Federal Taxation of Inheritance and Wealth Transfers

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Federal Taxation of Inheritance and Wealth Transfers

Barry W. Johnson and Martha Britton Eller, Internal Revenue Service

n Introduction: Inheritance and Taxation

Inheritance in Early America: English Foundations

For most of the 20th century and at key points

throughout American history, the Federal government

has relied on estate and inheritance taxes as sources of

funding. The modern transfer tax system, introduced in

1916, provides revenue to the Federal government

through taxes on transfers of property between living

individuals--inter vivos transfers--as well as through a

tax on transfers of property at death. Proponents of

transfer taxation embrace it both as a “fair” source of

revenue and as an effective tool for preventing the concentration of wealth in the hands of a few powerful families. Opponents claim that transfer taxation creates a

disincentive to accumulate capital and, thus, is detrimental to the growth of national productivity. Controversy

over the role of inheritance in democratic society and

the propriety of taxing property at death is not new, but

is rooted firmly in arguments that have raged since

Western society emerged from its feudal foundations.

Central to both historic and current debate is the divergent characterization of inheritance as either a “right”

or a “privilege.” An understanding of these arguments,

and of the history surrounding the development of the

modern American transfer tax system, provides a foundation for evaluating current debates and proposals for

changes to that system.

American ideas concerning the rights of individuals in the new republic can be traced to the writings of

English philosopher John Locke. Writing in the last half

of the 17th century, he suggested that each citizen was

born with certain natural, or God-given, rights; chief

among those rights was property ownership. Citizens

had a right to own as much property as they could employ their labor upon, but not to own excessive amounts

at the expense of the rest of society. Further, he argued

that the right to bequeath accumulated property to children was divinely ensured. “Nature appoints the descent of their [parent’s] property to their children who

then come to have a title and natural right of inheritance

to their father’s goods, which the rest of mankind cannot pretend to” (Locke, 1988:207). Likewise, Locke

felt that a father should inherit a child’s property if the

child died without issue. If, however, a person died

without any kindred, the property should be returned to

society. Government was established at the will of the

people and was charged with protecting these rights, according to Locke. However, government had an even

higher responsibility--to ensure the benefit of all society. When societal and individual rights clashed, suggested Locke, it was the civil government’s duty to exercise its prerogative in order to ensure the common

good.

n Historical Overview

The idea that inheritance was a “natural right” was

refuted nearly a century later by English jurist William

Blackstone. In his 1769 Commentaries on the Law of

England, Blackstone wrote that possession of property

ended with the death of its owner and, thus, there was

no natural right to bequeath property to successive generations. Therefore, any right to control the disposition

of property after death was granted by civil law--not by

natural law--primarily to prevent undue economic disturbances. Thus, Blackstone concluded that the government had the right to regulate transfers of property

from the dead to the living. His interpretation of law

Taxation of property transfers at death can be traced

back to ancient Egypt as early as 700 B.C. (Paul, 1954).

Nearly 2,000 years ago, Roman Emperor Caesar

Augustus imposed the Vicesina Hereditatium, a tax on

successions and legacies to all but close relatives (Smith,

1913). Taxes imposed at the death of a family member

were quite common in feudal Europe, often amounting

to a family’s annual property rent. By the 18th century,

stamp duties and registration fees on wills, inventories,

and other documents related to property transfers at death

had been adopted by many nations.

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“has served as the legal foundations upon which death

taxes in Anglo-American tax systems rest” (Fiekowsky,

1959:22).

regulation. As in other areas of American life, Jefferson

heavily influenced later thinking about property rights,

inheritance, and taxation by governmental bodies.

The belief that government was responsible for the

protection of the general good, espoused by John Locke

and others, laid the foundation for the Utilitarian movement in English social philosophy. Jeremy Bentham,

one of the greatest proponents of Utilitarian philosophy,

rejected the idea of natural rights. Instead, he stressed

the higher goal of ensuring the general welfare. He and

his followers believed in a government that played an

active role in moving society toward that goal. Bentham,

therefore, advocated strong regulation of inheritances

“in order to prevent too great an accumulation of wealth

in the hands of an individual” (Chester, 1982:18).

The Stamp Tax of 1797

In general, early American government adopted a

laissez-faire approach to the economy, an approach advocated by Adam Smith. However, when Congress

needed to raise additional funds in response to the undeclared naval war with France in 1794, it chose a death

tax as the source of revenue. The Stamp Act of 1797

was enacted to finance the naval buildup necessary for

the national defense. Federal stamps were required on

wills offered for probate, as well as on inventories and

letters of administration. Stamps were also required on

receipts and discharges from legacies and intestate distributions of property (Zaritsky and Ripy, 1984). Duties were levied as follows: 10 cents on inventories and

the effects of deceased persons, and 50 cents on the probate of wills and letters of administration. The stamp

tax on the receipt of legacies was levied on bequests

larger than $50, from which widows (but not widowers), children, and grandchildren were exempt. Bequests

between $50 and $100 were taxed 25 cents; those between $100 and $500 were taxed 50 cents; and, an additional $1 was added for each subsequent $500 bequest.

In 1802, the crisis ended, and the tax was repealed (Repeal of Internal Tax Act, 1802). In 1815, Treasury Secretary Alexander Dallas proposed the resurrection of the

tax to provide revenue for the war with England. The

Treaty of Ghent, however, ended the war while the tax

was still under consideration, and the tax was subsequently dropped (Zaritsky and Ripy, 1984).

Yet, the idea of government actively engaged in promoting the general welfare was rejected by economist

Adam Smith, a contemporary of both Blackstone and

Bentham and the father of classical economics. Smith

believed that an unregulated economy, driven by the

natural interplay of selfish individual desires, would produce the greatest good for society. While he seemed to

accept the government’s right to tax inheritances, he argued against it. He called all taxes on property at death

“more or less unthrifty taxes, that increase the revenue

of the sovereign, which seldom maintains any but unproductive labor, at the expense of the capital of the

people, which maintains none but productive” (Smith,

1913:684). Later, economist David Ricardo, writing in

the early 19th century, reinforced the idea. He suggested

that English probate taxes, legacy duties, and transfer

taxes “prevent the national capital from being distributed in the way most beneficial to the community”

(Ricardo, 1819:192).

In the years immediately preceding the war between

the States, revenue from tariffs and the sale of public

lands provided the bulk of the Federal budget. Inheritance taxes, however, were a source of revenue for many

States. Early in the 19th century, Supreme Court Justices John Marshall and Joseph Story defended an

individual’s natural right to own property. However,

their belief that inheritance was a civil, not a natural

right affirmed the States’ right to regulate inheritances

(Chester, 1982). Later, U.S. Supreme Court Justice

Roger Taney, a Jackson appointee, described the inheritance tax in the case of Mager v. Grima (1850). “If a

These, then, are the somewhat divergent philosophies from which Thomas Jefferson, in drafting the Declaration of Independence, developed his idea of Godgiven, or natural, rights that emphasize personal and political freedoms. Jefferson argued that the use of property was a natural right, but that the right was limited by

the needs of the rest of society. Furthermore, he also

argued that property ownership ended at death. While

he did not call for abolishing the institution of inheritance, he did advocate a strong role for government in its

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FEDERAL TAXATION OF INHERITANCE AND WEALTH TRANSFERS

State may deny the privilege [of inheritance] altogether,”

he wrote, it may, when it grants that privilege, “annex to

the grant any conditions, which it supposes to be required by its interests or policy” (49 U.S.:494).

Far from a source of controversy, the inheritance

tax was praised in the Congressional Globe as a “large

source of revenue, which could be most conveniently

collected” (Office of Tax Analysis, 1963:2). Senator

James McDougall of California argued that the tax was

the least burdensome alternative for raising needed revenue because “those who pay it, never having had it,

never feel the loss of it” (Paul, 1954:15). According to

The Internal Revenue Record, the 1862 tax was “one of

the best, fairest, and most easily borne [taxes] that political economists have yet discovered as applicable to

modern society” (1869:113).

The Tax Act of 1862

The advent of the Civil War again forced the Federal government to seek additional sources of revenue,

and a Federal inheritance tax was enacted in the Tax

Act of 1862. However, the 1862 tax differed from its

predecessor, the stamp tax of 1797. In addition to a

document tax on the probate of wills and letters of administration, the 1862 tax package included a tax on the

privilege of inheritance. Originally, the tax only applied

to the devise of personal property, and tax rates were

graduated based on the legatee’s relationship to the decedent, not on the value of the bequest or size of the

estate. Rates ranged from 0.75 percent of bequests to

ancestors, lineal descendants, and siblings to 5 percent on

bequests to distant relatives and those not related to the

decedent. Estates of less than $1,000 were exempted, as

were bequests to the surviving spouse. Bequests to charities were taxed at the top rate, despite pleas from many in

Congress that the tax should be used to encourage such

gifts (Office of Tax Analysis, 1963). In addition, the stamp

tax ranged from 50 cents to $20 on estates valued up to

$150,000, with an additional $10 assessed on each $50,000

or fraction thereof over $150,000.

