The 2012 American Taxpayer Relief Act (“ATRA”), signed into law in 2013 (or, as a 2012 Act, on December 31, 2012) has dramatically changed estate planning in many ways. The federal changes, an increased exemption of $5,250,000 per person and the concept of “portability” of estate tax exemptions, have dramatically changed the landscape for planning. These changes have been enacted on a “permanent” basis due, in large part, to the past decade of uncertainty. Since the 2001 Economic Growth and Tax Relief Reconciliation Act (the first of the “Bush Tax Cuts”) brought about the potential for complete repeal of the federal estate tax, the tax effects of estate planning have been in flux.
Unlike income tax planning where the “tax year” ends each December 31, planning for the estate tax has been difficult due to the changing tax landscape. However, now that the law is “permanent,” planners have realized that the permanency of any law is subject to the political tide winds. In fact, already, the Congressional “progressive” caucus has proposed a reduction of the exemption from the current $5,000,000 to $2,000,000. While this may be unlikely in the near term, who knows what the law will be in, say, 2025 or 2035 at a clients passing.
When combined with the tax planning attributes of the New Jersey estate tax, the interplay can be confusing and result in a series of painful decisions for the client. First off, under the ATRA the relatively high thresholds for application of the federal estate tax, now for 2013 $5,250,000, means that many if not most, New Jersey clients should have no concern for the prospects for paying federal estate tax. Nevertheless, the immediate prospects for estate tax reform should now place many of our clients in a position where the federal estate tax will not be a concern. Obviously, if clients are younger and have estates approaching the $5,000,000 threshold, then the implications related to the federal tax may (and should) be a factor in the overall plan. However, some clients, particularly older clients where possibility for substantial appreciation in their estates is reduced, should not be concerned with the federal tax implications.
A second aspect to the 2012 ATRA is related to the “portability” of estate tax exemption. This new rule has been designed with an eye towards eliminating the need for the traditional “bypass/ credit shelter/ family trust” planning used to shelter tax by consuming the estate tax exemption of each spouse of a married couple. In general terms, “portability” of estate tax exemption allows one spouse to inherit the home, stock portfolio, individual retirement account of their deceased spouse and, moreover, a spouse can inherit the unused estate tax exemption as well. Under technical terms, this “unused” exemption is referred to as the “Deceased Spouse Unused Exemption” amount or “DSUE” which can carryover from one spouse to the survivor upon filing of an estate tax return for the predeceasing spouse.
Remember however, that there are still STATE tax implications. Many states, like New Jersey, impose a separate estate tax. In New Jersey, spouses can leave assets tax free to their spouse or tax free to charity, but a tax will be imposed to the extent that the value of the estate exceeds $675,000. The NJ tax rates are not as high as the federal rate, but can range from 5% to 16% (over $10 million). In addition to the estate tax, NJ also imposes an inheritance tax, but that tax does generally not apply to transfers to a spouse child or grandchild who are referred to as “Class A” beneficiaries subject to a 0% tax rate (e.g. no tax).
THE 2013 ACT
“PERMANENT” ESTATE TAX RELIEF
One of the major elements to ATRA 2012 is the fact that it has finally given the estate and gift tax a permanent law upon which taxpayers can rely. By way of background, the estate tax has been in a state of constant uncertainty since the 2001 tax law that sought to “repeal” the estate tax. Unfortunately, the 2001 law called for the repeal of the estate tax for 2010 decedents (coupled with complicated income tax rules called ‘modified carryover basis’) but that law was set to expire in 2011. In 2010, the 2010 tax law, enacted December 17, 2010 relaxed the applicability of the estate tax but that law was, again, set to expire after two years, January 1, 2013. Now, the 2012 ATRA provides that the estate tax will only apply to estates where the value of the estate is greater than $5,000,000. Better yet, the $5,000,000 threshold is indexed for inflation (starting in 2010) so that the federal estate tax will only apply to estates with a value (in 2013) greater than $5,250,000.
A second aspect to the revision was on the estate tax rates. The ATRA 2012 now sets the estate tax rate at 40%. Historically, before 2001, the estate tax had included a graduated rate structure leading up to a 55% bracket. The 2001 law gradually reduced the rate to 45% and, under the 2010 law (that reset the exemption at $5,000,000) also dropped the rate from 45% to 35%. The new law seems to set a compromise that allows the tax to be imposed at a 40% rate, but again, it will only apply if the value of the estate exceeds the exemption of $5,250,000.
Under the federal estate tax, the rules have always been applied to allow tax-free transfers to a spouse (as long as the spouse is a US citizen) or to charity (as long as the charity is ‘qualified’, generally called an IRC 501(c)(3) charity). The tax has only applied to transfers to other beneficiaries and only if the value of the estate exceeded the sum, now known as the ‘Basic Exclusion Amount’ (formerly the ‘applicable exemption’ or ‘unified credit’ amount) which is the $5,250,000, indexed for inflation. As a result of these changes, many clients will no longer be subject to the federal estate tax and will no longer need federal estate tax planning. Unfortunately, as with any ‘permanent’ law, it is really only ‘permanent’ until Congress meets again. However, it seems relatively likely that the estate tax exemption will remain at $5,000,000 or above for a foreseeable time, however, it is hard to speculate what the law will be in the year 2025 or 2035. Unlike income tax planning, where a tax year ends each calendar year, the estate tax applies at the time of a taxpayers passing. As such, planning can become more complex as most people do not know when they will pass or what the size of their estate will be at that time.
