Revenue Ruling 2023-2: What it Means and What You Might Do

Do assets in an irrevocable grantor trust that are not included in the settlor’s estate qualify for an income tax basis step up on the death of the grantor? In 2002, Jonathan Blattmachr and Professor Mitchell Gans authored an article analyzing this matter. This issue seems to stir up as many opinions and strong emotional reactions today as it did when it was first published. After several powerful Senators wrote a letter to Janet Yellin, the IRS issued Revenue Ruling 2023-2 stating that, in the opinion of the Service there is no basis step up for assets in a grantor trust not included in the settlor’s estate. The IRS indicated that Code Section 1014 is inapplicable because there is no estate-tax inclusion and it is not a bequest under state law. While you might have heard strong opinions pro and con on this point, what does the law actually say?

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Mr. Blattmachr is a Principal in ILS Management, LLC and a retired member of Milbank Tweed Hadley & McCloy LLP in New York, NY and of the Alaska, California and New York Bars. He is recognized as one of the most creative trusts and estates lawyers in the country and is listed in The Best Lawyers in America. He has written and lectured extensively on estate and trust taxation and charitable giving.

Professor Mitchell M. Gans is the Steven A. Horowitz distinguished professor in taxation at Hofstra University School of Law, and an Adjunct Professor of Law at NYU Law School. He is an Academic Fellow at ACTEC and is the Academic Editor of the ACTEC Journal. Professor Gans is a leading scholar in the estate-and-gift tax area, teaching courses for the IRS on estate and gift tax and valuation methodology. He is a frequent lecturer for ALI-ABA, NYU, ACTEC, the ABA and other groups and has written numerous articles on estate tax planning topics, including a recent Leimberg Information Services article, co-authored with Jonathan Blattmachr, on the Proposed Section 2704 Regulations.

Martin M. Shenkman is an attorney in private practice in Fort Lee, NJ, and New York City.  His practice concentrates on estate and tax planning, planning for closely held business, and estate administration.  Mr. Shenkman is an author of over 42 books and more than 1,000 articles.  He is an editorial board member of Trusts & Estates Magazine and the Matrimonial Strategist, and an advisor for InterActive Legal.  He is the recipient of many awards including being a 2013 recipient of the prestigious Accredited Estate Planners (Distinguished) award from the National Association of Estate Planning Counsels.  Mr. Shenkman was named Financial Planning Magazine 2012 Pro-Bono Financial Planner of the Year for his efforts on behalf of those living with chronic illness and disability.  Investment Adviser Magazine featured him on the cover of its April 2013 issue naming as the lead of their “all-star lineup of tax experts.”

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