Gift-splitting: the intricacies of [section] 2513 of the Code.

Many practitioners assume that they have a complete understanding of the gift-splitting provisions found in [section]2513 of the Internal Revenue Code of 1986, as amended, and the gift tax regulations promulgated thereunder. In fact, the laws surrounding gift-splitting are complex, and an election to gift-split or the failure to properly gift-split can cause unintended adverse tax consequences. When practicing in the field of estate and gift taxation, a practitioner should have a complete understanding of the requirements that must be satisfied in order for a married couple to properly elect to gift-split, as well as the effects of such an election. This article will discuss the intricacies of gift-splitting.

Statutory Requirements

There are three requirements that must be met in order for a married couple to elect for all gifts to third parties (gifts to spouses may not be split) to be considered as made one-half by the donor spouse and one-half by the nondonor spouse: 1) at the time of the gift, each spouse must be a U.S. citizen or a U.S. resident; 2) at the time of the gift, the spouses must be married (if during the same year the gift was made, the spouses divorce, they may still elect to split gifts made while they were married, provided neither of them remarry during the same calendar year); and 3) both the donor spouse and the nondonor spouse must signify their consent to the election to gift-split. (1)

The Code also prescribes limitations as to which gifts a married couple may elect to gift-split. For example, a couple may not elect to split gifts to each other. (2) In addition, a gift by the donor spouse cannot be split where the donor spouse created in the nondonor spouse a general power of appointment as defined in [section]2514(c) of the Code. (3)

Gifts Must Be Ascertainable

Gifts which are eligible to be split are also limited to those gifts which are ascertainable. (4) For example, if a donor spouse transfers property so that a portion of the property interest is gifted to a third party and a portion of the interest is gifted to his or her spouse, in order for the portion gifted to a third party to be eligible for gift-splitting, such interest must be ascertainable at the time of the gift and, hence, severable from the interest transferred to the nondonor spouse.

In Kass v. Commissioner, T.C. Memo 1957-227, the donor spouse made a gift of corporate stock to a trust that provided for the net income of the trust to be paid to the nondonor spouse for life. The trust further provided that the trustees of the trust, in their absolute discretion, could pay from the principal of the trust any sum they deemed necessary or advisable for the "general welfare" of any income beneficiary to such beneficiary. The value of the stock as of the date of transfer was $54,000. The donor spouse and nondonor spouse each filed a U.S. Gift (and Generation-Skipping Transfer) Tax Return, Form 709 ("709") electing to split the gift of corporate stock to the trust. The Tax Court addressed whether the portion of the stock transfer attributable to third parties was ascertainable so that such transfer would be eligible for gift-splitting. The Tax Court held that such interest was not ascertainable, as it could not be demonstrated that the existence of the nondonor spouse's other assets would make the invasion of the trust's principal for her benefit unlikely. (5)

In Wang v. Commissioner, T.C. Memo 1972-143, the donor spouse was the grantor of a trust agreement which provided that during the joint lives of the donor spouse and the nondonor spouse, the trustee(s) should distribute the trust income to the nondonor spouse. The trust further provided that upon the death of the donor spouse, if the nondonor spouse was living, the trustee(s) were to set apart a separate portion of the trust assets, to be referred to as "Fund A" to be administered for the nondonor spouse's benefit. Fund A was to consist of an amount equal to the difference between one-half of the value of the donor spouse's adjusted gross estate and the value of all the property passing to the nondonor spouse pursuant to the donor spouse's will or by operation of law. Only assets that would qualify for the marital deduction were to be used to fund Fund A. The balance of the trust was to be used to fund "Fund B." The nondonor spouse was to receive the income from Fund A during her lifetime and she had a noncumulative right to withdraw $10,000 per year from the principal of Fund A in her sole discretion for any purpose whatsoever. The nondonor spouse also had a general power of appointment over Fund A. The trustees had the power to distribute as much of the trust's principal to the nondonor spouse as they deemed necessary or advisable for her proper care, support, and health, or in the event of an emergency. Upon the death of the nondonor spouse, the balance of the trust was to be divided equally into three trusts. Each then living child of the donor-spouse would be the beneficiary of one trust and if a child had predeceased the nondonor spouse, such child's share would be administered for the benefit of such deceased child's issue.

