PLR 201825003 – IRS Determines Conditional Transfer of a Remainder Interest a Completed Gift

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PLR 201825003

IRS Determines Conditional Transfer of a Remainder Interest a Completed Gift

Author: John H. Ramsey of Goulston & Storrs

In PLR 201825003, released June 22, 2018, the IRS considered whether the transfer of a remainder interest in a collection of artwork to two foreign museums was a completed gift for gift tax purposes. In this case, a favorable ruling would have been that the transfer did not constitute a completed gift.

Upon the death of the taxpayer’s spouse, the taxpayer transferred (i) legal title, (ii) naked ownership and a (iii) remainder interest in an art collection to the museums. The taxpayer retained a life interest in the artwork, but retained no right to transfer title to the collection.  The transfer was dependent on receiving a favorable ruling from the IRS and several conditions subsequent, each of which was not within the taxpayer’s control.

Nevertheless, the IRS concluded that the transfer of the remainder interest was a completed gift (see Section 2501 of the Internal Revenue Code, Regs Section 25.2511-2(b) – requiring no dominion and control of property nor any retained interest by the taxpayer; taxpayer has no power to change the disposition).  In this case, the IRS concluded that a completed gift would be made because the taxpayer did not retain sufficient rights to change the disposition of the property.

Importantly, though this topic was not discussed in the letter ruling, the transfer described would not qualify for a charitable income tax deduction, as contributions to foreign charities generally do not qualify for the income tax deduction and a gift of a future interest in tangible personal property is considered made only when all intervening interests have expired under Section 170(a)(3) of the Code. In addition, the gift would not qualify for the gift tax charitable deduction, as the taxpayer retained an interest in the transferred property and the gift was not structured as a qualifying charitable remainder trust or guaranteed annuity, as described in Section 2522(c)(2) of the Code.  Therefore, despite making a completed gift for gift tax purposes, the taxpayer would be left with no offsetting deduction.

The full PLR can be found at: https://www.irs.gov/pub/irs-wd/201825003.pdf.