[Federal Register Volume 61, Number 231 (Friday, November 29, 1996)]
[Rules and Regulations]
[Pages 60551-60559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-29827]


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DEPARTMENT OF THE TREASURY
26 CFR Parts 20 and 602

[TD 8686]
RIN 1545-AT64


Requirements to Ensure Collection of Section 2056A Estate Tax

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulations.

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SUMMARY: This document contains final regulations that provide guidance 
relating to the additional requirements necessary to ensure the 
collection of the estate tax imposed under section 2056A(b) with 
respect to taxable events involving qualified domestic trusts (QDOTs) 
described in section 2056A(a).

DATES: These regulations are effective November 29, 1996.
    For dates of applicability, see Sec. 20.2056A-2(d).

FOR FURTHER INFORMATION CONTACT: Susan Hurwitz (202) 622-3090 (not a 
toll-free number).

SUPPLEMENTARY INFORMATION:

Paperwork Reduction Act

    The collection of information contained in these final regulations 
has been reviewed and approved by the Office of Management and Budget 
in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) under 
control number 1545-1443. Responses to this collection of information 
are required in order for an estate to be eligible for the estate tax 
marital deduction in cases where the surviving spouse is not a United 
States citizen.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless the collection of 
information displays a valid control number.
    The estimated annual burden per respondent varies from 30 minutes 
to 3 hours, depending on individual circumstances, with an estimated 
average of 1.39 hours.
    Comments concerning the accuracy of this burden estimate and 
suggestions for reducing this burden should be sent to the Internal 
Revenue Service, Attn: IRS Reports Clearance Officer T:FP, Washington, 
DC 20224, and to the Office of Management and Budget, Attention: Desk 
Officer for the Department of the Treasury, Office of Information and 
Regulatory Affairs, Washington, DC 20503.
    Books or records relating to this collection of information must be 
retained as long as their contents may become material in the 
administration of any internal revenue law. Generally, tax returns and 
tax return information are confidential, as required by 26 U.S.C. 6103.

Background

    A notice of proposed rulemaking was published in the Federal 
Register on January 5, 1993 (58 FR 305), reflecting amendments to the 
Internal Revenue Code by the Technical and Miscellaneous Revenue Act of 
1988 (Public Law 100-647), the Revenue Reconciliation Act of 1989 
(Public Law 101-239), and the Revenue Reconciliation Act of 1990 
(Public Law 101-508). The amendments generally relate to sections 2056 
and 2523, and affect the availability of the estate and gift tax 
marital deduction when the surviving spouse or the donee spouse is not 
a United States citizen. Part of the NPRM was published in the Federal 
Register as final regulations, in TD 8612, on August 22, 1995 (60 FR 
43531). That part of the NPRM that addressed the regulatory 
requirements to ensure the collection of the estate tax imposed by 
section 2056A(b)(1) (A) and (B) was published in the Federal Register 
on August 22, 1995, in the form of temporary and proposed regulations, 
(60 FR 43554 and 60 FR 43575, respectively) in order to afford the 
public a further opportunity to comment on these security arrangements.
    On January 16, 1996, the IRS held a hearing on the temporary and 
proposed regulations. These final regulations reflect the comments 
received in response to the temporary and proposed regulations.

Explanation of Provisions

    The following is a summary of the significant comments received and 
the reasons for accepting or rejecting those comments in the final 
regulations.
    Under the temporary regulations, a qualified domestic trust (QDOT) 
that has assets in excess of $2 million, may alternate among the three 
security arrangements provided in the regulations (U.S. bank trustee, 
bond or letter of credit), provided that at all times, at least one of 
the three arrangements is in effect. A QDOT with assets of $2 million 
or less need not satisfy these requirements, if, in general, the trust 
holdings of foreign situs real property are limited to 35 percent of 
the fair market value of the trust corpus.
    Comments were received that trusts in actual compliance with these 
regulatory requirements, but which do not explicitly include the 
required language, will not qualify as a QDOT. In addition, comments 
suggested that the imposition of numerous governing instrument 
requirements will increase the difficulty of drafting a QDOT and result 
in a trust document that will have to include detailed provisions, many 
of which are not likely to be applicable. A suggestion was made that if 
the governing instrument requirement is retained in the regulations, 
then the required security provisions should be permitted to be 
incorporated by reference in a trust document. This suggestion was 
adopted. However, in order to assist taxpayers who may wish to specify 
the required provisions in the governing instrument, the IRS has 
published guidance in the Internal Revenue Bulletin (see 
Sec. 602.101(d)(2) of this chapter) providing sample language that may 
be used in a QDOT instrument to satisfy the additional security 
requirements contained in the final regulations.
    In response to comments, the language of the regulations has been 
modified to clarify that the QDOT may alternate among the three 
arrangements provided in the regulations as long as, at any given time, 
one of the three arrangements is required to be operative.
    Comments suggested that the temporary regulations may be viewed as 
requiring that a QDOT that initially employs the bank trustee security 
alternative must, irrespective of whether the QDOT has switched to 
another security option, continue to have at least one U.S. Bank acting 
as a trustee. In response to this comment, the final regulations 
clarify that, if the QDOT changes to a different security arrangement, 
a U.S. bank need not continue to act as trustee.
    Under the temporary regulations, in determining whether the value 
of the assets passing to a QDOT are in excess of, or less than, $2 
million, indebtedness with respect to the assets is not taken into 
account to reduce value. Similarly,