The mounting cost of the Civil War led to the reenactment of the 1862 Revenue Act, with some modifications. These changes, established in the Internal Revenue Law of 1864, included the addition of a succession

tax--a tax on bequests of real property--and an increase

in legacy tax rates (see Table 1). In addition, the tax

was applied to any transfers of real property made during the decedent’s life for less than adequate consideration, thus establishing the nation’s first gift tax. Wedding gifts were exempted. Transfers of real property to

charities, again, were taxed at the highest rates. Bequests to widows, but not widowers, were exempt from

the succession tax, as were bequests of less than $1,000

to minor children.

The end of the Civil War and subsequent discharge

T a b le 1: 1864 D e a th Tax Rates

Relationship

Rates on

Rates on

Increase in legacies

real property

legacies

over 1862

Lineal issue, ancestors

1.00%

1.00%

0.25%

S iblings

2.00%

1.00%

0.25%

D e s c e n d a n t s o f siblings

2.00%

2.00%

0.50%

Uncle, aunt, and their descendants

4.00%

4.00%

1.00%

Great uncle, aunt, and their descendants

5.00%

5.00%

1.00%

Other relatives, not related

6.00%

6.00%

1.00%

Charities

6.00%

6.00%

1.00%

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of the debts associated with the war gradually eliminated

the need for extra revenue provided by the 1864 Act.

Therefore, in 1870, the inheritance tax was repealed (Internal Tax Customs Duties Act). The probate tax was

modified in 1867 to exempt all estates less than $1,000

(Internal Revenue Act of 1867), and repealed in 1872

(Customs Duties and Internal Revenue Taxes Act).

Between 1863 and 1871, the tax had contributed a total

of about $14.8 million to the Federal budget (see Table

2, Fiekowski, 1959). In an important victory, the Supreme Court upheld the constitutionality of the Federal

inheritance tax in Scholey v. Revenue Service (1874).

The court ruled that the inheritance tax was not a direct

tax, but an excise tax authorized by Article 1, Section 8

was also advanced in the debates surrounding the structure of the inheritance tax (Paul, 1954).

Inheritance Taxation and the Industrial Revolution

Table 2: Death Tax Receipts, Total Tax Receipts

in the United States, for Fiscal Years 1863-1871

Total tax

Death tax

Death taxes

receipts

receipts

as a percentage

(millions)

(millions)

of total taxes

1863

41.0

0.1

0.1%

1864

117.1

0.3

0.3%

1865

211.1

0.5

0.3%

1866

310.9

1.2

0.4%

1867

265.9

1.9

0.7%

1868

191.2

2.8

1.5%

1869

160.0

2.4

1.5%

1870

185.2

3.1

1.7%

1871

144.0

2.5

1.7%

Year

The repeal of the Civil War inheritance tax was

achieved with little public notice. However, inheritance

and the responsibility of government to ensure equal

opportunities for its citizenry would invoke intense debates by the close of the century. The postwar period

was one of unprecedented economic and population

growth. It was also one that saw enormous changes in

the American way of life. The industrial revolution was

at hand and, as Americans sought the fruits of mass production, the growth of industry spurred the development

of large urban centers and provided new jobs for both

natural born citizens and the ever increasing number of

immigrants (Bruchey, 1988).

The growth of industrial America and, with it, the

prosperity of entrepreneurs who pioneered in the creation of new products and services came at a time when

declining prices for agricultural products were hurting

American farmers in the West and in the South. The

wealth of the country became increasingly concentrated

in the hands of industrialists, as investments in stocks

began to supplant those in real estate. Because tariffs

and real estate taxes formed the basis of government

finances at the Federal and State levels, the burden of

supporting government fell disproportionately on farmers, while the wealth of the industrial giants was relatively untouched. These events brought about a series

of important political and social movements, including

a renewed discussion of the institution of inheritance

(Paul, 1954).

In Europe, the growing discontent with the concentration of national wealth in the hands of a relatively

few privileged families, and with the perpetuation of that

wealth through bequests, coincided with the rise of communism (Chester, 1982). In England, economist John

Stuart Mill (1929) urged limits on the rights of individuals to bequeath property to heirs. He argued that inheritance of property had its roots in feudal society where

land was used, but not owned, by the family. The death

of a family member had little effect on the use of the

land. This was not the case in “modern” society where

of the Constitution.

The 1864 Act, although altered by subsequent legislation, introduced several features, which later formed

the foundation of the modern transfer tax system. Some

of these features included the exemption of small estates, the taxation of certain lifetime transfers that were

testamentary in nature, and the special treatment of bequests to the surviving spouse. The idea of using tax

policy to encourage bequests to charitable organizations

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FEDERAL TAXATION OF INHERITANCE AND WEALTH TRANSFERS

grown children left their parents’ homes and pursued

independent lives and, therefore, no longer held a claim

on their parents’property. Mill, therefore, proposed “fixing a limit to what anyone may acquire by mere favor of

others without exercise of his facilities,” adding that “if

he desires any further accession of fortune, he shall work

for it” (Mill, 1994:35). Thus, Mill condoned a graduated tax on inheritances as a proper limiting mechanism.

In agreement with Locke and Bentham, he proposed

eliminating bequests to non-family members.

children a curse than the “almighty dollar” (Carnegie,

1962:21). The parent who leaves his son enormous

wealth generally deadens the talents and energies of the

son and tempts the son to lead a less useful and less

worthy life than he otherwise would, according to

Carnegie. He did not advocate leveling the wealth distribution, however. Rather, he strongly believed that

individuals should be encouraged to amass great wealth

and spend it, not on opulent living, but on important,

carefully planned works for the public good. Carnegie

also advocated a confiscatory inheritance tax, which, he

suggested, would force the wealthy to be more attentive

to the needs of the state--to use their money for noble

causes during their lifetimes. Dismissing arguments that

a large inheritance tax would diminish the incentive to

accumulate wealth, Carnegie maintained that, for the

class whose ambition it is to leave great fortunes, “it

will attract even more attention, and, indeed, be a somewhat nobler ambition, to have enormous sums paid over

to the State from their fortunes” (Carnegie, 1962:22).

In America, the populist movement was also calling for limits on inheritance and changes in tax laws to

make the very wealthy “pay their fair share.” Writers

such as Joseph Kirkland, Mark Twain, William Dean

Howells, and others were addressing the evils of capitalism and the plight of the farmer. Reformers such as

Joseph Pulitzer, publisher of the New York World, embraced the cause of the people rather than that of “purseproud potentates” (Paul, 1954:30). Pulitzer urged the

elimination of tariffs, since tariffs protected businesses

and their owners from competition and put the burden

of taxation disproportionately on consumers. That sentiment was echoed by many in Congress, including Congressman Henry George, who advocated an income tax

in “an attempt to tax men on what they have, not on

what they need” (Paul, 1954:31). Other reformers, such

as Charles Bellamy, a utopian socialist writing in 1884,

called for limits on inheritance, especially a limit on the

amount of property that could be distributed by will

(Chester, 1982). “Steep [inheritance] taxes ... would

decrease the number of social drones,” according to Professor Gustavus Meyer, author of The Ending of Hereditary American Fortunes. “Heirs would have less

funds to indulge in lavish expenditures, and the tax burden would be shifted from the laboring and consuming

public” (Office of Tax Analysis, 1963:7). Richard T.

Ely, author of Taxation in American States and Cities,

hailed the inheritance tax as a tax that was “in accord

with the principles of Jeffersonian Democracy and with

the teachings of some of the best modern thinkers on economic and social topics” (Office of Tax Analysis, 1963:7).

Defenders of material accumulation and of the right

to bequeath wealth to successive generations found refuge in the philosophy of Social Darwinism. Related to

the writings of the naturalist Charles Darwin, Social

Darwinism was first proposed in England by Herbert

Spencer and was later popularized by William Graham

Sumner in the United States. Foremost, Sumner argued

that government should not interfere with an individual’s

natural right to struggle for survival. Therefore, he saw

no problem with inequalities in the concentration of

wealth that arose through the course of that struggle.

