I.R.C. § 2053(a) General Rule —
For purposes of the tax imposed by section 2001, the value of the taxable
estate shall be determined by deducting from the value of the gross estate such amounts—
I.R.C. § 2053(a)(1) —
for funeral expenses,
I.R.C. § 2053(a)(2) —
for administration expenses,
I.R.C. § 2053(a)(3) —
for claims against the estate, and
I.R.C. § 2053(a)(4) —
for unpaid mortgages on, or any indebtedness in respect of, property where the value
of the decedent's interest therein, undiminished by such mortgage or indebtedness,
is included in the value of the gross estate,
as are allowable by the laws of the jurisdiction, whether within or without the United
States, under which the estate is being administered.
I.R.C. § 2053(b) Other Administration Expenses —
Subject to the limitations in paragraph (1) of subsection (c), there shall be deducted in determining the taxable estate amounts representing
expenses incurred in administering property not subject to claims which is included
in the gross estate to the same extent such amounts would be allowable as a deduction
under subsection (a) if such property were subject to claims, and such amounts are paid before the expiration
of the period of limitation for assessment provided in section 6501.
I.R.C. § 2053(c) Limitations
I.R.C. § 2053(c)(1) Limitations Applicable To Subsections (a) And (b)
I.R.C. § 2053(c)(1)(A) Consideration For Claims —
The deduction allowed by this section in the case of claims against the estate,
unpaid mortgages, or any indebtedness shall, when founded on a promise or agreement,
be limited to the extent that they were contracted bona fide and for an adequate
and full consideration in money or money's worth; except that in any case in which
any such claim is founded on a promise or agreement of the decedent to make a contribution
or gift to or for the use of any donee described in section 2055 for the purposes specified therein, the deduction for such claims shall not be so
limited, but shall be limited to the extent that it would be allowable as a deduction
under section 2055 if such promise or agreement constituted a bequest.
I.R.C. § 2053(c)(1)(B) Certain Taxes —
Any income taxes on income received after the death of the decedent, or property
taxes not accrued before his death, or any estate, succession, legacy, or inheritance
taxes, shall not be deductible under this section.
I.R.C. § 2053(c)(1)(C) Certain Claims By Remaindermen —
No deduction shall be allowed under this section for a claim against the estate
by a remainderman relating to any property described in section 2044.
I.R.C. § 2053(c)(1)(D) Section 6166 Interest —
No deduction shall be allowed under this section for any interest payable under
section 6601 on any unpaid portion of the tax imposed by section 2001 for the period during which an extension of time for payment of such tax is in effect
under section 6166.
I.R.C. § 2053(c)(2) Limitations Applicable Only To Subsection (a) —
In the case of the amounts described in subsection (a), there shall be disallowed the amount by which the deductions specified therein
exceed the value, at the time of the decedent's death, of property subject to claims,
except to the extent that such deductions represent amounts paid before the date
prescribed for the filing of the estate tax return. For purposes of this section,
the term “property subject to claims"
means property includible in the gross estate of the decedent which, or the avails
of which, would under the applicable law, bear the burden of the payment of such
deductions in the final adjustment and settlement of the estate, except that the
value of the property shall be reduced by the amount of the deduction under section
2054 attributable to such property.
I.R.C. § 2053(d) Certain Foreign Death Taxes
I.R.C. § 2053(d)(1) In General —
Notwithstanding the provisions of subsection (c)(1)(B), for purposes of the tax imposed by section 2001, the value of the taxable estate may be determined, if the executor so elects before
the expiration of the period of limitation for assessment provided in section 6501, by deducting from the value of the gross estate the amount (as determined in accordance
with regulations prescribed by the Secretary) of any estate, succession, legacy,
or inheritance tax imposed by and actually paid to any foreign country, in respect
of any property situated within such foreign country and included in the gross estate
of a citizen or resident of the United States, upon a transfer by the decedent for
public, charitable, or religious uses described in section 2055. The determination under this paragraph of the country within which property is
situated shall be made in accordance with the rules applicable under subchapter B
(sec. 2101 and following) in determining whether property is situated within or without the
United States. Any election under this paragraph shall be exercised in accordance
with regulations prescribed by the Secretary.
