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jgordosea, Enrolled Agent
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My non US father did a life estate in Ialy

Customer Question

My non US father did a life estate in Ialy where I am the remainder and he is the life tenant. I am a US resident. When he passes does the property step up in basis. It has been argued before that it does because of IRC 1014 and 2036 but it has also been argued that it does not because of IRC 2031. Also he has another property also in a foreign counrty that he did no life estate and that I will inherit after his passing.Does that get stepped up ? The point is he is a non US resident and the property is not in the US he does not have any US estate.

Submitted: 1 year ago.
Category: Tax
Expert:  Anne replied 1 year ago.

Anne :

Hi

Anne :

Thank you for your quesstion

Anne :

I am researching it now

Anne :

It may take a few minutes

Customer:

OK

Anne :

I apologize for the time here........but there are many places I need to look at since, as even you pointed out, some of the information is contradictory to others

Anne :

I'm heading over to look at the US/Italy treaty now

Customer:

tell me about it........thank you I need a good answer

Customer:

BTW , my father and I are both German citizens only that I am also long term US resident.
the life estate property is in Italy the other property is in Germany

Anne :

Thank you for that additional information (I think.........lol)

Anne :

You will need to file the Form 3520 when you receive the property

Customer:

I was going to ask you that ...

Anne :

lol

Anne :

Do you have any other questions for me today?

Anne :

Do you understand everything I told you so far?

Customer:

I did not see anything on my screen ....where did you write ?

Anne :

I asked if you had any other questions for me today

Customer:

I did not get any answer

Anne :

Hold on....I'm going to change the format

Customer:

Still nothing...

Expert:  Anne replied 1 year ago.
Sometimes the chat rooms mis function, so I changed the format. You should be able to see everything now............please let me know
Customer: replied 1 year ago.


I got disconected from chatroom with no answer !!!!!

Customer: replied 1 year ago.


Do I get answer from you ????

Expert:  Anne replied 1 year ago.

ok...........Please hold on....I'll get you your answer, ok?

sometimes the chat rooms have some problems, which is why I changed the format.

Specifically what question are you looking for an answer to? I assume that you got my answers in the chat room up until the very end when I changed formats

Expert:  Anne replied 1 year ago.
Did you get ANY of my answer? Can you see it in this format? If not, I can repost it, since I do have it
Customer: replied 1 year ago.


No I did not see any of your answer regarding life estate and step up basis ect...

 

can you please repost it here

Expert:  Anne replied 1 year ago.
Ok;..;.....let me repost it here:

Oh my............I don't have it either...........how bizarre..............however, I do know where I got it, so I'll post it again in just a minute............I didn't notice that when I changed formats the answer was no longer there............I apologize for that
Customer: replied 1 year ago.

I got disconnected from the chat room when you did that, please post it here .. I am still waiting


 

Customer: replied 1 year ago.

 


Hello are you still there?


 


What is your conclusion do the properties get step up basis ?

Expert:  Anne replied 1 year ago.
Yes, I'm here

You get the stepped up basis based on the date of death. You do not pay US taxes unless or until you sell the property

I'm working on getting all of this in writing for you again.........but my computer is very slow today
Customer: replied 1 year ago.


Ok , I am waiting , thank you


 


 

Expert:  Anne replied 1 year ago.
I apologize for the time factor...........it is storming here a little............if its ok with you, I will get back with you in about an hour.........I know I posted the answer in the chat room, but I also admit its not there now..........and I have no idea why..........
Customer: replied 1 year ago.

Why can`t you just in simple words explain my question ?


 

Customer: replied 1 year ago.


First it is the format of the chat room ...than your computer is slow .....and it is storming ?????


 


I would really like a simple answer to the 2 scenarios I gave you.


 


Why can you not give me a straight answer ?

Expert:  Anne replied 1 year ago.
I sincerely XXXXX XXXXX got my computer to open the web site I had found your answer on. Here it is:

The sale of such property is usually considered the sale of a capital asset and may be subject to capital gains (or loss) treatment. However, IRC §1014 provides that the basis of property acquired from a decedent is its fair market value at the date of death, so there is usually little or no gain to account for if the sale occurs soon after the date of death. (Remember, the rules are different for determining the basis of property received as a lifetime gift).
Expert:  Anne replied 1 year ago.
Now for the 2nd part:

(and yes, its storming where I live..........and I live in the country.....so satellite dishes sometimes get slow with rain, wind, etc)

I'm working on the 2nd half.........give me another minute ok?
Customer: replied 1 year ago.

I am here ......

