As someone who works on issues of wealth and taxation, I was excited about the New York Times special investigation into the Trump family’s wealth and potential tax avoidance. Not for obvious political reasons, but because I knew there was a brief moment in time to talk about some of the matters I care about with my family and friends. Yes, the tax schemes discussed in the story seemed extreme, but what I really wanted everyone to know was how common they are.
The Kavanaugh confirmation was on everyone’s mind, so I could not hope for their undivided attention. The best thing I could do is to encourage my loved ones to read the article, but it is LONG and people are busy. I think the more important service I can offer is to answer their burning questions:
Are these tax schemes legal?
I am not a criminal attorney but there are parts of the report that raise alarms for any legal expert. New York authorities have signaled their willingness to investigate, but these cases are hard to prove. There may also be statute of limitation issues as well. Stay tuned but do not hold your breath that anything will come of this.
The harder truth to swallow may be that the majority of this if perfectly legal. Playing games with value is old school. Valuation is a negotiation or compromise and there’s a vast range. As in all negotiations it is advantageous to set the initial number and the taxpayer always does. For example, let’s assume that your property is worth $10 million. You get a qualified but friendly appraiser who makes favorable assumptions and you submit a value of $1 million. There’s a chance the IRS may never audit you and even if they do you’ll reach an agreement at about $3-5 million. The gross undervaluation was still worth the trouble.
A part of the Times investigation focuses on an advanced estate planning technique, the GRAT. Yet Congress explicitly allowed for this technique in 1990. In the late 1990s when Wal-Mart heirs used a more sophisticated, tax-saving version of the GRAT, the IRS challenged, but lost. None of this is a surprise to Congress.
How did authorities or regulators miss this?
There’s a perfect storm of reasons why wealthy individuals are able to avoid taxation and detection. Long story short: (a) the wealthy have endless resources to make things that seem questionable appear ordinary, (b) the IRS and local tax authorities do not have the resources or determination to match, (c) authorities at the state and federal level do not coordinate with each other and the IRS does not even coordinate with itself, (d) there is no third-party verification at this level. When the wealthy make money there’s no W2 that their employer sends to the IRS to keep them honest, and (e) the estate tax is a weak law with many loopholes.
Are all wealthy people doing this?
Yes and no. Wealthy individuals like Warren Buffet and Bill Gates will also avoid the estate tax in a perfectly ordinary way: giving their money away to charity. Any wealthy person can avail themselves of this opportunity.
On the other hand, estate planning schemes are well known, and a substantial number of wealthy families utilize them. This creates a two-tiered system where the super-wealthy and those who are more sophisticated engage in the most aggressive planning. The less sophisticated or unaware then tend to pay a much higher effective tax rate.
Will electing Democrats in November make a difference?
Not necessarily. These schemes and loopholes have been around for decades and have been well known to experts and legislators. This covers time periods where both parties were in power. Lest we forget, there are wealthy donors of all political stripes.
Are there other ways to combat wealth inequality?
Fortunately, tax academics have been thinking about this for a long time. Here are a couple of their ideas: (a) strengthen the estate tax and close the loopholes, (b) get rid of the estate tax and amend the income tax to end loopholes that allow a family to inherit appreciated property tax-free, (c) move to a different form of taxation like an annual wealth tax that more directly tackles the problem, (d) focus on broader taxation like a value-added tax and focus more efforts combating lack of wealth at the bottom, (e) focus more efforts and resources on shutting down tax avoidance by the wealthy.
Goldburn P. Maynard Jr. is the assistant professor of law at the University of Louisville Brandeis School of Law.