Tuesday, September 30, 2008
Mitchell M. Gans (Hofstra), Bridget J. Crawford (Pace) & Jonathan G. Blattmachr (Milbank, New York) have published The Estate Tax Fundamentals of Celebrity and Control, 118 Yale L.J. Pocket Part 50 (2008). Here is part of the Introduction:
We previously suggested in this Journal [Postmortem Rights of Publicity: The Federal Estate Tax Consequences of New State-Law Property Rights, 117 Yale L.J. Pocket Part 203 (2008)] that post-death publicity rights could be excluded from the decedent’s estate for tax purposes if state legislation precluded the decedent from exercising post-death control. In other words, if state legislation designated who would hold these rights after the decedent’s death, the value of these rights should not be subject to estate tax. Professor Joshua Tate, in his response to our essay [Marilyn Monroe's Legacy: Taxation of Postmortem Publicity Rights, 117 Yale L.J. Pocket Part 38 (2008)], argues that under current law, estate tax inclusion would be required regardless of the decedent’s ability to exercise control. So, for example, in Professor Tate’s analysis, the estate tax would apply even if the legislation vested those rights in the decedent’s oldest daughter and even if the decedent had no right to alter this outcome. Professor Tate’s analysis misconstrues fundamental estate tax principles and misunderstands the precedents on which he relies [citing Paul L. Caron, Estate Planning Implications of the Right of Publicity, 68 Tax Notes 95 (1995)].