Qualified Severance of a Trust for Generation-Skipping Transfer (GST) Tax Purposes, 42291-42298 [E7-14852]

Agencies

• Internal Revenue Service
• DEPARTMENT OF THE TREASURY

[Federal Register Volume 72, Number 148 (Thursday, August 2, 2007)]
[Rules and Regulations]
[Pages 42291-42298]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-14852]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Parts 1, 26, and 602

[TD 9348]
RIN 1545-BC50


Qualified Severance of a Trust for Generation-Skipping Transfer 
(GST) Tax Purposes

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulations.

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SUMMARY: This document contains final regulations providing guidance 
regarding the qualified severance of a trust for generation-skipping 
transfer (GST) tax purposes under section 2642(a)(3) of the Internal 
Revenue Code (Code), which was added to the Code by the Economic Growth 
and Tax Relief Reconciliation Act of 2001 (EGTRRA). The regulations 
will affect trusts that are subject to the GST tax.

DATES: Effective Date: The regulations are effective August 2, 2007.
    Applicability Date: For dates of applicability, see Sec.  26.2642-
6(k)(1) and Sec.  26.2642-6(k)(2).

FOR FURTHER INFORMATION CONTACT: Mayer R. Samuels, (202) 622-3090 (not 
a toll-free number).

SUPPLEMENTARY INFORMATION: 

Paperwork Reduction Act

    The collection of information contained in these final regulations 
has been previously reviewed and approved by the Office of Management 
and Budget in accordance with the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)) under control number 1545-1902.
    The collection of information in these final regulations is in 
Sec.  26.2642-6(e). This information is requested by the IRS to 
identify whether a trust is exempt from the GST tax. This information 
is

[[Page 42292]]

required to determine whether the amount of tax has been calculated 
correctly. The respondents are trustees of trusts that are being 
severed.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless the collection of 
information displays a valid control number assigned by the Office of 
Management and Budget.
    The estimated average annual burden per respondent/recordkeeper is 
.5 hours per respondent. Comments concerning the accuracy of this 
burden estimate should be sent to the Internal Revenue Service, Attn: 
IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224 
and the Office of Management and Budget, Attn: Desk Officer for the 
Department of the Treasury, Office of Information and Regulatory 
Affairs, Washington, DC 20503.
    Books or records relating to this collection of information must be 
retained as long as their contents may become material in the 
administration of any internal revenue law. Generally, tax returns and 
tax return information are confidential, as required by 26 U.S.C. 6103.

Background

    Section 2642(a)(3) was added to the Internal Revenue Code by the 
Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), 
Public Law 107-16 (115 Stat. 38 (2001)). Under section 2642(a)(3), if a 
trust is divided into two or more trusts in a ``qualified severance,'' 
the resulting trusts will be recognized as separate trusts for GST tax 
purposes. In many cases, a qualified severance of a trust will 
facilitate the most efficient and effective use of the transferor's GST 
tax exemption. The GST tax exemption is each person's lifetime 
exemption that may be allocated to a generation-skipping transfer. If 
the transfer is made in trust, allocation of the donor's GST tax 
exemption reduces the trust's inclusion ratio, which in turn determines 
the amount of GST tax imposed on any generation-skipping transfer made 
with regard to the trust.
    On August 24, 2004, the IRS published in the Federal Register a 
notice of proposed rulemaking (REG-145987-03, 2004-39 IRB 519, 69 FR 
51967), providing rules under section 2642(a)(3) regarding the 
qualified severance of a trust for GST tax purposes. The IRS received 
written and oral comments responding to the notice of proposed 
rulemaking. No public hearing was requested or held. After 
consideration of all the comments, the proposed regulations are adopted 
as amended by this Treasury decision, and the corresponding proposed 
regulations are removed. The comments and revisions to the proposed 
regulations are discussed below. In addition, additional proposed 
regulations are being issued contemporaneously with these final 
regulations in order to respond to certain comments that the Treasury 
Department and the IRS believe merit further consideration in proposed 
regulations.

Summary of Comments

    The proposed regulations take the position that the severance rules 
contained in Sec.  26.2654-1(b) of the regulations were superseded by 
the enactment of section 2642(a)(3), and therefore that Sec.  26.2654-
1(b) is no longer effective. However, many commentators noted that 
sections 2654(b) and 2642(a)(3) address different situations, and they 
suggested that section 2642(a)(3) was intended to supplement, rather 
than to replace, section 2654(b), and to thereby provide more 
flexibility in severing trusts for GST tax purposes. The commentators 
noted that section 2642(a)(3) qualified severances are effective 
prospectively from the date of severance and thus, that section only 
addresses severances that typically would occur after an irrevocable 
trust (whether inter vivos or testamentary) has been in existence for a 
period of time. In contrast, Sec.  26.2654-1(b) addresses only 
severances of testamentary trusts and revocable inter vivos trusts 
included in the transferor's gross estate, and a severance satisfying 
Sec.  26.2654-1(b) is effective retroactively to the date of death. 
Section 26.2654-1(b) provides for the recognition of severances of 
separate shares of such trusts, and of discretionary severances that, 
although not provided for in the governing instrument, are necessary to 
fully utilize available tax benefits (for example, the reverse 
qualified terminable interest property election under section 
2652(a)(3)). To fulfill the purpose of these severances (generally, 
efficient utilization and allocation of the decedent's GST exemption), 
the severance must be effective retroactive to the date of death. Thus, 
section 2642(a)(3) and Sec.  26.2654-1(b) address different 
circumstances.
    In response to these comments, the final regulations do not 
supersede Sec.  26.2654-1(b). Rather, Sec.  26.2654-1(b) is retained, 
but, as explained hereafter, is proposed to be amended as described in 
a notice of proposed rulemaking issued contemporaneously with these 
final regulations. Subject to those proposed changes, Sec.  26.2654-
1(b) will continue to provide rules for mandatory and discretionary 
severances of trusts includible in the transferor's gross estate, 
effective retroactively to the transferor's date of death. The final 
regulations under Sec.  26.2642-6 generally provide rules for the 
qualified severance of a trust (whether or not includible in the 
transferor's gross estate) if the severance will be effective only 
prospectively from the date of severance.
    One commentator requested that the regulations provide that 
separate trusts, created as the result of a mandated division of a 
single trust that is effective under state law, be recognized 
prospectively as separate trusts for certain GST tax purposes, even if 
the severance does not satisfy the requirements of a qualified 
severance. This comment will be addressed in the proposed regulations 
under section 2642, issued contemporaneously with these final 
regulations.
    One commentator requested that the regulations provide additional 
flexibility in severing a trust that has an inclusion ratio between 
zero and one. Specifically, the commentator requested that the final 
regulations permit the qualified severance of a trust into one or more 
separate resulting trusts, as long as one or more of the resulting 
trusts, in the aggregate, would receive a fractional share of the total 
value of the original trust's assets that equals the applicable 
fraction of the original trust. In such a qualified severance, the 
resulting trust or trusts receiving this fractional share would each 
have an inclusion ratio of zero, and each of the other resulting trusts 
would have an inclusion ratio of one. This comment will be addressed in 
the proposed regulations under section 2642, issued contemporaneously 
with these final regulations.
    In response to comments, the final regulations continue to require 
that, in notifying the IRS of the severance of a trust, the words 
``Qualified Severance'' should appear at the top of Form 706-GS(T), 
``Generation-Skipping Transfer Tax Return for Terminations,'' but the 
use of red ink for that purpose is not required.
    One commentator questioned the requirement in the proposed 
regulations that any non-pro rata funding of trusts resulting from a 
qualified severance must be based on the value of the trust assets as 
of the date of funding. The commentator pointed out that, in many 
cases, the funding of trusts resulting from a qualified severance will 
take place over a period of time, rather than on one specific date. 
Accordingly, under the final regulations, the non-pro rata funding of 
trusts resulting from a

