Ok, I'm a little confused about the constitutionality of a confiscatory estate tax issue. Here's what I think I understand:
First, it seems that the relevant property right is that of the parent, not the child. A confiscatory estate tax would not seem to "take" that property, instead it simply prohibits passing the property on at death. The parent would still be free to dispose of his or her property as wished until the time of death but denied the opportunity to pass it on then. For this to be a taking, you would have to hold that the ability to pass your property on at death was an essential part of the bundle of property rights, which would seem difficult to argue if you were entirely free up to that point. If combined with a confiscatory gift tax, though, this would not be the case. Then, the restriction would be on any disposal of property to others (though it could be freely spent by the parent). Denial of your ability to make gifts does not destroy the entire property interest but does seem like a pretty big restriction on your bundle of property rights. But suppose the gift tax doesn't apply to all gifts, e.g., charitable donations are exempt, but only those to your children. Now, the question would seem to be: Is the ability to give property to your children (before or after your death) an essential component of your right in property, given the other uses of your property? Is this correct? Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