[[Page 60552]]

under the temporary regulations, the amount of the bond or letter of 
credit that is furnished to the IRS must be equal to 65 percent of the 
fair market value of the trust assets determined ``without regard to 
any indebtedness thereon.'' Comments suggested that indebtedness should 
be taken into account in determining whether the $2 million dollar 
threshold has been exceeded and the amount of the bond or letter of 
credit required. This change has not been made. The IRS and Treasury 
believe that the retention of the rule that indebtedness on the 
property is not taken into account to reduce value most effectively 
ensures collection of the estate tax imposed under section 2056A(b). 
For the limited purpose under this section (i.e., to determine whether 
the $2 million threshold is exceeded and the amount of the bond or 
letter of credit to be furnished to the IRS) the complexity that would 
be involved in drafting rules to determine which debts qualify to be 
taken into account and which do not is not warranted.
    Under the temporary regulations, with regard to the bond and letter 
of credit security options, if the fair market value of the trust 
assets, is ``finally determined'' to be in excess of the value of the 
trust assets as originally reported, the trustee has a reasonable 
period of time (not exceeding sixty days from the date of the final 
determination) to adjust the amount of the bond or letter of credit. 
The temporary regulations also use the term ``finally determined'' in 
addressing substantial undervaluations of property passing to a QDOT 
and the grace period provided to meet the security requirements when a 
QDOT is determined to contain assets in excess of $2 million. Comments 
were received suggesting that the regulations provide a definition of 
``finally determined''.
    Accordingly, the final regulations provide that the value of the 
assets will be finally determined on the earliest to occur of--
    1. The entry of a decision, judgment, decree, or other order by any 
court of competent jurisdiction that has become final;
    2. The execution of a closing agreement made under section 7121;
    3. Any final disposition by the IRS of a claim for refund;
    4. The issuance of an estate tax closing letter (if no claim for 
refund is filed); or
    5. The expiration of the statute of limitations for assessment with 
respect to the decedent's estate tax liability.
    In response to comments, the regulation addressing the required 
duration of the bond or letter of credit has been clarified to provide 
that the security arrangement must remain in effect until the trust 
ceases to function as a QDOT.
    Comments have been received regarding the amount of the bond or 
letter of credit that must be furnished to the IRS. One commentator 
stated that, since the purpose of the bond or letter of credit 
requirement is to provide a source of funds for the payment of the 
section 2056A(b) estate tax, the amount of the required bond or letter 
of credit should be based on either the maximum federal estate tax 
rate, or the amount of estate tax deferred, rather than 65% of the 
value of the QDOT, as provided in the regulations. This suggestion has 
not been adopted. Generally, the regulation requires a bond of 65 
percent of the initial fair market value of the trust assets to ensure 
that the potential estate tax liability is adequately secured if the 
trust property appreciates in value.
    The temporary regulations providing that notice of failure to renew 
a bond or letter of credit must be ``received by the IRS at least 60 
days prior to the end of the term of the bond or letter of credit'' has 
been changed to reference the date the notice is ``mailed to'' the IRS. 
Further, under the final regulations, the notice must also be mailed to 
the U.S. Trustee of the QDOT.
    Under the regulations, in the case of a QDOT of less than $2 
million, if on the last day of a taxable year of the QDOT, the value of 
foreign real property owned by the QDOT exceeds 35 percent of the QDOT 
assets because of distributions of principal during that year, or 
because of fluctuations in the value of the foreign currency in the 
jurisdiction where the real property is located, a grace period of one 
year is provided to allow the trustee to comply with the 35 percent 
limit. Comments suggested that changes in the relative value of the 
trust assets would also cause the trust to fail to satisfy the 35 
percent limit, and failure to comply due to such changes that are 
beyond the control of the trustee should also be eligible for the grace 
period. Accordingly, under the final regulations, the trustee will also 
be accorded the grace period to satisfy the 35 percent limit if, as a 
result of changes in the relative values of the trust assets, more than 
35 percent of the value of the trust consists of foreign real estate.
    Under the temporary regulations, for purposes of determining 
whether the $2 million threshold has been exceeded, and for purposes of 
determining the amount of the bond or letter of credit, the executor of 
the decedent's estate may exclude up to $600,000 in value attributable 
to real property wherever situated (and related furnishings) owned 
directly by the QDOT that is used by the surviving spouse as the 
spouse's principal residence. Comments were received that the 
regulations should be expanded to allow the exclusion of all 
residential real property that is actually used by the surviving 
spouse. Thus, a vacation home or second home would qualify for the 
exclusion. It was also suggested that all personally used residential 
real property, regardless of value, should be eligible for the 
exclusion. The final regulations do not change the monetary limit of 
$600,000 for the exclusion. The $600,000 limit for the exclusion 
facilitates the reduction of the costs associated with providing 
security while adequately ensuring the collection of the section 
2056A(b) tax. This is especially the case in situations where the 
residential real property is situated outside the United States so that 
a significant collection risk is presented. However, under the final 
regulations the exclusion has been redesignated as a ``personal 
residence'' exclusion. The exclusion is now available for the principal 
residence of the surviving spouse and one additional residence, to the 
extent the combined value excluded does not exceed $600,000. The second 
residence will be eligible for the exclusion only if the residence is 
used by the surviving spouse as a personal residence and not subject to 
any rental arrangement with any person.
    Under the temporary regulations, the residence exclusion election 
is made by attaching a written statement to the estate tax return on 
which the QDOT election is made. Commentators suggested that the final 
regulations allow the election to be made at any time during the term 
of the QDOT, and not necessarily at the time of filing of the 
decedent's estate tax return. For example, if the bank trustee 
alternative is selected by the trustee of the QDOT, but at some future 
date the trustee desires to change to the bond or letter of credit 
security arrangement, the trustee should be given the opportunity to 
make a delayed election of the exclusion. In response to these 
comments, the final regulations provide that the election may be made 
at any time during the term of the QDOT. In addition, the final 
regulation provides for the cancellation of a prior election.
    Under the temporary regulations, the U.S. Trustee of a QDOT is 
required to file an annual statement with the IRS containing specified 
items of information (including a list of all assets held by the QDOT 
together with the fair market value of each asset determined as of the 
last day of the taxable year) if the residence exclusion applies during 
the taxable year. Comments were

