cch federal taxation comprehensive topics chapter 22 federal estate tax, federal gift tax, and...

CCH Federal TaxationComprehensive Topics

Chapter 22Federal Estate Tax, Federal Gift Tax, and Generation-Skipping

Transfer Tax©2006, CCH, a Wolters Kluwer business4025 W. Peterson Ave.Chicago, IL 60646-6085800 248 3248www.CCHGroup.com

CCH Federal Taxation Comprehensive Topics 2 of 103

Chapter 22 Exhibits

Chapter 22, Exhibit Contents A

1. Formula for Computing Estate Tax Liability 2. Definition of Terms 3. Community Property vs. Common Law States 4. Forms of Ownership in Real Estate—Tenancy by the Entirety 5. Tenancy by the Entirety—Example 6. Forms of Ownership in Real Estate—Joint Tenancy 7. Joint Tenancy—Example 8. Forms of Ownership in Real Estate—Tenancy in Common 9. Power of Appointment10. Insurance Proceeds—General Rules11. Insurance Proceeds—Example 112. Insurance Proceeds—Example 213. Insurance Proceeds—Example 3


Chapter 22 Exhibits

Chapter 22, Exhibit Contents B

14. Annuities and Lump-Sum Survivor Benefits15. Annuities and Lump-Sum Survivor Benefits—Example16. Gift Tax Paid Within 3 Years of Death17. Inter Vivos Transfers—Types18. Inter Vivos Transfers—Examples19. Medical Insurance Reimbursements 20. Dower and Curtesy21. Valuing the Gross Estate22. Deductions from the Gross Estate23. Casualty Losses24. Charitable Contributions25. Marital Transfers26. Marital Transfers—Examples


27. Post 1976 Gifts28. Post 1976 Gifts—Example29. Computing Estate Tax and Credits30. Estate Tax Return31. Formula for Computing Gift Tax Liability32. Gift Tax—Overview33. Gift Loans—General Rules34. Gift Tax—Exclusions35. Gift Tax—Deductions36. Gift Tax Liability—Short Formula37. Gift Tax Filing Requirements

Chapter 22 Exhibits

Chapter 22, Exhibit Contents C


Formula for Computing Estate Tax Liability

Chapter 22, Exhibit 1a

+Testamentary transfers (i.e., fair market value (FMV) of assets transferred by reason of the death of the taxpayer)

+

Inter vivos transfers in which some incident of ownership is reserved for the transferor (i.e., FMV of gifts in which some control over corpus or enjoyment of income had been retained by decedent during his/her lifetime)

+ Gift tax paid on any gifts made within 3 years of death

= Gross Estate (“GE”)


–Estate deductions (debts of decedent, funeral expenses and administrative expenses)

=

Adjusted Gross Estate (“AGE”).

(What is the purpose of “AGE”? Answer: If more than 35% AGE consists of a farm or closely held business, estate tax can be postponed for 5 years, then paid over a nine year period, creating a maximum deferral period of 14 years. Interest on unpaid estate taxes must be paid in each of the 14 years)


Chapter 22, Exhibit 1b



Chapter 22, Exhibit 1c

Taxable estate=

Charitable transfers–

Marital deduction (property passing to surviving spouse)–

Tentative estate tax=

Estate tax rates (see Appendix at end of text) x

Estate tax base =

Adjusted taxable gifts (i.e., gifts made after 1976, after $12,000 annual exclusions and gift tax deductions)

+


– Credit for gift tax actually or deemed paid on post-1976 gifts

– Unified credit ($780,800 in 2006, ignoring any portion previously applied to gifts)

– State tax credit

– Credit for prior transfers

– Foreign tax credit

= Estate tax liability


Chapter 22, Exhibit 1d


Definition of Terms

Estate

Purpose. An estate is created upon the death of every individual. The entity is charged with collecting and conserving all of the individual’s assets, satisfying all liabilities and distributing the remaining assets to the heirs identified by will or by state law.



Definition of Terms

EstateKey Persons. An estate involves three parties:

Decedent, all of whose probate assets are transferred to the estate for disposition.

Executor, who is appointed under the decedent’s valid will (or the administrator, if no valid will exists). The executor or administrator holds the fiduciary responsibility to operate the estate as directed by the will, applicable state law, and the probate court.

Beneficiaries of the estate, who are to receive assets or income from the estate, as the decedent has indicated in the will.



Gross Estate (GE)Broad Scope. Recall the broad definition of gross income: all income from whatever source derived. Code Sec. 61(a). Just as income tax law defines “income” broadly, estate tax law defines “property” broadly. No property is excluded, however small, be it real or personal, tangible or intangible, U.S. or foreign, as long as the decedent owned a beneficial interest at the time of death. Even tax-free municipal bonds are included in the gross estate, since estate tax is levied on the transfer of property, not the property itself.

Definition of Terms



Gross Estate

Examples. GE items include: cash, personal residence, household belongings, securities, real estate investments, collector items, notes, dividends declared prior to death (if the decedent was the stockholder of record), sole proprietorships and partnership interests.

