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Sec. 2010. Unified Credit Against Estate Tax

I.R.C. § 2010(a) General Rule
A credit of the applicable credit amount shall be allowed to the estate of every decedent against the tax imposed by section 2001.
I.R.C. § 2010(b) Adjustment To Credit For Certain Gifts Made Before 1977
The amount of the credit allowable under subsection (a) shall be reduced by an amount equal to 20 percent of the aggregate amount allowed as a specific exemption under section 2521 (as in effect before its repeal by the Tax Reform Act of 1976) with respect to gifts made by the decedent after September 8, 1976.
I.R.C. § 2010(c) Applicable Credit Amount
I.R.C. § 2010(c)(1) In General
For purposes of this section, the applicable credit amount is the amount of the tentative tax which would be determined under section 2001(c) if the amount with respect to which such tentative tax is to be computed were equal to the applicable exclusion amount.
I.R.C. § 2010(c)(2) Applicable Exclusion Amount
For purposes of this subsection, the applicable exclusion amount is the sum of—
I.R.C. § 2010(c)(2)(A)
the basic exclusion amount, and
I.R.C. § 2010(c)(2)(B)
in the case of a surviving spouse, the deceased spousal unused exclusion amount.
I.R.C. § 2010(c)(3) Basic Exclusion Amount
I.R.C. § 2010(c)(3)(A) In General
For purposes of this subsection, the basic exclusion amount is $5,000,000.
I.R.C. § 2010(c)(3)(B) Inflation Adjustment
In the case of any decedent dying in a calendar year after 2011, the dollar amount in subparagraph (A) shall be increased by an amount equal to—
I.R.C. § 2010(c)(3)(B)(i)
such dollar amount, multiplied by
I.R.C. § 2010(c)(3)(B)(ii)
the cost-of-living adjustment determined under section 1(f)(3) for such calendar year by substituting “calendar year 2010” for “calendar year 2016” in subparagraph (A)(ii) thereof.
I.R.C. § 2010(c)(3)(C) Increase In Basic Exclusion Amount
In the case of estates of decedents dying or gifts made after December 31, 2017, and before January 1, 2026, subparagraph (A) shall be applied by substituting “$10,000,000” for “$5,000,000.’’
If any amount as adjusted under the preceding sentence is not a multiple of $10,000, such amount shall be rounded to the nearest multiple of $10,000.
I.R.C. § 2010(c)(4) Deceased Spousal Unused Exclusion Amount
For purposes of this subsection, with respect to a surviving spouse of a deceased spouse dying after December 31, 2010, the term “deceased spousal unused exclusion amount” means the lesser of
I.R.C. § 2010(c)(4)(A)
the basic exclusion amount, or
I.R.C. § 2010(c)(4)(B)
the excess of—
I.R.C. § 2010(c)(4)(B)(i)
the applicable exclusion amount of the last such deceased spouse of such surviving spouse, over
I.R.C. § 2010(c)(4)(B)(ii)
the amount with respect to which the tentative tax is determined under section 2001(b)(1) on the estate of such deceased spouse.
I.R.C. § 2010(c)(5) Special Rules
I.R.C. § 2010(c)(5)(A) Election Required
A deceased spousal unused exclusion amount may not be taken into account by a surviving spouse under paragraph (2) unless the executor of the estate of the deceased spouse files an estate tax return on which such amount is computed and makes an election on such return that such amount may be so taken into account. Such election, once made, shall be irrevocable. No election may be made under this subparagraph if such return is filed after the time prescribed by law (including extensions) for filing such return.
I.R.C. § 2010(c)(5)(B) Examination Of Prior Returns After Expiration Of Period Of Limitations With Respect To Deceased Spousal Unused Exclusion Amount
Notwithstanding any period of limitation in section 6501, after the time has expired under section 6501 within which a tax may be assessed under chapter 11 or 12 with respect to a deceased spousal unused exclusion amount, the Secretary may examine a return of the deceased spouse to make determinations with respect to such amount for purposes of carrying out this subsection.
