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Wealth Transfer Taxes. Chapter 12. History. The U.S. has had an estate tax since 1916 and a gift tax since 1932 In 1976, Congress enacted the unified transfer tax system with unified graduated tax rates, ranging from 18\% to 55\%

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  • The U.S. has had an estate tax since 1916 and a gift tax since 1932
  • In 1976, Congress enacted the unified transfer tax system with unified graduated tax rates, ranging from 18% to 55%
  • In 2001, Congress voted to reduce top rates gradually until they reach 45% in 2007
    • Estate tax will be repealed in 2010, but gift tax will be retained (sunset provisions automatically reinstate prior law in 2011)
transfer tax features
Transfer Tax Features
  • Tax is assessed on transferor (donor or estate), not recipient
  • Base for tax is fair market value of property transferred
  • Gift tax is cumulative over lifetime
    • Gifts given in later years are taxed at higher marginal tax rates
    • Total taxable gifts cause the decedent’s estate to be taxed at higher marginal tax rates
major exclusions
Major Exclusions
  • Annual gift tax exclusion is $11,000 per donee per year
    • If all gifts are less than exclusion, no gift tax return has to be filed
  • Unified credit – lifetime transfer tax exclusion
    • The 2004 unified credit for an estate is $555,800 which is equivalent to tax on $1.5 million (referred to as exemption equivalent)
    • For lifetime gifts the exemption equivalent is $1 million
transfers subject to the gift tax
Transfers Subject to the Gift Tax
  • Gifts made directly or in trust and include gifts of all types of property whether real, personal, tangible, or intangible
    • Services are not taxable
  • A gift could result from the creation of a trust, the forgiveness of debt, or the assignment of benefits in a life insurance policy
transfers for insufficient consideration
Transfers forInsufficient Consideration
  • A transfer is subject to gift tax if the value of the property transferred exceeds the value of money or other consideration given
  • Gift = difference between the sales price and the FMV on the date of the transfer
  • A transfer made in a bona fide business transaction with no donative intent is not a gift
joint property transfers
Joint Property Transfers
  • If funds are placed into a joint bank account by a donor in the name of the donor and one or more other persons, no gift occurs at that time
    • A gift occurs when one party withdraws an amount in excess of the amount that person deposited
  • A gift occurs when an individual adds another person’s name to the title of real property
    • Gift = value of other person’s interest
life insurance transfers
Life Insurance Transfers
  • Naming someone as beneficiary of a life insurance policy is not a gift
  • When all rights of ownership (right to borrow against policy, cash in for cash surrender value, and change the beneficiary) are assigned to another, a gift equal to the cost of a comparable policy is made
    • Paying the premium on a policy owned by another is a gift
transfers to a trust
Transfers to a Trust
  • A trust is a legal arrangement involving three parties
    • Grantor – the one who transfers assets that become the corpus or principal of the trust
    • Trustee – the one who holds legal title to the assets and makes investment decisions
    • Beneficiary – the one who receives the legal right to the beneficial enjoyment of income or corpus
transfers to a trust10
Transfers to a Trust
  • Income beneficiary – the one who has the right to receive income generated by the trust assets
