The Bloomberg BNA Estate Tax Blog is a forum for practitioners and Bloomberg BNA editors to share ideas, raise issues, and network with colleagues. The ideas presented here are those of individuals and Bloomberg BNA bears no responsibility for the appropriateness or accuracy of the communications between group members.
April 2, 2014
by Joseph J. Ecuyer
In Frank Aragona Trust v.Commissioner, 142 T.C. No. 9 (3/27/14), the Tax Court held that a trust could materially participate in rental real estate activities so as to avoid the per se passive activity rule. And, the court went on to hold that the trustees of the Frank Aragona Trust did materially participate in this case. However, the court declined to rule on whether a trust or estate could consider the activities of non-trustee fiduciaries, employees, or agents in making that determination, as a Texas district court had held more than 10 years earlier in the Mattie K. Carter Trust case. Given the renewed importance of this decision in light of the impact it will have in the Net Investment Income Tax area, it's doubtful that the Tax Court's opinion will be the last word on this issue.
March 13, 2014
by John M. Fusco III
Bloomberg BNA has released a new Tax Management Portfolio, Social Enterprise by Non-Profits and Hybrid Organizations, No. 489-1st. This Portfolio analyzes the unique federal income tax and state law issues affecting the relationships between social entrepreneurship and tax-exempt organizations, whether carried on directly by the tax-exempt organization or encouraged by investments in or grants to socially- or charitably-minded for-profit businesses. The discussion includes an examination of the emergence of hybrid organizations designed to apply commercial strategies to maximize a social or charitable purpose.
March 2, 2014
by Kathleen Adcock
While the General Utilities Doctrine died in 1986, the various circuits are still unsettled about how to apply the discount for built-in capital gains tax liability in closely-held businesses. From discounting 100 percent of the liability to ignoring the discount altogether, the courts offer a variety of options.
February 13, 2014
by Michelle Vesole
The IRS issued Rev. Proc. 2014-18, 2014-7 I.R.B. 513 (2/10/14) providing a simplified method for certain estates to obtain an extension of time, under Regs. 301.9100-3, to make a §2010(c)(5)(A) portability election. The election must be made on the estate of the first deceased spouse's estate tax return (Form 706). The relief provided in this guidance is only available for thoses estates that would not otherwise be required to file the estate tax return.
January 28, 2014
Trust interests created before 1977 can bring state law into the formula for determining whether a disclaimer will ward off gift tax on the transfer. While the rules under §2511 apply, state law requirements must still be met before a disclaimer is effective for federal gift tax purposes.
January 21, 2014
For tax years beginning in 2013, Form 8949, Sales and Other
Dispositions of Capital Assets, is to be used in conjunction with revised Form
1041, Schedule D, to report a trust’s or estate’s...
January 12, 2014
Notice 2014-2, on the ability of tax-exempt hospital organizations to
rely on the 2012 proposed regulations REG-130266-11 and the 2013 proposed
regulations REG-106499-12 under 501(r), 4959, 6033 hospital organizations must comply with statutory requirements for tax-exempt organizations operating as hospital facilities.
January 10, 2014
The Patient Protection and Affordable Care Act created a new set of requirements for charitable hospital organizations to meet in order to maintain tax exempt status. Notice 2014-3 proposes a procedure to allow the IRS to excuse charitable hospitals for minor and inadvertant omissions and errors.
December 13, 2013
The IRS released proposed regulations, REG-134417-13 , 78 Fed. Reg. 71535 (11/29/13), providing guidance to tax-exempt social welfare organizations (i.e., §501(c)(4) organizations) that would...
December 12, 2013
As many are familiar with by now, §1411 is the net investment income (NII) tax of 3.8% imposed on individuals, trusts, and estates with a certain threshold of income for tax years beginning in 2013. Nearly a year following the proposed regulations (REG-130507-11), the IRS issued the much-anticipated final regulations (T.D. 9644), providing guidance on the general application and computation of the NII tax. While there are several other components to the regulations, this discussion focuses only on the effect for trusts and estates.
