Recently in Estate Taxes Category

States Lowering Estate Taxes to Lure Retirees

November 10, 2014,

It's not uncommon to turn on the television and see an advertisement for a state that is enticing visitors to vacation or move there permanently. However, more and more states across the nation are also trying to advertise that they are a great place to die. In 2015, four states are increasing their state-level estate tax exemption, reducing or eliminating altogether the amount of state estate tax that heirs will have to pay.

States Lowering Estate Taxes

As of January 1 next year, Tennessee's estate tax exemption will jump to $5 million from $2 million this year. In addition, Maryland's raised its estate tax exemption level from $1 million this year to $1.5 million next year. Minnesota is increasing to $1.5 million from $1.2 million, and in April 2015, New York's exemption level will rise from $2.062 million to $3.125 million.

And that is not all - in 2016, Tennessee is eliminating its state-level estate taxes. Maryland and New York plan on continuing to increase their exemption levels through 2019, when they will match the federal estate tax exemption level. Minnesota plans on increasing its exemption for state estate taxes by $200,000 every year until it reaches $2 million in 2018.

Reasons Behind the Shift

Legislators in states that have enacted a state-level estate tax are concerned that wealthy retirees will simply move to another state to avoid the taxes, depriving the state of income taxes now. Taxes are the most common reason why retirees move from one state to another, and it is not hard to understand why that is the case.

Hawaii and Delaware have state-level estate tax exemptions that match the federal level. However, fourteen states and Washington, D.C. have lower exemption levels than the federal limit, and their tax rates range from twelve to nineteen percent. New Jersey's estate tax exemption level is only $675,000, which affects heirs that inherit even relatively modest estates.

In addition, seven states have an inheritance tax, which differs from an estate tax. Unlike an estate tax, which is made against an estate before the assets have been distributed, an inheritance tax is paid by the beneficiaries. Maryland and New Jersey have both estate and inheritance taxes with maximum rates ranging from 9.5% to 18%.

What You Should Do

If you live in a state that has an estate or inheritance tax, you can consider moving to a state that does not or that has a high exemption level. If you live in a state that has an estate or inheritance tax and you do not want to move, you should speak with an experienced estate planning attorney about other tax saving strategies for your estate plan. For example, you can take advantage of making gifts during your lifetime to reduce the size of your estate.

In addition, if you already have an estate plan in order, make sure that it is regularly updated to reflect any changes in your state's estate or inheritance tax laws. As more states try to keep or lure more retirees, more changes to the state-level estate tax should be expected.

Developments with the New York Estate Tax

April 9, 2014,

We often discuss the importance for local families to account for the New York estate tax. Far more media coverage is given to the federal tax, and some local residents are under the mistaken assumption that the state law mirrors the federal. It currently does not. Even families who do not have asset to trigger the federal tax may still need to plan appropriately for the New York tax on estates.

However, if current plans are carried out, in a few years .there may be much more congruence between the state and federal rules. That is because earlier this month New York changed exemption levels for the estate tax. Previously, assets over $1 million were exposed to the tax at a 16% top rate. Now, however, the exemption level is raised to slightly more than $2 million ($2,062,500). Not only that, but that level is set to steadily increase or five years until, in 2019, the exemption level matches the federal exemption amount at that time (projected to be $5.9 million).

Important Provisions in the Estate Tax Law
There are other aspects to the new state rules that must be understood by local residents seeking to minimize their obligations and legally save on taxes. Some items to keep in mind:

***There is no "portability" as there is with the federal tax. This means that surviving spouses cannot use unused portions of their partner's exemption amount to lower their burden.

***Under the law, all gifts made within a three year window will likely be included in the estate to calculate the tax burden (at least for gifts made starting this April and extending to 2019). Naturally, this means that one must act early to move assets in ways that take them out of the estate and lower its value.

***There is a risk of falling of the estate tax "cliff" during the phase-in which could mean those with assets just slightly over the exemption amount may face a tax on the full value of their estate. This issue is complex, but in a helpful comment letter the New York State Society of CPAs provides a more detailed analysis of how this may come about.

***The new law repeals the state's generation-skipping transfer tax while also providing more relief for some surviving non-citizen spouses.

Contact our NY estate planning lawyers today for tailored guidance on how these rule changes affect your financial future.

Federal Estate Tax "Portability" - Should It Always Be Used?

