On 7/26/2013 the Office of Chief Counsel issued Chief Counsel Advice (CCA) 201330033, where the IRS has addressed:
ISSUES:
1. Does all or any portion of the Date 1 transfers of stock from the decedent to the grantor trusts in exchange for the notes with the self-cancelling feature constitute a gift?
2. How should the fair market value of the notes with the self-cancelling feature be determined?
3. If the Date 1 transfers do not constitute a gift, what are the estate tax consequences of the cancellation of the notes with the self-cancelling feature upon the decedent’s death?
FACTS:
Taxpayer transferred stock to a grantor trust in return for notes receivable. The notes had the following terms:
1. The term of the notes was based on the taxpayer's life expectancy as determined in the Sec. 7520 tables.
2. Each note required only payments of interest during the note term and the payment of principal to the note holder on the last day of the term.
3. Each of the notes contained a self-cancelling feature. This feature relieved the issuer of the obligation to make any further payments on the note if the taxpayer died before all of the payments under the note came due.
4. The total face value of one group of the notes was almost double the appraised value of the stock transferred for those notes. The higher value of the notes supposedly compensated the taxpayer for the risk that he would die before the end of the note term and thus not receive the full amount of interest or any of the principal.
5. The total face value of the rest of the notes equaled the appraised value of the stock transferred for those notes. To account for the possibility that the self-cancelling feature would take effect, these notes contained an above-market interest rate.
The taxpayer was in very poor health at the time of the transfer and died less than six months after the transfer. He received neither the interest payments nor the principal due on the notes.
CONCLUSIONS
1. 1. If the fair market value of the notes is less than the fair market value of the property transferred to the grantor trusts, the difference in value is a deemed gift.2. The notes should be valued based on a method that takes into account the willing-buyer willing seller standard of § 25.2512-8 and should also account for the decedent’s medical history on the date of the gift.
3. In this case, we believe there is no estate tax consequence associated with the cancellation of the notes with the self-cancelling feature upon the decedent’s death.
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Source:
CCA 201330033
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