MN Estate Tax Law Update

MN Estate Tax Law Update Thursday, September 18, 2014 Cory R. Wessman, J.D. (612) 436-1190 crwessman@cericksonlaw.com Erickson & Wessman, P.A. Minneapolis, MN

Presentation Overview Estate and Gift Tax Overview (MN & Fed) 2014 Legislation Impacting MN Estate Tax Planning Estate Tax Planning Strategies Residency-related Planning Strategies

Estate Tax Overview Assets Included: All assets owned or controlled by decedent. Deductions: Unlimited Marital Deduction & Unlimited Charitable Deduction. Debts and Expenses. Exemption Amounts for 2014: Federal: $5.34M (40% rate on excess) State: $1.2M (9-16% on excess)

Gift Tax Overview Taxable Gifts: lifetime gifts to non-charitable or non-spousal beneficiaries not meeting one of following criteria: Annual Exclusion Gifts: $14,000 per person per year; and Health & Education Gifts Lifetime Exemptions for Taxable Gifts: Federal: $5.34M (40% rate on excess). State: No limit (but 3-year rule applies at state level for estate tax purposes).

MN Estate Taxes Year Exemption Rates 2014 $1.2M 9-16% 2015 $1.4M 10-16% 2016 $1.6M 10-16% 2017 $1.8M 10-16% 2018 $2.0M 10-16% Subsequent $2.0M 10-16%

2014 MN Estate Tax Legislation: Noteworthy Changes Removal of Tax Rate Bubble: Removed the 41% marginal tax rate for estates between 1.0M and $1.1M saving a $1.1M estate $38,800 in MN estate taxes. Retroactive Repeal of Gift Tax: Retroactively eliminates the MN gift tax enacted in 2013. State-level QTIP Election. Allows for estates to take a marital deduction for MN purposes.

2014 MN Estate Tax Legislation: Other Notes Three-Year Rule: Taxable lifetime gifts made by a MN resident within 3 years of death considered to be asset of MN estate. Lack of Portability: MN Estate Tax exemption not portable (unlike federal exemption). Larger Estates: Estates in excess of $3.0M see only a minor reduction in tax liability.

Estate Tax Planning Strategies

Strategy 1: Family Trust (aka Credit Trust ) Planning At first death: Amount of assets equal to exemption amount allocated to Family Trust. During surviving spouse s lifetime: Trustees distribute income and principal from Family Trust to surviving spouse necessary to maintain surviving spouse s standard of living. Distributions can also be made to children. Following surviving spouse s death: Any remaining assets pass to children free of ANY estate taxes.

Family Trust Planning Assets of First Spouse To Die Family Trust Surviving Spouse Children

Family Trust Planning: Estate Tax v. Capital Gains Tax Family Trust Tradeoff: No step up in cost basis to Family Trust assets at second death. Variables to consider: Possibility of remarriage; Life expectancy of surviving spouse; Applicable income tax bracket; Control over timing of tax payment; and Who writes the check.

Estate Tax Planning Strategy: Lifetime Gifts If you are able and willing, make gifts as soon as you can. Illustration: Scenario 1: Give and Live Client gifts $1.0M on 10/1/2014, then dies on 10/1/2019. Result: No MN estate or gift tax liability on gifted assets! Scenario 2: Try and Die Client gifts $1.0M on 10/1/2014, then dies on 10/1/2015. Result: No benefit by reason of 3 year rule. Approx. $100,000 in MN estate tax liability.

Residency Issues: Who Is a Resident of MN? Establishing Residency Elsewhere: Taxpayer has burden of proving he or she meets both (a) Physical residency test and (b) Intent Residency test. Moving Back to MN: If taxpayer has already established residency elsewhere, MN has the burden to prove that someone has moved back.

Establishing Residency Elsewhere Physical Residency: If taxpayer has any living abode in MN and spends 183 days in MN, taxpayer is a MN resident, regardless of intent residency factors. Intent Residency: Test met by meeting a sufficient number of 20 subjective separate factors. See attached Addendum B for a complete list of those factors.

Situs of Property: Where is property taxed? Tangible Property (e.g., business) & Real Estate: Where physically located. Intangible Property: Taxpayer s state of residence. Pass-Through Entity ( PTE ) Rules: For Gifts: PTE considered Intangible Property. For Estates: MN Residents: Intangible Property. Non-Residents: PTEs are disregarded if tangible property located in MN!

