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Over 36 million families got their sixth—and final—monthly child tax credit advance back in December.
Those checks were a temporary measure that was provided by the $1.9 trillion American Rescue Plan that President Joe Biden signed into law in March 2021. For one year, the economic aid package upped the child tax credit from $2,000 to $3,000 per dependent ages 6 to 17, and from $2,000 to $3,600 for children aged 5 or younger. Unlike previous years, up to half of that money could come early through monthly $250 or $300 tax advances (a.k.a. checks) sent between July and December.
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Eligible parents who received the monthly advances will still get up to half the total credit once they file their 2021 tax return this year.
But what will replace the lapsing benefit? As of right now, the 2022 child tax credit (which you would get when you file in 2023) is set to go back to $2,000 for each dependent age 17 or younger. The benefit is set to revert because Congress didn't pass an extension of the enhanced benefit, nor an extension of the monthly payments.
That said, the IRS has yet to release the income cutoffs for the 2022 benefit. Not to mention, there's still a chance Congress could act before the child tax credit reverts back to its pre-2021 payment level.
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Democratic leadership continues to push to pass the Build Back Better plan—a reconciliation bill they've been working on for over six months. In its latest form, the bill would extend the 2021 child tax credit for another year. However, moderate Sen. Joe Manchin (D-W.Va.) remains opposed to both the size of the bill and the idea of extending the monthly child tax payments.
Passing a reconciliation bill in the face of united Republican opposition would require the support of every Democratic senator. After all, Democrats hold the 50-50 split chamber only through a tie-breaking vote from the vice president. So, without Manchin's support, Democratic leadership is unlikely to pass the bill.
Before publicly coming out against the bill, Manchin reportedly told the White House he would support the continuation of the monthly child tax credit payments only if it included a "work requirement" for parents and capped payments to families with an income under $60,000. If Manchin got his $60,000 income cap, millions of Americans would lose out on the benefit.
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The enhanced child tax credits ($3,000 for children ages 6 to 17, and $3,600 for children aged 5 or younger) went out this year to single filers whose modified adjusted gross income was less than $75,000 per year and couples filing jointly who earned up to $150,0000.
Earners above that could still get a $2,000 credit; however, they were completely phased out at an income of over $200,000 per single filer and over $400,000 per household. Your Tax Pro On Demand,
The IRS has extensively updated for 2021 individual tax returns its website's frequently asked questions (FAQs) on the child tax credit and its advance payments. The updates also were released as a 21-page fact sheet (FS-2022-03).
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One of 14 topic headings is "Reconciling Your Advance Child Tax Credit Payments on Your 2021 Tax Return," which now begins to be of paramount importance to taxpayers with qualifying children and those taxpayers' return preparers, as the IRS announced Monday it will begin accepting returns on Jan. 24. A general FAQ notes that taxpayers must compare the total amount of advance child tax credit payments they received during 2021 with the amount of the child tax credit they can properly claim on their 2021 tax return.
The monthly advance payments began in July 2021 for most qualifying taxpayers and ended with the payment in December. They should in most cases total half the amount of the credit claimable for the full year. An FAQ (A11) notes that taxpayers who received advance credit payments will receive Letter 6419 this month reporting to them the total amount of their payments and that they should use this information in making the reconciliation.
Married taxpayers filing jointly receive two Letters 6419
This reconciliation is made on Schedule 8812, Credits for Qualifying Children and Other Dependents, of Form 1040, U.S. Individual Income Tax Return. The draft instructions for Schedule 8812 for 2021 note that "[i]f you filed as married filing jointly on your prior year return then both you and your spouse will receive a Letter 6419" (page 2).
Repayment of excess advance credit payments
The FAQs also discuss the circumstances under which some taxpayers may have to repay excess advance child tax credit payments, such as in a shared-custody arrangement, when a taxpayer with a qualifying child on the taxpayer's 2020 return is not claiming a child on the taxpayer's 2021 return but received the advance credit payments (FAQ L2).
