As NPQ readers may suspect, we get a lot of press releases. But one last month grabbed my attention.
“I wanted to get this over to you,” the email began.
The writer went on, “As you may know, last month, The House Ways and Means Committee approved the tax provisions of President Biden’s Build Back Better Act (the ‘Act’) which is a major step toward these provisions being made law and bringing sweeping changes for the estate planning community. If passed, significant restrictions will impact how estate planning experts can help high wealth clients.”
Fortunately, the PR rep informed me that an attorney was at the ready to help the beleaguered one percent, one who “has been on the phone seven days a week at all hours of the day with clients who are concerned about these potential tax revisions and next steps.” Apparently, what Chuck Collins has referred to in an NPQ podcast earlier this year as the wealth defense industry is hard at work.
But how much help, really, do the wealthy need?
According to testimony earlier this year to Congress by Charles Rettig, the Internal Revenue Service (IRS) commissioner, the wealthy in the US evade an estimated $1 trillion in taxes a year or, to do the complicated math, $10 trillion over 10 years. Recall that the entire Biden bill, if passed as originally submitted, would have cost $3.5 trillion.
In other words, lost tax revenue owed under current law is nearly three times greater than the cost of all the social benefits that President Joe Biden’s bill originally offered: you know, the same legislation that has been hacked away at in Congress because allegedly the nation cannot afford the price.
Most of the discussion of the Biden bill has been on the social spending side, but the legislation also includes some tax increases on the well-to-do. This could affect, the PR rep wrote, “many of the ‘tools in the toolbox’ that estate planning practitioners utilize for higher net worth clients in pursuing estate planning strategies.”
What to do? Well, given this was on behalf of an estate attorney, it’s not surprising the advice was for the top one percent to update their estate plans.
As it happens, the rich had little reason to worry about their estates. Just as proposed social investments have been pared back, so too were the tax provisions.
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One change that had been considered was to lower the exemption on the estate tax to a little over $6 million per individual from the current level of $11.7 million. For context, as recently as 2003, the exclusion was $1 million.
On top of that, at one point, legislation was being floated to restrict some ways to evade that limit, including limiting the use of “grantor trusts.” In other words, if the $11.7 million exemption is not large enough—which, by the way, is doubled to $23.4 million if it is the estate of a couple—then there is the “grantor trust” workaround where, in effect, you can transfer assets to your heirs early but retain the use of those assets (such as a home) for many more years. Mechanisms like this help explain why only an estimated 1,900 estates paid any tax to the federal government in 2020.
These grantor trusts have all sorts of fun names, like GRATs (annuity trusts), GRITs (interest trusts, typically used for homes), and GRUTS (unitrusts, an annual payment that varies depending on the trust’s value at the time of payment). These function similarly to a charitable remainder trust, with the difference being that the remainder doesn’t go to charity but the estate’s heirs. A recent ProPublica article indicates that these mechanisms have cost the US Treasury an estimated $100 billion over the past 13 years.
Another estate law tweak once floated, explains the legal publication JD Supra, would have ended “valuation discounts” that reduce an estate’s value by gifting heirs minority shares of business assets using a family limited partnership or similar entity.
It’s not clear how many wealthy households this fall rushed out to create GRATs, GRITs, and GRUTs—or other mechanisms for securing their exclusions and evading any (possibly) coming tax changes. But writing in Forbes, tax attorney Alan Gasman writes that, “For many of us, it was beginning to feel like loading people into life rafts on the Titanic, because there were many more families and assets than there were resources, such as lawyers and hours in the day, given the many thousands of Americans whose families would become subject to a 40-percent federal estate tax, if they did not act promptly enough.”
The metaphor of the Titanic is illuminating, amid a crisis in which millions of Americans and people around the world really are sinking. The top one percent, by contrast, don’t have it so bad. After all, the Dow Jones stock index just crossed the 36,000 marker—a new record, and an astonishing 35-percent increase over the past 12 months.
As it happens, each of the feared estate tax changes were pulled from the compromise bill that Biden is now advancing. The grantor trust rush proved to be a needless panic of the elite (albeit a good source of income for trust attorneys). The text of the latest version of the 1,684-page “Build Back Better” bill is available here.
As Alan Rappeport in the New York Times explains, income tax rates are slated to increase from 37 to 42 percent for income between $10 million and $25 million and to 45 percent for any income earned above $25 million. Loopholes are closed to make sure that businesses earning more than $400,000 are not exempt from a 3.8 percent Medicare tax. There is a provision to create a minimum corporate tax and increased funding for IRS audits. And there is one measure that would place a one-percent tax on company stock buybacks.
Combined, these measures may raise as much as $200 billion a year if Biden administration estimates prove accurate. That’s enough to preserve about half the benefits that were contained in the original legislation.
But for wealthy Americans seeking to avoid taxes, it is still possible for many who earn more than $10 million to shift compensation to stock and borrow against their stock holdings if more cash is needed. And family dynastic wealth can continue to build.
In the meantime—Americans continue to be sold a bill of goods that the federal government cannot afford basic social benefits like 12 weeks of paid family leave and free community college, even though most governments of nations of similar wealth to the United States provide far more. The money to pay for these benefits may be there, but it will require sustained movement organizing to secure them.