Estate Tax Formula MN Estate Tax Liability= [A] Minnesota Taxable Estate X [B] Tax Rate X [C] Fraction: ( Minnesota Gross Estate ) (Federal Gross Estate)

The Unexpected Results of the MN Estate Tax Calculation Minnesota Taxable Estate: Includes all property includable in the federal gross estate, plus all lifetime gifts made within three years of death ( 3 Year Gifts ) without regard to situs of the lifetime gift. Minnesota Gross Estate: Only includes Minnesota-sitused property and only those 3- Year Gifts having a Minnesota situs.

Illustration 1: AZ Resident with MN Lake Home Arizona resident owns $4.5M in AZ real estate and intangible property and a $500K MN lake home. She dies in 2014. Since she owns MN-sitused property and her federal taxable estate exceeds current MN exemption amount ($1.2M), a MN return must be filed and MN estate tax paid. MN Estate Tax Liability: $39,081 (about 10% of the tax liability if she were a MN resident).

Illustration 2: FL to MN Migrant Florida resident owns $5.0M in assets. As a FL resident in 2014, taxpayer makes a $1.0M in cash and securities to children. Taxpayer becomes a MN resident in 2015, then dies in 2016. Since taxpayer made gift of intangible property before becoming a MN resident, 3-year rule does not apply. MN Estate Tax Liability: $310,400. Estate tax savings of gift: $77,600

Illustration 3A: MN Resident with WI Farm (No further planning) MN resident owns $5.0M in assets, including $4.0M in MN assets and a WI farm of $1.0M. Taxpayer dies in 2014 as MN resident. MN estate tax is $312,640 (80% of a $5.0M taxable estate).

Illustration 3B: Unexpected Death Same scenario as 3A ($5.0M total estate), except that taxpayer transfers farm (worth $1.0M) to LLC, in exchange for LLC interest, on 10/1/2014. Taxpayer dies unexpectedly on 10/2/2014. MN estate tax is $390,800, 20% more than if farm had not been transferred to LLC.

Illustration 3C: Give and Live Same as 3B (transfer of $1.0M Wisconsin farmland to LLC). Taxpayer immediately gifts LLC interest to children on 10/1/2014. Taxpayer dies on 10/2/2017, surviving the 3- year look back period. MN estate tax is $258,000 (a $4.0M taxable estate at 2017 tax schedule).

Illustration Calculations Illustration 1: Minnesota taxable estate: $5.0M. Minnesota gross estate: $500,000. Federal gross estate: $5.0M. Estate tax: $390,800 X ($500,000 / $5.0M). Illustration 2: Minnesota taxable estate: $5.0M (since any 3-year gifts are included regardless of situs). Minnesota gross estate: $4.0M (FL-situs gift not included). Federal gross estate plus three-year gifts: $5.0M. Estate tax: $388,00 X ($4.0M / $5.0M).

Illustration Calculations (cont). Illustration 3A: Minnesota taxable estate: $5.0M. Minnesota gross estate: $4.0M. Federal gross estate: $5.0M. Estate tax: $390,800 X ($4.0M / $5.0M). Illustration 3B: Minnesota taxable estate: $5.0M. Minnesota gross estate: $5.0M (since gross estate includes LLC interest). Federal gross estate: $5.0M. Estate Tax: $390,800 X ($5.0M / $5.0M).

Illustration Calculations (cont). Illustration 3C: Minnesota taxable estate: $4.0M (since gift of farmland through LLC was more than 3 years before death). Minnesota gross estate: $4.0M. Federal gross estate : $4.0M. Estate tax: $258,000 X ($4.0M / $4.0M).

Importance of Legal Counsel This presentation is for educational purposes only; no part of this presentation may be construed as legal advice. If you have questions/concerns, see me or another licensed estate planning attorney.