[[Page 42293]]

qualified severance must be achieved by applying the appropriate 
fraction or percentage to the total value of the trust assets as of the 
``date of severance.'' The term ``date of severance'' is defined as the 
date selected for determining the value of the trust assets (whether 
selected on a discretionary basis or by a court order), provided that 
funding is commenced immediately and occurs within a reasonable time 
before or after the selected date of severance. For this purpose, a 
reasonable time may differ depending upon the type of asset involved, 
but in no event may be more than 90 days.
    Several commentators requested that the regulations address the 
severance of a trust that was irrevocable on September 25, 1985, but 
with respect to which an addition was made to the trust after September 
25, 1985. For purposes of determining the inclusion ratio with respect 
to such a trust, Sec.  26.2601-1(b)(1)(iv)(A) provides that the trust 
is deemed to consist of two portions, one portion not subject to GST 
tax (the non-chapter 13 portion) with an inclusion ratio of zero, and 
one portion subject to GST tax (the chapter 13 portion) with an 
inclusion ratio determined under section 2642. In response to these 
comments, the final regulations provide guidance regarding a qualified 
severance of the chapter 13 portion of these trusts.
    The proposed regulations include a mandatory reporting requirement, 
without which a severance would not constitute a qualified severance. 
One commentator noted that, in some situations, it may be advantageous 
to sever a trust but to avoid qualification under section 2642(a)(3) as 
a qualified severance. The Treasury Department and the IRS believe that 
the qualified severance rules were not intended to be optional; that 
is, able to be employed or avoided depending upon the tax consequences 
of a particular severance. Therefore, under the final regulations, the 
reporting provisions do not constitute a requirement for qualified 
severance status, but each severance should be reported to ensure that 
the provisions of Chapter 13 of the Code may be properly applied with 
regard to the trusts.
    One commentator noted that Sec.  1.1001-1(h)(1) of the proposed 
regulations provides favorable income tax treatment only with respect 
to a qualified severance. The commentator requested that the 
regulations also address the income tax treatment of all other trust 
modifications and severances. The commentator noted that the failure to 
address, for example, the income tax consequences of severances that 
are not qualified severances for GST tax purposes implies that such 
severances are taxable events for income tax purposes. In response to 
these comments, the category of severances to which Sec.  1.1001-
1(h)(1) will apply has been broadened. No inference should be drawn 
with respect to the income tax consequences under section 1001 of any 
severance that is not described in Sec.  1.1001-1(h)(1).
    Commentators noted that some qualified severances may result in a 
taxable termination or taxable distribution, for example, if after the 
severance, one of the resulting trusts is a skip person. The final 
regulations clarify that, if the qualified severance itself results in 
a GST taxable event, the taxable event is treated as occurring 
immediately after the severance. As a result, if the resulting trust 
that is a skip person is also the trust that has a zero inclusion ratio 
after the severance, then no GST tax will result from the taxable event 
that is deemed to occur after the severance. An example was added 
illustrating this rule.
    Finally, in response to comments, an example has been added 
addressing the qualified severance rules in the case of a trust where 
the beneficiary is granted a contingent testamentary general power of 
appointment that is dependent upon the trust's inclusion ratio.

Special Analyses

    It has been determined that this Treasury decision is not a 
significant regulatory action as defined in Executive Order 12866. 
Therefore, a regulatory assessment is not required. It also has been 
determined that section 553(b) of the Administrative Procedure Act (5 
U.S.C. chapter 5) does not apply to these regulations. It is hereby 
certified that the collection of information in these regulations will 
not have a significant economic impact on a substantial number of small 
entities. This certification is based upon the fact that the collection 
of information imposed by this regulation is not significant as 
reflected in the estimated burden of information collection for, which 
is 0.5 hours per respondent, and that few trustees are likely to be 
small entities. Therefore, a Regulatory Flexibility Analysis under the 
Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required.
    Pursuant to section 7805(f) of the Code, the notice of proposed 
rulemaking preceding these regulations was submitted to the Small 
Business Administration for comment on their impact on small business.

Drafting Information

    The principal author of these final regulations is Mayer R. 
Samuels, Office of the Associate Chief Counsel (Passthroughs and 
Special Industries), IRS. Other personnel from the IRS and the Treasury 
Department participated in their development.

