The American Institute of CPAs (AICPA) has written to the U.S. Department of the Treasury and the Internal Revenue Service (IRS) commenting on the proposed regulations (REG-106706-18) regarding the increased basic exclusion amount (BEA) for estate and gift taxes enacted in the Tax Cuts and Jobs Act (TCJA). The proposed regulations affect donors of gifts made after 2017 and estates of decedents dying after 2017.
The AICPA recommended that Treasury and the IRS “provide guidance clarifying that if the BEA is lower in future years (either because of the 2026 expiration of the provision in the TCJA or other Congressional action), a taxpayer is allowed a deceased spousal unused exclusion (DSUE) that is not lower than the DSUE on the filed tax return of the first spouse to die (and not a lower BEA when the second spouse dies).”
Without clarification, the AICPA stated, an individual could arguably interpret the language of Internal Revenue Code section 2010(c)(4) to “provide that the DSUE available to the second spouse’s estate is not a larger $10 million, but a smaller amount of $5 million, which is the BEA then in effect.”
“Treasury and IRS should confirm that the DSUE is $10 million,” the AICPA stated.
The TCJA amended the current law so that for decedents dying and gifts made after December 31, 2017 and before January 1, 2026, the BEA is increased by $5 million to $10 million as adjusted for inflation (increased BEA), the AICPA explained. On January 1, 2026, the BEA base will revert to $5 million. Thus, an individual or the individual’s estate may utilize the increased BEA to transfer an additional $5 million without paying a transfer tax during the eight-year period beginning on January 1, 2018, and ending on December 31, 2025 (increased BEA period), the AICPA wrote.