{"id":739,"date":"2006-10-30T16:41:00","date_gmt":"2006-10-30T21:41:00","guid":{"rendered":"https:\/\/www.actec.org\/?post_type=capital-letter&p=739"},"modified":"2024-01-03T13:38:55","modified_gmt":"2024-01-03T18:38:55","slug":"the-end-of-estate-tax-repeal-demo","status":"publish","type":"capital-letter","link":"https:\/\/www.actec.org\/capital-letter\/the-end-of-estate-tax-repeal-demo\/","title":{"rendered":"The End of Estate Tax Repeal"},"content":{"rendered":"\n

The dramatic events of the 109th Congress (2005-2006) probably marked the end of serious effort to repeal the federal estate tax in this generation.<\/strong><\/em><\/p>\n\n\n\n

Dear Readers Who Follow Washington Developments:<\/p>\n\n\n\n

As everyone knows, Congress got out of town this month without resolving the federal estate tax issues that have been hanging in the balance for so long.  Since 1997 when Congress prescribed a ten-year phase-in for increases in the unified credit, and especially since 2001 when Congress added rate reductions and a one-year repeal to the ten-year template, we have watched Congress closely to see how it would stabilize the future of the federal estate tax.  Congress has to do something, after all.  Doesn\u2019t it?<\/p>\n\n\n\n

Many of us may have been looking through the wrong end of the telescope.  We have wondered why Congress has taken so long to clear up the decade-long uncertainty it created in 2001.  But the political forces that shape Congress\u2019s agenda should make us ask: What\u2019s the hurry?  Doesn\u2019t Congress have another three years left to act?<\/p>\n\n\n\n

One thing, though, does appear certain: the moment for full and permanent repeal of the federal estate tax in this generation has passed<\/strong>. If repeal ever had a chance, it no longer does.<\/p>\n\n\n\n

The history of the repeal movement has a number of milestones:<\/p>\n\n\n\n

\u2022 President Reagan\u2019s low-key interest in repeal, which produced only a reduction of the top rate from 70% to 50%, in a phased reduction that ultimately leveled off at 55%,<\/p>\n\n\n\n

\u2022 President Reagan\u2019s legacy of populist support for tax cuts of all kinds, coupled with increasing unrest among some economists and some leaders of public opinion with the economic and personal burden of the tax increasingly referred to as the \u201cdeath tax,\u201d<\/p>\n\n\n\n

\u2022 the Republican takeover of the House of Representatives in 1994, spurred by a \u201cContract with America<\/a>\u201d in which tax relief was prominent,<\/p>\n\n\n\n

\u2022 President Bush\u2019s presidential campaign of 2000, drawing on two decades of growing anti-tax sentiment in promising to return huge projected budget surpluses to the American people in \u201cTax Cuts with a Purpose,\u201d including repeal of the death tax,<\/p>\n\n\n\n

\u2022the \u201crepeal\u201d itself in the Economic Growth and Tax Relief Reconciliation Act of 2001<\/a> (\u201cEGTRRA\u201d), albeit only after nine years and then only for one year,<\/p>\n\n\n\n

\u2022 the immediate commitment from the 2001 Republican leadership to \u201cmake the tax cuts permanent,\u201d even as projected budget surpluses dwindled,<\/p>\n\n\n\n

\u2022 history-defying Republican mid-term election gains in 2002, followed by still more Republican gains in the presidential year of 2004,<\/p>\n\n\n\n

\u2022 an October 2003 Washington Post<\/em> report \u2013 immediately denied but publicly affirmed after the 2004 election \u2013 that Senate Finance Committee member and repeal supporter Jon Kyl (R-AZ) was working with other Senators to craft a bipartisan compromise proposal that would increase the exemption to $15 million and decrease the rate, above that exemption, to 15%, the current income tax rate on capital gains,<\/p>\n\n\n\n

\u2022 the perennial endorsement of full repeal by the House of Representatives, culminating in a 272-162 vote in April 2005 for the current version of H.R. 8<\/a>, the \u201cDeath Tax Repeal Permanency Act of 2005<\/a>,\u201d<\/p>\n\n\n\n

\u2022 the scheduling for just after Labor Day in 2005 of a Senate vote to take up H.R. 8<\/a>, to either approve it or, more likely, to amend it along the lines of Senator Kyl\u2019s compromise,<\/p>\n\n\n\n

\u2022 the abrupt postponement of that vote after Hurricane Katrina<\/a>,<\/p>\n\n\n\n

