Year End Is Almost Here-Are You Going to Use It Or Lose It?

By: Randall A. Denha, J.D., LL.M.

In December of 2010, the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the “Tax Relief Act”) was signed into law, which made significant modifications to the estate, gift and generation-skipping transfer (“GST”) taxes. The Tax Relief Act:

• reduced the estate, gift and GST tax rates to 35%.

• increased the estate tax exemption from $3.5 million to $5 million.

• increased the GST tax exemption from $1 million to $5 million.

• reunified the estate and gift tax exemptions so that an individual can gift up to $5 million during life.

Unfortunately, these favorable provisions of the Tax Relief Act will remain in effect only through December 31, 2012, when the act is scheduled to sunset. Unless the law changes, in 2013, the law will revert to the 2001 law-the top gift and estate tax rate will be 55% and the estate and gift tax exemptions will be $1 million! Ouch. In addition, the GST tax rate will revert to 55% and the GST tax exemption will be $1 million (indexed for inflation). As such, many of the favorable provisions in the Tax Relief Act will no longer apply. Thus, you may wish to consider one or more of the following planning techniques before the current law expires at the end of 2012.

The Increased Exemption Allows Greater Non-Taxable Gifts

Now that gift tax exemption has increased to $5,120,000 per person, you now have the ability to reduce your estate by simply making direct gifts to your descendants, or trusts for their benefit, or anyone else you wish to benefit. In fact, a married couple can gift $10,240,000 to their descendants without paying any gift tax. Remember that if you previously used your entire gift tax exemption when it was limited to $1,000,000, the additional amount of gift tax exemption is available to you and your spouse, if applicable.

Additionally, in the event that you made loans to your children or grandchildren, you may wish to use your gift tax exemption to forgive those loans.

Making gifts during life not only reduces your estate by the amount gifted, but also by all the appreciation on that gift over time.

Making Gifts in Trust Is Better

It is generally far better to make gifts in trust. Although it is simple to make a direct gift of cash or marketable securities to various individuals, there are many advantages to making gifts of property in trust instead of outright gifts to individuals. Gifts to trusts for the benefit of your descendants allow you to allocate your GST tax exemption to that trust. Allocating your GST tax exemption to the trust enables the funds in the trust, plus all future growth, to pass to your descendants without any estate or GST tax at each beneficiary’s death.

Gifts in trust, if structured as a Grantor Trust, also provide an additional opportunity for the trust’s income to be taxed to you instead of to the trust or the trust beneficiaries. This special trust allows you to make additional tax-free gifts to the trust of the amount of the tax that the trust otherwise would pay. Additionally, gifts in trust provide asset and creditor protection from claims of the beneficiary’s creditors, including spouses, and also ensure that the assets do not pass outside the family bloodline. These benefits apply at every generation for the longest period allowed under law.

Leveraging Your Gifts

Making an outright gift permits you to value the gift without a discount. For example, gifting cash only allows you to value the cash at its dollar amount. However, an alternative to making a gift of cash would be to form a limited liability company (“LLC”) and give away part of that LLC to a trust for the benefit of your descendants. The advantage of gifting interests in a partnership or LLC is that such interests may be able to be valued in such a way that discounts for a minority and marketability interest can be utilized. Assuming a 30% discount, a gift of an LLC interest with an underlying value of $10 million would be $7 million and still be under the $10,240,000 combined gift tax exemption for you and your spouse. Additionally, as mentioned above, GST tax exemption could be allocated to the trust, enabling both the interest transferred to the trust, and all future growth to pass to your descendants without further worry of additional estate, gift or GST tax.