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More commonly, a taxpayer may have received advance credit payments based on income from a 2020 return that was lower than the taxpayer received in 2021 and thus may have a lower-than-expected child tax credit for 2021 or be required to repay it (FAQ F4).
In other cases, a taxpayer may have been eligible for advance credit payments or higher payments but did not receive them, as when a child is claimed on the 2021 return but not on the taxpayer's 2020 return and not reported to the IRS during 2021, such as via the IRS's Child Tax Credit Update Portal (FAQ F3).
Other FAQs address situations in which a taxpayer may not be required to repay the full or a partial amount of excess advance credit payments (FAQs H3 through H7).
The FAQs also note that residents of Puerto Rico were not eligible to receive advance credit payments but may be eligible for the child tax credit on their 2021 Form 1040-PR,Planilla Para la Declaración de la Contribución Federal Sobre el Trabajo por Cuenta Propia (Incluyendo el Crédito Tributario Adicional por Hijos para Residentes Bona Fide de Puerto Rico), or 1040-SS,U.S. Self-Employment Tax Return (Including the Additional Child Tax Credit for Bona Fide Residents of Puerto Rico). Residents of some, but not all, other U.S. territories were eligible for advance child tax payments with their respective U.S. territorial tax agencies, as described in FAQs I3 and I4.
Some businesses and individuals concerned about tax rate increases may be looking to accelerate income. Although income acceleration does not make sense in all circumstances, this article outlines seven proven strategies for accelerating income when it does.
First, businesses that use the overall cash method can seek to increase collections before year end and/or delay payment of expenses until 2022.
Third, individuals can convert a traditional IRA to a Roth to take advantage of the 2021 rates.
Fourth, many businesses that use the accrual method structure their compensation plans to satisfy the all-events test as of year-end. There may be an opportunity to take steps so that the all-events test is not satisfied as of year-end, delaying the deduction for accrued bonuses.
Fifth, businesses currently using the deferral method with respect to advance payments may be eligible to change their accounting method to the full-inclusion method using automatic change procedures, providing an opportunity to make this decision with hindsight.
Sixth, electing out of the installment method may allow the gain to be taxed at the old rates.
Seventh, several elections are available to capitalize expenses that would otherwise be deductible, such as costs of acquiring assets, prepaid expenses, repair expenses, and research and development costs.
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The IRS details how employers must report qualified sick leave wages and qualified family leave wages for leave provided to employees in 2021.
Under Notice 2021-53, employers are required to report the qualified leave wages either in box 14, "Other," of a 2021 Form W-2, Wage and Tax Statement, or on a separate statement. The reporting provides employees who are also self-employed the information they need to claim a qualified sick leave or family leave equivalent credit for the 2021 tax year.
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Separate guidance issued last year in Notice 2020-54 applies to reporting qualified leave wages for leave provided beginning April 1, 2020, through December 31, 2020.
Qualified sick and family leave wages are wages and compensation paid by an employer that are required to be paid for qualified leave provided to employees for the period Jan. 1, 2021, through March 31, 2021, under the Families First Coronavirus Response Act, P.L. 116-127, and, for qualified leave provided to employees for April 1, 2021, through Sept. 30, 2021, under Secs. 3131, 3132, and 3133, added by Section 9641 of the American Rescue Plan Act (ARPA), P.L. 117-2. Eligible employers who pay qualified sick and family leave wages are entitled to receive a refundable tax credit of the full amount of these wages paid with respect to each calendar quarter.
Qualified sick leave generally is provided to employees unable to work or telework due to certain COVID-19-related circumstances. Qualified family leave is generally provided for employees' inability to work or telework due to a need to care for a child if, for COVID-19-related reasons, the child's school or place of care is closed or because the child's care provider is unavailable.
Self-employed individuals can claim credits for equivalent amounts if they would have received qualified leave wages if they had been treated as an employee of an employer. They may have to reduce their qualified leave equivalent amount by some or all of any qualified leave wages they also received from an employer.
