Wills, Trusts & Estates Prof Blog

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

Wednesday, January 2, 2008

Lack of Portability of the Estate Tax Exemption and Possible Solution


Mitchell M. Gans (Steven A. Horowitz Distinguished Professor of Tax Law, Hofstra University School of Law), Jonathan G. Blattmachr (Attorney at Law, Milbank, Tweed, Hadley & McCloy LLP)  and Austin Bramwell (Attorney at Law, Milbank, Tweed, Hadley & McCloy LLP), have recently published their article entitled Estate Tax Exemption Portability: What Should the IRS Do? And What Should Planners Do in the Interim?, 42 Real Prop. Prob. & Tr. J. 413 (2007).

Here is the editors' synopsis of their article:

This Article addresses the problem of the lack of portability of the estate tax exemption: if one spouse dies without using the exemption, it is lost, and the surviving spouse cannot retain it for later use. The authors trace the Internal Revenue Service’s response to this problem through four private letter rulings and conclude that the analysis used in the rulings is problematic because it could undermine enforcement of the Internal Revenue Code in other contexts. Instead, the authors propose a new approach to resolving the portability problem and recommend that it be implemented administratively so that taxpayers may employ it safely.


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