Wednesday, November 26, 2014
Edward A. Zelinsky (Yeshiva University, Benjamin Cardozo School of Law) recently published an article entitled, Why the Buffett-Gates Giving Pledge Requires Limitation of the Estate Tax Charitable Deduction, Florida Tax Review, Vol. 16, No. 7, 2014. Provided below is the abstract from SSRN:
The Buffett-Gates Giving Pledge, under which wealthy individuals promise to leave a majority of their assets to charity, is an admirable effort to encourage philanthropy. However, the Pledge requires us to confront the paradox that the federal estate tax charitable deduction is unlimited while the federal income tax charitable deduction is capped. If a Giving Pledger leaves his wealth to charity, the federal fisc loses significant revenue since the Pledger thereby avoids federal estate taxation as charitable bequests are deductible without limit for federal estate tax purposes. Despite its laudable qualities, the Giving Pledge is a systematic (albeit inadvertent) threat to the estate tax base.
The Giving Pledge requires the amendment of the federal estate tax to restrict an estate’s charitable deduction to a percentage of the estate, just as the income tax charitable deduction is limited to a percentage of the taxpayer’s income. In this fashion, the sensible compromise embedded in the income tax charitable deduction would be carried over to the federal estate tax to simultaneously encourage charitable giving while ensuring that all large estates pay some federal estate tax.
The Giving Pledge need not be the death knell of the estate tax. It should instead be the catalyst to reform the tax by limiting the estate tax charitable deduction.
Tuesday, November 25, 2014
Jongchul Kim (Columbia Law School) recently published an article entitled, The Trust Is Central to an Understanding of Modern Banking, Business Corporations, and Representative Democracy: A Reply to Hayden & Heiden’s Comments, Journal of Economic Issues, March 2015. Provided below is the abstract from SSRN:
Elsewhere (Kim 2013) I have argued that the trust is central to an adequate understanding of the capitalist institutions of modern banking, the business corporation, and representative democracy. This paper has generated a comment by Greg Hayden and Andrew E. Heiden. Hayden and Heiden argue that, because the trust is a legal instrument, it cannot be used to understand more complex social institutions. In this paper I reply to their argument and refute them.
Wendy C. Gerzog (Professor, University of Baltimore School of Law) recently published an article entitled, What's Wrong With A Federal Inheritance Tax?, 49 Real Property, Trust and Estate Law Journal, no. 1, 163 (Spring 2014). Provided below is the article's synopsis:
Scholars have proposed a federal inheritance tax as an alternative to the current federal transfer taxes, but that proposal is seriously flawed. In any inheritance tax model, scholars should expect to see significantly decreased compliance rates and increased administrative costs because, by focusing on the transferees instead of on the transferor, an inheritance tax would multiply the number of taxpayers subject to the tax
This Article reviews common characteristics of existing inheritance tax systems in the United States and internationally--particularly in Europe. In addition, the Article analyzes the novel Comprehensive Inheritance Tax (CIT) proposal, which combines some elements of existing inheritance tax systems with some features of the current transfer tax system and delivers the CIT through the federal income tax system.
Monday, November 24, 2014
David Horton (University of California, Davis School of Law) recently published an article entitled, Wills Law on the Ground, UCLA Law Review, Vol. 62, 2015 Forthcoming. Provided below is the abstract from SSRN:
Traditional wills doctrine was notorious for its formalism. Courts insisted that testators strictly comply with the Wills Act and refused to consider extrinsic evidence to construe instruments. However, the 1990 Uniform Probate Code revisions and the Restatement (Third) of Property: Wills and Donative Transfers replaced these venerable bright-line rules with fact-sensitive standards in an effort to foster individualized justice. Although some judges, scholars, and lawmakers welcomed this seismic shift, others objected that inflexible principles provide clarity and deter litigation. But with little hard evidence about the operation of probate court, the frequency of disputes, and decedents’ preferences, these factions have battled to a stalemate. This Article casts fresh light on this debate by reporting the results of a study of every probate matter stemming from deaths during the course of a year in a major California county. This original dataset of 571 estates reveals how wills law plays out on the ground. The Article uses these insights to analyze the issues that divide the formalists and the functionalists, such as the requirement that wills be witnessed, holographic wills, the harmless error rule, ademption by extinction, and anti-lapse.
Robert B. Wolf, Marilyn J. Maag and Keith Bradoc Gallant recentlypublished an article entitled, The Physician Orders For Life-Sustaining Treatment (POLST) Coming Soon To A Health Care Community Near You, 49 Real Property, Trust and Estate Law Journal, no. 1, 71 (Spring 2014). Provided below is the editor's synopsis:
The estate, trust, and elder law community is seasoned in explaining and assisting in the implementation of advance health care directives. While directives are useful because they allow patients who are 18 years old and older to provide instructions for future treatment, they often fall short of conveying patients’ current wishes in light of existing conditions. POLST forms aim to fill this gap and provide consistency for patients who have a serious life-threatening illness. Through a decision-making process with their health care professionals, POLST give patients the tools for deciding upon and documenting their medical treatment preferences, thereby keeping the patients in control of their end-of-life treatment.
