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Tea Leaves and Storm Warnings: How the Biden Tax Agenda Could Affect Charitable Gift Planning

With control of the Senate shifting to the Democratic party caucus, it becomes reasonable to speculate that some components of President Biden's tax agenda may be enacted as early as 2021, and that some of it may be made retroactive to the start of the current tax year.

In this hour, we will look at several key elements of that agenda that might strengthen or weaken tax incentives for charitable gift planning, notably a ratcheting back of the estate and gift tax exclusion amounts to 2009 levels, with an increase in the top marginal rates, elimination of the "zeroed out" grantor retained annuity trust as a gift tax leveraging strategy, an increase in the marginal rates at which long-term capital gains are taxed at higher income levels, among others.

We will examine more closely any legislation actually pending at the time of the program, tracking its progress through committees to the floor.

Time permitting, we will also take a look at recent decisions from the Tax Court that could affect wealth transfer planning generally and charitable gift planning in particular.

Russ Willis is a tax lawyer and a consultant to other lawyers -- an advisor to the advisor -- on issues arising in connection with wealth transfers. Much of his practice is focused on structuring charitable contributions of closely held business and real property interests.

 Among his other engagements, Russ is a manager of noncash research for Charitable Solutions, LLC, a planned gift risk management consulting firm headed by Bryan Clontz, and he is the director of the Greystocke Project, a 501(c)(4) that works to raise awareness of trends in the law, both tax and nontax, that tend to exacerbate wealth disparities in this country, and to advocate for selected legislative, regulatory, and judicial countermeasures.

For ten years, he wrote for a subscription website that provided daily coverage and in-depth analysis of developments in tax law affecting charitable gift planning. About three years ago, he launched his own newsletter, the Jack Straw Fortnightly, analyzing current developments in the law -- both tax and nontax -- concerning the transfer of private wealth in this country.

As a practicing lawyer in St. Louis, Missouri, for more than 20 years, Russ chaired the Steering Committee of the Probate and Trust Law Section of the local bar association and served for years on a legislative drafting subcommittee of the Probate and Trust Law Committee of the State Bar. As an adjunct member of the faculty at the St. Louis University School of Law, he taught courses in future interests and tax-driven estate planning.

Russ has written numerous articles for law journals and publications serving the charitable planned giving profession, and he has been a frequent speaker at seminars for lawyers and for charitable gift planners. 

Russ has a law degree from St. Louis University and a master's degree in Taxation Law from Washington University in St. Louis. His undergraduate degree in English Literature is from Indiana University, Bloomington, and he has a master's degree in English from the University of Chicago.