Monthly Archives: March 2014

Estate Planning Tips for Your Art Collection

By Eleanor Lipsky, Esq. and Joseph L. Goldman, Esq.

Many collectors view art as more than a financial investment and often do not wish to readily part with a piece of sentimental and aesthetic value. Nevertheless, when an art collection is part of a taxpayer’s estate a number of estate, gift and income tax strategies should be considered.

Prior to ATRA 2012 (American Taxpayer Relief Act of 2012), estate tax planning often involved gift and estate tax strategies designed to eliminate appreciating assets from an estate in order to reduce estate and gift taxes.  After ATRA, the federal estate tax exemption has been made permanent at $5,000,000 (indexed for inflation) so fewer taxpayers are subject to federal estate tax.  At the same time, federal income tax rates have increased, so income tax planning has become more relevant.  Accordingly, it may be advantageous for taxpayers not subject to estate tax to leave appreciating assets in their estate to get a “stepped-up” basis at their death. This would reduce potential income tax on the gain when sold by the beneficiary or heir who received the asset.

An art collector should seek regular qualified appraisals of the collection, perhaps even annually, to get a better understanding of how the collection is appreciating.  In the case of a gift or a charitable contribution, such application can help substantiate a work’s value if there is an IRS challenge, protecting a collector from additional taxes and penalties for undervaluation.  Further, if a piece is worth more than $5,000, a taxpayer seeking a charitable income tax deduction will need to include a qualified appraisal with his or her tax return.  Qualified appraisals may also be necessary when artwork is left as a bequest in a Will.  For estate tax purposes, an appraisal must be included with the estate tax return for any piece worth more than $5,000 or for a collection of similar items worth more than $10,000.  For gift tax purposes, a qualified written appraisal is typically the best way to disclose a gift of artwork on a gift tax return.    It is important to check out the appraiser’s credentials to ensure that the appraiser is an expert in the type of item.  A qualified appraiser who makes a false or fraudulent overstatement of value, may be subject to a civil penalty.

A taxpayer transferring an art collection containing at least one item valued at $50,000 or more may request an advance ruling from the IRS to ensure that the IRS will later accept the taxpayer’s valuation.   An advance ruling may be requested only after the property is transferred and must include IRS Form 8283 (“Noncash Charitable Contributions”), along with a qualified appraisal, to make the request.  An advance ruling costs $2,500 for the first three items and $250 for each additional piece.

An art collector who donates artwork to charity can also receive a substantial income or estate tax deduction.  For instance, a taxpayer who donates to a public charity a painting purchased years ago for $1,000 that has a fair market value of $10,000 today and satisfies all tax criteria for deducting the donation will receive a $10,000 charitable deduction for income tax purposes.  Donations may also help avoid capital gains taxes.  This is helpful because while most assets are subject to a 15% capital gains tax rate (in 2013), art is subject to a higher rate of 28%.

A taxpayer donating art work should keep in mind that it is best for the donation to be related to the charitable organization’s charitable purpose.  For example, donating a painting to be displayed at a tax-exempt art museum allows a taxpayer to deduct the painting’s fair market value, for up to 30% of the taxpayer’s adjusted gross income.    If the amount deductible exceeds this limit, it can still be carried forward for up to five years.  On the other hand, if the donated artwork is not related to the organization’s charitable purpose, the deduction is limited to the taxpayer’s cost basis, but up to 50% of the taxpayer’s adjusted gross income.

Another way to donate artwork to charity is to create a charitable remainder trust (CRT).  This allows the trustee of the CRT to sell the art tax-free and reinvest the proceeds in income-producing assets.  The beneficiary receives income from the trust, while the named charity receives what is left at the end of the trust term.  It is important to note that since the donation is not related to the CRT’s tax-exempt purpose, the donor’s current income tax deduction is limited to the donor’s basis in the art, up to 50% of the donor’s adjusted gross income.  Additionally, the donor’s current income tax deduction will be limited to the actuarial value of the charity’s remainder interest in the artwork.

