Grzegorz Blicharz

Assistant Professor, PhD, Jagiellonian University in Kraków

Inheritance Tax and the Poor: the Augustan Exemption, Germany in 1920s, and Modern Spanish Law^*

Italian title: L'imposta di successione e i poveri: l'esenzione augustea, la Germania del 1920 e il diritto spagnolo moderno

DOI: 10.26350/18277942_000039

Sommario: 1. Introduction – 2. The Augustan Exemption for the Poor – 3. A Poor Heir or the Poor as Heirs? – 4. Enduring Idea: Germany in 1920s and Modern Spanish Law – 5. Conclusion: Law of Succession and Effective Support for the Poor

1. Introduction

The ancient exemption from inheritance tax introduced by Augustus not only for close relatives but also for the poor shows that the Romans took into account the fact of poverty within the framework of the law of succession. Moreover, they tried to use the instruments offered by inheritance law in order to help the poor or, more precisely, to create opportunities to remedy situations of poverty. However, the contexts in which legal solutions for the poor actually appear may seem puzzling. Even today, when one thinks of legal solutions that deal with the fact of poverty or are intended to help the poor, it is rarely the law of succession that is mentioned. This is yet another proof that the Romans paid special attention to this particular law.^[1]

It is not always possible to reverse social realities through legal regulation. Poverty is a fact that has always accompanied us and which it seems likely we will always have to face. Our present investigation looks at this fact from two angles. From a broader, community perspective, poverty is a tangible social and economic reality that is expressed in a generic term – the poor – which points to a social stratum and calls for wholesale action at state level. From an individual perspective, poverty is a condition into which one might fall at any time, and from which one can be redeemed, without necessarily changing social stratum, but until such redemption happens – if it should do so – it is possible that one may seek various forms of legal protection or exceptions which are granted on a case by case basis in order to improve the situation of individuals in these circumstances. With regard to ancient Rome, both certain impoverished individuals and the poor as a class were taken into consideration by law makers and various regulations ranging from private to public law reflected this situation and the needs of such people.^[2]

The role of the legislator is to shape the legal order in such a way that the distribution of goods and social expectations is not interfered with, and the regulations introduced allow for the harmonious development of each person and thus the achievement of the common good. In this article, we focus on a particular relation between the taxation of inheritance and the protection of the poor, ‘the poor’ being understood in both a generic and an individual way. Both in antiquity and in moderntimes, the condition of being poor has been an important factorof tax policy, and as taken into account in inheritance tax it may be considered as offering a partial solution at the intersection of private and public law, aiding the fight against poverty and the financial improvement of the poorest individuals.

In this article we develop our recent argument that the personal exemption granted to „the poor” in the inheritance tax regulation introduced by Augustus (lex vicesima hereditatis of 6 AD) would seem to express, with respect to certain circumstances, a particular solution – one that, although uncommon even in modern law, is nevertheless universal in the extent of its occurrence – in which the legislator is urged, when estimating the tax burden, to consider the assets already owned by the beneficiaries of the inheritance, ie. their financial condition.^[3] One should bear in mind, however, that the similarity that we are looking for amongst these solutions is not to be found in a type of ready-made legal product fit for all times and territories, but rather in being driven by a similar rationale. Certain solutions once expressed in Roman legal thought confirm their utility although they are applied in different contexts and situations and sometimes serve other goals. Solutions that allowed for adjusting the inheritance tax rate according to the preexisting patrimony of the heirs was applied in 1920s Germany (since the enactment of Deutsches Reichserbschaftssteuergesetz vom 10. September 1919 which was soon amended and abandoned).^[4] Today, a similar criterion for determining the amount of inheritance tax is used also in Spanish law (since the introduction of Ley 29/1987, de 18 de diciembre, del Impuesto sobre Sucesiones y Donaciones till now).^[5] To what extent they are based on Roman rationale and how they differ from the solution in Roman law will be analyzed. The idea of taking into account the financial condition of heirs when this is significantly low could act as an inspiration for contemporary legislators to protect to a greater extent the beneficial effect of mortis causa transfers in the case of poor heirs and beneficiaries. The interpretation of tax exemption granted by Augustus for the poor allows us to understand the evolution of the inheritance tax framework; it exhibits a wide range of exemptions for the poor, exemptions which Roman law preserves as an additional way of improving the poor’s financial condition.

2. The Augustan Exemption for the Poor

In the time of Augustus, protection of the "poor" was ensured in the recently introduced inheritance tax (6 AD) called vicesima hereditatis – 5% tax on inheritance. Personal exemptions were granted to close relatives and to the poor, both exemptions being expressed in general terms. This is how the message of Cassius Dio is to be understood, when he says that 5% of inheritances and bequests (εἰκοστὴντῶντεκλήρωνκαὶτῶνδωρεῶν) was collected unless they were left to – τῶν πάνυ συγγενῶν ἢ καὶ πενήτων – "close relatives or the poor".

