Civil War II : The Constitutionality of California’s Travel Bans



California, along with a few other states leaning toward the liberal side of America’s political system, enacted a series of laws banning state-funded or state-sponsored travel to other states identifying more as conservative. While other states enacted these mandates through gubernatorial executive orders, California legislated its ban. Multiple states have attempted Supreme Court challenges to California’s law under the Court’s Article III original jurisdiction. Yet, the Court twice declined the opportunity to hear the issue. Justice Thomas and Justice Alito wrote extensive dissents against the majority’s rejection, arguing that the Court must exercise its jurisdiction in controversies between the states. This Article analyzes the Court’s history of original jurisdiction cases and seeks to answer why the Court likely did not address the constitutionality of California’s laws. Further, this Article analyzes whether California’s statute is unconstitutional under Article I of the U.S. Constitution and the Dormant Commerce Clause. Finally, this Article concludes with an analysis of possible likely outcomes of California’s laws and other states’ reactions.


“Two households, both alike in dignity . . . from ancient grudge break to new mutiny.” [1] Much like the Houses of Montague and Capulet, the individual states within the United States often find themselves diametrically opposed to each other’s political views. While America’s political divide has undeniably grown deeper over the years, it seems to be widening at a staggering pace recently. Of late, this higher level of political grudge appears in the form of California’s legislation banning state-funded or state-sponsored travel to twenty-two sister states. [2] At the forefront of this political showdown is Texas. California and Texas are not only America’s two most populous states, but they are also economic and political giants sitting on fundamentally opposite ends of the political spectrum. Sharing a history of fiery disagreements and political clashes, the two states are the exemplification of a country so dangerously divided it is almost reminiscent of a Shakespeare play. The scene opens with California, a Democrat exemplar, escalating historically political disagreements to the economic stage by prohibiting state-funded or state-sponsored travel to any state failing to meet California’s civil rights standards regarding sexual orientation, gender identity, or gender expression. [3] Unsurprisingly, the Republican stronghold of Texas is cast as the villain by California and thus made the top of California’s list of travel ban states. [4] The metaphorical stage is now set. If California were a nation, it would be one of many nations banning state-funded travel to countries with whom they have political hostilities. [5] The United States has similar bans for Venezuela, Cuba, and North Korea, just to name a few. [6] But California is not an independent nation. It is only a state, albeit an influential one, and its legislative lashings are setting an exceedingly dangerous precedent for the nation as a whole. The image of an America in which each state freely imposes state-funded travel bans to other states with whom they have political disagreements is a somber picture to imagine, and one that questions the textual meaning and purpose of a United States. With the days of both Texas’s and California’s independent nationhood long past, their legislative and ideological clash must be confined to the limits of the U.S. Constitution and federal law. However, when Texas challenged California’s bans in the U.S. Supreme Court, the motion for leave to file a bill of complaint was denied, despite the Court’s majority consisting of Republican justices. [7] This Article examines Supreme Court precedent in deciding cases under its original and exclusive jurisdiction of controversies between two or more states. [8] Additionally, this Article analyzes the possibility of the Court hearing such controversies under the Dormant Commerce Clause instead. [9] Ultimately, the question is not whether the Supreme Court can resolve this inter-state brawl, but whether it will choose to do so or instead let the people seek out their own resolutions. As of August 2022, California’s travel ban prohibits state-sponsored or state-funded travel to twenty-two states, effectively targeting roughly 44% of the nation. [10] Although the Texas challenge is the most recent, Arizona’s motion for leave to file a bill of complaint on this same issue was denied by the Supreme Court in February of 2020. [11] Justice Thomas and Justice Alito disagreed with the interpretations of the majority, which reads Article III’s “[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction” to mean that the Court may have original jurisdiction. [12] Justice Thomas explained that if the Court does not exercise jurisdiction over a controversy between two states, then the complaining state has no judicial forum in which to seek relief. [13] Yet, in five years of these issues being brought to the Court, Justice Thomas and Justice Alito have failed to persuade other Supreme Court Justices to hear these inter-state issues. Justice Thomas previously held a different opinion, but now “has since come to question” that opinion and believes the Court should accept Arizona’s and Texas’s invitation to reconsider its discretionary approach. [14] This Article will review the Court’s discretionary approaches, comparing Texas and Arizona’s precedent. If Article III is not enough for the Court to exercise jurisdiction, this Article explores the alternative of raising the issue through Article I’s Dormant Commerce Clause instead. The U.S. Constitution grants Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” [15] Although the Commerce Clause only addresses the power given to Congress, the Supreme Court has long recognized that the Commerce Clause also limits states from enacting statutes affecting interstate commerce. [16] This limitation on state power is known as the Dormant Commerce Clause. The Clause’s purpose is to prevent a state from “retreating into economic isolation or jeopardizing the welfare of the Nation as a whole” by burdening the flow of commerce across state borders. [17] If any of the affected states were to bring challenges to California’s bans through the Dormant Commerce Clause, it could give the Court a window to hear cases in an area with which the Court has a history of frequent involvement. As author Levon Kalanjian warns, these unanswered issues may escalate to an economic civil war between the states. [18] However, it is likely that citizens and U.S. businesses in particular will be at the forefront of either convincing the Court to hear these issues or resolving them through alternative means, like legislation. This Article explores those possibilities as well.

I. Article III’s Discretionary Precedent

The Supreme Court’s discretion to hear cases is wide. Under 28 U.S.C.A. § 1254, the Supreme Court may review cases from a court of appeals by either granting a writ of certiorari to review a party’s petition in any civil or criminal case, or by certifying questions of law from the courts of appeals. [19] Not every petition is granted a writ of certiorari, and the Supreme Court can deny certifications for questions of law. Similarly, 28 U.S.C.A. § 1257 gives the Court the ability to review decisions from the highest court of any state. [20] Article III of the U.S. Constitution states that, “[i]n all Cases . . . in which a State shall be [a] Party, the Supreme Court shall have original Jurisdiction.” [21] The Court also has exclusive power to hear disputes between two states, which leaves no other court in the country to opine on cases brought between the states. [22] There are also protections in place against the Court exercising jurisdiction to hear a case when it should not. The Supreme Court is the only court in the country which can hear cases between California and the states on California’s travel ban list. Thus, the question becomes whether the Court has mandatory jurisdiction over cases when the Supreme Court has declined to do so. In America’s relatively brief existence, the Court has addressed this issue many times. However, as the Arizona and Texas cases demonstrate, there is still disagreement on the Court’s duty in these kinds of cases.

A. Cohens v. Virginia

In Cohens v. Virginia, [23] the parties, one of which was the State of Virginia, sought to have their claims heard by the Supreme Court, so they asked the Court to exercise its original jurisdiction instead of its appellate jurisdiction. The case placed a question of law before the Supreme Court, [24] arriving at the Supreme Court through a writ of error in which one party accused the lower courts of misinterpreting the U.S. Constitution. It was argued that in circumstances in which a case can be heard by the Court through either of the two methods, then the Court must exercise original jurisdiction to hear the case. [25] The Court extensively analyzed when it should or must hear a case brought under the Court’s original jurisdiction. Ultimately, the Court declined to exercise original jurisdiction. [26] Chief Justice Marshall, writing for the Court, stated, “It is most true that this Court will not take jurisdiction if it should not: but equally true, that it must take jurisdiction if it should.” [27] He opined that, unlike the legislature, the judiciary cannot, “avoid a measure because it approaches the confines of the Constitution.” [28] Chief Justice Marshall further stated that the Court “[w]ith whatever doubts, with whatever difficulties, a case may be attended” must still hear and decide the case. [29] He was adamant that the Court cannot avoid questions out of a simple preference not to address them. [30] However, Article III does not extend the judicial power to every violation of the Constitution which may possibly take place, only to a case in law or equity. [31] So with this language, it is puzzling when the Supreme Court turns away cases in law or equity in which it has original jurisdiction, as it did with Texas and Arizona. While quarrels between states are to be expected, these disputes often come at a cost to the American people. In Cohens, Chief Justice Marshall wrote that American people “believe[] a close and firm Union to be essential to their liberty and to their happiness” and are “taught by experience, that this Union cannot exist without a government for the whole.” [32] He opined that Americans are also taught that “this government [is] a mere shadow, that must disappoint all of their hopes, unless invested with large proportions of that sovereignty which belongs to independent States.” [33] In Cohens, the Court acknowledged that states have a degree of independence to enact their own laws, while still operating within the constitutional constraints designed to protect against abuse of power by any state. [34] The California travel ban may potentially be such an abuse of power. In many other instances, the Court had little restraint in deciding when states have stepped over the line, but the Court’s decision not to do so with the travel ban issue is noteworthy and yet not completely unfounded. However, Cohens primarily addressed the Court’s appellate jurisdiction. Other precedent is more enlightening on the Court’s decision not to take on the assignment to rule in the Texas and Arizona cases.

B. Louisiana v. Texas

Nearly a century after Cohens, the Supreme Court reluctantly decided to hear Louisiana v. Texas. The Governor of Louisiana asked the Court for leave to file a bill of complaint against the State of Texas, its Governor, and its Health Officer. [35] Louisiana was permitted to file the bill of complaint because the Court decided that it was the best course of action for the case. [36] Demurrer to the bill was sustained, and then subsequently dismissed. [37] The case concerned two lines of railroad, the Southern Pacific and the Texas & Pacific. [38] The railroads ran directly from New Orleans through Louisiana and Texas, and into other states and territories of the United States and Mexico. [39] The Texas Legislature enacted laws granting the Texas Governor and Health Officer extensive power “over the establishment and maintenance of quarantines against infectious or contagious diseases, with authority to make rules . . . for the detention of vessels, . . . and property coming into the state from places infected, or deemed to be infected, with such diseases.” [40] At the time, Texas was increasingly concerned about viruses, like yellow fever, spreading through the import of various goods from port cities, including New Orleans. [41] Yellow fever first appeared in the United States in the 1700s and rampaged through cities for nearly two hundred years, killing hundreds and sometimes thousands of people in a single summer. [42] The virus was especially devastating for Eastern seaports and Gulf Coast cities. [43] The cause of the spread was unknown and occurred in epidemic proportions. In August of 1899, “a case of yellow fever was officially declared to exist in the city of New Orleans.” [44] In response, Texas immediately placed an embargo on all interstate commerce between the City of New Orleans and Texas, consequently prohibiting “all common carriers entering the state of Texas from bringing into the state any freight or passengers, or even the mails of the United States coming from the City of New Orleans.” [45] Louisiana accused Texas of trying to destroy commerce from New Orleans, taking “away the trade of the merchants and business men of the city,” and transferring that trade to “rival business cities in the state of Texas.” [46] The question before the Court was whether the Texas law granting the Governor such extensive power over commerce constituted a controversy between the states. [47] The Court decided that a mere “maladministration” of the laws of a state, to the injury of the citizens of another state, does not constitute a controversy between states, and is therefore not justiciable in the Supreme Court. [48] Primarily, the Court looked to Article III of the U.S. Constitution to adjudicate the Louisiana case. Clauses 1 and 2 of Article II read as follows: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states; and between a state, or the citizens thereof, and foreign states, citizens, or subjects. In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. [49] The Court interpreted the words “controversies between two or more states” to mean that “the Framers of the Constitution intended that they should include something more than controversies over territory or jurisdiction.” [50] In the Court’s words, Louisiana’s complaint did not plead enough facts to show that Texas had “authorized or confirmed the alleged action of her health officer as to make it her own, or from which it necessarily follows that the two states are in controversy within the meaning of the Constitution.” [51] In his concurrence, Justice Harlan noted that the Court has often declared that “the states have the power to protect the health of their people” through regulations. [52] Since Louisiana’s complaint was brought against not just Texas, but also the Health Officer and the Governor, the Supreme Court could not deem that this was a suit between two states, and dismissed Louisiana’s bill. [53] With this case, the Court began unveiling a pattern of preference in avoiding exercising its jurisdiction on issues between two states.

C. Massachusetts v. Missouri

Several decades later, the Supreme Court opined on an estate and tax related controversy between two states in Massachusetts v. Missouri. [54] Massachusetts filed a motion for leave to file the proposed bill of complaint against Missouri asking the Court for an adjudication concerning the right of the respective states to impose inheritance taxes on transfers of the same property. [55] The Supreme Court, predictably, denied the Massachusetts motion. [56] Unlike the Texas and Arizona cases, the Court provided insight into its decision in Massachusetts. The Court found that Massachusetts’s proposed bill of complaint did not present a justiciable controversy between the states: “To constitute such a controversy, it must appear that the complaining state suffered a wrong through the action of the other state, furnishing ground for judicial redress.” [57] Otherwise, it appear that the state is asserting a right against the other state which is susceptible to judicial enforcement. [58] Massachusetts’s prayer for relief was for the Supreme Court to determine which state had jurisdiction to impose inheritance taxes on transfers of property covered by trusts which were created by deceased residents of Massachusetts, including securities held by trustees in Missouri. [59] The Court held that Missouri did not harm Massachusetts by claiming a right to recover taxes from the trustees or in proceedings for collection of taxes. [60] When both states have individual claims, one of them exercising their rights should not impair the rights of the other. [61] The Court decided to deny the bill of the proposed complaint, reasoning that the claims could be litigated in state courts in either Massachusetts or Missouri and thus the Supreme Court did not need to exercise its original jurisdiction over the matter. [62] Article III Section 2 grants the Supreme Court original jurisdiction in cases where a “state is a party, . . . [meaning] those cases in which, . . . jurisdiction might be exercised in consequence of the character of the party.” [63] Here, the Supreme Court did not think that Missouri would close its courts to a civil action brought by Massachusetts to recover the alleged tax due from the trustees. [64] However, the Attorney General of Missouri argued against Massachusetts filing such an action in Missouri state courts or a Missouri federal district, saying that such a suit would present a justiciable case or controversy, therefore requiring adjudication from the Supreme Court instead. [65] The Court reasoned that any objections that the courts in one state will not entertain suit to recover taxes due to another state’s claim goes to the merits of the case, not the jurisdiction, and therefore raises a question district courts are competent to decide. [66] As a result, the Court avoided yet another instance in which it was asked to settle a question of law between two states.

D. Ohio v. Wyandotte Chemicals Corp.

The 1970s saw the continuation of many liberal movements that started in the 1960s. [67] For example, when Americans voiced a growing concern about the environment, the country legislated the National Environmental Policy Act, the Clean Air Act, and the Clean Water Act all within one decade. [68] With this national trend in the background, the State of Ohio moved for leave to file a bill of complaint seeking to invoke the Supreme Court’s original jurisdiction against citizens of other states regarding the pollution of Lake Erie from mercury dumping. [69] The Court denied the motion. [70] Although the Supreme Court has original and exclusive jurisdiction over suits between states, for suits between a state and citizens of another state, the Court is granted original jurisdiction but not exclusivity. [71] The Court stated that while Ohio’s complaint does state a cause of action falling within the compass of original jurisdiction, the Court nevertheless declined to exercise that jurisdiction. [72] The Court explained that it had jurisdiction and the complaint on its face revealed the existence of a genuine case or controversy between one state and citizens of another. [73] Previously, the Court declined to review similar cases if a party sought to embroil the tribunal in political questions. [74] Although the question in Wyandotte did not involve the political question doctrine and the Court could hear the case, the Court looked to policy rationales to deny Ohio’s motion. [75] The Court recognized that it is a “time-honored maxim of the Anglo-American common-law tradition that a court possessed of jurisdiction generally must exercise it.” [76] Yet, the Court was convinced of changes in the American legal system and American society, which make it untenable, as a practical matter, for the Court to adjudicate all or most legal disputes arising “between one State and a citizen or citizens of another even though the dispute may be one over which the Court does have original jurisdiction.” [77] Primarily, the Court noted that its responsibilities in the American legal system have evolved to bring “matters to a point where much would be sacrificed, and little gained by [the Court] exercising original jurisdiction over issues bottomed on local law” and not federal law. [78] The Court based its reasoning on an analysis of the Court’s structure and general functions. The Court explained that it is “structured to perform as an appellate tribunal” but is ill-equipped for fact-finding in original jurisdiction cases. [79] While it is true that the Court most commonly exercises its appellate powers, it is clear the Court is not structured for information-gathering in original jurisdiction cases. It has declined multiple opportunities to exercise original jurisdiction in cases like Wyandotte. The Court further clarified that its denial to hear the case was backed by more than just a lack of structural capability. Its decision was compounded by the fact that, for every case in which it might be called upon to determine the facts and apply unfamiliar legal norms, it would unavoidably reduce the attention the Court could give to matters of federal law and national import. [80] Stated in simpler words: the Court did not want to spend its time and judicial resources on such matters. Because the Court “found even the simplest sort of interstate pollution case an extremely awkward vehicle to manage” and the case was extraordinarily complex, the Court decided not to burden itself with the fact-finding required to adjudicate Ohio’s claims. [81] The Court’s policy analysis of the ever-changing American judicial system and its preference for appellate jurisdiction foreshadowed its decision to decline Arizona’s and Texas’s bills decades later.

E. Arizona v. New Mexico

Just a few years later, the Supreme Court once again denied a state’s motion for leave to file a bill of complaint, this time against another state. The Court denied Arizona’s request to invoke the Supreme Court’s original jurisdiction when Arizona sought declaratory judgement against New Mexico’s electrical energy tax. [82] Arizona argued that the tax was unconstitutionally discriminatory and a burden upon interstate commerce, that the tax denied Arizona due process and equal protection under the law in violation of the Fourteenth Amendment, and that the tax abridged the privileges and immunities secured by the U.S. Constitution. [83] Regardless, the Supreme Court thought that a state court would be a more appropriate forum. [84] The State of Arizona (as a consumer) and its citizens (as consumers) regularly purchased electrical energy generated by three Arizona utilities operating generating facilities within New Mexico. [85] In 1975, New Mexico passed the Electrical Energy Tax Act, which imposed a tax on the generation of electricity. [86] The Supreme Court explained: “ The tax is nondiscriminatory on its face: it taxes all generation regardless of what is done with the electricity after its production. However, the 1975 Act provides a credit against gross receipts tax liability in the amount of the electrical energy tax paid for electricity consumed in New Mexico.” [87] Other states consuming energy produced within New Mexico, including Arizona, did not receive such credit. [88] Arizona argued that (1) the economic incidence and burden of the electrical energy tax fell upon the state and its citizens and that (2) the tax discriminated, as intended, against the citizens of Arizona. [89] The three Arizona utilities involved chose not to pay the new tax and instead sought a declaratory judgement in an action filed in the District Court for Santa Fe County. [90] That action raised the same constitutional concerns as the State of Arizona had in the instant case. [91] In deciding whether to grant Arizona’s motion, the Supreme Court noted that its original jurisdiction should be invoked sparingly. [92] The Court considered the seriousness and dignity of the claim and whether there was another forum available with jurisdiction over the named parties in which the issues could be litigated and in which appropriate relief could be had. [93] In this case, the Court was persuaded to deny Arizona’s motion because of the pending action before the New Mexico Supreme Court, which was an appropriate forum for the dispute. [94] Further, the U.S. Supreme Court found it wise to wait to hear the case on appeal if the state court held the energy tax unconstitutional. If the tax was held unconstitutional, then Arizona would be vindicated, and if it was held constitutional, the issues could be appealed to the Court through the direct appeal process. [95] Accordingly, the Court chose not to exercise original jurisdiction because it felt the state courts were able to adjudicate the issues and were the better forum for addressing Arizona’s claims. [96]

F. Maryland v. Louisiana

In 1981, the Supreme Court finally chose to exercise original jurisdiction in Maryland v. Louisiana. [97] Several states, joined by the United States and several pipeline companies, challenged the constitutionality of Louisiana’s “First-Use Tax” imposed on certain uses of natural gas brought into Louisiana. [98] Due to the nature of the case participants, a Special Master was appointed to facilitate the handling of the suit. [99] The Special Master filed a report, but exceptions to the Master’s Report were filed as well. [100] Justice White, writing for the Supreme Court, held that: (1) the individual states, as major purchasers of natural gas whose cost increased as a direct result of the tax, were directly affected in a real and substantial way so as to justify the exercise of the Court’s original jurisdiction; (2) jurisdiction was also supported by the individual states’ parens patriae; and (3) the case was an appropriate exercise of the Court’s exclusive jurisdiction even though state court actions were pending in Louisiana. [101] After establishing the Court’s intention to exercise original jurisdiction, the Court found the First-Use Tax to be unconstitutional under the Commerce Clause. [102] The analysis of the tax’s constitutionality under the Commerce Clause will be discussed later in this Article. Louisiana argued that the states lacked standing to bring the suit under the Court’s original jurisdiction and that the bare requirements for exercising original jurisdiction were not met. [103] The Special Master rejected both arguments. [104] The Court agreed with the Special Master. [105] In order to constitute a true controversy between two or more states under the Court’s original jurisdiction, [I]t must appear that the complaining State has suffered a wrong through the action of the other State . . . or is asserting a right against the other State which is susceptible of judicial enforcement according to the accepted principles of the common law or equity systems of jurisprudence. [106] Rejecting Louisiana’s arguments that the tax was imposed on pipeline companies and not directly on consumers, the Court reasoned that standing to sue “exists for constitutional purposes if the injury alleged ‘fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.’” [107] In the instant case, the First-Use Tax was “clearly intended to be passed on to the ultimate consumer,” despite it being imposed on pipeline companies. [108] The Court found it “clear that the plaintiff States, as major purchasers of natural gas whose cost has increased as a direct result of Louisiana’s imposition of the First-Use Tax, are directly affected in a ‘substantial and real’ way so as to justify their exercise of this Court’s jurisdiction.” [109] The Court also found support for exercising jurisdiction “by the “States’ interest as parens patriae.” [110] States cannot “enter a controversy as a nominal party in order to forward the claims of individual citizens.” [111] However, a state can “act as the representative of its citizens in original actions where the injury alleged affects the general population of a State in a substantial way.” [112] The Court held that the states “alleged substantial and serious injury to their proprietary interests as consumers of natural gas as a direct result of the allegedly unconstitutional actions of Louisiana.” [113] Further, such a direct injury is reinforced “by the States’ interest in protecting its citizens from substantial economic injury presented by imposition of the First-Use Tax.” [114] The Court explained, “[I]ndividual consumers cannot be expected to litigate the validity of the First-Use Tax given that the amounts paid by each consumer are likely to be relatively small.” [115] Instead, the states should represent their citizens in such litigation––a point which supported the Court’s choice to exercise original jurisdiction. [116] The Court deemed the case appropriate for exercise of its exclusive jurisdiction, despite similar claims pending in state courts. [117] The Court elaborated that it determines whether exclusive jurisdiction is appropriate by weighing “not only ‘the seriousness and dignity of the claim,’ but also ‘the availability of another forum with jurisdiction over the named parties.’” [118] Exclusive and original jurisdiction are exercised sparingly. [119] In choosing to exercise exclusive jurisdiction, the Court distinguished Maryland from New Mexico. Specifically, in New Mexico, it was “uncertain whether Arizona’s interest as a purchaser of electricity had been adversely affected,” but in Maryland, the adverse effect upon the plaintiff states’ interests were far more certain. [120] The issue in the New Mexico case did not “sufficiently implicate the unique concerns of federalism forming the basis of [the Court’s] original jurisdiction.” [121] In Maryland, the magnitude and effect of the tax was far greater because the anticipated 150 million dollars in annual tax was being passed on to millions of American consumers in over thirty states, exactly as intended. [122] The Supreme Court was willing to set the Maryland case apart from precedent and justify the use of original jurisdiction. Therefore, when examining recent actions brought by Arizona and Texas, the question becomes: why did the claims of Arizona and Texas fall within the Court’s pattern of refusing to exercise original jurisdiction rather than the approach followed in Maryland?

