Inheritance in Socio‐Political Context: The Case for Reviving the Sociological Discourse of Inheritance Tax Law

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Cited in

DOI	http://doi.org/10.1111/j.1467-6478.2007.00405.x
Published date	01 December 2007
Author	Ann Mumford
Date	01 December 2007

JOURNAL OF LAW AND SOCIETY

VOLUME 34, NUMBER 4, DECEMBER 2007

ISSN: 0263-323X, pp. 567±93

Inheritance in Socio-Political Context:

The Case for Reviving the Sociological

Discourse of Inheritance Tax Law

Ann Mumford*

The anti-`death tax' movement is the starting point for contemporary

discussions of inheritance taxation. The political rhetoric surrounding

calls for its repeal typically is met with analyses of the extent to which

inheritance tax avoidance benefits the wealthy, and arguments that

inheritance taxation is fair and `targeted'. This article suggests that

engagement by tax lawyers with sociological theories of economic

inheritance has the potential to revive this discourse. A renewed

approach to inheritance taxation is of immediate concern to

supporters of inheritance taxation in the United Kingdom, who face

considerable obstacles posed by the increasing use of United States

anti-inheritance tax movement political rhetoric by politicians.

Durkheim's consideration of the conjugal family and, more recently,

Beckert's sociology of inheritance are submitted as analyses that,

amongst others, have particular potential. Such engagement also has

the potential to revive the interest of sociologists in inheritance

taxation, memorably described by MacNamee an d Miller as a

`sociological lacuna.'

INTRODUCTION: THE VICTIM IS DEAD

Within limits, no economist will question the propriety of laying taxes on

bequests and inheritances. They are collected with ease and reasonable

certainty. They fall upon something which the taxpayer has never yet enjoyed

and the diminution of which he therefore does not fully miss. The goose, to

follow Colbert's maxim, is plucked so as to get the most feathers with the least

567

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School. Published by Blackwell Publishing Ltd,

9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

*Queen Mary University, Mile End Road, London E1 4NS, England

a.c.mumford@qmul.ac.uk

The author wishes to thank the anonymous referees for this journal for their invaluable

assistance.

squealing, and almost with none. Live goose feathers, indeed, are not required.

The real victim is dead.

In 1905, Simeon Baldwin argued that the case for inheritance taxation is

simple. As long society agrees that some form of taxation is necessary to

fund government, then inheritance taxation should be one of the least

controversial forms of tax assessment and collection. `The real victim is

dead', as Baldwin suggested, and therefore not in a position to protest.

Supporters of inheritance tax would view this suggestion nostalgically, for

much has changed. Essentially, opposing inheritance taxation appears to be

popular amongst voters,

and analyses have paused to grapple with this

difficulty.

A revival of this discussion may be enhanced through engage-

ment between sociologists and tax legal theorists, who, together, could

reclaim the discourse of inheritance tax law.

This article does not suggest that inheritance tax in the United Kingdom is

in any immediate danger. The efforts of, for example, Stephen Byers, have

decreased in political significance, and there is little possibility of the anti-

inheritance tax platform of the United Kingdom Independence Party

finding

its way to Downing Street. Perhaps most importantly, the Prime Minister

made his support for inheritance taxation clear during his tenure as Chan-

cellor of the Exchequer.

Nonetheless, this article submits that an informed

568

1S.Baldwin, `The Modern ``Droit D'Aubaine''' (1905) 14 Yale Law J. 129±47, at

133. Simeon Baldwin was a professor at Yale Law School, and later governor of

Connecticut.

2 id.

3 Seemingly across geographical boundaries: see A. Massone and C. Massone,

``Should the death tax die? And should it leave an inheritance?' at

econpapers.repec.org/paper/ucaucapdv/22.htm>; see, also, L.M. Bartels, `Homer

Gets a Tax Cut: Inequality and Public Policy in the American Mind' (2005) 3

Perspectives on Politics 15; M. Birney and I. Shapiro, `The Political Uses of Public

Opinion: Lessons from the Estate Tax Repeal' (2005) at

polisci/info/conferences/DistributivePolitics/papers/Birney%20_Shapiro.pdf>; M.A.

Smith, (review article) `Does Business Learn?: Tax Breaks, Uncertainty, and

Political Strategies. By Sandra L. Suarez' (2005) 95 American Political Science

Rev. 487. But things may be changing: see A.D. Postal, `Senate Votes show repeal

of estate taxes is losing steam' National Underwriter/Life & Health Financial

Services,4February 2007, 6±33.

4 See D.W. Matthews, `A Fight to the Death: Slaying the Estate Tax Repeal Hydra'

(2006) 28 Whittier Law Rev. 663; R. Safford, `Information Asymmetry, Race, and

the ``Death Tax'' ' (2006) 13 Washington and Lee J. of Civil Rights and Social

Justice 117; and E.J. McCaffery and L.R. Cohen, `Shakedown at Gucci Gulch: The

New Logic of Collective Action' (2006) 84 North Carolina Law Rev. 1159.

5UKIP's anti-inheritance tax platform is at

ukipflattaxpolicy.pdf>.

6 The strongest evidence of this is his last Budget Speech,

treasury.gov.uk/budget/budget_07/bud_bud07_speech.cfm>. This article went to

press before Alistair Darling's pre-Budget report on 10 October 2007. Nonetheless,

the arguments within this article are strengthened by these recent developments in

inheritance tax law.

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

dialogue on the propriety of inheritance taxation is of immediate importance

to supporters of an inheritance tax, and as a response to the `anti-death tax'

movement.

Sociologists and tax lawyers have seldom discussed economic

inheritance.

This article will place inheritance tax within standard

sociological discourse of economic inheritance.

The article will trace the twentieth-century evolution of the United

Kingdom's inheritance tax from the darling of economists, to the bane of

populists. What happened to inheritance taxation in the United States, and

why it matters in the United Kingdom, will be explained.

Inheritance

taxation is an emotive topic, with uncertain political fortunes. Traditional

economic arguments concerning inheritance taxation, such as economic

efficiency, progressivity, and fairness (especially in light of conflicts con-

cerning the rising value of the family home) will be placed in context. The

objective is to place inheritance tax within the context of sociological theories

of economic redistribution. The significance of the language used to describe

inheritance taxation (whether `death taxes', `estate taxes' or `inheritance

taxes') will be considered. The conflicts that arise over the treatment of `adult

children' also will be addressed. This article will not suggest that taxpayers

will ever happily pay any tax, never mind inheritance tax, but it will attempt

to challenge assumptions found in inheritance tax debate.

PROPOSED TARGET OF SOCIOLOGICAL INQUIRY:

INHERITANCE TAX LAW IN THE UNITED KINGDOM

From an economic perspective, perhaps it is surprising that inheritance

taxation is controversial. Imposition on the wealth of dead people should

lessen the amount that is needed from living taxpayers. Dead taxpayers will

not hire advisers to help them avoid their obligations, and will not complain

569

7 There is `a small but growing number of developed countries in which taxes on the

transfer of wealth have been abolished': D.G. Duff, `The Abolition of Wealth

Transfer Taxes: Lessons from Canada, Australia, and New Zealand' (2005) 3

Pittsburgh Tax Rev. 1.

As opposed to the vibrant discourse on cultural inheritance. Reviews of this vast

literature include: A. Portes, `Social Capital: Its Origins and Applications in Modern

Sociology' (1998) 24 Annual Rev. of Sociology 1; R. Boyd and P.J. Richerson, Culture

and the Evolutionary Process (1988); M. Egerton, `Occupational Inheritance: The Role

of Cultural Capital and Gender' (1997) 11 Work, Employment and Society 263.

Amongst the leading theorists (discussed in these works) who consider cultural

inheritance are Durkheim (for example, E. Durkheim and R.N. Bellah, E

Âmile Durkheim

on Morality and Society: Selected Writings (1973)) and Giddens (for example, A.

Giddens, The Constitution of Society: Outline of Theory of Structuration (1986)).

9 Although a recent vote in the US Senate (Postal, op. cit., n. 3) may indicate that the

prospects of the estate tax are stronger there than writers such as Graetz and Shapiro

fear. M.J. Graetz and I. Shapiro, Death by a Thousand Cuts: The Fight Over Taxing

Inherited Wealth (2005), especially ch. 9.

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about the intrusion of Revenue in their affairs. The impact upon dead

taxpayers of the taxes collected should be minimal.

The beneficiaries of dead taxpayers may not view such taxation as

blithely as Simeon Baldwin, but they might be viewed as unlikely to pose too

much of a problem. Beneficiaries also are lucky people, as they inherit

money and assets which they, personally, may not have earned. The taxman

may interfere with this, but, essentially, their good fortune remains. Any

strong degree of protest might be viewed, politically, as unimportant.

The political reality at present, however, is quite different. Decried as the

most unfair of all taxes, inheritance taxes have been denounced as little

better than attempts to confiscate property from grieving relatives.

The

current United Kingdom repeal movement was inspired by the striking

abolition of the federal inheritance tax in the United States, which was the

fulfilment of a promise made by George W. Bush during the 2000

presidential election campaign, and is also only temporary. As the issue will

be considered again in 2010,

the rhetoric to keep the `unfair' and `un-

American' tax at bay is heated. The reaction of United States tax law

scholars has been led Graetz and Shapiro, who have expressed surprise at

this turn of events.