Definition of Terms



Community Property vs. Common Law States

The difference between community property and common law state systems centers around the property rights possessed by married persons.

Community Property States. In community property states, a spouse’s earnings, or income from property acquired after marriage by one spouse, is deemed owned equally by both spouses.

Common Law States. In common law states, such earnings or income is not deemed owned equally.




Tax effect. If the spouses file separate returns, each spouse’s return will be different, depending upon the state in which the earnings or property income is realized. (There is no tax effect if the spouses file joint returns.) Community property income would be shared equally; common law income would be taxed in full by the earner or owner of the property.




Two types of community property states are:

1. States where income from pre-marital property is shared. In Texas, Wisconsin, Idaho and Louisiana, income from property owned before marriage IS owned equally between two spouses if it is realized after marriage.

2. States where income from pre-marital property is kept

separate. In California, Arizona, Washington, New Mexico and Nevada, income from property owned before marriage by one spouse is NOT owned equally between spouses, even if it is realized after marriage.



Forms of Ownership in Real Estate—Tenancy by the Entirety

Definition.

Ownership of real estate by husband and wife under the same deed, with right of survivorship (i.e., unity of person). Tenancies by the entirety have five “unities”:

Unity of interest.

Husband and wife share one and the same interest equally.

Unity of time. Their ownership commences at one and the same time.

Unity of title. Their ownership interests are created by a single deed. Neither can encumber the property without the consent of the other.



Definition

Unity of possession. Husband and wife possess an undivided interest in the whole property, not merely separate divisions of the property.

Unity of person. Owners have right of survivorship. If one spouse dies, her ownership passes to the surviving spouse. 50% of the decedent’s joint interest in the property is included in the decedent’s gross estate, without regard to who paid for it.

Forms of Ownership in Real Estate—Tenancy by the Entirety



FACTS: Greg and Sue are married in 1990. In 20x1, they purchase an office building for $1 million. $900,000 of the purchase price is funded from the sale of stock that the Sue had owned before they were married. $100,000 is funded from the sale of stock that Greg had owned before marriage. Ownership is in the form of a tenancy by the entirety. Greg dies in 20x5 when the building’s FMV is $1,500,000.

QUESTION: What are the estate tax consequences?

Tenancy by the Entirety—Example



ANSWER: Greg’s 50% share, i.e., $750,000, is included in his gross estate but is subject to the unlimited marital deduction in the amount of $750,000. Thus his taxable estate would not include the value of the building. Sue, as surviving spouse, automatically gets Greg’s 50% interest, stepped-up to fair market value (FMV) on the date of his death. Thus, ignoring depreciation, the building’s basis increases from $1 million to $1.25 million (i.e., 50% of original cost + 50% of the $1.5 million FMV on the date of Greg’s death). When Sue eventually dies, her taxable estate will include 100% of the building’s value as of the date of her death (or as of the 6-month alternative date if so elected), unless she chooses to sell it before she dies.

Tenancy by the Entirety—Example



Forms of Ownership in Real Estate—Joint Tenancy

Definition. Ownership of property by unmarried joint tenants is similar to tenancies by the entirety, except the owners have no automatic right of survivorship (also known as “unity of person”). The gross estate of the decedent includes the full value of property held as joint tenants, except to the extent of any part shown to have originally belonged to the other person and for which adequate and full consideration was not provided by the decedent. (i.e., the other tenant provided consideration).

Chapter 22, Exhibit 6


FACTS: Albert and Olga are single individuals. In 20x1, they purchase an office building for $1 million. $900,000 of the purchase price is funded from the sale of stock that the Olga had owned. $100,000 is funded from the sale of stock that Albert had owned. Ownership is in the form of a tenancy by the entirety. Albert dies in 20x5 when the building’s FMV is $1,500,000.

QUESTION:What are the estate tax consequences?

Joint Tenancy—Example



ANSWER: Since Albert contributed 10% of the purchase price, 10% of the building’s value, i.e., $150,000 is included in his gross estate. If Albert’s executor were unable to show that Olga had funded 90% of the purchase price, then 100% of the building’s value, or $1,500,000 would be included in Albert’s gross estate. If Olga were the beneficiary of Albert’s 10% interest, she would get a step-up in basis on 10% of the building value (50% if they had been married). Thus, ignoring depreciation, the building’s basis would increase from $1 million to $1.05 million (i.e., 90% of original cost + 10% of the $1.5 million FMV on the date of Albert’s death). When Olga eventually dies, her taxable estate will include 100% of the building’s value as of the date of her death (or as of the 6-month alternative date if so elected), unless she chooses to sell it before she dies.

Joint Tenancy—Example



Forms of Ownership in Real Estate—Tenancy in Common

Definition. A form of ownership whereby each owner holds an undivided interest in property. Here, there is only unity of possession, i.e., an undivided interest in the whole property, not merely separate divisions of the property. Titles are separate and distinct. The owners have a shared ownership interest in the common areas, but upon the death of one owner, his/her ownership interest passes to the heirs, not to the surviving owners (i.e., no right of survivorship by the surviving owners). 100% of the decedent’s undivided interest in the property is included in the decedent’s gross estate. The reason: tenancies in common have no right of survivorship.