Customer: replied 1 year ago.

you wrote:


(Remember, the rules are different for determining the basis of property received as a lifetime gift).


 


How can I remember when you have not answered that yet ?

Expert:  Anne replied 1 year ago.

 

Property acquired from the decedent

For purposes of subsection (a), the following property shall be considered to have been acquired from or to have passed from the decedent: (1) Property acquired by bequest, devise, or inheritance, or by the decedent’s estate from the decedent; (2) Property transferred by the decedent during his lifetime in trust to pay the income for life to or on the order or direction of the decedent, with the right reserved to the decedent at all times before his death to revoke the trust;

I fully understand that my credibility dropped the minute I told you that my answer never posted in the chat room, and yet I insisted it was there.............

I know we've been having chat room problems............HOWEVER.........after thinking for it a minute............I'm more inclined to believe it was human error..........mine........

and because I was so sure that I had answered your question.........I closed all my links relating to your question............

I deeply apologize for the time and frustration this caused you..........it is important to me that I give you the correct answer in a timely fashion.........

The storming part is still true...........computer greatly slowed.........but that's not your problem either.......

I do believe that I have given you the correct answers.............I will keep those pages open for awhile so that if you have follow up question, they will still be available........


Customer: replied 1 year ago.


You still have not answered my question .


Does the life estate property upon death of the life tenant get a step up


in basis when the decendent is a NON-US person and the property is


not in the US ?

Customer: replied 1 year ago.


Anne ,

 

I had a very detailed to the point question.

You did not provide a qualified answer instead you made me wait

for long periods with all sorts of excuses.

 

Not good.

 

Expert:  Anne replied 1 year ago.
Since you are a Resident Alien, and your father is not a US citizen, Resident Alien, or green card holder, then you follow US law. This means that you get the stepped up basis even though your father was a life tenant.
Expert:  Anne replied 1 year ago.
I will "opt out" at this point, and that will put this question back on the open board so that you may work with another expert
Customer: replied 1 year ago.


Thank you for opting out

Expert:  jgordosea replied 1 year ago.

Greetings,

Another expert here.

Since it has already been answered that the remainderman of life estate does get basis step up I will only address the issue of inheritance from a nonresident alien.

 

Foreign real property that is inher­ited from a nonresident alien by a United States citizen or resident alien will receive a step-up in basis under sections 1014(a)(1) and 1014(b)(1) of the Code.

 

This is clearly stated (although in tax jargon) in Rev. Rul. 84-139

See http://www.taxalmanac.org/index.php/Rev._Rul._84-139

 

For an article explaining why the requirement of section 1014(b)(9) that property be includible in the value of a decedent’s gross estate does not apply (and section 2031 is not applicable) you can see the article at http://hodgen.com/why-nonresident-decedents-get-step-up-basis-at-death/

 

Please let me know if you need clarification. Thank you.

Customer: replied 1 year ago.


Thank you so much for your help I really appreciate it.

 

I still need help with clarification on the life estate step up

because I have also been told that there is no step up with life estate of a Non Us resident with Non Us property.

 

Here is what I was told:

 

I do not believe you will receive a stepped-up basis at death. A person receives stepped-up basis to date of death value for property acquired by “bequest, devise, or inheritance, or by the decedent's estate from the decedent” (IRC 1014(b)(1)). Here, you received the property by gift during his parents’ lifetime; it is not a bequest, devise, or inheritance.

 

A person can also receive a stepped-up basis to date of death value for property pursuant to IRC 1014(b)(9), which provides:

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 . . . .

 

If his parents were US citizens or residents, or if the property were in the US, the property would have be included in his parents’ estates under IRC 2036 at death because of their retained interest in the property. However, because the property is not subject to US estate tax, it is not “required to be included in determining the value of the decedent’s gross estate under chapter 11 of subtitle B.” So IRC 1014(b)(9) does not apply.

 

I’ve done some initial research in the treatises to confirm my result, and I have found little on point addressing this particular fact pattern. It is possible that there are IRS decisions that construe property received through a life estate deed (the US analogy of what Benjamin received in Italy) as having been received by bequest, devise, or inheritance, but I am not optimistic.

IRC 1014 does not apply and IRC 2036 does not apply

because of IRC 2103

 

Here is the exact situation again.

 

My father a Non Us resident / Non Us citizen makes a life estate deed

to his property where I his US resident son am the remainderman

and he retains "usufruct" / life estate

The property is outside the US.

 

I reported the remainder interest % of FMV at time of deed on form 3520.

