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[Federal Register Volume 74, Number 173 (Wednesday, September 9, 2009)]
[Rules and Regulations]
[Pages 46347-46350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21458]

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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 301

[TD 9460]
RIN 1545-BD67

Declaratory Judgments--Gift Tax Determinations

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulations.

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SUMMARY: This document contains final regulations under section 7477 of 
the Internal Revenue Code (Code) regarding petitions filed with the 
United States Tax Court for declaratory judgments with respect to the 
valuation of gifts. Changes to the applicable law were made by section 
506(c)(1) of the Taxpayer Relief Act of 1997. These final regulations 
primarily affect individuals who are donors of gifts. The final 
regulations provide rules for determining whether a donor may petition 
the Tax Court for a determination regarding the value of a gift, 
including guidance regarding the definition of ``exhaustion of 
administrative remedies.''

DATES: Effective date: These regulations are effective September 9, 
2009.
    Applicability date: For the date of applicability, see Sec.  
301.7477-1(f).

FOR FURTHER INFORMATION CONTACT: Deborah S. Ryan or George Masnik (202) 
622-3090 (not a toll free number).

Background

    Section 7477, enacted in conjunction with other provisions as part 
of the Taxpayer Relief Act of 1997 (TRA) (Pub. L. 105-34, 111 Stat. 
855), provides a declaratory judgment procedure pursuant to which 
taxpayers may contest in the United States Tax Court an IRS 
determination regarding the value of a gift. Prior law did not provide 
a judicial remedy in situations where the proposed IRS adjustment would 
not result in a gift tax deficiency or a tax overpayment. The new 
procedure applies, for example, where an increase in gift tax 
determined under section 2502 is offset by the taxpayer's applicable 
credit amount under section 2505(a), so that no additional tax is 
assessed as a result of a valuation increase. Because there is no tax 
deficiency, in the absence of section 7477, the taxpayer would be 
unable to challenge the IRS determination, even though, upon the 
expiration of the statute of limitations, that determination would 
become binding for purposes of calculating the cumulative gift tax on 
all future gifts of that taxpayer, as well as the taxpayer's estate tax 
liability. See H.R. Conf. Rep. No. 105-220, at 407-408 (1997).
    On June 9, 2008, proposed regulations under section 7477 were 
published in the Federal Register (REG-143716-04, 73 FR 32503, 2008-25 
IRB 1170). The IRS received no written or oral comments responding to 
the notice of proposed rulemaking. No public hearing was requested or 
held.
    The final regulations include a few clarifications. In particular, 
under section 7477, in order to be eligible for the declaratory 
judgment procedure, the Tax Court must determine that the donor 
exhausted all administrative remedies. In general, the proposed 
regulations provide that the IRS will consider a donor to have 
exhausted all administrative remedies if an Appeals conference is 
requested timely and the donor (or an authorized representative) 
``participates fully'' in the Appeals process. The final regulations 
contain a separate subsection specifying that full participation 
requires timely submission of requested information and disclosure of 
all relevant information regarding the controversy. In addition, a 
provision has been added specifying that, if Appeals does not grant the 
donor's request for a conference, the donor will be treated as having 
exhausted all administrative remedies if, after filing a Tax Court 
petition for a declaratory judgment, the donor (or authorized 
representative) participates fully in the Appeals office consideration 
when offered by the IRS while the case is in docketed status.

Special Analyses

    It has been determined that this Treasury decision is not a 
significant regulatory action as defined in Executive Order 12866. 
Therefore, a regulatory assessment is not required. It also has been 
determined that section 553(b) of the Administrative Procedure Act (5 
U.S.C. chapter 5) does not apply to these regulations and, because 
these regulations do not impose on small entities a collection of 
information requirement, the Regulatory Flexibility Act (5 U.S.C. 
chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the 
notice of proposed rulemaking preceding this regulation was submitted 
to the Chief Counsel for Advocacy of the Small Business Administration 
for comment on its impact on small business.

Drafting Information

    The principal authors of these final regulations are Deborah Ryan 
and Juli Ro Kim, Office of the Associate Chief Counsel (Passthroughs 
and Special Industries), IRS. Other personnel from the IRS and the 
Treasury Department participated in their development.

