Estate & Gift Taxation

Fall 1999

Professor William Metzger

1. The Role of State Law

1. Creation of Property Interest à Determined by STATE Law

• State law creates the property interest during PROBATE proceeding

• Decides what property is included in D’s estate

• Federal Court decides how much tax is due

2. Proper Regard Standard à Estate of Bosch

1. Decision of highest State Court is FINAL

2. Other State Court decisions receive proper regard ONLY

 

2. Scope of the Estate Tax

 

3. § 2033 à

1. “Value of all property to the extent of the interest therein of the decedent at the time of death.”

• What kind of interest ?

• What constitutes property ?

2. Taxes property interest beneficially owned OR transferred by D

3. Taxes interests that CEASE at the time of death as opposed to what the heirs RECEIVED on account of D’s death

 

4. Beneficial Ownership à Legal ownership is NOT determinative

1. Includes

• Securities

• Bank Deposits

• Real Estate

• Rights to income that accrued BEFORE death

• Rents

• Interest

• Dividends

 

5. Interests Arising at Death à Did D have the interest at time of death ?

1. Wrongful death awards are NOT includible under §2033

• Action arose AFTER death [or on account of death]

• Measured by the LOSS to the children/spouse, NOT value of D’s life

 

 

6. Property OR Expectancy à [Estate of Barr]

1. Mere expectancy is NOT a sufficient interest to trigger §2033

• Expectancy is NOT property in existence b/f death

• E.g. payment in the discretion of the employer

• Even if payment was actually made – D had no vested right

 

7. Bank Deposits, Checks, & Notes à Regs. §20.2031-5

1. Cash belonging to D on date of death is includible in estate

2. Exception à

• Bank checks outstanding at the time of D’s death given in discharge of bona fide legal obligations of D incurred for full consideration in money or money’s worth

3. Charitable contributions do NOT count as bona fide legal obligations UNLESS made pursuant to K

 

3. Scope of the Gift Tax §2501 & §2511

 

8. §2501 à

1. Tax imposed upon the transfer of property by gift

2. Direct or indirect – real or personal property [§2511(a)]

 

9. Is there a Transfer ?

1. Gratuitous performance of services is NOT a transfer of property w/i the meaning of §2501 [Hogle]

 

• Waiver of Fee for Services Rendered à

• Was there ever intent to collect a fee ?

• Yes – gift

• No – no gift

• Waiver BEFORE performance of services

• NO GIFT

• No legally enforceable promise arose

• Waiver AFTER performance of services

• GIFT

• Legally enforceable promise arose prior to waiver

• Property interest was therefore foregone [gifted]

 

• Interest Free Loans & Rent Free Use of Other Assets §7872

• OLD RULE à Demand Loan – to children

• No gift b/c could be due upon demand – no transfer

• Child pays less taxes on interest earned by the money– lower tax bracket

 

• NEW RULE à

• Taxable as if the parent charged a “fair rate of interest”

• No such thing as an interest free loan under §7872

• Whether interest-free OR below market

• Becomes interest income to parent

• Where is the money ?

• Parent gifted the interest forgiven each year

• Child can take interest deduction [even though none was paid]

• BUT à $10,000 exemption for annual gifts anyway

• No gift tax L to parent BUT there IS income

 

10. When is the Transfer Completed ?

 

• Regs. §25.2511-2 à Cessation of dominion & control w/ no power to change the disposition constitutes a gift

• Donor’s reservation of ANY power over disposition – no gift

• A gift is taxable ONLY upon its completion

• Gift is complete where transfer capable of valuation is made

 

• Executory Agreements to Transfer à

• A gift takes place a the time a legally binding obligation is created without adequate consideration [in the gift tax sense] – Copley

• Focus is on a K commitment binding the donor to transfer a specified sum in the future [Copley]

• Significant b/c marital deduction may NOT apply if promise is made prior to marriage & payments are made after marriage 4

• Careful- Look for à

• Consideration in money or money’s worth

• Legally binding obligation [contractual]

 

• Periodic Payments à

• NOT counted as separate gifts when made

• ALL will count as TOTAL amount of 1 gift

• Actuarially computed present value of payments = gift

 

• Notes & Checks à

• Gift is NOT made on delivery [b/c payment can be stopped]

