Wills, Trusts & Estates Prof Blog

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

Friday, January 8, 2021

Article on Tax Benefits, Higher Education and Race: A Gift Tax Proposal for Direct Tuition Payments

Bridget J. Crawford and Wendy C. Gerzog recently published an article entitled, Tax Benefits, Higher Education and Race: A Gift Tax Proposal for Direct Tuition Payments, Wills, Trusts, & Estates Law ejournal (2020). Provided below is the abstract to the Article. Tax

A tax system should be fair. According to conventional wisdom, this fairness mandate means that similarly situated taxpayers should pay similar taxes. Notably absent from most discussions about tax fairness or equity is any consideration of race. This makes sense, if one focuses on the tax laws’ facial neutrality, as well as the Internal Revenue Service’s failure to collect official data about the race of taxpayers. But if one is interested in equity among taxpayers, we must also examine to what extent different groups of taxpayers benefit from a Code section that reduces their tax liability. In the context of distributional equity, race and other identity characteristics must inform any analysis. This Article intervenes in this discussion with three principal claims: one descriptive, one normative, and one utilitarian.

First, the Article uses data from the higher education sector to demonstrate that primarily wealthy, white taxpayers capture the most generous educational tax benefits. Black taxpayers appear to benefit the least from these tax provisions. Black college graduates have greater education-related debt (both in incidence and quantum) than any other group of their peers. Furthermore Black college graduates have lower average wages and higher rates of unemployment compared to their Asian, Hispanic/Latinx counterparts. Black families are the least likely to be able to contribute to a 529 college tuition savings program or to make tax-free, direct tuition payments. While Black college graduates and families can take advantage of some tax benefits for higher education, the greatest tax expenditures are for those that benefit whites.
The Article next argues that achieving a more racially just society requires attention to the ways that tax laws exacerbate existing race-based economic inequality. This Article uses the example of the gift tax exemption for direct tuition payments to illustrate the ways that tax rules can exacerbate the racial wealth gap. In the context of any tax benefit statute, there are abundant opportunities for future research at the intersection of race and taxation. That work is made more difficult by the absence of readily available tax data on the basis of race, but other data sources can help fill the gaps.
Finally, the Article proposes a test for evaluating the distributional equity of any tax exclusion or deduction that results in an understatement of the donor’s or decedent’s transfer of wealth. Unlike a wealth transfer that is considered an item of consumption, a wealth transfer that has concomitant lifelong benefits, such as direct tuition payments for education, should not be allowed to reduce the donor’s transfer tax base. In the case of wealth transfer taxes, a particular tax benefit is inequitable if (1) it has disparate impacts on the basis of race and (2) the benefit is inconsistent with the overall policy objective of imposing a gift tax on inter vivos transfers that create substantial capital-like advantages to the donee while simultaneously reducing the value of the transferor’s estate. The gift tax exemption for direct tuition payments fails both parts of this test and should be repealed.

January 8, 2021 in Articles, Current Affairs, Current Events, Estate Planning - Generally, Estate Tax, Gift Tax | Permalink | Comments (0)

Sunday, January 3, 2021

President signs year-end funding, COVID-19 relief legislation; tax provisions are enacted

TaxOn December 27, President Trump signed the Consolidated Appropriations Act, 2021." The legislation includes "over $900 billion fo coronavirus (COVID-19) relief programs, government funding of $1.4 trillion, and myriad tax provisions." 

The legislation includes a tax provision that will allow recipients of Paycheck Protection Program (PPP) loans to deduct related costs. The CARES act will also be extended as well as expanded. 

Tax measures that will result from the new legislation includes:

COVID-Related Tax Relief Act

  • Extension time for repayment
  • Additional 2020 Recovery Rebates
  • Clarification that no deduction is denied, no tax attribute is reduced, and no basis increase is denied by reason of the exclusion from gross income from forgiveness of PPP loans
  • Allowance of an election regarding the tax treatment of certain farming losses for 2018, 2019, and 2020
  • and more

There will always be permanent extensions of temporary provisions and long-term extensions of temporary provisions. Also included will be short-term extensions of temporary provisions. 