[[Page 60553]]

received suggesting that the cost of compliance with this annual 
reporting requirement will limit the utility of the residence 
exclusion. In response to these comments, annual reporting is no longer 
required solely because the personal residence exclusion was elected. 
However, the regulations retain the annual reporting requirement where 
the residence previously subject to the exclusion is sold, or where the 
residence ceases to be used as a personal residence during the taxable 
or calendar year.
    Under the temporary regulations, if a residence that is subject to 
the exclusion is sold during the term of the QDOT, the exclusion will 
continue to apply if, within 12 months of the date of sale, the amount 
of the adjusted sales price (as defined in section 1034(d)(1)) is used 
to purchase a new residence for the spouse. In response to comments, 
this provision has been amended to provide that if a residence ceases 
to be used as the personal residence of the spouse, or if the residence 
is sold during the term of the QDOT, the exclusion may be applied to 
another residence that is held in either the same QDOT or in another 
QDOT, if the other residence is used as a personal residence of the 
spouse. The amount of exclusion that may be applied to the new personal 
residence under these circumstances can be up to $600,000 (less that 
amount previously allocated to a residence that continues to qualify 
for the exclusion) even if the entire $600,000 exclusion was not 
previously used for the initial personal residence(s).
    Also, under the temporary regulations, on the sale of a residence, 
if less than the entire adjusted sales price is reinvested in a new 
residence, then the amount of the exclusion initially claimed by the 
QDOT is reduced proportionately. For example, if a residence is sold 
for an adjusted sales price of $1,000,000 and a new residence is 
acquired for $800,000, then, the original exclusion would be reduced by 
$120,000 to $480,000: $200,000 (adjusted sales price not reinvested)/
$1,000,000 (adjusted sales price)  x  $600,000. Comments were received 
suggesting that this rule be changed to provide that the amount of the 
exclusion as adjusted not be reduced below the amount actually 
reinvested (up to $600,000). This suggestion was adopted in the final 
regulations, reflecting that two residences can now qualify for the 
$600,000 exclusion.

