PLR 201217012: IRS grants more time to allocate generation-skipping transfer tax exemption

Plain-English summary

Trustees asked the IRS for more time to allocate a decedent's generation-skipping transfer tax exemption to two cash transfers made to an irrevocable trust. The decedent's accountants prepared the relevant gift tax returns but failed to make the allocations, and no taxable distributions or terminations had occurred. The IRS concluded that the trustees satisfied the requirements for relief and granted 120 days to make the allocations, effective as of the transfer dates. The allocations must be made on Forms 709 and sent to the Cincinnati Service Center with a copy of the ruling.

Ruling snapshot

• Question: Should the trustees receive an extension of time to allocate the decedent's generation-skipping transfer tax exemption to two trust transfers?
• Outcome: Approved
• Key authorities: IRC §§ 2601, 2611, 2631, 2632, 2642, and 6110; Treas. Reg. §§ 26.2632-1(b)(4)(i) and 301.9100-1 through 301.9100-3; Notice 2001-50.

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224

[Third Party Communication:
Number: 201217012
Date of Communication: Month DD, YYYY]
Release Date: 4/27/2012
Person To Contact:
-------------------, ID No. ----------
Index Number: 9100.00-00, 2642.00-00
Telephone Number:
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Refer Reply To:
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CC:PSI:4
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PLR-131025-11
Date:
January 13, 2012

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Legend

Decedent
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Trustees
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Date 1
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Date 2
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Year 1
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Year 2
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Trust
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w
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x
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Dear -------------:

This letter responds to a letter dated June 14, 2011, from your authorized representative, requesting an extension of time under § 2642(g)(1) of the Internal Revenue Code (Code) and §' 301.9100-1 and 301.9100-3 of the Procedure and Administration Regulations to allocate Decedent’s generation-skipping transfer (GST) exemption to a trust.

Facts

On Date 1, a date prior to December 31, 2000, Decedent created an irrevocable trust, Trust, for the benefit of Decedent’s daughters and their descendants. Also, on the same day, Decedent funded Trust with cash in the amount of $w. Date 1 is in Year 1. Decedent also transferred cash in the amount of $x to Trust on Date 2. Date 2 is in Year 2.

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Decedent provided her accountants with all relevant documents pertaining to the transfer. The accountants prepared the Year 1 and Year 2 Forms 709, United States Gift (and Generation-Skipping Transfer) Tax Returns, for the Year 1 and Year 2 gifts to Trust, but the accountants failed to allocate Decedent’s GST exemption to these transfers. After the death of Decedent, Decedent’s estate hired an attorney to help with the administration of the estate. The estate’s attorney discovered that Decedent’s accountants failed to allocate Decedent’s GST exemption on the Year 1 and Year 2 Forms 709.

Trustees request an extension of time to allocate Decedent’s GST exemption to the Date 1 and Date 2 transfers to Trust. It is represented that, to date, no taxable distributions, taxable terminations, or any other events have occurred with respect to Trust that would give rise to a GST tax liability.

Law and Analysis

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 2631(a), as in effect for decedents dying and generation-skipping transfers before January 1, 2004, provides that, for purposes of determining the inclusion ratio, every individual shall be allowed a GST exemption of $1,000,000 (adjusted for inflation under § 2631(c)) 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)(i) of the Generation-Skipping Transfer Tax Regulations provides that an allocation of GST exemption to property transferred during the transferor’s lifetime, other than a direct skip, is made on Form 709.

Section 2642(b)(1)(A) 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)).

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

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comparable relief with respect to transfers made before the date of the enactment of this paragraph.

Section 2642(g)(1)(B) provides that in determining whether to grant relief under § 2642(g)(1), 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, the time for making the allocation (or election) shall be treated as if not expressly prescribed by statute.

Notice 2001-50, 2001-2 C.B. 189, provides that under § 2642(g)(1)(B), the time for allocating the GST exemption to lifetime transfers and transfers at death, the time for electing out of the automatic allocation rules, and the time for electing to treat any trust as a GST trust are to be treated as if not expressly prescribed by statute. The Notice further provides that 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.

Sections 301.9100-1 through 301.9100-3 provide the standards the Commissioner will use to determine whether to grant an extension of time to make an election. Section 301.9100-1(a).

Section 9100-2 provides an automatic extension of time for making certain elections. 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.

Section 301.9100-3(a) provides, in part, that requests for relief subject to § 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 the grant of relief will not prejudice the interests of the Government.

Section 301.9100-3(b)(1) provides, in part, except as provided in § 301.9100-3(b)(3)(i) through (iii), 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.

Based on the facts submitted and representations made, we conclude that the requirements of § 301.9100-3 are satisfied. Therefore, Trustees are granted an extension of time of 120 days from the date of this letter to allocate Decedent’s available

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GST exemption to the Date 1 and Date 2 transfers to Trust. The allocations will be effective as of the date of the transfers and will be based on the value of the gifts on the date of the transfers.

The allocations of Decedent’s GST exemption should be made on Forms 709 and filed with the Internal Revenue Service Center in Cincinnati. A copy of this letter should be forwarded to the Internal Revenue Service, Cincinnati Service Center – Stop 82, Cincinnati, OH 45999, along with the Forms 709.

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.

Except as specifically ruled herein, we express no opinion on the federal tax consequences of the transaction under the cited provisions or under any other provisions of the Code.

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.

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

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

Sincerely,

Associate Chief Counsel
(Passthroughs and Special Industries)

By: _____
Lorraine Gardner
Senior Counsel
Branch 4
Office of the Associate Chief Counsel
(Passthroughs and Special Industries)

Enclosure
Copy for § 6110 purposes