List of Subjects

26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

26 CFR Part 26

    Estate taxes, Reporting and recordkeeping requirements.

26 CFR Part 602

    Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

0
Accordingly, 26 CFR parts 1, 26 and 602 are amended as follows:

PART 1--INCOME TAXES

0
Paragraph 1. The authority citation for part 1 continues to read in 
part as follows:

    Authority: 26 U.S.C. 7805 * * *


0
Par. 2. In Sec.  1.1001-1, paragraph (h) is added to read as follows:


Sec.  1.1001-1  Computation of gain or loss.

* * * * *
    (h) Severances of trusts--(1) In general. The severance of a trust 
(including without limitation a severance that meets the requirements 
of Sec.  26.2642-6 or of Sec.  26.2654-1(b) of this chapter) is not an 
exchange of property for other property differing materially either in 
kind or in extent if--
    (i) An applicable state statute or the governing instrument 
authorizes or directs the trustee to sever the trust; and
    (ii) Any non-pro rata funding of the separate trusts resulting from 
the severance (including non-pro rata funding as described in Sec.  
26.2642-6(d)(4) or Sec.  26.2654-1(b)(1)(ii)(C) of this chapter), 
whether mandatory or in the discretion of the trustee, is authorized by 
an applicable state statute or the governing instrument.
    (2) Effective/applicability date. This paragraph (h) applies to 
severances occurring on or after August 2, 2007. Taxpayers may apply 
this paragraph (h) to severances occurring on or after August 24, 2004, 
and before August 2, 2007.

[[Page 42294]]

PART 26--GENERATION-SKIPPING TRANSFER TAX REGULATIONS UNDER THE TAX 
REFORM ACT OF 1986

0
Par. 3. The authority citation for part 26 is amended by adding an 
entry in numerical order to read, in part, as follows:

    Authority: 26 U.S.C. 7805 * * *
    Section 26.2642-6 also issued under 26 U.S.C. 2642. * * *


0
Par. 4. In Sec.  26.2600-1, the table of contents is amended by adding 
entries for Sec. Sec.  26.2642-6 and 26.2654-1(c) to read as follows:


Sec.  26.2600-1  Table of contents.

* * * * *


Sec.  26.2642-6  Qualified severance.

    (a) In general.
    (b) Qualified severance defined.
    (c) Effective date of qualified severance.
    (d) Requirements for a qualified severance.
    (e) Reporting a qualified severance.
    (f) Time for making a qualified severance.
    (g) Trusts that were irrevocable on September 25, 1985.
    (1) In general.
    (2) Trusts in receipt of a post-September 25, 1985, addition.
    (h) [Reserved]
    (i) [Reserved]
    (j) Examples.
    (k) Effective date.
    (1) In general.
    (2) Transition rule.
* * * * *


Sec.  26.2654-1  Certain trusts treated as separate trusts.

* * * * *
    (c) Cross reference.
* * * * *

0
Par. 5. Section 26.2642-6 is added to read as follows:


Sec.  26.2642-6  Qualified severance.

    (a) In general. If a trust is divided in a qualified severance into 
two or more trusts, the separate trusts resulting from the severance 
will be treated as separate trusts for generation-skipping transfer 
(GST) tax purposes and the inclusion ratio of each new resulting trust 
may differ from the inclusion ratio of the original trust. Because the 
post-severance resulting trusts are treated as separate trusts for GST 
tax purposes, certain actions with respect to one resulting trust will 
generally have no GST tax impact with respect to the other resulting 
trust(s). For example, GST exemption allocated to one resulting trust 
will not impact on the inclusion ratio of the other resulting trust(s); 
a GST tax election made with respect to one resulting trust will not 
apply to the other resulting trust(s); the occurrence of a taxable 
distribution or termination with regard to a particular resulting trust 
will not have any GST tax impact on any other trust resulting from that 
severance. In general, the rules in this section are applicable only 
for purposes of the GST tax and are not applicable in determining, for 
example, whether the resulting trusts may file separate income tax 
returns or whether the severance may result in a gift subject to gift 
tax, may cause any trust to be included in the gross estate of a 
beneficiary, or may result in a realization of gain for purposes of 
section 1001. See Sec.  1.1001-1(h) of this chapter for rules relating 
to whether a qualified severance will constitute an exchange of 
property for other property differing materially either in kind or in 
extent.
    (b) Qualified severance defined. A qualified severance is a 
division of a trust (other than a division described in Sec.  26.2654-
1(b)) into two or more separate trusts that meets each of the 
requirements in paragraph (d) of this section.
    (c) Effective date of qualified severance. A qualified severance is 
applicable as of the date of the severance, as defined in Sec.  
26.2642-6(d)(3), and the resulting trusts are treated as separate 
trusts for GST tax purposes as of that date.
    (d) Requirements for a qualified severance. For purposes of this 
section, a qualified severance must satisfy each of the following 
requirements:
    (1) The single trust is severed pursuant to the terms of the 
governing instrument, or pursuant to applicable local law.
    (2) The severance is effective under local law.
    (3) The date of severance is either the date selected by the 
trustee as of which the trust assets are to be valued in order to 
determine the funding of the resulting trusts, or the court-imposed 
date of funding in the case of an order of the local court with 
jurisdiction over the trust ordering the trustee to fund the resulting 
trusts on or as of a specific date. For a date to satisfy the 
definition in the preceding sentence, however, the funding must be 
commenced immediately upon, and funding must occur within a reasonable 
time (but in no event more than 90 days) after, the selected valuation 
date.
    (4) The single trust (original trust) is severed on a fractional 
basis, such that each new trust (resulting trust) is funded with a 
fraction or percentage of the original trust, and the sum of those 
fractions or percentages is one or one hundred percent, respectively. 
For this purpose, the fraction or percentage may be determined by means 
of a formula (for example, that fraction of the trust the numerator of 
which is equal to the transferor's unused GST tax exemption, and the 
denominator of which is the fair market value of the original trust's 
assets on the date of severance). The severance of a trust based on a 
pecuniary amount does not satisfy this requirement. For example, the 
severance of a trust is not a qualified severance if the trust is 
divided into two trusts, with one trust to be funded with $1,500,000 
and the other trust to be funded with the balance of the original 
trust's assets. With respect to the particular assets to be distributed 
to each resulting trust, each resulting trust may be funded with the 
appropriate fraction or percentage (pro rata portion) of each asset 
held by the original trust. Alternatively, the assets may be divided 
among the resulting trusts on a non pro rata basis, based on the fair 
market value of the assets on the date of severance. However, if funded 
on a non pro rata basis, each resulting trust must be funded by 
applying the appropriate fraction or percentage to the total fair 
market value of the trust assets as of the date of severance.
    (5) The terms of the resulting trusts must provide, in the 
aggregate, for the same succession of interests of beneficiaries as are 
provided in the original trust. This requirement is satisfied if the 
beneficiaries of the separate resulting trusts and the interests of the 
beneficiaries with respect to the separate trusts, when the separate 
trusts are viewed collectively, are the same as the beneficiaries and 
their respective beneficial interests with respect to the original 
trust before severance. With respect to trusts from which discretionary 
distributions may be made to any one or more beneficiaries on a non-pro 
rata basis, this requirement is satisfied if--
    (i) The terms of each of the resulting trusts are the same as the 
terms of the original trust (even though each permissible distributee 
of the original trust is not a beneficiary of all of the resulting 
trusts);
    (ii) Each beneficiary's interest in the resulting trusts 
(collectively) equals the beneficiary's interest in the original trust, 
determined by the terms of the trust instrument or, if none, on a per-
capita basis. For example, in the case of the severance of a 
discretionary trust established for the benefit of A, B, and C and 
their descendants with the remainder to be divided equally among those 
three families, this requirement is satisfied if the trust is divided 
into three separate trusts of equal value with one trust established 
for the benefit of A and A's descendants, one trust for the