\u2022 the recommitment of the Senate Republican leadership to an estate tax vote in 2006, affirmed at a retreat of Republican Senators in January, announced by Senate Majority Leader Bill Frist (R-TN) in February, and reaffirmed in Senator Frist\u2019s call in an April 21 letter to Republican Senators to \u201cend the death tax forever,\u201d<\/p>\n\n\n\n

\u2022 a resolve by representatives of most pro-repeal constituencies at a May 2 \u201cSummit for Permanent Death Tax Repeal\u201d to get behind Senator Kyl\u2019s 15% compromise, with a $5 million exemption, as the most practical way to achieve at least a substantial measure of estate tax relief,<\/p>\n\n\n\n

\u2022 a 57-41 Senate vote on June 8 on a \u201ccloture\u201d motion to take up
H.R. 8<\/a>, which thereby failed for lack of the required 60 votes,<\/p>\n\n\n\n

\u2022 passage by the House of two new estate tax compromise bills customized to attract the support of 60 Senators \u2013 H.R. 5638<\/a>, the \u201cPermanent Estate Tax Relief Act of 2006<\/a>\u201d (\u201cPETRA\u201d) by a vote of 269-156 on June 22, and H.R. 5970<\/a>, the \u201cEstate Tax and Extension of Tax Relief Act of 2006<\/a>\u201d (\u201cETETRA\u201d) by a vote of 230-180 on July 29, and<\/p>\n\n\n\n

\u2022a 56-42 Senate vote on August 3 on a cloture motion to take up consideration of H.R. 5970<\/a>, which thereby also failed for lack of the required 60 votes.While the 57-41 Senate vote in June fully reflected the available Senate support at the time, since the two absent Senators would have voted no, the 56-42 vote in August probably reflected the support of 58 Senators, as Senator Frist changed his vote from yes to no to preserve his right to request reconsideration later, and Senator Max Baucus (D-MT), who was expected to vote yes, was absent because of the recent death of his nephew in Iraq.  The only Senator to change his vote between June 8 and August 3 was Senator Robert Byrd (D-WV).But a mechanical recital of votes does not begin to tell the whole story.  Content and packaging matter.  H.R. 5638<\/a> (\u201cPETRA<\/a>\u201d), effective January 1, 2010, would have provided:<\/p>\n\n\n\n

\u2022 a $5 million exemption equivalent (indexed for inflation after 2010),<\/p>\n\n\n\n

\u2022 an initial rate tied to the top income tax rate on general capital gains (currently 15%, but scheduled to return to its \u201cpermanent\u201d level of 20% in 2011),<\/p>\n\n\n\n

\u2022 a rate equal to double that rate on taxable estates over $25 million (not indexed),<\/p>\n\n\n\n

\u2022 gift tax exemptions and rates conformed to the estate tax,<\/p>\n\n\n\n

\u2022 repeal of the deduction for state death taxes,<\/p>\n\n\n\n

\u2022 retention of a stepped-up basis at death for appreciated assets, and<\/p>\n\n\n\n

\u2022 repeal of the 2011 \u201csunset\u201d for the other transfer tax provisions of  EGTRRA<\/a>. In addition, PETRA<\/a> would have provided a procedure for surviving spouses to use the unused exemptions of predeceased spouses and would have also provided tax relief for the timber industry, a not-very-subtle attempt to attract the votes of Senators from timber-growing states. The Bush Administration, despite its official commitment to full and permanent repeal of the estate tax, announced promptly after the House action that it supported PETRA \u201cas a constructive step toward full repeal of the death tax.\u201d  On June 27, Senator Frist announced that PETRA would not be brought to the Senate floor before the Fourth of July recess, but his press release promised that \u201c[t]he Senate will vote on a permanent reduction to this tax.\u201d H.R. 5970 (\u201cETETRA\u201d), with respect to which the Senate did vote (rejecting a cloture motion on August 3), modified PETRA by phasing in the $5 million exemption equivalent from 2010 to 2015, delinking the top estate tax rate (but not the 15% rate) from the capital gains tax rate, phasing in the reduction of the top rate to 30% over five years from 2010 to 2015, and extending the indexing for inflation (after 2015) to the $25 million bracket amount.  ETETRA also removed the \u201cmiscellaneous\u201d provisions of EGTRRA, including the well-known and generally popular GST exemption allocation changes, from the repeal of the EGTRRA sunset, meaning that they again would be scheduled to expire in 2011. In addition to the estate tax provisions and the timber relief provision, however, ETETRA<\/a> included two-year \u201cextenders\u201d of various tax provisions that had expired at the beginning of 2006.  The most prominent of these provisions is the research credit originally enacted as a temporary measure in the Economic Recovery Tax Act of 1981, extended 11 times since then, and now housed in section 41 of the Code (where it expired on January 1, 2006).  But the extenders also include a large number of provisions that are perhaps lesser known but still very popular among the individuals and businesses they affect, including such items as the qualified tuition deduction, the work opportunity tax credit, the welfare-to-work credit, the above-the-line deduction for certain expenses of elementary and secondary school teachers, the Indian Employment Tax Credit, New York Liberty Zone tax credits, the expanded availability of Medical Savings Accounts, the election to deduct state and local sales<\/em> taxes rather than income taxes, and lots more.  On top of that, ETETRA<\/a> included an increase in the minimum wage to $7.25 per hour by June 1, 2009, and a number of other tax changes not related to the estate tax.  The combination of estate tax provisions, extenders, and minimum wage increase was popularly referred to as the \u201ctrifecta.\u201d The effort to attract votes with these \u201csweeteners\u201d did not work.  Indeed, it speaks volumes about the intensity of the views of Senators on the subject of estate tax relief that between the June 8 and August 3 cloture votes not one supporter defected even though estate tax relief was coupled with an increase in the minimum wage that many Republican Senators historically have resisted, and only one who voted no in June (Senator Byrd) switched his vote to yes even to secure enactment of the minimum wage increase supported by most Democrats, as well as the popular extenders.  This intensity is also evidenced by the deeply personal nature of the efforts of the party leaders, Senator Frist and Senator Harry Reid (D-NV).  The pressure to line up votes from the leadership of both parties was striking.