Those who wanted either to limit the ability to accumulate wealth or to limit the amount of that wealth, which

might be passed on to future generations, were, according to Sumner, merely envious of the wealthy and had

no right to dictate social policy (Chester, 1982). Sumner

viewed a competitive economy as an essential component

of a democratic society. Indeed, the discipline imposed by

competition was viewed widely as a necessary mechanism

for the development of character (Bruchey, 1988).

Reformers achieved the passage of the Income Tax

Act of 1894. The value of all personal property acquired

by gift or inheritance was included in this graduated tax,

which had a top rate of two percent. Critics of the tax

heralded it as a blow to American democracy and pre-

One of the outstanding proponents of a substantial

Federal inheritance tax was industrialist Andrew

Carnegie. In his essay, “The Gospel of Wealth,” he advised that “the thoughtful man” would rather leave his

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dicted that it would ultimately lead to anarchy. Economist David A. Wells called it “a system of class legislation, full of the spirit of communism,” while the North

American Review called it the fulfillment of the “wildest socialist dream” (Paul, 1954:34). The income tax

was quickly appealed to the United States Supreme Court

in the case of Pollock v. Farmers Loan and Trust Company (1895) and declared unconstitutional as an

unapportioned direct tax.

Despite strong opposition, the inheritance tax was

made law by the War Revenue Act of 1898. A duty on

the estate itself, not on its beneficiaries, the 1898 tax

served as a precursor to the present Federal estate tax.

Rates of tax ranged from 0.75 percent to 15 percent,

depending both on the size of the estate and on the relationship of legatee to decedent (see Table 3). Only personal property was subject to taxation. A $10,000 exemption was provided to exclude small estates from the

tax; bequests to the surviving spouse were also excluded.

Estate Tax of 1898

In the case Knowlton v. Moore, the U.S. Supreme

Court declared the constitutionality of the 1898 inheritance tax. The 1898 Act was amended in 1901 to exempt certain gifts from inheritance taxation, including

gifts to charitable, religious, literary, and educational organizations and gifts to organizations dedicated to the

encouragement of the arts and the prevention of cruelty

to children (War Revenue Reduction Act, 1901). The

end of the Spanish-American War came in 1902, and

opponents of the tax wasted no time in exacting its repeal later that year (War Revenue Repeal Act, 1902).

Although short-lived, the tax raised about $14.1 million

(see Table 4, Fiekowsky, 1959).

In 1898, progressive reformers--still stinging from

the defeat of the Federal income tax--proposed a Federal death tax as a means to raise revenue for the Spanish-American War. Unlike the two previous Federal inheritance and probate taxes levied in times of war, the

1898 tax proposal provoked heated debate. Supporters

of the tax, including Congressman Oscar Underwood of

Alabama, used the debate to further their populist agenda.

“The inheritance tax is levied on a class of wealth, a

class of property, and a class of citizens that do not otherwise pay their fair share of the burden of government,”

Underwood said (Office of Tax Analysis, 1963:11).

However, conservatives, such as Congressmen Henry

Cabot Lodge and Steven Elkins, opposed the tax. They

suggested that the tax would force businesses to liquidate their assets and would destroy incentives to accumulate wealth, incentives which were essential to the

growth of capital markets (Paul, 1954).

Prelude to the Modern Estate Tax: 1900-1916

The years immediately preceding and following the

turn of the 20th century saw an unprecedented number

of mergers in the manufacturing sector of the economy.

T a b l e 3 : 1898 D e a th T a x R a te s

$10,000

$25,000

$100,000

$500,000

$1,000,000

under

under

under

under

or

$25,000

$100,000

$500,000

$1,000,000

m o re

Lineal issue, ancestors, siblings

0.75%

1.125%

1.50%

1.875%

2.25%

D e s c e n d a n ts o f siblings

1.50%

2.25%

3.00%

3.75%

4.50%

Uncle, aunt, a n d the ir descendants

3.00%

4.50%

6.00%

7.50%

9.00%

R e l a tionship

Great uncle, aunt, and their descendants

4.00%

6.00%

8.00%

10.00%

12.00%

All others

5.00%

7.50%

10.00%

12.50%

15.00%

N o te : Estates under $10,000 were exempt fro m the tax.

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FEDERAL TAXATION OF INHERITANCE AND WEALTH TRANSFERS

sive tax on all fortunes beyond a certain amount, either

given during life or devised or bequeathed at death. The

tax would be directed at “malefactors of great wealth,

the wealthy criminal class,” according to Roosevelt

(Paul, 1954:88). Later in 1906, he endorsed both an

inheritance tax and a graduated income tax. However,

he was unable to convince a majority of the Congress to

enact the reforms (Bittker, 1990).

Table 4: Death Tax Receipts, Total Tax Receipts

in the United States, for Fiscal Years, 1899 - 1902

Total tax

Death tax

Death taxes

receipts

receipts

as a percentage

(millions)

(millions)

of total taxes

1899

1900

273.5

295.3

1.2

2.9

0.5%

1.0%

1901

306.9

5.2

1.7%

1902

271.9

4.8

1.8%

Year

In 1909, newly elected President Taft, although unenthusiastic about an income tax, endorsed the inheritance tax. A special session of Congress was called in

March 1909 to address the revenue needs that had arisen

due, in part, to the bank panic of 1907. In that session,

Representative Sereno Payne, the Republican chairman

of the House Ways and Means Committee, proposed a

graduated inheritance tax. The tax was both correct in

principle and easy to collect, according to Payne (Paul,

1954). However, after the enactment of a corporate excise tax, the inheritance tax was dropped by the U.S.

Senate. Efforts to enact an income tax that year were

also derailed.

A new form of ownership, the holding company, caught

on and, by 1904, was responsible for 86 percent of large

mergers (Bruchey, 1988). The result of these mergers

was a concentration of wealth in a few powerful companies and in the hands of the businessmen who headed them.

Along with such wealth came great political power, and

the rise of plutocracy fueled the growth of the progressive movement into the early part of the 20th century.

The debate over the institution of inheritance, as well

as debate over the most suitable source of Federal revenues, continued until the passage of the 16th Amendment to the Constitution. With the 16th Amendment

came the enactment of the Federal income tax. The establishment of a national income tax served, at least temporarily, to pacify the public’s need to redress the inequalities in wealth, which arose as a result of America’s

industrialization (Office of Tax Analysis, 1963). However, the election of Woodrow Wilson in 1912 would

serve as a catalyst to the eventual passage of a permanent Federal estate tax.

The debate that had surrounded the enactment and

repeal of both the 1894 income tax and the 1898 inheritance tax gave new credence to the idea of Federal taxes

as a means of addressing societal inequalities. Under

the influence of Carnegie and others, the general public

accepted the notion that large inheritances lead to idleness and profligacy, states which contradicted their Puritanical world view. America was founded on the belief that each citizen should begin life with an equal opportunity to succeed and that the economic well-being

of the community required that each member earn his

or her own living (Bittker, 1990). The inheritance tax

was proclaimed an appropriate tool for ensuring the fulfillment of this manifesto.

In his inaugural address, President Wilson pledged

to ensure equality of opportunity for every American.

According to Wilson, government was an instrument to

be used by people to promote the general welfare (Paul,

1954). Espousing that view, he instituted a number of

reforms, including the Clayton Act (1914), which prohibited unfair labor practices, and the Federal Reserve

Act. Wilson also created the Federal Land Bank, which

made low interest loans to farmers. He opposed high

tariffs and, at the advent of World War I, he moved to

eliminate such tariffs on U.S. allies. The elimination of

By 1906, the progressive movement had an ally in

the White House. President Theodore Roosevelt, in his

annual message to Congress, endorsed an inheritance

tax and suggested that its “primary objective should be

to put a constantly increasing burden on the inheritance

of those swollen fortunes, which it is certainly of no

benefit to this country to perpetuate” (Bittker, 1990:3).

In the spring of that year, he again called for a progres-9-

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tariffs caused a loss of Federal revenue, a loss that was

amplified by the buildup of armaments and supplies following the sinking of the U.S. passenger ship Lusitania.

