PLR 1024008: IRS approved a QTIP trust division and related gifts

Plain-English summary

A surviving spouse proposed dividing and terminating a marital trust that had qualified as QTIP property for estate tax purposes. Under the court-approved arrangement, the spouse would retain specified assets and distribute the remaining trust property to separate trusts for the decedent’s children, with gift tax paid from the transferred property. The IRS ruled that the spouse would be treated as making a net gift of the remainder interest under § 2519 and a gift of the qualifying income interest under § 2511. It also ruled that the marital trust property would not be included in the spouse’s gross estate under § 2044.

Ruling snapshot

• Question: What are the gift and estate tax consequences of dividing and terminating the QTIP marital trust?
• Outcome: Approved
• Key authorities: IRC §§ 2044, 2207A, 2501, 2511, 2519, and 6110

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201024008
Release Date: 6/18/2010
Index Number: 2044.00-00, 2207A.00-00,
2511.00-00, 2519.00-00
Person To Contact:
---------------------- ---------------------, ID No. -------------
Telephone Number:
------------------------- ---------------------
---------------------------- Refer Reply To:
CC:PSI:B04 – PLR-138032-09
Date:
February 04, 2010
---------------------------

     Legend:

     Decedent                                = --------------------
     Spouse                                 = ------------------------
     ---------------------------------------------------------------------
     Child 1                                = ----------------------
     Child 2                                 = ------------------
     Child 3                                 = ----------------
     Child 4                                 = -----------------
     Individual                              = ------------------
     Individual 1                            = ---------------------------------
     Date 1                                  = ---------------------------
     Date 2                                  = ---------------------
     Date 3                                  = --------------------
     Date 4                                   = --------------------------

     Marital Trust                          = -----------------------------

     Will = --------------------------------------------------------------------------------
     -----------------------------------------------------------------------------------------------------
     ----------------------------------------------------------------------------------------------------------
     -----------------------------------
     Court = ------------------------------------------------------------------------------
     ---------------------------------------
     Order = ---------------------------------------------
     Final Order = ----------------------------------------------------

     State      = --------------

PLR-138032-09 2

   x         = -----------

Dear ------------:

   This responds to your July 31, 2009 letter and other correspondence requesting

rulings regarding the federal gift and estate tax consequences of Spouse’s disposition of
an interest in Marital Trust, as described below.

   The facts submitted and representations made are as follows:

   Decedent died on Date 1, survived by Spouse and Decedent’s children, Child 1,

Child 2, Child 3, and Child 4 (Children), who are all adults.

    Article III, Paragraph 3.113 of Decedent’s will (Will) provides for the creation of

Marital Trust. Under Paragraph 6.2 of Article VI of Will, Spouse is to receive all of the
net income of Marital Trust at least quarterly. Spouse is entitled to receive such
principal as the trustee, other than Spouse, deems necessary for Spouse’s support,
maintenance, health, and other necessities. Under Paragraph 6.4 of Article VI, at
Spouse’s death, the remaining principal of Marital Trust will be distributed to Decedent’s
issue, as Spouse appoints in his will. In default of this appointment, the remaining
principal will be divided into equal shares for Decedent’s children. The share of a
deceased child with surviving issue will be held for those issue as a group. Each share
will be held as a separate trust under the terms of Article VII of Will.

    Under Paragraph 7.12 of Article VII of Will, the beneficiary of each trust will

receive any income and principal the trustees deem necessary for the support,
maintenance, education, and other necessities of the beneficiary, the beneficiary’s
spouse, or the beneficiary’s issue. Trust principal will be distributed to a beneficiary as
follows: 1/3 at age 30, 1/2 at age 38, and the balance at age 45. If a beneficiary dies
before the final distribution, the beneficiary has a testamentary general power of
appointment over the remaining trust balance. Any unappointed portion will be
distributed by right of representation to the beneficiary’s then living issue, or, if none, to
Decedent’s then living issue.

   Decedent’s personal representative elected on the Form 706, United States

Estate (and Generation-Skipping Transfer) Tax Return, to treat Marital Trust as qualified
terminable interest property (QTIP) under § 2056(b)(7) of the Internal Revenue Code.