For those art collectors who are not quite ready to part with a piece permanently by a donation of artwork to a museum, consider donating an undivided fractional interest in an artwork to a charitable organization instead.  If a taxpayer donates a one-third (1/3) interest in a sculpture worth $5 million to a museum, the museum will have the right to display the sculpture for four (4) months out of each year.  The benefit of a fractional donation is that the donor can enjoy the sculpture for the rest of the year, while still receiving a sizeable charitable income tax deduction.  This is also a good alternative when an outright donation exceeds the donor’s adjusted gross income percentage limits.  Donating a fractional interest reduces the amount of the income tax deduction, minimizing the need to worry about the five-year carry forward period, discussed above.  A museum will usually be willing to agree to receive a fractional interest during a donor’s lifetime only if the donor agrees to donate the entire interest in the painting to the museum in the donor’s Will (or revocable trust).  The donor’s estate would then be entitled to a charitable estate tax deduction for the donor’s remaining interest in the painting, based on the painting’s value at time of the donor’s death.

Before donating to charity in a Will, a collector should consider the unlimited marital deduction.  The decedent can leave the artwork to his or her surviving spouse and then have the surviving spouse donate the artwork to the charitable organization during the surviving spouses’ lifetime.  This gives the surviving spouse an income tax charitable deduction without a federal estate tax on the artwork in the estate of the deceased spouse because of the unlimited marital deduction.  The advantage to this added step is that the surviving spouse will inherit the artwork at a new cost basis equal to the fair market value on the date of death of the first spouse.  The surviving spouse can also bequeath the artwork in his or her own Will and receive a 100% estate tax charitable deduction.   A taxpayer making a bequest of artwork to a charitable organization, through a Will should describe the artwork with as much specifics as possible.  Additionally, since a charity can renounce a bequest, the Will should include an alternative beneficiary as well.

Finally, a collector may choose to keep the collection in the family and only leave artwork to heirs and other beneficiaries through specific bequests in his or her Will.  Specific bequests can reduce conflict among family members and avoid some of the income tax issues connected with residual gifts.  A taxpayer should discuss his or her plans with family members in order to avoid issues and surprises later on.

No matter how you choose to plan for your art collection’s future, you should consider the tips discussed above to gain the best possible return on your valuable investment.

Goldman’s “Golden Rules” of Estate Planning – Part II

By Joseph L. Goldman, Esq.

Link to Part I

10. “Never look a gift horse in the mouth”

  • Don’t forget gifting as part of your estate plan.
  • Federal unified gift and estate tax exemption amount is $5,340,000 in 2014.
  • Annual exclusion gifts – $14,000 per year, per donee.
  • Gifts for education and medical expenses don’t count toward $14,000 annual exclusion.
  • Discounted gifts – gifts of a limited partner interest or an LLC interest – (a) need to substantiate the discount (e.g., appraisal), (b) the strategy is carefully scrutinized by IRS, (c) watch out for “business purpose” and control tests.
  • After ATRA, 2012, need to weigh benefit of estate tax savings through gifting v. loss of stepped-up basis for donee for income tax purposes.

11. “But the greatest of these is charity”

Charitable bequests can satisfy your charitable inclination and save you money as well.

  •   Outright bequests,
  •   Charitable remainder trusts,
  •   Charitable lead trusts.

12. “It’s time to hang em up”

Pay attention to proper designation of retirement plan and IRA beneficiaries to maximize income tax benefits.

Pay attention to proper designation of retirement plan and IRA beneficiaries to maximize income tax benefits.

  •   Designated beneficiaries,
  •   Don’t name estate,
  •   Spousal rollover,
  •   Stretch IRA,
  •   Use of trusts.

13. “I got the power”

  • Signing a general durable power of attorney allows you to name an agent to make financial decisions for you and can avoid costs and hassles of a guardianship proceeding in the event of a disability.
  • “Springing” power of attorney only becomes effective on the occurrence of a triggering event (e.g., certification of disability by your regular physician (or other licensed physician).

14. “Living well is the best revenge”

  • Make sure to execute a health care document or documents to name an agent to make medical/health care decisions for you if you are unable to do so.
  • NY – Health Care Proxy, Living Will.
  • NJ – Advance Directive for Health Care.
  • You can set forth your wishes regarding use of “heroic measures” if you are in a “terminal” condition – do you want mechanical respiration, artificial nutrition and hydration?
  • Organ donation.
  • Failure to make your wishes known can result in lengthy, painful family disputes.