List of Subjects in 26 CFR Part 301

    Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income 
taxes, Penalties, Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

0
Accordingly, 26 CFR part 301 is amended as follows:

PART 301--PROCEDURE AND ADMINISTRATION

0
Paragraph 1. The authority citation for part 301 continues to read in 
part as follows:

    Authority:  26 U.S.C. 7805 * * *

0
Par. 2. Section 301.7477-1 is revised to read as follows:

Sec.  301.7477-1  Declaratory judgments relating to the value of 
certain gifts for gift tax purposes.

    (a) In general. If the adjustment(s) proposed by the Internal 
Revenue Service (IRS) will not result in any deficiency in or refund of 
the donor's gift tax liability for the calendar year, and if the 
requirements contained in paragraph (d) of this section are satisfied, 
then the declaratory judgment procedure under section 7477 is available 
to the donor for determining the amount of one or more of the donor's 
gifts during that calendar year for Federal gift tax purposes.
    (b) Declaratory judgment procedure--(1) In general. If a donor does 
not resolve a dispute with the IRS concerning the value of a transfer 
for gift tax purposes at the Examination level, the donor will be sent 
a notice of preliminary determination of value (Letter 950-G or such 
other document as may be utilized by the IRS for this purpose from time 
to time, but referred to in this section as Letter 950-G), inviting the 
donor to file a formal

[[Page 46348]]

