Despite a presidential veto, the "death tax" is still a hot political issue in 2000. What's a small-business person to do?
From: Inc. Magazine, Dec 2000 By: Jill Andresky Fraser
Despite a presidential veto, the "death tax" is still a hot political issue. What's a small-business person to do?
It's ironic. Today's financially savvy entrepreneurs have distinguished themselves from their predecessors by displaying a willingness to dive right into the complicated, time-consuming, and all too often costly process of estate planning. Many of them have grasped the importance of getting started early and have dutifully upgraded their plans with each new phase of corporate growth. They've come to terms with the undeniable benefits of making gifts through irrevocable trusts. So how can it be that now, of all times, the so-called death tax has seized center stage in the nation's political arena, with members of both parties vowing that it's only a matter of time before it disappears entirely?
"Clients are definitely asking me what I expect to happen to the estate tax," says Laurie J. Hall, a partner and estate planner at Palmer & Dodge, a law firm in Boston. "That's a difficult question for anyone to answer right now."
Still, estate planning is too important for entrepreneurs to put off until the political debate is resolved. Aaron Cohen, CEO and cofounder of Concrete Inc., a four-year-old consulting company that helps companies develop Internet businesses, says, "I'm in a fast-growth mode, a capital-markets mode. It would not be appropriately conservative for me, speaking from a personal financial perspective; to just take for granted the idea that sweeping changes are going to occur that would eliminate my need for estate planning. The longer I delay, the more valuable my company will be -- which will just make estate-planning activities more difficult and more expensive."
There may be no better time than the present to figure out which strategies make sense in today's uncertain environment and which might be worth postponing or redesigning. Some observers remain dubious about the prospect of a major overhaul. "Many people might not realize this, but some years ago Congress promised to lower the top estate-tax rate at some point in the future. But it never happened, even though the vote did go through," says Carlyn McCaffrey, a partner in the trusts-and-estates department of Weil, Gotshal & Manges LLP, in New York City. "The timing for that tax-rate reduction just kept getting pushed into the future."
Currently, the top federal estate-tax rate is 55%. Through the end of 2001 the lifetime exclusion amount (the value of the estate over which estate-tax returns must be filed) is $675,000. That gift-and-estate-tax exclusion is scheduled to gradually rise to $1 million by the year 2006. There's an annual exclusion for up to $10,000 for gifts to each of any number of people; that means that a husband and wife can each transfer up to $10,000 a year in cash or assets to a child without triggering a tax liability. There is usually no tax on bequests or gifts between spouses.
The most recent reform measure, which was approved by the House and Senate earlier this year but vetoed by President Clinton, would have phased out the federal estate and gift taxes by the year 2010. "Looking at this realistically," McCaffrey says, "even if that bill did get passed again, this time without a veto, it's only another promise. It's a long time between now and 2010, and nothing prevents another set of politicians from coming in and changing the law once again. People can't count on significant change -- and they shouldn't count on it."
Appealing as it may be to hope for political miracles (especially when tax savings would be attached to them), business owners tend to agree. "If the estate-tax law is repealed -- which I personally don't expect to see -- it would be foolish to forget that what one government takes out, another can put back," says Terri Alpert, the founder and CEO of Professional Cutlery Direct LLC, based in North Branford, Conn. Despite the current political debate, Alpert has no regrets about her own estate-planning activities. When she incorporated her business as a limited-liability company, four years ago, she turned over a majority share of her company's stock (minus voting rights) to trust funds for her children.
"My husband and my corporate attorney are the trustees, and I can replace them if I ever want to, which I can't imagine doing. My own financial interests and management control are assured by the management contract that I've set in place. What's to regret?" Alpert asks. "I view this as a hedge that will protect my family's interests no matter how big my company gets or what happens to the tax laws. There wasn't any downside for me, other than the cost of setting up the trusts, which was relatively low."
But even though few experts expect to see the dismantling of our gift-and-estate-tax system, more-modest adjustments are probably inevitable. "The truth is, there hasn't been any significant change in these laws since the 1980s," says Jonathan Forster, a lawyer and tax planning specialist at Greenberg, Traurig LLP, in Tysons Corner, Va. "There's so much momentum for change -- if only to keep up with all the wealth that's been created in the nation during this recent period of prosperity -- that I'd be surprised if we don't see a bumping up of the lifetime exclusion, maybe to the point where a couple could pass on something between, say, $3 million and $5 million in bequests without needing to pay any taxes."
McCaffrey agrees. "We easily could see a situation in which people who are now at the margins, when it comes to the exclusion amounts, will no longer need to carry out extensive estate-planning activities. The problem is," she adds, "this is very tough to predict, especially for entrepreneurs whose businesses may grow rapidly or unexpectedly beyond the exclusion point. My great fear is that people will get lulled into inactivity because they think they'll be all right -- and then when they realize that they need to act, they'll find that they've missed out on the best opportunities."
For owners who are still uncertain about whether to act, there's another point to consider: Even under rosy reform scenarios -- something along the lines of the tax phaseout Congress passed this past summer -- some form of estate tax will remain for nine years. That represents a large and dangerous window of vulnerability for any growing company. If you suspect that your future heirs won't be able to pay Uncle Sam without conducting a fire sale of your company or its key assets, you owe it to everyone (and to your business as well) to explore estate-planning options sooner rather than later.
source: http://www.inc.com/