Annotations from New York City (Manhattan & Brooklyn) Tax & Estate Planning Attorney Pinni Bohm, J.D., LL.M. (Tax) | Wills, Trusts, Power of Attorney, Health Proxy, Tax Planning | New York City Estate Planning, Estate & Gift Tax, Transfer Tax, Probate

(a) In general

Except as otherwise provided in this section, the basis of property in the hands of a person acquiring the property from a decedent or to whom the property passed from a decedent shall, if not sold, exchanged, or otherwise disposed of before the decedent’s death by such person, be—
(1) the fair market value of the property at the date of the decedent’s death, (2) in the case of an election under either section 2032 or section 811(j) of the Internal Revenue Code of 1939 where the decedent died after October 21, 1942, its value at the applicable valuation date prescribed by those sections, (3) in the case of an election under section 2032A, its value determined under such section, or (4) to the extent of the applicability of the exclusion described in section 2031 (c), the basis in the hands of the decedent.

Annotations from New York City (Manhattan & Brooklyn) Tax & Estate Planning Attorney Pinni Bohm, J.D., LL.M. (Tax): This is the famous basis step-up provisions you likely have heard so much about. What does it do? It causes your property to be deemed to have been bought on the day of the decedent's death. Hence, if your father bought a house for $100,000 and it is now worth $500,000, you would no longer have $400,000 in taxable gain. Why does it exist? It exists to prevent loved ones from having to dig through decades-old documents, as is often the case, to ascertain what price their loved one paid to purchase an asset. It is now simple -- just use the date of death value. -Pinni Bohm.

(b) Property acquired from the decedent

For purposes of subsection (a), the following property shall be considered to have been acquired from or to have passed from the decedent: (1)      Property acquired by bequest, devise, or inheritance, or by the decedent’s estate from the decedent; (2)      Property transferred by the decedent during his lifetime in trust to pay the income for life to or on the order or direction of the decedent, with the right reserved to the decedent at all times before his death to revoke the trust; (3)      In the case of decedents dying after December 31, 1951, property transferred by the decedent during his lifetime in trust to pay the income for life to or on the order or direction of the decedent with the right reserved to the decedent at all times before his death to make any change in the enjoyment thereof through the exercise of a power to alter, amend, or terminate the trust; (4)      Property passing without full and adequate consideration under a general power of appointment exercised by the decedent by will; (5)      In the case of decedents dying after August 26, 1937, and before January 1, 2005, property acquired by bequest, devise, or inheritance or by the decedent’s estate from the decedent, if the property consists of stock or securities of a foreign corporation, which with respect to its taxable year next preceding the date of the decedent’s death was, under the law applicable to such year, a foreign personal holding company. In such case, the basis shall be the fair market value of such property at the date of the decedent’s death or the basis in the hands of the decedent, whichever is lower; (6)      In the case of decedents dying after December 31, 1947, property which represents the surviving spouse’s one-half share of community property held by the decedent and the surviving spouse under the community property laws of any State, or possession of the United States or any foreign country, if at least one-half of the whole of the community interest in such property was includible in determining the value of the decedent’s gross estate under chapter 11 of subtitle B (section 2001 and following, relating to estate tax) or section 811 of the Internal Revenue Code of 1939; (7)      In the case of decedents dying after October 21, 1942, and on or before December 31, 1947, such part of any property, representing the surviving spouse’s one-half share of property held by a decedent and the surviving spouse under the community property laws of any State, or possession of the United States or any foreign country, as was included in determining the value of the gross estate of the decedent, if a tax under chapter 3 of the Internal Revenue Code of 1939 was payable on the transfer of the net estate of the decedent. In such case, nothing in this paragraph shall reduce the basis below that which would exist if the Revenue Act of 1948 had not been enacted; (8)      In the case of decedents dying after December 31, 1950, and before January 1, 1954, property which represents the survivor’s interest in a joint and survivor’s annuity if the value of any part of such interest was required to be included in determining the value of decedent’s gross estate under section 811 of the Internal Revenue Code of 1939; (9)      In the case of decedents dying after December 31, 1953, property acquired from the decedent by reason of death, form of ownership, or other conditions (including property acquired through the exercise or non-exercise of a power of appointment), if by reason thereof the property is required to be included in determining the value of the decedent’s gross estate under chapter 11 of subtitle B or under the Internal Revenue Code of 1939. In such case, if the property is acquired before the death of the decedent, the basis shall be the amount determined under subsection (a) reduced by the amount allowed to the taxpayer as deductions in computing taxable income under this subtitle or prior income tax laws for exhaustion, wear and tear, obsolescence, amortization, and depletion on such property before the death of the decedent. Such basis shall be applicable to the property commencing on the death of the decedent. This paragraph shall not apply to—
(A)            annuities described in section 72; (B)            property to which paragraph (5) would apply if the property had been acquired by bequest; and (C)            property described in any other paragraph of this subsection.
(10)    Property includible in the gross estate of the decedent under section 2044(relating to certain property for which marital deduction was previously allowed). In any such case, the last 3 sentences of paragraph (9) shall apply as if such property were described in the first sentence of paragraph (9).