Special Analyses

    It has also been determined that section 553(b) of the 
Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to 
these regulations, and because the notice of proposed rulemaking 
preceding the regulations was issued prior to March 29, 1996, the 
Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply.

Drafting Information

    The principal author of these regulations is Susan Hurwitz, Office 
of Assistant Chief Counsel (Passthroughs and Special Industries). 
However, other personnel from the IRS and Treasury Department 
participated in their development.

List of Subjects

26 CFR Part 20

    Estate taxes, Reporting and recordkeeping requirements.

26 CFR Part 602

    Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

    Accordingly, 26 CFR parts 20 and 602 are amended as follows:

PART 20--ESTATE TAX; ESTATES OF DECEDENTS DYING AFTER AUGUST 16, 
1954

    Paragraph 1. The authority citation for part 20 continues to read 
in part as follows:

    Authority: 26 U.S.C. 7805 * * *

    Par. 2. In Sec. 20.2056A-0, the table of contents is amended by 
revising the entry for Sec. 20.2056A-2(d) to read as follows:


Sec. 20.2056A-0  Table of contents.

* * * * *


Sec. 20.2056A-2  Requirements for qualified domestic trust.

* * * * *
    (d) Additional requirements to ensure collection of the section 
2056A estate tax.
    (1) Security and other arrangements for payment of estate tax 
imposed under section 2056A(b)(1).
    (2) Individual trustees.
    (3) Annual reporting requirements.
    (4) Request for alternate arrangement or waiver.
    (5) Adjustment of dollar threshold and exclusion.
    (6) Effective date and special rules.
* * * * *
    Par. 3. In Sec. 20.2056A-2, paragraph (d) is added to read as 
follows:


Sec. 20.2056A-2  Requirements for qualified domestic trust.

* * * * *
    (d) Additional requirements to ensure collection of the section 
2056A estate tax--(1) Security and other arrangements for payment of 
estate tax imposed under section 2056A(b)(1)--(i) QDOTs with assets in 
excess of $2 million. If the fair market value of the assets passing, 
treated, or deemed to have passed to the QDOT (or in the form of a 
QDOT), determined without reduction for any indebtedness with respect 
to the assets, as finally determined for federal estate tax purposes, 
exceeds $2 million as of the date of the decedent's death or, if 
applicable, the alternate valuation date (adjusted as provided in 
paragraph (d)(1)(iii) of this section), the trust instrument must meet 
the requirements of either paragraph (d)(1)(i) (A), (B), or (C) of this 
section at all times during the term of the QDOT. The QDOT may 
alternate between any of the arrangements provided in paragraphs 
(d)(1)(i) (A), (B), and (C) of this section provided that, at any given 
time, one of the arrangements must be operative. See paragraph 
(d)(1)(iii) of this section for the definition of finally determined. 
The QDOT may provide that the trustee has the discretion to use any one 
of the security arrangements or may provide that the trustee is limited 
to using only one or two of the arrangements specified in the trust 
instrument. A trust instrument that specifically states that the trust 
must be administered in compliance with paragraph (d)(1)(i) (A), (B), 
or (C) of this section is treated as meeting the requirements of 
paragraphs (d)(1)(i) (A), (B), or (C) of this section for purposes of 
paragraphs (d)(1)(i) and, if applicable, (d)(1)(ii) of this section.
    (A) Bank Trustee. Except as otherwise provided in paragraph (d)(6) 
(ii) or (iii) of this section, the trust instrument must provide that 
whenever the Bank Trustee security alternative is used for the QDOT, at 
least one U.S. Trustee must be a bank as defined in section 581. 
Alternatively, except as otherwise provided in paragraph (d)(6) (ii) or 
(iii) of this section, at least one trustee must be a United States 
branch of a foreign bank, provided that, in such cases, during the 
entire term of the QDOT a U.S. Trustee must act as a trustee with the 
foreign bank trustee.
    (B) Bond. Except as otherwise provided in paragraph (d)(6) (ii) or 
(iii) of this section, the trust instrument must provide that whenever 
the bond security arrangement alternative is used for the QDOT, the 
U.S. Trustee must furnish a bond in favor of the Internal Revenue 
Service in an amount equal to 65 percent of the fair market value of 
the trust assets (determined without regard to any indebtedness with 
respect to the assets) as of the date of the decedent's death (or 
alternate valuation date, if

