PART IV—TAXABLE ESTATE
2051.
Definition of taxable estate.
2053.
Expenses, indebtedness, and taxes.
2055.
Transfers for public, charitable, and religious uses.
2056.
Bequests, etc., to surviving spouse.
2056A.
Qualified domestic trust.
Editorial Notes
Amendments
2014—Pub. L. 113–295, div. A, title II, §221(a)(97)(A), Dec. 19, 2014, 128 Stat. 4051, which directed amendment of part IV of subchapter A of chapter 11 of this title by striking item 2057 from the table of sections for "such subpart", was executed by striking item 2057 "Family-owned business interests" from the table of sections for this part, to reflect the probable intent of Congress.
2001—Pub. L. 107–16, title V, §532(c)(14), June 7, 2001, 115 Stat. 75, added item 2058.
1998—Pub. L. 105–206, title VI, §6006(b)(1)(F), July 22, 1998, 112 Stat. 808, added item 2057.
1990—Pub. L. 101–508, title XI, §11704(a)(39), Nov. 5, 1990, 104 Stat. 1388–520, amended directory language of section 5033(a)(3) of Pub. L. 100–647. See 1988 Amendment note below.
Pub. L. 101–508, title XI, §11704(a)(16), Nov. 5, 1990, 104 Stat. 1388–518, substituted "trust" for "trusts" in item 2056A.
1989—Pub. L. 101–239, title VII, §7304(a)(2)(E), Dec. 19, 1989, 103 Stat. 2353, struck out item 2057 "Sales of employer securities to employee stock ownership plans or worker-owned cooperatives".
1988—Pub. L. 100–647, title V, §5033(a)(3), Nov. 10, 1988, 102 Stat. 3672, as amended by Pub. L. 101–508, title XI, §11704(a)(39), Nov. 5, 1990, 104 Stat. 1388–520, added item 2056A.
1986—Pub. L. 99–514, title XI, §1172(b)(3), Oct. 22, 1986, 100 Stat. 2515, added item 2057.
1981—Pub. L. 97–34, title IV, §427(b), Aug. 13, 1981, 95 Stat. 318, struck out item 2057 "Bequests, etc., to certain minor children".
1976—Pub. L. 94–455, title XX, §§2001(c)(1)(N)(iv), 2007(b), Oct. 4, 1976, 90 Stat. 1853, 1890, added item 2057 and struck out item 2052 "Exemption".
§2051. Definition of taxable estate
For purposes of the tax imposed by section 2001, the value of the taxable estate shall be determined by deducting from the value of the gross estate the deductions provided for in this part.
(Aug. 16, 1954, ch. 736, 68A Stat. 388; Pub. L. 95–600, title VII, §702(r)(2), Nov. 6, 1978, 92 Stat. 2938.)
Editorial Notes
Amendments
1978—Pub. L. 95–600 struck out "exemption and" after "gross estate the".
Statutory Notes and Related Subsidiaries
Effective Date of 1978 Amendment
Pub. L. 95–600, title VII, §702(r)(5), Nov. 6, 1978, 92 Stat. 2939, provided that: "The amendments made by this subsection [amending this section and sections 1016, 6324B, and 6698A of this title] shall apply to estates of decedents dying after December 31, 1976."
Section, act Aug. 16, 1954, ch. 736, 68A Stat. 389, provided for an exemption of $60,000 to be deducted from gross estate in determining value of taxable estate.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal applicable to estates of decedents dying after Dec. 31, 1976, see section 2001(d)(1) of Pub. L. 94–455, set out as an Effective Date of 1976 Amendment note under section 2001 of this title.
§2053. Expenses, indebtedness, and taxes
(a) General rule
For purposes of the tax imposed by section 2001, the value of the taxable estate shall be determined by deducting from the value of the gross estate such amounts—
(1) for funeral expenses,
(2) for administration expenses,
(3) for claims against the estate, and
(4) for unpaid mortgages on, or any indebtedness in respect of, property where the value of the decedent's interest therein, undiminished by such mortgage or indebtedness, is included in the value of the gross estate,
as are allowable by the laws of the jurisdiction, whether within or without the United States, under which the estate is being administered.
(b) Other administration expenses
Subject to the limitations in paragraph (1) of subsection (c), there shall be deducted in determining the taxable estate amounts representing expenses incurred in administering property not subject to claims which is included in the gross estate to the same extent such amounts would be allowable as a deduction under subsection (a) if such property were subject to claims, and such amounts are paid before the expiration of the period of limitation for assessment provided in section 6501.
(c) Limitations
(1) Limitations applicable to subsections (a) and (b)
(A) Consideration for claims
The deduction allowed by this section in the case of claims against the estate, unpaid mortgages, or any indebtedness shall, when founded on a promise or agreement, be limited to the extent that they were contracted bona fide and for an adequate and full consideration in money or money's worth; except that in any case in which any such claim is founded on a promise or agreement of the decedent to make a contribution or gift to or for the use of any donee described in section 2055 for the purposes specified therein, the deduction for such claims shall not be so limited, but shall be limited to the extent that it would be allowable as a deduction under section 2055 if such promise or agreement constituted a bequest.
(B) Certain taxes
Any income taxes on income received after the death of the decedent, or property taxes not accrued before his death, or any estate, succession, legacy, or inheritance taxes, shall not be deductible under this section.
(C) Certain claims by remaindermen
No deduction shall be allowed under this section for a claim against the estate by a remainderman relating to any property described in section 2044.
(D) Section 6166 interest
No deduction shall be allowed under this section for any interest payable under section 6601 on any unpaid portion of the tax imposed by section 2001 for the period during which an extension of time for payment of such tax is in effect under section 6166.
(2) Limitations applicable only to subsection (a)
In the case of the amounts described in subsection (a), there shall be disallowed the amount by which the deductions specified therein exceed the value, at the time of the decedent's death, of property subject to claims, except to the extent that such deductions represent amounts paid before the date prescribed for the filing of the estate tax return. For purposes of this section, the term "property subject to claims" means property includible in the gross estate of the decedent which, or the avails of which, would under the applicable law, bear the burden of the payment of such deductions in the final adjustment and settlement of the estate, except that the value of the property shall be reduced by the amount of the deduction under section 2054 attributable to such property.
(d) Certain foreign death taxes
(1) In general
Notwithstanding the provisions of subsection (c)(1)(B), for purposes of the tax imposed by section 2001, the value of the taxable estate may be determined, if the executor so elects before the expiration of the period of limitation for assessment provided in section 6501, by deducting from the value of the gross estate the amount (as determined in accordance with regulations prescribed by the Secretary) of any estate, succession, legacy, or inheritance tax imposed by and actually paid to any foreign country, in respect of any property situated within such foreign country and included in the gross estate of a citizen or resident of the United States, upon a transfer by the decedent for public, charitable, or religious uses described in section 2055. The determination under this paragraph of the country within which property is situated shall be made in accordance with the rules applicable under subchapter B (sec. 2101 and following) in determining whether property is situated within or without the United States. Any election under this paragraph shall be exercised in accordance with regulations prescribed by the Secretary.
(2) Condition for allowance of deduction
No deduction shall be allowed under paragraph (1) for a foreign death tax specified therein unless the decrease in the tax imposed by section 2001 which results from the deduction provided in paragraph (1) will inure solely for the benefit of the public, charitable, or religious transferees described in section 2055 or section 2106(a)(2). In any case where the tax imposed by section 2001 is equitably apportioned among all the transferees of property included in the gross estate, including those described in sections 2055 and 2106(a)(2) (taking into account any exemptions, credits, or deductions allowed by this chapter), in determining such decrease, there shall be disregarded any decrease in the Federal estate tax which any transferees other than those described in sections 2055 and 2106(a)(2) are required to pay.
(3) Effect on credit for foreign death taxes of deduction under this subsection
(A) Election
An election under this subsection shall be deemed a waiver of the right to claim a credit, against the Federal estate tax, under a death tax convention with any foreign country for any tax or portion thereof in respect of which a deduction is taken under this subsection.
(B) Cross reference
See section 2014(f) for the effect of a deduction taken under this paragraph on the credit for foreign death taxes.
(e) Marital rights
For provisions treating certain relinquishments of marital rights as consideration in money or money's worth, see section 2043(b)(2).
(Aug. 16, 1954, ch. 736, 68A Stat. 389; Feb. 20, 1956, ch. 63, §2, 70 Stat. 23; Pub. L. 85–866, title I, §102(c)(3), Sept. 2, 1958, 72 Stat. 1674; Pub. L. 86–175, §1, Aug. 21, 1959, 73 Stat. 396; Pub. L. 94–455, title XIX, §§1902(a)(12)(B), 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1806, 1834; Pub. L. 98–369, div. A, title IV, §425(a)(2), title X, §1027(b), July 18, 1984, 98 Stat. 804, 1031; Pub. L. 100–647, title I, §1011A(g)(11), Nov. 10, 1988, 102 Stat. 3482; Pub. L. 105–34, title V, §503(b)(1), title X, §1073(b)(3), Aug. 5, 1997, 111 Stat. 853, 948; Pub. L. 107–16, title V, §532(c)(5), June 7, 2001, 115 Stat. 74; Pub. L. 107–134, title I, §103(b)(2), Jan. 23, 2002, 115 Stat. 2431.)
Editorial Notes
Amendments
2002—Subsec. (d)(3)(B). Pub. L. 107–134 substituted "section 2011(d)" for "section 2011(e)".
2001—Subsec. (d). Pub. L. 107–16 substituted "Certain foreign death taxes" for "Certain State and foreign death taxes" in heading and amended text generally, revising and restating provisions of pars. (1) to (3) so as to eliminate provisions relating to deduction for State death taxes.
1997—Subsec. (c)(1)(B). Pub. L. 105–34, §1073(b)(3), struck out at end "This subparagraph shall not apply to any increase in the tax imposed by this chapter by reason of section 4980A(d)."
Subsec. (c)(1)(D). Pub. L. 105–34, §503(b)(1), added subpar. (D).
1988—Subsec. (c)(1)(B). Pub. L. 100–647, inserted at end "This subparagraph shall not apply to any increase in the tax imposed by this chapter by reason of section 4980A(d)."
1984—Subsec. (c)(1)(C). Pub. L. 98–369, §1027(b), added subpar. (C).
Subsec. (e). Pub. L. 98–369, §425(a)(2), substituted "For provisions treating certain relinquishments of marital rights as consideration in money or money's worth, see section 2043(b)(2)" for "For provisions that relinquishment of marital rights shall not be deemed a consideration 'in money or money's worth,' see section 2043(b)."
1976—Subsec. (d)(1). Pub. L. 94–455 struck out "or his delegate" after "Secretary" in provisions preceding subpar. (A) and following subpar. (B) and struck out "or Territory" after "a State" in subpar. (A).
1959—Subsec. (d). Pub. L. 86–175 inserted a reference to foreign death taxes in heading of subsection and par. (3) and in text of par. (2), redesignated provisions of par. (1) as par. (1)(A) and sentence pertaining to exercise of privilege of election, added par. (2) and sentence for determining location of property, redesignated provisions of par. (3) as par. (3)(B) in part, and added par. (3)(A) and the part of (B) relating to foreign death taxes.
1958—Subsec. (d)(1). Pub. L. 85–866 struck out "or any possession of the United States," after "District of Columbia,".
1956—Subsecs. (d), (e). Act Feb. 20, 1956, added subsec. (d) and redesignated former subsec. (d) as (e).
Statutory Notes and Related Subsidiaries
Effective Date of 2002 Amendment
Pub. L. 107–134, title I, §103(d), Jan. 23, 2002, 115 Stat. 2431, provided that:
"(1) Effective date.—The amendments made by this section [amending this section and sections 2011 and 2201 of this title] shall apply to estates of decedents—
"(A) dying on or after September 11, 2001; and
"(B) in the case of individuals dying as a result of the April 19, 1995, terrorist attack, dying on or after April 19, 1995.
"(2) Waiver of limitations.—If refund or credit of any overpayment of tax resulting from the amendments made by this section is prevented at any time before the close of the 1-year period beginning on the date of the enactment of this Act [Jan. 23, 2002] by the operation of any law or rule of law (including res judicata), such refund or credit may nevertheless be made or allowed if claim therefor is filed before the close of such period."
Effective Date of 2001 Amendment
Amendment by Pub. L. 107–16 applicable to estates of decedents dying, and generation-skipping transfers, after Dec. 31, 2004, see section 532(d) of Pub. L. 107–16, set out as a note under section 2012 of this title.
Effective Date of 1997 Amendment
Amendment by section 503(b)(1) of Pub. L. 105–34 applicable to estates of decedents dying after Dec. 31, 1997, with special rule in case of estate of any decedent dying before Jan. 1, 1998, with respect to which there is an election under section 6166 of this title, see section 503(d) of Pub. L. 105–34, set out as a note under section 163 of this title.
Amendment by section 1073(b)(3) of Pub. L. 105–34 applicable to estates of decedents dying after Dec. 31, 1996, see section 1073(c) of Pub. L. 105–34, set out as an Effective Date of Repeal note under section 4980A of this title.
