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Capital Letter
By Ronald D. Aucutt
No. 2
Washington, D.C.
November 20, 2006
CLUES TO ESTATE TAX LEGISLATION IN A DEMOCRATIC CONGRESS

The 2006 election placed the 110th Congress in Democratic hands, while the last estate tax efforts of the Republican-led 109th Congress may provide clues to what estate tax legislation will eventually look like.

Dear Readers Who Follow Washington Developments:
Elections can alter much but clarify little.  This year’s election was no exception.  Clearly, the election focused on Iraq and President Bush.  Secondarily but importantly in many states and districts, the election was about corruption and legislative stagnation, with many voters also concerned about immigration and rising tuition costs, health care costs, energy costs, and interest rates.
Iraq, however, is not principally an ideological issue.  We suspected that when it made allies of the conservative administration of President Bush and the liberal government of Prime Minister Tony Blair.  Now we have seen confirmation, as the election has produced Republican and Democratic caucuses that are both more conservative than their predecessors, even though the conservative party – the Republican Party – lost ground.  Republicans in Congress as a whole are more conservative because many moderates lost, and Democrats in Congress as a whole are more conservative because many moderates won.
The election, in short, may have been less about ideology than about management – management of the war, management of congressional ethics, management of the legislative agenda, and management of some federal agencies.
If there is any validity to that assessment, then it should follow that there will be enormous pressure to get things done in the 110th Congress that convenes in January 2007.  Democrats will be under pressure to deliver good management of the legislative agenda to show the American people that they were right in claiming that they could do what the Republicans couldn’t.  Republicans will be under pressure to be a model of cooperativeness to show that it was Democratic obstructionism after all that prevented the people’s businesses from moving forward these past several years.  Only by delivering in these ways (one would think) can Democrats hope to build on their momentum and Republicans hope to reclaim momentum, moving into the all important 2008 presidential and congressional campaigns.  There will be no incumbent President or Vice President on the ballot for the first time in 56 years and, in light of the closely-divided nation and competitiveness of the parties that the 2006 election has confirmed, the 2008 presidential election is likely to be a true jump ball.
Speaker Nancy Pelosi (D-CA) should be expected to be very hands-on, very visible, and very much engaged with the White House and with Republican congressional leaders.  She is often said to be more liberal than most Democrats in the House, but she is where she is in large part because of the strong support of “Blue Dogs” and other moderate Democrats.  Her party will want her to succeed and to that end will be under great pressure to demonstrate a resolve, if not even an uncharacteristic discipline, in mastering its agenda.  Democrats who have gotten the “management” message may, at least initially, try to govern from the center and tackle legislation that is achievable, rather than firing off ideological messages that bog down in the Senate or are vetoed by the President.  Even Ways and Means Committee Chairman Charlie Rangel (D-NY) (who, like Pelosi, was portrayed as “scary” by Republicans during the campaign and has now called for reinstatement of the military draft) will be much more of a leader than an ideologue on tax issues, especially at first.  The departure of the current chairman, Bill Thomas (R-CA), and other senior Republican committee members will give him even more opportunities for inclusive leadership.
The Senate may be harder to predict.  Majority Leader Harry Reid (D-NV) will have his work cut out for him to reduce the tension that has characterized recent Senate debates, including debates over taxes.  The retirement of Republican Leader Bill Frist (R-TN) will provide somewhat of a fresh start to help diffuse the tension, but the Senate presents some unique challenges, including the one-vote margin of control, a 60-vote requirement to take up and “call the question” on most legislation, and the supercharged agenda of judicial and other nominations.  Finance Committee Chairman Max Baucus (D-MT) has a history of working cooperatively with his counterpart Charles Grassley (R-IA), but he has not always had an easy time with his Democratic colleagues.
In the first days after the election, nearly everyone is saying the right things about bipartisanship, common ground, openness, reaching out, and collegiality.  We should not need reminding, however, that the folks we elect tend to say that after every election.  Some optimists say it will be different this time, partly for the reasons summarized above.  Most of us want to wait and see, knowing that the best-intended cooperation is always subject to enormous centrifugal forces tending to drive it apart.