Cass. Dio 55,25

(…) τὴνδ᾽εἰκοστὴντῶντεκλήρωνκαὶτῶνδωρεῶν, ἃςἂνοἱτελευτῶντέςτισιπλὴντῶνπάνυσυγγενῶνἢκαὶπενήτωνκαταλείπωσι, κατεστήσατο (…)

In this article we are interested in the analysis of the exemption for mortis causa transfers to "the poor” – οἱ πένητες. Even though the formula of the exemption was provided by a historian and not a lawyer, and possibly did not reflect precisely the actual wording of the statute, we may assume that the statutory formula did contain a general clause of this nature.

However, in Roman law there was no legal definition of the "poor", a fact that seems to be confirmed by later inheritance tax regulation introduced by Trajan that used rather open-ended formulas for other exemptions – modica pecunia, parva hereditas, funeris sumptus, formulaswhich required subsequent clarifications.^[6]As a result, a legal regulation that exempts the poor, operating, however, with application to a general and undefined realm, can in fact be easily overinterpreted and used beyond the actual intentions of the law itself. This is evidenced by the commonRoman experience of exemptions from public burdens being obtained because of poverty, precisely as an exception sanctioned by law: temporary exemption is given to those who lack the resources (deficientium facultatibus) for the munera or offices which are imposed (D. 50,4,4,1); the poor (inopes) do not undertake patrimonial burdens, but should perform bodily services (D. 50,4,4,2); people may be excused from burdens which are imposed on property or patrimony by pleading poverty (paupertatis – D. 50,5,10,3); or immunity from public burdens may be given to tenuioribus who are associated in the collegia unless their resources have increased (D. 50,6,6,12). From this perspective, the exception for the poor in the case of inheritance tax is therefore not a totally surprising solution, even if framed only in general terms – οἱ πένητες.

In any event, the terms used by Cassius Dio should always be analyzed with care and caution. Like "close relatives", the term "the poor" also belongs to open terms, general clauses that need to be interpreted. While in the case of the exemption for close relatives there is an attempt at establishing a catalogue of such persons, and the term itself “close relatives” is usually understood as referring to so-called decem personae (although not without interpretive doubts as to its precise meaning),^[7] in the case of "the poor" we encounter far less discussion in the scholarship on Roman law, despite the fact that the meaning seems to be even more ambiguous.

There are two possible understandings of the phrase, οἱ πένητες, used by Cassius Dio: what was to be exempted was either the poorwho received an inheritance or bequest, or small wealth transfers –‘poor’ inheritances; ‘poor’ referred either to the recipient or to that which was to be received. The second reading is now the dominant one and usually the statute is understood to exempt inheritances or bequests which do not exceed a certain threshold (the value of which we are not cognizant of – maybe 200,000 sesterces; 100,000 sesterces, or even 20,000 sesterces.)^[8] This understanding with regard to the value of the inheritance is somehow mixed in the literature with the concept of personal exemption. Georg Schanz more carefully agreed that Augustus shaped exemption on the basis of a personal characteristic, i.e. being poor. It cannot, however, be accepted with full certainty.^[9] Interestingly enough, till the 19th century the understanding that Augustus introduced a personal exemption for the poor was a majority opinion.^[10] Since Johann Jakob Bachofen, however, who set the origins of inheritance tax in lex Voconia, was introduced the idea that Cassius Dio is referring, probably by his imprecision as a non-legal writer, to the minimal taxable estate and not to personal exemption of the poor. It was followed then by Theodor Mommsen, Joachim Marquardt and Pieter Burmann.Still both René Cagnat and Schanz restrained from accepting this view en tout.^[11] Today, the idea that Augustus could have exempted the „poor” in the meaning of personal exemption is held unacceptable especially due to the argument of Werner Eck that such exemption would be impractical and impossible to apply case by case.^[12] However, in the literature which accepts one or the other understanding the term ‘poor’ has usually been understood as referring to estates which were not included in the census, which did not reach a certain threshold – and this threshold is recently the main subject of discussion as regards the term οἱ πένητες.

In another fragment of Cassius Dio he uses the term “the poor” (ἀσθενεστέρους) to describe those whose estates were worth less than 50,000 drachmas (200,000 sesterces), and who were not included by Augustus in the census due to the fear of provoking unrest or even an uprising (νεωτερίσωσί τι ταραχθέντες) by such political impositions.

Cass. Dio, 55,13,4

τοῦτο μὲν δὴ δι᾽ἑτέρων ἔπραξεν, αὐτὸς δὲἀπογραφὰς τῶν ἔν τε τῇἸταλίᾳ κατοικούντων καὶ μὴἐλάττω πέντε μυριάδων οὐσίαν κεκτημένων ἐποιήσατο: τοὺς γὰρ ἀσθενεστέρους τούς τε ἔξω τῆς Ἰταλίας οἰκοῦντας οὐκ ἠνάγκασεν ἀπογράψασθαι, δείσας μὴ νεωτερίσωσί τι ταραχθέντες.