15. “Nobody’s perfect!”

  • Don’t put off implementation of your estate plan until you develop the “perfect” plan.

16. “It’s never too late”

  • Even if you haven’t done any estate planning yet, do it now.  You could save your family a bundle and avoid headaches after you’re gone.

Goldman’s “Golden Rules” of Estate Planning – Part I

By Joseph L. Goldman, Esq.

For those of our readers whose New Year resolutions included creating (or updating) their estate plan, here are some “golden” rules:

1. “The only things certain in life are death and taxes”

  • Talk of an estate tax repeal is past.  The Federal estate tax for an estate exceeding $5,340,000 in 2014 is 40%.  Add New Jersey or New York estate tax of up to 16%.  That could result in a big bite out of your estate.
  • Need to consider the ATRA 2012 provisions – the interplay of higher income tax rates and a decreased amount of estates subject to Federal estate tax (on account of the increased exemption) which has dramatically changed the dynamic of estate tax planning.

2. “Failing to plan is planning to fail”

  • Assets may pass in a manner you didn’t intend.
  • Unnecessary estate tax costs.

3. “It’s not what you say – it’s what you do”

  • Even the best estate plan is worthless if it’s not implemented.
  • Make sure assets are titled properly to achieve estate tax savings.

4. “What have you done for me lately?”

Even if you have a Will, the changes to the estate and gift tax laws make it important that you review it.

  • Formula credit shelter – because of the increased exemption amount, your spouse could get much less outright than you think.
  • De-coupling of State estate tax (NY, NJ) from Federal estate tax – there is often a State estate tax on the death of a surviving spouse, even if there’s no Federal Estate tax.
  • After ATRA 2012, weigh potential estate tax saving strategies through gifting against loss of “stepped-up” basis to transferee for income tax purposes.

5. “Let’s talk of Executors and make Wills”

  • Even Shakespeare knew the importance of having a Will.
  • Cornerstone of estate plan.
  • If you don’t make a Will, the State you live in makes one for you.
  • Tax planning through use of trusts, disclaimers.
  • Set up trusts to manage property for minors, spouse.
  • Name your fiduciaries (executors, trustees) and guardians.

6. “Credit check”

  • Two basic rules of estate tax planning – (a)    unlimited marital deduction, and (b) unified gift and estate tax credit.
  • Take advantage of credit in each spouse’s estate to avoid unnecessary estate tax in surviving spouse’s estate.
  • The de-coupling of the New York estate tax and the New Jersey estate tax from the Federal estate tax could cost you – unless you make the right changes to that credit shelter provision in your Will.
  • New York credit amount capped at $1,000,000 (although the pending New York Budget Bill would raise it to conform with the federal exemption).
  • New Jersey credit amount capped at $675,000.
  • Don’t rely on “portability” – not recognized for State estate tax purposes or for generation skipping transfer (“GST”) purposes.
  • After ATRA 2012, need to weigh the estate tax benefit of keeping assets out of surviving spouse’s estate v. increased income tax due to loss of “stepped-up” basis on surviving spouse’s death.

7. “Think of the children”

  • Make a Will to name a guardian for your minor children – or else the State will do it for you!  Not a tax reason, but maybe the most important reason to have a Will.
  • Create trusts for management of property for children, even if they have reached the age of majority.

8. “From generation to generation”

  • Use a Will to take advantage of generation-skipping transfers and reduce estate taxes to the family.
  • GST exemption tied to credit shelter amount ($5,340,000 in 2014).
  • Trust for child for life, remainder to grandchildren – avoids tax in child’s estate.

9. “Who(m) Do You Trust?”

