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GiftLaw Note:Decedent died on Date 1, survived by Spouse. In order for Spouse to benefit from Decedent’s deceased spouse unused exemption (DSUE), Decedent’s estate was required to file Form 706 within nine months of Decedent’s death. Decedent’s estate failed to file Form 706 to make the portability election before the due date. Decedent’s estate represented that the value of Decedent’s gross estate was less than the basic exclusion amount in the year of Decedent’s death, including any taxable gifts made during Decedent’s lifetime. The estate of Decedent requested an extension of time to make the DSUE portability election.Section 6108(a)(1) requires the filing of an estate tax return where the decedent’s gross estate exceeds the basic exclusion amount in effect for the calendar year of the decedent’s death. Here, Decedent’s estate was not required to file an estate tax return. As such, the Commissioner has discretion, under Sec. 301.9100-3, to grant Decedent’s estate an extension of time to elect portability. Section 301.9100-3 provides that such an extension may be granted if the Commissioner finds that the taxpayer acted reasonably and in good faith and that granting relief will not prejudice the interests of the government. Here, the Commissioner found that the requirements of Sec. 301.9100-3 were satisfied. Therefore, Decedent’s estate was granted an extension of time to make the DSUE portability election.

Source: Tax News – Private Letter Ruling

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David R. Duringer, JD, LL.M, is a concealed firearm instructor and tax lawyer specializing in business and estate planning; licensed to practice law in the states of California and Washington. He is managing shareholder at Protective Law Corporation, serving Southern California from its Laguna Hills (Orange County) headquarters and satellite offices in San Diego County (Coronado and Carlsbad).

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