However, one should be very careful in assuming that those not included in the census list were the same "poor" who were exempted from the inheritance tax, and thus one cannot immediately equate the definition of "the poor" from the two fragments of Cassius Dio. It may indeed be plausible that they were not taxed due to not being on the list; however, we need to be aware that in these two fragments Cassius Dio uses different terms to describe the poor – οἱ πένητες in one and οἱἀσθενέστεροι in the other. Certainly he was not reporting strict legal formulae but rather explaining Augustus’ policy. However, it does seem quite persuasive that the Augustan census covered neither the poor nor those living outside Italy (τε ἔξω τῆς Ἰταλίας οἰκοῦντας) – which resembles the limits of the inheritance tax obligation, however with one caveat. At least, in the times of emperor Claudius inheritance tax was due from every Roman citizen, also living outside Italy.^[13] In the case of inhabitants outside Italy, who were not Roman citizens (Quirites or Latin prisci) the tax obligation changed along with the policy of gradually extending Roman citizenship and with the constitution of Caracalla, which was so revolutionary for the scope of inheritance tax.^[14] The most commonly acknowledged threshold for the imposition of inheritance tax has been established, however, at 100,000 sesterces, based on legal sources which report subsequent provisions of the lex Papia Poppaea (9 AD) and which consider as rich freedmen those whose assets are worth at least 100,000 sesterces.^[15] All these interpretative attempts are directed towards understanding the term  "the poor" in terms of a minimum threshold of the value of the inheritance or bequest subject to vicesima. Indeed, some such exemption is expected when one thinks about inheritance tax in general. Eventually, this type of exemption was later confirmed by subsequent Roman legislation, i.e. that of Trajan, who imposed inheritance tax only on the wealthy (opibus) and exempted modest inheritances and bequests (modica pecunia, parva hereditas), although it seems that Trajan himself considered this solution a new one, or perhaps one which clarified Augustan legislation. This might imply that under Augustan legislation the exemption of small transfers was not entirely clear-cut^[16], or that it only became such in the reign of Domitian.^[17]  Interestingly enough, the entire above-mentioned hypothesis regarding the minimum threshold of a taxable estate was based on the value of an estate which determined membership in the stratum of the poor. Hence, their intention was to determine the threshold for exempted inheritances or bequests by relating this threshold to the group of exempted beneficiaries, trying to assume what would have been considered a poor mortis causa transfer.

Nevertheless, limiting the inheritance tax only to those groups with wealthier estates would suggest that those not included in the census would not pay the tax, and this may be the correct way of understanding the term "poor". However, it does not immediately follow that the term “poor” should mean that Augustus introduced a minimum threshold for inheritance tax in a modern sense. This exemption should be understood in the context of a social stratum based on the value of patrimony. Certainly, those whose estates did not meet a certain threshold value would not have been taxed because they were not listed, and perhaps the transfers of their estates were not controlled. This would help to overcome practical problems with qualifying beneficiary as poor men. What needs to be further specified, however, is whether they would not pay the tax even in the case in which the inherited estate exceeded the threshold (200,000 sesterces or 100,000 sesterces) but their own personal estate did not permit them to be included in the census, i.e. it was worth less than the threshold. That is to say, whether all mortis causa transfers within the unregistered group were exempt from tax; or whether inheritance tax would not be paid only if the inheritance or bequest received did not exceed a certain threshold (200,000 sesterces or 100,000 sesterces), even though the beneficiaries were included in the census and thus possessed estates above the threshold value. The latter understanding takes us directly to the Trajan idea of a minimum threshold for the imposition of tax on any transfers, while the former preserves the idea of personal exemptions which frees only certain groups from the tax, i.e. close relatives or the poor.

