§2513 — Gift by husband or wife to third party
50 cases·12 followed·2 distinguished·1 criticized·1 overruled·34 cited—24% support
Statute Text — 26 U.S.C. §2513
A gift made by one spouse to any person other than his spouse shall, for the purposes of this chapter, be considered as made one-half by him and one-half by his spouse, but only if at the time of the gift each spouse is a citizen or resident of the United States. This paragraph shall not apply with respect to a gift by a spouse of an interest in property if he creates in his spouse a general power of appointment, as defined in section 2514(c), over such interest. For purposes of this section, an individual shall be considered as the spouse of another individual only if he is married to such individual at the time of the gift and does not remarry during the remainder of the calendar year.
Paragraph (1) shall apply only if both spouses have signified (under the regulations provided for in subsection (b)) their consent to the application of paragraph (1) in the case of all such gifts made during the calendar year by either while married to the other.
A consent under this section shall be signified in such manner as is provided under regulations prescribed by the Secretary.
Such consent may be so signified at any time after the close of the calendar year in which the gift was made, subject to the following limitations—
The consent may not be signified after the 15th day of April following the close of such year, unless before such 15th day no return has been filed for such year by either spouse, in which case the consent may not be signified after a return for such year is filed by either spouse.
The consent may not be signified after a notice of deficiency with respect to the tax for such year has been sent to either spouse in accordance with section 6212(a).
Revocation of a consent previously signified shall be made in such manner as in provided under regulations prescribed by the Secretary, but the right to revoke a consent previously signified with respect to a calendar year—
shall not exist after the 15th day of April following the close of such year if the consent was signified on or before such 15th day; and
shall not exist if the consent was not signified until after such 15th day.
If the consent required by subsection (a)(2) is signified with respect to a gift made in any calendar year, the liability with respect to the entire tax imposed by this chapter of each spouse for such year shall be joint and several.
Treasury Regulations
- Treas. Reg. §Treas. Reg. §25.2513-1 Gifts by husband or wife to third party considered as made one-half by each
- Treas. Reg. §Treas. Reg. §25.2513-1(a) A gift made by one spouse to a person other than his (or her) spouse may, for the purpose of the gift tax, be considered as made one-half by his spouse, but only if at the time of the gift each spouse was a citizen or resident of the United States.
- Treas. Reg. §Treas. Reg. §25.2513-1(b) The provisions of this section will apply to gifts made during a particular “calendar period” (as defined in § 25.
- Treas. Reg. §Treas. Reg. §25.2513-1(c) If a husband and wife consent to have the gifts made to third party donees considered as made one-half by each spouse, and only one spouse makes gifts during the “calendar period” (as defined in § 25.
- Treas. Reg. §Treas. Reg. §25.2513-1(d) §25.2513-1(d)
- Treas. Reg. §Treas. Reg. §25.2513-2 Manner and time of signifying consent
- Treas. Reg. §Treas. Reg. §25.2513-2(a) §25.2513-2(a)
- Treas. Reg. §Treas. Reg. §25.2513-2(b) §25.2513-2(b)
- Treas. Reg. §Treas. Reg. §25.2513-2(c) The executor or administrator of a deceased spouse, or the guardian or committee of a legally incompetent spouse, as the case may be, may signify the consent.
- Treas. Reg. §Treas. Reg. §25.2513-2(d) If the donor and spouse consent to the application of section 2513, the return or returns for the “calendar period” (as defined in § 25.
- Treas. Reg. §Treas. Reg. §25.2513-2(i) §25.2513-2(i)
- Treas. Reg. §Treas. Reg. §25.2513-3 Revocation of consent
- Treas. Reg. §Treas. Reg. §25.2513-3(a) §25.2513-3(a)
- Treas. Reg. §Treas. Reg. §25.2513-3(b) Except as provided in paragraph (b) of § 301.
- Treas. Reg. §Treas. Reg. §25.2513-4 Joint and several liability for tax
50 Citing Cases
Petitioners reported the 1995 gifts of Treeco units on timely filed gift tax returns and elected on those returns to treat the gifts as made one-half by each of the - 10 - petitioners pursuant to section 2513.
On those returns they elected to treat each gift made to their children (and grandchildren) as having been made one-half by each of them, pursuant to section 2513, or a value of $71,372.50 by each, before exemptions.
ickett drafted the 2017 Lone Peak report, him and one-half by his spouse,” as long as both spouses have properly signified their consents to that treatment. Here both petitioner and Ms. Bosco properly elected to treat each gift as a split gift under section 2513. That is, petitioner is deemed to have transferred 50% of the gift made by Ms. Bosco and vice versa. This results in petitioner’s having made four transactions with respect to his interests and Ms. Bosco’s interests. Unless otherwise ind
On the Forms 709, petitioners properly elected to treat the transfers of their stock as split gifts under section 2513.4 Each form included as an attachment an appraisal of the gifts by Dixon Hughes based on a weighted average of the subject shares (using an asset approach and an income approach).