G. Texas and Arizona’s Place Within the Precedent

In denying Texas and Arizona’s motions for leave to file a bill of complaint, the Court did not provide its reasoning for denial as it did in MarylandWyandotteNew MexicoMassachusettsCohens, and Louisiana. Although Justice Thomas and Justice Alito wrote detailed dissents on why the Court should hear the cases, there was little insight into the majority’s decision-making. However, with decades of precedent explaining the need to exercise original jurisdiction sparingly, [123] perhaps the Court’s reasoning is not needed. Following the analysis of prior case law, Texas and Arizona’s claims would be first judged on their “seriousness and dignity.” [124] Essentially, the two states would have to show that they are directly and negatively affected by California’s travel bans. [125] The states also would need to persuade the Court that the injury alleged affects the general population of their states in a substantial way. [126] Finally, the states would have to show that there is no other forum that could adjudicate the claims. [127] Turning to the first point, the states would illustrate their alleged injury: California law bans state-funded travel to over twenty-two states, except under limited circumstances. [128] Specifically, California will not: Approve a request for state-funded or state-sponsored travel to a state that . . . has enacted a law that voids or repeals, or has the effect of voiding or repealing, existing state or local protections against discrimination on the basis of sexual orientation, gender identity, or gender expression, or has enacted a law that authorizes or requires discrimination against same-sex couples or their families or on the basis of sexual orientation, gender identity, or gender expression, including any law that creates an exemption to antidiscrimination laws in order to permit discrimination against same-sex couples or their families or on the basis of sexual orientation, gender identity, or gender expression. [129] The travel ban has exceptions, which include travel for: litigation; meeting contractual obligations; complying with the federal government committee appearances; participating in meetings or training required by a grant or required to maintain grant funding; completing job-required training necessary to maintain licensure or similar standards; and protecting the public health, welfare, or safety. [130] Given these exceptions, when does California’s travel ban actually apply? It is difficult to imagine an instance where state-funded travel would be banned given the relatively lengthy list of exceptions. California intended the ban to frame the state as a leader in protecting civil rights and preventing discrimination, but even LGBTQ groups accuse California of using the ban as “a cheap political trick to make some headlines for vote-hungry politicians in the blue state.” [131] The law’s extensive exceptions also make it difficult for the plaintiff-states to illustrate their injury. College sports provide the most likely example of state injury, but even that has proven difficult. In 2017, California’s ban included travel to the State of Tennessee. [132] That same year, the UCLA Men’s Basketball Team made it to the “Sweet 16” in the NCAA Tournament. [133] According to the ban, California should have refused to let the team play in the game against Kentucky held in Tennessee, unless the game was moved to another state not on the travel ban list, since UCLA is a state-funded school. [134] Instead, California used “non-state” funds to send the team to Tennessee. [135] Non-state funds are comprised of money that comes from donations and other resources. [136] California keeps these “non-state” funds separate from state funds. [137] Essentially, when travel does not fit into one of California’s many exceptions, the state will still find a way to permit the travel if there is substantial state interest. [138] Imagine the following hypothetical: Texas or Arizona host a major sports tournament, California denies funding for its own public university team to travel and compete in the tournament, and the denial causes the tournament to be moved to another state simply to accommodate California’s travel ban. One can then imagine the plethora of economic and political injuries to Texas or Arizona. However, a dilemma like this hypothetical has yet to happen. And the U.S. Supreme Court will not exercise its original jurisdiction in a case in which a state’s injuries are unclear. [139] The complaints filed by Texas and Arizona demonstrate the exact type of cases the Court detailed as its preference to avoid in Wyandotte. [140] Next, it would have been difficult for the Supreme Court to find that the alleged injury affected the general population of Arizona and Texas. [141] The California travel ban does not target state-funded business with the plaintiff-states or individual businesses or people within the plaintiff-states. [142] Additionally, the travel ban does not in any way restrict the flow of goods or people between California and these states. [143] Aside from knowing the state received California’s stamp of disapproval, citizens of Texas and Arizona are not affected by California’s travel ban. In Maryland, Louisiana’s tax affected more than thirty different states, and the burden of the tax was directly passed to the taxpayers in those states. [144] Although there are many states on California’s travel ban list, [145] the burden of California’s law is not upon the people of those states. Finally, the Supreme Court likely denied the plaintiff-states’ request for adjudication under original jurisdiction in Arizona v. California and Texas v. California because the states can challenge California’s laws in another forum. [146] In New Mexico, the Court mentioned its preference of hearing the case on appeal upon the plaintiff-state’s loss in defendant-state’s courts. [147] In Maryland, the Court did not think that a state forum was more appropriate for the claims because it was abundantly clear that the interests of the plaintiff-states were adversely affected. [148] The same is not true in the Arizona and Texas cases. The Court likely aligned the plaintiff-states’ claims with those in New Mexico. Even Justice Alito, writing in the dissent for Texas, mentioned that the Court would likely reverse if a lower court found in favor of California. [149] Perhaps filing in a different forum is a path the current plaintiff-states should contemplate. It is clear a controversy exists between two states in both Arizona and Texas. It is also clear the controversy is mostly political, based solely on California’s condemnation of a number of states in the nation who will not align with California’s political ideals. The Court can invoke the political question doctrine when there is a lack of judicially manageable standards which prevent the case from being decided on the merits. [150] Although the Court did not explicitly invoke the doctrine, California’s politically charged statutory language could have added to the Court’s reluctance to exercise original jurisdiction. Ultimately, the Court had a long list of precedent supporting the decision to decline exercising original jurisdiction in both Texas and Arizona. While actual injury to the travel ban states is not abundantly clear, the plaintiff-states should consider challenging California’s law under Article I instead of Article III in federal court.

II. The Article I Alternative [151]

The Constitution grants Congress the power to “regulate Commerce with foreign Nations, and among the several states, and with the Indian tribes.” [152] The U.S. Supreme Court has long recognized that the Commerce Clause also restricts states from enacting law which may affect interstate commerce. [153] This limit on state power is often referred to as the Dormant Commerce Clause. The Dormant Commerce Clause prevents economic protectionism by prohibiting states from enacting laws designed to benefit in-state economic interests as the expense of out-of-state competitors. [154] State-implemented travel bans are likely to affect interstate commerce, since their sole purpose is to cause negative economic impact on the targets of the ban. Although the earlier discussion about the travel ban’s exceptions and practice raise questions as to whether the California law is truly effective, there are still colorable arguments supporting the law’s interference with interstate commerce. The U.S. Supreme Court’s approach for analyzing the Dormant Commerce Clause is a balancing test in which the burden on interstate commerce may not be greater than the benefits to the state. [155] The weight of the balancing depends on whether a state statute is facially discriminatory or facially neutral. [156] State statutes are facially neutral if they treat their residents and other states’ residents alike, although the statute may still affect interstate commerce. [157] Facially neutral statutes only violate the Dormant Commerce Clause if the burdens they impose on interstate trade are clearly excessive in relation to local benefits. [158] State statutes that distinguish between residents in their jurisdiction and residents outside their jurisdiction are facially discriminatory. [159] Since California’s travel ban explicitly names other states, the statute is facially discriminatory. Even though the ban is facially discriminatory, there are three exceptions to when states may pass facially discriminatory laws , outlined below.

A. Exceptions to Facially Discriminatory Statutes, Applied to California’s Ban

Facially discriminatory statutes are generally deemed unconstitutional but can still be upheld under three exceptions: (1) Congress authorized them; (2) they serve a legitimate state or local purpose; or (3) the state is acting as a market participant. [160] Below is an analysis of these three exceptions as applied to California’s travel ban. The first exception is Congressional authorization. It is clear from the statute language that California is not relying upon any kind of congressional authority. When Congress permits states to regulate commerce in ways that would otherwise be impermissible, authorization must be unmistakably clear. [161] The legislative history behind California’s travel ban clearly shows there was no Congressional authorization to enact such a ban. [162] The legislative history shows reliance upon Obergefell v. Hodges to support validation of the ban. [163] This Supreme Court case upheld marriage equality for LGBTQ individuals, [164] but there is no mention of anything close to the possibility of states enacting travel bans for state-funded travel. [165] In summary, “Congress did not grant California the authority to prohibit other states from discriminating against LGBTQ individuals.” [166] Thus, California’s travel ban law fails the first exception for facially discriminatory statutes. Second, for facially discriminatory statutes to be constitutional, they must serve a legitimate local purpose. States must show not only that the regulation serves a legitimate local purpose, but also that the local purpose could not be achieved by any other nondiscriminatory means. [167] Essentially, California would have to prove their clearly punitive travel ban serves a local purpose which could not otherwise be achieved. [168] The California legislative history lists two reasons for enacting the statute: (1) to prevent the use of state funds to benefit a state that does not adequately protect the civil rights of certain classes of people; and (2) to prevent a state agency from compelling an employee to travel to an environment in which he or she may feel uncomfortable. [169] However, punishing other states for not meeting California’s civil rights standards does not serve a local purpose in California. [170] On the one hand, California may argue that the law protects state employees who could experience—or fear—LGBTQ discrimination in travel ban states. On the other hand, critics argue that the travel ban does little to protect LGBTQ interests and does “nothing more than exacerbate political divisions.” [171] Even if California argues that the statute protects its state employees, California ignores the fact that it must prove there are no other nondiscriminatory alternatives. [172] California’s legislative history indicates that the statute was not developed to protect state employees and that other alternatives were not considered. Instead, the legislative history makes it abundantly clear that California intended the statute to punish other states. [173] The final exception is if a state acts as a market participant, rather than a market regulator. [174] For example, if a city law specifies that construction projects funded by the city must employ a percentage of city residents, then the law does not violate the Dormant Commerce Clause because by funding the city projects the government is acting as a participant. [175] However, if a state is selling timber and its laws require the successful bidder to partially process the timber within the state before shipping, then this law goes further than simply burdening the market in which it operates. [176] California could attempt to argue that the Dormant Commerce Clause does not apply because the state government is participating in the market for travel. But because the ban imposes restrictions intended to reach beyond California by banning commercial transactions in target states, this argument fails, and the Dormant Commerce Clause applies. California’s travel bans are facially discriminatory and are therefore unconstitutional under Article I of the Constitution. Only the U.S. Congress can regulate the nation’s commerce, not the individual states. [177] There is a long history of restricting states from enacting laws that interfere with federal commerce or benefit in-state economic interest by discriminating against other out-of-state actors. California’s ban on state-funded travel openly discriminates against almost half of the country by banning state-funded travel to states with whom California disagrees over standards regarding treatment of the LGBTQ community. [178] The desire to be a leading state in the protection of LGBTQ civil rights does not fit into any of the three exceptions that would allow California to enact such a law. California’s ban was not authorized by Congress. It serves no local purpose. No nondiscriminatory alternatives were ever discussed or considered. California, in enacting the statute, is acting as a market regulator and not as a market participant. That is unconstitutional. This analysis leaves critics with disagreements in predicting how, when, or whether California’s unconstitutional travel ban will be addressed. Some believe that other states will follow California’s example and enact similarly discriminatory laws until the country is entwined in a social and economic civil war. [179] The less dramatic and more likely outcome is a continued lack of enforcement of the statutes, or a demand in statutory change from residents of the states who are legislating such bans.

III. Power By The People: The Likely Outcome

As previously explained, the U.S. Supreme Court is unlikely to intervene on behalf of states that have found themselves on California’s travel ban. The states will likely need to bring their claims in other forums first and then pursue the appeals route to the U.S. Supreme Court. Given the extensive list of exceptions and lack of enforcement in practice, the overarching economic effect (and therefore success) of California’s ban is, at best, unclear. It is still disheartening to see that one of our states opted to single out twenty-two sister states seemingly without reason. There are a few consequences that may result from such actions. The first possibility is other states will enact retaliatory bans or similar bans against states with whom they disagree politically. California’s first bans were seen in 2017, and in the past few years, several other states and territories have legislated travel bans. [180] Although New York issued executive orders in 2015 similarly banning state-funded travel to Indiana for LGBTQ discrimination issues, [181] and several other states joined New York in banning state-funded travel to North Carolina for its controversial “bathroom law,” [182] there is little indication that these bans have actually achieved their purpose of negatively impacting the economies of the targeted states. For example, it is calculated that Indiana lost about $60 million in revenue after passing an anti-gay law. [183] Notably, this loss of revenue stemmed from a cut in tourism and the migration of businesses out of Indiana, not because of a lack of state-funded travel from places like California. [184] Further, when corporations or businesses condemn perceived anti-gay state laws, the ramifications are much more profound than any ban on state-funded travel. California state-funded travel likely has very limited presence in the Texas economy, and so its effect is similarly unnoticed. However, when companies like Apple make business decisions while considering states’ laws impacting its LGBTQ population, the results would be felt much more profoundly than the loss of California’s state-funded travel. Additionally, if corporations were to act in this arena, they would not be challenging the U.S. Constitution in the same way as California. Yet, Texas has not lost business because of its anti-discrimination laws. On the contrary, Texas has seen an explosion of migration of California businesses to Texas. [185] Though these business migrations are linked to lower housing costs, lower tax rates, and fewer regulations, it is still noteworthy that Texas’s LGBTQ laws did not deter California tech giants from moving operations to the red state. [186] Texas’s experience with tech migration may be unique compared with the other states on California’s ban list, but it remains unclear whether California’s ban has influenced any state’s economy in a substantial way. All things considered, California’s legislation purpose is less of an attempt to weaken Texas’s or other states’ economies and more of an attempt to pander to voters within California. The true danger of California’s travel ban stems from power-hungry and vote-hungry politicians’ dedication to making headlines. The ban provides such a plethora of exceptions that its actual effect is severely curtailed to the point of virtual nonexistence. Meanwhile, the political chatter surrounding the law only grows. With such minimal economic effect, even if all the states decide to pass similar laws, then the only thing achieved is more of the political animosity already so prevalent between the two political parties. Another possible consequence is that the law will largely go unenforced, as it is now, and its purpose will diminish and subside out of the nation’s attention. A third possible consequence is a challenge to the statute’s constitutionality from within California or a repeal of the statute through the legislature. Of the possible outcomes, an economic civil war is truly unlikely. This is a political game with very little economy in the equation. A political civil war might be a different story.


California’s travel ban now effectively targets about 44% of the nation by prohibiting state-sponsored or state-funded travel to twenty-two sister states. [187] Other states have followed California’s example. [188] The challenges to the ban came from the States of Texas and Arizona, which would ordinarily place the cases within the original jurisdiction of the Supreme Court. However, the Supreme Court declined the opportunity to adjudicate the matter in both cases. The Court has a history of avoiding political questions [189] and exercising its original jurisdiction only in extremely limited circumstances. [190] Based on the analysis of Article I, California’s statute is facially discriminatory. It does not fall within one of the exceptions, so the law is unconstitutional. [191] With the Supreme Court refusing to hear arguments brought by Texas or Arizona, the states will need to seek another path to Supreme Court adjudication. If the states desire a judicial ruling on the issues, they should find other forums in which to challenge California’s law and then appeal any unfavorable decision to the Supreme Court. However, the judicial path may prove problematic for the states, as the lack of true economic effect makes it difficult if not impossible to argue actual damages. California’s law failed to impact the economies of the target states, but it succeeded in widening the political divide in the nation. It is no secret that for the past few years, Americans have lived in an increasingly divided country. As LGBTQ organizations have noted, the travel ban does little to promote equality for LGBTQ individuals in red states. [192] Instead, California’s legislation serves as a political platform for politicians’ reelection campaigns. From a birds-eye-view, the result is something of a Shakespearean play: it’s funny, it’s tragic, and it’s oh-so-dramatic. Hopefully, the nation can end the narrative of the travel ban as a Shakespearean comedy with a happy ending, instead of a Shakespearean tragedy currently looming on the horizon for a divided and weary nation with our collective patience wearing thin.
* Professor Beckett Cantley University of California, Berkeley, B.A. 1989; Southwestern University School of Law, J.D. cum laude 1995; and University of Florida, College of Law, LL.M. in Taxation 1997. Teaches International Taxation at Northeastern University and is a shareholder in Cantley Dietrich, P.C. Professor Cantley would like to thank Melissa Cantley and his law clerk, Leela Orbidan, for their contributions to this Article. ** Geoffrey Dietrich, Esq. U.S. Military Academy at West Point, B.S. 2000; Brigham Young University Law School, J.D. 2008. Shareholder in Cantley Dietrich, P.C.
[1] . William Shakespeare, Romeo and Juliet act 1, prologue, l. 1–3. [2] . See Levon Kalanjian, The Beginning of an Economic Civil War: The Unconstitutionality of State-Implemented Travel Bans, 22 U. Pa. J. Const. L . 409, 411 (Feb. 2020) (“California was the first state to enact a statute . . . banning its employees, the nation’s largest state-employed workforce, from using state funds to travel to . . . states . . . that have discriminatory laws relating to sexual orientation, gender identity, and gender expression.”). [3] . Id.; Texas v. California, 141 S. Ct. 1469, 1473 (2021) (Alito, J., dissenting). [4] . See Kalanjian, supra note 2, at 411, 421 (listing Texas as one of the many states subject to California’s travel ban). [5] . See generally United Nations Security Council Consolidated List, United Nations (July 26, 2022), [https://] (listing all regimes subject to sanctions and other measures by the United Nations Security Council). [6] . See Treasury and Commerce Implement Changes to Cuba Sanctions Rules, U.S. Dep’t of the Treasury (June 4, 2019), [] (describing the national security measures taken by the United States against Cuba). [7] . Texas, 141 S. Ct. at 1473 (majority opinion); see Oriana Gonzales & Danielle Alberti, The Political Leanings of the Supreme Court Justices, Axios (June 24, 2022), https://www.axios .com/supreme-court-justices-ideology-52ed3cad-fcff-4467-a336-8bec2e6e36d4.html [https://] (identifying the political ideologies of the U.S. Supreme Court Justices, with a negative number indicating a more liberal judicial philosophy and a positive number indicating a more conservative judicial philosophy). [8] . See 28 U.S.C. § 1251(a) (West 2022) (“ The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.”) ; see also U.S. Const ., art. III, § 2, cl. 2 (“ In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. ”). [9] . See U.S. Const . art. I, § 8, cl. 3 (“ The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”). [10] . Soumya Karlamangla, Why California Bans State-Funded Travel to Nearly Half of States, The New York Times (July 19, 2022), []. [11] . See Arizona v. California, 140 S. Ct. 684, 684 (2020). [12] . Id. (Thomas, J., dissenting) (quoting U. S. Const ., art. III, § 2, cl. 2.). [13] . Id. [14] . Id. [15] . U.S. C onst . art. I, § 8, cl. 3. [16] . Kalanjian, supra note 2, at 425. [17] . Okla. Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 179–80 (1995). [18] . Kalanjian, supra note 2, at 415. [19] . 28 U.S.C.A. § 1254 (West 2022). [20] . Id. § 1257. [21] . U.S. C onst . art. III, § 2, cl. 2. [22] . 28 U.S.C.A. § 1251 (West 2022). [23] . 19 U.S. (6 Wheat.) 264 , 375–80 (1821 ). [24] . Id. at 375–77. [25] . See id. at 349 (“[I]t is said, that admitting the Court has jurisdiction where a State is a party, still that jurisdiction must be original, and not appellate; because the constitution declares, that in cases in which a State shall be party, the Supreme Court shall have original jurisdiction, and in all other cases, appellate jurisdiction.”). [26] . See id. (“[I]f the jurisdiction in this class of cases be concurrent, it cannot be exercised originally in the Supreme Court.”). [27] . Id. at 404. [28] . Cohens, 19 U.S. (6 Wheat.) at 404. [29] . Id. [30] . Id. [31] . Id. at 405. [32] . Id. at 380. [33] . Cohens, 19 U.S. (6 Wheat.) at 380. [34] . Id. at 380–81. [35] . Louisiana v. Texas, 176 U.S. 1, 2 (1900). [36] . Id. [37] . Id. [38] . Id. at 2. [39] . Id. at 3. [40] . Louisiana, 176 U.S. at 3. [41] . See generally Jo Ann Carrigan, The Saffron Scourge: A History of Yellow Fever in Louisiana, 1796-1905 passim (June 1961) (describing the spread of yellow fever around the United States, including into Texas, and the response by states). [42] . See Major American Epidemics of Yellow Fever (1793-1905), PBS, [] (last visited Aug. 15, 2022) (reporting that 8,000 or more individuals died in New Orleans from a yellow fever outbreak in Summer 1853). [43] . Id. [44] . Louisiana, 176 U.S. at 4. [45] . Id. [46] . Id. at 5. [47] . Id. at 12. [48] . Id. at 22. [49] . Louisiana, 176 U.S. at 14 (citing U.S. Const . art. III, § 2, cl. 1, 2) (emphasis added). [50] . Id. at 15. [51] . Id. at 22–23. [52] . Id. at 23 (Harlan, J., concurring). [53] . Id. at 23 (majority opinion). [54] . 308 U.S. 1, 1 (1939). [55] . Id. at 13, 15. [56] . Id. at 20. [57] . Id. at 15. [58] . Id. [59] . Massachusetts, 308 U.S. at 15. [60] . Id. [61] . Id. [62] . Id. at 19. [63] . Id. (quoting Cohens v. Virginia, 19 U.S. 264, 398–99 (1821)). [64] . Massachusetts, 308 U.S. at 20. [65] . Id. [66] . Id. [67] . The 1970s, (July 30, 2010), 1970s-1#section_2 []. [68] . Id. [69] . Ohio v. Wyandotte Chems. Corp., 401 U.S. 493, 494 (1971). [70] . Id. at 505. [71] . Id. at 495. [72] . Id. [73] . Id. at 495–96. [74] . Wyandotte, 401 U.S. at 496. [75] . Id. at 495–96. [76] . Id. at 496–97. [77] . Id. at 497. [78] . Id. [79] . Wyandotte, 408 U.S. at 498. [80] . Id. [81] . Id. at 504–05. [82] . Arizona v. New Mexico, 425 U.S. 794, 795, 798 (1976). [83] . Id. at 795. [84] . Id. [85] . Id. at 794. [86] . Id. [87] . New Mexico, 425 U.S. at 794–95. [88] . Id. at 795. 89. Id. [90] . Id. [91] . Id. [92] . New Mexico, 425 U.S. at 795. [93] . Id. [94] . Id. at 797. [95] . Id. [96] . Id. [97] . 451 U.S. 725, 737 (1981). [98] . Id. at 731–34. [99] . Id. at 734. [100] . Id. at 734–35. [101] . Id. at 737, 739–45. [102] . Maryland, 451 U.S. at 760. [103] . Id. at 735–36. [104] . Id. at 735. [105] . Id. [106] . Id. at 735–36 (quoting Massachusetts v. Missouri, 308 U.S. 1, 15 (1939)) (internal quotations omitted). [107] . Maryland, 451 U.S. at 736 (1981) (quoting Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 41–42 (1976)). [108] . Id. [109] . Id. at 737. [110] . Id. [111] . Id. [112] . Maryland, 451 U.S. at 737. [113] . Id. at 739. [114] . Id. [115] . Id. [116] . Id. [117] . Maryland, 451 U.S. at 739–45. [118] . Id. at 740. [119] . Id. at 739. [120] . Id. at 743. [121] . Id. [122] . Maryland, 451 U.S. at 744. [123] . Id. at 739; Arizona v. New Mexico, 425 U.S. 794, 795 (1976). [124] . Maryland, 451 U.S. at 740; Arizona, 425 U.S. at 795. [125] . Maryland, 451 U.S. at 737. [126] . Id. [127] . Arizona, 425 U.S. at 795. [128] . Cal. Gov’t Code § 11139.8(b)(2) (West 2022). [129] . Id. [130] . Id. § 11139.8(c). [131] . Cyd Zeigler, California’s Travel Ban to Anti-LGBTQ States is a Political Trick, LGBTQNATION (Apr. 5, 2019), []. [132] . Id. [133] . Id.; Paul Kasabian, Sweet 16 2017: Complete Schedule, Updated Bracket and Predictions, Bleacher Rep. (Mar. 23, 2017), [ 5R]. [134] . Zeigler, supra note 131; Kasabian, supra note 133. [135] . Zeigler, supra note 131. [136] . Id. [137] . Id. [138] . See id. (“So when they want to get around the law, they make sure those ‘separate’ funds are used.”). [139] . E.g., Louisiana v. Texas, 176 U.S. 1, 22–23 (1900) (explaining that mere “maladministration” of state laws is not enough to establish that one state has injured another state and that a controversy exists). [140] . Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 497–99 (1971). [141] . Arizona v. California, 140 S. Ct. 684, 684 (2020); Texas v. California, 141 S. Ct. 1469, 1469 (2021). [142] . Cal. Gov’t Code § 11139.8(b)(2) (West 2022). [143] . Id. [144] . Maryland v. Louisiana, 451 U.S. 725, 733, 744 (1981). [145] . Karlamangla, supra note 10. [146] . Massachusetts v. Missouri, 308 U.S. 1, 60 (1939); Arizona v. New Mexico, 425 U.S. 794, 796 (1976); Maryland, 451 U.S. at 737. [147] . New Mexico, 425 U.S. at 796. [148] . Maryland, 451 U.S. at 743. [149] . Texas v. California, 141 S. Ct. 1469, 1469 (2021) (Alito, J., dissenting). [150] . Baker v. Carr, 369 U.S. 186, 217 (1962). [151] . The Article I analysis to California’s travel bans has been analyzed in great detail in scholarship by Levon Kalanjian. Section III in this Article is simply a summary of the thorough analysis presented in Kalanjian’s writing. See Kalanjian, supra note 2. [152] . U.S. Const . art. I, § 8, cl. 3. [153] . See Healy v. Beer Inst., 491 U.S. 324, 326 n.1 (1989) (“This Court long has recognized that this affirmative grant of authority to Congress also encompasses an implicit or ‘dormant’ limitation on the authority of the States to enact legislation affecting interstate commerce.”). [154] . Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328, 337–38 (2007). [155] . S. Pac. Co. v. Arizona, 325 U.S. 761, 783–84 (1945). [156] . See United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 331 (2007) (“To determine whether a law violates the dormant Commerce Clause, the Court first asks whether it discriminates on its face against interstate commerce.”). [157] . Or. Waste Sys., Inc. v. Dep’t of Env’t Quality of State of Or., 511 U.S. 93, 98–99 (1994). [158] . Maine v. Taylor, 477 U.S. 131, 138 (1986). [159] . Id. [160] . S. Pac. Co., 325 U.S. at 769. [161] . Kalanjian, supra note 2, at 435. [162] . Id. [163] . Id. [164] . Obergefell v. Hodges, 576 U.S. 644, 681 (2015). [165] . Kalanjian, supra note 2, at 435. [166] . Id. [167] . Id. at 436. [168] . Id. [169] . Id. [170] . Kalanjian, supra note 2, at 439. [171] . Id. at 440. [172] . Id. [173] . Id. at 443. [174] . Id. at 444. [175] . Kalanjian, supra note 2, at 444–45. [176] . Id. at 446. [177] . U.S. Const . art. I, § 8, cl. 3. [178] . Karlamangla, supra note 10. [179] . Kalanjian, supra note 2, at 446. [180] . In 2018, Washington, Minnesota, New York, Vermont, and California had bans against traveling to Mississippi, which passed a law “protecting religious organizations from government interference should they choose to deny services to members of the LGBT community based on their beliefs.” Ginger O’Donnell, Several States Restrict Travel to Those with Anti-LGBTQ Laws, INSIGHT Into Diversity (Feb. 12, 2018), []. [181] . Brian Sharp, Rochester Joins NY in Banning Travel to Indiana in Protest of New Law, Democrat & Chronicle (Mar. 31, 2015), []. [182] . O’Donnell, supra note 180. [183] . Neal Broverman, Indiana Took $60 Million Hit After Passing Antigay Law, Advocate (Jan. 26, 2016), []. [184] . Id. [185] . Jean Folger, Why Silicon Valley Companies Are Moving to Texas, Investopedia (Dec. 17, 2020), []. [186] . Id. [187] . Karlamangla, supra note 10. [188] . O’Donnell, supra note 180. [189] . Ohio v. Wyandotte Chems. Corp., 401 U.S. 493, 496 (1971). [190] . Arizona v. New Mexico, 425 U.S. 794, 795 (1976). [191] . S. Pac. Co. v. Arizona, 325 U.S. 761, 769 (1945). [192] . Kalanjian, supra note 2, at 440.

