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Tax law changes make passing down large fortunes much easier

"It's not so much that they've closed the loopholes as they've busted them wide open. When you don't have a wall, you don't need a loophole to get through it."

The IRS headquarters building in Washington.
The IRS headquarters building in Washington.Read moreBloomberg photo by Andrew Harrer

The teams had to be big, because the work was so complicated. A single, aging rich person would often hire more than a dozen people — accountants, estate administrators, insurance agents, bank attorneys, financial planners, stockbrokers — to make sure they paid as little as possible in taxes when they died.

But David Klasing, an estate tax lawyer in Orange County, Calif., said he's seen a sharp drop in these kinds of cases. The steady erosion of the federal estate tax, shrunk again by the Republican tax law last fall, has dramatically reduced the number of Americans who have to worry about the estate tax — as well as work for those who get paid to worry about it for them, Klasing said.

In 2002, about 100,000 Americans filed estate tax returns to the IRS. In 2018, only 5,000 taxpayers are expected to file these returns, according to projections by the American College of Trust and Estate Counsel, an organization of estate lawyers, based on IRS data.

"You had almost every single tax professional trying to grab as much of that pot as they could," Klasing said. "Now, almost everybody has had to find other work."

A series of changes to federal law over two decades means that Americans need to be richer than ever to be hit by the estate tax, and therefore need fewer gimmicks than ever to avoid it, tax experts and attorneys say. That also means the government is bringing in less money from the rich when they die.

Before last year's GOP tax law, an individual could pass on up to $5.45 million without paying the estate tax, which would then take a cut of up to 40 percent from wealth above that threshold. The law doubled that minimum, exempting all estates worth less than $11.2 million. Couples filing jointly can now pass on more than $22.4 million before the tax sets in.

To conservatives, this was a needed rollback of a "death tax" that takes a second federal bite out of wealth that was typically already taxed at the time it was acquired. To liberals, it will exacerbate inequality by allowing wealthy individuals to pass on vast fortunes to descendants who typically already grew up with the economic advantages of a wealthy childhood.

"Parents who want to pass on as much as $20 million to their children can now do it, legally, with almost no professional advice required," said Edward McCaffery, a professor at the University of Southern California who studies the estate tax. "It's not so much that they've closed the loopholes as they've busted them wide open. When you don't have a wall, you don't need a loophole to get through it."

Charles "Skip" Fox, president of the American College of Trust and Estate Counsel, said he frequently hears of lawyers shifting their focus away from navigating the estate tax, and adds that there has been a downturn in the number of young lawyers going into the estate tax field.

Jennifer Bird-Pollan, who teaches the estate tax to law students at the University of Kentucky, said that nearly a decade ago her classes were packed with dozens of students. Now, only a handful of students every so often may be interested in the subject or pursuing it as a career.

"The very, very wealthy are still hiring estate tax lawyers, but basically people are no longer paying $1,000 an hour for advice about this stuff. They don't need it," Bird-Pollan said.

The federal estate tax was initially enacted in 1916, under President Woodrow Wilson. It applied to families with more than  $50,000, or more than $1 million in today's dollars.

The exemption level remained relatively constant until the 1980s, when it increased to apply only to those with more than $1.2 million, when adjusting for inflation. In 2001, President George W. Bush's tax cuts raised the exemption level for estate taxes from to about $1.5 million in today's dollars. That number then jumped twice under President Barack Obama, reaching about $5 million in 2012.

When the GOP began debating its tax law last year, only about 11,300 estates — or 0.5 percent of those who died — filed estate tax returns. But because many who file the tax are excluded in other ways — by placing the money in trusts, for instance — the number who owed the estate tax was actually much smaller: 5,460 estates, or 0.2 percent of those who died.

The Republican tax law shrinks that number by more than half, with only 1,800 estates expected to be subject to the tax in 2018, according to the Joint Committee on Taxation, Congress's official scorekeeper.

That will mean less money coming into federal coffers. The estate tax accounted for more than 5 percent of the federal budget in the 1940s and more than 1 percent in the 1990s and 2000s. It is projected to account for about 0.6 percent of the federal budget in 2018, according to the Joint Committee on Taxation.

McCaffery, of USC, noted that tax dodging by the wealthy has garnered renewed scrutiny recently, with a New York Times story documenting how President Trump's family used an elaborate raft of schemes to pass on the family's fortunes. An investigation from ProPublica last month also found that audits and criminal referrals by the IRS had plummeted along with the tax collector's budget, raising concerns about tax dodging.

But an equally crucial change may be that the wealthy don't need to use elaborate gimmicks to avoid the tax collectors. "The tax policy of the Trump administration has made it easier to avoid taxes without professional advice," McCaffery said. "[Former Trump economic adviser] Gary Cohn once remarked that 'only morons' pay the estate tax. Now the morons don't even need lawyers."

Some interpreted the trend as a healthy sign. Reducing the amount of time and money that lawyers spend on avoiding taxes will free them to do more productive work, some tax experts said.

"We should try to minimize the extra burdens in the economy," said Kyle Pomerleau, an economist at the Tax Foundation, a right-leaning think tank. "From a policy perspective, it's good news."