By: Martin M. Shenkman, CPA, MBA, JD
Caveat: this review of the Senate estate tax bill was completed quite quickly and without the benefit of independent review. Undoubtedly errors in interpretation, mistakes and typos will exist. Do exercise caution.
Historical Perspective on Estate Tax
The EGTRRA phased-out the estate and generation-skipping transfer taxes so that they were fully repealed in 2010, and lowered the gift tax rate to 35 percent and increased the gift tax exemption to $1 million for 2010. In 2011 the estate, gift and GST tax exclusion was scheduled to decline to $1 million and the estate, gift and GST tax rate to rise to 55%.
The Senate passed late December 9th the "Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010" ("Bill") that provides temporary estate, gift and generation skipping transfer tax relief. The Bill's objective is, among significant other matters, to address the expiration of significant tax reductions from prior legislation that absent the Bill would result in significant income tax increases, especially with respect to the estate, gift and GST taxes. The prior legislation in issues is for transfer tax purposes the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), including certain modifications contained in the American Recovery and Reinvestment Act. The Bill also addresses expiring tax cuts in the Jobs and Growth Tax Relief Reconciliation Act of 2003 (JGTRRA).
Nancy Pelosi stated on December 10 that "in the Caucus today, House Democrats supported a resolution to reject the Senate Republican tax provisions as currently written."
Further compromise and change is possible, perhaps likely. But to quote Fareed Zakaria from a recent CNN interview: "I think, in the end, he'll [President Obama] get through the broad outline of the deal that he's struck with the Republicans. I think that there will be some changes, but I don't think they'll affect the broad outline. At least that's my sense right now." So this might very well be a template for the estate and transfer tax laws for 2010-2012. But, as they say at the end of the television show: "stay tuned."
Considering that most clients have already ordered their corsages for the New Year's Eve gala's they'll be attending that doesn't leave much time for planning when (if?) Congress resolves the continuing saga of estate tax uncertainty. What makes matters even more difficult for planners and clients is that the banking regulatory environment requires considerable time in terms of calendar days to open a new account. So for clients that might still be evaluating gift or other transfers, if accounts do not already exist, there may be few days left to establish the accounts that may essential to consummating a particular plan. For those clients awaiting certainty in the law to complete planning, the window of opportunity may have already closed.
New Exemption Amount and Rate
The proposal sets the gift, estate and GST exemption at $5 million per person and $10 million per couple.
Section 302(a)(1) and (2) of the Bill provides: "Modifications to estate, gift, and generation-skipping transfer taxes. "$5,000,000 APPLICABLE EXCLUSION AMOUNT.-(2) APPLICABLE EXCLUSION AMOUNT.-''(A) IN GENERAL.-For purposes of this subsection, the applicable exclusion amount is $5,000,000."
The tax rate of 35 percent for the estate, gift, and generation skipping transfer taxes for two years, 2011 through 2012.
With such a large exemption the real macabre impact of one year estate tax repeal will hopefully be minimized and avoided by most. Fewer would be heirs of aging high net worth benefactors will be inclined to have their benefactors watch the dropping of the ball in Time Square from the top of the Empire State building. The fact that most benefactors' estates will continue to be exempted from estate tax in 2011 eliminates the need for such self-help tax minimization. Ultra-high net worth taxpayers will continue to be advised to celebrate pre-New Year festivities in safer ground level locals.
The exemption amount is indexed beginning in 2012. This is a significant benefit that will likely enhance the burden of the Congressional estate tax generosity on the federal fisc in future years. Practitioners should bear in mind that assets bequeathed to surviving spouse and possibly protected by the new portable estate tax exclusion will increase in value as a result of inflation, but the portable portion of the first to die spouse's exclusion appears to be frozen at their date of death value, without the benefit of inflation indexing. This will be an important rationale for continuing to advocate for clients to utilize estate tax motivated bypass trusts on the first death. For the three clients a year that will head our advice it could prove quite worthwhile for them.