Qualified leave wages paid in 2021 should be reported in box 1, "Wages, Tips, Other Compensation," of Form W-2, the notice states. To the extent they are Social Security or Medicare wages, they must also be included, respectively, in box 3, "Social Security Wages," (up to the Social Security wage base) and box 5, "Medicare Wages and Tips."
Employers must also report to the employee, either in box 14 or on a separate statement, amounts of qualified leave wages separated and labeled with respect to whether they are for qualified sick leave or qualified family leave and with respect to the different limitation amounts applicable within specified date ranges in 2021.
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The Senate Finance Committee released its portion of the Build Back Better Act on Saturday containing tax provisions and other updated legislative text.
In an announcement, committee Chair Sen. Ron Wyden, D-Ore., said the committee had made "targeted improvements" in the 1,180-page portion of the act, which was passed in its entirety by the House on November 19, 2022 (H.R. 5376; see prior coverage of its tax and other provisions).
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Senate committees of Commerce, Small Business, Banking and Housing, and Veterans Affairs also are among committees that have released their portions of the Senate version of the Build Back Better Act, Senate Majority Leader Chuck Schumer, D-N.Y., said last week.
Besides revenue, the Senate Finance Committee's title (Title XII of the bill) includes provisions on nontax matters including paid leave, health care, the environment, higher education, and trade.
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Wyden said his committee modified the House's text of the bill with technical and policy changes plus changes to comply with Senate budget rules. The chamber's parliamentarian has yet to weigh in on rules compliance.
One thing that is not in the Senate version is any change in the current (through 2025) cap on itemized deductions of state and local taxes under IRS Section 164(b). The House version would increase the current $10,000 limit to $80,000 ($40,000 for married taxpayers filing separately and trusts and estates).
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Changes may be made on the Senate floor later, including by an amendment adding a SALT provision (which was also added by amendment in the House).
Also like the House version, the Senate text extends the 2021 expansion of the child tax credit through 2022 and also extends advance payments of the credit monthly through 2022. It also would extend the greater refundability of the credit beyond 2022.
The Senate text, like the House bill, includes an extension of the 2021 changes to the earned income tax credit through 2022. The increase in the earned income and phaseout amounts would be indexed for inflation in 2022.
The legislation also would modify IRS Section 1202, which provides a gain exclusion for stock of qualified small businesses if held for more than five years, by disallowing 75% and 100% exclusions for taxpayers with adjusted gross income (AGI) over $400,000 or for trusts or estates.
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The bill would expand the reach of the IRS Section 1411 net investment income subject to a surtax of 3.8% of certain high-income taxpayers (taxable income over $400,000 for single filers and $500,000 for married couples filing jointly) to include income derived in the ordinary course of a trade or business.
A new IRS Code Section 1A would impose a tax on modified AGI over $10 million of 5% for individuals ($5 million for married taxpayers filing separately) and $200,000 for an estate or trust, plus 3% of modified AGI over $25 million for individuals ($12.5 million for married taxpayers filing separately) and $500,000 for an estate or trust.
While the Build Back Better Act's smorgasbord of tax incentives for clean energy, new taxes on large corporations and wealthy individuals, and tax relief for others remains stalled for now in the Senate, 2022 nonetheless dawns with the advent of at least one new tax provision, lapses of a number of others, and at least a couple of sets of required regulatory rules.
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The IRS posted frequently asked questions (FAQs) in November to further aid taxpayers and passthrough entities in their reporting and filing requirements under the final regulations, including worksheets for API holders' Schedules K-1, Partner's Share of Income, Deductions, Credits, etc., for tax returns filed after December 2021 in which a partnership or other passthrough entity applies the final regulations. The AICPA proposed clarifications and other suggestions with respect to the FAQs in a letter to IRS officials dated December 23, 2021.
