For purposes of the Federal Estate and Gift tax, a portability election allows a surviving spouse to add the decedent’s unused estate and gift tax exclusion amount to the surviving spouse’s own exclusion amount.

Generally, since December 31, 2014, executors needed to apply via a private letter ruling to request the IRS to grant an extension of time to make the election. However, as a result of numerous requests for relief, the IRS has issued a new revenue procedure for a new simplified method to make the election, effective June 9, 2017.

For decedent’s dying in 2017, the inflation adjusted exclusion amount is $5,490,000. This means that for decedent’s dying in 2017, lifetime gifts plus the value of assets included in the gross estate up to $5,490,000 are excluded from the Federal Estate tax. For example, if a decedent dies in 2017 with total lifetime gifts and a gross estate of $3 million, the surviving spouse can elect to add $2,490,000 ($5,490,000 minus $3,000,000) to his or her own exclusion amount.

The executor of the estate of the deceased spouse must elect portability of the unused estate and gift tax exclusion amount by filing an estate tax return for the decedent within nine months of the decedent’s date of death (plus extensions) and include a calculation of the unused exclusion amount on that return.  A return must be filed by the executor to elect portability even if the decedent was not otherwise required to file a Federal Estate tax return. Regulation section 301.9100-3 provides relief for executors who fail to make the election by the due date of the return by allowing an extension of time to make the election under certain circumstances.

The new simplified method is available to the executor of the estate of a decedent if:

1) The decedent:

a) Was survived by a spouse,

b) Died after December 31, 2010, and

c) Was a citizen or resident of the United States on the date of death.

2) The executor is not required to file an estate tax return based on the value of the gross estate and adjusted taxable gifts and without regard to the need to file for portability purposes,

3) The executor did not file an estate tax return by the due date of the estate tax return, and

4) The executor satisfies the following requirements:

a) The executor must file a complete and properly prepared Form 706 on or before the later of January 2, 2018, or the second annual anniversary of the decedent’s date of death.

b) The executor filing the Form 706 states at the top of the Form 706 that the return is “FILED PURSUANT TO REV. PROC. 2017-34 TO ELECT PORTABILITY UNDER Sec. 2010(c)(5)(A).”

If the executor does not satisfy the above requirements, the executor can still request relief by requesting a private letter ruling under the provisions of Regulation section 301.9100-3.

This simplified method does not extend the period during which the surviving spouse or the surviving spouse’s estate may make a claim for credit or refund as a result of making the portability election under this revenue procedure.

The Internal Revenue Service reminds eligible employees that now is the time to begin planning to take full advantage of their employer’s health flexible spending arrangement (FSA) during 2017.

FSAs provide employees a way to use tax-free dollars to pay medical expenses not covered by other health plans. Because eligible employees need to decide how much to contribute through payroll deductions before the plan year begins, many employers this fall are offering their employees the option to participate during the 2017 plan year.

Interested employees wishing to contribute during the new year must make this choice again for 2017, even if they contributed in 2016. Self-employed individuals are not eligible.

An employee who chooses to participate can contribute up to $2,600 during the 2017 plan year. Amounts contributed are not subject to federal income tax, Social Security tax or Medicare tax. If the plan allows, the employer may also contribute to an employee’s FSA.

Throughout the year, employees can then use funds to pay qualified medical expenses not covered by their health plan, including co-pays, deductibles and a variety of medical products and services ranging from dental and vision care to eyeglasses and hearing aids. Interested employees should check with their employer for details on eligible expenses and claim procedures.

Under the use or lose provision, participating employees often must incur eligible expenses by the end of the plan year, or forfeit any unspent amounts. But under a special rule, employers may, if they choose, offer participating employees more time through either the carryover option or the grace period option.

Under the carryover option, an employee can carry over up to $500 of unused funds to the following plan year — for example, an employee with $500 of unspent funds at the end of 2017 would still have those funds available to use in 2018. Under the grace period option, an employee has until 2½ months after the end of the plan year to incur eligible expenses — for example, March 15, 2018, for a plan year ending on Dec. 31, 2017. Employers can offer either option, but not both, or none at all.

Employers are not required to offer FSAs. Accordingly, interested employees should check with their employer to see if they offer an FSA. More information about FSAs can be found in Publication 969, available on IRS.gov.

If you need further assistance, contact Steve Siesser at steve@taxlawmd.com

On August 2, 2016, the Treasury Department issued proposed regulations under IRC Section 2704 that would significantly reduce the use of valuation discounts which, for decades, have been used by estate planners in valuing minority interests in family businesses for gift and estate tax purposes. These discounts often range from 15 percent to 40 percent, or even higher. By using discounts, significant wealth can be transferred to the next generation at greatly reduced values. Some of these techniques include transfers of fractional interests in real property or business entities such as limited partnerships, limited liability companies, or closely held corporations.

