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Tax Law (Questions About Taxes)/Basis in Property with Life Estate

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Marc wrote at 2013-03-21 19:26:24
The Correct Answer (March 2013):  The remainderman get a stepped up Basis



If you give away an asset and keep a life estate in that asset, the life estate acts like a "string" that pulls 100% of the value of the asset into your taxable estate.  From an estate tax perspective, this mean that (1) 100% of the value of the house is included in decedents taxable estate, and (2) the cost basis of the house is "stepped-up" to the value of the house on date of death (IRC 2036).  So, if Mom bought the house for $40,000 and it is now worth $440,000, Mom's estate includes the house valued at $440,000, and kids get the house with a $440,000 basis.  When they sell the house for $450,000 down the road, then they only have $10,000 of capital gain.  The $400,000 of appreciation that occurred during Mom's lifetime essentially disappears (you potentially pay estate tax instead).  



1. Under IRC section 1014(b)(9) - any property that is required to be included in the value of a decedent's gross estate for Estate Tax purposes shall receive a stepped-up

http://www.law.cornell.edu/uscode/text/26/1014

9) In the case of decedents dying after December 31, 1953, property acquired from the decedent by reason of death, form of ownership, or other conditions (including property acquired through the exercise or non-exercise of a power of appointment), if by reason thereof the property is required to be included in determining the value of the decedent’s gross estate under chapter 11 of subtitle B or under the Internal Revenue Code of 1939. In such case, if the property is acquired before the death of the decedent, the basis shall be the amount determined under subsection (a) reduced by the amount allowed to the Taxpayer as deductions in computing taxable income under this subtitle or prior Income Tax laws for exhaustion, wear and tear, obsolescence, amortization, and depletion on such property before the death of the decedent. Such basis shall be applicable to the property commencing on the death of the decedent.



2. According to IRC section 2036 - the full value of the property in the retained life estate - is subject of inclusion into decedent's gross estate.

http://www.law.cornell.edu/uscode/text/26/2036The value of the gross estate shall include the value of all property to the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise, under which he has retained for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death— (1) the possession or enjoyment of, or the right to the income from, the property, or (2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom.



3. Therefore under IRC section 1014(b)(9) you should have a full stepped-up basis for the life estate deed.

I hope that helps.  


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Neil Johnson (The Tax Dude®)

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CPA to answer Federal income tax related questions for individuals, small business owners, estates and trusts. I also specialize in divorce related tax and financial planning matters. I have extensive experience in nearly all areas of income taxation relating to businesses and individuals. I also regularly serve as a strategic consultant on a wide range of non-tax related business issues. In addition, I provide aggressive, experienced and skilled representation against IRS challenges at the audit and appeals. I have successfully represented clients against the IRS on issues regarding reasonable compensation, valuation discounts, time value of money, travel and entertainment expenses, innocent spouse relief and personal liability for unpaid business taxes. PLEASE...NO MORE QUESTIONS ABOUT PER DIEMS or LIFE ESTATES!!!! There are several Q&A items on these topics.

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