December 10, 2013
District Court holds that the income tax exemption under IRC §107(2) for rental allowances paid to ministers as part of compensation violates the First Amendment's establishment clause. The court enjoined enforcement of the section pending the expiration of the period for appeals.
November 14, 2013
In United States v. Windsor, the Supreme Court ruled that sec. 3 of the DOMA, which provided that for all federal purposes marriage was defined as being between one man and one woman, was unconstitutional as it discriminated against same-sex married couples. At the same time, the Supreme Court refused to rule on whether same-sex marriage bans were unconstitutional in Perry v. Hollingsworth. These cases left many unanswered questions, including but not limited to, how to handle same-sex married couples living in states that either ban or do not recognize their marriages. The IRS, the Department of Labor, and other federal agencies have issued pronouncement all granting these same-sex married couples living in states that do not recognize their marriage full federal rights and benefits. But, is that the end of the discussion?
November 8, 2013
On Tuesday, November 19, 2013, at 12:30 – 2:00 PM ET, Bloomberg BNA will present a live webinar entitled “Chapter 14 Essentials: A Practitioner’s Guide Through the Minefield.” Chapter 14 of the Code has existed for over 20 years, yet many estate and gift tax provisions are not well understood by trusts and estates professionals. Todd Angkatavanich of Withers LLP and Jonathan Blatmmachr of Eagle River Advisors will discuss the many estate and gift tax pitfalls that can occur when structuring transactions between family members.
November 6, 2013
The IRS recently released Rev. Proc. 2013-35, confirming the projected 2014 inflation adjustments made in a special report by Bloomberg BNA.
November 4, 2013
On Thursday October 31, 2013, BBNA hosted a webinar on Planning
for Disability in an Aging World. The speakers were Robert B.
Fleming, Esq. CELA and Rebecca Morgan, LL.M. (Elder Law), Boston
Asset Management Chair in Elder Law, Director, Stetson University
College of Law, two of the foremost leaders in disability
planning. The webinar provided practitioners with an in-depth analysis of the issues that they will face when advising older clients and their families dealing with incapacity and disabilities.
November 1, 2013
In a BBNA Webinar, Making the Most of Year End Planning Opportunities with Checklists, Forms and Client Letters, Alan S. Gassman, Esq., Kenneth J. Crotty, Esq., and Christopher J. Denicolo, Esq. provided details on 9 common mistakes related to spousal gift splitting. Further, Gassman, Crotty, and Denicolo presented a cornucopia of information related to myriad aspects of estate, gift, and income tax planning. Other topics included utilizing ILITs and Dynasty Wealth Protection Trusts, as well as planning to avoid the new 3.8% tax on net investment income (the Medicare Tax).
October 22, 2013
In holding that the IRS was not entitled to summary judgment on the issue of whether a donor may reduce the value of gifts to her children by the mortality-adjusted present value of the children’s agreement
to assume and pay any estate tax liability imposed under
§2035(b), the Tax Court stated that “We will deny [the IRS’s] motion for summary judgment,
and we will no longer follow McCord v. Commissioner, 120 T.C. 358 (2003), rev’d
and remanded sub nom. Succession of McCord v. Commissioner, 461 F.3d 614 (5th
Cir. 2006), to the extent it provides otherwise.” In so doing, the court seemed to reverse its previous position in McCord v. Commissioner. However, this fully reviewed opinion may not be the last say on the matter. Two Tax Court Judges who did not take part in the decision could tip the balance in favor of following the McCord rationale.
October 15, 2013
On Thursday, October 31, 2013, Bloomberg BNA presents a new practical webinar, Planning for Disability in an Aging World. Many practitioners have had or will have clients who are incapacitated to some degree, whether mentally or physically. As life expectancies increase in the United States, 2 the number of individuals with some type of disability or incapacity may also increase. Although some clients with a disability or degree of incapacity will still be able to make decisions regarding their health care and property management, others may not be able to do so. Advance planning is critical to provide for the seamless transfer of control from the client to the designated agent when and if the client is no longer able to make decisions for herself or her family, or to ensure that another steps into the role of decision-maker to make decisions for the client or the client's family when the client lacks capacity to do so.