A significant concern about all the estate tax proposals was whether the exclusion would be inflation indexed. Without inflation indexing any exclusion amount could be eroded, perhaps severely, over time. The recent enactment of the Medicate tax on passive investment income, as an example, raised the possibility that the lack of inflation adjustment for the tax hurdle might be a signal of similar non-inflation adjusted thresholds in legislation following. The Bill, however, does provide for inflation adjustments to the exclusion, thus securing in real terms the value of the very high exclusion contained in the Bill.
Section 302 of the Bill provides: ''(B) INFLATION ADJUSTMENT.-In the case of any decedent dying in a calendar year after 2011, the dollar amount in subparagraph (A) shall be increased by an amount equal to-''(i) such dollar amount, multiplied by ''(ii) the cost-of-living adjustment determined under section 1(f)(3) for such calendar year by substituting 'calendar year 2010' for 'calendar year 1992' in subparagraph (B) thereof. If any amount as adjusted under the preceding sentence is not a multiple of $10,000, such amount shall be rounded to the nearest multiple of $10,000.''
It appears that on the death of the first spouse their exclusion will be so indexed until the date of death. It does not appear clear that the surviving spouse taking advantage of portability will be permitted to further inflation adjust the first to die spouse's portable exclusion.
2511(c) Uncertainty Eliminated
Section 303(e) of the Bill: "Conforming amendment.-Section 2511 is amended by striking subsection (c)." Thus the issues as to whether charitable remainder trusts ("CRTs") could be funded properly in 2010 has been obviated.
2010 Transition and Election Concerning Carryover Basis
As 2010 marched on the consensus of estate planners that retroactive reinstatement of the tax was assured began to wane. As the 2010 year passed, the concept of making the tax retroactive began to appear more unfair and unlikely. Eventually, sometime past mid-2010 the buzz about making the tax retroactive, but giving executors of 2010 decedents the choice as to whether to choose carryover basis or estate tax began. This was in fact the menu provided by the Bill, with the enticing bonus that the estate tax will now have a $5 million exclusion instead of the anticipated $3.5 million retroactive exclusion.
The mechanism the Bill uses is to provide that its provisions are generally effective as of January 1, 2010, but to then provide executors the option to choose which estate tax paradigm to use.
The Bill provides:
Section 301(c) "Reinstatement of estate tax; repeal of carryover basis...special election with respect to estates of decedents dying in 2010," provides: "Notwithstanding subsection (a), in the case of an estate of a decedent dying after December 31, 2009, and before January 1, 2011, the executor (within the meaning of section 2203 of the Internal Revenue Code of 1986) may elect to apply such Code as though the amendments made by subsection (a) do not apply with respect to chapter 11 of such Code and with respect to property acquired or passing from such decedent (within the meaning of section 1014(b) of such Code). Such election shall be made at such time and in such manner as the Secretary of the Treasury or the Secretary's delegate shall provide. Such an election once made shall be revocable only with the consent of the Secretary of the Treasury or the Secretary's delegate. For purposes of section 2652(a)(1) of such Code, the determination of whether any property is subject to the tax imposed by such chapter 11 shall be made without regard to any election made under this subsection."
It would seem at first blush that for any estate under $5 million in net worth the choice of the estate tax regime, with which clients and practitioners are familiar, is obvious. There will be no federal estate tax and the income tax basis of all qualifying assets will be stepped up without limit. For an estate of a single decedent (i.e., no surviving spouse) valued at $5 million under the carryover basis regime, less than a full basis step up would be achievable if the appreciation were greater than $1.3 million (ignoring for simplicity the other adjustments that might affect this figure). For an estate in excess of $5 million it would appear that the carryover basis regime might be better to avoid estate tax. But the estate tax at a 35% rate would have to be compared to the potential income tax cost differential under the carryover basis regime. The estate tax will be generally due nine months from death if the estate tax regime is applied. But if the carryover basis regime is elected, the income tax that might eventually be triggered as a result of the limited basis adjustment can be deferred almost indefinitely utilizing a range of income tax planning techniques. It would seem that in most if not all instances the carryover basis regime will be preferable for all estates over $5 million. Might there perchance be some instances where the calculations might somehow demonstrate that the carryover basis regime could be better?
