COMMON MISTAKES IN THE FILING OF GIFT TAX RETURNS AND HOW TO AVOID THEM, WITH SAMPLE FORM 709 COMPLETED PAGES
By: Kenneth J. Crotty, J.D., LL.M.firstname.lastname@example.org
Why does a Gift Tax Return Need to be Completed Correctly?
A Gift Tax Return needs to be completed correctly to start the statute of limitations, which limits the ability of the IRS to challenge the value of the reported gift.A Gift Tax Return needs to be completed correctly to avoid wasting the client’s applicable credit amount by not taking advantage of the available exclusions.
Applicable Credit Amount
The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 increased the credit allowed against the gift tax imposed on gifts made by a U.S. citizen during his or her lifetime from $1,000,000 to $5,000,000.This change is effective until December 31, 2012.As a result of this change, many clients will make “taxable gifts” which will require a Gift Tax Return to be filed.
IRS Challenge of Reported Value
If the value of a gift is“adequately disclosed” on a Gift Tax Return in a manner sufficient for the IRS to determine the nature of the gift, the IRS may not challenge the value of the gift after three years have passed since the return was filed.I.R.C § 2504(c); I.R.C. § 6501(a).
Treas. Reg.§ 301.6501(c)-1(f)(2) states that adequate disclosure occurs when a Gift Tax Return provides the following information:1)Adescription of the transferred property and any consideration received by the transferor;2) The identity of each transferee and the relationship between the transferor and the transferee;
3) If the gift is made to a Trust, the Gift Tax Return must include the Trust’s tax identification number and a brief description of the terms of the Trust or a copy of the Trust Instrument;4) The Gift Tax Return must include a statement describing any position taken on the return that is contrary to any proposed, temporary, or final Treasury Regulation or Revenue Ruling published at the time of the gift; and
5) Unless the value of the gift is supported by an appraisal meeting the standards of Treas. Reg.§ 301.6501(c)-1(f)(3), the Gift Tax Return must include a detailed description of the method used to determine the fair market value of the property transferred and the underlying data must be submitted. Additional requirements are contained inTreas. Reg.§ 301.6501(c)-1(f)(2)(iv).
Documenting the Value of a Gift
Appraisals should be submitted for items that do not have readily determined values such as interests in closely held corporations, tangible personal property, or real estate.A Form 712 should be submitted for transfers of life insurance policies.For transfers of closely held corporations, the balance sheet, earnings statements, and dividends received for the five years prior to the gift should be attached.Page 9 of the Instructions for the Gift Tax Return provides additional information that should be submitted for some specific items.
When must the Gift Tax Return be Filed?
Generally the Gift Tax Return is due by April 15thof the year after the gift was made.If the taxpayer files a Form 4868 to obtain an extension of time to file his or her personal Income Tax Return, the taxpayer will also receive a 6 month extension to file the Gift Tax Return.SeeTreas. Reg. § 25.6081-1(a).If the taxpayer is not seeking an extension to file his or her Income Tax Return, then the taxpayer may request an extension of the time to file the Gift Tax Return by filing a Form 8892.
In the event that gift tax is payable as a result of the gifts reported on the Gift Tax Return, the gift tax must be paid no later than April 15th(or when the Gift Tax Return is due for a deceased donor if earlier), regardless of whether the time for filing the Gift Tax Return is extended. This rule is similar to the payment of the Estate Tax owed by a decedent if the estate extends the time for filing an Estate Tax Return.If a donor dies during the year that the gift was made, the Gift Tax Return is due when the Estate Tax Return for the decedent is due.
Who Must File a Gift Tax Return
A donor does not need to file a Gift Tax Return if one of the following five exceptions applies:1) If the donor transfers amounts that do not exceed the “annual exclusion;”2) If the transfers are payments that qualify for the educational exclusion, payments that qualify for the medical exclusion stated inI.R.C § 2503(e), or are transfers to political organizations;3) The donor transfers assets to his or her spouse that qualify for the gift tax marital deduction;
4) If the donor transfers assets to his or her spouse and(1) the spouse is not a U.S. citizen and(2) the amount does not exceed $136,000; and5) If the gift qualifies for the Charitable Deduction and either(1) the transfer is a qualified conservation contribution, or(2) the transfer is a transfer of the donor’s entire interest in the property and the donor is and has never made a transfer of any interest in the property for less than full FMV to a person or for a use that is not described inI.R.C § 2522(a) or (b).
Qualifying for the Gift Tax Marital Deduction
The gift tax marital deduction is available if:The spouses were married to each other at the time the gift was made;Thedoneespouse is a U.S. citizen; andThe asset transferred by the donor is NOT a nondeductible terminable interest as defined byI.R.C § 2523(b). If a donor transfers assets to his or her spouse that would qualify as QTIP property, the donor MUST file a Form 709 to make such election. Treas. Reg. § 25.6019-1(a).There is no relief available for late filing to make the QTIP election.
A husband and wife may consent to split the gifts that each other makes, so that the gifts will be treated as being made half by each spouse if the following conditions are met.(1) Both spouses must be U.S. citizens or residents on the date of the gift.(2) Both spouses must consent that all of the eligible gifts made by either spouse in the calendar year are treated as split by both spouses.(3) The spouses are married at the date of the gift and do not remarry during the remainder of the calendar year.
Gifts made by a donor during a part of the year when the donor was not married may not be split with the donor’s spouse if the donor later marries during the year.A donor may not split a gift with his or her deceased spouse if the gift is made after the spouse’s death.The executor for a deceased spouse or the guardian for a legally incompetent spouse may sign the consent to split a gift made prior to the death or incapacity of the spouse.