As given, the most obvious reading of Augustan exemption – that it exempted the poor who received an inheritance or bequest – may be considered both rational and very plausible, and is indeed considered thus in the part of scholarship of Roman law, although still awaiting substantiation from further evidence. Such a solution would permit the exemption of beneficiaries who are amongst "the poor" and offer a way of grappling with impoverishment by the use of tax law and the law of succession, and not merely the enabling of small transfers. It would appear to express the idea that, when estimating the tax burden, one should take into account the assets currently owned by the beneficiaries of the inheritance. This interpretation of the exemption is indicated in a straightforward fashion by the actual wording preserved by Cassius Dio. In both circumstances in which the exemption is applied, it is not transfers but groups which are exempted – exemptions are characterized by the special condition of the beneficiaries, not by the inheritance as such, i.e. by relating to close relatives and to the poor.^[18] One might even go further and suggest that both characteristics should be reciprocal: just as the deceased and the beneficiary should be close relatives to one another, so also the deceased and the beneficiary should both belong to the poor for exemption to apply, but this is a hypothesis which needs to be investigated in the future. Secondly, his sensitivity to the poor is indicated by Augustus' policies – that of making a census only of estates worth more than 200,000 sesterces and that of levelling external wealth disparities which exacerbated perceived poverty (implemented by Sumptuariae Leges restricting luxury or extravagance). The tax privilege Augustus instituted would then be a part of a social policy that on the one hand protects the poor and allows them to become gradually but not immediately richer through the law of succession, and on the other hand creates an incentive for certain of the poor to remain a little below the threshold only in order to avoid the public burden, and in this way to petrify the noble strata and prevent too much movement between social strata. Finally, some distant confirmation of this sensitivity to the poor can be found in both Trajan's policy of directing the inheritance tax against the rich (opibus)^[19]and also in the post-classical custom of using inheritance to pass on material goods quite literally to "the poor" as a social group.^[20]Naturally, inheritance tax was not levied on the latter, either – and most likely – because inheritance tax had already fallen out of use by then, or perhaps because of the universal rationality of the exemption introduced by Augustus for the poor. Considering Augustan exemption as a personal one directed towards the poor seems then to have enough justification to see this as a plausible interpretation of Cassius Dio’s formula.

3. A Poor Heir or the Poor as Heirs?

We should now analyze who is ὁ πένης, who are οἱ πένητες, and consequently how the exemption could have worked, if it was to cover poor beneficiaries, and not transfers below a certain threshold. The personal exemption for the poor can be understood in two ways: the heir/beneficiary of the inheritance is a poorman or the heirs are literally the poor as a class. This second understanding is only discovered in the post-classical period, revealing a new meaning that was not considered in the time of Augustus and that had to find its legal justification. Let us therefore concentrate on the first understanding. This means that if an heir at the time of receiving the inheritance is in a poor financial position, such that he could be described as ‘poor’ (perhaps his estate does not exceed a certain threshold), then when he receives the inheritance he does not have to pay tax on it. Of course, if he adds up his newly inherited and his current personal wealth and it exceeds 200,000 sesterces or 100,000 sesterces, then he will from this time be included in the census and no further tax exemption will be applied to him in future. In this way, inheritance law allows for a more rapid shift, although incidental, within the propertied classes of ancient Rome.

The grammar of the phrase we are analyzing also allows us to understand the term οἱ πένητες as corresponding to persons who earn their bread by work, but such an understanding should be rejected in this context. In this respect, the individuals concerned could possibly be considered as subordinate persons, who are sometimes recognized in Roman sources almost as subordinates of the family (mercennarius), but only because they put themselves entirely at the disposal of the family, being in an almost slave-like position. For such an understanding, however, no sufficient justification has as yet been found.

Despite Cassius Dio's suggestion, the term ‘poor’ was certainly not defined within the spectrum of property ownership as those whose estate is worth less than certain amount of money, e.g. 200,000 sesterces. It was certainly not a way to create a legal definition of ‘poor’. We may consider that in this way Cassius characterized in a broad fashion persons who were not subject to the census introduced by Augustus. ‘The poor’, as understood by Augustus, were therefore not people completely deprived of property. On the contrary, they could receive and pass on inheritances or bequests. The exemption of the poor from inheritance tax seems to confirm a thesis present in the literature on the definition of the poor in ancient Rome. As C. Humfress has shown, a strict legal definition of the poor did not exist in Roman law.^[21] On the contrary, she argues, ‘poor’ did not refer to a person who would remain in a permanent state of material insufficiency only. One could be considered poor at a given moment only or in a given circumstance. The condition of such a person could therefore be improved. This casuistic approach fits perfectly with the tax exemption for the poor in the case of inheritance transfer. Undoubtedly, enrichment of the poor by inheritance would happen only exceptionally and only in certain circumstances. After all, inheritance within a close family would not lead to the kind of enrichment that would contribute immediately to the enrichment of the poor, but rather only to the preservation of at least the basic means of subsistence. Nevertheless, the Romans did not even rule out serious enrichment of the poor through inheritance, especially when one considers testamentary succession and the opportunity for receiving wealth from outside the family.

 Receiving an inheritance in a will when property is transfered to the testamentary heirs was one of the most important ways of becoming enriched in Roman society. The transfer of property to persons who would not have inherited at all if there had been no will, or who would not have inherited in as large a proportion as the testator envisaged, provided an opportunity to modify the existing flow of goods in the society and to redistribute wealth. The legal instruments that made this possible were many, including adoption and adrogation, and indeed a wide circle of heirs both in the succession ius civile and through the praetorian bonorum possessio could contribute to the enrichment of distant poor relatives of the deceased.

Being considered impoverished at a specific time in his or her life did not change the legal mentality of a Roman citizen, and above all it did not influence his or her strong belief in the importance of testamentary succession. An example of this conviction is provided by the jurist Tryphoninus and proves that inheritances and bequests were indeed transferred between the poor.