  • Remainder interest – the one who has the right to receive trust assets upon termination of the trust
  • Parents who want to transfer assets to a minor child can use a Uniform Transfers to Minors Act (UTMA) account
    • Grantor-parent can be trustee and maintain control over the property
cessation of donor s control
Cessation of Donor’s Control
  • A transfer is not a gift if the donor retains an interest in the transferred property; for example, if the donor retains the right to change trust beneficiaries or decide how much beneficiaries will receive
    • A transfer to a revocable trust is not a gift (but actual transfer of income is a gift)
  • Transfer of assets into an irrevocable trust is a gift
    • A trust is irrevocable when the grantor gives up all future control
transfers excluded from gift tax
Transfers Excluded from Gift Tax
  • Transfer of marital property pursuant to a divorce
  • A transfer to meet support obligations (as determined by state law)
  • Direct payment of medical or tuition expenses
    • Payment must be made directly to the educational institution (tuition is excluded, but payment for room, board and books is a gift) or the person providing medical care
  • Contributions to political organizations
valuation of gift property
Valuation of Gift Property
  • Gifts are taxed on FMV at the date of the gift
  • FMV is price that would be arrived at by a willing buyer and willing seller in an arm's length agreement when neither is under compulsion to buy or sell
    • FMV is not a distressed sale price or wholesale value
  • Stock or securities sold on an established securities market are valued at the average of the high and low price on the date of the gift
annual gift exclusion
Annual Gift Exclusion
  • Annual gift tax exclusion ($11,000) only allowed for gifts of present interest
  • Present interest includes
    • Outright transfers
    • Life estates (right for life)
    • Term certain interests (right for specific time)
  • Future interests are not eligible
    • Remainder interests
    • Reversions
gifts to minors
Gifts to Minors
  • Section 2503(c) minors trusts qualify for annual gift tax exclusion if
    • Trustee may pay out income and/or trust assets before beneficiary reaches 21
    • Remaining assets and income must be distributed to the child when the child reaches age 21 (or to the estate if minor dies before age 21)
gifts to minors16
Gifts to Minors
  • Crummey trust – transfers qualify for annual exclusion if the trust has an annual demand provision (no distribution required at 21)
  • Transfers to Coverdell education savings accounts qualify for annual exclusion
  • Transfers to qualified tuition programs (Section 529 plans) eligible for annual exclusion
    • Election can be made to spread gift over 5 years; thus up to $55,000 can be transferred at one time with no gift tax consequences (provision can be used only once every 5 years)
gift splitting
Gift Splitting
  • Allows spouses to combine their $11,000 exclusions so together they can together 22,000 per donee per year by treating each gift as if half made by each spouse
    • Requires consent of both spouses
    • Applies to all gifts made during that year (or during time they are married)
    • Requires filing a gift tax return
gift tax deductions
Gift Tax Deductions
  • Charitable deduction – unlimited gifts to qualified charitable organizations (after subtracting annual exclusion)
  • Marital deduction – unlimited gifts to spouse (after subtracting annual exclusion)
    • Similar deduction allowed for estates; thus no estate tax owed if entire estate left to spouse
computing taxable gifts
Computing Taxable Gifts

