former Federal Reserve Chairman Paul Volcker, Wealth and Our Commonwealth: Why America Should Tax Accumulated Fortunes, Beacon Press (2003)
• The Roosevelts Would Be Appalled, A history of the estate tax shows just how far both political parties are from the beliefs of Teddy and FDR, http://american.com/archive/2010/december/the-roosevelts-would-be-appalled
• Brett T. Bradford. 2010. "The Estate Planning Perils of 2010 and Beyond" The Selected Works of Brett T. Bradford, http://works.bepress.com/brett_bradford/1

External links

• The origin of the Federal estate tax
• nodeathtax.org, American Family Business Institute, a trade association of family business owners and farmers working for repeal of the Estate Tax.
• [9], ASSSET, a trade association of private business owners, farmers and ranchers working for relief of the Estate Tax.
• IRS publication 950, Introduction to Estate and Gift Taxes, revised October 2011.
• "Estate Tax Pyramid Scheme", a June 2006 article by former US Secretary of Labor Robert Bernard Reich arguing for the estate tax.
• "Death and taxes 2010" A visual guide to where your federal tax dollars (Full resolution poster)
• Deathtax.com an anti-inheritance tax campaign by a Seattle family-owned newspaper.
• Gross Estate and Net Estate Tax on Farms and Businesses in 2004, from the Tax Policy Center website.
• ...Ads exaggerate what the tax costs farmers, small businesses..., a June 2005 article from FactCheck
• Death tax deception Article from Dollars & Sense magazine.
• Sterling Harwood, "Is Inheritance Immoral?" in Louis P. Pojman, Political Philosophy (McGraw Hill, 2002). www.sterlingharwood.com.
• David Runciman, London Review of Books, 2 June 2005, "Tax Breaks for Rich Murderers"
• Wiki Legal Comment, Night of the Living Dead: Why Death Tax Won’t Stay Dead, Wiki Legal Journal This article is part of a study to determine if a wiki community can produce high quality legal research, November 18, 2006 (this comment explores the various proposals Congress has considered with a special emphasis on the interaction of estate tax on state revenue and philanthropy.).
• A program at mystatewill.com gives a quick calculation of the federal estate tax.
• [10], Estate Tax Simplification Idea for 2011–2012