Proposed “Anti-Clawback” Regulations

Capital Letter No. 46

November 29, 2018

Ronald D. Aucutt

Proposed regulations should prevent “clawback,” but won’t prevent further discussion.

Dear Readers Who Follow Washington Developments:

BACKGROUND

The Economic Growth and Tax Relief Reconciliation Act of 2001 (more simply, the 2001 Tax Act) famously reduced rates and increased exemptions applicable to the federal estate, gift, and GST taxes, famously repealed the estate and GST taxes for the year 2010, and (perhaps infamously?) provided a 2011 “sunset” of those tax reductions and the one-year repeal.

At the beginning of that decade of phase-out, many expected that Congress would at some point make the repeal permanent, and the Republican congressional leadership did try. But with the postponement of a crucial Senate vote in September 2005 in the wake of Hurricane Katrina, and especially with the Republicans’ loss of control of Congress in the 2006 elections, the inevitability of the sunset dawned on us. With it came intensified concern about what had become known as “clawback” – the possibility that if a gift during the decade was entirely or partly exempt from gift tax because of the increased exemption or taxed less severely because of the lowered rates, some or all of those benefits might be offset (or clawed back) in the estate tax calculation at the donor’s death after the lower exemption and higher rates returned on January 1, 2011.

Congress also saw the lengthening shadows of the pending sunset. Promptly – that is, in December 2010 – Congress passed the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the 2010 Tax Act), deflecting the clawback risk in new Section 2001(g) (now 2001(g)(1)), which provides:

“(1) Modifications to gift tax payable to reflect different tax rates.—For purposes of applying subsection (b)(2) with respect to 1 or more gifts, the rates of tax under subsection (c) in effect at the decedent’s death shall, in lieu of the rates of tax in effect at the time of such gifts, be used both to compute—

“(A) the tax imposed by chapter 12 with respect to such gifts, and

“(B) the credit allowed against such tax under section 2505, including in computing—

“(i) the applicable credit amount under section 2505(a)(1), and

“(ii) the sum of the amounts allowed as a credit for all preceding periods under section 2505(a)(2).”

In the nameless 2017 Tax Act, Congress did it again! It provided that its doubling of the basic exclusion amount would sunset on January 1, 2026, thereby spurring redoubled concerns that those temporary benefits could be lost to a clawback in the estates of donors who make gifts before 2026 and die after 2025. Section 2001(g) (now 2001(g)(1)) probably would not help, because that statute addresses changes in rates, not a doubling of the basic exclusion amount. With the lesson from the year 2010 learned, at least somewhat, Congress addressed clawback in the 2017 Tax Act, but left the detail to regulations, in new Section 2001(g)(2), as follows:

“(2) Modifications to estate tax payable to reflect different basic exclusion amounts.—The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out this section with respect to any difference between—

“(A) the basic exclusion amount under section 2010(c)(3) applicable at the time of the decedent’s death, and

“(B) the basic exclusion amount under such section applicable with respect to any gifts made by the decedent.”

Again the clawback concern is this: If a large gift now is entirely or partly exempt from gift tax because of the nearly doubled basic exclusion amount under the 2017 Tax Act and the donor dies after 2025 when the doubling has sunsetted, will part of the gift in effect be taxed anyway (clawed back) in the estate tax calculation? The statutory mandate of Section 2001(g)(2) clearly provides (perhaps even without regulations) that the answer is no. And when “Guidance on computation of estate and gift taxes to reflect changes in the basic exclusion amount” appeared as item 16 in Part 1 of the 2017-2018 Treasury-IRS Priority Guidance Plan (expanded to “Regulations under §2010 addressing the computation of the estate tax in the event of a difference between the basic exclusion amount applicable to gifts and that applicable at the donor’s date of death” as item 37 in the 2018-2019 Plan) (discussed in Capital Letters 44 and 45), it looked like that is what the regulations would confirm.

PROPOSED REGULATIONS

Anti-Clawback Calculation

And so they do. The proposed regulations (REG-106706-18) were released on November 20, 2018, and published in the Federal Register on November 23, 2018 (83 Fed. Reg. 59343). They would add a new paragraph (c) to Reg. §20.2010-1 (with the current paragraphs (c) through (e) redesignated as (d) through (f)). New Reg. §20.2010-1(c)(1) would provide that if the total of the unified credits attributable to the basic exclusion amount that are taken into account in computing the gift tax payable on any post-1976 gift is greater than the unified credit attributable to the basic exclusion amount that is allowable in computing the estate tax on the donor’s estate, then the amount of the credit attributable to the basic exclusion amount that is allowable in computing that estate tax is not determined under Section 2010(c) but is deemed to be that greater total of gift tax unified credits attributable to the basic exclusion amount. The regulation (like the description in the preceding sentence) is painstakingly limited in all cases to the amount of the credit that is attributable to the basic exclusion amount – that is, the amount (indexed since 2012) defined in Section 2010(c)(3) – making it clear that the deceased spousal unused exclusion amount (DSUE amount) defined in Section 2010(c)(4) is not affected by this special rule and is still added under Section 2010(c)(2)(B), in effect thereby generating an additional credit of its own in cases in which the anti-clawback rule applies.