Final regulations generally applicable to tax years beginning in 2022 and after were also issued for the IRS Section 4960 excise tax, equal to the corporate rate of 21%, on annual remuneration over $1 million to certain executives and other highly paid employees of applicable tax-exempt organizations (T.D. 9938). Also added to the Code by the TCJA, Sec. 4960 also applies the tax to "excess parachute payments." (See "Managing the 'Excess Compensation' Tax," for more.)
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Much attention recently has focused on the individual tax relief provisions for 2021 enacted by the American Rescue Plan Act (ARPA), P.L. 117-2, some of which would be continued for 2022 by the Build Back Better Act. Chief among them are ARPA's increases and expansion of the child tax credit, including its monthly advance payments, which have now ended as of the December 2021 payment. If and when the Build Back Better Act is passed with a renewal of that provision for 2022 (as passed by the House), the payments would resume, but the IRS has not said how quickly it could reset its systems to administer them.
Beyond those expiring provisions, a number of pre-ARPA "extender" items lapsed at the end of 2021. Few of them apply widely, except for one relatively common itemized deduction, the treatment of premiums for certain qualified mortgage insurance as qualified residence interest (IRS Section 163(h)(3)(E)(iv)). Since its introduction in 2007, this provision has expired repeatedly (including at the end of 2020) and been renewed (for 2021 by the Consolidated Appropriations Act (CAA), 2021, P.L. 116-260), sometimes retroactively.
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Another common item also renewed by the CAA from 2020 and slightly modified for 2021 but now expired is the charitable contributions deduction for nonitemizers (IRS Section 170(p)).
Lenders and servicers of most student loans should not file Form 1099-C, Cancellation of Debt, for loans discharged in 2021 through 2025, since borrowers do not have to include these forgiven amounts as income for tax purposes, the IRS stated Tuesday.
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The guidance in Notice 2022-1 pertains to a provision of the American Rescue Plan Act (ARPA), P.L. 117-2, passed in March 2021. ARPA added a special rule in Sec. 108(f)(5) providing that taxpayers' gross income does not include any amount discharged after December 31, 2020, and before January 1, 2026, for certain loans provided expressly for postsecondary educational expenses, whether through an educational institution or directly to the borrower.
The covered loans are those made, insured, or guaranteed by the United States or its instrumentalities or agencies; a state, territory, or possession of the United States or the District of Columbia, or any of their political subdivisions; or made by an eligible educational institution, as defined in IRS Section 25A. Also covered by the provision are certain student loans made by educational organizations and private lenders.
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The notice advises lenders and servicers of these loans that they are not required to, and should not, file information returns or payee statements (i.e., Form 1099-C) reporting an applicable discharge of student debt to the IRS or to the borrower, which could cause the IRS to erroneously issue a notice of underreported income and confuse the borrower.
The bright pink house for sale was an eye-catcher. Built in the 1960s, this not-really-updatedtwo-bedroom, one-bath house was purchased in 2001 for $100,000. In 2019, the asking price was $300,000, but it did not sell. Fast forward to 2021, and during a pandemic, the same house sold for $400,000. Could this little gem of construction really have increased so much in value in a couple of years? Or possibly was it the fact that it was on an extra-wide waterfront lot?
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Suppose that this pink house was an income-producing property for the seller. When the property was originally acquired, the purchase price would have been allocated between the land and the building so that the building could be depreciated. Typically, in this situation the owner wants to be able to allocate as much purchase price as possible to the building so that the cost can be recouped (albeit ever so slowly) by depreciation. Often, this allocation is an afterthought and is done using the 20/80 rule of thumb (20% of the purchase price to the land and 80% of the purchase price to the building).
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To calculate the gain on a sale, the same principle applies — the sales price needs to be allocated between the land and the building. Again, this allocation is typically done as an afterthought and, quite frankly, at the time the return is being prepared, potentially more than 1½ years after the sale. Here is where tax practitioners have a responsibility to advise their clients as to the significance of the land/building value allocation and what it means to the client's tax bill.