The donor spouse filed a 709 for the year of the transfer reporting a gift to the trust in the amount of $71,141.73. The donor spouse reported that $50,829.34 of the gift was attributable to the remainder interest transferred in trust for the benefit of third parties. Accordingly, the donor spouse and the nondonor spouse elected to split the gift of the remainder interest and, thus, each reported a gift of $25,414.67. The IRS issued a notice of deficiency to the donor spouse claiming that the portion of the gift attributable to third parties was not ascertainable and, thus, not eligible for gift-splitting.

In order to determine whether such interest was ascertainable, the Tax Court referred to the principles established in cases where it was necessary to determine whether a power given to a trustee to invade the principal of a trust for the benefit of a life tenant renders the bequest to a charity by way of a charitable remainder trust so indefinite as to render it impossible to ascertain the value of such bequest for purposes of a charitable deduction. (6) The court noted that such cases held that the answer depends on whether the trustee's power was limited by an ascertainable standard, which the court found only exists when the language of the document provides that the trustee is only permitted to invade the principal for health, education, support, and maintenance. (7)

The Tax Court held that the standard in the trust at issue was not an ascertainable standard, as the term "emergency" was not limited to preserving the spouse's present standard of living. Thus, the gifts of remainder interests were not subject to gift-splitting under [section] 2513 of the Code. (8)

In Private Letter Ruling 200345038, the donor spouse established three irrevocable trusts. (9) The beneficiaries of Trust 1 were the nondonor spouse and her daughter. The beneficiaries of Trust 2 were the nondonor spouse and her son. The beneficiaries of Trust 3 were the nondonor spouse and her other son. The trusts had identical terms and provided that the trustee could pay to the beneficiaries as much of the trust's income and principal as they deemed necessary or appropriate for the beneficiaries' health, maintenance, education, and support. In addition, each child had a general power of appointment over his or her respective trust. The donor spouse transferred assets to the trusts. The donor spouse and the nondonor spouse filed 709s to report the gifts, and elected to gift-split. However, they failed to allocate the proper amount of generation-skipping transfer (GST) tax exemption and subsequently requested a private letter ruling requesting an extension of time to allocate their GST tax exemptions to such transfers. In the private letter ruling, the IRS discussed the issue of whether the transfer to the third parties was ascertainable and, thus, eligible for gift-splitting. The Service concluded that because the trust provided that income and principal could be paid to the nondonor spouse for such spouse's health, maintenance, education, and support, the interest transferred to the children was ascertainable and, thus, eligible for gift-splitting. (10)

Manner and Time of Election

The election to gift-split typically is made by the donor spouse and consented to by the nondonor spouse. An election may also be made on behalf of a deceased donor by such donor's executor if the gift was made while the donor spouse was still living. (11) In addition, consent can be made by the executor of the nondonor spouse, provided that the gift was made while the nondonor spouse was still living. (12)

In Revenue Ruling 73-207, the donor spouse owned various life insurance policies on the life of her husband, the nondonor spouse. (13) The couple's children were designated as the beneficiaries of the policies' death benefits. Following the death of the nondonor spouse, the donor spouse filed a 709 on which she reported the transfer of the death benefit proceeds to her children as a gift. The nondonor spouse's executor signed the 709 to signify the consent of the nondonor spouse to gift-split and, thus, the gift was treated as being made one-half by the donor spouse and one-half by the nondonor spouse. The Internal Revenue Service noted that [section] 25.2513-1(b)(1) of the Regulations provides that consent to gift-split is not effective with respect to any gift made by the surviving spouse during the part of the year that the nondonor spouse is deceased. The IRS concluded that the designation of the children as the beneficiaries of the policies was not a completed gift, as the beneficiaries could be changed at any time prior to the death of the nondonor spouse. (14) The IRS further concluded that the gift was made at the time of the nondonor spouse's death, which was also the exact time the marital relationship ceased to exist. Accordingly, the IRS held that the gift was not eligible for gift-splitting. (15)