Example. Condominium owners have a common interest in the coin-operated laundry mat and elevator lobby of their building. The condominium owners have varying ownership interests, commencing at different times, under separate deeds. However, they enjoy the same rights to the common areas, such as the laundry mat and elevator lobby. If one owner dies, his ownership interest passes to his heirs, not to a common owner (unless specifically bequested or made part of a separate buy-out agreement).


Forms of Ownership in Real Estate—Tenancy in Common

CCH Federal Taxation Comprehensive Topics 25 of 103Chapter 22, Exhibit 9a

Definition. A power of appointment (POA) is a power to determine who shall own or enjoy, presently or in the future, the property subject to the power. POAs fall into one of two classifications: general and special. General POA’s Are Includible in the Gross Estate (GE). A general POA is one in which the decedent could have appointed himself, his creditors, his estate, or the creditors of his estate an unlimited right to invade or consume property subject to the power. The value of property interests over which the decedent had a general POA is included in the decedent’s GE.

Power of Appointment

CCH Federal Taxation Comprehensive Topics 26 of 103Chapter 22, Exhibit 9b

Special POA’s ARE NOT Includible in the GE. A “special” POA enables the holder to appoint to others but NOT to herself, her creditors, her estate, or her estate’s creditors, an unlimited right to the property subject to the power. Also, if a holder has a limited right to the property, such as the right to invade or consume the property for the specific purpose of the holder’s health, education, welfare, or happiness, (commonly referred to as “ascertainable standards”) the right is deemed to be a special POA and is not included in the holder’s GE when she dies.



Example 1: General vs. Special POA’s

P has the power to designate how the principal of a trust will be distributed among A, B and C. At this point, P’s power is only a special POA. However, if P is given the further right to appoint the principal to herself, what was a special POA becomes a general POA.




Example 2: Special POA (holder has no rights to property)

Mother leaves her property in trust, life estate to Son and remainder to whichever of Son’s children he decides to appoint in his will. Son’s power is not a general POA because he cannot “invade” the corpus, only the income. Thus, regardless of whether Son exercises the power or not, none of the trust property subject to the power is included in his estate when he dies.




Problem 3: Special POA (limited right under ascertainable standard)

Assume the same facts as in Problem 2. In addition to having the testamentary power to appoint the beneficiary of the remainder interest, Son is given a power to direct the trustee to pay to him from time to time as much of the principal as he might request “for his support.” Although Son now has a power to invade the corpus, it is not a general POA. The power is limited to an ascertainable standard, “maintenance.” Thus none of the property subject to these powers would be included in Son’s estate when he dies.


Chapter 22, Exhibit 9e


Insurance Proceeds—General Rules

Insurance proceeds on the decedent’s life are included in the gross estate (GE) if any of the following conditions exists:

1. The insurance proceeds are payable to or for the estate (including “payable to the executor”).

2. The decedent had any incident of ownership in the policy at death, such as the right to change beneficiaries, the right to terminate the policy, or the right to borrow against the policy.

3. The decedent had transferred all incidents of ownership within 3 years of death. [This point is explained in the following table.]



Time Between Transfer & Death

* i.e., Time between:

1. Date that policy is transferred by insured to a third party and

2. Date of insured’s death.

None included in insured’s GE (however, premiums paid by insured within 3 years of death are included in his/her GE)

More Than 3 Years:

Proceeds other than those allocable to premiums paid by a third party within 3 years of insured’s death

(i.e., Includible Amount = (a) - [(a) x (b) (c)], where,

(a) = 100% insurance proceeds; and

(b) = Premiums paid by third party within 3 years of death

(c) = Total premiums paid on life insurance policy.

3 Years or Less:

Estate Tax Treatment*

Tax Treatment for the Transfer of an Insurance Policy Before Death


Insurance Proceeds—General Rules


Insurance Proceeds—Example 1

Example 1: Estate Treatment for Insurance Proceeds

FACTS: In 1985, Albert pays a single $200,000 premium for a $1 million whole life insurance policy. (A whole life policy insures a person for his/her “whole life”. Premiums may be paid in a single payment, or over a specified period, or for life.) Albert stipulates that his nephew will be the beneficiary. In 1995, Albert transfers all incidents of ownership in the policy to his daughter (i.e., she could change the beneficiary, borrow against the policy, liquidate the policy, or exercise any other incidents of ownership). Ten years after the transfer, Albert dies and $1 million is transferred to the nephew.




QUESTION:

How much of the $1 million proceeds should be included in Albert’s gross estate?




SOLUTION: None of the $1 million not included in Albert’s gross estate because:

1. The insurance proceeds are not are payable to or for Albert’s estate;

2. Albert had no incidents of ownership in the policy upon his death;

3. Albert had transferred all incidents of ownership more than 3 years before his death.

Also, no premiums are included in Albert’s gross estate, since he paid no premiums within 3 years of his death.

The nephew excludes the $1 million from gross income since these proceeds were paid by reason of death of the insured. Code Sec. 101(a).