protest and to request consideration by the appropriate IRS Appeals 
office. See Sec. Sec.  601.105 and 601.106 of this chapter. 
Subsequently, the donor will be sent a notice of determination of value 
(Letter 3569, or such other document as may be utilized from time to 
time by the IRS for this purpose in cases where no deficiency or refund 
would result, but referred to in this section as Letter 3569) if--
    (i) The donor requests Appeals consideration in writing within 30 
calendar days after the mailing date of the Letter 950-G, or by such 
later date as determined pursuant to IRS procedures, and the matter is 
not resolved by Appeals;
    (ii) The donor does not request Appeals consideration within the 
time provided in paragraph (b)(1)(i) of this section; or
    (iii) The IRS does not issue a Letter 950-G in circumstances 
described in paragraph (d)(4)(iv) of this section.
    (2) Notice of determination of value. The Letter 3569 will notify 
the donor of the adjustment(s) proposed by the IRS, and will advise the 
donor that the donor may contest the determination made by the IRS by 
filing a petition with the Tax Court before the 91st day after the date 
on which the Letter 3569 was mailed to the donor by the IRS.
    (3) Tax Court petition. If the donor does not file a timely 
petition with the Tax Court, the IRS determination as set forth in the 
Letter 3569 will be considered the final determination of value, as 
defined in sections 2504(c) and 2001(f). If the donor files a timely 
petition with the Tax Court, the Tax Court will determine whether the 
donor has exhausted available administrative remedies. Under section 
7477, the Tax Court is not authorized to issue a declaratory judgment 
unless the Tax Court finds that the donor has exhausted all 
administrative remedies within the IRS. See paragraph (d)(4) of this 
section regarding the exhaustion of administrative remedies.
    (c) Adjustments subject to declaratory judgment procedure. The 
declaratory judgment procedures set forth in this section apply to 
adjustments involving all issues relating to the transfer, including 
without limitation valuation issues and legal issues involving the 
interpretation and application of the gift tax law.
    (d) Requirements for declaratory judgment procedure--(1) In 
general. The declaratory judgment procedure provided in this section is 
available to a donor with respect to a transfer only if all the 
requirements of paragraphs (d)(2) through (5) of this section with 
regard to that transfer are satisfied.
    (2) Reporting. The transfer is shown or disclosed on the return of 
tax imposed by chapter 12 for the calendar year during which the 
transfer was made or on a statement attached to such return. For 
purposes of this paragraph (d)(2), the term return of tax imposed by 
chapter 12 means the last gift tax return (Form 709, ``United States 
Gift (and Generation-skipping Transfer) Tax Return'' or such other form 
as may be utilized for this purpose from time to time by the IRS) for 
the calendar year filed on or before the due date of the return, 
including extensions granted if any, or, if a timely return is not 
filed, the first gift tax return for that calendar year filed after the 
due date. For purposes of satisfying this requirement, the transfer 
need not be reported in a manner that constitutes adequate disclosure 
within the meaning of Sec.  301.6501(c)-1(e) or (f) (and thus for 
which, under Sec. Sec.  20.2001-1(b) and 25.2504-2(b) of this chapter, 
the period during which the IRS may adjust the value of the gift will 
not expire). The issuance of a Letter 3569 with regard to a transfer 
disclosed on a return does not constitute a determination by the IRS 
that the transfer was adequately disclosed, or otherwise cause the 
period of limitations on assessment to commence to run with respect to 
that transfer. In addition, in the case of a transfer that is shown on 
the return, the IRS may in its discretion defer until a later time 
making a determination with regard to such transfer. If the IRS 
exercises its discretion to defer such determination in that case, the 
transfer will not be addressed in the Letter 3569 (if any) sent to the 
donor currently, and the donor is not yet eligible for a declaratory 
judgment with regard to that transfer under section 7477.
    (3) IRS determination and actual controversy. The IRS makes a 
determination regarding the gift tax treatment of the transfer that 
results in an actual controversy. The IRS makes a determination that 
results in an actual controversy with respect to a transfer by mailing 
a Letter 3569 to the donor, thereby notifying the donor of the 
adjustment(s) proposed by the IRS with regard to that transfer and of 
the donor's rights under section 7477.
    (4) Exhaustion of administrative remedies--(i) In general. The Tax 
Court determines whether the donor has exhausted all administrative 
remedies available within the IRS for resolving the controversy.
    (ii) Appeals office consideration. For purposes of this section, 
the IRS will consider a donor to have exhausted all administrative 
remedies if, prior to filing a petition in Tax Court (except as 
provided in paragraphs (d)(4)(iii) and (iv) of this section), the 
donor, or a qualified representative of the donor described in Sec.  
601.502 of this chapter, timely requests consideration by Appeals and 
participates fully (within the meaning of paragraph (d)(4)(vi) of this 
section) in the Appeals consideration process. A timely request for 
consideration by Appeals is a written request from the donor for 
Appeals consideration made within 30 days after the mailing date of the 
Letter 950-G, or by such later date for responding to the Letter 950-G 
as is agreed to between the donor and the IRS.
    (iii) Request for Appeals office consideration not granted. If the 
donor, or a qualified representative of the donor described in Sec.  
601.502 of this chapter, timely requests consideration by Appeals and 
Appeals does not grant that request, the IRS nevertheless will consider 
the donor to have exhausted all administrative remedies within the IRS 
for purposes of section 7477 upon the issuance of the Letter 3569, 
provided that the donor, or a qualified representative of the donor 
described in Sec.  601.502 of this chapter, after the filing of a 
petition in Tax Court for a declaratory judgment pursuant to section 
7477, participates fully (within the meaning of paragraph (d)(4)(vi) of 
this section) in the Appeals office consideration if offered by the IRS 
while the case is in docketed status.
    (iv) No Letter 950-G issued. If the IRS does not issue a Letter 
950-G to the donor prior to the issuance of Letter 3569, the IRS 
nevertheless will consider the donor to have exhausted all 
administrative remedies within the IRS for purposes of section 7477 
upon the issuance of the Letter 3569, provided that--
    (A) The IRS decision not to issue the Letter 950-G was not due to 
actions or inactions of the donor (such as a failure to supply 
requested information or a current mailing address to the Area Director 
having jurisdiction over the tax matter); and
    (B) The donor, or a qualified representative of the donor described 
in Sec.  601.502 of this chapter, after the filing of a petition in Tax 
Court for a declaratory judgment pursuant to section 7477, participates 
fully (within the meaning of paragraph (d)(4)(vi) of this section) in 
the Appeals office consideration if offered by the IRS while the case 
is in docketed status.
    (v) Failure to agree to extension of time for assessment. For 
purposes of section 7477, the donor's refusal to agree to an extension 
of the time under section 6501 within which gift tax with

