Among confusing legal concepts, the generation-skipping transfer (GST) tax is at the top of the list. Because of its complexity, many attorneys lump it in with concepts such as the rule against perpetuities—topics taught in law school that they never quite fully understood and wish to forget. However, for estate-planning attorneys, understanding the GST tax is vital to helping their clients effectively plan to avoid it if possible. As with any concept that causes confusion, breaking it down is the key to better understanding.
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.