  • Use trusts as part of your estate plan, to manage property for minor children: (a) Set ages for mandatory distribution of principal (e.g., 1/3 – 25, 1/3 – 30, balance at 35); (b) Income from age 21; (c) Discretionary principal; (d) “Hold-back” provisions – gives trustee authority to hold back any mandatory distribution if not in best interest of beneficiary – bad marital, financial or mental situation.
  • Use trusts to manage property for surviving spouse: (a) Not subject to tax in first estate; (b) Ensures that trust property goes to children.
  • Use testamentary trusts to minimize state taxes: (a) Credit Shelter Trust – Not included in surviving spouse’s estate, but watch out for triggering NJ or NY state estate tax on account of “decoupling;” (b) Marital Trust (QTIP) – (1) not subject to tax in first estate – deferred until death of surviving spouse), (2) testator names remainder beneficiaries, (3) useful in second marriage situations.
  • Use inter vivos trusts: (a) Life Insurance Trust – (1) proceeds not included in grantor’s estate, (2) can keep proceeds in trust for surviving spouse’s lifetime so also not includible in surviving spouse’s estate, (3) can provide needed liquidity; (b) Qualified Personal Residence Trust (“QPRT”) – (1) discounted gift-giving, (2) reserve an interest for a term of years, then title passes to remainder beneficiaries, (3) if not a QPRT (e.g., a life estate), retained interest is valued at zero and entire value of residence is treated as a gift, (4) grantor must survive the QPRT term; (c) Grantor Retained Annuity Trust/Unitrust (“GRAT,” “GRUT”) – (1) discounted gift giving, (2) trust is funded with income-producing property, (3) reserve an annuity for a term of years, then assets pass to remainder beneficiaries, (4) if not qualifying as a GRAT, retained interest is valued at zero, and entire value of asset is treated as a gift, (5) grantor must survive the GRAT term; (d)  Charitable Trusts – (1) remainder trusts, (2) lead trusts; (e) Supplemental Needs Trust – preserve governmental benefits.

Link to Part II

Domicile – Where Do You Live For Estate Tax Purposes?

By Jennifer Castranova, Esq.

As more states look for revenue, the issue of domicile becomes important because it determines the state where you will pay estate taxes.  Generally, domicile is acquired when two things occur at the same time: (1) an actual physical presence in a particular place and (2) an intention to make that place a permanent home.  Lyon v. Glaser, 66 N.J. 259, 265 (1972.) In Lyons, the decedent died at age 85.  She had lived in New Jersey for most of her life, but had spent the last two years living in Baltimore with her son.  She did not sell her New Jersey home, which remained furnished.  She would visit the New Jersey home for one month each year.  The Court held that because all of the circumstances indicated that the decedent had no intention to return to New Jersey permanently, she had changed her domicile to Maryland for purposes of the estate tax.

In regards to establishing domicile, the New Jersey Supreme Court has commented:

“A very short period of residence in a given place may be sufficient to show domicile, but mere residence, regardless of its length, is not sufficient.  It has been said that concurrence, even for a moment, of physical presence at a dwelling place with the intention of making it a permanent abode, effects a change of domicile.  And once established, the domicile continues until a new one is found to have been acquired through the same tests.”

Id. (citations omitted.)

It is also well accepted that no person is without a domicile. Therefore, in the eyes of the law, a presumption exists that an individual continues to be domiciled in their most recent state until a new domicile is acquired.  Id. at 278 citing 25 Am. Jur. 2d. Domicile, §16, p.13 (1966.)

There are numerous ways to manifest intent to establish domicile:

  • Switch your “address of record” for everything possible to the new state, including but not limited to voter registration, driver’s license, social security, Medicare, financial institutions (bank, brokerage and other financial accounts), credit cards, all insurance coverages, magazine subscriptions, memberships (social, religious, charitable), and federal tax returns.  Use the new address on every document you fill out.
  • Sell the residence in the former state of domicile.  Even if the home is only on the market, it evidences an intention not to return to the former state.
  • Acquire a residence in the new state.  Move your furniture and personal things there.  Having your personal belongings in the domicile state evidences your intent to remain in that state.
  • Spend significant time in the new state – more than the former state or any other state.  Be aware of any requirements that you be in the new state for a certain number of days.
  • Become active in charitable and social activities in the new state.
  • Establish relationships with medical professionals in the new state.
  • Update all your estate planning documents to recite your new domicile and conform to the new state’s formalities.