Tax scholars are starting to show interest in the change

in political scene for inheritance tax in the United Kingdom,

which Tiley

has described as involving a `much more determined agenda'.

In the United States, the inheritance tax affected only a small proportion of

the overall population, and yet a majority of the population strongly supported

its repeal.

That the inheritance tax should be so unpopular, thus, did not

appear to be rational, yet its repeal provided a great deal of political capital for

Republican politicians.

Efforts to abolish the inheritance tax in the United

Kingdom perhaps are motivated by similar ambitions for political reward.

A sociological discourse on inheritance taxation promises to move beyond

politics, and past subjects of fairness, avoidance, and politics, which are the

standard concerns of tax legal theory. It offers reconsideration of the value of

inherited property, but also (through Durkheim, and, to some extent, Marx)

acknowledgment of the relationships that build between people in the

creation of wealth ± a point with much potential on the subject of the `family

570

10 S. Byers, `Next Labour PM Must Abolish Inheritance Tax' Daily Telegraph,20

August 2006.

11 See Economic Growth and Tax Relief Reconciliation Act of 2001.

12 See Graetz and Shapiro, op. cit., n. 9.

13 See C. Pratten, `Gordon Brown Counts Dead Children: The True Impact of

Inheritance Tax' (2006) 26 Economic Affairs 74; Duff, op. cit., n. 7, at p..48, fn. 318;

and, Massone et al., op. cit., n. 3.

14 J. Tiley, `Death and Taxes' (2007) Brit. Tax Rev. 300±19, at 319.

15 See Graetz and Shapiro, op. cit., n. 9, at pp. 3±11, discussing `A Political Mystery'.

Only 6 per cent of estates pay inheritance tax in the United Kingdom: Pratten, op.

cit., n. 13.

16 `Genesis of the Repeal Coalition', Graetz and Shapiro, id., at pp. 12±23.

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

home.' Finally, it provides a link between theories of inequality and different

forms of inherited wealth.

This section will provide an introduction to the material with which the

theories would need to work: inheritance tax law in the United Kingdom. On

the one hand, the subject is relatively straightforward. Inheritance tax is

intended to tax transfers of wealth at, or shortly before, death.

Transfers

which fall below a minimum threshold will not be taxed.

Inheritance tax is

levied on amounts which exceed this threshold, and at a rate of 40 per cent

for transfers made up to three years before death, and for those made after

death.

As a general rule, if transfers of wealth occur between three and

seven years before death, they will be taxed at a reduced rate.

If transfers

are made more than seven years before death, they will not be taxed.

Transfers between spouses and civil partners, and to political parties and

charities are exempt from inheritance tax.

Assets associated with small

businesses and farms may receive relief, achieved by reducing the value of

the asset between 50 per cent and 100 per cent.

On the other hand, however, inheritance tax law has a very long history in

the United Kingdom (even pre-dating the Union), and is difficult to

summarize succinctly. Indeed, some form of inheritance taxation has been

traced back to 2000 BC.

As Carrington wrote in 1920:

Death duties had their origin perhaps in ancient Egypt. They were imposed in

Rome under the Emperor Augustus, and have been more or less constantly

571

17 See the analyses in C.D. Harbury and D.M.W.N. Hitchens, Inheritance and Wealth

Inequality in Britain (1979). From a study of patterns of inheritance by wealthy

British sons, Harbury and Hitchens drew the conclusion that restrictions upon

bequests were likely to have an ameliorative impact upon economic inequality. This

study was widely influential, and was described by Sandford as providing a `. . .

quanitif[ication] of the importance of inheritance in the distribution of wealth.' (C.

Sandford, `Review (1980) 90 Economic J. 674.)

18 S. Adam and J. Browne, A Survey of the United Kingdom Tax System (2006) 16±17.

19 Finance Act 2006, pt. VI, s. 155 provides the rates and rate bands for 2008±2009

(£312,000) and 2009±2010 (£325,000). The 2007 Budget set the limit for 2010±

2011 at £350,000.

20 Adam and Browne, op. cit., n. 18. See Inheritance Tax Act 1984, ch. 51.

21 See Inheritance Tax Act 1984, ch. 51, s. 7 (hereafter, IHTA 1984).

22 id.

23 id., at s. 18. The United Kingdom government recently was challenged in the

European Court of Human Rights in the case of Burden & Anor v. United Kingdom

(2007) 44 EHRR 51, on the question of whether cohabiting sisters should receive the

same inheritance tax exemptions as spouses and civil partners. The Court held that it

was reasonable to deny the sisters this exemption, and accepted the United

Kingdom's contention that the exemption was designed to promote family stability

between spouses and civil partners, exclusively.

24 IHTA 1984, s. 16.

25 M.H. Hunter, `The Inheritance Tax' (1921) Annals of the Am. Academy of Political

and Social Science 165±80, at 165.

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recognised as a proper source of revenue of all civilised nations in one form or

another, ever since that time.

Additionally, this history is not untroubled, and indeed there are various

moments of historic controversy revealing the sensitivity of such a tax. Two

examples, in particular, are relevant to this paper.

First, in 1796, Pitt and others worried that a tax on property might inter-

fere with the right to own land.

Taxes on death, nonetheless, were common

during this era,

if not necessarily onerous.

In fact, Jenkins suggested that

there was `gross discrimination in favour of land'

under this system, and

amendments by Harcourt were designed to remedy this.

The amendments

were successful, such that, decades later, Victorian Britain relied heavily on

death duties, even during an era which history has celebrated more for its

development of the income tax.

Such reservations resurfaced a second time, more than two hundred years

later. The 1972 Green Paper,

proposed to assess tax on the amounts

received by beneficiaries, as opposed to the estate of a decedent.

The

advantage for the government, in terms of perception, was that only living

taxpayers would be taxed ± dead taxpayers would be completely out of the

picture.

The tax allowed consideration of the relationship between the

572

26 R.W. Carrington, `Death Duties' (1920) Virginia Law Rev. 568±79, at 568. Stewart

suggests that an association between inheritance taxation and `civilised nations' may

not have persisted, noting that Australia does not have an inheritance tax even

though it has `egalitarian credentials (albeit a little shaky)'. M. Stewart, `Taxes and

Justice in Context' (2005) 30 Aus. J. of Legal Philosophy 133±46, at 140; L. Murphy

and T. Nagel, The Myth of Ownership: Taxes and Justice (2002).

27 M. Daunton, Trusting Leviathan: The Politics of Taxation in Britain 1799±1914

(2001) 226±7.

28 Daunton explains that, until Sir William Harcourt's Budget of 1894, four separate

and individual duties arose on death: `probate, legacy, succession and estate' , id., p.

225.

29 Roy Jenkins, The Chancellors (1999) 63.

30 id.

31 id. Harcourt feared resistance at the time, writing, `I have no doubt that we shall

have a ``formidable enemy'' in those who find themselves deprived of monopolies

they ought never to have possessed, and the privileges which enrich them at the

expense of their poorer fellows.' In the end, however, the resistance Harcourt faced

in 1894 from his fellow politicians never caught on with the populace, and the

Budget passed relatively easily.

32 See Daunton, op. cit., n. 27, ch. 8, pp. 224±55, explaining that the development of

the inheritance tax during this era is sometimes neglected, because of the extent to

which the income tax was developed and refined.

33 HM Treasury, Taxation of Capital on Death ± A Possible Inheritance Tax in place of

Estate Duty (1972; Cmnd. 4930).

34 S.M. Cretney, `An Inheritance Tax' (1973) 36 Modern Law Rev. 284, at 285.

35 Special Commissioners involved in the case of Holland explained, `[i]n that context

the phrase ``inheritance tax'' was used to describe a possible tax on beneficiaries

which in the event was not enacted.' Holland v. CIR [2003] STC (SCD) 43 (11

December 2002).

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decedent and family members, a line of thought which probably lead to the

1975 Capital Transfer Tax's unlimited exemption for spousal transfers.

Contemplating these differences of treatment for familial relationships,

Cretney (in 1973) suggested that `[i]t is not clear what social objective would

be achieved.'

He wrote that such an arrangement would encourage wealth

to stay within families, and `. . . it is not clear why that is thought desir-

able.'

In any case, the 1975 Capital Transfer Tax was not successful, and

the modern inheritance tax was introduced as its successor.

Both events are interesting because they acknowledge reservations with

the constitutionality (from Pitt's perspective) and the target (from the

perspective of the Capital Transfer Tax) of inheritance taxation. As the paper

will argue, there is potential for consideration of both subjects within a

socio-legal discourse. Pitt's concerns have not survived, but the idea that

inheritance taxation interferes with property ownership in an improper way

has. Concerns about the perception of inheritance taxation, as perhaps an

attempt by the taxman to reach even into death, have survived. Indeed, they

have formed part of the modern discourse of the anti-`death tax' movement.

INHERITANCE TAXATION AND CONTROVERSY

The United Kingdom inheritance tax has avoided United States-style

repeal.

The Times explained that the anti-inheritance tax campaign has

received a great deal of attention in political circles because its cause has

been championed by Stephen Byers, who `is deemed in Westminster to

reflect the thoughts of Tony Blair.'

Writing of the previous Prime Minister,

the paper also suggested that, if Tony Blair in fact did support abolition of

the inheritance tax, then he would be following in the steps of another

(unsuccessful) supporter of its abolition, John Major.

