Monday, June 18, 2018
F. Ladson Boyle & Jonathan G. Blattmachr recently published an Article entitled, IRD and Charities: The Seperate Share Regulations and the Economic Effect Requirement, 52 Real Property, Trust and Estate Law Journal, Vol. 52, No. 3, Winter 2018. Provided below is an abstract of the Article:
Taxpayers sometimes die with a right to gross income that has not been received at the time of death and is not reportable on the decedent’s final or other pre-death income tax return, that is, with an entitlement to items of “income in respect of a decedent” (IRD). An estate with charitable beneficiaries that receives IRD will want a section 642(c) income tax charitable deduction for amounts of gross income distributed or distributable to or set aside for a charitable purpose to offset the gross income realized when the IRD is collected and reportable in gross income. This is possible when the IRD is distributable to or set aside for the charity pursuant to the terms of the governing instrument.
This Article analyzes the potential application of the separate share regulations under section 663(c) and the income tax charitable deduction under section 642(c) when the estate has both charitable and non-charitable residuary beneficiaries. This Article concludes that a charity’s interest in the residue of an estate is not a separate share within the meaning of the separate share regulations.
Next, this Article considers whether a direction in the decedent’s will to distribute items of IRD to charity as a part of the charity’s interest in the decedent’s residuary estate satisfies the “economic effect” requirement found in the Treasury Regulations for section 642(c). This Article suggests that it does, but that the conclusion is not certain.
Finally, the Article suggests possible solutions to assure that the income tax charitable deduction is available for an estate when it pays over the proceeds from items of IRD to a charity.
Sunday, June 17, 2018
Article on Note: Solving America’s Long-Term Care Financing Crisis: Financing Universal Long-Term Care Insurance with a Mandatory Federal Income Tax Surcharge that Increases with Age
Zachary Anderson recently published an Article entitled, Note: Solving America’s Long-Term Care Financing Crisis: Financing Universal Long-Term Care Insurance with a Mandatory Federal Income Tax Surcharge that Increases with Age, 25 Elder L.J. 473-507, (2018). Provided below is an abstract of the Article:
As America’s elderly population rapidly grows, the number of elders that will require Long-Term Care (“LTC”) will correspondingly increase. Many elders lack the financial resources to pay for such care, and existing government programs that currently pay for LTC are underfinanced. While solutions have been proposed, no proposed solution has solved the core issue: how will millions of elders pay for LTC? It is imperative that a viable LTC financing reform solution be introduced and implemented. This Note analyzes a few of the many proposed solutions, establishes a framework that a viable solution should satisfy, and finally proposes a financing solution that could solve the LTC financing crisis.
Friday, June 15, 2018
Article on NOTE: Uncle Sam Killed Grandma: How The Estate Tax Can Help Alleviate Medicare Uncertainty
Alexander G. Karl recently published an Article entitled, NOTE: Uncle Sam Killed Grandma: How The Estate Tax Can Help Alleviate Medicare Uncertainty, 26 Elder L.J. 443 (2018). Provided below is an abstract of the Article:
In the United States, Medicare is the single largest purchaser of medical services. This government program is primarily used by the elderly population. The future of Medicare is murky as there are many obstacles hindering its funding. It is more important than ever to ensure funding for this governmental program. The funding for Medicare has been reduced, even though the aging baby boomer generation has caused an exponential growth in enrollment.
Wealthy individuals who are in similar health conditions as those who are Medicare beneficiaries are subject to the Estate Tax. This tax is calculated based on the estate's value before it is passed to its heirs. As more baby boomers age, there will be more deaths and more estates that are taxable. Reformation of the Estate Tax will generate more revenue and, due to its relationship with Medicare, can justifiably be used to fund Medicare.
This Note: surveys the history and functionality of Medicare and the Estate Tax. This Note: also analyzes the impacts of budget cuts. It suggests a congressional policy change that would allow the collected Estate Tax revenue to fund Medicare. To do so, the Estate Tax must be reformed in two steps: (1) lower the exclusion amount while raising the maximum tax rate; and (2) limit the Grantor Retained Annuity Trusts to prevent large transfers of untaxed wealth.
