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Who wins if Trump repeals the estate tax

Donald Trump rallied the working class during his campaign, but he also championed one benefit favoring mostly the super-rich: eliminating the federal estate tax.

It's one part of the president-elect's overall tax plan that he has been particularly specific about. In conjunction with a repeal of the estate tax, he has proposed taxing capital gains on assets upon the owner's death, with exemptions for small businesses and family farms on the first $10 million.

"It ends the death tax," Trump said in September. "It's a double taxation, a lot of families go through hell over the death tax."

"I look forward to working with President-elect Trump on legislation to permanently bury the death tax once and for all," House Ways and Means Committee Chairman Kevin Brady said in an email to CNBC. Ways and Means is the chief tax-writing committee in the House and is where tax legislation generally originates.

"For too long, this tax has threatened family owned businesses — including women and minority-owned businesses — from being passed down to their children and grandchildren. It's time to move forward with pro-growth tax reform that fully repeals the death tax and replaces it with a tax code built for growth," Brady said.

Senate Finance Committee Chairman Orrin Hatch agreed.

"The death tax on family farms, small businesses, ranches and estates has crippled hard-working families for far too long. It ought to be repealed, plain and simple," he said in an email to CNBC.

Under current rules, a taxpayer can pass up to $5.45 million to heirs tax-free. For married couples it's $10.9 million. Above that amount, beneficiaries must pay an estate tax of 40 percent. (Currently, there are also 15 states and the District of Columbia that assess an estate tax, according to the Tax Foundation.)

Only the wealthiest Americans now pay the federal levy. In 2015, the Tax Policy Center estimated there were about 10,800 estate returns filed and about half of those were taxable. Still, the amount of tax collected on just those returns was over $18 billion, the Tax Policy Center said.

"It doesn't apply to 99 percent of us," said Steve Martin, senior managing advisor at BKD Wealth Advisors, "but for those it does apply to, it's a pretty significant tax."

Right now, estates are taxed upon the transfer of assets from one generation to the next. Trump has proposed taxing any capital gains on estates when, or if, the beneficiaries sell the assets they've inherited.

"That's the flip side of the estate tax," said Bill Smith, managing director at CBIZ MHM. In this scenario, "you are transferring assets with a locked-in tax liability."

For example, "Grandma and grandpa pass away and leave you shares of AT&T," said Travis Sollinger, a certified financial planner and director of financial planning of Fort Pitt Capital Group in Pittsburgh.

As it stands now, you inherit the shares on the date of their death and the share price on that date — say $40 — is your "step-up" basis. If you were to turn around and sell those shares, you wouldn't pay any capital gains taxes, he said.

Under Trump's plan, with no estate tax, beneficiaries would instead pay capital gains taxes based on the original cost — the share price grandma and grandpa paid for their AT&T stock when they bought it decades ago, which could be as little as $2, according to Sollinger. (Check out the table below, assuming a 20 percent capital gains tax rate.)

Step up vs. no step up

 
Sale price per share
Cost basis
Capital gain per share
Tax per share
Step up $40 $40 $0 $0
No step up $40 $2 $38 $7.6
Source: CNBC

Although it's a trade-off, there's a benefit for the wealthiest of the wealthy in this new scenario, Sollinger said.

"If I am well off myself and I'm not forced to sell [the assets I've inherited] then I can delay paying that tax until it's an opportune time to do so. It's the people who are less well off that are going to end up paying that tax," he said.

"By far the greatest percentage of the benefit goes to the extremely wealthy," Smith said.

That's how "wealth is allowed to accumulate," said David First, a CPA and co-partner-in-charge of the trusts & estates practice at accounting firm Marcum LLP. Trump's plan creates a way to build generational wealth, he said. "It will concentrate power in a few."

However, any tax code changes could just as easily be undone in the next election cycle, First said. "This could be temporary."

Smith advises his clients to hang tight for now. "The general rule is stick to the status quo until something happens," he said. "We don't have a lot of meat on these plans yet."

The estate tax has been a roller coaster since first imposed in 1917, when 10 percent was levied on portions of an estate exceeding $5 million. At its peak in the 1940s it charged 77 percent on portions over $10 million, then 70 percent for amounts over $5 million from 1976 to 1982.

The Trump camp did not respond to a request for comment.