Sunday, November 23, 2014
The symposium issue of the Vanderbilt Law Review, Vol. 67: 6: 1531, addresses various facets of federal law in private wealth transfer. A number of the articles are followed by comments by other distinguished scholars, who not only address the particular article, but also use the comment as a platform to explore other aspects of the topic. Provided below is a portion of the introduction to this issue:
The old paradigm is dead. Private wealth transfer law is NOT just state law. Indeed, in some respects, it is now principally federal law. This increasing federalization and even dominance can be expected to continue apace. While the problems and consequences of federalization are not new to many other areas of law and have received considerable and serious scholarly attention, they are new to private wealth transfer. The way in which the state-federal balance is being struck, the consequences for private wealth transfer flowing from federal involvement, and the principles that should guide courts and legislators in determining the proper state-federal allocation, are all examined with considerable analytic care in these pages. Hopefully, this symposium issue will stimulate similar efforts in the future—all contributing to a better understanding of what the federal role is and what it ought to be in this historically state dominated area of law.
Harvey P. Dale et al., recently published an article entitled, Evolution, Not Revolution: A Legislative History of the New York Prudent Management of Institutional Funds Act, 17 N.Y.U. J. Legis. & Pub. Pol'y 377-484 (2014). Provided below is the abstract from SSRN:
Review of the legislative history of the New York Prudent Management of Institutional Funds Act comparing it to the Uniform Prudent Management of Institutional Funds Act and making suggestions for legislative and regulatory amendments and clarifications.
Friday, November 21, 2014
Nathan R. Brown (Proskauer Rose LLP) recently published an article entitled, A Primer on Charitable Remainder Trusts, Estates, Gifts, and Trusts Journal 1-11 (2014). Provided below is the article's introduction:
With income tax rates as high as 39.6% and an additional 3.8% tax on net investment income, on the one hand, and a 40% federal transfer tax rate and a $5,000,000 estate tax exemption indexed annually for inﬂation ($5,340,000 in 2014), on the other hand, individuals are increasingly shifting their focus toward estate planning techniques that provide not only future estate tax beneﬁts, but also immediate income tax beneﬁts. For those individuals who are charitably inclined, a charitable remainder trust may be an excellent vehicle to reduce future estate tax, obtain an immediate income tax deduction, and beneﬁt charity. As its title suggests, this Article is intended to serve as a general primer on charitable remainder trusts, setting forth the basics that all estate planners should know in order to effectively advise their clients.
Adam J. Hirsch (University of San Diego) recently published an article entitled, Disclaimers and Federalism, Vanderbilt Law Review, Vol. 67, No. 6, 2014. Provided below is the abstract from SSRN:
The beneficiary of an inheritance has the right to disclaim (i.e., decline) it, within limits ordinarily set by state law. This Article examines situations where a beneficiary’s right to disclaim might instead be governed by federal law, as a matter of both existing doctrine and public policy. Issues of federalism arise with regard to disclaimers in several contexts: (1) when a disclaimer would function to defeat a federal tax lien; (2) when a disclaimer could affect a beneficiary’s eligibility for Medicaid assistance; (3) when a beneficiary disclaims ERISA pension benefits; and (4) when a beneficiary executes a disclaimer prior to declaring bankruptcy or in the midst of a federal bankruptcy proceeding. The Article begins by developing a theoretical model of the potential costs and benefits of federal preemption, jumping off from prior scholarly discussions of this problem. The Article then addresses, from the perspective of the model, each of the four situations where a disclaimer raises federal concerns. The Article concludes that different policy considerations arise in each situation, depending upon how a disclaimer relates to federal affairs — viz., whether a disclaimer would threaten the financial interests of the federal government, whether those financial interests can be safely delegated to states, whether federal law regulates the kind of property disclaimed, and whether the disclaimer occurs in anticipation of, or within, a specialized federal proceedings. Hence, the four situations addressed in this Article call for no synchronized response from the perspective of federalism but instead demand distinct treatment.
Thursday, November 20, 2014
Kristine S. Knaplund (Professor of Law, Pepperdine University School of Law) recently published an article entitled, Baby Without a Country: Determining Citizenship for Assisted Reproduction Children Born Overseas, 91 Denv. U. L. Rev. 355 (2014). Provided below is the article’s abstract:
The United States has long followed the English common law view that citizenship can be attained at birth in two ways: by being born in the U.S. (jus soli) or by being born abroad as the child of a U.S. citizen (jus sanguinis). For a child born abroad to claim citizenship through jus sanguinis, the State Department for many years required proof of a blood relationship between the child and a U.S. citizen. While a genetic test serves this purpose for children conceived coitally, advances in assisted reproduction techniques (ART) that have separated the two functions of a birth mother—namely gestation and genetics—have greatly complicated the definition of parentage. In modern times this has led to unjust results, including the recent denial of U.S. citizenship to children born to American mothers who used donated eggs to conceive and give birth abroad. While the State Department has recently modified its regulations to allow the woman giving birth to claim maternity despite the lack of a genetic tie, in many cases it continues to use a parentage standard that dates back to 1952, when assisted reproduction techniques such as in vitro fertilization or the use of donated gametes had not yet been developed. This Article seeks to propose a workable solution to the question of citizenship for children born overseas to American parents via ART. It first explores the origins of jus sanguinis in Roman and English common law along with ancient and medieval views of conception and maternity, and examines three prevailing methods to determine parentage: the parturient test, genetic test, and parental intent test. Ultimately the Article recommends that the State Department acknowledge advances in ART, and the different ways children are nowadays conceived, by altering its jus sanguinis policy to allow several presumptions of parentage to apply.