Newsletters

Simplified Portability Election Relief Procedure Updated, Rev. Proc. 2022-32

The IRS has updated its simplified procedure for estates requesting an extension of time to make a portability election under Code Sec. 2010(c)(5)(A). The updated procedure replaces that provided in Rev. Proc. 2017-34. If the portability election is made, a decedent’s unused exclusion amount (the deceased spousal unused exclusion (DSUE) amount) is available to a surviving spouse to apply to transfers made during life or at death. The simplified method is to be used instead of the letter ruling process. No user fee is due for submissions filed in accordance with the revenue procedure.

A simplified method to obtain an extension of time was available to decedents dying after December 31, 2010, if the estate was only required to file an estate tax return for the purpose of electing portability. However, that method was only available on or before December 31, 2014. Since December 31, 2014, the IRS has issued numerous letter rulings under Reg. §301.9100-3 granting extensions of time to elect portability in situations in which the estate was not required to file a return under Code Sec. 6018(a). The number of ruling requests that were received after December 31, 2014, and the related burden imposed on the IRS, prompted the continued relief for estates that have no filing requirement under Code Sec. 6018(a). Rev. Proc. 2017-34 provided a simplified method to obtain an extension of time to elect portability that is available to the estates of decedents having no filing obligation under Code Sec. 6018(a) for a period the last day of which is the later of January 2, 2018, or the second anniversary of the decedent’s death. An estate seeking relief after the second anniversary of the decedent’s death could do so by requesting a letter ruling in accordance with Reg. §301.9100-3.

Despite this simplified procedure, there remained a significant number of estates seeking relief through letter ruling requests in which the decedent died within five years of the date of the request. The number of these requests has placed a continuing burden on the IRS. Therefore, the updated procedure extends the period within which the estate of a decedent may make the portability election under that simplified method to on or before the fifth anniversary of the decedent’s date of death.

Section 3 provides that the simplified procedure is only available if certain criteria are met. The taxpayer must be the executor of the estate of a decedent who: (1) was survived by a spouse; (2) died after December 31, 2010; and (3) was a U.S. citizen or resident at the time of death. In addition, the estate must not be required to file an estate tax return under Code Sec. 6018(a) and did not file an estate tax return within the time prescribed by Reg. §20.2010-2(a)(1) for filing a return required to elect portability. Finally, all requirements of section 4.01 of the revenue procedure must be met.

The revenue procedure does not apply to estates that filed an estate tax return within the time prescribed by Reg. §20.2010-2(a)(1) to elect portability. For taxpayers that do not qualify for relief because the requirements of section 4.01 are not met, the estate can request an extension of time to file the estate tax return to make the portability election by requesting a letter ruling.

Under Section 4.01, the requirements for relief are: (1) a person permitted to make the election on behalf of a decedent must file a complete and properly-prepared Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return, (as provided in Reg. §20.2010-2(a)(7)) on or before the fifth annual anniversary of the decedent’s date of death; and (2) “FILED PURSUANT TO REV. PROC. 2022-32 TO ELECT PORTABILITY UNDER §2010(c)(5)(A)” must be written at the top of the Form 706. If the requirements of sections 3.01 and 4.01 are met, the estate will be deemed to meet the requirements for relief under Reg. §301.9100-3 and relief will be granted to extend the time to elect portability. If relief is granted pursuant to the revenue procedure and it is later determined that the estate was required to file a federal estate tax return, based on the value of the gross estate, plus any adjusted taxable gifts, the extension of time granted to make the portability election is deemed null and void.

