Debate on death and taxes heats up as billionaires fall

The question of death and taxes has risen to the fore in Washington as the demise of prominent billionaires has underscored a fluke which allows big estates to escape taxes, but only for this year.

Highlighting the conundrum has been the death of wealthy Americans including oil tycoon Dan Duncan and New York Yankees baseball owner George Steinbrenner, who can pass on their fortunes to heirs with no taxes. Duncan's fortune was estimated at nine billion dollars and Steinbrenner's at 1.1 billion by Forbes magazine.

If they had died in 2009 or 2011, their estates would have paid huge amounts of taxes to the US Treasury. The heirs avoided the tax man because a law enacted in 2001 under president George W. Bush phased out the estate tax entirely in 2010.

But the law expires in 2011, putting the tax back into effect at 2001 levels, with rates up to 55 percent.

Lawmakers and others claim it is folly for the government to allow such dramatic changes in the inheritance tax depending on the year of death, and are pressing for quick reform.

Some activists say the estate tax is progressive because it distributes wealth from the richest; but critics deride it as a "death tax" and claim it hurts farms and family businesses when an owner dies.

Senator Bernie Sanders called on fellow lawmakers to restore the tax quickly, while offering a compromise with an exemption at 2009 levels of 3.5 million dollars and with extra protections for family farms.

"For the first time since 1916, the heirs to multimillion and billion-dollar fortunes are able to receive their entire inheritance free of federal taxes, costing at least 14.8 billion dollars in lost revenue in 2010 alone," Sanders said in a letter to fellow senators.

"At a time when we have a record-breaking 13 trillion dollar national debt and an unsustainable federal deficit, people who inherit multimillion and billion dollar estates must pay their share in estate taxes."

Some wealthy Americans have been supporting a new estate tax, even if it may cost them a hefty sum.

A group of millionaires and heirs to major fortunes joined a call in July by United for a Fair Economy, a group fighting economic inequality, for a new estate tax.

Among those joining the call were hedge fund manager Julian Robertson and Abigail Disney, grandniece of Walt Disney.

Disney said her family amassed its fortune "not in spite of, but because of the American system of taxation" and said the country needs "reliable and safe roads" and "functioning legal systems" funded by tax dollars.

But others want to bury the estate tax permanently, saying it often destroys businesses and farms.

"The death tax is an unfair, immoral double tax on property and assets that folks have already paid taxes on throughout their lives," said Senator Jim DeMint, who is proposing a permanent repeal.

DeMint said that by doing nothing, President Barack Obama and his Democratic Party allies are effectively putting the old estate tax back into effect, which has rates of 55 percent for amounts above one million dollars.

Some argue that ending the estate tax would put a dent in charitable contributions and bequests by reducing the tax incentive for giving.

Bob Williams, a senior fellow at the Tax Policy Center of the Brookings Institution and Urban Institute said that in 2009, when estates faced a 45 percent tax rate, "giving away a dollar cost only 55 cents after taxes" but that "this year, with no estate tax and thus no tax savings, that cost nearly doubled to a full dollar."

Because of the circumstances, both sides in the debate have an incentive to reach a compromise. But one key question is whether Congress would seek to impose any tax retroactively that would affect the estates of Duncan, Steinbrenner and others who died in 2010.

Garrett Spangler, a lawyer specializing in estate planning in Philadelphia, said the uncertainty has made it hard for some to decide on bequests and other issues.

"It has put people in a holding pattern," he said. "A lot of planners are unsure what the future holds, so we are not drafting documents that are too specific because we don't know what the law will be next year."

Spangler said that more than halfway through 2010, Congress is unlikely pass a retroactive measure that could create considerable practical problems and legal challenges.

"It's going to cause more problems the later they do it," Spangler said.

"As each day goes by it becomes increasingly less likely there would be a retroactive tax."

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