The Ruling on Reserve Mechanical Corp. v. Commissioner, and Impact to Captive Insurance Tax Benefits


Beckett Cantley  Geoffrey Dietrich This article provides an overview of the May 13 th , 2022, U.S. Tenth Circuit Court of Appeals decision in Reserve Mechanical Corp. v. Commissioner ,  and analyzes its likely impact on the aggressive captive insurance company (“CIC”) industry. A much longer and broader discussion of this topic will be published in our forthcoming article in the U.C. Davis Business Law Journal.

How Reserve Mechanical Corp v Comm affects captive insurance tax benefits

A storm has been brewing in the tax world, and there may be no safe harbor in sight for participants in aggressive captive insurance schemes. On May 13th , 2022, the U.S. Tenth Circuit Court of Appeals handed down a major defeat to one of these aggressive captive insurance schemes.  In a landmark case, Reserve Mechanical v. Commissioner , the Court found that the transactions that the Captive Insurance Company (CIC) Reserve Mechanical had engaged in were not insurance and therefore Reserve Mechanical was not an insurance company. As a result, Reserve Mechanical could not take advantage of the federal income tax exemption under Internal Revenue Code (“IRC”) Section 501(c)(15). This tax exemption allows a CIC to not pay tax on whatever premiums are paid to it, up to a certain threshold.  Tax planners would be paid to set up CICs for business owners and the business owners would then pay premiums to the new CIC while the CIC books those premiums as tax exempt income. These premiums are often determined without actuarial data and with a poorly produced risk pool consisting of other CICs managed by the tax planners engaged in the scheme.

The benefits of Captive Insurance Companies (CICs)

With correct planning CICs stand to obtain favorable tax treatment under IRC Sections 501(c)(15) and 831(b). This creates a tax exemption for insurance companies whose gross receipts for the tax year do not exceed $600,000 under IRC Section 501(c)(15) or $2.3 Million under IRC Section 831(b).  These exemptions are treated identically with the only difference being the level of exemption permitted under the statute. The use of CICs for businesses with a true and real economic need for them does not, in and of itself, constitute an abusive tax transaction. However, despite the real economic circumstances that would call for the use of CICs, the practices of several tax planners in the CIC world have become flagrantly abusive. This abuse has colored CICs in the IRS’ eyes such that even those who have a very real need for the use of CICs may become potential targets of IRS audits.

As a CIC, Reserve was owned by the same people that owned Peak.

The original Reserve Mechanical Corp. v. The Commissioner case came down before the U.S. Tax Court on June 18 th , 2018. Reserve Mechanical Corp (“Reserve”) was a CIC formed to insure Peak Mechanical & Components Inc. (“Peak”). As a CIC, Reserve was owned by the same people that owned Peak. The three issues at hand in this case were
  1. whether the transactions that Reserve engaged in were insurance resulting in the right to the IRC Section 501(c)(15) exemption;
  2. whether Reserve was a domestic corporation under IRC Section 953(d); and
  3. if Reserve was not an insurance company and did not make a valid IRC Section 953(d) election, whether it could be taxed 30%.
This article will only address the first question as to whether or not Reserve was an insurance company. In the IRS’s view, Reserve was solely created so that the owners of Peak could take advantage of the tax deduction and Reserve could take advantage of the tax exemption, rather than because Peak needed insurance that it could not get elsewhere, and thus the transactions Reserve engaged in lacked economic substance.

Factors that drove IRS’s assessment that Reserve was not an insurance company

The IRS’s assessment that Reserve was not an insurance company was based on several factors.
  • The first, was that the transactions that Reserve engaged in constituted a circular flow of funds. Peak would pay premium payments to Reserve for direct coverage.
  • Reserve would then take these premiums and pay them to the CIC risk pool, PoolRe, as reinsurance by attempted risk distribution across a number of other CICs also paying into the risk pool. Peak would then also pay premiums to PoolRe in exchange for stop-loss insurance from PoolRe.
  • Lastly, PoolRe would pay the same stop-loss premium amount it received from Peak to Reserve to insure the same stop-loss coverage it had with Peak.
The court determined that the flow of premiums between these three entities constituted an improper circular cash flow of funds. Next, the IRS focused on how the premiums that Reserve charged were determined. Several experts testified that they had used actuarial tables to calculate them but could not provide those tables and could not explain how Reserve somehow managed to charge each year the exact amount of premiums that would result in the greatest tax exemption for the CIC.  The IRS argued that premium calculation method used was bogus. The Tax Court ruled in favor of the IRS and held that Reserve did not issue insurance contracts. Thus, Reserve was not an insurance company, and was thereby ineligible for the Section 501(c)(15) exemption. Therefore, the premiums that Reserve received were now treated as investment income and could be taxed at a 30% withholding rate. The Tax Court determined that the premiums that were paid to Reserve by Peak and then to PoolRe and vice versa constituted a circular cash flow of funds. They also determined that the premiums paid were determined by what would produce the greatest tax deduction rather than based on actuarially determined insurance need. The Tax Court noted the strangeness of some of the facts of Reserve. For instance, after Peak formed Reserve its insurance costs went up 400%.  In the Tax Court’s estimation there is no reasonable and ordinary explanation for why a company would increase its insurance costs by such a staggering amount. After the Tax Court decision, Reserve was appealed to the Tenth Circuit Court of Appeals.

IRS ruled in favor of the IRS on all issues.

The Tenth Circuit ruled in favor of the IRS on all issues. The Tenth Circuit’s ruling against Reserve was damning. In the words of the court:
  • Reserve has not presented any argument as to why a factfinder could not infer that Peak’s intent was simply the intent to create a plausible insurance company through which Peak could obtain a substantial tax deduction without reducing the funds available to its two owners. The intent behind the act does not change just because the act failed to achieve its purpose.  [Emphasis added]
  • The Tenth Circuit’s comments make it clear that it does not see Reserve as being run like a legitimate business. The court found that there was no evidence of any reasonable risk assessments to determine whether Peak needed any of the additional policies. The court noted that Reserve prepared policies that only lasted for a month in a rush to obtain a large business deduction for Peak in 2008, and that this behavior was “laughable”.
  • The Tenth Circuit also held that the re-insurance policies that Reserve held with PoolRe did not distribute risk and that if anything the previous Tax Court decision understates the compelling evidence that these re-insurance arrangements were a “sham”.
  • The Tenth Circuit held that they would have emphasized different evidence than the Tax Court, but that the Tax Court’s conclusions were supported by overwhelming evidence in the record.

Reserve raised no persuasive challenges to the Tax Court’s conclusion.

No experience, expertise, or studies supported the need for Peak to obtain the issued policies.  Further, the Tenth Circuit found that Reserve raised no persuasive challenges to the Tax Court’s conclusion.  Despite one of Reserve’s expert witness’ testimony that commercial insurance policies were available as an alternative to several of the Reserve policies, Reserve provided no evidence that anyone compared the rates on such policies or otherwise considered industry standards in determining its premium rates. Instead, the record suggests that Reserve based the rates on the premiums charged by other captive insurers managed by Capstone.

Inconsistencies in Reserve’s business practices created doubt in perception as a bonafide insurance company

The Tenth Circuit doubted the actuarial methodology used to determine the premiums, and determined that these insurance contracts were not negotiated at arm’s length.  The many inconsistencies in Reserve’s business practices made it impossible for the Tenth Circuit to take seriously Reserve’s claim that it was a bonafide insurance company engaged in the business of insurance. As a result, the Tenth Circuit’s decision that Reserve’s policies were not actual insurance feels like a layup and the intensity of the court’s contempt for this aggressive CIC program should be very concerning to other similarly situated CIC owners.

Decision in Reserve Mechanical Corp. – a major boost in the IRS’s overall attack on aggressive CIC tax programs

The 10 th Circuit decision in Reserve Mechanical was a major boost in the IRS’s overall attack on aggressive CIC tax programs. If Reserve had won on appeal, then the aggressive CIC industry would have at least one major case to stand on. The IRS’s Reserve Mechanical win was the biggest in a line of IRS wins in cases on similar grounds. As such, the aggressive CIC industry must either change its ways or close up shop, because the IRS appears determined to shut it down one way or another, and the judiciary is giving it all the ammunition it needs to do so. View Original Document

Biden Signs $1.5 Trillion Spending Bill Without Tax Offsets


Are The "Build Back Better" Taxes Lurking?

By Beckett Cantley 1 & Geoffrey Dietrich 2 On March 10, 2022, the U.S. Senate voted 68-31 to pass the Fiscal Year (FY) 2022 omnibus appropriations bill, the Consolidated Appropriations Act of 2022 ( H.R. 2471 , hereafter, the “Omnibus Bill”), providing $1.5 trillion in federal discretionary spending across all 12 appropriations bills. The passage of this massive stop-gap spending bill averts the shutdown of the government until the end of September and was accompanied by the usual fanfare and much Congressional high-fiving—The Wall Street Journal quipped that one might think “it was the 1964 Civil Rights Act … for all the self-congratulation." 3 Conspicuously absent from the Omnibus Bill’s 2,700 pages are any tax provisions that would normally be part of such omnibus spending (and most legislation) to pay for the new spending provisions in the Omnibus Bill. This article briefly discusses the tax provisions from the Build Back Better Act (“BBB Act”) that Congress failed to pass earlier this year and analyzes what the absence of these tax provisions in the Omnibus Bill means and whether their absence is just a delayed reprieve for U.S. taxpayers.

What was in the Biden Administration’s Proposed BBB Act Tax Changes?

The Biden Administration entered office riding promises of increased taxation against wealthy Americans and businesses. We looked at several key tax provisions in depth in our article, “ Uncovering Four Ways that Biden’s American Families Plan Attacks Your Wealth ,” passage of which would have reconfigured wealth and provided a host of social programs. The BBB Act contained numerous tax provisions that theoretically would have increased tax revenue to fund a significant number of spending programs as well as continued COVID-19 pandemic-related expenditures. According to the White House’s “Build Back Better Framework” these ambitious goals were “fully paid for” through the following tax provisions:
  1. the repeal of most of the Trump Administration’s tax cuts;
  2. increasing corporate income taxes, including taxes on global income of corporations while penalizing corporations that hire and produce overseas;
  3. increasing taxes on everyone making more than $400,000 annually (Married Filing Jointly); and
  4. increasing tax enforcement by providing $80 billion in funding to the IRS. 4
The BBB Act died earlier this year when Senator Joe Manchin (D-W.Va.) voted against the new legislation. Sen. Manchin determined that the $2 trillion price tag was excessive spending that would lead to increased inflation in the U.S. economy. Amazingly, after gnashing teeth and screaming about fraud and waste over the $2 trillion in the BBB Act, enough Republicans voted with Sen. Manchin and the Democrat majority to pass the $1.5 trillion Omnibus Act which contained a government spending spree that came just half a trillion shy of the original goal.

How Congress Uses Omnibus Spending

As the legislative branch of the government, Congress is granted the “power of the purse” under Article I of the Constitution. 5 As the federal government has grown in prominence or bloat, the amount of internal funding required to be appropriated by Congress to specific agencies, departments and programs within the federal government has grown quite massive. 6 When you have pennies, dimes sound like a lot. Once you’ve earned a couple quarters, those pennies seem worthless. Once Congress warmed up to the idea of spending a cool trillion, how can we ever go back to mere billions? Looking back, we just can’t seem to fund the government for less anymore. Congress approves funding to the various departments, agencies, and programs in the federal budget through appropriations bills. Although everyone knows there are twelve different appropriations bills—one for each Congressional sub-committee—that need to be passed each year, Congress sometimes struggles to produce and approve each of the twelve appropriations individually. The term “omnibus” denotes a spending bill which packages two or more of the individual appropriations bills into one. Disagreement over spending and packages leads to difficulty approving an individual appropriation on the merits. To shortcut the process and obtain buy-in, members of Congress will engage in “buying” the votes needed for an omnibus package. Since the 1980’s both sides of the aisle have used omnibus packages because “party and committee leaders can package or bury controversial provisions in one massive bill to be voted up or down.” 7 According to Senate Majority Leader Chuck Schumer (D., N.Y.), “This funding bill is awash with good news for our country.” 8 Just over half goes to defense spending and the remainder (a mere $730 billion) goes to non-defense spending, including $13.6 billion in humanitarian assistance to Ukraine. The Ukraine spending was the lever that pushed the Omnibus Bill through. While it would prove both enlightening and enraging to list all the separate pork projects included in the Omnibus Bill, we choose to focus on what is conspicuously absent from the Omnibus Bill: tax provisions. One of the BBB Act’s hallmark provisions was increased funding (to the tune of $80 billion) to the IRS as a blank check to focus on enforcement and chasing down corporations and wealthy people. We will discuss in a separate forthcoming article the increased IRS budget.

Peering Into the Tax Provision Future

Although we see an appropriate amount of handwringing by both sides of the aisle on the lack of tax provisions within the Omnibus Bill, the revenue raising void remains. Without tax provisions, the means for funding the entirety of this $1.5 trillion package falls on the existing funds (or credit) of the U.S. government. As we have seen, there is no shortage of money that can be printed, but with inflation at forty-year highs, that may not be the desired way out. Pres. Biden has seen his previously “completely paid for” BBB Act halt and cannot possibly hope to resurrect his agenda without significant tax increases. If not in the Bill, where are they? The president will likely throw his declining weight toward including some tax items in future legislation, breaking what would have been incredible pain into more manageable—read, passable—chunks. Smaller bills that attempt to do less may be the path forward for many tax provisions in BBB Act. Only time will tell if Sen. Manchin and others will pay attention to the unaccounted-for costs attached to every future bill. However, failing to pass the BBB Act prior to the confluence of bad luck, bad timing, and arguably bad policy leaves the Democrats in the unenviable position of facing Congressional elections in 2022 with eroding support. Even the mainstream media has started to admit Democrats are in trouble heading into this election cycle. Raising taxes before the mid-term elections with significant seats in jeopardy could very well prove strategically suicidal. Additionally, despite the pipe dream that Sen. Manchin would ally himself with his Democrat colleagues, Manchin further indicated his independence of thought through his recent opposition to the Biden administration’s nominee for the Federal Reserve chair. 9 One of the most likely scenarios for the reappearance of tax provisions should the Democrats lose their majority in November, is Congress passing significant legislation during the lame-duck sessions. While lame-duck sessions were historically used to wrap up the business of Congress, the lame-duck session ending Jan. 3, 2021, was historic in that nearly 44% of bills passed by the 116th Congress occurred during the final two months of its term. 10 Could much of this Congress’ hoped-for legislation become a reality in the waning hours of its’ session? Arguably, yes. In the last fifty years, no other Congress has passed as much legislation as this one during that period. For a party moving out of power, it’s highly likely such a move would be used to push as much legislation through as possible. Should that not be the case, the only route left to tax provision package occurs in the final year of Biden’s term. A difficult proposition as most election strategists predict that the GOP will likely take both houses in November. At this point, the GOP needs only to turn over one Democratic Senator seat and eleven Democratic House member seats with thirty-one Democrats having announced they will not seek reelection. 11 As such, if they do not pass legislation in a lame duck session, they will have no chance after the next Congress is seated. + Citations

CIC Services v. IRS: the Supreme Court Hands the IRS a Major Loss



The Anti-Injunction Act (“AIA”) is an important part of administrative procedure law and a crucial piece of the United States tax system. Enacted to help expedite the tax revenue process, the Act works to invalidate any lawsuit to restrict the assessment or collection of taxes. Nonetheless, having the power to bar standing and having the right to do so are two completely different things. For instance, while the AIA gives the power to bar suits brought against administrative rulemaking processes, the Act does not give this right unless the suit was brought with the purpose of restraining the assessment of a tax.