 

What happens next when my now very old father passes away and I

should decide to sell the property some time in the future?

 

My plan is to file another 3520 at time of death reporting full FMV

of the property at that time of death and use that FMV as basis for future

capital gains assessment.

 

Is there anything wrong going forward like this ?

 

I need to know what I should .

 

What would you do in my situation.

 

 

Expert:  jgordosea replied 1 year ago.

Hello again,

 

You wrote:"Here is what I was told:

 

I do not believe you will receive a stepped-up basis at death. A person receives stepped-up basis to date of death value for property acquired by "bequest, devise, or inheritance, or by the decedent's estate from the decedent" (IRC 1014(b)(1)). Here, you received the property by gift during his parents' lifetime; it is not a bequest, devise, or inheritance.

 

A person can also receive a stepped-up basis to date of death value for property pursuant to IRC 1014(b)(9), which provides:

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 . . . .

 

If his parents were US citizens or residents, or if the property were in the US, the property would have be included in his parents' estates under IRC 2036 at death because of their retained interest in the property. However, because the property is not subject to US estate tax, it is not "required to be included in determining the value of the decedent's gross estate under chapter 11 of subtitle B." So IRC 1014(b)(9) does not apply"

 

 

In the article linked in my prior answer it says:

"Section 1.1014-2 (b)(2) of the Income Tax Regulations provides that section 1014(b)(9) property does not include property that is not includible in the value of a decedent's gross estate, such as property not situated in the United States acquired from a nonresident who is not a citizen of the United States.

In this case, B inherited the real property from D, and such property is within the description of property acquired from a decedent, under section 1014(b)(1) of the Code. Therefore, B will be entitled to a stepped-up basis under section 1014(a). Under section 1014(b)(9)(c), section 1014(b)(9) does not apply to property described in section 1014(b)(1); hence, the requirement of section 1014(b)(9) that property be includible in the value of a decedent's gross estate does not apply here."

 

Restating, a nonresident United States citizen or resident does get a step up in basis regardless if this type of property is includible in the estate of the decedent. Section 1014(b)(9)(c) specifies that 1014(b)(9) does not apply to this type of property. That is, the inclusion in the estate is not required fro the step up to be allowed via 1014(a).

 

The Revenue ruling directly addresses that there is step up in basis for the nonresident alien and the article gives the details of how section 1014 works to not require inclusion in the estate.

 

Hope this clarifies for you the stated law that the step up is allowed.

If you need more discussion of that matter please let me know.

 

For your other questions on filing of form 3520 and later tax consequences please start a new discussion (following site policy).

 

 

 

Customer: replied 1 year ago.


Wow my hats off to you !


 


I have to admit this is stuff is not my strength and I will have to spend some time to go thru your answer to really understand.


 


In a nutshell does your responds mean the Non Us situated property gets a step up in basis once the Non US citizen/resident passes and the US resident remainderman owns it outright ?


 


In advance a huge THANK YOU...

Expert:  jgordosea replied 1 year ago.

"In a nutshell does your responds mean the Non Us situated property gets a step up in basis once the Non US citizen/resident passes and the US resident remainderman owns it outright ?"

 

Yes, foreign real property that is inher­ited by a United States citizen/resident from a nonresident alien will receive a step-up in basis.

 

You are quite welcome.

 

If you wish for me to assist with other questions you can reference me in the title of the new question or ask at http://www.justanswer.com/finance/expert-gordosea/

(Of course, I may not personally be available at all times and others will later have a chance to answer in that case.)

 

 

Customer: replied 1 year ago.

Sorry I meant to say foreign life estate.


 


Does what you posted apply to foreign life estate deed where the


Non Us life tenant passed away and the US resident remainderman


owns the Non US situated property outright.


Does this scenario get a step up when Non US life tenant passes


away ?


 


Again sorry but the way you worded it it applies to just regular


inheritence not nessecarily to a life estate set up and that


is really what I need to be clear about.


 


Thank you again soooo much , please clarify.


 

Expert:  jgordosea replied 1 year ago.

Hello again,

 

As mentioned in my initial response, it had seemed that you already knew that a remainderman does get a step up in basis on the full value of the property.

 

Whether or not the person was a remainderman does not change that foreign real estate gets a step up in basis when inherited by a US citizen/resident.

 

A remainderman gets step up in basis.An inheritance of foreign real estate by a citizen/resident gets a step up in basis.

A remainderman that inherits foreign real estate gets a step up in basis.

 

Hope this clarifies for you.