Facing a deficit of $177 million, Congress was forced

to find additional sources of revenue, and, once again, a

form of inheritance tax was considered a prime candidate (Office of Tax Analysis, 1963).

n The Modern Estate Tax

In May 1916, Representative Cordell Hull of Tennessee introduced a proposal for a Federal estate tax in

response to what he called “an irrepressible conflict”

between the rich and the poor. He suggested that, compared to the non-wealthy, the wealthy should pay a larger

share of the cost of government. Hull proposed an excise tax on estates prior to the transfer of assets to the

beneficiaries, rather than an inheritance tax. This, according to Hull, would form “a well-balanced system of

inheritance taxation between the Federal government and

the various States” and could be “readily administered

with less conflict than a tax levied upon the shares” (Paul,

1954:107). While an inheritance tax, with graduated

rates for each recipient, encourages greater dispersion

of the estate, the proposed estate tax eliminated the burden imposed by an inheritance tax on estates with fewer

beneficiaries (Bittker, 1990).

not available to nonresidents owning taxable property

in the United States. This relatively high filing threshold was adopted in deference to the right of States to tax

small estates. According to the Act of 1916, the gross

estate included all property, both personal and real,

owned by a decedent; life insurance payable to the estate; transfers made for inadequate consideration; transfers made in contemplation of death--within two years

of death; and transfers that took effect on or after death.

Also included in the gross estate was all joint property,

unless proof could be supplied supporting the contribution of the co-owner. A deduction was allowed for administrative expenses and losses, debts, claims, and funeral costs, as well as for expenses incurred for the support of the decedent’s dependents during the estate’s administration. The tax rates were graduated from one

percent on the first $50,000 of net estate to ten percent

on the portion exceeding $5 million. According to the

act, taxes were due one year after the decedent’s death,

and a discount of five percent of the amount due was

allowed for payments made within one year of death. A

late payment penalty of six percent was assessed unless

the delay was deemed “unavoidable.”

Understandably, reaction to Hull’s estate tax was

mixed. Having long advocated limits on inheritance,

prominent economists such as John A. Ryan, Richard

T. Ely, Wilford F. King, and E.R.A. Seligman supported

the estate tax. In contrast, the New York Times declared

the tax a “frank project of confiscation.” Harvard economist C.J. Bullock called it a “fiscal crime” (Paul,

1954:108). However, on September 8, 1916, Congress

enacted an estate tax that would survive, in large part, to

the present (Revenue Act of 1916).

The 1916 estate tax was appealed to the United States

Supreme Court in New York Trust Company v. Eisner.

The plaintiff argued that, unlike the earlier inheritance

taxes that applied only to the receipt of property, the

new estate tax was an infringement on the States’ right

to regulate the process of transferring property at death.

Justice Oliver Wendell Holmes, in upholding the tax,

reasoned that, “if a tax on property distributed by the

laws of a State, determined by the fact that distribution

has been accomplished, is valid, a tax determined by the

fact that distribution is about to begin is no greater interference and is equally good” (256 U.S.:348). Thus, the

Federal estate tax became a lasting component of the

Federal tax system.

The Revenue Act of 1916

Significant Tax Law Changes: 1916 to Present

The Federal estate tax was applied to net estates,

defined as the total property owned by a decedent, the

gross estate, less deductions. While a $50,000 exemption was allowed for all residents, the exemption was

Since its inception in 1916, the basic structure of

the modern Federal estate tax, as well as the law from

which it is derived, has remained largely unchanged.

However, in the eight decades that followed the Rev-

- 10 -

FEDERAL TAXATION OF INHERITANCE AND WEALTH TRANSFERS

enue Act of 1916, the U.S. Congress has enacted several important additions to, and revisions of, the modern estate tax structure (see Figure 1). There have also

been occasional adjustments to the filing thresholds, tax

brackets, and marginal tax rates (see Table 5). The first

such addition was a tax on inter vivos gifts, a gift tax,

introduced by the Revenue Act of 1924. The new tax

was imposed because Congress realized that wealthy individuals could avoid the estate tax, invoked at death,

by transferring wealth during their lifetimes. That is,

due to inter vivos giving, the estate tax’s inherent capacity to redistribute wealth accumulated by large estates was effectively circumvented, and a source of revenue was removed from the Federal government’s reach.

The Congressional response was a gift tax applied to

lifetime transfers.

the Revenue Act of 1948. Indeed, the estate tax marital

deduction, as enacted by the 1948 Act, permitted a

decedent’s estate to deduct the value of property passing to a surviving spouse, whether passing under the

will or otherwise (Zaritsky and Ripy, 1984). However,

the deduction was limited to one-half of the decedent’s

adjusted gross estate--the gross estate less debts and administrative expenses. In a similar manner, the gift tax

marital deduction allowed a “donor [spouse] to deduct

one-half of the interspousal gift, other than a gift of community property” (Zaritsky and Ripy, 1984:16). Further, the Act of 1948 introduced the rule on “split-gifts,”

which permitted a non-donor spouse to act as donor of

half the value of the donor spouse’s gift. The rule on

split gifts effectively permitted a married couple to transfer twice as much wealth tax free in a given year.

The first Federal gift tax was short-lived, however.

Due to strong opposition to estate and gift taxes during

the 1920’s, the gift tax was repealed by the Revenue

Act of 1926 (Zaritsky and Ripy, 1984). Then, just six

years later, when the need to finance Federal spending

during the Great Depression outweighed opposition to

gift taxation, the Federal gift tax was reintroduced by

the Revenue Act of 1932 (Zaritsky and Ripy, 1984). A

donor could transfer $50,000 free of tax over his or her

lifetime with a $5,000-per-donee annual exclusion from

gift tax.

With few other exceptions, the Congressional

Record remained free of reference to the estate tax and

the entire transfer tax system until the enactment of the

Tax Reform Act (TRA) of 1976. By creating a unified

estate and gift tax framework that consisted of a “single,

graduated rate of tax imposed on both lifetime gift and

testamentary dispositions” (Zaritsky and Ripy, 1984: 18),

the act eliminated the cost differential that had existed

between the two types of giving. Prior to the act, “it

cost substantially more to leave property at death than

to give it away during life” (Bittker, 1990:20) due to the

lower tax rate applied to inter vivos gifts. The Tax Reform Act of 1976 also merged the estate tax exclusion

and the lifetime gift tax exclusion into a “single, unified

estate and gift tax credit, which may be used to offset

gift tax liability during the donor’s lifetime but which, if

unused at death, is available to offset the deceased

donor’s estate tax liability” (Zaritsky and Ripy, 1984:18).

An annual gift exclusion of $3,000 per donee was retained.

The Revenue Act of 1935 introduced the optional

valuation date election. While the value of the gross

estate at the date of death determined whether an estate

tax return had to be filed, the act allowed an estate to be

valued, for tax purposes, one year after the decedent’s

death. With this revision, for example, if the value of a

decedent’s gross estate dropped significantly after the

date of death--a situation faced by estates during the

Depression--the executor could choose to value the estate at its reduced value after the date of death. The

optional valuation date, today referred to as the alternate valuation date, was later changed to six months after the decedent’s date of death.

Most outstanding among the pre-1976 changes to

estate tax law was the estate and gift tax marital deductions, as well as the rule on “split gifts” introduced by

The 1976 tax reform package also introduced a tax

on generation-skipping transfers (GST’s). Prior to passage of the act, a transferor, for example, could create a

testamentary trust and direct that the income from the

trust be paid to his or her children during their lives and

then, upon the children’s deaths, that the principal be

paid to the transferor’s grandchildren. The trust assets

included in the transferor’s estate would be taxed upon

- 11 -

JOHNSON AND ELLER

Figure 1: Significant Tax Law Changes, 1916 - 1995

1916 - Estate tax enacted

1918 - Spouse's dower rights,

Exercised general powers of appointment, and

Insurance payable to estate and insurance

1924 - Gift tax enacted

over 40,000 to beneficiaries included

State death tax credit

Charitable deduction

Revokable transfers

included

1926 - Gift tax repealed

1932 - Gift tax reintroduced

Additional estate tax

1935 - Alternate valuation

1942 - Insurance paid for by decedent,

Powers of appointment (not limited) and

Community property unless spouse contributed

included

1948 - Marital deduction replaced

1951 - Powers of appointment rule relaxed

1942 community prop. rules

1954 - Most life insurance, unless decedent

never owned, included

1976 - Unified estate and gift tax

Generation-skipping transfer tax (GST)

Orphan deduction

Carryover basis rule

Special valuation and payment rules

for small business and farms

Increased marital deduction

1980 - Carryover rule repealed

1981 - Unlimited marital deduction

Full value pension benefits, but

only 1/2 joint property included

Orphan deduction repealed

1986 - ESOP deduction

GST modified

1987 - Phaseout of graduated rates and

unified credit for estates over

$10 million

1988 -QTIP allowed for marital deduction

Estate freeze and GST modified

1989 - ESOP deduction dropped

1990 - Estate freeze rules replaced

1995

- 12 -

FEDERAL TAXATION OF INHERITANCE AND WEALTH TRANSFERS

Table 5: Estate Tax Law Changes Affecting Filing Requirements and Tax Rates, 1916-1995