D. 49, 17, 19, 2 Tryph. 18 disp.

(…) necessario ergo castrensis peculii heres scriptus universa bona habebit, perinde ac si pauperrimus facto testamento decessisset ignorans se locupletatum per servos alio loco agentes.

As part of his argumentation, Tryphoninus refers to the image of a very poor man (pauperrimus) who died leaving a testament. His lack of wealth did not deprive him of the desire to leave behind a testamentary heir. In his will, he disposed of all that he had unaware that he had in fact become rich, thanks to his slaves who had successfully managed his affairs elsewhere. Naturally, Tryphoninus assumes that his heirs are entitled to the entire inheritance regardless of the testator's awareness of his actual wealth. In the literature it is rightly argued that spread across Roman legal texts we see a relative understanding of the idea of what a "poor" person is.^[22] In the case of Tryphoninus, even the owner of a few slaves who managed his business affairs in a distant place could be considered poor. However, testamentary succession was not excluded even in the case of substantially impoverished citizens – those who left insolvent inheritances – hereditates damnosae. In such a situation, the creation of a will is not only possible, but is actually the only salvation for the honor of the family name in the event of the liquidation of the estate by creditors, since as the heres of such an estate there might be instituted the testator's slave, who was to be freed in the will and, we note, was not able to refuse the inheritance (heres necessarius). Mortis causa transfers were important for the poor, and, as we can see in the Roman legal sources, they were not limited to destitutes, and so it is not surprising that solutions in favor of the poor were present also in the law of succession.

In fact, even in the face of the abrogation of inheritance as in communist Russia, the transfer mortis causa of the most basic material goods, and above all of the tools of labor, have always remained. Earlier, the confiscatory inheritance tax had been deleted from the Communist Manifesto, primarily because of the protests of the workers, who considered it natural that they would pass on what they earned to their children.^[23] All the more understandable, therefore, that the Romans should recognize that the poor should have the opportunity to be improved by inheritance, and in fact they decided to favor a gradual rise out of poverty. This, after all, was important not only for the poor themselves, but also for general stability and social concord. As Cassius Dio points out in the time of Augustus, imposing new obligations on poor citizens could only result in social unrest. From the point of view of private law, the improvement of the financial situation of the poor was also something desired by creditors, who hoped for at least a partial satisfaction of their claims in this way.

It was not until the post-classical period, with the increasing penetration of the Christian religion into Roman society, that the phenomenon of bequeathing goods intended for ‘the poor’ as a class was introduced, either directly or through ecclesiastical institutions. This phenomenon led to allowing "the poor" – specified literally in this way – to be instituted as heirs or legatees. It was done for the first time in 455 in the constitution of the emperors Valentinian and Marcianus –   C. 1, 3, 24:  pauperibus testamento vel codicillis relinquitur. Obviously the term pauperes is verybroad and in order to be effective it had to be exempted from the rule applied to incertae personae (the application of which would have meant the collapse of the testamentary succession), and subsequently required an official interpretation in order to allow a proper distribution of the estate.^[24] The piae causae foundations developed in this way became another instrument of the law of inheritance through which assistance could be given, this time not only to πένης as in the classical understanding but also to those who simply had nothing, i.e. to the poor as a stratum generically speaking. In the imperial constitutions concerning such mortis causa transfers, two terms are used to describe the poor: the term we have already met, pauperum, but also mendicantes,two groups who in the times of Justinian are not considered to correspond: pauperibus, qui in civitate sunt vel penitus mendicantes vel alia sustentatione egentes. In fact mendicantes signifies beggars, those who usually are deemed to represent the poor as a social stratum. This difference is also found in the Greek, between πένης and πτωχός. The latter – πτωχός – influenced legal Latin since the estates left for the poor (pauperes) should be distributed among local xenones vel ptochia – hospitals or poorhouses. Thus in postclassical times both terms were used interchangably, although there was in fact an important discrimination made between them.^[25] The mendicantes were strictly controlled and regulated with administrative measures, while the pauperumdenoted a condition protected by law. Already in 382 emperors Gratian, Valentinian, and Theodosius regulated so called ‘sturdy’ beggars (C. 11, 26 De mendicantibus validis) in order to act against serious abuses and deceptions due to individuals only pretending to need to beg. The same problems also faced Justinian who in 539 in Novel 80 introduced specific measures for the city of Constantinople to employ such individuals in public works or else send them back to the provinces from which they had come. In the context of inheritance tax, in classical Roman law at least since the time of Augustus, ‘the poor’ are those who indeed have something, or at least have the opportunity to improve their condition. Being ‘poor’, then, does not have to denote the lack of all material goods whatsoever. Moreover, among the poor, the possibility of inheritance is important and always remains a hoped-for source of livelihood. In the postclassical times the same help can also come unforeseen to those who could not have expected to be anyone’s beneficiaries. The rise of a Christian attitude towards the poor understood in the most radical way – to include even those suffering in hospitals and poorhouses – opened up fundamentally new perspectives which again were channelled through inheritance law, as well as the intermediary institutions of the Church.

