Tax Reform Paul McDaniel Style: The Repeal of the Grantor Trust Rules

Abstract

In this essay, which is to be published as part of a Festschrift in the memory of Paul McDaniel (forthcoming, Kluwer Law International), we argue that repeal of the grantor trusts rules would represent real tax reform in the Paul McDaniel sense. The grantor trust rules are not tax expenditures; they are structural provisions of the Code that were enacted for vertical equity reasons, to preserve the progressivity of the income tax rate structure. We believe that not only do they no longer serve their original purpose, they actually defeat that purpose today. They are being used by wealthy taxpayers to avoid transfer taxes. This not only creates equity problems within the transfer tax system, it has the ripple effect of reducing progressivity of the overall federal tax system. Repeal of these provisions would represent significant and important tax reform.

Keywords: estate tax, gift tax, grantor trust, FLP, progressivity, progressive taxation