01/04/2012 01:58:00 PM EST
Federal Government Access to Real Estate Transfer Information
By Adam J. Gottlieb
There are many positives of the information and
technological advances that private citizens have enjoyed over the past several
decades. For example, we can now access information at break-neck speed on our
handheld phones. We can watch a movie on a very small electronic device. We can
search for and find information that we could only dream of finding twenty
years ago. But just as we can find all
these wonderful things out there in the world using technology, so can the federal
government.
The state and local governments have for many years tracked
transfers of real property. Normally and for many decades, a transferor and a
transferee of real property have been required to file with state or local
governments certain forms containing information about transfers. The
governments have then isolated certain transfers, in particular those transfers
between one person (the "transferor") and another who is not the transferor's
spouse. Further, the federal government can access this information by
requesting it from the state or local government. If the federal government prepares the proper
request and complies with applicable laws, it can access the transfer
information.
The significance of the federal government's request and
ultimate access is profound. Now it can examine the data and seek out those
transfers for no consideration which it believes are taxable gifts. It can then
compare the questioned transactions with filed gift tax returns, if any,
reflecting those types of transfers. To the extent that there is a discrepancy
between the filed gift tax returns and the transfer information, the government
can and does ask the transferor/taxpayer to explain why a return was not filed.
The government is concerned that taxpayers have not reported a gift-taxable
transaction to the federal government and thus have given property away without
paying the appropriate gift tax.
Many years ago, New
York State
had a similar program whereby it reviewed its own state and local real estate
transfer records. Now the federal government has asked the states to provide
the information so that it can request gift tax returns for those who had not
previously filed. In some cases, the taxpayer can explain why a gift tax return
was not filed. In many other cases, a gift tax return perhaps should have been
filed but was not. The effect of making a gift is that the transferor may use
all or a portion of his or her gift tax exemption by taxable gifts made during
lifetime, which exemption is $5,120,000 for gifts made in 2012. To the extent
that all of the transferor's exemption is not completely used during lifetime
by cumulative gifts totaling more than the exemption, the unused exemption
amount is available at death. However,
if the transferor's cumulative gifts exceed the exemption amount, a gift tax is
due.
So, in the age of technological and computer advances,
governments now have an ability to access information that it couldn't access
until more recently. Progress is good,
right?
. . . .
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