Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Saturday, April 21, 2018

Article on Legal Aspects Concerning the Proving of a ‘Will’: Section 63 of the Indian Succession Act, 1925 Read with Section 68 of the Indian Evidence Act, 1872

0Shivam Goel published an Article entitled, Legal Aspects Concerning the Proving of a ‘Will’: Section 63 of the Indian Succession Act, 1925 Read with Section 68 of the Indian Evidence Act, 1872, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

A ‘Will’ is an instrument by which a person makes a disposition of his property to take effect after his death and which is in its own nature ambulatory and revocable during his life. A ‘Will’ is an obstruction in the line of succession.

Section 63 of the Indian Succession Act, 1925 declares the substantive law regarding the execution of an unprivileged ‘Will’ and it mandates that the testator has to sign or affix his mark in the presence of two or more attesting witnesses, it being not necessary that the two attesting witnesses should simultaneously be present to witness the execution of the ‘Will’.

On a combined reading of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, it is clear that a person propounding the ‘Will’ must prove that the ‘Will’ was duly and validly executed, and this cannot be done by simply proving that the signature on the ‘Will’ is that of the testator but by also proving that the attestations made on the ‘Will’ are in the manner (and form) as required by clause (c) of Section 63 of the Indian Succession Act, 1925.

Section 71 of the Indian Evidence Act, 1872 provides that if the attesting witness denies or does not recollect the execution of the document (‘Will’), its execution may be proved by other evidence.

The period of three years (Article 137 of the Limitation Act, 1963) for institution of a petition for grant of probate commences from the point in time when the right to apply for probate accrues to the petitioner.

As per Section 212(2) of the Indian Succession Act, 1925, a Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi is not bound to apply for letters of administration (probate). It is optional (and not mandatory) for the above stated categories of persons to seek probate of ‘Will’.

April 21, 2018 in Articles, Estate Planning - Generally, Wills | Permalink | Comments (0)

Friday, April 20, 2018

Article on The 2017 Tax Cuts: How Polarized Politics Produced Precarious Policy

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-20/78dbedf4-07d3-4d26-acf9-582d969e5e96.pngMichael J. Graetz published an Article entitled, The 2017 Tax Cuts: How Polarized Politics Produced Precarious Policy, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

In this lecture, Michael Graetz contends that the new tax law is unstable. This is hardly surprising because it was rushed through Congress in record time with only Republican votes and no ability for public comments on its changes. The new rules create significant new differences in tax burdens based on what kind of business is conducted, where goods and services are bought and sold, whether individual workers are employees or independent contractors, and where people live. Finally, although it was estimated to be a $1.5 trillion tax cut over ten years, it's actual cost is likely to be double that amount, producing unsustainable annual deficits and an unacceptable level of public debt. Footnotes have been omitted here. This article is forthcoming in the Yale Law Journal Forum.

April 20, 2018 in Articles, Current Affairs, Estate Planning - Generally, Income Tax, New Legislation | Permalink | Comments (0)

Article on Meeting the Nexus Requirement for the Taxation of Interstate E-Commerce – Sales and Use Tax Rules as Applied to Electronic Commerce in the United States.

Steve M. Windham published an Article entitled, Meeting the Nexus Requirement for the Taxation of Interstate E-Commerce – Sales and Use Tax Rules as Applied to Electronic Commerce in the United States., Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

The Commerce Clause and the Due Process Clause of the United States Constitution govern the taxation of interstate commerce. With evolving technology and the Internet in particular, the landscape of sales and use tax is evolving. E-Commerce is more than simply a new twist on an old idea. With the advent of the Internet and E-Commerce, technology is pushing the envelope of our current tax system. Since the United States has been a country, there has been interstate commerce. However, the Internet is unique in the nature of how it works, who uses it, compliance issues, as well as the overall framework of E-Commerce. The Internet connects somewhere between 817 million to one billion people worldwide, with some 31 million domain names registered.

