Wednesday September 27, 2023
Private Letter Ruling
GSTT Election Extension Granted
Donor established a trust (Trust) for the benefit of his descendants. In Year 1 and Year 2, Donor made gifts of cash and securities to the Trust. Donor hired Attorney and relied on Attorney to prepare and file Forms 709, United States Gift (and Generation Skipping Transfer) to report the Year 1 transfers. Donor further instructed Attorney to make the election to treat the Trust as a Generation Skipping Transfer (GST) trust. Attorney inadvertently failed to make the election on the Year 1 tax form. Donor requests an extension of time under Section 2642(g) and Section 301.9100-3 to make the election and treat Trust 1 as a GST trust.
Section 2601 imposes a tax on every GST made by a transferor to a skip person. Section 2611(a) defines GST as a taxable distribution, a taxable termination or a direct skip. Under Sec. 2602, the amount of the GST tax equals the taxable amount multiplied by the applicable rate. The applicable rate is defined in Sec. 2641(a) as the product of the maximum federal estate tax rate and the inclusion ratio. Section 2631(a) allows each individual to allocate a GST exemption to property transferred by the individual. Under Sec. 2631(b), the Sec. 2631(a) exemption allocation is irrevocable. Section 2632(c)(1) provides that the automatic allocation will be to the extent necessary to make the inclusion ratio zero, if the individual has any unused portion of GST exemption. Any individual may elect to treat any trust as a GST trust. Sec. 2632(c)(5)(A)(ii). Under Sec. 2642(g)(1)(B), extensions of time to make an election to treat a trust as a GST trust will be allowed based on all relevant circumstances, including evidence of intent contained in the trust instrument. Regulation 301.9100-3 allows an extension of time to be granted if the taxpayer acted reasonably and in good faith and the relief granted will not prejudice the interests of the government. Regulation 301.9100-3(b)(1)(v) states that a taxpayer will be deemed to have acted reasonably and in good faith if the taxpayer reasonably relied on a qualified tax professional who failed to make, or advise the taxpayer to make, the election. Here, the Service determined that the requirements of Reg. 301.9100-3 were met and granted an extension of 120 days to make an election to designate Trust as a GST exemption trust.
Dear * * *:
This letter responds to your personal representative's letter of October 11, 2022, requesting an extension of time under §2642(g) of the Internal Revenue Code (Code) and §301.9100-1 and §301.9100-3 of the Procedure and Administration Regulations to make an election under §2632(c)(5)(A)(ii).
The facts and representations submitted are as follows:
On Date 1 in Year 1, a date after December 31, 2000, Donor established Trust for the benefit of his descendants. On Dates 2, 3, and 4, all in Year 1, Donor transferred cash and securities to Trust. On Dates 5, 6, and 7, all in Year 2, Donor transferred additional cash and securities to Trust.
Donor relied on Attorney to prepare Form 709, United States Gift (and Generation-Skipping Transfer) Tax Return reporting Donor's Year 1 transfers to Trust. Donor instructed Attorney to make an election under §2632(c)(5)(A)(ii) to treat Trust as a GST trust. Although Attorney intended to make such election, Attorney inadvertently failed to properly make the election on the Year 1 Form 709.
Donor requests an extension of time pursuant to §2642(g) and §301.9100-3 to make an election under §2632(c)(5)(ii) to treat Trust as a GST trust with respect to all transfers made by Donor to Trust.
Law and Analysis
Section 2601 imposes a tax on every generation-skipping transfer. A generation-skipping transfer is defined under §2611(a) as, (1) a taxable distribution, (2) a taxable termination, and (3) a direct skip.
Section 2602 provides that the amount of the tax imposed by §2601 is the taxable amount multiplied by the applicable rate. Section 2641(a) defines the term “applicable rate,” with respect to any GST transfer, as the product of the maximum federal estate tax rate and the inclusion ratio with respect to the transfer.
Section 2631(a) provides that, for purposes of determining the inclusion ratio, every individual shall be allowed a GST exemption which may be allocated by such individual (or his executor) to any property with respect to which such individual is the transferor. Section 2631(b) provides that any allocation under §2631(a), once made, shall be irrevocable.
Section 2632(a)(1) provides that any allocation by an individual of his GST exemption under §2631(a) may be made at any time on or before the date prescribed for filing the estate tax return for such individual's estate.
Section 2632(c)(1) provides that if any individual makes an indirect skip during such individual's lifetime, any unused portion of such individual's GST exemption shall be allocated to the property transferred to the extent necessary to make the inclusion ratio for such property zero. If the amount of the indirect skip exceeds such unused portion, the entire unused portion shall be allocated to the property transferred.