The election to gift-split may also be made by an agent of the donor spouse, provided that the donor spouse is not able to file a timely return by reason of illness, absence, or nonresidence. (16) If a return is filed by an agent of the donor, the return must be ratified by the donor or other person liable for its filing within a reasonable time after such person becomes able to do so. (17)

In Revenue Ruling 78-27, the donor spouse gifted real property to the child of the donor spouse and the nondonor spouse. (18) The donor spouse went to the preparer's office to sign the 709 and, as a matter of convenience, forged the nondonor spouse's signature on the line where the nondonor spouse was required to consent to gift-split. One year later, the donor spouse filed an amended 709. On such return, the nondonor spouse signed her own name to signify her consent to gift-split. The IRS concluded that the signature by the donor spouse of the nondonor spouse's name was not sufficient to signify consent to gift-split and that the filing of the amended 709 did not perfect such consent. (19)

The manner of signifying consent to gift-split depends on the type and amount of the gifts made by each spouse during the calendar year. If gift-splitting is elected and only one spouse makes gifts during the calendar year, the other spouse is not required to file a 709 if the total value of the gifts made to each third party donee is not in excess of two times the annual exclusion amount (currently $22,000) and no portion of the property transferred constitutes a gift of a future interest. (20) In such a case, the consent of both spouses should be signified on the donor spouse's 709. (21) If both spouses are required to file Form 709, consent may be signified in one of three ways: 1) the consent of the husband may be signified on the wife's 709 and the consent of the wife may be signified on the husband's 709; 2) consent of each spouse may be signified on his or her own 709; or 3) the consent of both spouses may be signified on one of the returns. (22)

Consent may generally not be signified after April 15 of the year following the year in which the gift was made (due date of the 709). (23) However, if no 709 was filed by either spouse on or before April 15, consent may be signified on a late filed 709. (24) If one of the spouses filed on or before April 15 and consent was not signified, consent may not be signified on the second spouse's 709 when it is filed. (25) If either spouse receives a notice of deficiency with respect to gift tax for the year in which the gift was made, consent to split may not be signified for such period. (26) If consent was made on or before April 15 of the year following the year in which the gift was made, the consent may be revoked on or before April 15 of such year by either spouse filing a duplicate signed statement of revocation. (27) If consent is signified after April 15 of the year following the year in which the gift was made, it may not be revoked. (28)

Joint and Several Liability and Payment of Gift Tax

When spouses elect to gift-split, the entire gift tax liability of each spouse for that tax year is joint and several. (29) In Chief Counsel Advice 200205027, the IRS held that although the gift tax liability was joint and several, fraud on the part of the donor spouse could not cause the statute of limitations to remain open with respect to the 709 filed by the nondonor spouse. (30) If a husband and wife elect to gift-split and the gift tax liability with respect to such transfers is paid by one spouse, the payment of the tax is not deemed a transfer subject to gift tax. (31)

Allocation of GST Tax Exemption

If an election to gift-split is made, the gift shall also be treated as if made one-half by each spouse for purposes of the GST tax. (32) For example, if A transfers real property to a trust for the benefit of his grandchild and A and his spouse, B, each file a 709 which signifies their consent to split all gifts made during the calendar year, each spouse should also allocate GST tax exemption to the transfer in an amount equal to one-half of the value of the gift.

In Private Letter Ruling 200422051, A transferred property to a trust for the benefit of his wife, B, during her life and for the benefit of a third party following her death. (33) A and B wanted to elect to split the gift of the remainder interest (assuming it was ascertainable and severable from the wife's interest in the trust). In addition, each spouse wanted to allocate GST tax exemption in an amount equal to one-half of the value of the property transferred to the trust. Although it is clear that the spouses may not split the gift attributable to the interest transferred to the nondonor spouse, the Regulations provide that for purposes of the GST tax exemption, the nondonor spouse is treated as the transferor of one-half of the entire value of the property transferred by the donor, regardless of the interest the nondonor spouse is actually deemed to have transferred under [section] 2513 of the Code. (34)

