Gift and Estate Tax Shelters Have Saved $100 Billion in Federal Taxes for the Wealthy Since 2000
December 17, 2013
Bloomberg - Sheldon Adelson makes no secret of his disdain for the estate tax.
"How many times
do you have to pay taxes on money?" the casino magnate asks, leaning on
a blue cane on the cobblestones of Wall Street on a crisp October
morning.
A gravel-voiced man
whose accent recalls his blue-collar Boston roots, Adelson, 80, has just
rung the bell at the New York Stock Exchange. Shares of his Las Vegas
Sands Corp. are at a five-year high, making him one of the world's
richest men, worth more than $30 billion.
Federal law requires
billionaires such as Adelson who want to leave fortunes to their
children to pay estate or gift taxes of 40 percent on those assets.
Adelson has blunted that bite by exploiting a loophole that Congress
unintentionally created and that the Internal Revenue Service
unsuccessfully challenged.
By shuffling his company stock in and
out of more than 30 trusts, he's given at least $7.9 billion to his
heirs while legally avoiding about $2.8 billion in U.S. gift taxes since
2010, according to calculations based on data in Adelson's U.S.
Securities and Exchange Commission filings.
Hundreds of executives
have used the technique, SEC filings show. These tax shelters may have
cost the federal government more than $100 billion since 2000, says
Richard Covey, the lawyer who pioneered the maneuver. That's equivalent
to about one-third of all estate and gift taxes the U.S. has collected
since then.
Easy Bypass
The popularity of
the shelter, known as the Walton grantor retained annuity trust, or
GRAT, shows how easy it is for the wealthy to bypass estate and gift
taxes. Even Covey says the practice,
which involves rapidly churning
assets into and out of trusts, makes a mockery of the tax code.
"You can certainly say we can't let this keep going if we're going to have a sound system," he says with a shrug.
Covey's
technique is one of a handful of common devices that together make the
estate tax system essentially voluntary, rendering it ineffective as a
brake on soaring economic inequality, says Edward McCaffery, a professor
at the University of Southern California's Gould School of Law.
Since
2009, President Barack Obama and some Democratic lawmakers have made
fruitless proposals to narrow the GRAT loophole. Any discussion of tax
shelters has been drowned out by the debate over whether to have an
estate tax at all, McCaffery says.
‘Campaign Donors'
"From
the Republican side of the aisle, you're committed to killing the
thing," he says, adding that Democrats don't want to tackle an issue
affecting a handful of people. "And that handful are all in the class of campaign donors."
Facebook Inc. Chief Executive Officer Mark
Zuckerberg and Lloyd Blankfein, the CEO of Goldman Sachs Group Inc., are
among the business leaders who have set up GRATs, SEC filings show.
JPMorgan
Chase & Co. helps so many clients use the trusts that the bank has a
special unit dedicated to processing GRAT paperwork, says Joanne E.
Johnson, a
JPMorgan private-wealth banker.
"I have a client who's done
89 GRATs," she says.
Goldman Sachs disclosed in a 2004 filing that
84 of the firm's current and former partners used GRATs. Blankfein has
transferred more than $50 million to family members with little or no
gift tax due, according to calculations based on data in his SEC
filings.
Charles Ergen, chairman of Dish Network Corp., and
fashion designer Ralph Lauren passed more than $300 million each,
calculations from SEC filings show.
Blankfein, Ergen, Lauren and Zuckerberg declined to comment.
Devising Strategies
Congress
enacted the estate tax in 1916 to apply to large fortunes at death.
Eight years later, it added the related gift tax to cover transfers made
before death. Both rates are currently 40 percent, and the first $5.25
million of an individual's wealth is exempt; the amount is $10.50
million for couples.
For as long as such levies have been on the books, lawyers have been devising strategies to get around them.
Congress
created the GRAT while trying to stop another tax-avoidance scheme that
Covey developed. In 1984, Covey, a lawyer at Carter Ledyard &
Milburn LLP in New York, publicized an estate-tax shelter he'd invented
called a grantor retained income trust, or GRIT.
Covey figured out
how to make a large gift appear to be small. He would have a father,
for example, put investments into a trust for his children, with
instructions that the trust should pay any income back to the father.
The value of that potential income would be subtracted from the father's
gift-tax bill.
Growth Stocks
Then, the
trust could invest in growth stocks that paid low dividends so that most
of the returns still ended up going to his kids.
Six years after Covey
started promoting this technique, Congress termed it abusive and passed a
law to stop it. The 1990 legislation replaced the GRIT with the
GRAT, a government-blessed alternative that allowed people to keep
stakes in gifts to their children while forbidding the abuse Covey had
devised.
Covey studied the law and found an even bigger loophole.
"The change that was made to stop what they thought was the abuse, made
the matter worse," he says.
Fredric Grundeman, who helped draft
the bill while he was an attorney at the U.S. Treasury Department and is
now retired, says the framers didn't recognize the new law's potential
for abuse.
Flawed Thinking
"How do I say it?" Grundeman says. "When Congress enacts a law, it isn't always well thought out."
Covey,
84, a Missouri native and former U.S. Marine Corps basketball player
who earned a law degree from Columbia Law School in 1955,
uses the words
"romantic" and "beautiful" to describe the most elegant tax maneuvers.
Covey
recognized that a client could use the 1990 legislation to avoid gift
taxes if he did something that would otherwise make no sense: put money
in a trust with instructions to return the entire amount to himself
within two years. Because he doesn't have to pay tax on a gift to
himself, the trust incurs no gift tax. Covey calls the trust "zeroed
out."
Because the client isn't paying any tax upfront, the
transaction amounts to a can't-lose bet with the IRS. If the trust's
investments make large enough gains, the excess goes to heirs tax-free.