[[Page 60554]]

applicable), as finally determined for federal estate tax purposes (and 
as further adjusted as provided in paragraph (d)(1)(iv) of this 
section). If, after examination of the estate tax return, the fair 
market value of the trust assets, as originally reported on the estate 
tax return, is adjusted (pursuant to a judicial proceeding or 
otherwise) resulting in a final determination of the value of the 
assets as reported on the return, the U.S. Trustee has a reasonable 
period of time (not exceeding sixty days after the conclusion of the 
proceeding or other action resulting in a final determination of the 
value of the assets) to adjust the amount of the bond accordingly. But 
see, paragraph (d)(1)(i)(D) of this section for a special rule in the 
case of a substantial undervaluation of QDOT assets. Unless an 
alternate arrangement under paragraph (d)(1)(i) (A), (B), or (C) of 
this section, or an arrangement prescribed under paragraph (d)(4) of 
this section, is provided, or the trust is otherwise no longer subject 
to the requirements of section 2056A pursuant to section 2056A(b)(12), 
the bond must remain in effect until the trust ceases to function as a 
QDOT and any tax liability finally determined to be due under section 
2056A(b) is paid, or is finally determined to be zero.
    (1) Requirements for the bond. The bond must be with a satisfactory 
surety, as prescribed under section 7101 and Sec. 301.7101-1 of this 
chapter (Regulations on Procedure and Administration), and is subject 
to Internal Revenue Service review as may be prescribed by the 
Commissioner. The bond may not be cancelled. The bond must be for a 
term of at least one year and must be automatically renewable at the 
end of that term, on an annual basis thereafter, unless notice of 
failure to renew is mailed to the U.S. Trustee and the Internal Revenue 
Service at least 60 days prior to the end of the term, including 
periods of automatic extensions. Any notice of failure to renew 
required to be sent to the Internal Revenue Service must be sent to the 
Estate and Gift Tax Group in the District Office of the Internal 
Revenue Service that has examination jurisdiction over the decedent's 
estate (Internal Revenue Service, District Director, [specify location] 
District Office, Estate and Gift Tax Examination Group, [specify Street 
Address, City, State, Zip Code]) (or in the case of noncitizen 
decedents and United States citizens who die domiciled outside the 
United States, Estate Tax Group, Assistant Commissioner 
(International), 950 L'Enfant Plaza, CP:IN:D:C:EX:HQ:1114, Washington, 
DC 20024). The Internal Revenue Service will not draw on the bond if, 
within 30 days of receipt of the notice of failure to renew, the U.S. 
Trustee notifies the Internal Revenue Service (at the same address to 
which notice of failure to renew is to be sent) that an alternate 
arrangement under paragraph (d)(1)(i) (A), (B), or (C) or (d)(4) of 
this section, has been secured and that the arrangement will take 
effect immediately prior to or upon expiration of the bond.
    (2) Form of bond. The bond must be in the following form (or in a 
form that is the same as the following form in all material respects), 
or in such alternative form as the Commissioner may prescribe by 
guidance published in the Internal Revenue Bulletin (see 
Sec. 601.601(d)(2) of this chapter):