In Technical Advice Memorandum 200147021, husband and wife each made gifts to their grandchildren during the calendar year. At the time of the gift, husband had utilized all of his gift tax exemption and GST tax exemption. (35) Thus, the direct skips were subject to GST tax. Husband and wife elected to gift-split under [section] 2513 of the Code. The additional gift imposed by [section] 2515 of the Code, which states that the gift tax attributable to a direct skip will be considered an additional deemed gift to the donee, was also split by the spouses on their respective 709s. The IRS held that such treatment was required. (36)

Gift Subject to ETIP 

If a gift is made subject to an estate tax inclusion period (37) (ETIP), and such gift is split by the donor spouse and nondonor spouse pursuant to [section] 2513 of the Code, no allocation of GST tax exemption is made at the time the gift is reported. (38) Rather, the GST tax exemption should be allocated at the close of the ETIP. If the nondonor spouse dies prior to the close of the ETIP, the spouse's executor may allocate GST tax exemption to such transfer up to the amount of which the nondonor spouse is treated as the transferor. (39) The allocation will not be effective until the close of the ETIP. (40)

Coordination of [subsection] 2513 and 2035

Section 2035 of the Code provides that if a decedent made a transfer (by trust or otherwise) of an interest in any property, or relinquished a power with respect to any property, during the three-year period ending on the date of the decedent's death, and the value of such property (or any interest therein) would have been included in the decedent's gross estate under [subsection] 2036, 2037, 2038, or 2042 of the Code if such transferred interest or relinquished power had been retained by the decedent on the date of his death, the value of the gross estate shall include the value of any property (or interest therein) which would have been so included. (41) Section 2035(b) of the Code provides that the amount of any gift tax paid by the decedent or his estate on any gift made by the decedent or his spouse during the three-year period ending on the date of decedent's death shall also be included in the decedent's gross estate. (42)

In Revenue Ruling 81-85, the donor spouse made a gift to his child and the nondonor spouse elected to gift-split under [section] 2513 of the Code. (43) The gift tax attributable to the transfer was paid entirely from the donor spouse's assets. Soon thereafter, the nondonor spouse died. No part of the gift was included in her gross estate, but one-half of the gift was included in her estate as an adjusted taxable gift. Such amount was reduced by the gift tax attributable to one-half of the gift. Upon the death of the donor spouse, which was within three years of the date of the gift, the total amount of the gift, including the one-half treated as having been made by the donor spouse, and the total gift taxes paid thereon, were includible in the donor spouse's estate under [section] 2035 of the Code. The estate of the nondonor spouse filed a claim for refund claiming that the estate tax should be recomputed due to the fact that such tax was absorbed by the estate of the donor spouse. The IRS held that when a donor spouse dies after the death of the nondonor spouse and a gift that the nondonor spouse consented to split was includible in the donor spouse's estate under [section] 2035 of the Code, the estate of the nondonor spouse is entitled to recompute its tax as a result of the application of [section] 2001(e) of the Code. (44) Accordingly, the IRS concluded that one-half of the gift should not be included in the adjusted taxable gifts of the nondonor spouse and the tentative tax should not be reduced by any amount of gift tax payable on the split gift.

In Revenue Ruling 82-198, the donor spouse transferred property to an irrevocable trust pursuant to which the income was payable to the donor spouse for life and, upon the death of the donor spouse, the remainder would pass to a third party. (45) The donor spouse and the nondonor spouse each filed a 709 and elected to gift-split under [section] 2513 of the Code. Upon the death of the donor spouse, which was within three years of the date of the gift, the value of the assets gifted to the irrevocable trust were included in the donor spouse's estate under [section] 2035 of the Code. The IRS held that upon the death of the nondonor spouse, which was also within three years of the date of the gift, no portion of the gift would constitute an adjusted taxable gift in the estate of the nondonor spouse, where the full amount of the gift is included in the gross estate of the donor spouse under [section] 2035 of the Code. (46) The IRS further held that the estate of the nondonor spouse would receive no credit under [section] 2001(b)(2) of the Code for the gift tax paid by such spouse and any gift tax paid by the nondonor spouse is included in that spouse's gross estate under [section] 2035(c) of the Code. (47)

Transfers to a QPRT, GRAT, or GRIT

Gift-splitting should not be elected when one spouse gifts assets to a qualified personal residence trust, grantor retained annuity trust, or grantor retained income trust. If the donor spouse dies during the term of the trust, the entire value of the assets gifted will be included in the gross estate of the donor spouse and the nondonor spouse will receive no credit for such inclusion upon his or her death. The result is that the gift tax exemption of the nondonor spouse could be wasted.

