Update on Estate and Gift Tax Proposals

by Pessin Katz Law, P.A.
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Congressional Proposals:  H.R. 1105, Death Tax Repeal Act of 2015, was passed by the House, as amended, on Apr. 16, 2015.  The bill amends the Internal Revenue Code to repeal the estate and generation-skipping transfer taxes (“GST” or “GSTT”) for estates of decedents dying or for transfers made on or after the enactment date. In the case of assets placed in a qualified domestic trust by a decedent who dies prior to enactment, the current estate tax will not apply to: (1) distributions from such trust before the death of a surviving spouse made more than 10 years after the enactment date of the Act, and (2) assets remaining in such trust upon the death of the surviving spouse.  The bill revises gift tax rates to lower the top rate to 35% and deems a transfer in trust to be a taxable gift unless the trust is treated as wholly-owned by the donor or the donor’s spouse.  The lifetime exemption for gifts is set at $5 million with a cost-of-living adjustment for calendar years beginning after 2011.  The adjusted exemption amount in 2015 is $5.43 million. H.R. 1105 is in the Senate.  S. 860, introduced in the Senate on March 25, 2015, is similar to H.R. 1105.  S. 860 was referred to the Senate Committee on Finance.  Both bills were introduced by Republicans and their being signed into law is doubtful.

For the U.S. government’s FY2016 (October 1, 2015-September 30, 2016) budget, the present Administration has proposed a return to the 2009 Estate and Gift Tax higher rates and lower exemptions.  The return to prior rates would increase the estate tax rate from 40 percent to 45 percent and lower the exemption from $5.34 million to $3.5 million. The concept of “portability” of exemption would remain in place, subject to certain limitations.  In addition, the following items of interest are contained in the budget proposal:

·        Taxation of Appreciated Property:  Under the budget proposal, transfers of appreciated property generally would be treated as a sale of the property.  The transferor (whether the maker of a lifetime gift (“donor”) or a decedent) of an appreciated asset would realize a capital gain at the time the asset is given or bequeathed to another.  The amount of the gain realized would be the excess of the asset’s fair market value on the date of the transfer over the transferor’s basis in that asset.  That gain would be taxable income to the transferor in the year the transfer was made, and to the decedent either on the final individual return or on a separate capital gains return. The unlimited use of capital losses and carry-forwards would be allowed against ordinary income on the transferor’s final income tax return, and the tax imposed on gains deemed realized at death would be deductible on the estate tax return of the decedent’s estate (if any).  Gifts or bequests to a spouse or to charity would “carry over” the basis of the transferor.  Capital gain would not be realized until the spouse disposes of the asset or dies, and appreciated property donated or bequeathed to charity would be exempt from capital gains tax. The proposal would exempt any gain on all tangible personal property such as household furnishings and personal effects (excluding collectibles). The proposal also would allow a $100,000 per-person exclusion of other capital gains recognized by reason of death that would be indexed for inflation after 2016, and would be portable to the decedent’s surviving spouse under the same rules that apply to portability for estate and gift tax purposes (making the exclusion effectively $200,000 per couple). The $250,000 per person exclusion under current law for capital gain on a principal residence would apply to all residences, and would also be portable to the decedent’s surviving spouse (making the exclusion effectively $500,000 per couple).

·        Grantor Retained Annuity Trusts or “GRAT”s:  Generally, a GRAT is an irrevocable trust funded with assets expected to appreciate in value, in which the grantor retains an annuity interest for a term of years that the grantor expects to survive.  At the end of that term the assets then remaining in the trust are transferred to (or held in further trust for) the beneficiaries.  The value of the grantor’s retained annuity is based in part on the applicable Federal interest rate under Internal Revenue Code Sec. 7520 in effect for the month in which the GRAT is created. Therefore, to the extent the GRAT’s assets appreciate at a rate that exceeds that statutory interest rate, that appreciation will have been transferred, free of gift tax, to the remainder beneficiary or beneficiaries of the GRAT.  If the grantor dies during the GRAT term, the trust assets (at least the portion needed to produce the retained annuity) are included in the grantor’s gross estate for estate tax purposes.  To this extent, although the beneficiaries will own the remaining trust assets, the estate tax benefit of creating the GRAT (specifically, the tax-free transfer of the appreciation during the GRAT term in excess of the annuity payments) is not realized.  The budget proposal would require that a GRAT have a minimum term of ten years and a maximum term of the life expectancy of the annuitant plus ten years to impose some downside risk in the use of a GRAT.  The proposal also would include a requirement that the remainder interest in the GRAT at the time the interest is created must have a minimum value equal to the greater of 25 percent of the value of the assets contributed to the GRAT or $500,000 (but not more than the value of the assets contributed).  In addition, the proposal would prohibit any decrease in the annuity during the GRAT term, and would prohibit the grantor from engaging in a tax-free exchange of any asset held in the trust.

