Taxpayer received extra time to opt out of automatic GST exemption allocations

Plain-English summary

A taxpayer made gifts over several years to three irrevocable trusts with generation-skipping transfer potential. He did not intend to allocate GST exemption to those gifts, but his accountant failed to explain the automatic-allocation rules or the election to opt out. The taxpayer therefore did not file Forms 709 or election statements, and GST exemption was automatically allocated to the transfers. The IRS found that the taxpayer reasonably relied on a qualified tax professional and satisfied the standards for discretionary relief. It granted 120 days to file amended gift tax returns electing out of the automatic allocations for all covered transfers to the three trusts.

Ruling snapshot

• Question: May the taxpayer make late elections to opt out of automatic GST exemption allocations for transfers to three trusts?
• Outcome: approved, with 120 days to file amended Forms 709 and the election statements
• Key authorities: IRC §§ 2632(c)(5), 2642(g); Treas. Reg. §§ 26.2632-1(b)(2)(iii), 301.9100-3; Notice 2001-50

Full text (IRS public release)

Internal Revenue Service                                      Department of the Treasury
                                                              Washington, DC 20224

Number: 201944008                                             Third Party Communication: None
Release Date: 11/1/2019                                       Date of Communication: Not Applicable
Index Number: 2632.00-00, 2642.00-00,
              9100.00-00                                      Person To Contact:
                                                              -------------------------, ID No. -----------------
--------------------                                          -----------------------------------------------------
---------------------------------                             Telephone Number:
---------------------------------                             ---------------------
                                                              Refer Reply To:
                                                              CC:PSI:B04
                                                              PLR-106722-19
                                                              Date:
                                                              July 11, 2019
In Re: --------------------



Legend

Date 1                       =        -------------------
Taxpayer                     =        --------------------
                             -------------------------
Trust 1                      =        ------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
                                      -------------------------------------------------------------
                                      ------------------------
Trust 2                      =        ------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
                                      ----------------------------
                                      ------------------------
Wife                         =        ----------------
                                      -------------------------
Date 2                       =        -----------------------
Trust 3                      =        ---------------------------------------------------------------
                                      -----------------------
                                      ------------------------
Year 1                       =        -------
Year 2                       =        -------
Accountant                   =        ----------------------



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

      This letter responds to your personal representative’s letter of March 25, 2019,
and subsequent correspondence, requesting an extension of time under § 2642(g) of

PLR-106722-19                                2

the Internal Revenue Code (Code) and § 301.9100-1 and § 301.9100-3 of the
Procedure and Administration Regulations to elect out of the generation-skipping
transfer (GST) exemption automatic allocation rules with respect to certain transfers to
trusts.
        The facts and representations submitted are as follows:

       On Date 1, a date before January 1, 2001, Taxpayer created Trust 1, an
irrevocable trust, for the benefit of his children. Trust 1 has GST potential.

      Also on Date 1, Taxpayer created Trust 2, an irrevocable trust, for the benefit of
Wife and their children. Trust 2 has GST potential.

       On Date 2, a date before January 1, 2001, Taxpayer and Wife created Trust 3,
an irrevocable trust, for the benefit of their children. Trust 3 has GST potential.

       From Year 1 to Year 2, years after December 31, 2000, Taxpayer transferred
property to Trust 1, Trust 2 and Trust 3. Taxpayer did not intend for GST exemption to
be allocated to any of the transfers to Trust 1, Trust 2 or Trust 3.

         Taxpayer retained Accountant to provide advice with respect to the tax
consequences of the Year 1 through Year 2 transfers to Trust 1, Trust 2 and Trust 3 and
to file any necessary tax returns. Accountant failed to advise Taxpayer of the rules
under § 2632(c) regarding the automatic allocation of GST exemption and the ability to
elect out of the automatic allocation of GST exemption by making an election under
§ 2632(c)(5). As a result, Taxpayer did not file Forms 709 (United States Gift (and
Generation-Skipping Transfer) Tax Return) for Year 1 through Year 2 and did not elect
to opt out of the automatic allocation of GST exemption for the transfers to Trust 1,
Trust 2 and Trust 3.

       GST exemption was automatically allocated to transfers made by Taxpayer to
Trust 1, Trust 2 and Trust 3 in Year 1, and in subsequent years through Year 2 in which
transfers were made, as a result of Taxpayer’s failure to elect out of the GST exemption
automatic allocation rules for the transfers to Trust 1, Trust 2 and Trust 3.

       Taxpayer requests an extension of time under § 2642(g), § 301.9100-1 and
§ 301.9100-3 to elect out of automatic allocation of GST exemption for all transfers to
Trust 1, Trust 2 and Trust 3 under § 2632(c)(5)(A)(i)(II).

Law and Analysis

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

      Section 2631(a) provides that, for purposes of determining the inclusion ratio,

PLR-106722-19                                 3

every individual shall be allowed a GST exemption amount 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 is
treated as 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.

       Under § 2632(c)(3)(A), 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)(3)(B), a GST trust is a trust that could
have GST potential with respect to the transferor unless the trust satisfies any of the
exceptions listed in § 2632(c)(3)(B)(i)-(vi).

      Section 2632(c)(5)(A)(i)(II) provides that an individual may elect to have
§ 2632(c)(1) not apply to any and all transfers made to a particular trust.

       Section 26.2632-1(b)(2)(iii)(A) of the Generation-Skipping Transfer Tax
Regulations provides, in relevant part, that a transferor may prevent (1) the automatic
allocation of GST exemption (elect out) with respect to one or more (or all) current-year
transfers made by the transferor to a specified trust or trusts and (2) the automatic
allocation of GST exemption (elect out) with respect to all future transfers made by the
transferor to a specified trust or trusts.

        Section 26.2632-1(b)(2)(iii)(B) provides that to elect out, the transferor must
attach an election out statement to a Form 709 filed within the time period provided in
§ 26.2632-1(b)(2)(iii)(C). In general, the election out statement must identify the trust,
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. Under
§ 26.2632-1(b)(2)(iii)(C), to elect out, the Form 709 with the attached election out
statement must be filed on or before the due date for timely filing the Form 709 for the
calendar year in which: (1) for a transfer subject to § 2642(f), the ETIP closes; or (2) for
all other elections out, the first transfer to be covered by the election out was made.

        Section 26.2632-1(b)(2)(iii)(D) provides, in part, that an election out does not
affect the automatic allocation of GST exemption to any transfer not covered by the
election out statement. An election out does not prevent the transferor from allocating
the transferor's available GST exemption to any transfer covered by the election out,

PLR-106722-19                                 4

either on a timely filed Form 709 reporting the transfer or at a later date in accordance
with the provisions of paragraph (b)(4) of this section.

       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).

       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.

       Sections 301.9100-1 through 301.9100-3 of the Procedure and Administration
Regulations provide the standards the Commissioner will use to determine whether to
grant an extension of time to make an election. 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, a taxpayer 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)(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 representations made, we conclude that the

PLR-106722-19                                  5

requirements of § 301.9100-3 have been satisfied. Accordingly, Taxpayer is granted an
extension of time of 120 days from the date of this letter to elect out of the automatic
allocation rules with respect to all transfers Taxpayer made to Trust 1, Trust 2 and
Trust 3.

       Each election should be made on an amended Form 709 and filed with the
Kansas City Service Center, at the following address: Department of the Treasury,
Internal Revenue Service Center, Kansas City, MO 64999. A copy of this letter should
be attached to the Form 709.

         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.

      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 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


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

Enclosures (2):
      Copy for § 6110 purposes
      Copy of this letter