• No loss of dominion & control

• Gift IS made when paid, certified, accepted by drawee, OR negotiated for value to 3^rd party

 

11. Transferred Interests Incapable of Valuation à

 

• Not only must the transfer be complete BUT – must also be capable of valuation at the time of the transfer in order to be a completed gift

• Open Transaction Approach à [DiMarco]

• Where employment K effected a “transfer” for gift tax purposes – BUT – valuation was NOT ascertainable – transaction is kept “open” until valuation can be established

• IRS may acquiesce where à rare circumstance

• D is automatically covered by benefit plan NOT w/i employee’s control

• D’s employer retains right to modify the plan

• Death is the event which causes the value to be ascertainable

 

12. Indirect Transfers à §2511(a)

 

• Donative intent is irrelevant – and NOT conclusive of gift

• Occurs where intermediate recipient is used [Heyen]

• End result is a transfer to the ultimate recipient [family member]

• Common Examples à

• Transfer of stock to daughter-in-law

• Held & transferred to H [son of donor]

• Understanding may be implied

• Gift to ENTITY [corporation]

• Imputed to individual who controls the entity

• Gift from ENTITY to individual

• Deemed gift BY its controlling shareholders

 

13. What is a Gift ? à Regs. §25.2512-8

 

• Transfers for inadequate consideration –

• Transfers of property made without any or inadequate consideration = GIFT

• Release of marital rights is NOT adequate consideration [Wemyss]

 

14. What is NOT a gift ? à

 

• Transfers which EXCEED consideration given –

• Gift = amount which exceeds consideration IF not made in the ordinary course of business

• Transfers made in “ordinary course of business” & free from donative intent

• NOT a gift – Considered full & adequate consideration

• Court will NOT inquire as to whether value exceeded consideration

• Satisfaction of support obligation of minor – NO gift

• Educational OR Medical expenses - §2503(e)

• NO gift – if payments made directly to school

• Transfers With Retained Powers & Rights §2036-§2038

 

1. Purpose of the Sections à Prevent individuals from avoiding the generally higher estate tax L by making testamentary transfers in the form of lifetime gifts.

 

• Estate tax is imposed where à

• Retained economic benefit

• Where transferor retains economic benefit through possession OR enjoyment held until death OR

• Retained voting rights from corporate stock transferred

• Transfer is essentially testamentary

• Transferor reserves significant powers

• Transferee is incapable of enjoying or disposing of his interest in the transferred property until death of transferor

 

5. Transfers With Retained Life Estates §2036

 

2. Elements (3) à §2036

 

1. Transfer – By D to another person

1. Retains for life OR any period not ascertainable w/o reference to his death – INCOME portion

2. Exception – Bona fide sale for adequate & full consideration

 

1. Possession or Enjoyment OR Right to Income– Retained by D

• Applies to possession or enjoyment of INCOME portion

• Need NOT amount to a legal life estate [Nicol]

• Lease may equal the right to income

 

2. The RIGHT, either alone or in conjunction w/another person to designate the B §2036(a)(2)

• Power to accumulate income = power to designate B

• Even if power is held in conjunction w/other trustees

• Adverse interest of other trustees is irrelevant

OR

3. How much is includible ? à “… to the extent of any interest therein…”

1. If PORTION [e.g. life estate] is retained – PORTION includible §2036(a)(1)

2. Legally enforceable interest is irrelevant

• May retain legal life estate [w/o actual benefit] OR

• Actual benefits retained w/o a legal life estate [e.g. income from property] – mere present economic interest

3. Agreement may be inferred – need NOT be in writing

4. Secondary Life Estates à E.g. grantor transfers property in trust

4. To W for life, then to grantor, then to children

5. Includible under §2036(a)(1)

6. How much ?

• Amount includible = value of property retained at death of W

 

5. Settlor who IS Trustee à Must limit the discretion here to avoid §2036

 

• MUST have some ascertainable standard under which the powers are retained in order to avoid §2036 inclusion [O’Malley]

 

• So long as the trust instrument TELLS the trustee when to pay out and when NOT to pay out – excluded from §2036

