Webinar Transcript (5/20/2028): “The IRS Issues Final Regulations on Gifts and Bequests from Covered Expatriates”
Host: Jonathan I. Shenkman, President & Chief Investment Officer of ParkBridge Wealth Management (Contact: jonathan@parkbridgewealth.com)
Presenter: John Kiely, Esq., McDermott Will & Emery based in New York City (Contact: jkiely@mwe.com)
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Jonathan Shenkman: Good morning and welcome to the Parkbridge Wealth Management Spring Webinar Series. This program is entitled, The Irs issues final regulations on gifts and bequests from covered expatriates, and, as always, my name is Jonathan Shankman, and I'm the President, chief investment officer of Park Bridge wealth management. In that role I serve in a fiduciary capacity to help my clients achieve their financial objectives.
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Jonathan Shenkman: The goal of my programs is to bring professionals together to help them better serve their clients, and this is done by educating attendees on the latest topics in wealth, planning, and by encouraging collaboration between a client's attorney, Cpa. And financial advisor, where appropriate my practice. Focused on working with high net worth families, businesses, and not-for-profits, I manage individual investment portfolios, trust accounts, corporate retirement plans and endowments to help my clients achieve their financial goals.
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Jonathan Shenkman: In addition to the 20 or so events I run every year. I also do a fair amount of writing on the topics of investing and financial planning. You can read my work in a variety of periodicals, including Barron, Cnbc. Forbes, Kiplinger, the Wall Street Journal, and Trust and Estates magazine to name just a few. You can see all my work on my website at parkbridgewealth.com forward slash articles, or by following me on social media at Jonathan, on money. Additionally, you can check out my weekly, podcast which is also called Jonathan on money, and you can listen to that in apple spotify or wherever you get your podcast
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Jonathan Shenkman: today, we're privileged to hear from John Kiley, from the law firm. Mcdermott will and emory based in New York City, and by way of background, John focuses his practice on advising high net worth individuals and families on a full range of estate planning and gift planning issues, including the preparation of wills, revocable trust, spousal lifetime, access, trust, Grantor retained annuity, trust, life, insurance, trust, and qualified personal resident Trusts.
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Jonathan Shenkman: John frequently lectures on diverse estate, planning topics such as gift planning for qualified small business stock under section 12, 0, 2, income tax income tax aspects of estate planning, international estate, planning options for illiquid estates and significant estate tax liabilities and proposed legislation and regulatory actions that could affect wealthy individuals and families.
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Jonathan Shenkman: Today John will be speaking about the Irs issues final regulation on gifts and bequests from covered expatriates, and with that introduction I will now turn the program over to John.
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John Kiely: Thank you, Jonathan, and Hello, everyone. And as Jonathan mentioned today, we will be reviewing the recently issued final Treasury regulations for gifts and bequests from covered expatriates
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John Kiely: by way of background.
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John Kiely: Congress was concerned that wealthy individuals with significant, unrealized gains.
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John Kiely: We're escaping the Us. Tax system
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John Kiely: by giving up their low basis by giving up their Us. Citizenship, moving to a country with a low tax or almost no tax, and then selling their highly appreciated assets
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John Kiely: that led to the creation of an exit tax under Code Section 877, A. Which we will review briefly later.
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John Kiely: however, there was still a perceived loophole in this, in that if someone renounced their Us. Citizenship and paid the exit tax at their death, there would not be a Us. Estate tax imposed because they were out of the Us. Estate tax regime. Also, the Us. Would not be able to impose
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John Kiely: a gift tax on that person because they would no longer be subject to the Us. Gift tax regime which charges the individual making the gift with the gift tax liability.
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John Kiely: So we have 28 0, 1 on the screen which was enacted in response.
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John Kiely: and it provides that a Us. Citizen, that when a Us. Citizen or resident receives a covered gift or request
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John Kiely: from a covered expatriate.
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John Kiely: The recipient, not the transfer, like our conventional system, is subject to a 40% tax on the value of property received.
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John Kiely: Now, within that sentence there are a few concepts of who is a Us. Citizen or resident, what is a covered gift or request, and who is a covered, expatriate
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John Kiely: well. At the bottom we see the highlighted text covered. Gift or request means property acquired by gift, directly or indirectly, from a covered expatriate.
