Proposed rules govern taxation of gifts and bequests from covered expatriates

By Sally P. Schreiber, J.D.

Taxpayers who receive gifts or bequests from certain individuals who gave up their U.S. citizenship or residency will be subject to tax under rules proposed by the IRS on Wednesday (REG-112997-10). The proposed regulations implement Sec. 2801, which was added to the Code in 2008 by the Heroes Earnings Assistance and Relief Tax Act of 2008, P.L. 110-245, to tax “covered gifts” and “covered bequests” a U.S. citizen or resident received from a “covered expatriate” on or after June 17, 2008.

Covered expatriates, gifts, and bequests

Sec. 2801 imposes a tax, at the highest applicable gift or estate tax rates, on any U.S. person who receives a covered gift or bequest. A covered gift is defined as a direct or indirect gift from a covered expatriate within the meaning of Sec. 877A. The tax applies regardless of whether the property transferred was acquired by the donor or decedent covered expatriate before or after expatriation.

To define covered gifts, the proposed regulations adopt the definition of a gift in Chapter 12 of Subtitle B of the Code (gift tax). A covered bequest, however, is defined as any property acquired directly or indirectly because of the death of a covered expatriate, which is generally property that would have been includible in the covered expatriate’s gross estate had he or she been a U.S. citizen or resident at death.

Under the proposed regulations, if an expatriate meets the covered expatriate definition in Sec. 877A, he or she is considered a covered expatriate for Sec. 2801 purposes at all times after the expatriation date, except during any period beginning after that date during which he or she is subject to U.S. estate or gift tax as a U.S. citizen or resident.

Exceptions

Taxable gifts reported on a covered expatriate’s timely filed gift tax return, and property included in the covered expatriate’s gross estate and reported on the expatriate’s timely filed estate tax return are exempt from the Sec. 2801 tax if the gift or estate tax is timely paid. A covered expatriate’s qualified disclaimers of property are excluded, as are charitable donations that qualify as estate or gift tax charitable deductions.

Prop. Regs. Sec. 28.2801-3(c)(4) excludes a gift or bequest to a covered expatriate’s U.S. citizen spouse if the gift or bequest, had it been given by a U.S. citizen or resident, would qualify for the gift or estate tax marital deduction. For a gift or bequest in trust, this means that, to the extent the gift or bequest to the trust (or to a separate share of the trust) would qualify for the estate or gift tax marital deduction, the gift or bequest is not a covered gift or covered bequest.

A gift or bequest of a partial or terminable interest in property made to a covered expatriate’s spouse is excepted from the tax only to the extent it is qualified terminable interest property (QTIP), under Sec. 2523(f) or 2056(b)(7), and a valid QTIP election is made. If a covered gift or covered bequest is made to a nonelecting foreign trust (or to a separate share of the trust), a distribution from the trust (or from the separate share of the trust) to the U.S. citizen spouse of the covered expatriate who funded the trust (whether in whole or in part) will not qualify for the exception. A nonelecting foreign trust is a foreign trust that has not elected to be treated as a domestic trust.

Liability for Sec. 2801 tax

A U.S. citizen or resident who receives a covered gift or bequest is liable for the tax as is a domestic trust and an electing foreign trust. A nonelecting foreign trust is not liable, but the U.S. citizen or resident who receives a distribution from the trust is. The U.S. citizen or resident paying the tax may qualify for a limited deduction of the tax under Sec. 164, which the proposed regulations explain how to calculate.

Calculating the tax

The value of the covered gifts and bequests received during the year is reduced by the amount of the gift tax exclusion (i.e., $14,000 for 2015), and the property’s value is determined on the date of receipt. This net amount is then multiplied by the highest gift or estate tax rate in effect for the calendar year.

A gift is considered received on the date it would be considered received for gift tax purposes. For bequests, the date of receipt is the date the bequest is distributed from the trust or estate, except when it passes by operation of law or a beneficiary designation, in which cases the date of receipt is the date of death.

Special rules

The proposed regulations provide special rules for the treatment of the tax paid by a trust for generation-skipping transfer tax purposes, the payment of the tax by a charitable remainder trust, and for nonelecting foreign trusts to elect to become domestic trusts.

There are also special rules for determining the tax when the electing foreign trust disagrees with the IRS about the amount of tax it owes.

Effective date

The tax will be reported and paid on new Form 708, which the IRS has not yet issued and which it said it will issue once these proposed regulations are finalized. After the final regulations are published, taxpayers will be given a reasonable time to file the form for covered gifts or bequests received on or after June 17, 2008. Interest will not be imposed on these payments until the due date specified in the final rules has passed.

Sally P. Schreiber (sschreiber@aicpa.org) is a JofA senior editor.

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