Contact: Cory Wessman, J.D. Erickson & Wessman 612-436-1190 crwessman@cericksonlaw.com

Addendum A: MN Estate Tax Rates Date of Death in 2014 At least: But not in excess of: Tax Amount: 0 $1,200,000 $0 $1,200,000 $1,400,000 9% of Estate in excess of $1,200,000 $1,400,000 $3,600,000 $18,000 + 10% of Estate in excess of $1,400,000 $3,600,000 $4,100,000 $238,000 + 10.4% of Estate in excess of $3,600,000 $4,100,000 $5,100,000 $290,000 + 11.2% of Estate in excess of $4,100,000 $5,100,000 $6,100,000 $402,000 + 12% of Estate in excess of $5,100,000 $6,100,000 $7,100,000 $522,000 + 12.8% of Estate in excess of $6,100,000 $7,100,000 $8,100,000 $650,000 + 13.6% of Estate in excess of $7,100,000 $8,100,000 $9,100,000 $786,000 + 14.4% of Estate in excess of $8,100,000 $9,100,000 $10,100,000 $930,000 + 15.2% of Estate in excess of $9,100,000 $10,100,000 $1,082,000 + 16% of Estate in excess of $10,100,000

Addendum A: MN Estate Tax Rates Date of Death in 2015 At least: But not in excess of: Tax Amount: 0 $1,400,000 $0 $1,400,000 $3,600,000 10% of Estate in excess of $1,400,000 $3,600,000 $6,100,000 $220,000 + 12% of Estate in excess of $3,600,000 $6,100,000 $7,100,000 $520,000 + 12.8% of Estate in excess of $6,100,000 $7,100,000 $8,100,000 $648,000 + 13.6% of Estate in excess of $7,100,000 $8,100,000 $9,100,000 $784,000 + 14.4% of Estate in excess of $8,100,000 $9,100,000 $10,100,000 $928,000 + 15.2% of Estate in excess of $9,100,000 $10,100,000 $1,080,000 + 16% of Estate in excess of $10,100,000

Addendum A: MN Estate Tax Rates Date of Death in 2018 & Subsequent Years At least: But not in excess of: Tax Amount: 0 $2,000,000 $0 $2,000,000 $2,600,000 10% of Estate in excess of $2,000,000 $2,600,000 $7,100,000 $60,000 + 13% of Estate in excess of $2,600,000 $7,100,000 $8,100,000 $645,000 + 13.6% of Estate in excess of $7,100,000 $8,100,000 $9,100,000 $781,000 + 14.4% of Estate in excess of $8,100,000 $9,100,000 $10,100,000 $925,000 + 15.2% of Estate in excess of $9,100,000 $10,100,000 $1,077,000 + 16% of Estate in excess of $10,100,000

Addendum B: Intent Residency Test Factors Location of domicile of prior years. (Burden is on taxpayer to show that residency has changed from MN to another state. Burden is on sate to show that a taxpayer has become a MN resident). Where the person votes or is registered to vote. Casting an illegal vote, however, does not establish domicile for income tax purposes.

Addendum B: Intent Residency Factors Status as a student. Classification of employment as temporary or permanent. Location of employment. A taxpayer claiming a residency change who retains active Minnesota business ties faces a hurdle, i.e., owner of his own business in Minnesota.

Addendum B: Intent Residency Factors Location of newly acquired living quarters whether owned or rented. Acquisition of living space in the new state which is larger or nicer than that in Minnesota is favorable. Present status of former living quarters (sold, offered for sale, rented, or available to another to rent).

Addendum B: Intent Residency Factors Whether homestead status has been requested and /or obtained for property tax purposed on newly purchased living quarters and whether the homestead status of the former living quarters has not been renewed. Ownership of other real property. Jurisdiction in which any valid driver s license was issued. Jurisdiction from which any professional licenses were issued.

Addendum B: Intent Residency Factors Location of the person s union membership. Jurisdiction from which any motor vehicle license was issued and the actual physical location of the vehicles. Whether resident or nonresident fishing or hunting licenses purchased. Whether an income tax return has been filed as a resident or nonresident.

Addendum B: Intent Residency Factors Whether the person has fulfilled the tax obligations required of a resident in the new state. Location of any bank accounts, especially the location of the most active checking account. Location of other transactions with financial institutions. Location of the place of worship at which the person is a member.

Addendum B: Intent Residency Factors Location of business relationships and the place where business is transacted. Location of social, fraternal, or athletic organizations or clubs or in a lodge or country club, of which the person is a member. Address where mail is received.

Addendum B: Intent Residency Factors Percentage of time (not counting hours of employment) that the person is physically present in Minnesota and the percentage of time (not counting hours of employment) that the person is physically present in each jurisdiction other than Minnesota. Minnesota seems to view this as the most important factor.

Addendum B: Intent Residency Factors Location of jurisdiction from which unemployment compensation benefits are received. Location of schools in which the person or the person s spouse or children attend. Statements made to an insurance company concerning the person s residence and on which the insurance is based.