On Wednesday, October 30, 2013, Bloomberg BNA presents a new practical webinar, Making the Most of Year End Planning Opportunities with Checklists, Forms and Client Letters. The webinar, conducted by Alan S. Gassman, Kenneth J. Crotty, and Christopher J. Denicolo concentrates on year-end planning techniques which practitioners need to consider for their clients. This includes techniques that are available to utilize the clients’ lifetime gift exemption, to structure clients’ planning to reduce or eliminate possible income tax exposure, and the potential pitfalls and traps that need to be considered.
October 11, 2013
On Thursday, October 31, 2013, Bloomberg BNA will host a webinar on Planning for Disability in an Aging World. The webinar will cover a host of topics geared towards providing practitioners with the tools necessary to assist their clients and their families in planning for disability. In addition, the course will help the practitioner understand the government benefit programs available to these individuals. All registrant will receive a complimentary copy of the authors' Bloomberg BNA portfolio, Planning for Disability (a $400 value).
October 4, 2013
For a second year, Bloomberg BNA has released projected inflation-adjusted amounts for thresholds, limits and deductions in 2014. The projections affect inflation-adjusted amounts relating to estates, gifts and trusts, as well exempt organizations.
September 26, 2013
Over the past few years there have been a significant number of
audits and Tax Court cases related to conservation (facade)
easements, and particularly the valuation of these easements...
September 10, 2013
Generally, for income tax
purposes, the character of income that is distributed to the beneficiary of a
charitable remainder trust (CRT) as an annuity or unitrust payment is
September 1, 2013
Private placement life insurance and Private Placement Variable Annuities have become significant estate planning tools to high-net-worth individuals. In consulting with their high-net-worth clients, tax advisors need to look beyond their client's estate planning needs and look to the client's investment, income tax and asset security needs as well. Portfolio 870-1st explores the use of these financial instruments in the estate planning context.
August 30, 2013
In Rev. Rul. 2013-17, the IRS finally provides guidance on the choice-of-law issues left unresolved by the Supreme Court's decision in United States v. Windsor. In general, same-sex couples who are married in states which recognize same-sex marriage will be considered "married" for federal tax purpose, regardless of their state of domicile. While same-sex married couples residing in states that ban same-sex marriages have some certainty in the short term, it is doubtful that this will be the last word on this issue.
August 26, 2013
Bloomberg BNA, launched a major expansion
of its state tax product offerings. Included in these offerings are an Estates, Gifts, and Trusts Navigator as well as a State Trust Nexus Evaluator Tool which will allow subscribers the ability to create charts comparing and contrasting different states' laws on the income taxation of estates and trusts. These tools are compliments to our Portfolios, including new Port. 869, State Income Taxation of Trusts by Richard W. Nenno. At a time
when state taxes continue to grow in complexity and importance,
Bloomberg BNA has added must-haves for all estate and trust advisers.
In conjunction with the release of the State Trust Nexus Evaluator, Bloomberg BNA releases Portfolio 869-1st: State Income Taxation
of Trusts by Richard W. Nenno. This Portfolio goes beyond the generic state rules on the taxation of trusts by discussing unique planning opportunities and the due diligence required of all trustees. According to the author, it is important for the trustee to be involved with the planning
process, implementing the trust, and performing due diligence once
the trust has been established. During each phase, the trustee should ensure that the attorney
is considering where the trust might be subject to tax and whether
it is possible to legally avoid tax in certain jurisdictions, Nenno
said. According to Mr. Nenno, "With planning, you can save a lot of money,"
August 16, 2013
The IRS released final, temporary, and proposed regulations under §4959 for excise tax on charitable hospitals that fail to meet the community health needs assessment (CHNA) requirements under §501(r)(3). These organizations must file Form 4720 by the 15th day of the fifth month after the end of the organization's taxable year in which the liability was incurred.
August 8, 2013
On August 7, 2013, the IRS issued 2013 draft Form 8960, Net Investment Income Tax - Individuals,
Estates, and Trusts, which is based solely on its proposed regulations
under §1411 (which taxpayers may rely on for the 2013 tax year). Once the IRS
finalizes the form, individuals, estates, and trusts will use it to compute
their net investment income tax.
July 30, 2013
BBNA App allows subscribers to access BBNA content anywhere and everywhere.
July 18, 2013
Where donor received a "side letter" which stated that his donation of a conservation easement would be returned in the event that his donation was later deemed to be nondeductible, Tax Court held that the donation was nondeductible because the possibility that the contribution would be returned to donor was "not so remote as to be negligible."
March 5, 2013
Practitioner's should be careful when advising clients with respect to filing and payment deadlines for estate taxes. Because of the ability to extend payment deadlines in the estate tax arena, practitioners should be careful to distinguish between advise they would give to income tax clients and advise that they would give to estate tax clients.
January 15, 2013
Valuing a facade easement is not easy, to say the least. It often boils down to a battle of the experts. However, both sides should make sure to not lose sight of the forest through the trees. Sometimes a common sense approach might be the way to go without needing to resort to a complicated state law analysis. Also, both sides should be careful not to get too greedy. When a court loses confidence in one aspect of an expert's analysis, the court could dismiss everything else the expert has to say. So, both sides should take care to pick an expert wisely.
October 2, 2012
Bloomberg BNA Tax Policy and Practice Summit “Taxmaggeden,” new reporting requirements under “Obamacare,” and competing tax reform initiatives are just some of the uncertainties or “what ifs” that await corporate tax professionals after the November elections.After the elections, many of these “what ifs” are likely to take on even greater urgency and be replaced with “what now” as tax professionals must develop strategies for 2013 and beyond. The Bloomberg BNA Tax Policy and Practice Summit on Nov. 13-14, at the Ritz-Carlton
Hotel in Washington, DC will bring the “what now” into sharper focus.
July 12, 2012
Tax Court denies charitable contribution deduction for donations of home to
local fire departments for training and demolition purposes.
June 19, 2012
On June 15th, the IRS issued long-awaited temporary and proposed regulations that provide guidance on the estate and gift tax applicable exclusion amount, including the requirements for electing...
June 11, 2012
As you probably know, Congress passed the Defense of Marriage Act (DOMA)
in 1996. In recent years, the two main provisions of DOMA have been
challenged in the courts as being unconstitutional.
April 27, 2012
On April 19th and 20th, Georgetown Law hosted its annual conference,
“Representing & Managing Tax-Exempt Organizations.” The conference
is regularly attended by leading attorneys, accountants and managers of
nonprofits. The speakers at this year’s conference included
representatives from the IRS and Capitol Hill, as well as leading law
firms and nonprofit organizations.
April 26, 2012
Lois Lerner, Director of the IRS Exempt Organizations Division, opened
the Georgetown Law “Representing and Managing Tax-Exempt Organizations”
conference on April 19th with a thorough overview of things to come.
April 3, 2012
The March 26, 2012 Tax Court decision in Wandry v. Comr., T.C.
Memo 2012-88, was yet another win for taxpayers in a long-simmering
dispute between taxpayers and the IRS on the issue of defined value
gifts. In 2004, the Wandrys entered into a tax attorney-advised gifting
plan by which they were to give interest, based on specific dollar
amounts rather than percentages, in an LLC to their children and
March 9, 2012
by Kathy Hanson
The March 6, 2012 Tax Court decision in Dickerson v. Comr., T.C. Memo 2012-60, examined whether a waitress who received a lottery ticket and transferred it to a new family corporation made a taxable gift to the other shareholders and, if so, whether the value of the gift should be discounted because of her former co-workers’ claims for a share of the winnings. The court answered yes to both questions.