Augustan exemption for the poor can be understood in two different ways than as estabilshing a minimum taxable estate. First, it can mean those beneficiaries who are not within the census group due to the low value of patrimony. In such case, indeed the ongoing discussion reagarding the minimal amount of taxable estate may be merged with the concept of the poor. It however, still allows an exemption from tax even when such owners inherit a considerable estate – so it does not work as minimum tax threshold. This at some point may be coherent with Cassius Dio reference to the existence of those who are not included in the registered group – census. At this point the problem of qualifying someone as a poor men will be overcome by the censorial estimations which in fact are highly dependent on the declaration under the oath – professio censualis. Secondly, such exemption may refer to the poor understood case by case, to individuals with particular need for resources. Here appears the practical problem of procedure that should ensure the proper qualification of such person. Nevertheless, other Roman law sources indicate that general privilege for the poor existed, and very often the issue of confirming such status was overcome by the pledge of paupertas which surely would not be abused by noble men. That suggests the proposal of re-reading the Augustan exemption as merely personal exemption with particular social policy at play. It highly depends on the issue of how Romans estimated estate as such – both estate of de cuius and the estate of beneficiaries. Other solution of Roman inheritance law touched also upon this issue of comparing the estate of de cuius and heirs which later evolved as separatio bonorum. This reflection invites to re-examine the currently dominant opinion which would like to read Augustan exemption rather as an early and unclear proposal of setting the minimum taxable estate. 

4. Enduring Idea: Germany in 1920s and Modern Spanish Law

The tax exemption for the poor introduced by Augustus could be interpreted either as exempting the poor who receive an inheritance or exempting small transfers of property. Both solutions are reasonable and, interestingly enough, both seem to be still relevant in the present day. Obviously, the idea of a minimum threshold is the one that is more commonly implemented and is spread across many different legal orders. Nevertheless, a solution that allows for adjusting the inheritance tax obligation according to the preexisting patrimony of heirs can also be found both in the 20th and 21st centuries, i.e. in the 1920s in Germany and in modern Spanish law. However, we should be aware that apparent legal similarities may be deceptive.

The example of Germany in the 1920s is a perfect example of such a deceptive similarity. The legislation during the Weimar Republic was highly influenced by revolutionary socialist ideas and was radically directed towards minimizing the inequalities of wealth.^[26] First of all, the poor were not completely exempted from inheritance tax, but rather paid less. Secondly, even close family - children and spouse - were not exempted. These solutions did not last long and were soon rejected in the mid 20s. How did the German legislator apply the idea of taking into account the pre-existing patrimony of the beneficiary when estimating the inheritance tax burden? This was, in fact, introduced not to help the poor but rather to target the rich more heavily. Progressive taxation was already in use in Germany, the rate being dependent first of all on the degree of kinship. According to the §§ 28–31 of Erbschaftsteuergesetz of 1919, if the heir was a distant relative or was outside the family, then the pre-existing patrimony calculus was applied. The rate of inheritance tax for distant relatives and heirs outside family was set at 70%, and if the personal assets of the beneficiary were worth more than 100,000 marks, the inheritance tax rate could rise by 1% depending on the amount by which the 100,000 marks threshold was exceeded. In the case of estates worth more than 1,000,000 marks it could even rise by maximum 20%, because the highest possible rate of taxation of inheritance was 90%.^[27] In fact, the pre-existing patrimony was not used to lessen the public burden of the poor, but was rather a tool to influence the distribution of wealth, i.e. from rich private citizens to the public treasury.

In Spanish law, the tax liability for coming into an inheritance may rise or fall according to the value of the preexisting wealth of the heir (patrimonio preexistente). This solution is a way of using taxation to influence the distribution of wealth in society, and moreover directed at certain individuals. Heirs inheriting the same shares of the estate may pay varying amounts of tax depending on their personal financial conditions. This leads to relief for those who receive an inheritance in a condition of poverty. On the one hand, such a solution may prove to be truly beneficial for the poor. On the other hand, one can argue that it protects those profligate heirs who became poor because of various not very noble reasons. This is especially conscpicuous when, in contrast to such profligacy, other heirs have by their own efforts gained or just preserved the wealth they possess previous to the inheritance. For them, the higher tax burden may be seen as a cause of personal impoverishment, although, it is true, not rendering them poor immediately. Of course, such regulations may give rise to downplaying the value of owned assets, just to avoid a higher tax rate. At all events, we can see that used in this way inheritance tax has been considered a tool of social engineering that may help to harmonize the distribution of wealth within the society and diminish wealth inequality.