E-Commerce utilizes cutting-edge technology which has caused lawmakers to reconsider the traditional rules of taxation. Consider that the internet has remote servers located throughout not only across the nation, but the world, and the rules governing taxation of E-Commerce suddenly lose clarity. There is no longer a clearly defined border. The Internet can be accessed nearly anywhere in the world, payments can be made using electronic cash as well as by every other form of electronic payment. The current US tax system is ill-equipped to accommodate the various administrative and compliance issues associated with the proliferation of E-Commerce, as there are currently over 7,500 sales and use tax jurisdictions in the United States.

Among the various concerns of E-Commerce is the issue of whether a company must collect sales tax for an out of state purchase that was transacted online. Conversely, when does a state have the right to collect use tax on an item that was purchased online from an out-of-state vendor? The particular focus of this paper is on the various requirements that must be met to collect the sales and use taxes on e-commerce transactions, as well as the ever-evolving legal landscape which governs interstate commerce.

The United States Supreme Court has held that a physical presence is required to establish the nexus requirement for the collection of state sales tax. Without this nexus requirement a state is not required to collect sales tax on that particular purchase. However, the state to where the item is being sent to for storage, usage or consumption may impose a use tax which is typically equal to what the sales tax would have been had the item been purchased in the destination state. Nexus is of paramount concern to online retailers and purchasers. The US Supreme Court has determined that in order to be Constitutional that the act of imposing the burden of collecting a state’s use tax must conform to the Due Process and Commerce Clause of the US Constitution. The case of Quill Corporation v. North Dakota is the crux of the current sales and use tax collection issue as it pertains to interstate commerce. Yet, while the US Supreme Court decision on Quill Corporation v. North Dakota is the basis for our current interstate sales and use tax laws, many feel that there must be a better way of dealing with this issue.

In order for a state to require a vendor to collect sales tax the state must abide by the Due Process and the Commerce Clauses of the US Constitution. Under the Due Process Clause there must be some minimum connection between the taxing state and the person, property, or transaction it seeks to tax. In order to satisfy the Commerce Clause of the US Constitution the US Supreme Court has devised a four-part test. Under this test, a tax affecting interstate commerce will survive a challenge based on the Commerce Clause if: 1) substantial nexus exists with the taxing state, 2) the tax is fairly apportioned, 3) the tax does not discriminate against interstate commerce and 4) the tax is fairly related to the services provided by the state. The first and fourth prongs are intended to ensure that a tax does not unduly burden commerce. The second and third prongs of the test relate to the goal of preventing discrimination against out-of-state businesses.9 The new Streamlined Sales Tax Program is taking form and has the potential to dramatically change the rules for collection of use taxes by out-of-state vendors. Something to consider is that even though the Streamlined Sales Tax Program has the official support of several states and several major retailers we do not yet know how it will stand up in the courts. It stands in defiance of the United States Constitution and two major United States Supreme Court Rulings.

The Internet has effectively eliminated not only state, but national borders on the information superhighway. As a result, many transactions are at risk of being subjected to tax in more than one jurisdiction — sometimes even in more than one country!

Because of the complexities of the Internet and the fact that technology has outpaced the current tax code, taxation of e-commerce is rarely as simple as it may seem. Additionally, there are a host of other taxes that may or may not be imposed on companies doing business on the Internet.

These in turn affect the overall price structure of e-commerce transactions, which in turn further affect the taxation of e-commerce. The World Wide Web is a tangled a web of legal jurisdictions and tax compliance and enforcement issues.

April 20, 2018 in Articles, Estate Planning - Generally, Income Tax | Permalink | Comments (0)

Thursday, April 19, 2018

Article on Due Process of Lawmaking Revisited

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-19/02de7813-afaa-415f-83ef-09be83183e38.pngStephen Gardbaum published an Article entitled, Due Process of Lawmaking Revisited, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

Due to the role of ultra-wealthy party donors in its enactment, the recent Republican tax law can be seen as a case study in the systemic corruption of Congress that has concerned many commentators. For the most part, the solutions they have offered have been political in nature. In the short-term, the unpopularity of measures that so disproportionately benefit the very few will likely impose electoral costs that no party can continue to bear. In the longer term, congressional action or constitutional amendment is required to radically reform the current system of campaign finance. Regardless of the prospects of such future political responses, is there a legal solution in the here and now that might be able to deal with any part of the problem the critics have identified? This Article suggests there is. Beyond the very limited scope and deterrent value of the criminal law of bribery, it proposes an independent constitutional response in the form of the Due Process Clause of the Fifth Amendment. Federal statutes that are enacted by means of illegitimate procedures, including the paying or withholding of donations for votes, violate the constitutional requirement of due process in lawmaking and should be invalidated by the courts, whether or not such conduct is, or could be, the subject of a successful criminal prosecution.