Depreciable real estate, whether residential or commercial, that is used in a trade or business is IRS Section 1231 property. The sale of IRS Section 1231 property results in taxation at capital gain rates if there is a gain and ordinary income rates if there is a loss. Property owners are typically aware of the favorable tax rates they are allowed upon sale, but just like the rules of grammar, there is usually an exception to the rule. For depreciable real estate, the exception is in IRS Section 1250, which provides that to the extent of depreciation taken (or allowed), the gain on the real estate sale is taxed at ordinary rates up to 25%. Depreciable real property is taxed at 25% up to the amount of depreciation taken and then taxed at capital gain rates. On the other hand, land is also IRS Section 1231 property, but because it is not eligible for depreciation, it is not Section 1250 property.
To return to the little pink house on the extra-wide waterfront lot, which this analysis supposes is rental property: This more-than-50-year-old house was sold for four times its purchase price 20 years after acquisition. The tax practitioner likely did an easy 20/80 allocation to establish the house value for depreciation purposes. It would be easy enough to do the same for the sale and call it a day. The firm has other returns to get done, and this is just one more it can check off its list.
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Under this approach, gain would be calculated on the sale first by allocating $320,000 of sale proceeds to the house and $80,000 to the land. Remember that the initial purchase price of $100,000 was allocated $80,000 to the house and $20,000 to the land. Assuming no closing costs and $60,000 of accumulated depreciation (for ease of calculation), the IRS Section 1250 gain is $60,000 and the IRS Section 1231 gain is $300,000 ($240,000 for the house and $60,000 for the land). Using the maximum capital gain rate, the tax on the sale is $75,000 (IRS Section 1250 gain of $15,000 ($60,000 × 25%) and IRS Section 1231 gain of $60,000 ($300,000 × 20%)). But is this really in the client's best interest? Remember, it is the tax practitioner's responsibility to advocate for the client.
In reality,the purchaser of this property has little to no interest in the '60s-style pink house. The real value of this property lies in the large waterfront lot (sunsets included). With this in mind, a tax practitioner can rethink the purchase price allocation of the $400,000 sale proceeds and potentially allocate $20,000 to the house and $380,000 to the land. Using this method, the gain on the house is $0, and the entire $360,000 gain ($380,000 — $20,000) is on the land at capital gain rates. The resulting tax is $72,000 ($360,000 × 20%), a $3,000 cash-in-pocket savings over the 20/80 allocation method. Not only has the tax practitioner saved the client $3,000 (possibly more than the cost of the invoice), but he or she is also a tax hero, bound to receive numerous referrals from a happy client.
Note that it is important to properly document the allocation of value between the building and the land. Ideally, an appraisal would separately state the land and building values. Often, the tax practitioner finds out about a sale after the fact, and such an appraisal is not practical. In this case, the practitioner may look to the county tax assessor's allocation, the advice of a knowledgeable real estate professional, or even an estimated replacement cost for the building (see Meiers, T.C. Memo. 1982-51).
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In a year when real estate prices are soaring in many areas of the country, these easily overlooked allocations can have a significant tax impact. The above example is a relatively small dollar amount for real estate, and the tax savings could easily be multiplied for larger, more valuable properties. By using the proper land/building value allocation, tax practitioners can continue to do their best for clients.
Ready for your 2021 tax refund? Mark your calendars because January 24 is the date the Internal Revenue Service will start accepting and processing 2021 income tax returns.
The 2022 tax season will run from Monday, January 24, 2022 to Monday, April 18, 2022 the Treasury Department and Internal Revenue Service said Monday — but brace yourself for potentially sluggish service as the underfunded, understaffed and backlogged IRS juggles another filing season, Treasury officials said.
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The 2022 filing season arrives as Capitol Hill negotiations over the Biden administration’s Build Back Better bill seem stalled. The bill would include adding $80 billion over a decade to the IRS budget for more staff and better technology to catch tax cheaters, as well as funding to improve customer service.