The Gift Tax Annual Exclusion
The Gift Tax Annual Exclusion is a gift that does not utilize the donor’s lifetime gift tax exemption.Currently, the annual exclusion is $13,000 and is indexed for inflation.I.R.C § 2503(b)(1).Only gifts of “present interests” qualify for the gift tax annual exclusion.
What Makes a Gift a Present Interest?
A gift is a present interest if thedoneehas an immediate right to use, possess, or enjoy the property.Treas. Reg. § 25.2503-3.Frequently, beneficiaries of a trust will be given aCrummeyright of withdrawal. This provides the beneficiary with an absolute right to withdraw the gift or a certain portion of the gift during a stated time, which qualifies the gift as a present interest.Gifts of future interests do not qualify for the gift tax annual exclusion. Examples of future interests include remainders, reversions, and any other interest that commences in use, possession, or enjoyment at some future time.Treas. Reg. § 25.2503-2.A gift of a future interests must be reported at its full value.
The GST Annual Exclusion
The GST annual exclusion and the gift tax annual exclusion are not identical.The GST annual exclusion is more limited, and a transfer that qualifies for the annual gift tax exclusion may not qualify for the annual GST exclusion.An outright transfer to a skip person (such as a grandchild) qualifies for the GST annual exclusion.
For a transfer in trust to qualify for the GST annual exclusion, the trust must be a “qualified trust” as described inI.R.C § 2642(c)(2).To satisfy this requirement, the trust must be held for the benefit of an individual and(1) during the life of such individual, no portion of the corpus or income of the trust may be distributed to any other person, and(2)if the trust does not terminate when the individual dies, the assets of the trust must be included in the gross estate of such individual.I.R.C § 2642(c)(2).
CrummeyGifts Often Use GST Exemption
Typically, aCrummeywithdrawal trust that meets the requirements for the gift tax annual exclusion will NOT meet the requirements for the GST annual exclusion.Therefore, the donor will need to allocate GST exemption to the trust if the transferor wants the trust to have an inclusion ratio of zero.
Direct Skips (GST Transfers)
A direct skip is a transfer subject to gift or estate tax made to a skip person.A skip person is either (1) a person who is two or more generations below the generation of the transferor, or (2) a trust that meets at least one of the requirements stated on the next page.A non-skip person is any person who is not a skip person
A Trust is a Skip Person if . . .
(1) all of the interests of the Trust are held by skip persons, or(2) the likelihood that a non-skip person would receive a distribution from the trust is less than 5%.I.R.C § 2613(a)(2).
Indirect Skips and GST Trusts
An indirect skip is a gift subject to gift tax that is not a Direct Skip and is made to a GST Trust.I.R.C § 2632(c)(3)(A).A GST Trust is defined byI.R.C § 2632(c)(3)(B).Most Trusts are GST Trusts! If the children of the donor are beneficiaries of the Trust, then the Trust will almost always be a GST Trust.Therefore, transfers to these trusts are indirect skips.
Where are Direct and Indirect Skips Reported?
What Schedule these gifts are reported is one of the most common mistakes we see on Gift Tax Returns.Direct skips are reported on Schedule 2.Indirect skips are reported on Schedule 3.
Reporting Gifts to 529 Plans
Gifts to 529 Plans do not qualify for theI.R.C § 2503(e) tuition exclusion.Therefore, to avoid having these contributions being treated as taxable gifts, the contributions need to utilize the donor’s annual exclusion.Pursuant to I.R.C § 529(c)(2)(B), if the aggregate amount of the contribution made by a donor to a 529 Plan for adoneeexceeds the annual exclusion, then the donor may elect to have the contribution spread ratably over 5 years beginning with the calendar year that the amounts are contributed.
If the donor makes the electionto have the contribution spread ratably over 5 years, the box in Question B of Schedule A must be checked.In addition, the donor should attach a statement explaining that the contribution is being split over the five year period, as shown on the sample form.If the spouses have elected gift splitting, only one spouse needs to make the election. Form 709 Instructions, page 6 (I.R.S. 2010).
If the donor makes the election to spread the contribution ratably over five years, then for each of the five years the donor reports 1/5thof the value of the gift in Part 1 of Schedule A. Form 709 Instructions, page 5 (I.R.S. 2010).In Column E, the donor lists the date of the gift as the calendar year for the Gift Tax Return being filed, NOT the date of the original gift.Id.If the donor does not make any other gifts that would require the donor to file a Gift Tax Return in any of the four years after the original contribution to the 529 Plan is made, then the donor is not required to file a Gift Tax Return to report the year’s portion of the 529 plan contribution.Id.
Hypothetical Fact Pattern
John and Mary Doe are married to each other and have been married to each other for all of 2010.John and Mary have two children: Henry Doe and Ruth Anderson.John and Mary have five grandchildren: Jean Anderson, Lily Anderson, Kate Anderson, Stella Doe, and Buddy Doe.Mary is the grantor of the Ruth Anderson Irrevocable Trust. Each of Ruth, Jean, Kate, and Lily haveCrummeyrights of withdrawal.
During the 2010 tax year, John and Mary made the following gifts:1-1-2010, John gifted $26,000 to Henry;3-31-2010, John made a donation to Community Foundation;8-1-2010, Mary made an $8,000 tuition payment to College University for Stella;9-1-2010, Mary gave Stella $18,0009-1-2010, Mary funded a 529 Plan for Buddy with $130,000; and10-21-2010, Mary contributed $210,000 to the Ruth Anderson Irrevocable Trust.
Kenneth J.Crotty, J.D., LL.M.is a partner at the Clearwater, Florida law firm ofGassmanLaw Associates, P.A., where he practices in the areas of estate tax and trust planning, taxation, physician representation, and corporate and business law.Hise-mail address email@example.com.