The IRS is busy playing detective! But are they building cases, clue by meticulous clue, like the supersleuths of television’s CSI? Or are they falling on their faces like the bumbling Inspector Clouseau?
Last month, a federal judge gave the IRS permission to serve a “John Doe” summons on the California Board of Equalization, demanding names of residents who transferred real estate to children or grandchildren for little or no consideration. The IRS sought the names as part of a nationwide effort to find taxpayers who transfer property to relatives without filing gift tax returns. (The IRS had already rounded up information from Connecticut, Florida, Hawaii, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Texas, Virginia, Washington state and Wisconsin — but California officials objected that state law prohibited them from ratting out residents without court approval.)
Most people don’t know much about gift tax, for the simple reason that most people won’t ever pay gift tax. Gift tax law lets you give up to $13,000 per year to as many people as you like. Once your gifts to any single person (other than your spouse) top $13,000 in a year, you’re required to file gift tax returns. Your cumulative lifetime gifts count against your estate tax “unified credit,” which is the amount you’re allowed to leave free of estate tax. And once your cumulative lifetime gifts top $5,012,000, you owe a 35% tax on the excess. If you’re gifting to a grandchild or some other person more than one generation removed, you might even owe an extra 35% “generation-skipping” tax.
How does that lead the IRS to combing state property records like a sleazy private investigator tracking down a cheating husband? Well, transferring property into an heir’s name is a common estate-planning move. Let’s say you own a beloved vacation home, or a stock portfolio, and you don’t want to see it burdened by probate. You can just add your child’s name to the deed or account as “joint tenant with right of survivorship,” and at your death, voila, the property automatically passes to your child. But there’s a catch — transferring property like that counts as a “complete gift.” If that property is worth $1,000,000, you’ve just made a $500,000 gift!
This particular IRS “project” is already yielding results. The IRS filed an affidavit in the California case stating that they had examined 658 taxpayers who transferred property to relatives — and concluded that 238 of them should have filed Form 709 to report the gift. Twenty of those 238 were assessed actual tax because the transfers pushed them over their lifetime exemption.
This isn’t the first time the IRS has used the “John Doe” summons to flush out members of suspect groups. Back in 2002, the IRS subpoenaed MasterCard and Visa to find taxpayers using debit cards tied to accounts in offshore tax havens. And in 2008, they used it to find taxpayers hiding Swiss bank accounts. The Internal Revenue Manual puts strict limits on this tool. But if today’s efforts succeed in finding lost revenue, we can probably expect to see more in the future.
There are a couple of lessons here. First, many financial moves — like transferring property into your kids’ names — have hidden tax consequences that are easy to miss. And second, the IRS has more ways than you realize to find those consequences. So don’t take chances, especially when they might land you on the wrong end of an IRS subpoena! You know how the utility company tells you to “call before you dig”? Well, call us before you dig, and we’ll help you avoid all sorts of nasty surprises!