The Private Client group of Bryan Cave is proud to announce that Kimberly E. Civins has been elected as a fellow of the American College of Trust and Estate Counsel (ACTEC).
ACTEC is a nonprofit association of lawyers established in 1949 whose pre-eminent members are elected to the College by demonstrating the highest level of integrity, commitment to the profession, competence and experience as trust and estate counselors. Membership in ACTEC is by election of the regents of the College. Individual lawyers meeting the criteria for membership are nominated for membership by fellows of the College, and subjected to careful review by state and national membership selection committees, prior to consideration by the regents of the College.
All ACTEC members have made substantial contributions to the field of trusts and estates law through writing, teaching and bar leadership activities. The members work together in a collegial manner to enhance their ability to provide the most efficient and highest quality services to their clients; develop qualified trust and estate counselors; improve and reform probate, trust and tax laws, procedures, and standards of professional responsibility; and cooperate with bar associations and other organizations with similar missions. For more information about the College, click here.
The 7520 rate for November 2016 has remained at 1.6%.
The November 2016 Applicable Federal Interest Rates can be found here.
Rev. Proc. 2016-49
The recent issuance of Rev. Proc. 2016-49, which modifies and supersedes Rev. Proc. 2001-38, now puts the taxpayer in the driver’s seat. Recall that in Rev. Proc. 2001-38, the Service was providing relief for the surviving spouse when an unnecessary QTIP election was made, by treating such a QTIP election as though it had not been made. Practitioners began to question whether Rev. Proc. 2001-38 would render a QTIP election a nullity when made in order to qualify for a state marital deduction where such an election was not needed to reduce the Federal estate tax liability to zero. Then when portability came into the picture, the enhanced concern about basis adjustment at death drove practitioners to want to make a QTIP election even though not needed to reduce the estate tax liability, to permit the surviving spouse to make larger gifts that would not be subject to gift tax or solely to obtain a basis adjustment at death. Yet in view of Rev. Proc. 2001-38, it was not clear whether a QTIP election that did not result in a reduction in estate tax was viable.
Now the Service has solved this dilemma with Rev. Proc. 2016-49. A QTIP election will only be void if ALL of the following are satisfied:
A QTIP election will not be treated as void where ANY of the following are true:
The taxpayer did not request that the QTIP election be treated as void and follow the procedure for having the election treated as void.
In a recent Tax Court decision, Harry H. Falk, and Steven P. Heller, Co-Executors, v. Commissioner of the Internal Revenue, the United States Tax Court ruled that in the case of the Madoff Ponzi scheme, an estate which paid estate tax on Madoff assets which subsequently have become worthless can claim a theft deduction.
James Heller, a New York state decedent, died in January 2008 owning a 99% interest in James Heller Family, LLC (the “LLC”). The only asset held by the LLC was an account with Bernard L. Madoff Investment Securities, LLC. In November of 2008, the Executors of Mr. Heller’s estate withdrew some money from the LLC’s Madoff account in order to pay estate taxes and other administrative expenses. Shortly thereafter, the news of the Madoff Ponzi scheme became public. Suddenly, the LLC’s interest and the estate’s interest in the LLC became worthless.
In April 2009, the Executors of the Estate filed an estate tax return which included the decedent’s 99% interest in the LLC – as valued at the date of his death – in his gross estate. But the estate also claimed a theft loss deduction relating to the Ponzi scheme in an amount equal to the difference between the values of the estate’s interest in the LLC at death and the estate’s share of the amount withdrawn from the LLC’s Madoff account. The Internal Revenue Service issued a notice of deficiency, claiming the estate was not entitled to the theft loss deduction because the estate did not incur a theft loss.
Internal Revenue Code Section 2054 allows a deduction from the value of a gross estate of “losses incurred during the settlement of estates arising from…theft.” The Internal Revenue Service argued that the LLC incurred the loss, not the estate, and as such the theft deduction is not appropriate. However, the Court determined that the loss suffered by the estate related directly to its LLC interest, the worthlessness of which arose from the theft. The theft extinguished the value of the estate’s LLC interest, thereby diminishing the value of the property available to the decedent’s heirs. As such, the Court determined a theft deduction appropriate.