I have addressed in previous reports the tax consequences of gifts and inheritances, but the subject is worth revisiting because I get asked about it frequently.
There is a common misconception that inheritances are automatically taxable. Although the reasoning behind that misconception is usually not clearly articulated or is unexpressed, I think it originates with the notion that an inheritance is income, and is therefore subject to the income tax, like wages. People don’t, however, seem to have the same notion about gifts. In other words, people don’t generally assume that gifts are taxable.
Nathan Hannah, Attorney
Why am I talking about gifts and inheritances as if they are the same thing? I am doing it because, for this purpose, they are the same thing. When you receive something from someone’s estate, it’s a gift.
To illustrate the distinction between gifts and income, think about this example. If you get a check for $100 from your grandmother for Christmas, you don’t include it on your income tax return, do you?
When you put it that way, the distinction seems fairly obvious. The gift is not taxable income.
But in the context of an estate, I guess it’s not so obvious. It’s a question I get asked fairly regularly, or rather an assumption that is expressed something along the lines of: I don’t want my children or grandchildren to have to pay tax on the money I leave them in my will.
Maybe the assumption that an inheritance will be taxed is actually founded on the fact that inheritances are taxable in some states (but not in Arizona), and estates and gifts are subject to the federal estate and gift taxes if they are large enough. Those taxes are different from the income tax, however. Inheritance, estate, and gift taxes are taxes on the transfer of property (usually payable by the transferor), not on the receipt of income (payable by the recipient).
The Internal Revenue Code is pretty clear on the issue of whether or not a gift is a taxable income. Section 102(a) says:
(a) General rule. Gross income does not include the value of property acquired by gift, bequest, devise, or inheritance.
The regulation that explains that code section is also pretty direct:
Reg. §1.102-1 (a) General rule. Property received as a gift, or received under a will or under statutes of descent and distribution, is not includible in gross income, although the income from such property is includible in gross income.
So your inheritance is no different from the $100 check from your grandmother, for tax purposes. It’s a gift, not income.
When I was a kid, my Aunt Gerry always gave me and my siblings each a card with a crisp, new $5 bill in it for Christmas. They were the kind of cards that had a pocket for a bill, with an opening that showed the face of the president on the bill. I think you have to be over 50 to remember them. I’m sure she made a special trip to the bank to get those cards and the $5 bills.
I still think that was a very generous gift. I never worried about whether to include it on my tax return, though, probably because I didn’t have any income.
The main concepts I’m trying to get across here are these: (1) inheritances and gifts are not income; and (2) federal estate and gift taxes are taxes on the transfer of money or property, paid by the giver. Some states have inheritance taxes that may be at odds with these concepts, but I’m ignoring those because there is no inheritance tax in Arizona. Just remember that in general, if an inheritance is taxable, it’s taxable because the transfer triggers the tax, not because the transfer is income to the recipient.
STOP AND THINK FOR A MINUTE: Would a U.S. Government Agency Ask You To Pay A Transaction Fee with iTunes Gift Cards?
In my report for July of last year, I wrote about a currently prevalent type of scam that utilizes scripted telephone calls to elderly people. The scammers are banking on their victims being too panicked to stop and think for a minute because if they did, they would probably realize that they were being scammed.
In a story that appeared recently on the web site of a local TV news outlet, a scam victim described a telephone call from someone who said he was calling from the “U.S. Government Grant Department,” and said that he had $9,000 in federal grant money for the victim. All the victim had to do was pay a $150 “transaction fee.” The scammer told the victim to go and buy $150 worth of iTunes gift cards and give him the card numbers, which the victim dutifully did.
The scammer then decided to go for more, telling the victim that since it was an “out of state transaction” she would also have to pay $900 for “insurance.” When she said that was beyond her means, the scammer reduced the price to $425. Perhaps because at that point she was starting to catch on, the victim called her bank, who told her she had been scammed.
Are there enough red flags in that script? I’m not sure how you could get many more in there without the integrity of the scam falling apart completely. Stop and think: if something sounds too good to be true, then it probably is too good to be true.
Nathan B. Hannah is a Shareholder in the Tucson office, and practices in the areas of estate planning and administration, real estate, and commercial transactions. He is also a noted blogger, and you can find more of his articles on his private blog,
Contact Attorney Hannah: nhannah@dmyl.com or 520/ 322-5000
This communication is designed to bring legal developments of interest to the attention of our clients and others. It should not be relied upon as a substitute for specific legal advice in a particular matter. For further information on any of the subjects discussed, or for legal advice in connection with any particular matter, please contact us.
