Читать книгу 2012 Estate Planning - Martin Inc. Shenkman - Страница 40

EXAMPLE: In 2012 you have not already used up all of your $5.12 million gift and GST exemption amounts. You may benefit most from shifting as much wealth as your remaining GST exemption will allow into a multi-generational GST exempt trust for the benefit of your children, grandchildren, and more remote descendants. This provides maximum flexibility. But if children, who are not skip persons, are included as beneficiaries, the trust involved is nota “skip person” and the gift to the trust is nota “direct skip.” If instead no children were included as beneficiaries in this trust, the trust itself will be a “skip person” and the gift to the trust will be a “direct skip.”

Some important definitions:

•A skip person is a person who is two or more generations below the generation of the person making the gift (e.g., a grandchild or a trust for the sole benefit of a grandchild). A trust is also considered a skip person when no distributions can be made currently to non-skip persons (e.g., children). This concept is critical to understanding 2012 tax planning since it may be essential for you to file a gift tax return and affirmatively allocate GST exemption to transfers made to many types of trusts that receive 2012 gift transfers (e.g., DAPTs, discussed in Chapter 5). A proper and timely allocation to your GST exemption on a federal gift tax return (Form 709) is often required to assure that the recipient trust is in fact GST exempt.

•Anon-skip person is a person who is less than two generations below the generation of the person making the gift (e.g., a child or sibling). In certain instances, the premature death of a child will allow the deceased child’s children to avoid treatment as a skip person (i.e., the deceased child’s children move up a generation for GST tax purposes). This means that transfers to such grandchildren won’t trigger the GST tax. A direct skip requires a transfer of an interest in property, which is subject to the estate or gift tax (even if protected by an exclusion or exemption from estate and gift tax), to a skip person. The person making the transfer pays the GST tax on a direct skip.

Once it has been determined that a gift is subject to the GST tax, the GST tax must be calculated. For GST tax purposes, a taxable transfer of property is generally valued at the time the generation-skipping transfer occurs and is based on the same valuation rules that apply to gifts.

PLANNING NOTE: Special rules apply when a late allocation of GST exemption is made, (e.g., GST exemption is allocated to a trust years after the initial gift transfer). This might have important planning applicability if you have to make a transfer to an existing insurance trust near the end of the year and there is insufficient time to create anew trust before year end. If a large gift is made to an existing insurance trust to which GST exemption was not previously allocated, then it may be wise to make a late allocation of GST exemption to that trust to exempt prior gifts from GST tax, in addition to allocating GST exemption to cover the 2012 gift. But the amount of GST exemption allocated must be equal to the current value of those gifts, not the value of the gifts when they were made to the trust. The goal of all this is to make the trust entirely exempt from GST tax.

The late allocation rules, in the case of many insurance trusts, are sometimes favorable in that the value of the trust-owned policy at the date the late GST allocation is made may be much less than the prior gifts made to the trust (i.e., cash to fund life insurance premiums paid in those prior years). If this occurs, then less GST exemption need be allocated to make the trust free of GST tax than if allocations were made on time as the gifts were made (see Chapter 10).

When the GST transfer also triggers a gift tax, the amount of GST tax paid by you as the donor is treated as an additional gift subject to the gift tax. Depending upon the effective gift tax rate, this can cause the sum of gift and GST transfer taxes to exceed the amount of the gift.