March 27, 2014,

The idea of "portability" is an important part of many estate plans. Portability is technically an informal word referring to a federal tax-saving option using the deceased spouse's unused exemption (DSUE). Essentially, portability is a tool for married couples that, when used prudently, can shave millions of dollars off an estate tax bill.

Under the current law, assets under $5.34 million are exempt from the federal estate tax (though the New York tax kicks in far lower at $1 million). Importantly, there are unlimited tax-free transfers allowed between spouses. That means that if one spouse dies and leaves everything to the other, then there will not be a federal estate tax burden, regardless of how many assets are passed on.

However, when the surviving spouse passes away and transfers those assets to others--perhaps adult children--then the tax would apply to assets over the individual exemption level of $5.34 million. But portability changes that. Instead of using only an individual exemption, a surviving couple may be able to use any unused exemption from their former spouse in addition to their own. This means that up to $10.68 million may be exempt from the tax. In short, portability can save an estate millions of dollars in taxes.

Importantly, portability must be "elected," meaning that failing to file the appropriate paperwork upon the first spouse's death may result in the extra exemption being lost.

Should You Always Take Advantage of Portability?
Considering the benefit of portability, it is critical to determine how it may fit into your plan. One potential downside, as discussed in a recent Wealth Strategies Journal article, is that there may be a mistaken reliance on portability. Because of the advantages couples may believe that it always makes sense to simply leave everything to a spouse and then taking more sophisticated planning steps for the second spouse.

Also, the majority of families will not have estate nearing the level where the tax may come into play, and so serious thought needs to be given regarding whether the election is even worth it in their case. In addition, there is a New York estate tax which may require use of other shelter trusts, even when portability would solve the problem at the federal level. Re-marriage may also add complexity, as the rules regarding portability with multiple spouses can be confusing, depending on how much of an exemption was used by a former spouse.

For help on these very complex legal issues, seek out an experienced estate planning attorney as soon as feasible.

More Wealth Transfer Tax Changes on the Way?

March 18, 2014,

Politicians are engaged in a seemingly endless debate about tax rates, "loopholes," spending cuts and similar issues. That is because a new budget must be passed every year, and each proposal undoubtedly comes with suggested changes to various tax and spend rules and regulations. For example, President Obama recently released his proposed 2015 budget. Even a cursory glance at the document reveals that, if passed, it would have clear implications on wealth transfers and estate planning for New York residents.

Estate Tax Proposal
Most notably, the proposed budget calls for the estate tax provisions to revert back to where they were in 2009--an exemption level of only $3.5 million and a top tax rate of 45%. This is in contrast to the current $5.34 million exemption level and 40% top rate. The current tax is pegged to inflation, and so the exemption level will rise slightly each year. Per the terms of the proposed budget, this new tax level and rate would not go into effect until 2018.

Even with this presidential proposal, many do not expect federal officials to actually change the estate tax details, especially considering a high profile compromise was just reach a year and a half ago. The current estate tax rules were only codified at the beginning of 2013 as part of the compromise plan known as the American Taxpayer Relief Act.

Many Other Possibilities
As a helpful Forbes article discusses, beyond the estate tax issue, the President's budget also suggests changes to various estate planning tools. These include limits on annual tax-free gifts to trusts, changes to the use of grantor retained annuity trusts (GRATs), and eliminating "dynasty trusts."

As always, it is critical to re-iterate that these are mere proposals. With a divided Congress, it is likely that any final budget would look far different than the one proposed by the President. In most cases, the executive's first proposal is strategically written in order to position it for debate and negotiation. That said, however, the fact that some of these options were specifically included in the proposal means that they are on the radar screens of officials seeking to limit resident rights to transfer assets freely.

It is impossible to predict what policymakers in the future might do. However, an experienced estate planning attorney can ensure that you are best positioned to take advantage of all legal options to lower tax burdens when passing on assets. An attorney can also update and review your plan on a regular basis to determine if changes in the law necessitate altering any provisions of the plan.

Tax Puzzle: Lifetime Capital Taxation & Wealth Transfer Taxation

February 20, 2014,

A somewhat "high brow" economic working paper has been making the rounds among estate planning attorneys, economists, financial planners, and policymakers in recent weeks. The article, viewable online in full, is entitled "Taxing More (Large) Family Bequests: Why, When, Where?"

While the paper is quite dense, the central themes are those often faced by current policymakers and affecting families as they plan their estate.

