Читать книгу 2012 Estate Planning - Martin Inc. Shenkman - Страница 45

The mechanism by which GST exemption is allocated to a trust is complex and you should be careful in how you address GST allocations on federal gift tax returns (Form 709) for the 2012 year, especially with consideration to the automatic allocation rules.

In very simple terms, if assets are given to a trust that could benefit your grandchildren or more remote descendants (skip-persons), distributions to them from that trust would be subject to GST tax. To minimize the number of taxpayers to which the GST tax applies, each taxpayer is afforded an exemption from the GST tax. The 2010 Act increased this GST exemption to $5 million inflation adjusted, which is $5.12 million in 2012. If a proper amount of the donor’s GST exemption is allocated to the gift to the trust (i.e., the trust has an inclusion ratio of zero), the trust can be made entirely exempt from the GST tax. If $5.12 million was given to the trust (and assuming no other gifts are ever made to the trust), and $5.12 million of GST exemption was allocated to protect that gift, then the trust would be exempt from GST tax for as long as it lasts. No matter how large the trust may grow in value, and no matter to whom distributions are eventually made, and no matter for how long assets grow inside the trust, no GST tax will apply. The GST tax rules automatically allocate your GST exemption in certain instances in order to assist taxpayers in avoiding running afoul of the complex GST allocation rules.

Unfortunately, the automatic allocation rules don’t always work as intended and can result in a waste of your GST exemption. Moreover, unless the law is changed, the automatic allocation rule ends this year and, most important for some, it is possible that the automatic allocation rules will be treated as if they were never enacted. If this occurs, then after this year, the trust would no longer be exempt from GST tax. In effect, allocations made automatically to a trust in years before 2013 would be treated as if they were never made. This could upset the planning for many existing trusts. While most estate planners anticipate that these rules will be continued to avoid this problem, as with so many tax issues, there is simply no guarantee.

PLANNING NOTE: Be aware that 2012 may present a different planning paradigm. If the GST exemption declines from $5.12 million to an inflation-adjusted $1 million in 2013, allocating a disappearing GST exemption in a less than optimal manner may be far preferable than not allocating exemption dollars that may simply disappear. When making GST allocation decisions on 2012 gift tax returns, absent any certainty in the law at that time, you should be cautious to weigh these issues. Prudent planning may require extending 2012 gift tax return filing dates as long as possible in the hope that the new law will become known during that period. (However, we may end up with another two-year bandaid like Congress put on the estate tax system in 2010.)