[[Page 46349]]

respect to the transfer at issue (if any) may be assessed will not be 
considered by the IRS to constitute a failure by the donor to exhaust 
all administrative remedies available to the donor within the IRS.
    (vi) Participation in Appeals consideration process. For purposes 
of this section, the donor or a qualified representative of the donor 
described in Sec.  601.502 of this chapter participates fully in the 
Appeals consideration process if the donor or the qualified 
representative timely submits all information related to the transfer 
that is requested by the IRS in connection with the Appeals 
consideration and discloses to the Appeals office all relevant 
information regarding the controversy to the extent such information 
and its relevance is known or should be known by the donor or the 
qualified representative during the time the issue is under 
consideration by Appeals.
    (5) Timely petition in Tax Court. The donor files a pleading with 
the Tax Court requesting a declaratory judgment under section 7477. 
This pleading must be filed with the Tax Court before the 91st day 
after the date of mailing of the Letter 3569 by the IRS to the donor. 
The pleading must be in the form of a petition subject to Tax Court 
Rule 211(d).
    (e) Examples. The following examples illustrate the provisions of 
this section, and assume that in each case the Tax Court petition is 
filed on or after September 9, 2009.
    These examples, however, do not address any other situations that 
might affect the Tax Court's jurisdiction over the proceeding:

