Over the past few decades, federal taxes have generally
trended lower.

That era may be coming to an end, especially for well-off
individuals.

The major factor to consider is that our country might
finally be forced to confront the issue of ongoing huge federal budget
deficits—which have been made that much bigger by costly federal COVID-19
relief measures.

Can you protect what you currently possess from a possible
oncoming federal estate and gift tax threat? Maybe.

Before suggesting a strategy to (hopefully) dodge the
threat, let’s first cover the necessary background information. Here
goes.

Today’s Federal Estate and
Gift Tax Picture

The Tax Cuts and Jobs Act (TCJA) drastically increased the
unified federal estate and gift tax exemption from $5.49 million for 2017 to
$11.58 million for 2020—with inflation adjustments scheduled for 2021-2025. If
you’re married, your spouse is entitled to a separate exemption in the same
amount.

If you make cumulative lifetime taxable gifts in
excess of the exemption amount, the excess is taxed at a flat 40 percent rate.
If you pass away with an estate valued at more than the exemption amount, the
excess is taxed at the same flat 40 percent rate.

Taxable gifts mean gifts made in one year to one individual
that exceed the annual federal gift tax exclusion. The exclusion for 2020 is
$15,000, and it will probably stay at that number for the next few years
(unless our duly-elected politicians reshuffle the deck).

If you make taxable gifts during your lifetime, you won’t actually
owe any federal gift tax until the cumulative amount of such gifts exceeds the
unified federal estate and gift tax exemption. Excess gifts reduce your unified
exemption dollar-for-dollar, but only a few very generous individuals ever
actually owe federal gift tax.

Snapshots of Earlier
Federal Estate and Gift Tax Regimes

Today’s federal estate and gift tax regime is far more
taxpayer friendly than the regimes that existed earlier in this century.

• For 2000, the federal estate
  tax exemption was $675,000, and the maximum tax rate was 55 percent.
• For 2005, the exemption was
  $1.5 million, and the maximum tax rate was 47 percent.
• For 2009, the exemption was
  $3.5 million, and the maximum tax rate was 45 percent.
• For 2010, but just for that
  one year, estate executors could opt for a zero federal estate tax bill in
  exchange for giving up tax-basis step-ups for certain assets inherited by
  beneficiaries of the deceased individual.
• For 2015, the unified federal
  estate and gift tax exemption was $5.43 million. The tax rate on
  cumulative lifetime gifts in excess of the exemption and estates valued in
  excess of the exemption was a flat 40 percent.
• For 2020, the unified federal estate and gift tax
  exemption is $11.58 million. The tax rate on cumulative lifetime gifts in
  excess of the exemption is a flat 40 percent. The tax rate on the estate
  of an individual who passes away this year with an estate valued in excess
  of the exemption is a flat 40 percent.

The Portable Exemption
Privilege

Since 2011, we’ve had so-called federal estate and gift tax exemption
portability for married couples. If one spouse dies without using his or
her exemption, the surviving spouse is allowed to inherit the deceased spouse’s
unused exemption.

Scheduled Federal Estate
and Gift Tax Regime for 2021-2025 and Sunset Provision Scheduled for 2026

For 2021-2025, today’s version of the Internal Revenue Code
stipulates that the unified federal estate and gift tax exemption (currently
$11.58 million) will be adjusted annually for inflation.

The flat tax rate on excess lifetime gifts and excess estate
values will remain at 40 percent.

So far, so good. But a so-called sunset provision stipulates
that the exemption for 2026 will revert back to the 2017 amount of $5.49
million, with a cumulative inflation adjustment for 2018-2025. About $6.5
million is a good guess for the 2026 exemption amount if the sunset provision
takes effect for that year.

The flat tax rate on cumulative lifetime gifts in excess of
that number and estate values in excess of that number would remain at 40
percent.

The Looming Federal Estate
and Gift Tax Threat

There’s no guarantee that today’s super-favorable federal
estate and gift tax regime will survive beyond this year.

What actually happens to the federal estate and gift tax
regime (if anything) will depend on events. The current regime might survive,
or it might be trashed and replaced with something not nearly so taxpayer friendly.
Possible outcomes could include:

• The existing taxpayer-friendly
  regime stays in place through at least 2024 (the next general election
  year).
• The portable exemption
  privilege is repealed, and the effective date of the aforementioned sunset
  provision is accelerated to January 1, 2021. The 2021 exemption would be
  about $6 million.
• Starting next year, we go back
  to the 2009 regime with its much-smaller $3.5 million exemption, 45
  percent maximum tax rate, and no portable exemption.
• Starting next year, we get
  something much worse. For instance, we could go all the way back to the
  2000 regime with its skimpy $675,000 exemption, confiscatory 55 percent
  maximum tax rate, and no portable exemption. Ugh!

What to Do?

Very good question. Here’s one idea. If you have an estate
in the large-to-very-large category, put yourself in position to make large-to-very-large
gifts before year-end to reduce the value of your taxable estate.

You can shelter the gifts from the federal gift tax with
this year’s unified federal estate and gift tax exemption. Remember, it’s that
hefty $11.58 million.

Considerations

1. Depending on the assets on your personal balance sheet,
it could be easy or hard to position yourself to make large-to-very-large gifts
before year-end. You may need to make some moves to get into position.

2. Depending on who would receive your large-to-very-large
gifts, you may need to take some extra steps, such as setting up trusts for
some or all of your intended gift recipients.

3. If you’re married, remember that both you and your spouse
are entitled to separate unified federal estate and gift tax exemptions.

4. If your spouse passed away after 2010, we hope the
executor of your spouse’s estate filed Form 706 (the federal estate tax return)
to elect to take advantage of the portable exemption privilege. If so, your
exemption is that much bigger. If not, consult a good estate planning pro to
see if the election can still be made. If so, it could make a big difference in
your favor.

5. If you make gifts to someone who is more than one
generation beneath you (like a grandchild or great-grandchild), the federal
generation-skipping transfer tax (GSTT) can become a factor. The GSTT is
sneaky. It can come into play with gifts to a trust that will eventually
benefit someone who is more than one generation beneath you. Talk to your estate planning pro about the GSTT, especially
if you’re considering making a gift to a trust.

If you or a loved one is giving this a good look and would
like my input, please call me on my direct line at 408-778-9651.