4400TTHH AAnnnnuuaall AAmmeerriiccaann IInnssttiittuuttee oonn FFeeddeerraall TTaaxxaattiioonn EEMMBBAASSSSYY SSUUIITTEESS HHOOTTEELL BBiirrmmiinngghhaamm ((HHoooovveerr)),, AAllaabbaammaa JJuunnee 2222--2244,, 22001166 Regions Private Wealth Management is proud to support the 40TH Annual American Institute on Federal Taxation TABLE OF CONTENTS Federal Tax Update for CPA-Estate Planners .......................................................................... 1 Robert S. Keebler Planning for Clients Under the $10 Million Net Worth, Including Portability Considerations ........................................................................................................................... 2 Diana S.C. Zeydel Looking Back at the Evolution of the Estate and Gift Tax Regime/Looking Forward to the Future of the Estate Planning Practice ........................................................................... 3 Charles A. Redd Non-Tax Considerations in Family Business Succession Planning ......................................... 4 Edward F. Koren Federal Income Tax Developments .......................................................................................... 5 Bruce A. McGovern Current Developments in Taxable Asset Acquisitions ............................................................. 6 Matthew E. Gareau Employee or Independent Contractor? Tax Law, Labor Law, Health Care, and State Law Take Turns At Making An Old Issue More Complex Than Ever ........................... 7 Larry Campagna & Chaya Kundra Navigating the Partner/Employee Dichotomy ........................................................................ 8 James B. Sowell Panel Discussion of Recent Developments in Alabama Taxes- Legislative, Judicial and Administrative ................................................................................... 9 Panel Discussion: Bruce P. Ely, Joe W. Garrett, Jr., and Curtis E. Stewart Dealing with Atypical Assets in IRAs and Qualified Plans .................................................... 10 Pamela D. Perdue I Can’t Believe I Missed That Deadline .................................................................................. 11 Christopher C. Adler From Audit Through Appeals to Litigation: What You Need to Know Now ....................... 12 David D. Aughtry Rates, Brackets, & Thresholds Federal Tax Update for • 2016 Income tax brackets for trusts and estates CPA-Estate Planners American Institute on Federal Taxation Wednesday, June 22, 2016 10:15 –12:00 Presented by: Robert S. Keebler, CPA/PFS, MST, AEP Keebler & Associates, LLP [email protected] Rev. Proc. 2015-53 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 1 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 2 Rates, Brackets, & Thresholds Rates, Brackets, & Thresholds • Gift tax annual exclusion: $14,000 • Estate/Gift/GST exclusion amount: $5,450,000 • Annual exclusion for gifts to noncitizen spouse: $148,000 Rev. Proc. 2015-53 e.g. Rev. Rul. 2016-09 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 3 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 4 Rates, Brackets, & Thresholds Consistent Basis Reporting e.g. Rev. Rul. 2016-09 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 5 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 6 1 Consistent Basis Reporting Consistent Basis Reporting • Four Key Issues • Congress took issue with beneficiaries ‒ Zero basis reporting a basis inconsistentwith the values ‒ Subsequent filings claimed on estate tax returns. ‒ Probate litigation & disclosure requirements • Example: Mom reports an interest in a ‒ Tax compliance partnership with a FMV $100,000 on her estate tax return. Daughter later sells this interest and reports the basis to her, as provided by §1014(a), is $120,000. ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 7 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 8 Consistent Basis Reporting Consistent Basis Reporting • Congress therefore decided to require • Effective on date of enactment: 7/31/15 reporting of the basis of assets received by • Added §1014(f) and §6035 beneficiaries to the Service. –§1014(f) requires consistent basis • Included in the Surface Transportation and –§6035 requires reporting Veterans Health Care Choice Improvement Act of 2015 –P.L. 114‐41 –Sec. 2004 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 9 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 10 Consistent Basis Reporting Consistent Basis Reporting • Treasury Response Timeline: 1014(f) Basis Must Be Consistent With Estate Tax Return –Notice 2015‐57, released 8/21/15, delayed reporting until (1) In general. The basis of