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John Kiely: and property acquired directly or indirectly by reason of the death of a covered expatriate.
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John Kiely: Now a Us. Citizen or resident also includes a domestic trust, even if you may not conventionally think of a trust as being a Us. Citizen.
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John Kiely: So who are these fabulously wealthy individuals who meet the definition of a covered expatriate?
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John Kiely: Well, code section 877. A 2 provides that the exit tax applies to any individuals whose income exceeds a certain threshold for the 5 years before expatriation has a, and that that test is indexed for inflation has a net worth in excess of 2 million dollars, or in a minor one fails to certify, under penalty of perjury.
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John Kiely: that they have complied with all of the requirements of 877.
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John Kiely: The average annual net income tax test is now indexed for inflation, and is $206,000 for 2025.
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John Kiely: The section applies to us citizens who relinquish their citizenship on or after June 17, th 2,008, along with long-term residents who have relinquished their Residency status on or after June 17, th 2,008, an important issue for long-term green card holders who may ultimately decide to leave the United States.
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John Kiely: The covered expatriate, or Ce, as sometimes referred to in this presentation, is subject to a tax on a deemed sale of assets resulting in tax on unrealized gains in excess of $890,000 in 2025. This was originally $600,000 in the original statute before inflation adjustments. So this was the way to close the perceived loophole. If you want out of the Us.
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John Kiely: Tax net you 1st have to pay capital gains tax on your unrealized gains.
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John Kiely: There are a few dates to keep in mind
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John Kiely: the Heart Act, which introduced 28, 0, 1 was effective. June 17, th 2,008,
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John Kiely: the enforcement of 28 0, 1 was suspended pending issuance of final enabling regulations. There were proposed regulations in September of 2015, and with lightning speed. On January 14, th 2025, the Irs issued final regulations, effective as of January one.
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John Kiely: 2025, and as we go through this you'll want to keep track of those of 2 critical dates. June 17, th 2,008, and January 1, 2025.
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John Kiely: There are 3 broad categories of covered requests. In the final regulations.
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John Kiely: The 1st category is property acquired by a recipient on or after June 17, th 2,008, directly or indirectly, by reason of the death of a covered expatriate, but only to the extent the property would have been included in the covered expatriate's gross state. If the covered expatriate had been a Us. Citizen immediately before death
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John Kiely: category 2. Our covered quest includes property received from a covered expatriate that would have been included in the covered expatriate's estate, even if not acquired directly or indirectly, by reason of the death of the Ce. Section 2035. Inclusion, for example.
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John Kiely: the final category is distributions made by reason of the death of the Ce. From a non-electing foreign trust to the extent that distributions are attributable to covered gifts and covered requests made to that foreign trust on or after June 17, th 2,008. So keep an eye on that assets added to a trust, a non-electing foreign trust. After June 17, th 2,008
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John Kiely: distributions out of that trust, after January 1, 2025,
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John Kiely: the term covered gift has its ordinary gift tax, meaning, with minor exceptions, for transfers of intangible property by a non-resident who is not a Us. Citizen transfers to political organizations, transfers of stock to foreign corporations, the per donee exclusion under 25 0, 3 B. The exclusion for educational and medical expenses and waiver of pension rights.
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John Kiely: Now there's an important point to keep in mind here. There was a argument
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John Kiely: that 28 0, 1 was supposed to make the decision to expatriate tax neutral by eliminating this perceived loophole
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John Kiely: from the estate and gift tax.
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John Kiely: In fact, in reality 28 0, 1 will often result in a much, much harsher regime for many individuals than if they had stayed within the Us. Tax system. I imagine that all of you are familiar with the current 13,000,990 exemption amount for a statement gift tax which eliminates the transfer tax for all but the wealthiest individuals.
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John Kiely: That concept does not exist for purposes of 28. 0, 1 also, we're probably all familiar with Crummytross and the different ways in which we can multiply the benefit of annual exclusion gifts
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John Kiely: the since the way the 28 0, 1 tax is applied, it is calculated by the recipient and paid by the recipient, who only gets the benefit of one annual exclusion amount. Even if that person receives gifts from multiple covered expatriates. In a particular year.
