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Carryover Basis

United States. Congress. Senate. Committee on Finance. Subcommittee on Taxation and Debt Management Generally

Published: 1979

Total Pages: 206


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For close to a century, an important (but unfortunate) feature of the Internal Revenue Code has been a rule that the tax basis of any asset is made equal to its fair market value at death. Notwithstanding the substantial revenue losses associated with this rule, Congress has retained it for reasons of administrative convenience. But from three different vantage points, pressure has been mounting to change what is commonly referred to as the “step-up in basis rule.” First, politicians and commentators have historically tied the step-up in basis rule to the estate tax on the theory that income be taxed only once, rather than twice. However, with the recent emasculation of the transfer tax regime, no estate tax is levied in most cases, while taxpayers routinely capitalize on the step-up in basis rule. On another front, technological advances have greatly simplified tax basis identification and record keeping, making a carryover tax basis regime eminently feasible, which it previously was not. Finally, in an era of growing income inequality, retention of a rule that primarily benefits the wealthy seems wholly unjustified, necessitating reform. Congress essentially has two different reform options to consider, namely, a deemed realization rule or a carryover tax basis rule. While a deemed realization rule has many advantages, it appears to be politically unachievable, at least for the time being, due to liquidity and administrative concerns. On the other hand, in light of the fact that a carryover tax basis rule is widely utilized, vetted, and accepted in the related context of inter vivos gift giving, extending its application to transfers at death appears entirely feasible. Its institution would have many virtues, including improved administrability, equity, and revenue generation.
By reinstituting a carryover basis, Congress can increase revenues by billions. The carryover basis would make tax law more fair by increasing economic efficiency by unlocking capital while maintaining rates, reinstituting a capital gains preference, or adding new taxes. Section 1023 would have provided a carryover a basis for property acquired from decedents but never took effect because the Crude Oil Windfall Profit Tax Act of 1980 repealed section 1023 retroactively and reinstituted the stepped-up basis rule of section 1014. No convincing rationale for the stepped-up death-basis rule has ever been offered; yet, one might reasonably speculate that the real objection was not section 1023's complexity, but its substance -- the repeal of part of the estate planners' stock in trade. Three developments have occurred since the repeal of section 1023 that potentially make stepped-up basis a more vulnerable target for reform. First, the Economic Recovery Tax Act of 1981 [describe what it did using verbs]. Second, the Tax Reform Act of 1986 [describe what it did using verbs]. Third and possibly the consideration that would provide the major impetus for the repeal of stepped-up basis, is the budget deficit [describe how the deficit is affected by the 1981 legislation using verbs].