Gift Tax Rates Are Going Up Up Up (those above the $5 million exemption amount)

Currently, for 2012, the gift tax rate is 35%. In 2013, that rate is scheduled to increase to 55% at its maximum and begin at 41%. Thus, to the extent that you wish to make taxable gifts, or gifts in excess $5,120,000 (which represents the current individual lifetime gift exemption), you may wish to consider making such gifts this year. In addition to paying tax at a lower rate, the gift tax paid is removed from your estate (assuming you live for three years or more from the date the gift is made) and all the appreciation on the gifted asset is removed from your estate. By way of example, a gift of $5 million made in 2012 by an unmarried individual who had used his $5 million gift tax exemption in 2011 would result in a gift tax payable of $1,750,000. In 2013, the same $5 million dollar gift would result in a gift tax payable of $2,750,000. Moreover, assume that the individual dies in 2020 and that there is 5% growth, the gift tax of $1,750,000 and the appreciation of $2,387,277 (compounded annually over eight years) would be removed from the estate tax-free.

Non-Reciprocal Trusts Created by Married Couples – Having Your Cake And Eating It Too

In our May 2012 Blog we discussed the concept of the Spousal Lifetime Access Trust, or SLAT. Let’s suppose you really do not want to make a gift at this time, but you also do not want to waste the savings available by the increased exemption amount available in 2012. You can create a trust for the benefit of your spouse. By doing so, the assets transferred to the trust (and any growth on those assets over time) would be removed from your taxable estate. However, if you need to use some of the funds in the trust, your spouse can simply receive a trust distribution. If you add your descendants as potential beneficiaries of the trust, the Trustee also could make a distribution to one or more of them, which will also occur free of gift tax. This flexibility would allow (but not necessarily require) distributions to be made to your spouse or descendants. Since trust distributions are not required, the funds also could accumulate in the trust and not be subject to any further estate, gift or GST tax. It is possible for each spouse to create trusts for each other, if desired.

Each spouse (the “grantor-spouse”) would establish a trust for the other spouse (the “beneficiary-spouse”). The trusts would be mutual but would contain some differences to avoid the trusts being deemed “reciprocal,” which could cause adverse estate tax consequences. For example, one trust would be for the benefit of the spouse and descendants, while the other trust would be only for the benefit of the spouse. Or the trusts can have different Trustees, with one beneficiary-spouse acting as sole Trustee of one trust and the other beneficiary-spouse acting with another individual as co-Trustees of the other trust. In addition, in one, but not both of the trusts, the spouse can be given a limited power to appoint trust property upon his or her death to any one or more of your descendants and charity.

Upon the death of the survivor of both spouses, the remaining trust property would be divided into equal shares for your children (or your grandchildren) and held in continuing trusts for them. The terms of those trusts would mimic the terms of the trusts for your children (or grandchildren) in your revocable trusts. In addition, if you allocate your GST exemptions to the trusts, the property would be held in trust for the lifetime of your children, then grandchildren and future generations. Those trusts are sometimes referred to as “dynasty trusts” or “perpetual trust” because they continue in perpetuity. For as long as the assets are held in trust, there is no estate or GST tax imposed and the assets are protected from creditors. Accordingly, wealth can be transferred from generation to generation tax-free.

A Potential Pitfall: The Clawback

Some practitioners have raised the concern that if a donor uses the increased exemption of $5,120,000 during 2012, and, in 2013, that exemption is reduced back to $1 million, then, upon the death of the donor, there could be a potential clawback of the gifts made in excess of that reduced exemption when determining the estate tax owed by the donor’s estate. However, there is nothing in the current law to suggest that the government would take this approach. Hopefully, Congress will enact tax legislation that fixes this problem so no more guessing takes place.

Nonetheless, despite the above we strongly feel that individuals should still take full advantage of the current exemption amounts and rates while the opportunity is still there. Gifts always have the advantage of transferring future growth out of one’s estate, in addition to removing the assets that have been transferred.

THIS ARTICLE MAY NOT BE USED FOR PENALTY PROTECTION. THE MATERIAL IS BASED UPON GENERAL TAX RULES AND FOR INFORMATION PURPOSES ONLY. IT IS NOT INTENDED AS LEGAL OR TAX ADVICE AND TAXPAYERS SHOULD CONSULT THEIR OWN LEGAL AND TAX ADVISORS AS TO THEIR SPECIFIC SITUATION.