{"id":1594,"date":"2011-09-06T06:39:00","date_gmt":"2011-09-06T10:39:00","guid":{"rendered":"https:\/\/www.actec.org\/?post_type=capital-letter&p=1594"},"modified":"2024-04-17T17:14:16","modified_gmt":"2024-04-17T21:14:16","slug":"carryover-basis-gst-tax-and-portability","status":"publish","type":"capital-letter","link":"https:\/\/www.actec.org\/capital-letter\/carryover-basis-gst-tax-and-portability\/","title":{"rendered":"Carryover Basis, GST Tax, and Portability"},"content":{"rendered":"\n

An extra base hit of carryover basis guidance dominated August, although it was not quite a home run. But a couple of GST tax issues made it home, and portability is on deck.<\/strong><\/em>
<\/p>\n\n\n\n

Dear Readers Who Follow Washington Developments:<\/p>\n\n\n\n

August is typically a quiet month, particularly with Congress in recess, although that very fact can sometimes help focus attention on the administrative guidance that the IRS and Treasury work on year-round.  This year, the weeks before Labor Day brought significant administrative elaboration of the carryover basis rules for 2010 estates and a clarification of some GST tax rules for 2010 gifts and estates.  The elaboration of carryover basis rules came as triple guidance \u2013 Notice 2011-66<\/a> and Rev. Proc. 2011-41<\/a> at the beginning of August and the 2010 estate tax return on the Labor Day weekend.  But without Form 8939 itself and its accompanying instructions, the guidance was not quite a home run.  Even so, a triple is one of the most exciting plays in baseball, and the unfolding of guidance for 2010 estates since the 2010 Tax Act<\/a> last December has been anything but dull.<\/p>\n\n\n\n

Parallels in Recent Estate Tax Dialogue<\/strong><\/p>\n\n\n\n

Legislative Background<\/strong><\/p>\n\n\n\n

In December 2010, the\u00a0Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010<\/a>\u00a0(\u201cthe\u00a02010 Tax Act<\/a>\u201d) retroactively reinstated the estate tax, which had been suspended for 2010 by the\u00a0Economic Growth and Tax Relief Reconciliation Act of 2001 (\u201cEGTRRA\u201d).\u00a0 But\u00a0section 301(c) of the 2010 Tax Act<\/a>\u00a0permits an \u201celection out\u201d of the estate tax back into the carryover basis regime for 2010 that had been enacted by\u00a0EGTRRA.<\/p>\n\n\n\n

Section 6018, enacted by EGTRRA\u00a0and now applicable only to the estates of 2010 decedents whose executors elect out of the estate tax, requires formal reporting to the IRS and to recipients of property from the decedent if the fair market value of all property except cash acquired from the decedent exceeds $1.3 million.\u00a0 Before the enactment of the\u00a02010 Tax Act<\/a>, the IRS released a draft\u00a0Form 8939\u00a0for this purpose, but even that draft indicated that the form would be heavily dependent on instructions, which have yet to be issued.<\/p>\n\n\n\n

Section 6075(a) provides that Form 8939 is to be \u201cfiled with the return of the tax imposed by chapter 1 for the decedent\u2019s last taxable year [that is, the decedent\u2019s final 1040 due April 18, 2011] or such later date specified in regulations.\u201d  It is now clear that there will not be any such regulations, but on March 31, 2011, an IRS News Release (IR-2011-33) announced that Form 8939 will not be due on April 18, 2011, and should not be filed with the final Form 1040.  The news release concluded:<\/p>\n\n\n\n

Treasury and the IRS plan to issue future guidance that will provide a deadline for filing Form 8939 and for electing to have the estate tax rules not apply to the estates of persons who died in 2010.  The prior deadline was April 18, which remains the deadline for filing a decedent\u2019s final Form 1040 this filing season.  The forthcoming guidance will also explain the manner in which an executor of an estate may elect to have the estate tax not apply.<\/p>\n\n\n\n

A reasonable period of time for preparation and filing will be given between issuance of the guidance and the deadline for filing Form 8939 and for electing to have the estate tax rules not apply.  The Form 8939 is not currently available, but will be made available soon after the guidance is issued.  Both will be made available on IRS.gov.<\/p>\n\n\n\n