• E.g. à Standard of living IS ascertainable

• Changed financial circumstances – YES

• Best interests – NOT measurable

• §2036 can NEVER apply if power is purely administrative

• Trustee MUST pay in accordance w/trust instrument

 

6. Settlor who is NOT Trustee à

 

• Trustee may have discretion to make the payout or not here

• No ascertainable standard is necessary

• Grantor may NOT have unrestricted power to remove trustee

• Grantor may NOT have power to replace trustee – even w/another other than himself [will find another who will go his way]

 

6. Revocable Transfers §2038

 

7. Elements à

 

2. Transfer – By D [of property once owned by him] to another person

3. Exception – Bona fide sale for adequate & full consideration

 

3. Powers HELD [as opposed to retained under §2036] by D at death – Alter, Amend, Revoke, or Terminate OR

3. D does NOT need to RETAIN of enjoyment of property here

• ONLY the power to enjoy

4. Power here pertains to the CORPUS OR INCOME

5. Is the enjoyment of the property subject to any change through the exercise of a power held by D ?

6. Power to distribute principal [timing problem here] = power to terminate [Lober]

 

4. Power is relinquished during 3 year period ending on date of D’s death

 

8. Exceptions à

 

5. Transfer for adequate & full consideration in money or money’s worth

 

6. Powers retained subject to some ascertainable standard

7. Power which may ONLY be exercised w/consent of all parties having an adverse interest [vested OR contingent] in the transferred property

3. This does NOT mean the same as alone or in conjunction w/ another person w/an adverse interest

 

8. Power held by person OTHER than grantor/decedent

3. Does NOT apply if D could remove Trustee

 

9. How Much is Includible ? à

1. Power to revoke a PORTION = portion includible

 

• E.g. power to affect life estate but not remainder

• Power to terminate = ALL includible

 

10. Death Benefits à

1. Must show D had a property interest which was transferred

• Funded by D’s salary

• Employee’s services for employer funded the plan [transfer]

2. Power to change B up until the time of death = includible

3. Counter Argument à [Tully]

• Fixed plan by employer – B cannot be changed

 

7. Transfers With Retained Reversionary Interests §2037

 

11. Elements à

9. Transfer of property by D

 

10. Possession or enjoyment conditioned upon surviving D

 

11. D has retained a reversionary interest

3. Possibility of reversion measured ONLY at death is includible under §2037 [Thacher]

• E.g. possibility of divorce…

• Included à

• where divorce triggers the reversion

• “so long as X does NOT occur”

• Excluded à

• where divorce cuts off possibility of reversion

12. Value b/f D’s death exceeds 5% of value of property transferred

4. Refers to the value of the interest, NOT the amount includible in D’s estate

5. Measured immediately b/f death

6. E.g. à

• D has a 43% chance of surviving over W

• 5% rule is satisfied

• Examples à

 

• NOT includible under §2037 à

• Life estate to W, then to kids if living, otherwise to D

• Reasoning

• NOT measure by D’s death

• Kids will take if they are living and W is NOT

• Includible under §2037 à

• Life estate to W, remainder to D, if living, Otherwise to kids

• Possibility of reverter here – kids must survive D in order to take

NOTE: §2037 generally comes into play when D has died in the wrong order

 

13. Exception à

1. Transfers for adequate & full consideration

2. Term of years instead of measured by surviving D

• UNLESS unlikely term of years [e.g. 150]

 

8. Adequate & Full Consideration Problem

 

14. What is adequate & full consideration ? – unsettled by courts

 

• Does the adequate consideration have to amount to the interest retained OR entire amount transferred ?

• Adequate money’s worth exception ONLY applies IF à

• What you received is equal to what would have been included in your estate had you not sold the property

 

15. §2043(a) à Partial Consideration è

1. Where transferor does NOT receive adequate & full consideration for the transfer of an interest in property à

• §2043 allows for the taxation of ONLY the portion for which consideration was NOT adequate

• E.g. à Sold remainder interest worth $100,000 at time of transfer

• Only received $40,000 at time of transfer

• At D’s death – remainder interest worth $150,000

• $110,000 – taxable under §2043

9. Gift Tax Effects of Transfers w/Retained Interests or Powers

 