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John Kiely: property acquired by reason of the death of a covered expatriate is one of the type of transfers
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John Kiely: covered under the definition of covered expatriate, and includes property or an interest in property
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John Kiely: acquired by reason of the covered expatriate's death. So we have our straightforward, obvious scenarios. There's a bequest under a will to a person from a covered expatriate very obvious that is covered by this rule. There may be other transfers that are not what are conventionally thought of as bequests that are still captured by this, for example.
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John Kiely: property that was titled as joint tenancy with rights of survivorship between a covered expatriate and another individual will be subject to these rules.
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John Kiely: even though there is not a bequest under a will. Also, property passing by a beneficiary designation would enacted by a covered expatriate, would be subject to these rules again, even though that's not a bequest in perhaps the most literal sense of the term.
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John Kiely: There are also some minor exceptions from what is a
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John Kiely: a covered gift. Those include taxable gifts reported on a timely filed 709.
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John Kiely: An important exception in the code are ones that were previously partially taxed. For example, if a covered expatriate creates a joint interest with a Us. Citizen. There would be some tax owed at that point, and effectively. There is a credit upon the death of the covered expatriate for some of that tax previously paid.
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John Kiely: A very, very important concept is the income tax deduction for the 28. 0, 1 tax, the Us. Recipient of a distribution from a non-electing foreign trust is allowed a deduction against income tax in the calendar year in which the Us. Recipient paid or accrued the 28 0, 1 tax!
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John Kiely: This deduction is equal to the portion of the 28. 0, 1 tax attributable to such distribution, but only to the extent that portion of the distribution is included in the Us. Recipient's gross income, which for this purpose includes accumulation distributions under 665 B,
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John Kiely: so a quick recap on conventional trust income taxation. When a trust makes a distribution of its income for a particular year, the Trust has a deduction for that income distribution. a. k. 1 is issued. The recipient picks up that distribution on their income tax return. There's a special rule for foreign trusts where
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John Kiely: the accumulated income from prior years is subject to a punitive throwback tax which are. And there's this accumulation tax for that previously undistributed income that designed to
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John Kiely: eliminate the benefit of keeping assets offshore and potentially avoiding Us. Income tax for some number of years. So it's very important
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John Kiely: to keep in mind that if someone is subject to this 28 0, 1 tax that they are also claiming the appropriate deduction on their income tax return, and just to warn about a potential, terrible scenario. Imagine someone is unaware of the 28 0, 1 tax
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John Kiely: is aware that they have to pay tax on distributions continues to pay tax every year on those distributions, and by the time they have discovered they have a 28 0, 1 tax liability! Well, they may. They will still owe the 28 0, 1 tax, but it might be too late to amend their income tax. Return
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John Kiely: to claim that deduction.
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John Kiely: Well, a foreign trust will not necessarily be all or nothing in terms of how it was funded by a covered expatriate. A person may fund a trust while they're not a covered expatriate, and after they're a covered expatriate, and multiple individuals may fund a trust, and only some of them may be a covered expatriate
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John Kiely: to deal with that situation. The Regs have a new ratio. It may remind many of us of the generation skipping transfer, tax inclusion, ratio. We have a new 28 0, 1 ratio to take into account this scenario. So what we would need to do in each situation is.
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John Kiely: if we think that the trust was funded in part hopefully in substantial part with funds from non-covered expatriates, we have to determine the ratio of what portion of it is attributable to those gifts from non-covered expatriates.
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John Kiely: so that relief sounds wonderful in the in the abstract. But now coming back down to reality.
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John Kiely: How on earth is the beneficiary supposed to have that information.
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John Kiely: For example, if someone receives a gift from someone who they think is covered expatriate, are they supposed to say, Well, wonderful! Thank you. I'm also going to want to take a look at some of your past tax returns to determine when it is. You might have funded this foreign trust.
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John Kiely: and to determine whether you are a covered expatriate in the proposed regulations. There was a very harsh rule that in the absence of adequate records there was a presumption that the entire distribution is attributable to a covered gift or request.
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John Kiely: So this could be a terrible problem if there was some information about. Just perhaps a minor amount is, was from a covered gift or request, causing a much larger trust to be subject all distributions to be subject to this punitive tax.