Notice 2011-66: The \u201cSection 1022 Election\u201d<\/strong><\/p>\n\n\n\n

On August 5, 2011, the IRS provided the first substantive guidance regarding both the carryover basis rules and the election out of the estate tax.\u00a0 Confirming what many have assumed,\u00a0Notice 2011-66, 2011-35 I.R.B. 179<\/a>, provides that\u00a0Form 8939\u00a0will be used to make what it calls the \u201cSection 1022 Election\u201d out of the estate tax, as well as to report and value property as required by section 6018 and to allocate the basis increases provided in section 1022 as enacted by\u00a0EGTRRA.<\/p>\n\n\n\n

Notice 2011-66<\/a>\u00a0provides that\u00a0Form 8939<\/a>\u00a0must be filed on or before November 15, 2011.<\/strong>\u00a0 In general, the IRS will not grant extensions of time to file\u00a0Form 8939\u00a0and will not accept a\u00a0Form 8939\u00a0filed late, and, once made, the Section 1022 Election and basis increase allocations will be irrevocable.\u00a0 As explicit exceptions, the IRS will allow additional Forms 8939 to make additional allocations of Spousal Property Basis Increase as additional property is distributed to the surviving spouse, and will allow other changes to a timely filed\u00a0Form 8939, except making or revoking a Section 1022 Election, on or before May 15, 2012 (six months after November 15).\u00a0 The IRS also retains the discretion, under \u201c9100 relief\u201d procedures, to allow an executor to amend or supplement a\u00a0Form 8939\u00a0or even to file a\u00a0Form 8939\u00a0late (and thus make the Section 1022 Election late).\u00a0 Obtaining 9100 relief can be cumbersome and expensive, and the IRS has made it clear in\u00a0Notice 2011-66<\/a>\u00a0that its standards for that relief are likely to be quite restrictive, except in the case of the allocation of additional basis increases to assets that are discovered, or revalued in an IRS audit, after a timely\u00a0Form 8939\u00a0is filed.\u00a0 But this anticipated strictness must be balanced against one of the apparent historical purposes of the Section 1022 Election, which was to relieve concern about a constitutional challenge to what would otherwise have been an unmitigated retroactive reinstatement of the estate tax.<\/p>\n\n\n\n

Ordinarily\u00a0Form 8939\u00a0will be filed by the executor appointed by the appropriate probate court.\u00a0 Sometimes, however, there is no such executor, such as when all of the decedent\u2019s property is held in trust.\u00a0 In that case, a\u00a0Form 8939, or multiple Forms 8939 as the case may be, will be filed by the trustees or others in possession of that property (often called \u201cstatutory executors\u201d after the definition in section 2203).\u00a0\u00a0Notice 2011-66<\/a>\u00a0states that if those statutory executors do not agree regarding the election, or attempt in the aggregate to allocate more basis increase than the law allows, the IRS will notify those statutory executors that they have 90 days to resolve their differences.\u00a0 If the executors fail to resolve their differences within the 90-day period, the IRS, after considering all relevant facts and circumstances disclosed to it, will determine whether the election has been made and how the allocations should be made.<\/p>\n\n\n\n

Revenue Procedure 2011-41<\/strong><\/p>\n\n\n\n

Also on August 5, 2011, the IRS released Rev. Proc. 2011-41, 2011-35 I.R.B. 188<\/a>, elaborating the rules governing the allocation of the basis increases allowed by EGTRRA and providing a number of other clarifications.<\/p>\n\n\n\n

The elaborations and clarifications will be especially helpful to executors in making decisions about the sale or distribution of assets (although they might have been even more helpful if they had been published earlier this year).\u00a0 For example,\u00a0Section 4.03 of Rev. Proc. 2011-41\u00a0clarifies that the executor may allocate the basis increases allowed by EGTRRA even after the asset has been sold or distributed.\u00a0\u00a0Section 4.02(2)(b)<\/a>\u00a0and\u00a0Example 3<\/a>\u00a0make it clear that the \u201cGeneral Basis Increase\u201d includes\u00a0all<\/em>\u00a0unrealized losses in capital assets at the moment of the decedent\u2019s death, without regard to the limitations on immediate deductibility that would apply for income tax purposes in the event of a sale.\u00a0\u00a0Section 4.06(1)<\/a>\u00a0provides that the recipient\u2019s holding period of property subject to the carryover basis rules includes the decedent\u2019s holding period (whether or not the executor allocates any basis increase to the property).\u00a0\u00a0Section 4.06(2)<\/a>\u00a0provides that such property generally retains the character it had in the hands of the decedent.\u00a0\u00a0Section 4.06(3)<\/a>\u00a0provides that the depreciation of property in the hands of the recipient is determined in the same way it was in the hands of the decedent.<\/p>\n\n\n\n