Section 2632(c)(3)(A) provides that for purposes of this subsection, the term “indirect skip” means any transfer of property (other than a direct skip) subject to the tax imposed by chapter 12 made to a GST trust.
Section 2632(c)(5)(A)(ii) provides that any individual may elect to treat any trust as a GST trust for purposes of this subsection with respect to any or all transfers made by such individual to such trust.
Section 2642(a)(1) provides that the inclusion ratio with respect to any property transferred in a generation-skipping transfer is the excess (if any) of one over the “applicable fraction.” Under 2642(a)(1), the applicable fraction is defined as a fraction the numerator of which is the amount of the GST exemption allocated to the trust (or to property transferred in a direct skip), and the denominator of which is the value of the property transferred to the trust (or involved in the direct skip), reduced by the sum of any federal estate tax or state death tax actually recovered from the trust attributable to such property and any charitable deduction allowed under §2055 or 2522 with respect to such property.
Section 2642(b)(2) provides that if property is transferred as a result of the death of the transferor, the value of such property shall be its value as finally determined for purposes of chapter 11. Any allocation to property transferred as a result of the death of the transferor shall be effective on and after the date of the death of the transferor.
Section 2642(g)(1)(A) provides that the Secretary shall by regulation prescribe such circumstances and procedures under which extensions of time will be granted to make an election to treat a trust as a GST trust under §2632(c)(5)(A)(ii).
Section 2642(g)(1)(B) provides that in determining whether to grant relief under this paragraph, the Secretary shall take into account all relevant circumstances, including evidence of intent contained in the trust instrument or instrument of transfer and such other factors as the Secretary deems relevant. For purposes of determining whether to grant relief under this paragraph, the time for making the allocation (or election) shall be treated as if not expressly prescribed by statute.
Notice 2001-50, 2001-2 C.B. 189, provides, in part, that, under §2642(g)(1)(B), the time for allocating the GST exemption to lifetime transfers is to be treated as if not expressly prescribed by statute and taxpayers may seek an extension of time to make an allocation described in §2642(b)(1) or (b)(2) under the provisions of §301.9100-3.
Section 301.9100-1(c) provides that the Commissioner has discretion to grant a reasonable extension of time under the rules set forth in §§301.9100-2 and 301.9100-3 to make a regulatory election, or a statutory election (but no more than six months except in the case of a taxpayer who is abroad), under all subtitles of the Code except subtitles E, G, H, and I.
Section 301.9100-3(a) provides that, in general, requests for extensions of time for regulatory elections that do not meet the requirements of §301.9100-2 must be made under the rules of §301.9100-3.
Section 301.9100-3 provides the standards used to determine whether to grant an extension of time to make an election whose due date is prescribed by a regulation (and not expressly provided by statute). In accordance with §2642(g)(1)(B) and Notice 2001-50, taxpayers may seek an extension of time to make an allocation described in §2642(b)(2) under the provisions of §301.9100-3.
Requests for relief under §301.9100-3 will be granted when the taxpayer provides the evidence to establish to the satisfaction of the Commissioner that the taxpayer acted reasonably and in good faith, and that granting relief will not prejudice the interests of the government.
Section 301.9100-3(b)(1)(v) provides that a taxpayer is deemed to have acted reasonably and in good faith if the taxpayer reasonably relied on a qualified tax professional, including a tax professional employed by the taxpayer, and the tax professional failed to make, or advise the taxpayer to make, the election.
Based on the facts submitted and representations made, we conclude that the requirements of §301.9100-3 have been satisfied. Accordingly, Donor is granted an extension of time of 120 days from the date of this letter to make an election under §2632(c)(5)(A)(ii) to treat Trust as a GST trust with respect to all transfers made by Donor to Trust.
The election should be made on an amended Form 709 and filed with the Kentucky Service Center at the following address: Department of the Treasury, Internal Revenue Service, Stop 824G, 7940 Kentucky Drive, Florence, KY 41042-2915. A copy of this letter should be attached to the Form 709.
Except as expressly provided herein, no opinion is expressed or implied concerning the tax consequences of any aspect of any transaction or item discussed or referenced in this letter.
The rulings contained in this letter are based upon information and representations submitted by the taxpayer and accompanied by a penalty of perjury statement executed by an appropriate party. While this office has not verified any of the material submitted in support of the request for rulings, it is subject to verification on examination.
This ruling is directed only to the taxpayer requesting it. Section 6110(k)(3) of the Code provides that it may not be used or cited as precedent.
In accordance with the Power of Attorney on file with this office, a copy of this letter is being sent to your authorized representatives.
Associate Chief Counsel
Passthroughs and Special Industries
By: Leslie H. Finlow
Senior Technician Reviewer, Branch 4
Office of the Associate Chief Counsel
(Passthroughs and Special Industries)