Example 2: Estate Treatment for Insurance Proceeds

FACTS: Same as Example 1, except that Albert’s estate, not the nephew, is the named beneficiary.

QUESTION:

How much of the $1 million proceeds should be included in Albert’s gross estate?




SOLUTION: All of the $1 million is included in Albert’s gross estate because the insurance proceeds are payable to Albert’s estate. (However, the $1 million proceeds are not taxable as income to the estate since these proceeds were paid by reason of death of the insured. Code Sec. 101(a).





FACTS: Ten years before his death, Mike purchases a $1 million term insurance policy, with premiums to be paid in 10 equal annual installments in the amount of $10,000 each. (Term insurance insures a person for a specified “term”. If the person outlives the term, then no proceeds are payable. Term insurance is often renewable, but at higher premiums than under the previous term.) Two years before his death, Mike irrevocably transfers the policy and all incidents of ownership to a trust which pays the last two years’ premiums. QUESTION: How much of the $1 million proceeds should be included in Mike’s gross estate?




SOLUTION: Mike’s gross estate should include $800,000, computed as follows:

Includible Amount = (a) - [(a) x {(b) (c)}], where,

(a) = $1 million = 100% insurance proceeds.

(b) = $20,000 = Premiums paid by third party within 3 years of death (i.e., 2 yrs. x $10,000).

(c) = $100,000 = Total premiums paid on life insurance policy (i.e., 10 years x $10,000).



Annuities and Lump-Sum Survivor Benefits

The gross estate of a decedent includes the commercial value of survival benefits for three types of annuities: Joint and survivor annuities, whereby, payments

continue to be made to a surviving spouse after the first spouse dies.

Self and survivor annuities, whereby payments continue to be made to a beneficiary after the death of the buyer.

Minimum guarantee annuities, whereby a refund feature provides for a lump-sum payment upon the death of the annuitant, unless the annuitant survives a minimum period of time.



Annuities and Lump-Sum Survivor Benefits

Formula for computing includible value in decedent’s grossestate:

(a) = (b) x [(c) (d)], where,

(a) = Amount includible in deceased annuitant’s gross estate.(b) = Commercial value of survivor benefits.(c) = Decedent’s contribution to purchase of annuity contract.(d) = Total purchase price of the annuity contract.

In the case of a straight-life annuity, nothing is included in the gross estate of the annuitant at death because the annuitant’s interest in the contract is terminated by death (i.e., no survival benefits).



Example 1. Annuities

FACTS: Kathy purchases a straight-life annuity that will pay her $10,000 a month when she reaches age 65. Kathy dies at age 70.

QUESTION: What will be included in Kathy’s gross estate?

SOLUTION: Except for the payments she received before her death, nothing relating to this annuity affects Kathy’s gross estate.

Annuities and Lump-Sum Survivor Benefits—Examples




FACTS: Same facts as Example 1, except that the annuity contract provides for Craig, her husband, to be paid $5,000 a month for life as a survivorship feature. Craig is 72 years of age when Kathy dies.


SOLUTION: Under these circumstances, Kathy’s gross estate includes the commercial value (i.e., “cost”) of a comparable contract that provides an annuity of $5,000 per month for the life of a male, age 72.





FACTS: Same facts as Example 2, except that Kathy paid for only 25% of the annuity contract.


SOLUTION: 25% of the commercial value of a comparable annuity contract that provides an annuity of $5,000 per month for the life of a male, age 72.




Gift Tax Paid Within 3 Years of Death

Gross-up Procedure. Including gift tax paid within 3 years of death in the gross estate is called the “gross-up” procedure. It prevents the gift tax amount from escaping the estate tax.



Inter Vivos Transfers—Types

The gross estate (GE) includes assets transferred “during life” in which the decedent retained any of the following interests:

Retained life estate. Income interest or control over enjoyment of the assets or income derived. Here, the logic is easy to follow: One should not be able to escape estate tax at death after having remained in a position to enjoy some or all of the fruits of ownership during life.




More-than-5% reversionary interest. If repossession by the transferor-decedent of property (not merely income from the property) is conditioned upon surviving the beneficiary-decedent, then such property would be included in the transferor-decedent’s GE.

Revocable trust. The value of property interest transferred by the decedent is includible in the GE if the enjoyment of the property transferred was subject, at the date of the decedent’s death, to any power of the decedent to alter, amend, revoke or terminate the transfer.




Interest in a qualified terminable interest property trust (QTIP). A QTIP is a bequest of property to a surviving spouse in the form of a terminable interest life estate. To “qualify” as a QTIP trust, two requirements must be met:

ALL income from the trust must be distributed at least annually to the donee spouse (i.e., the trust must be “simple”).

No one can have a power to appoint any portion of the principal or income to anyone other than the spouse during the spouse’s lifetime.




Election to Claim Marital Deduction. An election exists to convert the terminable interest into nonterminable property eligible for the marital deduction. The result of the election is that the marital deduction is available to the donor-spouse’s estate for the full market value of the property in the trust, regardless of to whom the remainder goes, e.g.,, the children, charity, etc. This benefit carries a price tag: the full value as of the death of the donee-spouse is included in his/her gross estate.