In more technical contexts, Sections 4.06(4)<\/a>, (5)<\/a>, and (6)<\/a> of Rev. Proc. 2011-41<\/a> helpfully address the specialized rules under Code sections 469 (passive activity losses), 1040 (recognition of gain on the satisfaction of a pecuniary bequest with appreciated property), and 684 (sale or exchange treatment of transfers to nonresident aliens).  And in a clarification outside of the carryover basis rules, Section 4.07<\/a> confirms that a testamentary trust that otherwise qualifies as a charitable remainder trust under Code section 664 will still qualify if the executor makes a Section 1022 Election, even though the election out of the estate tax will mean that no estate tax deduction under section 2055 will be allowable, which would appear to have disqualified the trust under Reg. \u00a7 1.664-1(a)(1)(iii)(a)<\/a>.<\/p>\n\n\n\n

The 2010 Estate Tax Return<\/strong><\/p>\n\n\n\n

The 2010 estate tax return (Form 706<\/a>) was posted on the IRS website on September 3, 2011.  The declaration above the signature line had been revised (even from the draft dated August 31) to read as follows:<\/p>\n\n\n\n

Under penalties of perjury, I declare that I have examined this return, including accompanying schedules and statements, and to the best of my knowledge and belief, it is true, correct, and complete.\u00a0 I understand that a complete return requires listing all property constituting the part of the decedent\u2019s gross estate (as defined by statute) situated in the United States.\u00a0 I (executor) understand that if any other person files a\u00a0Form 8939\u00a0or\u00a0Form 706<\/a>\u00a0(or Form 706-NA) with respect to this decedent or estate, that [sic<\/em>] my name and address will be shared with such person, and I (executor) also hereby request [that] the IRS share with me the name and address of any other person who files a\u00a0Form 8939\u00a0or\u00a0Form 706\u00a0(or Form 706-NA) with respect to this decedent or estate.\u00a0 Declaration of preparer other than the executor is based on all information of which preparer has any knowledge.<\/p>\n\n\n\n

The third sentence of this declaration, referring to\u00a0Form 8939, reinforces the approach announced in\u00a0Notice 2011-66<\/a>\u00a0for reconciling inconsistent positions or conflicting allocations by multiple \u201cstatutory executors.\u201d\u00a0 Perhaps one of the reasons this form was finalized on the Saturday before Labor Day is that the draft dated August 31 did not include this sentence, although the August 25 draft of the\u00a02011<\/em>\u00a0return did.\u00a0 (There is, of course, no Section 1022 Election and no\u00a0Form 8939\u00a0for\u00a02011<\/em>\u00a0estates.)\u00a0 The wording adopted on the Labor Day weekend was apparently imported from the July 2011 version of the return for the estates of nonresidents who are not citizens (Form 706-NA), which probably explains the somewhat out-of-place second sentence, referring to property situated in the United States.\u00a0 The haste with which the change was made is also evident in the ungrammatical placement of the word \u201cthat\u201d (which is also true of Form 706-NA and for which Capital Letters provides some help in the quoted text).\u00a0 As noted above, this guidance has been anything but dull.<\/p>\n\n\n\n

A question frequently asked about the 2010 Form 706<\/a> is whether the special September 19, 2011, due date provided for estates of decedents who died before December 17, 2010, the date of enactment of the 2010 Tax Act<\/a>, can itself be extended for six months in the usual way.  It is encouraging, especially with September 19 now less than two weeks away, that Line 9 of Part 1 of the 2010 Form 706<\/a> retains the usual \u201c[i]f you extended the time to file this Form 706<\/a>, check here.\u201d  It is theoretically possible that those words would be applied only to estates of decedents who died after December 16, but that appears extremely unlikely, and it should be expected that the instructions will make it clear that all 2010 estate tax returns are eligible for the automatic six-month extension of time.  Thus, the surge of filings between now and September 19 may consist of Forms 4768, not Forms 706.<\/p>\n\n\n\n

