PLR 201341021: IRS grants extra time to allocate GST exemption to a trust

Plain-English summary

The IRS granted a donor and spouse 120 days to allocate their available generation-skipping transfer tax exemptions to a transfer to an irrevocable trust. The ruling allows the gift to be split so that each spouse is treated as the transferor of one-half of the property, if they consent to split the gift. The allocations are effective as of the transfer date and must be made on Forms 709. The relief was based on the submitted facts and representations.

Ruling snapshot

• Question: Could the donor and spouse make late GST exemption allocations to a trust?
• Outcome: Approved
• Key authorities: IRC §§ 2513, 2601, 2631, 2642, 2652, and 6110(k)(3); Treas. Reg. §§ 26.2632-1 and 301.9100-3

Full text (IRS public release)

Internal Revenue Service
Department of the Treasury
Washington, DC 20224
Number: 201341021
Release Date: 10/11/2013

Third Party Communication: None
2642.00-00, 9100.00-00
Date of Communication: Not Applicable
Person To Contact:
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-----------------------, ID No. -------------
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Telephone Number:
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Refer Reply To:
CC:PSI:B04
In Re: -------------------------------
PLR-105219-13
Date:
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July 01, 2013

Legend:
Donor = -------------------------------
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Spouse = --------------------------
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Firm = -----------------------------
Trust = --------------------------------------------------------------------------------
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Date 1 = ---------------------------
Date 2 = ---------------------------
x = -----------
y = ----------

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

This letter responds to a letter from your authorized representative dated December 5, 2012, requesting an extension of time pursuant to § 2642(g) of the Internal Revenue Code and § 301.9100-3 of the Procedure and Administration Regulations to allocate generation-skipping transfer (GST) exemption to a transfer to a trust.

The facts and representations submitted are summarized as follows. On Date 1, Donor created an irrevocable trust (Trust) for the benefit of his children and their issue. Trust has GST potential. On Date 2, Donor contributed cash of $x to Trust. Donor made no other gifts to Trust. There have been no distributions of principal or income to any of
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the Trust beneficiaries.

At the time Donor created and funded Trust, Donor and his spouse (Spouse) engaged Firm, a certified public accounting firm, to prepare their personal tax returns. Although professionals within Firm advised Donor regarding the creation and funding of Trust, it appears that Firm did not prepare a gift tax return reporting Donor’s gift to Trust.

Donor and Spouse request an extension of time under § 2642(g), §§ 301.9100-1 and 301.9100-3 in which to make timely GST exemption allocations totaling $x ($y for each of Donor and Spouse) on gift tax returns to be filed for the transfer to Trust.

Section 2513(a) provides that a gift made by one spouse to any person other than his spouse shall, for purposes of the gift tax, be considered as made one-half by him and one-half by his spouse.

Section 2601 imposes a tax on every GST, which 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 GST tax is the taxable amount multiplied by the applicable rate. Section 2641(a) defines “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 at the time of the transfer, provides that, for purposes of determining the inclusion ratio, every individual shall be allowed a GST exemption of
$1,000,000 that 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 2642(a)(1) provides that for purposes of chapter 13, the inclusion ratio with respect to any property transferred in a GST is generally defined as the excess (if any) of 1 over the “applicable fraction.” The applicable fraction, as defined in § 2642(a)(2), is a fraction, the numerator of which is the amount of GST exemption allocated to the trust (or to property transferred in a direct skip), and the denominator of which is the value of the property transferred to the trust or involved in the direct skip.

Section 2642(b)(1) provides that, except as provided in § 2642(f), if the allocation of the GST exemption to any transfer of property is made on a gift tax return filed on or before the date prescribed by § 6075(b) for such transfer, 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
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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)(1)(A), which was enacted into law on June 7, 2001.

Section 2642(g)(1)(B) provides that in determining whether to grant relief, 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.

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 the GST tax.

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 is made on Form 709.

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.

Section 301.9100-1(c) provides that the Commissioner has discretion to grant a reasonable extension of time under the rules set forth in §§ 301.9100-2 and 301.9100-3 to make a regulatory election, or a statutory election (but no more than 6 months except in the case of a taxpayer who is abroad), under all subtitles of the Code except subtitles E, G, H, and I.

Section 301.9100-3 provides the standards used to determine whether to grant an extension of time to make an election whose due date is prescribed by a regulation (and not expressly provided by statute). Under § 301.9100-1(b), a regulatory election includes an election whose due date is prescribed by a notice published in the Internal Revenue Bulletin. 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) under the provisions of § 301.9100-3.
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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.

Based on the facts submitted and the representations made, we conclude that the requirements of § 301.9100-3 have been satisfied. If Donor and Spouse consent to split the Date 1 gift, each will be treated as the transferor for GST purposes of one-half of the entire value of the property transferred by Donor.

Donor and Spouse are each granted an extension of time of 120 days from the date of this letter to allocate his and her respective available GST exemptions to the Date 1 transfer to Trust. The allocations will be effective as of the date of the transfer to Trust, and the value of the transfer to Trust, as determined for federal gift tax purposes, will be used in determining the amount of Donor’s GST exemption and Spouse’s GST exemption to be allocated to Trust.

The allocations should be made on Forms 709, United States Gift (and Generation-Skipping Transfer) Tax Return, for the year in which the Date 1 transfer was made, and filed with the Internal Revenue Service Center, Cincinnati, Ohio 45999. A copy of this letter should be attached to each Form 709. A copy is enclosed for this purpose.

Except as expressly provided 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.

This ruling is directed only to the taxpayers requesting it. Section 6110(k)(3) of the Code 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 representative.
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The rulings contained in this letter is based upon information and representations submitted by the taxpayers 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.

Sincerely,

Associate Chief Counsel
(Passthroughs & Special Industries)

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

Enclosures
Copy for § 6110 purposes