Best regards.

jgordosea, Enrolled Agent
Category: Tax
Satisfied Customers: 3093
Experience: I've prepared all types of taxes since 1987.
jgordosea and other Tax Specialists are ready to help you
Customer: replied 1 year ago.


Ok, here is the last thing my attorney wrote me:

 

Actually, the fact that your father is not a US person is likely determinative to this question. IRC 1014(b)(9) gives the step-up in basis only if the property must be included in the decedent’s estate for US estate tax purposes. The Internal Revenue Code has two separate chapters that deal with when property is included in the gross estate. One chapter addresses residents and citizens, and the other addresses nonresidents who are noncitizens. In that chapter is IRC 2103 – which states that “the value of the gross estate of every decedent nonresident not a citizen of the United Stated shall be that part of his gross estate (Determined as provided in section 2031) which at the time of his death is situated in the United States.”

 

Accordingly, because your father is a nonresident noncitizen, and because the property is not situated in the US, the property will not be included in his gross estate for US tax purposes, and therefore it will not meet the requirement of IRC 1014(b)(9).

 

How do you espond to that?

 

Again thank you sooo much for your time , I really need to know.

 

I did start a new thread regarding how to apropriately file form 3520 with life estate

please respond ...thank you

 

 

Expert:  jgordosea replied 1 year ago.

Hello again,

 

"IRC 1014(b)(9) gives the step-up in basis only if the property must be included in the decedent's estate for US estate tax purposes."

 

In the article linked in my prior answer it says:

"Section 1.1014-2 (b)(2) of the Income Tax Regulations provides that section 1014(b)(9) property does not include property that is not includible in the value of a decedent's gross estate, such as property not situated in the United States acquired from a nonresident who is not a citizen of the United States.

In this case, B inherited the real property from D, and such property is within the description of property acquired from a decedent, under section 1014(b)(1) of the Code. Therefore, B will be entitled to a stepped-up basis under section 1014(a). Under section 1014(b)(9)(c), section 1014(b)(9) does not apply to property described in section 1014(b)(1); hence, the requirement of section 1014(b)(9) that property be includible in the value of a decedent's gross estate does not apply here."

 

IRC 1014(b)(9) is not limiting in your situation since such property is within the description of property acquired from a decedent, under section 1014(b)(1) of the Code.

 

From 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.

This paragraph shall not apply to-

(A) annuities described in section 72;

(B) property to which paragraph (5) would apply if the property had been acquired by bequest; and

(C) property described in any other paragraph of this subsection. "

 

Within IRC 1014(b)(9) items A,B and C give the items to which the paragraph at IRC 1014(b)(9) does not apply. That is, there is no requirement for value of the property to be included in the estate that is stated in IRC 1014(b)(9).

 

As is often the case, there are exceptions to exceptions in the code. The exception in IRC 1014(b)(9) that the value must be included in the estate has an exception for property that is described in any other paragraph of section IRC 1014.

We are discussing property described in section 1014(b)(1) so this is property that is described in any other paragraph than paragraph (b)9 of section IRC 1014.

Under section 1014(b)(9)(c), paragraph section 1014(b)(9) does not apply.

 

Hope this clarifies for you.

Again, thank you.

Customer: replied 1 year ago.


Yes , It is me again....


I am still uncertain about what to do when my father passes.


He is a NON US person and he is the life tenant of a property


outside the US to which I am the remainderman. I reported


the percentage of remainder interest as a gift on Form 3520.


You layed out that the property with life estate receives step


up basis upon passing of life tenant.


When my father passes do I have to file Form 3520 again


with step up FMV of the same property ?


 


THANK YOU !!!!

Expert:  jgordosea replied 1 year ago.
Hello again,

The Form 3520 does apply to a bequest as well as a gift.

So, when the item is inherited and the value is more than 100,000 indeed another Form 3520 is filed to report the increase in wealth that is not subject to income tax.

The amount reported on the Form 3520 will not be the total value of the property but the additional value, the step up, at that time.

Thank you for using our service for your questions.
As always, please ask if you have another question.

Customer: replied 1 year ago.

 

Could you explain what the step up amonut in this case?

Do you mean the difference between the first reported remainder interest

on Form 3520 and the full FMV at time of life tenant passing ?

 

There are some pretty stiff penalties with these information reports.

Is there anyway I could get fined for inaccurate reporting ?

 

 

I want to be prepared. When my dad passes it will be a

traumatizing event with funeral and all and I have a lot to take care

of in Germany where he is. I have to be careful to not accidentally

forget any reporting requirements in the US since I will already be

dealing with all that from the german side.

