Estate Taxes and Family Businesses: Economic Issues

Publication Date: January 2007

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Banking and finance

Type:

Abstract:

The 2001 tax revision began a phaseout of the estate tax, by increasing exemptions and lowering rates. The estate tax is scheduled to be repealed in 2010 and a provision to tax appreciation on inherited assets (in excess of a limit) will be substituted. The 2001 tax provisions sunset, however, so that absent a change making them permanent the estate tax will revert, in 2011, to prior, pre-2001, law. Proposals to make the repeal permanent, or to significantly increase the exemptions and lower the rate, are under consideration.

Currently, discussions of the estate tax are focusing particular attention on the effects on family businesses, including farms, and perception that the estate tax unfairly burdens family businesses because much of the estate value is held in illiquid assets (e.g., land, buildings, and equipment). The estate tax may even force the liquidation of family businesses. A special family business deduction, the Qualified Family Owned Business Interest Exemption (QFOBI) was enacted in 1997. Presently, because of higher exemptions allowed and a previous cap on the combined regular and small business exemption, this provision is no longer relevant. If, however, the estate tax repeal sunsets, QFOBI will again be germane. In the 109th Congress, H.R. 8, which would make the estate tax repeal permanent, was passed by the House, but not by the Senate. There were also proposals to allow an expanded business exemption (H.R. 1612 and S. 928) as well as proposals to allow a higher exemption (H.R. 1577 and H.R. 1574) or both a higher exemption and lower rate (H.R. 1560, H.R. 1568, H.R. 1614, and H.R. 5638). H.R. 5970 -- a proposal for a credit eventually equivalent to a $5 million exemption ($10 million for a married couple) with tax rates initially set at the capital gains tax rate (currently 15%, and scheduled to rise to 20%) for estates up to $25 million, and at twice the gains rate for those over $25 million -- was passed by the House on July 29, 2006.

Evidence suggests, however, that only a small fraction of estates with small or family business interests have paid the estate tax (about 3.5% for businesses in general, and 5% for farmers, compared to 2% for all estates). Recent estimates suggest that only a tiny fraction of family-owned businesses (less than ½ of 1%) are subject to the estate tax but do not have readily available resources to pay the tax. Thus, while the estate tax may be a burden on those families, the problem is confined to a small group.

If the estate tax is repealed, QFOBI will allow an exemption for some or all of business assets in about a third to a half of estates with more than half their assets in these businesses, but the value of the exemption will be reduced because the general exemption has increased. If the estate tax repeal is made permanent, liquidity will cease being a problem, although family businesses may be more likely than other estates to be affected by the capital gains provisions. Exposure to the estate tax, if it is reinstated, would be significantly decreased by increases in either the family business or general exemptions. The report also discusses an uncapped exemption and an uncapped exemption targeted at liquidity issues. This report will be updated as legislative events warrant.