PLR 201144026: IRS grants more time to allocate generation-skipping transfer tax exemptions

Plain-English summary

The IRS granted a husband and wife 120 more days to allocate their available generation-skipping transfer tax exemptions to gifts made to two trusts. The couple had elected to split their gifts, but their accountant failed to report the transfers on the timely filed gift tax returns. The IRS found that the requirements for relief under IRC § 301.9100-3 were satisfied because the taxpayers reasonably relied on a qualified tax professional who failed to make or advise them to make the allocation. The allocations were to be effective as of the transfer dates and made on supplemental gift tax returns.

Ruling snapshot

• Question: Should the IRS grant the taxpayers an extension of time to allocate their generation-skipping transfer tax exemptions?
• Outcome: approved
• Key authorities: IRC §§ 2513, 2631, 2642, and 2652; Treas. Reg. § 301.9100-3

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

Number: 201144026
Third Party Communication: None
Release Date: 11/4/2011
Date of Communication: Not Applicable
Person To Contact:
Index Number: 2642.00-00, 9100.00-00
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Telephone Number:
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Refer Reply To:
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CC:PSI:B04
RE: PLR-105267-11
----------------------------------------------- Date:

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July 28, 2011

Legend

Husband
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Wife
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Accountant
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Trust 1
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Trust 2
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Child 1
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Child 2
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Year
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Date 1
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Date 2
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a
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Dear ----------------------------:

This letter responds to your authorized representative’s letter dated February 4, 2011, requesting an extension of time under § 2642(g) of the Internal Revenue Code and § 301.9100-3 of the Procedure and Administration Regulations to allocate Husband’s GST exemption and Wife’s GST exemption to the Year transfer to Trust 1 and Trust 2.

The facts and representations submitted are summarized as follows:

On Date 1, Husband created Trust 1 for the benefit of Child 1 and his descendants and Trust 2 for the benefit of Child 2 and his descendants. On Date 2, Husband made a gift of $a to each trust.

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Husband and his wife, Wife, hired Accountant to prepare their Forms 709, United States Gift (and Generation-Skipping Transfer) Tax Returns, for Year. Husband and Wife consented to treat the transfers made during Year as being made one-half by each pursuant to § 2513. Accountant prepared the Forms 709, but failed to report the $a transfer to Trust 1 and the $a transfer to Trust 2. Wife and Husband timely filed the Forms 709 for Year.

You have requested an extension of time under § 2642(g) and § 301.9100-3 to allocate Husband’s GST exemption and Wife’s GST exemption to the Year transfer to Trust 1 and Trust 2.

LAW AND ANALYSIS

Section 2513(a)(1) provides that a gift made by one spouse to any person other than the donor’s spouse is considered for purposes of the gift tax as made one-half by the donor and one-half by the donor’s spouse, but only if at the time of the gift each spouse is a citizen or resident of the United States.

Section 2601 imposes a tax on every generation-skipping transfer. A generation-skipping transfer is defined under § 2611(a) as (1) a taxable distribution, (2) a taxable termination, and (3) a direct skip.

Section 2602 provides that the amount of the tax imposed by § 2601 is the taxable amount multiplied by the applicable rate. Section 2641(a) defines the term “applicable rate” as the product of the maximum federal estate tax rate and the inclusion ratio with respect to the transfer.

Section 2631(a), as in effect for the years at issue, provides that for purposes of determining the GST tax, every individual shall be allowed a GST exemption of $1,000,000 which may be allocated by such individual (or his executor) to any property with respect to which such individual is the transferor. Section 2631(b) provides that any allocation under § 2631(a), once made, shall be irrevocable.

Section 26.2632-1(b)(4) of the Generation-Skipping Transfer Tax Regulations provides that an allocation of GST exemption to property transferred during the transferor's lifetime, other than in a direct skip, is made on Form 709.

Section 2652(a)(1) provides that for purposes of the GST tax, the term “transferor” means the decedent in the case of any property subject to the estate tax and the donor in the case of any property subject to the gift tax.