February 21, 2012
On February 17, the IRS issued Notice 2012-21, which extends by six
months the deadline to make a portability election for a qualified
estate whose executor did not timely file either Form 4768, Application for Extension of Time To File a Return and/or Pay U.S. Estate (and Generation-Skipping Transfer) Taxes, or Form 706, United State Estate (and Generation-Skipping Transfer) Tax Return, within nine months of the date of death.
September 29, 2011
Recently, the IRS issued long-anticipated guidance of interest to those administering estates of persons who died in 2010. Executors who wish to elect application of the §1022 carryover basis regime, rather than the estate tax, received an extension of time and a safe harbor in making that election.
September 1, 2011
In Turner Est. v. Comr., T.C. Memo 2011-209 (8/30/11), Judge
Marvell of the Tax Court held that the estate of Clyde W. Turner, Sr.,
included all the property that he contributed to a family limited
partnership upon its formation, even though he gave away a considerable
portion of his limited partnership interest before his death in February
June 10, 2011
Thanks to Politico, we have the news that the IRS estate and gift tax team is auditing taxpayers who have made large gifts to §501(c)(4) advocacy organizations such as American Crossroads and Priorities USA. Ofer Lion, a Los Angeles tax lawyer,
May 18, 2011
A recent Tax Court decision, Estate of Sylvia Riese v.
Comr ., T.C. Memo 2011-60 (3/15/11), points out the
potential hazards of failing to comply with the terms of a
qualified personal residence trust (QPRT). On the advice of her estate planning attorney, Mrs. Riese in
April 2000 established a QPRT for her
On March 15, little more than one month before the filing
deadline, the IRS released the 2010 version of Form 709, the Gift
(and Generation-Skipping Transfer) Tax Return. The late release
date was presumably due to the need to revise the form to reflect
the significant changes made to the GST tax by the Tax Relief
Estate planners and administrators have been anxiously awaiting
the publication of new IRS Form 8939, Allocation of Increase in
Basis for Property Acquired From a Decedent,
particularly after the 2010 Tax Relief Act confirmed the
availability of carryover basis for 2010 estates. If the
estate of a decedent
One of the smarter features of the recent changes in 2010 Tax
Relief Act was the decision to reinstate the generation-skipping
transfer tax in 2010, but with a 0% tax rate for direct skips.
While leaving undisturbed the 2010 tax holiday, the reinstatement
of the GST tax structure removed the uncertainty created by
Last week's Heckerling Institute on Estate Planning in Orlando,
which ended on January 14, provided a first look at the transfer
tax changes made by the Tax Relief, Unemployment Insurance
Reauthorization, and Job Creation Act of 2010. Many speakers, who
had submitted their outlines before the legislation was
Most estate planners have advised their clients on how to
provide for impecunious children. With high unemployment rates
for young people and the advent of "boomerang" children, parents
are increasingly called upon to cover their children's living
expenses, usually on an out-of-pocket basis. Although most of us
On December 15, the Senate by a lopsided 81-19 vote approved the
Tax Relief Act of 2010, which includes a two-year extension of the
estate tax. Key estate and gift tax elements of the bill include
the following: a $5.0 million estate tax exemption and a 35% tax rate,
effective in 2011 and 2012 the $5.0 million
Late on December 9, Senate Finance Committee Chairman Baucus
(D-Mont.) unveiled legislative language for the estate tax
compromise reached by congressional Republicans and President
Obama. As reported by BNA's Daily Tax Report, the bill
includes the anticipated $5.0 million estate tax exclusion and a
The estate tax compromise reached by congressional Republicans
and President Obama is still on track for passage, although liberal
House Democrats find it hard to swallow. It is expected that the
bill will come to the Senate floor today or tomorrow, where enough
Democratic senators have expressed support (or at
On December 6, President Obama announced that he and Republican
leaders in Congress had reached agreement on temporary estate tax
legislation as part of a larger package that would extend the
so-called Bush tax cuts. Without the legislation, the estate tax
will return to a $1.0 million exemption and a top rate of
Although little more than six weeks remain before the estate tax
is reimposed at its 2001 level, there is little indication that
Congress views the situation with urgency. As reported today in
BNA's Daily Tax Report, leaders in both the Senate and
House are focused on the immediate issue of how to pay for and
Although it has yet to appear on the IRS website, a draft
version of Form 8939, Allocation of Increase in Basis for
Property Received from a Decedent, has been recently
circulating among practitioners. Dated June 1, 2010, it is
available on the website of Tax Management author Prof. Roger
McEowen at the Center
The Health Care and Education Reconciliation Act of 2010 (P.L.