Includible current gifts

Plus: Half of spouse’s gifts (if gift splitting)

Less: Half of taxpayer’s gifts (if gift splitting)

Less: Annual exclusions

Less: Charitable and marital deductions

Equals: Taxable gifts for current period

Plus: Taxable gifts in previous periods

Equals: Cumulative taxable gifts

computing gift tax payable
Computing Gift Tax Payable

Gift tax on cumulative taxable gifts

Less: Gross gift tax on previous taxable gifts

Less: Available unified credit

Equals: Gift taxes payable on current period’s gifts

  • Gift tax return due by April 15 of following year (eligible for same extension as for individual income tax return)
gift tax return
Gift Tax Return
  • Form 709 gift tax return must be filed if there were any of the following transfers
    • Transfers of present interests in excess of the annual exclusion ($11,000)
    • Transfers of future interests
    • Transfers to charitable organizations in excess of annual exclusion
    • Transfers with gift splitting elected
tax consequences for donees
Tax Consequences for Donees
  • Donor’s adjusted basis (and holding period) generally carries over to the donee
    • If appreciated property, basis increased by proportionate amount of gift tax paid on appreciation
    • If FMV is less that basis, lower FMV is used to determine loss on subsequent disposition
kiddie tax
Kiddie Tax
  • Under the kiddie tax, unearned income (in excess of $1,600) of children under age 14 is taxed at their parents’ marginal tax rate
    • First $800 covered by standard deduction
    • Second $800 (and all earned income) taxed at child’s tax rates
education savings plans
Education Savings Plans
  • Earnings are not currently taxed and is never subject to tax to the extent income is used for qualified education expenses
  • Section 529 qualified tuition plan
    • No annual limit on contributions
    • Can change beneficiary
    • Donor can cash out account by paying income tax + 10% penalty
education savings plans25
Education Savings Plans
  • Coverdell education savings accounts
    • Annual contribution limit of $2,000 (phased out as modified AGI exceeds $95,000 if single or $190,000 for married couples)
  • Donor can contribute to both types of savings plans for same child in same year
  • Other relatives (grandparents) can also use these plans to save for a child’s education
the estate tax
The Estate Tax
  • The estate tax is a tax levied on the right of a decedent to transfer of property to beneficiaries or heirs upon his or her death
  • Anestateis created at an individual’s death to own and manage the decedent’s property until ownership of the property is transferred to the beneficiaries or heirs
  • Estate taxes are levied on the value of all property owned by a decedent and transferred at the decedent’s death
  • The estate pays the tax
the taxable estate
The Taxable Estate
  • Steps to compute the taxable estate
      • Identify and value the assets included in the gross estate
      • Identify the deductible claims against the gross estate and deductible expenses of estate administration
      • Identify any deductible bequests
  • The gross estate includes all property and property interests of the decedent
  • Probate – the process under state law by which a will is declared legally valid and decedent’s property is transferred to the beneficiaries
    • Probate estate includes only the property governed by the will (or the state’s intestacy laws if there is no valid will) and does not include property transferred by law
  • Gross estate includes property that transfers by will and by law
living trust
Living Trust
  • One strategy for avoiding probate costs is to use a living trust that holds title to all of the individual’s assets and specifies how they are transferred at death
    • The will only needs to designate the treatment of any asset not in the trust
    • Unlike a will, a living trust is not a public document
    • Property in a living trust is must be included in the gross estate
the gross estate
The Gross Estate
  • Gross estate includes all property in which the decedent had an interest and may include some items not actually owned by the decedent at death
    • Gifts with strings attached (decedent retained right to income or right to designate who may enjoy property)
    • Transfers in which the decedent possessed the right to alter, amend, revoke, or terminate the terms of the transfer
life insurance proceeds
Life Insurance Proceeds
  • Included in the gross estate if:
    • Decedent’s estate is the beneficiary or
    • Decedent possessed any incident of ownership at death (power to change the beneficiary, surrender or cancel the policy, assign the policy, revoke an assignment, pledge the policy for a loan, or obtain a loan from the insurer against the surrender value of the policy)
  • Insurance is included in the estate if it was transferred by gift within 3 years of death
valuation issues
Valuation Issues
  • The gross estate includes the value of all property, regardless of location, as of date of death
  • Alternative valuation date is 6 months after the decedent’s date of death
    • If elected it applies to all assets
    • Gross estate and estate tax must both be reduced to use the alternate date
    • If assets are sold prior to alternate date, they are valued at date of sale
valuation issues33
Valuation Issues
  • Market price method – used for stocks, bonds, and real estate
    • Stocks valued at average of their high and low selling prices on valuation date
  • Actuarial valuation used for annuities, life estates, terms certain and remainder interests
  • Capitalization of earnings used when valuing businesses
estate deductions
Estate Deductions
  • Any debts of the decedent and claims against property included in the gross estate
  • Funeral expenses and administrative costs of settling the estate
  • Casualty and theft losses incurred during the administration of the estate
  • Bequests to charitable organizations
  • Property transferred to surviving spouse
    • Qualified terminal interest property (QTIP) trust allows the decedent to exclude value of property transferred in trust to spouse
computing estate tax
Computing Estate Tax