All this reflects an extraordinary amount of attention to the estate, gift, and GST taxes, which have their own subtitle in the Internal Revenue Code but historically have often been no more than a footnote in the overall story of federal taxation. We will probably never know how the Senate would have voted just after Labor Day last year, if Katrina had not intervened.  Many Washington observers who try to handicap this kind of thing saw it as a close call.  But it is clear that the effort for total repeal has simply lost too much traction to have a meaningful chance of recovery.  Consider the following:<\/p>\n\n\n\n

\u2022 In October 2003, Senator Kyl was publicly insisting on full and permanent repeal and denying rumors of compromise, but by the end of 2004 his push for a 15% rate instead of full repeal was a matter of general knowledge.  Even before the June 8 cloture vote, it was understood in the Senate that Senator Kyl would accept a 30% rate for the largest estates \u2013 an understanding that later was reflected in PETRA<\/a> and ETETRA<\/a>.  Once willingness to compromise in this way is conceded, it is very hard to credibly reassert a \u201cpurist\u201d position.<\/p>\n\n\n\n

\u2022 As late as his April 21 letter, Majority Leader Frist was calling on his Republican colleagues to \u201cend the death tax forever,\u201d but by summer he was leading the effort to bring ETETRA<\/a> to a vote, with its 15% and 30% rates.<\/p>\n\n\n\n

\u2022 The Bush Administration\u2019s official position has been to favor full and permanent repeal, but the White House called PETRA<\/a> \u201ca constructive step toward full repeal of the death tax.\u201d  Again, once a compromise effort is dignified in that way, it becomes, de facto<\/em>, the new agenda.<\/p>\n\n\n\n

\u2022 The opposition to repeal \u2013 indeed even the opposition to substantial reduction \u2013 is resolute and deep, as indicated by the failure of the ETETRA<\/a> \u201csweeteners\u201d to change more than one Senator\u2019s vote.<\/p>\n\n\n\n

\u2022 Unlike 2001, the current fiscal climate of large budget deficits<\/em> fuels the unease of politicians and voters with \u201ctax cuts for the rich.\u201d<\/p>\n\n\n\n

\u2022 As a practical matter, estate tax repeal requires 60 votes in the Senate to approve a cloture motion, the congressional equivalent of \u201ccalling the question.\u201d  Most people view the outcome of next week\u2019s election as anybody\u2019s guess, particularly in the Senate, but no one expects Republican gains<\/em> that might bring the 60-vote target more within reach. The sum of these observations is that anything the repeal effort might have had going for it in recent years has now dwindled sharply.  While the exact form and timing of any possible estate tax relief is still unclear, those who have been looking for repeal should look no more. Meanwhile, I plan to write more Capital Letters, focusing on the substance of the estate tax debate, on PETRA<\/a> and ETETRA<\/a> and what they can teach us about the kind of estate tax legislation (if any) we might see in the future, on other developments and projects in the nation\u2019s capital of interest to estate planners, on the significance of the November 7 election, and on the pure rumors and speculation that no communication from the nation\u2019s capital should be without.<\/p>\n","protected":false},"excerpt":{"rendered":"

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