Another former Labour Cabinet Minister, Alan Milburn, gave a speech in

mid September 2006, arguing that tax reform should remain open for debate,

which was interpreted by the Guardian as a thinly veiled show of support for

Stephen Byers, whose proposals to abolish inheritance tax apparently had

573

36 id., at para. 27.

37 Cretney, op. cit., n. 34, at p. 285.

38 id. In this, Cretney eschews the Benthamite position. M. West, `The Theory of the

Inheritance Tax' (1893) 8 Political Science Q. 426±44, at 427.

39 Lord Walker explained that calling CTT's successor an inheritance tax is incorrect,

for, `[i]n truth inheritance tax is a misnomer for a donor-based mutation tax, a hybrid

between a gifts tax and estate duty, with a structure that is already looking both

rambling and ramshackle.' R. Walker, `Reflections on the Finance Act 1894 (1994)

Brit. Tax Rev. 368, at 373.

40 G. Serjeant, `Reports of this Tax's Death Are Greatly Exaggerated' Times,24

August 2006, 55.

41 id.

42 id.

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

been `stamped on' by the Treasury.

The Times explained that the

Treasury's position was entirely predictable, since the inheritance tax had

been expected to raise £3.6 billion in 2006, and it was thus unlikely that the

Treasury would be keen to forego such an important source of revenue.

Abolishing the inheritance tax also was thought to be contrary to what the

Times described as Gordon Brown's personal belief in `starting equal if not

equal outcomes'.

The tabloid Daily Express has conducted a sustained campaign for the

repeal of inheritance taxation.

Typical of its efforts is an article entitled,

`Cheers for Death Tax Vow', reporting that David Cameron `was under

enormous pressure . . . after Tory activists overwhelmingly backed the

crusade to scrap inheritance tax.'

The Daily Express's campaign received a

great deal of ammunition from reaction to Gordon Brown's 2006 Budget.

On 22 March 2006, Brown announced significant changes to the treatment of

trusts and the reach of inheritance tax law,

which were widely criticized.

Shadow Chancellor George Osborne was quoted in the press as saying that

the proposals were:

hugely damaging to millions of people. It is only ideological spite that is

stopping them backing down. That is what happens when you get a socialist as

chancellor.

The changes were decried as `retrospective' legislation in the British Tax

Review (although the author noted that this form of rule making is not

unheard of in fiscal law).

The government largely has stood firm since

574

43 P. Wintour, `Milburn sets out radical post-Blair manifesto: Ex-minister insists party

must have wide debate: School, tax and Commons reforms among proposals'

Guardian,15September 2006, 11.

44 Serjeant, op. cit., n. 40.

45 id.

46 A. Little, `Our Death Tax Campaign is No. 1 at No. 10' Daily Express,21February

2007). An anonymous referee for this journal cautions that this campaign should be

kept in perspective, and questions whether it is surprising that the Express has not

found more mainstream support for the perennially popular idea of doing away with

a form of taxation.

47 M. Hall, `Cheers for Death Tax Vow' Daily Express,4October 2006.

48 See discussion of this effect in `House Price Growth and HM Treasury', TaxPayers'

Alliance at e.com/news/theme_blog.php?theme=

Inheritance+Tax>.

49 See Budget at easury.gov.uk/budget/budget_06/

bud_bud06_index.cfm>.

50 See M. Warburton, `Inheritance tax now affects us all' Sunday Telegraph,22

October 2006, 4; R. Budden, `Treasury signals ``all change'' on annuity rule'

Financial Times,21October 2006, 1.

51 J. Lappin, `Revenue Said Brown's IHT Shock Was Crazy' MoneyMarketing,18

May 2006, 41.

52 See A. Harper, `Tax Post Facto' (2006) 4 Brit. Tax Rev. 395.

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then, although Gordon Brown (then as Chancellor) later insisted that the new

legislation would be targeted at `avoiders' only.

The Budget protest was led by activists who could be described as

interested parties, and it is important perhaps to keep the Express campaign

within a certain, populist, context. Nonetheless it is clear that the subject

with which theories of economic inheritance will need to deal currently is

fraught with a peculiar form of emotional, political debate. The protest over

the 2006 Budget, in particular, serves to emphasize that the emotional impact

of inheritance taxation often has not been appreciated by politicians.

Churchill, for example, did not appreciate it, and famously believed that the

`psychological' impact of death duties was less `onerous' than that of income

taxation.

Indeed, Daunton reveals that Churchill held as a `political

principle' the value of increasing death duties so as to fund reductions in

income tax.

Underappreciation of the impact of inheritance, culturally, plays an

important role in the story of the repeal of the United States estate tax.

Graetz and Shapiro explain that proponents of inheritance tax have a

tendency to rest on its easy logic, or `science', too comfortably, whilst

missing the fact that (in recent years) movements to repeal an `immoral'

(that is, double taxing and, ironically, non-progressive) tax were moving

from fringe to mainstream discourse.

In the United States, it is particularly striking how the early twentieth-

century concern about `robber barons'

has shifted, especially given that the

Economic Growth and Tax Reconciliation Act of 2001, which was signed by

George W. Bush on 7 June 2001,

was supported by a strong majority of

taxpayers who likely never would own estates that would cross the threshold

for inheritance taxation.

Graetz and Shapiro, however, warn against

treating the `what were US taxpayers thinking?' question too delicately,

reminding us that `Stories Trump Science'.

It also would be a mistake to

characterize the repeal of the United States inheritance tax as a heated battle

575

G. Milland, `Climbdown on death tax' Daily Express,9May 2006, 8. For the new rules

on trusts, see Finance Act 2006, s. 156, detailing the amendments to both the

Inheritance Tax Act 1984 and the Taxation of Chargeable Gains Act 1992. Finance Act

2006 s. 156 and Sched. 20 eventually contained significant revisions to the treatment of

interest in possession trusts, accumulation and maintenance trusts, lifetime gifts, dis-

abled trusts and discretionary trusts. For the treatment of `settled' property, see IHTA

1984, Pt. III, ss. 43±93, as amended in 1986 and by the Finance Act 2006, Sched. 20.

M. Daunton, Just Taxes: The Politics of Taxation in Britain 1914±1979 (2002) at 132.

55 id.

56 id., at p. 226.

J.D. Trout and S.A. Buttar, `Resurrecting ``Death Taxes'':Inheritance, Redistribution,

and the Science of Happiness' (2002) 16 J. of Law & Politics 765±847, at 777.

58 Economic Growth and Tax Relief Reconciliation Act of 2001, Pub. L.No. 107±16,

115 Stat. 38 (codified in 26 U.S.C.).

59 See Graetz and Shapiro, op. cit., n. 9, `A Political Mystery', pp. 3±11.

60 id., ch. 20.

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± Graetz and Shapiro stress that `[i]n fact, it was the low intensity of public

opinion about tax questions in general, and the estate tax in particular, that

made the tax vulnerable to repeal.'

The blame for this apathy can be placed

at the door of fiscal legislation itself, which was little understood.

Blame also may be attributed to what would appear to be a basic fear in

some taxpayers about inheritance tax. For example, over thirty years ago,

Tullock described how the proponents of inheritance taxation may not have

considered thoroughly the endgame of their platform:

The man with a wife and two children and a large mortgage on his house could

not only not have an insurance policy which would pay off the mortgage in the

event of his death, he could not even leave the house to his wife if it were in

his possession free and clear.

Inheritance taxation is a step before the situation described, but the fear of it

does seem to touch upon a difficult to describe cogently, but nonetheless

basic apprehension in some taxpayers.

STARTING THE DISCUSSION: UPDATING EARLY TWENTIETH

CENTURY, US-CENTRIC DISCOURSE WITH THEORIES OF

ECONOMIC INHERITANCE

How is inheritance tax law in the United Kingdom presently discussed?

Although the answer may be surprising, the language and issues largely are

framed by the debates which occurred at the beginning of 1900s, in the

United States, during a push to introduce a federal estate tax.

Writers of

that era focused on the contributions of J.S. Mill, in particular, to economic

inheritance, especially his argument that progressive taxation could be

justified for inheritances (if not for taxation more generally).

Although

there is some confusion as to Mill's exact views on redistribution, Winch

writes that (according to Mill's `disciple Bain'

) Mill hoped that inheritance

taxation would `pull down all large fortunes in two generations'.

576

61 id., p. 254.

62 Braithwaite observes that `[o]ne result of a protracted dynamic of rules multiplying

exponentially is that no one can keep them in their mind.' J. Braithwaite, Markets in

Vice, Markets in Virtue (2005) at 148.

63 G. Tullock, `Inheritance Rejustified' (1973) 16 J. Law & Economics 425±8, at 425.

64 A.K. Pactor, `The moral case for the estate tax' (2003) 2003 New Directions for

Philanthropic Fundraising 25. See, also, W.G. Gale and J.K. Scholz, `Inter-

generational Transfers and the Accumulation of Wealth' (1994) 8 J. of Economic

Perspectives 145, at 146.

65 J.S. Mill, Principles of Political Economy (1909/1848) Bk. V, ch. II, v. 2.14±2.15.

66 A Scottish philosopher who was a `personal friend' of Mill's, see A. Bain, John

Stuart Mill: A Criticism with Personal Recollections (2004/1882).