I.R.C. § 2010(c)(6) Regulations
The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out this subsection.
I.R.C. § 2010(d) Limitation Based On Amount Of Tax
The amount of the credit allowed by subsection (a) shall not exceed the amount of the tax imposed by section 2001.
(Added by Pub. L. 94-455, title XX, Sec. 2001(a)(2), Oct. 4, 1976, 90 Stat. 1848, and amended Pub. L. 97-34, title IV, Sec. 401(a)(1), (2)(A), Aug. 13, 1981, 95 Stat. 299; Pub. L. 101-508, title XI, Sec. 11801(a)(39), (c)(19)(A), Nov. 5, 1990, 104 Stat. 1388-521, 1388-528; Pub. L. 105-34, title V, Sec. 501(a)(1)(A), 501(a)(1)(B) , Aug. 5, 1997, 111 Stat 788; Pub. L. 107-16, title V, Sec. 521(a), June 7, 2001, 115 Stat. 38; Pub. L. 111-312, title III, Sec. 302, 303, Dec. 17, 2010, 124 Stat. 3296; Pub. L. 112-240, title I, Sec. 101(c)(2), Jan. 2, 2013, 126 Stat. 2313; Pub. L. 115-97, title I, Sec. 11002(d)(1)(CC), 11061(a), Dec. 22, 2017, 131 Stat. 2054.)
BACKGROUND NOTES
Amendments to Part
1976--Pub. L. 94-455, title XX, 2001(c)(1)(N)(ii), Oct. 4, 1976, 90 Stat. 1853, added item 2010.
AMENDMENTS
2017 — Subsec. (c)(3)(B)(ii). Pub. L. 115-97, Sec. 11002(d)(1)(CC), amended clause (ii) by substituting “for ‘calendar year 2016’ in subparagraph (A)(ii)” for ‘‘for ‘calendar year 1992’ in subparagraph (B)’’.
Subsec. (c)(3)(C). Pub. L. 115-97, title I, Sec. 11061(a), amended par. (3) by adding subpar. (C).
2013 - Subsec. (c)(4)(B)(i). Pub. L. 112-240, Sec. 101(c)(2), amended clause (i) by substituting “applicable exclusion amount” for “basic exclusion amount”.
2010 - Subsec. (c). Pub. L. 111-312, Sec. 302(a), amended subsec. (c). Before amendment, it read as follows:
“(c) Applicable Credit Amount.—For purposes of this section, the applicable credit amount is the amount of the tentative tax which would be determined under the rate schedule set forth in section 2001(c) if the amount with respect to which such tentative tax is to be computed were the applicable exclusion amount determined in accordance with the following table:
 

In the case of estates of decedents             The applicable
dying during:                                   exclusion amount is:
2002 and 2003                                      $1,000,000
2004 and 2005                                      $1,500,000
2006, 2007, and 2008                               $2,000,000
2009                                               $3,500,000.”
Subsec. (c)(2)-(6). Pub. L. 111-312, Sec. 303(a), amended subsec. (c) by striking par. (2) and adding par. (2)-(6). Before being struck, par. (2) read as follows:
“(2) APPLICABLE EXCLUSION AMOUNT.—
“(A) IN GENERAL.—For purposes of this subsection, the applicable exclusion amount is $5,000,000.
“(B) INFLATION ADJUSTMENT.—In the case of any decedent dying in a calendar year after 2011, the dollar amount in subparagraph (A) shall be increased by an amount equal to—
“(i) such dollar amount, multiplied by
“(ii) the cost-of-living adjustment determined under section 1(f)(3) for such calendar year by substituting ‘calendar year 2010’ for ‘calendar year 1992’ in subparagraph (B) thereof.
“If any amount as adjusted under the preceding sentence is not a multiple of $10,000, such amount shall be rounded to the nearest multiple of $10,000.”