Essentially, the paper discusses a well-known taxation "puzzle." Over the past few decades tax revenues from wealth transfers (i.e. estate taxes) have decreased. This is true both in the United States and elsewhere. At the same time, tax revenues based on lifetime gains have grown in recent years with no sign of stopping.

What is bringing about this change?

The article authors first discount some common arguments regarding a general "anti-tax" movements, the lobbying efforts of the wealthy, and similar claims. These arguments fail, they suggest, because they do not explain why tax revenues from lifetime wealth did not similarly decrease with wealth transfers. Put another way, those arguments may explain why global tax levels would have fallen but not necessarily why the one tax dropped and not the other.

Instead, the authors suggest that taxes on estates being passed from one generation to the next have decreased, in part, because of the unique role of the family in these issues. They argue that other scholars are have overlooked the fact that "the distinct character of inheritance taxation where family values, intergenerational links, and relationships to (one's own) death play a crucial role" in policy determinations.

Pushing the idea further, the authors suggest that there is growing conflict between family values and social justice. Lifetime taxes speak to the idea of "social justice" with the wealthy asked to provide for the well-being of those with less means. Alternatively, inheritance taxes seem to impinge upon families and their ability to transfer property internally. In this conflict policymakers in recent years have protected the family and placed less emphasis on so-called "social justice."

In the end, the authors suggest that the best solution is to actually increase the tax burden on the largest family inheritances while, at the same time, decreasing the tax burden on lifetime transfers to family members or charity. They summarize that this approach "is the only workable measure that endeavors to reconcile arguments of family values with principles of social justice, while also taking due consideration of the sharp increase in life expectancy in most developed countries."

Naturally, all of these ideas are somewhat theoretical and philosophical. However, they do offer a good primer on many of the themes common in tax policy debates, including those that affect New York estate planning.

IRS Releases Trusts and Estate Statistics

February 14, 2014,

Discussion about the estate and trust tax issues usually centers on political debate about the rates and exemption levels or case-studies of the tax burden for famous or wealthy individuals. Far less often discussed is general information about the tax, including how much was actually collected, the total number of individuals affected, and similar details.

Fortunately, to fill in that gap, every year the IRS releases statistics, including those affected trusts and estates. A rather detailed list of information can be found in various spreadsheet on the IRS website. Also provided is a handy sheet offering a "snapshot" of many interesting trust and estate tax details. The most recent year's tally was just released, providing a helpful primer for those interested in how these federal taxes actually affect residents.

The Data
All statistics are culled from submitted returns on Form 1041. This is the form used is the "U.S. Income Tax Return for Estates and Trusts." The snapshot explains that the form is "used to report the income, deductions, gains, and losses of estate and trusts, as well as distributions to beneficiaries and income tax liability."

All told, in the most recent data released (from 2010), a total of 3 million such forms were filed totaling $91 billion in income--the majority of that income was from capital gains ($32 billion). That accounts for about $72 billion in deductions. About 75% of those filing listed some deductions.

However, these forms were not filed just by high-income earners, as the vast majority were from those listed incomes of $100,000 or less--more than fifty percent lists less than $10,000 in income. In fact, of the 3 million filings in 2010, only 532,000 of those owed any tax burden at all. There was a clear trend year over year in regard to these income filings. In 2009, about 661,000 Form 1041 filings resulted in some tax liability. Keep in mind that these stats are from several years ago, when the country was in a far more dire economic straits.

There are many interesting takeaways from this data. At the most basic level, this is a reminder of the complex tax issues that may attach to an estate well after an individual passes. This is one of many reasons that estate planning attorneys and financial advisors can play a critical role with these matters both with preparing the plan as well as administering it. For example, it is not uncommon for attorneys to work as a trustee to help ensure all of the legal details are handled appropriately.

For help understanding these issues as they may relate to you and your family, contact an estate planning lawyer today.

Estate Battles the IRS - The Michael Jackson Example

February 11, 2014,

When most hear the phrase "estate battle" the mind immediately jumps to fighting between families. Sadly, in the tumult of a passing, it is not uncommon for even close relatives to disagree sharply over how an assets should be divided. However, estate fights can also refer to legal problems related to taxes and the IRS. Tax matters are intricately woven into estate matters, and when problems arise, you can be sure that the IRS will be ready to defend their position in court.

How Much Was Jackson's Estate Worth?
To understand how these IRS estate battles often play out, one need look no further than continued wrangling over perhaps one of the largest estates in recent memory. Famed entertainer Michael Jackson died in 2009. However, the estate is still fighting with the Internal Revenue Service regarding how many taxes need to be paid.

