The estate tax landscape has a ‘permanent’ playing field now; the current Federal legislation exists in such a way that the rules will remain consistent for the foreseeable future. Back in 2010, estate tax was in a period of uncertainty due to the expiration of the Bush-era tax rules. Then the American Taxpayer Relief Act of 2012 created permanent estate and gift transfer tax laws, thereby providing a standard, predictable set of rules for estate planning.
The American Taxpayer Relief Act made the federal estate tax exemption permanent at $5 million, indexed for inflation, which now stands at $5,340,000 for individuals who pass in 2014. A federally-taxable estate is one above the current exemption where the decedent’s gross assets exceed allowable deductions, including those assets transferring to the surviving spouse. In other words, a decedent’s estate would not pay estate tax (40%) until the estate’s net assets exceeded $5,340,000.
Almost all of us have been impacted in one way or another by the current recession. Even prosperous and successful investors and business owners have seen the value of their investments and business interests dwindle in the face of the “Great Recession.” Although it appears the dark clouds of economic strife have slowly begun to clear on the horizon, the current economy still presents a silver lining opportunity for those individuals and businesses contemplating a transfer of family business holdings, real estate or other investments to the next generation.
The New Year commencing January 1, 2010 brought the repeal of Federal estate and generation skipping transfer taxes, while retaining transfers on gifts with the highest gift tax rate of 35%. This dawn of the post estate tax era, which was created through legislation enacted in 2001, led some to conclude the best planning for certain taxpayers was to pass on during the one year window of 2010 and escape estate taxation. Absent corrective legislation, estate and generation skipping transfer taxes will emerge again beginning in the 2011 year at pre-2001 tax rates and exemption levels.
While planning for death is a difficult subject for all, only the most abject avoiders of tax would seek death as a way out of transfer taxation. While the Congress has been focused on many other priorities, most observers have believed the estate and generation skipping transfer tax laws in effect during 2009 would be extended. Yesterday, Senate Finance Committee Chairman Max Baucus and Treasury Secretary Tim Geithner indicated support for legislation that would freeze 2009 rates and exemptions into the year 2010 and beyond, retroactive to January 1, 2010.
Much has been written in the general press concerning the fate of the “Bush Tax Cuts” from legislation expiring during the current calendar year; 2010 is the last year for reductions in income tax rates for all taxpayers.
There is very little legislative time remaining before the mid-term elections this coming November. While the Congress has indicated extensions of certain Bush-era tax rate cuts will continue for the majority of American taxpayers, there is much squabbling over continuing of rate reductions for those individuals earning $200,000 and up and those joint return filers earning over $250,000. Democrats are generally for repeal of tax rate reductions for those aforementioned upper income earners. Republicans are generally in favor of continuation of all Bush-era tax rate reductions. Recent defections by certain Senate Democrats suggest that all tax rates cuts may be extended for a one-year period.