Inter Vivos Transfers—Examples

Example 1: Retained Life Estate

Travis transfers income-producing property into trust for his daughter Betty, but retains the income from the property for his lifetime. Upon Travis’s death, the total fair market value of the property will be included in his gross estate.



Example 2: More than 5% Reversionary Interest.

Travis transferred property into trust giving a life estate to Betty with the remainder to Cathy if Travis predeceases Carla. However, if Betty predeceases Travis, the remainder would revert to Travis. The value of the reversionary interest would be included in Travis’ estate if it exceeded 5% of the value of the property at the time of transfer into the trust.




Example 3: Revocable Trust

Travis establishes a lifetime revocable trust naming his mother Betty as beneficiary. Travis designates himself as trustee. The transfer is incomplete as he has retained the power to revoke the trust. Upon his death, the present value of the reversionary interest would be includible in his GE.




Example 4: QTIP (with and without election)

When Travis died, he left $2,000,000 in trust to his wife Betty. All future income (except capital gains) derived from the $2,000,000 is to be distributed to her annually for life. The remainder goes to charity.




Example 4 (continued)Without the QTIP election. If Travis’ executor did not make the QTIP

election:(a) $2,000,000 would be included in Travis’s gross estate;(b) The marital deduction would not be allowed;(c) The trust would not be included in Betty’s GE when she

died.

With the QTIP election. If Travis’ executor did make the QTIP election:(a) $2,000,000 would be included in Travis’s GE (same as above);(b) The marital deduction would be allowed;(c) If on Betty’s death, the trust is valued at $5,000,000, the full value

would be included in her GE.




Medical Insurance Reimbursements

Tax Treatment. If unpaid but receivable by the decedent at death, they are treated as property in which the decedent had an interest and are therefore included in the gross estate.



Dower and Curtesy

Tax Treatment. The gross estate (GE) also includes the value of the surviving spouse’s interest in property as dower or curtesy. Dower and curtesy are common-law rights, recognized in only a few states, usually in modified form. They entitle a surviving spouse to some portion of the decedent’s estate, even though the decedent may have willed a smaller portion to this person.



Dower and Curtesy

Dower entitles a surviving wife to a portion of real property her husband owned and possessed during their marriage.

Curtesy entitles a surviving husband to a life estate in

all of his wife’s land if they had children.



Dower and Curtesy

Dowers and curtesies, although included in the gross estate of a decedent spouse, are “zeroed out” of the decedent spouse’s taxable estate by the marital deduction. Unless the property is “consumed” by the surviving spouse, it is included in the surviving spouse’s taxable estate at fair market value on the date of death (or the six-month alternative date.)



Valuing the Gross Estate

Date of death. Value is the fair market value (FMV) of the property at date of death unless a special valuation rule is used. Real property is usually valued at its highest and best use.




Alternative valuation date. The executor may elect to value the estate at an alternate valuation date, which is 6 months after the date of death. If the election is made and property is distributed before the 6-month date, then the value on the day after the date of distribution will apply. Thus, there are 3 possible dates for valuing an estate:

Date of death, or, If elected by executor (not heir), the earlier of:

(a) 6 months after date of death, or(b) Date received by heir if before 6 months.




The alternative valuation date carries three requirements:

It is irrevocable. It applies to all property of the estate (i.e., the

executor cannot “pick and choose” which property to elect).

It can be made only if it results in a reduction in BOTH the value of the GE and the sum of estate tax and the generation-skipping transfer tax.



Deductions from the Gross Estate

Examples. Deductions are subtracted from the gross estate (GE) in computing the taxable estate (TE). Typical expenses include: funeral expenses, administrative expenses, debts of the decedent, claims against the estate, casualty losses and allocations of deductions on returns. Funeral expenses. Deductible from the GE, even if they if incurred in a foreign country, or if they go beyond the “necessary.”




Administrative Expenses. These include fees paid to the executor, lawyer, accountant, and appraiser. They are deductible if:

Allowable by local law; and Necessary for administering the estate (i.e., for selling

or distributing assets, paying debts, etc.)

Administrative expenses incurred for the convenience of a beneficiary are disallowed.




Debts of the Decedent and Claims Against the Estate. All enforceable claims against the estate are deductible if paid. This includes:

Accrued interest expense as of the date of death. Unpaid federal, state & local income taxes, property

and gift taxes, but not estate tax itself. The property taxes are deductible only if the property is included in the GE.

Nonrecourse mortgages are deductible up to the amount of the property value included in the GE.



Casualty Losses

Tax Treatment. If sustained by the estate, they are deductible from the gross estate (GE):

Without regard to the 10% AGI floor; and Based on estate tax value (i.e., fair market value at date of

death or alternative valuation date), without regard to basis.

Note that casualty losses sustained prior to death are deductible on the decedents final 1040 return and, if sustained after distribution, then deductible by the beneficiary.



Charitable Contributions

Tax Treatment. Bequests to qualified charitable organizations are deductible.

Gross-up Requirement. Contributions must be included in estate tax value. The property for which a deduction is taken must be included in the gross-up procedures for gifts.