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John Kiely: The final regulations soften this, and the presumption can be rebutted to the extent the taxpayer can supply information that the distribution was not entirely attributable to a covered gift or covered request. So let's say, we have our typical mess where very few records exist. But we can show that upon one person's death, who was not a covered expatriate. That person's estate transferred a substantial amount
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John Kiely: into this foreign trust, which later makes a distribution to a Us. Citizen. It would be very helpful to be able to rebut the presumption at least as to that significant piece, and reduce the 28 0, 1 tax liability.
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John Kiely: Now, if a foreign trust wants to get out of this regime, it can elect to be a domestic trust. The Irs, just about 8 days ago, released a draft form 708, which is the form that is going to be used by the recipients to report their 28 0, 1 tax liability.
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John Kiely: and will also be the form that can be used for a foreign trust to elect to be a subject to these domestic trust for purposes of 28, 0, 1. So if they make that election going forward, the distribution out to the Us. Recipients will not be subject to this punitive.
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John Kiely: 28. 0, 1 tax! Well, again, that in the abstract that well, that sounds lovely. A quick way to just make an election get out of this punitive tax on future distributions. The Us. Recipient is sure to love that idea. Unfortunately, there's a very hefty toll
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John Kiely: to benefit from that rule. First, st the trustees need to pay the 28 0, 1 tax, and in order to pay that 28 0, 1 tax correctly, they need to show the computation of the 28 0, 1 ratio, if they are claiming that any portion of the transfer of property in the Trust is not from
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John Kiely: a covered expatriate. There is also ongoing reporting requirements. They need to designate a Us. Agent. They need to provide the Irs with information about all the Us. Recipients and notify the trust beneficiaries about the election. Also they must file a form 708 to report each future covered gift and bequest.
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John Kiely: The good news and bad news about that is, that in a year where no contributions are made to that trust
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John Kiely: that are covered gifts requests. They don't need to file a form 708, but, as we know, when people don't need to file a form every single year.
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John Kiely: Inevitably it does not get filed. So while that is a relief from an annual filing requirement, it may end up being a ongoing compliance burden.
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John Kiely: now determining responsibility under 28 0. 1. As I alluded to earlier, this is very different than the conventional US. Regime.
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John Kiely: where the transferor is responsible for reporting the tax and paying the tax liability. Here it is the responsibility of the US. Citizen or resident who receives the distribution to determine whether there is
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John Kiely: a 28 0, 1 tax liability, and to pay that tax, and as I alluded to earlier, it may be very difficult for that Us. Person to have the necessary information to make that determination. Now there is a public list
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John Kiely: that reports when someone renounces their Us. Citizenship. So as a 1st stop, when evaluating this, you would look to that list to see if there is a record of that person renouncing their Us. Citizenship, that in and of itself will not tell you whether that person is wealthy enough to have been a covered expatriate.
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John Kiely: We are promised that there is a forthcoming internal revenue bulletin on the circumstances in which the Irs may be permitted to disclose taxpayer, return information of the donor or donor, expatriate to help determine whether the donor or decedent was a covered expatriate.
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John Kiely: Given the the chaos at the Irs, I would not hold my breath waiting for that guidance we've learned recently in audits on estate and gift tax matters
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John Kiely: than the estate and gift tax division. Their head count is already down 30% during the current administration, and it is anticipated to go down another 20%. So staffing is going to be
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John Kiely: a a tremendous problem to even just keep up with core functions.
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John Kiely: Now, a taxpayer who reasonably concludes that a gift or request is not subject to 28 0. 1 may file a protective form, 708 to start the statute of limitations
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John Kiely: for assessment of 28 0, 1 tax. This is analogous to a situation where a person made a transfer, perhaps structured as a sale, and they are filing a protective gift tax return to very clearly state this transaction was made, and we are taking the position that it was.
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John Kiely: It was not a gift, so that the statute of Limitations does, in fact.
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John Kiely: begin to run, because there's nothing worse than a liability that builds up year after year with interest charges building up year after year.
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John Kiely: while there's not a clear, right or wrong answer that it could be a good opportunity for someone to at least consider whether this is an appropriate time to make that type of protective form 708 to start the statute of limitations on assessment. If there is a gift that there's a strong possibility that is not subject to 28, 0, 1. But perhaps there is
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John Kiely: some ambiguity. The unfortunately Banks destroy records after 6 to 8 years. So, through no fault of the taxpayer, there may simply be some gaps in the records.
