FEDERAL ESTATE TAX LIKELY TO BE CAPPED AT $3.5 MILLION

On January 9, 2009, Representative Pomeroy introduced a bill, H.R. 436, that will cap the federal estate tax exemption at $3,500,000. A few thoughts on this bill:

1) For individuals with estates over $3.5 million, the tax on the excess will be as follows:

a) There will be a 45% tax on the an estate over $3.5 million, but under $10 million.
b) There will be an additional 5% surcharge on estates over $10 million (this surcharge will be eliminated when the estate hits about $41.5 million)

2) There is no provision for COLA adjustments;

3) The notion of carryover basis is repealed. In other words, we will maintain the common practice of valuing assets at the value they had on the Decedent's date of death. (I won't go into a long diatribe about this other than saying that getting rid of the estate tax and instituting a system of carryover basis coupled with a capital gains tax is a very difficult system to implement mechanically as people often do not maintain good records regarding the basis that they have in property - especially for property held for generations.)

4) There are no provisions for carry over of a decedent's exemption amount to a surviving spouse; and

5) The bill aggressively attacks valuation discounts for minority discounts of non-business assets.

As discussed before, it is highly likely that some form of this bill will pass in which the federal estate tax stabilizes at $3.5 million dollars. As for the other features, those are still open to negotiation.