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    * DECEMBER 11, 2009


  The Tax That Won't Die


    Democrats are afraid to let the estate tax rate hit zero.

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In less than three weeks, the hated death tax is scheduled to 
expire---with the rate falling from 45% to zero for 2010. Then the tax 
will be resurrected in 2011 at a rate of 55%. This bizarre policy dates 
back to 2001 when Democrats wouldn't let President Bush permanently kill 
the death tax, so Republicans bet that if the tax were eliminated for 
one year, it would never come back.


      OpinionJournal Related Stories:

Death Blow <http://online.wsj.com/article/SB123923589432903367.html>
Night of the Living Death Tax 
<http://online.wsj.com/article/SB123846422014872229.html>
Estates of Pain <http://online.wsj.com/article/SB123180759988175649.html>

Well, the moment of truth has arrived, and House Democrats recently 
voted 234-199 to cancel the 2010 repeal and hold the rate permanently at 
45% with a $3.5 million exemption. Senate Majority Leader Harry Reid now 
wants to do the same. But to suspend the Senate's health-care debate and 
turn to the estate tax, he needs 60 votes. All Republicans and some 
Democrats are saying no. Blanche Lincoln of Arkansas and Jon Kyl of 
Arizona will accept no more than a 35% permanent rate with a $5 million 
exemption.

We've long argued 
<http://online.wsj.com/article/SB123846422014872229.html>that the 
economically optimal and fairest death tax rate is zero. The tax is 
applied to income that was already taxed when it was earned, so it is a 
double tax on savings and capital. The correct way to tax a gain in the 
value of assets bequeathed to an heir is with a capital gains tax of 15% 
when the assets are sold, rather than at the time of the funeral of the 
original owner.

Study after study, including one co-authored years ago by White House 
economist Larry Summers, finds that a powerful motivation for 
entrepreneurs to grow their businesses is to pass that legacy to their 
children. The left disparages this as building "family dynasties," but 
most Americans think that it is immoral for the government to confiscate 
the fruits of a life's effort merely because of the fact of death.

Democrats also say their rate would apply only to the richest 2% of 
estates. But a new study by economists Antony Davies and Pavel Yakovel 
of Duquesne University finds that the estate tax "impacts small firms 
disproportionately versus large firms" by encouraging well-capitalized 
companies to gobble up smaller ones at the owner's death. The study 
shows the result is to "promote the concentration of wealth by 
preventing small businesses from being passed on to heirs."

Republicans and willing Democrats shouldn't give up on eliminating the 
death tax. The Kyl-Lincoln amendment to create a permanent 35% rate is 
far better than the confiscatory House bill. But the best strategic 
outcome now is to let the death tax expire in January as scheduled under 
current law, and return to this debate next year when the tax rate is 
zero. Then let liberal Democrats explain to voters on the eve of 
elections that they must restore one of the most despised of all taxes.

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