  Prior to Date 4, a date prior to January 1, 2010, Marital Trust held cash, cash

equivalents, bonds, publicly traded securities and a promissory note (Note), and Spouse
and Individual were the trustees of Marital Trust. Individual is not related to Decedent,
Spouse, or Children.
PLR-138032-09 3

    Prior to Date 4, Spouse concluded that he did not need principal distributions

from Marital Trust and that he did not want to exercise his testamentary power over the
trust. Thus, Children and Spouse, as beneficiary of, and as trustee of, Marital Trust
petitioned Court to request an order authorizing the trustees to divide Marital Trust into
“Trust 1” and “Trust 2” and terminate Marital Trust. On Date 2, Court issued Order
authorizing the trustees to divide and terminate Marital Trust. “Trust 1” will hold the
actuarial present value of Spouse’s income interest in Marital Trust. “Trust 2” will hold
the balance of Marital Trust property. On Date 3, Children, Spouse as beneficiary of,
and as trustee of, Marital Trust, and Individual, as trustee of Marital Trust, executed an
agreement (Agreement). Agreement sets forth the steps for completing the division and
termination of Marital Trust. In the Agreement, the parties agreed that Spouse’s gift of
his qualifying income interest will be net of federal gift tax and that Spouse will exercise
his right of recovery under § 2207A(b) of the Internal Revenue Code to recover the gift
tax attributable to the gift under § 2519. Agreement also provides that Individual 1 will
serve as sole trustee of the Children’s Trusts (to be established under Order and
Agreement) and that Spouse will renounce all interest in his testamentary power of
appointment over Marital Trust property.

   Under Order and Agreement, all of the following steps are to occur

simultaneously on the same date. The trustee of Marital Trust will allocate Note to
“Trust 1” and terminate “Trust 1.” The trustee of Marital Trust will distribute Note and $x
in cash to Spouse and will distribute the balance of “Trust 1,” net of gift taxes, in equal
shares to separate trusts, one trust for each of Child 1, Child 2, Child 3, and Child 4 in
accordance with Articles VI and VII of Will (Children’s Trusts). The trustee of Marital
Trust will terminate “Trust 2” and distribute the assets, net of gift taxes, in equal shares
to the Children’s Trusts.

  On Date 4, Court issued Final Order, ratifying and confirming Order, and the

above-described transaction was completed.

   You have requested the following rulings:

   1. Spouse is treated as making a net gift of the remainder interest in Marital

Trust under § 2519 upon the distribution of Marital Trust property on Date 4.

   2. Spouse is treated as making a net gift of Spouse’s qualifying income interest

in Marital Trust, less the value of Note and $x in cash retained by Spouse, under § 2511
upon the distribution of Marital Trust property on Date 4.

  3. No portion of the property of the Marital Trust will be included in Spouse’s

gross estate pursuant to § 2044.
PLR-138032-09 4

LAW AND ANALYSIS

 Section 2001(a) imposes a tax on the transfer of the taxable estate of every

decedent who is a citizen or resident of the United States.

   Section 2044 provides for the inclusion in the gross estate of the surviving

spouse of the value of qualified terminable interest property for which a deduction was
allowed under § 2056(b)(7) in the decedent's gross estate. Under § 2044(b)(2), § 2044
does not apply with respect to qualified terminable interest property treated as
transferred for gift tax purposes by the surviving spouse during her lifetime under
§ 2519.

  Section 2501 imposes a tax on the transfer of property by gift. Section 2511

provides that the gift tax imposed by § 2501 shall apply whether the transfer is in trust or
otherwise, whether the gift is direct or indirect, and whether the property is real or
personal, tangible or intangible.

   Section 25.2511-2(a) of the Gift Tax Regulations provides that the gift tax is a

primary and personal liability of the donor, is an excise upon his act of making the
transfer, is measured by the value of the property passing from the donor, and attaches
regardless of the fact that the identity of the donee may not then be known or
ascertainable. Section 2512(b) provides that where property is transferred for less than
adequate consideration in money or money's worth, the amount of the gift is the amount
by which the value of the property transferred exceeds the value of the consideration
received in exchange.

   Section 2519 provides that for gift tax purposes any disposition by the surviving

spouse of all or part of a qualifying income interest for life in any property for which a
deduction was allowed under § 2056(b)(7) is treated as a transfer by the surviving
spouse of all interests in the property other than the qualifying income interest. The
transfer of the qualifying income interest is a transfer subject to gift tax under § 2511.