Effective Date of 1988 Amendment
Amendment by Pub. L. 100–647 effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 1019(a) of Pub. L. 100–647, set out as a note under section 1 of this title.
Effective Date of 1984 Amendment
Amendment by section 425(a)(2) of Pub. L. 98–369 applicable to estates of decedents dying after July 18, 1984, see section 425(c)(1) of Pub. L. 98–369, set out as a note under section 2043 of this title.
Pub. L. 98–369, div. A, title X, §1027(c), July 18, 1984, 98 Stat. 1032, provided that: "The amendments made by this section [amending this section and section 2056 of this title] shall take effect as if included in the amendment made by section 403 of the Economic Recovery Tax Act of 1981 [section 403 of Pub. L. 97–34, see Effective Date of 1981 Amendment note set out under section 2056 of this title]."
Effective Date of 1976 Amendment
Amendment by section 1902(a)(12)(B) of Pub. L. 94–455 applicable to estates of decedents dying after Oct. 4, 1976, see section 1902(c)(1) of Pub. L. 94–455, set out as a note under section 2012 of this title.
Effective Date of 1959 Amendment
Pub. L. 86–175, §4, Aug. 21, 1959, 73 Stat. 397, provided that: "The amendments made by the preceding sections of this Act [amending this section and sections 2011 and 2014 of this title] shall apply with respect to the estates of decedents dying on or after July 1, 1955."
Effective Date of 1958 Amendment
Amendment by Pub. L. 85–866 applicable to estates of decedents dying after Sept. 2, 1958, see section 102(d) of Pub. L. 85–866, set out as a note under section 2014 of this title.
Effective Date of 1956 Amendment
Act Feb. 20, 1956, ch. 63, §4, 70 Stat. 25, as amended by act Oct. 22, 1986, Pub. L. 99–514, §2, 100 Stat. 2095, provided that: "The amendments to the Internal Revenue Code of 1986 [formerly I.R.C. 1954] made by sections 2 and 3 of this Act [amending this section and section 2011 of this title], and provisions having the same effect as this amendment, which shall be considered to be included in chapter 3 of the Internal Revenue Code of 1939, shall apply to the estates of all decedents dying after December 31, 1953."
§2054. Losses
For purposes of the tax imposed by section 2001, the value of the taxable estate shall be determined by deducting from the value of the gross estate losses incurred during the settlement of estates arising from fires, storms, shipwrecks, or other casualties, or from theft, when such losses are not compensated for by insurance or otherwise.
(Aug. 16, 1954, ch. 736, 68A Stat. 390.)
§2055. Transfers for public, charitable, and religious uses
(a) In general
For purposes of the tax imposed by section 2001, the value of the taxable estate shall be determined by deducting from the value of the gross estate the amount of all bequests, legacies, devises, or transfers—
(1) to or for the use of the United States, any State, any political subdivision thereof, or the District of Columbia, for exclusively public purposes;
(2) to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, including the encouragement of art, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), and the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private stockholder or individual, which is not disqualified for tax exemption under section 501(c)(3) by reason of attempting to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office;
(3) to a trustee or trustees, or a fraternal society, order, or association operating under the lodge system, but only if such contributions or gifts are to be used by such trustee or trustees, or by such fraternal society, order, or association, exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals, such trust, fraternal society, order, or association would not be disqualified for tax exemption under section 501(c)(3) by reason of attempting to influence legislation, and such trustee or trustees, or such fraternal society, order, or association, does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office;
(4) to or for the use of any veterans' organization incorporated by Act of Congress, or of its departments or local chapters or posts, no part of the net earnings of which inures to the benefit of any private shareholder or individual; or
(5) to an employee stock ownership plan if such transfer qualifies as a qualified gratuitous transfer of qualified employer securities within the meaning of section 664(g).
For purposes of this subsection, the complete termination before the date prescribed for the filing of the estate tax return of a power to consume, invade, or appropriate property for the benefit of an individual before such power has been exercised by reason of the death of such individual or for any other reason shall be considered and deemed to be a qualified disclaimer with the same full force and effect as though he had filed such qualified disclaimer. Rules similar to the rules of section 501(j) shall apply for purposes of paragraph (2).
(b) Powers of appointment
Property includible in the decedent's gross estate under section 2041 (relating to powers of appointment) received by a donee described in this section shall, for purposes of this section, be considered a bequest of such decedent.
(c) Death taxes payable out of bequests
If the tax imposed by section 2001, or any estate, succession, legacy, or inheritance taxes, are, either by the terms of the will, by the law of the jurisdiction under which the estate is administered, or by the law of the jurisdiction imposing the particular tax, payable in whole or in part out of the bequests, legacies, or devises otherwise deductible under this section, then the amount deductible under this section shall be the amount of such bequests, legacies, or devises reduced by the amount of such taxes.
(d) Limitation on deduction
The amount of the deduction under this section for any transfer shall not exceed the value of the transferred property required to be included in the gross estate.
(e) Disallowance of deductions in certain cases
(1) No deduction shall be allowed under this section for a transfer to or for the use of an organization or trust described in section 508(d) or 4948(c)(4) subject to the conditions specified in such sections.
(2) Where an interest in property (other than an interest described in section 170(f)(3)(B)) passes or has passed from the decedent to a person, or for a use, described in subsection (a), and an interest (other than an interest which is extinguished upon the decedent's death) in the same property passes or has passed (for less than an adequate and full consideration in money or money's worth) from the decedent to a person, or for a use, not described in subsection (a), no deduction shall be allowed under this section for the interest which passes or has passed to the person, or for the use, described in subsection (a) unless—
(A) in the case of a remainder interest, such interest is in a trust which is a charitable remainder annuity trust or a charitable remainder unitrust (described in section 664) or a pooled income fund (described in section 642(c)(5)), or
(B) in the case of any other interest, such interest is in the form of a guaranteed annuity or is a fixed percentage distributed yearly of the fair market value of the property (to be determined yearly).
(3) Reformations to comply with paragraph (2).—
(A) In general.—A deduction shall be allowed under subsection (a) in respect of any qualified reformation.
(B) Qualified reformation.—For purposes of this paragraph, the term "qualified reformation" means a change of a governing instrument by reformation, amendment, construction, or otherwise which changes a reformable interest into a qualified interest but only if—
(i) any difference between—
(I) the actuarial value (determined as of the date of the decedent's death) of the qualified interest, and
(II) the actuarial value (as so determined) of the reformable interest,
does not exceed 5 percent of the actuarial value (as so determined) of the reformable interest,
(ii) in the case of—
(I) a charitable remainder interest, the nonremainder interest (before and after the qualified reformation) terminated at the same time, or
(II) any other interest, the reformable interest and the qualified interest are for the same period, and
(iii) such change is effective as of the date of the decedent's death.
A nonremainder interest (before reformation) for a term of years in excess of 20 years shall be treated as satisfying subclause (I) of clause (ii) if such interest (after reformation) is for a term of 20 years.
(C) Reformable interest.—For purposes of this paragraph—
(i) In general.—The term "reformable interest" means any interest for which a deduction would be allowable under subsection (a) at the time of the decedent's death but for paragraph (2).
(ii) Beneficiary's interest must be fixed.—The term "reformable interest" does not include any interest unless, before the remainder vests in possession, all payments to persons other than an organization described in subsection (a) are expressed either in specified dollar amounts or a fixed percentage of the fair market value of the property. For purposes of determining whether all such payments are expressed as a fixed percentage of the fair market value of the property, section 664(d)(3) shall be taken into account.
(iii) Special rule where timely commencement of reformation.—Clause (ii) shall not apply to any interest if a judicial proceeding is commenced to change such interest into a qualified interest not later than the 90th day after—
(I) if an estate tax return is required to be filed, the last date (including extensions) for filing such return, or
(II) if no estate tax return is required to be filed, the last date (including extensions) for filing the income tax return for the 1st taxable year for which such a return is required to be filed by the trust.
(iv) Special rule for will executed before january 1, 1979, etc.—In the case of any interest passing under a will executed before January 1, 1979, or under a trust created before such date, clause (ii) shall not apply.
(D) Qualified interest.—For purposes of this paragraph, the term "qualified interest" means an interest for which a deduction is allowable under subsection (a).
(E) Limitation.—The deduction referred to in subparagraph (A) shall not exceed the amount of the deduction which would have been allowable for the reformable interest but for paragraph (2).
(F) Special rule where income beneficiary dies.—If (by reason of the death of any individual, or by termination or distribution of a trust in accordance with the terms of the trust instrument) by the due date for filing the estate tax return (including any extension thereof) a reformable interest is in a wholly charitable trust or passes directly to a person or for a use described in subsection (a), a deduction shall be allowed for such reformable interest as if it had met the requirements of paragraph (2) on the date of the decedent's death. For purposes of the preceding sentence, the term "wholly charitable trust" means a charitable trust which, upon the allowance of a deduction, would be described in section 4947(a)(1).
(G) Statute of limitations.—The period for assessing any deficiency of any tax attributable to the application of this paragraph shall not expire before the date 1 year after the date on which the Secretary is notified that such reformation (or other proceeding pursuant to subparagraph (J)) has occurred.
(H) Regulations.—The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this paragraph, including regulations providing such adjustments in the application of the provisions of section 508 (relating to special rules relating to section 501(c)(3) organizations), subchapter J (relating to estates, trusts, beneficiaries, and decedents), and chapter 42 (relating to private foundations) as may be necessary by reason of the qualified reformation.
(I) Reformations permitted in case of remainder interests in residence or farm, pooled income funds, etc.—The Secretary shall prescribe regulations (consistent with the provisions of this paragraph) permitting reformations in the case of any failure—
(i) to meet the requirements of section 170(f)(3)(B) (relating to remainder interests in personal residence or farm, etc.), or
(ii) to meet the requirements of section 642(c)(5).
(J) Void or reformed trust in cases of insufficient remainder interests.—In the case of a trust that would qualify (or could be reformed to qualify pursuant to subparagraph (B)) but for failure to satisfy the requirement of paragraph (1)(D) or (2)(D) of section 664(d), such trust may be—
(i) declared null and void ab initio, or
(ii) changed by reformation, amendment, or otherwise to meet such requirement by reducing the payout rate or the duration (or both) of any noncharitable beneficiary's interest to the extent necessary to satisfy such requirement,
pursuant to a proceeding that is commenced within the period required in subparagraph (C)(iii). In a case described in clause (i), no deduction shall be allowed under this title for any transfer to the trust and any transactions entered into by the trust prior to being declared void shall be treated as entered into by the transferor.
(4) Works of art and their copyrights treated as separate properties in certain cases.—
(A) In general.—In the case of a qualified contribution of a work of art, the work of art and the copyright on such work of art shall be treated as separate properties for purposes of paragraph (2).
(B) Work of art defined.—For purposes of this paragraph, the term "work of art" means any tangible personal property with respect to which there is a copyright under Federal law.
(C) Qualified contribution defined.—For purposes of this paragraph, the term "qualified contribution" means any transfer of property to a qualified organization if the use of the property by the organization is related to the purpose or function constituting the basis for its exemption under section 501.
(D) Qualified organization defined.—For purposes of this paragraph, the term "qualified organization" means any organization described in section 501(c)(3) other than a private foundation (as defined in section 509). For purposes of the preceding sentence, a private operating foundation (as defined in section 4942(j)(3)) shall not be treated as a private foundation.
(5) Contributions to donor advised funds.—A deduction otherwise allowed under subsection (a) for any contribution to a donor advised fund (as defined in section 4966(d)(2)) shall only be allowed if—
(A) the sponsoring organization (as defined in section 4966(d)(1)) with respect to such donor advised fund is not—
(i) described in paragraph (3) or (4) of subsection (a), or
(ii) a type III supporting organization (as defined in section 4943(f)(5)(A)) which is not a functionally integrated type III supporting organization (as defined in section 4943(f)(5)(B)), and
(B) the taxpayer obtains a contemporaneous written acknowledgment (determined under rules similar to the rules of section 170(f)(8)(C)) from the sponsoring organization (as so defined) of such donor advised fund that such organization has exclusive legal control over the assets contributed.
(f) Special rule for irrevocable transfers of easements in real property
A deduction shall be allowed under subsection (a) in respect of any transfer of a qualified real property interest (as defined in section 170(h)(2)(C)) which meets the requirements of section 170(h) (without regard to paragraph (4)(A) thereof).
(g) Cross references
(1) For option as to time for valuation for purpose of deduction under this section, see section 2032.
(2) For treatment of certain organizations providing child care, see section 501(k).
(3) For exemption of gifts and bequests to or for the benefit of Library of Congress, see section 5 of the Act of March 3, 1925, as amended (2 U.S.C. 161).
(4) For treatment of gifts and bequests for the benefit of the Naval Historical Center as gifts or bequests to or for the use of the United States, see section 8622 of title 10, United States Code.