Basic tax

Year

Exemption Initial rate Top rate

Supplemental tax

Top bracket Exemption Initial rate Top rate

Top bracket

1916

50,000

1

10

5,000,000

1917

50,000

2

25

10,000,000

1918-23

50,000

1

25

10,000,000

1924-25

50,000

1

40

10,000,000

1926-31

100,000

1

20

10,000,000

1932-33

100,000

1

20

10,000,000

50,000

1

45

10,000,000

1934

100,000

1

20

10,000,000

50,000

1

60

10,000,000

1935-39

100,000

1

20

10,000,000

40,000

2

70

50,000,000

100,000

1

20

10,000,000

40,000

2

70

50,000,000

1941

100,000

1

20

10,000,000

40,000

3

77

10,000,000

1942-53

100,000

1

20

10,000,000

60,000

3

77

10,000,000

1954-76

60,000

3

77

10,000,000

120,000

18

70

5,000,000

1978

134,000

18

70

5,000,000

1979

147,000

18

70

5,000,000

1980

161,000

18

70

5,000,000

1981

175,000

18

70

5,000,000

1982

225,000

18

65

4,000,000

1983

275,000

18

60

3,500,000

1984

325,000

18

55

3,000,000

1985

400,000

18

55

3,000,000

500,000

18

55

3,000,000

600,000

18

55

3,000,000

1940

1977

a

b

1986

1987-95

c,

d

a. 10% war surtax added.

b. Unified credit replaces exemption.

c. Tax rate was to be reduced to 50% on amounts beginning in 1988, but was postponed until 1992,

then repealed retroactively in 1993 and set permanently to the 1987 levels.

d. Graduated rates and unified credits phased out for estates over $10,000,000.

- 13 -

JOHNSON AND ELLER

the transferor’s death. Then, any trust assets included

in the grandchildren’s estates would be taxed at their

deaths. However, the intervening beneficiaries, the

transferor’s children in this example, would pay no estate tax on the trust assets, even though they had enjoyed the interest income derived from those assets.

Congress responded to the GST tax leakage in the Tax

Reform Act of 1976. The act added a series of rules,

applied to GST’s valued at more than $250,000, which

were designed to treat the termination of the intervening beneficiaries’ interests as a taxable event (Zaritsky

and Ripy, 1984). In 1986, Congress simplified the GST

tax rates and increased the amount a grantor could transfer into a GST tax free, from $250,000 to $1 million.

As with the gift tax exclusion, “married persons may

combine their [GST tax] exemptions, thus allowing the

couple a $2,000,000 exemption” (Bittker 1990:31).

Overall, the GST tax “ensures that the transmission of

hereditary wealth is taxed at each generation level”

(Bittker, 1990: 30).

The Economic Recovery Tax Act (ERTA) of 1981

brought several notable changes to estate tax law. Prior

to 1982, the marital deduction was permitted only for

transfers of property in which the decedent’s surviving

spouse had a terminable interest--an interest that grants

the surviving spouse power to appoint beneficiaries of

the property at his or her own death. Such property is,

ultimately, included in the surviving spouse’s estate.

However, the ERTA of 1981 allowed the marital deduction for life interests that were not terminable, as long

as the property was “qualified terminable interest property” (QTIP), defined as “property in which the [surviving] spouse has sole right to all income during his or her

life, payable at least annually, but no power to transfer

the property at death” (Johnson, 1994:60). To utilize

the deduction, however, the QTIP must be included in

the surviving spouse’s gross estate. The 1981 Act also

introduced unlimited estate and gift tax marital deductions, thereby eliminating quantitative limits on the

amount of estate and gift tax deductions available for

interspousal transfers.

The ERTA of 1981 increased the unified transfer

tax credit, the credit available against both the gift and

estate taxes. The increase, from $47,000 to $192,800,

was to be phased in over six years, and the increase would

effectively raise the tax exemption from $175,000 to

$600,000 over the same period (Johnson, 1990:20). The

ERTA of 1981 also raised the annual gift tax exclusion

to $10,000 per donee; an unlimited annual exclusion

from gift tax was allowed for the payment of a donee’s

tuition or medical expenses (Bittker, 1990). Finally,

through ERTA, Congress enacted a reduction in the top

estate, gift, and generation-skipping transfer tax rates

from 70 percent to 50 percent, applicable to transfers

greater than $2.5 million. The reduction was to be phased

in over a four-year period. However, later legislation-both the Deficit Reduction Act of 1984 and the Revenue Act of 1987--delayed the decrease in the top tax

rate from 55 percent to 50 percent until after December

31, 1992. Then, in 1993, Congress again revised the

top tax rate schedule, imposing a marginal tax rate of 53

percent on taxable transfers between $2.5 million and

$3 million and a maximum marginal tax rate of 55 percent on taxable transfers exceeding $3 million. The

higher rates were applied retroactively to January 1, 1993

(Legislative Affairs, 1993).

The Revenue Act of 1987, also called the Omnibus

Budget Reconciliation Act of 1987, introduced legislation to eliminate estate tax avoidance schemes known

as “estate freezes.” An estate freeze “involved division

of ownership of a business into two parts: a frozen interest and a growth interest” (Miller, 1988:1336). By

selling or giving away the growth interest, the interest

that held the potential for becoming valuable if the business prospered, “a taxpayer could maintain control of

the business and continue to enjoy the income from the

business while excluding any future appreciation in its

value from his gross estate” (Miller, 1988:1336). The

1987 legislation mandated treating the transferor’s frozen interest as a retained life estate in the growth interest that was transferred. Therefore, the growth interest

would be included in the owner’s gross estate upon his

or her death. In 1988, with the passage of the Technical

and Miscellaneous Revenue Act, Congress revised its

antifreeze legislation to include a different, and stricter,

approach toward the valuation of business interests transferred prior to death (Miller, 1988). These rules, however, proved to be too restrictive. The Revenue Reconciliation Act of 1990 repealed all prior estate-freeze legislation and, in its place, substituted strengthened gift

tax rules dealing with the valuation of the growth inter-

- 14 -

FEDERAL TAXATION OF INHERITANCE AND WEALTH TRANSFERS

est at the time of the transfer. The 1990 Act also established specific rules for valuing the retained interest for

estate tax purposes (Johnson, 1994).

on U.S. Treasury bonds redeemed to pay these taxes is

exempt from taxation.

n Transfer Taxes and Estate Planning

Current Estate Tax Law

According to current estate tax law, a Federal estate

tax return must be filed for every deceased U.S. citizen

whose gross estate valued on the date of death, combined with adjusted taxable gifts made by the decedent

after December 31, 1976, and total specific exemptions

allowed for gifts made after September 8, 1976, equals

or exceeds $600,000. The estates of nonresident aliens

must also file if property held in the United States exceeds $60,000. All of a decedent’s assets, as well as the

decedent’s share of jointly owned and community property assets are included in the gross estate for tax purposes. Also considered are most life insurance proceeds,

property over which the decedent possessed a general

power of appointment, and certain transfers made during life that were (1) revokable or (2) made for less than

full consideration. An estate is allowed to value assets

on a date up to six months after a decedent’s death if the

value of assets declined during that period. Special valuation rules and a tax deferment plan are available to an

estate that is primarily comprised of a small business or

farm.

Expenses and losses incurred in the administration

of the estate, funeral costs, and the decedent’s debts are

allowed as deductions against the estate for the purpose

of calculating the tax liability. A deduction is also allowed for the full value of bequests to the surviving

spouse, including bequests in which the spouse is given

only a life interest, subject to certain restrictions. Bequests to charities are also fully deductible. A unified

tax credit of $192,800 is allowed for every decedent

dying after December 31, 1986. Credits are also allowed

for death taxes paid to States and other countries, as well

as for any gift taxes the decedent may have paid during

his or her lifetime. The estate tax return (Form 706)

must be filed within nine months of the decedent’s death

unless a six-month extension is requested and granted.

Taxes owed for generation-skipping transfers in excess

of the decedent’s $1-million exemption and taxes on

certain retirement fund accumulations are due concurrent with any estate tax liability. Interest accumulated

As the Federal transfer tax system has become more

complex, individuals have increasingly turned to estate

planners for tax minimization strategies. Estate planners, in turn, keep their clients apprised of tax law

changes, which may have an adverse effect on testamentary arrangements already in place. This has made

estate-planning more of a process than a one-time event.