Remember, the test for domicile depends on the specific facts and circumstances in any given case.  The above list provides indices of domicile – it is not a checklist.  If you are considering changing domicile you should consult with your attorney to ensure that you have done all that is necessary to effectuate such a change.

T&E Potpourri: A Collection of Current Trust & Estate Developments of Interest

By Joseph L. Goldman, Esq.

The Pending New York State Budget Bill May Require Taxpayer Action By April 1, 2014

The budget bill recently proposed by Governor Cuomo contains significant changes to New York’s gift, estate, and generation skipping transfer taxes as well as the taxation of income from certain trusts.

New York currently does not impose a gift tax.  Although the budget bill does not propose a gift tax, it does require taxable gifts made on or after April 1, 2014, to be added back to a decedent’s estate for estate tax purposes if the decedent was a New York resident at the time such taxable gift was made.  Consequently, a New York resident who is contemplating making a taxable gift in 2014, should consider making the gift prior to April 1.  This can be especially appealing to New York taxpayers who have not yet used their entire federal exclusion amount.

IRS Revenue Procedure 2014-18 Provides Taxpayers With Second Chance At “Portability” 

Since “portability” of the estate tax exemption became available to taxpayers in 2011, the personal representative of the first dying spouse’s estate needed to file a federal estate tax return (Form 706) after the death of the first dying spouse in order to make the portability election for the surviving spouse.  This Form 706 needed to be filed within nine (9) months following the date of death of the first dying spouse, unless the personal representative filed for and was granted an automatic six (6) month extension.

Apparently, a great number of personal representatives and surviving spouses were not aware of this deadline or otherwise did not file the Form 706 in order to take advantage of any unused estate tax exemption that remained at the death of the first dying spouse.  Revenue Procedure 2014-18 provides relief for taxpayers who neglected to timely file a Form 706 for purposes of making a portability election.

The Rev. Proc. is based on the recent Supreme Court case, United States v. Windsor, and the IRS interpretation of the tax law as a result thereof, (Revenue Ruling 2013-17).  Nevertheless, the benefits provided by the Rev. Proc. Are available to same sex surviving spouses.

New York Court of Appeals Rules That Mere Ownership of Premises in New York Is Not Conclusive of “Permanent Place of Abode”

An individual is a resident of New York State (or City) if the person is “domiciled” in the State (or City) (the “Domicile Test”), or if the individual both maintains a “permanent place of abode” and spends all or part of more than 183 days in the State (or City) (the “Statutory Residency Test”).  New York regulations define a permanent place of abode as a “dwelling place of a permanent nature maintained by the taxpayer.”

On February 18, 2014, the Court of Appeals of the State of New York, in Matter of Gaied v. New York State Tax Appeals Tribunal (“Gaied”), criticized the Tax Tribunal’s determination that a man who owned a home used by his parents in Staten Island maintained a “permanent place of abode” in New York City and was subject to New York State income tax on his worldwide income.  In earlier proceedings, the Tax Tribunal, which was affirmed by a divided Appellate Division, had held that it was improper to look into the “taxpayer’s subjective use of the premises,” finding that mere ownership was sufficient to conclude that the taxpayer maintained a “permanent place of abode.”

Gaied focused on the Statutory Residency Test and in particular the definition of “permanent place of abode.”  Mr. Gaied did not contest that he had spent more than 183 days in New York City.

Tax Court Upholds Use of a “Formula Clause” When Making Transfers of Interests in Closely Held Business to Family Members

Because of the uncertainty involved in valuing a closely held company, a tax professional said to structure gifts of interests in a closely held business as gifts of a set dollar amount that would be converted into interests in the business after a valuation of the business was done.  If the IRS determined the business was worth more, each donee’s stake would be reduced accordingly and no extra gift tax would be due.  The IRS balked at the “formula clause” because the time it spent auditing the gifts was wasted.  The Tax Court gave the OK to the “formula clause”.  Although IRS will keep fighting this issue, tax advisers can rely on the Court’s decision as authority to avoid any penalties.

The decision is a gift tax break for owners of closely held firms.