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John Kiely: So why did I point out
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John Kiely: those timelines of when the statute was enacted, and when the regulate, the final regulations were released?
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John Kiely: Well, if a person expatriated before June 17, th 2,008. They cannot be a covered expatriate, so all their transfers outright to someone or to a foreign trust that has not elected into the 28 0, 1 regime is not subject to these punitive rules. If a person expatriated on or after June 17, th 2,008, they could be a covered expatriate.
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John Kiely: Now, if let's say, this covered this, someone is a covered expatriate.
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John Kiely: and they made outright gifts, and let's say they made them in (200) 910-1112, all the way up through 2024, all outright gifts.
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John Kiely: They are in the clear on this 28 0, 1 tax. There was significant concern that 28 0, 1 liability was going to be retroactive, perhaps at least retroactive to the issuance of the temporary proposed regulations, but that did not occur.
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John Kiely: However.
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John Kiely: there is continued significance to that interim period. For example, someone made, if a covered expatriate made a transfer to a foreign trust in 2,009, 1011, any of those years.
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John Kiely: and that those funds were not transferred out before the issuance of the final regulations in 2025. And now on, let's say, August 1st of this year
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John Kiely: there's a distribution out to a Us. Citizen or resident that will be subject to the 28 0, 1 attacks. So there's continuing relevance to transactions that happened between the enactment of the statute
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John Kiely: and before the issuance of the final regulations.
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John Kiely: and, as I mentioned, with the now recent issuance of the final form, 708, we have a clearer idea of what the reporting is going to to look like. So this is another item to add on your
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John Kiely: on your checklist, when you see a distribution from a foreign trust, or if you know that someone receives distributions from a foreign trust, or receives a request from overseas to ask the question about whether that might be from
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John Kiely: a covered expatriate, or it may be traced back to a covered expatriate.
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John Kiely: and with that I hope you now have a clearer idea of what the terms mean in this code section what we mean by a receipt of property by a Us. Citizen or resident, what could be a covered gift or request? And when that might happen, directly or indirectly, how the recipient is responsible for paying the tax at the rate of 40%, both determining the liability and completing the filing
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John Kiely: that a domestic trust that a Us. Citizen includes a domestic trust.
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John Kiely: and if you have any questions, feel free to reach out to me@jkielyatmwe.com, and with that I will turn it back over to Jonathan.
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Jonathan Shenkman: Great. Thank you so much, John. And if anyone has any specific questions, new business opportunities, or any other issues I'd like to discuss.
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Jonathan Shenkman: Please feel free to reach out directly to John or myself where appropriate, and I'll be sure to also include his contact information in the follow up email to this program. As I mentioned at the onset, the goal of these programs to stay up to date on timely wealth management, related topics and to collaborate where appropriate, and I think we can all agree that the clients who are best prepared are the ones who are served by a team of knowledgeable advisors. 3 more quick items before I let you go first.st My next webinar is on Thursday, June 5, th at 8 30 Am.
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Jonathan Shenkman: Featuring Angelica, Herberger and Russell Afrine, both of Cbiz advisors and are based in New York. They're going to be speaking on the topic of understanding pass-through entity taxation, and I'll be sure to send out the invitation to this program in the coming days. In the meantime, I'd love to continue to grow this webinar community. So if you have a friend, colleague, or client who would like to be notified of my upcoming webinars. They can email me with the word webinar on the subject line.
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Jonathan Shenkman: and I'll add them to my webinar distribution list. My email is Jonathan at parkbridgewealth.com. Second, you could follow all my work on X and Instagram and Jonathan on money, and by connecting with me on Linkedin, you could also listen to my weekly podcast called Jonathan of money, which is available on apple spotify, or wherever you get your podcasts. And you could also watch my practical planning videos, which I post several times a week
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Jonathan Shenkman: by following me on Youtube at jonathanmoney as well. And 3, rd please take 30 seconds to fill out my survey at the end of this program. It helps me improve my webinars and provide timely and interesting content to attendees, and I thank you in advance for that. And with that this concludes today's session. Please stay safe and healthy and have a wonderful day. Everybody.