    Bond in Favor of the Internal Revenue Service To Secure Payment 
of Section 2056A Estate Tax Imposed Under Section 2056A(b) of the 
Internal Revenue Code.
    KNOW ALL PERSONS BY THESE PRESENTS, That the undersigned, 
________, the SURETY, and ________, the PRINCIPAL, are irrevocably 
held and firmly bound to pay the Internal Revenue Service upon 
written demand that amount of any tax up to $[amount determined 
under paragraph (d)(1)(i)(B) of this section], imposed under section 
2056A(b)(1) of the Internal Revenue Code (including penalties and 
interest on said tax) determined by the Internal Revenue Service to 
be payable with respect to the principal as trustee for: [Identify 
trust and governing instrument, name and address of trustee], a 
qualified domestic trust as defined in section 2056A(a) of the 
Internal Revenue Code, for the payment of which the said Principal 
and said Surety, bind themselves, their heirs, executors, 
administrators, successors and assigns, jointly and severally, 
firmly by these presents.
    WHEREAS, The Internal Revenue Service may demand payment under 
this bond at any time if the Internal Revenue Service in its sole 
discretion determines that a taxable event with respect to the trust 
has occurred; the trust no longer qualifies as a qualified domestic 
trust as described in section 2056A(a) of the Internal Revenue Code 
and the regulations promulgated thereunder, or a distribution 
subject to the tax imposed under section 2056A(b)(1) has been made. 
Demand by the Internal Revenue Service for payment may be made 
whether or not the tax and tax return (Form 706-QDT) with respect to 
the taxable event is due at the time of such demand, or an 
assessment has been made by the Internal Revenue Service with 
respect to the tax.
    NOW THEREFORE, The condition of this obligation is such that it 
must not be cancelled and, if payment of all tax liability finally 
determined to be imposed under section 2056A(b) is made, then this 
obligation is null and void; otherwise, this obligation is to remain 
in full force and effect for one year from its effective date and is 
to be automatically renewable on an annual basis unless, at least 60 
days prior to the expiration date, including periods of automatic 
renewals, the surety mails to the U.S. Trustee and the Internal 
Revenue Service by Registered or Certified Mail, return receipt 
requested, notice of the failure to renew. Receipt of this notice of 
failure to renew by the Internal Revenue Service may be considered a 
taxable event. The Internal Revenue Service will not draw upon the 
bond if, within 30 days of receipt of the notice of failure to 
renew, the trustee notifies the Internal Revenue Service that an 
alternate security arrangement has been secured and that the 
arrangement will take effect immediately prior to or upon expiration 
of the bond. The surety remains liable for all taxable events 
occurring prior to the date of expiration. All notices required to 
be sent to the Internal Revenue Service under this instrument should 
be sent to District Director, [specify location] District Office, 
Estate and Gift Tax Examination Group, Street Address, City, State, 
Zip Code. (In the case of nonresident noncitizen decedents and 
United States citizens who die domiciled outside the United States, 
all notices should be sent to Estate Tax Group, Assistant 
Commissioner (International), 950 L'Enfant Plaza, 
CP:IN:D:C:EX:HQ:1114, Washington, DC 20024).
    This bond shall be effective as of ______. Principal ______ Date 
______ Surety ______ Date ______

    (3) Additional governing instrument requirements. The trust 
instrument must provide that in the event the Internal Revenue Service 
draws on the bond, in accordance with its terms, neither the U.S. 
Trustee nor any other person will seek a return of any part of the 
remittance until after April 15th of the calendar year following the 
year in which the bond is drawn upon. After that date, any such 
remittance will be treated as a deposit and returned (without interest) 
upon request of the U.S. Trustee, unless it is determined that 
assessment or collection of the tax imposed by section 2056A(b)(1) is 
in jeopardy, within the meaning of section 6861. If an assessment under 
section 6861 is made, the remittance will first be credited to any tax 
liability reported on the Form 706-QDT, then to any unpaid balance of a 
section 2056A(b)(1)(A) tax liability (plus interest and penalties) for 
any prior taxable years, and any balance will then be returned to the 
U.S. Trustee.
    (4) Procedure. The bond is to be filed with the decedent's federal 
estate tax return, Form 706 or 706NA (unless an extension for filing 
the bond is granted under Sec. 301.9100 of this chapter). The U.S. 
Trustee must provide a written statement with the bond that provides a 
list of the assets that will be used to fund the QDOT and the 
respective values of the assets. The written statement must also 
indicate whether