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The Constitutionality and Application of New York’s Proposed Mark-To-Market Tax


The Constitutionality and Application of New York’s Proposed Mark-To-Market Tax

The Constitutionality and Application of New York’s Proposed Mark-To-Market Tax

Abstract: The state of New York has proposed legislation that would implement a mark-to-market taxation system for its’ billionaire taxpayers.  The proposal would tax billionaires on the increase in value that their assets have experienced over the past calendar year, whether or not these assets are sold.  The tax would raise significant revenue for the state by eliminating the ability of taxpayers to hold assets until death to receive a “stepped-up” basis.  Other policy reasons espoused in support of the tax are that it increases fairness and better reflects actual income.  However, there are skeptics of the feasibility and constitutionality of the proposed tax. First, it will be extremely difficult to determine a market value for each asset for purposes of determining the taxpayer’s unrealized appreciation on each asset.  Because of this, there will undoubtedly be numerous challenges by billionaire taxpayers to government valuations of the market value of their assets.

There are also concerns regarding whether the tax violates a taxpayer’s constitutional right to travel and right to equal protection under the laws.  Further, there are unresolved complications with existing law, including how will the tax handle income from federal retirement accounts and the complexity of basis and credits for taxpayers with properties outside of New York.  Those in favor of the tax will focus on the increased revenue generation and policy concerns, while those in opposition will likely stress the complexity associated with administering two different tax systems at the same time.  The tax proposed by New York could be a signal of change to come, as many states look to increase revenue in the wake of COVID-19.

Table of Contents
II. The Proposed Mark-to-Market Tax
 A. Mechanics of the Tax 
 B. New York Billionaire Taxpayer Example 

III. Policy Behind the Mark-to-Market Tax 
 A. Increased Revenue Generation 
 B. Increased Fairness 
 C. The Mark-to-Market Approach Better Reflects Income 

IV. Complications in Administering the Mark-to-Market Tax 
 A. Difficulty in Determining Market Value 
 B. Likelihood of Disputes 

V. Federal Constitutional Issues 
 A. Right to Travel 
 B. Equal Protection 

VI. Existing Law Complications 
 A. Federal Retirement Account Issues 
 B. State Basis and Credit Issues 

VII. Arguments For and Against New York’s Mark-to-Market Tax
 A. Arguments For the Tax 
 B. Arguments Against the Tax 

VIII. Conclusion 

I. Introduction

The United States’ Federal income taxation system has several requirements for one’s monetary gain to be taxable, one of these requirements is the realization doctrine.[3] This doctrine requires an objective identifiable event, such as a sale or other disposition of property, that creates the appropriate time to tax.[4]  As a result, the mere appreciation of property is not taxable under the federal income tax system due to the lack of a realization event.[5] If a taxpayer wants to avoid their economic gain due to appreciation from becoming subject to the federal income tax, they can simply choose to not sell the property. A common strategy employed by wealthy individuals is to allow the property to pass to another, likely a family member, at death.  When the property passes at the decedent’s death, the person acquiring the property receives a “stepped-up” basis equal to the fair market value of the asset at the time of the decedent’s death.[6] This stepped-up basis allows the property’s appreciation to avoid ever being subject to state or federal income tax.

States have become increasingly concerned with the amount of money escaping inclusion in the tax base, with revenue losses associated with the stepped-up basis rule estimated at near $50 billion in 2018.[7] Additionally, COVID-19 has negatively impacted state and local income tax revenues, with projections of declines of 7.5 percent in 2021 and 7.7 percent in 2022.[8]  Given these budgetary concerns, there is motivation for states to seek to expand the tax base.  Moreover, states are allowed to decouple their tax computation from the federal computation, allowing for them to make alterations.[9] As a result, New York has proposed a change to their state income tax law altering when unrealized appreciation and deferred income would be treated as taxable income for billionaires.

The mark-to-market tax proposed in New York would tax billionaires on the increase in value that their assets have experienced over the past calendar year, whether or not these assets are sold.[10]  An individual’s net worth would be assessed on the final calendar day of the year to determine if the taxpayer’s net assets exceed one billion dollars.[11]  Under this proposal, the assets of the taxpayer, their spouse, minor children, and trusts which the taxpayer is a beneficiary of, along with assets contributed by the taxpayer to private foundations and assets transferred by gift within the past five years would be considered in determining if the taxpayer is a billionaire.[12]  Additionally, this date would be used to determine the taxpayer’s gain or loss based on the change in value of the asset over the previous calendar year.[13]  Importantly, the basis of each individual asset would not be altered in the event of an actual sale, despite the inclusion of this appreciation in the taxpayer’s income.[14]

As a result of this proposal, the appreciation of a billionaire’s assets and property would not avoid inclusion in the tax base.  This timing change in recognizing income for billionaires from unrealized appreciation and deferred income would lead to far greater tax revenue for the state.  However, several constitutional concerns may arise from this proposal, which are likely to be raised by those in opposition of the bill, including the right to travel and equal protection.  This article will explain the mechanics of the proposed mark-to-market tax, policy behind the mark-to-market tax, complexities in administering the tax, the federal constitutional issues associated with the proposal, complications created by existing law, and the possible arguments in support and opposition of the tax.

II. The Proposed Mark-to-Market Tax

A. Mechanics of the Tax

The proposed legislation would create a tax on the unrealized appreciation of New York billionaire residents’ assets.[15]  The proposed legislation directs the State of New York to determine how much those unrealized capital gains have increased in market value since the billionaire has been a New Yorker, and then tax that increase in value at the normal income tax rate.[16]  For most of these individuals, that would mean a tax at the standard top income tax rate—8.8%—and repeat the process every year with a deemed sale.[17] Taxpayers would have the option to pay this new tax over a period of ten years with a 7.5% annual interest charge.[18]  For billionaire residents of New York for fewer than five years, the basis used to determine gain would be adjusted to the fair market value on the date that they became a resident.[19]  The tax works by determining the amount the taxpayer’s assets fair market values have increased over the prior year.  The fair market value is defined as “the price at which such asset would change hands between a willing buyer and willing seller,” both of whom are not under any pressure to complete the transaction and possess reasonable knowledge regarding the asset.[20]

The amount that the billionaire taxpayer’s assets have appreciated over the past year would be included in the taxpayer’s income for purposes of the state’s tax base.  While this may seem like a small change, if the mark-to-market tax had been in place in 2020 it is estimated that the state of New York would have raised an additional $23.2 billion.[21]  Given the budgetary concerns addressed earlier, it is apparent why New York, and likely more states in the future, are interested in moving away from the realization doctrine and towards the mark-to-market tax.  An example has been provided below to create a clearer picture of the practical effect that the mark-to-market tax will have on billionaire taxpayers.

B. New York Billionaires Taxpayer Example

Taxpayer (TP), is a billionaire resident of New York for more than five years.  TP owns several assets that have experienced substantial appreciation over the past year.  TP owns real property that has appreciated from $10 million to a fair market value of $11 million, stock of a publicly traded corporation that has appreciated from $500,000 to a fair market value of $750,000, and a second real property asset that has appreciated from $1 million to a fair market value of $5 million.  As a result, the taxpayer would include the $1 million appreciation on the first real property asset, the $250,000 appreciation from the publicly traded corporation’s stock, and the $4 million dollar appreciation from the second real property asset as income for purposes of the New York mark-to-market state income tax.  Thus, TP includes $4.25 million additional realization for state tax purposes.  Taxed at the 8.8% bracket, TP pays $374,000 in additional tax on unrealized and unmonetized gains.

Under the realization doctrine, this appreciation would not be included in the tax base until there was a sale or other disposition of the assets.  Further, the taxpayer would likely hold the property until death to have the property receive a stepped-up basis.  As a result, the asset’s appreciation would avoid taxation once it receives a stepped-up basis.  This holding tactic employed by taxpayers allows for a massive source of revenue to escape the state’s tax base, which would be alleviated by implementing a mark-to-market regime.  The mark-to-market approach targets this otherwise unrealized appreciation and implements an additional state tax.

III. Policy Behind the Mark-To-Market Tax

The main policy arguments for adopting a mark-to-market taxation system are to increase revenue, increase fairness, and that it more effectively reflects income.  The mark-to-market tax is seen as an avenue to much-needed increased revenue, as a way to curb wealth inequality, and better reflect the actual income that a taxpayer has experienced over a specified time period.  Those who support the mark-to-market tax see it as an improvement in these areas, when compared to the realization doctrine.

A. Increased Revenue Generation

The primary driver behind a mark-to-market tax, especially one focused on billionaire taxpayers, is to generate additional revenue.  Given governmental expenditures, a change in the tax system would ideally generate revenue at the same rate or a greater rate.  The mark-to-market tax can certainly maintain revenue levels, and would almost certainly result in increased revenues.[22]  This is because the appreciation of assets that once would have been exempt from inclusion in the tax base would now have to be included.  The incentives for holding property until death in order to receive a stepped-up basis will have been removed.[23]  Additionally, this would increase the market for real estate and other assets, as billionaire taxpayers would be far more willing to entertain selling assets prior to death under a mark-to-market regime.

B. Increased Fairness

A second major policy point thought to be addressed by a mark-to-market taxation is to increase fairness.  Proponents of the mark-to-market tax tend to view the realization doctrine as a major source of unfairness in the United States tax system.[24]  Those who view the realization doctrine as unfair focus on three key issues that they view as being better addressed by a mark-to-market tax: wealth inequality, vertical equity, and horizontal equity.[25]  The wealth inequality issue is thought by some to be exacerbated by the realization doctrine because there are planning opportunities that lead to the asset’s appreciation avoiding taxation.[26]  As a result, this appreciation is never taxed by the government and cannot be a part of any redistributive effort by the government.[27]  This concern would be alleviated by the New York mark-to-market proposal, as billionaires would not have the same planning opportunities that they have employed under the realization doctrine in the past.

The second and third fairness concerns relate to treating similarly situated individuals the same and treating differently situated people differently based on their differing abilities to pay.[28]  A criticism of the realization doctrine is that it violates horizontal equity by allowing individuals with the same amounts of income to face different tax implications based on whether this income is in the form of wages or from asset appreciation.[29]  This would not be the case under the New York mark-to-market system because wages and appreciation of assets would both be included in the tax base, without the need for a sale or other disposition.

On the other hand, vertical equity is violated for similar reasons, as higher income taxpayers would generally have more income from asset appreciation and lower income taxpayers would have a higher percentage of their income earned from wages.  As a result, the higher taxpayer, with likely more asset appreciation, is not taxed on this gain.[30]  Yet, the lower taxpayer, whose income is primarily earned through wages, is subject to tax liability.[31]  The mark-to-market approach would eliminate this advantage for billionaire taxpayers and treat their income earned from asset appreciation identical to the way their income from wages is treated under the realization system.

C. The Mark-to-Market Approach Better Reflects Income

Many tax scholars and commentators find that the mark-to-market approach reflects actual income better than the realization doctrine.[32]  This is because the mark-to-market approach is not limited to wages and assets that have been subject to a sale or other disposition.  As a result, the approach does a better job of showing what the taxpayer’s actual income was.  Additionally, the mark-to-market approach does not disincentivize the disposition of assets like the realization doctrine does.  This allows the taxpayer to act with less influence and pressure from tax law than the taxpayer currently experiences under the realization doctrine.[33]  This concept pertains to the “efficiency” of a tax system.  To determine whether a tax system is efficient, one should look to whether taxes “distort investment or business decisions.”[34]  Given this criteria, the mark-to-market approach would appear to be more efficient than the realization doctrine because it would not distort investment and business decisions as much.  Taxpayers are not overly incentivized to hold assets until death when the mark-to-market approach is employed.

However, there is a strong argument against the inclusion of asset appreciation in income and that the mark-to-market approach is not more efficient.  The reason for this is concerns with liquidity.  When there is a tax imposed on the mere appreciation of property, the taxpayer may be forced to sell the asset to afford the tax.[35]  This is because even though the taxpayer’s assets have experienced substantial appreciation, these assets and wealth are illiquid unless sold.  Even though the affected taxpayers under the New York proposal would be billionaires, they may not have the requisite liquidity to pay income taxes based on substantial appreciation of assets.  As a result, the mark-to-market tax would be distorting the investor’s decision and forcing them to sell assets to afford their income taxes.

IV. Complications in Administering the Mark-to-Market Tax

Despite the policy reasons advocated by those in favor of the mark-to-market tax, implementation of such a tax would be extremely complex.  The primary reason for this is the difficulty in accurately placing a value on assets to represent appreciation over the applicable time period.  This skepticism primarily concerns the inability to determine the market value of an asset without an actual sale or disposition of property.

A. Difficulty in Determining Market Value

It is important to determine the fair market value of the taxpayer’s assets annually in order to properly administer a mark-to-market tax.  However, this value can be troublesome to establish without some sort of sale or other disposition.  Further, the primary criticisms of any mark-to-market system are the issues and uncertainty of asset valuation.[36]  The success of the mark-to-market approach rests on the notion that there is an objective and knowable market value for assets.[37]  However, this is far easier said than done, leaving aside the feasibility of the undertaking, it would be costly for authorities to monitor the market and value of each billionaire taxpayer’s assets on an annual basis.[38]  The proposal states that fair market value is “the price at which such asset would change hands between a willing buyer and willing seller,” however, this value can be hard to determine when there is guesswork involved in what the willing buyer and seller would agree to.[39]

One of the supposed primary benefits of a mark-to-market system is that it more accurately represents income; however, if the valuations are inaccurate this advantage is negated.[40]  Additionally, it would be difficult for the government to ensure that taxpayers are not systematically undervaluing their assets.[41]  As a result, the policy justification of raising additional revenue could, at the very least, be diminished.  Another difficulty in properly valuing assets under the New York proposal is that the assets of a billionaire may be so expensive that there are not comparable assets that are being exchanged in the marketplace that would be helpful in determining the asset’s market value.  Additionally, as a privacy-related policy consideration, the level of disclosures required to permit the taxation of the variety of assets held by billionaires means previously privately held assets may have to be openly shared to taxing authorities and exposing such assets to cyber-attack, potential theft, or other misuse.

B. Likelihood of Disputes

Given the uncertainty in properly valuing New York billionaires’ assets, it is extremely likely that there will be challenges and disputes arising from the differences in opinion between the taxpayers and the government.  This is because many forms of wealth are difficult to value, such as personal effects and future pension rights.[42]  Additionally, the taxpayers subject to the mark-to-market taxation, billionaires, would certainly have the means to contest and fight valuations that they thought to be inaccurate.  Additionally, the billionaire taxpayers could raise these valuation challenges to bring to light the administrability issues involved with the tax and to voice their displeasure with being made subject to the tax.  New York’s billionaire taxpayers could choose to make the tax more burdensome to administer by contesting the valuations of each of their numerous assets.  These individuals lose nothing by contesting what amounts to a surprising and significant tax, whereas the State of New York could lose on expenses of collection and use of these funds through lengthy contests, administrative fees, court costs, and enforcement actions.

V. Federal Constitutional Issues

A. Right to Travel

One of the possible constitutional challenges that may be raised in opposition of the mark-to-market tax is the implications the tax will have on the right to travel.  This right has been described by the Supreme Court as a “liberty” that cannot be deprived without due process of law.[43]  Additionally, a state law implicates the right to travel when the law uses “any classification which serves to penalize exercise of that right.”[44]  In regard to the mark-to-market tax, the proposal could arguably be viewed as penalizing those who exercise their right to travel.  For instance, there are numerous unanswered double taxation issues that could arise.  If a taxpayer lives in New York while holding an appreciated asset in another state, it is possible they would have been taxed in New York for the appreciation on the asset and then taxed in the state the asset resides upon its sale or disposition.[45]  This type of double taxation issue would certainly penalize taxpayers who own appreciated assets in one state and want to or do move to New York.

More generally, there is an argument to be made that the adoption of the mark-to-market tax, even if the double taxation issue is resolved, penalizes billionaires who exercise their right to travel.  Taxpayers who would be subject to the tax will be disincentivized to move and reside in New York to avoid being subject to the new tax.  However, this argument has a distinct weakness, state laws that have drawn the Supreme Court’s ire recently involve classifying residents based on when they established residence and apportioning unequal rights based on this, “among otherwise qualified bona fide residents.”[46]

The mark-to-market tax does not do this, instead, it tries to make the effects of the tax even regardless the length of time the taxpayer has been a resident of New York.  The tax allows taxpayers who were not residents of New York for the preceding five years to adjust the basis of their assets to the fair market value of the asset on “the last day of the last tax year” before they became a New York resident.[47]  This basis adjustment would only be for purposes of the mark-to-market tax and would not apply in the event of an actual sale.[48]  This allows each of the billionaires to only be taxed on gain that their assets experience while the taxpayer is a resident of New York.

There are right to travel challenges available to those in opposition of the mark-to-market tax.  These arguments will be more persuasive if the double taxation issue is not addressed in future versions of the proposal.  However, even resolving the double taxation issue will not completely eliminate the availability and legitimacy of these challenges.

B. Equal Protection

Another avenue for opponents to challenge the proposed mark-to-market tax is through the equal protection clause.  This clause is contained in the Fourteenth Amendment to the United States Constitution, and states that no person within the United States shall be denied “within its jurisdiction the equal protection of the laws.”[49]  The courts have interpreted this clause to mean that all persons “similarly situated shall be treated alike.”[50]  In this situation, billionaires subject to the tax could make the argument that they are being deprived of equal protection of the law by being subjected to a completely different system of taxation.  Further, this is not simply a higher rate of taxation under a progressive rate system, but a complete departure from the realization doctrine for only a portion of the populace.  The argument would likely be that as a New York citizen they are similarly situated to the rest of New York taxpayers, and that being subject to a mark-to-market tax system as opposed to the realization doctrine deprives them of their right to equal protection of the laws.

On the other hand, proponents of the tax would have strong defenses to this argument based on previous decisions of the Supreme Court.  Generally, states are given “great leeway” regarding taxation when it comes to equal protection concerns.[51]  The limit to this leeway has been described as when the difference in treatment amounts to invidious discrimination or if the distinction is palpably arbitrary.[52]  Similarly, the Supreme Court has also held that legislation will be presumed valid and will be upheld so long as the classification is “rationally related to a legitimate state interest.”[53]  If the court were to simply look to whether there was a rational relation to a legitimate state interest the proposal would almost certainly pass this test.  The reason for this, as outlined earlier, is a need for increased revenue for the state of New York and this proposal would help to alleviate this issue.

When it comes to the equal protection particular to tax classification, the constitutionality can only be overcome by “explicit demonstration” that the classification is “hostile and oppressive discrimination.”[54]  This would seem to be a high bar to meet, but selectively utilizing mark-to-market taxation for only a portion of residents may be enough to meet this bar.  Opponents of the mark-to-market tax would be able to argue that billionaire taxpayers are being hostilely and oppressively discriminated against in New York by being subjected to a completely different system of taxation, which is no longer dependent on the realization doctrine and is not employed by any other state in the United States.

VI. Existing Law Complication

A. Federal Retirement Account Issues

One area of complexity for the implementation of the New York mark-to-market tax would be its interaction with retirement accounts and assets.  Commonly used retirement accounts include individual retirement accounts (IRAs) and 401k plans, which allow taxpayers to defer taxes until a later point in time, generally retirement.  Tax deferrals are beneficial to taxpayers because they allow for tax-free growth, and when the tax is incurred, the taxpayer’s earnings and taxes will likely be lower.[55]  The proposal is silent on whether or not retirement accounts and asset appreciation will also be taxed in the same manner as the asset classes explicitly listed.[56]  Further, if the unrealized appreciation of retirement assets are subject to the mark-to-market tax, where does the money come from?  Will the taxes be taken directly from the retirement accounts?  If the state does decide to tax these assets then this would certainly lower the amount of deferred income that taxpayers are allowed to carry forward.

Depending on the type of retirement account, taxpayers are normally taxed on retirement assets when they begin to withdraw from these accounts, typically upon retirement.[57]  If the New York mark-to-market tax were to tax unrealized appreciation on these assets prior to retirement, this would create a conflict with federal income tax deferral until retirement.  This is an important area that lawmakers in New York will need to consider and address in subsequent versions of the mark-to-market legislation.  There needs to be a policy decision articulated regarding retirement accounts and assets.  The most easily administrable policy decision would be to make retirement assets exempt from the mark-to-market tax, thus avoiding the conflict with federal income tax deferral.

B. State Basis and Credit Issues

The adoption of a mark-to-market tax leads to increased complexity for taxpayers in calculating the basis of their assets held in New York, as well as in states other than New York.  Each year the taxpayer’s assets would undergo a basis change, which would be necessary to calculate the appreciation over the past calendar year.  As mentioned earlier, the proposal allows for New York residents to adjust the basis of their property to the fair market value of the property on the date they became a New York resident.  This adds an increased layer of basis complexity, the taxpayer would have one basis for purposes of the mark-to-market tax, the fair market value on first day as a New York resident, and a second basis for purposes of the New York income tax.[58]  This would be the case so that taxpayers could not move to New York, accept a heightened adjusted basis and then sell the asset to minimize gain.  The complexity increases for any New York billionaire resident’s assets outside the state of New York.  The taxpayer would have an adjusted basis in New York reflecting either the fair market value at the beginning of their residency or the inclusion of unrealized appreciation already taxed. Yet, the asset’s basis in the state which it is held would remain unchanged because there would not be an adjustment for imposition of the mark-to-market tax as there is in New York.

Additionally, the mark-to-market tax proposal creates a number of complexities when it comes to state basis and credit issues, especially as it pertains to the proposal’s interaction with other state income tax systems.  As discussed earlier, the issue of double taxation is a critical issue that goes largely unaddressed in New York’s proposal.  The only portion of the proposal addressing this issue simply allows for a credit where a taxpayer has already been taxed on the gain by a state or jurisdiction they were a resident of prior to becoming a resident of New York.[59]  However, this provision is of little value, because the mark-to-market tax in New York would be assessed before any duplicative tax utilizing the realization doctrine.[60]  As a result, there is a distinct need for the proposal to be amended to address this issue.

There are several options that New York could implement to curtail this issue, including: offering a credit for duplicative taxes incurred, offering a tax refund for duplicative taxes incurred after the mark-to-market tax, or they could hope that other states implement a mark-to-market style income taxation system.  Currently, the New York mark-to-market proposal lacks a solution for this credit issue and this is something that needs to be addressed in the next version of the proposal.

VII. Arguments For and Against New York’s mark-to-Market Tax

There are sure to be strong opinions on both sides of the issue of whether to support or oppose New York’s mark-to-market tax proposal.  The proponents of the tax will likely argue that it promotes larger policy goals better than the realization doctrine, raises much needed additional revenue, and that complexity is unavoidable in any tax system and is minimized by the proposal.  On the other hand, those in opposition of the tax will likely focus on the difficulties associated with valuation, the constitutional challenges mentioned above, and the advantages of sticking to the realization doctrine.

