Tax Notes has published an article by Lee A. Sheppard, exploring the constitutionality of reinstating an estate tax. Sheppard thoroughly analyzes United States v. Carlton, 512 U.S. 26 (1994), which allowed retroactive taxation where the tax was not considered a "new" tax. Sheppard also examines a litany of other retroactive tax cases which suggest a short period of retroactivity is acceptable. The article concludes by examining why (and why not) an estate tax in 2010 would be considered a "new" tax.
See Lee A. Sheppard, "Would Estate Tax Reinstatement be Constitutional?" 2010 TNT 11-4, January 12, 2010.
Posted by Evan L. Abrams, Esq., Associate Editor, Wealth Strategies Journal
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