- Estate Tax in 117th Congress
- H.R.3178 – To amend the Internal Revenue Code of 1986 to reduce the rate of tax on estates, gifts, and generation-skipping transfers. Rep. Arrington, Jodey C. [R-TX-19]
- S.1627 – A bill to amend the Internal Revenue Code of 1986 to reduce the rate of tax on estates, gifts, and generation-skipping transfers. Sen. Cotton, Tom [R-AR]
Already this year has seen a whirlwind of activity from both sides of the isle and from the President o the United States himself. Here at The Policy and Taxation Group we strive daily to create momentum to see meaningful and lasting policy change.
Highlights of recently enacted Tax Reform Bill (HR1 “Tax Cuts and Jobs Act of 2017”)
- Doubled the estate, GST and gift tax individual lifetime exemption from $5.6 million to $11.2 million, and for a couple, $22.4 million; it is also indexed for inflation; for estates of decedents dying and gifts made after December 31, 2017, and before January 1, 2026.
- Retains seven individual income tax brackets, but at reduced rate, the highest rate (37%) begins at a taxable income threshold of $600,000 for couples who are married filing jointly, (MFJ) and $500,000 for single taxpayers, including a top marginal rate of 37 percent – though the rates sunset at the end of 2025.
- Allows 529 plans to be used on a limited basis for private elementary and secondary education, in addition to its existing use for higher education.
- Retains the itemized deduction for medical expenses and lowers the floor to 7.5% of AGI (from 10%) in 2017 and 2018.
- Repeals miscellaneous itemized deductions that were subject to the 2% floor.
- Retains the Alternative Minimum Tax (AMT), though increases the exemption to $109,400 and raises the phaseout threshold to $1 million for joint filers.
- Increases the standard deduction to $12,000 for single filers, $18,000 for heads of household, and $24,000 for joint filers – though this also sunsets in 2025;
- Eliminates many credits and deductions with the notable exceptions of deductions for charitable contributions, mortgage interest (lowered to a cap of $750,000 of mortgage debt), and state and local taxes (lowered to a cap of $10,000 for state and local income and property taxes);
- Increases the child tax credit to $2,000 ($1,400 – indexed to inflation – would be refundable) through 2025.
- Eliminates the Affordable Care Act’s individual mandate penalty
Bipartisan Repeal Legislation Introduced in 115th Congress
- On January 24, 2017, Rep. Kristi Noem (R-SD) and lead co-sponsor Rep. Sanford Bishop (D-GA) introduced the Death Tax Repeal Act of 2017 (H.R. 631) in the House of Representatives that would fully repeal the estate tax in the 115th Congress.
- On October 4, 2017; Treasury issues a report which WITHDRAWS Proposed Section 2704 Regulations!
As Treasury notes, “the regulations would have made it difficult and costly for a family to transfer their businesses to the next generation.
Bill to Block Section 2704 Regulations
- On September 21, 2016, Rep. Warren Davidson (R-OH) introduced legislation in the House to block IRS estate tax regulations on valuation discounts.
The proposed regulations (REG-163113-02), introduced in August, would limit the use of valuation discounts by family-owned businesses. These proposed rules would effectively increase estate and gift taxes on businesses by eliminating discounts for lack of control and lack of marketability. Given that “non-family entities” will still be able to make use of these valuation discounts, these proposed rules are targeted discrimination aimed at family-businesses by creating two distinct ways in which family and non-family entities are valued.
- On August 2, 2016, IRS Proposes new Section 2704 Regulations
Spending Bill Provisions to Federal Gift Tax
- On December 18, 2015, Congressional leaders announced that an agreement had been reached to pass a $1.15 trillion deal on spending and tax legislation that would avoid a government shutdown and fund the federal government through October 2016.
This legislation contains a series of tax extenders which include a provision to the federal gift tax. Accordingly, the gift tax will not apply to contributions to certain exempt organizations. The provision treats transfers to 501(c)4, (c)5, and (c)6 organizations of the tax code as exempt from the gift tax. The provision will apply to transfers made after the date of enactment, December 18, 2015.
- On April 16, 2015, the U.S. House of Representatives held a rare floor vote on stand-alone estate tax repeal legislation. The Death Tax Repeal Act of 2015 (HR 1105), sponsored by Reps. Kevin Brady (R-TX) and Sanford Bishop (D-GA) passed the House by a bipartisan vote of 240-179, including 7 Democrats. In addition to Rep. Bishop, Democratic support included Reps. Brad Ashford (NE), Rep. Jim Costa (CA), Rep. Henry Cuellar (TX), Rep. Collin Peterson (MN), Rep. Dutch Ruppersberger (MD) and Rep. Kyrsten Sinema (AZ).