A. Arguments For the Tax

Proponents of the mark-to-market will likely argue that the proposal is superior to the realization doctrine when it comes to fairness, efficiency, and complexity.  As was discussed earlier, the realization doctrine is viewed by some as violating notions of fairness by treating those similarly situated differently and by not treating those who can afford to incur greater tax liability differently from those who cannot.[61]  Further, the realization doctrine influences the investment decision of taxpayers by incentivizing that they hold the asset until death so they can receive a stepped-up basis.  The mark-to-market tax eliminates this specific influence on investment and business decisions.

Proponents of the tax also argue that the proposal will also alleviate complexity created by realization doctrine.  The proposal would eliminate the necessity of keeping records regarding basis and depreciation.[62]  Additionally, complex realization based rules such as capitalization and depreciation could possibly be eliminated.[63]  A common political obstacle for mark-to-market proposals is distinguishing which items should be included in the mark-to-market regime.[64]

However, the proposal would not be in danger from this criticism as the proposal would include all the assets of New York billionaires being marked to market value.  Undoubtedly, opponents of the proposal will vehemently challenge the assertion that a mark-to-market system is less complex.  The complexity argument will likely be championed by both sides, it would be hard to implement a comprehensive tax system without a level of complexity.

B. Arguments Against the Tax

On the other hand, opponents of the mark-to-market tax will surely bring up the issues discussed earlier pertaining to valuation of taxpayer assets.  The difficulties associated with valuation could serve to undermine the policy advantages that the mark-to-market tax is argued to provide, increased revenue generation and more accurate reflection of income.  Similarly, opponents of the proposal will claim that the tax is unconstitutional and violates the right to travel and equal protection under the Constitution.

Moreover, opponents would stress the advantages of sticking with the realization doctrine and treating billionaire taxpayers like the remaining taxpayers.  Creating an entirely new system of taxation for a segment of the tax base will add increased complexity for the government.  Regardless of which system is ultimately less complex, the government would have to be able to administer both tax systems simultaneously to different portions of the population.  Additionally, critics will refute the purported policy advantages of the mark-to-market tax.  It is arguable that the mark-to-market tax could be just as inefficient as the realization doctrine, as taxpayers may have to sell assets to ensure they have sufficient liquidity to pay their income tax liabilities.

VIII. Conclusion

New York’s proposed mark-to-market tax would be a stark shift away from the realization doctrine employed by every other state as well as the federal income tax system.  The mark-to-market tax would provide an avenue to increase state revenue by bringing unrealized appreciation into the tax base that would normally avoid inclusion.  Additionally, the proposal would eliminate the effectiveness of taxpayers holding assets until death, allowing their decedents to receive a stepped-up basis.  This new approach to taxation would raise significant revenue for the state of New York, which is needed in the wake of COVID-19.  Additionally, proponents of the tax will view the tax as an improvement over the realization doctrine when it comes to fairness, efficiency, and as a reflection of actual income.

However, there are several possible challenges that opponents will raise in opposition of the tax, including possible violations of the right to travel and equal protection clause.  There are also legitimate concerns about the difficulties in valuing the assets of New York’s billionaire taxpayers.  Without a sale or comparable transaction, settling on a fair value to determine the annual appreciation of an asset will likely lead to billionaire taxpayers disputing the valuation reached by the government.  This issue could also lead to dispute in the inverse, with the government contesting taxpayer valuations as undervaluing their assets.  It is also disputed whether a mark-to-market tax is more efficient than a realization-based system, and this is because of liquidity issues and their possible effect on investment decisions.  Additionally, implementation of the mark-to-market tax would create several complications with existing law.  An unaddressed area of concern for the proposal is how it will treat taxpayer retirement status that enjoys federal income tax deferral.

The New York proposal creates additional complexity in calculating the basis of taxpayer’s assets that could lead to confusion for taxpayers.  Lastly, the proposal is noticeably lacking in solutions for potential double taxation issues that taxpayers will face, and this is an area that could be addressed through giving tax credits or refunds for duplicative taxes.  These concerns will need to be addressed in subsequent versions of the tax in order to ease concerns of those in opposition, and to enhance the likelihood of the legislation passing.

Article authored by:
Beckett Cantley and Geoffrey Dietrich

[1] Prof. Beckett Cantley (University of California, Berkley, B.A. 1989; Southwestern University School of Law, J.D. cum laude 1995; and University of Florida, College of Law, LL.M. in Taxation, 1997) teaches International Taxation at Northeastern University and is a shareholder in Cantley Dietrich, P.C. Prof. Cantley would like to thank Melissa Cantley and his law clerk, Trey Proffitt, for their contributions to this article.

[2] Geoffrey Dietrich, Esq. (United States Military Academy at West Point, B.S. 2000; Brigham Young University Law School, J.D. 2008) is a shareholder in Cantley Dietrich, P.C.

[3] Comm'r of Internal Revenue v. Glenshaw Glass Co., 348 U.S. 426, 431 (1955).

[4] See I.R.C. § 1001(b) (2018).

[5] See id.

[6] See id. § 1014(a)(1).

[7] Jay A. Soled et al., Re-Assessing the Costs of the Stepped-Up Tax Basis Rule 2 (Tul. Econ. Working Paper Series, Working Paper No. 1904, 2019).

[8] Louise Sheiner & Sophia Campbell, How Much is COVID-19 Hurting State and Local Revenues?, Brookings: The Hutchins Center Explains (Sept. 24, 2020), [].

[9] Henry Ordower, New York’s Proposed Mark-to-Market Tax Decouples from Federal Tax, 99 Tax Notes State 794, 796 (2021).

[10] Robert Frank, Billionaires in New York Could Pay $5.5 Billion a Year Under New Tax, CNBC: Wealth (July 21, 2020), [].

[11] S. 4482, 2021 Reg. Sess. (N.Y. 2021).

[12] Id.

[13] Id.

[14] Ordower, supra note 9, at 798.

[15] David Gamage et al., The NY Billionaire Mark-to-Market Tax Act: Revenue, Economic, and Constitutional Analysis, Ind. Legal Stud. Res. Paper Forthcoming (forthcoming 2021).

[16] S. 4482, 2021 Reg. Sess. (N.Y. 2021).

[17] Id.

[18] Gamage, supra note 15.

[19] Ordower, supra note 9, at 798.

[20] S. 4482, 2021 Reg. Sess. (N.Y. 2021).

[21] Gamage, supra note 15.

[22] Timothy Hurley, “Robbing” the Rich to Give to the Poor: Abolishing Realization and Adopting Mark-to-Market Taxation, 25 T.M. Cooley L. Rev. 529, 544 (2008).

[23] See id. at 547.

[24] Clarissa Potter, Mark-to-Market Taxation as the Way to Save the Income Tax – A Former Administrator’s View, 33 Val. U.L. Rev. 879, 879 (1999).

[25] Charles Delmotte & Nick Cowen, The Mirage of Mark-to-Market: Distributive Justice and Alternatives to Capital Taxation, 24 Critical Rev. of Int’l Soc. & Pol. Phil. 1, 3 (July 2019); Hurley, supra note 22, at 547.

[26] Delmotte and Cowen, supra note 25, at 5.

[27] See id.

[28] Hurley, supra note 22, at 547.

[29] Potter, supra note 24, at 884.

[30] Hurley, supra note 22, at 548.

[31] Id.

[32] Samuel D. Brunson, Taxing Investors on a Mark-to-Market Basis, 43 Loy. L.A. L. Rev. 507, 513 (2010).

[33] Id.

[34] Christopher Hanna, Tax Policy in a Nutshell, 39 (1st ed. 2018).

[35] See Brunson, supra note 32, at 515–16.

[36] David S. Miller, A Progressive System of Mark-to-Market Taxation, Tax Notes 1047, 1073 (Nov. 21, 2005).

[37] Delmotte and Cowen, supra note 25, at 6.

[38] Id. at 7.

[39] See S. 4482, 2021 Reg. Sess. (N.Y. 2021).

[40] Potter, supra note 24, at 896.

[41] Id. at 897.

[42] Delmotte and Cowen, supra note 25, at 7.

[43] Kent v. Dulles, 357 U.S. 116, 125 (1958).

[44] Att'y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 903 (1986).

[45] Ordower, supra note 9, at 799–800.

[46] Att'y Gen. of N.Y., 476 U.S. at 903.

[47] S. 4482, 2021 Reg. Sess. (N.Y. 2021).

[48] Id.

[49] U.S. Const. amend. XIV, § 1.

[50] City of Cleburne, Tex. v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

[51] Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 360 (1973).

[52] Id. at 359–60.

[53] City of Cleburne, Tex., 473 U.S. at 440.

[54] Lehnhausen, 410 U.S. at 364.

[55] Michael Rubin, Advantages of Tax Deferred Plans, The Balance: Retirement Planning (Feb. 18, 2021), [].

[56] See S. 4482, 2021 Reg. Sess. (N.Y. 2021).

[57] Rubin, supra note 55.

[58] See S. 4482, 2021 Reg. Sess. (N.Y. 2021).

[59] Id.

[60] See Ordower, supra note 9, at 796.

[61] Hurley, supra note 22, at 548.

[62] Id. at 551.

[63] Id.

[64] Marie Sapirie, A Time of Renewal for Mark-to-Market, 171 Tax Notes Fed. 174, 175 (Apr. 12, 2021).

SSRN Top Ten download list for PSN State Politics Policy

Apple v. European Commission: Losing the War on Corporate International Transfer Pricing


Cantley Dietrich

Apple v. European Commission: Losing the War on Corporate International Transfer Pricing

* Prof. Beckett Cantley (University of California, Berkeley, B.A. 1989; Southwestern University School of Law, J.D. cum laude 1995; and University of Florida, College of Law, LL.M. in Taxation, 1997), teaches International Taxation at Northeastern University and is a shareholder in Cantley Dietrich, P.C. Prof. Cantley would like to thank Melissa Cantley and his law clerk, Austin Schley, for their contributions to this article.

** Geoffrey Dietrich, Esq. (United States Military Academy at West Point, B.S. 2000; Brigham Young University Law School, J.D. 2008) is a shareholder in Cantley Dietrich, P.C.

[1] . Joined Cases T-778/16 & T-892/16, Apple Sales Int’l v. Eur. Comm’n, ECLI:EU:T:2020:338 ¶¶ 2, 23 (July 15, 2020).

[2] . Id. ¶¶ 247, 249, 295, 309, 351, 373.

[3] . Stefano Micossi & Paola Parascandolo, The Taxation of Multinational Enterprises in the European Union, Ctr. for Eur. Pol’y Stud. Pol’y Brief, 1, No. 203 (Feb. 4, 2010).

[4] . Id. at 1, 3.

[5] . Sijbren Cnossen, Corporation Taxes in the European Union: Slowly Moving Toward Comprehensive Business Income Taxation?, 25 Int’l Tax & Pub. Fin. 808, 810 (2017).

[6] . Id. at 816.

[7] . Id. at 815.

[8] . Dirk Verbeken, Fact Sheets on the European Union: General Tax Policy, Eur. Parl. 1-2 (last updated May 2021).

[9] . Id.

[10] . Id.

[11] . Id.

[12] . David G. Chamberlain, Apple, State Aid, and Arm’s Length: EU General Court’s Failure of Imagination, Tax Notes Today Fed., 1179, 1180 (Sept. 16, 2020), The European Commission is the executive wing of the European Union, and, among other things, is in charge of enforcing the European Union’s laws. European Commission, Eur. Union , (last updated July 5, 2020).

[13] . Consolidated Version of the Treaty on the Functioning of the European Union art. 107, May 9, 2008, 2008 O.J. (C 115) 47, 91 [hereinafter TFEU].

[14] . Chamberlain, supra note 12, at 1184.

[15] . Id.

[16] . Id.

[17] . Joined Cases T-778/16 & T-892/16, Apple Sales Int’l v. Eur. Comm’n, ECLI:EU:T:2020:338, ¶¶ 1–3 (July 15, 2020).

[18] Id.

[19] . Id. ASI is responsible for “carrying out procurement, sales and distribution activities associated with the sale of Apple-branded products to related parties and third-party customers in the regions covering Europe, the Middle East, India, and Africa (EMEIA) and the Asia-Pacific region (APAC).” Id. ¶ 9. AOE “is responsible for the manufacture and assembly of a specialized range of computer products in Ireland . . .which it supplies to related parties for the EMEIA region.” Id. ¶ 10.

[20] . Joined Cases T-778/16 & T-892/16, Apple Sales Int’l v. Eur. Comm’n, ECLI:EU:T:2020:338, ¶ 11 (July 15, 2020).

[21] . Id.

[22] Id. ¶ 18.

[23] . Id. ¶ 19.

[24] . Id. ¶ 27.

[25] . Id. ¶ 88.

[26] . Joined Cases T-778/16 & T-892/16, Apple Sales Int’l v. Eur. Comm’n, ECLI:EU:T:2020:338, ¶ 91 (July 15, 2020).

[27] . Id.

[28] . Id. ¶ 103.

[29] . Id.

[30] . Id.

[31] . Id. ¶ 129.

[32] . Joined Cases T-778/16 & T-892/16, Apple Sales Int’l v. Eur. Comm’n, ECLI:EU:T:2020:338, ¶ 143 (July 15, 2020).

[33] . Id. ¶¶ 169–71.

[34] . Id.

[35] . Id. ¶ 179.

[36] . Id.

[37] . Id. ¶ 189.

[38] . Joined Cases T-778/16 & T-892/16, Apple Sales Int’l v. Eur. Comm’n, ECLI:EU:T:2020:338, ¶ 231 (July 15, 2020).

[39] . Id. ¶ 26.

[40] . Id. ¶¶ 26–27.

[41] . Id. ¶¶ 32–47.

[42] Id. ¶ 32 (The reference system in State aid cases refers to “the baseline against which the illegal subsidy (or the ‘tax advantage’ in EU parlance) can be measured.); see also Stephen Daly & Ruth Mason, State Aid: The General Court Decision in Apple, 99 Tax Notes Int’l 1317 (2020), (explaining that the reference system in state aid cases refers to “the baseline against which the illegal subsidy (or the ‘tax advantage’ in EU parlance) can be measured”).

[43] . Joined Cases T-778/16 & T-892/16, Apple Sales Int’l v. Eur. Comm’n, ECLI:EU:T:2020:338, ¶ 33 (July 15, 2020).

[44] . Id. ¶ 34 (According to the Commission, the reasoning behind the arm’s length principle is described as, “principle was intended to ensure that intra-group transactions be treated, for tax purposes, in the same way as those carried out between non-integrated stand-alone companies, so as to avoid unequal treatment of companies in a similar factual and legal situation, having regard to the objective of such a system, which was to tax the profits of all companies falling within its fiscal jurisdiction.”).

[45] . Id. ¶ 37.

[46] . Id. ¶ 39.

[47] . Id.

[48] . Id. ¶ 41.

[49] . Joined Cases T-778/16 & T-892/16, Apple Sales Int’l v. Eur. Comm’n, ECLI:EU:T:2020:338, ¶ 45 (July 15, 2020).

[50] . See generally id.

[51] . Id. ¶ 101.

[52] . Id. ¶ 105.

[53] . Id. ¶ 106.

[54] . Id. ¶ 108.

[55] . Joined Cases T-778/16 & T-892/16, Apple Sales Int’l v. Eur. Comm’n, ECLI:EU:T:2020:338, ¶ 108 (July 15, 2020).

[56] . Id. ¶ 110.

[57] . Id. ¶ 111.

[58] . Id. ¶ 122.

[59] . Id. ¶ 150.

[60] . Id. ¶¶ 152–63.

[61] . Joined Cases T-778/16 & T-892/16, Apple Sales Int’l v. Eur. Comm’n, ECLI:EU:T:2020:338, ¶ 175 (July 15, 2020).

[62] . Id.

[63] . Id. ¶ 180.

[64] . Id. ¶ 181.

[65] . Id. ¶ 182.

[66] . Id. ¶ 184.

[67] . Joined Cases T-778/16 & T-892/16, Apple Sales Int’l v. Eur. Comm’n, ECLI:EU:T:2020:338, ¶ 186 (July 15, 2020).

[68] . Id.

[69] . Id. ¶ 187.

[70] . Id. ¶ 196.

[71] . Id. ¶ 215.

[72] . Id. ¶ 225.

[73] . Joined Cases T-778/16 & T-892/16, Apple Sales Int’l v. Eur. Comm’n, ECLI:EU:T:2020:338, ¶ 229 (July 15, 2020).

[74] . Id. ¶ 240.

[75] . Id. ¶ 242.

[76] . Id.

[77] . Id. ¶ 245.

[78] . Id. ¶ 249.

[79] . Joined Cases T-778/16 & T-892/16, Apple Sales Int’l v. Eur. Comm’n, ECLI:EU:T:2020:338, ¶¶ 251–311 (July 15, 2020).

[80] . Id. ¶ 310.

[81] . Id.

[82] . Id. ¶ 333.

[83] . Id. ¶ 505.

[84] . Leonie Carter, Commission Lays Out Arguments in Appeal of Apple Tax Case, Politico (Feb. 1, 2021, 2:28 PM).

[85] . Id.

[86] . Id.

[87] See Robert Goulder, Why the European Commission Must Appeal the Apple Decision, 99 Tax Notes Int’l 973 (Aug. 17, 2020),; see also Chamberlain, supra note 12.

[88] . Goulder, supra note 87, at 973.

[89] . Id.

[90] . Id.

[91] . Id.

[92] . Id.

[93] . Robert Goulder, Why the European Commission Must Appeal the Apple Decision, 99 Tax Notes Int’l 973 (Aug. 17, 2020),

[94] . Id.

[95] . Chamberlain, supra note 12, at 1180.

[96] . Id. at 1189.

[97] . Id. at 1180.

[98] . Mark Beasley et al., Make Tax Planning a Part of Your Company’s Risk Management Strategy, Harv. Bus. Rev . (Nov. 13, 2020),

[99] . Chamberlain, supra note 12, at 1189.

[100] . Joined Cases T-755/15 & T-759/15, Grand Duchy of Luxembourg v. Comm’n, ECLI:EU:T:2019:670, ¶ 1 (Sept. 24, 2019).

[101] . Id.

[102] The Fiat & Starbucks State Aid Cases: The Arm’s Length Principle, a New Tool to Challenge (But Also Defend) Transfer Pricing Rulings in Illegal State Aid Investigations?, Eversheds Sutherland (Oct. 14, 2019), [hereinafter Fiat & Starbucks].

[103] . Id.

[104] . Sara White, Starbucks Wins €30m Case Over Disputed Tax Bill, Accountancy Daily (Sept. 24, 2019),

[105] . Fiat & Starbuckssupra note 102.

[106] . Id.

[107] . Id.

[108] . Frans Vanistendael, Apple: Why the EU Needs a Common Corporate Income Tax, 99 Tax Notes Int’l 451 (July 27, 2020),

[109] . See id.

[110] . Id.

[111] . See id.

[112] . Id.

[113] . Robert Goulder, Amazon and the State Aid Doctrine: Unchecked Mission Creep, 1 02 Tax Notes Int’l 1571 (June 14, 2021),

[114] . Id.

[115] . Ryan Finley & Kiarra M. Strocko, Amazon and Engie Cast Doubt On State Aid Enforcement Approach, 102 Tax Notes Int’l 874, 874 (May 17, 2021),

[116] . Id. at 875.

[117] . Id. at 875–76.

[118] . Goulder, supra note 113, at 1571.

[119] . Chamberlain, supra note 12, at 1179.

[120] . Id. at 1179–80.

[121] . Id at 1181.

[122] . Id. at 1182.

[123] . Id.

[124] . Id.

[125] See Stephanie Soong Johnston, Crunch Time: What the Apple Decision Means for Global Tax Reform, Tax Notes Today Int’l , 5 (July 28, 2020),

[126] . Id. at 1–2.

[127] . Id. at 5.

[128] . Id.

[129] . Id. at 6.

[130] . Id. at 1.

Reading Tea Leaves — What Might Happen with the IRS


Reading Tea Leaves What Might Happen with the IRS - Cantley Dietrich

Reading Tea Leaves What Might Happen with the IRS - Cantley Dietrich

Article Authored By Beckett Cantley and Geoffrey Dietrich

As of early January 2022, President Biden’s massive $1.8+trillion “Build Back Better” Bill (“BBB”) was declared dead as a single piece of legislation. While barely passing through the House of Representatives in a 220-213 vote in November, the President’s multiple trips to Capitol Hill and threats across the Senate by various leaders were unable to sway Sen. Joe Manchin (D-WVa.) to vote for the BBB. Sen. Manchin’s vote was necessary to have the BBB Senate vote reach 50-50, which would have allowed Vice President Harris to break the tie. Tucked away inside every version of the BBB was an $80 billion budgetary increase over ten years for the IRS.  Every year, the bureaucracy most despised by the American taxpayer would receive an additional $8 billion in funding.

The Starvation of the IRS

The IRS has been in a budgetary drought for over a decade.  The IRS budget absorbed a twenty percent (20%) cut (adjusting for inflation) since 2010.  IRS funding has not been increased at a proportionate rate to keep up with even then-moderate inflation, much less the inflation we are seeing today.

In its’ report to Congress, the Taxpayer Advocate Service listed the “most serious problems encountered by Taxpayers” in dealing with the IRS.  Said problems included but were not limited to: (1) processing and refund delays; (2) lack of sufficient and highly trained employees; (3) significant challenges reaching an IRS representative for either telephone or in-person services; and (4) lack of proactive transparency (See 2021 Annual Report to Congress, Taxpayer Advocate Service (January 2022)).

The individual income tax return filing season began January 24 and ends April 18, with neither Treasury nor the IRS having any illusion it will go smoothly.  There are no plans to extend the return filing closing date at this time, Treasury officials said on a January 10 call with reporters. Going into it, the administration is anticipating challenges.

A preexisting backlog of tax returns, with millions more in unprocessed returns than in years past, combined with staffing and logistical challenges, are expected to make for an especially frustrating filing season this year for both taxpayers and tax professionals, the officials said. That means that the IRS simply doesn’t have enough resources to provide adequate service or enforcement, they said.

(See Treasury, IRS Set Filing Season Kickoff for January 24, Tax Notes (January 11, 2022)).

This backlog is, in a good year, approximately 1-2 million returns.  Not an insignificant number by any calculus, but going into 2022, there are nearly 35 million unprocessed returns.  That is an astounding figure.  While recognizing that not every American will file a return, that number does represent ten percent (10%) of the population of America if every person filed a return.  What that really represents is a catastrophic backlog of returns that will likely never see the light of day.  To ease the process for both taxpayers and the IRS, officials advised taxpayers to avoid paper if possible, recommending that they file tax returns electronically and use direct deposit or pay taxes owed electronically.