I.R.C. § 2053(d)(2) Condition For Allowance Of Deduction —
No deduction shall be allowed under paragraph (1) for a foreign death tax specified therein unless the decrease in the tax imposed
by section 2001 which results from the deduction provided in paragraph (1) will inure solely for the benefit of the public, charitable, or religious transferees
described in section 2055 or section 2106(a)(2). In any case where the tax imposed by section 2001 is equitably apportioned among all the transferees of property included in the gross
estate, including those described in sections 2055 and 2106(a)(2) (taking into account any exemptions, credits, or deductions allowed by this chapter),
in determining such decrease, there shall be disregarded any decrease in the Federal
estate tax which any transferees other than those described in sections 2055 and 2106(a)(2) are required to pay.
I.R.C. § 2053(d)(3) Effect On Credit For Foreign Death Taxes Of Deduction Under This Subsection
I.R.C. § 2053(d)(3)(A) Election —
An election under this subsection shall be deemed a waiver of the right to claim
a credit, against the Federal estate tax, under a death tax convention with any foreign
country for any tax or portion thereof in respect of which a deduction is taken under
this subsection.
I.R.C. § 2053(d)(3)(B) Cross Reference —
See section 2014(f) for the effect of a deduction taken under this paragraph on the credit for foreign
death taxes.
I.R.C. § 2053(e) Marital Rights —
For provisions treating certain relinquishments of marital rights as consideration
in money or money's worth, see section 2043(b)(2).
(Aug. 16, 1954, ch. 736, 68A Stat. 389; Feb. 20, 1956,
ch. 63, 2, 70 Stat. 23; Sept. 2, 1958, Pub. L. 85-866, title I, 102(c)(3), 72 Stat. 1674; Aug. 21, 1959, Pub. L. 86-175, 1, 73 Stat. 396; Oct. 4, 1976, Pub. L. 94-455, title XIX, 1902(a)(12) (B), 1906(b)(13)(A), 90 Stat. 1806, 1834; July 18, 1984,
Pub. L. 98-369, div. A, title IV, 425(a)(2), title X, 1027(b), 98 Stat. 804, 1031; Nov. 10, 1988,
Pub. L. 100-647, title I, 1011A(g)(11), 102 Stat. 3482; Pub. L. 105-34, title V, X, Sec. 503(b)(1), 1073(b)(3), Aug. 5, 1997, 111 Stat. 788; Pub. L. 107-16, title V, Sec. 532(c)(5), June 7, 2001, 115 Stat. 38; Pub. L. 107-134, title I, Sec. 103(b)(2), Jan. 23, 2002, 115 Stat. 2427.)
BACKGROUND NOTES
AMENDMENTS
2002—Subsec. (d)(3)(B). Pub. L. 107-134, Sec. 103(b)(2), amended subpar. (B) by substituting “section 2011(d)” for “section 2011(e)”.
2001—Subsec. (d). Pub. L. 107-16, Sec. 532(c)(5), amended subsec. (d). Before amendment it read as follows:
“(d) Certain State and foreign death taxes
“(1) General rule
“Notwithstanding the provisions of subsection (c)(1)(B) of this section, for purposes
of the tax imposed by section 2001 the value of the taxable estate may be determined,
if the executor so elects before the expiration of the period of limitation for assessment
provided in section 6501, by deducting from the value of the gross estate the amount
(as determined in accordance with regulations prescribed by the Secretary) of--
“(A) Any estate, succession, legacy, or inheritance tax imposed by a State or the
District of Columbia upon a transfer by the decedent for public, charitable, or religious
uses described in section 2055 or 2106(a)(2), and
“(B) any estate, succession, legacy, or inheritance tax imposed by and actually paid
to any foreign country, in respect of any property situated within such foreign country
and included in the gross estate of a citizen or resident of the United States, upon
a transfer by the decedent for public, charitable, or religious uses described in
section 2055.
