Estate receives 120 days to opt out of automatic GST allocation

Plain-English summary

A donor transferred property to an irrevocable trust for a child and descendants but did not intend to allocate generation-skipping transfer tax exemption to the gift. The donor relied on a certified public accountant to prepare Form 709, and the accountant failed to attach the required election out of the automatic-allocation rules. After the donor died, the estate's personal representatives requested relief. The IRS found the regulatory-relief requirements satisfied and granted 120 days to file Form 709 making the election out, effective as of the original return's filing date.

Ruling snapshot

• Question: May the donor's estate make a late election out of automatic GST exemption allocation for the trust transfer?
• Outcome: Approved, with 120 days to file Form 709 making the election
• Key authorities: IRC §§ 2632(c)(5) and 2642(g); Treas. Reg. §§ 26.2632-1 and 301.9100-3; Notice 2001-50

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201602001 Third Party Communication: None
Release Date: 1/8/2016 Date of Communication: Not Applicable
Person To Contact:
Index Number: 2632.00-00, 9100.00-00 ----------------------, ID No. ------------
Telephone Number:
------------------------- --------------------
------------------------- Refer Reply To:
------------------------ CC:PSI:B04
---------------------------- PLR-104319-15
Date:
July 07, 2015
In Re: -------------------------------

LEGEND:
Donor = ------------------

Certified Public Accountant = --------------------------
Child = ---------------------------
Personal Representatives = -----------------------------------------------
Date 1 = --------------------------
Date 2 = ----------------------
Year = ------
x = ------------
Trust = -----------------------------------------------------

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

This letter responds to the submission dated January 21, 2015, 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 elect out of the generation-skipping
transfer (GST) tax exemption automatic allocation rules.

On Date 1(a date after December 31, 2000), Donor transferred $x to Trust to be held
irrevocably and thereupon administered for the benefit of Child and Child’s
descendants. Under Article VI(a) of Trust, during Child’s lifetime, the trustee may
distribute to one or more of Child and Child’s descendants as much of the income and
principal as the trustee, in the trustee’s sole discretion, may think desirable. On Child’s
death, any remaining principal and accumulated income shall be paid to Child’s then-
living descendants, per stirpes.
PLR-104319-15 2

Donor reported the transfer on a gift tax return, Form 709, United States Gift (and
Generation- skipping Transfer) Tax Return filed for Year. She did not elect to allocate any
portion of her GST exemption to the $x transfer to Trust.

Donor relied on Certified Public Accountant to prepare the gift tax return. Although Donor
did not intend to allocate GST exemption to the $x gift to Trust, Certified Public
Accountant failed to prepare an election out of the automatic allocation rules of § 2632(c)
for the transfer. Donor died on Date 2. The Personal Representatives of her estate now
request an extension of time to elect out of the automatic allocation rules with respect to
the transfer.

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 applicable rate as
the product of the maximum federal estate tax rate and the inclusion ratio with respect
to the transfer. Under § 2642(a)(1), the inclusion ratio with respect to any property
transferred in a generation-skipping transfer is 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 the GST exemption under § 2631 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 2631(a), as effective in the year at issue, provided that, for purposes of
determining the inclusion ratio, every individual shall be allowed a GST exemption of
$5,012,000 (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 2632(c)(1) provides that if any individual makes an indirect skip during such
individual's lifetime, any unused portion of such individual's GST exemption shall be
allocated to the property transferred to the extent necessary to make the inclusion ratio
for such property zero. If the amount of the indirect skip exceeds such unused portion,
the entire unused portion shall be allocated to the property transferred.

Section 2632(c)(3)(A) provides that, the term “indirect skip” means any transfer of
property (other than a direct skip) subject to the tax imposed by chapter 12 made to a
GST trust, as defined in § 2632(c)(3)(B). Under § 2632(c)(5)(A)(i)(I) and (II), an
individual may elect to have the automatic allocation rule in § 2632(c)(1) not apply to an
indirect skip, or to any or all transfers made by such individual to a particular trust.
PLR-104319-15 3

Section 2632(c)(5)(B)(ii) provides that an election under § 2632(c)(5)(A)(i)(II) may be
made on a timely filed gift tax return for the calendar year for which the election is to
become effective.

Section 26.2632-1(b)(2)(iii)(B) of the Generation-Skipping Transfer Tax Regulations
provides, in relevant part, that, to elect out, the transferor must attach a statement
(election out statement) to a Form 709 filed within the time period provided in
§ 26.2632-1(b)(2)(iii)(C) (whether or not any transfer was made in the calendar year for
which the Form 709 was filed, and whether or not a Form 709 otherwise would be
required to be filed for that year). The election out statement must identify the trust
(except for an election out under § 26.2632-1(b)(2)(iii)(A)(4)) and specifically must
provide that the transferor is electing out of the automatic allocation of GST exemption
with respect to the described transfer or transfers. Further, unless the election out is
made for all transfers made to the trust in the current year, the current-year transfers to
which the election out is to apply must be specifically described or otherwise identified
in the election out statement.

Section 26.2632-1(b)(2)(iii)(C) provides, in relevant part, that to elect out, the Form 709
with the attached election out statement must be filed on or before the due date for
timely filing (within the meaning of § 26.2632-1(b)(1)(ii)) of the Form 709 for the
calendar year in which the first transfer to be covered by the election out was made.

Section 2642(g)(1)(A) provides, generally, 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 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 generation-skipping transfer 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.
PLR-104319-15 4

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 301.9100-2 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 the representations made, we conclude that the
requirements of § 301.9100-3 have been satisfied. Accordingly, Donor is granted an
extension of time of 120 days from the date of this letter to make an election under
§ 2632(c)(5)(A)(i)(II) that the automatic allocation rules do not apply to her transfer to
Trust made on Date 1. The election out will be effective as of the date the return was
filed. The election should be made on Form 709, and filed with the Internal Revenue
Service Center, Cincinnati, Ohio 45999. A copy of this letter should be attached to the
Form 709. A copy is enclosed for that purpose.

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.

This ruling is directed only to the taxpayer 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
PLR-104319-15 5

Attorney on file with this office, a copy of this letter is being sent to your authorized
representative.

                                               Sincerely,



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

Enclosures
Copy for § 6110 purposes