There are also numerous miscellaneous tax provisions that include: 

  • Modifications to the low-income housing tax credit rate, including a new minimum rate of 4% for certain buildings
  • Depreciation of certain residential rental property over 30-year period, allowing for the use of 30-year ADS depreciation for residential real property placed in service prior to January 1, 2018, held by an electing real property trade or business in certain circumstances
  • Expansion of current section 48 energy credit to include waste “energy recovery property”
  • Extension of current section 48 energy credit for offshore wind facilities to January 1, 2026
  • Minimum rate of interest for certain determinations related to life insurance contracts
  • Retirement provisions
    • Modification to minimum age for distributions during working retirement
    • Temporary rule preventing partial plan termination
  • Employee retention credit (ERC) and rehiring tax credit
    • Clarifications and technical improvements to the CARES Act employee retention credit, including a clarification regarding the definition of “gross receipts,” a modification to the treatment of health plan expenses, and improved coordination with the PPP
    • Extension of the ERC to July 1, 2021, and expansions including increase in the credit percentage from 50% to 70%, increased per employee limitation, and modifications to the definition of eligible employer
  • Business meals deduction—a temporary allowance of a full deduction for business meals paid or incurred between December 31, 2020, and January 1, 2023
  • Earned income tax credit and child tax credit—a temporary special rule for determination of earned income
  • Charitable contributions
    • Extension of the CARES Act non-itemizer charitable contribution deduction for certain contributions through 2021
    • Extension of the CARES Act modification of donor percentage-of-income limitations for certain charitable contributions through 2021
    • For corporations, a temporary suspension of limitations on the deduction for charitable contributions associated with qualified disaster relief made from January 2020 through late February 2021
  • Health and dependent care flexible spending arrangements, temporary special rules for health and dependent care flexible spending accounts with unused balances
  • Life insurance—reduce the required interest rates used to determine if a policy meets the definition of life insurance for federal tax purposes

Special thanks to Mark J. Bade (CPA, GCMA, St. Louis, Missouri) for bringing this article to my attention. 

January 3, 2021 in Current Affairs, Current Events, Estate Planning - Generally, Estate Tax, Gift Tax, Income Tax, New Legislation | Permalink | Comments (0)

Saturday, January 2, 2021

Philanthropists Push for Charitable Giving Reforms

CharityIn order to increase the amount of money available for nonprofits, a group of high-profile philanthropists have been working together with estate and gift tax experts to push for reforms in charitable giving laws. 

The objective is to "unlock some of the US $1 trillion sitting in private foundations and DAFs that is not obligated to be distributed to nonprofits under current law." Basically, they want the money to be accessible to working charities so they can work. 

According to Ray Madoff, a professor of estate and gift tax estate planning at Boston College, "The government shouldn't be subsidizing putting money aside where it might or might not be spent for the benefit of society." 

Madoff also stated that private foundations are obligated only to pay out 5% of their assets to public charities annually, with the foundation being able to put the rest to place of its choosing. 

With Donor Advised Funds (DAFs), individuals are allowed to make donations into an investment fund managed by a public nonprofit. However, the funds are not required to be distributed to a public charity because the DAF is managed by one.

According to Madoff, these "tax-advantage vehicles" are not producing many benefits for society. One reason for this is that the law cannot keep up with the ever-growing DAF investments. Another issue is that private foundations can meet their annual 5% payout by distributing funds to a DAF instead of operating a charity. 

The philanthropist groups are proposing that Congress—with the help of Joe Biden—engage in "emergency charitable stimulus" legislation that raises the required annual payout rate to 10%. 

See Abby Schultz, Philanthropists Push for Charitable Giving Reforms, Barrons, December 23, 2020. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

January 2, 2021 in Current Affairs, Current Events, Estate Planning - Generally, Gift Tax, New Legislation | Permalink | Comments (1)

Thursday, December 17, 2020

MacKenzie Scott gives away $4.2 billion in four months

ScottMacKenzie Scott has been giving away money at an "unprecedented pace" as she has donated more than $4 billion in the last four months after giving away $1.7 billion in gifts in July. 

Scott is the world's 18th richest person and has been outlining her contributions in blog posts. On Tuesday she stated in a blog post that she has been working with her team to "figure out how to give away her fortune faster." This year alone, Scott's wealth grew from $23.6 billion to $60.7 billion as Amazon.com Inc., has surged. 

“This pandemic has been a wrecking ball in the lives of Americans already struggling,” she wrote in the post on Medium. “Economic losses and health outcomes alike have been worse for women, for people of color and for people living in poverty. Meanwhile, it has substantially increased the wealth of billionaires.”

Scott donations and gifts this year are close to $6 billion, which is one one of the highest annual contributions by a living individual, according to Melissa Berman, CEO of Rockefeller Philanthropy Advisors. 

See Sophie Alexander and Ben Steverman, MacKenzie Scott gives away $4.2 billion in four months, Bloomberg Wealth, December 15, 2020. 

Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.  