[[Page 42295]]

benefit of B and B's descendants, and one trust for the benefit of C 
and C's descendants;
    (iii) The severance does not shift a beneficial interest in the 
trust to any beneficiary in a lower generation (as determined under 
section 2651) than the person or persons who held the beneficial 
interest in the original trust; and
    (iv) The severance does not extend the time for the vesting of any 
beneficial interest in the trust beyond the period provided for in (or 
applicable to) the original trust.
    (6) In the case of a qualified severance of a trust with an 
inclusion ratio as defined in Sec.  26.2642-1 of either one or zero, 
each trust resulting from the severance will have an inclusion ratio 
equal to the inclusion ratio of the original trust.
    (7) In the case of a qualified severance occurring after GST tax 
exemption has been allocated to the trust (whether by an affirmative 
allocation, a deemed allocation, or an automatic allocation pursuant to 
the rules contained in section 2632), if the trust has an inclusion 
ratio as defined in Sec.  26.2642-1 that is greater than zero and less 
than one, then the trust must be severed initially into two trusts. One 
resulting trust must receive that fractional share of the total value 
of the original trust as of the date of severance that is equal to the 
applicable fraction, as defined in Sec.  26.2642-1(b) and (c), used to 
determine the inclusion ratio of the original trust immediately before 
the severance. The other resulting trust must receive that fractional 
share of the total value of the original trust as of the date of 
severance that is equal to the excess of one over the fractional share 
described in the preceding sentence. The trust receiving the fractional 
share equal to the applicable fraction shall have an inclusion ratio of 
zero, and the other trust shall have an inclusion ratio of one. If the 
applicable fraction with respect to the original trust is .50, then, 
with respect to the two equal trusts resulting from the severance, the 
Trustee may designate which of the resulting trusts will have an 
inclusion ratio of zero and which will have an inclusion ratio of one. 
Each separate trust resulting from the severance then may be further 
divided in accordance with the rules of this section. See paragraph 
(j), Example 7 of this section.
    (e) Reporting a qualified severance--(1) In general. A qualified 
severance is reported by filing Form 706-GS(T), ``Generation-Skipping 
Transfer Tax Return for Terminations,'' (or such other form as may be 
provided from time to time by the Internal Revenue Service (IRS) for 
the purpose of reporting a qualified severance). Unless otherwise 
provided in the applicable form or instructions, the IRS requests that 
the filer write ``Qualified Severance'' at the top of the form and 
attach a Notice of Qualified Severance (Notice). The return and 
attached Notice should be filed by April 15th of the year immediately 
following the year during which the severance occurred or by the last 
day of the period covered by an extension of time, if an extension of 
time is granted, to file such form.
    (2) Information concerning the original trust. The Notice should 
provide, with respect to the original trust that was severed--
    (i) The name of the transferor;
    (ii) The name and date of creation of the original trust;
    (iii) The tax identification number of the original trust; and
    (iv) The inclusion ratio before the severance.
    (3) Information concerning each new trust. The Notice should 
provide, with respect to each of the resulting trusts created by the 
severance--
    (i) The name and tax identification number of the trust;
    (ii) The date of severance (within the meaning of paragraph (c) of 
this section);
    (iii) The fraction of the total assets of the original trust 
received by the resulting trust;
    (iv) Other details explaining the basis for the funding of the 
resulting trust (a fraction of the total fair market value of the 
assets on the date of severance, or a fraction of each asset); and
    (v) The inclusion ratio.
    (f) Time for making a qualified severance. (1) A qualified 
severance of a trust may occur at any time prior to the termination of 
the trust. Thus, provided that the separate resulting trusts continue 
in existence after the severance, a qualified severance may occur 
either before or after--
    (i) GST tax exemption has been allocated to the trust;
    (ii) A taxable event has occurred with respect to the trust; or
    (iii) An addition has been made to the trust.
    (2) Because a qualified severance is effective as of the date of 
severance, a qualified severance has no effect on a taxable termination 
as defined in section 2612(a) or a taxable distribution as defined in 
section 2612(b) that occurred prior to the date of severance. A 
qualified severance shall be deemed to occur before a taxable 
termination or a taxable distribution that occurs by reason of the 
qualified severance. See paragraph (j) Example 8 of this section.
    (g) Trusts that were irrevocable on September 25, 1985--(1) In 
general. See Sec.  26.2601-1(b)(4) for rules regarding severances and 
other actions with respect to trusts that were irrevocable on September 
25, 1985.
    (2) Trusts in receipt of a post-September 25, 1985, addition. A 
trust described in Sec.  26.2601-1(b)(1)(iv)(A) that is deemed for GST 
tax purposes to consist of one separate share not subject to GST tax 
(the non-chapter 13 portion) with an inclusion ratio of zero, and one 
separate share subject to GST tax (the chapter 13 portion) with an 
inclusion ratio determined under section 2642, may be severed into two 
trusts in accordance with Sec.  26.2654-1(a)(3). One resulting trust 
will hold the non-chapter 13 portion of the original trust (the non-
chapter 13 trust) and will not be subject to GST tax, and the other 
resulting trust will hold the chapter 13 portion of the original trust 
(the chapter 13 trust) and will have the same inclusion ratio as the 
chapter 13 portion immediately prior to the severance. The chapter 13 
trust may be further divided in a qualified severance in accordance 
with the rules of this section. The non-chapter 13 trust may be further 
divided in accordance with the rules of Sec.  26.2601-1(b)(4).
    (h) [Reserved].
    (i) [Reserved].
    (j) Examples. The rules of this section are illustrated by the 
following examples:

    Example 1. Succession of interests. T dies in 2006. T's will 
establishes a testamentary trust (Trust) providing that income is to 
be paid to T's sister, S, for her life. On S's death, one-half of 
the corpus is to be paid to T's child, C (or to C's estate if C 
fails to survive S), and one-half of the corpus is to be paid to T's 
grandchild, GC (or to GC's estate if GC fails to survive S). On the 
Form 706, ``United States Estate (and Generation-Skipping Transfer) 
Tax Return,'' filed for T's estate, T's executor allocates all of 
T's available GST tax exemption to other transfers and trusts, such 
that Trust's inclusion ratio is 1. Subsequent to filing the Form 706 
in 2007 and in accordance with applicable state law, the trustee 
divides Trust into two separate trusts, Trust 1 and Trust 2, with 
each trust receiving 50 percent of the value of the assets of the 
original trust as of the date of severance. Trust 1 provides that 
trust income is to be paid to S for life with remainder to C or C's 
estate, and Trust 2 provides that trust income is to be paid to S 
for life with remainder to GC or GC's estate. Because Trust 1 and 
Trust 2 provide for the same succession of interests in the 
aggregate as provided in the original trust, the severance 
constitutes a qualified severance, provided that all other 
requirements of section 2642(a)(3) and this section are satisfied.
    Example 2. Succession of interests in discretionary trust. In 
2006, T establishes Trust, an irrevocable trust providing that 
income may be paid from time to time in

[[Page 42296]]