Overall, tax practitioner patience is running out while taxpayer anxiety is growing.  President of Padgett Business Services, Roger Harris, remarked, “The excuse of COVID is about to run out [for lagging IRS services]. It’s already run out for a lot of people.”  Like the rest of the federal government, the IRS is operating on a continuing resolution which delays programs and improvements until the middle of the agency’s fiscal year (See A Look Ahead: In Battle of Wills, Will Congress Fund? Will IRS Reform?, Tax Notes (Dec. 27, 2021)). So, without any new funding and operating on last year’s budget, no change will really be possible until at least February, a less than ideal time to throw new agents, phone representatives, and auditors into the fire.

IRS Facing Off with an Angry Congress

As far back as 2019, the IRS has struggled with its optics.  A ProPublica report released May 30, 2019, found that the IRS audits the poorest Americans at approximately the same rate as the top 1% income earners (See Paul Kiel, It’s Getting Worse: The IRS Now Audits Poor Americans at About the Same Rate as the Top 1%). Recipients of the Earned Income Tax Credit (“EITC”) were audited at a higher rate than all but the richest taxpayers.

The most likely driver for auditing EITC issues is the ease of execution.  Audits of EITC recipients are largely automated and less complicated.  Conversely, the wealthiest Americans—think the billionaires we love to malign in the media—have teams of accountants and money managers that require a team of trained investigators to understand and attack the structures and documentation.  Every year, the IRS loses its trained auditors to retirement.  When subject matter experts disappear from the ranks, they are rarely replaced by similarly qualified persons.  These complicated audits require individual attention and in-person meetings—something the IRS is currently ill-equipped to handle.

Adding to the scrutiny, taxpayers have increasingly turned to their representatives in the House and Senate for assistance solving problems with the IRS.  From 2017-2019, members of Congress requested assistance from the Taxpayer Advocate approximately 10,000 times in a year.  In 2021, that number was 66,453 (See Lawmakers Report Surge in Requests for Help With Unresponsive IRS, Tax Notes (January 14, 2021).  A smaller work force, underfunded and technologically behind, dealing with six times as many calls just to the Taxpayer Advocate.  There were nearly 140 million calls to the IRS itself in 2021.

In typical political fashion, each political party is blaming someone on the other side of the aisle for the problems faced today.  Congressional Republicans have sent a letter to Commissioner of the IRS Chuck Rettig noting that righting the ship of the agency may require “significant tradeoffs” to “meaningfully reduce the backlog” (See House Ways & Means Committee, Letter to Commissioner Rettig (January 19, 2022)). Further advising that the service should take an “all hands on deck” approach to minimize the backlog and prepare for the current year’s filing season.  They also note that, despite the pleas of poverty, the IRS received over $1.4 billion in unobligated supplementary funds from Congress in 2021.

Possibility of a BBB Revival? 

It appears that the Biden administration is still seeking to enact a few provisions from the BBB, even though the larger BBB proposed legislation has been defeated.  On a January 25 2022 virtual meeting of the N.Y. State Bar Association Tax Section, Treasury Assistant Secretary for Tax Policy Lily Batchelder said the $80 billion boost in IRS funding over ten (10) years is among the items intended to be resurrected.  “The administration’s Build Back Better package has faced many twists and turns in its path to enactment,” Batchelder acknowledged. “Having worked in Congress, I can say this is true of every major — and minor — piece of legislation” (See Hope Springs Eternal for Some of Biden’s Tax Priorities, Tax Notes (January 26, 2022)). Batchelder previously served as chief tax counsel for the Senate Finance Committee from 2010 through 2014.  He stated that the Biden Administration remains “confident that many of the top priorities will ultimately be enacted,” including the increase in IRS funding.

House Majority Leader Steny H. Hoyer (D-Md.) has also sounded upbeat on passage of some of the items, saying in a January 25 live interview with Politico that “[y]ou pass what you can pass, and then in future years, future Congresses, you try to improve. And so I’m optimistic that we’re going to pass a significant, very positive for the American people, Build Back Better bill”.  Jorge E. Castro of Miller & Chevalier Chtd., a former House and Senate Democratic tax staffer, told Tax Notes that he thinks a robust BBB package still has a possibility of enactment this year, but the next few weeks will be critical.

Whatever is included in a scaled back BBB will ultimately be determined by moderate members of the House and Senate, Castro said. Lawmakers like Sens. Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.) have shown at least some willingness to support revenue-raising proposals, suggesting IRS funding reforms remain on the table, he added.  Still, the IRS funding provision is intended to offset the BBB spending provisions, Castro continued. “Whatever those spending provisions are, I think that’s going to determine what the scope of the revenue raisers is going to be,” he said.

That being said, 2022 is an election year.  The likelihood is small that the Democratic majority in the House and their effective control of the Senate will remain after the 2022 elections.  President Biden’s unpopularity continues to plummet, so he will be of little assistance to his congressional allies.  Passing pro-IRS legislation is difficult when a political party is popular, but undertaking it in this environment may be devastating to congressional Democrat Party members running in red and purple states.  Recently, Democrat Party members released press statements desperately requesting their retiring members continue to work on the Biden Administration agenda.  We will see how effective these requests are to Democrat Party members who may be looking for new employment in 2023.

Tea Leaves. Divining the Unknowable.

Here we gaze into the hazy crystal ball of the future, pour out the tea and divine meaning from the leaves left, and shake our chicken bones and cast them on ground searching for answers.  We begin with what we know:

  • The IRS has been tragically underfunded for over a decade and, despite cash infusions, pleads continual poverty.
  • During this same season, more than 17% of the IRS workforce has retired or left for other pastures and hiring is down due to a weak job market and lack of applicants.[1]
  • The hoped-for $80 billion of BBB money meant to rescue the IRS may not materialize.
  • There are at least 16 million individual returns outstanding and a similar number of business
  • The Service faces increasingly antagonistic requests from Congress regarding: (1) customer service; (2) failures to provide accurate tax processing to the lowest income brackets who—historically—rely most on tax refunds; and (3) aggressive stances toward audits of wealthy individuals while a historically large backlog prevent even basic services.

What does this mean?  What do the tea leaves tell us?  As is often the case with divination, we may see what we want to see.  We may also guess completely wrong.  With those carefully laid disclaimers, we think that if no BBB money is forthcoming, continued pressures from Congress will likely divert new hires away from audit and toward basic customer service positions like telephone assistance and processing. Typically, one supervisor is needed for four telephone agents.  The IRS will likely have to triage and with new hires have a 1:8 ratio or greater.  This could result in slower outcomes or mistakes but should increase the available agents to take calls and at least ease some of the burden.

There is a distinct possibility things get worse before they get better.  Could the IRS put a “pin” in prior tax years and just set sights on the future?  While possible, certain tax years or risks or demographics may find themselves “outside” any silo shutting down prior tax years.  The IRS will need significant work and transparency in any determination to reduce or even delay collections activity.  Some of these possibilities may result in more paperwork, filings, requests, and delay than just pulling on the big kid boots and mucking through.

[1] IRS Letter to Senator Elizabeth Warren, August 27, 2021, pp. 10-11.

Does a Tax Return Filed in the United States Virgin Islands (“USVI”) Start the IRS Statute of Limitations?


The Internal Revenue Code (“IRC”) § 6662(a) permits the IRS to impose a twenty-percent (20%) accuracy-related penalty to an underpayment of tax, and there are several different defenses to this penalty depending on the facts of the case and the reason for the penalty. One of the most common accuracy-related penalties is the negligence penalty. Although there are multiple different reasons for the application of an accuracy-related penalty, only one penalty may be applied for each understatement.


Wells Fargo v. US: A Potential Beginning of The End of The Objective Reasonable Basis Tax Penalty Defense


The Internal Revenue Code (“IRC”) § 6662(a) permits the IRS to impose a twenty-percent (20%) accuracy-related penalty to an underpayment of tax, and there are several different defenses to this penalty depending on the facts of the case and the reason for the penalty. One of the most common accuracy-related penalties is the negligence penalty. Although there are multiple different reasons for the application of an accuracy-related penalty, only one penalty may be applied for each understatement. If a taxpayer faces the negligence penalty, one common defense is that the taxpayer’s return position has a reasonable basis under the relevant authorities. Until recently, most courts simply proceeded through a discussion on whether the authorities supported the taxpayer’s return position, and did not even reach whether the taxpayer actually relied on relevant authorities when forming a return position. However, over the past few years, several courts have begun to require a subjective actual reliance component to the reasonable basis standard, in addition to the other requirements described under the regulations. This article explores these concepts more in detail in six parts.


How Soon Is Now: Estate of Moore & the Unraveling of Deathbed Estate Planning


How Soon Is Now: Estate of Moore & the Unraveling of Deathbed Estate Planning

Beckett G. Cantley [1]
Geoffrey C. Dietrich [2]

How Soon Is Now: Estate of Moore & the Unraveling of Deathbed Estate Planning

On April 7, 2020 the U.S. Tax Court ruled in Estate of Moore v. Commissioner, T.C. Memo. 2020-40, that certain deathbed transfers should be includible in the decedent’s estate for United States Federal Estate Tax (“estate tax”) purposes. The court applied Internal Revenue Code (“I.R.C.”) § 2036 to the transfers due to the decedent’s continued interests in the transferred property. The Tax Court stated that I.R.C. § 2036 creates “a general rule that brings back all property that a decedent transfers before he dies, subject to two exceptions.” [3] The first exception is for bona fide sales for full and adequate consideration. The second exception is for “any property that [the decedent] transferred in which he did not keep a right to possession, enjoyment, or rights to the issue of the transferred property.” [4] The Tax Court stated that the first exception depends on the transferor’s motivations, and that the decedent’s actions made it clear there was no bona fide sale. As a result, the Tax Court determined that I.R.C. § 2036(a)(1) applied to the transfer.

Estate of Moore is the latest in a line of cases in which taxpayers made deathbed transfers close to the date of death and the IRS successfully argued that the transferred property is includible in the decedent’s gross estate. In Estate of Bongard v. Commissioner, 124 T.C. 95 (2005), the Tax Court created a three-part test to determine whether I.R.C. § 2036 pulls property back into a decedent’s estate.

In Estate of Strangi v. Commissioner, T.C. Memo. 2003-145, aff’d 417 F.3d 468 (5th Cir. 2005), the Tax Court provided additional guidance for how the court interprets I.R.C. § 2036(a)(1).

In Estate of Nancy H. Powell v. Commissioner, 148 T.C. No. 18 (2017), the court builds on the rationale established by Strangi, but ultimately invokes I.R.C. § 2036(a)(2) to include the transferred assets in decedent’s gross estate. This article: (1) provides an overview of deathbed transfers case law; (2) describes typical such deathbed transfers; (3) outlines the I.R.C. § 2036 statute; (4) discusses the main seminal cases in the area of deathbed transfers, including Estate of Bongard, Estate of StrangiEstate of Powell, and Estate of Moore; (5) synthesizes the case law on I.R.C. § 2036 and analyzers policy considerations regarding such law; and (6) concludes with a summary of the article’s findings.

I. Introduction: Death and Taxes

The only thing more inevitable than taxes and death … is taxes on death. When an individual dies, the person is taxed on the right to transfer property at death under the estate tax. [5] The tax is assessed against the individual’s “gross estate,” which consists of the fair market value of all property and certain interests the person owned at the time of death. [6] Once the gross estate is calculated, certain deductions are applied to arrive at the “taxable estate.” [7] Added to the taxable estate is the value of lifetime gifts subject to the United States Federal Gift Tax (“gift tax”). [8] Instead of being a tax on the transfer of property at death, the gift tax is a tax on an individual’s inter vivos transfer of property where the individual receives nothing, or less than full value, in return. [9] After adding the value of lifetime gifts to the taxable estate, the estate tax is computed. Finally, the tax is reduced by the available Unified Credit. [10]

Despite I.R.C. § 2001(a) imposing the estate tax on the taxable estate of every decedent who is a citizen or resident of the United States, [11] very few people end up paying any tax. Out of the 2.8 million people expected to die in 2020, it is estimated that the estates of only 1,900 people will be taxable—less than 0.1% of decedents. [12] The major reason for this is the Unified Credit. After a series of increases, [13] in 2020, a decedent can exclude up to $11,580,000 from his or her taxable estate before he or she must pay any federal estate and gift tax. [14] While most estates fall within the Unified Credit amount, [15] for those that exceed it, the tax consequences are significant. The current estate tax rate is 40%. [16] Thus, for every $1,000,000 included in the taxable estate, the tax bill rises by $400,000.

With such large amounts of money at stake, it is easy to see why high-net-worth individuals engage in estate planning to reduce estate and gift taxes. While many techniques are used to reduce estate and gift taxes, they center on transferring property out of an individual’s estate prior to death. Because the timing of death is uncertain, the earlier individuals plan their estates, the higher the chance their estate plan will accomplish the tax objectives.

Of course, not all individuals plan their estate well in advance of death. Many begin only after a serious decline in health or when death becomes imminent. These last-minute estate plans, or “deathbed transfers,” and how the court interprets I.R.C. § 2036 [which limits them], is the subject of this article. Part II of this article discusses common deathbed transactions. Part III discusses § 2036. Part IV discusses the line of seminal cases which interpret § 2036. Part V discusses: (1) the rules after the holding in Moore; (2) the policy behind the rules; and (3) the potential future of deathbed transactions.

II. Common Deathbed Transactions

Deathbed transactions take many forms. Typical transactions include outright gifts to loved ones, trust funding for the benefit of children, and asset sales to satisfy debts pre and post death. Most of these transfers are done simply to tie up loose ends before an individual’s death. However, as the estate value approaches and exceeds the estate and gift tax exemption amount, the consideration shifts to the reduction of estate and gift taxes. While multiple options exist to lower estate and gift taxes, the following section focuses on two types of transactions which frequently come under increased scrutiny from the IRS: family limited partnerships and discounted transfers.

A. Family Limited Partnerships

A family limited partnership (“FLP”) is a partnership created to administer a family business where members of the immediate family and close relatives serve as partners. [17] Just as in other limited partnership formats, there are general and limited partners. [18] The general partner is responsible for managing and controlling the assets and receiving and distributing profits. [19] The general partner is legally responsible for losses but does not hold title to the underlying assets of the partnership as an individual. [20] The limited partner shares in the profits of the partnership, but has limited liability and does not control day-to-day operations. [21] Limited partners in FLPs differ from other partnerships entities as FLP limited partners commonly receive an ownership interest without first contributing capital to the partnership. [22] In these instances, the limited partner is gifted the ownership interest based solely on the individual being a member of the family. [23]

Family limited partnerships are a popular vehicle for several reasons. [24] They offer centralized management of assets, ability to pool assets across multiple generations, ease of ownership transfers, asset protection, [25] and avoidance of probate. [26] The potential estate and gift tax savings is a particularly persuasive reason why individuals form FLPs. This option reduces estate and gift tax by transferring an underlying asset from an individual’s estate to an FLP in exchange for a partnership interest. [27] When the individual dies, the value of the partnership interest is included in the gross estate, not the fair market value of the underlying asset. [28] The partnership interest has a value less than the underlying asset because of valuation discounts. [29]

Two valuation discounts commonly apply to FLP interests. One is for “lack of marketability” [30] and the other is for “lack of control.” [31] A lack of marketability discount is applied to reflect that a partnership interest in a closely-held business is less attractive and more difficult to market than a publicly traded business interest. [32] The partnership interest can be harder to sell because the interest is only a minority stake or because of the difficulty of removing an underlying asset from a FLP. [33] The lack of a readily available market to sell the FLP interest, in turn, creates potential short-term liquidity problems and increases the risks of ownership. [34] Thus, courts have allowed a discount for lack of marketability to reflect the difficulties inherent in FLP interest ownership. [35] The lack of control discount is a result of the different rights and different levels of control afforded to general and limited partners. [36] Limited partners “lack control” because they are unable to force distributions or control the daily decisions of the partnership. [37]

Valuation discounts are not uniform. The size of the discount depends on several factors, including the type of asset or assets transferred, market conditions at the time of the transaction, the interest the decedent receives, and restrictions on the transfer of property in the partnership agreement. [38] A lack of marketability discount can range as high as 30-60% of the fair market value of the FLP interest. [39] A lack of control discount can be 25-55% of the pre-discount value of the partnership interest. [40] Overall, valuation discounts applied to FLP interests are such an important estate planning tool because they can reduce the value of an asset that was previously part of the decedent’s estate by 30-60%. [41] This “shrinks” the decedent’s estate and results in significant tax savings.

B. Discounted Transfers

Estate and tax planning opportunities do not end once the initial asset transfer into the FLP occurs. Individuals may receive additional estate reduction by transferring the discounted FLP interest. Common discounted transfers include transfers to children, a Grantor Retained Annuity Trust (“GRAT”), and a Charitable Lead Annuity Trust (“CLAT”). Transfers to children within the family accomplish a multitude of objectives. A transfer to a child of a FLP interest can serve the purpose of giving the child a stake in the family business while teaching the child how to run the business while a parent retains control and management of the business as general partner. [42] Depending on the parent’s goals, the transfer can be structured as a gift or a sale. [43] If the transfer is a gift, the value of the FLP interest is removed from the parent’s estate with the gifted interest’s value counting against the gifting parent’s lifetime exclusion amount. [44] Nonetheless, the valuation discounts reduce the gift tax exclusion amount less than if the underlying assets were transferred outright. [45] If the transfer is structured as a sale, the value of the FLP interest is removed from the parent’s estate and the consideration received for the interest remains. [46] Due to valuation discounts, this amount will be less than an outright sale of the underlying asset. [47]

Another popular discounted transfer to reduce estate and gift tax is the transfer of FLP interests to a GRAT. In this arrangement, a FLP interest is transferred to a GRAT, while the grantor retains the right to the FLP interest’s income stream in the form of an annuity for the term of the GRAT. [48] When the term of the GRAT ends, the FLP interest is transferred to the remainder beneficiary (usually another family member). [49] This allows for an even greater valuation discount because the right to the FLP interest’s stream of income is valued less than the value of the actual FLP interest. [50]

A third common discounted transfer is the transfer of an FLP interest to a CLAT. In this arrangement, the FLP interest is transferred to a CLAT where annuity payments are made to a charity for a certain timeframe. [51] Once the specified period ends, whatever remains in the trust is transferred to or for the benefit of the remainder beneficiary. [52] The remainder beneficiary, importantly, does not have to be a charitable organization. [53] Often, they are the descendants of the CLAT’s grantor. [54] Beyond the benefit of transferring the FLP interest out of the donor’s estate, the donor receives a gift tax charitable deduction for the present value of the lead interest. [55] While the present value of the remainder estate is a taxable gift, steps can be taken to reduce the amount of taxable gift to zero. [56] Thus, successful implementation of a CLAT allows the donor to remove the value of the underlying FLP interest from their estate, receive a gift tax charitable deduction, and transfer the FLP interest to their children or other family members. [57]

III. I.R.C. § 2036

When properly structured and executed, FLPs, discounted transfers, and other vehicles can achieve a significant estate and gift tax reduction. However, the transfers must not fall within the scope of I.R.C. § 2036(a). I.R.C. § 2036(a) is an Internal Revenue Code provision that brings the value of certain transferred property back into the decedent’s gross estate. [58] I.R.C. § 2036(a) provides:

(a) General rule. The value of the gross estate shall include the value of all property to the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money's worth), by trust or otherwise, under which he has retained for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death—

(1) the possession or enjoyment of, or the right to the income from, the property, or

(2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom.

Essentially, I.R.C. § 2036(a) includes the value of any transferred property in the decedent’s estate where the decedent either retained: (1) the possession or enjoyment of; (2) the right to possess or enjoy; or (3) the right to designate who shall possess or enjoy such transferred property. The purpose of I.R.C. § 2036 is to “prevent the circumvention of federal estate tax by the use of inter vivos transactions which do not remove the lifetime enjoyment of property purportedly transferred by a decedent.” [59] I.R.C. § 2036 is “part of a Congressional scheme to tax the value of property transferred at death,” whether the decedent “accomplishes the transfer by will, by intestacy, or by allowing his substantial control over the property to remain unexercised until death so that the shifting of its economic benefits to the beneficiary only then becomes complete.” [60] The IRS has increasingly turned to I.R.C. § 2036 in order to pull the value of deathbed transfers back into a decedent’s estate. [61] The following cases explore how the court has interpreted I.R.C. § 2036 and responded to the IRS’s increased use of the provision.

IV. I.R.C. § 2036(a) Deathbed Transfers Seminal Cases

Over the past twenty years, courts have issued a line of decisions providing guidance on the application of I.R.C. § 2036(a) to deathbed transfers. Each of these cases resulted from IRS challenges to decedent asset transfers to an FLP. The IRS increasingly disputes these transfers as they “often view these partnerships as efforts to pass valuable assets to one’s heirs at a discount for lack of marketability and lack of control.” [62]

A. Estate of Bongard

In Estate of Bongard v. Comm’r[63] the United States Tax Court (“USTC”) outlined a general test that has become the standard courts use to determine whether an inter vivos transfer falls within I.R.C. § 2036(a). [64] In Bongard, decedent established Empak, Inc. (“Empak”), an electronics materials packaging company, where decedent served as CEO and sole member of Empak’s board of directors. [65] Decedent and an Irrevocable Stock Accumulation Trust (“ISA Trust”) set up for the benefit of decedent’s children owned all the stock of Empak. [66] On January 30, 1996, WCB Holdings, LLC. (“WCB Holdings”) was established to pool the family members’ ownership interests in Empak in preparation of a corporate liquidity event. [67] On December 28, 1996, decedent and ISA Trust contributed their shares of Empak stock to WCB Holdings in exchange for WCB Holdings Class A and Class B membership units. [68] The following day, decedent and ISA Trust created Bongard Family Limited Partnership (“BFLP”). [69] In exchange for a 99% limited partnership interest in BFLP, decedent transferred all of his WCB Holdings class B membership units to BFLP. [70] ISA Trust received a 1% general partnership interest after transferring a portion of its WCB Holdings class B membership units to BFLP. [71] Subsequent gifts and distributions, including a BFLP 7.72% limited partnership interest gift from decedent to his wife, followed up until decedent’s death. [72] On November 16, 1998, Decedent died unexpectantly. [73]

The IRS argued that decedent’s inter vivos transfers to WCB Holdings and BFLP should be included in the gross estate because I.R.C. §§ 2035(a) and 2036(a) and (b) applied. [74] The estate countered the IRS’s argument on the two transfers, stating that they: (1) were not “transfers” within the meaning of I.R.C § 2036, (2) satisfied the bona fide sale exemption, and (3) did not include decedent’s retention of I.R.C. § 2036 interests. [75] The Tax Court held that: (1) decedent’s transfer of Empak stock to WCB Holdings satisfied the bona fide sale exception of I.R.C. § 2036(a); [76] and (2) the value of decedent’s transfer of WCB Holdings class B membership units to BFLP was includable under I.R.C. § 2036(a)(1). [77] First, the USTC explained I.R.C. § 2036 applies when three conditions are met:

(1) the decedent made an inter vivos transfer of property; (2) the decedent's transfer was not a bona fide sale for adequate and full consideration; and (3) the decedent retained an interest or right enumerated in section 2036(a)(1) or (2) or (b) in the transferred property which he did not relinquish before his death.