any property to which 2/29/2016. subsection (a) applies shall not exceed‐‐ –12/18/15, draft Form 8971 released. (A) in the case of property the final value of which has been –1/26/16, draft Instructions for Form 8971 released. determined for purposes of the tax imposed by chapter 11 on –Notice 2016‐19, released on 2/11/16, further delayed the estate of such decedent, such value, and reporting until 3/31/16. (B) in the case of property not described in subparagraph (A) –Proposed Regulations, released 3/2/16 and with respect to which a statement has been furnished under –Notice 2016‐27, released 3/23/16, further delayed section 6035(a) identifying the value of such property, such reporting until 6/30/16. value. … ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 11 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 12 2 Consistent Basis Reporting Consistent Basis Reporting 6035 • Who must file the new Form 8971: (a) Information with respect to property acquired from –Persons required to file a 706. decedents –Does not include those who file a 706 merely (1) In general make an election or allocation regarding GST or The executor of any estate required to file a return under section portability. 6018(a) shall furnish to the Secretary and to each person acquiring any interest in property included in the decedent’s gross estate for Federal –Does not include those who file a protective 706 estate tax purposes a statement identifying the value of each interest to prevent a later adjustment. in such property as reported on such return and such other information with respect to such interest as the Secretary may prescribe. Treas. Reg. §1.6035-1(a)(2). ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 13 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 14 Consistent Basis Reporting Consistent Basis Reporting • Who must file the new Form 8971: • What types of property must be reported? 706 Filed 8971 §1014(f) –§1014(f) implies that the basis in all property must be Required Applies reported. Estate1≤ BEA –However, it does not make sense to report certain types of Estate1≤ BEA (portability only) X property because an inconsistent basis is not an issue. Estate1≤ BEA (GSTallocation only) X Estate1≈ BEA (protectiveclaim) X –Moreover, some types of property interests make it dEestdautcet1io>n sB eElAim (icnhaatreittaabxl elia &b imlitayr)ital X X2 –uThnecl ereagr uhloawtio annsd c tlaor wifyh othme troe preoprotirntg b raesqisu.irements. Estate1> BEA X X X3 1. Gross estate plus adjusted taxable gifts. 2. Form 8971 is required whether or not marital and/or charitable deductions eliminate estate tax liability. 3. §1014(f) applies to property that increases estate tax liability(i.e., property other than assets eligible for the marital or charitable deduction). ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 15 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 16 Consistent Basis Reporting Consistent Basis Reporting • Exemptions from reporting: • Tax exempt beneficiaries –Cash & equivalents –A charity will never owe income tax on the sale of the asset and therefore the basis is irrelevant. –Income in respect of decedent (IRD) –The statute and current version of the instructions do not –Tangible personal property provide an obvious exception for tax‐exempt beneficiaries • except if an appraisal is required under §20.2031‐6(b) from reporting. • “articles having marked artistic or intrinsic value of a total value in –The regulations provide however, that property that excess of $3,000 (e.g., jewelry, furs, silverware, paintings, etchings, qualifies for a estate tax charitable deduction under engravings, antiques, books, statuary, vases, oriental rugs, coin or section 2055 is excluded from the basis consistency stamp collections)” requirement. §1.1014–10(b)(2). Treas. Reg. §1.6035-1(b)(1). ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 17 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 18 3 Consistent Basis Reporting Consistent Basis Reporting • The marital deduction • When basis is required to be inconsistent: –Commonly, someone with an estate greater than the basic –There are many common adjustments to basis that will exclusion amount will not owe estate tax because their occur during estate administration. assets pass to the surviving spouse. –A few examples: –Treas. Reg. §1.1014–10(b)(2) provides that property which • Depreciation & amortization qualifies for the marital deduction under §2056 is not • Capitalized improvements subject to the basis consistency requirement. • C‐corporation distributions in excess of E&P • S‐corporation distributions in excess of