Prop. regs. on graduated retained interests under Sec. 2036.

• Author: Nevius, Alistair M.

On April 30, the IRS issued proposed regulations providing guidance on the portion of trust property includible in the grantor's gross estate if the grantor has retained certain interests in the property (REG-119532-08). The retained interests covered include the use of the property and the right to an annuity, unitrust, graduated retained interest, or other payment from such property for life, for any period not ascertainable without reference to the grantor's death, or for a period that does not in fact end before the grantor's death.

The new proposed regulations address comments the IRS received in response to 2007 proposed regulations on the portion of trust corpus properly includible in a grantor's gross estate under Secs. 2036 and 2039. Rather than address those comments when the earlier proposed regulations were finalized (T.D. 9414), the IRS decided instead to issue separate proposed regulations that address the comments on graduated retained interests. (For more on the final regulations, see Ransome and Satchit, "Significant Recent Developments in Estate Planning," 39 The Tax Adviser 588 (September 2008).)

The new proposed regulations provide the method to be used to determine the portion of trust corpus includible in the grantor's gross estate if the grantor reserves a graduated retained...