First House Repeal Vote in a Decade
This marked the first vote on such legislation since April 2005, finally giving the estate tax repeal movement a glimpse of where support lies for repeal in the House. The House Ways and Means Committee released this statement ahead of the vote, noting:
“The death tax hurts family businesses and farms. Death should not be a taxable event. Though it represents just a tiny fraction of federal revenue, the impact on a family can be enormous. The death tax can force a family to sell off parts of a business or farm, lay off workers, or shutter a business entirely. Assets that can trigger the death tax include land, property, and equipment. And a death-tax liability is often greater than a family business’s liquid assets. In fact, the death tax is one of the biggest reasons that family businesses have to close up shop.”
After passing the House of Representatives, the Death Tax Repeal Act of 2015 was received in the U.S. Senate were it is accompanied by identical legislation (S.860) introduced by Sen. John Thune (R-SD) which has been referred to Senate Committee on Finance.On March 24, 2013, the Senate narrowly rejected an amendment offered by Senators John Thune (R-SD) and Roy Blunt (R-MO) which would have allowed for repeal of the estate tax by a vote of 46-53. All Republicans except Sen. Susan Collins (R-ME) voted YES and all Democrats present except Sens. Max Baucus (D-MT) and Joe Manchin (D-WV) voted NO. The Senate adopted another estate tax amendment offered by Senator Mark Warner (D-VA), the purpose of which was described as “to repeal or reduce the estate tax, but only if done in a fiscally responsible way”. The Warner amendment was approved overwhelmingly by a vote of 80-19, with all Republicans and 35 Democrats voting in favor.
FY 2014 Budget Resolution
In order to understand the meaning of the Warner amendment, it is important to recognize how the two amendments differ. Both amendments would have enabled the Senate to enact legislation providing estate tax relief under its budget rules provided the effort was accomplished in a deficit-neutral manner over both 5-year and 10-year time horizons.
However, the Thune amendment would have allowed the Senate to do so without raising additional revenue (meaning repeal could be paid for by cutting spending), while the Warner amendment only stipulated relief must be achieved in a “fiscally responsible way”, which could mean offsetting estate tax relief with other tax increases. The other key difference is that the Thune amendment is focused exclusively on “permanently eliminat[ing] the Federal estate tax”, while the Warner amendment calls for potential “repeal or reduction of the estate tax”.
- On the House side, the House Budget Committee favorably reported Rep. Paul Ryan’s (R-WI) budget proposal on March 14, 2013, on a party-line vote of 22-17. The budget is targeted at balancing the federal budget within 10 years through a series of tax, entitlement, and spending reforms. The budget passed the House on March 21 by a vote of 221-207 (text, summary tables, explanation). While the budget did not specifically call for estate tax repeal or further relief, the Ways and Means Committee was allowed broad parameters for consideration of tax reform which could potentially include such reforms.
“Fiscal Cliff” Deal
After a drawn-out public debate, the American Taxpayer Relief Act of 2012, or ATRA (H.R. 8) became P.L. 112-240 on January 2, 2013. The final House vote was 257-167, with 85 Republicans and 172 Democrats supporting the bill and 151 Republicans and 16 Democrats against. H.R. 8 passed the Senate by an overwhelming vote of 89-8. The significant permanent changes made to the tax code with regard to estate, gift, and generation-skipping transfer (GST) taxes include:
- 40% maximum rate for estate, gift and GST taxes
- $5.12 million unified exemption indexed for inflation (adjusted to approximately $5.25 million in 2013)
- Stepped-up basis
- State estate tax deductibility
- Spousal portability
Also, technical provisions of the 2001 Tax Act relating to the allocation of GST exemption, the inclusion ratio, conservation easements and the extension of time to pay estate taxes under section 6166 would be made permanent. ATRA did not contain any of the harmful estate tax revenue raisers PATG opposes, such as the elimination of valuation discounts or restrictions on legitimate planning techniques (Enacted January 2, 2013).
Other Recent Votes
Senate Majority Leader Harry Reid (D-NV) S. 3412. Would extend many of the Bush-era tax cuts for the middle class and lower-income taxpayers. After initially containing 2009 estate tax parameters (45 percent, $3.5 million exemption), that language was stripped, which would revert the estate tax to 2001 levels (55 percent, $1 million exemption). Passed Senate 51-48 (July 25, 2012).
House Ways and Means Committee Chairman Dave Camp (R-MI) H.R. 8.Would extend all Bush-era tax rates (in addition to the 2010 estate tax parameters – 35 percent, $5 million exemption). Also would set forth guidelines for tax reform. Passed House 256-171 (August 1, 2012).
Other Recent Proposals
- Representative Kevin Brady (R-TX) H.R. 1259. Would repeal federal estate and gift taxes. Introduced March 30, 2011.