Thursday, June 14, 2018
Adam J. Hirsch published an Article entitled, Defective Catastrophe Clauses in Wills: Paths to Reform, 52 Real Property, Trust and Estate Law Journal, Vol. 52, No. 3, Winter 2018. Provided below is an abstract of the Article:
This Article explores the problem of construing what I term “defective catastrophe clauses” in wills. Defective catastrophe clauses provide for the contingency that a beneficiary will die simultaneously, or in a common calamity, with the testator but neglect to allow for the possibility that the beneficiary will predecease the testator. The Article explores the extensive case law addressing this problem, spotlighting the most recent and ballyhooed case on point, Estate of Duke. The Article observes that this body of decisions reflects a tension between applying existing law, which fails to respond adequately to the problem, and employing one or another legal fiction to circumvent existing law. The Article argues that lawmakers should confront the problem head on by establishing a new default rule, ideally in the form of a statute, construing catastrophe clauses by implication to cover the possibility that the beneficiary will predecease the testator.
Monday, June 11, 2018
Sharyn M. Fisk published an Article entitled, The Tax Court's Home, Tax Law: Tax Law & Policy eJournal (2017). Provided below is an abstract of the Article:
This article analyzes issues related to the Tax Court’s constitutional status. Although the issue has been debated for decades, recent litigation has revived the issue. In Battat v. Commissioner, the primary issue before Tax Court was whether the President’s limited removal power over tax judges violates the Constitution’s separation of powers. In addressing this issue, the Tax Court outlined the background on the Tax Court’s status to show the Tax Court is not in the Executive branch. Further, the Battat opinion holds that even though the court exercises judicial power, the Tax Court does not exercise the “judicial power of the United States” reserved for Article III courts. Thus, the President’s limited removal power presents no separation of powers violation. The Tax Court did not reach an ultimate answer as to which branch of the government it resides, but it does provide background showing that it lies outside the Executive branch.
To determine which branch the Tax Court resides, the article first examines whether the Tax Court is an Article III court. As an Article III court, the Tax Court would be in the Judicial branch. Under the two approaches in the case law permitting non-Article III courts to exercise limited judicial power, the formalistic approach would suggest the Tax Court is not an Article III court. However, recent cases applying the second approach (i.e., the functional approach) could reach a contrary determination. Next, this article looks at whether the Tax Court may reside in the Judicial branch even if it does not exercise the “judicial power of the United States.” For reasons related to the how the Constitution set up the government, the Tax Court likely may call the Judicial branch its home.
Sunday, June 10, 2018
Christine Lazaro recently published an Article entitled, Financial Exploitation of the Elderly: An Overview of Regulatory Action, Elder Law Studies eJournal (2018). Provided below is an abstract of the Article.
Financial exploitation of the elderly is a significant problem. In 2011, it was estimated that seniors lost on average, $2.9 billion as a result of financial abuse. By the year 2050, it is estimated that 83.7 million people will be aged 65 or older, double what it was in 2012. As a larger portion of the population becomes “elderly,” greater numbers are also suffering from cognitive impairment. Additionally, as people age, there is a decline in financial literacy.
This article examines the work done by securities regulators, the SEC, NASAA, and FINRA, to address the issues connected with financial exploitation of the elderly. The article discusses FINRA guidance to firms with respect to best practices for identifying and addressing financial exploitation of the elderly. It also provides an overview of the recently adopted NASAA Model Act to Protect Vulnerable Adults from Financial Exploitation, as well as FINRA Rules 2165 and 4512, which provide firms with tools to address suspected financial exploitation of seniors faster and more effectively.
Friday, June 8, 2018
Article on O niektórych możliwościach zastosowania osiągnięć biometrii w ustawodawstwie prawnospadkowym [Some Possible Applications of Biometrics Achievements in Legislation on Succession]
Andrzej Frycz Modrzewsk published an Article entitled, O niektórych możliwościach zastosowania osiągnięć biometrii w ustawodawstwie prawnospadkowym [Some Possible Applications of Biometrics Achievements in Legislation on Succession], Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.
Polish Abstract: Dzisiaj można wskazać szereg dogodnych dla testatora instrumentów służących rozrządzeniom na wypadek śmierci, które mogłyby pozwolić m.in. na uniknięcie spekulacji co do ustalenia autorstwa danego testamentu, jak ma to miejsce w wypadku testamentu holograficznego. Stąd przedmiotem niniejszej wypowiedzi jest próba nakreślenia takich rozwiązań w kontekście możliwości ustalania tożsamości spadkodawcy, autora testamentu z wykorzystaniem osiągnięć biometrii, jako źródła wiedzy pozwalającego na rozpoznawanie ludzi na podstawie ich cech.
