Potomac Watch

February 01, 2012 at 07:00 PM
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It is possible that a gridlocked Congress could fail this year to deal with the estate tax and related issues, issues that are the lynchpin of the insurance industry's place in the financial world.

Joe Lieber, a policy analyst at Washington Analysis, says the conventional wisdom is that Congress will deal with the issue in a lame-duck session after the election. His view is echoed by the Association for Advanced Life Underwriters, which anticipates that much of the action around the estate and gift taxes will occur late in the year, most likely after the November elections.

Be that as it may, this is one case where conventional wisdom may not work, especially on an issue with so many moving parts. That is not good news for the markets.

Without legislative action, the estate tax reverts Jan. 1, 2013 to 2001 levels, which entails a $1 million exemption and a 55% rate. Also at stake is unification of the gift and estate taxes, which were included in the late 2010 tax package. 

A third issue is portability. Under the 2010 tax law, a married couple can take full advantage of the couple's combined $7 million estate tax exemption without creating a trust.

At the same time, William Sweetnam, a lawyer at the Groom Law Group in Washington, D.C., who implemented the Bush tax cuts while at the Treasury Department, says the retirement provisions in the Bush tax cut proposals will not be affected. They were made permanent in the 2006 Pension Protection Act, along with increased contribution limits to retirement plans, creating the Roth 401(k) and a catch-up provision on retirement plans for those over 55.

The irony is that the estate tax and retirement policy issues so important to the insurance industry are not what Congress and the Obama administration are fighting about.

Instead, the battle between Democrats and Republicans in Congress is whether the cut in individual tax rates under the Bush tax policy should be ended for the wealthy, while the ones for those earning $125,000 individually and $250,000 a couple should be retained. Another issue is whether the capital gains rate should remain at 15%.

It is on the mind, however, of Christopher Bergin, president and publisher of the non-profit Tax Analysts, which, among other things produces Tax Notes, a highly-regarded online publication that analyzes complex tax issues. Bergin gets questions all the time from people representing high-wealth clients about the fate of the Bush tax cuts.

The way he sees it, though, the Bush tax cuts, along with all other components of tax policy, are just the canary in the coal mine. The  entire tax system (include estate taxes), he says, are a poster child for a broken political process. And at the end of that process are tax practitioners, including those that advise small businesses, who are stuck with advising clients on what amounts to an unfair, immensely complex and economically inefficient system.

Given the lack of incentive for Congress to deal promptly with the expiring tax cuts, the alternative minimum tax and the tax extenders, Bergin says, you can now add a fourth problem with our current tax-writing policy — it is nothing more than a series of temporary fixes that cannot be planned for.

This puts people like the readers of National Underwriter in the center of the storm, a storm that is nearly impossible for any one party to understand fully.

In the meantime, it is highly problematic that Congress will act on tax policy in a lame-duck session after the election. If Republicans take control of Congress and the White House, they would have little incentive to sustain the Bush tax cuts.

Look at it this way: if the Republicans sweep the White House and Congress, the Bush tax cuts become moot. But if Obama wins the election, then the Republicans are going to have to compromise on tax policy. The bottom line is that Obama will not sign something he does not agree to. And if there is no legislation on the matter at all, then all of those Bush tax cuts (except for the ones pertaining to retirement) go away. And nobody really wants that.

In the end, what we are left with is a hot potato of an issue that nobody seems to want to take ownership of, let alone show some real leadership with. With that kind of attitude, the real losers are the insurers.

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