An Example

Proposed Reg. §20.2010-1(c)(2) provides the following example:

“Individual A (never married) made cumulative post-1976 taxable gifts of $9 million, all of which were sheltered from gift tax by the cumulative total of $10 million in basic exclusion amount allowable on the dates of the gifts. A dies after 2025 and the basic exclusion amount on A’s date of death is $5 million. A was not eligible for any restored exclusion amount pursuant to Notice 2017-15. Because the total of the amounts allowable as a credit in computing the gift tax payable on A’s post-1976 gifts (based on the $9 million basic exclusion amount used to determine those credits) exceeds the credit based on the $5 million basic exclusion amount applicable on the decedent’s date of death, under paragraph (c)(1) of this section, the credit to be applied for purposes of computing the estate tax is based on a basic exclusion amount of $9 million, the amount used to determine the credits allowable in computing the gift tax payable on the post-1976 gifts made by A.”

Viewed another way, if what would otherwise be the basic exclusion amount for estate tax purposes is less than the total of the basic exclusion amount applied to post-1976 taxable gifts, it is increased for estate tax purposes under this new regulation to equal that total. And if, in the example, the gift had been $12 million instead of $9 million, then the entire assumed $10 million basic exclusion amount would be used with still some gift tax payable (the donor having never married), and the estate tax credit would be computed as if the basic exclusion amount were $10 million.

Comment on the Example

The example in Proposed Reg. §20.2010-1(c)(2) is generally helpful, mainly because it is simpler and more readable than the rule in Proposed Reg. §20.2010-1(c)(1) itself. But, perhaps to help achieve that simplification, the drafters of the example used unindexed basic exclusion amounts of $10 million before 2026 and $5 million after 2025, thereby rendering it an example that could never occur under current law, and possibly causing concern that the proposed anti-clawback rule would apply only to the unindexed basic exclusion amount. Because the inflation adjustment is an integral part of the definition of “basic exclusion amount” in Section 2010(c)(3), there should be no question that it is the indexed amount that is contemplated and addressed by the regulation, despite the potential implication of the example.

The “restored exclusion amount pursuant to Notice 2017-15” referred to in the example is the exclusion amount that had been taken into account in connection with gifts to a spouse in a same-sex marriage, for which a marital deduction was not available prior to the Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013), and which is retroactively restored as provided in Notice 2017-15, 2017-6 I.R.B. 783. Like the use of unindexed amounts, the redundant statement that the donor was not eligible for such relief – the example already says the donor “never married” – is probably intended only as a simplification and does not provide a reason to assume that the exclusion amount restored under Notice 2017-15 in a case in which it applies would not be taken into account in the usual manner under Notice 2017-15. Similarly, if the statute of limitations has expired on a refund of any gift tax paid in circumstances described in Notice 2017-15, that unrefunded gift tax would certainly continue to be recognized as gift tax paid in computing the estate tax under Section 2001, as Notice 2017-15 provides.

In any event, the final regulations could benefit from more examples than just one, showing how the outcome would adapt to changes in the assumptions, including examples with indexed numbers, examples with numbers below $5 million (indexed) and above $10 million (indexed), examples with portability elections, and possibly an example with a Notice 2017-15 restoration.

ADMINISTRATIVE MATTERS

News Release

Contemporaneously with the release of the proposed regulations, the IRS issued a news release with the reassuring headline of “Treasury, IRS: Making large gifts now won’t harm estates after 2025.” The press release includes an even simpler explanation that “the proposed regulations provide a special rule that allows the estate to compute its estate tax credit using the higher of the BEA [basic exclusion amount] applicable to gifts made during life or the BEA applicable on the date of death.”

No Mention of “Clawback”

Neither the proposed regulations, nor the preamble, nor the press release use the word “clawback.”

Effective Date

Under Proposed Reg. §20.2010-1(f)(2), the anti-clawback rule would take effect when it is adopted as a final regulation.

Comments and Hearing

The Notice of Proposed Rulemaking asks for comments from the public by February 21, 2019, and announces a public hearing to be held, if requested, on March 13, 2019.

