In recent years, both President-Elect Trump and the Republicans have called for a repeal of Federal estate taxes, and with the Republican clean sweep in Washington, all eyes are on potential legislation to eliminate the estate and gift tax in 2017.
In today’s guest post, from estate planning gurus Jonathan Blattmachr and Marty Shenkman, we look at the prospects for estate tax repeal, and what it could actually mean for both the future of estate planning, and the near-term strategies that clients might want to engage in… or not…
Because the reality is that total repeal is not entirely certain – at least, not permanent repeal. The lack of 60 Republican votes in the Senate means legislation to totally repeal the estate tax could be filibustered, and while estate tax repeal could be passed as budget reconciliation legislation with a simple majority, that’s only possible if it includes another infamous 10-year sunset provision thanks to the so-called Byrd rule. In addition, even if the estate tax is repealed, it’s not clear whether the gift tax would also be repealed, nor whether the systems might at least be partially replaced with other tax exposure at death – for instance, either a requirement to report all capital gains at death, or a renewal of the “carryover cost basis” rules that were temporarily applicable in 2010. And all of these changes could also end out on the cutting room floor, a bargaining chip the Republicans concede in exchange for getting some other legislation done.
Given these dynamics, the world of estate planning has a dark cloud of uncertainty hovering over it. Actual repeal could dramatically reform the focus of estate planning, eliminating the focus on estate tax planning and shifting it instead towards asset protection planning (and to a lesser extent, income tax planning). However, the potential for repeal with a sunset provision limits the ability to fully count on estate tax repeal from a planning perspective, which means it may still be desirable to shift assets out of the estate, “just in case”. On the other hand, if there is no carryover cost basis (and step-up in basis remains), then it may be especially damaging to shift assets out of the estate, rather than retaining control to enjoy a step-up at basis in death.
Which ultimately means that many popular estate planning strategies will remain in place, at least for now, and especially for those just trying to manage estate tax exposure given the recently proposed Section 2704 Treasury Regulations that would drastically curtail family limited partnership discounts. But realistically, perhaps the most likely outcome will simply be that a lot of substantial estate planning grinds to a halt for the next 3-6 months, until it becomes clearer whether or how much of a focus the new Republican administration will really take regarding estate tax repeal, or not.