(5) For treatment of gifts and bequests to or for the benefit of National Park Foundation as gifts or bequests to or for the use of the United States, see section 8 of the Act of December 18, 1967 (16 U.S.C. 191).
(6) For treatment of gifts, devises, or bequests accepted by the Secretary of State, the Director of the International Communication Agency, or the Director of the United States International Development Cooperation Agency as gifts, devises, or bequests to or for the use of the United States, see section 25 of the State Department Basic Authorities Act of 1956.
(7) For treatment of gifts or bequests of money accepted by the Attorney General for credit to "Commissary Funds, Federal Prisons," as gifts or bequests to or for the use of the United States, see section 4043 of title 18, United States Code.
(8) For payment of tax on gifts and bequests of United States obligations to the United States, see section 3113(e) of title 31, United States Code.
(9) For treatment of gifts and bequests for benefit of the Naval Academy as gifts or bequests to or for the use of the United States, see section 8473 of title 10, United States Code.
(10) For treatment of gifts and bequests for benefit of the Naval Academy Museum as gifts or bequests to or for the use of the United States, see section 8474 of title 10, United States Code.
(11) For exemption of gifts and bequests received by National Archives Trust Fund Board, see section 2308 of title 44, United States Code.
(12) For treatment of gifts and bequests to or for the use of Indian tribal governments (or their subdivisions), see section 7871.
(Aug. 16, 1954, ch. 736, 68A Stat. 390; Aug. 6, 1956, ch. 1020, §1, 70 Stat. 1075; Pub. L. 85–866, title I, §30(d), Sept. 2, 1958, 72 Stat. 1631; Pub. L. 91–172, title II, §201(d)(1), (4)(A), Dec. 30, 1969, 83 Stat. 560, 561; Pub. L. 91–614, title I, §101(c), Dec. 31, 1970, 84 Stat. 1836; Pub. L. 93–483, §3(a), Oct. 26, 1974, 88 Stat. 1457; Pub. L. 94–455, title XIII, §§1304(a), 1307(d)(1)(B)(ii), (C), 1313(b)(2), title XIX, §§1902(a)(4), (12)(A), 1906(b)(13)(A), title XX, §2009(b)(4)(B), (C), title XXI, §2124(e)(2), Oct. 4, 1976, 90 Stat. 1715, 1727, 1730, 1804, 1805, 1834, 1894, 1919; Pub. L. 95–600, title V, §514(a), Nov. 6, 1978, 92 Stat. 2883; Pub. L. 96–222, title I, §105(a)(4)(A), Apr. 1, 1980, 94 Stat. 219; Pub. L. 96–465, title II, §2206(e)(4), Oct. 17, 1980, 94 Stat. 2163; Pub. L. 96–605, title III, §301(a), Dec. 28, 1980, 94 Stat. 3530; Pub. L. 97–34, title IV, §423(a), Aug. 13, 1981, 95 Stat. 316; Pub. L. 97–248, title II, §286(b)(2), Sept. 3, 1982, 96 Stat. 570; Pub. L. 97–258, §3(f)(1), (2), Sept. 13, 1982, 96 Stat. 1064; Pub. L. 97–473, title II, §202(b)(5), Jan. 14, 1983, 96 Stat. 2610; Pub. L. 98–369, div. A, title X, §§1022(a), 1032(b)(2), July 18, 1984, 98 Stat. 1026, 1033; Pub. L. 99–514, title XIV, §1422(a), Oct. 22, 1986, 100 Stat. 2716; Pub. L. 100–203, title X, §10711(a)(3), Dec. 22, 1987, 101 Stat. 1330–464; Pub. L. 104–201, div. A, title X, §1073(b)(3), Sept. 23, 1996, 110 Stat. 2657; Pub. L. 105–34, title X, §1089(b)(3), (5), title XV, §1530(c)(7), Aug. 5, 1997, 111 Stat. 960, 961, 1078; Pub. L. 109–280, title XII, §§1218(b), 1234(b), Aug. 17, 2006, 120 Stat. 1081, 1100; Pub. L. 110–172, §3(d)(1), Dec. 29, 2007, 121 Stat. 2474; Pub. L. 115–141, div. U, title IV, §401(a)(202), Mar. 23, 2018, 132 Stat. 1193; Pub. L. 115–232, div. A, title VIII, §809(h)(2), Aug. 13, 2018, 132 Stat. 1842.)
Editorial Notes
References in Text
Section 25 of the State Department Basic Authorities Act of 1956, referred to in subsec. (g)(6), is classified to section 2697 of Title 22, Foreign Relations and Intercourse.
Codification
Sections 1218(b) and 1234(b) of Pub. L. 109–280, which directed the amendment of section 2055 without specifying the act to be amended, were executed to this section, which is section 2055 of the Internal Revenue Code of 1986, to reflect the probable intent of Congress. See 2006 Amendment notes below.
Amendments
2018—Subsec. (e)(3)(G). Pub. L. 115–141 substituted "subparagraph (J))" for "subparagraph (J)".
Subsec. (g)(4). Pub. L. 115–232, §809(h)(2)(A), substituted "section 8622 of title 10, United States Code" for "section 7222 of title 10, United States Code".
Subsec. (g)(9). Pub. L. 115–232, §809(h)(2)(B), substituted "section 8473 of title 10, United States Code" for "section 6973 of title 10, United States Code".
Subsec. (g)(10). Pub. L. 115–232, §809(h)(2)(C), substituted "section 8474 of title 10, United States Code" for "section 6974 of title 10, United States Code".
2007—Subsecs. (g), (h). Pub. L. 110–172 redesignated subsec. (h) as (g) and struck out heading and text of former subsec. (g). Text read as follows:
"(1) In general.—In the case of any additional contribution, the fair market value of such contribution shall be determined by using the lesser of—
"(A) the fair market value of the property at the time of the initial fractional contribution, or
"(B) the fair market value of the property at the time of the additional contribution.
"(2) Definitions.—For purposes of this paragraph—
"(A) Additional contribution.—The term 'additional contribution' means a bequest, legacy, devise, or transfer described in subsection (a) of any interest in a property with respect to which the decedent had previously made an initial fractional contribution.
"(B) Initial fractional contribution.—The term 'initial fractional contribution' means, with respect to any decedent, any charitable contribution of an undivided portion of the decedent's entire interest in any tangible personal property for which a deduction was allowed under section 170."
2006—Subsec. (e)(5). Pub. L. 109–280, §1234(b), added par. (5). See Codification note above.
Subsecs. (g), (h). Pub. L. 109–280, §1218(b), added subsec. (g) and redesignated former subsec. (g) as (h). See Codification note above.
1997—Subsec. (a)(5). Pub. L. 105–34, §1530(c)(7), added par. (5).
Subsec. (e)(3)(G). Pub. L. 105–34, §1089(b)(5), inserted "(or other proceeding pursuant to subparagraph (J)" after "reformation".
Subsec. (e)(3)(J). Pub. L. 105–34, §1089(b)(3), added subpar. (J).
1996—Subsec. (g)(4). Pub. L. 104–201 amended par. (4) generally, substituting reference to Naval Historical Center for reference to Office of Naval Records and History.
1987—Subsec. (a)(2), (3). Pub. L. 100–203 inserted "(or in opposition to)" after "on behalf of".
1986—Subsecs. (f), (g). Pub. L. 99–514 added subsec. (f) and redesignated former subsec. (f) as (g).
1984—Subsec. (e)(3). Pub. L. 98–369, §1022(a), amended par. (3) generally, substituting provisions relating to reformations to comply with par. (2), defining "qualified reformation", "reformable interest", and "qualified interest", and setting forth limitations on the deduction, a special rule where the income beneficiary dies, statute of limitations, regulations prescribed by the Secretary, and reformations permitted in the case of remainder interests in a residence or farm, pooled income funds, etc., for former par. (3), which provided: "In the case of a will executed before December 31, 1978, or a trust created before such date, if a deduction is not allowable at the time of the decedent's death because of the failure of an interest in property which passes from the decedent to a person, or for a use, described in subsection (a) to meet the requirements of subparagraph (A) or (B) of paragraph (2) of this subsection, and if the governing instrument is amended or conformed on or before December 31, 1981, or, if later, on or before the 30th day after the date on which judicial proceedings begun on or before December 31, 1981, (which are required to amend or conform the governing instrument), become final, so that the interest is in a trust which meets the requirements of such subparagraph (A) or (B) (as the case may be), a deduction shall nevertheless be allowed. The Secretary may, by regulation, provide for the application of the provisions of this paragraph to trusts whose governing instruments are amended or conformed in accordance with this paragraph, and such regulations may provide for any adjustments in the application of the provisions of section 508 (relating to special rules with respect to section 501(c)(3) organizations), subchapter J (relating to estates, trusts, beneficiaries, and decedents), and chapter 42 (relating to private foundations), to such trusts made necessary by the application of this paragraph. If, by the due date for the filing of an estate tax return (including any extension thereof), the interest is in a charitable trust which, upon allowance of a deduction, would be described in section 4947(a)(1), or the interest passes directly to a person or for a use described in subsection (a), a deduction shall be allowed as if the governing instrument was amended or conformed under this paragraph. If the amendment or conformation of the governing instrument is made after the due date for the filing of the estate tax return (including any extension thereof), the deduction shall be allowed upon the filing of a timely claim for credit or refund (as provided for in section 6511) of an overpayment resulting from the application of this paragraph. In the case of a credit or refund as a result of an amendment or conformation made pursuant to this paragraph, no interest shall be allowed for the period prior to the expiration of the 180th day after the date on which the claim for credit or refund is filed."
Subsec. (f)(2). Pub. L. 98–369, §1032(b)(2), added par. (2), and redesignated former pars. (2) to (11) as pars. (3) to (12), respectively.
1983—Subsec. (f)(11). Pub. L. 97–473 added par. (11).
1982—Subsec. (a). Pub. L. 97–248 inserted provision that rules similar to the rules of section 501(j) of this title shall apply for purposes of par. (2).
Subsec. (f)(6). Pub. L. 97–258, §3(f)(1), substituted "section 4043 of title 18, United States Code" for "section 2 of the Act of May 15, 1952, as amended by the Act of July 9, 1952 (31 U.S.C. 725s–4)".
Subsec. (f)(7). Pub. L. 97–258, §3(f)(2), substituted "section 3113(e) of title 31, United States Code" for "section 24 of the Second Liberty Bond Act (31 U.S.C. 757e)".
1981—Subsec. (e)(4). Pub. L. 97–34 added par. (4).
1980—Subsec. (e)(3). Pub. L. 96–605 substituted "December 31, 1978" for "December 31, 1977" and "December 31, 1981" for "December 31, 1978" in two places.
Pub. L. 96–222 substituted "such subparagraph (A) or (B)" for "such subparagraph (a) or (B)" and "so that the interest" for "so that interest".
Subsec. (f)(5). Pub. L. 96–465, among other changes, inserted references to the Director of the International Communication Agency and the Director of the United States International Development Cooperation Agency and substituted reference to section 25 of the State Department Basic Authorities Act of 1956 for reference to section 1021(e) of the Foreign Service Act of 1946.
1978—Subsec. (e)(3). Pub. L. 95–600 inserted "or (B)" before "of paragraph (2)", substituted "on or before December 31, 1978" for "on or before December 31, 1977" wherever appearing and "which meets the requirements of such subparagraph (a) or (B) (as the case may be)," for "which is a charitable remainder annuity trust, a charitable remainder unitrust (described in section 664), or a pooled income fund (described in section 642(c)(5)),".
1976—Subsec. (a). Pub. L. 94–455, §§1307(d)(1)(B)(ii), (C), 1313(b)(2), 1902(a)(12)(A), 2009(b)(4)(B), (C), struck out "(including the interest which falls into any such bequest, legacy, devise, or transfer as a result of an irrevocable disclaimer of a bequest, legacy, devise, transfer, or power, if the disclaimer is made before the date prescribed for the filing of the estate tax return)" after "or transfers" in provisions preceding par. (1), struck out "Territory," after "State," in par. (1), inserted ", or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment)," after "encouragement of art" and substituted "which is not disqualified for tax exemption under section 501(c)(3) by reason of attempting to influence legislation," for "no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation," in par. (2), substituted "such trust, fraternal society, order, or association would not be disqualified for tax exemption under section 501(c)(3) by reason of attempting to influence legislation," for "no substantial part of the activities of such trustee or trustees, or of such fraternal society, order, or association, is carrying on propaganda, or otherwise attempting, to influence legislation," in par. (3), and, in provisions following par. (4), substituted "a qualified disclaimer" for "an irrevocable disclaimer" and "such qualified disclaimer" for "such irrevocable disclaimer".
Subsec. (b). Pub. L. 94–455, §1902(a)(4)(A), struck out provisions under which a bequest in trust, if the surviving spouse of the decedent was entitled for life to all of the net income from the trust and the surviving spouse had a power of appointment over the corpus of that trust exercisable by will in favor of, among others, organizations described in subsec. (a)(2), could be deemed a transfer to the organization by the decedent under certain conditions.
