The U. S. intends to blunt estate devices like Grantor Retained Annuity Trust (GRATs), so advance planning is important.
President Obama and Congress are taking positions against two popular estate planning tools. Tax advisers are urging clients to prepare to adjust their plans if proposals move forward. One involves family limited partnerships (FLPs), used by the wealthy to pass real estate, businesses and other assets to heirs in a tax advantaged way.
FLPs allow sizeable discount, typically 35% to 40% of the value of the property conveyed. Today, you can make a gift of $13,000 to each heir per year without incurring any gift tax. If you go over the limit, then you cut into an additional $1,000 million lifetime exemption. But if you can discount the value of the property using an FLP, then you can transfer even more wealth without paying tax.
Suppose you have an apartment building and stocks worth $2 million. You put these assets in an FLP and create 10 partnership units. Each unit is a portion of ownership, like stock. Under current law, each partnership unit could be worth as little as $120,000 instead of $200,000. That is because the owner of a unit typically cannot sell the interest easily. He also can’t control how the assets are managed.
Those restrictions reduce the value of the units; therefore a professional appraiser would set the unit value. Obama’s proposal would require more backup for the discount claims, says Bruno Graziano, a tax analyst with CCH in Chicago.
If Obama’s final language makes it retroactive to the birth of the FLP, then all FLPs active since 1990 would be more vulnerable to an audit, especially those whose main or sole purpose to the IRS seems to be conveying assets from one family member to another to avoid taxes, says estate planning attorney Martin Shenkman, of Paramus, N.J.
FLPs are supposed to have a business purpose, not just tax benefits. For example, it is legitimate to put income producing real estate into a Family Limited Partnership, to limit individuals’ personal liability, create a mechanism for paying dividends to family members and to enable them to buy and sell portions of ownership.
But where the IRS does not see a business purpose, it often alleges that an FLP’s sole purpose is avoidance of tax. The IRS also questions the size of the discounts. FLP advocates say that discounts typically reflect the extent to which an individual partner is barred from realizing the value of their investment.
For example, an owner of units in a FLP that owns an apartment building may not receive a portion of rents or even any dividends. The partner may be blocked from selling his interest, at least without the consent of the other partners. On the other hand, many restrictions can later be removed. As ownerships units pass out of the hands of older family members due to death or retirement, surviving family partners can vote to amend the FLP’s operating agreement.
In addition to the Obama proposal, another bill in Congress, HR 436 would end discounts on nonbusiness assets in FLPs such as stocks, bonds and money market securities. The bill would also freeze the estate tax exemption at $3.5 million, 2009’s level. Unlike Obama’s plan, it would not be retroactive.
Bottom line is the IRS appears to be on a path to become more hostile to discounts for cash and securities. If your FLP has lots of those, being able to prove that you run it like a business can help preserve full discounts. Have meetings, take minutes. Separate its accounts from your personal assets,
Another potential change from Congress would curtail the estate tax benefit of grantor retained annuity trusts (GRATs). In a GRAT, mom for example, places an asset such as the apartment building into a trust. It counts against her gift tax exemption, but at a discounted value. And she gets an annuity-like payment for the term of the trust.
It’s a sweet deal because Mom pays no income tax on the payout. She is deemed to have made an equal exchange rather than a profit-making transaction. She also gets the apartment building out of her estate, and away from the IRS.
One catch is if she dies during the term of the trust. Then, the trust terminates. The apartment building which in normal times typically rises in value goes back into her estate and could be subject to estate tax.
If she outlives the trust, then the apartment goes it beneficiaries she named, free of gift tax. Attorneys have set up GRATs with terms as short as two years to cut the impact of an untimely death. The Obama administration seeks a 10 year minimum life for GRATs. This would discourage GRATs’ use by older benefactors. Unlike the FLP change, this would only apply to trusts created after enactment.
So if you’re planning to create a GRAT, try to act before any new regulation is enacted. The length of the GRAT term should not matter. If a new law is enacted first, you will have to obey any new minimum term rules.
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