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Earlier this week the U.S. Treasury Department proposed new regulations designed to prevent wealthy business owners from avoiding estate tax liability by artificially undervaluing their assets.
The tax avoidance strategy the new regs are designed to prevent takes advantage of a provision of the law that has to do with how minority interests in businesses are valued for tax purposes. Minority interests, and interests in companies that are hard to sell, are worth less than other business interests, and are routinely (and sensibly) valued less for this reason. But this provision can be abused by wealthy people seeking aggressive estate-planning strategies. Someone whose assets, properly valued, would likely put them in the economic stratosphere—the less than one half of one percent of estates that would actually be subject to the federal estate tax—can reduce their estate’s apparent value by seeking out a business investment in which their minority interest would be valued much lower, for tax purposes, than other investment uses of the same amount of money.
Put another way, if you have $20 million in assets, abuse of this provision can allow you to squeeze it into a $10 million package for no purpose other than tax avoidance. The Treasury regs are intended to prevent these transactions only when they are clearly motivated by tax avoidance.
The technique Treasury wants to prevent clearly isn’t something just anyone is going to try. In 2016, estates and cumulative gifts valued at less than $5.45 million ($10.9 million for a married couple) are exempt from all federal taxes. Nor is it a strategy that’s easily available to owners of a small business or family farm for whom this single asset is the lion’s share of their estate. Rather, it’s a tax dodge that’s available to a small number of super-rich Americans who enjoy enough liquidity to contemplate moving tens of millions of dollars in assets around at a moment’s notice.
As things stand, estate tax cuts over the past two decades already mean the tax only applies to the very largest estates. Reversing this trend would require more than regulatory steps. Fortunately, Congress has reform options available in the form of the Responsible Estate Tax Act, which would reduce the estate tax exemption and crack down on other egregious estate tax abuses such as the “GRAT” loophole. But since Congressional action does not appear to be forthcoming, Treasury’s draft regulations are an important step in preserving the estate tax.