Publicity Rights and the Estate Tax

The estate tax treatment of publicity rights factors into the debate regarding whether such rights should be transferrable at death. Some point to the estate tax as a reason for making publicity rights non-transferrable. For if they are transferrable, estate-tax inclusion could result. And, the argument goes, the estate or the beneficiaries could well be coerced into commercializing the rights in order to raise the money to pay the tax. Making them nontransferable would eliminate this possibility. This Article considers some of the connections between the federal estate tax and the state law treatment of publicity rights. It concludes with a suggestion about the tax treatment of publicity rights at a more general level. Part I explores the estate tax treatment of publicity rights and, in particular, the provision the celebrity Robin Williams used in his will in order to address his apparent concern about forced commercialization. While the provision appears to be based on dicta in the Ninth Circuit, its effectiveness is questionable. This Part concludes with a recommendation that legislation at the state level permit celebrities to extinguish during life their post-death publicity rights. With such legislation in place, the concern about forced commercialization would be eliminated—thus permitting the state law question of transferability to be resolved solely on the basis of non-tax considerations. Part II considers the characterization of post-death publicity rights as an independent right under state legislation and the estate tax implications of such a characterization. An analogy is made to the estate-tax treatment of wrongful death proceeds, which are typically characterized as independent of the victim’s pre-death claim and are therefore not included in the gross estate. Part III examines two ancillary estate-tax issues that can arise where state law authorizes transferability: first, the impact of retroactive state legislation making publicity rights transferrable in the case of a decedent dying prior to enactment; and, second, the impact of a movement away from traditional choice-of-law rules in this context. Part IV concludes with a broader suggestion: that the estate tax be made entirely inapplicable to publicity rights without regard to the state law question of transferability. Instead, the proceeds from the exploitation of these rights would be fully taxable as income to the beneficiaries when received, obviating the need to engage in a difficult, potentially protracted inquiry into the valuation of the rights at the time of death

Gift Tax: Valuation Difficulties and Gift Completion

Two formats are available for taxing these difficult-to-value transfers. The first alternative is to tax the transfer at the time the transferor severs his control, the point at which transfers are generally subject to taxation. Using this format, the determination of value is necessarily speculative. That is, the process requires taxpayers, the Internal Revenue Service, and the courts to hazard the best guess that the circumstances will permit. The second alternative is to defer the imposition of the transfer tax until the difficult-to-value aspect of the transfer becomes susceptible to more accurate valuation. In the estate tax context, the former alternative has generally been applied because, unlike the latter, it makes it possible to compute the estate tax within a reasonable time after death, facilitating prompt estate administration. In the gift tax setting, however, a valuation-difficulty rule has evolved, which in some situations defers the computation and payment of the tax where the gift is difficult to value. Since this deferral approach allows the tax computation to be made when valuation is no longer difficult, its application increases valuation accuracy. This article will argue that this increase in accuracy warrants a more expansive application of the valuation-difficulty rule than has thus far been the case

Kaestner Fails: The Way Forward

This past term, the Supreme Court applied the Due Process Clause to prevent the states from closing down a tax strategy that employs out-of-state trusts. Many had hoped that the case would serve as a vehicle for the Court to overrule taxpayer-friendly precedents that make the strategy possible. But it failed. The question that emerges is whether the decision leaves the states with a path to address the strategy and thereby prevent it from being used to exacerbate issues of inequality. After examining the decision, this Article considers the options available to the states and then suggests a way forward

Re-Examining the Sham Doctrine: When Should an Overpayment Be Reflected in Basis?

Why would a prudent taxpayer make an acquisition at a price in excess of fair market value? This inquiry is critical to the determination of the taxpayer\u27s basis in the asset acquired. Burdensome tax brackets, coupled with the time-value of money, particularly crucial during periods of high interest rates, have induced taxpayers to seek tax shelters that provide deferral of their tax obligations. One type of scheme that offers benefits similar to those inherent in deferral is the acquisition of assets at inflated prices. The tax savings attributable to the overpayment - resulting from depreciation deductions and, where applicable, the investment tax credit - together with the income generated by the investment of the tax savings, can exceed the amount of the overpayment. It will be argued that where a taxpayer intentionally structures an overpayment for the sole purpose of securing tax savings and the related investment income, the overpayment should be treated as a sham and denied tax effect

Asset Preservation and the Evolving Role of Trusts in the Twenty-First Century

For the vast majority of the twentieth century, trusts served two pivotal roles. The first was as a vehicle to help mitigate federal and state estate tax burdens, the rates of which could be quite significant. The second was to assist in asset preservation, safeguarding trust beneficiaries from their profligacy, former spouses, creditors, and the like. At the start of the twenty-first century, Congress passed legislation that curtailed the impact of the federal estate tax, and many state legislatures have followed suit, either eliminating or significantly reducing their estate taxes. As a result of these legislative changes, trust instrument reliance to mitigate transfer tax burdens is no longer a commonplace objective. Instead, the role of trusts has shifted entirely toward asset preservation, buoyed by state legislative reforms that facilitate fulfillment of this role. However, state legislative reform measures that are designed to strengthen the asset preservation element of trusts are replete with problems. In particular, they drain government coffers as they pit states against one another and the federal government; furthermore, insofar as they promote an aristocracy-like environment (where wealth cascades down from one generation to the next), they thwart economic mobility, an essential component of our nation’s financial fabric. Using three specific examples of states’ aggressive efforts to attract trust formation within their borders, this analysis demonstrates the shortcomings associated with the evolving role of trusts in asset preservation and its corrosive effects. Because too much is at stake for this role to be left unchecked, this analysis recommends several viable reforms

Asset Preservation and the Evolving Role of Trusts in the Twenty-First Century

For the vast majority of the twentieth century, trusts served two pivotal roles. The first was as a vehicle to help mitigate federal and state estate tax burdens, the rates of which could be quite significant. The second was to assist in asset preservation, safeguarding trust beneficiaries from their profligacy, former spouses, creditors, and the like. At the start of the twenty-first century, Congress passed legislation that curtailed the impact of the federal estate tax, and many state legislatures have followed suit, either eliminating or significantly reducing their estate taxes. As a result of these legislative changes, trust instrument reliance to mitigate transfer tax burdens is no longer a commonplace objective. Instead, the role of trusts has shifted entirely toward asset preservation, buoyed by state legislative reforms that facilitate fulfillment of this role. However, state legislative reform measures that are designed to strengthen the asset preservation element of trusts are replete with problems. In particular, they drain government coffers as they pit states against one another and the federal government; furthermore, insofar as they promote an aristocracy-like environment (where wealth cascades down from one generation to the next), they thwart economic mobility, an essential component of our nation’s financial fabric. Using three specific examples of states’ aggressive efforts to attract trust formation within their borders, this analysis demonstrates the shortcomings associated with the evolving role of trusts in asset preservation and its corrosive effects. Because too much is at stake for this role to be left unchecked, this analysis recommends several viable reforms