·        Sale to Grantor Trust:  Another popular method of removing an asset’s future appreciation from one’s gross estate for estate tax purposes, while avoiding transfer and income taxes, is the sale of the asset to a grantor trust of which the seller is the deemed owner for income tax purposes.  A grantor trust is a trust, whether revocable or irrevocable, of which an individual is treated as the owner for income tax purposes.  Thus, for income tax purposes, a grantor trust is taxed as if the deemed owner had owned the trust assets directly, and the deemed owner and the trust are treated as the same person.  This results in transactions between the trust and the deemed owner being ignored for income tax purposes; specifically, no capital gain is recognized when an appreciated asset is sold by the deemed owner to the trust.  For transfer tax purposes, however, the trust and the deemed owner are separate persons and, under certain circumstances, the trust is not included in the deemed owner’s gross estate for estate tax purposes at the death of the deemed owner.  In this way, the post-sale appreciation has been removed from the deemed owner’s estate for estate tax purposes.  The budget proposal provides that if a person who is a deemed owner under the grantor trust rules of all or a portion of any other type of trust engages in a transaction with that trust that constitutes a sale, exchange, or comparable transaction that is disregarded for income tax purposes by reason of the person’s treatment as a deemed owner of the trust, then the portion of the trust attributable to the property received by the trust in that transaction (including all retained income therefrom, appreciation thereon, and reinvestments thereof, net of the amount of the consideration received by the person in that transaction) would be subject to estate tax as part of the gross estate of the deemed owner, would be subject to gift tax at any time during the deemed owner’s life when his or her treatment as a deemed owner of the trust is terminated, and would be treated as a gift by the deemed owner to the extent any distribution is made to another person (except in discharge of the deemed owner’s obligation to the distribute) during the life of the deemed owner.  The proposal would reduce the amount subject to transfer tax by any portion of that amount that was treated as a prior taxable gift by the deemed owner.  The transfer tax imposed by this proposal would be payable from the trust.

·        Minority Discounts. There is no provision to limit “minority discounts” in the FY2016 budget proposal.  Such discounts are often taken when transfers are made into “family partnerships” in which no one person has a majority interest.  Such a discount would lower the value of an estate and its use has been approved by the courts.

·        Limit Length of Generation-skipping Trusts:  Generation Skipping Transfer Tax (“GST” or “GSTT”) is imposed on gifts and bequests to transferees who are two or more generations younger than the transferor. The GST tax was enacted to prevent the avoidance of estate and gift taxes through the use of a trust that gives successive life interests to multiple generations of beneficiaries. In such a trust, no estate tax would be incurred as beneficiaries died, because their respective life interests would die with them and thus would cause no inclusion of the trust assets in the deceased beneficiary’s gross estate. The GST tax is a flat tax on the value of a transfer at the highest estate tax bracket applicable in that year. Each person has a lifetime GST tax exemption ($5.43 million in 2015) that can be allocated to transfers made, whether directly or in trust, by that person to a grandchild or other “skip person.” The allocation of GST exemption to a transfer or to a trust excludes from the GST tax not only the amount of the transfer or trust assets equal to the amount of GST exemption allocated, but also all appreciation and income on that amount during the existence of the trust.  When generation-skipping transfers are made to a trust, the estate tax exemption applicable to them also exempts the associated earnings during the trust’s lifetime.  In the past, a trust’s duration has been limited because most states had a Rule Against Perpetuities that generally limited trusts to a 21-year existence. Most of those state laws have been eliminated.  Because of the elimination of the 21-year limitation period by most states and the Administration’s desire to impose some limitation on their duration, the proposal provides that on the 90th anniversary of the creation of a trust the GST exclusion allocated to the trust would terminate.

