Truly the Season of Giving: IRS Gives the Green Light for Gifting

As explained in a prior article, the sweeping tax reform bill, commonly known as the Tax Cuts and Jobs Act of 2017 (TCJA), temporarily doubles the combined gift and estate tax exemption and the generation-skipping transfer (GST) tax exemption from $5 million to $10 million (adjusted for inflation after 2011). For 2018, the exemption is $11.18 million per person.  The exemption will increase to $11.4 million in 2019. This doubled exemption will adjust for inflation each year and will remain in effect until December 31, 2025. If Congress doesn’t act before 2026, the law will sunset and the exemptions will revert back to the $5 million level (adjusted for inflation).

Shortly after passage of the TCJA, questions arose regarding taxpayers who utilize the doubled exclusion during their lifetime and then die in 2026 or later, when the exclusion reverts to the former $5 million (adjusted for inflation). This could lead to inconsistent tax treatment arising as a result of the temporary nature of the increased exemption amount. Therefore, the statutory sunset of the higher exemption amount and reversion to the lower amount could retroactively deny taxpayers who die after 2025 the full benefit of the higher exclusion amount applied to previous gifts. This scenario has been dubbed a “clawback” of the exemption.

“Clawback” Example
Jim is about to retire and has an estate worth $15.18 million. In 2018, Jim decides to gift $11.18 million to Dynasty trusts for his 3 grandchildren. Jim will rely on the remaining $4 million, social security payments, and his pension to get him through his retirement years. Jim would owe no gift tax in 2018 because his combined gift and estate tax exemption is $11.18 million.

Jim then dies in 2026, when the combined gift and estate tax exemption has reverted back to $5 million (adjusted for inflation). We can assume that the inflation adjusted exemption amount will be about $6 million in 2026. If Jim still has $4 million in assets at death, his gross estate would be $15.18 million after adding in the $11.18 million taxable gift that Jim made in 2018. Would Jim’s estate owe tax on $9.18 million, the difference between his taxable estate ($15.18 million) and the 2026 exemption amount ($6 million)?  If yes, then Jim’s estate would be hit with an estate tax bill of approximately $3.67 million! On November 23, 2018, the IRS published proposed regulations to address the “clawback” problem.  The Regulations indicate that the IRS will not seek to “clawback” into the estate the taxable gifts that the decedent made when the exemption covered those gifts.  These proposed regulations apply to gifts made after 2017 and the estates of persons dying after 2017.

So, in Jim’s example, his estate would not owe estate tax on the amount he gifted in 2018.  Of course, in 2026, he would not have any remaining exemption to use for his $4 million in assets, so his estate would owe tax on the entire $4 million remaining at death – a tax bill of about $1.6 million. It is easy to see that these new Regulations are quite favorable to the taxpayer!

Estate Planning Opportunities: What Clients Need to Know
With the uncertainty of “clawback” soon to be removed, we recommend that clients with taxable estates consider making large gifts to reduce the size of their estates and take advantage of the increased federal exemption amounts. This is especially important for clients in Maryland and the District of Columbia. These jurisdictions have stand-alone state estate taxes with exemption amounts lower than the federal exemption, and do not impose a gift tax; which makes these gifts of even greater importance.

However, prior to making any gift, it is vital to conduct an analysis of the income tax consequences of the gift. This is crucial because a recipient of gifted assets takes the donor’s basis for federal income tax purposes (a “carry-over basis”). Whereas, the basis of assets which are subject to the federal estate tax, and received as a result of a person’s death, is equal to fair market value at the date of the decedent’s death (a “stepped-up basis”).

Finally, clients should know that time is of the essence and should consider taking advantage of the increased exemption amount sooner rather than later because Congress could change the law again prior to the sunset date and those who have not used the larger exemption amount will have lost the opportunity to do so. Keep in mind also that large gifts often take some time due to planning, appraisals, and preparation of trusts and other documents.

David A. Lucas
is an Attorney in Miller, Miller & Canby’s Estates & Trusts and Business and Tax Practice Groups. David is committed to providing his clients with a well-crafted estate plan so they may avoid probate, protect their assets and legacies, and provide for the security of their loved ones. He takes a special interest in ensuring that the dreams parents have for their children and grandchildren are not lost to taxes, poor planning, or procrastination. He speaks frequently on a variety of estate planning topics to both the general public and private groups.