1. Introduction à

1. Levied when transferor sheds wealth (property)

2. Revolves around the surrender/relinquishment of dominion & control NOT the transfer of title or property

2. Where Powers are Retained à NO completed gift

3. Until transferor has no more power over the beneficial title

4. E.g. Holding powers over a trust, then making the trust irrevocable

5. NOTE à

• Gift IS complete where grantor holds the power with another who has a substantial adverse interest in the property [Camp]

• Gift IS complete where grantor holds a contingent reversion interest of the property measured by survival [Shaughnessy]

• Merely a possible reverter which is beyond control of D

 

10. Annuities & Employee Benefits §2039

 

3. Elements à “S A C K”

 

1. K or Agreement – Always found

3. Simple understanding is enough

 

2. Someone who Survives D – survivor who is a B

3. Satisfied if B gets one or more payments over a period of time

 

3. String attached to D – Big issue here

3. Amount payable to D at time of death OR

4. D has a right to payment at time of death

 

4. Contributions from D – to show transfer of property owned by D

3. If D only paid for half & other half paid by B – 1/2 includible

4. IF A paid for it and is NOT a B – no §2039

 

4. Joint & Survivor Annuity à Payments to D & A

1. If D dies, payments continue to A

 

5. Employer Provided Annuity à §2039(b)

1. Funding here is by D’s employer

2. D dies AFTER retirement – amount becomes “payable” to D

• Contribution is considered to be made by D by reason of his employment

 

 

 

6. Reading Plans Together à

1. E.g. à DBP with no strings to D coupled w/ Annuity to B w/string tied to D BUT no survivorship rights

• Neither plan alone reached by §2039

• Read them together & §2039 is met

2. Problem à Cannot read non-qualified and qualified plans together

• E.g. à 401K cannot be read w/ Life Insurance

 

7. Forfeitable Payments à

1. E.g. Annuity payment to B forfeitable upon her remarriage

• Doesn’t matter – as long as annuity was “payable” upon D’s death - §2039 has been met

 

8. Premature Death of Employee à

1. Suppose D dies prior to the ripening [annuity becoming “payable”] of his interest in the annuity payment

• If employer is under NO legal obligation to make payment BUT makes the payment anyway – NO §2039

 

11. Joint Interests in Property §2040

 

9. Elements à Determined by State Law

 

5. Joint interest in property WITH

1. Held at time of death by D

 

6. Right of survivorship

 

10. General Rule à

 

7. Contribution Furnished TEST à §2040(a)

3. If A furnishes ALL the consideration

• ALL the value in his estate upon death

• If B dies first – nothing includible since A furnished all consid.

4. If A furnishes 1/2 the consideration

• 1/2 included in A’s estate upon his death

 

• Appreciation as Conribution à NO [Goldsborough]

• Gift of property to Daughter – appreciates in value

• Independent contribution does NOT apply to the original property, even if it appreciates

• Earnings including GAINS from gifted property IS independent contribution which counts

• Income does NOT originate w/donor

 

 

11. Examples à

 

• Joint Tenancies – Property owned by A & B

• Upon B’s death, B’s interest drops out - does NOT pass by will

• Passes by operation of law

• Amounts to a testamentary substitute

• §2033 does NOT include B’s interest b/c interest terminated

 

 

• Tenancies by the Entireties – Only 2 tenants & they are married

• This IS a joint tenancy w/right of survivorship [§2040]

 

• Tenants in Common – Joint interest w/o right of survivorship

• Each owns undivided portion of the property [e.g. 1/2]

• Can actually have the court partition the property

• Upon B’s death, A only takes IF left by WILL

• Covered by §2033 not §2040

 

• Joint Bank Accounts –

• W/ right of survivorship – covered by §2040

• Can have any number of tenants

• Typically, either tenant can withdraw the funds

• No gift UNTIL non-contributor withdraws funds OR

• Where a contributor withdraws more than their share of the contributed portion

 

12. Exception à

 

• Joint Interests of Husband & Wife à §2040(b)

• Difficult to trace individual contributions here

• Need easy to follow rule

• NO contribution furnished test here

 

• Rule à Each spouse is deemed to have owned 1/2 of the property regardless of which spouse furnished the contribution

• Marital deduction eliminates any and all taxes

 

