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.