67 D. Winch, `Review Essay: Mills as Romantic Idealist' (2004) 26 J. of the History of

Economic Thought 543±55, at 551, citing Bain, id., at p. 89. In 2004, however,

Capaldi wrote that `Mill was sceptical about schemes for redistribution'; Winch, id.,

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Leading inheritance tax writers of the early twentieth century included

both Max West and the noted American economist and tax legal theorist,

E.R.A. Seligman, who placed an interesting slant on the class aspiration

debate when he wrote that Mill `maintained that the only test of just taxation

was equality of sacrifice'.

In other words, a formula must be found whereby

the rich man's sacrifice to taxation is equal to the poor man's. Seligman

described this as a very French idea: `the standpoint of Montesquieu,

Montyon, and Say among the French writers, and of Craig, Buchanan and

Sayer among the English writers.'

The sacrifices of class sustainability or

upward mobility may or may not be equivalent to the hardships ensured by

the `poor man', but, the argument suggests, their loss is felt.

Conversely, Max West suggested that there are two ways of looking at

inheritance taxes: `. .. as a fiscal imposition, but also as a modification of the

law of inheritance and bequest.'

From a legal perspective, the inheritance tax

may be explained as a limitation on a right (to dispose of property on death),

and perhaps by the objective to distribute wealth more equitably.

As a `fiscal

imposition', West suggests, the inheritance tax is either a tax or a fee: `as a

payment in return for benefits received, or as a public contribution according

to the ability of the taxpayer.'

The `benefits received' might include either

government services enjoyed over a lifetime,

generally; services specific to

the estate; services related to the expenses of probate courts; or, finally,

payment for a presumed amount of tax avoided over a lifetime.

The `benefits received' argument is interesting, but Seligman pointed out

some potential difficulties with this:

The rich man sends his children to private schools and colleges; the poor man

has his family educated in the public schools. The rich man has his street

swept by his own hired laborer; the poor man has his cleaned at the expense of

the city . . . Logically, thus, it might seem that the poor man should then pay

proportionally more than the rich man.

577

quoting N. Capaldi, John Stuart Mill: A Biography (2004), at p. 299. Winch (at fn.

26, citing Capaldi, at p. 204 and n. 390) addresses the confusion, and argues that the

evidence appears to favour Mills as a redistributionist. He notes, however, that

`Capaldi softens this by maintaining that the inheritance tax was not an estate tax

because it could be avoided through intra-family redistribution'. In other words, Mill

may have been less sceptical about the inheritance tax, but in any case the focus of

his attention was a different form of estate taxation.

68 E.R.A. Seligman, `The Theory of Progressive Taxation' (1893) 8 Political Science

Q. 220, at 234.

69 id.

70 See, generally, J.E. Roemer, `Why the poor do not expropriate the rich: an old

argument in new garb' (1998) 70 J. of Public Economics 399.

71 West, op. cit., n. 38, at p. 426.

72 id.

73 id.

74 id.

75 id.

76 Seligman, op. cit., n. 68, at p. 229.

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In the United Kingdom during this era, the exact opposite of Seligman's

(tongue-in-cheek) proposal w as considered. Rignano's lat e-eighteenth-

century suggestion that the amount of tax levied on an estate should

increase proportionately to the age of the estate (such that an estate

bequeathed from a parent to a child will be taxed less heavily than one

passed from a grandparent to a child) received a great deal of attention in

Parliament in the late 1920s.

Although Mann described this as a `naõÈve

plan' that `received more a ttention than it deserved',

the Colwyn

Committee `found the principle in itself attractive' and suggested `that it

may in course of time have useful developments'.

The anti-inheritance tax movement in the United Kingdom has focused

on, among other things, the extent to which inheritance tax avoidance

benefits the wealthy, and arguments that inheritance taxation is fair and

`targeted'.

Duff, warning that inheritance taxation is `under pressure' in the

United Kingdom, has analysed the `political challenges' which may make its

retention difficult, despite its benefits.

Massone et al. are similarly

disheartened by the political threats to inheritance taxation, and suggest that

earmarking funds collected for the benefit of `the poor' might be a way of

salvaging them.

Conversely, Bracewell-Milnes has argued that inheritance

taxation causes a great deal of harm to the economy in the United Kingdom,

and has long argued for its abolition.

These are standard arguments of US-centric, early-twentieth century

discourse. This paper proposes that the discussion should be updated, by

integrating sociological theories of economic inheritance. This is not to

suggest, however, that inheritance taxation, specifically, is a common topic

within economic inheritance analyses ± far from it. Indeed, inheritance tax is

not a frequent target of sociologists.

Described by MacNamee and Miller

578

77 F.K. Mann, `The Sociology of Taxation' (1943) 5 Rev. of Politics 225, at 235,

discussing E. Rignano, Di un socialismo in accordo colla dottrina economica

liberale (1901).

78 Mann, id.

79 id., citing Report of the Committee on National Debt and Taxation (1927; Cmnd.

2800) 316.

80 Pratten, op. cit., n. 13, pp. 74±5. The author concludes that inheritance tax is neither

fair nor targeted, and that Gordon Brown's `numbers are misleading'.

81 Duff, op. cit., n. 7, p. 46.

82 Massone et al., op. cit., n. 3, p. 1.

See B. Bracewell-Milnes, `Euthanasia for Death Duties: Putting Inheritance Tax Out of

its Misery' (2002) Institute for Economic Affairs Monograph, and the review by J.

Tiley, `Publication Review, Euthanasia for Death Duties: Putting Inheritance Tax Out

Of Its Misery, Barry Bracewell-Milnes' (2003) 3 Brit. Tax Rev. 255; also, B.

Bracewell-Milnes, `The Hidden Costs of Inheritance Taxation' in Is Inheritance

Legitimate?, eds. G. Erreygers and T. Vandevelde (1997) 156±201; B. Bracewell-

Milnes, The Wealth of Giving: Every One in His Inheritance (1989); and B. Bracewell-

Milnes, `Unquoted Companies and Inheritance Tax' (1995) 23 Intertax 614.

84 See R.B. Avery and M.S. Rendall, `Lifetime Inheritances of Three Generations of

Whites and Blacks' (2002) 107 Am. J. of Sociology 1300, at 1301; P. Mullins, `The

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

as a `sociological lacuna', inheritance tax is `a frequently mentioned but

rarely examined feature of stratification systems'.

By `stratification',

MacNamee and Miller explain, they mean that sociology has preferred to

examine, for example, a family's income as opposed to its `wealth', and

`individual attainment' as opposed to inherited wealth.

They suggest that

reasons for this reluctance may stem from the fact that inherited advantage is

an uncomfortable subject.

Additionally, the inheritance of estates is a very

difficult subject to study, given the layers of subterfuge that the wealthy will

employ to avoid taxation.

This section will provide a brief analysis of the arguments with which a

revived sociological analysis of inheritance taxation might engage. Its aim is

to provide a foundation for consideration of the current status of inheritance

tax law. It will also reveal that there is much potential for a revived discourse.

Closer inspection of this `lacuna' reveals, for example, Giddens, one of

the few sociologists who has addressed inheritance tax directly.

Writing

from the centre-left,

Giddens describes inheritance taxation as the `obvious

579

Line of Descent in the Intergenerational Transmission of Domestic Property' (2000)

15 Housing Studies 683, at 685

85 S.J. McNamee and R.K. Miller Jr., `Estate Inheritance: A Sociological Lacuna'

(1989) 59 Sociological Inquiry 7±29, at 1.

86 id.

87 id.

88 id., at p. 2. Additionally, tax avoidance, generally, typically is described as a diffi-

cult subject for sociological study. See R. Mason and L.D. Calvin, `A Study of

Admitted Income Tax Evasion' (1978) 13 Law & Society Rev. 73, at 75±7; J.

Hasseldine and Z. Li, `More tax evasion research required in new millennium'

(1999) 31 Crime, Law and Social Change 91; M Bergman, `Who Pays for Social

Policy? A Study on Taxes and Trust' (2002) 31 J. of Social Policy 289, at 289; D.J.

McBarnet and C. Whelan, Creative Accounting and the Cross-eyed Javelin Thrower

(1999) at 240; and A. Mumford, Taxing Culture: Towards a Theory of Tax

Collection Law (2001) at 38±40, discussing `rough justice' and the differences in

attitudes towards tax avoidance in the United States and the United Kingdom.

89 This is a development apart from standard Third Way discourse. J. Lewis and R.

Surender, Welfare State Change: Towards a Third Way? (2004) at 42: `While there

are occasional references to inheritance tax in Third Way literature, and occasional

screeds directed at ``fat cat'' corporate executives, the Third Way simply does not

interrogate the morality of property incomes in the systematic way that the

functionalists did.'

90 See A. Giddens, The Progressive Manifesto: New Ideas for the Centre-left (2003).

On the question of centre-left discourse, see S. White, `Review Article: Social

Rights and Social Contract ± Political Theory and the New Welfare Politics' (2000)

30 Brit. J. of Political Science 507, at 520, noting that: `In contemporary centre-left

policy discussion, . . . there seems relatively little interest in the revival of

inheritance or wealth transfer taxation, and what discussion there is of this issue

tends to be divorced from the debate surrounding welfare reform.' White stresses

that this statement does not apply equally to the United States and the United

Kingdom, and (at fn. 35) notes that early Blair Cabinet advisors such as Peter

Mandelson and Roger Liddle proposed reforming inheritance tax so as to benefit

newly married couples.

