By John J. Scroggin, AEP, J.D., LL.M.

When the Economic Growth and Tax Relief Reconciliation Act of 2001 (“EGTRRA”) was passed, most estate planners (and probably most Republicans) anticipated that by 2011 there would either be an elimination of the federal estate tax or the enactment of permanent transfer tax legislation that would create permanently higher exemptions and lower rates than those under the pre-EGTRRA tax laws.

It is increasingly possible that neither of these alternatives is going to occur. First, it appears increasingly likely that the Democrats will gain control of the House of Representatives in the 2006 mid-term elections. The House Democratic leadership has made it clear that they are not open to the higher federal estate tax exemptions and lower rates which have been proposed by the Republicans. Second, even if the Democrats do not gain control of the House of Representatives in 2006, they retain filibuster control in the Senate, with the ability to stop any federal transfer tax legislation which they deem unacceptable.

While the Republicans have had numerous opportunities to enact permanent legislation, they have often chosen political postures (e.g., elimination of the estate tax) instead of compromise legislation that could have adopted permanently higher federal estate tax exemptions and lower rates. Now it appears increasingly possible that the Democrats may decide to delay or prevent any permanent legislation, with the idea that the higher exemptions accorded in 2006 through 2009 and the elimination of estate taxes for one year in 2010 are an acceptable loss of tax revenue for the return of a one million dollar federal estate tax exemption and higher transfer tax rates in 2011.

In fairness to opponents of an elimination of the estate tax, both the impending budget impact of baby boomers drawing down social security benefits and the need to fix the alternative minimum tax may leave little budgetary room for permanent estate tax legislation. Moreover, there is certainly some merit to Warren Buffett’s argument that our society would be adversely impacted by the total elimination of the estate tax, because it could create a class of perpetually wealthy Americans.

The EGTRRA changes have both vastly reduced the number of estates subject to an federal estate tax and caused a significant reduction in the federal estate taxes in the remaining taxable estates (albeit while causing a counter-increase in state estate taxes). By one estimate, less then one third of one percent of all estates will be subject to a federal estate tax from 2006-2009. However, without the adoption of permanent legislation by the end of 2010, on January 1, 2011, the payment of federal estate taxes will skyrocket.

In 2001, the estate exemption was $675,000. At an annual growth rate of just over 4%, the 2001 exemption of $675,000 will equal the value of the $1.0 million exemption in 2011. Because the estate exemption is not adjusted for inflation, each year after 2011 the effective value of the exemption decreases.

For planners, all of this means we could be facing a horribly confusing planning environment for the next four years. Let me provide a few examples.

Treatment of Insurance

Many of our clients have estates in the range of $1,000,000 to $2,000,000, including life insurance. In many cases planners have told married couples that with a federal estate tax exemption of $2,000,000 each ($4,000,000 collectively), it was unnecessary to place their life insurance into an irrevocable life insurance trust to move it outside their federal taxable estate, because the individual exemption and/or the joint exemption of the married couple was more than sufficient to create a non-taxable estate. However, if, in 2011, we return to the 2001 rules (with the return of a $1,000,000 federal estate tax exemption), the inclusion of the life insurance in the federal estate tax computation may create a taxable estate to the client.

If a client is going to transfer an existing life insurance policy into a life insurance trust, the three-year look back provisions of Internal Revenue Code Section 2035(a) means that the transfer needs to occur at least three years prior to the beginning of 2011 to effectively exclude the life insurance from the insured’s taxable estate. Thus, by the end of 2007, clients who do not currently have a taxable estate (but who may have a taxable estate in 2011) will be forced to consider the use of life insurance trusts or the transfer of insurance policies to heirs.

State Death Taxes

As a result of the elimination of the state estate tax credit (the so-called “sponge tax”) in 2005, roughly half of the states have state estate taxes which are de-coupled from the computation of the federal estate tax. The return in 2011 of the state estate tax credit is going to add some interesting confusion. First, in “decoupled” states, there will be confusion because state death taxes will not relate directly to the federal estate tax credit and tax computations. Second, the other half of the states which have not enacted a new state death tax (and which effectively lost any revenue from the sponge tax in 2005), will suddenly see an unexpected return of previously lost revenue.

Interestingly, the return of the state estate tax credit will serve as a partial offset of the increased federal revenue from the estate tax. Without any state legislation, this change will effectively return dollars to the states which coupled their state estate tax to the federal credit. For example, according to www.FloridaTaxWatch.org, in 2006 Florida lost over $1.1 billion in revenue from the elimination of the sponge tax. All that revenue could now return to the state as an unexpected revenue windfall.

It may be that a number of the states which have decoupled themselves from the federal estate tax rules will reattach themselves to the federal code, if for no other reason then so they can effectively piggy-back off federal estate tax audits. However, there may be some trepidation that Congress may once again fiddle with the exemptions and the state death tax credit. Those states which are concerned about that loss of revenue may decide it is better to adopt either an estate tax system independent of the federal tax system or one which is tied to the federal tax system, but with a decoupled state estate tax exemption.