Tax law provisions can have a significant impact on both

the ownership of assets during one’s lifetime and the

disposition of an estate at death. Occasionally, legislative intervention is specifically intended to influence

bequest patterns. Such was the case with the enactment

of the generation-skipping transfer tax. In other instances, changes in the tax code seeking to provide relief to specific segments of the population or those made

in response to revenue needs will have a bequest effect.

Allowable deductions, tax credits, and tax rates all play

a role in bequest decisions.

Tax law changes associated with the Economic Recovery Tax Act (ERTA), which applied to decedents

dying on or after January 1, 1982, provided for an unlimited deduction from the value of the gross estate for

bequests to a surviving spouse; prior to that, the deduction was limited to one-half the adjusted gross estate.

Figure 2 shows the full value of property bequeathed to

surviving spouses as a percentage of the decedents’distributable estates (total gross estate less expenses; debts;

and Federal, State, and foreign death taxes) for selected

years between 1972 and 1992. The percentage rises from

about 60 percent prior to 1982 to about 70 percent after

1982 and passage of ERTA. This suggests a significant

change in bequest behavior among married persons, with

more property passing to the surviving spouse and, perhaps, a reduction in the amount bequeathed to others,

including children and charities. Careful estate planning, however, may allow a decedent to take advantage

of tax avoidance strategies and maintain his or her bequest goals. A popular strategy is to form a trust known

as an “A-B trust.” Here, the estate planner creates one

trust in the amount of the decedent’s tax exemption

($600,000), sometimes called a Unified Credit Trust, and

- 15 -

JOHNSON AND ELLER

puts the rest of the estate into a second, usually larger,

QTIP (Qualified Terminable Interest Property) trust.

Income from both trusts is directed to the surviving

spouse for life. However, the smaller trust is really set

aside for the children. The surviving spouse is typically

given more access to the principal of the second trust

and may have limited powers to appoint beneficiaries.

Upon the death of the second spouse, the remainder

passes to the children. Thus, the first decedent takes

advantage of the unlimited marital deduction but ensures

that the children will eventually benefit from the estate.

The value of property bequeathed to charities, as

well as the number of decedents making gifts to charities, declined after ERTA (see Figure 3). This may represent a shift in bequests from charities to the surviving

spouse as a result of the unlimited marital deduction. A

reduction in the top tax rate from 77 percent and increases in the unified credit since 1977 may also explain the decrease in charitable bequests. Studies of

charitable giving at death have shown that tax rates seem

to exert an influence on the size of charitable bequests,

as well as on the number of charitable organizations

named as beneficiaries (Joulfaian, 1991). This is so because the amount of tax savings attributable to the deduction decreases as rates decline. Charitable bequests

from decedents with relatively small- and medium-sized

estates seem particularly sensitive to changes in the rate

structure (Boskin, 1976; Clotfelter, 1985).

Federal estate taxes also encourage individuals to

begin transferring wealth well before death in order to

minimize the size of their estates. Lifetime giving may

be an important component of an individual’s overall

Figure 2: Marital Bequests as a Percentage of Distributable

Estate, 1972 -1995, for Married Decedents with Estates

of $600,000 or M ore in Constant 1987 Dollars

Percent

80

60

40

20

0

1972

1976

1982

1986

1989

1993

Filing year

Note: Distributable estate is total gross estate, less expenses, debts, and

Federal, State, and foreign death taxes.

- 16 -

1995

FEDERAL TAXATION OF INHERITANCE AND WEALTH TRANSFERS

Figure 3: Charitable Bequest Data, 1962-1995, for Estates of

$600,000 or More in Constant 1987 Dollars

Percent

25

Donors as a percentage of all filers

20

15

10

5

Bequests as a percentage of distributable estate

0

1962

1965

1969

1972

1976 1982

Filing year

1986

1989

1993

1995

Note: Distributable estate is total gross estate, less expenses, debts, Federal,

State, and foreign death taxes

bequest strategy. Federal gift tax law allows a donor to

make annual gifts up to $10,000 per donee without incurring a transfer tax liability; married couples are allowed up to $20,000 per donee. Children are usually

the primary recipients of these transfers. There are a

variety of trust instruments and financial arrangements

that may be used in conjunction with gift giving to remove assets from the estate. These affect the timing

and the amount of the tax liability, as well as the types

of assets and degree of ownership eventual beneficiaries receive.

the current transfer tax system, including estate, gift, and

generation-skipping transfer taxes, remains a topic of

Congressional, academic, and popular discourse. Further, the fundamental tenets of current discussions find

their roots in the historic arguments of early thinkers,

such as Adam Smith, David Ricardo, and Jeremy

Bentham. Although the transfer tax system is often cited

as a negative influence on the accumulation of capital

stock in the U.S. economy, as well as a negative influence on the vitality of small business, the system is preserved in a form that differs little from its origins.

n Current Transfer Taxation: Criticisms

and Proposals

The scope of the transfer tax system, as measured

by Federal revenue flows, is quite narrow. While it is

reasonable to argue that a Federal tax is levied, at least

in part, for its contribution to Federal budget inlays, the

revenue derived from estate and gift taxes does not contribute significantly to total budget receipts. “Taxes on

Eight decades since the introduction of the modern

Federal estate tax, and two centuries since discussions

of inheritance and taxation first appeared in America,

- 17 -

JOHNSON AND ELLER

property transfers have never provided significant revenues in this country and have been reduced to an insignificant proportion in recent years,” according to economist Joseph A. Pechman, former senior fellow at the

Brookings Institution (1983:226; see Figure 4). With

few exceptions, revenue from Federal estate and gift

taxes has lingered between one and two percent of Federal budget receipts since World War II, reaching a postwar high of 2.6 percent in 1972. Recent data also demonstrate the small role that transfer taxes play as sources

of Federal revenue. In 1994, as well as in the preceding

four years, Federal estate and gift taxes made up only

one percent of budget receipts.

The scope of the transfer tax system, as measured

by the size of the population directly affected by the

system, is also quite narrow (see Table 6). The number

of estate tax filers with taxable estates--filers who incurred a tax liability--reached a high of 139,115 in 1976;

the estate tax exemption in that year was $60,000. Since

the introduction of the $600,000-estate and gift tax exemption in 1987, the annual number of taxable estate

tax returns has not exceeded 32,000. In 1994, 31,918

taxable estate tax returns were filed for decedents, a number that represents only 1.4 percent of the adult deaths

that occurred in that year, according to preliminary 1994

death statistics by the National Center for Health Statistics (see Table 6 footnote). The number of estate tax

decedents with tax liabilities during 1995 was 31,692.

Preliminary estimates for the number of adult deaths for

1995 are not available.

Clearly then, the transfer tax system neither provides

a significant portion of Federal budget inlays nor subjects a significant portion of the U.S. population to Federal taxation. For these and other reasons, the system is

the object of much criticism. The assertion that the estate tax is a “voluntary tax,” a term first employed by

Figure 4: Estate and Gift Taxes as a Percentage of Total Federal

Receipts, 1917-1995

Percent

10

8

6

4

2

0

1920 1925 1930 1935 1940 1945 1950 1955 1960 1965 1970 1975 1980 1985 1990 1995

Filing year

- 18 -

FEDERAL TAXATION OF INHERITANCE AND WEALTH TRANSFERS

Table 6: Estate Tax Returns as a Percentage of Adult Deaths,

Selected Years of Death, 1934-1993

(Starting with 1965, number of returns is based on sample estimates)

Taxable estate tax returns

Selected year

Total

of death

adult deaths a

Number

of adult deaths

(1)

(2)

(3)

983,970

1,172,245

1,257,290

1,237,585

1,181,275

1,205,072

1,237,186

1,216,855

1,211,391

1,277,009

1,238,917

1,239,713

1,278,856

1,283,601

1,285,684

1,304,343

1,237,741

1,332,412

1,289,193

1,358,375

1,426,148

1,483,846

1,578,813

1,796,055

1,854,146

1,819,107

1,897,820

1,945,913

1,968,128

2,015,070

2,033,978

2,053,084

2,096,704

2,079,035

2,079,034

2,101,746

2,111,617

2,168,120

8,655

9,137

12,010

13,220

12,720

12,907

13,336

13,493

12,726

12,154

13,869

18,232

19,742

17,469

17,411

18,941

24,997

25,143

32,131

38,515

45,439

55,207

67,404

93,424

120,761

139,115

34,446

34,883

30,447

22,324

21,939

18,059

20,751

23,002

24,456

26,277

27,243

32,002

0.88

0.78

0.96

1.07

1.08

1.07

1.08

1.11

1.05

0.95

1.12

1.47

1.54

1.36

1.35

1.45

2.02

1.89

2.49

2.84

3.19

3.72

4.27

5.20

6.51

7.65

1.82

1.79

1.55

1.11

1.08

0.88

0.99

1.11

1.18

1.25

1.29

1.48

1934

1935

1936

1937

1938

1939

1940

1941

1942

1943

1944

1946

1947

1948

1949

1950

1953

1954

1956

1958

1960

1962

1965

1969

1972

1976

1982

1983

1984

1985

1986

1987

1988

1989

1990

1991

1992

1993 b

Percentage

a. Total adult deaths represent those of individuals age 20 and over, plus deaths for w hich age w as unavailable.