No Ceiling Limitation. The deduction is not subject to the usual 50%/30%/20% AGI ceilings for individuals, rather, 100% of the estate value is deductible, regardless of the property (ordinary or long-term capital gain) and regardless of the charity (public or private).




Entire Interest Requirement. The entire interest must be donated. The entire interest of the decedent in the underlying property must generally be donated.

Trust interests may enable deductible transfers of partial interests in underlying property. An inter vivos contribution (as opposed to a bequest) may result in exclusion of the property value from the GE and a current deduction from estate income.




Marital Transfers

Tax Treatment Estate of first to die. Outright transfers to a surviving spouse are deductible from the gross estate (GE) of the first spouse to die, to the extent the interest is included in the GE. Put differently, marital transfers are both taxable transfers and deductions, resulting is a zero estate tax effect. The deduction is unlimited.

Surviving spouse’s estate. The GE of the surviving spouse must include the property that had been subject to a marital deduction by the former spouse’s estate. The value to be included in the surviving spouse’s GE is the value of the property at the surviving spouse’s date of death.



Marital Transfers

Qualifying for the Marital Deduction. To qualify for the marital deduction, it is not sufficient that property passes to the surviving spouse. The interest must be nonterminable (i.e. the surviving spouse’s interest in the property must not lapse, expire or terminate, then pass on to a third party.) Examples of nonqualifying terminable interests include: term interest, life estates and certain annuities.



Marital Transfers—Examples

Example 1: Wife’s Life Interest Disqualifies Marital Deduction.

Travis dies, leaving his wife Betty, the income from property for life, whereupon the property itself passes to the grandchildren. The life interest does NOT qualify for the marital deduction in Travis’s estate, because the interest terminates upon Betty’s death (i.e., she has no control over who gets the remainder).



Example 2: Wife’s Remainder Qualifies for Marital Deduction.

Travis leaves the property to his mother for life. Upon her death, the remainder passes on to his wife, Betty. The remainder DOES qualify for the marital deduction in Travis’s estate because his wife’s remainder interest is nonterminable, even though she may die before Travis’ mother dies.




Example 3: Wife’s Remarriage Restriction Disqualifies Marital Deduct.

Travis dies, leaving his wife Betty a life interest in his stock portfolio. If she remarries, the life interest terminates and the stock passes on to his children. However, if she does not remarry, she can will the stocks to anyone. The marriage deduction is not allowed due to possibility, no matter how remote, that she may remarry and terminate her life interest in the stock.




Example 4: Wife’s Joint and Survivorship Annuity Qualifies Marital Deduction.

Travis purchased a joint and survivorship annuity providing for monthly payments to Travis for life, and then to his wife Betty should she survive. Upon Travis’s death, the annuities become payable to Betty until she dies. The present value of Betty’s future annuities, determined actuarially, are included in Travis’s estate and a marital deduction is allowed. Although Betty’s annuities are, strictly speaking, terminable upon her death, they are nevertheless treated as nonterminable for marital deduction purposes since no other person may enjoy the property after her death.




Post 1976 Gifts

Adjusted Taxable Gifts After 1976. Adjusted taxable gifts made after 1976 are added to the taxable estate, resulting in a higher estate tax base.

(1) Gross-up procedure. Students often get the false impression that gifts made after 1976 are brought back into the estate to be taxed a second time. In fact, such gifts are used to “gross-up” the estate in order to raise the decedent’s estate tax bracket for determining the tentative estate tax.



Credit for Gift Tax Paid on Post-1976 Gifts. After the tentative estate tax has been determined, it is reduced by a gift tax credit related to post-1976 gifts. (If gift tax paid on post-1976 gifts is greater than the amount that would have been paid under the current rates, then the current rates are applied to redetermine the gift tax credit. The lower credit amount is called a “deemed paid” gift tax credit.)

Post 1976 Gifts



FACTS: Joan makes a qualified gift of land valued at $1 million in 1990. She dies on June 15, 2006, leaving $1 million cash, her only remaining asset. Determine the estate tax liability with and without the gross-up procedure. (For the sake of simplicity, ignore the $12,000 gift exclusion, the unified tax credit and the state tax deduction.)

Post 1976 Gifts—Example



With Gross-Up Procedure

Without Gross-Up Procedure

Gift made in 1990 $1,000,000 $1,000,000

Gift tax paid (from the unified transfer tax rate schedule)

345,800 345,800

Gross estate on June 15, 2006 1,000,000 1,000,000

Add back: Gift made in 1990 1,000,000 0

Estate tax base 2,000,000 1,000,000

Tentative estate tax (from the unified transfer tax rate schedule)

$ 780,800 $ 345,800

Post 1976 Gifts—Example



With Gross-Up Procedure

Without Gross-Up Procedure

Credit for 1990 gift tax $(345,800) $0

Estate tax liability 435,000 345,800

Additional tax attributable to gross-up procedure

($89,200 = $435,000 – $345,800):

89,200

The gross-up procedure causes Joan’s highest estate tax bracket to be pushed upward (i.e., from 39% to 45%), resulting in the additional estate tax liability of $89,200.