111-152) enacted IRC 1411, which imposes a 3.8% Medicare tax on
the net investment income of trusts and estates. Effective for tax
years beginning after 2012, the amount subject to tax is the lesser
of: (1) the "undistributed net investment income"
Good lawyering appears to have rescued Craig Breakiron from a
$2.3 million gift tax liability. The story begins in 1995, when
Craig's parents each created a qualified personal residence trust
(QPRT) funded with undivided 50% interests in real estate on
Nantucket Island. Each QPRT had a 10-year term, after which th
It is almost nine months since the repeal of the federal
estate tax took effect, and the chances of timely Congressional
action to reinstate it appear slimmer each day. Although Congress will be reconvening for an abbreviated session
before the November 2 election, it is unlikely that either house
will want a
The approaching dog days of a Washington summer seem to have
reminded Congress that it must act on the estate tax. Recent
activity in both houses of Congress has raised the hopes of those
who expect a decision before the tax is reinstated at its 2001
levels on January 1, 2011. Here is a chronology of recent
Rep. Sander Levin (D-Mich.), Chairman of the House Ways and
Means Committee, on June 9 introduced H.R. 5486, the Small Business
Jobs Tax Relief Act of 2010. An earlier version of this legislation
(H.R. 4849) was passed by the House in March, but was never taken
up by the Senate. Estate planners may not be
Little noted in the press reports surrounding the April 15
release of President and Mrs. Obama's 2009 income tax returns is
the fact that each of them also released copies of their 2009 gift
tax returns on Form 709. Anyone hoping that the President was reporting the funding
of a two-year GRAT (see the
Last week's Eighth Circuit decision in Holman v.
Commissioner (No. 08-3774, 4/7/10) had the feel of the early
days of family limited partnership tax litigation, when the IRS
hoped that Chapter 14 of the Code would provide it with a simple
tool for denying FLP discounts. The decisions in
Church and Estate of
February 2, 2010
The recently-concluded Heckerling Institute on Estate Planning, held in Orlando on January 25-29, included considerable discussion of what estate planners can do for their clients now that the estate tax is repealed. Although most planners had assumed that repeal would not come to pass, Congressional inaction has forc
December 7, 2009
On December 3, the U.S. House of Representatives, in a 225 200 vote, approved H.R. 4154, the "Permanent Estate Tax Relief for Families, Farmers, and Small Businesses Act of 2009." This bill, which is only one page long, permanently extends
November 18, 2009
A long-simmering dispute between taxpayers and the IRS came into view with the Eighth Circuit's decision in Estate of Christiansen v. Commissioner (Docket No. 08-3844, 11/13/09). Helen Christiansen's will left her entire estate to her daughter Christine, but with a gift over to a charitable foundation and a
October 2, 2009
The recent publication of Private Letter Ruling 200939003 by the IRS is a timely reminder of the potential use of IRC 6166 to defer payment of the generation-skipping transfer tax. In the ruling, Grandfather had established a trust for Child, funding it with the stock of an S corporation. Child was to receive the
Discounting Built-In Capital Gains Tax Liability for Closely-Held Businesses
Tax Court Gives Taxpayer a Victory in Frank Aragona Trust Case -- But Doesn't Go All the Way
Bloomberg BNA Releases New Portfolio, 489-1st -- Social Enterprise by Non-Profits and Hybrid Organizations
Relief Available for Certain Late Portability Elections
Old Trusts, Disclaimers and State Law