    Section 25.2519-1(c)(1) provides that the amount treated as a transfer under

§ 2519 upon a disposition of all or part of a qualifying income interest for life in qualified
terminable interest property is equal to the fair market value of the entire property
subject to the qualifying income interest, determined on the date of the disposition
(including any accumulated income and not reduced by any amount excluded from total
gifts under § 2503(b) with respect to the transfer creating the interest), less the value of
the qualifying income interest in the property on the date of the disposition. The gift tax
consequences of the disposition of the qualifying income interest are determined
separately under § 25.2511-2.
PLR-138032-09 5

    Section 25.2519-1(c)(4) provides that the amount treated as a transfer under

§ 25.2519-1(c)(1) is further reduced by the amount of gift tax the donee spouse is
entitled to recover under § 2207A(b). If the donee spouse is entitled to recover gift tax
under § 2207A(b), the amount of the gift tax recoverable and the value of the remainder
interest treated as transferred under § 2519 are determined by using the same
interrelated computation applicable for other transfers in which the transferee assumes
the gift tax liability. The gift tax consequences of failing to exercise the right of recovery
are determined separately under § 25.2207A-1(b).

    Under §§ 2207A(b) and 25.2207A-1(a), if an individual is treated as transferring

an interest in property by reason of § 2519, the individual is entitled to recover from the
“person receiving the property” (as defined in § 25.2207A-1(e)) the amount of gift tax
attributable to that property. Under § 25.2207A-1(e), if the property is in trust at the time
of the transfer, the “person receiving the property” is the trustee, and any person who
has received a distribution of the property prior to the expiration of the right of recovery
if the property does not remain in trust. Under § 25.2207A-1(b)(1), the failure of a
person to exercise a right of recovery provided by § 2207A(b) is treated as a transfer for
federal gift tax purposes of the unrecovered amounts to the persons from whom the
recovery could have been obtained.

     Rev. Rul. 75-72, 1975-1 C.B. 310, holds that if, at the time of the transfer, a gift is

made subject to a condition that the gift tax is to be paid by the donee or out of the
transferred property, then the donor receives consideration for the transfer in the
amount of the gift tax to be paid by the donee. Thus, under § 2512(b), the value of the
gift is the fair market value of the property passing from the donor less the amount of
the gift tax to be paid by the donee or from the property itself.

    Rev. Rul. 81-223, 1981-2 C.B. 189, holds that, in determining the amount of the

gift tax liability that is to be subtracted from the value of the transferred property, the
donor's available unified credit must be used to reduce the gift tax liability that the donee
has assumed to the extent the unified credit is available.

    Based on the facts submitted and representations made and assuming Court

issues Final Order and that the proposed division and termination of Marital Trust are
effective under State law, we conclude as follows:

   1. Spouse is treated as making a net gift of the remainder interest in Marital

Trust under § 2519 upon the distribution of Marital Trust property on Date 4.

   2. Spouse is treated as making a net gift of Spouse’s qualifying income interest

in Marital Trust, less the value of Note and $x in cash retained by Spouse, under § 2511
upon the distribution of Marital Trust property on Date 4.
PLR-138032-09 6

  3. No portion of the property of the Marital Trust will be included in Spouse’s

gross estate pursuant to § 2044.

     In accordance with the Power of Attorney on file with this office, a copy of this

letter is being sent to your authorized representative.

   Except as expressly provided herein, no opinion is expressed or implied

concerning the tax consequences of any aspect of any transaction or item discussed or
referenced in this letter. The ruling in this letter pertaining to the federal estate tax
applies only to the extent that the relevant section of the Internal Revenue Code is in
effect during the period at issue.

  The rulings contained in this letter are based upon information and

representations submitted by the taxpayer and accompanied by a penalty of perjury
statement executed by an appropriate party. While this office has not verified any of the
material submitted in support of the request for rulings, it is subject to verification on
examination.

  This ruling is directed only to the taxpayer requesting it. Section 6110(k)(3) of

provides that it may not be used or cited as precedent.

                                       Sincerely,

                                       _________________________
                                       Lorraine E. Gardner
                                       Senior Counsel, Branch 4
                                       Office of the Associate Chief Counsel
                                       (Passthroughs and Special Industries)

Enclosure:
Copy of letter for section 6110 purposes

cc: