Gifts - To Report Or Not To Report

Introduction. Gifting is a fundamental part of our culture. Gifts to charitable organizations are typically reported on income tax returns where itemized deductions are claimed. Reporting on charitable gifts, especially of property other than cash, is a separate subject not covered by this newsletter.

Other the other hand, gifts for the benefit of family members are part of our culture and a key component of estate planning recommendations.

Quick Review. The annual gift tax exclusion is now $13,000 per year per donee. In other words, a single person can gift $13,000 to each of two children, for a total $26,000 in 2009. If each child is married and the spouse appears on the check, annual exclusion gifts would double to $52,000.

Present Interest. In order to qualify for the annual exclusion, the gift has to be a present interest such as cash or property. Gifts in trust typically do not qualify for the annual exclusion because full enjoyment is delayed by the terms of the trust. An exception to this rule would be trusts for minors under section 2503(c) of the IRC, or gifts under UTMA - the Uniform Transfers to Minors Act. In each of these cases,enjoyment of the property has to be transferred to the donee by age 21. The minor’s social security number is typically used on the account and any taxable income on the principal of the gift has to be reported on the minor’s income tax return.

When Should Annual Exclusion Gifts Be Reported on a Form 709 - Federal Gift Tax Return? If a spouse consents to treat half of the gift as being made by the non-donating spouse, the split gift with the consent of the non-donating spouse has to be reported on a Form 709, even if the gifts are annual exclusion gifts. Often this requirement is ignored because these are tax-free gifts, and the taxpayers expect that there is no penalty for failure to report. Moreover, taxpayers generally do not like to pay for filing tax returns that they consider unnecessary.

Potentially Taxable Estates. Who’s to know whether there will be a federal estate tax at death or at the death of a surviving spouse? The estate tax exemption is $3.5 million per person for 2009. Under current law, the estate tax goes away in 2010 and returns with the vengeance 2011. As we have indicated in other newsletters, our expectation is that exemption will continue at $3.5 million per person after 2009 (or possibly higher) when Congress addresses these tax issues in their overall review of tax legislation that is expected this year under the new administration.

Therefore, we advise higher net worth clients, with total marital assets in excess of $7.0 million, or $3.5 million for single individuals, to conduct their affairs and file information returns with the IRS to avoid future controversies and unnecessary taxes in the future. This especially means filing Form 709 for purposes of making disclosure to the IRS and starting the three year statute of limitations running so that gifting will not be challenged by the IRS many years in the future in connection with estate tax audits.

Lifetime Exemption. The lifetime exemption for tax-free gifts is currently $1.0 million per person (in addition to qualified annual exclusion gifts). Many higher net worth clients are taking advantage of this exemption by making gifts of appreciating property usually in trust. These gifts should always be reported on Form 709, along with proper appraisals if the property is other than cash or listed securities.

Section 529 Plans. Establishing qualified tuition plans (QTP or Section 529 Plans) offers the possibility of pre-funding annual exclusion gifts for five years. Thus, $65,000 can be contributed to a Section 529 Plan for each beneficiary. The contribution is allocated rateably over the five years and should be reported on a Form 709 Gift Tax Return. If a donor dies within the five year period, any unabsorbed portion of the exclusion is brought back to the taxable estate of the donor, if any. Despite this boomerang provision, we recommend pre-funding Section 529 Education Plans for grandchildren or great grandchildren as an essential and valuable part of estate planning techniques.

Crummey Withdrawals. A familiar technique for gifts in trust, especially life insurance trusts, is to give a potential beneficiary a limited right to withdraw a portion of the annual contribution so that such withdrawal amount can be counted against the annual exclusion gift for that donor and donee. Crummey Withdrawal provisions are another important weapon in the estate planner’s arsenal and can accomplish substantial estate tax reductions, assuming that a donor’s net worth puts him, her or them in the position of potential estate tax in the future. As with other types of specially qualified gifts, we recommend that Crummey Gifts be disclosed on Form 709, even though no tax is due, to prevent future attacks by the IRS.

Conclusion. If you have questions concerning gifting as part of tax saving strategies, or strategies for transferring wealth to future generations, please call Jim Modrall or any of the attorneys listed below.

Donald A. Brandt, Joseph C. Fisher, Thomas R. Alward, Matthew D. Vermetten, Thomas A. Pezzetti, Jr., Susan Jill Rice, Gary D. Popovits, H. Douglas Shepherd, Laura E. Garneau and David H. Rowe at (231) 941-9660
©BRANDT, FISHER, ALWARD & PEZZETTI, P.C.
This newsletter is provided for informational purposes and should not be acted upon without professional advice.