Two additional outgrowths of the 2010 Tax law were also made permanent in 2012, the rules for gifting and the new rules for “portability” of estate tax exemptions. The estate tax is really a ‘wealth transfer tax’ in that it looks at cumulative transfers of wealth over time, culminating when an individual passes. Each year a taxpayer can gift an “annual exclusion” amount (now, for 2013, $14,000) to as many donees as they would like without impact on this wealth transfer tax regime (the estate and gift tax). Gifts in excess of this annual exclusion are “taxable” gifts in that they count to use up a portion of the persons exemption amount, the ‘Basic Exclusion Amount’ (the “BEA”). Before 2010, donors could gift taxable gifts up to $1,000,000 before gift tax would be due. The 2010 tax act unified the amount that could be gifted during life and at death at the $5,000,000 (indexed) threshold. Under ATRA 2012, this gifting ability has been permanently unified. Thus, before paying gift tax, an individual’s “taxable gifts” must exceed the BEA threshold and that is after the $14,000 annual exclusion gifts. Thus, the ability to gift large transfers of assets seems to be relaxed for the foreseeable future. This gift tax exemption will be useful for families seeking to transfer a family business or farm or valuable vacation home without gift tax. Before a large transfer of wealth, care should be taken because of the way that the income tax is coordinated with the estate tax.
A second aspect of the 2012 ATRA is called “portability” of estate tax exemptions. In the past, a spouse could leave assets to a surviving spouse without tax; however, that transfer would waste (not utilize) the estate tax exemption of that predeceasing spouse. Thus, many planners would suggest that families leave assets to a trust (generically referred to as a ‘credit shelter’, ‘bypass’ or ‘family’ trust) for the surviving spouse to ensure that the exemptions of both spouses/parents are used and that twice the amount of the exemption can be shielded from estate tax. However, now that the estate tax exemption is “portable” this planning may not be needed. Family should still consult with counsel on whether a trust or portability is better for their plan as additional restrictions apply.
NEW JERSEY ESTATE TAX
The State of New Jersey imposes not only an inheritance tax, but also an estate tax. The New Jersey estate tax has been in place since 2002 and treats individuals as if they passed away December 31, 2001 – before the operative provisions of repeal of the federal estate tax took effect. See N.J.S.A. 54:38-1 et. seq. At that time, the federal tax collected was shared with the state of a decedent’s residence known as the State Death Tax Credit or “SDTC”. I.R.C. §2011. In other words, in 2001, the federal tax computed under I.R.C. §2001 was shared with the state of a decedent’s residence. The imposition of the New Jersey estate tax was designed to allow New Jersey to continue to collect revenue which would have been collected had the federal government not taken the steps that it did to repeal the estate tax in the 2001 EGTRRA.
One provision in EGTRRA was the provision that after 2001, the tax collected was not shared with the State of a decedent’s residence. In other words, because the 2001 New Jersey estate tax was “coupled” to the federal tax, the effect of the federal act repeal was to decrease State estate tax revenue. Therefore, in July 2002, the State Legislature passed, and the Governor signed into law, amendments to N.J.S.A. 54:38-1 that “decoupled” the New Jersey estate tax from its federal counterpart and provided that State taxes would be computed in accordance with the federal state death tax credit (SDTC of IRC 2011) in effect on December 31, 2001, which was $675,000. See N.J.S.A. 54:38-1a(2). The statute was made retroactive to January 1, 2002.
During the decade of the 2000’s New Jersey taxpayers continued to follow federal law in arriving at the tax computation. A rule developed that taxpayers needed to be consistent in federal elections when federal taxes filing requirements were to be followed. If no federal return was needed, taxpayers could make tax elections (as in marital deduction or alternate valuation election) as if they were filing a 2001 federal return. This was codified in the regulations. N.J.S.A. 18:26-3A.8. After the full “repeal” of the estate tax in January 2010, a first inquiry for New Jersey practitioners was: what effect would the repeal of the federal tax have on tax elections in the and implementation of the New Jersey estate tax for decedents passing away after December 31, 2009? On January 11, 2010, a letter was presented by Robert D. Borteck, Esquire to the New Jersey Division of Taxation asking for clarification to the New Jersey rules. By letter dated January 27, 2010, Fred N. Wagner, III writing for the New Jersey Division of Taxation, responded that all rules in place on December 31, 2001 would continue to be effective, notwithstanding any particular federal rule (or lack thereof). This fiction has been ratified by the New Jersey Courts. In Estate of Stevenson v. Director, Division of Taxation, 23 N.J. Tax 583 (Tax Court, 2008), the NJ tax court found that the estate is obligated to act as if the taxpayer fictitiously passed on December 31, 2001 and interpret the laws as in effect that date. The extent to which this “fiction” carries forward, remains to be seen. However, “portability” of estate tax exemptions did not exist in 2001 and accordingly, “portability” does not apply for New Jersey estate tax purposes.
One of the most significant tax benefits contained in the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (December 17, 2010) called “2010 Tax Law” is a concept known as spousal “portability” of estate tax exemption. This is now “permanent” by the ATRA 2012 but because it had previously been introduced to the tax law, there is more guidance based on this earlier precedent. The Treasury issued Temporary Regulations in 2012. While “portability” initially received substantial attention in the estate planning community, the new approach initially received only tepid acceptance. Under “portability,” one spouse can leave any “unused” available exemption to a surviving spouse so that the surviving spouse would have a double exemption amount. In so doing, Congress has modified estate tax nomenclature. We once applied the “Unified credit” to eliminate estate tax. In 1997, this was changed to the “applicable exclusion amount.” Now, after 2010, we have the “Basic Exclusion Amount” or BEA.
When an individual passes away, the decedent will be entitled to a “Basic Exclusion Amount” or “BEA” ($5.250 million dollars in 2013). Indexed for inflation, this figure represents $5,000,000 in 2010 dollars. In the event that the spouse survived a prior deceased spouse, the survivor will also receive a “Deceased Spousal Unused Exclusion” or “DSUE.” As is indicated above, under “Portability,” the surviving spouse will receive the benefit of the deceased spouse’s unused exemption in future transfers. Unlike the BEA, the DSUE of a deceased spouse is not indexed for inflation. However, an analysis will be needed to determine whether it is better to utilize the DSUE or to place assets in trust for the surviving spouse, because the value of all property received from the “first” spouse will be stepped up (a second time) at the death of the surviving spouse. Recall that assets inside a trust established for a spouse will not be adjusted (or stepped up) at the passing of the surviving spouse by virtue of I.R.C. §1014. By contrast, the use of DSUE to shelter assets at the passing of the survivor would be adjusted, (presumably upward) even though less assets will be sheltered by DSUE.