ADDITIONAL AMENDMENT TO REFLECT THE DOUBLING OF THE BASIC EXCLUSION AMOUNT

The proposed regulations would also revise the definition of “basic exclusion amount” in Reg. §20.2010-1(d)(3) (redesignated §20.2010-1(e)(3)) by adding a clause (iii) to reflect the temporary doubling accomplished by the 2017 Tax Act. This change, which merely conforms to the statute, will be effective January 1, 2018.

WHAT THE PROPOSED REGULATIONS DO NOT DO

In addition to describing the anti-clawback fix of Proposed Reg. §20.2010-1(c), the preamble to the Notice of Proposed Rulemaking cites three other concerns that comments from the public had raised, but which the IRS and Treasury found no need to address:

Whether the increased basic exclusion amount will be applied by default to pre-2018 gifts that generated a gift tax, thereby reducing the credit otherwise available to shelter gifts from tax during the 2018-2025 period.
Whether the increased basic exclusion amount, so applied by default to pre-2018 gifts that generated a gift tax, will likewise reduce the credit otherwise available to reduce the net estate tax during the 2018-2025 period.
Whether the gift tax on a gift after 2025 will be inflated by a theoretical gift tax on gifts made during the 2018-2025 period that were sheltered from gift tax when made.

The preamble provides a detailed description of the steps involved in calculating the gift and estate taxes and concludes that all three of these concerns are already avoided under the statutory and regulatory rules that define those steps, and therefore no further regulatory attention is needed.

COMMENT ON THE PROPOSED REGULATIONS

Choice of the Approach

Before the proposed regulations were released, there was speculation that they would mirror Section 2001(g)(1) (quoted above) and provide, in effect, that “for purposes of applying subsection (b)(2) [of Section 2001] with respect to 1 or more gifts, the [basic exclusion amount] in effect at the decedent’s death shall, in lieu of the [basic exclusion amount] in effect at the time of such gifts, be used.” In other words, the anti-clawback adjustment would be made by increasing the hypothetical “total gift tax paid or payable” on line 7 of Part 2 of the estate tax return. And by increasing the amount on line 7, which is subtracted in line 8, the estate tax would be appropriately reduced to offset the clawback effect.

But the proposed regulations take a different approach. The preamble implies that other approaches were considered, but concludes that “in the view of the Treasury Department and the IRS, the most administrable solution would be to adjust the amount of the credit in Step 4 of the estate tax determination required to be applied against the net tentative estate tax.” In the context of the new regulation, “Step 4” in the preamble apparently most closely corresponds to line 9a of Part 2 of the estate tax return (“basic exclusion amount”); Step 2 corresponds to line 7.

By increasing the amount on line 9a, rather than the amount on line 7, the proposed regulations achieve the same result, of course, because both line 7 and lines 9a through 9e involve subtractions in the estate tax calculation. Indeed, there is not even any reason to assume that this difference in approach is invited by the headings of the statutory provisions in Section 2001(g) – “Modifications to gift tax payable” in paragraph (1) enacted in 2010 and “Modifications to estate tax payable” in paragraph (2) enacted in 2017 – because both provisions are in Section 2001 and relate to elements of the calculation of the estate tax.

The chosen approach should work fine if the law is not changed, sunset occurs January 1, 2026, and someone has made a gift that uses some or all of the increase in the basic exclusion amount in 2018-2025. But, although the example in Proposed Reg. §20.2010-1(c)(2) mentions that the donor “dies after 2025,” the substantive rule in Proposed Reg. §20.2010-1(c) applies by its terms whenever “changes in the basic exclusion amount … occur between the date of a donor’s gift and the date of the donor’s death.” It is not limited to 2026 or to any other particular time period. The 2010 statutory rule in Section 2001(g)(1) and the 2017 statutory rule in Section 2001(g)(2) are not limited to any time period either.

Therefore, if Congress makes other changes in the law, particularly increases in rates or decreases in exemptions, and doesn’t focus on the potential clawback issue in the context of those changes, the generic anti-clawback regime of Section 2001(g)(1) and (2) and these regulations could produce a jigsaw puzzle of adjustments going different directions that may strain the notion of administrability cited in the preamble. But this is the type of concern that might be allayed by more examples in the final regulations.

The “Off the Top” Option

There had also been speculation that the regulations might address the option of making, for example, a $5 million gift during the 2018-2025 period (assuming no previous taxable gifts) and treating that gift as using only the temporary “bonus” exclusion resulting from the 2017 Tax Act, which is sometimes described as using the exclusion “off the top,” still leaving the exclusion of $5 million (indexed) to generate a credit to be used against the estate tax after 2025. But that type of relief would go beyond the objective of preserving the benefits of making use of the 2018-2025 increase in the basic exclusion amount and would, in effect, extend the availability of those benefits beyond 2025. Although the preamble to the proposed regulations does not refer directly to that issue, it appears that it would require a different regulatory analysis to achieve that result.

Ronald D. Aucutt