Since 2010, the Federal estate tax exemption has been $5 million or higher. When a person dies and does not use all of his or her estate tax exemption, his spouse is able to add the unused exemption to his or her exemption if an estate tax return is filed, which elects to carry over the decedent’s unused exemption to the surviving spouse. This election is referred to as a portability election.

The IRS previously ruled that the portability election could only be made on a timely filed estate tax return, either nine months after the decedent’s death or 15 months if an extension is requested. A lot of surviving spouses who might benefit from electing portability neglected to file a timely estate tax return. Fortunately, the IRS has published Revenue Procedure 2014-18, which gives an extension until the end of 2014 to file the estate tax return to make the portability election. The Revenue Procedure will only help for a decedent who died between January 1, 2011 and December 31, 2013 and whose estate was below the estate tax filing threshold.

The Revenue Procedure will also help the surviving spouse of a same-sex marriage. Prior to the Windsor decision by the Supreme Court, a federal law known as the Defense of Marriage Act (“DOMA”) did not allow the surviving spouse of a same-sex marriage to make the portability election. Now that the Supreme Court has ruled DOMA to be unconstitutional, the surviving spouse is allowed to make a portability election. The new Revenue Procedure will allow an estate tax return to be filed in 2014 so that the surviving spouse can benefit from portability, even if the deadline for filing the return has already passed.

 

Even though the GST rate for trust distributions to grandchildren in 2010 was 0%, these distributions are required to be reported on a Form 706-GS(D-1) or 706-GS(T). No tax will be due. However, a trustee who fails to file a return will be guilty of a misdemeanor and can be fined up to $25,000 (or $100,000 if it is a corporate trustee) and imprisoned for up to 1 year.

This reporting requirement applies even if the trust was entirely exempt from GST tax due to the allocation of GST exemption. No return needs to be filed for distributions from trusts that are “grandfathered” from GST tax due to having been established prior to 1985.

The only good news is that the deadline to report distributions made on or before December 16, 2010 has been extended until September 19, 2011. Distributions made in the last 2 weeks of December, 2010 must be reported by April 18, 2011.

The bottom line is that the IRS is requiring the filing of hundreds of thousands of tax returns that cannot possibly owe any tax. Furthermore, there is no information reported on the return that can ever lead to the collection of tax in the future. You’ve got to love our government.