THE PORTABILITY REGULATIONS
One of the sets of new regulations issued in 2012 was for “portability” of estate tax exemption. Under I.R.C. §2010(c)(6), the Treasury is granted broad authority to issue regulations to implement the new spousal “portability” of estate tax exemptions. After soliciting comments, the Temporary Regulations were released and then generally they take in a very “pro taxpayer” approach. As “Temporary Regulations,” they must be followed. In 2012, the new IRS Form 706 was released and it contains the election (part 3, page 2 and the draft computation schedule part 6, page 4).
I.R.C. §2010(c)(5)(A) requires that the portability election must be made on the deceased spouse’s estate tax return that is “timely filed,” including extensions. Thus, within 15 months of a decedent’s passing, an estate tax return must be filed (9 months from the date of death plus 6 months for extension). The return requirement creates a tremendous trap for the unwary because many spouses, particularly with the relatively high $5,000,000 exemption threshold, will feel that the aggravation and expense of filing an estate tax return is unnecessary.
The rules for DSUE became effective for decedents dying after January 1, 2011. The estate tax return due date remains 9 months after the date of death. Thus, the returns for the 2011 decedents would be due October 1, 2011, 9 months after death. So, when did the IRS release the 2011 estate tax return for 2011 decedents? September 29, 2011, a mere 2 days before due! Initially, the return made no mention of portability – just file as normal and the remaining exemption would be “deemed” transferred to the surviving spouse.
Trap for Unwary
The requirement to file a return creates a significant trap for professional advisors. Clients will seek advice not to file a decedent’s estate tax return (IRS Form 706). If the return is not filed, and the survivor subsequently passes away with an estate in excess of the tax exemption limit (whatever it may be), the family may question (second guess) the advice not to file to preserve the first decedent’s exemption. The filing question will be heightened for New Jersey estates where, presumably, the information was compiled and available for the New Jersey return. If the portability election is not made, disgruntled heirs of a surviving spouse may question the advisors.
What is a “timely filed” return? Recall that a return of a decedent is “due” 9 months after death, but an extension for an additional 6 months can be easily obtained. I.R.C. §6018(a). However, the requirement to file a federal estate tax return only applies if the estate exceeds the filing threshold (now $5,250,000 for 2013 decedents). Thus, is the return really “due” at all if the threshold for exemption is not exceeded? The Regulations’ answer to this question is yes. Treas. Reg. §20. 2010-2T (a)(1). The timing requirement for filing a return applies to all estates electing portability regardless of size.
“Complete and Properly Prepared” Returns
In order to elect portability, the filed return must be “complete and properly prepared.” Treas. Reg. §20. 2010-2T (a)(7)(i). An executor cannot simply file an inadequate report to preserve the exemption, while avoiding the expense of proper return preparation. Why? Values disclosed in the return will be important to determine the exemption and DSUE that is claimed.
D passes away in 2012 with a Will that gives his stock in “X Co” (his closely held corporation) to his son S and the balance of the estate to his spouse, W. S and W believe that X Co is worth $1,000,000 and therefore, the “portability” of DSUE will be $4,120,000 (the 2012 exemption of $5,120,000 less $1,000,000). Without a “complete and properly prepared return,” the IRS would be unable to determine whether these figures are correct.
Since most of the difficulty in preparing a return is in the preparation of valuation reports necessary, the Temporary Regulations allow a good faith estimate (with due diligence) if the value of assets qualify for the marital deduction. A “range” of dollar values will be produced so an executor can identify an asset as being with a certain range of a particular estimate. Treas. Reg. §20. 2010- 2T (a)(7)(ii). This special rule does not apply if needed to determine the amount that a particular beneficiary is to receive. For example, if the spouse receives 50% of the estate, exact figures (without estimates) will be required to determine the amount of the “non-marital” share.
D leaves his beach house to her spouse, H. The executor can estimate the range of values for the beach house. However, if D leaves half of beach house to H and half to the children (or in trust for children), then we need to know the value to determine the exemption used and available DSUE. If the distribution of the beach house has anything to do with the amounts necessary to determine remaining “unused exemption”, then value will be important. In that situation, it would probably be necessary for probate purposes anyway.
According to the regulation preamble, the 706 instruction “will provide ranges of dollar values and the executor must identify in the estate tax return the particular range within which gives the executor’s best estimate of the total gross value.” When the draft form, with instructions, were issued in August 2012, no such “ranges” were provided.
Electing Out of Portability
According to the Temporary Regulations, to elect “out” of portability, one must affirmatively say so on the estate tax return. That is a curious provision since “portability” is only received on an affirmative basis – by filing a return on a timely basis.
Could there be negative consequences to a mean or spiteful executor who “elects out” just so the surviving spouse cannot receive the tax benefit?
Suppose there is litigation between “C,” child of the deceased, and spouse “S.” If C is the executor and “opts out” of portability just to preclude S from obtaining the DSUE, and if later damages are incurred by S’s heirs, could C be liable for damages in the form of increased taxes? Since this is a new rule, obviously, no such case has reviewed the situation. However, from a legal perspective, does C owe a duty to S? Is the tax attributed a benefit (or asset) to the deceased’s estate that must be preserved, if it is possible?
