Lapsing Crummey powers and the GST tax.

• Author: Olsen, Shirley H.
• Position: Generation-skipping transfer

The generation-skipping transfer (GST) tax is imposed on a "direct skip" to a "skip person," who is defined as:

* A natural person assigned to a generation two or more generations below the transferor's generation; or

* A trust if - all interests in the trust are held by skip persons, or - no person has an interest in the trust and at no time after the transfer to the trust may a distribution (including distributions on termination) be made to a non-skip person (Sec. 2613(a)).

An annual $10,000 exclusion from the GST tax is available for "direct skips." In addition, there is a $1 million exemption per donor.

The GST tax on subsequent distributions from a trust is determined by an "inclusion ratio," which (under Sec. 2642(a)) is the excess of one over the following fraction:

GST tax exemption

allocated to the trust

Value of the transfer

(less specified reductions)

In the case of a direct skip that is a nontaxable gift, the inclusion ratio is zero (Sec. 2642(c)(1)). However, this zero does not apply to a transfer to a trust for an individual's benefit unless the donee is the only permissible distributee during the donee's life, and the donee has a general power of appointment so that the trust property is includible in the donee's gross estate, if the trust does not terminate before the donee dies (Sec. 2642(c)(2)).

Certain trusts (such as life insurance trusts) are subject to a lapsing power of withdrawal (Crummey power) given to a grandchild. (Generally, these trusts do not meet the requirements of Sec. 2642(c)(2).) The effect of the Crummey power on the trust's inclusion ratio has been unclear; some practitioners have used a part of the $1 million exemption to assure zero inclusion for the trust. (See the Tax Clinic item, "Irrevocable Trusts and the Generation-Skipping Tax," TTA, Feb. 1992, at 101.)

However, the preamble to the proposed regulations released Dec....