Democrat leaders have publicly cited “Six for ’06,” – the six priorities of the “first hundred hours” – legislative hours, that is – of the new Congress:
Congressional ethics reform, including lobbying restrictions.
An increase in the minimum wage.
Implementation of the 9/11 Commission’s recommendations.
Medicare, including the negotiation of prescription drug prices.
Roll-back of what are perceived as recent “tax breaks for Big Oil.”
Reduction of the cost of college tuition (probably through the tax system).
There may indeed be bipartisan support for some of these things.  On the other hand, in light of the Republicans’ recent history of resistance, there may be a lot of Republican unrest now if President Bush shows a disposition to make deals with congressional Democrats.
The election has not changed the fact that both Republicans and Democrats are probably very weary of the estate tax as a campaign issue and a legislative distraction.  Surely (one would think), the Democrats will want to demonstrate their resolve and ability to get things done by dealing with such a simple issue as the estate tax!
But the estate tax was not an important part of the campaign, it does not fit in the “first hundred hours” priorities, and there is no other reason to see it as an important part of the near-term Democratic agenda.  Moreover, estate tax legislation with any significant revenue cost will be impeded if the Democrats are able to deliver on reinstating a “pay-go” discipline that requires revenue losses to be offset with revenue enhancements or cost savings.  This is especially true in light of Chairman Rangel’s aggressive commitment to individual alternative minimum tax relief (an objective Chairman Baucus shares) and the House’s “first hundred hours” commitment to tuition relief.  Both of these initiatives, in the context of the current income tax, could be very expensive.  And if they would be addressed best in the context of “fundamental tax reform,” that would take longer than a hundred hours, that’s for sure.
Another factor in the prospects for estate tax legislation is the apparent residual support for repeal of the estate tax.  In April 2005, H.R. 8, the “Death Tax Repeal Permanency Act of 2005,” was approved by the House of Representatives by a somewhat bipartisan vote of 272-162.  At last count, 215 of those 272 Members of Congress will be back in the 110th Congress (only three votes short of an absolute majority).  Meanwhile, over 50 Senators returning to the 110th Congress voted in June 2006 to take up consideration of H.R. 8.  One could theorize that a majority in both Houses of the 110th Congress favor repeal of the estate tax.  That would not be entirely unreasonable, but neither does it matter.  A majority of the Democratic caucuses surely are opposed to repeal, and Democrats control the agenda now.
Assuming that “making all the tax cuts permanent” is again a part of the proposed budget the Bush Administration sends to Congress in a few months, much will be learned about the longer-term tax priorities of the Democratic Congress from the way Congress reacts with its own budget resolution or the equivalent.  Until then, the prospects of estate tax legislation in 2007 or 2008 will remain very uncertain.  Although many of us would prefer more stability and rationality, there arguably is no crisis until we reach the 2010-repeal-2011-revival two-step.  It is not Congress’s custom to get too far ahead in such matters.
Meanwhile, in the current “lame duck” session of Congress that resumes on December 5, it is virtually certain that the notorious “trifecta” of H.R. 5970 (estate tax relief, extension of expired provisions, and increase in the minimum wage) will be broken up, and the expired provisions will be extended on their own.  Many of these provisions expired December 31, 2005.  There is simply too much at stake and extension is simply too popular among Members in both parties to expect Congress to miss this opportunity (even though it is probably too late to revise the affected 2006 income tax return forms and instructions).  In contrast, any increase in the minimum wage could be left for the 110th Congress where it is a priority of the “first hundred hours,” unless of course the Republicans choose to push it through to deprive Democrats of the credit.
That leaves the estate tax.  It is easy to write off as futile any thought that the lame duck Republican leadership would bring up the estate tax again.  But Senator Baucus, the ranking Democrat on the Finance Committee, may hope to persuade them to do just that, in a compromise form that he and his staff might broker.  Senator Baucus has never been a fan of the estate tax, but, as a Democrat, he has been content not to be out front in the repeal effort either.  Now that the election has thrust him into the front as the committee chairman in the next Congress, the lame duck session provides him a unique last chance to “lead from the rear.”   It also makes some sense that Republicans would try to do what they can before they surrender control.  But the showdowns of the summer of 2006 created very intense personal feelings about the issue, especially between the Senate party leaders, Senators Reid and Frist.  The need to set aside or work around those feelings would make any estate tax initiative in what remains of 2006 very ambitious indeed.