 

Lets do an example:

 

in 2005 a life estate deed is done the property value is 400k.

the remainder interest just for arguments sake is 25 %

so 100K get reported on form 3520. In 2013 life tenant passes

and the full FMV of the property increased to 600K by 2013.

What is the step up amount that gets reported on 3520 for 2013 ?

 

Thank you for your help

Expert:  jgordosea replied 1 year ago.
Hello again,

"Do you mean the difference between the first reported remainder interest on Form 3520 and the full FMV at time of life tenant passing ?"
Yes, that is correct.

"Lets do an example:

in 2005 a life estate deed is done the property value is 400k.
the remainder interest just for arguments sake is 25 %
so 100K get reported on form 3520. In 2013 life tenant passes
and the full FMV of the property increased to 600K by 2013.
What is the step up amount that gets reported on 3520 for 2013 ?"
The difference between the first reported remainder interest on Form 3520 and the full FMV at time of inheritance of 500K (600 -100) is reported when it is inherited. It is at the time of inheritance and not the time of passing that it will be reported - which may or may not be in the same tax year.

Hope that clarifies for you.
Best regards.
Customer: replied 1 year ago.


Yes , this is extremely helpful and clarifies it to me.


Is there anyway the IRS could penalize me if I go forward like this ?


 


"It is at the time of inheritance and not the time of passing that it will be reported - which may or may not be in the same tax year"


 


That would be the time when the change is entered in the property register ? In Italy they will remove my father`s usufruct and make me the full owner 100/100 . The year that change occurs I file a new 3520


correct ?


 


Thank you so much again , I think I am beginning to see the light......

Expert:  jgordosea replied 1 year ago.
There is no way for the IRS to penalize you if you follow the rules and regulations and timely file and pay, no.

It is the time at which you become the legal owner based on the local law that is the time to report. One does not report because one is in a will but rather when ownership passes.
So, if in Italy you are not the owner until it is entered in the register that is when you file the Form 3520. If you are the legal owner at time of death that is when you will file the form.
There are not any federal laws regarding property and ownership but rather this must defer to the local law on when ownership is passed.

Yes, whenever you are made the owner is the tax year that you will file the form.

Hope that clear is all up for you.

Customer: replied 1 year ago.

"There is no way for the IRS to penalize you if you follow the rules and regulations and timely file and pay, no."


So there is no way than that the IRS will not except a step up in basis in the above described situation ?

Expert:  jgordosea replied 1 year ago.
Hello again,

Although I have given the pertinent regulations and you have confirmed that your situation does fit within those rules, on this site it is only possible for us to speak to the law in general terms as there is not an ability for me to give an opinion that can be used for reliance to avoid penalty. In order to get an opinion it would be necessary to engage and form a client relationship with a practitioner that has all of your particular the facts and circumstances.

Sorry I can not give an opinion on the site for a specific situation.
Nonetheless, that a remainderman of the life estate does get basis step up and that foreign real property that is inher­ited from a nonresident alien by a United States citizen or resident alien will receive a step-up in basis are both quite clear from the regulations.

Of course, the IRS is free to challenge (with or without any basis in fact or law) any reporting or transaction; but reliance on the regulations will be an affirmative defense from any such challenge.

Best wishes.
Customer: replied 1 year ago.


What would you do in my situation ?

Expert:  jgordosea replied 1 year ago.
Hello again,

Not sure what you are referencing when you ask what to do.

Just follow the rules and timely report the transfers when received, as has been discussed, is all that has to be done.

There is not any unclear issue from the facts presented that would require a private letter ruling or other action prior to the transaction.

Best wishes
Customer: replied 1 year ago.


Hi there again,

 

listen why is it that when I present the same facts to a tax lawyer ,

I do not get a clear answer ? This is what the last one told me:

 

"Unfortunately, it is hard to tell. However, there is a possibility for the transaction to be treated as a gift, in which case step up basis would not be available."

 

also this:

 

"I certainly understand your concern. But international tax matters are complicated by nature. If you are getting positive advice from two separate professionals who are more familiar with your fact pattern than we are, then there is certainly a possibility that they are correct. It might be valid to rely on their advice. I would, however, suggest that you received their advice in writing before proceeding with filing in their suggested manner. "

 

and in order to find out they offer me an analysis with a flat fee of many thousands of $$$..... propably only to tell me sorry no step up....

 

I very much appreciate all your time , do you have any idea how I

can get some "insurance" ? Like someting in writing.

 

If I follow the rules you layed out what is the worsed that could happen ?

 

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