Repeal of the Federal Estate Tax and Carry-Over Basis

Repeal of the Estate Tax for 2010

            Despite our assertion that Congress would never allow a repeal of the estate tax in 2010, we find ourselves in the last quarter of 2010 with just that- no estate tax.  Further, in 2010, there is also no Generation Skipping Tax (“GST”). Unless Congress acts prior to the end of 2010, both the federal estate tax and GST will be reinstated as of January 1, 2011 with an exemption of $1,000,000 per person and a 55% rate of tax.  It should be noted, however, that any applicable state estate tax is still in full force and effect in 2010.  In addition to the major impact of the repeal of the federal estate tax and GST, 2010 brings about several other tax consequences that could impact one’s estate plan.  These will be discussed in greater detail below.

            Although there is still a federal gift tax for gifts exceeding a donor’s $1,000,000 lifetime exemption, the gift tax rate is reduced to 35% in 2010 from 45% in 2009.    

            More significantly, as of January 1, 2010, the “stepped-up basis” rule which applied pre-2010 (property acquired from a decedent through an inheritance was given a new basis of fair market value as of the decedent’s date of death), was replaced with the “carryover basis” rule in 2010.  The new set of rules means that property acquired from a decedent through inheritance will retain the decedent’s tax basis in the hand of the beneficiary, which would most likely result in capital gain when the beneficiary sells the inherited property.  However, there are exceptions to the carryover basis which could help ease the burden of the new set of rules.  First, the new rule permits an increase of up to $1,300,000 in the basis of certain assets owned by the decedent.  Second, there is an increase of up to an additional $3,000,000 in the basis of property passing to the decedent’s surviving spouse. 

            There are certain requirements to the basis adjustment rules outlined in the foregoing.  For example, none of the decedent’s assets may have a basis adjusted above fair market value.  Further, the Executor, in his/her sole discretion, elects which assets are to receive the basis adjustment.  Finally, there is an additional tax return required to be filed for the allocation of the basis adjustment to property acquired from a decedent, if the fair market value of the property exceeds $1,300,000 or if the decedent acquired property by gift, except in certain cases.  This form is due with the decedent’s final income tax return.

            The repeal of the estate tax is not as good as it might have seemed due to the additional filings and taxes.  Moreover, a sunset back to $1,000,000 applicable exclusion amount in 2011 with a 55% tax is even less desirable.  Please feel free to contact us for more information and to talk about addressing these changes.

Nicole E. Russak, Esq.

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