Whether estate tax legislation emerges from the 2006 lame duck session, in the 110th Congress of 2007 and 2008, or in the eleventh hour of 2009, we actually do have some clues about what the legislation may contain.  Although the models of this summer – H.R. 5638 and H.R. 5970 – could be abandoned in favor of a totally new start, that rarely happens.  The experience of the summer has taught us the following lessons about the “permanent” estate tax fix, if and when it comes
Regardless of when Congress acts, the effective date will be January 1, 2010.  For years there has been no serious talk of making anything effective sooner.  Thus, current law will continue through 2009, including the $3.5 million estate tax and GST exemption in 2009.
The changes that begin on January 1, 2010, will be phased in over a number of years, in order to contain the cost by pushing the revenue losses out as far as possible in the ten-year “budget window.”  One of the most striking differences between H.R. 5638 and H.R. 5970 was the phase-in of the reduced top rate from 2010 through 2015.
Exemptions and brackets may be indexed for inflation after they are fully phased in.  Another significant difference between H.R. 5638 and H.R. 5970 was the indexing of the top $25 million bracket, not just the $5 million exemption.
The gift tax exemption may be recoupled with the estate tax and GST exemptions, as it was in H.R. 5970, although this is instinctively a feature that could be jettisoned at the last minute.
The credit for state death taxes is not coming back, and retention of the deduction for state death taxes is doubtful.  Restoration of the credit would be too expensive, unless it were redesigned as an addition to the regular federal tax that is forgiven in the case of an offsetting state tax, in which case it would amount to a politically unpalatable tax increase in “coupled” states.
Portability of the exemption/unified credit between spouses seems to have caught on as a concept and, subject to resolution of technical issues, is likely to be a part of any package.  It is particularly compelling as a way to provide relief at the low end and middle of the range of taxable estates.
Since “sweeteners” with no direct connection with the estate tax (extension of expired provisions, increase in the minimum wage, relief for the timber industry, and the like) failed to attract the necessary 60 votes in the Senate, some “sweeteners” more directly related to the estate tax might be considered.  It is a time-honored tactic to combine rate relief with “base-broadeners.”  Drawing from the January 2005 report of the staff of the Joint Committee on Taxation (http://www.house.gov/jct/s-2-05.pdf ), Congress might find rules limiting valuation discounts to be appealing.  Congressional staffs must know that the state of the case law in this area is unsatisfactory (although that is no guarantee that Congress would deal with valuation discounts comprehensively and supersede ad hoc case law where it should).  Legislation limiting Crummey powers and GST-exempt perpetual trusts may not be as compelling.
A stepped-up basis at death (for appreciated assets) will continue to be the general rule.
There will still be suspense over the rate and the exemption.  At one time this summer, Senator Baucus offered to go as low as 35%, although it is not clear how many Democrats would have agreed, while the Republicans led by Senator Jon Kyl (R-AZ) were offering 30%.  But those offers are farther apart than it seems when one considers that the 30% rate would have applied only to taxable estates over $25 million, which might not match the Democrats’ view of “the rich” who should pay the top rate.  If the law indeed remains as it is through 2009 (no matter when Congress acts), then it will be politically difficult to make the “permanent” exemption any lower than $3.5 million, or even to refuse to raise it above $3.5 million.  Thus the initial exemption level of $5 million in both H.R. 5638 and H.R. 5970 might be prophetic, even if the top bracket level of $25 million is lowered to something more modest that would attract sixty Senate votes for a top rate in the low 30s.
In light of the Bush Administration’ public support of H.R. 5638 “as a constructive step toward full repeal of the death tax,” President Bush would be expected to sign a bill crafted along these lines.
Ronald D. Aucutt
© Copyright 2006 by McGuireWoods LLP