“The determination under subparagraph
(B) of the country within which property is situated shall be made in accordance with
the rules applicable under subchapter B (sec. 2101 and following) in determining whether
property is situated within or without the United States. Any election under this
paragraph shall be exercised in accordance with regulations prescribed by the Secretary.
“(2) Condition for allowance of deduction
“No deduction shall be allowed under paragraph (1) for a State death tax or a foreign
death tax specified therein unless the decrease in the tax imposed by section 2001
which results from the deduction provided in paragraph (1) will inure solely for the
benefit of the public, charitable, or religious transferees described in section 2055
or section 2106(a)(2). In any case where the tax imposed by section 2001 is equitably
apportioned among all the transferees of property included in the gross estate, including
those described in sections 2055 and 2106(a)(2) (taking into account any exemptions,
credits, or deductions allowed by this chapter), in determining such decrease, there
shall be disregarded any decrease in the Federal estate tax which any transferees
other than those described in sections 2055 and 2106(a)(2) are required to pay.
“(3) Effect on credits for State and foreign death taxes of deduction under this subsection
“(A) Election
“An election under this subsection shall be deemed a waiver of the right to claim
a credit, against the Federal estate tax, under a death tax convention with any foreign
country for any tax or portion thereof in respect of which a deduction is taken under
this subsection.
“(B) Cross references
“See section 2011(e) for the effect of a deduction taken under this subsection on
the credit for State death taxes, and see section 2014(f) for the effect of a deduction
taken under this subsection on the credit for foreign death taxes.”
1997--Subsec. (c)(1)(B). Pub. L. 105-34, Sec. 1073(b)(3), struck the last sentence of subpar. (B). Prior to amendment it read as follows:
“This subparagraph shall not apply to any increase in the tax imposed by this chapter
by reason of section 4980A(d).”
Subsec. (c)(1)(D). Pub. L. 105-34, Sec. 503(b)(1), added subpar. (D).
1988--Subsec. (c)(1)(B). Pub. L. 100-647, inserted at end
“This subparagraph shall not apply to any increase in the tax imposed by this chapter
by reason of section 4980A(d).”
1984--Subsec. (c)(1)(C). Pub. L. 98-369, 1027(b), added subpar.
(C).
Subsec. (e). Pub. L. 98-369, 425(a)(2), substituted “For provisions treating certain relinquishments of marital
rights as consideration in money or money's worth, see section 2043(b)(2)” for “For
provisions that relinquishment of marital rights shall not be deemed a consideration
‘in money or money's worth,' see section 2043(b).”
1976--Subsec. (d)(1). Pub. L. 94-455 struck out “or his delegate” after “Secretary” in provisions preceding subpar. (A)
and following subpar. (B) and struck out “or Territory” after “a State"
in subpar. (A).
1959--Subsec. (d). Pub. L. 86-175 inserted a reference to foreign death taxes in heading of subsection and par. (3)
and in text of par. (2), redesignated provisions of par. (1) as par. (1)(A)
and sentence pertaining to exercise of privilege of election, added par. (2) and sentence
for determining location of property, redesignated provisions of par. (3) as par.
(3)(B) in part, and added par. (3)(A)
and the part of (B) relating to foreign death taxes.
1958--Subsec. (d)(1). Pub. L. 85-866 struck out “or any possession of the United States,” after “District of Columbia,”.
1956--Subsecs. (d), (e). Act Feb. 20, 1956, added subsec. (d) and redesignated former
subsec.
(d) as (e).
EFFECTIVE DATE OF 2002 AMENDMENT
Amendment by Sec. 103(b)(2) of Pub. L. 107-134 applicable to estates of decedents dying on or after September 11, 2001, and in the
case of individuals dying as a result of the April 19, 1995, terrorist attack, dying
on or after April 19, 1995.