The size of the discount depends upon a number of factors, including the entity’s organizational structure, provisions of the partnership or operating agreement and if state law places restrictions on control of the entity and on marketability.  If a parent gifted a minority interest in a family business partnership to a child with provisions that restrict voting rights and the ability to sell the interest to a third party or withdraw from the partnership, under the proposed regulations, the parent’s gift to the child is valued as if those restrictions do not exist.  As a result, the value of the interest for gift tax purposes would likely be greater than what the parent would receive if he or she sold the same interest to a third party.

While details of the proposed regulations are important, it is clear that the Treasury is trying to eliminate most if not substantially all valuation discounts for family-controlled entity interests, even including active businesses owned by a family. The regulations accomplish this, in part, by expanding the class of restrictions disregarded under Section 2704 to include those under the governing documents and even under state law (regardless of whether that restriction may be superseded by the governing documents).

Over the years, the IRS has argued that many restrictions (including those currently resulting in discounts for lack of control and lack of marketability) should be ignored for transfers between family members. In most properly structured transactions, the courts have rejected the arguments by the IRS and permitted the taxpayer to take appropriate discounts on the transfer to family members.

These new regulations are particularly important in the context of intra-family gifts and sales to effectively reduce the estate tax payable at a decedent’s death. The proposed regulations will be subject to public comment and a hearing on December 1, 2016.  They are likely to be challenged and will not become effective until 30 days after the date on which Treasury issues them in final form. If you are interested in making such gifts and/or sales and believe that you would benefit from such valuation discounts, you may want to consider completing transactions that could be affected by the new regulations before year-end.

A child under 18 working for a parent-owned unincorporated business is exempt from FICA and FUTA. Children under 21 are exempt from FUTA. Another advantage is that a child employed by a parent shifts income from the parent’s higher tax bracket to the child’s lower tax bracket. A recent court case illustrates the factors used by the courts when determining the deductibility of wages paid to minor children.

The taxpayer was a sole proprietor who worked as an attorney. She had three children, all of whom were under nine years old as of the close of the tax years in question. During summer school recesses, the taxpayer often brought her children into her office, usually for two hours a day, two or three days a week. While at the taxpayer’s office, the children provided various services to her in connection with her law practice. For example, the children shredded waste, mailed things, answered telephones, photocopied documents, greeted clients, and escorted clients to the office library or other waiting areas in the office complex. The children also helped the taxpayer move files from a flooded basement, they helped remove files damaged in a bathroom flood, and they helped to move the taxpayer’s office to a different location. The taxpayer did not issue a Form W-2 to any of her children for the years at issue. No payroll records regarding their employment were kept, and no federal tax withholding payments were made from any amounts that might have been paid to any of the children.

Separately from her law practice, taxpayer came up with the idea that parents traveling with children might be interested in travel books created for children, and she decided to write a series of children’s travel books each directed to a different destination in the United States or elsewhere. During the years at issue, the taxpayer traveled with her three children to Disney World in Orlando, Florida, and several cities in Europe. The purpose of each trip was to conduct research for a yet-to-be written children’s travel book. Before traveling to a particular destination, the taxpayer typically would complete a rough draft of a children’s travel book. She and the children used the rough draft to tour the area, and the taxpayer would record any helpful hints or other information she thought should be included in the final version of the children’s travel book that she planned to complete at some future date. The taxpayer also consulted with a book distributor, a graphic designer, and a book publishing company. She eventually completed at least four prototype travel books and sold some copies word-of-mouth to family and friends. She planned to hire an agent to promote her book but had not done so as of the close of the tax year for the year at issue.

The taxpayer deducted wages paid to her minor children against her gross income from her law practice. The taxpayer also reported net losses from her book writing activity. The IRS disallowed all of the deductions claimed for wages to her minor children, and disallowed all of the deductions claimed relating to her book writing activity.

The court noted that payments made to minor children by a related party for services rendered in connection with a trade or business might very well qualify for deduction. It all depends on the facts and circumstances surrounding the payments. The taxpayer did not present any evidence to show how much was paid to each child, how
many hours each worked, or what the hourly rate of pay was. Without payroll records detailing this information, the court cannot tell whether the amounts deducted were reasonable, especially when the ages of the children are taken into account. The taxpayer did not present any documentary evidence, such as bank account statements, canceled checks, records, or the filing of W-2s, to support the deductions.

The court said all things considered, the taxpayer has failed to establish entitlement to the deductions for wages to minor children claimed on Schedule C relating to the taxpayer’s law practice. However, the court said it was satisfied that each of the children
performed services in connection with the taxpayer’s law practice during each year at issue and each was compensated for doing so. Taking into account their ages, generalized descriptions of their duties, generalized statements as to the time each spent in the office, and the lack of records, the court ruled the taxpayer was entitled to a $250 deduction for wages paid to each child for each year. The court also looked at whether expenses related to the book writing activity were deductible. The court refused to consider the IRS argument that the book writing activity was a hobby. The court said at best (for the taxpayer), the expenses were for planning and
research in connection with the business she had in mind, but that the business had not yet started as of the close of the tax years at issue. Therefore, none of the expenses for the book writing activity were deductible.

The lesson learned is to keep meticulous records and documentation. Always consult your tax advisor if you are considering paying your children wages for working in your business.