Form 8939<\/strong><\/p>\n\n\n\n

Section 7 of Rev. Proc. 2011-41<\/a>\u00a0states that the IRS expects 7,000 executors to file\u00a0Form 8939. \u00a0The IRS news release accompanying Notice 2011-66 (IR-2011-33) said the IRS expects to issue\u00a0Form 8939\u00a0\u201cearly this fall.\u201d\u00a0 Now that the substantive guidance of\u00a0Rev. Proc. 2011-41<\/a>\u00a0and\u00a0Notice 2011-66<\/a>\u00a0has been completed and the due date of November 15 has been confidently announced, we would hope to see\u00a0Form 8939, along with its instructions and the related Publication 4895, issued \u201csoon after the guidance is issued,\u201d as the IRS said in\u00a0IR-2011-33\u00a0in March.<\/p>\n\n\n\n

Rev. Proc. 2011-41<\/a>\u00a0begins by stating that \u201c[t]his revenue procedure provides optional safe harbor guidance….,\u201d but arguably does not deliver much in the way of true \u201csafe harbors\u201d that have been discussed since carryover basis became a serious possibility in late 2009, including default rules if no allocations (or incomplete allocations) are made, de minimis rules, reliance on reasonable estimates of purchase prices, and the presumably reduced documentation needed when allocated basis increases produce a basis that is clearly far less than the fair market value of an asset.\u00a0\u00a0Form 8939\u00a0and its instructions are needed for that.\u00a0 Until then, carryover basis guidance will not be all the way home, but will be waiting on third base for one more swing to make contact.<\/p>\n\n\n\n

Miscellaneous GST Tax Issues<\/strong><\/p>\n\n\n\n

Also like runners on base waiting to come home, there were a few questions about the GST tax that were also resolved as an incident to the recent triple guidance for 2010 estates.<\/p>\n\n\n\n

It has long been thought that if an executor elects out of the estate tax and files a\u00a0Form 8939\u00a0to report the necessary carryover basis information, any GST exemption that is needed could also be allocated on or with the\u00a0Form 8939.\u00a0 After all, because most elections out of the estate tax will involve the largest estates, these are also the estates in which generation-skipping is most likely to be observed.\u00a0\u00a0Notice 2011-66<\/a>\u00a0confirms that GST exemption allocations can be made on Schedule R of Form 8939.\u00a0 That is the same schedule that is used to allocate GST exemption on an estate tax return, and it would not be surprising if the Schedule R for the Form 8939 turned out to be essentially identical to the\u00a0Form 706 Schedule R<\/a>, with only references to\u00a0Form 706<\/a>, the QTIP election, and other estate tax concepts altered or removed.<\/p>\n\n\n\n

Many transfers in 2010 to trusts were \u201cdirect skips\u201d \u2013 for example, where only grandchildren and not children of the donor are beneficiaries of the trusts \u2013 in order to qualify for the \u201cmove down\u201d rule of section 2653 so that future distributions to grandchildren when the GST tax rate is not zero will not be taxed.  In such cases, it may be important to affirmatively elect on the 2010 gift tax return not to permit a deemed allocation of GST exemption under section 2632(b) or (c).  This will not always be desirable, however, especially where there are no other likely uses for GST exemption in the future, because the \u201cmove down\u201d permits the tax-free skip of only a generation or two, while the allocation of GST exemption will cause a long-term trust to be exempt as long as it lasts.  But if the 2010 direct skip gift is made outright<\/em> to a skip person like a grandchild or great-grandchild, there are no future GST tax characteristics to protect and no conceivable reason to want GST exemption to be allocated.  The IRS helpfully acknowledges this in section II.B of Notice 2011-66<\/a>, which states:<\/p>\n\n\n\n

[Reg. \u00a7 26.2632-1(b)(1)(i)] provides that \u201c… a timely filed Form 709 accompanied by payment of the GST tax (as shown on the return with respect to the direct skip) is sufficient to prevent an automatic allocation of GST exemption with respect to the transferred property.\u201d  Because it is clear that a 2010 transfer not in trust to a skip person is a direct skip to which the donor would never want to allocate GST exemption, the IRS will interpret the reporting of an inter vivos direct skip not in trust occurring in 2010 on a timely filed Form 709 as constituting the payment of tax (at the rate of zero percent) and therefore as an election out of the automatic allocation of GST exemption to that direct skip.  This interpretation also applies to a direct skip not in trust occurring at the close of an estate tax inclusion period (ETIP) in 2010 other than by reason of the donor\u2019s death.<\/p>\n\n\n\n