ted an acceptance of the Treeco Operating Agreement. Petitioners reported the 1995 gifts of Treeco units on timely filed gift tax returns and elected on those returns to treat the gifts as made one-half by each of the - 10 - petitioners pursuant to section 2513. Petitioners also treated the gifts as qualifying for the annual exclusion of section 2053(b). Respondent did not issue notices of deficiency to petitioners for 1995. On January 18, 1996, Treeco purchased a third property in Flager County
donee executed an acceptance of the Treeco operating agreement. Petitioners reported the 1995 gifts of Treeco units on timely filed gift tax returns and elected on those returns to treat the gifts as made one-half by each of petitioners pursuant to section 2513. Petitioners also treated the gifts as qualifying for the annual exclusion of section 2053(b). Respondent did not issue notices of deficiency to petitioners for 1995. On January 18, 1996, Treeco purchased a third property in Flager Count
ildren. Mr. Winkler's return reports that these gifts had been made on December 23, 1989. Mr. and Mrs. Winkler each consented to split the gifts of the other, (i.e., to treat all of the gifts as having been made one-half by each of them) pursuant to section 2513. After excluding $10,000 of gifts to each donee pursuant to section 2503(b), Mr. and Mrs. Winkler each reported taxable gifts of $930.75. Mr. Winkler died on March 11, 1992. Mr. Winkler's will was filed with the Tazewell County Circuit C
ildren. Mr. Winkler's return reports that these gifts had been made on December 23, 1989. Mr. and Mrs. Winkler each consented to split the gifts of the other, (i.e., to treat all of the gifts as having been made one-half by each of them) pursuant to section 2513. After excluding $10,000 of gifts to each donee pursuant to section 2503(b), Mr. and Mrs. Winkler each reported taxable gifts of $930.75. Mr. Winkler died on March 11, 1992. Mr. Winkler's will was filed with the Tazewell County Circuit C
On their timely filed Federal gift tax returns for 1988, petitioners elected, pursuant to section 2513,1 to treat each gift as having been made one-half by Mr.
Petitioners elected to split their gifts pursuant to section 2513 for the taxable year 1990.
ift of the LLC interests that petitioner had made directly to the Dynasty Trust and (2) a $6,022,929 gift of the LLC interests that petitioner assertedly had made indirectly to the Dynasty Trust through Mrs. Smaldino. 6The gift-splitting election of sec. 2513 allows married couples to treat gifts to third parties as though made one-half by each spouse. 7Pursuant to sec. 6019(2) taxpayers are not required to file gift tax returns for transfers between spouses. -14- [*14] OPINION I. General Legal
We surmised that the drafters ofthe statutory rule included the qualifying phrase "paid * * * by the decedent or his estate" "to accommodate split gifts under section 2513." R Section 2513 allows a married couple to elect to treat a gift made by one spouse as having been made in equal shares by each spouse.5 In Estate of Sachs, we quoted the legislative history ofthe gross-up rule indicating that that rule would not apply to gift tax paid by a spouse on a gift made by a decedent within three yea
Turner & Có. to his children and grandchildren. The values of the gifts reported on the returns were derived from the valuation by Willis Investment Counsel dated May 18, 2004. On the Forms 709 the estate did not make gift-splitting elections under section 2513. One day before the first of the transfers, on December 30, 2002, Clyde Sr., Jewell, Clyde Jr., Betty, and Janna signed an amendment to the partnership greement. Betty and Janna insisted on the amendment because they were uncomfortable w
Under section 2513, petitioners elected to treat Mrs. Hess as the donor of one-half of the gift of stock that Mr. Hess had made.10 Petitioners filed Forms 709, U.S. Gift (and Generation-Skipping Transfer) Tax Return, for their taxable year 1995. The gift tax returns that petitioners filed reported the fair market value of the HII stock to be $120,000 per
n a tax-inclusive basis (rather than on the tax-exclusive basis that normally pertains to gifts), thereby ensuring that assets used to pay gift taxes on these gifts do not escape the 15 The estate does not argue that the gift-splitting provisions of sec. 2513 are per se unconstitutional. - 28 - transfer tax base. If, as the estate suggests, the gross-up rule results in a smaller increase to the gross estate of a married donor who used gift-splitting techniques than to the gross estate of a singl
ument. We believe it more likely that, pursuant to the terms of the antenuptial agreement, Melba signed these legal documents as a mere formality, without thereby 13 Petitioner does not contend that the conditions of the gift-splitting provisions of sec. 2513 have been met here. - 35 - acquiring any interest in either the Lake Catherine property or the promissory note. Accordingly, we sustain respondent’s determination on this issue. Other Taxable Gifts In the notice of deficiency, respondent de
4We include the estate in the collective term, petitioners, for ease of reference only. This reference does not suggest whether we regard the personal representatives’ residences, or the decedent’s domicile at death, to be controlling for appellate venue purposes under sec. 7482(b)(1). See Estate of Clack v. Commissioner, 106 T.C. 131 (1
4We include the estate in the collective term, petitioners, for ease of reference only. This reference does not suggest whether we regard the personal representatives’ residences, or the decedent’s domicile at death, to be controlling for appellate venue purposes under sec. 7482(b)(1). See Estate of Clack v. Commissioner, 106 T.C. 131 (1
