2012 will be the last year where the transfer of wealth between family members will increase dramatically because of the $5 million lifetime gift tax exclusion per person, or $10 million between couples under current law. I have referred to the additional $4 million as “Monopoly money” from Congress due to this unexpected increase for gifting purposes. Prior to 2011, the lifetime gift tax exclusion amount was $1 million dollars. In 2013, the $1 million gift and estate tax exclusion amounts returns again under current law. It also is the last year where a surviving spouse can use the unused estate tax exemption of a deceased spouse (“Portability”).
In a recent article by GEORGE A. DASARO entitled “TAX PLANNING STRATEGIES FOR ESTATE AND GIFT TAXES” he discussed the benefits, drawbacks and potential planning for 2012. Portions of his article are set forth below. In a 4day seminar that I attended in October 2011 there was a discussion about what, if anything, will be carried over into 2013. Portability seemed to be one planning opportunity under current law that very well may survive.
Portability. Portability allows a surviving spouse to retain the unused estate tax exemption of a deceased spouse who dies after 12/31/10. This carryover estate tax exemption is also known as the “deceased spousal unused exclusion amount” and is in addition to the surviving spouse’s own estate tax exemption.
Example. Assume that Henry dies in 2011, having made no prior taxable gifts and leaving separate assets of $1.5 million to Wendy, the surviving spouse. An election is made on Henry’s estate tax return to permit Wendy to use Henry’s unused exemption. As of Henry’s death, Wendy has made no taxable gifts. Thereafter, Wendy’s applicable estate tax exemption under the new portability rules is $10 million, the sum of Henry’s unused exemption ($5 million) plus Wendy’s estate tax exemption ($5 million), which she may use for lifetime gifts or transfers at death.
Valuation Discounts. Taxpayers who own closely held corporations, farms, partnerships, and other operating entities have traditionally used valuation discounts to reduce the value of assets for estate and gift tax purposes. Many other types of valuation discounts 18 have been recognized by the courts as valid criteria for reducing the fair value of assets. Two commonly used discounts are for marketability and minority interest ownership. A marketability discount recognizes that a closely held company often has no ongoing, readily accessible market for its securities. The purpose of the marketability discount is to compensate for the difficulty associated with liquidating this type of investment. A minority interest discount recognizes that a minority interest holder may have little or no control over the operating decisions or other initiatives of the company. The minority interest discount compensates for this lack of influence or control. These discounts can be substantial, in a few cases more than 50% of the value of the interest transferred. 19
Family limited partnerships (FLPs) have become a popular vehicle for reducing asset valuations for estates and gifts to future generations. Typically, older family members form a FLP or LLC by transferring the assets of the “family business” to the FLP or LLC in exchange for general and limited partnership interests. The limited interests, subject to transfer restrictions, were in turn given as gifts to family members who participate in the business. Because the FLP’s structure impairs the marketability of the business, the fair value of the limited partnership interests used for gifts is subject to discount.
There are a number of pitfalls, however, that can defeat this planning device. For one, after transfer, the assets transferred should not be used for personal purposes of the transferor (that includes use to pay estate tax for the transferor’s estate.) The partnership must observe all formalities and keep separate books and records. Partnerships in which the older generation maintains control are particularly subject to scrutiny, as are partnerships whose primary investment is in marketable securities.
Intentionally defective grantor trusts. An intentionally defective grantor trust (IDGT), coupled with an installment sale, is a popular estate freezing device for high net-worth taxpayers. A grantor creates and then gives low basis assets as gifts to an irrevocable trust that is created for the benefit of the grantor’s heirs, usually children or grandchildren. The trust is intentionally drafted to be excluded from the grantor’s estate, but to be considered owned by the grantor for income tax purposes.
Qualified personal residence trusts. A qualified personal residence trust (QPRT) is a statutorily permitted, 24 grantor-retained interest trust, but the corpus of the trust is an interest in the taxpayer’s residence. The grantor transfers a personal residence to a trust and retains the right to live in the home for a term of years.
Charitable lead annuity trusts. Charitable lead trusts (CLTs) are estate planning devices that enable taxpayers to provide funds for a charitable cause and transfer assets to heirs at reduced valuations. They are most appropriate when the taxpayer has an ongoing commitment to a charity and his or her beneficiaries are not in immediate need of the assets. The most common type of charitable lead trust is a non-grantor charitable lead annuity trust (CLAT). Publicized when Jacqueline Kennedy Onassis left the residue of her estate to a 24-year testamentary charitable lead trust, called the C & J (Caroline and John) Foundation. 33 The CLAT eliminated practically all estate taxes on her $100 million residue estate.
Conclusion. As discussed above, there are various estate planning strategies that can be employed to reduce the impact of estate and gift taxes on the transfer of assets to future generations. Most of these strategies are sophisticated and complex, and require the drafting of trust documents that use intricate legal language.