If a decedent’s estate is granted relief under this revenue procedure so that the estate tax return is considered timely for electing portability, the decedent’s deceased spousal unused exclusion amount that is available to the surviving spouse or the surviving spouse’s estate for application to the transfers made by the surviving spouse on or after the decedent’s date of death. If the increase in the surviving spouse’s applicable exclusion amount attributable to the addition of the decedent’s deceased spousal unused exclusion amount as of the date of the decedent’s death result in an overpayment of gift or estate tax by the surviving spouse or his or her estate, no claim for credit or refund may be made if the limitations period for filing a claim for credit or refund with respect to that transfer has expired. A surviving spouse will be deemed to have filed a protective claim for refund or credit of tax if such a claim is filed within the time prescribed in Code Sec. 6511(a) in anticipation of a Form 706 being filed to elect portability pursuant to the revenue procedure.

The revenue procedure is effective July 8, 2022. Through the fifth anniversary of a decedent’s date of death, the procedure described in section 4.01 of this revenue procedure is the exclusive procedure for obtaining an extension of time to make portability election if the decedent and the executor meet the requirements of section 3.01 of this revenue procedure. If a letter ruling request is pending on July 8, 2022, and the estate is within the scope of the revenue procedure, the file on the ruling request will be closed and the user fee will be refunded. The estate may obtain relief as outlined in the revenue procedure by complying with section 4.01. Rev. Proc. 2017-34, I.R.B. 2017-26, 1282, is superceded.

IRS Updates Premium Tax Credit Table, Required Contribution Percentage, Rev. Proc. 2022-34

The IRS has updated the applicable percentage table used to calculate an individual’s premium tax credit and required contribution percentage […]

Read More
IRS Updates Premium Tax Credit Table, Required Contribution Percentage, Rev. Proc. 2022-34

Reproduction/Substitute Information Returns Requirements Issued, Rev. Proc. 2022-30

The IRS has provided the specifications for the private printing of red-ink substitutes for the 2022 revisions of information returns, […]

Read More
Reproduction/Substitute Information Returns Requirements Issued, Rev. Proc. 2022-30

IRS Advises Tax Professionals on Signs of Identity Theft, IR-2022-144

The IRS and Security Summit partners have urged tax professionals to be vigilant and look out for the signs of […]

Read More
IRS Advises Tax Professionals on Signs of Identity Theft, IR-2022-144

IRS Issues Statement on CP-14 Notices

The IRS was aware that some payments made for 2021 tax returns were incorrectly applied to joint taxpayer accounts. These […]

Read More
IRS Issues Statement on CP-14 Notices

Educators Reminded About 2022 Educator Expense Deduction Rise, IR-2022-148

The IRS reminded educators that they will be able to deduct up to $300 of out-of-pocket classroom expenses when they […]

Read More
Educators Reminded About 2022 Educator Expense Deduction Rise, IR-2022-148

IRS Announces New Sign-In Process for Form 990-N Filers

The IRS has announced that beginning August 2022, smaller charities that are eligible and choose to file Form 990-N, Electronic […]

Read More
IRS Announces New Sign-In Process for Form 990-N Filers

IRS and Treasury Release Initial Information on Electric Vehicle Tax Credit Under Inflation Reduction Act

The Treasury Department and the IRS have published initial information on changes to the tax credit for electric vehicles strengthened […]

Read More
IRS and Treasury Release Initial Information on Electric Vehicle Tax Credit Under Inflation Reduction Act

FL - Taxpayer lacked standing to challenge department's former practice

The taxpayer did not have standing to contest a notice of proposed assessment that assessed Florida sales and use tax, […]

Read More
FL - Taxpayer lacked standing to challenge department's former practice

IRS Announces More Options for Taxpayers to Correct and Amend Returns Electronically, IR-2022-130

The IRS has announced that more forms can now be amended electronically. This includes filing corrections to the Form 1040-NR, […]

Read More
IRS Announces More Options for Taxpayers to Correct and Amend Returns Electronically, IR-2022-130

IRS Issues Directions to Employees for Video Meetings with Taxpayers

The IRS has issued directions for its taxpayer facing employees to hold video meetings with taxpayers and their representatives. Going […]

Read More
IRS Issues Directions to Employees for Video Meetings with Taxpayers