South Bend 574.232.3538

If you made gifts last year you may be wondering if you need to file a gift tax return. The short answer is that there are many situations in which it’s necessary (or desirable) to file Form 709 — “United States Gift (and Generation-Skipping Transfer) Tax Return” — even if you’re not liable for any gift taxes. Let’s take a closer look at the reasons why.

What gifts are considered nontaxable?

The federal gift tax regime begins with the assumption that all transfers of property by gift (including below-market sales or loans) are taxable, and then sets forth several exceptions. Nontaxable transfers that need not be reported on Form 709 include:

  • Gifts of present interests (see below) within the annual exclusion amount ($16,000 per donee in 2022, up from $15,000 in 2021),
  • Direct payments of qualifying medical or educational expenses on behalf of an individual,
  • Gifts to political organizations and certain tax exempt organizations,
  • Deductible charitable gifts,
  • Gifts to one’s U.S.-citizen spouse, either outright or to a trust that meets certain requirements, and
  • Gifts to one’s noncitizen spouse within a special annual exclusion amount ($164,000 in 2022, up from $159,000 in 2021).

If all your gifts for the year fall into these categories, no gift tax return is required. But gifts that don’t meet these requirements are generally considered taxable — and must be reported on Form 709 — even if they’re shielded from tax by the lifetime exemption ($12.06 million in 2022, up from $11.7 million in 2021).

Tax traps to be aware of

If you make gifts during the year, consider whether you’re required to file Form 709. And watch out for these common traps:

Future interests. The $16,000 annual exclusion applies only to present interests, such as outright gifts. Gifts of future interests, such as transfers to a trust for a donee’s benefit, aren’t covered, so you’re required to report them on Form 709 even if they’re less than $16,000. Be aware, however, that it’s possible for gifts in trust to meet the present interest requirement by giving beneficiaries Crummey withdrawal powers (the right to withdraw a contribution for a limited time after it’s made).

Spousal gifts. As previously noted, gifts to a U.S.-citizen spouse need not be reported on
Form 709. However, if you make a gift to a trust for your spouse’s benefit, the trust must 1) provide that your spouse is entitled to all the trust’s income for life, payable at least annually, 2) give your spouse a general power of appointment over its assets and 3) not be subject to any other person’s power of appointment. Otherwise, the gift must be reported. And watch out for gifts to a noncitizen spouse: If they exceed the annual exclusion amount ($164,000 for 2022, up from $159,000 for 2021), they must be reported whether they’re outright gifts or gifts in trust.

Gift splitting. Spouses may elect to split a gift to a child or other donee, so that each spouse is deemed to have made one-half of the gift, even if one spouse wrote the check. This allows married couples to combine their annual exclusions and give up to $32,000 for 2022 (up from $30,000 for 2021) to each donee. To make the election, the donor spouse must file Form 709, and the other spouse must sign a consent or, in some cases, file a separate gift tax return. Keep in mind that, once you make this election, you and your spouse must split all gifts to third parties during the year.

529 plans. If you make gifts to a 529 college savings plan, you have the option of bunching five years’ worth of annual exclusions into the first year. So, for example, you can contribute $80,000 to the plan ($160,000 for married couples) and treat the gift as if it were made over the next five years for annual exclusion purposes. To take advantage of this benefit, you must file an election on Form 709.

Benefits to filing voluntarily

It may be a good idea to file a gift tax return, even if it’s not required. For example, if you make annual exclusion gifts of difficult-to-value assets, such as interests in a closely held business, a gift tax return that meets “adequate disclosure” requirements will trigger the three-year limitations period for audits.

If you’re unsure of whether you need to file a gift tax return, contact one of our estate planning advisors.

© 2022

Disclaimer: The THK Legal Blog is for informational purposes only and should not be relied upon as legal advice. In no case does the published material constitute an exhaustive legal study, and applicability to a particular situation depends upon an investigation of specific facts. You should consult an attorney for advice regarding your individual situation. All THK blogs are considered advertising material by the Indiana Bar Association.