April 19, 2018 in Articles, Estate Planning - Generally | Permalink | Comments (0)

Wednesday, April 18, 2018

Article on Reinventing Regulation: The Curious Case of Taxation of Cryptocurrencies in India

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-18/970a96ea-9382-4608-8444-be8b8c89e601.pngHatim Hussain published an Article entitled, Reinventing Regulation: The Curious Case of Taxation of Cryptocurrencies in India, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

Nearly twenty-five years ago, the internet disrupted the world and started a new era of technological supremacy. Today, with the rise of cryptocurrencies and its underlying technology, we stand at the helm of another such revolution. Cryptocurrencies like bitcoin are decentralised, digital currencies relying on a peer-to-peer network which operates without the need for a third-party intermediary like the Reserve Bank of India. Coupled with lack of regulatory guidance, its unique technical aspects create huge complications in its taxation. While much ignorance still prevails in respect of cryptocurrencies, countries around the world have finally started taking notice and acting upon it. This paper focuses on what cryptocurrencies are, why they are important, and the prevailing regulatory structure concerning them. It overviews the complete landscape for taxation of cryptocurrencies like bitcoin, analysing the indirect and direct tax structure, particularly after the implementation of Central Goods and Services Tax Act, 2017, while also addressing the issues concerning the evasionary practices. The findings help in assessing the regulatory aspects in light of the technological, economic, social and financial forces, and establishing a set framework for taxation of cryptocurrencies.

April 18, 2018 in Articles, Estate Planning - Generally, Income Tax, Technology | Permalink | Comments (0)

Tuesday, April 17, 2018

Article on On the Boundaries of the Property Law – Trust in a Civil Law System

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-18/a77622ee-0e10-45ba-adb8-29290318dd18.pngAleksander Grebieniow published an Article entitled, On the Boundaries of the Property Law – Trust in a Civil Law System, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

The trust ia a perfect example of a legal transplant between the common law and the civil law systems. It’s a creation of Equity, which refers to a fiduciary transfer of ownership. A settlor transfers certain goods to the trustee, who acquires the ownership fiduciae causa and is obliged to administer them to the benefit of the settlor itself or of a beneficiary. The particularity of the Trust founds its roots in the ambiguity of its classification, dependent on which Law System it is applied in. In the anglosaxon countries this institution belongs purely to the branch of the Real Law. However, on the Continent it is being considered as a part of the Law of Obligations. To the desire of the harmonisation of laws, a conclusion of the Convention on the Law Applicable to Trusts and on their Recognition from 1st July 1985 (Aia Convention) took place and made it possible for the Trusts to operate beyond the Common Law countries, but caused certain practical problems. The author aims to present the clash of legal systems, which may be useful to define the trust’s nature.

April 17, 2018 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Article on On the Boundaries of the Property Law – Trust in a Civil Law System

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-17/f1a415b7-077c-4f72-aa2b-10eff1e87e38.pngAleksander Grebieniow published an Article entitled, On the Boundaries of the Property Law – Trust in a Civil Law System, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

The trust ia a perfect example of a legal transplant between the common law and the civil law systems. It’s a creation of Equity, which refers to a fiduciary transfer of ownership. A settlor transfers certain goods to the trustee, who acquires the ownership fiduciae causa and is obliged to administer them to the benefit of the settlor itself or of a beneficiary. The particularity of the Trust founds its roots in the ambiguity of its classification, dependent on which Law System it is applied in. In the anglosaxon countries this institution belongs purely to the branch of the Real Law. However, on the Continent it is being considered as a part of the Law of Obligations. To the desire of the harmonisation of laws, a conclusion of the Convention on the Law Applicable to Trusts and on their Recognition from 1st July 1985 (Aia Convention) took place and made it possible for the Trusts to operate beyond the Common Law countries, but caused certain practical problems. The author aims to present the clash of legal systems, which may be useful to define the trust’s nature.