13. Gift Tax Effects à §2511 Creation of joint tenancy CAN be gift taxable

1. E.g. where A deeds property to B OR

2. A & B are joint tenants w/ROS – property worth $50,000

• If A put down $40,000 & B contributed $10,000

• A has gifted $15,000 to B

 

• Mortgages à A & B buy house for $100,000

• If each put equal amount down - $10,000 - $80,000 mortgage

• If A makes all the payments – gift to B of 1/2 principal/month

 

14. How much is Includible ? à

 

• Property acquired by gift, bequest, OR inheritance

• D’s fractional share is includible [Regs. §20.2040]

• Basis – computed at time property was acquired

• Property purchased by D

• Entire amount MINUS amount contributed by joint owners

 

12. Powers of Appointment §2041

 

15. Elements à NO requirement that D owned the property

 

8. General Power of Appointment in D is;

3. Held

4. Exercised

5. Released

6. Lapsed

9. On D’s date of death

 

16. Definition à A power of appointment is; [State Law determination]

 

• A power over property held in trust or otherwise, exercisable either during life or at death by will, to determine who shall become the owner of property OR the recipient of income.

 

• A GENERAL power is exercisable in favor of D or his estate [including creditors of the estate]

• The power to appropriate or consume the principal

• A power to affect the beneficial enjoyment of the property

• Power to alter, amend or revoke under trust instrument

• Directing the payment of proceeds from a life policy through D’s will

 

17. §2041(a)(2) Direct à D still has the general power of appointment at death

 

18. §2041(a)(2) Indirect à D had GPA, but not at his death [exercise, release…]

 

• Treat D as if he owned the property

• See if GPA was exercised OR released in such a manner that the property would be includible under §§2036-2038

• E.g. D released GPA retaining the income interest

 

 

19. Exceptions à No General Power of Appointment found where;

 

10. Power is limited by “ascertainable standard” relating to health, education, support, or maintenance of the decedent §2041(b)(1)(A)

 

11. Jointly held powers – Exercisable ONLY in conjunction w/either the creator of the power OR person who has a substantial adverse interest in the property subject to the power §2041(b)(1)(C)

3. Adverse interest MUST be created simultaneously w/power & by the same instrument [Estate of Witkowski]

12. D exercised or released the GPA during life w/o retaining any strings [still a completed GIFT here though]

 

20. NOTE à Tax is levied on the $$, NOT on the individual §2207

 

21. Capacity to Exercise the Power à Irrelevant

 

 

22. Gift Taxation of GPA à §2514

 

• Exercise of Power à Completed gift

 

• Release of Power à Completed gift IF complete release

 

• Lapse of Power à Special Treatment

• Treated as a release BUT ONLY where;

• Transfer exceeds 5% or $5,000 of assets subject to appt.

• E.g. – if annual power – 1^st 5% or $5,000 is excluded from §2041 inclusion

 

13. Life Insurance §2042

 

23. Elements à No requirement of transfer here

 

13. D must be the insured under the policy

3. No inclusion where D is the owner of a policy on “A”

 

14. D possesses at least 1 incident of ownership at death

3. Economic Benefits or powers over the policy

4. Big issue here 4

 

24. Includible ? à

1. Amount Payable to Executor à §2042(1)

• Benefits D’s estate

• Amounts to incident of ownership

2. Amount Payable to Beneficiaries à §2042(2)

3. How Much ? à

• Entire face amount of policy at D’s death

 

25. What is Life Insurance à

1. Risk Distribution

2. Risk Shifting

3. Among a larger group

 

26. Incidents of Ownership à

1. Power to change B – regardless of ability to exercise this [Noel]

 

• §2042 does NOT require actual ability to exercise the power

• Policy Facts CONTROL – NOT Intent Facts [RI Trust]

• Policy Facts

• Policy may give powers to another party under the TERMS

• Intent Facts

• Facts however may be overwhelming that another person is the real owner under the actual circumstances

• Controlled Corporation –§20.2042(1)(c)(2) Incidents of ownership possessed through ownership of a controlled corporation are includible [Levy]

• Sole owner OR majority owner is enough

 

14. Transfers Within 3 Years of Death §2035

 

27. Elements à

1. Automatic inclusion in the gross estate for ALL gratuitous transfers w/i 3 years of death

 