Family Businesses

Perhaps one of the most complicated pieces of federal estate tax legislation ever enacted, the family business deduction (code section 2057) will be restored in 2011, albeit at a total benefit of only $300,000 per decedent. Nevertheless, planners and drafters of documents will have to anticipate the possibility of the benefit of the business deduction and the passage of a family business to family members. The planning will need to include planning for the ambiguity of section 2057 and the potential recapture of the tax benefits of the deduction.

Higher Tax Rates

The federal estate tax rate in 2001 capped out at 55% for estates above $3,000,000, but with an additional 5% surtax on estates over $10,000,000. These higher tax rates will return in 2011 creating new and greater liquidity problems for many clients. Many of the previous estate tax reduction techniques which had been moth balled for a majority of our clients will be restored.

Given the possibility not only that the top federal estate tax rate could return to 60%, planners should evaluate whether or not to purposely create an estate tax at the death of the first spouse of a married couple during the years from 2006-2009 when the tax rates will be lower.

Having assets taxable in the estate of the first-to-die spouse could potentially not only reduce the top tax bracket, but it would also remove future appreciation on those assets for being taxed at the higher rate for deaths after 2010. The off-set to this calculation would be the long term cost of the prepayment of the estate tax. If both couples are elderly and in relatively poor health, that concern may be minimized.

For example, assume a married couple has a combined estate of $15 million, with each spouse having $7.5 million in their estate. Both clients are in their eighties and their assets grow at 5% per year. One of the clients dies in 2009, while the other dies in 2011. Purposely paying an estate tax in 2009 on the entire estate of the first to die spouse could save the family over $500,000.

Federal Tax Liquidity

Given the increasing likelihood of a return to lower exemptions and higher tax rates, clients with illiquid, potentially taxable estates should begin immediately to consider increasing their current life insurance coverage. In particular, clients with a history of health problems or family health problems should begin now to consider how the potential new higher estate taxes in 2011 will affect the liquidity of their estate and the source of payment for the new higher taxes. Consider the tragedy of a married client with an illiquid estate who assumes the presence of higher exemptions and lower tax rates, only to die while uninsurable after 2011.

Clients who decide to buy additional insurance should consider placing the insurance in an irrevocable life insurance trust to keep it outside their taxable estate. Because of the current legislative uncertainty, it may be appropriate to adopt contingency formulas in the insurance trust to provide for how the passage of assets will occur in various scenarios. For example, if insurance is held in an irrevocable life insurance trust, but is unnecessary to provide estate tax or liquidity to the estate, a formula provision in the insurance trust could pass those assets on to the donor’s favorite charity. Flexibility should also include the use of limited powers of appointment in virtually every insurance trust.

Shifting Fundamental Goals

With so few estates being taxable, planners have noted that tax planning is no longer driving most of the estate planning decisions of most clients. Unfortunately, the combination of return of lower exemptions and higher tax rates and the accumulation of assets by clients since 2001 will mean that clients will be increasingly driven back to the necessity of planning their estate to minimize the imposition of a confiscatory federal estate tax.

IRS Estate and Gift Staff

In July of this year the Internal Revenue Service announced that they were laying off roughly half of the attorneys (157 out of 345) who worked in the Estate and Gift Tax Division of the Internal Revenue Service. The primary reason was that the number of taxable estates was going down dramatically and the need for auditors was being concomitantly reduced.

However, with the return of the 2001 rules and especially given the expected significant increase in the number of taxable estates (e.g., see the above appreciation impact on $675,000 from 2001), it should be expected that the IRS will be back in a hiring and auditing mode, particularly when the top tax bracket could equal 60%. However, how long will it take for them to gear up and train so many new hires?

Try to Die in 2010?

There is one last wrinkle that compounds the confusion in planning: Roughly 2.3 million Americans die each year. For those Americans who die in 2010, they and their heirs will have to deal with some unique opportunities and traps. For example:

• In 2010 there will be no federal estate tax. What happens if a wealthy disabled parent is lingering too long as they near 2011? Be careful who holds that medical power of attorney.
• In 2010, the generation skipping tax is eliminated. For the appropriate client, it would be possible to create a dynasty trust without regard to the limited generation-skipping tax exemptions and rules that existed before 2010.
• Only a partial step-up in basis will be permitted in 2010. Particularly in blended families and dysfunctional families, there are bound to be conflicts over the allocation of the partial step-up permitted by the Act.

Unfortunately, we as drafters will have to anticipate how to deal with one year’s worth of no estate tax and a partial step-up in our planning documents.

Start getting prepared for the confusion of a quickly changing landscape: three years of high exemptions and lower rates, one year of no estate tax (and a loss of step-up) and then a return to higher tax rates and lower exemptions. Virtually every single estate plan will have to be reexamined to account for not only the return of the pre-EGTRRA rules, but, perhaps more importantly, the possibility that the client dies in 2010.

Who benefits from a return to 2001? Four groups will reap the greatest rewards: The Insurance industry should see substantial increases in life insurance sales to fund increased estate taxes. Estate attorneys will be covered up with work. CPAs will have more tax returns to file. And politicians will see increased contributions to their campaigns from people on both sides of the debate. And the client/taxpayer? He’ll be paying the cost of all of it.

John J. Scroggin, AEP, J.D., LL.M. is a graduate of the University of Florida and is a nationally recognized speaker and author of over 300 published articles, outlines and books.