Executor Must File
It is the executor, not the spouse receiving the tax benefit, that is to file IRS form 706 and make the portability election. The election remains a function of preparation of the 706 tax return. This can be problematic because the spouse will receive the tax benefit of the portability election, whereas, it is the executor who must incur the time, aggravation and expense of making the election and preparing the return. If no executor is appointed, the person in actual or constructive possession of the decedent’s property can elect portability but, it cannot supersede another election made. This may be useful in jurisdictions, like Florida, where a Revocable “Living” Trust is used to avoid probate and no executor is appointed.
Computation of the DSUE
The Temporary Regulations did not prescribe a method for computing the election. However, the regulations contain a suggestion that the return include a schedule stating how DSUE was compiled in August. The draft Form 706 was released and we now have the IRS version of how to complete the unused exemption – at least in draft. The form provides:
Note, payment of gift taxes preserves the exclusion.
Finally, Part D of the form shows how the DSUE was obtained by a surviving spouse. Strange as it seems, the form allows for TEN predeceased spouses!!!
Gifting Plans by Surviving Spouse
A spouse is permitted to use DSUE to shelter future gifts. According to 20.2010-2T(1) and 20.2010-3T(c)(1), immediately after a spouse has passed, the DSUE is available to the survivor for gifting. This means that the spouse does not have to wait until the return is filed to avail herself or himself the benefit of the DSUE. Remarriage by a spouse does not change the identity of the “last” deceased spouse. When making gifts, the surviving spouse is subject to an ordering rule that mandates use of the DSUE of a deceased spouse first. However, in a pro-taxpayer rule, DSUE can permit large gifts of DSUE without the exposure that the DSUE and BEA could go down by subsequent remarriage. In fact, the Regulations permit a carryover of DSUE from spouse to spouse. The example in Treas. Reg. §20.2010-3R(b)(2) bears this out:
H1 passes in 2011 and $5 million of DSUE is transferred to W. W makes taxable gifts of $2 million reducing her exemption to $8 million ($5 million plus $5 million equals $10 million, less $2 million in gifts). W remarries H2, who passes away with $2 million of DSUE remaining to pass to W. The Regulations say that $9 million is sheltered from tax at W’s death. W’s $5 million BEA, the $2 million dollar gifted DSUE amount from H1 that was used, and the $2 million DSUE remaining from H2.
One negative consequence of this rule occurs for the taxpayer concerned that the estate tax exemption may go down in the future. He/she may want to gift their own BEA and preserve the DSUE of the predeceased spouse for the future. This approach does not appear to be permitted.
H passes in 2011 and W receives a $5,000,000 DSUE allowing her to make $10,000,000 in gifts ($5,000,000 DSUE plus $5,000,000 BEA). If W is concerned that her own BEA may be reduced, she may choose to gift her $5,000,000 BEA, that way, if the BEA was later reduced to $1,000,000, she will preserve her DSUE. As stated, this would not work as she would be forced to use DSUE.
Statute of Limitations
Under I.R.C. §2010(c)(5)(b), the IRS has the ability to review the estate tax return of a surviving spouse to review the DSUE computation from the first spouse. This keeps open the DSUE computation until the death of the survivor. The IRS may adjust or eliminate the DSUE, but the IRS cannot assess tax against the first estate.
H passes away in 2011 leaving the family business, claimed to be worth $4 million, to the children. The DSUE is computed to be $1 million ($5,000,000 less $4,000,000). When the surviving spouse passes, the business valuation is agreed to be higher, like $6 million. The IRS cannot assess tax against H, if time to assess has passed, but the IRS can eliminate the remaining $1,000,000 DSUE claimed by the spouse.
QDOT’s, Non-Citizens and Credits
The provision that deals with how to account for tax credits, such as credit on prior transfers (I.R.C. §2013), creditor foreign death tax (I.R.C. §2014) and for tax on remainders (I.R.C. §2015) were reserved. Non-citizen/non-residents cannot generally use portability. The Qualified Domestic Trust rules (for a non-citizen surviving spouse) are beyond the scope of this outline; however, DSUE is compiled on a preliminary basis and is completed on the death of the surviving spouse. Thus, the surviving (citizen) spouse cannot use DSUE against his/her lifetime gifts.
PORTABILITY AS A “GAME CHANGER”
On many national discussion panels, it has been said that “portability” is a “game changer”. Why? With the concept of portability of estate tax exemption, it is generally thought that the use of a “credit shelter trust” would be substantially diminished because of the availability of the income tax concept of “step-up” in income tax basis in assets held by a decedent. More specifically, Section 1012 of the Internal Revenue Code defines the “basis” of an individual’s asset for purposes or resale as the cost. For example, if an individual acquires stock worth $10 and later sells that stock for $100, the taxpayer will be forced to pay income tax (called capital gains) on the difference between the sales price and the “basis”. Historically, there has been a differential between the rate of taxation on capital gains from other types of “ordinary” income earned by a taxpayer.
A major exception to Internal Revenue Code § 1012 occurs when an individual passes away holding a capital asset. Under IRC §1014, the basis is “stepped-up” or adjusted to the fair market value at the time of a decedent’s passing. In other words, in the example above had a decedent held the shares until death, the beneficiary would be able to adjust the basis from the original of $10 cost to the value on the date of death, or $100. Thereafter, the beneficiary would be free to sell the property at that price without incurring a capital gains tax. Of course, should the value fluctuate thereafter, either up or down, gain or loss would be measured from that relevant point in time.
Why does portability change estate plans? In the event a married couple holds assets between them and is given a choice of placing assets in a trust in order to capture the estate tax exemption of both spouses, the basis would be adjusted or “stepped-up” to the fair market value on the date of death of the first or predeceasing spouse. However, the basis would not receive a second step-up to occur at the death of the surviving spouse. As a result, if there is substantial appreciation between the first death and the second death, that appreciation would not be subject to estate tax however, it would be subject to an income tax on liquidation of the underlying investments.