According to Ley 29/1987, de 18 de diciembre, del Impuesto sobre Sucesiones y Donaciones,the inheritance tax calculated is multiplied by a coefficient that depends on the value of the pre-existing patrimony which is applied differently to three different taxable groups, groups which are determined by the degree of kinship between the testator and the heir or legatee and also by the age of the beneficiaries. The coefficient is higher if the prior estate exceeds the following values: 402.678,11 euros – 2.007.380,43 euros – and 4.020.770,98 euros. Just to give an example, members of group 1 which includes descendants under 21 years old should multiple the calculated tax by the following coefficient depending on the value of pre-existing patrimony respectively to the abovementioned value of this patrimony: x 1 (if estimated at 0– 402.678,11 euros), x 1.05 (if estimated between 402.678,11 – 2.007.380,43 euros), x 1.10 (if estimated between 2.007.380,43 – 4.020.770,98 euros) and x 1.20 when the heir’s pre-existing patrimony exceeds 4.020.770,98 euro. Comparatively, members of group 4 (very distant relatives and outside the family) should in the last case multiply their tax by 2.4. This solution is one of the ways in which taxation is used to influence the distribution of wealth in a society, but once again we see that it is not modelled entirely according to the example given by Roman law. In Spanish law it does not lead to direct relief for those who receive an inheritance as a poor person. It only means that their tax burden will not be increased as much as in other cases. Differently from the Roman law solution, under the present-day Spanish law the pre-existing patrimony serves to distribute wealth from the richer and diminish the differences of wealth, but also to adapt the tax burden to the economic conditions of beneficiaries as estimated before coming into the estate. Similarly to Roman law, the concept of ‘poor person’ both in the German solution and in the Spanish solution does not prevent such individuals from having any property.

5. Conclusion: Law of Succession and Effective Support for the Poor

In fact in the 20th and 21st centuries the idea of making inheritance tax dependent on the current financial condition of the heir was not a common solution, and the way it was implemented questions its potential to upgrade the condition of the poor, serving rather to redistribute wealth through the public treasury. Roman law preserves the notion that exemption for the poor may be effectively applied in the same way as exemption for close relatives. The German regulation of the 1920s and the current Spanish law followed this model only partially by making the inheritance tax rate dependent on the current wealth of the beneficiary, but not exempting the poor from all tax. In fact, even though Schanz, both a contributor to the issue of Roman inheritance tax and a leading German tax expert and the author of Reinvermögenszugangstheorie, was aware of the possible Augustan exemption for the poor as a personal exemption he did not compare it with the German solution. If we look at the Augustan exemption we find specific reference to the poor as an personal exemption – being a clear ratio for tax relief. The idea of taking special account of the financial condition of heirs however, is a rationale that is followed both in the ancient and in both modern solutions. In the case of Augustan exemption it was taken under consideration if heir or other beneficiary had significantly low financial condition. In modern, tax calculus, quite opposite, it makes a difference when personal patrimony of beneficiaries exceeds certain amount. The proposed way of re-reading Augustan exemption could be an inspiration for modern legislators to protect to a higher degree the beneficial effect of mortis casusa transfer especially in the case of poor heirs. The lack of tax burden gives opportunities to improve the financial situation of the poor, not only in the case of small inheritances but especially when great wealth is inherited. The tax exemption granted by Augustus to the poor proves that Roman law preserves also this universal solution, one which, although not very often applied, when it is may allow for a very effective improvement in the financial condition of the poor.

Abstract: The paper suggests to re-read the Augustan exemption granted to „the poor” in the inheritance tax regulation (lex vicesima hereditatis of 6 AD) as merely personal exemption with particular social policy at play. In this article we develop our recent argument that the exemption would seem to express, with respect to certain circumstances, a particular solution – one that, although uncommon even in modern law, is nevertheless universal in the extent of its occurrence – in which the legislator is urged, when establishing the tax burden, to consider the assets already owned by the beneficiaries of the inheritance, ie. their financial condition. In the 20th and 21st centuries the idea of making inheritance tax dependent on the current financial condition of the heir was not a common solution, and the way it was implemented questions its potential to upgrade the condition of the poor, serving rather to redistribute wealth through the public treasury. Roman law preserves the notion that exemption for the poor may be effectively applied in the same way as exemption for close relatives.

In the case of Augustan exemption it was taken under consideration if heir or other beneficiary had significantly low financial condition. In modern, tax calculus, quite opposite, it makes a difference when personal patrimony of beneficiaries exceeds certain amount. The proposed way of re-reading Augustan exemption could be an inspiration for modern legislators to protect to a higher degree the beneficial effect of mortis casusa transfer especially in the case of poor heirs. The lack of tax burden gives opportunities to improve the financial situation of the poor, not only in the case of small inheritances but especially when great wealth is inherited. The tax exemption granted by Augustus to the poor proves that Roman law preserves also this universal solution, one which, although not very often applied, when it is may allow for a very effective improvement in the financial condition of the poor.

Key words: inheritance tax, the poor, pre-existing patrimony, vicesima hereditatis.

^∗ Il contributo è stato sottoposto a double blind peer review.