2001 - Subsec. (c). Pub. L. 107-16, Sec. 521(a), amended the table in subsec. (c). Before amendment the table read as follows:
 

“In the case of estates of decedents             The applicable
dying, and gifts made, during:                  exclusion amount is:
1998                                               $ 625,000
1999                                               $ 650,000
2000 and 2001                                      $ 675,000
2002 and 2003                                      $ 700,000
2004                                               $ 850,000
2005                                               $ 950,000
2006 or thereafter                                 $1,000,000.”
1997 - Subsec. (a). Pub. L. 105-34, Sec. 501(a)(1)(A), amended subsec. (a) by substituting “the applicable credit amount" for “$192,800”.
Subsec. (c). Pub. L. 105-34, Sec. 501(a)(1)(B), redesignated subsec. (c) as subsec. (d) and added a new subsec. (c).
1990 - Subsecs. (b) to (d). Pub. L. 101-508 redesignated subsecs. (c) and (d) as (b) and (c), respectively, and struck out former subsec. (b) which provided for a phase-in of the unified credit against estate tax.
1981 - Subsec. (a). Pub. L. 97-34, Sec. 401(a)(1), substituted ‘$192,800’ for ‘$47,000’.
Subsec. (b). Pub. L. 97-34, Sec. 401(a)(2)(A), struck out ‘$47,000’ before ‘credit’ from heading and in text substituted in subsec. (a) substitutions for ‘$192,800’ amounts of ‘$62,800’, ‘$79,300’, ‘$96,300’, ‘$121,800’, and ‘$155,800’ in the case of decedents dying in 1982, 1983, 1984, 1985, and 1986, respectively, for subsec. (a) substitutions for ‘$47,000’ amounts of ‘$30,000’, ‘$34,000’, ‘$38,000’, and ‘$42,500’ in the case of decedents dying in 1977, 1978, 1979, and 1980, respectively.
EFFECTIVE DATE OF 2017 AMENDMENTS
Amendment by Pub. L. 115-97, Sec. 11002(d)(1)(CC), effective for taxable years beginning after December 31, 2017.
Amendment by Pub. L. 115-97, Sec. 11061(a), effective for estates of decedents dying and gifts made after December 31, 2017.
EFFECTIVE DATE OF 2013 AMENDMENT
Amendment by Sec. 101(c) of Pub. L. 112-240 effective as if included in the amendments made by section 303 of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 [effective for estates of decedents dying, and gifts made, after Dec. 31, 2010].
EFFECTIVE DATE OF 2010 AMENDMENTS
Amendments by Sec. 302 and 303 of Pub. L. 111-312 applicable to the estates of decedents dying, and gifts made, after December 31, 2010. Section 304 of Pub. L. 111-312, which was struck by Pub. L. 112-240, Sec. 101(a)(2), provided the following sunset provision:
“SEC. 304. APPLICATION OF EGTRRA SUNSET TO THIS TITLE. Section 901 of the Economic Growth and Tax Relief Reconciliation Act of 2001 shall apply to the amendments made by this section.”
EFFECTIVE DATE OF 2001 AMENDMENTS
Amendment by Sec. 521(a) of Pub. L. 107-16 applicable to the estates of decedents dying, and gifts made, after December 31, 2001.
Section 901 (Sunset of Provisions of Act) of Pub. L. 107-16, as amended by Pub. L. 107-358 and Pub. L. 111-312, Sec. 101(a), and struck by Pub. L. 112-240, Sec. 101(a)(1) (effective for taxable, plan, or limitation years beginning after Dec. 31, 2012, and estates of decedents dying, gifts made, or generation skipping transfers after Dec. 31, 2012), provided that:
“(a) IN GENERAL.--All provisions of, and amendments made by, this Act shall not apply--
“(1) to taxable, plan, or limitation years beginning after December 31, 2012, or
“(2) in the case of title V, to estates of decedents dying, gifts made, or generation skipping transfers, after December 31, 2012.
