Wednesday, April 12, 2017

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Billionaire David Rockefeller, the grandson of John D. Rockefeller, passed away recently at the age of 101.  In 2017, Forbes estimated that his fortune, investments in real estate, share of family trusts, and other holdings were worth $3.3 billion.  However, because of his family history, it is quite possible that a large portion of that $3.3 billion will not be subject to the estate tax upon his death. (more…)

Monday, April 3, 2017

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Written by Emily Manns and originally posted on BryanCaveCharityLaw.com

Every year, the IRS issues its “Dirty Dozen” Tax Scams list, a compilation of tactics and devices used by scam artists against taxpayers.  While the threat exists year-round, the IRS promulgates the list ahead of filing season. As susceptible taxpayers prepare their returns, they face a higher risk of being targeted. (more…)

Monday, March 27, 2017

The following was written by Luke Lantta of Bryan Cave’s fiduciary litigation team and originally posted here

When the IRS enacted the portability election provisions in 2011, which allowed estates of married taxpayers to pass along the unused part of their estate and gift tax exclusion amount to their surviving spouse, it remarked that it “expect[ed] that most estates of people who are married will want to make the portability election. . . .”  But, to elect portability, an estate tax return must be filed in order to pass along the exclusion.  So, what happens when an executorrefuses to elect portability?  Take them to court, of course. (more…)

Monday, March 13, 2017

U.S. v. McNICOL
829 F.3d 77 (1st Cir. 2016)
(cert. denied 1/9/2017)

Trusts and Estates practitioners often focus solely on the Tax Code found in Title 26 of the United States Code and ignore other parts of the United States Code (U.S.C.). However, it is a mistake to do so as Marci McNicol learned first-hand. In this case, the Federal Priority Statute found in 31 U.S.C. § 3713 came into play to impose liability on Marci for the decedent’s unpaid Federal income tax liability.

Here, at the time of his death, the decedent owed over $300,000 in Federal income taxes. As a result of this and other liabilities, the decedent’s estate, which consisted almost entirely of interests in two closely held companies, was insolvent. Marci, the decedent’s widow, transferred decedent’s interest in one of the companies to herself even before the court had appointed her as executrix of the decedent’s estate. Once she was appointed executrix of decedent’s estate, Marci transferred the other company to herself. Both transfers were without consideration at a time when Marci knew of her husband’s unpaid tax liability. (more…)

Thursday, January 19, 2017

What he wants to accomplish vs. what he needs to accomplish…

As the United States rings in a New Year, it also welcomes a new president. All eyes are trained on Washington in anticipation of what President-elect Donald Trump will tackle in his first 100 days in office. Trump’s initial success will depend on how well he defines his own agenda and how he navigates the difference in details between his goals and the policy priorities of Congressional Republicans. Trump will also need to divide his political capital between the things his administration wants to do versus what it needs to do in the New Year.

Click here to read the Alert by David C. Russell and Miguel Rodriquez.

Tuesday, December 20, 2016

(This is an updated post from December 2015)

Need a New Year’s resolutions to kick start 2017? Here is an idea you probably hadn’t considered: review your estate planning documents.

If you are like most people, you are probably thinking that reading legal documents does not sound like an even remotely enjoyable way to start a new year. But, it doesn’t have to be as unpleasant as it sounds. Reviewing your documents does not mean you have to read them cover to cover. If you know what are the most important elements, it is easy to review your will, trust, and powers of attorney regularly to ensure they still comply with your wishes. These documents not only determine who will receive your property when you die, but also likely determine who has the right to make financial and major medical decisions during your lifetime. Needless to say, it is important that you are still comfortable with the designations you have made.

To get you started, below is a basic checklist of items we suggest you review annually (make it a New Year’s tradition!).