As discussed in an LA Times story this weekend, the IRS and Jackson's executors are miles apart on what is owed. The executors claimed that Jackson's net worth at the time of his death was $7 million. The IRS, on the other hand, valued the estate and exponentially higher--$1.25 billion.

As most know, one's estate tax burden is based on the total value of assets. Obviously then, the executors and the IRS have staggeringly different ideas about how much tax is owed. For their part the IRS claims that the total estate tax was $505 million. Not only that, but they claim that errors with the tax return trigger double penalties, adding an addition $197 million in penalties to a total tax obligation of $702 million. Keep in mind, this tax bill alone is 100x larger than the executors claimed the entire estate was worth.

How could the two sides be so far off? Apparently, the main dispute surrounds the value of Jackson's "image" and his rights to a valuable trust which holds rights to legendary songs (including almost the entire Beatles collection). The executors argued his likeness was worth $2,105 and that Jackson had no interest in the song collection because he had borrowed hundreds of millions of dollars against it.

Unique Assets & Appraisals
When it comes to intangible assets that do not necessarily have an obvious value, then disputes often arise between the IRS and an estate. While very few will leave an estate or assets as large (or unique) as Jackson, the issue of proper appraisals and subsequent tax burden is not uncommon among New York residents. As always, the best approach is to structure an estate so that these assets are not included at all and not factored into possible estate taxes.

New York Gift Tax Calculations May Change Soon

February 7, 2014,

This week we discussed the growing belief among policymakers that estate tax changes are on the way for New York. Governor Cuomo proposed changing the exclusion rate for the NY estate tax up to the federal level ($5.25 million now and pegged to rise with inflation). This would be accompanied by a lowering of the top tax rate from 16% to 10%. Altogether, this represents a positive step for those hoping for a simpler, smaller estate tax bite.

However, less discussed are other changes that the Governor propose be included with the tax overhaul. Specifically, as noted in a Wealth Management story from last week, taxation on gifts will be folded into these total estate calculations. The gift issue is important, because it may lead some New York resident to alter their long-term strategies immediately.

Gift Taxes in New York
Under current state law, there is not a gift tax. However, under proposed changes, estate tax will need to be paid on all taxable gifts starting in April of this year. The story summarizes the concern succinctly:

"The new provision will cause any taxable gift made by a New York resident after March 31, 2014 to incur an additional net estate tax of anywhere from 6.5% to 12%." This is only important, however, if the individual's gross estate exceeds the exclusion amount.

In short, depending on your family's specific situation, it may be prudent to make gifts now, before those gifts would be folded into the estate for tax purposes, to avoid an extra tax bite during this potential NY estate tax transition.

Tax and Planning Complexity
These gift and tax issues are quite complicated in even the best of cases, but they are made even more so when involving speculation about what might happen based on lawmaker preferences. Adding another layer of challenge is the fact that some legal issues related the the connection between state and federal estate taxes remain unclear.

For example, most assume that the tax connected to the potential New York taxable gift will be deductible from one's federal gross estate--lowering that federal tax amount. However, there is technically no clarity on this exact issue, and many suggest that past precedent suggests that this may not be the case.

As even a cursory glance at these issues makes clear, it is critical not to handle these matters alone. New York estate planning attorneys, accountants, and financial advisors are here specifically to evaluate your situation, understand the legal details, and ensure you are best positioned to lower your tax burden and pass on as many assets as possible to loved ones.

Clamor Continues Around State Estate Tax - Are Increased Exemptions Coming?

February 3, 2014,

The New York Times reported late last month on a growing trend across the country--discussions about lowering estate tax obligations on state residents. The estate tax is the bite the government takes out of an individual's assets before they go to heirs. There are two layers of tax, at the federal and state level. Under current law, the federal tax kicks in on all assets over $5.34 million for individuals at a top rate of 40%.

But the federal tax is not the only concern of residents, because many individual states have their own tax, including New York. The New York tax starts far lower--at $1 million. This means that even those residents who have no concerns about the federal estate tax still must account for their obligation under state law.

Lower NY Estate Taxes
As we discussed recently, New York Governor Andrew Cuomo proposed altering the New York tax burden to more closely mirror the federal rules. He recently suggested that the state should increase the exemption amount to $5.25 million and peg it to inflation. This change would happen gradually over the next five years, reaching the intended level by 2019.