Estate of Bongard v. Comm'r, 124 T.C. No. 8, at *112 (2005). Next, the USTC applied their newly created test. The Tax Court found both of decedent’s transactions to be “transfers” within the context of I.R.C. § 2036 because “transfer” is a broadly defined term [78] and decedent voluntarily made the inter vivos transfers of the property. [79]

For the second condition of the test, the UTSC found decedent’s initial transfer of Empak stock to WCB Holdings did qualify for the bona fide sale exception, [80] while decedent’s subsequent transfer of WCB Holdings class B membership units to BFLP did not. [81] As the United States Court of Appeals for the Fifth Circuit did in Kimbell v. United States[82] the Tax Court broke the bona fide sale exception into two prongs: (1) whether the transaction qualified as a bona fide sale; and (2) whether the decedent received adequate and full consideration. [83] For FLPs, the first prong is satisfied when the objective evidence indicates a “legitimate and significant nontax reason” for the FLP creation and the transferors receive “partnership interests proportionate to the value of the property transferred.” [84]

Decedent’s transfer of Empak stock to WCB Holdings satisfied the first prong of the test because the court found the pooling of decedent’s and ISA Trust’s Empak shares was for the significant nontax reason of attracting potential investors and raising capital for additional growth. [85] Furthermore, the Tax Court determined the second prong was satisfied because both decedent and ISA Trust received interests in WCB Holdings proportionate to the amount of shares each transferred. [86] Thus, the Tax Court determined decedent’s transfer of Empak stock to WCB Holdings satisfied the bona fide sale exception of I.R.C. § 2036(a), and there was no need to determine whether decedent retained an I.R.C. § 2036(a) or (b) interest. [87]

The USTC held decedent's transfer of WCB Holdings class B membership units to BFLP did not satisfy the bona fide sale exception because it failed to exhibit a significant nontax purpose. [88] The USTC rejected the estate’s arguments that BFLP was established to provide additional credit protection and to facilitate decedent’s post-marital agreement with his second wife. [89] The tax court reasoned WCB Holdings already satisfied those objectives. [90] Furthermore, decedent “recycled the value” of the property he transferred to BFLP because BFLP did not perform a management function for the assets received or engage in any businesslike transaction. [91] All decedent did was “change the form” in which he held his interest in the transferred property. [92] Thus, decedent’s transfer of WCB Holdings class B membership units to BFLP did not qualify for the bona fide sale exception. [93]

Finally, the USTC turned to the third consideration of the I.R.C. § 2036 test and held decedent retained an I.R.C. § 2036(a) interest in BFLP. [94] The Tax Court stated a right is retained “if at the time of the transfer there was an understanding, express or implied, that the interest or right would later be conferred.” [95] The USTC concluded there was an implied agreement between the parties that decedent retained the right to control the WCB membership units based on decedent’s ability to decide whether the membership units and underlying Empak stock would be redeemed. [96] After determining decedent retained the enjoyment of the property transferred to BFLP, the USTC concluded the value of the WCB Holdings class B membership units was included in decedent’s gross estate under I.R.C. § 2036(a). [97]

B. Estate of Strangi

While Bongard established a test for courts to use for I.R.C. § 2036(a) inclusion, [98] Estate of Strangi v. Comm’r [99] outlines the application of I.R.C. §§ 2036(a)(1) and (a)(2) to deathbed transfers. In Strangi, decedent transferred 98% of his wealth to Strangi Family Limited Partnership (“SFLP”) two months before his death. [100] On July 19, 1988, decedent executed a power of attorney naming Mr. Gulig, his son-in-law, as his attorney-in-fact. [101] During 1993, decedent underwent surgery to remove a cancerous mass from his back and was diagnosed with a degenerative brain disorder. [102] After attending a seminar discussing the use of family limited partnerships for asset preservation, estate planning, income tax planning, and charitable giving, on August 12, 1994, Mr. Gulig formed SFLP while acting as decedent’s attorney-in-fact. [103] Property of decedent totaling a fair market value of $9,876,929, or 98% of decedent’s wealth, was transferred to SFLP in exchange for a 99% limited partnership interest. [104] Assets contributed to SFLP included the residence occupied by decedent, securities, accrued interest and dividends, insurance policies, an annuity, receivables, and partnership interests. [105] Stranco, a Texas corporation Mr. Gulig created the same day as SFLP, purchased the remaining 1% of SFLP as managing general partner. [106] Stranco was funded by decedent and his four children. [107] Decedent contributed $49,350 in assets for 47% of Stranco’s common stock, while decedent’s children contributed $55,650 for 53% of Stranco’s common stock. [108] Additionally, decedent and decedent’s children were named as the initial five directors of Stranco and Mr. Gulig was hired by Stranco to manage the day-to-day business of the corporation. [109] Decedent died of cancer on October 14, 1994—less than three months after the transfers to SFLP and Stranco. [110]

In the Tax Court, the IRS argued that SFLP should be disregarded because it lacked economic substance and business purpose. [111] After the subsequent approval of a motion to amend its answer, the IRS further argued the full value of the assets decedent transferred to SFLP and Stranco should be included in decedent gross estate because decedent retained a “right” within the meaning of I.R.C. § 2036(a)(2). [112] On its second trip to the Court of Appeals, the Fifth Circuit affirmed the Tax Court’s holding that the value of the assets decedent transferred to SFLP should be included in decedent’s estate under I.R.C. § 2036(a)(1). [113] The Fifth Circuit stated two requirements were needed to trigger I.R.C. § 2036(a)(1). [114] First, the decedent must retain “possession or enjoyment” of the property.” [115] This requirement is met if the decedent retains a “substantial present economic benefit” from the transferred property. [116] For the second requirement, the court used the same “expressed or implied” agreement test used by the court in Bongard[117] The Fifth Circuit concluded that decedent satisfied both requirements based on numerous facts, [118] including: (1) various payments made from the FLP, both before and after decedent’s death, to meet his needs and expenses; (2) decedent’s continued residence in his house after it was transferred to the FLP; (3) his nonpayment of rent to the FLP for three years; and (4) his failure to retain sufficient assets outside the FLP to meet his living expenses for his remaining life expectancy. [119] Based on these circumstances and the inapplicability of the bona fide sale exception, [120] the Fifth Circuit affirmed the Tax Court’s I.R.C. § 2036(a)(1) holding. [121]

Because the Fifth Circuit held the transferred assets were included in the taxable estate under I.R.C. § 2036(a)(1), the Fifth Circuit did not discuss the IRS’s alternative contention for inclusion under I.R.C. § 2036(a)(2). [122] However, the Tax Court’s assessment of the IRS’s I.R.C. § 2036(a)(2) argument is important to discuss as it serves as the basis for later holdings. [123] The Tax Court held, as an alternative to their I.R.C. § 2036(a)(1) holding, that decedent, through Mr. Gulig, retained the “right to designate the persons who shall possess or enjoy the property or its income” within the meaning of I.R.C. § 2036(a)(2). [124] Specifically, the court found Mr. Gulig’s dual roles as decedent’s attorney-in-fact and manager of Stranco problematic. [125] The SFLP partnership agreement named Stranco managing general partner of SFLP and gave the managing partner sole discretion to determine distributions. [126] When Mr. Gulig was hired as Stranco’s manager, this power was then conferred upon Mr. Gulig, [127] placing decedent in a position “to act, alone or in conjunction with others, through his attorney-in-fact, to cause distributions of property previously transferred to the entities or of income therefrom.” [128]

Citing United States v. Byrum[129] the estate argued I.R.C. § 2036(a)(2) was not applicable because decedent’s “rights” were limited by Mr. Gulig’s fiduciary duties to SFLP and Stranco. [130] The court rejected this argument because: (1) Mr. Gulig already owed fiduciary duties to decedent personally as his attorney-in-fact before the formation of SFLP and Stranco; and (2) the fiduciary obligations of Stranco and its directors were duties essentially owed to decedent himself. [131] The Tax Court then rejected the fiduciary duties argument by stating, “[i]ntrafamily fiduciary duties within an investment vehicle simply are not equivalent in nature to the obligations created by the United States v. Byrum . . . scenario.” [132]

C. Estate of Powell

Estate of Powell v. Commissioner [133] builds on Strangi and is a major victory for the IRS in its battle against FLP deathbed transfers. In Powell, decedent’s son, acting under a power of attorney, transferred approximately $10 million of assets from decedent’s revocable trust to an FLP while decedent was hospitalized in intensive care. [134] Decedent received a 99% limited partnership interest, while her two sons contributed an unsecured note in return for a 1% general partnership interest. [135] Notably, the FLP agreement gave decedent’s son sole discretion over the timing and amount of partnership distributions. [136] The agreement also permitted dissolution of the FLP upon written consent of all partners. [137] On the same day cash and securities were transferred into the FLP, decedent’s son, again acting under a POA, transferred decedent’s 99% limited partner interest to a charitable lead annuity trust (“CLAT”) with her two sons receiving the remainder upon her death. [138] Decedent died seven days after the funding of the FLP and same-day transfer of her limited partner interest to the CLAT. [139]

The IRS argued that I.R.C. § 2036(a)(1) and (2) applied to decedent’s transfer of cash and securities to the FLP. [140] The IRS contended that I.R.C. § 2036(a)(1) applied to the transfer because it was subject to an implied agreement under which decedent retained possession or enjoyment of the transferred property or the right to income from that property. [141] The IRS argued that I.R.C. § 2036(a)(2) applied because of decedent's ability, acting with her sons, to dissolve the FLP and thereby designate who could possess the transferred property or the income from it. [142] Finally, the IRS asserted the bona fide sale exception to I.R.C. § 2036(a) did not apply because the estate failed to demonstrate a “significant nontax purpose” for the creation of the FLP and because, in the light of the claimed valuation discount, the transfer was not made for “full and adequate consideration.” [143]

The USTC held for inclusion of the cash and securities under I.R.C. § 2036(a)(2), making it unnecessary to consider the IRS’s I.R.C. § 2036(a)(1) argument. [144] Drawing heavily from Estate of Strangi[145] the Tax Court found decedent’s cooperative ability to dissolve the FLP with her sons constituted a right in conjunction with others to designate the persons who shall possess or enjoy the transferred property within the meaning of I.R.C. § 2036(a)(2). [146] The USTC found the ability to dissolve the partnership problematic because it comes with the ability to direct the disposition of the partnership assets. [147] While the decedent’s ability is in conjunction with her sons, it was enough to trigger I.R.C. § 2036(a)(2) inclusion. [148] Decedent’s ability to determine the amount and timing of distributions through her son’s dual role as managing general partner and her attorney-in-fact constituted a “right” within the meaning of I.R.C. § 2036(a)(2). [149]

In finding this way, the Tax Court echoed Strangi and precluded the “fiduciary duties” argument. [150] The USTC reasoned Mr. Powell owed duties to decedent prior to or upon formation of the FLP. [151] Since decedent held a 99% interest in the FLP, whatever fiduciary duties limited her son’s ability to determine partnership distributions were duties owed “almost exclusively” to decedent herself. [152] Finally, the court found any fiduciary duties Mr. Powell may have owed to decedent as “illusory” because there was no evidence that the FLP was anything but an investment vehicle for decedent and her sons. [153] Since the estate did not argue that the transfer was exempted by the I.R.C. § 2036(a) bona fide sale exception, the USTC concluded the value of the transferred assets was includible in the value of decedent’s gross estate. [154]

D. Estate of Moore

The most recent case in the deathbed transfer inclusion is Estate of Moore v. Commissioner[155] In Moore, decedent built a successful family farm (“Moore Farms”). [156] In 2004, decedent, in his late eighties, began negotiating a sale of Moore Farms to Mellon Farms. [157] In December 2004, before decedent could complete the deal with Mellon Farms, he was rushed to the emergency room with congestive heart failure. [158] After release from the hospital, a hospice doctor gave him less than six months to live. [159] Decedent then began his estate planning. [160] The result was a complex web of entities including a Living Trust (“Living Trust”), a Charitable Lead Annuity Trust (“Charitable Trust”), a Children’s Trust (“Children’s Trust”), a Family Management Trust (“Management Trust”), an Irrevocable Trust (“Irrevocable Trust”), and a Family Limited Partnership (“FLP”)—all created on the same day. [161] Decedent’s estate planning attorney testified that in decedent’s initial call to him, decedent believed his discharge from the hospital was “an extension of his life” and he wanted to wanted to meet with his attorney in order to try to “save the millions of dollars of taxes.” [162] On February 4, 2005, decedent finalized the sale of Moore Farms to Mellon Farms. [163] Decedent continued to live on the farm and made various transfers among and from the trusts and FLP until his death at the end of March 2005. [164]

The IRS argued the majority of the estate plan failed under I.R.C. § 2036 because: (1) decedent lacked a legitimate nontax reason for forming the FLP, thus, the transfer of four-fifths of the farm to the FLP did not qualify for the I.R.C. § 2036(a) bona fide sale exception; and (2) decedent retained possession and enjoyment of Moore Farms even after its sale. [165] The USTC agreed with the IRS and held the transfer of four-fifths of the farm to the FLP did not meet the requirements of the bona fide sale exception [166] and decedent retained possession or enjoyment of Moore farms within the meaning of I.R.C. § 2036(a)(1). [167] The USTC found decedent’s transfer of Moore Farms to the FLP did not qualify for the bona fide sale exception because the formation of the FLP lacked a significant nontax reason. [168] The Tax Court reached this conclusion because: (1) there was no “business” for the family to run after decedent sold the farm within five days of its transfer to the FLP; (2) the business retained significant amounts of capital for any “alleged” creditors who may make claims; (3) decedent began planning his estate only after he faced significant health problems; (4) decedent told his estate planning attorney he wanted to “save millions of dollars of taxes” through his estate plan; and (5) the decedent’s unilateral actions underlined the general testamentary nature of the plan and transfers. [169] Because the formation of the FLP failed to have a significant nontax purpose, the USTC did not consider the issue of value—i.e. whether decedent’s transfer was for adequate and full consideration—and moved to the “retained possession or enjoyment of” the transferred asset part of the analysis. [170]

The USTC concluded decedent retained possession or enjoyment of Moore Farms after he transferred it to the FLP. [171] Applying the two-prong I.R.C. § 2036(a)(1) test from Strangi[172] the USTC found decedent retained a “substantial present economic benefit” from the farm after he transferred it. [173] The Tax Court pointed to several facts to support its conclusion. [174] First, decedent continued to live on the property and run the farm as he did before the sale, and did so up until his death. [175] Second, while decedent retained sufficient assets to support himself unlike the decedent in Strangi[176] he did not draw upon them. [177] Instead, he used FLP assets to pay his personal expenses and make gifts. [178] Finally, despite not holding the controlling general interest, decedent ignored formalities and continued to exercise control over the farm and make unilateral decisions. [179] The USTC reasoned these facts indicated an implicit understanding between Moore and his children that he would continue to use the FLP assets and that his relationship with the transferred assets “changed formally, not practically.” [180] Thus, the Tax Court held the value of the farm should be included in the value of the gross estate under I.R.C. § 2036(a)(1). [181]

V. Analysis

A. The Post-Moore Rules

After Moore, I.R.C. § 2036(a) tends to bring all deathbed property transfers back into the gross estate, [182] unless: (1) the estate can show the sale was a bona fide sale for adequate and full consideration; [183] or (2) the decedent did not retain a right to possession, enjoyment, or rights to the issue of the transferred property. [184] A sale is bona fide, in the family limited partnership context, when the objective evidence establishes the existence of a “legitimate and significant nontax reason” for the creation and transfer of assets to the FLP. [185] A sale is for adequate and full consideration when the decedent receives a “partnership interests proportionate to the value of the property transferred.” [186] Essentially, the bona fide sale prong is a question of motive, while the “for adequate and full consideration” prong is a question of value. [187]

If a transfer does not qualify under the “bona fide sale” exception, the analysis moves to the second exception. A decedent retains the right to possession or enjoyment if the decedent retains “substantial present economic benefit” from the property after transferring it and there is an “express or implied agreement” that the decedent will continue to possess or enjoy the property “at the time of transfer.” [188] While the right to the issue of the transferred property part of the rule is the least developed, the court has held the ability “to act, alone or in conjunction with others,” [189] to cause partnership distributions [190] or dissolve the partnership triggers inclusion under I.R.C. § 2036(a)(2). [191]

B. The Policy Behind these Rules

The policy behind these rules is clear—prevent the circumvention of federal estate tax by including the value of any inter vivos transfer where the decedent retains an interest or right in the transferred property in the decedent’s gross estate. [192] I.R.C. § 2035 works in conjunction with I.R.C. § 2036 to pull the value of any gift transferred or gift taxes paid within three years of the decedent’s death back into the gross estate. [193] The purpose of I.R.C. § 2035 is the same as the purpose for I.R.C. § 2036, except I.R.C. § 2035 focuses on a different method of transfer: a gratuitous transfer versus a transfer for consideration. [194] While the policy for these rules is simple, whether it is correct is a more complicated question.

As a basic tenant of property and trusts and estates law, individuals have the right to transfer property in life or at death. [195] This “right of disposition” is one of the “sticks” in the bundle of rights that accompany property ownership. [196] The issue with I.R.C. § 2036, and by extension I.R.C. § 2035, is that these rules infringe on this right when an individual makes a deathbed transfer. Although the transfer’s substance is respected, I.R.C. § 2036 violates the transaction’s financial effect by pulling the value of the transferred property back into the decedent’s gross estate. If individuals have the right to transfer property, why does sudden illness or other desperate conditions change this right? In the context of deathbed transfers of family limited partnership interests, the IRS could alternatively adjust the valuation discount and then count the value of the transfer against the decedent’s Unified Credit without pulling the full value of the asset back into the decedent’s gross estate. This approach more directly addresses the IRS’s central concern of the size of the valuation discount. Unfortunately, instead of dealing with the issue in a more straightforward manner, the IRS invokes I.R.C. § 2036 and in turn, seems to create a fraudulent transfer statute.

While adjusting the applied valuation discount is a more precise method, the practical reason for applying I.R.C. § 2036 likely boils down to process simplification. When a dispute arises, it is much less complicated for the court to include the full undiscounted value of the transferred FLP interest in the decedent’s gross estate. This also allows the court to avoid having to make difficult judgements regarding the value of an asset. In the court’s opinion, these types of assessments are better left for CPAs and other valuation experts. While an in-depth discussion of the interplay between I.R.C. § 2036 and the consideration offset provisions in I.R.C. § 2043 is beyond the scope of this article, one only has to look at the Tax Court’s discussion in Estate of Moore regarding of the net inclusion amount to get an idea of just how complex valuation and discounting calculations can get. [197]

With the court’s increased use of I.R.C. § 2036 to pull the value of decedent’s deathbed transfers back into the gross estate raises serious concerns, the court’s decisions can be summed up by the saying “bad facts make bad law.” For example, in Estate of Moore, the decedent knew he only had months to live and clearly stated the purpose of his deathbed planning was to “save the millions of dollars of taxes.” [198] Furthermore, the decedent continued to live on the property and run the farm as he did before the sale and continuously used FLP assets to pay personal expenses. [199] Facts such as these made it easy for the Tax Court to hold for inclusion under I.R.C. § 2036. [200] The facts of Estate of Powell tell a similar story. The day before the partnership was funded, two hospital doctors indicated the decedent lacked capacity and “could not act on her own behalf.” [201] Additionally, objective evidence indicated the FLP had no business purpose. [202] It was merely an investment vehicle for the decedent and her two sons. [203]

While the deathbed element does increase the chances that inclusion may occur, simple steps can be taken to avoid triggering I.R.C. § 2036. In order to qualify for the bona fide sale exception to I.R.C. § 2036, individuals should first and foremost establish a nontax motive for creating the FLP. The decedent in Estate of Moore did not fail the bona fide sale exception because he had a tax purpose for the formation for the FLP, he failed the exception because he only had a significant nontax reason for the transfer to the FLP. [204] To provide additional factual support, the nontax reasons for the entity’s formation can be listed in the recitals of the FLP’s partnership agreement. Furthermore, to increase the chances of satisfying the second prong of the bona fide exception, the interest credited to each partner should be proportional to the fair market of the value of the assets each partner contributed to the FLP. Also, the assets contributed by each partner to the FLP should be properly credited to the respective capital accounts. In the case of an IRS challenge, this provides support to the estate’s position that entity formalities were followed.

When it comes to funding and operating the FLP, additional steps should be taken to avoid the perception that a decedent retained an interest or right in the assets transferred to the FLP. As the court in Strangi made clear, [205] the decedent should not transfer all of their assets to the FLP. If the decedent does, the IRS will likely argue there was an implied agreement for the decedent to continue using the assets as they did before the transfer. Additionally, the decedent keeping sufficient assets outside of the FLP avoids the pitfall of the FLP to pay post-death expenses such as funeral costs. In the same vein as keeping sufficient assets outside of the FLP, the decedent should not commingle FLP and personal funds. This was a major factor in the USTC applying I.R.C. § 2036 in both Strangi [206] and Estate of Moore[207] Another important point is to continue or further the entity’s nontax business purpose. This point was highlighted by the first transfer in Estate of Bongard[208] Decedent’s transfer of stock to the holding company did not trigger I.R.C. § 2036 because pooling family assets in the holding company was part of a legitimate nontax business decision to facilitate the sale of the business. [209] This plan to continue legitimate business operations contrasts with the circumstances in Estate of Moore where the decedent sold the farming business days after forming the FLP. [210] Finally, decedents should make sure to divest themselves of any rights they may have alone or in conjunction with another to affect the operations or distribution of partnership assets. Estate of Powell made clear different individuals should act as the decedent’s attorney-in-fact and manager of the FLP. [211]

C. Where We Go from Here

This string of recent I.R.C. § 2036 decisions make it obvious that the law is moving in an ever-more-restrictive direction. The courts historically have not often used I.R.C. § 2036 to pull the value of assets back into a decedent’s estate. However, this is no longer the case. Due to the IRS’s insistence, the courts have increasingly used I.R.C § 2036 as the main weapon against family limited partnerships asset transfers. The IRS often view FLPs “as efforts to pass valuable assets to one’s heirs at a discount for lack of marketability and lack of control.” [212] This seems to reflect that judges may be implying a general-purpose common law that all types of tax planning must get more restrictive if tax reduction is the principle purpose. This could be a result of the numerous income tax economic substance cases over the last two decades. The economic substance doctrine and the “legitimate and significant nontax purpose” requirement of I.R.C. § 2036(a) share a similar rationale and seek to invalidate aspects of tax transactions.