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

mechanism for egalitarian policies.'

He argues against its abolition, and

suggests that it should be more progressive, and should allow fewer

exemptions.

Giddens recommends that more people should pay inheritance

tax in the United Kingdom than do currently, and approves of suggestions

that `the extra money generated could be spent on a trust fund for children, or

for long-term care for the frail elderly.'

This indicates both a confidence in

the stability of inheritance tax (it is here to stay; indeed, let us increase its

reach), and an effort to engage public discourse on the value of inheritance

taxation.

Is this confidence well placed? Durkheim would suggest that the issue

perhaps is a bit more complicated. Perhaps best known to socio-legal

scholars for his contribution of the concept of organic solidarity,

or for

his work with restitutive law,

Durkheim may not be one of the first

people considered in a debate about inheritance tax law, but he should be.

As he implicitly acknowledges,

Giddens draws from a tradition within

which Durkheim is perhaps one of the most famous critics of inherited

wealth. Indeed, Durkheim `bitterly' criticized inheritance, describing it as

inappropriate in a society which aspired to be egalitarian and just.

Because the wealth that results from inheritance is neither earned nor

deserved, he argued, the entire social contract is `invalidate[d]'.

Durk-

heim did recognize a `right' of inheritance, or a right to leave a will, as an

essential aspect of the development of what he described as `the conjugal

580

91 A. Giddens, Europe in the Global Age (2006) at 83.

92 id., at pp. 83±4.

id., at p. 84. Hypothecation does not appear to be a favoured method of the Prime

Minister, given his experience with environmental taxation. For a complete analysis of

this, see the impressive Stern Review, at

reviews/stern_review_economics_climate_change/sternreview_ index.cfm>.

94 Although by recommending something akin to the earmarking of inheritance

taxation, it reflects, perhaps, a nervousness about the propriety of inheritance

taxation, dissimilar to the confident quote which opened this article.

Durkheim postulates that `the bond of solidarity has changed during the course of

social evolution, and he seeks to identify the causes and consequences of this change.'

W. Pope and B.D. Johnson, `Inside Organic Solidarity' (1983) 48 Am. Sociological

Rev. 681, at 681, citing E. Durkheim, The Division of Labor in Society (1997).

96 Cotterrell explains that `[r]estitutive law .. . reflects relations of a totally different

character from those which penal law reflects.' R.B.M. Cotterrell, `Durkheim on

Legal Development and Social Solidarity' (1977) 4 Brit. J. of Law and Society 241,

at 242, citing Durkheim, id. Whereas penal law changes the life of the offender,

restitutive law attempts to restore things to the way they `were'. It is `not simply

mediation of private interests' (Cotterrell, at p. 247) but `a social thing and has a

totally different object than the interests of the pleaders'.

97 `Giddens suggests that ``. .. moral individualism is one area in which the conscience

collective . . . becomes strengthened as organic solidarity expands''.' C.R. Chandler,

`Durkheim and Individualism: A Comment on Messner' (1984) 63 Social Forces

571, at 571.

98 E. Durkheim and M.O. Hill, Professional Ethics and Civic Morals (1992) at xxv.

99 id., at p. 213.

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

family',

100

however, but this was part of an account which considered the

family as an economic institution which would diminish in importance.

101

Indeed, he suggested that as society evolved away from the family, people

would leave their property to business and other economic organizations.

102

Strikingly, although Marx may be thought to be a more obvious candidate

than Durkheim in an analysis of economic inheritance, it is nonetheless the

case that, although valuable, he offers less. Indeed, what Marx offers to tax

lawyers, generally, is limited, simply because he did not frequently address

tax.

103

Marx also did not address inheritance specifically, but included it

within his consideration of the `relations of production'.

104

Nonetheless, the

study of inheritance still does not fit easily within Marxian analysis because,

as Beckert, observed:

[w]hile it is one thing to acknowledge the importance of non-market based

transfers in modern capitalist societies it is quite another to understand the

principles of their regulation and their implications.

105

Beckert reminds us, however, that bequeathing property is an economic

act, capable of being distinguished from other economic acts typical of a

market economy in that it is not based on contract.

106

Rather, it is based on

`ascription', and as a result inheritance is `problematic', `thickly embedded'

± and, as a result, not easily studied.

107

The problematization of inheritance

581

100 E. Durkheim, `The Conjugal Family' in Emile Durkheim on Institutional Analysis,

ed. and tr. by M. Traugott (1978) 229, at 232. See, also, G. Simpson, `A Durkheim

Fragment' (1965) 70 Am. J. of Sociology 527.

101 T.P. Schwartz, `Durkheim's Prediction about the Declining importance of the

Family and Inheritance: Evidence From the Wills of Providence, 1775±1985' (1996)

37 Sociological Q. 503.

102 id.

103 See, generally, J. Friedman, `Marxism, Structuralism and Vulgar Materialism'

(1974) 9 Man 444.

104 R. Swedberg, `The case for an economic sociology of law' (2003) 32 Theory and

Society 1, at 6. Swedberg engages with (an earlier edition of) K. Marx and V.I.

Lenin, Capital: The Communist Manifesto and Other Writings (1932). For more on

the Marxian concept of the `relations of production', see H. Lefebvre, The Survival

of Capitalism: Reproduction of the Relations of Production (1978); R.C. Edwards,

`The social relations of production at the point of production' in Complex Organiza-

tions: Critical Perspectives, eds. M. Zey-Ferrell and M. Aiken (1981) 156; R.C.

Edwards, `The Social Relations of Production in The Firm and Labor Market

Structure' (1975) 5 Politics & Society 83. Essentially, this is discussed in terms of

the relationships that build between humans in the creation and distribution of

material wealth. The idea is described by Foucault as integral to the `question of

power': `while the human subject is placed in relations of production and of

signification, he is equally placed in power relations which are very complex.' M.

Foucault, `The Subject and Power' (1982) 8 Critical Inquiry 777.

105 J. Beckert, `Political and Social Interests in the Transfer of Property' (2006) 46

European J. of Sociology 359, at 359.

106 id., at p. 367.

107 id. The reason for this is that inheritance `cannot be functionally differentiated from

normative concerns the way that market transfers can.'

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

results in part from the legal system which supports it, and the extent to

which the `privileged group', as E.P. Thompson described them, have

manipulated laws to secure their own families' wealth.

108

Examples of this

are provided by Beckert, whose 2004 book on the sociology of inheritance

compares what might broadly be described as patterns of justification for

inheritance (in the post-Durkheim era) in three countries: the United States,

Germany, and France.

109

Although his approach has been described as

Weberian, the objective of his book is to confirm the importance of

Durkheim to this area of study.

110

For example, Durkheim (by contrast with

Marx) was concerned with the emotional and social attachment that societies

have fostered for property over the centuries.

111

This concern was rooted in a

desire to eliminate any inequitable advantage, however, including inherited

property.

112

Beckert reminds us that analyses of inheritance tax law demand con-

sideration of Durkheim. Interestingly, Cotterrell notes that Durkheim's

analysis of the relationship between people and property is likely to be `odd'

to lawyers, who view property as `a variable set of legal relationships

between persons with respect to things'.

113

This insight may have particular

importance for the analysis of inheritance tax, which often stumbles against

the emotive significance of the family home. The motives behind bequests

are considered `crucial' by the economists and sociologists who study

inheritance.

114

The reason for this is that identification of motives will

enable economists, in particular, to discern how different incentives will

582

108 J. Goody, J. Thirsk, and E. Thompson (eds.), Family and Inheritance: Rural Society

in Western Europe 1200±1800 (1978) at 358±60.

109 Further analyses undoubtedly will be provided by the release of the Mirrlees Report.

Publications on the progress of the review may be found at

mirrleesreview/publications.php>. See, also, I. Young, `Towards a better tax

system' (2007) 2 Taxline 3.

110 R. Swedberg, `Book Review of Beckert's Unverdienstes VermoÈgen' (2005) 6

Economic Sociology: European Electronic Newsletter at 44.

111 Swedberg, op. cit., n. 104. See, also, R.B.M. Cotterrell, Emile Durkheim: Law in a

Moral Domain (1999) at 134: `Durkheim treats property as a relationship between a

person and a thing.'

112 W.J. Ramp, `Durkheim and the Unthought: Some Dilemmas of Modernity' (2001)

26 Cnd. J. of Sociology 89, at 100; T. Noble, `Correspondence' (1980) 31 Brit. J. of

Sociology 580, at 581; M.A. Lamanna, Emile Durkheim on the Family (2001) at 57,

60. Durkheim did not believe that this would eliminate all unfair advantage,

although he is sometimes criticized for suggesting that it would. See J.C. Alexander,

The Cambridge Companion to Durkheim (2005) at 352±3.

113 Cotterrell, op. cit., n. 111, at p. 134.

114 M. Kohli, `Intergenerational transfers and inheritance: A comparative view' (2004)

Springer Annual Review of Gerontology and Geriatrics: Intergenerational relations

across time and place at 268. This is also suggested throughout H. Cremer and P.

Pestieau, `Wealth transfer taxation: a survey of the theoretical literature' in

Handbook on the Economics of Giving, Reciprocity and Altruism, eds. L.-A. GeÂrard-

Varet, S.-C. Kolm, and J. Mercier Ythier (2006).