Deadlines for 2010
To provide some leniency in recognition of the estate tax rollercoaster that has made planning difficult or worse, the Bill provides for additional time for executors of 2010 estates to make certain elections and actions. Hopefully, the executors whose estates might benefit from these extensions heeded the general advice advisers provided to withhold distributions pending clarification of the law.
Section 301(d)(1). "Reinstatement of estate tax; repeal of carryover basis...extension of time for performing certain acts.- (1) Estate tax.-In the case of the estate of a decedent dying after December 31, 2009, and before the date of the enactment of this Act, the due date for- (A) filing any return under section 6018 of the Internal Revenue Code of 1986 (including any election required to be made on such a return) as such section is in effect after the date of the enactment of this Act without regard to any election under subsection (c), (B) making any payment of tax under chapter 11 of such Code, and (C) making any disclaimer described in section 2518(b) of such Code of an interest in property passing by reason of the death of such decedent, shall not be earlier than the date which is 9 months after the date of the enactment of this Act.
Section 301(d) (2) "Generation-skipping tax.-In the case of any generation-skipping transfer made after December 31, 2009, and before the date of the enactment of this Act, the due date for filing any return under section 2662 of the Internal Revenue Code of 1986 (including any election required to be made on such a return) shall not be earlier than the date which is 9 months after the date of the enactment of this Act."
Will the extension of the time to make disclaimers still have hurdles to face under the language of governing documents or state law?
Gift and GST Tax Considerations for 2010
It appears that the Bill reconfirms the 35% gift and estate rate for 2010, and a generous $5 million 2010 exclusion. However, the $5 million gift tax exclusion seems to only apply for 2011 and later years.
The proposal sets a $5 million generation-skipping transfer tax exemption and zero percent rate for the 2010 year. This, however, does not appear to make it feasible in the waning days of the 2010 year to form and fund a GST exempt trust since it still appears that GST exemption cannot be allocated in 2010.
The opportunity to make GST transfers, e.g., gifts to grandchildren and other skip persons, before the end of 2010 may still be worthwhile for some. However, the prospect of a $5 million GST exemption in 2011 rather than the paltry $1 million some feared, may eliminate the motivation for such transfers for many clients.
Portability of unused exemption
Under current law, couples have to engage in rather complicated estate tax planning to claim their entire family exemption (this was $3.5 million per person, or $7 million for a couple, in 2009). The proposal allows the executor of a deceased spouse's estate to transfer any unused exemption to the surviving spouse without such planning. The typical planning was the creation of a trust referred to as a bypass, applicable exclusion or credit shelter trust on the death of the first spouse, in that first-to-die-spouse's will. It was also essential to properly re-title assets to facilitate the funding of that trust regardless of which spouse died first. The Bill's provision is effective for estates of decedents dying after December 31, 2010.
Section 303 of the Bill provides:''(4) Deceased spousal unused exclusion amount.-For purposes of this subsection, with respect to a surviving spouse of a deceased spouse dying after December 31, 2010, the term 'deceased spousal unused exclusion amount' means the lesser of- ''(A) the basic exclusion amount, or ''(B) the excess of- ''(i) the basic exclusion amount of the last such deceased spouse of such surviving spouse, over ''(ii) the amount with respect to which the tentative tax is determined under section 2001(b)(1) on the estate of such deceased spouse.
It appears that the basic exclusion amount of the last such deceased spouse implies that the first to die spouse's exclusion is not inflation adjusted as suggested above. The phrase "last such deceased spouse" may imply that if the Husband 1 is married to Wife 1 and Husband 1 dies, Wife 1 would be able to utilize Husband 1's remaining exclusion. However, if Wife 1 remarries Husband 2, her estate will only be entitled to utilize the remaining exclusion from Husband 2. Remarriage cuts off the right to use the prior spouse's exclusion. So it will become de rigueur in negotiating prenuptial agreements for second and later spouses to obtain confirmation of the remaining portable estate tax exclusion. Might internet marriage want ads soon tout exclusion availability? "Ugly and unpleasant male age 89 available for marriage. Full estate exclusion portable and available. Corroboration from major law firm available for review."