·        Gift and GST Exclusion for Medical Care and Education.  Payments made by a donor directly to the provider of medical care for another person or directly to a school for another person’s tuition (“qualifying expenses”) are exempt from gift tax under Sec. 2503(e) of the Internal Revenue Code (“IRC”).  For purposes of the GST, IRC Sec. 2611(b)(1) excludes “any transfer which, if made during the donor’s life, would not be treated as a taxable gift by reason of section 2503(e).” Therefore, direct payments made during life by an older generation donor for the payment of such qualifying expenses for a younger generation beneficiary are exempt from both gift and GST taxes. The Administration is evidently concerned over the fact that the language of section 2611(b)(1) apparently permits the avoidance of GST through the use of a Health and Education Exclusion Trust (“HEET”).  A HEET provides for the medical expenses and tuition of multiple generations of descendants.  Advisors recommending HEETs take the position that section 2611(b)(1) exempts distributions form such trusts from GST tax (generally, in perpetuity) because the distributions are used for the payment of medical care expenses and tuition. The substantial amounts contributed to HEETs will appreciate in these trusts, and donors take the position that no estate, gift, or GST tax ever will be incurred after the trust’s initial funding.  The budget proposal indicates that the intent of section 2611(b)(1) is to exempt from GST tax only those payments that are not subject to gift tax, that is, payments made by a living donor directly to the provider of medical care for another person or directly to a school for another person’s tuition.  Consequently, the proposal would provide that the GST “medical and educational exclusion” under section 2611(b)(1) applies only to a payment by a donor directly to the provider of medical care or to the school in payment of tuition and not to trust distributions, even if for those same purposes.

·        “Crummey” Trusts:  The first $14,000 of gifts made by a person (“donor”) to each gift recipient (“donee”) in 2015 is excluded from the donor’s taxable gifts (and therefore does not use up any of the donor’s applicable lifetime exclusion amount for gift and estate tax purposes).  This annual gift tax exclusion is indexed for inflation and there is no limit on the number of donees to whom such excluded gifts may be made by a donor in any one year.  To qualify for this exclusion, each gift must be of a present interest rather than a future interest in the donated property.  For these purposes, a present interest is an unrestricted right to the immediate use, possession, or enjoyment of property or the income from property (including life estates and term interests).  Generally, a contribution to a trust for the donee is a future interest.  In order to take advantage of the annual gift tax exclusion without having to transfer the property outright to the donee, a donor may contribute property to a trust and give each trust beneficiary (donee) a “Crummey” power which obtained its name from a famous case decided in 1968.  Crummey powers are used particularly in irrevocable trusts to hold property for the benefit of minor children.  In order for a Crummey power to convert a donor’s transfer into the gift of a present interest, the trustee of the recipient trust must timely notify each beneficiary (or the beneficiary’s guardian) of the existence and scope of his or her right to withdraw funds from the trust, subject to certain rules.  If the appropriate records cannot be produced at the time of any gift or estate tax audit of the donor (or the donor’s estate), the gift tax exclusion may be denied, causing retroactive changes in the donor’s tax liabilities and remaining applicable exclusion amount.  The IRS has unsuccessfully opposed the use of Crummey powers for years.  The budget proposal would eliminate the present interest requirement for gifts that qualify for the gift tax annual exclusion. Instead, the proposal would define a new category of transfers (without regard to the existence of any withdrawal rights), and would impose an annual limit of $50,000 (indexed for inflation after 2016) per donor on the donor’s transfers of property within this new category that will qualify for the gift tax annual exclusion.  This new $50,000 per-donor limit would not provide an exclusion in addition to the annual per-donee exclusion; rather, it would be a further limit on those amounts that otherwise would qualify for the annual per-donee exclusion. Thus, a donor’s transfers in the new category in a single year in excess of a total amount of $50,000 would be taxable, even if the total gifts to each individual donee did not exceed $14,000.  The new category would include transfers in trust (other than to a trust described in IRC Sec. 2642(c)(2)), transfers of interests in “pass through” entities, transfers of interests subject to a prohibition on sale, and other transfers of property that, without regard to withdrawal, put, or other such rights in the donee, cannot immediately be liquidated by the donee. The proposal would be effective for gifts made after the year of enactment.

At this time it is unclear which, if any, proposals may survive the debate over the Estate and Gift Tax in budget discussions this fall.  Congressional attempts to pass a budget in a timely fashion have, in the recent past, at least, proven to be difficult.  In any event, many of the changes proposed by the Administration would not be effective until after the date of their enactment.  Consequently, it would be wise to confer with a PK Law attorney this summer and fall to put in place planning that may address some of the proposed changes or take advantage of those wealth preservation techniques which exist under current law.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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