If not, the only costs are lawyer's fees, typically $5,000 to $10,000,
Covey says.
Zeroed-Out
Three years after
the new law took effect, Covey created a pair of $100 million zeroed-out
GRATs for Audrey Walton, the former wife of the brother of Wal-Mart
Stores Inc. founder Sam Walton. The IRS, which had banned such GRATs
through regulation, demanded taxes and took her to court.
In 2000,
the U.S. Tax Court found in Walton's favor, determining the 1990 law
didn't prohibit a "zeroed-out" GRAT. Covey had won a rare prize: an
official seal of approval for a tax shelter.
Two years after
Covey's court victory, Adelson set up a GRAT called the "Sheldon G.
Adelson 2002 Two Year LVSI Annuity Trust," Adelson's SEC filings show.
B
y 2009, he was juggling chunks of his fortune in as many as 10 GRATs at
a time, filings show.
Adelson once discussed his approach to inheritance taxes in a legal deposition.
"Listen,
the law says you can avoid taxes but you can't escape taxes," Adelson
testified as part of a 1997 lawsuit over an unrelated business dispute.
"We just want to do what is right, but it is prudent and it's wise to
prepare your estate to save taxes."
Political Donations
The
son of a cabdriver from Lithuania, Adelson started his first business
at the age of 12, selling newspapers with the help of a $200 loan. He
got rich in the 1980s as the owner of a company that organized computer
trade shows. Later, he bought the Sands Hotel and Casino in Las Vegas.
A
globe-spanning casino and resort empire followed.
He drew national
attention in 2012 by donating more than $90 million to groups that
supported Republican candidates, including Mitt Romney, the presidential
nominee and an estate-tax opponent.
In November 2010, Adelson sat
for an interview with a Bloomberg News reporter in Las Vegas Sands'
corporate boardroom, tucked inside the palatial Venetian resort. He
spoke of the perks of being gambling's richest man:
His weekend home in
Malibu, California; the homes in Israel and the south of France; the six
jets that ferry his family between them.
‘Extremely Gratifying'
Adelson
had recently rescued Las Vegas Sands from the brink of bankruptcy. His
company's stock, which lost more than 90 percent in 2008, had recovered
almost half of its value. That was good news for his place on the list
of the world's richest people, a ranking that he follows closely.
"I
don't need to pat myself on the back to say, look at all the good
things I did," he said. "But the success and the comeback that I've
enjoyed, and the company's enjoyed, have been extremely gratifying."
The
share gains were also good for Adelson's tax shelters. That's because
after Sands stock plunged in 2008, Adelson plowed even more of his
fortune into new GRATs, the SEC filings show. When the stock rebounded,
those GRATs swelled in value.
A few days after the interview,
he
would pour $725 million from one of his GRATs into trusts for the
benefit of his family. If he'd given the same amount to family members
without using a GRAT, it would have resulted in a gift-tax bill of more
than $250 million.
25 GRATs
In
all, Adelson and his wife, Miriam, have created at least 25 GRATs. At
least 14 of the 25 trusts were zeroed out, according to the calculations
based on SEC filings. Those trusts transferred at least $7.9 billion to
family members, an amount that would otherwise have incurred gift taxes
of $2.8 billion.
Adelson has six living children, including two
teenage sons.
By early 2012, more than a third of Adelson's stake in the
Sands -- worth more than $10 billion today -- had already passed
through GRATs to trusts overseen by his wife for the benefit of his
family.
The titles of some of those trusts start with the first
letters of his children's names. Later, more GRATs added another $3
billion to the heirs' trusts.
Outside the stock exchange in
October, Adelson declined to comment on GRATs. Later, he passed a
message along through Ron Reese, his publicist.
"Mr.
Adelson did tell me to tell you that he has no intention of ever
dying," Reese says. ‘So the estate-planning conversation is moot.''
Lawyers Tweak
Since
Covey's triumph in the Walton case, lawyers have tweaked his technique
to generate even more tax savings. One idea, used by former Aetna Inc.
CEO John W. Rowe, puts corporate stock options into a GRAT.
Another,
championed by Goldman Sachs banker Stacy Eastland in presentations at
estate-planning conferences, envisions a husband funding a GRAT with the
proceeds of an options bet with his wife.
"It's very common," Rowe says, referring to the use of GRATs. "It's become standard practice in estate planning."
Charles
Dolan, whose family controls the New York Knicks basketball team and
who is chairman of Cablevision Systems Corp.,
has repeatedly swapped
Cablevision shares out of his GRATs and replaced them with IOUs, his SEC
filings show.
The technique multiplies the potential tax savings,
according to a 2008 report by analysts at AllianceBernstein Holding LP.
Through a spokeswoman, Dolan declined to comment.
Not Pressing
The
GRAT loophole is unlikely to be plugged anytime soon. President Obama
has included a proposal to limit the GRAT technique in each of his
annual budget plans
but hasn't pressed Congress to act on it, says
Kenneth Kies, a Republican tax lobbyist.
Committees in the House
and Senate are working on what they call comprehensive tax overhaul
bills.
Neither plans to address estate or gift taxes.
Covey
suggests one reason for the lack of action: Wealthy donors to
politicians, both Democratic and Republican, want to keep the loophole
in place.
"I've done a lot for Democratic contributors," he says with a smile.
No
one knows for sure how much all of these GRATs cost the U.S.
government.
The IRS estimates the number of gift-tax returns filed in
connection with new GRATs each year; there were about 1,946 in 2009,
according to the most recent publicly available data.
Taxpayers don't have to report how much each GRAT ultimately passes to heirs.
It's
as if Covey built an invisible highway bypass that carries some of the
biggest fortunes past the tax man's tollbooth. He marvels at the
billions that flow along this route.
"It boggles the mind," he says.