English Abstract: Today, there are a number of instruments that are convenient for the testator for dispositions of property upon death and which could make it possible, among other things, to avoid speculation as to the authorship of a given will, as is the case with a holographic will. Therefore, the subject of this statement is an attempt to outline such solutions in the context of the possibility of establishing the identity of the testator, the author of the will, using the achievements of biometrics as a source of knowledge allowing to identify people by their characteristics.
Wednesday, June 6, 2018
Bruce A. McGovern and Cassady V. Brewer published an Article entitled, Recent Developments in Federal Income Taxation: The Year 2017, Tax Law: Tax Law & Policy eJournal (2018). Provided below is an abstract of the Article.
These materials discuss as well as provide context to understand the significance of the most important judicial decisions and administrative rulings and regulations promulgated by the Service and Treasury during 2017. Amendments to the Code generally are not discussed except to the extent that they are of major significance, they have led to administrative rulings and regulations, or they have affected previously issued rulings and regulations otherwise covered by these materials. These materials focus primarily on topics of broad general interest – income tax accounting rules, determination of gross income, allowable deductions, treatment of capital gains and losses, corporate and partnership taxation, exempt organizations, and procedure and penalties. The materials deal summarily with qualified pension and profit sharing plans, and generally do not deal with international taxation or specialized industries, such as banking, insurance, and financial services.
Tuesday, June 5, 2018
Jennifer E. Rothman recently published an Article entitled, Introduction to THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.
THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard University Press 2018), 256 pages, considers the opportunities and risks that today’s right of publicity laws pose. The right of publicity has become a negative force―suppressing speech, blocking otherwise lawful uses of copyrighted works, forcing commercialization of the dead, and stripping people of ownership of their own identities. But this need not be so. The right of publicity has an important and powerful core insight that originated with the right of privacy―that we should have some control over how others use our names and likenesses.
Rothman shows how the right has lost its way. Rothman contends that the right got off track when it transformed from a personal right, rooted in the individual (the "identity-holder"), into a powerful intellectual property right, external to the person, that can ` sold or taken by a nonidentity-holding "publicity-holder." The wrong turns by the right of publicity have been driven and continued by a host of mythologies that have sprung up surrounding both it and its predecessor, the right of privacy.
The first part of the book uses extensive archival research to debunk the common, though erroneous, stories about the two rights. The second part develops how today’s right of publicity came to be understood as an intellectual property right, different in nature from the right of privacy. In this part of the book, Rothman challenges the common justifications for having an IP-like right of publicity that is separate and apart from a right of privacy. In the final part of the book, Rothman tackles the three most pressing challenges posed by today’s right of publicity―its threat to individual ownership and control of one’s own identity, its threat to free speech, and its conflicts with copyright law. Rothman concludes by providing a number of recommendations for putting the right of publicity back on course.
THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD has been called the “definitive biography of the right of publicity” (Jack Balkin, Yale Law School), and an “important and informative study.” (Rebecca Tushnet, Harvard Law School).
Note: The downloadable document is an excerpt of the Introduction to the book. The complete work is currently available from Harvard University Press and other book sellers.
Monday, June 4, 2018
George P. Smith published an Article entitled, 'Dignity in Living and in Dying': The Henry H. H. Remak Memorial Lecture, Elder Law Studies eJournal (2018). Provided below is an abstract of the Article.
Although no express right to die with dignity is found in definitive instruments on human rights, the Charter of the United Nations nonetheless addresses the need to protect and safeguard the essential dignity and worth of the human person during life and, arguably, also at death. Indeed, the United Nations has taken an active role in codifying a mandate to ensure human dignity be given and observed within various contexts of International Law. A powerful interface exists between human dignity and the right to life; for, many of the claims to a right to die with dignity actually reaffirm a more general commitment to a shared life of loving and of being set within the framework of living a full life in dignity. Since the conclusion of World War II, a number of European constitutions, in particular, acknowledge presently dignity as a first principle, a constitutional value, a normative standard for policy making, a constitutional right or even an absolute right . The current debate over the issue of dignitary status is broadened contextually when notions of death with dignity are introduced and examined. This Article probes the efficacy of the present conflicts arising from this extended debate and concludes that the very right to self determination, dignity, and to life itself, should be acknowledged and respected especially at its end-stage. Clear evidence of this progressiveness is to be found, domestically, in the United States by state legislative actions which allow pharmacologic assistance at death for terminally ill individuals. These actions may be seen, and applauded, as a nascent response to similar global actions allowed, notably, in The Netherlands, Belgium, and Switzerland. Judicial responses to this matter, however, remain guarded and indecisive.