“In many areas, we are unable to deliver the amount of service and enforcement that our taxpayers and tax system deserves and needs. This is frustrating for taxpayers, for IRS employees and for me,” said IRS Commissioner Chuck Rettig.
The Build Back Better bill would have also renewed the enhanced child tax credit payments through 2022. But the future of these monthly payments are in question for 2022, so the 2021 income tax refunds hitting bank accounts could be a much-needed surge in cash for many parents. The average individual refund on 2020 returns was $2,815 as of early December, according to the IRS.
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Without processing delays or errors in a taxpayer’s return, the IRS should be able to hit its traditional turnaround time, which gets refunds to people within 21 days from when the agency receives the return, Treasury officials said Monday.
“Planning for the nation’s filing season process is a massive undertaking, and IRS teams have been working non-stop these past several months to prepare,” Rettig said. “The pandemic continues to create challenges, but the IRS reminds people there are important steps they can take to help ensure their tax return and refund don’t face processing delays.”
The best way to avoid a delay is to file electronically (instead of via a paper return) with direct deposit, IRS officials noted. It’s also crucial that numbers on the return are accurate to avoid snags and delays.
The IRS is sending out important letters on amounts it paid households last year for child tax credit payments and the third round of stimulus checks. It’s important to watch out for those letters, tax professionals say.
The IRS is still wading through a backlog of 2020 tax returns. As of December 23, 2021 it still had 6 million unprocessed returns. Errors and “special handling” to address discrepancies in the returns are some of the reasons, the IRS said. Typically, just ahead of a filing season, the IRS would have a backlog of unaddressed mail and documents below 1 million, Treasury officials said.
Taxpayers can request a filing extension through October 17, 2022 the April 18, 2022 due date represents the final day to pay up on 2021 federal income taxes. After that point, the IRS can arrange installment plans. Taxpayers in Maine or Massachusetts have until April 19, 2022, to file their returns due to the Patriots’ Day holiday in those states.
Last year, tax season began on February 12, 2022 and the original plan was to have the traditional April 15 deadline. Midway through the season, the IRS pushed the payment deadline to May 17, to accommodate frazzled taxpayers, tax preparers and the many twists from new tax provisions in the $1.9 trillion American Rescue Plan.
There are currently no plans to extend the filing deadline this year, Treasury officials said Monday.
With the looming threat of legislative change expected to drastically lower the estate and gift tax basic exclusion amount, the pressure to make large gifts before year end is causing a flurry of gifting.
It is important to consider some of the less-obvious gifts when you are advising clients who are intent on using up their full $11.7 million basic exclusion amount before the end of the year. Outside the more obvious outright transfers of money or property, some indirect gifts may cause your client to exceed the lifetime exclusion inadvertently when property (tangible or intangible) is transferred without full and adequate consideration under Regs. Section 25.2512-8.
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One common example is providing support to an adult child. To first determine whether support to a child over the age of 18 is a gift, start by looking to the applicable state's law to determine whether it imposes a legal obligation to support the child. Each state defines its legal support obligation, and the duty to support must be a legally enforceable obligation under state law, not a purely moral obligation (see, e.g., Lester, 35 F. Supp. 535, 540 (Ct. Cl. 1940) ("A moral obligation is not a sufficient consideration to avoid the incidence of the [gift] tax.").
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In most states the age of majority is 18, and in others it is 19 or 21. Further, there appears to be no clear guideline on whether a parent is legally obligated to pay for a college education or to provide support if a child is merely unable to support himself or herself (and not mentally or physically disabled). Laws in each state vary, and, in some states, making a determination may boil down to a careful review of the facts and circumstances.
It is also important to recognize that the federal income tax requirements for the dependency deduction fall under different rules and that a parent does not automatically have a legal obligation to provide support under state law just because the child qualifies as a dependent. It is possible to claim the adult child as a dependent under the support and other tests and still make a taxable gift in the form of the support. A discussion of income tax consequences is beyond the scope of this item.