Subsec. (e)(2). Pub. L. 94–455, §2124(e)(2), substituted "(other than an interest described in section 170(f)(3)(B))" for "(other than a remainder interest in a personal residence or farm or an undivided portion of the decedent's entire interest in property)" in provisions preceding subpar. (A).
Subsec. (e)(3). Pub. L. 94–455, §1304(a), §1906(b)(13)(A), substituted "will executed before December 31, 1977," for "will executed before September 21, 1974," and "amended or conformed on or before December 31, 1977, or, if later, on or before the 30th day after the date on which judicial proceedings begun on or before December 31, 1977" for "amended or conformed on or before December 31, 1975, or, if later, on or before the 30th day after the date on which judicial proceedings begun on or before December 31, 1975" and struck out "or his delegate" after "Secretary".
Subsec. (f). Pub. L. 94–455, §1902(a)(4)(B), extended par. (2) by inserting reference to gifts, struck out par. (3) which made a cross reference to section 2 of the Act of Aug. 8, 1946 (60 Stat. 924; 5 U.S.C. 393) for construction of bequests for benefit of the library of the Post Office Department as bequests to or for the use of the United States, redesignated pars. (4)–(11) as (3)–(10), respectively, substituted "For treatment of gifts and bequests for the benefit of the Office of Naval Records and History as gifts or bequests to or for the use of the United States, see section 7222 of title 10, United States Code" for "For exemption of bequests for benefit of Office of Naval Records and Library, Navy Department, see section 2 of the Act of March 4, 1937 (50 Stat. 25; 5 U.S.C. 419b)" in par. (3) as so redesignated, substituted "For treatment of gifts and bequests to or for the benefit of National Park Foundation as gifts or bequests to or for the use of the United States, see section 8 of the Act of December 18, 1967 (16 U.S.C. 191)" for "For exemption of bequests to or for benefit of National Park Service, see section 5 of the Act of July 10, 1935 (49 Stat. 478; 16 U.S.C. 19c)" in par. (4) as so redesignated, and corrected obsolete and inaccurate references in pars. (5)–(10) as so redesignated.
1974—Subsec. (e)(3). Pub. L. 93–483 added par. (3).
1970—Subsec. (b)(2)(C). Pub. L. 91–614 substituted "6 months" for "one year".
1969—Subsec. (a)(2). Pub. L. 91–172, §201(d)(4)(A) (i), inserted non-participation and non-intervention in political campaigns as an additional qualification.
Subsec. (a)(3). Pub. L. 91–172, §201(d)(4)(A)(ii), inserted non-participation and non-intervention in political campaigns as an additional qualification.
Subsec. (e). Pub. L. 91–172, §201(d)(1), substituted substantive provisions for simple reference to sections 503 and 681 of this title in which such substantive provisions were formerly set out.
1958—Subsec. (e). Pub. L. 85–866 substituted "503" for "504".
1956—Subsec. (b). Act Aug. 6, 1956, designated existing provisions as par. (1) and added par. (2).
Statutory Notes and Related Subsidiaries
Change of Name
International Communication Agency, and Director thereof, redesignated United States Information Agency, and Director thereof, by section 303 of Pub. L. 97–241, title III, Aug. 24, 1982, 96 Stat. 291, set out as a note under section 1461 of Title 22, Foreign Relations and Intercourse. United States Information Agency (other than Broadcasting Board of Governors and International Broadcasting Bureau) abolished and functions transferred to Secretary of State, see sections 6531 and 6532 of Title 22.
Effective Date of 2018 Amendment
Amendment by Pub. L. 115–232 effective Feb. 1, 2019, with provision for the coordination of amendments and special rule for certain redesignations, see section 800 of Pub. L. 115–232, set out as a note preceding section 3001 of Title 10, Armed Forces.
Effective Date of 2007 Amendment
Amendment by Pub. L. 110–172 effective as if included in the provisions of the Pension Protection Act of 2006, Pub. L. 109–280, to which such amendment relates, see section 3(j) of Pub. L. 110–172, set out as a note under section 170 of this title.
Effective Date of 2006 Amendment
Amendment by section 1218(b) of Pub. L. 109–280 applicable to contributions, bequests, and gifts made after Aug. 17, 2006, see section 1218(d) of Pub. L. 109–280, set out as a note under section 170 of this title.
Amendment by section 1234(b) of Pub. L. 109–280 applicable to contributions made after the date which is 180 days after Aug. 17, 2006, see section 1234(d) of Pub. L. 109–280, set out as a note under section 170 of this title.
Effective Date of 1997 Amendment
Amendment by section 1089(b)(3), (5) of Pub. L. 105–34 applicable to transfers in trust after July 28, 1997, with special rule for certain decedents, see section 1089(b)(6) of Pub. L. 105–34, set out as a note under section 664 of this title.
Amendment by section 1530(c)(7) of Pub. L. 105–34 applicable to transfers made by trusts to, or for the use of, an employee stock ownership plan after Aug. 5, 1997, see section 1530(d) of Pub. L. 105–34, set out as a note under section 401 of this title.
Effective Date of 1987 Amendment
Amendment by Pub. L. 100–203 applicable with respect to activities after Dec. 22, 1987, see section 10711(c) of Pub. L. 100–203, set out as a note under section 170 of this title.
Effective Date of 1986 Amendment
Pub. L. 99–514, title XIV, §1422(e), Oct. 22, 1986, 100 Stat. 2717, provided that: "The amendments made by this section [amending this section and sections 2106 and 2522 of this title] shall apply to transfers and contributions made after December 31, 1986."
Effective Date of 1984 Amendment
Pub. L. 98–369, div. A, title X, §1022(e), July 18, 1984, 98 Stat. 1029, as amended by Pub. L. 99–514, §2, Oct. 22, 1986, 100 Stat. 2095, provided that:
"(1) Subsections (a), (b), and (c).—The amendments made by subsections (a), (b), and (c) [amending this section and sections 170 and 2522 of this title] shall apply to reformations after December 31, 1978; except that such amendments shall not apply to any reformation to which section 2055(e)(3) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] (as in effect on the day before the date of the enactment of this Act [July 18, 1984]) applies. For purposes of applying clause (iii) of section 2055(e)(3)(C) of such Code (as amended by this section), the 90th day described in such clause shall be treated as not occurring before the 90th day after the date of the enactment of this Act.
"(2) Subsection (d).—The amendment made by subsection (d) [amending section 664 of this title] shall apply to transfers after December 31, 1978.
"(3) Statute of limitations.—
"(A) In general.—If on the date of the enactment of this Act [July 18, 1984] (or at any time before the date 1 year after such date of enactment), credit or refund of any overpayment of tax attributable to the amendments made by this section is barred by any law or rule of law, such credit or refund of such overpayment may nevertheless be made if claim therefor is filed before the date 1 year after the date of the enactment of this Act.
"(B) No interest where statute closed on date of enactment.—In any case where the making of the credit or refund of the overpayment described in subparagraph (A) is barred on the date of the enactment of this Act [July 18, 1984], no interest shall be allowed with respect to such overpayment (or any related adjustment) for the period before the date 180 days after the date on which the Secretary of the Treasury (or his delegate) is notified that the reformation has occurred."
Amendment by section 1032(b)(2) of Pub. L. 98–369 applicable to taxable years beginning after July 18, 1984, see section 1032(c) of Pub. L. 98–369, set out as a note under section 170 of this title.
Effective Date of 1983 Amendment
For effective date of amendment by Pub. L. 97–473, see section 204(3) of Pub. L. 97–473, set out as an Effective Date note under section 7871 of this title.
Effective Date of 1982 Amendment
Amendment by Pub. L. 97–248 effective Oct. 5, 1976, see section 286(c) of Pub. L. 97–248, set out as a note under section 501 of this title.
Effective Date of 1981 Amendment
Pub. L. 97–34, title IV, §423(c)(1), Aug. 13, 1981, 95 Stat. 317, provided that: "The amendment made by subsection (a) [amending this section] shall apply to the estates of decedents dying after December 31, 1981."
Effective Date of 1980 Amendments
Pub. L. 96–605, title III, §301(b)(1), Dec. 28, 1980, 94 Stat. 3531, provided that: "The amendment made by subsection (a) [amending this section] shall apply in the case of decedents dying after December 31, 1969."
Amendment by Pub. L. 96–465 effective Feb. 15, 1981, except as otherwise provided, see section 2403 of Pub. L. 96–465, set out as an Effective Date note under section 3901 of Title 22, Foreign Relations and Intercourse.
Amendment by Pub. L. 96–222 effective, except as otherwise provided, as if it had been included in the provisions of the Revenue Act of 1978, Pub. L. 95–600, to which such amendment relates, see section 201 of Pub. L. 96–222, set out as a note under section 32 of this title.
Extension of 1978 Amendment; Charitable Lead Trusts and Charitable Remainder Trusts in Case of Income and Gift Taxes
Pub. L. 96–605, title III, §301(b)(2), Dec. 28, 1980, 94 Stat. 3531, provided that: "Section 514(b) [section 514(b) of Pub. L. 95–600, set out below] (and section 514(c) [section 514(c) of Pub. L. 95–600, set out below] insofar as it relates to section 514(b)) of the Revenue Act of 1978 shall be applied as if the amendment made by subsection (a) [amending this section] had been included in the amendment made by section 514(a) of such Act [section 514(a) of Pub. L. 95–600, amending this section]."
Effective Date of 1978 Amendment; Charitable Lead Trusts and Charitable Remainder Trusts in Case of Income and Gift Taxes
Pub. L. 95–600, title V, §514(c), as added by Pub. L. 96–222, title I, §105(a)(4)(B), Apr. 1, 1980, 94 Stat. 219; amended Pub. L. 99–514, §2, Oct. 22, 1986, 100 Stat. 2095, provided that:
"(1) For subsection (a).—The amendment made by subsection (a) [amending this section] shall apply in the case of decedents dying after December 31, 1969.
"(2) For subsection (b).—Subsection (b) [section 514(b) of Pub. L. 95–600, set out below]—
"(A) insofar as it relates to section 170 of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] shall apply to transfers in trust and contributions made after July 31, 1969, and
"(B) insofar as it relates to section 2522 of the Internal Revenue Code of 1986 shall apply to transfers made after December 31, 1969."
Effective Date of 1976 Amendment
Pub. L. 94–455, title XIII, §1304(c), Oct. 4, 1976, 90 Stat. 1716, provided that: "The amendments made by this section [amending this section] shall apply in the case of decedents dying after December 31, 1969."
Amendment by section 1307(d)(1)(B)(ii), (C) of Pub. L. 94–455, applicable to estates of decedents dying after Dec. 31, 1976, see section 1307(e) of Pub. L. 94–455, set out as a note under section 501 of this title.
Amendment by section 1313(b)(2) of Pub. L. 94–455 applicable on day following Oct. 4, 1976, see section 1313(d) of Pub. L. 94–455, set out as a note under section 501 of this title.
Amendment by section 1902(a)(4), (12)(A) of Pub. L. 94–455 applicable in the case of estates of decedents dying after Oct. 4, 1976, see section 1902(c)(1) of Pub. L. 94–455, set out as a note under section 2012 of this title.
Amendment by section 2009(b)(4)(B), (C) of Pub. L. 94–455 applicable with respect to transfers creating an interest in person disclaiming made after Dec. 31, 1976, see section 2009(e)(2) of Pub. L. 94–455, set out as a note under section 2518 of this title.
Amendment by section 2124(e)(2) of Pub. L. 94–455 applicable with respect to contributions or transfers made after June 13, 1976, see section 2124(e)(4) of Pub. L. 94–455, set out as a note under section 170 of this title.
Effective Date of 1974 Amendment
Pub. L. 93–483, §3(b), Oct. 26, 1974, 88 Stat. 1458, provided that: "The amendment made by subsection (a) [amending this section] shall apply with respect to estates of decedents dying after December 31, 1969."
Effective Date of 1970 Amendment
Amendment by Pub. L. 91–614 applicable with respect to decedents dying after Dec. 31, 1970, see section 101(j) of Pub. L. 91–614, set out as an Effective Date note under section 2032 of this title.
Effective Date of 1969 Amendment
Amendment by section 201(d)(1) of Pub. L. 91–172 applicable in the case of decedents dying after Dec. 31, 1969, with specified exceptions, see section 201(g)(4) of Pub. L. 91–172, set out as a note under section 170 of this title.
Amendment by section 201(d)(4)(A) of Pub. L. 91–172 applicable to gifts and transfers made after Dec. 31, 1969, see section 201(g)(4)(E) of Pub. L. 91–172, set out as a note under section 170 of this title.
Effective Date of 1956 Amendment
Act Aug. 6, 1956, ch. 1020, §3, 70 Stat. 1075, provided that: "The amendments made by this Act [amending this section and section 6503 of this title] shall apply in the case of decedents dying after August 16, 1954."
Transfer of Functions
United States International Development Cooperation Agency (other than Agency for International Development and Overseas Private Investment Corporation) abolished and functions and authorities transferred, see sections 6561 and 6562 of Title 22, Foreign Relations and Intercourse.