28. Scope à

1. Any transfer of an interest covered by §2036, §2037, §2038, §2042 which if made during life would have been includible

 

29. How Much ? à

1. Amount of gift + amount of gift tax payment

• §2035(c) – Requires estate to be “grossed up”

 

30. Valuation à

1. Transfer of CASH

• Amount of cash given is brought back in

2. Transfer of PROPERTY INTEREST

• Value of property at time of death

 

31. Planning à

1. Payment of the gift tax from your estate is still a good idea

• Estate is depleted by amount of gift + amount of tax paid

• E.g. Gift of $120,000 + $60,000 gift tax paid

• Estate is depleted $180,000

• Tax would have been $90,000 – you paid $60,000

• Savings of $30,000

2. Problem – Must live 3 years to take advantage of this

 

15. Disclaimers §2518

 

32. Elements à Qualified Disclaimer – Irrevocable & unqualified…

15. Refusal must be in writing

16. Received by transferor OR his legal representative OR holder of legal title of property no later than 9 months after the interest is created [or 9 months after donee turns 21]

17. Person must NOT have accepted the interest or any of its benefits before making the disclaimer

18. Interest must pass to person OTHER than person disclaiming as a result of the refusal to accept the property

 

33. Note à

1. This is your last chance at estate planning

2. State law says you cannot be forced to take property

3. Only surviving spouse can disclaim PART of the transfer

4. Person disclaiming cannot designate where it goes

5. CAN be controlled by D’s will or State Law

 

16. Marital Deduction §2056

 

34. Elements à

1. Show that D was survived by a spouse

2. Property interest passed from D to Spouse

3. Property must be a deductible interest under §20.2056(a)-2

4. Value of the property interest

 

35. Non-Deductible Interests à §20.2056(a)-2 No Deduction where:

1. Property is NOT in D’s estate

2. Property IS in D’s estate & qualifies for another deduction under Code

3. Property Destroyed

4. Non-deductible terminable interest

 

36. Non-Deductible Terminable Interests §20.2056(b) à No deduction

 

• Definition à Property interest which will terminate or fail on the lapse of time or on the occurrence or failure to occur of some contingency

• Reasoning à Would avoid transfer taxation to the done spouse as well – b/c would NOT be in the spouse’s estate

 

• Determine à

• Is it a terminable interest ?

• Did D gratuitously create 2 interests in that property ?

• 1 to spouse & 1 other interest

 

• Examples of Terminable Interests à Look for:

• Life Estates

• Annuities

• Contingent Remainders

• Vested Remainders Subject to Conditions Subsequent

• Conditional Gifts

• Leases

 

• Non-Deductible Where àUpon the possible failure of spouse’s interest, the property

• Would pass to a 3^rd party [or revert to the donor] pursuant to another interest in the same property created

• Might pass to 3^rd party pursuant to retained power of appointment

 

37. Statutory Exceptions to Non-Terminable Interests à

 

19. Tenancy by Entirety – created with other spouse

20. Power of Appointment Trust – meeting the following requirements: §20.2056(b)-5

1. Life Estate – donee spouse must be entitled to all of the income (or sole possession) for life, payable at least annually

2. GPA – Donee spouse must have a General Power, exercisable either by will or inter-vivos “alone and in all events”

3. No power in another – The transfer is disqualified if a person other than the donee spouse has power to appoint any part of the property to any person other than the donee spouse

4. Amount deductible – Entire portion that meets the above requirements is deductible as if made outright

 

21. QTIP Transfer – Qualified Terminal Interest in Property

1. Life Estate – Same as above

2. QTIP Election – Donor must affirmatively elect that the transfer qualify for marital deduction

3. Power of Appointment – No person (including the donee spouse) can be given power to appoint any of the property to a person other than the donee spouse

4. Joint & Survivor Annuities – Provided there is no B other than the donor & donor spouses

5. Amount Deductible – Full amount of the qualifying gift to which election pertains (not just the value of the life estate) as if the QTIP were an outright gift to the spouse

 

22. Marital Charitable Trust – A transfer to the spouse for life, remainder to charity, results in a marital deduction for the value of the donee spouse’s interest, IF deductible under §2522

 

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