The IRS announced that it is extending interim guidance on the treatment of investment advisory fees and other costs subject to the 2% floor under IRC § 67(a) (Notice 2011-37). Under the notice, nongrantor trusts and estates will not be required to unbundle their fiduciary fees to determine what portion is subject to the 2% threshold for itemized deductions. Instead, taxpayers will be allowed to deduct the full amount of bundled fiduciary fees without regard to the 2% floor.
The notice extends treatment that was originally issued in Notice 2008-32, effective for tax years beginning before Jan. 1, 2008. Subsequent notices extended the treatment to years beginning before Jan. 1, 2009, and then Jan. 1, 2010. Notice 2011-37 abandons the approach of extending the treatment one year at a time and extends it to any tax year beginning before the date final regulations under Treas. Reg. § 1.67-4 are published in the Federal Register.
The IRS and the Treasury Department intend to conform the regulations to the Supreme Court’s decision in Michael J. Knight, Trustee of William L. Rudkin Testamentary Trust v. Commissioner, 552 U.S. 181 (2008), but so far have not done so.
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