New York is certainly not the only state to consider these changes. New Jersey (which has the most burdensome estate and inheritance tax) is considering alterations. And many other states across the country have similar provisions in the docket.

But there is a big difference between proposing a law and actually enacting one. The problem is that any changes to estate tax rules for the state will result in lower state revenues. Those lowered revenues will then need to be made up elsewhere, which is the constant challenge for policymakers. As a result, the status quo often remains, regardless of individual wishes, because no agreement can be reached on how to make up the difference in the state budget.

Minimize New York Estate Tax Burden
While discussions about legal changes are encouraging for residents, as it now stands these changes are nothing more than possibilities. The current law continues to place a high burden on many families, making it critical for individuals to prudently plan to take advantage of legal steps to lower their tax burden.

Besides moving to another state and establishing residency, the main strategies to account for the tax is to set up trusts and engage in a gifting plan to pass on assets to lower the overall size of the estate. Because New York state does not have "portability" it is important even for married spouses to consider setting up trusts (like a credit shelter trust) to lower their state obligation.

Contact a NY estate planning lawyer today to learn more.

Favorable New York Estate Tax Laws on the Horizon?

January 13, 2014,

New York State, known as one of the heavier tax-imposers in the country particularly when it comes to estate tax, may soon be more appealing to retirees. New York may be following on the heels of the federal government's revamped estate tax codes, which raised exemption amounts to levels that effectively omitted the vast majority of individuals and families from an Uncle Sam estate tax hit. The New York State Tax Relief Commission issued a December 2013 report that proposes changes in 2014 to lower the highest estate tax rate and raise the exemption amount to the same levels as that imposed by the federal government.

The Potential for Major Estate Tax Relief

The federal government and seventeen states impose taxes on estates upon the death of the individual. Each exempts a certain amount of an estate's net worth from these taxes, although these amounts differ state to state. Thanks to the passage of the American Taxpayer Relief Act of 2012, starting in 2013 the federal government began operating under new rules for estate taxes that significantly increased the exemption amount and provided that this value would be indexed each year for inflation.

Currently, New York exempts $1 million for estate taxpayers, and assesses a top tax rate of 16% on amounts above that threshold. New York's current exemption level is one of the lowest of the states that employ some type of death tax (either estate tax, inheritance tax, or both). If the Commission's proposal were to become law, however, this exemption would rise to that of the federal level, which right now is $5.25 million, and would be indexed each year for inflation just like the federal exemption. Additionally, the top tax rate on any amount above the exemption threshold would decrease to 10%.

Any individual decedent's estate with a net worth at or less than the exemption level would therefore be exempt under both federal law as well as New York law if this proposal were to come to fruition. This would undoubtedly sway many more New Yorkers to remain in the state since nearly 90% of all estates would be exempt from any estate tax. As indicated in the Commission's report, middle-income New Yorkers would benefit greatly because until now, the exemption levels have failed to increase along with the growth in home values. While the state treasury itself would lose out on significant revenue, this money would be left with consumers to put back into the economy.

This is all of course contingent on the proposal becoming law. It is also unclear whether the new rates will commence in 2014, 2015, or later, and whether one set rate will be implemented immediately or phased in over time. New Yorkers should keep a keen eye on the progress of this proposal as it will no doubt influence their estate planning, including the decision of whether to remain in New York or head for greener pastures such as Florida or North Carolina, which now have no estate taxes.

Gift Tax Benefits Expiring At End of Year?

December 20, 2013,

Timing is critical in estate planning for many reasons. Most obviously, because plans are intended to help ease the burden in the aftermath of a death, they must be in place before one dies (or loses the capacity to make legal decisions). But timing also matters to the extent that the law changes and alters the options available to planners.

This is most clear when it comes to taxes. Different tax rates, allowable deductions, and other details are frequently changing. Many individuals act quickly to take advantage of certain favorable situations before they are set to expire.

IRA Gift Tax Break
For example, a provision is currently set to expire which allows those over 70 ½ years old to save on taxes when donating part of an individual retirement account (IRA) to charity. Specifically, the law allows account holders over the age threshold to donate up to $100,000 without the donation being taxed as an early withdrawal.

