Throughout her life, the decedent made numerous transfers among her five children and kept a personal record of advancements and repayments to each child. On the advice of tax counsel the decedent treated the advancements as loans and accounted for loan “forgiveness” each year for each child on the basis of the annual gift tax exemption.
From the year 1985 through 2007, the decedent transferred $1,063,333 to or for the benefit of her son Peter. Peter did not make any repayments to the decedent after 1988. In 1989, the decedent executed a revocable trust, where she specifically excluded Peter from any distribution of her estate upon her death.
In 1996, the decedent executed an amendment to her revocable trust that included provisions for Peter and explicitly instructed the trustees to account for “loans” made to Peter during the decedent’s lifetime when calculating the share of assets Peter would receive upon the decedent’s death. The decedent executed a contemporaneous document entitled “Acknowledgement and Agreement Regarding Loans”, in which Peter acknowledged that he received loans from the decedent and that the amount of the loans, including any accrued interest, would be taken into account for purposes of calculating his share of trust assets.
The decedent’s estate filed an estate tax return reporting the value of a Promissory Note and receivable due from Peter Bolles as zero and reporting no prior taxable gifts.
Upon audit of the decedent’s estate tax return, the Commissioner determined that the fair market value of the Promissory Note and receivable due from Peter was $1,063,333, and this amount was includable in the decedent’s estate under IRC Section 2033. Alternatively, the Commissioner determined that if the fair market value of the Promissory Note and receivable was zero, as it had been reported on the estate tax return, the decedent had made $1,063,333 of taxable gifts to Peter during her lifetime, and that figure should be used in computing the estate tax liability under IRC Section 2001(b).
The Tax Court examined the traditional factors set forth in Miller v. Commissioner (Tax Court Memo. 1996-3, aff’d, 113 F.3d 1241 (9th Cir. 1997)) in determining whether the transfers from the decedent during her lifetime were loans or gifts. The factors to be considered in making this determination are as follows:
- The existence of a promissory note or other evidence of indebtedness.
- If interest was charged.
- The existence of security or collateral.
- A fixed maturity date.
- Whether or not actual repayment or a demand for repayment was made.
- The transferee’s ability to repay.
- Records maintained by the transferor and/or transferee.
- The manner in which the transaction was reported for federal tax purposes.
The Court noted that the decedent recorded the advances to Peter as loans and accounted for interest, but there were no loan agreements, security on the loans, or attempts to demand repayment on the loans. The Court noted that the shift in 1989, when the decedent executed a trust agreement that blocked Peter’s receipt of assets at the time of her death, characterized a shift from “loans” to gifts.
The Court concluded the transfers to Peter from 1985 through 1989 were loans, but the transfers made from 1990 through 2007 were gifts. The decedent shifted from extending and accounting for the transfers as loans to accounting for the transfers as advances against Peter’s share of the estate, as evidenced by her excluding Peter from his share of the inheritance in her 1989 trust. As a result, the transfers from 1990 through 2007 were accounted as prior taxable gifts for purposes of calculating the estate tax due.
Advice for Planners:
When advising clients who wish to make transfers to family members, it is important to have the client clearly articulate his or her intentions – whether he or she wishes to make the transfer as a gift or whether he or she intends the transfer to be a loan with an expectation for repayment. Once the client has articulated his or her intentions, it is important for the planner to craft proper evidence of the transfer as a loan or a gift and ensure that the client’s estate plan does not contradict his or her intentions. The planner should review the factors of Miller v. Commissioner to ensure the evidence of a loan or gift would be accepted or supported by the Commissioner and the Tax Court.