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

impact upon the decision as to legacies.

115

Although controlling `family'

decisions might appear to be intrusive, these are issues that should not be left

to the private sphere, for, as Warren argued, `[i]nheritance has enormous

effects upon social inequality'.

116

This situation is complicated by the fact that these decisions still are

made, typically, within the context of relationships that are the subject of

enormous state persuasion as to behaviour ± for example, parents are

encouraged to take care of their children (when they are young, at least) and

this sort of behaviour is difficult to abandon.

117

A typical example of this

sort of argument is presented by Brown (in 1961):

[i]t is, in short, illogical to abolish completely the inheritance of wealth unless

we also abolish the family and make all children wards of the state.

118

A potentially valuable contribution to a modern analysis of inheritance tax

law would include acknowledgment that the value of the modern family

home, or, more clearly, the value of providing financially for one's children,

transcends the purely economic. Parenthood is defined by its sacrifices, both

financial and emotional. Modern society expects parents to provide con-

tinuous care for their children, even to their own detriment.

119

This is in

contrast to generations ago, when children were `a pretty good economic

bargain'.

120

The value of the labour provided by children more than

compensated for the costs of clothing and food.

121

This was during a time

when families might be `cash poor', and the only real item of value which

they possessed was land.

122

Children today, however, are popularly perceived as more of an emotional

investment, than an economic decision.

123

Indeed, they make little economic

sense, and few taxpayers would have them solely for profit.

124

Real property,

however, continues to be a source of wealth. To begin to understand the

emotional reactions to inheritance tax, however, the relationship between

economics and parenting requires consideration.

583

115 Kohli, id.

116 T. Warren, `Moving beyond the gender wealth gap: On gender, class, ethnicity, and

wealth inequalities in the United Kingdom' (2006) 12 Feminist Economics 195, at

199.

117 This is discussed throughout D.N. Lye, `Adult Child-Parent Relationships' (1996)

22 Annual Rev. of Sociology 79.

118 H.G. Brown, `Criteria for a Rational Tax System' (1961) 20 Am. J. of Economics

and Sociology 443, at 445±6.

119 A.L. Alstott, No Exit: What Parents Owe Their Children and What Society Owes

Parents (2004) 50.

120 id.

121 id.

122 id.

123 id. See K.M. Nomaguchi and M.A. Milkie, `Costs and Rewards of Children: The

Effects of Becoming a Parent on Adults' Lives' (2003) 65 J. of Marriage and

Family 356.

124 Alstott, op. cit., n. 119, p. 51.

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

The problem is defined by Alstott, who suggests that `. . . the No exit

obligation . . . is the defining feature of modern parenthood.'

125

She defines

the `No Exit' obligation as:

...not merely the obligation not to abandon one's children by the roadside, but

also the much harder, more intensive, and crucially important duty to create

the intimacy, stability, and loyalty that Goldstein, Freud and Solnit

describe.

126

The duty to provide `continuity of care' to children is an onerous, expensive

and controversial obligation.

127

Amongst its various requirements is that

parents recognize that high-quality care provided consistently by the same

carer(s) is more valuable than otherwise effective care provided by a variety

of people.

128

This is an expensive obligation on the modern parent, and

Alstott explores potential `compensation' that society might owe to parents

in order to enable them to achieve it.

129

It is difficult to discontinue such a duty of care. Inheritance tax, thus,

might represent an interference with the `No Exit Obligation'. Death is the

moment when the modern, `No Exit Obligation' parent must confront old-

fashioned concerns about `privileges which enrich them at the expense of

their poorer fellows'.

130

Given the terminal way in which this obligation has

been fashioned, its abandonment is hardly likely to be intuitive.

Duff has argued that:

...the initial enactment of wealth transfer taxes at the turn of the [last] century

and developments in family law . . . signal the displacement of the feudal and

patriarchal family by a conception of the family that is neither dynastic nor

organic, but egalitarian and pluralistic.

131

These developments in tax law, however, did not keep pace with the

development of the `No Exit Obligation'. Rather, engagement with Mill's

views of inherited wealth developed into discussions of Rawls, and liberal

views of inheritance taxation.

132

Analyses progressed,

133

but did not accord

the changing emotional and economic contexts of parenthood sufficient

attention. The stage was set for conflict.

584

125 id.

126 id., p. 52.

127 id., p. 30.

128 id. This idea also is discussed throughout Alstott's book.

129 id.

130 Harcourt, n. 31 above.

131 D.G. Duff, `Taxing Inherited Wealth: A Philosophical Argument' (1993) VI Cnd. J.

of Law and Jurisprudence 3±62, at 61.

132 See J. Rawls, `Justice as Fairness' (1958) 67 Philosophical Rev. 164, and J.S. Mill,

Principles of Political Economy: With Some of Their Applications to Social

Philosophy (1891). See discussion in E.J. McCaffery, `The Political Liberal Case

Against the Estate Tax' (1994) 23 Philosophy and Public Affairs 281±312.

133 Pactor, op. cit., n. 64.

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

REVIVING THE DISCOURSE OF INHERITANCE TAX LAW

The consideration of the position of `adult' children, at least, might assist

analyses of inheritance taxation in moving beyond the purely political, and

questions of liberal, socio-economic justice. Their consideration in legal

context, however, and queries as to the `rights' adult children may or may

not have, must acknowledge the extent to which imagery of rights has been

used for political capital.

134

When discussing inheritance taxation, questions

of terminology are politically charged.

Acknowledgment of the links formed within the `conjugal family' through

economic work,

135

however, could cast light upon previously ignored

subtleties of this discourse.

136

It also may allow serious discussion of the

(perhaps, less attractive) alternatives to inheritance taxation. For example, as

Buttenheim argued, the progressive element of inheritance taxation may

render it a palatable alternative to real estate taxation, which is less progres-

sive.

137

This, potentially, is an important point for a renewed inheritance tax

debate.

Perhaps a reason why this point is seldom raised lies in the criticism that

inheritance tax is inefficient, and discourages saving.

138

Whilst there is

consensus

139

across the political divide that these negative impacts, or

`leaks',

140

exist, there is disagreement as to how great a problem this is.

Predictably, those on the right insist that this problem is very grave, whereas

those on the left suggest that any economic efficiency that is lost is worth the

sacrifice.

141

A (somewhat basic) explanation of this criticism is that workers

will have less incentive to produce, and less incentive to save, if such capital

585

134 The `culture of rights' literature is very useful in this context. See, for example, S.

Bhatia, `Can We Return to the Concept of Duty in a Culture of Rights? Implications

for Morality and Identity' (2000) 6 Culture & Psychology 303; J.K. Cowan, M.B.

Dembour, and R. Wilson, Culture and Rights (2001).

135 Durkheim, op. cit., n. 100, at s. 232.

136 See, also, Tiley, op. cit., n. 14, at p. 319: `The author is convinced that there is much

sense in the principle behind these older duties that consanguinity mattered and was

a legitimate call on generosity.'

137 H.S. Buttenheim, `The Relation of Housing to Taxation' (1933±1934) 1 Law &

Contemporary Problems 198±295, at 205.

138 A. Auerbach, IFS Press Release: `Inheritance tax still has a role to play, says Alan

Auerbach in IFS Annual Lecture' at .

139 But compare Murphy and Nagel, op. cit., n. 26, at p. 143.

140 Graetz and Shapiro, op. cit., n. 9, p. 228.

141 id., pp. 228±9. For example, in 1960s United States political discourse, politicians

on the left supported what Zelizer has described as `anti-growthmanship': J.E.

Zelizer, Taxing America ± Wilbur D. Mills, Congress, and the State, 1945±1975

(1998) 171. The suggestion was that `[p]olicies that focused on growth failed to

address the main needs of society.' As an alternative, `[p]ublic policy should thus

focus on structural inequalities that persisted over time.'

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

will be subject to tax.

142

Economies benefit from workers trying to create as

much as possible,

143

thus, economies as a whole work less efficiently when

taxes on capital, like inheritance taxes, are present.

144

Seligman would have responded to challenges that taxation can have a

negative effect on `industry and saving' by cautioning that `. .. it is a mistake

to assume that larger fortunes are always the result of individual saving.'

145

Indeed, the bottom line of many of these criticisms, Seligman suggested, was

`an argument . . . against taxation in general'.

146

Indeed, Adams argued that

all saving is not necessarily, a priori, a good thing, and that there might come

a point when saving, in effect, becomes hoarding.

147

Though he conceded

that the criticism that inheritance taxation impairs the incentive to save was

the `most formidable charge against it', he maintained that the more one

saved, the greater the probability that an estate would be `wasted' by

beneficiaries.

148

The debate may be revived by focusing on the fact that inheritance taxes

are a quintessentially progressive tax.

149

Societal reaction to progressivity is

a favoured topic of sociological analysis, which has revealed the assumptions

behind the political rhetoric.

150

The temporary abolition of inheritance tax in

the United States has been presented as a blow for progressivity, and a `high-

profile' victory for regressivity.

151

The wide popular support that this aboli-

tion received is in this context puzzling, considering that, if the wealthier

sections of society that normally would pay inheritance tax have been

586

142 See A. Dixit and J. Londregan, `Redistributive Politics and Economic Efficiency'

(1995) 89 Am. Political Science Rev. 856, which analyses the differences between

politically efficient, and economically efficient, distribution.