AAA (and E&P) • Capital contributions to partnerships • Partnership distributions less than taxable income • Partnership distributions in excess of taxable income • §754 elections ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 19 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 20 Consistent Basis Reporting Consistent Basis Reporting • When basis is required to be inconsistent: • Beneficiary Not an Individual –§1014(f) provides that the basis of property acquired from –§6035(a)(1) requires “each person acquiring any interest a decedent shall not exceed the final value of the property in property included in the decedent’s gross estate” to for the estate tax receive information regarding the basis of the property. –§1.1014‐10(a)(1) a taxpayer’s initial basis in certain –If a trust is a beneficiary of the estate, does the executor property acquired from a decedent may not exceed the send the basis information to a trustee or the trust final value reported for estate tax purposes. beneficiary(ies) or both? –If the beneficiary is a trust, estate, or entity the executor must furnish the statement to the trustee, executor, or entity respectively. §1.6035‐1(c)(2). ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 21 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 22 Consistent Basis Reporting Consistent Basis Reporting • Specific Assets to be distributed unknown • Example 1 –Very often the specific assets to be distributed to a –Specific bequest of hunting land to Son A beneficiary are unknown; common examples –Specific bequest of Packer tickets to Son A • Formula Bequests • Pecuniary Gifts –Specific bequest of 1000 dairy cattle to Son B • Residuary Gifts –Specific bequest of 5000 shares of utility stock to –The regulations provide if by the due date of the Form Charity 8971 the executor has not determined what property will be used to satisfy each beneficiary all the property that –Residue to Spouse might be used must be reported. §1.6035‐1(c)(3). ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 23 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 24 4 Consistent Basis Reporting Consistent Basis Reporting • Example 1 • Example 2 –8971 Schedule A –very easy & private –Rev Trust Provides •Son A •Pecuniary bequest of $500,000 to Son A –Hunting land •Pecuniary bequest of $1,500,000 to Son B –Packer tickets •Son B •Pecuniary bequest of $250,000 to charity –1000 dairy cattle •Residue to Spouse •Charity –5000 shares of utility stock •Surviving Spouse –Everything else ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 25 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 26 Consistent Basis Reporting Consistent Basis Reporting 8971 Reconciliation • Example 2 Total Amount Reported on each 8971, Schedule A –8971 Schedule A –unclear & public •Each Schedule A could be the same because the assets + Assets not distributed from estate which will be used to satisfy each bequest might be + Expenses incurred by the estate/trust unknown or might change. •Unclear which value to report for the pecuniary + Debts repaid bequests. + Estate tax paid –Instructions imply the value reported on the 706. –However that might not be of much use to the beneficiaries. +/‐Other Adjustments Gross Estate ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 27 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 28 Consistent Basis Reporting Consistent Basis Reporting • After discovered and omitted property • Failure to file an estate tax return –Often, additional property is discovered or otherwise –Commonly, because of a mistake in valuing property or omitted after the estate tax return is filed. otherwise, estate tax returns are not filed when required. –If the property is discovered and reported before the end –What basis is consistent with the value reported on the of the assessment period, the beneficiary's basis equals Estate Tax Return if no return is filed? the final estate tax value. §1.1014‐10(c)(3)(i)(A). –If the no estate tax return is filed, the basis of any –If the property is not reported until after the end of the property distributed from the estate is zero until a final assessment period, the beneficiary's basis is zero. § value is determined. §1.6035‐1 (c)(3)(ii). 