For transfer of functions, personnel, assets, and liabilities of the Overseas Private Investment Corporation to the United States International Development Finance Corporation and treatment of related references, see sections 9683 and 9686(d) of Title 22, Foreign Relations and Intercourse.
Special Donations
Pub. L. 99–514, title XIV, §1422(d), Oct. 22, 1986, 100 Stat. 2717, provided that: "If the Secretary of the Interior acquires by donation after December 31, 1986, a conservation easement (within the meaning of section 2(h) of S. 720, 99th Congress, 1st Session, as in effect on August 16, 1986) [see Pub. L. 99–420, Sept. 25, 1986, §102(h), 99 Stat. 955, 957], such donation shall qualify for treatment under section 2055(f) or 2522(d) of the Internal Revenue Code of 1954 [now 1986], as added by this section."
Charitable Lead Trusts and Charitable Remainder Trusts in Case of Income and Gift Taxes
Pub. L. 95–600, title V, §514(b), Nov. 6, 1978, 92 Stat. 2884, as amended by Pub. L. 99–514, §2, Oct. 22, 1986, 100 Stat. 2095, provided that: "Under regulations prescribed by the Secretary of the Treasury or his delegate, in the case of trusts created before December 31, 1977, provisions comparable to section 2055(e)(3) of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] (as amended by subsection (a)) shall be deemed to be included in sections 170 and 2522 of the Internal Revenue Code of 1986."
Extension of Period for Filing Claim for Refund
Pub. L. 94–455, title XIII, §1304(b), Oct. 4, 1976, 90 Stat. 1716, as amended by Pub. L. 99–514, §2, Oct. 22, 1986, 100 Stat. 2095, provided that: "A claim for refund or credit of an overpayment of the tax imposed by section 2001 of the Internal Revenue Code of 1986 [formerly I.R.C. 1954] allowable under section 2055(e)(3) of such Code (as amended by subsection (a)) shall not be denied because of the expiration of the time for filing such a claim under section 6511(a) if such claim is filed not later than June 30, 1978."
§2056. Bequests, etc., to surviving spouse
(a) Allowance of marital deduction
For purposes of the tax imposed by section 2001, the value of the taxable estate shall, except as limited by subsection (b), be determined by deducting from the value of the gross estate an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate.
(b) Limitation in the case of life estate or other terminable interest
(1) General rule
Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest—
(A) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money's worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and
(B) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of the interest so passing to the surviving spouse;
and no deduction shall be allowed with respect to such interest (even if such deduction is not disallowed under subparagraphs (A) and (B))—
(C) if such interest is to be acquired for the surviving spouse, pursuant to directions of the decedent, by his executor or by the trustee of a trust.
For purposes of this paragraph, an interest shall not be considered as an interest which will terminate or fail merely because it is the ownership of a bond, note, or similar contractual obligation, the discharge of which would not have the effect of an annuity for life or for a term.
(2) Interest in unidentified assets
Where the assets (included in the decedent's gross estate) out of which, or the proceeds of which, an interest passing to the surviving spouse may be satisfied include a particular asset or assets with respect to which no deduction would be allowed if such asset or assets passed from the decedent to such spouse, then the value of such interest passing to such spouse shall, for purposes of subsection (a), be reduced by the aggregate value of such particular assets.
(3) Interest of spouse conditional on survival for limited period
For purposes of this subsection, an interest passing to the surviving spouse shall not be considered as an interest which will terminate or fail on the death of such spouse if—
(A) such death will cause a termination or failure of such interest only if it occurs within a period not exceeding 6 months after the decedent's death, or only if it occurs as a result of a common disaster resulting in the death of the decedent and the surviving spouse, or only if it occurs in the case of either such event; and
(B) such termination or failure does not in fact occur.
(4) Valuation of interest passing to surviving spouse
In determining for purposes of subsection (a) the value of any interest in property passing to the surviving spouse for which a deduction is allowed by this section—
(A) there shall be taken into account the effect which the tax imposed by section 2001, or any estate, succession, legacy, or inheritance tax, has on the net value to the surviving spouse of such interest; and
(B) where such interest or property is encumbered in any manner, or where the surviving spouse incurs any obligation imposed by the decedent with respect to the passing of such interest, such encumbrance or obligation shall be taken into account in the same manner as if the amount of a gift to such spouse of such interest were being determined.
(5) Life estate with power of appointment in surviving spouse
In the case of an interest in property passing from the decedent, if his surviving spouse is entitled for life to all the income from the entire interest, or all the income from a specific portion thereof, payable annually or at more frequent intervals, with power in the surviving spouse to appoint the entire interest, or such specific portion (exercisable in favor of such surviving spouse, or of the estate of such surviving spouse, or in favor of either, whether or not in each case the power is exercisable in favor of others), and with no power in any other person to appoint any part of the interest, or such specific portion, to any person other than the surviving spouse—
(A) the interest or such portion thereof so passing shall, for purposes of subsection (a), be considered as passing to the surviving spouse, and
(B) no part of the interest so passing shall, for purposes of paragraph (1)(A), be considered as passing to any person other than the surviving spouse.
This paragraph shall apply only if such power in the surviving spouse to appoint the entire interest, or such specific portion thereof, whether exercisable by will or during life, is exercisable by such spouse alone and in all events.
(6) Life insurance or annuity payments with power of appointment in surviving spouse
In the case of an interest in property passing from the decedent consisting of proceeds under a life insurance, endowment, or annuity contract, if under the terms of the contract such proceeds are payable in installments or are held by the insurer subject to an agreement to pay interest thereon (whether the proceeds, on the termination of any interest payments, are payable in a lump sum or in annual or more frequent installments), and such installment or interest payments are payable annually or at more frequent intervals, commencing not later than 13 months after the decedent's death, and all amounts, or a specific portion of all such amounts, payable during the life of the surviving spouse are payable only to such spouse, and such spouse has the power to appoint all amounts, or such specific portion, payable under such contract (exercisable in favor of such surviving spouse, or of the estate of such surviving spouse, or in favor of either, whether or not in each case the power is exercisable in favor of others), with no power in any other person to appoint such amounts to any person other than the surviving spouse—
(A) such amounts shall, for purposes of subsection (a), be considered as passing to the surviving spouse, and
(B) no part of such amounts shall, for purposes of paragraph (1)(A), be considered as passing to any person other than the surviving spouse.
This paragraph shall apply only if, under the terms of the contract, such power in the surviving spouse to appoint such amounts, whether exercisable by will or during life, is exercisable by such spouse alone and in all events.
(7) Election with respect to life estate for surviving spouse
(A) In general
In the case of qualified terminable interest property—
(i) for purposes of subsection (a), such property shall be treated as passing to the surviving spouse, and
(ii) for purposes of paragraph (1)(A), no part of such property shall be treated as passing to any person other than the surviving spouse.
(B) Qualified terminable interest property defined
For purposes of this paragraph—
(i) In general
The term "qualified terminable interest property" means property—
(I) which passes from the decedent,
(II) in which the surviving spouse has a qualifying income interest for life, and
(III) to which an election under this paragraph applies.
(ii) Qualifying income interest for life
The surviving spouse has a qualifying income interest for life if—
(I) the surviving spouse is entitled to all the income from the property, payable annually or at more frequent intervals, or has a usufruct interest for life in the property, and
(II) no person has a power to appoint any part of the property to any person other than the surviving spouse.
Subclause (II) shall not apply to a power exercisable only at or after the death of the surviving spouse. To the extent provided in regulations, an annuity shall be treated in a manner similar to an income interest in property (regardless of whether the property from which the annuity is payable can be separately identified).
(iii) Property includes interest therein
The term "property" includes an interest in property.
(iv) Specific portion treated as separate property
A specific portion of property shall be treated as separate property.
(v) Election
An election under this paragraph with respect to any property shall be made by the executor on the return of tax imposed by section 2001. Such an election, once made, shall be irrevocable.
(C) Treatment of survivor annuities
In the case of an annuity included in the gross estate of the decedent under section 2039 (or, in the case of an interest in an annuity arising under the community property laws of a State, included in the gross estate of the decedent under section 2033) where only the surviving spouse has the right to receive payments before the death of such surviving spouse—
(i) the interest of such surviving spouse shall be treated as a qualifying income interest for life, and
(ii) the executor shall be treated as having made an election under this subsection with respect to such annuity unless the executor otherwise elects on the return of tax imposed by section 2001.
An election under clause (ii), once made, shall be irrevocable.
(8) Special rule for charitable remainder trusts
(A) In general
If the surviving spouse of the decedent is the only beneficiary of a qualified charitable remainder trust who is not a charitable beneficiary nor an ESOP beneficiary, paragraph (1) shall not apply to any interest in such trust which passes or has passed from the decedent to such surviving spouse.
(B) Definitions
For purposes of subparagraph (A)—
(i) Charitable beneficiary
The term "charitable beneficiary" means any beneficiary which is an organization described in section 170(c).
(ii) ESOP beneficiary
The term "ESOP beneficiary" means any beneficiary which is an employee stock ownership plan (as defined in section 4975(e)(7)) that holds a remainder interest in qualified employer securities (as defined in section 664(g)(4)) to be transferred to such plan in a qualified gratuitous transfer (as defined in section 664(g)(1)).
(iii) Qualified charitable remainder trust
The term "qualified charitable remainder trust" means a charitable remainder annuity trust or a charitable remainder unitrust (described in section 664).
(9) Denial of double deduction
Nothing in this section or any other provision of this chapter shall allow the value of any interest in property to be deducted under this chapter more than once with respect to the same decedent.
(10) Specific portion
For purposes of paragraphs (5), (6), and (7)(B)(iv), the term "specific portion" only includes a portion determined on a fractional or percentage basis.
(c) Definition
For purposes of this section, an interest in property shall be considered as passing from the decedent to any person if and only if—
(1) such interest is bequeathed or devised to such person by the decedent;
(2) such interest is inherited by such person from the decedent;
(3) such interest is the dower or curtesy interest (or statutory interest in lieu thereof) of such person as surviving spouse of the decedent;
(4) such interest has been transferred to such person by the decedent at any time;
(5) such interest was, at the time of the decedent's death, held by such person and the decedent (or by them and any other person) in joint ownership with right of survivorship;
(6) the decedent had a power (either alone or in conjunction with any person) to appoint such interest and if he appoints or has appointed such interest to such person, or if such person takes such interest in default on the release or nonexercise of such power; or
(7) such interest consists of proceeds of insurance on the life of the decedent receivable by such person.
Except as provided in paragraph (5) or (6) of subsection (b), where at the time of the decedent's death it is not possible to ascertain the particular person or persons to whom an interest in property may pass from the decedent, such interest shall, for purposes of subparagraphs (A) and (B) of subsection (b)(1), be considered as passing from the decedent to a person other than the surviving spouse.
(d) Disallowance of marital deduction where surviving spouse not United States citizen
(1) In general
Except as provided in paragraph (2), if the surviving spouse of the decedent is not a citizen of the United States—
(A) no deduction shall be allowed under subsection (a), and
(B) section 2040(b) shall not apply.
(2) Marital deduction allowed for certain transfers in trust
(A) In general
Paragraph (1) shall not apply to any property passing to the surviving spouse in a qualified domestic trust.
(B) Special rule
If any property passes from the decedent to the surviving spouse of the decedent, for purposes of subparagraph (A), such property shall be treated as passing to such spouse in a qualified domestic trust if—
(i) such property is transferred to such a trust before the date on which the return of the tax imposed by this chapter is made, or
(ii) such property is irrevocably assigned to such a trust under an irrevocable assignment made on or before such date which is enforceable under local law.
(3) Allowance of credit to certain spouses
If—
(A) property passes to the surviving spouse of the decedent (hereinafter in this paragraph referred to as the "first decedent"),
(B) without regard to this subsection, a deduction would be allowable under subsection (a) with respect to such property, and
(C) such surviving spouse dies and the estate of such surviving spouse is subject to the tax imposed by this chapter,
the Federal estate tax paid (or treated as paid under section 2056A(b)(7)) by the first decedent with respect to such property shall be allowed as a credit under section 2013 to the estate of such surviving spouse and the amount of such credit shall be determined under such section without regard to when the first decedent died and without regard to subsection (d)(3) of such section.
(4) Special rule where resident spouse becomes citizen
Paragraph (1) shall not apply if—
(A) the surviving spouse of the decedent becomes a citizen of the United States before the day on which the return of the tax imposed by this chapter is made, and
(B) such spouse was a resident of the United States at all times after the date of the death of the decedent and before becoming a citizen of the United States.
(5) Reformations permitted
(A) In general
In the case of any property with respect to which a deduction would be allowable under subsection (a) but for this subsection, the determination of whether a trust is a qualified domestic trust shall be made—
(i) as of the date on which the return of the tax imposed by this chapter is made, or
(ii) if a judicial proceeding is commenced on or before the due date (determined with regard to extensions) for filing such return to change such trust into a trust which is a qualified domestic trust, as of the time when the changes pursuant to such proceeding are made.
