I Dig It, But Congress Shouldn't Let Me: Closing the IDGT Loophole
ACTEC Law Journal, Vo. 36, p. 641, 2010
27 Pages Posted: 11 Aug 2011
Date Written: April 11, 2011
By combining three tools that independently are beneficial to taxpayers, clever estate planners have devised a transaction - the installment sale of discounted assets to an intentionally defective grantor trust - that saves their ultra-wealthy clients millions of dollars in estate and gift taxes. This transaction, which is a foundational part of many estate plans, takes advantage of rules that Congress never intended to be used in this way. Because the Internal Revenue Service has conceded its inability to challenge the transaction based on current law, any solution lies with Congress. This Article proposes an amendment to § 2036 that would close the hole in the transfer tax base by eliminating taxpayers’ ability to form intentionally defective grantor trusts. Because this simple, targeted proposal leaves intact nearly all of current law, it could be adopted quickly as an interim solution in anticipation of fundamental tax reform.
Keywords: IDGT, DGT, grantor trust, tax reform, estate tax, gift tax, loophole, transter tax, 2036, intentionally defective grantor trust, installment sale, estate planning, revenue raiser, Congress, tax avoidance, GRAT, valuation discount, harmonization, Rothstein, Rev. Rul. 85-13, FLP
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