As a result of the opportunity to receive a second “step-up” in income tax basis, some trust and estate planners have recommended that clients forego the use of a trust for the benefit of the surviving spouse/surviving parent because portability affords the family the right to receive the benefit of the estate tax exemption while simultaneously receiving an opportunity to receive a second adjustment or “step-up” in the income tax basis in all assets at the death of the surviving spouse/surviving parent.
Historically, when considering a plan for spouses, the “Credit Shelter” or “By Pass” type trust was consider in order to utilize the exemptions of each spouse. This trust can, i) allow the survivor to be sole trustee; ii) grant the survivor the right to all income; iii) grant the spouse the right to principal for health, maintenance and support in reasonable comfort (the so called “ascertainable standard”); iv) grant the spouse a right to withdraw the greater of 5% or $5,000 (whichever is greater); and finally, v) give the power to re-allocate funds in the trust among a “special” or “limited” class, called a special power of appointment. Even with these powers the trust is not “included” in the taxable estate of the survivor, thus generating the tax savings by “sheltering” the credit (or exemption amount) of the first spouse to pass away. In other words, if the exemption of one spouse is sheltered by one exemption, the survivor’s exemption is available to shelter additional assets from tax. The trust can be crafted with fewer powers and rights depending on the family situation. However, because the trust was not included in the estate of the survivor, the basis would not be adjusted or stepped up.
New Jersey continues to impose an estate tax on the value of estates in excess of $675,000. Therefore, if a family was to forego New Jersey estate tax planning in favor of the use of portability of estate tax exemption, the opportunity to receive a second “step-up” in income tax basis would be available. However, then the New Jersey estate tax plan would be upset. First, if all assets are left to the surviving spouse then the possible use of the $675,000 exemption threshold of the predeceasing spouse is lost. Second, the New Jersey estate tax imposes a graduated rate structure on the value of assets subject to tax and thus, by combining the entire family estate base in the name of the surviving spouse, the marginal bracket will impose a greater overall cost. Moreover, to the extent that the value of assets appreciates over the lifetime of the surviving parent, the additional appreciation will be subject to New Jersey estate tax which could have been otherwise avoided. Thus, an estate planning dilemma confronts the New Jersey estate planner when considering the opportunity to rely on “portability as a game changer” in order to minimize income tax costs while simultaneously looking for an approach to minimize the New Jersey estate tax costs. It should be noted that the New Jersey “basis” for purposes of New Jersey income tax planning “piggybacks” or caries over from the federal “basis”. Thus, not only is the income tax reduced for federal tax purposes, it is reduced for New Jersey income taxes as well.
For families with larger estates, (e.g., with the possible application of the federal estate tax) the credit shelter trust may be an appropriate vehicle in any event. If we assume that the income tax bracket on appreciation (resulting from a capital gain rate differential) is lower than the 40% marginal estate tax bracket, there would be an advantage to a family to opt for estate tax savings over income tax savings. For example, suppose Client C with a $20,000,000 estate passes away survived by Spouse S. If $5,250,000 in assets are placed in a trust, and those assets appreciate substantially, a family would likely be better off paying an income tax on the appreciation on subsequent liquidation rather than subjecting the appreciation to added estate tax at a 40% rate.
One of the important points to be reiterated about the concept of portability is that the exemption threshold has been indexed for inflation. By contrast, the spouse’s exemption (called DSUE) does not likewise increase. In the example above, had the assets held in the $5,250,000 trust appreciated to $10,000,000 the $4,750,000 could be subject to income tax at say 20% or 30% (when factoring in both federal and state taxes). By contrast, if the appreciation were subject to an estate tax, the additional estate tax on the appreciation would be imposed at a 40% rate. The DSUE exemption would ‘only’ shelter the original $5,250,000 investment rather than the entire investment plus appreciation. More importantly, an income tax incurred on a capital gain can be deferred over time, upon liquidation of assets, whereas the estate tax would continue to be due nine months after the date of the decedent’s passing. Finally, the family may have other opportunities to offset the gain by capital losses to reduce the overall tax expense.
When considering plans for New Jersey couples, the concept of “portability” of estate tax exemptions has presented difficult choices for our clients and made the explanation process far more complex. In order to advise a family about the benefits and burdens of planning for the estate tax when integrated with the income tax nuance, the advisor must present the material in a fashion which gives the family an opportunity to make clear choices. Should the “credit shelter” trust be employed or should the family forego the “credit shelter” trust and merely rely on portability.
TO CREDIT SHELTER OR NOT TO CREDIT SHELTER
One solution to the question of how to plan involves a tried and tested planning technique – flexibility, flexibility, flexibility. Building flexibility into an estate plan is an approach which has long been advocated, not only because the value of assets fluctuate from the time of implementation of the estate plan, but also the tax law has the political winds pushing for change. As indicated above, the Congress in 2012 can declare the estate tax exemption “permanent” however, for clients that hope to live 10, 15, 20 and 30 years more the option for maintaining flexibility in the family estate plan is appropriate.
One possible solution to the dilemma would be to use the credit shelter trust in the planning phase. The trust should provide exclusively for the surviving spouse such that the survivor has the right to all income (and the requirements for a ‘qualified income interest for life’ are met). Under I.R.C. §1014(b)(10), a family can choose to place assets in a trust when the first spouse passes and, if an election is made to elect “Qualified Terminable Interest Property” (“QTIP”) treatment under §2056(b)(7), the trust can receive “step up” in basis at the death of the survivor. Thus, this plan would give the surviving spouse/surviving parent an option of determining whether or not it is better to utilize a credit shelter trust to remove assets from the survivors estate or elect portability at the death of a predeceasing spouse.
At the time of the death of the first (or predeceasing) spouse, the executor can be granted the option to determine, when filing an estate tax return, on whether or not to incorporate the benefits of § 2056(b)(7) of the Internal Revenue Code which would grant the estate a “marital deduction” over assets held in trust. In that event, the estate tax rule would treat the inherited assets as if they were owned by and property of, the surviving spouse. In that event, the DSUE (the portable estate tax exemption) can carry over to the surviving spouse. However, for income tax purposes the family can would be afforded the opportunity to receive a step-up in income tax basis occurring at the second death.
