One of the more complicated decisions is how to pay estate taxes, post mortem, when a family limited partnership has been set up with a substantial portion of the decedent's assets. In many cases, outside of the family limited partnership, there are not sufficient assets to pay the estate taxes.
One of the more complicated decisions is how to pay estate taxes, post mortem, when illiquidity exists because of family held businesses, including family limited partnerships. In those cases, outside of the family business entities, there are not sufficient assets to pay the estate taxes.
An individual that incurs these fees will deduct these as a miscellaneous itemized deduction (MIDs) -- deductible only to the extent that they exceed 2% of a trust’s adjusted gross income (AGI), often referred to as the “2%-of-AGI floor.” The issue involves whether an entity that incurs these fees -- in this case trusts-- changes the nature of the expense from an MID to an above the line business deduction.
Much discussion has been had since Estate of Strangi ("Strangi II"), on that mysterious section, 2036 (a) (2) of the Code, and its implications. But estate planners have been dealing with 2036 (a) (2) and trusteeship issues for a long time.
Last month, this column examined the McCord’s analysis on the definitional gift issue, in which the 5th Circuit reversed the Tax Court and upheld the validity of a definitional gift for gift tax purposes. This month the column examines the discussion in the 5th Circuit’s opinion of the unusual net gift concept.
Many of our recent estate planning columns have focused on developments in the partnership area. The reason: the law in this area keeps evolving as more partnership decisions are handed down. And practitioners keep using partnerships as an estate tax strategy.
The grantor retained annuity trust (“GRAT”) has been statutorily allowed by Congress since 1990. Used properly, the GRAT can transfer part or all of a wealthy person's business to the next generation, free of gift tax and in a way that removes the business from estate taxation.