April 17, 2018 in Articles, Estate Planning - Generally, Trusts | Permalink | Comments (0)

Monday, April 16, 2018

Article on Proliferation of Hidden Income and Tax Evasion: Perceptions of Malaysian Professionals

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-16/aaaaa1b3-b10d-4243-9f8d-a78a30a84750.pngJeyapalan Kasipillai, Mei Yee Lee, & Sakthi Mahenthiran published an Article entitled, Proliferation of Hidden Income and Tax Evasion: Perceptions of Malaysian Professionals, Tax Law: Tax Law & Policy eJournal (2018). Provided below is an abstract of the Article:

This study employs a qualitative approach to investigate the perceptions of professionals regarding tax evasion and avoidance in the informal sectors in Malaysia. We estimate tax evasion due to hidden income in Malaysia approximates MYR 44.97 billion (A$ 13.87 billion), around 5.4 per cent of gross domestic product in 2014. We used a survey to seek insights on hidden income from respondents who are experts in the fields of accounting and taxation, including senior government officers and tax professionals. The findings of the survey reveal that the three main sectors perceived to be engaged in ‘hidden income’ are, in ranking order: (i) petty trade; (ii) logging and timber; and (iii) money lending and pawn-broking. Our interviews with the respondents also reveal additional informal sectors involved in these activities, including human trafficking, bribing of enforcement agencies and illegal logging. This study assists to identify tax compliance gaps among the different sectors of the economy and provides information on sectors that require greater tax auditing. This will, in turn, furnish input to policy makers to develop strategies in encouraging voluntary compliance as well as enhancing the effectiveness of the existing tax and bureaucratic systems.

April 16, 2018 in Articles, Estate Planning - Generally, Professional Responsibility | Permalink | Comments (0)

Sunday, April 15, 2018

Article CRI-Leslie: Musings on Plain Meaning, Absurdity and Capital Gain

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-15/e8c3d851-4d1b-4e79-98f1-285a3e72aece.pngJeffrey A. Galant & Dana L. Mark published an Article entitled, CRI-Leslie: Musings on Plain Meaning, Absurdity and Capital Gain, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:

CRI-Leslie, LLC v Commissioner is a noteworthy case of first impression involving the interpretation of Internal Revenue Code Section 1234A. In CRI-Leslie the U.S. Tax Court and the Eleventh Circuit U.S. Court of Appeals held against capital gain treatment for proceeds received as a result of the cancellation of a contract involving the sale of property. However, the greater importance of these decisions may be the illustration of the methodology used by the courts to interpret the Internal Revenue Code. Or, more to the point, whether the courts were justified in relying on the plain meaning rule rather than the legislative history in determining what Internal Revenue Code Section 1234A means.

April 15, 2018 in Articles, Estate Planning - Generally, New Cases | Permalink | Comments (0)

Article on Evaluating the New US Pass-Through Rules

image from https://s3.amazonaws.com/feather-client-files-aviary-prod-us-east-1/2018-04-15/a9a4da6d-fad0-41de-acb3-c6982ecd4606.pngDaniel Shaviro published an Article entitled, Evaluating the New US Pass-Through Rules, Tax Law: Tax Law & Policy eJournal (2018). Provided below is an abstract of the Article:

The pass-through rules that the US Congress enacted in 2017 - permitting the owners of unincorporated businesses in favored industries to escape tax on 20 per cent of their income - achieved a rare and unenviable trifecta, by making the tax system less efficient, less fair, and more complicated. It lacked any coherent (or even clearly articulated) underlying principle, was shoddily executed, and ought to be promptly repealed. Given the broader surrounding circumstances, the mere fact of its enactment sends out a disturbing message about disregard among high-ranking US policymakers for basic principles of competence, transparency, and fair governance.

April 15, 2018 in Articles, Estate Planning - Generally, Income Tax, New Legislation | Permalink | Comments (0)