(B) Statute of limitations
If a judicial proceeding described in subparagraph (A)(ii) is commenced with respect to any trust, the period for assessing any deficiency of tax attributable to any failure of such trust to be a qualified domestic trust shall not expire before the date 1 year after the date on which the Secretary is notified that the trust has been changed pursuant to such judicial proceeding or that such proceeding has been terminated.
(Aug. 16, 1954, ch. 736, 68A Stat. 392; Pub. L. 89–621, §1(a), Oct. 4, 1966, 80 Stat. 872; Pub. L. 94–455, title XIX, §1902(a)(12)(A), title XX, §§2002(a), 2009(b)(4)(D), (E), Oct. 4, 1976, 90 Stat. 1805, 1854, 1894; Pub. L. 95–600, title VII, §702(g)(1), (2), Nov. 6, 1978, 92 Stat. 2930; Pub. L. 97–34, title IV, §403(a)(1), (d)(1), Aug. 13, 1981, 95 Stat. 301, 302; Pub. L. 97–448, title I, §104(a)(2)(A), (8), Jan. 12, 1983, 96 Stat. 2380, 2381; Pub. L. 98–369, div. A, title X, §1027(a), July 18, 1984, 98 Stat. 1031; Pub. L. 100–647, title V, §5033(a)(1), title VI, §6152(a), Nov. 10, 1988, 102 Stat. 3670, 3725; Pub. L. 101–239, title VII, §7815(d)(4)(A), (5), (6), (8), 7816(q), Dec. 19, 1989, 103 Stat. 2415, 2416, 2423; Pub. L. 101–508, title XI, §§11701(l)(1), 11702(g)(5), Nov. 5, 1990, 104 Stat. 1388–513, 1388-516; Pub. L. 102–486, title XIX, §1941(a), Oct. 24, 1992, 106 Stat. 3036; Pub. L. 105–34, title XIII, §1311(a), title XV, §1530(c)(8), Aug. 5, 1997, 111 Stat. 1044, 1078.)
Editorial Notes
Amendments
1997—Subsec. (b)(7)(C). Pub. L. 105–34, §1311(a), inserted "(or, in the case of an interest in an annuity arising under the community property laws of a State, included in the gross estate of the decedent under section 2033)" after "section 2039".
Subsec. (b)(8). Pub. L. 105–34, §1530(c)(8), amended par. (8) generally. Prior to amendment, par. (8) read as follows:
"(8) Special rule for charitable remainder trusts.—
"(A) In general.—If the surviving spouse of the decedent is the only noncharitable beneficiary of a qualified charitable remainder trust, paragraph (1) shall not apply to any interest in such trust which passes or has passed from the decedent to such surviving spouse.
"(B) Definitions.—For purposes of subparagraph (A)—
"(i) Noncharitable beneficiary.—The term 'noncharitable beneficiary' means any beneficiary of the qualified charitable remainder trust other than an organization described in section 170(c).
"(ii) Qualified charitable remainder trust.—The term 'qualified charitable remainder trust' means a charitable remainder annuity trust or charitable remainder unitrust (described in section 664)."
1992—Subsec. (b)(10). Pub. L. 102–486 added par. (10).
1990—Subsec. (d)(3). Pub. L. 101–508, §11702(g)(5), substituted "section 2056A(b)(7)" for "section 2056A(b)(6)".
Subsec. (d)(4), (5). Pub. L. 101–508, §11701(l)(1), redesignated par. (4) relating to reformations permitted as par. (5).
1989—Subsec. (b)(7)(C). Pub. L. 101–239, §7816(q), inserted "included in the gross estate of the decedent under section 2039" after "an annuity".
Subsec. (d)(2)(B). Pub. L. 101–239, §7815(d)(4)(A), substituted "Special rule" for "Property passing outside of probate estate" in heading and amended text generally. Prior to amendment, text read as follows: "If any property passes from the decedent to the surviving spouse of the decedent outside of the decedent's probate estate, for purposes of subparagraph (A), such property shall be treated as passing to such spouse in a qualified domestic trust if such property is transferred to such a trust before the day on which the return of the tax imposed by section 2001 is made."
Subsec. (d)(3). Pub. L. 101–239, §7815(d)(6), substituted "this chapter" for "section 2001" in subpar. (C) and inserted "and without regard to subsection (d)(3) of such section" after "first decedent died" in concluding provisions.
Subsec. (d)(4). Pub. L. 101–239, §7815(d)(8), added par. (4) relating to reformations permitted.
Pub. L. 101–239, §7815(d)(5), added par. (4) relating to special rule where resident spouse becomes citizen.
1988—Subsec. (b)(7)(C). Pub. L. 100–647, §6152(a), added subpar. (C).
Subsec. (d). Pub. L. 100–647, §5033(a)(1), added subsec. (d).
1984—Subsec. (b)(7)(B)(ii)(I). Pub. L. 98–369 inserted ", or has a usufruct interest for life in the property".
1983—Subsec. (b)(7)(B)(ii). Pub. L. 97–448, §104(a)(8), inserted provision that an annuity shall be treated in a manner similar to an income interest in property (regardless of whether the property from which the annuity is payable can be separately identified).
Subsec. (b)(9). Pub. L. 97–448, §104(a)(2)(A), added par. (9).
1981—Subsec. (a). Pub. L. 97–34, §403(a)(1)(B), substituted "subsection (b)" for "subsections (b) and (c)".
Subsec. (b)(7), (8). Pub. L. 97–34, §403(d)(1), added pars. (7) and (8).
Subsecs. (c), (d). Pub. L. 97–34, §403(a)(1)(A), redesignated subsec. (d) as (c) and struck out former subsec. (c) relating to limitation on aggregate of deductions.
1978—Subsec. (c)(1)(B). Pub. L. 95–600 inserted in cl. (ii) "required to be included in a gift tax return" after "with respect to any gift" and inserted following cl. (ii) "For purposes of this subparagraph, a gift which is includible in the gross estate of the donor by reason of section 2035 shall not be taken into account".
1976—Subsec. (a). Pub. L. 94–455, §2009(b)(4)(E), substituted "subsections (b) and (c)" for "subsections (b), (c), and (d)".
Subsec. (c)(1). Pub. L. 94–455, §2002(a), designated existing provisions as subpar. (A), substituted provisions that the aggregate amount of the deductions allowed under this section (computed without regard to this subsection) shall not exceed the greater of $250,000 or 50 percent of the value of the adjusted gross estate as defined in par. (2) for provisions that the aggregate amount of the deductions allowed under this section (computed without regard to this subsection) shall not exceed 50 percent of the value of the adjusted gross estate as defined in par. (2), and added subpars. (B) and (C).
Subsec. (c)(2)(B). Pub. L. 94–455, §1902(a)(12)(A), struck out "Territory," after "State," in provisions preceding cl. (i).
Subsecs. (d), (e). Pub. L. 94–455, §2009(b)(4)(D), redesignated subsec. (e) as (d). Former subsec. (d), which related to disclaimers by the surviving spouse or by other persons, was struck out.
1966—Subsec. (d)(2). Pub. L. 89–621 provided that if the disclaimer is made by the person before the date prescribed for the filing of the estate tax return and if the person does not accept the interest before making the disclaimer, the interest shall, for purposes of this section, be considered as passing from the decedent to the surviving spouse.
Statutory Notes and Related Subsidiaries
Effective Date of 1997 Amendment
Pub. L. 105–34, title XIII, §1311(b), Aug. 5, 1997, 111 Stat. 1044, provided that: "The amendment made by this section [amending this section] shall apply to estates of decedents dying after the date of the enactment of this Act [Aug. 5, 1997]."
Amendment by section 1530(c)(8) of Pub. L. 105–34 applicable to transfers made by trusts to, or for the use of, an employee stock ownership plan after Aug. 5, 1997, see section 1530(d) of Pub. L. 105–34, set out as a note under section 401 of this title.
Effective Date of 1992 Amendment
Pub. L. 102–486, title XIX, §1941(c), Oct. 24, 1992, 106 Stat. 3036, provided that:
"(1) Subsection (a).—
"(A) In general.—Except as provided in subparagraph (B), the amendment made by subsection (a) [amending this section] shall apply to the estates of decedents dying after the date of the enactment of this Act [Oct. 24, 1992].
"(B) Exception.—The amendment made by subsection (a) shall not apply to any interest in property which passes (or has passed) to the surviving spouse of the decedent pursuant to a will (or revocable trust) in existence on the date of the enactment of this Act if—
"(i) the decedent dies on or before the date 3 years after such date of enactment, or
"(ii) the decedent was, on such date of enactment, under a mental disability to change the disposition of his property and did not regain his competence to dispose of such property before the date of his death.
The preceding sentence shall not apply if such will (or revocable trust) is amended at any time after such date of enactment in any respect which will increase the amount of the interest which so passes or alters the terms of the transfer by which the interest so passes.
"(2) Subsection (b).—The amendments made by subsection (b) [amending section 2523 of this title] shall apply to gifts made after the date of the enactment of this Act [Oct. 24, 1992]."
Effective Date of 1990 Amendment
Amendment by section 11701(l)(1) of Pub. L. 101–508 effective, except as otherwise provided, as if included in the provision of the Revenue Reconciliation Act of 1989, Pub. L. 101–239, title VII, to which such amendment relates, see section 11701(n) of Pub. L. 101–508, set out as a note under section 42 of this title.
Amendment by section 11702(g)(5) of Pub. L. 101–508 effective as if included in the provision of the Technical and Miscellaneous Revenue Act of 1988, Pub. L. 100–647, to which such amendment relates, see section 11702(j) of Pub. L. 101–508, set out as a note under section 59 of this title.
Effective Date of 1989 Amendment
Pub. L. 101–239, title VII, §7815(d)(4)(B), Dec. 19, 1989, 103 Stat. 2415, provided that: "In the case of the estate of a decedent dying before the date of the enactment of this Act [Dec. 19, 1989], the period during which the transfer (or irrevocable assignment) referred to in section 2056(d)(2)(B) of the Internal Revenue Code of 1986 (as amended by subparagraph (A)) may be made shall not expire before the date 1 year after such date of enactment."
Amendment by Pub. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Technical and Miscellaneous Revenue Act of 1988, Pub. L. 100–647, to which such amendment relates, see section 7817 of Pub. L. 101–239, set out as a note under section 1 of this title.
Effective Date of 1988 Amendment
Pub. L. 100–647, title V, §5033(d)(1), Nov. 10, 1988, 102 Stat. 3673, provided that: "The amendments made by subsections (a) and (c) [enacting section 2056A of this title and amending this section and section 2106 of this title] shall apply to estates of the decedents dying after the date of the enactment of this Act [Nov. 10, 1988]."
Pub. L. 100–647, title VI, §6152(c), Nov. 10, 1988, 102 Stat. 3725, provided that:
"(1) In general.—Except as otherwise provided in this subsection—
"(A) the amendment made by subsection (a) [amending this section] shall apply with respect to decedents dying after December 31, 1981, and
"(B) the amendment made by subsection (b) [amending section 2523 of this title] shall apply to transfers after December 31, 1981.
"(2) Not to apply to extent inconsistent with prior return.—In the case of any estate or gift tax return filed before the date of the enactment of this Act [Nov. 10, 1988], the amendments made by this section [amending this section and section 2523 of this title] shall not apply to the extent such amendments would be inconsistent with the treatment of the annuity on such return unless the executor or donor (as the case may be) otherwise elects under this paragraph before the day 2 years after the date of the enactment of this Act.
"(3) Extension of time for election out.—The time for making an election under section 2056(b)(7)(C)(ii) or 2523(f)(6)(B) of the 1986 Code (as added by this subsection) shall not expire before the day 2 years after the date of the enactment of this Act (and, if such election is made within the time permitted under this paragraph, the requirement of such section 2056(b)(7)(C)(ii) that it be made on the return shall not apply)."
Effective Date of 1984 Amendment
Amendment by Pub. L. 98–369 effective as if included in the amendment made by section 403 of the Economic Recovery Tax Act of 1981 [Pub. L. 97–34, see Effective Date of 1981 Amendment note below], see section 1027(c) of Pub. L. 98–369, set out as a note under section 2053 of this title.
Effective Date of 1983 Amendment
Amendment by Pub. L. 97–448 effective, except as otherwise provided, as if it had been included in the provision of the Economic Recovery Tax Act of 1981, Pub. L. 97–34, to which such amendment relates, see section 109 of Pub. L. 97–448, set out as a note under section 1 of this title.
Effective Date of 1981 Amendment
Pub. L. 97–34, title IV, §403(e), Aug. 13, 1981, 95 Stat. 305, as amended by Pub. L. 97–448, title I, §104(a)(10), Jan. 12, 1983, 96 Stat. 2381; Pub. L. 99–514, §2, Oct. 22, 1986, 100 Stat. 2095, provided that:
"(1) Except as otherwise provided in this subsection, the amendments made by this section [enacting sections 2044 and 2207A of this title, amending this section and sections 691, 2012, 2035, 2040, 2045, 2046, 2519, 2523, 2602, and 6019 of this title, and repealing sections 2515 and 2515A of this title] shall apply to the estates of decedents dying after December 31, 1981.
