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Unpublished Paper
Retroactivity and the Estate Tax
ExpressO (2010)
  • John R. Cianfrone, Georgetown University
Abstract

The estate tax was sunsetted in the Economic Growth Tax Relief Reconciliation Act (“EGTRRA”) of 2001. As a result, there is no estate tax in 2010. In 2011, the estate tax returns in full force to pre-2001 levels. The potential fiscal loss that would result from the lack of an estate tax in 2010 has led many to believe that Congress will apply some form of the estate tax to 2010 retroactively. This paper examines whether the retroactivity literature should be modified in the context of sunsetted legislation. Generally, retroactive tax legislation must pass two requirements: it must be rationally related to a legitimate legislative purpose and it must limit the retroactivity to a modest period of retroactivity. This paper contends that prior cases upholding retroactivity of tax statutes can be distinguished in the context of sunsetted legislation. Furthermore, this paper concludes that courts should apply a balancing test considering the benefits of retroactivity as inextricably linked to the burdens imposed by retroactivity.

Keywords
  • estate tax,
  • retroactivity,
  • sunsets
Disciplines
Publication Date
September 9, 2010
Citation Information
John R. Cianfrone. "Retroactivity and the Estate Tax" ExpressO (2010)
Available at: http://works.bepress.com/john_cianfrone/1/