Document Type

Article

Publication Title

Real Property, Probate & Trust Journal

Publication Date

Fall 2007

Abstract

The estate tax exemption is not portable. As a result, if one spouse dies without having used the exemption, it disappears, and the surviving spouse cannot use the deceased spouse's exemption. While portability legislation has been proposed, Congress has failed to act thus far. Without portability legislation, estate planning has been difficult for a significant number of married couples who have what some may describe as intermediate-level wealth.

In a series of four private letter rulings, the Internal Revenue Service (Service) has responded sympathetically, creating in effect an administrative solution to the portability problem. The difficulty, however, is that taxpayers are unable to rely on such rulings. In the absence of published guidance, the Service may decide to change its position and then apply a new standard to taxpayers who have utilized the previously approved drafting blueprint without having secured their own ruling. This uncertainty is particularly problematic because, as will be explained, the Service's analysis in these rulings may be incorrect. Indeed, incorporating the analysis in published guidance could undermine the Service's enforcement of the Code in unrelated contexts.

In this Article, we suggest a new approach. Under this approach, taxpayers would be able to navigate the portability problem, and the Service would not weaken unrelated Code provisions. In Parts II and III, we explain the portability problem and the Service's solution to it. In Part IV, we explore the Service's private letter rulings and critique the Service's analysis. In Part V, we present an alternative solution for the portability problem. We suggest that the Service implement our proposed solution administratively and allow taxpayers to employ it safely in the interim. Finally, we present our concluding comments.

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