Conclusion

A deceptively simple section of the Code can cause adverse tax consequences when the proper consideration is not given to the rules surrounding such section. Accordingly, a practitioner should fully explore the gift-splitting issues and discuss them with his or her client during the process of planning the client's gifts. In addition, the practitioner should take careful measures to effectively communicate the gifting strategy with the client's accountant so that, assuming the accountant is preparing the client's 709, the proper elections and reporting are done on such return on a timely basis.

(1) I.R.C. [section] 2513(a) (2004).

(2) I.R.C. [section] 2513(a)(1).

(3) Id.

(4) Treas. Reg. [section] 25.2513-1(b)(4).

(5) Kass, T.C. Memo 1957-227.

(6) Wang, T.C. Memo 1972-143.

(7) Id.

(8) Id.

(9) Priv. Ltr. Rul. 200345038 (Nov. 7, 2003).

(10) Id.

(11) Treas. Reg. [section] 25.2513-1(b)(1).

(12) Id.

(13) Revenue Ruling 73-207, 1973-1 C.B. 409.

(14) Id.

(15) Id.

(16) Treas. Reg. [section] 25.6019-1(h).

(17) Id.

(18) Revenue Ruling 78-27, 1978-1 C.B. 387.

(19) Id.

(20) Treas. Reg. [section] 25.6019-2.

(21) Treas. Reg. [section] 25.2513-2(a)(1).

(22) Id.

(23) Treas. Reg. [section] 25.2513-2(b)(1)(i).

(24) Id.

(25) Id.

(26) Treas. Reg. [section] 25.2513-2(b)(1)(ii).

(27) Treas. Reg. [section] 25.2513-3(a)(1).

(28) Id.

(29) I.R.C. [section] 2513(d) and Treas. Reg. [section] 25.2513-4.

(30) Chief Counsel Advice 200205027 (Feb. 1, 2002).

(31) Treas. Reg. [section] 25.2511-1(d).

(32) I.R.C. [section] 2652(a)(2).

(33) Priv. Ltr. Rul. 200422051 (May 28, 2004).

(34) Treas. Reg. [section] 26.2652-1(a)(4).

(35) Tech. Mem. 200147021 (Nov. 23, 2001).

(36) Id.

(37) An ETIP is the period during which, should death occur, the value of the transferred property would be includible (other than by reason of [section] 2035) in the gross estate of the transferor, or the spouse of the transferor. I.R.C. [section] 2642(f)(3) and Treas. Reg. [section] 26.2632-1(c)(2).

(38) Treas. Reg. [section] 26.2632-1(c)(1).

(39) Treas. Reg. [section] 26.2632-1(c)(5), Example 3.

(40) Id.

(41) I.R.C. [section] 2035(a).

(42) I.R.C. [section] 2035(b).

(43) Revenue Ruling 81-85, 1981-1 C.B. 452.

(44) Id.

(45) Revenue Ruling 82-198, 1982-2 C.B. 206.

(46) Id.

(47) Id.

David Pratt is the founder of Pratt & Bucher LLP, an estate planning boutique law firm with offices in Boca Raton, Boynton Beach, and West Palm Beach. He concentrates in estate and gift, generation-skipping transfer, and fiduciary income taxation. Mr. Pratt is a fellow of the American College of Trust and Estate Counsel, and is Florida board certified in taxation and wills, trusts and estates. He has published various articles on transfer tax and is a frequent lecturer.

Alyssa R. Feder is an associate with Pratt & Bucher LLP. She received her J.D. from Nova Southeastern University Law School and has an LL.M. in taxation from Georgetown University Law Center.

This column is submitted on behalf of the Tax Section, William D. Townsend, chair, and Michael D. Miller, Benjamin A. Jablow, and Normarie Segurola, editors.