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In December 2010, the Tax Relief, Unemployment Insurance
Reauthorization, and Job Creation Act of 2010 (the "2010
Act") extended the Bush tax cuts through December 31, 2012
and, among other things, increased the gift, estate, and GST tax
exemption amounts to $5.12 million per person in 2012. (For married
couples, their aggregate exemptions are twice these amounts.) The
2010 Act also provided for a flat 35% tax rate for any transfers in
2012 that exceed the exemption amount.
Unfortunately, the $5.12 million exemption amount and lower 35%
tax rate are set to expire on December 31, 2012, and Congress has
not acted to extend (or make permanent) these exemption amounts or
the tax rate. If Congress does not act, then effective January 1,
2013, and in future years until changed, the gift and estate tax
exemption amounts will decrease to $1 million per person, with only
a slightly higher GST tax exemption amount. In addition, the
maximum gift, estate, and GST tax rates will increase to 55%. While
Congress may act during the remainder of 2012 or sometime in 2013
(and could make any changes retroactive to January 1, 2013), it is
uncertain what it will do. For example, Congress could permanently
set the gift, estate, and GST tax exemption amounts at only $3.5
million per person, with a flat 45% tax rate.1 This
would effectively result in $1.62 million of exemption amount per
person "disappearing" after December 31, 2012,
potentially resulting in an additional $730,000 of estate tax at
death.
If you have not already done so, now is the time to consider
whether to make gifts during the remainder of 2012 to utilize some
portion or all of your $5.12 million exemption amount. To the
extent prior taxable gifts have been made, these gifts would be
subtracted from the $5.12 million amount. As suggested below, there
are several ways to make gifts of the $5.12 million exemption
amount. In this regard, it should be noted if the gift tax
exemption is partially or fully utilized in 2012, the amount used
will be subtracted from any estate exemption available at death
under current law.
Gifting During Remainder of 2012
Without getting too complicated, there are primarily two types
of gifts most will want to consider:
(1) Make Gifts Outright
or in Trust for Children and Other Descendants. For
individuals with sufficient assets who want to make gifts to
children and other descendants in 2012, gifts can be made outright
or in trust. The GST exemption can also be allocated to gifts made
to long-term trusts to protect such trusts from future estate and
GST taxes. This is the most straightforward approach to utilize the
2012 gift tax exemption amount.
(2) For Married
Couples, Make Gifts in Trust for the Benefit of Your Spouse and
Children and Other Descendants. For married couples
concerned about preserving sufficient assets for their own support
and lifestyle needs, it is possible for an individual to make gifts
in trust for the benefit of his or her spouse during the
spouse's remaining lifetime, utilizing the gift tax
exemption amount of the individual making the gift. Such a trust
would allow the recipient spouse and/or children or descendants to
be the lifetime beneficiaries of such trust, and the trust assets
would not be subject to estate tax at the death of the recipient
spouse. At the spouse's death, such trust assets could be
distributed to or for the benefit of the individual's
children or other descendants or held in further trusts.
Other Factors to Consider When Making Gifts in 2012
Whether to make a large gift will depend on, among other things,
the amount and what assets (closely-held business interests,
securities, etc.) are owned by an individual and the income tax
basis of such assets. For example, it is generally preferable to
give away an asset with an income tax basis close to the current
value of the asset, since the recipient of the gift usually
receives the income tax basis of the person making the gift. Thus,
the future capital gains taxes that a recipient would pay if the
assets are subsequently sold will offset some of the tax benefits.
On the other hand, if the donor has adequate assets, the
appreciated assets could be sold by the donor and then cash could
be given to the recipient.
We would be happy to assist you in any way with these matters.
If you are interested in making gifts or entering into other
transactions during 2012, please let us know as soon as possible
since the cut-off date is currently December 31, 2012.
Footnotes
1. President Obama's 2013 revenue proposals have
included a projected gift, estate, and GST tax exemption amount of
$3.5 million per person, and a flat 45% gift, estate, and GST tax
rate.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The Internal Revenue Service has recently published an IRS Large Business & International Directive, which updates an earlier directive to field agents addressing the examination of capitalization and repair costs issues.
A state cannot include income in the apportionable base and then exclude the receipts and related factors that generated that very same income from the apportionment formula.