December 17, 2020 in Current Events, Estate Administration, Estate Planning - Generally, Gift Tax | Permalink | Comments (0)

Wednesday, December 2, 2020


Estate planningOn November 17, 2020, the Treasury Department and the IRS released their Priority Guidance Plan for the 12 months from July 2020 through June 2021. 

The American College of Trust and Estate Counsel (ACTEC) posted an overview of what the Treasury and the IRS will focus on for the next seven months. 

Part 1 of the plan is titled "Implementation of Tax Cuts and Jobs Act (TCJA)" and contains 38 items. Of the 38 items, there are two in particular that will interest estate planners. 

Item 4 of Part 1 will have some focus on the deduction of estate and trust expenses. The item includes Notice 2018-61 which was originally published on July 30, 2018, which stated, "“the Treasury Department and the IRS intend to issue regulations clarifying that estates and non-grantor trusts may continue to deduct expenses described in section 67(e)(1)” despite the eight-year “suspension” of section 67(a) in the 2017 Tax Act by new section 67(g)." 

Item 33 of Part 1 provides "significant reinforcement for the proposition that the death of the grantor does not by itself cause the recognition of gain with respect to appreciated assets held in a grantor trust."

The Priority Guidance Plan also includes information on burden reduction, relief regarding GST exemption allocations and elections, and more general guidance. The ACTEC website also provides information on omissions from the Priority Guidance Plan. 

The aforementioned information and more is available in the source cited below. 

See 2020-2021 TREASURY-IRS PRIORITY GUIDANCE PLAN, The American College of Trust and Estate Counsel, November 30, 2020. 

December 2, 2020 in Current Events, Estate Planning - Generally, Generation-Skipping Transfer Tax, Gift Tax, Income Tax, New Legislation, Trusts, Wills | Permalink | Comments (0)

Tuesday, December 1, 2020

Individual Tax Planning Following the November 2020 Elections

TaxThe presidential election has passed and individual tax planning remains a touchy subject as there is a lot of uncertainty surrounding the topic. As of now, it is unclear what the remainder of this year holds, much less what the beginning of 2021 has in store. 

As of now, it appears that the Democrats will control the House of Representatives, it is unclear which party will control the U.S. Senate. Unfortunately, the uncertainty regarding the Senate will remain until the run-off for the two U.S. Senate seats in Georgia occurs in January 5, 2021. 

There has been a lot of talk about potential changes to tax policy under a Joe Biden presidency and if the Democrats end up in control of the House and the Senate, the changes are more than likely to occur. 

With this in mind, individuals are taking advantage of the current tax exemptions just in case they are gone in 2021. 

The potential changes would have an effect on taxes on Income, Capital Gains, and Estate taxes. 

If these changes worry you or you will simply just miss the current tax exemptions you have available to you, now is the time to get your affairs in order and take the necessary steps to utilize the exemptions. 

For strategies and tips to use to take advantage of tax exemptions, see the article cited below. 

See Mark J. Andres, Individual Tax Planning Following the November 2020 Elections, National Law Review, November 25, 2020. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

December 1, 2020 in Current Events, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, Income Tax | Permalink | Comments (0)

Monday, November 30, 2020

2021 Inflation Adjustments of Interest to International Tax Practitioners

Estate planningThe IRS recently released its annual Revenue Procedure containing inflation-adjustments for 2021.

 Of interest to international tax and estate planning practitioners are the following:

  • Estate and Gift Tax Basic Exclusion Amount: $11,700,000
  • Gift Tax Annual Exclusion Amount: $15,000
  • Increased Annual Exclusion for Gifts to Non-U.S. Citizen Spouses: $159,000
  • Tax Liability Threshold for Covered Expatriate Status: $172,000
  • Gain Exclusion Amount for Covered Expatriates: $744,000
  • Foreign Earned Income Exclusion Amount: $108,700


"Practitioners should note that the estate and gift tax basic exclusion amount is only available to U.S. citizens and U.S. domiciliaries. Foreign individuals do not receive any exclusion amount for U.S. gift tax purposes (other than the annual exclusion amounts) and only receive a $60,000 exemption for U.S. estate tax purposes."

November 30, 2020 in Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, Income Tax | Permalink | Comments (0)

Sunday, November 29, 2020

Maximizing End-of-Year Charitable Giving

Estate planningThe holiday season is quickly approaching, which also means it is a popular time for charitable giving. Donors can be philanthropic in their charitable giving while also gaining tax advantages. 

One way donors can take advantage of these is to include a provision in your will or trust, which will provide a part of your estate to a charitable organization. Providing a gift to a charitable organization may allow your estate to receive an estate tax deduction. 