"(2) The amendments made by paragraphs (1), (2), and (3)(A) of subsection (b) [amending sections 2523 and 6019 of this title], subparagraphs (B) and (C) of subsection (c)(3) [amending section 6019 of this title and repealing sections 2515 and 2515A of this title], and paragraphs (2) and (3)(B) of subsection (d), and paragraph (4)(A) of subsection (d) (to the extent related to the tax imposed by chapter 12 of the Internal Revenue Code of 1986 [formerly I.R.C. 1954]) [enacting sections 2207A and 2519 of this title and amending section 2523 of this title] shall apply to gifts made after December 31, 1981.
"(3) If—
"(A) the decedent dies after December 31, 1981,
"(B) by reason of the death of the decedent property passes from the decedent or is acquired from the decedent under a will executed before the date which is 30 days after the date of the enactment of this Act [Aug. 13, 1981], or a trust created before such date, which contains a formula expressly providing that the spouse is to receive the maximum amount of property qualifying for the marital deduction allowable by Federal law,
"(C) the formula referred to in subparagraph (B) was not amended to refer specifically to an unlimited marital deduction at any time after the date which is 30 days after the date of enactment of this Act [Aug. 13, 1981], and before the death of the decedent, and
"(D) the State does not enact a statute applicable to such estate which construes this type of formula as referring to the marital deduction allowable by Federal law as amended by subsection (a),
then the amendment made by subsection (a) shall not apply to the estate of such decedent."
Effective Date of 1978 Amendment
Pub. L. 95–600, title VII, §702(g)(3), Nov. 6, 1978, 92 Stat. 2930, provided that: "The amendment made by this subsection [amending this section] shall apply to the estates of decedents dying after December 31, 1976."
Effective Date of 1976 Amendment
Amendment by section 1902(a)(12)(A) of Pub. L. 94–455 applicable to estates of decedents dying after Oct. 4, 1976, see section 1902(c)(1) of Pub. L. 94–455, set out as a note under section 2012 of this title.
Pub. L. 94–455, title XX, §2002(d)(1), Oct. 4, 1976, 90 Stat. 1856, provided that:
"(1)(A) Except as provided in subparagraph (B), the amendment made by subsection (a) [amending this section] shall apply with respect to the estates of decedents dying after December 31, 1976.
"(B) If—
"(i) the decedent dies after December 31, 1976, and before January 1, 1979,
"(ii) by reason of the death of the decedent property passes from the decedent or is acquired from the decedent under a will executed before January 1, 1977, or a trust created before such date, which contains a formula expressly providing that the spouse is to receive the maximum amount of property qualifying for the marital deduction allowable by Federal law,
"(iii) the formula referred to in clause (ii) was not amended at any time after December 31, 1976, and before the death of the decedent, and
"(iv) the State does not enact a statute applicable to such estate which construes this type of formula as referring to the marital deduction allowable by Federal law as amended by subsection (a),
then the amendment made by subsection (a) shall not apply to the estate of such decedent."
Amendment by section 2009(b)(4)(D), (E) of Pub. L. 94–455 applicable with respect to transfers creating an interest in person disclaiming made after Dec. 31, 1976, see section 2009(e)(2) of Pub. L. 94–455, set out as an Effective Date note under section 2518 of this title.
Effective Date of 1966 Amendment
Pub. L. 89–621, §1(b), Oct. 4, 1966, 80 Stat. 872, provided that: "The amendment made by subsection (a) [amending this section] shall apply with respect to estates of decedents dying on or after the date of the enactment of this Act [Oct. 4, 1966]."
Commencement of Judicial Proceeding To Reform Trust
Pub. L. 101–508, title XI, §11701(l)(2), Nov. 5, 1990, 104 Stat. 1388–513, provided that: "The period during which a proceeding may be commenced under section 2056(d)(5)(A)(ii) of the Internal Revenue Code of 1986 (as redesignated by paragraph (1)) shall not expire before the date 6 months after the date of the enactment of this Act [Nov. 5, 1990]."
Application of Amendments by Section 5033 of Pub. L. 100–647 to Estates of, or Gifts by, Noncitizen and Nonresident Individuals
Pub. L. 101–239, title VII, §7815(d)(14), Dec. 19, 1989, 103 Stat. 2418, provided that: "In the case of the estate of, or gift by, an individual who was not a citizen or resident of the United States but was a resident of a foreign country with which the United States has a tax treaty with respect to estate, inheritance, or gift taxes, the amendments made by section 5033 of the 1988 Act [Pub. L. 100–647, enacting section 2056A of this title and amending this section and sections 2106 and 2523 of this title] shall not apply to the extent such amendments would be inconsistent with the provisions of such treaty relating to estate, inheritance, or gift tax marital deductions. In the case of the estate of an individual dying before the date 3 years after the date of the enactment of this Act [Dec. 19, 1989], or a gift by an individual before the date 3 years after the date of the enactment of this Act, the requirement of the preceding sentence that the individual not be a citizen or resident of the United States shall not apply."
Disclaimer of Interest Arising From Estates of Persons Dying Before Oct. 4, 1966, Having Estate Tax Return Filing Date On or After Jan. 1, 1965
Pub. L. 89–621, §1(c), Oct. 4, 1966, 80 Stat. 872, provided that in the case of a decedent dying before Oct. 4, 1966, for which the date prescribed for filing estate tax return was on or after Jan. 1, 1965, and as a result of a disclaimer, the surviving spouse became entitled to receive such interest, then such interest was to be considered as having passed from the decedent to the surviving spouse under certain conditions, with a limit on the amount of deductions allowed.
§2056A. Qualified domestic trust
(a) Qualified domestic trust defined
For purposes of this section and section 2056(d), the term "qualified domestic trust" means, with respect to any decedent, any trust if—
(1) the trust instrument—
(A) except as provided in regulations prescribed by the Secretary, requires that at least 1 trustee of the trust be an individual citizen of the United States or a domestic corporation, and
(B) provides that no distribution (other than a distribution of income) may be made from the trust unless a trustee who is an individual citizen of the United States or a domestic corporation has the right to withhold from such distribution the tax imposed by this section on such distribution,
(2) such trust meets such requirements as the Secretary may by regulations prescribe to ensure the collection of any tax imposed by subsection (b), and
(3) an election under this section by the executor of the decedent applies to such trust.
(b) Tax treatment of trust
(1) Imposition of estate tax
There is hereby imposed an estate tax on—
(A) any distribution before the date of the death of the surviving spouse from a qualified domestic trust, and
(B) the value of the property remaining in a qualified domestic trust on the date of the death of the surviving spouse.
(2) Amount of tax
(A) In general
In the case of any taxable event, the amount of the estate tax imposed by paragraph (1) shall be the amount equal to—
(i) the tax which would have been imposed under section 2001 on the estate of the decedent if the taxable estate of the decedent had been increased by the sum of—
(I) the amount involved in such taxable event, plus
(II) the aggregate amount involved in previous taxable events with respect to qualified domestic trusts of such decedent, reduced by
(ii) the tax which would have been imposed under section 2001 on the estate of the decedent if the taxable estate of the decedent had been increased by the amount referred to in clause (i)(II).
(B) Tentative tax where tax of decedent not finally determined
(i) In general
If the tax imposed on the estate of the decedent under section 2001 is not finally determined before the taxable event, the amount of the tax imposed by paragraph (1) on such event shall be determined by using the highest rate of tax in effect under section 2001 as of the date of the decedent's death.
(ii) Refund of excess when tax finally determined
If—
(I) the amount of the tax determined under clause (i), exceeds
(II) the tax determined under subparagraph (A) on the basis of the final determination of the tax imposed by section 2001 on the estate of the decedent,
such excess shall be allowed as a credit or refund (with interest) if claim therefor is filed not later than 1 year after the date of such final determination.
(C) Special rule where decedent has more than 1 qualified domestic trust
If there is more than 1 qualified domestic trust with respect to any decedent, the amount of the tax imposed by paragraph (1) with respect to such trusts shall be determined by using the highest rate of tax in effect under section 2001 as of the date of the decedent's death (and the provisions of paragraph (3)(B) shall not apply) unless, pursuant to a designation made by the decedent's executor, there is 1 person—
(i) who is an individual citizen of the United States or a domestic corporation and is responsible for filing all returns of tax imposed under paragraph (1) with respect to such trusts and for paying all tax so imposed, and
(ii) who meets such requirements as the Secretary may by regulations prescribe.
(3) Certain lifetime distributions exempt from tax
(A) Income distributions
No tax shall be imposed by paragraph (1)(A) on any distribution of income to the surviving spouse.
(B) Hardship exemption
No tax shall be imposed by paragraph (1)(A) on any distribution to the surviving spouse on account of hardship.
(4) Tax where trust ceases to qualify
If any qualified domestic trust ceases to meet the requirements of paragraphs (1) and (2) of subsection (a), the tax imposed by paragraph (1) shall apply as if the surviving spouse died on the date of such cessation.
(5) Due date
(A) Tax on distributions
The estate tax imposed by paragraph (1)(A) shall be due and payable on the 15th day of the 4th month following the calendar year in which the taxable event occurs; except that the estate tax imposed by paragraph (1)(A) on distributions during the calendar year in which the surviving spouse dies shall be due and payable not later than the date on which the estate tax imposed by paragraph (1)(B) is due and payable.
(B) Tax at death of spouse
The estate tax imposed by paragraph (1)(B) shall be due and payable on the date 9 months after the date of such death.
(6) Liability for tax
Each trustee shall be personally liable for the amount of the tax imposed by paragraph (1). Rules similar to the rules of section 2204 shall apply for purposes of the preceding sentence.
(7) Treatment of tax
For purposes of section 2056(d), any tax paid under paragraph (1) shall be treated as a tax paid under section 2001 with respect to the estate of the decedent.
(8) Lien for tax
For purposes of section 6324, any tax imposed by paragraph (1) shall be treated as an estate tax imposed under this chapter with respect to a decedent dying on the date of the taxable event (and the property involved shall be treated as the gross estate of such decedent).
(9) Taxable event
The term "taxable event" means the event resulting in tax being imposed under paragraph (1).
(10) Certain benefits allowed
(A) In general
If any property remaining in the qualified domestic trust on the date of the death of the surviving spouse is includible in the gross estate of such spouse for purposes of this chapter (or would be includible if such spouse were a citizen or resident of the United States), any benefit which is allowable (or would be allowable if such spouse were a citizen or resident of the United States) with respect to such property to the estate of such spouse under section 2014, 2032, 2032A, 2055, 2056, 2058, or 6166 shall be allowed for purposes of the tax imposed by paragraph (1)(B).
(B) Section 303
If the estate of the surviving spouse meets the requirements of section 303 with respect to any property described in subparagraph (A), for purposes of section 303, the tax imposed by paragraph (1)(B) with respect to such property shall be treated as a Federal estate tax payable with respect to the estate of the surviving spouse.
(C) Section 6161(a)(2)
The provisions of section 6161(a)(2) shall apply with respect to the tax imposed by paragraph (1)(B), and the reference in such section to the executor shall be treated as a reference to the trustees of the trust.
(11) Special rule where distribution tax paid out of trust
For purposes of this subsection, if any portion of the tax imposed by paragraph (1)(A) with respect to any distribution is paid out of the trust, an amount equal to the portion so paid shall be treated as a distribution described in paragraph (1)(A).
(12) Special rule where spouse becomes citizen
If the surviving spouse of the decedent becomes a citizen of the United States and if—
(A) such spouse was a resident of the United States at all times after the date of the death of the decedent and before such spouse becomes a citizen of the United States,
(B) no tax was imposed by paragraph (1)(A) with respect to any distribution before such spouse becomes such a citizen, or
(C) such spouse elects—
(i) to treat any distribution on which tax was imposed by paragraph (1)(A) as a taxable gift made by such spouse for purposes of—
(I) section 2001, and
(II) determining the amount of the tax imposed by section 2501 on actual taxable gifts made by such spouse during the year in which the spouse becomes a citizen or any subsequent year, and
(ii) to treat any reduction in the tax imposed by paragraph (1)(A) by reason of the credit allowable under section 2010 with respect to the decedent as a credit allowable to such surviving spouse under section 2505 for purposes of determining the amount of the credit allowable under section 2505 with respect to taxable gifts made by the surviving spouse during the year in which the spouse becomes a citizen or any subsequent year,
paragraph (1)(A) shall not apply to any distributions after such spouse becomes such a citizen (and paragraph (1)(B) shall not apply).
(13) Coordination with section 1015
For purposes of section 1015, any distribution on which tax is imposed by paragraph (1)(A) shall be treated as a transfer by gift, and any tax paid under paragraph (1)(A) shall be treated as a gift tax.