The \u201cpayment of tax (at the rate of zero percent)\u201d is certainly an odd notion, as is the concept of a zero rate itself, but, like the zero rate, it produces the right result.<\/p>\n\n\n\n

The notion of the zero rate is also reaffirmed in the 2010 estate tax return.  Line 8 of Part 2 of Schedule R, line 8 of Part 3 of Schedule R, and line 6 of Schedule R-1 all provide for the calculation of \u201cGST tax due\u201d by multiplying the previous line by zero.  Meanwhile, the second page of Schedule R-1 (page 26 of the entire return) includes the usual comprehensive instructions for trustees about the payment of the (zero) tax.  (The 2010 gift tax return that the IRS posted on its website on March 18, 2011, was also consistent with this approach.  In Part 3 of Schedule C, the \u201capplicable rate\u201d in column G is filled in as \u201c0,\u201d and column H, which instructs \u201cmultiply col. B by col. G,\u201d is also filled in with \u201c0.\u201d)<\/p>\n\n\n\n

The 2011-12 Priority Guidance Plan: Portability<\/strong><\/p>\n\n\n\n

The\u00a0Treasury-IRS Priority Guidance Plan<\/a>\u00a0for the 12 months beginning July 1, 2011, was released on September 2, 2011.\u00a0 A future Capital Letter will discuss the Plan in more detail.\u00a0 Besides a contemplated Notice on decanting (item 13<\/a>), the only two new projects under the heading of Gifts and Estates and Trusts relate to \u201c[g]uidance under \u00a71022 concerning estates of decedents who die during 2010\u201d (item 6<\/a>) and \u201c[g]uidance on portability of Unified Credit between spouses under \u00a72010(c)\u201d (item 7<\/a>).\u00a0\u00a0Item 6<\/a>, regarding 2010 estates, identifies\u00a0Rev. Proc. 2011-41<\/a>\u00a0and\u00a0Notice 2011-66<\/a>, but without an explicit assertion that they have completed the guidance.\u00a0 Nevertheless, the Plan reinforces the assumption that the next guidance will be\u00a0Form 8939\u00a0itself, and that any other substantive guidance can and will be provided by the form, instructions, and\u00a0Publication 4895<\/a>.<\/p>\n\n\n\n

That leaves portability as the only remaining announced guidance project related to the 2010 Tax Act<\/a> \u2013 the next priority, as it were, now that Rev. Proc. 2011-41<\/a> and Notice 2011-66<\/a> are completed.  And well it might be the next priority, as the first estate tax returns making the portability election are due October 1, 2011!  The August 25, 2011, draft of the 2011 estate tax return, by the way, says nothing about portability, which has fueled speculation that the \u201celection\u201d of portability required by section 2010(c)(5)(A) will be presumed in the case of any return for a married decedent that provides the information necessary to determine the exclusion amount that was available and the exclusion amount that was used, and therefore the amount of \u201cdeceased spousal unused exclusion amount\u201d contemplated by section 2010(c)(4).  Arguably part 4 of the August 25 draft does that, because it asks for the customary information about beneficiaries other than charity and the surviving spouse (line 5), as well as all federal gift tax returns (line 7).<\/p>\n\n\n\n

Curiously, the draft 2011 return changes \u201capplicable credit amount\u201d to \u201capplicable exclusion amount,\u201d on lines 9, 10, and 11.  That change might have been intended to reflect the shift in section 2010(c) to a focus on the \u201cexclusion amount,\u201d rather than the credit, in the accounting that is required between spouses.  Moreover, those lines are exactly where we should expect portability to be reflected, albeit in the return of the surviving spouse, not necessarily the first spouse to die.  It would make no sense to deduct the \u201capplicable exclusion amount\u201d from the \u201cgross estate tax,\u201d which would be the effect of that change in the draft.  But it is still only a draft (unlike the 2010 return that was finalized on September 3), and we should assume that more IRS work might produce both a more rational formulation for lines 9, 10, and 11 and an answer to the burning question of whether an overt affirmative election other than merely filing the return is necessary in order to make use of portability at all.<\/p>\n\n\n\n

Ronald D. Aucutt<\/p>\n\n\n\n

\u00a9 2011 by Ronald D. Aucutt. All rights reserved<\/p>\n","protected":false},"excerpt":{"rendered":"

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