- Representative Diane Black (R-TN) H.R. 6439. Would allow farmers, ranchers and forest owners to: 1) Value their land and their timber at current “use” value, rather than “fair” market value, as long as they keep the land working for 10 years; and 2) Remove a penalty to forest owners who harvest their timber within 10 years. Introduced September 19, 2012.
- Senator John Thune (R-SD) S. 2242. Would repeal federal estate and gift taxes. Introduced March 28, 2012.
- Senator Claire McCaskill (D-MO) S. 3440. Would extend through 2013 (for one year) the estate, gift, and generation-skipping transfer provisions of the 35 percent/$5 million exemption estate tax parameters enacted in 2010. Introduced July 25, 2012.
- The FY 2010 Budget Resolution (Conference Report to Accompany S. Con. Res. 13) passed the House 233-193 and the Senate 53-43 on April 29, 2009. The budget assumes a freeze of the estate tax at the current 45% rate and $3.5 million exemption. Passed House 233-193 (April 29, 2009); passed Senate 53-43 (April 29, 2009).
- The Lincoln/Kyl Compromise, offered as an amendment (SA 873) to the Senate Budget Resolution (S. Con. Res. 13), was agreed to by a vote of 51-48 on April 2, 2009, and later dropped in conference committee. All 41 Republicans and 10 Democrats voted YES, including Senators Blanche Lincoln (AR), Mark Pryor (AR), Bill Nelson (FL), Evan Bayh (IN), Mary Landrieu (LA), Max Baucus (MT), Jon Tester (MT), Ben Nelson (NE), Maria Cantwell (WA) and Patty Murray (WA). The amendment would have created a deficit-neutral reserve fund to make the estate tax permanent by lowering the rate to 35%, increasing the exemption to $5 million indexed for inflation, reunifying estate and gift taxes and providing for spousal portability. The proposal would not have included deductibility for state estate taxes. PATG supported this amendment. Passed Senate 51-48 (April 2, 2009).
- The Durbin Amendment (SA 974), offered to the Senate Budget Resolution (S. Con. Res. 13) immediately following the Lincoln/Kyl Compromise, was agreed to by a vote of 56-43 and later dropped in conference committee. All 41 Republicans and 2 Democrats voted NO, including Senators Bill Nelson (FL) and Mary Landrieu (LA). The amendment would have raised a point of order against any estate tax relief better than a freeze of current law unless an equal amount of tax relief was also provided for individuals earning less than $100,000 per year.
Other Past Proposals
- Representative John Salazar (D-CO) H.R. 173. Would exclude from the gross estate of a decedent the value of farmland used by an heir for farming purposes.Introduced January 6, 2009.
- Representative Mac Thornberry (R-TX) H.R. 205. Would repeal federal estate and gift taxes.Introduced January 6, 2009.
- Representative Earl Pomeroy (D-ND) H.R. 436. Would make the estate tax permanent by freezing the rate at 45% and exemption at $3.5 million, apply a 5% surtax to estates over $10 million and disallow valuation discounts for certain family-owned entities.Introduced January 9, 2009.
- Representative Harry Mitchell (D-AZ) H.R. 498. Would reduce the estate tax rate to 15% for estates under $25 million and 30% for estates over $25 million, phase in a $5 million exemption indexed for inflation, reunify estate and gift taxes, provide for spousal portability and eliminate the state estate tax deduction.Introduced January 14, 2009.
- Representative Jim McDermott (D-WA) H.R. 2023. Would make the estate tax rate permanent at 45% for estates up to $5 million, 50% for estates over $5 million and 55% for estates over $10 million and reduce the exemption to $2 million indexed for inflation. Introduced April 22, 2009.
- Representative Kevin Brady (R-TX) H.R. 3463. Would repeal federal estate and gift taxes. Introduced July 31, 2009.
- Representative Mike Thompson (D-CA) H.R. 3524. Introduced with Rep. John Salazar (D-CO). Would exclude certain farmland, which is in continuous use for agriculture or horticulture, from the value of estates. Introduced July 31, 2009.
- Representative Shelley Berkley (D-NV) H.R. 3905. Introduced with Reps. Kevin Brady (R-TX), Artur Davis (D-AL) and Devin Nunes (R-CA). Would, over ten years, permanently lower the estate tax rate to 35%, increase the exemption to $5 million indexed for inflation and eliminate the state estate tax deduction. PATG supports this legislation. Introduced October 22. 2009.
- Senator Max Baucus (D-MT) S. 722. Would make the estate tax permanent at a 45% rate and $3.5 million exemption indexed for inflation, reunify estate, gift, and generation-skipping taxes, provide spousal portability, improve special use valuations and retain stepped-up basis and deductibility of state estate taxes. Introduced March 22, 2009.