By contrast, should the family choose to utilize the alternate approach whereby the credit shelter trust is funded and the assets are excluded from the estate of the surviving parent. In that case, no election to qualify under Section 2056(b)(7) of the Internal Revenue Code for marital deduction would be made. Moreover, this trust can be divided into separate shares whereby a share can be set up for $675,000 in value (to fully use the New Jersey estate tax exemption of the first spouse) or alternatively, the family could elect QTIP treatment over a smaller portion thereby causing a New Jersey estate tax at the lower graduated rates. Nevertheless, by setting forth a plan which calls for the creation of a credit shelter (or family) trust in the Will, a planner can be assured that the decision can be left for a later date to determine whether or not the portability and second step-up approach is warranted or whether the credit shelter plan (with the removal of all appreciation from the estate of the surviving spouse) would constitute a better approach.
ASSUMPTIONS ON WHICH PLAN APPROACH TO RECOMMEND
One of the difficulties with the possible use of portability for estates that will not be “taxable” under the federal law (because the combined estate is less the federal $5,000,000 exemption) is that there are many assumptions that need to be considered to determine whether a family plan should shelter the New Jersey estate tax exemption from tax or not. How long will the surviving spouse live? How much will the assets appreciate? To the extent assets appreciate, will they be sold to incur the income tax? Will the family continue to reside in New Jersey thereby subjecting the estate of the surviving parent to tax? What will the income tax rates be on any future sale? Will New Jersey always impose a tax?
The analysis outlined on Exhibit A details the findings of several possible outcomes. Suppose, for example, that a family estate is worth $1,400,000 (none of which is held in retirements accounts) and that the assets are expected to rise in value by 150% from the passing of the first spouse, until the passing of the survivor. Suppose the assets are balanced between the spouses and that a trust is created under each spouses Will in a format that could qualify for the estate tax marital deduction by making a QTIP election under § 2056(b)(7) of the Internal Revenue Code. Finally, assume a combined capital gain rate (state and federal) of 20%. Note: while capital gains rates to the heirs could be higher, this illustration assumes the heirs income is less than $400,000 where higher brackets begin. Example 1A and 1B illustrate the results of the tax consequences if the “credit shelter” option or QTIP option is selected. For ease of illustration, assume the NJ exemption is $700,000 rather than $675,000.
Under the first calculation (1A), the family would elect QTIP so that the income tax would be avoided at the second passing. The $1.4M would grow to $2.1M (150%) and the NJ estate tax would be $106,800. If however, the QTIP treatment was not used (1B), the NJ estate tax at the second death would be $36,000 and the income tax (assuming everything was liquidated and the heirs had no capital losses to offset the gains) would be $70,000 or $106,000 in total. Thus, the use of the trust neither cost nor saved the heirs funds.
In illustrations 2A and 2B, the facts are similar, but the spouses also hold a $1M Individual Retirement Account (IRA) that is either in the name of the survivor or “rolled over” into the name of the survivor. It is assumed that this IRA investment does not grow, perhaps it is used for the support of the survivor. This additional IRA factor pushes the survivor into a higher estate tax bracket with no corresponding benefits of “step up”. This scenario produces a $190,800 estate tax in the QTIP plan (2A) but a total tax with the credit shelter trust of $173,200, a savings over almost $20,000!
Under scenario 3 (3A and 3B), the assumptions are the same as #2 except the “after tax” assets are twice as large- $1.4M each and, once again the $1M IRA does not grow. This example requires payment of estate tax to NJ at the passing of the predeceasing spouse to shelter the entire balance of the estate from tax at the “second” passing however, in a simple illustration, it does not account for time value of money. Nevertheless, the example results in about $25,000 more in tax when the QTIP election is made.
In the second series of illustrations, the growth on the assets is 200%, not 150% but otherwise the examples mirror 1, 2 and 3. With that, the additional income tax on gain causes the QTIP approach to be favored over the “credit shelter” approach. Once again, however, remember that, to some extent the capital gain tax is voluntary- it is only paid when (if) an asset is sold. Depending on circumstances, some assets (like a vacation property) may never be sold.
What lessons can be learned from this analysis? Flexibility remains key. Some clients may (should) consider retaining credit shelter trust “plans” so that options are available to reduce tax. The use of an “I love you” simple Will (e.g., all assets to the survivor) may not be the best approach for New Jersey families. The use of the trust, or even a disclaimer trust plan (where the trust is only funded by the operation of a “qualified disclaimer” pursuant to IRC § 2518) can preserve options for the future.
THE REVENUE RULING 2001-38 AND PLR 201131011 “PROBLEM”
Since the creation of the New Jersey estate tax in 2002, practitioners have considered the impact of a pre-existing Revenue Procedure Rev. Proc. 2001-38, 2001-24 IRB 1335, 2001-1 C.B. 1335, and its impact on New Jersey estate taxes. During the 1990’s the IRS changed the format for the means of making a “Qualified Terminable Interest Property” “QTIP” election on several occasions, sometimes with a double negative. Often, the IRS was confronted with a circumstance where decedent’s estate made a QTIP election over a trust for the benefit of the surviving spouse even though the amount contained in the trust would and should be sheltered (or exempted) from estate tax by virtue of the decedent’s available exemption. At least one form of the election Schedule M to Form 706 contained a double negative which confused taxpayers to the extent that an inadvertent QTIP election could cause the trust to be taxed as part of the estate of the surviving spouse under I.R.C. §2044 even though no federal estate tax benefits were achieved at the first death. Accordingly, the IRS issued a ruling to indicate that where no tax benefit is achieved by making a QTIP election, the QTIP election would be ignored. Specifically, at issue in Rev. Proc 2001-38 was a situation where a trust would be sheltered the decedents by exemption. The Ruling held that the QTIP election would be ignored and the surviving spouse would not be subject to estate taxation on the trust contents if no tax benefit will be achieved.