2513.1 The only issue for decision is the fair market value, as of January 1, 1992, of 9,380 shares of Demco, Inc., nonvoting common stock, which Mr. Wall gave on that date to 20 trusts for the benefit of his children. Petitioners claimed on their gift tax returns that the fair market value of the stock was $221.75 per share. Respondent assert
2513.1 The only issue for decision is the fair market value, as of January 1, 1992, of 9,380 shares of Demco, Inc., nonvoting common stock, which Mr. Wall gave on that date to 20 trusts for the benefit of his children. Petitioners claimed on their gift tax returns that the fair market value of the stock was $221.75 per share. Respondent assert
After application of the $10,000 exclusion per donee (nine claimed by each donee), none of the donors paid any gift tax. The total value of transfers from each married couple to their nieces and nephews and the total value of property received by each niece and nephew are summarized as follows: Reported Value of Reported Value of Stock T
After application of the $10,000 exclusion per donee (nine claimed by each donee), none of the donors paid any gift tax. The total value of transfers from each married couple to their nieces and nephews and the total value of property received by each niece and nephew are summarized as follows: Reported Value of Reported Value of Stock T
After application of the $10,000 exclusion per donee (nine claimed by each donee), none of the donors paid any gift tax. The total value of transfers from each married couple to their nieces and nephews and the total value of property received by each niece and nephew are summarized as follows: Reported Value of Reported Value of Stock T
After application of the $10,000 exclusion per donee (nine claimed by each donee), none of the donors paid any gift tax. The total value of transfers from each married couple to their nieces and nephews and the total value of property received by each niece and nephew are summarized as follows: Reported Value of Reported Value of Stock T
After application of the $10,000 exclusion per donee (nine claimed by each donee), none of the donors paid any gift tax. The total value of transfers from each married couple to their nieces and nephews and the total value of property received by each niece and nephew are summarized as follows: Reported Value of Reported Value of Stock T
, over the counter, or listed in National Quotation Bureau price reports (the pink sheets). E. Petitioners' Gift Tax Returns and the Notices of Deficiency The Helmlys each agreed to treat each of their gifts as being made one-half by the other under section 2513. Mary Ann and Frank Barnes, Louise and Edwin Barnes, and Jean and John Barnes also elected to split their gifts under section 2513. AUS Consultants, Valuation Services Group (AUS),6 estimated that the fair market value of Home's common s
, over the counter, or listed in National Quotation Bureau price reports (the pink sheets). E. Petitioners' Gift Tax Returns and the Notices of Deficiency The Helmlys each agreed to treat each of their gifts as being made one-half by the other under section 2513. Mary Ann and Frank Barnes, Louise and Edwin Barnes, and Jean and John Barnes also elected to split their gifts under section 2513. AUS Consultants, Valuation Services Group (AUS),6 estimated that the fair market value of Home's common s
, over the counter, or listed in National Quotation Bureau price reports (the pink sheets). E. Petitioners' Gift Tax Returns and the Notices of Deficiency The Helmlys each agreed to treat each of their gifts as being made one-half by the other under section 2513. Mary Ann and Frank Barnes, Louise and Edwin Barnes, and Jean and John Barnes also elected to split their gifts under section 2513. AUS Consultants, Valuation Services Group (AUS),6 estimated that the fair market value of Home's common s
, over the counter, or listed in National Quotation Bureau price reports (the pink sheets). E. Petitioners' Gift Tax Returns and the Notices of Deficiency The Helmlys each agreed to treat each of their gifts as being made one-half by the other under section 2513. Mary Ann and Frank Barnes, Louise and Edwin Barnes, and Jean and John Barnes also elected to split their gifts under section 2513. AUS Consultants, Valuation Services Group (AUS),6 estimated that the fair market value of Home's common s
They used the annual per donee exclusions from gifts (section 2503), and the gift splitting provisions (section 2513) in each of those years, and the unified credit (section 2010) in 1983-86.
of Eatel’s stock. On April 12, 1991, Administratrix gave six members of her family a total of 10,667 shares of Eatel voting stock, which were her separate property.4 Decedent “split” these gifts with Administratrix for Federal gift tax purposes, see sec. 2513, and a 1991 Form 709, United States Gift (and Generation-Skipping Transfer) Tax Return, was filed on his behalf on or about January 14, 1992. Decedent’s Form 709 reported each share’s value at $34.84. This value was based on a valuation rep
James and Hilda chose to split the gift as permitted by section 2513 of the Internal Revenue Code, and Hilda filed a gift tax return that reported the September 24, 1990, transfer as a gift valued at $130,000 (i.e., $150,000 minus the $10,000 annual exclusions for both David and Billie Jean).
Form 709, lines 12 through 18, permit a taxpayer to elect to split gifts with his or her spouse as prescribed under section 2513; i.e., to have gifts made by the taxpayer and his spouse to third parties during the calendar year considered as made one- half by each.