Post 1976 Gifts —Example



Computing Estate Tax and Credits

The estate tax is imposed on the sum of the taxable estate plus gifts subject to the gift tax. However, it is reduced by gift taxes previously paid on those gifts and by the unified credit.



Quick review:Gross Estate (GE) is the value of all property for which the decedent enjoyed a beneficial interest. GE includes gift taxes paid on gifts made within 3 years of death.

Adjusted Gross Estate (AGE) is the GE reduced by deductions. This term is significant only if more than 35% AGE consists of a farm or closely held business. In such instances, estate tax can be postponed for 5 years, then paid over a nine year period, creating a maximum deferral period of 14 years. Interest on unpaid estate taxes must be paid in each of the 14 years.

Taxable Estate (TE) is the AGE reduced by the marital deduction for “nonterminable” marital transfers and by unrestricted charitable contributions.




Estate Tax Base (ETB) is the TE plus gifts made after 1976, after gift exclusions & deductions.

Tentative Estate Tax (TET) is the product of ETB and the applicable estate tax rates. The estate tax rates begin at 18% on ETB up to $10,000 and graduate to 46% on ETB over $2 million in 2006.

Estate Tax Before Credits (ETBC) is the TET reduced by gift taxes on ALL gift taxes paid after 1976, including gift tax on gifts made within 3 years of death.




Estate Tax Liability is the ETBC reduced by: (a) Unified credit. The unified credit is a base amount of tax

($780,800 in 2006) that offsets the estate tax liability that would otherwise be imposed on the first $2,000,000 of taxable estates.

(b) Credit for prior transfers. Credit is allowed for estate taxes (but not gift taxes) paid on property transfers by the estates of persons who died within 10 years before, or 2 years after the present decedent’s death. The purpose of this credit is to prevent the diminution of an estate by the imposition of successive estate taxes on the same property within a brief period. The credit percentages are as follows:




CREDIT FOR ESTATE TAX PAID ON PRIOR TRANSFERS

# Yrs. Between Transferor’s Death and Transferee’s Death Credit %

Less than 2 years 100%

More than 2, but not more than 4 80%




(d) Credit for death taxes paid to foreign governments. A credit is provided for U.S. citizens and resident aliens. It applies to property that is subject to both federal and foreign death taxes in order to prevent double taxation. The credit may not exceed the portion of U.S. estate taxes attributed to the property.




Estate Tax Return

Minimum gross estate value. The executor is required to file form 706, U.S. Estate tax return, if the gross estate at the decedent’s death exceeds $2 million in 2006. Adjusted taxable gifts made by the decedent during his/her lifetime reduce this threshold dollar for dollar.

Due date of return. Form 706 is due within 9 months after the date of the decedent’s death. An extension of up to 6 months may be granted.

Extension of payment. Time for payment may be extended by a reasonable period, but not by more than 12 months. Showing undue hardship is required.



Liability of beneficiaries and executors. Estate tax is charged to estate property. If the tax on part of the estate distributed is paid out of other estate property, equitable contribution from the distributee-beneficiary is recoverable. The executor is ultimately liable for payment of the estate tax.

Estate Tax Return



Special deferment for farms and closely held businesses. If more than 35% of a decedent’s adjusted gross estate consists of an interest in a farm or a closely held business, an executor may elect, on a timely filed estate tax return, to defer ALL payment of taxes for 5 years (paying interest only) and thereafter pay the tax in equal installments over the next 10 years (i.E., Years 5 to 14). The maximum deferral period is 14 rather than 15 years because the due date for the last payment of interest coincides with the due date for the first installment of tax.

Estate Tax Return



Definition of closely held business. A closely held business includes: (a) A corporation, if it has 45 or fewer shareholders,

or if 20% or more in value of the voting stock is included in the gross estate.

(b) A partnership, if it has 45 or fewer partners, or if 20% or more in value of the capital interests is included in the gross estate. (c) A sole proprietorship.

Estate Tax Return



Formula for Computing Gift Tax Liability

+ Gift amount (the fair market value on the gift date, for all gifts in the calendar year.

– Exclusions: Annual exclusion ($12,000 per donee per year) Exclusion for payments on behalf of another for

medical care and education tuition (must be paid directly to the institution)

= Includible gift amount



Gift tax liability =

Unified credit: unused portion of $345,800 (frozen for gifts in 2002 and thereafter) –

Prior year gifts x current applicable tax rates –

Tentative gift tax =

Applicable tax rate (estates and gifts use the same rates) x

Adjusted taxable gifts to date =

Adjusted taxable gifts for all prior years +

Adjusted taxable gifts for the current year =

Deductions: Marital Charitable

–

Formula for Computing Gift Tax Liability



Gift Tax—Overview

Definition. Gift tax is imposed on the donor (giver), not the donee (beneficiary) on the gratuitous transfer of property for less than full and adequate consideration.

Giving up dominion and control. A gift transfer is complete (and taxable) when the donor has given over dominion and control such that she is without legal power to change its disposition.