1.1014‐10(c)(3)(i)(B). ZERO BASIS RULE ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 29 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 30 5 Consistent Basis Reporting Consistent Basis Reporting • Supplemental Reporting • Supplemental Reporting –§1.6035–1(e)(1)‐(2): requires a supplemental Form 8971 –§1.6035–1(e)(4) provides that the due date of a and Schedule A to report any changes. supplemental return is 30 days after: –Such changes include: • (i) the final value of property is determined, • Discovery of additional property • (ii) the executor discovers previously provided information was • Property value changes inaccurate or incomplete, or • Beneficiary changes • (iii) a supplemental estate tax return is filed –§1.6035–1(e)(3): provides that supplemental reporting is not required to • correct an inconsequential error or omission • disclose the specific property used to satisfy a beneficiary's interest ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 31 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 32 Consistent Basis Reporting • Subsequent transfers –If all or any portion of property that previously was reported or is required to be reported on an Information Return is distributed or transferred by the recipient in a Portability transaction in which a related transferee determines its basis, in whole or in part, by reference to the recipient/transferor’s basis, the recipient/transferor must, no later than 30 days after the date of the distribution or other transfer, file with the IRS a supplemental Statement and furnish a copy of the same supplemental Statement to the transferee. §1.6035–1(f). ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 33 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 34 Portability Portability Final Regulations Final Regulations • Effective: June 12, 2015 • Section 2010(c)(5)(B) grants the IRS the authority to • An extension of time to elect portability will not be examine returns of each deceased spouse of the granted under §301.9100‐3 to any estate that is surviving spouse to determine the DSUE amount required to file an estate tax return because the allowed to be included in the applicable exclusion value of the gross estate equals or exceeds the filing amount of the surviving spouse, even if the SOL has threshold, but may be granted under the rules set expired with respect to the returns of the deceased forth in §301.9100‐3 to estates with a gross estate spouse. value below that threshold amount and thus not • Regulations make no changes to this rule. otherwise required to file an estate tax return. ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 35 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 36 6 Portability Portability Final Regulations Final Regulations • Allow a surviving spouse who becomes a U.S. citizen • The IRS intends to provide guidance to clarify after the death of the deceased spouse to take into whether a QTIP election may be disregarded and account the DSUE amount of such deceased spouse treated as null and void when an executor has as of the date such surviving spouse becomes a U.S. elected portability (Rev. Proc. 2001‐38 issue) citizen, provided the deceased spouse’s executor has • An estate’s eligibility under sections 2012 through made the portability election. Treas. Reg. §20.2010‐ 2015 for credits against the tax imposed by section 3. 2001 does not impact the computation of the DSUE amount. ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 37 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 38 Portability Portability Late Election Relief Late Election Relief • Commonly an Estate fails to file a “portability” return • Revenue Procedure 2014‐18 provided relief to when it might be prudent to do so. executors who failed to make the portability election. • Fortunately, relief is sometimes possible under Treas. • Eliminated the need to request a letter ruling and the Reg. §301.9100‐3. associated fee. • Applies to the estate of a taxpayer who died in 2011, 2012, or 2013. • Streamlined relief under Revenue Procedure 2014‐18 is not available afterDec. 31, 2014. ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 39 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 40 Portability Portability Late Election Relief Late Election Relief • Fortunately, relief by submitting a letter ruling is • Facts common to PLRs where the Service allows a possible under Treas. Reg. §301.9100‐3. taxpayer to make a late portability election: • PLRs where the taxpayer was granted a 120‐day ‒ Decedent died after Congress created portability and is extension to make the election: survived by a spouse. ‒ The decedent was not required to file an estate tax return ‒‒PPLLRR 220011661175000130 ‒‒PPLLRR 220011661132000160 ‒‒PPLLRR 220011660055001009 ‒‒PPLLRR 220011555409003222 and did not do so. ‒‒PPLLRR 220011661154000390 ‒‒PPLLRR 220011661122000098 ‒‒PPLLRR 220011660054000186 ‒‒PPLLRR 220011554484000147 ‒ The estate discovered that it failed to file for portability ‒PLR 201614028 ‒PLR 