Subsequent to the 2002 enactment of the New Jersey estate tax, planners began to question whether a “state” QTIP could be made without the ancillary inclusion of the trust assets in the estate of the survivor for federal estate tax purposes.
Suppose the decedent died in 2002 when the federal exemption amount was $1,000,000 and the state estate tax exemption amount was $675,000. If the decedent’s estate was worth $900,000, the family could choose to make a QTIP election for the excess over the New Jersey state threshold. Under Rev. Proc 2001-38, no tax implication would be created by virtue of a New Jersey QTIP (in this exact circumstance, because no federal exemption were claimed, the property might not be subject to estate tax on the death of the surviving spouse).
Suppose the estate was worth $1,100,000. If an estate made a federal QTIP election on $425,000, would only $100,000 be taxable to the survivor or would the entire $425,000 be subject to tax. Most believed that $425,000 would be taxed because the election made was not inadvertent. It was intended and it did, in fact, save state taxes.
Most planners believed that a Rev. Proc 2001-38 position to exclude a QTIP trust from the estate would not be positive. This was a ruling which was, in essence, a “mercy” ruling to eliminate the negative impact where no positive benefit was received. The New Jersey Division of Taxation was concerned with this (calling it the “nullity rule”) in which New Jersey would lose tax revenue by an inconsistent position by a taxpayer.
PLR 2011 31011
In a 2011 Private Ruling, 2011 31011, the question presented to the IRS was a circumstance where the family was planning for the state estate tax. While the exact facts are not known, it appears to be a circumstance with a state tax similar to New Jersey. In the ruling at hand, the decedent created a State Credit Shelter Trust ($675,000, if she had resided in New Jersey) and a QTIP trust for the benefit of the spouse for the balance. The estate requested two opinions from the IRS. First, whether, by making a QTIP election, the estate of the surviving spouse would be deemed to have made a federal QTIP election thereby causing the property to be taxable as part of the estate of the survivor. Second, would be the property in the trust be included in the estate of the surviving spouse/surviving parent.
The IRS found, based upon Rev. Proc 2001-38, that the estate could not make a QTIP election because no federal estate tax benefits were achieved through the election. Accordingly, the IRS ruled that the property would not be subject to estate tax in the estate of the surviving parent for federal purposes at the death of the survivor.
This ruling could have negative consequences to a New Jersey decedent where the family would like to defer the New Jersey estate tax until the death of the surviving spouse. In this circumstance, the private letter ruling (binding only on the taxpayer who requested and received it) could not make a QTIP election on the balance between the state exemption $675,000 and the federal estate tax exemption threshold.
This position could impact many New Jersey taxpayers as it is very common for families to consider deferring the New Jersey estate tax on the excess over the state exemption amount. Moreover, now that many more clients’ estates will seek to receive the benefits of estate tax portability by filing a federal return, this circumstance may be exasperated.
Pursuant to this ruling, the New Jersey Division of Taxation could take the position that all amounts between the federal and state exemption are taxable at the first death (that no QTIP election can be made). In the event that the Division were to begin taking this position, it could be at odds with the New Jersey Tax Court decision in Estate of Stevenson v. Director, Division of Taxation, 23 N.J. Tax 583 (2008). In Stevenson, the Court held that the New Jersey estate tax is a fiction whereby we specifically look at the circumstances that would have existed on a 2001 estate. Thus, if New Jersey were to deny a marital deduction, an argument could be presented that had the decedent died with a federal taxable estate in excess of the New Jersey $675,000 exemption amount, a QTIP election would have been claimed and should have been permitted.
Now that the focus has shifted from the estate tax to the income tax aspects of a QTIP election, is the analysis different? Maybe, maybe not… In other words, could a NJ QTIP election be made with the expectation and presumption that the basis would step up and with the IRS arguing that the basis step up is denied because IRC § 1014(b)(10) is inapplicable because no federal QTIP was elected? Two thoughts should be considered. First, if the QTIP election is made on the federal return (that is required in order to elect portability of DSUE), a federal election would have been made (even if sheltered by BEA of the first decedent). Second, the Revenue Ruling is a “mercy” ruling, upon which taxpayers can rely, that was designed to help taxpayers against inadvertent elections. It provides that the “mercy ruling” protection would not apply if the election were intentional, where for example a partial QTIP election was made. In the case of NJ taxpayers, the election would be intended and in many cases, a partial election (e.g., the amount over $675,000 in value) would be made. Thus, at this juncture, many estate tax planners and tax lawyers that this author has discussed the subject with feel comfortable that the “problem” will not prevail as a “problem”.
A second tax planning opportunity considered by some planners would consider the creation of a credit shelter trust at the death of the predeceasing spouse, with an opportunity to terminate or “bust” the trust at some time during the intervening life of the surviving spouse or parent. The objective would be to allow trust assets that have appreciated in value to be dispersed to the survivor, thus, available for step-up as an assets held in the estate of the surviving spouse/parent. Is it appropriate to give an unrelated third party or uninterested trustee the power to terminate the trust and distribute the property either to the spouse as income beneficiary or alternatively to commute the interests in the trusts and pay ratable shares to the life beneficiary and remainder beneficiaries? This option or power could defer the decisions even longer. When confronted with this consideration, planners must be mindful that the “power to appoint” can also be viewed as a “power to disappoint”. As such, careful, very careful, consideration may be needed in order to opt for a plan that will allow for the early termination of the trust. In many family circumstances the use of a trust carries not only the tax implications, but also beneficial non-tax rights to protect the assets for the benefit of the remaindermen. Accordingly, creating a trust that grants a third party the opportunity to disperse or terminate a trust should only be done with caution.