Only inter vivos gifts are subject to gift tax. Gifts completed when the donor is living (i.e., inter vivos gifts) are the only ones subject to gift tax. Transfers made in trust are included. Property passing by will or inheritance are not included as gifts, but are generally included in the gross estate.



Gift Loans—General Rules

Gift loans are below market interest rate loans made out of love, affection or generosity. Gift loan are subject to the imputed interest if:

Interest charged is less than the applicable Federal rate (AFR);

Sum of all loans between lender and borrower exceeds $10,000; and,

The loan was made after 6/7/84.

Note that the “gift” is not the principal portion of the loan, rather, the amount of interest that is below market.



Gift Tax—Exclusions

$12,000 Annual Exclusion. The first $12,000 of gifts of present interest (i.e., current, not future dominion and control) to each donee, is excluded by the donor from taxable gift amounts.

Future interests. The exclusion does not apply to future interests.



Gift splitting. Each spouse may treat each gift made to any 3rd party as made 1/2 by the donor and 1/2 by the donor’s spouse. Thus a donor could, in effect, get a $24,000 annual exclusion if the donor’s spouse did not make any gifts during the year.

(a) They must be married at the time of the gift;

(b) They must make a proper election and signify their

consent on the gift tax return.




Exclusion for medical and tuition. Amounts paid on behalf of another taxpayer as payment for medical care or tuition to an educational organization can be excluded.

1. Beneficiary. The beneficiary need not be a relative.2. Direct payment required. The payment must be made directly to the third party, i.e., the medical provider or the educational organization.3. Tuition requirement. Amounts paid for room, board and books are not excluded.




Unlimited marital transfer deduction. The amount of a gift transfer to a spouse is deducted in computing adjusted taxable gifts. The deduction is unlimited, except of course, it cannot exceed the amount included as a taxable gift. Donor and donee must be married at the time of gift.

Gift Tax—Deductions



Example: Unlimited Marital Deduction.

FACTS: Henry gave his wife Wilma a $5,000 coat and $25,000 cash during 2006.

QUESTION: How much are his adjusted taxable gifts for 2004?

SOLUTION: $0 (see analysis below)

Gift amount for 2006: $30,000 ( = $5,000 + $25,000).

Includible gift amount: $18,000 ( = $30,000 - $12,000 annual exclusion).

Taxable gift for 2006: $ 0 ( = $18,000 - $18,000 unlimited marital deduction.)




Charitable Deduction. The FMV of property donated to a qualifiedcharitable organization is deductible.

1. Contributions must be include in gift tax value. The value of property for which a deduction is taken must be included in the gift amount for the year.

2. No ceiling. The deduction is not subject to the usual 50%/30%/20% AGI ceilings for individuals, rather, 100% of the gift value is deductible, regardless of the property (ordinary or long-term capital gain) and regardless of the charity (public or private). However, the amount of the deduction is the gift amount reduced by the $12,000 annual exclusion with respect to the donee.

3. Entire interest must be donated. The entire interest of the donor in the underlying property must generally be donated




Political Contributions. Not subject to gift tax.




Gift Tax Liability—Short Formula

The short formula for computing gift taxes for the current year is: Tentative Tax - (Prior Year Gifts x Current Gift Rates) - Unified Creditwhere

1. Tentative tax is the gift rate applied to adjusted taxable gifts for the current and preceding years.

2. Adjusted taxable gifts for current & prior years represent the total

of gifts (at FMV), in excess of exclusions and deductions. The tentative gift tax is reduced by the product of prior years’

adjusted taxable gifts and the current-year rates.



3. Current gift rates are the same unified transfer tax rates as used for computing estate taxes. The initial rate is 18% for adjusted taxable gifts up to $10,000. The maximum rate is 46% on cumulative gifts in excess of $2 million.

4. Unified credit is a base amount of $345,800, the

equivalent estate or gift tax on the first $1 million of taxable transfers (for 2002 and thereafter) reduced by amounts allowed as credits for all preceding years.

Gift Tax Liability—Short Formula



Gift Tax Filing Requirements

A donor is required to file a gift tax return, Form 709, for any gift(s), unless all gift amounts are offset by:

the annual $12,000 exclusion; the medical and tuition exclusion; or the marital deduction.

Note that charitable contributions must generally be reported as taxable gifts subject to the charitable gift deduction.



Gift amount (the fair market value on the gift date, for all gifts in the calendar year).

Exclusions: Annual exclusion ($12,000 per donee per year) Exclusion for payments on behalf of another for medical

care and education tuition (must be paid directly to the institution)




Deductions: Marital Charitable Adjusted taxable gifts for the current year Adjusted taxable gifts for all prior years Adjusted taxable gifts to date Applicable tax rate (estates and gifts use the same rates) Tentative gift tax Prior year gifts x current applicable tax rates Unified credit: unused portion of $345,800 (in 2002 and thereafter) Gift tax liability



cch federal taxation comprehensive topics chapter 22 federal estate tax, federal gift tax, and...

Documents

federal estate tax

estate tax rates

estate tax return

federal gift tax

computing gift tax liability

spouse tentative estate

transfer tax

end of textx estate