such amounts as the trustee deems advisable to any one or more 
members of the group consisting of T's children (A and B) and their 
respective descendants. In addition, the trustee may distribute 
corpus to any trust beneficiary in such amounts as the trustee deems 
advisable. On the death of the last to die of A and B, the trust is 
to terminate and the corpus is to be distributed in two equal 
shares, one share to the then-living descendants of each child, per 
stirpes. T elects, under section 2632(c)(5), to not have the 
automatic allocation rules contained in section 2632(c) apply with 
respect to T's transfers to Trust, and T does not otherwise allocate 
GST tax exemption with respect to Trust. As a result, Trust has an 
inclusion ratio of one. In 2008, the trustee of Trust, pursuant to 
applicable state law, divides Trust into two equal but separate 
trusts, Trust 1 and Trust 2, each of which has terms identical to 
the terms of Trust except for the identity of the beneficiaries. 
Trust 1 and Trust 2 each has an inclusion ratio of one. Trust 1 
provides that income is to be paid in such amounts as the trustee 
deems advisable to A and A's descendants. In addition, the trustee 
may distribute corpus to any trust beneficiary in such amounts as 
the trustee deems advisable. On the death of A, Trust 1 is to 
terminate and the corpus is to be distributed to the then-living 
descendants of A, per stirpes, but, if A dies with no living 
descendants, the principal will be added to Trust 2. Trust 2 
contains identical provisions, except that B and B's descendants are 
the trust beneficiaries and, if B dies with no living descendants, 
the principal will be added to Trust 1. Trust 1 and Trust 2 in the 
aggregate provide for the same beneficiaries and the same succession 
of interests as provided in Trust, and the severance does not shift 
any beneficial interest to a beneficiary who occupies a lower 
generation than the person or persons who held the beneficial 
interest in Trust. Accordingly, the severance constitutes a 
qualified severance, provided that all other requirements of section 
2642(a)(3) and this section are satisfied.
    Example 3. Severance based on actuarial value of beneficial 
interests. In 2004, T establishes Trust, an irrevocable trust 
providing that income is to be paid to T's child C during C's 
lifetime. Upon C's death, Trust is to terminate and the assets of 
Trust are to be paid to GC, C's child, if living, or, if GC is not 
then living, to GC's estate. T properly elects, under section 
2632(c)(5), to not have the automatic allocation rules contained in 
section 2632(c) apply with respect to T's transfers to Trust, and T 
does not otherwise allocate GST tax exemption with respect to Trust. 
Thus, Trust has an inclusion ratio of one. In 2008, the trustee of 
Trust, pursuant to applicable state law, divides Trust into two 
separate trusts, Trust 1 for the benefit of C (and on C's death to 
C's estate), and Trust 2 for the benefit of GC (and on GC's death to 
GC's estate). The document severing Trust directs that Trust 1 is to 
be funded with an amount equal to the actuarial value of C's 
interest in Trust prior to the severance, determined under section 
7520 of the Internal Revenue Code. Similarly, Trust 2 is to be 
funded with an amount equal to the actuarial value of GC's interest 
in Trust prior to the severance, determined under section 7520. 
Trust 1 and Trust 2 do not provide for the same succession of 
interests as provided under the terms of the original trust. 
Therefore, the severance is not a qualified severance.
    Example 4. Severance of a trust with a 50% inclusion ratio. On 
September 1, 2006, T transfers $100,000 to a trust for the benefit 
of T's grandchild, GC. On a timely filed Form 709, ``United States 
Gift (and Generation-Skipping Transfer) Tax Return,'' reporting the 
transfer, T allocates all of T's remaining GST tax exemption 
($50,000) to the trust. As a result of the allocation, the 
applicable fraction with respect to the trust is .50 [$50,000 (the 
amount of GST tax exemption allocated to the trust) divided by 
$100,000 (the value of the property transferred to the trust)]. The 
inclusion ratio with respect to the trust is .50 [1-.50]. In 2007, 
pursuant to authority granted under applicable state law, the 
trustee severs the trust into two trusts, Trust 1 and Trust 2, each 
of which is identical to the original trust and each of which 
receives a 50 percent fractional share of the total value of the 
original trust, valued as of the date of severance. Because the 
applicable fraction with respect to the original trust is .50 and 
the trust is severed into two equal trusts, the trustee may 
designate which resulting trust has an inclusion ratio of one, and 
which resulting trust has an inclusion ratio of zero. Accordingly, 
in the Notice of Qualified Severance reporting the severance, the 
trustee designates Trust 1 as having an inclusion ratio of zero, and 
Trust 2 as having an inclusion ratio of one. The severance 
constitutes a qualified severance, provided that all other 
requirements of section 2642(a)(3) and this section are satisfied.
    Example 5. Funding of severed trusts on a non-pro rata basis. 
T's will establishes a testamentary trust (Trust) for the benefit of 
T's descendants, to be funded with T's stock in Corporation A and 
Corporation B, both publicly traded stocks. T dies on May 1, 2004, 
at which time the Corporation A stock included in T's gross estate 
has a fair market value of $100,000 and the stock of Corporation B 
included in T's gross estate has a fair market value of $200,000. On 
a timely filed Form 706, T's executor allocates all of T's remaining 
GST tax exemption ($270,000) to Trust. As a result of the 
allocation, the applicable fraction with respect to Trust is .90 
[$270,000 (the amount of GST tax exemption allocated to the trust) 
divided by $300,000 (the value of the property transferred to the 
trust)]. The inclusion ratio with respect to Trust is .10 [1-.90]. 
On August 1, 2008, in accordance with applicable local law, the 
trustee executes a document severing Trust into two trusts, Trust 1 
and Trust 2, each of which is identical to Trust. The instrument 
designates August 3, 2008, as the date of severance (within the 
meaning of paragraph (d)(3) of this section). The terms of the 
instrument severing Trust provide that Trust 1 is to be funded on a 
non-pro rata basis with assets having a fair market value on the 
date of severance equal to 90% of the value of Trust's assets on 
that date, and Trust 2 is to be funded with assets having a fair 
market value on the date of severance equal to 10% of the value of 
Trust's assets on that date. On August 3, 2008, the value of the 
Trust assets totals $500,000, consisting of Corporation A stock 
worth $450,000 and Corporation B stock worth $50,000. On August 4, 
2008, the trustee takes all action necessary to transfer all of the 
Corporation A stock to Trust 1 and to transfer all of the 
Corporation B stock to Trust 2. On August 6, 2008, the stock 
transfers are completed and the stock is received by the appropriate 
resulting trust. Accordingly, Trust 1 is funded with assets having a 
value equal to 90% of the value of Trust as of the date of 
severance, August 3, 2008, and Trust 2 is funded with assets having 
a value equal to 10% of the value of Trust as of the date of 
severance. Therefore, the severance constitutes a qualified 
severance, provided that all other requirements of section 
2642(a)(3) and this section are satisfied. Trust 1 will have an 
inclusion ratio of zero and Trust 2 will have an inclusion ratio of 
one.
    Example 6. [Reserved].
    Example 7. Statutory qualified severance. T dies on October 1, 
2004. T's will establishes a testamentary trust (Trust) to be funded 
with $1,000,000. Trust income is to be paid to T's child, S, for S's 
life. The trustee may also distribute trust corpus from time to 
time, in equal or unequal shares, for the benefit of any one or more 
members of the group consisting of S and T's three grandchildren 
(GC1, GC2, and GC3). On S's death, Trust is to terminate and the 
assets are to be divided equally among GC1, GC2, and GC3 (or their 
respective then-living descendants, per stirpes). On a timely filed 
Form 706, T's executor allocates all of T's remaining GST tax 
exemption ($300,000) to Trust. As a result of the allocation, the 
applicable fraction with respect to the trust is .30 [$300,000 (the 
amount of GST tax exemption allocated to the trust) divided by 
$1,000,000 (the value of the property transferred to the trust)]. 
The inclusion ratio with respect to the trust is .70 [1-.30]. On 
June 1, 2007, the trustee determines that it is in the best interest 
of the beneficiaries to sever Trust to provide a separate trust for 
each of T's three grandchildren and their respective families. The 
trustee severs Trust into two trusts, Trust 1 and Trust 2, each with 
terms and beneficiaries identical to Trust and thus each providing 
that trust income is to be paid to S for life, trust principal may 
be distributed for the benefit of any or all members of the group 
consisting of S and T's grandchildren, and, on S's death, the trust 
is to terminate and the assets are to be divided equally among GC1, 
GC2, and GC3 (or their respective then-living descendants, per 
stirpes). The instrument severing Trust provides that Trust 1 is to 
receive 30% of Trust's assets and Trust 2 is to receive 70% of 
Trust's assets. Further, each such trust is to be funded with a pro 
rata portion of each asset held in Trust. The trustee then severs 
Trust 1 into three equal trusts, Trust GC1, Trust GC2, and Trust 
GC3. Each trust is named for a grandchild of T and provides that 
trust income is to be paid to S for life, trust principal may be 
distributed for the benefit of S and T's grandchild for whom