(14) Coordination with terminable interest rules
Any interest in a qualified domestic trust shall not be treated as failing to meet the requirements of paragraph (5) or (7) of section 2056(b) merely by reason of any provision of the trust instrument permitting the withholding from any distribution of an amount to pay the tax imposed by paragraph (1) on such distribution.
(15) No tax on certain distributions
No tax shall be imposed by paragraph (1) on any distribution to the surviving spouse to the extent such distribution is to reimburse such surviving spouse for any tax imposed by subtitle A on any item of income of the trust to which such surviving spouse is not entitled under the terms of the trust.
(c) Definitions
For purposes of this section—
(1) Property includes interest therein
The term "property" includes an interest in property.
(2) Income
Except as provided in regulations, the term "income" has the meaning given to such term by section 643(b).
(3) Trust
To the extent provided in regulations prescribed by the Secretary, the term "trust" includes other arrangements which have substantially the same effect as a trust.
(d) Election
An election under this section with respect to any trust shall be made by the executor on the return of the tax imposed by section 2001. Such an election, once made, shall be irrevocable. No election may be made under this section on any return if such return is filed more than one year after the time prescribed by law (including extensions) for filing such return.
(e) Regulations
The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this section, including regulations under which there may be treated as a qualified domestic trust any annuity or other payment which is includible in the decedent's gross estate and is by its terms payable for life or a term of years.
(Added Pub. L. 100–647, title V, §5033(a)(2), Nov. 10, 1988, 102 Stat. 3670; amended Pub. L. 101–239, title VII, §7815(d)(7), (9)–(13), (15), Dec. 19, 1989, 103 Stat. 2415–2418; Pub. L. 101–508, title XI, §§11702(g)(2)(A), (B), (3)(A), (4), 11704(a)(15), Nov. 5, 1990, 104 Stat. 1388–515, 1388-516, 1388-518; Pub. L. 105–34, title XIII, §§1312(a), 1314(a), Aug. 5, 1997, 111 Stat. 1044, 1045; Pub. L. 107–16, title V, §532(c)(6), June 7, 2001, 115 Stat. 74.)
Editorial Notes
Amendments
2001—Subsec. (b)(10)(A). Pub. L. 107–16 struck out "2011," before "2014," and inserted "2058," after "2056,".
1997—Subsec. (a)(1)(A). Pub. L. 105–34, §1314(a), inserted "except as provided in regulations prescribed by the Secretary," before "requires".
Subsec. (c)(3). Pub. L. 105–34, §1312(a), added par. (3).
1990—Subsec. (a)(1). Pub. L. 101–508, §11702(g)(2)(A), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "the trust instrument requires that at least 1 trustee of the trust be an individual citizen of the United States or a domestic corporation and that no distribution from the trust may be made without the approval of such a trustee,".
Subsec. (b)(2)(B)(ii). Pub. L. 101–508, §11704(a)(15), substituted "therefor" for "therefore" in concluding provisions.
Subsec. (b)(10)(A). Pub. L. 101–508, §11702(g)(4), substituted "section 2011, 2014, 2032" for "section 2032".
Subsec. (b)(14), (15). Pub. L. 101–508, §11702(g)(2)(B), added pars. (14) and (15).
Subsec. (d). Pub. L. 101–508, §11702(g)(3)(A), inserted at end "No election may be made under this section on any return if such return is filed more than one year after the time prescribed by law (including extensions) for filing such return."
1989—Subsec. (a)(1). Pub. L. 101–239, §7815(d)(7)(A)(i), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "the trust instrument requires that all trustees of the trust be individual citizens of the United States or domestic corporations,".
Subsec. (a)(2) to (4). Pub. L. 101–239, §7815(d)(7)(A)(ii), redesignated pars. (3) and (4) as (2) and (3), respectively, and struck out former par. (2) which read as follows: "the surviving spouse of the decedent is entitled to all the income from the property in such trust, payable annually or at more frequent intervals,".
Subsec. (b)(1)(A). Pub. L. 101–239, §7815(d)(7)(C), struck out "other than a distribution of income required under subsection (a)(2)" after "qualified domestic trust".
Subsec. (b)(2)(B)(ii). Pub. L. 101–239, §7815(d)(11), inserted "(with interest)" after "credit or refund".
Subsec. (b)(2)(C). Pub. L. 101–239, §7815(d)(12), added subpar. (C).
Subsec. (b)(3). Pub. L. 101–239, §7815(d)(7)(B), added par. (3). Former par. (3) redesignated (4).
Subsec. (b)(4). Pub. L. 101–239, §7815(d)(7)(D), amended par. (4) generally. Prior to amendment, par. (4) read as follows: "If any person other than an individual citizen of the United States or a domestic corporation becomes a trustee of a qualified domestic trust (or such trust ceases to meet the requirements of subsection (a)(3)), the tax imposed by paragraph (1) shall apply as if the surviving spouse died on the date on which such person became such a trustee or the date of such cessation, as the case may be."
Pub. L. 101–239, §7815(d)(7)(B), redesignated par. (3) as (4). Former par. (4) redesignated (5).
Subsec. (b)(5). Pub. L. 101–239, §7815(d)(15), amended par. (5) generally. Prior to amendment, par. (5) read as follows: "The estate tax imposed by paragraph (1) shall be due and payable on the 15th day of the 4th month following the calendar year in which the taxable event occurs."
Pub. L. 101–239, §7815(d)(7)(B), redesignated par. (4) as (5). Former par. (5) redesignated (6).
Subsec. (b)(6) to (9). Pub. L. 101–239, §7815(d)(7)(B), redesignated pars. (5) to (8) as (6) to (9), respectively.
Subsec. (b)(10) to (13). Pub. L. 101–239, §7815(d)(9), added pars. (10) to (13).
Subsec. (c)(2). Pub. L. 101–239, §7815(d)(10), substituted "Except as provided in regulations, the term" for "The term".
Subsec. (e). Pub. L. 101–239, §7815(d)(13), added subsec. (e).
Statutory Notes and Related Subsidiaries
Effective Date of 2001 Amendment
Amendment by Pub. L. 107–16 applicable to estates of decedents dying, and generation-skipping transfers, after Dec. 31, 2004, see section 532(d) of Pub. L. 107–16, set out as a note under section 2012 of this title.
Effective Date of 1997 Amendment
Pub. L. 105–34, title XIII, §1312(b), Aug. 5, 1997, 111 Stat. 1045, provided that: "The amendment made by this section [amending this section] shall apply to estates of decedents dying after the date of the enactment of this Act [Aug. 5, 1997]."
Pub. L. 105–34, title XIII, §1314(b), Aug. 5, 1997, 111 Stat. 1045, provided that: "The amendment made by this section [amending this section] shall apply to estates of decedents dying after the date of the enactment of this Act [Aug. 5, 1997]."
Effective Date of 1990 Amendment
Amendment by section 11702(g)(2), (4) of Pub. L. 101–508 effective as if included in the provision of the Technical and Miscellaneous Revenue Act of 1988, Pub. L. 100–647, to which such amendment relates, see section 11702(j) of Pub. L. 101–508, set out as a note under section 59 of this title.
Pub. L. 101–508, title XI, §11702(g)(3)(B), Nov. 5, 1990, 104 Stat. 1388–516, provided that: "The amendment made by subparagraph (A) [amending this section] shall not apply to any election made before the date 6 months after the date of the enactment of this Act [Nov. 5, 1990]."
Effective Date of 1989 Amendment
Amendment by Pub. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Technical and Miscellaneous Revenue Act of 1988, Pub. L. 100–647, to which such amendment relates, see section 7817 of Pub. L. 101–239, set out as a note under section 1 of this title.
Effective Date
Section applicable to estates of decedents dying after Nov. 10, 1988, see section 5033(d)(1) of Pub. L. 100–647, set out as an Effective Date of 1988 Amendment note under section 2056 of this title.
Transitional Rule
Pub. L. 105–34, title XIII, §1303, Aug. 5, 1997, 111 Stat. 1039, provided that:
"(a) General Rule.—In the case of any trust created under an instrument executed before the date of the enactment of the Revenue Reconciliation Act of 1990 [Nov. 5, 1990], such trust shall be treated as meeting the requirements of paragraph (1) of section 2056A(a) of the Internal Revenue Code of 1986 if the trust instrument requires that all trustees of the trust be individual citizens of the United States or domestic corporations.
"(b) Effective Date.—The provisions of subsection (a) shall take effect as if included in the provisions of section 11702(g) of the Revenue Reconciliation Act of 1990 [Pub. L. 101–508]."
Application of Amendments by Section 5033 of Pub. L. 100–647 to Estates of, or Gifts by, Noncitizen and Nonresident Individuals
For provisions directing that in the case of the estate of, or gift by, an individual who was not a citizen or resident of the United States but was a resident of a foreign country with which the United States has a tax treaty with respect to estate, inheritance, or gift taxes, this section shall not apply to the extent such section would be inconsistent with the provisions of such treaty relating to estate, inheritance, or gift tax marital deductions, but that in the case of the estate of an individual dying before the date 3 years after Dec. 19, 1989, or a gift by an individual before the date 3 years after Dec. 19, 1989, the requirement of the preceding provision that the individual not be a citizen or resident of the United States shall not apply, see section 7815(d)(14) of Pub. L. 101–239, set out as a note under section 2056 of this title.
Section, added Pub. L. 105–34, title V, §502(a), Aug. 5, 1997, 111 Stat. 847, §2033A; renumbered §2057 and amended Pub. L. 105–206, title VI, §6007(b)(1)(A)–(D), (2)–(7), July 22, 1998, 112 Stat. 807–809; Pub. L. 107–16, title V, §521(d), June 7, 2001, 115 Stat. 72; Pub. L. 108–311, title II, §207(23), Oct. 4, 2004, 118 Stat. 1178, related to deduction for qualified family-owned business interests of a decedent.
A prior section 2057, added Pub. L. 99–514, title XI, §1172(a), Oct. 22, 1986, 100 Stat. 2513; amended Pub. L. 100–203, title X, §§10411(a), 10412(a), Dec. 22, 1987, 101 Stat. 1330–432, 1330-433; Pub. L. 100–647, title I, §1011B(g)(3), Nov. 10, 1988, 102 Stat. 3490, related to sales of employer securities to employee stock ownership plans or worker-owned cooperatives, prior to repeal by Pub. L. 101–239, title VII, §7304(a)(1), (3), Dec. 19, 1989, 103 Stat. 2352, 2353, applicable to estates of decedents dying after Dec. 19, 1989.
Another prior section 2057, added Pub. L. 94–455, title XX, §2007(a), Oct. 4, 1976, 90 Stat. 1890; amended Pub. L. 95–600, title VII, §702(l)(1), (2), Nov. 6, 1978, 92 Stat. 2934, 2935, related to bequests, etc., to certain minor children, prior to repeal by Pub. L. 97–34, title IV, §427(a), (c), Aug. 13, 1981, 95 Stat. 3181, applicable to estates of decedents dying after Dec. 31, 1981.
Statutory Notes and Related Subsidiaries
Effective Date of Repeal
Repeal effective Dec. 19, 2014, subject to a savings provision, see section 221(b) of Pub. L. 113–295, set out as an Effective Date of 2014 Amendment note under section 1 of this title.
§2058. State death taxes
(a) Allowance of deduction
For purposes of the tax imposed by section 2001, the value of the taxable estate shall be determined by deducting from the value of the gross estate the amount of any estate, inheritance, legacy, or succession taxes actually paid to any State or the District of Columbia, in respect of any property included in the gross estate (not including any such taxes paid with respect to the estate of a person other than the decedent).
(b) Period of limitations
The deduction allowed by this section shall include only such taxes as were actually paid and deduction therefor claimed before the later of—
(1) 4 years after the filing of the return required by section 6018, or
(2) if—
(A) a petition for redetermination of a deficiency has been filed with the Tax Court within the time prescribed in section 6213(a), the expiration of 60 days after the decision of the Tax Court becomes final,
(B) an extension of time has been granted under section 6161 or 6166 for payment of the tax shown on the return, or of a deficiency, the date of the expiration of the period of the extension, or
(C) a claim for refund or credit of an overpayment of tax imposed by this chapter has been filed within the time prescribed in section 6511, the latest of the expiration of—
(i) 60 days from the date of mailing by certified mail or registered mail by the Secretary to the taxpayer of a notice of the disallowance of any part of such claim,
(ii) 60 days after a decision by any court of competent jurisdiction becomes final with respect to a timely suit instituted upon such claim, or
(iii) 2 years after a notice of the waiver of disallowance is filed under section 6532(a)(3).
Notwithstanding sections 6511 and 6512, refund based on the deduction may be made if the claim for refund is filed within the period provided in the preceding sentence. Any such refund shall be made without interest.
(Added Pub. L. 107–16, title V, §532(b), June 7, 2001, 115 Stat. 73.)
Statutory Notes and Related Subsidiaries
Effective Date
Section applicable to estates of decedents dying, and generation-skipping transfers, after Dec. 31, 2004, see section 532(d) of Pub. L. 107–16, set out as an Effective Date of 2001 Amendment note under section 2012 of this title.