A Wall Street Journal story on the soon-to-be ending tax benefits explores the how taking advantage of the charitable IRA rollover provision may also be used strategically to help legally lower one's burden on new taxes. For example, those in higher income brackets will soon be hit with a 3.8% tax on net investment income. Withdrawals from the IRA may therefore help lower one's income and avoid meeting threshold where newer taxes kick in or deductions are limited. In addition, taking advantage of the charitable donation can lower overall income to the point where Social Security benefits taxes are reduced or Medicare premium increases are avoided.

Just because the IRA gift tax benefit may disappear at the end of the year does not automatically mean that it is prudent for you to take any specific action. Every New Yorker is in a slightly different position, and it is critical to have tailored advice before taking action. For example, it still may make more sense in your case to make a donation of appreciated assets from outside the IRA, allowing a fair-market value tax deduction and avoiding capital gains tax. An individualized analysis would need to be conducted to see what makes the most sense in your case.

If you would like help understanding how gifts, retirement accounts, trusts and other details can be used to best position you and your family, please contact our NY estate planning lawyers today.

Would Changes to Charitable Tax Deductions Affect American Gifting?

December 4, 2013,

Many New York residents make charitable giving a part of their estate plan. Whether for estate tax benefits to pass on values and ethics to family members and many other reasons, residents commonly set aside certain assets to go to causes about which they are passionate.

However, according to a new report from a conservative "think tank" if any changes are made to federal rules about charitable tax deductions, then one can expect total giving in the country to decrease by billions each year. Before delving into the details it is critical to point out that the group releasing the study, the American Enterprise Institute (AEI), is known as a long-time opponent of all changes which would increase tax revenues. In addition, this AEI estimate is far higher than that found in similar studies by other groups.

The Charitable Giving Report
According to an article from discussing the new estimates, AEI researchers found that a limit to the value of charitable deductions--proposed by President Obama--may cause donors to give up to $9 billion less to charities each and every year. That large reduction in giving would have serious effects, the authors claim, on many non-profit organizations that rely exclusively on the gifts of donors for their yearly operations.

If the President's proposal passes, it is claimed that overall donations would fall by about 4.4 percent. The researchers used that figure against total giving nationwide to come up with the $9.4 billion amount that may be lost with changes to the tax law. The AEI report argues that the largest donors in particular would likely cut back on giving with the changes, because it is the "top 1 percent" of earners who are most likely to itemize their deductions and benefit from the charitable giving tax break.

All of this is being used to push back against the President's proposal to curb deductions that certain high earning individuals can take on these donations. Right now the upper limit is at 39.6 percent and the proposal calls for its shift down to a 28 percent limit. For his part, the President and his supporters argue that current law is unfair in that it provides more benefit to high earners to donate than it does to lower income donor. In addition, the additional revenue raised by the tax changes would be used to bolster programs supported by most non-profit organizations.

For help understanding how charitable giving can be incorporated into your estate plan, seek out the help of an experienced attorney today.

New Decision on Valuation of New York LLC for Estate Tax Purposes

December 2, 2013,

Last month the United States tax court issues a decision in a case which caught the eye of many involved in estate planning matters. The main issues in the case, Tanenblatt v. Commission of Internal Revenue, was the value of a deceased individual's interest in a limited liability company. As most know, estate taxes are based on the value of the total assets owned by an individual at the time of passing. Consequently, determining the exact value of items like a business interest are critical in determining the tax burden. As you might imagine, there is frequently disagreement between surviving family members and the IRS regarding the overall assessments.

LLC Value
The tax court opinion (viewed in full online here) explains how the case involves a family that received a notice of deficiency from the IRS, claiming that an additional $309,000 in federal estate taxes was due. The discord was caused by confusion over the value of the decedent's interest in a New York LLC (the 37-41 East 18th Street Realty Co.). As the name implies, the LLC's main asset was a building on 18th Street in New York City. In preparing their tax return, the family essentially determined the value of the building (using an income capitalization approach), added a few smaller assets, applied "net asset value" (discounts for various reasons), multiplied by the individual's percent interest and determined the value of the share in the LLC -- around $1 million.

The government disagreed however. Their math showed that the property interest was worth around $2.5 million. The disagreement ultimately made its way to court and went to trial.

In deciding the disagreement, the court's main focus was on the specific methods used to calculate the overall value and taxable amount. Interestingly, there was significant disagreement about whether certain appraisals could be introduced at trial. Some tax court rules were not followed, and one favorable opinion from the family's perspective was not counted by the court. Essentially, the court determined that this favorable expert's opinion did not count because she was not officially qualified as an expert in this case--she only issued a report and did not testify at trial.