143 Even though (in socialist economies, as well) the rewards are often distributed

unequally. For a discussion of this, in the context of theories of stratification, see,

generally, A.G.Walder,`Property Rights and Stratification in Socialist

Redistributive Economies' (1992) 57 Am. Sociological Rev. 524.

144 This is analysed throughout M.J. Boskin, `Taxation, Saving, and the Rate of Interest'

(1978) 86 J. of Political Economy 3.

145 Seligman, op. cit., n. 68, at p. 248. Although it is important not to assume a United

States/United Kingdom parallel, Seligman was a scholar of United Kingdom tax

law, and frequently combined analyses of the two tax systems.

146 id.

147 T.S. Adams, `Effect of Income and Inheritance Taxes on the Distribution of Wealth'

(1915) 5 Am. Economic Rev. 234±44, at 238.

148 id., at p. 240.

149 G. Brennan and J.M. Buchanan, The Power To Tax: Analytical Foundations of a

Fiscal Constitution (1980) at 36.

150 See J. Edlund, `Attitudes towards Tax Reform and Progressive Taxation: Sweden

1991±96' (1999) 42 Acta Sociologica 337; Mann, op. cit., n. 77, at pp. 231±4, and

M.P. Allen and J.L. Campbell, `State Revenue Extraction from Different Income

Groups: Variations in Tax Progressivity in the United States, 1916 to 1986' (1994)

59 Am. Sociological Rev. 169.

151 L.A. Fennell, `Hyperopia in Public Finance' in Behavioral Public Finance, eds. E.J.

McCaffery and J. Slemrod (2006) 141±72, at 161±2.

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

relieved of this burden, then, by definition, less wealthy taxpayers are going

to need to contribute more, just to maintain the status quo.

152

This may be

due to the fact that, as Harper suggests, `[e]state and gift tax legislation is

largely used as an instrument of policy to influence behaviour, typically

wealth distribution, retention or investment patterns.'

153

Whether they are

effective inducements for behaviour, however, is not clear. Research has

suggested that wealthy people do not always find the avoidance of

inheritance taxes to be a good incentive to give away their wealth during

their lifetimes.

154

James writes that `[p]ossibly therefore such taxes might be

considered to be voluntary taxes paid by those who dislike their relatives

even more than they dislike paying tax.'

155

Anti-inheritance tax rhetoric has benefited from research suggesting that it

is not clear that an inheritance tax in fact does have a positive effect on the

redistribution of wealth.

156

Estate taxes may produce a sort of domino

effect.

157

First, many taxpayers may choose to save less.

158

Secondly, a lower

`capital labor ratio' may result, in that, essentially, the economy suffers from

a lack of capital, so that there is an increase in the `share of capital' ± or,

simply, capital increases in value.

159

Generally, as Stiglitz warned, income

from capital is `more unequally distributed', which ultimately may lead to the

rich becoming richer.

160

If this is the case, then arguments about the fairness

of inheritance taxation are important, because they enable consideration of

what, beyond redistribution, such taxation may achieve.

FAIRNESS AND `THE FAMILY HOME'

The point Stiglitz acknowledges, above, is that inheritance taxation may not

always be fair. Sociological theory engages with this. Theories of stratifi-

cation, for example, chart the evolution of what it means to be `fair', and

indeed what it means to be wealthy, so as to explain why taxes which were

587

152 id., at p. 162.

153 Harper, op. cit., n. 52, at p. 395.

154 J. Whalley, `Estate Duty as a ``Voluntary'' Tax; Evidence from Stamp Duty

Statistics' (1974) 84 Economic J. 638.

155 S. James, `Taxation Research as Economic Research' in M. Lamb, S. Lymer, J.

Freedman, and S. James, Taxation: An Interdisciplinary Approach to Research

(2005) 35±53, at 43.

156 J.E. Stiglitz, `Notes on Estate Taxes, Redistribution and the Concept of Balanced

Growth Path Incidence' (1978) 86 J. of Political Economics ss. 137±50.

157 id., at s. 139.

158 id.

159 id.

160 id.

161

`The changing awareness of what it means to be wealthy also demands a rethinking of

the sociological picture of social stratification.' S.M. Miller and A.J. Savoie, `Chal-

lenging Inequality/Challenging Sociology' (1999) 28 Contemporary Sociology 30, at 31.

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

tolerated at one time now are disliked.

161

Thus, for example, in the United

Kingdom, allegations that the inheritance tax does not have an essential

fairness at its core have focused on the role played by the housing market in

the value of estates.

An illustration of this is provided by a book published by the Daily

Telegraph with the aim of helping its readers to avoid inheritance tax, which

warns that many families who would not consider themselves to be wealthy

are surprised to find that they are in fact affected, due to an unexpected rise

in the value of their family home.

162

This book implies that it is unfair that

families like these are affected by inheritance tax, and aims to help them to

avoid paying it.

163

The suggestion appears to be that whilst it is fair to expect

people who are popularly perceived as wealthy to pay some form of estate

tax, it is not fair to expect this of anyone else.

The availability of inheritance tax avoidance schemes, and the fact that

they may be too expensive for many taxpayers, contributes to this sense of

unfairness.

164

Braithwaite suggests that `[p]eople who see themselves as

poorer are less willing to pay tax voluntarily when people they perceive to be

richer are believed to cheat.'

165

Thus, the fact that trusts and other devices

that permit avoidance of inheritance tax come at a price undermines belief in

this tax, in that the `not really wealthy' taxpayer will suffer more keenly the

costs of purchasing an avoidance scheme.

166

Inheritance taxes present specific difficulties within analyses addressing

fairness, as they concern not only the taxpayer bequeathing the wealth, but

the beneficiary as well.

167

As Mirrlees writes:

[i]t seems to me that, just as gifts concern two people (at least), so taxes on

gifts and inheritance have double effects, being expenditure-related taxes from

the point of view of the giver, and lump-sum taxes (more or less) on the

receiver.

168

Any impact on overall economic efficiency, therefore, needs to take in to

account the effects on the behaviour of both the giver and the beneficiary.

169

Both also need to be seen as treated fairly.

Rising property prices, however, perhaps most of all have been the focus

588

162 M. Scott, How To Avoid Inheritance Tax (2006) 2, 3, 4, 7, 32.

163 id.

164 `The exemplar is Great Britain, whose estate taxes are both the most confiscatory

and the easiest to avoid ± a voluntary tax, according to one economist.' M.B. Levy,

`Liberal Equality and Inherited Wealth' (1983) 11 Political Theory 545±64, at 546.

165 Braithwaite, op. cit., n. 62, at p. 25.

166 Even a self-help book such as that published by the Daily Telegraph contains a

chapter title which warns: `Don't try this at home: why DIY won't work with IHT':

Scott, op. cit., n. 162, pp. 125±32.

167 J.A. Mirrlees, Welfare, Incentives and Taxation (2006) at 352.

168 id.

169 id.

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

of recent debates on `fairness'.

170

Between (roughly) 1965 and 1989, home

ownership in the United Kingdom rose from approximately one-third to two-

thirds of the population.

171

This development is of great significance for both

the institution of the family and the economy, as many more families now

are in a position to bequeath something valuable to subsequent genera-

tions.

172

In many ways the family home has become the main focus of

inheritance taxation, for, as Harper explained, `most of us have little to

bequeath unless we own a house, but those of us who do potentially have

something of value to transmit to the next generation.'

173

There is a rich

literature analysing what might be described as the sociology of property

prices which might inform this discussion.

174

This literature acknowledges

the interactive impact of social values and perceptions on property prices,

but also recognizes the fact that home ownership plays an important role in

economic security, and simply, wealth.

175

This also might be considered, however, within the value of bequests to

the `conjugal family'.

176

Indeed, evidence suggests that Durkheim's

prediction that, as societies evolved, bequests increasingly would target

business organizations, as opposed to individual family members,

177

may

well come true. The average home-owner parent may hope to be able to

leave a valuable family home to his or her children, but there is a

concomitant development to the rise of family home ownership: longevity.

There is a chance that the parent will require expensive, long-term palliative

care in old age, which will consume the value of the home, and possibly

more.

178

The decision to liquidate the value of one's home to pay for care

589

170 See, generally, C. Hamnett, `The Geography of Housing Wealth and Inheritance in

Britain' (1992) 158 Geographical J. 307. In 1985, the top 10 per cent of households

in Britain had (after tax) incomes ten times greater than the bottom ten per cent: T.

Stark, A New A±Z of Income and Wealth (1988) at 9.

171 S. Harper, `Inheritance and Intergenerational Relationships' in Families in Ageing

Societies, ed. S. Harper (2004) 164±75, at 164.

172 id.

173 id., at p. 164.

174 See D.R. Harris, ```Property Values Drop When Blacks Move in, Because . . .'':

Racial and Socioeconomic Determinants of Neighborhood Desirability' (1999) 64

Am. Sociological Rev. 461; J.L. Bradach and R.G. Eccles, `Price, Authority, and

Trust: From Ideal Types to Plural Forms' (1989) 15 Annual Rev. of Sociology 97;

J.I. Gilderbloom and R.P. Appelbaum, `Toward a Sociology of Rent: Are Rental

Housing Markets Competitive?' (1987) 34 Social Problems 261.