David has focused his practice on helping families preserve their financial wealth and legacies for future generations through the use of Trusts, Wills, Powers of Attorney, Advance Medical Directives, Living Wills, and other estate planning strategies.

Contact David
to discuss your estate plan to take advantage of the laws available today and ensure flexibility for future changes. For more information on Miller, Miller & Canby’s Estates & Trusts Practice, click here.

MM&C’s Joe Suntum and James Roth Set to Speak at ALI’s Eminent Domain and Land Valuation Litigation

Two of Miller, Miller & Canby’s eminent domain attorneys will join the national Eminent Domain and Land Valuation Litigation 2019 Conference as presenters. The annual conference is the country’s preeminent gathering of eminent domain professionals. The conference brings together “national experts on the cutting edge of eminent domain and related topics under one roof," said planning co-chair, Robert H. Thomas.

Mr. Suntum will speak to “Tips and Traps for the New Eminent Domain Lawyer”. Mr. Suntum is a principal at Miller, Miller & Canby with decades of trial experience, and he is the firm’s eminent domain practice group leader. He is the Owners’ Counsel of America member attorney for the state of Maryland.  The Owners’ Counsel is a national network of seasoned eminent domain attorneys; membership is selective and restricted to only one member attorney per state.  Mr. Suntum is a nationally-recognized speaker on topics related to eminent domain and condemnation and lectures extensively throughout the country for a variety of legal and educational organizations.

Mr. Roth will address “Fence and Wall Condemnations.” Prior to becoming an attorney and joining Miller, Miller & Canby, Mr. Roth spent over a decade consulting U.S. Customs and Border Protection (CBP) to manage land acquisition required for numerous facilities and border infrastructure construction projects, including some 600 miles of fence construction initiated under the Bush administration.  In that role, he supported attorneys from the U.S. Department of Justice, U.S. Army Corps of Engineers and CBP in the litigation of over 300 eminent domain cases across the U.S./Mexico Border.

In addition to private practitioners, faculty will include law professors, government officials and members of the judiciary.  

Other conference highlights will include:
• Navigating displacement of immigrant and refugee
• A look at the Supreme Court's revisit of ripeness
• Flood, wildfire, and other inverse cases
• Proving just compensation for loss of access and damages
• Correcting misconceptions about eminent domain in the media and social platforms
• Pipelines, challenging the take, and compensation pitfalls

The 2019 conference will be held in Palm Springs, California, January 24-26.  For more information click here.

For more information about Miller, Miller & Canby’s eminent domain practice, click here, or contact Joe Suntum or James Roth at 301-762-5212.

Actor Wesley Snipes Shows Us How Not To Settle an IRS Debt: The Importance of a Tax Attorney

Wesley Snipes Tax Case
Normally, U.S. Tax Court memorandum decisions do not garner media attention.  Typically, they involve issues of substantive or procedural tax disputes – not exactly drop-what-you’re-doing subject matter or material. However, last month, the Court was hit with a dose of celebrity, and in turn, some publicity. Indeed, movie fans of the late-1990s/early-2000s vampire hunter trilogy, Blade, likely found themselves confounded when the actor behind the title character and protagonist re-emerged into the headlines, but not for cinematic achievement or accomplishment. Instead, Wesley Snipes made news for losing his Tax Court petition.

Specifically, Mr. Snipes had racked up quite a tax debt with the IRS – to the tune of $23.5 million. Unable to pay the full amount, he submitted an offer in compromise (OIC) to the IRS, which was rejected and led him to Tax Court. For reference, an offer in compromise is a request submitted to the IRS where a taxpayer desires to settle a tax liability for a lesser amount than is owed. Mr. Snipes submitted his OIC as a doubt as to collectability submission.  In other words, he did not challenge the validity of his tax liability, but contended that the IRS would never fully collect the full amount, making it in their best interest to settle for a lesser amount. Indeed, his contention was clearly reflected on his OIC submission wherein he sought to settle his tax debt for $842,061, or less than 4% of his underlying tax liability.  

Given the staggering discrepancy between Mr. Snipes’ attempted OIC and his tax debt, it would seem as though the IRS’ rejection was a mere formality and that he should stop watching late night tax relief infomercials. However, the IRS’ rejection was not based on such a discrepancy.  Instead, the IRS bases its OIC decisions on the taxpayer’s quantifiable financial disposition, or what a taxpayer can afford to pay.   