Section 303(5) of the Bill provides: ''(5) Special rules.- ''(a) election required.-a deceased spousal unused exclusion amount may not be taken into account by a surviving spouse under paragraph (2) unless the executor of the estate of the deceased spouse files an estate tax return on which such amount is computed and makes an election on such return that such amount may be so taken into account. Such election, once made, shall be irrevocable. No election may be made under this subparagraph if such return is filed after the time prescribed by law (including extensions) for filing such return. ''(B) Examination of prior returns after expiration of period of limitations with respect to deceased spousal unused exclusion amount.-Notwithstanding any period of limitation in section 6501, after the time has expired under section 6501 within which a tax may be assessed under chapter 11 or 12 with respect to a deceased spousal unused exclusion amount, the Secretary may examine a return of the deceased spouse to make determinations with respect to such amount for purposes of carrying out this subsection.
So for a taxpayer that does not have an estate tax to pass on their "portable" exclusion they will have to file an estate tax return. How many decedents with estates that appear for the couple to be safely within the limits of the avoiding tax would willingly incur the expense and cost of the filing of a return? Will this become the same trap for the unwary that not having a bypass trust had been in prior years that lead up to the call for portability? Will more moderate net worth, or less sophisticated taxpayers fall into the same trap they did with bypass trusts? What about the non-ending statute of limitations for audit? Will an executor make a conscious decision not to file a return, knowingly sacrificing an otherwise portable exclusion in order to avoid a potential audit years hence of a family business or other hard to value asset? What might receipt and release for such an executor have to contain to protect that type of decision?
Prior to the EGTRRA, the estate and gift taxes were unified, creating a single graduated rate schedule for both the gift and the estate tax. That single lifetime exemption could be used for inter-vivos gifts and/or testamentary bequests. The EGTRRA decoupled these systems. The proposal reunifies the estate and gift tax systems with a common $5 million exemption. The provision in the Bill is indicated as effective for gifts made after December 31, 2010.
2011 Gifts to Bolster Seed Gifts; Increased Exclusion and Note Sale Transactions
With a $1 million exclusion large estate planning transactions were limited, and the debate over the need for and use of seed gifts and/or guarantees, has been important. A client who restricted the size of assets subjected to a note sale to a grantor trust transaction in 2010 or prior years as a result of his or her advisers beliefs about seed gifts (e.g., insistence on seed gifts using the 9:1 ratio) can revisit that transaction and replicate it fourfold in 2011 by making up to $4 million of incremental seed gifts to the trust.
The increased gift tax exclusion in 2011 might afford clients who consummated leveraged note sale transactions in prior years the opportunity to gift additional assets to a buying grantor trust and perhaps negotiate the cancellation of the existing note guarantees and unwind some of the complexity of those transactions.
One theory espoused concerning seed gifts and guarantees that so long as a significant sum of capital was at risk in the transaction, regardless of the ratio of that risk capital (seed gift) to debt, the transaction should be respected. For adherents to this view, the ability to increase the amount of a trust's funding by perhaps an incremental $4 million of seed gifts in 2011 may support almost unlimited note purchases by such trusts.
Grantor Retained Annuity Trusts (GRATs)
GRATs had been slated for substantial restrictions tantamount to effectively repealing the technique. The proposed legislation does not include any restrictions on GRATs. So if enacted this might provide good incentive for clients to engage in GRATs while interest rates and asset values are low. However, with a $5 million gift and estate exclusion and portability, will this planning be limited only to ultra high net worth clients? Perhaps not. If 2013 may bring the specter of a reduced estate tax exemption and a higher rate, perhaps other clients should too consider pursuing GRATs while they remain advantageous. An impediment for many clients with estates that would appear to be below the new estate tax thresholds will be the costs of GRATs. So who might the best candidates for GRATs be other than ultra high net worth clients? Perhaps wealthy clients who have already implemented GRATs so that the complexity and cost barriers to consummating additional GRATs are low.