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Section 2652(a)(2) provides that if, under § 2513, one-half of a gift is treated as made by an individual and one-half of such gift is treated as made by the spouse of such individual, such gift shall be so treated for purposes of chapter 13.

Section 2642(b)(1) provides that, except as provided in § 2642(f), if the allocation of the GST exemption to any transfers of property is made on a gift tax return filed on or before the date prescribed by § 6075(b) for such transfer or is deemed to be made under § 2632(b)(1) or (c)(1), the value of such property for purposes of § 2642(a) shall be its value as finally determined for purposes of chapter 12 (within the meaning of § 2001(f)(2)), or, in the case of an allocation deemed to have been made at the close of an estate tax inclusion period, its value at the time of the close of the estate tax inclusion period.

Section 2642(g)(1)(A) provides that the Secretary shall by regulation prescribe such circumstances and procedures under which extensions of time will be granted to make an allocation of GST exemption described in § 2642(b)(1) or (2), and an election under § 2632(b)(3) or (c)(5). Such regulations shall include procedures for requesting comparable relief with respect to transfers made before the date of the enactment of § 2642(g).

Section 2642(g)(1)(B) provides that in determining whether to grant relief under this paragraph, the Secretary shall take into account all relevant circumstances, including evidence of intent contained in the trust instrument or instrument of transfer and such other factors as the Secretary deems relevant. For purposes of determining whether to grant relief under this paragraph, the time for making the allocation (or election) shall be treated as if not expressly prescribed by statute. See Notice 2001-50, 2001-2 C.B. 189.

Section 301.9100-3 provides the standards used to determine whether to grant an extension of time to make an election whose date is prescribed by a regulation (and not expressly provided by statute). In accordance with § 2642(g)(1)(B) and Notice 2001-50, taxpayers may seek an extension of time to make an allocation described in § 2642(b)(1) or (b)(2) or an election described in § 2632(b)(3) or (c)(5) under the provisions of § 301.9100-3.

Requests for relief under § 301.9100-3 will be granted when the taxpayer provides the evidence to establish to the satisfaction of the Commissioner that the taxpayer acted reasonably and in good faith, and that granting relief will not prejudice the interests of the government.

Section 301.9100-3(b)(1)(v) provides that a taxpayer is deemed to have acted reasonably and in good faith if the taxpayer reasonably relied on a qualified tax professional, including a tax professional employed by the taxpayer, and the tax professional failed to make, or advise the taxpayer to make, the election.

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Based on the facts submitted and the representations made, we conclude that the requirements of § 301.9100-3 have been satisfied. Therefore, Husband and Wife are each granted an extension of time of 120 days from the date of this letter to allocate their available GST exemption to the Year transfers to Trust 1 and Trust 2. The allocation will be effective as of the respective date of the transfers to Trust 1 and Trust 2 and the value of the transfers to Trust 1 and Trust 2 as determined for federal gift tax purposes will be used in determining the amount of GST exemption to be allocated to Trust 1 and Trust 2.

These allocations should be made on supplemental Forms 709 for Year. The Forms 709 should be filed with the Cincinnati Service Center at the following address: Internal Revenue Service, Cincinnati Service Center - Stop 82, Cincinnati, OH 45999. A copy of this letter should be attached to the supplemental Forms 709. A copy is enclosed for this purpose.

In accordance with the Power of Attorney on file with this office, a copy of this letter is being sent to your authorized representatives.

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 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.

The rulings in this letter pertaining to the federal estate and/or generation-skipping transfer tax apply only to the extent that the relevant sections of the Internal Revenue Code are in effect during the period at issue.

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This ruling is directed only to the taxpayer requesting it. Section 6110(k)(3) provides that it may not be used or cited as precedent.

Sincerely,

Associate Chief Counsel
Passthroughs & Special Industries

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By: Leslie H. Finlow
Senior Technician Reviewer, Branch 4
Office of the Associate Chief Counsel
(Passthroughs and Special Industries)

Enclosures
Copy for § 6110 purposes
Copy of this letter

cc: