Ch. 4 – Gifts and Kindred Items

IRC §102(a)  – Gross income does not include the value of property acquired by gift, bequest, devise or inheritance.

Treatment is similar to life insurance - §101(a).

IRC §102(b) – But, no gross income exclusion is available for (1) income from property received by gift, or (2) a gift or bequest of income from property.  Cf., §101(c) re interest income from life insurance proceeds.

Income Interests     p.169
Irwin v. Gavit

Taxpayer received an income interest in a testamentary trust for a 15 year period.

Was this gift “property” for §102 gross income exclusion purposes?

Holding:  income derived from the trust is not excluded from GI under §102 (i.e., is included).

Further, this amount received is “income” for purposes of the U.S. Constitution.

continued

 

Income Interests     p.171
Alternate analysis

Note:  Corpus distribution (when the life tenant dies or the term expires) is not gross income to the owner of the remainder.

Alternative approach:  Allocate the income tax basis proportionately between the several parts, i.e., (1) the fixed term (or life?) interest, and

(2) the remainder interest? 

How accomplish this tax basis allocation?

Trust Income Taxation  p.172

Subchapter J – §§641 et. seq. re trust income taxation, i.e., trust & beneficiary.

See later Chapter 18 discussion.

Trust income taxation is applied on a “conduit approach,” i.e., did a trust income distribution occur or, even if not, was a trust distribution mandated?  If so, allocation of gross income to the trust beneficiary is required. Option: income taxation to the trust itself.

Cf., simple trust vs. complex trust.

 

Income Interests     p.172
Commr. v. Early        §273

Was the 32% joint interest in trust taxpayers’ when acquired received by gift upon the compromise of the estate/will contest dispute?

Taxpayers held various Corp. shares which they surrendered in a probate settlement.

Seeking to “amortize” value of estate received over expected joint life (except for §103 assets).

Held: Settlement was based on underlying gift dispute and this claim resolved and a donative transfer & no IRC §273 amortization available. 

Gift of Appreciated Property                  p.177

Gifts for §102 purposes can be of cash, stock, royalty interest, real property, or other types of property (but not a stream of income).

What are the post-gift income tax effects (in addition to IRC §102(b) gross income inclusion).  E.g, what is the income tax basis of gift property to the donee when a gift of appreciated (or depreciated) property is made to the donee?

See §1015(a) re tax basis to donee for gifts.


Taft v. Bowers           p.177
Is §1015 Constitutional?                      

A purchases shares for 1000x and holds until FMV is 2,000x.  A then gives shares (worth 2,000x) to B who later sells the shares for 5000x. 

Is B’s realized gain (1) 3000x or (4) 4000x? 

Held:  4000x gain is realized and is includible in gross income – even though not all gain was accrued while B was owner of the property sold. 

Held: The U.S. Constitution permits the value increase to be taxed to the transferee. Why?  Otherwise – what result?  No inclusion?


Taxation Options When Gain Property Transferred

Appreciated property transferred by gift:

Tax the accrued gain when the property is

transferred by gift to donee; a recognition event.

Transfer basis to the donee and subsequent

recognition of all accrued gain to the donee.

3)  Step-up tax basis to FMV when the gift transfer occurs – & then no gain recognition; accrued gain then disappears from the tax base.


Taxation Options When Loss Property Transferred

Assume that depreciated property is transferred by gift.  E.g., tax basis of 10x and fmv of 7x.

Why transfer loss property?

What is the treatment upon a subsequent sale of the property by the donee?

How much loss deduction is available?

See Code §1015(a).

See three alternative situations for determining gain/loss.  See Problem 2, p. 180.


Property Transfers at Death  §1014             p.180

§1014 provides that the tax basis of property received from a decedent is the FMV of that property as of time of decedent’s death (or as of the alternate valuation date - §2032).

Any accrued gain disappears from the tax base.

Is this a “tax expenditure” item?  How much?

Does this produce a “lock-in” effect for the appreciated property holding?  But, possible to borrow against the property?  E.g., consider the income tax effects of a “reverse mortgage”?

Alternative to §1014 Tax Basis Step-up?

See §1022 (p. 182) – in effect for (only) the year 2010 when an estate had an option to elect out of the estate tax – in which event a modified carryover tax basis applied.  Subject to various exceptions, e.g., basis step-up of $1.3 million permitted.

What would be the prospects for accurately reporting income tax gain in the future, when realized by a beneficiary who has a §1022 basis for property earlier received from a decedent?

2015 Enactment of
§1014(f)

§1014(f) specifies that the tax basis of property acquired from a decedent can not exceed the value as finally determined for estate tax  purposes.  Estate tax return is required for this basis limitation provision to apply.

§6035(a)(1) specifies that the executor must furnish information re this value to beneficiary.

Enacted in H.R. 3236, “Surface Transportation and Veterans Health Care Choice Improvement Act of 2015,”  (P.L. 114-41, §2004).

Income in Respect  of a Decedent                 p.183

What is “income in respect of a decedent”?

See §1014(c) and §691.  Interest, dividends, rent.

Example:  Cash basis taxpayer’s estate does not get an income tax basis step-up (under §1014) for such items as “accounts receivable” held by the decedent at death.  Note: a cash basis taxpayer would not actually have “accounts receivable” - since taxpayer on a cash method and not on an “accrual basis.”

Estate Tax & Gift Tax
p. 185

1) Estate tax – an excise tax on one’s wealth transferred at death.  An appropriate tax? 

During 2017 – unified credit/exemption equivalent of $5.49 million (double to $10.98 mil. for spousal situations) after inflation adjustment. 

2) Gift tax:  tax rate schedule integrated with estate tax. Protects against tax free depletion of the estate tax base & income tax deflection.

3) Generation skipping transfer tax: additional tax when E&G tax skipped for one generation.

Prizes & Awards       p.185
§102 re gift exclusion

Pauline C. Washburn, p. 185

Receipt of $900 for merely picking up the telephone.  No services or other request made for cooperation by the source of the funds.

Held:  Characterized as a gift (not gross income) and no GI inclusion.

Correct result? Consider Glenshaw Glass.

Cf., earlier Turner case (steamship tickets; only a valuation case?).

Prizes & Awards       p.187

Code §74(a)  – requires inclusion of awards and prizes in GI.  

What about winning the Nobel prize?

What about winning the Olympic gold medal?

Note §74(d) GI exclusion provision (2016).

See the §74(b) exception from gross income inclusion – when an income deflection to charity occurs of the amount to be received.  Why provide this special exception?

Paul Hornumg case
p. 187

Paul Hornung wins a car as the outstanding player of the NFL championship game (before existence of the Superbowl). Gross income?

Or, did (then) §74 enable a GI exclusion of the value of the car for an “artistic” performance?

Note current situation:  Superbowl game – MVP wins a super-sized pick-up truck – what income tax result?

Scholarships & Fellowships              p.189

See §117 re a limited exclusion from GI for scholarships.   For tuition and books, but not for room and board.

No exclusion for a payment made for teaching.

What about amounts to “student-athletes”?

Is this provision discriminatory (i.e., differential tuition pricing)?  Should deduction be permitted for educational expenses? 

Or, permit a capitalized (depreciable) expense for (higher) educational costs?

Commercial Gifts (for income tax)              p.190

§102 provides for a GI exclusion for “gifts.”

Even though an accession to wealth?  Yes.

But, no deduction to donor for wealth transfers.

Query in a transaction:  Was the transfer really a “gift” for FIT purposes?

Duberstein, p. 190:  Received a Cadillac from a business associate (Berman) who was thankful for business tips.  Berman deducted the car cost as a business expense.  Tax Court:  GI inclusion.

Stanton case, p. 191:  Dist. Ct. says gift.  Cont.

Duberstein, cont.
U.S. Sup. Ct.            p.193

Gift must be made from “detached and disinterested generosity.”  p.193.

Deciding this case is to be based (p.195-6) on the tribunal’s experience with the mainsprings of human conduct to totality of facts of each case.

Lower Ct. decision by judge to be reversed when “clearly erroneous” -  FRCP 52(a) (& § 7482).

Duberstein case (Tax Court) was not “clearly erroneous”– a compensation event occurred. 

Stanton:  remand for further proceedings. Cont.

Duberstein, cont.
U.S. Sup. Ct.            

Stanton, continued – was the trial court’s determination too sparse?  See FRCP Rule 52(a) re the original finding of facts by the judge.

Frankfurter opinion – p. 198:  apply a presumptive rule putting the burden on the taxpayer to prove the payment has no relationship with employment. Therefore, include Stanton’s payment in gross income?

See Douglas dissent – p. 197.  A gift occurred.

Stanton v. United States
On remand                p.200

Remanded for further determination of the tax facts – rather than merely the “ultimate fact.”

Determination by the trial court (U.S. Dist. Ct.) on remand:  Action by the Board in awarding the departure payment was equivalent to a “gift” (and, therefore, no GI inclusion). 

Was this really a gift to Stanton as he “retired”?

United States v. Kaiser
p.202

Jury verdict that union strike assistance in form of rent and food vouchers constituted gifts.

No defect in the charge to the jury concerning the jury deciding this as a “gift” question.

Jury’s prerogative to make this decision.

Issue re the allocation of judge/jury power to decide this question.

Effect of the jury finding:  Benefit here is equivalent to a Gov’t. relief program.

 

Rev. Rul. 61-136
p. 205

When will strike payments will be treated as gifts and excluded from gross income?

IRS agrees that in cases “substantially like those in the Kaiser case” strike benefits will be treated as gifts;

But, is each case based on its own independent facts?  Did the IRS concede too much (or nothing)?

 

Business Gift Analysis –Tax Case Decision Making

Options for dealing with Duberstein situations:

Analyze the facts in each situation.

Rebuttable presumption that not a gift, but

that income is derived in a business situation.

Non-rebuttable presumption that

compensation has been received.  See §102(c).

See §274(b) re deduction limit on §102(a) gifts in the business context i.e., to prevent “whipsaw,” p. 206. 

Section 102(c)          p.205
Employee Gifts

§102(c) shall not exclude from gross income any amount transferred by or for an employer to, or for the benefit of, an employee.  

Christmas ham or turkey?  P. 207.

Cf., Prop. Reg. 1.102-1(f)(2).  Is this a valid regulation?

Can the employer deduct this “gift,” e.g., as an employee expense? Cf., dividend.

Where a closely held corporation – possible deductible payment or a profits distribution?

Burden of Proof Issues
p. 210

Code §7491 re burden of proof shifted from taxpayer to IRS if certain conditions are satisfied, i.e., taxpayer introduces “credible evidence.”

But, the taxpayer must first present various facts to shift the burden of proof.   §7491(a)(1).

This burden of proof rule is not relevant to large corporations and partnerships.

Effect of the Allocation of Discretion                p.211

When deciding mixed questions of law and fact – and when Tax Court, Federal District Courts, and Claims Court alternatively can participate:   Does this cause too much diversity of results on similar issues? 

Is this good for the management of the tax enforcement system?

Does this encourage “playing the audit lottery” and “forum shopping”?

Estate of Sydney Carter
p. 211

Employee of Salomon Bros. – investment firm. Benefit was paid to widow.

IRS asserts deficiency;  Tax Court agrees.

2nd Cir. reverses – treated as gift for income tax.

Prior fact patterns had been for “widows’ payments” to be treated as gifts.

Should a variance among these various decisions occur -  wherever arising?

Dissent: Duberstein rules mandate affirmance. 

Bank of Palm Beach
p. 216

Salomon Bros. was allowed a business expense deduction for the payments to Mrs. Carter.

Ct. of Claims states symmetry is not required.

Finding that the dominant motivation of the payor was for business purposes.

See §274(b) re no deduction for business gifts (above $25).

Social Insurance and Welfare Payments    p.217

§85 – unemployment insurance benefits are includible in gross income.  Why – when the person is unemployed?  Protected by the “standard deduction”?

§86 – social security benefits - 85% are included in gross income  – subject to some further exclusions at lower income levels.  Why include S.S. payments in gross income when prior contributions were made – is this not just tax basis recovery?

Rev. Rul. 2003-12, p. 218
General Welfare Exclusion

Are flood relief payments excludible from gross income?

Options re the payor:  (1) state agency, (2) charity, or (3) employer.

Note “general welfare exclusion” - p.219.

Note §139 re terrorism & federally declared disaster relief exclusion from gross income.

Here:  Holding inclusion in GI, unless specifically excluded.

General Welfare Exclusion
p.223

What is the source of the authorizing law (i.e., Internal Revenue Code provision; other source?) for the general welfare exclusion from the definition of gross income for FIT purposes?