Ever since it was first adopted back in 1916 a lot of people have been in favor of repealing the estate tax. They feel this way for a number of reasons. For one, the estate tax is selectively imposed and where the line is drawn varies from one year to another. So two people who pass away with the same amount of money can pay widely differing amounts. One family can be exempt from the estate tax entirely while another who died during a different year with identical resources could be asked to pay seven figures.
Another reason why the estate tax is assailed from some quarters is because it is an instance of taxing funds that remain after you already paid all sorts taxes throughout your life. Any savings that you accumulate are going to be earnings that you were able to hold onto after paying income and payroll or self-employment tax, and of course you pay sales tax, property tax, capital gains tax and any number of other taxes every step of the way. Many question why you should be taxed again for the transgression of dying.
Those that have always wanted to see the estate tax repealed were happy to see 2010 roll around. Due to provisions in the Bush era tax cuts, the estate tax was scheduled to be repealed during 2010, and throughout most of the year it was. But in December the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 was passed and the estate tax came back with it carrying a $5 million exclusion and 35% maximum rate for 2012 and 2013.
In addition, it was retroactively applied to the beginning of 2010, essentially repealing the repeal. But, lawmakers recognized that a retroactive imposition of the estate tax after it was legally repealed could breed legal challenge. So personal representatives and executors can opt out of the estate tax for 2010 by filing IRS Form 8939, which is finally supposed to be available on November 15th.
This was certainly a rather difficult chronology to keep up with, especially if you are a layperson. This kind of thing underscores why it is a good idea to engage the services of an experienced estate planning attorney and keep in touch as the laws continually change.
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