    Example 1. Exhaustion of administrative remedies. The donor (D) 
timely files a Form 709, ``United States Gift (and Generation-
Skipping Transfer) Tax Return,'' on which D reports D's completed 
gift of closely held stock. After conducting an examination, the IRS 
concludes that the value of the stock on the date of the gift is 
greater than the value reported on the return. Because the amount of 
D's available applicable credit amount under section 2505 is 
sufficient to cover any resulting tax liability, no gift tax 
deficiency will result from the adjustment. D is unable to resolve 
the matter with the IRS examiner. The IRS sends a Letter 950-G to D 
informing D of the proposed adjustment. D, within 30 calendar days 
after the mailing date of the letter, submits a written request for 
Appeals consideration. During the Appeals process, D provides to the 
Appeals office all additional information (if any) requested by 
Appeals relevant to the determination of the value of the stock in a 
timely fashion. The Appeals office and D are unable to reach an 
agreement regarding the value of the stock as of the date of the 
gift. The Appeals office sends D a notice of determination of value 
(Letter 3569). For purposes of section 7477, the IRS will consider D 
to have exhausted all available administrative remedies within the 
IRS, and thus will not contest the allegation in D's petition that D 
has exhausted all such administrative remedies.
    Example 2. Exhaustion of administrative remedies. Assume the 
same facts as in Example 1, except that D does not timely request 
consideration by Appeals after receiving the Letter 950-G. A Letter 
3569 is mailed to D more than 30 days after the mailing of the 
Letter 950-G and prior to the expiration of the period of 
limitations for assessment of gift tax. D timely files a petition in 
Tax Court pursuant to section 7477. After the case is docketed, D 
requests Appeals consideration. In this situation, because D did not 
respond timely to the Letter 950-G with a written request for 
Appeals consideration, the IRS will not consider D to have exhausted 
all administrative remedies available within the IRS for purposes of 
section 7477 prior to filing the petition in Tax Court, and thus may 
contest any allegation in D's petition that D has exhausted all such 
administrative remedies.
    Example 3. Exhaustion of administrative remedies. D timely files 
a Form 709 on which D reports D's completed gifts of interests in a 
family limited partnership. After conducting an examination, the IRS 
proposes to adjust the value of the gifts as reported on the return. 
No gift tax deficiency will result from the adjustments, however, 
because D has a sufficient amount of available applicable credit 
amount under section 2505. D declines to consent to extend the time 
for the assessment of gift tax with respect to the gifts at issue. 
Because of the pending expiration of the period of limitation on 
assessment within which a gift tax, if any, could be assessed, the 
IRS determines that there is not adequate time for Appeals 
consideration. Accordingly, the IRS mails to D a Letter 3569, even 
though a Letter 950-G had not first been issued to D. D timely files 
a petition in Tax Court pursuant to section 7477. After the case is 
docketed in Tax Court, D is offered the opportunity for Appeals to 
consider any dispute regarding the determination and participates 
fully in the Appeals consideration process. However, the Appeals 
office and D are unable to resolve the issue. The IRS will consider 
D to have exhausted all administrative remedies available within the 
IRS, and thus will not assert that D has not exhausted all such 
administrative remedies.
    Example 4. Legal issue. D transfers nonvested stock options to a 
trust for the benefit of D's child. D timely files a Form 709 
reporting the transfer as a completed gift for Federal gift tax 
purposes and complies with the adequate disclosure requirements for 
purposes of triggering the commencement of the applicable statute of 
limitations. Pursuant to Sec.  301.6501(c)-1(f)(5), adequate 
disclosure of a transfer that is reported as a completed gift on the 
Form 709 will commence the running of the period of limitations for 
assessment of gift tax on D, even if the transfer is ultimately 
determined to be an incomplete gift for purposes of Sec.  25.2511-2 
of this chapter. After conducting an examination, the IRS concurs 
with the reported valuation of the stock options, but concludes that 
the reported transfer is not a completed gift for Federal gift tax 
purposes. D is unable to resolve the matter with the IRS examiner. 
The IRS sends a Letter 950-G to D, who timely mails a written 
request for Appeals consideration. Assuming that the IRS mails to D 
a Letter 3569 with regard to this transfer, and that D complies with 
the administrative procedures set forth in this section, including 
the exhaustion of all administrative remedies available within the 
IRS, then D may file a petition for declaratory judgment with the 
Tax Court pursuant to section 7477.
    Example 5. Transfers in controversy. On April 16, 2007, D timely 
files a Form 709 on which D reports gifts made in 2006 of fractional 
interests in certain real property and of interests in a family 
limited partnership (FLP). However, although the gifts are disclosed 
on the return, the return does not contain information sufficient to 
constitute adequate disclosure under Sec.  301.6501(c)-1(e) or (f) 
for purposes of the application of the statute of limitations on 
assessment of gift tax with respect to the reported gifts. The IRS 
conducts an examination and concludes that the value of both the 
interests in the real property and the FLP interests on the date(s) 
of the transfers are greater than the values reported on the return. 
No gift tax deficiency will result from the adjustments because D 
has a sufficient amount of remaining applicable credit amount under 
section 2505. However, D does not agree with the adjustments. The 
IRS sends a Letter 950-G to D informing D of the proposed 
adjustments in the value of the reported gifts. D, within 30 
calendar days after the mailing date of the letter, submits a 
written request for Appeals consideration. The Appeals office and D 
are unable to reach an agreement regarding the value of any of the 
gifts. In the exercise of its discretion, the IRS decides to resolve 
currently only the value of the real property interests, and to 
defer the resolution of the value of the FLP interests. On May 28, 
2009, the Appeals office sends D a Letter 3569 addressing only the 
value of the gifts of interests in the real property. Because none 
of the gifts reported on the return filed on April 16, 2007 were 
adequately disclosed for purposes of Sec.  301.6501(c)-1(e) or (f), 
the period of limitations during which the IRS may adjust the value 
of those gifts has not begun to run. Accordingly, the Letter 3569 is 
timely mailed. If D timely files a petition in Tax Court pursuant to 
section 7477 with regard to the value of the interests in the real 
property, then, assuming the other requirements of section 7477 are 
satisfied with regard to those interests, the Tax Court's 
declaratory judgment, once it becomes final, will determine the 
value of the gifts of the interests in the real property. Because 
the IRS has not yet put the gift tax value of the interests in the 
FLP into controversy, the procedure under section 7477 is not yet 
available with regard to those gifts.

    (f) Effective/applicability date. This section applies to civil 
proceedings described in section 7477 filed in the

[[Page 46350]]

United States Tax Court on or after September 9, 2009.

Linda E. Stiff,
Deputy Commissioner for Services and Enforcement.
    Approved: August 26, 2009.
Michael Mundaca,
Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. E9-21458 Filed 9-8-09; 8:45 am]
BILLING CODE 4830-01-P
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