Annotations from New York City (Manhattan & Brooklyn) Tax & Estate Planning Attorney Pinni Bohm, J.D., LL.M. (Tax): This section details how to qualify for the income tax basis step-up discussed in paragraph (a) above. For example, the distribution must have occurred through an estate to qualify for the resulting income tax savings. Regardless of whether or not you expect this section to apply, you should consult with an estate tax planning or gift tax planning attorney to ensure you pay the least amount of taxes overall. You don't want to end up saving yourself $40,000 in income taxes when you could have saved yourself $140,000 in estate taxes or gift taxes.

(c) Property representing income in respect of a decedent

This section shall not apply to property which constitutes a right to receive an item of income in respect of a decedent under section 691.

Annotations from New York City (Manhattan & Brooklyn) Tax & Estate Planning Attorney Pinni Bohm, J.D., LL.M. (Tax): This provision very simply states that the section does not apply if the property is deemed "income in respect of a decedent." If it does not apply, no income tax savings are possible, and income tax on gains, whether capital gains or ordinary, must be recognized.

(d) Special rule with respect to DISC stock

If stock owned by a decedent in a DISC or former DISC (as defined in section 992 (a)) acquires a new basis under subsection (a), such basis (determined before the application of this subsection) shall be reduced by the amount (if any) which would have been included in gross income under section 995 (c) as a dividend if the decedent had lived and sold the stock at its fair market value on the estate tax valuation date. In computing the gain the decedent would have had if he had lived and sold the stock, his basis shall be determined without regard to the last sentence of section 996 (e)(2) (relating to reductions of basis of DISC stock). For purposes of this subsection, the estate tax valuation date is the date of the decedent’s death or, in the case of an election under section 2032, the applicable valuation date prescribed by that section.

Annotations from New York City (Manhattan & Brooklyn) Tax & Estate Planning Attorney Pinni Bohm, J.D., LL.M. (Tax): This section is rarely applied, but there is a special income tax rule with respect to DISC stock.

(e) Appreciated property acquired by decedent by gift within 1 year of death

1) In general

In the case of a decedent dying after December 31, 1981, if—
(A) appreciated property was acquired by the decedent by gift during the 1-year period ending on the date of the decedent’s death, and
(B) such property is acquired from the decedent by (or passes from the decedent to) the donor of such property (or the spouse of such donor),
the basis of such property in the hands of such donor (or spouse) shall be the adjusted basis of such property in the hands of the decedent immediately before the death of the decedent.

Annotations from New York City (Manhattan & Brooklyn) Tax & Estate Planning Attorney Pinni Bohm, J.D., LL.M. (Tax): This section was inserted to ensure that a elderly person's heirs do not gift him/her assets, which would have large income tax consequences if sold immediately, right before his/her death. Hence, the income tax cost basis would remain the same and all income tax on gain would still be recognized and taxable.

(2) Definitions

For purposes of paragraph (1)—

(A) Appreciated property

The term “appreciated property” means any property if the fair market value of such property on the day it was transferred to the decedent by gift exceeds its adjusted basis.

Annotations from New York City (Manhattan & Brooklyn) Tax & Estate Planning Attorney Pinni Bohm, J.D., LL.M. (Tax): So if the property is worth $500,000 now when it was bought for $100,000, IRS will consider property to have been bought for $500,000.

(B) Treatment of certain property sold by estate

In the case of any appreciated property described in subparagraph (A) of paragraph (1) sold by the estate of the decedent or by a trust of which the decedent was the grantor, rules similar to the rules of paragraph (1) shall apply to the extent the donor of such property (or the spouse of such donor) is entitled to the proceeds from such sale.

Annotations from New York City (Manhattan & Brooklyn) Tax & Estate Planning Attorney Pinni Bohm, J.D., LL.M. (Tax): This section states that if property is sold by estate, then property is valued at the sale price for estate tax purposes and income tax purposes. (Of course, this is subject to an exception.)