Still No Estate Tax – A Window of Opportunity for Lifetime Gifts in 2010

It’s August and, unbelievably, there is still no estate tax in 2010. We have seen large estates like that of George Steinbrenner, and other billionaires passing in 2010, avoid huge estate taxes. And unless Congress passes retroactive legislation those estates will have avoided estate tax and generation skipping taxes.

We can’t imagine anyone wanting to die to take advantage of the current estate tax opportunity.  Fortunately, the current law also provides an opportunity to make large lifetime gifts in 2010.

Here are some reasons why making gifts now make sense.

• The $13,000 annual exclusions and $1,000,000 gift tax exemption for gifts in excess of your annual exclusions is still in place.
• Right now the gift tax rate is 35% on amounts over the $1,000,000 exemption. This rate can be as low as 26% if the transferor survives three years from the date of the gift.  However, in 2011 the maximum rate is scheduled to go up to 60%.
• As of now, there is no Generation Skipping Tax in 2010.  Gifts directly to individuals more than one generation below the transferor are not subject to the Generation Skipping Tax which historically has been as high as 55%.
• With the extremely low interest rate environment many gift strategies, such as charitable lead trusts and GRATs, result in lower gifts than in higher interest rate periods.
• Transfer values are lower with the depressed real estate values and stock markets. Closely held business interests are likely to be valued lower.

What is the downside?

• Estate and gift tax might be repealed permanently. However, this doesn’t seem likely in a period of budget deficits and the fact that transfer taxes in recent years affect less than 1% of the population.
• If the transferor dies in 2010, no transfer tax would apply under current law and unnecessary gift taxes would have been incurred.  This can be avoided by using techniques which will make the gift incomplete until after the tax laws for 2010 are certain.

If you have questions about how you can take advantage of current planning opportunities, please contact John Anzivino at janzivino@kaufmanrossin.com or 305.857.6706.