With the 2021 federal estate tax exemption amount at $11.7 million for individuals and $23.4 million for couples, many estate planning attorneys have shifted to other financial savings objectives to plan for their clients whose taxable estates fall below these thresholds. Because of this high exemption amount, the federal estate tax has impacted less than 1 percent of the US population, and thus the planning focus has shifted towards reducing income tax liability for clients. More specifically, the focus has been on how to strategically and effectively reduce a client’s capital gains tax liability. Although these strategies may eventually need to change given new proposals by the Biden administration, there are several important rules regarding capital gains taxes that currently apply to gifts made during a client’s life or at death that legal counsel must consider when advising clients. 

According to the Internal Revenue Service (IRS) Statistics of Income program, in a typical year, taxpayers file over two hundred thousand Forms 709, United States Gift (and Generation-Skipping Transfer) Tax Return, and pay hundreds of millions of dollars in gift taxes. Each calendar year, taxpayers gift billions of dollars to friends, family, charities, and trusts. Taxpayers file gift tax returns not only to report lifetime gifts to the IRS but also to allocate their generation-skipping transfer tax exemption to some or all of those transfers. In turn, the IRS uses the gift tax returns to impose gift and generation-skipping transfer taxes on taxpayers who have exhausted their lifetime exemptions and to keep track of a taxpayer’s remaining exemptions for taxpayers who may owe estate tax at the time of their death.