175 See, generally, C. Hamnett, Winners and Losers: Home Ownership in Modern

Britain (1999). See, also, S. White, `Basic Capital' in The Civic Minimum: On the

Rights and Duties of Economic Citizenship (2003) 176±80, at 178. But compare F.

Thistlethwaite, `The Citadel and the Caravan: Anglo-American Relations in the

Twentieth Century' (1957) 9 Am. Q. 22, at 25±7.

176 Durkheim, op. cit., n. 100, at s. 232.

177 Schwartz, op. cit., n. 101.

178 Harper, op. cit., n. 171, at p. 165 explains that `the specific issue of using assets to

fund care in old age is rather new to social policy' and is thus rather under-studied.

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

possibly will not even be that of the `home-owner parent', but will fall to

adult children. In fact, the parent's own potential longevity, and not the

taxman, may pose the greatest risk to inheritance.

179

What might be described as the `fairness' debate in inheritance taxation

also tends to focus on the suggestion that inheritance tax is unfair because it

involves a form of `double taxation,' particularly where the family home is

concerned.

180

The complaint is that tax on the family home already has been

paid by parents, thus, it is unfair to ask their children to pay yet more tax on

it after their death. Double taxation arguments

181

seem to focus less on

questions of timing, however, than on the troubles of taxpayers with estates

that are increasingly dwindling due to tax. It is the perceived, devastating

impact of this tax on middle-class taxpayers, in particular, however, that has

most fuelled current political discourse.

182

Additionally, the government's

reluctance to send clear signals to the middle classes as to its plans for

inheritance tax ± as with the failure to mention IHT reform in the Pre-Budget

Report 2006, discussed above ± has increased criticism. This is significant,

because psychologists have suggested that if tax collection agencies behave

as if they trust taxpayers, then taxpayers are more likely to behave in a

`trustworthy' manner.

183

This explains, Chorvat argues, why enforcement

can sometimes decrease pre-existing compliance behaviour,

184

and also

suggests that any indication that the government is not `playing fairly' can be

detrimental to its acceptance of a tax.

If inheritance taxation is unfair, then avoiding it is unproblematic, at least

from a moral standpoint.

185

Unlike a waiter not declaring his tips, however,

it can be very expensive to avoid inheritance tax, given the cost of avoidance

schemes. Thus, the tax appears even more unjust, as the wealthy would

590

179 See, generally, J. Huber and P. Skidmore, New Old: Why the Baby Boomers Won't

Be Pensioned Off (2003).

180 This is part of the US-centric, early-twentieth-century debate that requires updating.

For an early example of this sort of analysis (very much rooted in the theories of J.S.

Mill), see I. Fisher, `The Double Taxation of Savings' (1939) 29 Am. Economic Rev.

16.

181 Which must be treated fairly, given the relief afforded to homeowners for capital

gains.

182 See Scott, op. cit., n. 162.

183 T. Chorvat, `Trust and Taxation' in McCaffery and Slemrod, op. cit., n. 151, at p.

222, citing L. Feld and B. Frey, `Trust Breeds Trust: How Taxpayers are Treated'

(2002) 3(2) Economics of Governance 87±100. As Chorvat has stressed, `[t]o the

extent that this is an accurate depiction of the relationship, it is an implicit contract

and therefore difficult to precisely define its terms. One important point about such

contracts is that they can only be created by prior conduct. Therefore, large-scale

changes in the behavior of one of the parties can be viewed as a violation of the

contract' (emphasis added).

184 id.

185 For a discussion of this, see H. Cremer and P. Pestieau, `Wealth Transfer Taxation:

ASurvey' (2003) at arp.lse.ac.uk/PapersDB/Cremer-Pestieau_

(CESifo1061).pdf >.

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

appear to have the ability, even the right, to avoid it.

186

Although it might

appear to be an obvious point, it is important to appreciate the differences

between taxpayers in the inheritance tax debate.

187

For example, are parents bequeathing the family home to adult children so

that they will not have to struggle to `get on the property ladder,' as perhaps

they did? Then, the discourse could focus on affordable housing, and the

relative value of home ownership. Early-twentieth-century debates on

helping `the poor man' through inheritance taxation

188

must confront the `No

Exit Obligation,'

189

which presents a primary claim on the attention of

parents, even of adult children. Thus, confusion about the language of

inheritance taxation may be dismissed, perhaps, in favour of analyses

capable of convincing a wider populace that such taxes are economically

efficient, progressive, and indeed, fair.

CONCLUSION

A revival of the discourse of inheritance taxation, grounded in sociological

theory, could help to explain why the tax is fair, and it should not be avoided.

Durkheim's and Marx's criticisms of inherited property are potentially very

useful, but it is perhaps Beckert's description of the bequeathing of property

as an economic act that holds the most promise.

190

If understood and

discussed as an economic act, then perhaps inheritance tax may be salvaged

from the emotional debate of family homes, and legacies, which currently

threatens it. This is not to suggest that the emotion of inheritance should be

entirely disregarded, and indeed Durkheim's analyses demonstrate the

importance of societal attachment to property.

191

Rather, a post-functionalist

analysis of, for example, the motive behind the economic act of bequests

192

may serve to spark debate in a productive way.

Broome has analysed the importance of a good death, suggesting that `[i]t

seems plausible that a good end to life is more valuable than, say, a good

591

186 Green presents a perhaps idyllic definition of tax avoidance: `[t]ax avoidance seems

to involve an amoral act ± neither superogatory nor fraudulent; in its most negative

light, it is mildly exploitative or selfish.' S.P. Green, Lying, Cheating and Stealing:

A Moral Theory of White-Collar Crime (2006) 243±4.

187 N. Taylor, `Understanding Taxpayer Attitudes Through Understanding Taxpayer

Identities' in Taxing Democracy, ed. V. Braithwaite (2003) 71±92, at 89. As Adams

suggested, `[e]vasion can be prevented just so long as men feel it cheaper to employ

the state to superintend the distribution of their property after death than to employ

private agencies.' Adams, op. cit., n. 147, at p. 242.

188 Seligman, op. cit., n. 68, at p. 229.

189 Alstott, op. cit., n. 119.

190 Beckert, op. cit., n. 105, at p. 367.

191 Cotterrell, op. cit., n. 111, at p. 134.

192 Kohli, op. cit., n. 114, at p. 268.

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

middle life.'

193

This desire perhaps explains much of the inheritance tax

debate. It is evident in the language used to describe inheritance taxation,

and in the conflicts that arise over the legal treatment of adult children.

This article concludes that sociologists and tax legal theorists need to

revive the discourse of inheritance tax law in the United Kingdom. Por-

trayals of inheritance taxation as an attempt to take away all that a family has

achieved financially may present political challenges, but the accusations

may be answered. Indeed, the objective of an inheritance tax need not be

absolute wealth redistribution, or even wholly aspirational. As White

explains, `[i]n its non-ideal form, fair reciprocity does not require that we

eliminate all significant brute luck disadvantage.'

194

This does not, however,

relieve us of the obligation to address, for example, racial and class

inequality, which are thought to be perpetuated through the ongoing process

of intergenerational wealth transfers.

195

Given that White suggests that

permitting significant levels of inheritance can impede social cohesion, and

increase the gap of mutual understanding between those who must work for a

living, and those who do not,

196

this is an important task.

`No economist'

197

may doubt the value of inheritance taxes, but taxpayers

have complained bitterly, and frequently, over the past ten years in both the

United States and the United Kingdom. In 2007, after thirty years of what

Bartels described as a `massive social experiment'

198

regarding economic

inequality, the terms of discussion have become intensely politicized and, as

a burgeoning literature is beginning to suggest, the capacity for reasoned

public discourse about taxation is, as a consequence, diminishing.

199

In the United Kingdom, it need not stay that way. Of course, the modern

uproar was not easily predictable. Carrington may have presumed that

`civilized nations' accept some form of wealth redistribution upon death as a

given.

200

This presumption may not have stood the test of time, but it need

not follow that the discourse is incapable of being revived.

The fortunes of inheritance taxation and property values may be deeply

intertwined in the United Kingdom, and hint at the possibility that

inheritance taxation in some ways is viewed as an assault on the family.

201

In this context, arguments might be refined to suggest that, for example,

people who, thanks to inheriting the value of their parents' home, do not

need to struggle to pull together the down payment which enables them to

592

193 J. Broome, Weighing Lives (2004) at 227.

194 White, op. cit., n. 175, at p. 179.

195 id.

196 id.

197 Baldwin, op. cit., n. 1, p. 1.

198 Bartels, op. cit., n. 3, at p. 15, citing R.J. Samuelson, `Indifferent to Inequality?'

Newsweek May 2007.

199 See id., and Graetz and Shapiro, op. cit., n. 9.

200 Carrington, op. cit., n. 26, p. 568.

201 id.

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

embark on the property ladder, also may have difficulty understanding

people who are not so fortunate. Sociological theory may inform this

discourse. At least, it may help to explain that, simply because wealth

emanates from the value of a family home, it does not make it something

other than wealth. Indeed, simply because the value of what previous

generations (even very recently) may have described as an average house

(especially in the south east of England) may have soared in value, does not

negate the significance of that value.

593

ß2007 The Author. Journal Compilation ß2007 Cardiff University Law School

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Inheritance in Socio‐Political Context: The Case for Reviving the Sociological Discourse of Inheritance Tax Law

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