“(b) APPLICATION OF CERTAIN LAWS.--The Internal Revenue Code of 1986 and the Employee Retirement Income Security Act of 1974 shall be applied and administered to years, estates, gifts, and transfers described in subsection (a) as if the provisions and amendments described in subsection (a) had never been enacted.
“(c) EXCEPTION.-Subsection (a) shall not apply to section 803 (relating to no federal income tax on restitution received by victims of the Nazi regime or their heirs or estates).”
EFFECTIVE DATE OF 1997 AMENDMENTS
Amendments by Sec. 501(a)(1) of Pub. L. 105-34 applicable to the estates of decedents dying, and gifts made, after December 31, 1997.
EFFECTIVE DATE OF 1981 AMENDMENT
Section 401(c)(1) of Pub. L. 97-34 provided that: ‘The amendments made by subsection (a) (amending sections 2010 and 6018 of this title) shall apply to the estates of decedents dying after December 31, 1981’.
REINSTATEMENT OF ESTATE TAX; REPEAL OF CARRYOVER BASIS
Section 301 of Pub. L. 111-312 provided:
“(a) IN GENERAL.—Each provision of law amended by subtitle A or E of title V of the Economic Growth and Tax Relief Reconciliation Act of 2001 is amended to read as such provision would read if such subtitle had never been enacted.
“(b) CONFORMING AMENDMENT.—On and after January 1, 2011, paragraph (1) of section 2505(a) of the Internal Revenue Code of 1986 is amended to read as such paragraph would read if section 521(b)(2) of the Economic Growth and Tax Relief Reconciliation Act of 2001 had never been enacted.
“(c) SPECIAL ELECTION WITH RESPECT TO ESTATES OF DECEDENTS DYING IN 2010.—Notwithstanding subsection (a), in the case of an estate of a decedent dying after December 31, 2009, and before January 1, 2011, the executor (within the meaning of section 2203 of the Internal Revenue Code of 1986) may elect to apply such Code as though the amendments made by subsection (a) do not apply with respect to chapter 11 of such Code and with respect to property acquired or passing from such decedent (within the meaning of section 1014(b) of such Code). Such election shall be made at such time and in such manner as the Secretary of the Treasury or the Secretary's delegate shall provide. Such an election once made shall be revocable only with the consent of the Secretary of the Treasury or the Secretary's delegate. For purposes of section 2652(a)(1) of such Code, the determination of whether any property is subject to the tax imposed by such chapter 11 shall be made without regard to any election made under this subsection.
“(d) EXTENSION OF TIME FOR PERFORMING CERTAIN ACTS.—
“ (1) ESTATE TAX.—In the case of the estate of a decedent dying after December 31, 2009, and before the date of the enactment of this Act, the due date for—
“(A) filing any return under section 6018 of the Internal Revenue Code of 1986 (including any election required to be made on such a return) as such section is in effect after the date of the enactment of this Act without regard to any election under subsection (c),
“(B) making any payment of tax under chapter 11 of such Code, and
“(C) making any disclaimer described in section 2518(b) of such Code of an interest in property passing by reason of the death of such decedent, shall not be earlier than the date which is 9 months after the date of the enactment of this Act.
“(2) GENERATION-SKIPPING TAX.—In the case of any generation-skipping transfer made after December 31, 2009, and before the date of the enactment of this Act, the due date for filing any return under section 2662 of the Internal Revenue Codeof 1986 (including any election required to be made on such a return) shall not be earlier than the date which is 9 months after the date of the enactment of this Act.
“(e) EFFECTIVE DATE.—Except as otherwise provided in this section, the amendments made by this section shall apply to estates of decedents dying, and transfers made, after December 31, 2009.”
SAVINGS PROVISION
For provisions that nothing in amendment by Pub. L. 101-508 be construed to affect treatment of certain transactions occurring, property acquired, or items of income, loss, deduction, or credit taken into account prior to Nov. 5, 1990, for purposes of determining liability for tax for periods ending after Nov. 5, 1990, see section 11821(b) of Pub. L. 101-508, set out as a note under section 29 of this title.