Beyond the reasons for increased use of I.R.C. § 2036, two aspects of the recent court decisions indicate even greater use of I.R.C. § 2036 to restrict the tax benefits of deathbed transfers. The first comes from Estate of Powell. While the case law regarding the bona fide exception and the restriction on the retention of “possession or enjoyment” of the transferred asset of I.R.C. § 2036(a)(1) are fairly well developed, significant questions remain as to what “rights” fall under I.R.C. § 2036(a)(2). While the court found for inclusion under I.R.C. § 2036(a)(1), [213] the reasoning in Strangi regarding I.R.C. § 2036(a)(2) indicated inclusion may be triggered by decedent’s attorney-in-fact also serving as manager of the FLP. [214] Estate of Powell took this retention of a “right” even further by holding decedent’s cooperative ability to dissolve the FLP with her sons, although decedent made no effort to exercise such a right, constituted a right in conjunction with others to designate the persons who shall possess or enjoy the transferred property within the meaning of I.R.C. § 2036(a)(2). [215] Taking these decision together, they seem to indicate that only the possibility—and not the actual execution—of affecting the operation or distributions of the FLP will pull the value of the transferred assets back into the gross estate. With this as the precedent, future decisions will likely hold things such as the retention of minority interest voting rights cause inclusion under I.R.C. § 2036(a)(2).

The second, and likely more important, indication of greater use of I.R.C. § 2036 to invalidate the tax benefits of deathbed transfers is the tone of the Tax Court’s ruling in Estate of Moore. Initially, the Tax Court stated that the three-part test developed in Estate of Bongard was the test that determined whether I.R.C § 2036 recaptures transferred property back into the decedent’s estate. [216] While the elements of the Estate of Bongard test are still present in the Estate of Moore decision, the emphasis has shifted. [217] In Estate of Moore, when discussing the Estate of Bongard test, the Tax Court stated, “[a]nother way of looking at this--and another way we frequently discuss it--is to look at 2036(a) as creating a general rule that brings back all the property that a decedent transfers before he dies, subject to two exceptions.” [218] Instead of the court “not respect[ing] a transfer” if it does not meet the three requirements under the Estate of Bongard test, [219] the transfer is now automatically not respected and the estate must reestablish the transfer’s validity. [220]

As stated above, this seems to indicate judges will apply a general-purpose common law that all types of tax planning (in which the primary purpose is tax reduction) “smell bad” and the decedent’s estate must prove otherwise. This has procedural and practical consequences as it increases the cost and time required to settle a decedent’s estate. As indicated supra Part IV. Section B, forward-looking steps can be taken to significantly reduce the chance transfers to an FLP will not be included under I.R.C. § 2036. The problem with deathbed transfers though is that many of these planning decisions are made in a chaotic and stressful environment. This has the compounded effect of making it more difficult for individuals to plan their estate to avoid inclusion and to produce sufficient evidence that concerns beyond tax savings motivated their formation and transfer of assets to a family limited partnership. With this in mind, it is of the utmost importance for individuals conducting deathbed planning to seek appropriate counsel and avoid the increasing “squeeze” of I.R.C. § 2036.

V. Conclusion

This article discussed the formation and purpose of family limited partnerships. Further, it outlined the advantages of using such as an estate planning vehicle. This article also detailed the requirements of I.R.C. § 2036 and the seminal cases interpreting the statute. Moreover, the present state of I.R.C. § 2036 was reviewed and the article provided recommendations to avoid the value of transferred assets included in the decedent’s gross estate. Finally, this article discussed the implications of the court’s increased use of I.R.C. § 2036 and the likely results of this change in judicial review.

If you have clients in the upper income brackets who share these concerns, the attorneys at Cantley Dietrich would enjoy having a conversation with you about how you can protect them from some of the challenges they will likely face in the next few years.

[1] Prof. Beckett G. Cantley, teaches International Taxation at Northeastern University and is a shareholder in Cantley Dietrich, P.C. Prof. Cantley would like to thank Melissa Cantley and his law clerk, Joshuah C. Miller, for their contributions to this article.

[2] Geoffrey C. Dietrich, Esq. is a shareholder in Cantley Dietrich, P.C.

[3] Estate of Moore v. Comm’r, T.C. Memo. 2020-40, 2020 WL 1685607, at *29 (citing Kimbell v. United States, 371 F.3d 257, 261 (5th Cir. 2004)).

[4] Id. at *30 (citing Kimbell, 371 F.3d at 261).

[5] Internal Revenue Service, Estate Tax, (last visited July 5, 2020).

[6] Id.

[7] Id.

[8] Id.

[9] Internal Revenue Service, Gift Tax, (last visited July 5, 2020).

[10] Internal Revenue Service, Estate Tax, (last visited July 5, 2020).

[11] I.R.C. § 2001(a).

[12] Tax Policy Center, Urban Institute & Brookings Institution, How Many People Pay the Estate Tax? (last visited July 5, 2020).

[13] See id.

[14] See I.R.S. Rev. Proc. 2019-44, § 3.41.

[15] See Tax Policy Center, supra note 12.

[16] I.R.C. § 2001(c).

[17] See Nathan H. Bernstein, The Formation of the Family Limited Partnership: Fraudulent Transfer Liability and Other Family Problems, 101 Com. L.J. 26, 27 (1996).

[18] See id. at 27.

[19] See id.

[20] See id.

[21] See id.

[22] See id.

[23] See id.

[24] See Robert G. Alexander & Dallas E. Klemmer, Creative Wealth Planning with Grantor Trusts, Family Limited Partnerships, and Family Limited Liability Companies, 2 Est. Plan. & Cmty. Prop. L.J. 307 (2010); S. Stacy Eastland, Family Limited Partnerships: Current Status and New Opportunities, 2009 A.L.I.-A.B.A. Continuing Legal Educ. 1017.

[25] While certain requirements must be followed to accomplish any of the objectives of a family limited partnership, extra care should be given when setting one up for asset protection. State and federal law impose civil and criminal penalties for fraudulent transfer liability. Fraudulent transfer liability occurs when an individual transfers individually owned assets into a family limited partnership, conceals these assets from creditors, and maintains direct or indirect control over the assets. In these instances, the line between “asset protection” and “fraudulent transfer” is often blurred. Nathan H. Bernstein, The Formation of the Family Limited Partnership: Fraudulent Transfer Liability and Other Family Problems, 101 Com. L.J. 26, 39 (1996).

[26] See Bernstein, supra note 17, at 29-30; Alexander, supra note 24, at 316-17.

[27] See D. John Thorton & Gregory A. Byron, Valuation of Family Limited Partnership Interests, 32 Idaho L. Rev. 345, 347-48 (1996).

[28] See id.

[29] See Matthew Van Leer-Greenberg, Family Limited Partnerships: Are They Still a Viable

Weapon in the Estate Planner's Arsenal , 25 Roger Williams U. L. Rev. 37, 42 (2020).

[30] See Thorton, supra note 27, at 363.

[31] See id. at 364.

[32] Id. at 363.

[33] See Martin A. Goldberg & Cynthia M. Kruth, New Life for Valuation Discounts in Family Entities, 16 Quinnipiac Prob. L.J. 48, 49 (2002).

[34] Thorton, supra note 27, at 363.

[35] Id.

[36] See id. at 3; Nathan H. Bernstein, The Formation of the Family Limited Partnership: Fraudulent Transfer Liability and Other Family Problems, 101 Com. L.J. 26, 27 (1996).

[37] See Van Leer-Greenberg, supra note 29, at 43 (citing Goldberg, supra note 33, at 49).

[38] See id. at 44; Dennis I. Belcher, Valuation Discounts: Theory and Practice, Estate Planning In Depth: ALI-ABA Course of Study 273, 308 (2003).

[39] Id.

[40] See Thorton, supra note 27, at 363. See also, Estate of Maxcy v. Comm’r, T.C. Memo. 1969-158, 1969 WL 1276, 28 T.C.M. (CCH) 783, 793 (1969) (holding minority interest per share value in closely held corporation was 75% of the majority interest, thus, resulting in a 25% discount); Estate of Dougherty v. Comm’r, T.C. Memo. 1990-274, 1990 WL 70915, 59 T.C.M. (CCH) 772, 781 (1990) (allowing a 35% discount in valuing stock of a sole shareholder to reflect lack of marketability, cost of liquidation and diversity of asset management).

[41] See Van Leer-Greenberg, supra note 29, at 42, 44.

[42] See Bernstein, supra note 35, at 27.

[43] See id. at 22, 27.

[44] See Internal Revenue Service, supra notes 9, 10.

[45] See John F. Ramsbacher, John W. Prokey & Erin M. Wilms, Family Limited Partnership:

Forming, Funding, and Defending , 18 Prac. Tax Law 29, 30 (2004).

[46] See id.

[47] See id.

[48] Peter J. Parenti, Designing the Family Limited Partnership or the Family Limited Liability Company - Part 2, 9 J. Pract. Est. Plan. 21, 25 (2007).

[49] Id.

[50] See id. See also, Robert G. Alexander & Dallas E. Klemmer, Creative Wealth Planning with Grantor Trusts, Family Limited Partnerships, and Family Limited Liability Companies, 2 Est. Plan. & Cmty. Prop. L.J. 307, 325-26 (2010) (discussing valuation discounts for GRATs and importance of structuring GRATs so that the growth of GRAT assets exceeds the applicable I.R.C. § 7520 rate).

[51] Mitchell M. Gans and Jonathan G. Blattmachr, Family Limited Partnerships and Section 2036: Not Such a Good Fit, at 3 n.7 (2017). Available at: See generally, Jonathan G. Blattmachr, A Primer on Charitable Lead Trusts: Basic Rules and Uses, 134 TR. & EST., Apr. 1995, at 48.

[52] Id.

[53] Id. See generally, Paul S. Lee, Turney P. Berry & Martin Hall, Innovative CLAT Structures: Providing Economic Efficiencies to a Wealth Transfer Workhorse, 37 Actec L.J. 93 (2011) (provides an in-depth discussion of choosing a remainder beneficiary and the associated tax consequences).

[54] Peter Melcher & Matthew C. Zuengler, Maximizing the Benefits of Estate Planning Bet-to-Die Strategies: CLATs and Private Annuities, 9 J. Retirement Plan. 21, 23 (2006). See also, Parenti, supra note 45, at 25.

[55] See Melcher, at 23.

[56] See id. (citing Reg. §25.2522(c)-3(d)(2), Ex. 1).

[57] See id.

[58] I.R.C. § 2036.

[59] Estate of Wyly v. Comm’r, 610 F.2d 1282, 1290 (5th Cir. 1980).

[60] Estate of Lumpkin v. Comm’r, 474 F.2d 1092, 1097 (5th Cir. 1973).

[61] See generally United States v. Byrum, 408 U.S. 125 (1972); Estate of Harper v. Comm’r, 93 T.C. 368; Estate of Thompson v. Comm’r, 382 F.3d 367 (3d Cir. 2004), aff’g T.C. Memo. 2002-246, 2002 WL 31151195; Kimbell v. United States, 371 F.3d 257 (5th Cir. 2004); Estate of Bongard v. Comm’r, 124 T.C. 95 (2005); Estate of Strangi v. Comm’r, T.C. Memo. 2003-145, aff’d 417 F.3d 468 (5th Cir. 2005); Estate of Rosen v. Comm’r, T.C. Memo. 2006-115, 2006 WL 1517618; Estate of Bigelow v. Comm’r, 503 F.3d 955, 969 (9th Cir. 2007); Estate of Stone v. Comm’r, T.C. Memo. 2012-48, 2012 WL 573003, Estate of Powell v. Comm’r, 148 T.C. No. 18 (2017); Estate of Moore v. Comm’r, T.C. Memo. 2020-40, 2020 WL 1685607.

[62] Estate of Moore v. Comm’r, T.C. Memo 2020-40, 2020 WL 1685607, at *13-14.

[63] Estate of Bongard v. Comm'r, 124 T.C. No. 8 (2005).

[64] Id. at *97.

[65] Id. at *130.

[66] Id. at *97.

[67] Id. at *98.

[68] Id.

[69] Id.

[70] Id.

[71] Id.

[72] Id.

[73] Id.

[74] Id. at *113-14.

[75] Id. at *112-13.

[76] Id. at *125.

[77] Id. at *131.

[78] See id. at *113

[79] Id. at *113. (citing Helvering v. Hallock, 309 U.S. 106, n. 7 (1940); Estate of Shafer v. Comm’r, 749 F.2d 1216, 1221-22 (6th Cir.1984), affg. 80 T.C. 1145, 1983 WL 14846 (1983); Guynn v. United States, 437 F.2d 1148, 1150 (4th Cir.1971) (stating that section 2036 “describes a broad scheme of inclusion in the gross estate, not limited by the form of the transaction, but concerned with all inter vivos transfers where outright disposition of the property is delayed until the transferor's death”)).

[80] Id. at *125.

[81] Id. at *129.

[82] 371 F.3d 257, 258 (5th Cir. 2004).

[83] Estate of Bongard v. Comm'r, T.C. No. 8, at *119 (2005) (citing Kimbell v. United States, 371 F.3d 257, 258 (5th Cir. 2004)).

[84] Id. at *117-18 (citing Estate of Stone v. Comm’r, T.C. Memo. 2003-309; Estate of Harrison v. Comm’r, T.C. Memo. 1987-8; Estate of Harper v. Comm’r, T.C. Memo. 2002-121).

[85] Id. at *122, 123.

[86] Id. at *123.

[87] Id. at *125.

[88] Id. at *128-29.

[89] Id.

[90] Id. at *128.

[91] Id. at *128-29.

[92] Id. (quoting Estate of Harper v. Comm’r, T.C. Memo. 2002-121).

[93] Id. at *129.

[94] Id. at *131.

[95] Id. at *129 (quoting Sec. 20.2036–1(a), Estate Tax Regs).

[96] Id. at *131.

[97] Id.

[98] See id.supra note 75.

[99] T.C. Memo. 2003-145, aff’d 417 F.3d 468 (5th Cir. 2005).

[100] Strangi v. Comm’r, 417 F.3d 468, 473 (5th Cir. 2005).

[101] Id.

[102] Id. at 472-73.

[103] Id. at 473.

[104] Id.

[105] Id.

[106] Id.

[107] Id.

[108] Id.

[109] Id. at 474.

[110] Id.

[111] Id. at 475.

[112] Id. at 475, 478 n.7.

[113] Id. at 478.

[114] Id. at 476.

[115] Id. at 478.

[116] Id. at 476 (quoting United States v. Byrum, 408 U.S. 125, 145.)

[117] See Estate of Bongard v. Comm'r, T.C. No. 8, at *113, *131 (2005).

[118] 417 F.3d 468, 477.

[119] Id. at 477-78.

[120] See id. at 478-482.

[121] Id. at 478.

[122] Id. at 478, 478 n.7.

[123] See Estate of Powell v. Comm’r, 148 T.C. No. 18, at *400-05 (2017).

[124] T.C. Memo. 2003-145 (2003), 2003 WL 21166046, at *12, *16.

[125] See id. at *15-16.

[126] Id. at *15.

[127] Id.

[128] Id. at *16.

[129] 408 U.S. 125.

[130] Id. at *14.

[131] Id. at *18.

[132] Id.

[133] 148 T.C. No. 18 (2017).

[134] Id. at *394-95.

[135] Id.

[136] Id. at *395.

[137] Id.

[138] Id.

[139] Id. at *393-95.

[140] Id. at *398.

[141] Id. at *399.

[142] Id.

[143] Id.

[144] Id. at *404.

[145] See T.C. Memo. 2003-145, 2003 WL 21166046, at *12-18.

[146] 148 T.C. No. 18, at *401 (citing I.R.C. § 2036(a)(2)).

[147] Id.

[148] See Id.

[149] Id. at *401-02.

[150] Id. at *404.

[151] Id.

[152] Id.

[153] Id.

[154] Id.

[155] T.C. Memo. 2020-40, 2020 WL 1685607.

[156] Id. at *1.

[157] Id. at *2.

[158] Id.

[159] Id.

[160] Id.

[161] Id. at *3.

[162] Id. at *2.

[163] Id. at *6.

[164] Id.

[165] Id. at *9.

[166] Id. at *12.

[167] Id. at *13.

[168] Id. at *12.

[169] Id. at *11-12.

[170] Id. at *12, *12 n.16.

[171] Id. at *12.

[172] See Strangi, supra notes 116-17.

[173] T.C. Memo 2020-40, 2020 WL 1685607, at *12-13.

[174] Id.

[175] Id.

[176] See Strangi, supra note 119.

[177] Id. at *13.

[178] Id.

[179] Id.

[180] Id. See also, Estate of Thompson v. Comm’r, 382 F.3d 367, 373 (3d Cir. 2004), aff’g T.C. Memo. 2002-246, 2002 WL 31151195 (stating the Tax Court acknowledged the decedent’s transfers altered the “formal relationship” between decedent and his assets, however, as a practical matter, “nothing but legal title changed[]” (quoting T.C. Memo. 2002-246, 2002 WL 31151195, at 387)); Estate of Rosen v. Comm’r, T.C. Memo. 2006-115, 2006 WL 1517618, 91 T.C.M. (CCH) at 1235-36 (explaining given decedent’s old age and poor health, it was implied that decedent’s children would not prevent her from continuing to use her transferred assets).

[181] Id. Because the Tax Court held for inclusion under I.R.C. § 2036(a)(1), the court did not address the Commissioner’s alternative arguments that decedent’s estate plan triggered inclusion under I.R.C. § 2036(a)(2); or that the subsequent transfer of the Living Trust’s assets to the Irrevocable Trust also triggered their inclusion under I.R.C. § 2036. Id. at *13, n.17.

[182] Kimbell v. United States, 371 F.3d 257, 261 (5th Cir. 2004).

[183] Estate of Moore v. Comm’r, T.C. Memo. 2020-40, 2020 WL 1685607, at *10 (citing Estate of Bongard v. Comm’r, 124 T.C. 95, 112 (2005)).

[184] Id. (citing Kimbell, 371 F.3d at 261).

[185] See Estate of Bongard v. Comm'r, T.C. No. 8, at *117-18 (2005) (citing Estate of Stone v. Comm’r, T.C. Memo. 2003-309; Estate of Harrison v. Comm’r, T.C. Memo. 1987-8; Estate of Harper v. Comm’r, T.C. Memo. 2002-121); Estate of Moore v. Comm’r, T.C. Memo 2020-40, 2020 WL 1685607, at *9, *11-12.

[186] Estate of Bongard, T.C. No. 8, at *117-18 (2005).

[187] Estate of Moore, T.C. Memo 2020-40, 2020 WL 1685607, at *10 (citing Estate of Bongard, T.C. No. 8, at *117-18 (2005)).

[188] Strangi v. Comm’r, 417 F.3d at 476 (quoting United States v. Byrum, 408 U.S. 125, 145 (1972)).

[189] Estate of Strangi v. Comm’r, T.C. Memo. 2003-145, 2003 WL 21166046, at *16 (2003).

[190] See id. at *12, *16 (discussing decedent’s ability to act alone, or through his attorney-in-fact, to cause distributions of property previously transferred to partnership triggers inclusion under I.R.C. § 2036).

[191] Estate of Powell v. Comm’r, 148 T.C. No. 18., at *401 (2017).

[192] Estate of Wyly v. Comm’r, 610 F.2d 1282, 1290 (5th Cir. 1980).

[193] I.R.C. 2035; I.R.C. 2036.

[194] Julia Kagan, Three-Year Rule, Investopedia, (June 20, 2020), (last visited August 1, 2020).

[195] Will Kenton, Bundle of Rights, Investopedia (May 19, 2019), (last visited August 1, 2020).

[196] Id.

[197] See Estate of Moore v. Comm’r, T.C. Memo. 2020-40, 2020 WL 1685607, at *14-19. I.R.C. § 2043 provides for a consideration offset for some lifetime transfers by a decedent that I.R.C. §§ 2035-2038 include in the gross estate resulting in a net inclusion amount. Benjamin A. Cohen-Kurzrock, Estate of Moore: Tax Court Finds Estate Tax Traps in ‘Deathbed’ Plan, Tax Practice: Tax Notes Federal 1359, 1361 (May 25, 2020). In Estate of Powell, the Tax Court stated the net inclusion amount as “equal[ing] any discount applied in valuing the partnership interest the decedent received plus any appreciation (or less any depreciation) in the value of the transferred assets between the date of the transfer and the date of death.” 148 T.C. at 408 n.7. This method for determining the net inclusion amount does have the downside of possibly double counting increases or decreases in transfer tax depending on whether posttransfer valuation increases or declines in the value of the transferred assets are reflected in the value of the closely held interest owned by the decedent. Cohen-Kurzrock, at 1361-62. In order to protect against this possible duplication, the Tax Court in Estate of Moore provided a formula for determining the appropriate inclusion amount and provided four hypothetical examples of its application. See Estate of Moore, at *14-16.

[198] T.C. Memo. 2020-40, 2020 WL 1685607, at *2.

[199] Id. at *13-14.

[200] Id. at *12.

[201] Powell, 2017 WL 2211398, at *2.

[202] Id. at *404.

[203] Id.

[204] See Estate of Moore v. Comm’r, T.C. Memo. 2020-40, 2020 WL 1685607, at *12.

[205] 417 F.3d 468, 477-78.

[206] Id.

[207] T.C. Memo. 2020-40, 2020 WL 1685607, at *12-13.

[208] See Estate of Bongard v. Comm'r, T.C. No. 8, at *122-25 (2005).

[209] Id. at 122, 123.

[210] Estate of Moore v. Comm’r, T.C. Memo. 2020-40, 2020 WL 1685607, at *11.

[211] See Estate of Powell v. Comm’r, 148 T.C. No. 18, at *401 (2017).

[212] Estate of Moore v. Comm’r T.C. Memo 2020-40, 2020 WL 1685607, at *5.

[213] Strangi v. Comm’r, 417 F.3d 468, 478 (5th Cir. 2005).

[214] Id. at *15-16.

[215] Estate of Powell v. Comm’r, at *401 (citing I.R.C. § 2036(a)(2)).

[216] Estate of Bongard v. Comm’r, 125 T.C. 95, 112 (2005).

[217] See Estate of Moore v. Comm’r T.C. Memo 2020-40, 2020 WL 1685607, at *10.

[218] Id.

[219] 125 T.C. 95, 112 (2005).

[220] See T.C. Memo 2020-40, 2020 WL 1685607, at *10.