Sec. 103(d)(2) of Pub. L. 107-134 provided that:
“(2) WAIVER OF LIMITATIONS- If refund or credit of any overpayment of tax resulting
from the amendments made by this section is prevented at any time before the close
of the 1-year period beginning on the date of the enactment of this Act [enacted:
Jan. 23, 2002] by the operation of any law or rule of law (including res judicata),
such refund or credit may nevertheless be made or allowed if claim therefor is filed
before the close of such period.”
EFFECTIVE DATE OF 2001 AMENDMENTS
Amendment by Sec. 532(c)(5) of Pub. L. 107-16 applicable to estates of decedents dying and generation-skipping transfers, after
December 31, 2004.
Section 901 (Sunset of Provisions of Act) of Pub. L. 107-16, as amended by Pub. L. 107-358 and Pub. L. 111-312, 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
Amendment by Sec. 503(b)(1) of Pub. L. 105-34 applicable to estates of decedents dying after December 31, 1997. Sec. 503(d)(2)
of Pub. L. 105-34 provided the following election:
“(2) Election.--In the case of the estate of any decedent dying before January 1,
1998, with respect to which there is an election under section 6166 of the Internal Revenue Code of 1986, the executor of the estate may elect to have the amendments made by this
section apply with respect to installments due after the effective date of the election;
except that the 2-percent portion of such installments shall be equal to the amount
which would be the 4-percent portion of such installments without regard to such election.
Such an election shall be made before January 1, 1999 in the manner prescribed by
the Secretary of the Treasury and, once made, is irrevocable.”
Amendment by Sec. 1073(b)(3) of Pub. L. 105-34 applicable to estates of decedents dying after December 31, 1996.
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by Pub. L. 100-647 effective, except as otherwise provided, as if included in the provision of the Tax
Reform Act of 1986, Pub. L. 99-514, to which such amendment relates, see section 1019(a) of Pub. L. 100-647, set out as a note under section 1 of this title.
EFFECTIVE DATE OF 1984 AMENDMENT
Amendment by section 425(a)(2) of Pub. L. 98-369 applicable to estates of decedents dying after July 18, 1984, see section 425(c)(1)
of Pub. L. 98-369, set out as a note under section 2043 of this title.
Section 1027(c) of Pub. L. 98-369 provided that: “The amendments made by this section [amending sections 2053 and 2056
of this title] shall take effect as if included in the amendment made by section 403
of the Economic Recovery Tax Act of 1981 [section 403 of Pub. L. 97-34, see Effective Date of 1981 Amendment note set out under section 2056 of this title].”
EFFECTIVE DATE OF 1959 AMENDMENT
Section 4 of Pub. L. 86-175 provided that: “The amendments made by the preceding sections of this Act [amending
sections 2011, 2014, and 2053 of this title] shall apply with respect to the estates
of decedents dying on or after July 1, 1955.”
EFFECTIVE DATE OF 1958 AMENDMENT
Amendment by Pub. L. 85-866 applicable to estates of decedents dying after Sept. 2, 1958, see section 102(d)
of Pub. L. 85-866, set out as a note under section 2011 of this title.
EFFECTIVE DATE OF 1956 AMENDMENT
Section 4 of act Feb. 20, 1956, as amended by act Oct. 22, 1986, Pub. L. 99-514, 2, 100 Stat. 2095, provided that: “The amendments to the Internal Revenue Code of
1986 [formerly I.R.C. 1954] made by sections 2 and 3 of this Act [amending sections 2011 and 2053 of this title],
and provisions having the same effect as this amendment, which shall be considered
to be included in chapter 3 of the Internal Revenue Code of 1939, shall apply to the estates of all decedents dying after December 31, 1953.”
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.”
TERMINATION
Section 501(a) (Estate Tax Repeal) of Pub. L. 107-16 added Code Sec. 2210, which states that chapter 11 of subtitle B shall not apply
to the estates of decedents dying after December 31, 2009.
Note, however, that Section 901 (Sunset of Provisions of Act) of Pub. L. 107-16, as amended by Pub. L. 107-358 and Pub. L. 111-312, 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).”