For 1993, total deaths are for adults age 25 and older and for the 12-month period ending w ith November.

b. Preliminary

SOURCE: For years after 1953, STATISTICS OF INCOME-ESTATE TAX RETURNS; ESTATE AND GIFT TAX RETURNS;

FIDUCIARY, ESTATE, AND GIFT TAX RETURNS; and unpublished tabulations, depending on the year. For years prior

to 1954, STATISTICS OF INCOME - PART I. Adult deaths are from the National Center for Health Statistics, Public

Health Service, U.S. Department of Health and Human Services, VITAL STATISTICS OF THE UNITED STATES, unpublished tables.

- 19 -

JOHNSON AND ELLER

Columbia law professor George Cooper in his 1979 study

of estate-planning techniques, is foremost among the

criticisms of the tax. By labeling the estate tax “voluntary,” Cooper suggests that, far from imposing an unavoidable tax, estate tax law really provides numerous

methods for tax avoidance. Today, tax avoidance

schemes fall into three basic categories. First, the “technique of estate freezing keeps free of tax the future

growth in an individual’s wealth by diverting that growth

to the next generation” (Cooper, 1979: 4). Second, the

“creation of tax-exempt wealth takes advantage of special provisions in the tax code that exempt certain assets

from taxation” (Cooper, 1979:4). Finally, the “reduction or elimination of tax on existing wealth is made

possible by a package of techniques for gift-giving,

manipulating valuations, and exploiting charitable deductions” (Cooper, 1979:5). Cooper concludes that,

“because estate tax avoidance is such a successful and

yet wasteful process, ... the present estate and gift tax

serves no purpose other than to give reassurance to the

millions of unwealthy that entrenched wealth is being

attacked” (82), reassurance which, he later suggests, is

merely superficial. The annual costs of estate tax avoidance schemes, including lawyer fees, accountant fees,

costs of subscriptions to estate planning magazines, and

opportunity costs of individuals involved in tax avoidance activities, have been shown to represent a large

percentage of the annual receipts from estate and gift

taxes. A 1988 study showed that tax avoidance costs

approach billions of dollars annually, which, according

to the study’s researchers, represent “an inordinately high

social cost for a tax that only yielded $7.7 billion in 1987”

(Munnell, 1988:19).

Our present system of taxing wealth transfers is also

criticized for its effect on capital accumulation in the

U.S. economy. In his examination of the Federal transfer tax system, Richard Wagner (1993), professor of

economics, suggests that, “by reducing the incentive that

people have to save and invest, transfer taxation reduces

capital formation, which, in turn, reduces wages and job

creation from what they would otherwise be” (6). This

argument echoes one asserted by Adam Smith in the

late 18th century and David Ricardo in the early 19th

century. Indeed, according to both of these early economists, transfer taxes decrease investment in capital and,

thereby, decrease productivity and wages as heirs are

forced to liquidate business assets to pay the tax. In his

study of the social costs of transfer taxation in the United

States, Wagner estimated that, in the absence of Federal

transfer taxation since 1971, jobs would have increased

by 262,000, capital investment would have increased

by $399 billion, and gross domestic product would have

increased by $46 billion.

Federal transfer taxes are often cited as impediments

to the livelihood of small businesses and farms. Indeed,

“small businessmen and farmers have always felt that

the estate tax is especially burdensome” (Pechman,

1983:242), given that their estates may consist of little

more than their businesses. These businessmen, and their

Congressional representatives, assert that “heavy taxation or a rule requiring payment of taxes immediately

after the death of the owner-manager would necessitate

liquidation of the enterprise and loss of the business by

the family” (Pechman, 1983:242). Congress has responded to such concerns by introducing certain taxrelief provisions. In 1976, for example, Congress suggested that “additional relief should be provided to estates with [liquidity] problems arising because a substantial portion of the estate consists of an interest in a

closely held business or other illiquid assets” (Senate

Report, 1976). Thus, in 1976, Code Section 6166 was

passed. Under 6166, an executor is permitted to “elect

to pay the Federal estate tax attributable to an interest in

a closely held business in installments over, at most, a

14-year period” (Beerbower, 1995:5).

During 1995 and 1996, the impact of estate taxation

on small business, and other estate tax issues, including

the very existence of the tax, were once again topics of

discussion in Congress, as well as in the 1996 Presidential election. Several bills addressing the Federal estate

tax were introduced during the 104th Congress, 19951996. In April 1995, the U.S. House of Representatives

passed one such bill, H.R. 1215, a proposal to increase

the unified credit against the estate and gift tax, as well

as to provide a cost-of-living adjustment for such credits (U.S. Library of Congress, 1996). In addition, the

bill proposed to provide an “inflation adjustment for the

alternate valuation of certain farm and business property, the gift tax exclusion, the generation-skipping tax

exemption, and the estate tax on closely held businesses”

(Library of Congress, 1996). The bill called for a gradual

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FEDERAL TAXATION OF INHERITANCE AND WEALTH TRANSFERS

rise in the unified credit and, therefore, a gradual rise in

the effective exclusion for estate and gift tax purposes,

from the current $600,000 to $700,000 in 1996, $725,000

in 1997, and $750,000 in 1998, after which the exclusion would be adjusted for inflation. Although the Senate Finance Committee held hearings on the measure,

the Senate did not pass a bill.

Congress submitted other similar bills during its

104th session. H.R. 62, while never passed, sought “to

increase the unified estate and gift tax credit to an amount

equivalent to a $1,200,000 exemption” (Library of Congress, 1996). The Senate considered S.628, the Family

Heritage Preservation Act. That bill proposed a complete repeal of Federal estate, gift, and generation-skipping transfer taxes. While introducing the bill to the

legislative body, the senate sponsor of S.628 called the

Federal estate tax “one of the most wasteful and unfair

taxes currently on the books,” further suggesting that

the tax “penalizes people for a lifetime of hard work,

savings, and investment.” The tax “hurts small business and threatens jobs ... {and} causes people to spend

time, energy, and money finding ways to avoid the tax,”

said the senate sponsor.

The 1996 Presidential election also served as a forum for discussion of the Federal estate tax. The need

for estate tax relief was among the campaign themes of

Republican presidential nominee Robert “Bob” Dole.

At a campaign rally in Alamogordo, New Mexico, in

early November 1996, Dole addressed the tax on death

transfers. “[F]or those who work all their lives--kids

work, the wife works, the husband works, you scrimp

and save, and you finally have a little business or a little

farm or a little ranch, and somebody passes on,” Dole

said, according to the Federal News Service. “We don’t

think you should have to sell part of the ranch to pay the

estate taxes. We’re going to start providing estate tax

relief,” he added. Dole and his running-mate, Jack

Kemp, outlined a 14-point pledge that contained a promise to “increase the estate tax exemption from $600,000

to $1.6 million and eventually eliminate the estate tax

on family-owned businesses, farms, and ranches,” according to U.S. Newswire.

During the first term of his administration, President Bill Clinton supported modification, not the com-

plete elimination, of the Federal estate tax. At hearings

before the Senate Finance Committee in June 1995, thenDeputy Assistant Secretary of Tax Policy at the Treasury Department, Cynthia G. Beerbower, said that the

Clinton administration “recognizes that the levels of the

unified credit and various other estate and gift tax limitations have not been increased since 1987” (Beerbower,

1995:5). The administration is “willing to work with

Congress to maintain an estate and gift tax system that

exempts small- and moderate-sized estates, and that helps

keep intact small and family businesses, so that they can

be passed on to future generations” (1995:6), according

to Beerbower.