[[Page 42297]]

the trust is named, and, on S's death, the trust is to terminate and 
the trust proceeds distributed to the respective grandchild for whom 
the trust is named. If that grandchild has predeceased the 
termination date, the trust proceeds are to be distributed to that 
grandchild's then-living descendants, per stirpes, or, if none, then 
equally to the other two trusts resulting from the severance of 
Trust 1. Each such resulting trust is to be funded with a pro rata 
portion of each Trust 1 asset. The trustee also severs Trust 2 in a 
similar manner, into Trust GC1(2), Trust GC2(2), and Trust GC3(2). 
The severance of Trust into Trust 1 and Trust 2, the severance of 
Trust 1 into Trust GC1, Trust GC2, Trust GC3, and the severance of 
Trust 2 into Trust GC1(2), Trust GC2(2) and Trust GC3(2), constitute 
qualified severances, provided that all other requirements of 
section 2642(a)(3) and this section are satisfied with respect to 
each severance. Trust GC1, Trust GC2, Trust GC3 will each have an 
inclusion ratio of zero and Trust GC1(2), Trust GC2(2), and Trust 
GC3(2) will each have an inclusion ratio of one.
    Example 8. Qualified severance deemed to precede a taxable 
termination. In 2004, T establishes an inter vivos irrevocable trust 
(Trust) for a term of 10 years providing that Trust income is to be 
paid annually in equal shares to T's child C and T's grandchild GC 
(the child of another then-living child of T). If either C or GC 
dies prior to the expiration of the 10-year term, the deceased 
beneficiary's share of Trust's income is to be paid to that 
beneficiary's then-living descendants, per stirpes, for the balance 
of the trust term. At the expiration of the 10-year trust term, the 
corpus is to be distributed equally to C and GC; if either C or GC 
is not then living, then such decedent's share is to be distributed 
instead to such decedent's then-living descendants, per stirpes. T 
allocates T's GST tax exemption to Trust such that Trust's 
applicable fraction is .50 and Trust's inclusion ratio is .50 
[1-.50]. In 2006, pursuant to applicable state law, the trustee 
severs the trust into two equal trusts, Trust 1 and Trust 2. The 
instrument severing Trust provides that Trust 1 is to receive 50% of 
the Trust assets, and Trust 2 is to receive 50% of Trust's assets. 
Both resulting trusts are identical to Trust, except that each has 
different beneficiaries: C and C's descendants are designated as the 
beneficiaries of Trust 1, and GC and GC's descendants are designated 
as the beneficiaries of Trust 2. The severance constitutes a 
qualified severance, provided all other requirements of section 
2642(a)(3) and this section are satisfied. Because the applicable 
fraction with respect to Trust is .50 and Trust was severed into two 
equal trusts, the trustee may designate which resulting trust has an 
inclusion ratio of one, and which has an inclusion ratio of zero. 
Accordingly, in the Notice of Qualified Severance reporting the 
severance, the trustee designates Trust 1 as having an inclusion 
ratio of one, and Trust 2 as having an inclusion ratio of zero. 
Because Trust 2 is a skip person under section 2613, the severance 
of Trust resulting in the distribution of 50% of Trust's corpus to 
Trust 2 would constitute a taxable termination or distribution (as 
described in section 2612(a)) of that 50% of Trust for GST tax 
purposes, but for the rule that a qualified severance is deemed to 
precede a taxable termination that is caused by the qualified 
severance. Thus, no GST tax will be due with regard to the creation 
and funding of Trust 2 because the inclusion ratio of Trust 2 is 
zero.
    Example 9. [Reserved].
    Example 10. Beneficiary's interest dependent on inclusion ratio. 
On August 8, 2006, T transfers $1,000,000 to Trust and timely 
allocates $400,000 of T's remaining GST tax exemption to Trust. As a 
result of the allocation, the applicable fraction with respect to 
Trust is .40 [$400,000 divided by $1,000,000] and Trust's inclusion 
ratio is .60 [1-.40]. Trust provides that all income of Trust will 
be paid annually to C, T's child, for life. On C's death, the corpus 
is to pass in accordance with C's exercise of a testamentary limited 
power to appoint the corpus of Trust to C's lineal descendants. 
However, Trust provides that if, at the time of C's death, Trust's 
inclusion ratio is greater than zero, then C may also appoint that 
fraction of the trust corpus equal to the inclusion ratio to the 
creditors of C's estate. On May 3, 2008, pursuant to authority 
granted under applicable state law, the trustee severs Trust into 
two trusts. Trust 1 is funded with 40% of Trust's assets, and Trust 
2 is funded with 60% of Trust's assets in accordance with the 
requirements of this section. Both Trust 1 and Trust 2 provide that 
all income of Trust will be paid annually to C during C's life. On 
C's death, Trust 1 corpus is to pass in accordance with C's exercise 
of a testamentary limited power to appoint the corpus to C's lineal 
descendants. Trust 2 is to pass in accordance with C's exercise of a 
testamentary power to appoint the corpus of Trust to C's lineal 
descendants and to the creditors of C's estate. The severance 
constitutes a qualified severance, provided that all other 
requirements of section 2642(a)(3) and this section are satisfied. 
No additional contribution or allocation of GST tax exemption is 
made to either Trust 1 or Trust 2 prior to C's death. Accordingly, 
the inclusion ratio with respect to Trust 1 is zero. The inclusion 
ratio with respect to Trust 2 is one until C's death, at which time 
C will become the transferor of Trust 2 for GST tax purposes. (Some 
or all of C's GST tax exemption may be allocated to Trust 2 upon C's 
death.)
    Example 11. Date of severance. Trust is an irrevocable trust 
that has both skip person and non-skip person beneficiaries. Trust 
holds two parcels of real estate, Property A and Property B, stock 
in Company X, a publicly traded company, and cash. On June 16, 2008, 
the local court with jurisdiction over Trust issues an order, 
pursuant to the trustee's petition authorized under state law, 
severing Trust into two resulting trusts of equal value, Trust 1 and 
Trust 2. The court order directs that Property A will be distributed 
to Trust 1 and Property B will be distributed to Trust 2, and that 
an appropriate amount of stock and cash will be distributed to each 
trust such that the total value of property distributed to each 
trust as of the date of severance will be equal. The court order 
does not mandate a particular date of funding. Trustee receives 
notice of the court order on June 24, and selects July 16, 2008, as 
the date of severance. On June 26, 2008, Trustee commences the 
process of transferring title to Property A and Property B to the 
appropriate resulting trust(s), which process is completed on July 
8, 2008. Also on June 26, the Trustee hires a professional appraiser 
to value Property A and Property B as of the date of severance and 
receives the appraisal report on Friday, October 3, 2008. On Monday, 
October 6, 2008, Trustee commences the process of transferring to 
Trust 1 and Trust 2 the appropriate amount of Company X stock valued 
as of July 16, 2008, and that transfer (as well as the transfer of 
Trust's cash) is completed by October 9, 2008. Under the facts 
presented, the funding of Trust 1 and Trust 2 occurred within 90 
days of the date of severance selected by the trustee, and within a 
reasonable time after the date of severance taking into account the 
nature of the assets involved and the need to obtain an appraisal. 
Accordingly, the date of severance for purposes of this section is 
July 16, 2008, the resulting trusts are to be funded based on the 
value of the original trust assets as of that date, and the 
severance is a qualified severance assuming that all other 
requirements of section 2642(a)(3) and this section are met. 
(However, if Trust had contained only marketable securities and 
cash, then in order to satisfy the reasonable time requirement, the 
stock transfer would have to have been commenced, and generally 
completed, immediately after the date of severance, and the cash 
distribution would have to have been made at the same time.)