Gross estate

Less: Deductible expenses, debts, taxes, losses

Less: Charitable deduction

Less: Marital deduction

Equals: Taxable estate

Plus: Adjusted taxable gifts - prior periods

Equals: Tax base

computing estate tax36
Computing Estate Tax

Gross estate tax

Less: Gift tax on prior gifts

Less: Unified credit

Less: Other allowable credits

Equals: Net estate tax liability

  • Estate tax return, Form 706, due 9 months after death (6 month extension possible)
  • Generation skipping transfer tax applies a separate flat tax at the highest transfer tax rate (48%) when a transfer skips a generation
    • A direct transfer from grandparent to grandchild is a generation skip
  • $1,500,000 GSTT exemption is allowed each each grantor in 2004
benefits of planned giving
Benefits of Planned Giving
  • Transfer of investment property (bonds) allows a family to shift income to lower-bracket family members but offers few transfer tax benefits if there are small differences between current and future value
  • Transfer of equity interest in flow-through entity offers both current income tax and future transfer tax benefits
    • Buy-sell agreement
    • Gift-leaseback arrangement
advantages of lifetime gifts
Advantages of Lifetime Gifts
  • Shield post-gift appreciation from estate taxes (taxed on date of gift value)
  • Take advantage of annual exclusion and gift-splitting
  • Nontax advantages of trusts
    • Protects property from creditors
    • Shields assets from public scrutiny
    • Allows ease of management for multiple beneficiaries
disadvantages of lifetime gifts
Disadvantages of Lifetime Gifts
  • Carryover basis on gift property
    • If donor had retained property until death, basis would have been stepped up to FMV
  • Early payment of transfer taxes
    • Estate tax exemption increases to $2 million for 2006-2008 and $3.5 million in 2009 while lifetime gift exemption remains at $1 million
fiduciary income tax issues
Fiduciary Income Tax Issues
  • The decedent’s final income tax return extends from date of the last tax return to the date of death
  • Income in respect of decedent (IRD) – income earned by cash-basis decedent but not received prior to death is taxed to whoever receives it
    • Examples: unpaid salary, interest, dividends, retirement plan income
    • Decedent’s basis carries over and character of income also carries over
fiduciary income tax issues42
Fiduciary Income Tax Issues
  • Deductions in respect of decedent (DRD) – expenses or liabilities incurred by cash-basis decedent but not paid prior to death are deductible by party legally required to pay them (usually estate)
    • Examples: property and state income taxes
basis issues
Basis Issues
  • Basis of inherited property is its fair market value as of the valuation date used for estate tax purposes
  • The basis rules will change in 2010 (if estate taxes are repealed) to a modified carryover basis rule
    • $1.3 million of basis can be added to certain assets
    • $3 million of basis can be added to assets transferred to a surviving spouse
    • Basis increase cannot increase property to more than FMV
income taxation of trusts and estates
Income Taxation of Trusts and Estates
  • Fiduciaries (estates and trusts) are taxed following a modified conduit approach that taxes the fiduciary only on income it retains, not on income that it distributes to the beneficiaries
  • Beneficiaries are taxed on income distributed to them
  • Character of income is determined at fiduciary level and retains this character when distributed to beneficiaries
  • Grantor trust – grantor retains some incident of ownership (such as reversionary interest) and income is taxed to the grantor
  • Simple trust – must distribute all of its accounting income annually to its beneficiaries; cannot make charitable contributions
  • Complex trust – any trust that is not a simple trust (estates are considered complex trusts)
fiduciary income taxation
Fiduciary Income Taxation
  • Fiduciary gross income is computed using rules similar to individual income taxation
  • Deductions allowed for expenses of producing taxable income, depreciation, administrative expenses, and charitable contributions
    • Simple trusts allowed $300 exemption
    • Complex trusts allowed $100 exemption
    • Estates allowed $600 exemption
  • Distributable net income (DNI) is the current increase in value available for distribution to income beneficiaries
    • DNI determines the fiduciary’s maximum distribution deduction
    • DNI determines beneficiary’s maximum taxable income
    • Character is retained so beneficiaries do not pay tax on tax-exempt income
fiduciary income tax rates
Fiduciary Income Tax Rates
  • 2004 Rates
    • 15% on $0 - $1,950
    • 25% on $1,951 - $4,600
    • 28% on $4,601 - $7,000
    • 33% on $7,001 - $9,550
    • 35% over $9,550
  • Because beneficiaries are usually in lower marginal tax brackets, distributing the income annually to beneficiaries usually results in lower taxes overall
fiduciary income taxation49
Fiduciary Income Taxation
  • A trust is required to file a Form 1041 by April 15 of the following calendar year if it has gross income of $600 or more
  • Any estate with gross income of $600 or more is required to file a Form 1041 by the 15th day of the 4th month following the close of its tax year
  • Beneficiaries report their share of income based on the fiduciary’s tax year that ends within the beneficiary’s tax year
distributions to beneficiaries
Distributions to Beneficiaries
  • When property is distributed to trust beneficiary, generally no gain or loss is recognized by the trust for difference between FMV and basis
    • Beneficiaries use trust’s adjusted basis
    • If property satisfies a required income distribution, distribution deduction limited to lesser of property’s basis or its FMV (beneficiaries still use basis)
distributions to beneficiaries51
Distributions to Beneficiaries
  • Trustee can elect to recognize gain on distribution of appreciated property
    • Beneficiary’s basis is FMV
    • If trust has unused capital losses, it can net these losses against any capital gains resulting from the election