In November 1996, the Clinton administration won

a second term in office, and the Republicans retained

the majority in Congress. These events, and recent negotiations about filing thresholds, tax brackets, and marginal tax rates in the Federal transfer tax system, suggest that the system will continue to find a place in national dialogue.

n Conclusion

Today, some tax theorists work to convince Congress that transfer taxes should play a larger role in the

Federal revenue system because, they argue, “death taxes

have less adverse effects on incentives than do income

taxes of equal yield” (Pechman, 1983:225). Indeed,

“income taxes reduce the return from effort and risk taking as income is earned,” according to Pechman, whereas

“death taxes are paid only after a lifetime of work and

accumulation and are likely to be given less weight by

individuals in their work, saving, and investment decisions” (1983:226). There are economists who also reject the postulate that moderate transfer taxes have an

adverse effect on capital accumulation. Embracing an

idea first proposed by the mid-19th century English

economist J.R. McCulloch, they argue that transferors

adjust their bequest plans when faced with transfer taxes

(Fiekowski, 1959). According to McCulloch, the death

tax causes individuals who plan to make significant bequests to increase savings so that their heirs can pay the

taxes without adversely affecting the transferred assets.

When transfers involve business assets, McCulloch

might have argued, a testator would ensure the continu-

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JOHNSON AND ELLER

ance of a business by increasing the bequest amount in

order to cover the cost of transfer taxes.

Still, Congress and the public seem hesitant to increase the scope of the transfer tax system. “The equalization of the distribution of wealth by taxation is not

yet accepted in the United States,” suggests Pechman

(1983:227). Chester (1982) attributes this to what he

calls the “lottery phenomenon: the strong desire of the

majority of Americans to have a chance to ‘win big’ by

inheriting wealth, thus vaulting without exertion above

the mass of men” (51). Pechman also suggests that

misconceptions regarding the scope of transfer taxes may

also be a factor. “[E]state and gift taxes are erroneously

regarded as especially burdensome to the family that is

beginning to prosper through hard work and saving,”

according to Pechman, who further suggests that “the

merits of wealth transfer taxes will have to be more

widely understood and accepted before they can become

effective revenue sources” (1983:227).

More than 300 years after John Locke and his contemporaries sought to define the relationship between

civil government and the governed, Americans struggle

for consensus concerning government’s ideal role in the

regulation of wealth transfers. There is resentment over

the use of transfer taxes as a source of revenue and as a

tool for influencing the distribution of personal wealth.

There is also the belief that the revenue and redistributive goals of transfer taxes are entirely appropriate to an

altruistic nation that promotes the welfare of its citizens.

Even economists are divided. Neoclassical economists

assert that the disruption to businesses resulting from

transfer taxes has cost the economy billions of dollars

in lost productivity and hundreds of thousands of new

jobs. Yet, many tax economists argue that transfer taxes

are less harmful than income taxes and have great appeal “on social, moral, and economic grounds”

(Pechman, 1983:226). Disputes over the economic effects and propriety of transfer taxes have spanned many

centuries, and the fervor on which those disputes are

founded is no less present today.

G. Beerbower, Deputy Assistant Secretary (Tax

Policy) Department of the Treasury, before the

Senate Finance Committee, Washington, D.C.:

Office of Public Affairs.

Bittker, I. and Clark, E. (1990), Federal Estate and

Gift Taxation, Boston, MA: Little, Brown, and

Company.

Boskin, M.J. (1976), Estate Taxation and Charitable

Bequests, Journal of Public Economics, 5, 27-56.

Bruchey, S. (1988), The Wealth of the Nation, New

York: Harper and Row.

Carnegie, A. (1962), The Gospel of Wealth and Other

Timely Essays, Cambridge, MA: The Belknap

Press of Harvard University Press.

Chester, R. (1982), Inheritance, Wealth, and Society,

Bloomington, IN: Indiana University Press.

Clotfelter, C.T. (1985), Federal Tax Policy and

Charitable Giving, Chicago, IL: University of

Chicago Press.

Cooper, George (1979), A Voluntary Tax? Washington, D.C.: The Brookings Institution.

Customs Duties and Internal Revenue Taxes Act of

1872 §36, 17 Stat 256.

Economic Recovery Tax Act of 1981, Public Law 9734.

Eyre v. Jacob, 14 Grat. 422 (1858).

Fiekowsky, Seymour (1959), On the Economic Effects

of Death Taxation in the United States, doctoral

dissertation, Harvard University, Cambridge, MA.

In the News, 4 November 1996, Federal News Service.

n References

Income Tax Act of 1894, 28 Stat. 509, 553.

Beerbower, Cynthia G. (1995), Statement of Cynthia

Internal Revenue Act of 1867, 14 Stat. 169.

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FEDERAL TAXATION OF INHERITANCE AND WEALTH TRANSFERS

Internal Revenue Law of 1864 §124-150, 13 Stat. 285.

Internal Taxes, Customs Duties Act of 1870 §27, 16

Stat. 269.

Ricardo, D. (1819), On The Principles of Political

Economy and Taxation, Georgetown, D.C.:

Joseph Milligan.

Revenue Act of 1916, 39 Stat. 756.

IRS Legislative Affairs, 17 September 1993, draft.

Revenue Act of 1924, 43 Stat. 253.

Johnson, B.W. (1994), Estate Tax Returns, 19891991, Compendium of Federal Estate Tax and

Personal Wealth Studies, Washington, D.C.: U.S.

Government Printing Office.

Joulfaian, D. (1991), Charitable Bequests and Estate

Taxes, National Tax Journal, 44(2), 169-180.

Revenue Act of 1926, 44 Stat. 9.

Revenue Act of 1932, 47 Stat. 169.

Revenue Act of 1935, 49 Stat. 1014.

Revenue Act of 1948, 62 Stat. 110.

Knowlton v. Moore, 178 U.S. 41 (1900).

Revenue Act of 1987, Public Law 100-203.

Locke, J. (1988), Two Treatises of Government,

Cambridge: Cambridge University Press.

Revenue Reconciliation Act of 1990, Public Law 101508.

Mager v. Grima, 49 U.S. 490 (1850).

Scholey v. Revenue Service, 90 U.S. 331 (1874).

Miller, John A. (1988), Gift Wrapping the Estate

Freeze, Tax Notes, December 19, 1135-1341.

Senate Report 94-938. (1976). 94th Congress, 2d Sess. 18.

Mill, J.S. (1994), Principles of Political Economy and

Chapters on Socialism, Oxford: Oxford University Press.

Smith, A. (1913), An Inquiry into the Nature and

Causes of the Wealth of Nations, New York: E.P.

Dutton and Company.

Munnell, Alicia H. (1988), Wealth Transfer Taxation:

The Relative Role for Estate and Income Taxes,

New England Economic Review, November/

December, 3-26.

Stamp Act of 1797, 1 Stat. 527.

New York Trust Company v. Eisner, 256 U.S. 345.

Tax Reform Act of 1986, Public Law 99-514.

Office of Tax Analysis (1963), Legislative History of

Death Taxes in the United States, unpublished

manuscript.

Technical and Miscellaneous Revenue Act of 1988,

Public Law 100-647.

Paul, R.E. (1954), Taxation in the United States,

Boston, MA: Little, Brown, and Company.

Tax Reform Act of 1976, Public Law 94-455 §§ 20012009.

The Internal Revenue Record and Customs Journal

(1869), 9(15), 113.

Pechman, Joseph A. (1983), Federal Tax Policy,

Washington, D.C.: The Brookings Institution.

U.S. Library of Congress, 6 November 1996, Thomas,

Legislative Information on the Internet (available

from the Internet at http://thomas.loc.gov).

Pollock v. Farmers Loan and Trust Company, 158

U.S. 601 (1895).

National Desk, Political Writer, 31 October 1996,

National Desk.

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JOHNSON AND ELLER

Wagner, Richard E. (1993), Federal Transfer Taxation: A Study in Social Cost, Costa Mesa, California: Center for the Study of Taxation.

War Revenue Act of 1898, 30 Stat. 448, 464.

War Revenue Reduction Act of 1901, 31 Stat. 956.

War Revenue Repeal Act of 1902, §7, 32 Stat. 92.

Zaritsky, H. and Ripy, T. (1984), Federal Estate, Gift,

and Generation Skipping Taxes: A Legislative

History and Description of Current Law, (Report

No. 84-156A), Washington, D.C.: Congressional

Research Service.

SOURCE: "Inheritance and Wealth in America",

editor; Robert K. Miller Jr., and Stephen J.

McNamee, Plenum Press, NY, 1998.

NOTE: Views expressed in this paper are those of

the authors and do not necessarily repesent the

views of the Treasury Department or the Internal

Revenue Service.

- 24 -

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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