Ultimately, the court determined that the fair market value was around $2.3 million--slightly less than the IRS initially claimed but significantly more than the family argued. The family will therefore have to come up with funds to pay for the additional estate tax burden.

As this case shows, many of these valuation issues are quite complex. Even relatively small differences can have a sizeable effect on estate tax burdens. As a result, it is always prudent to seek out the help of estate planning lawyers before and after a passing for clear guidance and advocacy.

Congressman on Future of Estate Tax

November 27, 2013,

At the beginning of 2013, a federal compromise was reached which seemed to put to rest the uncertainty surrounding the estate tax. Based on the January law, the federal estate tax excludes property up to $5.25 million this year, with that figure set in the future and pegged for inflation. The top tax rate for assets over that amount is 40%, representing a slight increase from the previous level of 35%. In addition, the new law keeps transfers between spouses tax-free and makes "portability" permanent. Portability is the tool that allows one spouse to take advantage of the other spouse's unused exemption.

Importantly for New York residents, all of those details apply only to the federal estate tax. There are still New York inheritance taxes to consider which take effect at a far lower level--$1 million.

The Future
Even though the federal law passed in January appears to be "permanent," in reality there is nothing about federal law which cannot be changed. Advocates on both sides of the aisle continue to have differences of opinions of the estate tax, with some calling for its complete elimination and other seeking to lower the exemption level. As a result, the tax may be used as a bargaining chip in any federal negotiation.

Are any estate tax changes in the works now?

The Republican Chairman of the House Ways and Means Committee, Representative Dave Camp, is actually working on legislation that would dramatically alter the U.S. Tax system. The proposed legislation includes a wide range of general changes to tax law, including lowering rates for both individuals and corporations while eliminating "loopholes." Rep. Camp previously claimed that he intended to release the proposal this year, though he recently conceded it may not be ready until early next year.

However, according to a report this week from Bloomberg, when asked about the estate tax specifically, Camp said, "I don't think that policy needs the reform that the rest of the code does." In other words, it is unlikely that the estate tax will be changed as part of this proposal. And if the Republican chairman of this powerful committee does not believe the tax needs revision, then, as a practical matter, it is near certain that such a change won't take least in the short term. With a divided Congress and many other issues taking priority, the best current guess is that current federal estate tax details will remain unchanged.

Inheritance Dispute: Family Claims IRS Overvalued Artwork

November 21, 2013,

Estate tax rates at both the federal and state level are set by lawmakers, and there is little that any individual can do on thee law. However, residents can significantly alter their tax burden with smart estate planning--like prioritizing tax free transfers (to a spouse), using protected trusts, and more.

But there is also another aspect to the estate bill that is often overlooked--the appraisal. The tax burden is based on applying a tax rate to the value of an asset. But who decides the value? Actual laws which set the rates cannot account for this detail, and so disputes about appraisals are quite common, often with millions of dollars on the line.

Theoretically, the value of many different assets can be disputed. But in practical terms there are some types of property that are open to far more value uncertainty, often spurring challenge. Perhaps the most obvious example is that of high-end artwork. There may be significant disagreement about how much each piece of art is worth.

New York Appraisal Complaint
DNA New York recently ran a story that shared information on a real-world example of this situation involving the family of Jean-Michel Basquiat.

Basquiat was a well-known New York "graffiti artist" who had exhibits in world famous museums before his untimely death over twenty five years ago, in 1988. Basquiat was only twenty seven when he died and all of his assets were left to his parents. Basquiat's mother passed away in 2011. She died without a will, and so after her passing, a large amount of artwork she owned passed via intestacy rules to her heirs--Basquiat's father and sisters.

According to reports, the family was initially forced to pay $8.5 million in estate taxes on the inheritance. Not long after making payment, the IRS allegedly then demanded that the family pay an additional $10 million because the art collection was worth much more than the family claimed.

The initial value of the work was based on an appraisal by the Sotheby's auction house, reaching the conclusion that the mother's share of the artwork was worth $36 million. However, the IRS conducted its own audit and found the share to be more than twice as high, $69 million. Who is right?

A lawsuit was recently filed by the family in which the IRS appraisal was contested. One of the main issues of contention is application of a "blockage discount." The idea is that the art markets are quite sensitive, and flooding the market with so many pieces in a sale at one time would drastically lower the value of the work. As a result, when estate taxes are applied to these assets a blockage discount is applied so the taxable amount is lower.

The case is set for trial next year.