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Yes, your mother can make you a gift with no tax
consequences to either of you. Recipients of gifts are not subject to gift tax
. And, there should also be no gift tax due from the donor. Each donor can give $14,000 per year per person under the annual gift exclusion. In addition to that, for any amounts in excess of the $14,000 in a year, each person has a $5,250,000 lifetime exemption....which means a person can give a cumulative amount of up to $5,250,000 in gifts over and above the $14,000 annual gift exclusion amount without incurring gift tax....the donor must file a gift tax return
to let the IRS
know how much of the lifetime exemption is being used, but there will be no gift tax until cumulative additional gifts have exceeded the $5,250,000
The only issue you have is if there are other siblings who might contest the gift on the basis of you breaching your fiduciary duty under your POA. A person acting under a Durable Power of Attorney becomes the agent of the principal who appointed him or her. As agent, that person is what the law
calls a “fiduciary.” This means that person has a duty to act in the highest good faith for the principal’s benefit
. In general, unless the Power of Attorney specifically allows it, you cannot use any of the property
for your own benefit. So, if you think someone might contest, it would be a good idea to have your mother sign the check or register her approval in some other way.
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