201610013 ‒PLR 201604015 ‒PLR 201544003 after the due date. ‒PLR 201614027 ‒PLR 201608010 ‒PLR 201604014 ‒PLR 201544001 ‒PLR 201614023 ‒PLR 201608008 ‒PLR 201604013 ‒PLR 201539021 ‒PLR 201614021 ‒PLR 201607024 ‒PLR 201603021 ‒PLR 201537012 ‒PLR 201614020 ‒PLR 201607019 ‒PLR 201603007 ‒PLR 201537010 ‒PLR 201614005 ‒PLR 201606013 ‒PLR 201601006 ‒PLR 201535004 ‒PLR 201613011 ‒PLR 201606012 ‒PLR 201552010 ‒PLR 201532002 ‒PLR 201613010 ‒PLR 201605011 ‒PLR 201551008 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 41 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 42 7 Portability Portability Late Election Relief Late Election Relief • Sections 301.9100‐2 and 301.9100‐3 provide the standards • A request for relief under §301.9100‐3 will be granted when the Commissioner will use to determine whether to grant an the taxpayer provides evidence to establish to the satisfaction extension of time to make an election. of the Commissioner that the taxpayer acted reasonably and • Section 301.9100‐2 provides automatic extensions of time for in good faith, and that granting relief will not prejudice the making certain statutory and regulatory elections. interests of the government. • Section 301.9100‐3 provides for an extension of time for • Section 301.9100‐3(b)(1)(v) provides that a taxpayer is making regulatory elections that do not meet the deemed to have acted reasonably and in good faith if the requirements for an automatic extension of time under § taxpayer reasonably relied on a qualified tax professional, 301.9100‐2. including a tax professional employed by the taxpayer and the tax professional failed to make, or advise the taxpayer to make, the election. ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 43 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 44 Portability Late Election Relief • Possible Alternative to PLR ‐Treas. Reg. Sec. 20.6081‐1(c) provides: Federal District Courts & ‒ In its discretion, the Internal Revenue Service may, upon the showing of good and sufficient cause, grant an extension of time to file the return required by section 6018 in certain situations. Tax Court ‒ Such an extension may be granted to an estate that did not request an automatic extension of time to file Form 706 prior to the due date under paragraph (b) of this section, to an estate or person that is required to file forms other than Form 706, or to an executor who is abroad and is requesting an additional extension of time to file Form 706 beyond the 6‐month automatic extension. Cases of Interest ‒ Unless the executor is abroad, the extension of time may not be for more than 6 months beyond the filing date prescribed in section 6075(a). ‒ Form 4768 should be filed sufficiently early to permit the Internal Revenue Service time to consider the matter and reply before what otherwise would be the due date of the return. Failure to file Form 4768 before that due date may indicate negligence and constitute sufficient cause for denial of the extension. ‒ If an estate did not request an automatic extension of time to file Form 706 under paragraph (b) of this section, Form 4768 must also contain an explanation showing good cause for not requesting the automatic extension. ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 45 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 46 Mikelv. Commissioner, TC Memo 2015‐64 Mikelv. Commissioner, TC Memo 2015‐64 Present Interest Requirement Present Interest Requirement • Petitioner made gifts to trust and claimed annual • IRS: trust beneficiaries did not receive a “present interest in exclusions for 60 Crummeypower holders. property” because their rights of withdrawal were not “legally enforceable” in practical terms. • Along with Crummeypowers, beneficiaries could • IRS: A right of withdrawal is “legally enforceable” only if the receive distributions at trustee’s discretion. beneficiary can “go before a state court to enforce that right.” • If any dispute arose concerning the proper The Crummeyrights were illusory because, although the interpretation of the declaration, the trust provided decision of the Rabbinical Court could be appealed to a state that the dispute “shall be submitted to arbitration court, a beneficiary wouldn’t make such an appeal because it would trigger a no contest clause causing the beneficiary to before a panel consisting of three persons of the forfeit all rights in the trust. Orthodox Jewish faith.” • Trust contained no contest clause. ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 47 ©Al l2 R0i1g5h tKs eReebsleerr vTeadx. & Wealth Education, Inc. 48 8
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