You can also gift securities through lifetime gifts. This method will allow the chosen charitable organization to receive the full value of stock and will allow you to take an income tax charitable deduction. 

You can also gift your IRA to a designated organization upon your death. This strategy requires you to file a beneficiary designation form with the IRA administrator. You can either gift the entire IRA or you can set a specific percentage for the organization to receive. The organization will not have to pay income taxes for withdrawals and will receive the full value of the gift. There is also another tax break for older donors that gift out of their IRA. 

See Eileen Y. Lee Berger, Maximizing End-of-Year Charitable Giving, Bowditch & Dewey, November 25, 2020. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

November 29, 2020 in Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, Income Tax, Trusts, Wills | Permalink | Comments (0)

Sunday, November 22, 2020

Is Now the Right Time to Forgive Intrafamily Loans?

Estate planningIf you made intrafamily loans to family members in the past, or even more recently due to the COVID-19 pandemic, you should consider forgiving those loans. Here's why, as of now, the gift and estate tax exemption rates are at an all-time high. Also, the interest rates are at a record breaking low. 

It is possible that intrafamily loans can be used as an estate planning tool due to the ability to transfer wealth to your loved ones tax free so long as the loan proceeds reach a certain level of returns. 

"Generally, to ensure the desired tax outcome, an intrafamily loan must have an interest rate that equals or exceeds the applicable federal rate (AFR) at the time the loan is made. The principal and interest are included in the lender’s estate, so the key to transferring wealth tax-free is for the borrower to invest the loan proceeds in a business, real estate or another opportunity whose returns outperform the AFR."

Any excess from these investment returns over the interest expense will work as a tax-free gift to the borrower. With low interest rates, it is much easier to outperform the APR. 

If have some leftover exemption, forgiving an intrafamily loan will allow you to transfer the entire loan principal plus any accrued interest tax-free. This will allow you to take advantage of the $11.58 million exemption amount before it is gone. 

There are also income tax considerations. Typically, forgiving intrafamily loans will be considered a gift, which carries with it no income tax consequences. 

In deciding whether or not you should forgive an intrafamily loan, you should speak with your financial and/or estate planning advisor.

See Joseph R. Marion, III & David T. Riedel, Is Now the Right Time to Forgive Intrafamily Loans?, Adler, Pollock, & Sheehan P.C.: Insight on Estate Planning, October 27, 2020.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

November 22, 2020 in Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax | Permalink | Comments (0)

Friday, November 20, 2020

Debt After Death: What You Should Know

BoxHeadAlthough some debts are relieved when you die, others may have a great impact on your family. Below are a few things you should know about incurring debt and how those debts may impact your family after your death. 

First, after you die, your debt becomes apart of your estate. Dividing up your debt is done in a process called probate. "The length of time creditors have to make a claim against the estate depends on where you live. It can range anywhere from three months to nine months. Therefore, you should get familiar with your state’s estate laws, so you are well aware of which rules apply to you."

You should know that Beneficiaries' money is partially protected but only if they are named properly. Unsecured creditors usually will not be able to touch funds that are in life insurance policies or 401(k)s. However, if beneficiaries are not named until after your death, the funds will go to the estate leaving them open to creditors. 

Credit card debt will not disappear so easily. It is the norm for the estate to pay credit card debt using the estate's assets. So long as children are not a joint holder on the account, they will not inherit credit card debt. If a surviving spouse is a joint borrower, they will be responsible for their deceased spouse's debt. It is important to pay attention to joint applicants and joint borrowers on your credit card accounts, whether or not they had anything to do with the credit card following the paperwork. 

Federal student loan debt will be forgiven. Once the borrower dies, the debt is forgiven, however, proof of death is required. This rule is not the same for private student loan debt. Although some loan programs offer loan forgiveness upon death, others are not so generous. Thus, it is important to know where your student loans came from and who the borrower was, especially for private loans. 

In regard to your mortgage, if your heirs inherit property, lenders must allow them to take over the mortgage. However, heirs are not required to keep the mortgage and can refinance or pay off the debt. This same rule applies to the surviving spouse. 

Marriage is very important. If your spouse dies, you are legally required to pay any "joint tax owed to the state and federal government."

It is very important for you to organize your debts and use any safeguards possible to plan for your debts and how they may impact your family in the event of your death. 

See Michael Aloi, Debt After Death: What You Should Know, Kiplinger, November 2, 2020.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

November 20, 2020 in Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax | Permalink | Comments (0)