Why OICs Are Rejected
Indeed, a taxpayer’s ability to pay will focus on their income/assets versus their expenses. While there are a variety of reasons that the IRS rejects OICs, the primary ones are for understating the value of assets/income and overstating expenses. For Mr. Snipes, he was caught attempting to move assets out of his name before and during his initial appeal, and he apparently didn’t do a particularly good job of it. The IRS attributed those assets to him as part of his overall net worth, and therefore concluded he was able to pay substantially more than he offered via his OIC. The IRS scrutinizes both the assets/income and expenses categories – especially if the expenses far exceed the taxpayer’s income or their assets appear to be substantially understated or they are out of line with income and lifestyle (see Wesley Snipes example).

In addition, the IRS will reject an OIC for failure to comply with specific procedures and guidelines or for a lack of cooperation with such procedures and guidelines. While the IRS will generally permit you to re-submit an OIC if it is rejected on procedural grounds, this will only delay and complicate the process, whereas a lack of cooperation can lead to an outright rejection.  When taxpayers are under IRS levy or garnishment, or are saddled or threaten with a federal tax lien, any delay or complication can impose unnecessary hardship and disruption.  

Accordingly, it is essential that the procedures and guidelines are followed precisely. For example, both Form 656 (Offer in Compromise) and Form 433-A or -B (Collection Information for Individuals and Businesses, respectively) must be fully completed and submitted. Taxpayers will oftentimes neglect to submit one of them due to the redundancy of information requested on these forms. In addition, taxpayers must fully complete the forms – especially the Form 433, which amounts to a full and exhaustive financial disclosure form. If incomplete, inaccurate or insufficient, the IRS will either reject the OIC or request further substantiation – which will lead to delays and complications. Taxpayers must also submit both the application fee and the initial offer payment. Taxpayers confuse the application fee as being the same as the initial offer payment, and vice versa. They are separate and they are both required.

How an Experienced Tax Attorney Can Help
An experienced tax attorney guides clients through this process so that an offer has the highest probability of being accepted and the debt resolved. Specifically, the information contained on Form 433 will dominate the IRS’ OIC analysis. Form 433 can be confusing and its rules/instructions can be complicated and deficient. In addition, different taxpayers have different circumstances which can necessitate experienced and professional assistance.

Some questions to consider include:
•    What if the liable taxpayer is married to an innocent spouse?
•    How are joint and separate assets as well as shared expenses reported?
•    How are fluctuating expenses calculated?  
•    Is an anticipated inheritance reportable?
•    Should trust distributions be reported?
•    How should you report the value of stocks?  
•    What about the value of life insurance?  

Taxpayers do not want to get caught misstating the value of assets/income, or the amount of expenses – such figures are subject to substantiation, at the IRS’ request. A misstatement can cause an OIC to be rejected, or (maybe worse) can put a taxpayer in a Wesley Snipes situation where they are deemed more wealthy than they, in fact, are. Accordingly, there are strategies for when and how to complete Form 433 that an experienced tax attorney can provide.

In addition, experienced tax attorneys can provide advice relating to penalty abatement. In limited circumstances, the IRS will agree to abate accrued penalties (and in very limited circumstances, grant interest waivers). This can drastically lower a taxpayer’s total balance due, and potentially make an OIC more palatable for the IRS to accept.

Not every taxpayer is a good candidate for an OIC. An experienced tax attorney will analyze the taxpayer’s situation, discuss alternatives, and determine the best strategy tailored to client needs.  Indeed, for some taxpayers, an installment agreement may make more sense or have a greater likelihood for approval. In addition, currently not collectible status may assist certain taxpayers as it will “pause” IRS collection activity for a limited period of time. However, before making any submissions, it is advisable to seek professional advice. In the event an OIC has already been submitted, and rejected, taxpayers have appeal rights at their disposal (see Wesley Snipes example) where a tax attorney can provide assistance.  

Chris Young
is an associate in the Business & Tax practice at Miller, Miller & Canby. He focuses his practice on tax controversy work and helping clients deal with new tax regulations. He may be reached at 301-762-5212 or at  View more information about Miller, Miller & Canby's Business & Tax practice by clicking here.