1. Assess the changes in your life since you last updated your estate planning documents.

Have you gotten married or divorced? Had a child or adopted a child? Moved to a different state? Had a death in the family? Had a major financial event? Any of these life changes may affect your estate planning, and your documents may need to be revised. (more…)

Thursday, October 6, 2016

Rev. Proc. 2016-49

The recent issuance of Rev. Proc. 2016-49, which modifies and supersedes Rev. Proc. 2001-38, now puts the taxpayer in the driver’s seat. Recall that in Rev. Proc. 2001-38, the Service was providing relief for the surviving spouse when an unnecessary QTIP election was made, by treating such a QTIP election as though it had not been made. Practitioners began to question whether Rev. Proc. 2001-38 would render a QTIP election a nullity when made in order to qualify for a state marital deduction where such an election was not needed to reduce the Federal estate tax liability to zero. Then when portability came into the picture, the enhanced concern about basis adjustment at death drove practitioners to want to make a QTIP election even though not needed to reduce the estate tax liability, to permit the surviving spouse to make larger gifts that would not be subject to gift tax or solely to obtain a basis adjustment at death. Yet in view of Rev. Proc. 2001-38, it was not clear whether a QTIP election that did not result in a reduction in estate tax was viable.

Now the Service has solved this dilemma with Rev. Proc. 2016-49. A QTIP election will only be void if ALL of the following are satisfied:

  1. The estate did not exceed the applicable exclusion amount in any event so that a QTIP election would not reduce the estate tax liability.
  2. No portability election was effectively made, either because not actually made or because of a late filed return.
  3. The taxpayer notifies the IRS on a supplemental return that such a QTIP election previously made should be treated as void.
  4. The taxpayer provides sufficient evidence, which could consist of the return on which the
    unnecessary QTIP election was made, that the QTIP election was not needed to reduce the estate tax liability to zero based on the values as finally determined for estate tax purposes.

A QTIP election will not be treated as void where ANY of the following are true:

  1. A partial QTIP election was required to eliminate estate tax and the executor made a
    larger QTIP election than was necessary to reduce the estate tax liability to zero.
  2. The QTIP election was stated as a formula designed to reduce the estate tax liability to zero.
  3. The executor made a protection QTIP election.
  4. The executory made a portability election.

The taxpayer did not request that the QTIP election be treated as void and follow the procedure for having the election treated as void.

Monday, October 3, 2016

In a recent Tax Court decision, Harry H. Falk, and Steven P. Heller, Co-Executors, v. Commissioner of the Internal Revenue, the United States Tax Court ruled that in the case of the Madoff Ponzi scheme, an estate which paid estate tax on Madoff assets which subsequently have become worthless can claim a theft deduction.

James Heller, a New York state decedent, died in January 2008 owning a 99% interest in James Heller Family, LLC (the “LLC”).  The only asset held by the LLC was an account with Bernard L. Madoff Investment Securities, LLC.  In November of 2008, the Executors of Mr. Heller’s estate withdrew some money from the LLC’s Madoff account in order to pay estate taxes and other administrative expenses.  Shortly thereafter, the news of the Madoff Ponzi scheme became public. Suddenly, the LLC’s interest and the estate’s interest in the LLC became worthless.

In April 2009, the Executors of the Estate filed an estate tax return which included the decedent’s 99% interest in the LLC – as valued at the date of his death – in his gross estate.  But the estate also claimed a theft loss deduction relating to the Ponzi scheme in an amount equal to the difference between the values of the estate’s interest in the LLC at death and the estate’s share of the amount withdrawn from the LLC’s Madoff account.  The Internal Revenue Service issued a notice of deficiency, claiming the estate was not entitled to the theft loss deduction because the estate did not incur a theft loss.

Internal Revenue Code Section 2054 allows a deduction from the value of a gross estate of “losses incurred during the settlement of estates arising from…theft.”  The Internal Revenue Service argued that the LLC incurred the loss, not the estate, and as such the theft deduction is not appropriate.  However, the Court determined that the loss suffered by the estate related directly to its LLC interest, the worthlessness of which arose from the theft.  The theft extinguished the value of the estate’s LLC interest, thereby diminishing the value of the property available to the decedent’s heirs.  As such, the Court determined a theft deduction appropriate.

Tuesday, September 27, 2016

 

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Both presidential candidates have proposed changes to the estate tax regime.  Coming as a surprise to nobody, the proposals are quite different. (more…)

Thursday, September 22, 2016

 

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Based on the Consumer Price Index for the 12-month period ending August 31, 2016, Thompson Reuters Checkpoint has released their projected inflation-adjusted Estate, Gift, GST tax, and other exclusion amounts for 2017, as follows: (more…)