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Often, the client assumes that if the child is in college, the client can continue to support the child without incurring any gift tax consequences. The payments could include providing a home or paying for room and board at the school dormitory or paying for books and other college expenses such as tuition. The following example may help explain what is and is not a gift to a child in college:
Example: A's 18-year-old son E is in college, and she paid the following costs in 2021:
Tuition of $25,000 directly to the college.
Room and board of $15,000 paid to the college for dormitory fees and meals; and
A monthly stipend to cover books and other incidental costs of $12,000 for the year.
E did not earn any wages or use any personal funds for his support. E's late father left a trust to provide for his health, education, maintenance, and support (HEMS), and the trust generated $30,000 of income in 2021. The trustee is allowed to make a distribution under the HEMS standard, but no distribution was made.
A life in a state where the legal age of majority is 21. Even though E could have taken a distribution from the trust to provide for his support, A is legally obligated to provide the support. None of the payments A made for E's support are a gift, and because A provided for more than one-half of E's support (and E therefore did not provide more than one-half of his own support), she can claim him as a dependent for federal tax purposes.
If A lived in a state where the legal age of majority is instead 18, the payments made for room and board and the monthly stipend would be taxable gifts amounting to $27,000 (with an annual exclusion of $15,000 for 2021). However, the $25,000 direct payment of tuition would be excluded under Regs. Section 25.2503-6.
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income tax returns.
Whether or not the child is in college, providing full access to a home (that could otherwise be rented to an unrelated third party) without charging fair market rent could be an indirect gift under Regs. Sec. 25.2512-8 if the child is an adult under state law.
Another common example is the payment of life insurance premiums. Clients often forget to inform their CPAs when they create irrevocable life insurance trusts and contribute cash each year to the trust to pay life insurance premiums. A common reason they fail to inform their CPA is that they know the total contributed does not exceed the annual exclusion in total for all the beneficiaries. However, for the gift in trust to qualify as a present interest that qualifies for the annual gift tax exclusion, the trust should comply with IRS Letter Ruling 199912016 to allow for an immediate withdrawal right, and actual notice of this right must be given to the beneficiary (Crummey notice, from Crummey, 397 F.2d 82 (9th Cir. 1968)). And the client may fail to consider that this gift may use up the annual exclusion for other gifts made in a given year.
Another often-overlooked indirect gift is when a beneficiary of a trust requiring mandatory distributions of income fails to take the annual distribution. Sec. 2511 says, regarding transfers in general, "Subject to the limitations contained in this chapter, the tax imposed by section 2501 shall apply whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible." Therefore, when the beneficiary fails to withdraw income each year and allows the funds to become part of the corpus that will ultimately pass to the remaindermen, this is an indirect gift to the trust remainder beneficiaries. So be sure to ask if the required income distributions have been taken each year, to help your client avoid making an inadvertent gift.
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Other commonly overlooked gifts are those made for holidays, birthdays, and vacations and for loans made at an interest rate below the required minimum applicable federal rate. While they may seem small and inconsequential, these gifts can add up and in total create a taxable gift when combined with other gifting.
Transfers that are not gifts
Clients can take advantage of several Non gift opportunities to make a considerable impact when used as part of their overall wealth transfer planning. These include the following:
Gifts that are not more than the annual exclusion for the calendar year (Section 2503(b), $15,000 for 2021);
Outright donations to qualified charities.
Transfers to a U.S. citizen spouse.
Direct payments to medical providers for medical costs.
Direct payments to qualifying educational institutions for tuition (grade school through higher education; Section 2503(e)); and
Contributions to a political organization defined in Section 527(e)(1).
Countless other examples of indirect gifting are not covered in this discussion, so it is important to ensure your client understands the basic rules when engaging in wealth transfer planning. The fundamentals in Regs. Section 25.2512-8covering transfers without full and adequate consideration should be carefully explained so that you and your clients can work together to optimize their wealth transfer strategies. Careful planning to help your clients make the best use of transfers that are not gifts can help preserve their lifetime exclusion in the mosttax-efficient manner.
