Filing 2010 and 2011 Estate Tax Returns

08/26/2011

As a general rule, IRS Form 706, United State Estate (and Generation Skipping Transfer) Tax Return, is due on or before nine months from the decedent's date of death. However, for the majority of 2010 there was not a federal estate tax.  Instead, it was replaced by an income tax on estates based on new carryover basis rules. On December 17, 2010, Congress acted to retroactively reinstate the estate tax back to January 1, 2010 unless a decedent specifically elects out of the estate tax regime and into the carryover basis rules that had been in effect for most of 2010.   In some cases, it might make sense to have the carryover basis rules apply.  In other cases, it might make sense to have the estate tax rules apply.

If the estate tax rules apply, then an estate tax return needs to be filed.  However, for 2010, the retroactive reinstatement of the estate tax meant that estate tax returns for anyone who died in early 2010 were way past due based on the nine month rule.  Therefore, Congress decided to make 2010 Form 706 due on or before September 19, 2011 (or nine months after the date of enactment of the new law, plus two days since September 17, 2011 falls on a Saturday) for anyone who died between January 1, 2010 and December 19, 2010, and all others are due within the standard nine months.

This was good news, however September 19 is less than one month away and the IRS has still not released the final version of 2010 Form 706.  The IRS also has not released the final (or even a draft) version of 2011 Form 706 even though the first one will be on October 3, 2011 (since October 1 falls on a Saturday).

All of this prompted the American Institute for CPAs to write a letter to the IRS asking for more time to file both 2010 and 2011 estate tax returns. So far the IRS has not responded to the AICPA's request.

Obviously something needs to be done because you can't file a return without a form.  Another case of government waiting till the last minute.