In this article, Monte A. Jackel, graduate tax program scholar in residence, provides background and context to the collection of Tax Notes letters to the editor that the article links to, many of which are outside of any paywall.
I have written a number of letters to the editor of Tax Notes over the years. Many of them were reprinted in SSRN fairly recently and are outside of any paywall. (See Jackel, Compendium of Jackel Letters to the Editor of Tax Notes Federal (March 21, 2023). Tax Notes Federal, Volume 178, March 20, 2023). I also have posted those same letters along with more current letters that remain behind the Tax Analysts’ paywall. (See Medium.com Post). Tax Analysts does not hold the copyright to letters to the editor.
A sample of these letters to the editor can be best illustrated by reprinting the last one I did on January 29, 2024. It is below.
“To the Editor:
“I read with interest a recent article in Tax Notes Federal by professors Edward G. Fox and Zachary Liscow, titled “No More Tax-Free Lunch for Billionaires: Closing the Borrowing Loophole.” (See Fox and Liscow, “No More Tax-Free Lunch for Billionaires: Closing the Borrowing Loophole,” Tax Notes Federal, Jan. 22, 2024, p. 647). It is a very good and informative article that recommends what appears to be a proposal with some real-world prospects for adoption in the future.
“There is an issue that I think the authors should have addressed but did not — that is, whether current law would allow taxing liabilities in excess of tax basis, at least at death, without any statutory amendment. That issue was addressed in the article I wrote that was reprinted in SSRN, along with a countervailing argument by Robert Willens. (See Jackel, “Death as a Disposition Redux,” Tax Notes Federal, Oct. 7, 2019, p. 101; Willens, “Partnership Interest Transfer From Decedent Is Not a Disposition,” Tax Notes Federal, Oct. 14, 2019, p. 283; Jackel, “Death Remains a Disposition,” Tax Notes Federal, Oct. 21, 2019, p. 471; Willens, “Dispositions, Plain and Simple,” Tax Notes Federal, Oct. 28, 2019, p. 621; Jackel, “How to Read the Code, Regs, and Rulings: A Response to Willens,” Tax Notes Federal, Nov. 4, 2019, p. 825. See, also, Jackel, SSRN, Death As A Disposition (March 30, 2019).
“I bring this up because there is some implication in the Fox and Liscow article that such a position is not possible under current law because it was not discussed as a possibility. I think this issue was relevant to their premise of adding a proposal on buy, borrow, and die, regardless of the ultimate conclusion they could have come to had they discussed it. (See Louis A. Del Cotto and Kenneth F. Joyce, “Inherited Excess Mortgage Property: Death and the Inherited Tax Shelter,” 34 Tax. L. Rev. 569 (1979)).
“The subject article by the two professors did not discuss the cases in which liabilities exceed tax basis caused by using the debt basis to absorb distributions or to claim depreciation deductions. Buy, borrow, and die and liabilities in excess of basis caused by using the debt basis in the tax system are equivalent in my view.
“What if it turns out that current law allows taxation at death in cases in which liabilities exceed basis? What would that do, if anything, to the subject article’s legislative proposal? Further, why wasn’t the buy, borrow, and die technique picked up as part of the Build Back Better Act discussions in 2021? Too strong a lobby opposing it?”
UPDATES/University of Baltimore School of Law 