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Preliminary Insight on Biden Administration Proposal to Tax Gains Upon Death

On April 28, 2021, President Biden announced the American Families Plan. The Plan proposes various programs and initiatives; the Plan also includes proposals on how to pay for the programs and initiatives. One of the proposals involves treating death as a realization event for capital gains purposes. For ease of reference, this proposal will be referred to as the “Biden capital gains proposal” in this post.

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Proposed Bill Would Treat Gifts and Testamentary Transfers as Constructive Sales for Capital Gains Purposes

On March 29, 2021, Senator Chris Van Hollen (D-MD) released a discussion draft of the Sensible Taxation and Equity Promotion (“STEP”) Act.  According to press reports, the proposal is supported by fellow Democratic Senators Elizabeth Warren (MA), Sheldon Whitehouse (RI), Bernie Sanders (VT), and Cory Booker (NJ).

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Federal Estate and Gift Tax Changes May Be on the Horizon

Senator Bernie Sanders, Chair of the Senate Finance Committee, and Senator Sheldon Whitehouse, Democratic Senator from Rhode Island, have introduced legislation that affects the federal estate and gift tax. 

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Possible Changes to New York State Estate Tax

The New York State Senate and Assembly have recently released proposals to change the New York State estate tax.  The proposals are part of the so-called “Budget bills” promulgated by each group.  It is important to emphasize that Governor Cuomo has not proposed an increase to New York State estate tax in his proposed Budget bill.  Thus, the Senate and Assembly proposals should be regarded as proposals, and not as faits accomplis.

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Prepare for Potential 2021 Tax Law Changes Now

As a consequence of the results in the U.S. Senate runoff elections in Georgia, the Democrats are, at least in theory, in a position to pass legislation via the “reconciliation process.”  Under reconciliation, 51 votes are all that is needed to pass tax legislation, such as Economic Growth and Tax Reconciliation Relief of 2001 and the Tax Cuts and Jobs Act of 2017.

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This website presents only general information not intended as legal advice. Although we encourage calls, letters and emails from prospective clients, please keep in mind that merely contacting Harter Secrest & Emery LLP (HSE) does not establish an attorney-client relationship between us. Confidential information should not be sent to HSE until you have been notified in writing by HSE that a formal attorney-client relationship has been established. Information sent to us before then may not be treated as confidential by HSE or the court.

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