Example: Clients, with a combined net worth of $8 million implemented several two year GRATs in November 2010. While $8 million can readily avoid estate tax with a $5 million exclusion enhanced by portability, the clients understand GRATs, and the cost of funding more GRATs with nearly identical terms and using the same investment manager is quite modest. Such a client might opt to continue funding new GRATs, and to "roll" or cascade the existing GRATs into new GRATs when the payments come due, since for the relatively modest cost involved it provides a safeguard against asset growth or 2013 law changes pushing them into a taxable estate situation.
The typical rolling GRAT strategy might make sense for some clients to minimize state estate tax even if there is no federal tax likely.
Qualified Personal Residence Trusts ("QPRTs")
The higher exclusion makes it unnecessary to consider QPRTs for many estates that would have taken advantage of this planning techniques. QPRTs were especially valuable to clients who had moderate wealth estates that were subject to the estate tax, their homes were a significant asset, they did not have estates so large that cash gifts, GRATs, dynasty trusts and other planning techniques would have been palatable. Often QPRTs were agreeable because the client could retain their liquid assets intact to cover living expenses. For most of these clients, at least until 2012 there may be no use for QPRTS.
Another perspective on the use of QPRTs for these clients might be to consider using a QPRT today in the event that following 2010 the estate tax rules are modified in a negative manner. This would give such taxpayers a 2 year head start on tolling the QPRT plan. However, if the plan succeeded it would be at the expense of a more substantial capital gains tax to the heirs when the house is sold at some future date.
For a small number of wealthy clients with substantial value in their homes, and homes so valuable that the previous exclusion levels may QPRTs impractical, re-evaluating the technique may be worthwhile.
Example: Taxpayers have a $15 million estate, $10 million of which consists of their valuable center city apartment. The state in which they reside has an estate tax with a low exemption amount, but no gift tax. With a $1 million gift tax exemption a QPRT was impractical. With a $5 million gift exemption husband and wife can re-title their apartment to tenants in common and each gift a ½ interests to a separate QPRT, not trigger any gift tax, shift the discounted current value of the residence out of their estates (assuming they survive their respective QPRT terms), not trigger any gift tax, remove future appreciation from their estates, and achieve substantial future estate tax savings.
Formula Clauses and Bequests
As with the 2010 estate repeal impact on formula clauses, a change in 2011 to a $5 million exclusion makes it essential for all clients to review all formula clauses keyed to estate tax figures. This might include not only the obvious ones such as the amount bequeathed to a bypass trust, but prenuptial and buyout agreements as well. Clients should be wary of relying on state estate tax patches to fix these issues since the results could be further confounded by yet another unforeseen change.
The sad reality is that the motivation that the estate tax provided to so many wealthy Americans to engage in charitable planning may be sealed as over for the vast majority of Americans. The size and scope of the Bill changes may obviate forever many clients concerns or motivations for charitable giving to reduce estate tax.
Clients who might have considered or implemented testamentary charitable lead trusts as part of their estate plan to reduce the size of their taxable estates should review and revisit any such decisions, and the mechanisms for them, if the Bill is enacted.
Example: Client had a $4 million estate and feared that the $1 million exclusion 55% estate tax rate might come to pass in 2011. Client incorporated a $1 million 15 year charitable lead trust in his or her will to reduce the estate tax. With the new exclusion this is no longer necessary and perhaps revision and removal would be desired.
Probate and Executor Fees
In past years with a 45% or higher marginal estate tax rate (higher with state estate tax factored in) it was often quite advantageous to have an executor, even a family member disinterested in remuneration, be paid a full statutory executor fee. The estate tax savings could have significantly outweighed any income tax cost. However, far fewer estates subject to a federal estate tax, and a marginal estate tax rate that may not exceed state and federal combined income tax rates, there may be no incentive in many more cases to pay executor commissions. While this may raise additional issues, the analysis has changed.
