Tuesday, March 19, 2013


The American Taxpayer Relief Act of 2012 (“ATRA 2012”) made substantial estate, gift and generation skipping changes and these changes are ostensibly permanent.  These changes are summarized as follows:
The exemption amount is now $5 million per person, indexed for inflation after 2011. (For transfers in 2013, the exemption is $5.25 million.)  The rate of tax is a flat 40% above the exemption.  Portability is preserved meaning if the surviving spouse files a timely election on the Estate Tax return of the first spouse to die, the surviving spouse inherits any unused portion of the exemption from the predeceased spouse.
There are still many opportunities for tax reduction including using grantor retained annuity trusts (“GRATs”) and discounting through family limited partnerships (“FLPs”) and family limited liability companies (“FLLCs”).
According to a recently issued Congressional Research Service (CRS) report these “permanent” changes may be changed soon. It notes that there are some lingering proposals to crack down on perceived abuses.  These changes include:
GRAT reform - A proposal would impose a minimum annuity term of 10 years, disallow any decline in the annuity, and require a non-zero remainder interest. 
FLP and FLLC reform - Another proposal would disallow discounts for interests in FLPs and FLLCs. Courts will generally allow estates to reduce the fair market value when assets, including marketable securities, are left in FLPs or FLLCs.
Consistent valuation requirement. Currently, there is no explicit rule requiring the same valuation of fair market value of an estate asset for estate tax purposes versus for purposes of stepped up basis in the hands of the heir. A proposal would require the same value for both purposes.
Limit duration of GST trusts. A proposal would limit the life of a Generation Skipping Trust to 90 years.
Coordination of grantor trust and transfer tax rules. And finally, another proposal would cause inclusion of the assets of a grantor trust in the grantor's estate or cause there to be a gift tax if the grantor ceased being owner.

Conclusion:  There are still techniques available to reduce estate, gift and GST taxes, but they may be fleeting, so planning now is very important.

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