Suppose a trust provides that assets are to pass to A, B and C, the decedent’s children at the death of S, the surviving spouse. Suppose further, that the trust assets are appreciated and the capital gain tax to be generated is greater than the NJ taxes to be incurred. Finally, suppose S is on her deathbed and will no longer need the trust funds. Generally, assets cannot be placed in a decedent’s name within one year of death and still produce a desired “step up” in income tax basis. See IRC § 1014(e). On closer reflection, IRC § 1014(e)(1)(B) states that the denial of step up only occurs where the property is acquired “from the decedent by… the donor of such property”. Thus, even though A B and C would acquire the appreciated property at S’s passing anyway, this provision would not create a bar to step up.
If a family is considering terminating a trust during the life of the surviving spouse, care could also be given to relieving the trust from the burdens of a “spendthrift” clause. One common trust term provided in many trusts is that a trust beneficiary has no ability to alienate or terminate the trust. Such a provision is beneficial because it would also prevent the creditor to a beneficiary from attaching trust assets. There is authority in New Jersey which would negate the ability of a trustee and trust beneficiaries from terminating a trust if the trust contained the so-called “spendthrift” trust protective provision. See Heritage Bank- North v. Hunterdon Medical Center, 164 N.J. Super. 33 (App. Div. 1978); In re Estate of Bonardi, 376 N.J. Super. 508 (App. Div. 2005); But see, In re Will of Ransom, 180 N.J. Super. 108 (Ch. Div. 1981). Moreover, if such a consideration is to be utilized, an advisor should be careful to consider the non-tax implications of the issue and perhaps discuss the potential implications of trust termination with the donor.
CREATING “GRANTOR TRUST STATUS”
It has become popular and useful for many donors to create a “grantor” trusts. A “grantor trust is a trust that, for income tax purposes is the alter ego of the donor, causing the donor to report all income of the trust as his/her own. This occurs because of the application of IRC § 671 through § 679 by retaining certain enumerated ‘strings’ over the trust. While beyond the scope of this outline, trusts can be removed from the donors estate for estate tax purposes while also still “grantor trusts” for income tax purposes. Moreover, paying the income tax on trust earnings does not result in a “gift” for tax purposes even though the economic benefits to the earnings passes to the trust beneficiaries. See Revenue Ruling 2004-64. This arbitrage has resulted in popularity of these trusts because i) donors can sell assets to the trust without incurring income tax gain, ii) donors can substitute assets for equivalent value and iii) the income tax effects can often be ‘turned off’ when payment of the income tax is no longer desirable. Where a trust holds appreciated assets and the donor can reclaim them into the estate with income or estate tax ramifications, the tax planners can obtain a step up but putting them back to the donor before he/she passes. However, these benefits had not gone unnoticed by Treasury. In fact, current Treasury proposals could change these rules.
Because of the power of grantor trust status, a brilliant article by Blattmachr, Gans and Zeydel has proposed making the traditional “credit shelter” trust into a “super-charged credit shelter trust” one in which the trust is a grantor trust to the surviving spouse. Blattmachr, Gans and Zeydel, “Super Charged Credit Shelter Trust,” Probate and Property, p.52 July/August 2007. The details of this technique are beyond to scope of this article and the technique itself may be too complex for the smaller estate plans. However, are there easier considerations that could be used to allow a credit shelter trust to become a “grantor trust”? By creating a “grantor trust /credit shelter trust” can we preserve the opportunity to remove appreciated assets from the “credit shelter” so that they can be returned to the estate of the spouse (in order to preserve step up)? “Busting” the trust might be an option but that would return the entire value to the survivor. Substituting assets from the trust to the spouse keeps them from the estate of the survivor (saving the estate tax) but allowing the step up. Of course, the devil may be in the details if the survivor holds only appreciated assets as well. But, can it be accomplished?
The ‘grantor trust’ rules make the grantor the owner for income tax purposes, and that grantor, for a credit shelter trust, would be the decedent, not the surviving spouse. Further, IRC § 677 is where the grantor trust rules make the ‘spouse’ of the donor the grantor. However, if the spouse is the surviving spouse, he/she is probably not the “spouse” pursuant to that provision. Thus, we must turn to the one situation where someone “other” than the grantor is the deemed “owner” for income tax reasons under the grantor trust rules.
Under IRC § 678 a person is deemed the owner of a trust over which he/she has a power of withdrawal. This status remains as grantor where that power lapses. Moreover, in many credit shelter trusts the surviving spouse can hold the power to withdraw the greater of 5% of the trust corpus or $5,000 without adverse tax consequences (the so called 5 by 5 power). Recall that IRC § 2041(b)(2) and § 2514(e) statutorily protect the lapse of a withdrawal right from having estate or gift tax consequences to the surviving spouse. Thus, where a spouse holds a ‘5 by 5’ power, a credit shelter trust will make or become a grantor trust over time at a rate of 5% per year. This may not seem like a lot but the author would submit that assets may not grow instantaneously either. If over time, assets appreciate and the trust becomes a Grantor trust to the survivor, a planning opportunity may be presented to the family. This approach (the gradual creation of grantor trust status) has been espoused by a number of private rulings. See PLR 200022035 and PLR 200104005. It has also been used for the lapse of a “crummey” withdrawal right. See PLR 9541029.
In the end, the use of a “credit shelter trust” while the family is in the planning mode, e.g., meeting with a lawyer to establish a plan, leaves open the opportunity to opt for the income tax benefits associated with portability of estate tax exemptions or the use of a credit shelter trust to produce the time tested estate tax benefits. Moreover, the ability to make partial “QTIP” trust elections gives the option to the heirs to decide the state of the estate tax law in the future, when more may be known about the law, the size of the estate and the potential that planning for the NJ estate tax will be a factor. For decades, clients have felt comfortable with the use of the trust and changing political tides should not alter that sense of comfort.