    (k) Effective/applicability date--(1) In general. This section 
applies to severances occurring on or after August 2, 2007.
    (2) Transition rule. In the case of a qualified severance occurring 
after December 31, 2000, and before August 2, 2007, taxpayers may rely 
on any reasonable interpretation of section 2642(a)(3) as long as 
reasonable notice concerning the qualified severance and identification 
of the trusts involved has been given to the IRS. For this purpose, the 
proposed regulations (69 FR 51967) are treated as a reasonable 
interpretation of the statute. For purposes of the reporting provisions 
of Sec.  26.2642-6(e), notice to the IRS should be mailed by the due 
date of the gift tax return (including extensions granted) for gifts 
made during the year in which the severance occurred. If no gift tax 
return is filed, notice to the IRS should be mailed by April 15th of 
the year immediately following the year during which the severance 
occurred. For severances occurring between December 31, 2000, and 
January 1, 2007, notification should be mailed to the IRS as soon as 
reasonably practicable after August 2, 2007, if sufficient notice has 
not already been given.

0
Par. 6. Section 26.2654-1 is amended by adding paragraphs (b)(4) 
Example 3 and (c) to read as follows:

[[Page 42298]]

Sec.  26.2654-1  Certain trusts treated as separate trusts.

* * * * *
    (b) * * *
    (4) Examples. * * *

    Example 3. Formula severance. T's will establishes a 
testamentary marital trust (Trust) that meets the requirements of 
qualified terminable interest property (QTIP) if an election under 
section 2056(b)(7) is made. Trust provides that all trust income is 
to be paid to T's spouse for life. On the spouse's death, the trust 
corpus is to be held in further trust for the benefit of T's then-
living descendants. On T's date of death in January of 2004, T's 
unused GST tax exemption is $1,200,000, and T's will includes 
$200,000 of bequests to T's grandchildren. Prior to the due date for 
filing the Form 706, ``United States Estate (and Generation-Skipping 
Transfer) Tax Return,'' for T's estate, T's executor, pursuant to 
applicable state law, divides Trust into two separate trusts, Trust 
1 and Trust 2. Trust 1 is to be funded with that fraction of the 
Trust assets, the numerator of which is $1,000,000, and the 
denominator of which is the value of the Trust assets as finally 
determined for federal estate tax purposes. Trust 2 is to be funded 
with that fraction of the Trust assets, the numerator of which is 
the excess of the Trust assets over $1,000,000, and the denominator 
of which is the value of the Trust assets as finally determined for 
federal estate tax purposes. On the Form 706 filed for the estate, 
T's executor makes a QTIP election under section 2056(b)(7) with 
respect to Trust 1 and Trust 2 and a ``reverse'' QTIP election under 
section 2652(a)(3) with respect to Trust 1. Further, T's executor 
allocates $200,000 of T's available GST tax exemption to the 
bequests to T's grandchildren, and the balance of T's exemption 
($1,000,000) to Trust 1. If the requirements of paragraph (b) of 
this section are otherwise satisfied, Trust 1 and Trust 2 are 
recognized as separate trusts for GST tax purposes. Accordingly, the 
``reverse'' QTIP election and allocation of GST tax exemption with 
respect to Trust 1 are recognized and effective for generation-
skipping transfer tax purposes.

    (c) Cross reference. For rules applicable to the qualified 
severance of trusts (whether or not includible in the transferor's 
gross estate), see Sec.  26.2642-6.

PART 602--OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT

0
Par. 7. The authority citation for part 602 continues to read as 
follows:

    Authority: 26 U.S.C. 7805.


0
Par. 8. In Sec.  602.101, paragraph (b) is amended by adding entries in 
numerical order to the table to read as follows:


Sec.  602.101  OMB Control numbers.

* * * * *
    (b) * * *

------------------------------------------------------------------------
                                                            Current OMB
   CFR part or section where identified and described       Control No.
------------------------------------------------------------------------
 
                                * * * * *
1.1001-1................................................       1545-1902
 
                                * * * * *
26.2642-6...............................................       1545-1902
 
                                * * * * *
26.2654-1...............................................       1545-1902
 
                                * * * * *
------------------------------------------------------------------------


Linda E. Stiff,
Acting Deputy Commissioner for Services and Enforcement.
    Approved: July 24, 2007.
Eric Solomon,
Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. E7-14852 Filed 8-1-07; 8:45 am]
BILLING CODE 4830-01-P