^[1] F. Longchamps de Bérier, Law of Succession. Roman Legal Framework and Comparative Law Perspective, Warszawa 2011, p. 17.

^[2] Cfr. C. Corbo, Paupertas. La legislazione tardoantica, Napoli 2006, p. 2.

^[3] G. Blicharz, Udział państwa w spadku. Rzymska myśl prawna w perspektywie prawnoporównawczej, Kraków 2016, pp. 66–67.

^[4]Deutsches Reichserbschaftssteuergesetz vom 10. September 1919, „FinanzArchiv”1920, vol. 37, no 1, pp. 315–331.

^[5] C. López-Rendo Rodríguez, De la vicesima hereditatium al impuesto sucesorio en el Derecho español, RIDROM: Revista Internacional de Derecho Romano 2015, no 14, p. 252–253.

^[6]  Plin., paneg . 40.

^[7] Cfr. G. Blicharz, op. cit., p. 62.

^[8]J.J. Bachofen, Die Lex Voconia, Basilea 1843, p. 121; J. Marquardt, Romische Staatsverwaltung, Leipzig 1878, p. 259; J. Carcopino, Points de vue sur l’imperialisme romain, Paris 1934, p. 76; J.F. Gilliam, The Minimum Subject to the Vicesima Hereditatium, „The American Journal of Philology” 1952, vol. 73, no 4, p. 405; G. Wesener, Art. Vicesima hereditatum, RE 1958, VIIIA, 2, p. 2473; W. Eck, Die staatliche Organisation Italiens in der hohen Kaiserzeit, München 1979, p. 126; S. Günther, Vectigalia nervös esse rei publicae. Die indirekten Steuern in der Römischen Kaiserzeit von Augustus bis Diokletian (= Philippika. Marburger altertumskundliche Abhandlungen, 26), Harrassowitz, Wiesbaden 2008, IX, pp. 47–48.

^[9] G. Wesener, op. cit., p. 2473 by: G. Schanz, Studien zur Geschichte und Theorie der Erbschaftssteuer, „Finanz-Archiv Zeitschrift” 1900, vol. 17, no 1, p., 2

^[10] Ibidem, p. 18–19.

^[11] R. Cagnat, Études historiques sur les impôts indirects chez les Romains, Paris 1883, p. 185.

^[12]W. Eck, op. cit., p. 126.

^[13] Achaia C. VI, 8443.

^[14] G. Blicharz, op. cit.,pp. 105–107.

^[15] G. 3,42; I. 3,7,2; Cfr. G. Wesener, Art. Vicesima hereditatum, RE 1958, VIIIA, 2, p. 2473; J.J. Bachofen, Die Lex Voconia, Basilea 1843, p. 121; J. Marquardt, Römische Staatsverwaltung, Leipzig 1878, p. 25.

^[16] R. Cagnat, op. cit., p. 185; G. Schanz, op. cit., 19–20.

^[17] G. Blicharz, op. cit., p. 81.

^[18] Schanz argues that it would be undenkbar to relate formula – the „poor” – to estate, and not to beneficiaries – G. Schanz, op. cit., p. 20. Thus, the only way to overcome this formulation is to depreciate the precision of Cassius Dio account, as it was done by W. Eck.

^[19]  Plin., paneg. 40.

^[20] F. Longchamps de Bérier, op. cit., p. 47.

^[21] C. Humfress, Poverty and Roman law, in: R. Osborne, M Atkins (eds), Poverty in the Roman World, Cambridge 2006, p. 188.

^[22]Ibidem.

^[23]G. Blicharz, op. cit., pp. 241, 470.

^[24] F. Longchamps de Bérier, op. cit., p. 47; C. Corbo, Incertae personae e capacità successoria. Profili di una società e del suo diritto, Napoli 2012, pp. 104, 211. Cfr. J.M. Ribas Alba, Testamenti factio: incertum consilium, incerta persona, „Seminarios Complutense de Derecho Romano” XXVI, 2013, pp. 369–383.

^[25] C. Corbo, Incertae…op. cit., pp. 5, 193.

^[26] G. Schanz, Reviewed Work(s): Die Besteuerung der Erbschaften in den wichtigeren europäischenStaaten mit besonderer Rücksicht auf die schweizerische Finanzreform by E. Grossmann;Die Revolution des Erbrechts, eine Laienstudie by null von Blume; Zur Fortbildung derErbschaftssteuer by Karl Muhs; Erbschaftssteuer naher Angehöriger. (SteuerrechtlicheEinzelschriften Schrift 2) by Chr. Finger, Alfr. Friedmann and Richard Wrzeszinski, „FinanzArchiv” 1920, vol. 37, no 2, p. 326.

^[27]M. Troll, D. Gebel, M. Julicher, Erbschaftsteuer- und Schenkungsteuergesetz: ErbStGmit Bewertungsrecht und Verfahrensrecht Loseblatt-Kommentar, Monachium 2014, p. 6.