Retroactive Gift Tax Filing to Decrease Capital Gains

Forum|Forum|5 years ago
November 12, 2020
1 reply
1 view

Hi,

My dad had a property he bought in 1992 for $120K. He transferred the deed to my brother in 2018 for $1. He did not file a form 709 gift tax return. Our family is about to sell the property for $320K in 2020

However, my mom has -$200K in capital loss for 2020. Can we transfer the deed from my brother to her name, so we can apply the -$200K capital loss to the $200K capital gain from the property sale?

I believe the IRS would want us to substantiate the $120K cost basis for the property being sold, so we would have to show the initial $120K deed transfer from my dad in 1992, and then would we have to retroactively file a form 709 for my dad to my brother, and another form 709 from my brother to my mom?

Just want to make sure I am not doing anything illegal or anything that would trigger an audit. I believe everything I am doing is legitimate, and there are no laws against transferring assets to another person to apply capital losses to capital gains but want to ask an expert before I transfer the deed.

Thank You!

Tax Advice

macuser_22

Alumni - Champ

There are MANY aspects to your post that require detailed explanation before it can be answered. I highly suggest that you seek a tax professional that deals with gifts and property transfer.

Failure to timely file a 709 can lead to stiff penalties (on the giver) that possibly can be abated with proper explanation. There are also questions about the title and if (transfer for $1) is actually a gift of the property (title) or a gift of the equity (money) - which it is can have big tax consequences.

You should take all documentation, titles, agreements, etc; to the professional for evaluation.

**Disclaimer: This post is for discussion purposes only and is NOT tax advice. The author takes no responsibility for the accuracy of any information in this post.**

hcjontaxAuthor

Level 2

Thanks - I researched the tax penalty and found if you don't owe a gift tax, there is no penalty for filing late gift tax return. Also, the lifetime gift exemption is $11.68mm, of which my family is far below $1mm.

The transfer should be a gift of property (title) as the lawyer I am meeting with tomorrow is transferring the deed/title to my mother. Nothing was mentioned about the equity.

Let me know if you disagree.

Anonymous_

Level 15

You will not find any reference to the 709 or 709 filing requirements in the tax code because the 709 (like other forms) are an IRS invention used to interrupt and apply the actual code as defined in various code section in chapter 12 that defines the tax, the penalties and the $15,000 exception. Other then the $15K exception, there is no other exception. The $11.4 million is not an exception to the tax, the tax is still there even though it can be credited to the $11.4 million lifetime exclusion (not exception). Even with the exclusion, the tax is still there (even though it does not have to be paid if applied to the exclusion) and can be computed on the gift which is what the penalty is based on. It is all in the code but in bits and pieces in various sections.

@macuser_22 wrote:

You will not find any reference to the 709 or 709 filing requirements in the tax code because the 709 (like other forms) are an IRS invention used to interrupt and apply the actual code.....

The steps for the computation of the rate of tax are basically set forth in the Regs.

See Treas. Reg. §25.2502-1

If you read the Reg to which I referred in an earlier post, it is clear that a return is required to be filed even if there is no tax due as a result of the unified credit under Section 2505 (that is specifically stated in the Reg). The current $15,000 annual exclusion is simply a threshold beyond which a return is required to be filed; it is not the threshold for which tax is due if exceeded (whether or not a return is filed).

You are making an attempt (in my opinion, a futile one) to twist the language of the Code and Regs into a result you believe should obtain.

Some law professors have an issue with the Code not providing for a penalty in this instance, as well:

See https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5899&context=faculty_scholarship

While taxable gifts of less than the applicable exclusion amount must be reported on a gift tax return, taxpayers who fail to file may nevertheless not face a penalty, Why? The code applies failure-to-file penalties only when tax is actually due.