Democrats, Estate Planners up in Arms Over Proposed Estate Tax Changes

Dec. 8, 2010 — -- Frank Borman has flown around the moon. He's run a major airline. But darned if he can figure out his own estate planning.

The retired astronaut recently took time out from shopping at Costco to shake his fist at Washington. "It's very, very frustrating — the uncertainty," he says.

Two years ago the estate tax was 55%, with the first $1 million exempt. Then, in 2010, the rate fell temporarily to zero. But on January 1st, it's slated to become 35% on any amount over $5 million. And just because President Obama and the Republican leadership have arrived at a compromise, of course, doesn't mean it will find the votes to become law.

Indeed, a number of House Democrats told ABC News after their members caucused Tuesday night, that the estate tax provision is the element that is causing the most resistance to the tax cut compromise endorsed by President Obama and Congressional Republicans.

Even if the compromise is passed, the new rules would apply only for two years.

"What's going to happen after that?" asks Borman. "I'm 83. Who knows how long I've got?"

It's the lack of long-term certainty that has testators testy.

A child of the Depression, Borman says he started out with nothing. "Now I'm trying to make certain that as much of the moderate wealth I've accumulated gets passed on to my descendants."

It irks him, he says, that the estate tax has become a political football. "Listening to (Illinois Sen. Richard) Durbin and (House Speaker Nancy) Pelosi makes me sick, and (Montana Sen. Max) Baucus is no better."

Being able to bequeath $5 million tax free is better than $1 million. But the whirligig of changing temporary rates has left him unsure how to proceed. "It's too complicated for a mere mortal," Borman complains.

His estate advisor, Eric Anderson of Anderson & Heard in Billings, Mont., says his other clients are similarly flummoxed: Should they make an asset transfer before the end of the year? What's the applicable gift tax? Can they give assets to grandchildren without a generation-skipping transfer tax occurring at a later date?

"Right now I'm on hold," Anderson says. "Most everyone who practices at my level is on hold. It's very unfortunate. The best we can advise is: We need to wait until December 23rd, or whenever the lame duck Congress is in session." Until then, estate plans must remain flexible.

Though people with estates in excess of $5 million represent just 0.14% of total estates, they account anecdotally for most of the anxiety now circulating. People with less than $5 million, by comparison, seem to have drawn a collective sigh of relief and nodded off.

In New York City, estate planner William Russo of Russo & Burke, says the raising of the tax bar to $5 million may cost him 30% of his business — persons below that threshold who now feel they have little need for advice or for exotic estate planning vehicles.

"Congress has raised the bar high enough," he says, "to eliminate a sizable number of people who'd otherwise come to me. We have plenty of people who fall into the $5million to $6 million category who now say, 'I'm 65 years old and worth $6 million. I'm not sure I need much advice.' Fortunately, I've still got clients in the $20-$50 million range."

The question he's hearing most often from clients, he says is: What will happen if President Obama loses re-election and the Republicans make further gains in Congress? "I'm telling them," says Russo, "It's fair to say the threshold would go higher than $5 million, or that the tax could be eliminated altogether."

That's a prospect that K.C. Walsh, owner and president of Simms Fishing Products in Bozeman, Mont., would be pleased to see. He casts a baleful eye on efforts by Warren Buffett and other prominent rich men to increase the inheritance tax.

"I don't' think it's fair," says Walsh, "for Buffet or Bill Gates to speak on behalf of most in the business community. They've already tucked away millions for their kids, and if they really believed the government is the best place to invest their after-tax dollars, they'd be voluntarily contributing before they die. I personally prefer a tax structure that favors gifting before death."

Ray Keating, economist with the Small Business and Entrepreneurship Council, ascribes little chance to killing off the estate tax permanently. The business community, having killed it once, he says, blundered in not keeping it dead.

"Once it comes back to life," says Keating, "to repeal it again becomes very, very difficult."

ABC News' John Parkinson contributed to this report.