Planning and Drafting for Years after 2012
Section 101(a). of the Bill is entitled "Temporary extension of 2001 tax relief" and provides: "(1) In general.-Section 901 of the Economic Growth and Tax Relief Reconciliation Act of 2001 is amended by striking ''December 31, 2010'' both places it appears and inserting ''December 31, 2012.'' Under the estate tax changes, Section 304, entitled "Application of EGTRRA sunset to this title" provides: "Section 901 of the Economic Growth and Tax Relief Reconciliation Act of 2001 shall apply to the amendments made by this section."
What happens in 2013 based on the above? Do the issues advisers pondered about the onset of 2011 all resurface? Section 901(b) of EGTRRA included the infamous sunset provision. Does Section 101 of the Bill mean that after 2012 again we will have to ask whether it will be as if the EGTRRA provisions that were law from 2001-2012 were never in effect? Will we again have to ponder the issue as to whether a GST exempt trust created in 2022 to which GST exemption was automatically allocated under the EGTRRA automatic allocation rules as extended by the Bill really remains GST exempt in 2013? Will estate planners face Freddy Krueger as the series: "A Nightmare on Estate Street" continues.
Even if the Bill, or something substantially equivalent, is enacted, what will happen after the two year period of the tax cut extensions? Fareed Zakaria in the recent CNN interview stated: "I am surprised that he [President Obama] was not able to separate out the tax cuts in the way that the Democrats in Congress wanted, which is to say extending the tax cuts for 98% of the people versus the tax cuts for the top 2%, that is people making over $250,000. That would have been a way of achieving a compromise but also doing something that was not as fiscally irresponsible as the current package [underlining added]." So, if these cuts are fiscally irresponsible, there is some possibility of the estate and transfer tax "cuts" ending at the end of 2012. This is certainly a possibility that has to be planned for. If the economic recovery strengthens, the deficits remain, perhaps 2013 will bring with it increases in the gift, estate and GST tax. In contrast to the 2010 estate tax repeal with no adviser thought could actually happen, this potential has to be planned for.
The New Estate Tax Numbers
If only 16,000 estate tax returns were filed in 2009 with a $3.5 million exclusion without portability, a very modest number of returns, representing an insignificant number of decedents, will be filed with a $5 million exclusion reinforced with portability.
Estate planning as we have all come to know it appears about to experience a dramatic and adverse change. Change will be adverse for advisers because business and revenues will be eroded substantially for many. Survivorship life insurance policy sales, bypass trust wills, insurance trusts, and more, will all provide less tax utility than before. For taxpayers/clients the Bill, if enacted, will be a boon, less tax, more money for heirs, less complexity, and perhaps the best estate tax stocking stuffer in a long time. Unfortunately, it will not turn out to be so. We all know as estate planners that getting the most chips to the next generation is only a small part of the process, and little assurance that the heirs will be really benefited. Potential estate tax savings have, however, been the driver, that brought clients to the estate planning table. Clients will have to be enticed with the benefits of saving state estate taxes, securing future portability, asset protection, succession planning, better asset management, addressing religious concerns and health issues, and a myriad of other personal and real issues. The problem with this will be evident. "I can save you 50% of your estate" is simple, clean and not an emotional hot button. "I might be able to minimize your children's fighting over your estate and your third spouse from absconding with your children's inheritance, and protect your autistic grandchild," are all tough topics to address. It was cleaner and safer to focus on taxes, even when planners would address these other issues as well. So the benefits to clients of the tax savings may more than outweighed by the detriments of more critical issues remaining untended to. The challenges for practitioners, will be to find new drivers to bring clients to the planning table. Once at the table, it will take more work, agility and effort to help guide clients to address the myriad of non-tax estate planning issues. And even when that is accomplished, billing without the benefit of large projected tax savings, will bring yet new hurdles.
Finally, 2013 could bring about another sea change in the law, but will clients, already wary, frustrated and worse over the 2009-2010 estate tax law rollercoaster, be willing to invest time, effort and money to plan for another "what if?"
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