Written by attorney Henry Daniel Lively

Should You Worry About Potential "Clawback" with Regard to Gifts you Make?

The President signed into law on December 17, 2010 the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010. The Act reunified the Gift and Estate Tax when the maximum tax rate for both Gifts and Estates was set at 35 percent, and provided for a $5 Million applicable exclusion amount for both gift and estate tax purposes. This new Act has the same problem as the old Act. It has an automatic sunset provision and the law will then revert back to pre-Economic Growth and Tax Relief Reconciliation Act of 2001.

If this happens the Gift and Estate tax rate will revert back to 55 percent with and applicalble exclusion amount of $1,000,000 for gift and estate taxes. The problem with this is that a clawback provision could be imposed for taxpayers that took advantage of the $5,000,000 gift tax exclusion in 2011 or 2012.

If a clawback provision is applied in later years because the applicable exclusion amount goes down, the taxpayer will have to pay tax at the then current estate rate on gifts made in 2011 and 2012 on the difference between the $5 Million exclusion used in those years and the then current exclusion amount.

This is an uncertain area of the law and practitioners and their clients must be made aware of the potential for this to occur in the future. It is likely that Congress did not intend for a clawback to occur, but this does not change the fact that those that might be affected should address the issue in their estate plans.

We still do not have guidance from Congress in this area of the law, and until we do there will be uncertaintly in the markets. Hopefully, Congress will see the light and clarify this issue.

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