Overview of the Federal Gift Tax

The Gift Tax is a federal tax that is imposed on any transfer made during the life of the transferor that is made without consideration. “Consideration” in this context means something of value in return for the transfer. In some cases, the Gift Tax is applied to a portion of a transfer that is given in exchange for consideration that is below the value of the transfer. For example, if your parents decide to give you $30,000 for mowing the lawn, and mowing the lawn has a fair market value of $50, the remaining $29,900 may be subject to the tax.

However there are exemptions that apply to the federal Gift Tax law as well.

The Lifetime Gift Exemption

If you “gift” over the personal exemption amount allowed per year, the excess amount will be applied to your Lifetime Gift Tax Exemption. The 2017 Tax Cuts and Jobs Act doubled the exemption to $11.2 million for an individual and $22.4 million for a married couple (adjusted for inflation). (However, the increase is applicable for 2018 and expires December 31, 2025 at which time the amounts revert back to the 2017 levels -- $5.49 million for individuals and $10.98 million for married couples). This means that even if you gift over $15,000 a year singly, or $30,000 jointly with your spouse, and you have not exhausted your lifetime exemption amount, you will just reduce your lifetime gift exemption by the amount that exceeds the annual exclusion (see below). If you exceed the limit, you could end up owing tax of up to 40%.

Annual Gift Tax Exemption

Annual gifts of up to $15,000 in a single year can be made to one or more individuals as you like or in a lump sum to one individual, without counting against the $11.2 million lifetime gift tax exemption. Spouses can combine their exemption when gifting their property. In the above example, this would mean that the remaining gift of $29,950 would fall within their combined exemption of $30,000, and no tax would be required to be paid on the gift. Gifts in excess of the annual exclusion do count against the lifetime exemption.

Filing a Gift Tax Form with the IRS

Anytime you make a gift over the amount of your annual personal gift exemption, you need to file a form 709 with the IRS. This does not mean that you will necessarily have to pay a tax on this excess amount, however, the IRS will keep the 709 on its records and apply any excess gift amount to your Lifetime Gift Exemption. Further, filing a 709 form with the IRS will give them a maximum of three years to make an inquiry on any property you have gifted.

If you do not file a 709, the IRS can come back four or more years later and determine that the value of the gift exceeded the amount that you assessed it at. This may mean that you will be faced with an unexpected tax if this extra amount puts you over your Lifetime Gift Exemption limit. For example, let’s say that the Lifetime Gift Exemption is set at $1,000,000, at a 55% excess tax rate, and you already have racked up $600,000 on your Lifetime Gift Exemption amount. You then decide that your last gift will be a vacation house to your children, which you believe is valued at $413,000. You believe that after your personal pre-2013 yearly exemption of $13,000, the excess amount of $400,000 will fall neatly into your Lifetime Gift Exemption, and you and your children will be able to make the transfer tax-free. Now let us suppose that four years later, the IRS makes an inquiry on this gift. After the inquiry, the IRS decides that the house was worth $613,000 instead of $413,000. If you filed a form 709, the IRS will be precluded from taxing you on the excess $200,000 since more than three years have passed. However, if you failed to file a form 709 with the IRS, at a tax rate of 55%, you will be responsible for paying over $100,000 in taxes for this gift.

Gift Tax and Estate Planning

Giving gifts of property during your lifetime is a great way to make tax-free transfers to your heirs, as long as you do not exceed your Lifetime Gift Exemption. If you want to determine the best way to gift your property, or have other tax-related estate planning questions, you should contact a tax attorney or estate planning attorney in your area.