Form 2848 (Power of Attorney) and gift taxes

[zzz]

On form 2848, I am a representative for my mother, for years 2021 – 2024, for tax forms 1040 and 8606.  But I now need to file a gift tax return 709. 

I assume I am not allowed to do this since I did not list that form on the 2848? I not, what other options do I have?

[MinhT1]

Form 2848 must list the description of the matter, the forms, and the tax years concerned.

You'll need to have your mother sign a new form 2848 for the tax forms and years needed.

[zzz]

She is no longer able to sign any forms, that's why I got the POA a few years ago.

[xmasbaby0]

GIFTS

Gifts given to family members, friends or other individuals are not deductible.   Gifts received are not taxable to the person who received the gift, and are not entered on a tax return.

If your gift exceeds the yearly limit ($17,000 per individual)  imposed by the gift tax rules, then you will need to complete a Form 709 gift tax form and send it to the IRS, although it is very unlikely that you will owe any tax.    In 2024 that yearly limit will increase to $18,000.

TurboTax does not support Form 709.  It is not an income tax form and would not be included as part of an income tax return.

Here is a link to the form:

https://www.irs.gov/pub/irs-pdf/f709.pdf

https://turbotax.intuit.com/tax-tips/estates/the-gift-tax-made-simple/L5tGWVC8N

[Vanessa A]

If you have a POA for her other than the form 2848,  you can still file as her Power of Attorney.  If you are e-filing, you will need to be sure to keep a copy of the POA with her return in case of audit or need for other correspondence with the IRS.

You can also mail a copy of her POA to the address listed here for form 2848 for your state. 

[zzz]

@Vanessa A

I do have a Durable POA from her attorney for practically "all matters", but I was told that was not valid for IRS forms/returns, and had to get the 2848 signed.   It would be great if I could use her Durable POA to file form 709.  

[DianeW777 · Accepted solution]

You can use the durable POA and if additional required IRS details are requested you can send the Form 2848.

If you enclose a copy of the durable POA, the IRS will let you know if they need anything else from you. Below are additional details about a durable POA.

Using a Durable Power of Attorney in Tax Matters - IRS

• Durable powers of attorney created for estate planning or other purposes give your designated agent or “attorney-in-fact” authority to make healthcare and financial decisions. The word “durable” means the power of attorney has staying power and will remain in effect if you later become incompetent. Needless to say, the durable power of attorney must be created before you become physically or mentally incompetent. 
• For a durable power of attorney to work for federal tax matters, however, specific information required under the Internal Revenue Code and regulations needs to be included. The requirements related to use of durable power of attorneys in federal tax matters are stated in Reg. 601.503(b), which can be found in Publication 216, click below. 
  • Publication 216, Conference and Practice Requirements 

If you do not meet those requirements then a Form 2848 may need to be used only if requested. 

@zzz 

[zzz]

OK, will give it a try.

I assume the durable POA is only valid during her lifetime, and afterwards I might need to file form 56  Fiduciary Relationship to be representative. 

@DianeW777

[PatriciaV]

Yes, the power of attorney is no longer valid after death. But if you are named as the executor of her estate, you will be given fiduciary responsibility over all financial matters.

@zzz