[[Page 60555]]

any exclusions under paragraph (d)(1)(iv) of this section are claimed.
    (C) Letter of credit. Except as otherwise provided in paragraph 
(d)(6) (ii) or (iii) of this section, the trust instrument must provide 
that whenever the letter of credit security arrangement is used for the 
QDOT, the U.S. Trustee must furnish an irrevocable letter of credit 
issued by a bank as defined in section 581, a United States branch of a 
foreign bank, or a foreign bank with a confirmation by a bank as 
defined in section 581. The letter of credit must be for an amount 
equal to 65 percent of the fair market value of the trust assets 
(determined without regard to any indebtedness with respect to the 
assets) as of the date of the decedent's death (or alternate valuation 
date, if applicable), as finally determined for federal estate tax 
purposes (and as further adjusted as provided in paragraph (d)(1)(iv) 
of this section). If, after examination of the estate tax return, the 
fair market value of the trust assets, as originally reported on the 
estate tax return, is adjusted (pursuant to a judicial proceeding or 
otherwise) resulting in a final determination of the value of the 
assets as reported on the return, the U.S. Trustee has a reasonable 
period of time (not exceeding 60 days after the conclusion of the 
proceeding or other action resulting in a final determination of the 
value of the assets) to adjust the amount of the letter of credit 
accordingly. But see, paragraph (d)(1)(i)(D) of this section for a 
special rule in the case of a substantial undervaluation of QDOT 
assets. Unless an alternate arrangement under paragraph (d)(1)(i) (A), 
(B), or (C) of this section, or an arrangement prescribed under 
paragraph (d)(4) of this section, is provided, or the trust is 
otherwise no longer subject to the requirements of section 2056A 
pursuant to section 2056A(b)(12), the letter of credit must remain in 
effect until the trust ceases to function as a QDOT and any tax 
liability finally determined to be due under section 2056A(b) is paid 
or is finally determined to be zero.
    (1) Requirements for the letter of credit. The letter of credit 
must be irrevocable and provide for sight payment. The letter of credit 
must have a term of at least one year and must be automatically 
renewable at the end of the term, at least on an annual basis, unless 
notice of failure to renew is mailed to the U.S. Trustee and the 
Internal Revenue Service at least sixty days prior to the end of the 
term, including periods of automatic renewals. If the letter of credit 
is issued by the U.S. branch of a foreign bank and the U.S. branch is 
closing, the branch (or foreign bank) must notify the U.S. Trustee and 
the Internal Revenue Service of the closure and the notice of closure 
must be mailed at least 60 days prior to the date of closure. Any 
notice of failure to renew or closure of a U.S. branch of a foreign 
bank required to be sent to the Internal Revenue Service must be sent 
to the Estate and Gift Tax Group in the District Office of the Internal 
Revenue Service that has examination jurisdiction over the decedent's 
estate (Internal Revenue Service, District Director, [specify location] 
District Office, Estate and Gift Tax Examination Group, [Street 
Address, City State, Zip Code]) (or in the case of noncitizen decedents 
and United States citizens who die domiciled outside the United States, 
Estate Tax, Assistant Commissioner (International), 950 L'Enfant Plaza, 
CP:IN:D:C:EX:HQ:1114, Washington, DC 20024). The Internal Revenue 
Service will not draw on the letter of credit if, within 30 days of 
receipt of the notice of failure to renew or closure of the U.S. branch 
of a foreign bank, the U.S. Trustee notifies the Internal Revenue 
Service (at the same address to which notice is to be sent) that an 
alternate arrangement under paragraph (d)(1)(i) (A), (B), or (C), or 
(d)(4) of this section, has been secured and that the arrangement will 
take effect immediately prior to or upon expiration of the letter of 
credit or closure of the U.S. branch of the foreign bank.
    (2) Form of letter of credit. The letter of credit must be made in 
the following form (or in a form that is the same as the following form 
in all material respects), or an alternative form that the Commissioner 
prescribes by guidance published in the Internal Revenue Bulletin (see 
Sec. 601.601(d)(2) of this chapter):

[Issue Date]
To: Internal Revenue Service
Attention: District Director, [specify location] District Office
Estate and Gift Tax Examination Group [Street Address, City, State, 
ZIP Code]

[Or in the case of nonresident noncitizen decedents and United 
States citizens who die domiciled outside the United States,

To: Estate Tax Group, Assistant Commissioner (International) 950 
L'Enfant Plaza CP:IN:D:C:EX:HQ:1114 Washington, DC 20024].

    Dear Sirs: We hereby establish our irrevocable Letter of Credit 
No. ____ in your favor for drawings up to U.S. $ [Applicant should 
provide bank with amount which Applicant determined under paragraph 
(d)(1)(i)(C)] effective immediately. This Letter of Credit is 
issued, presentable and payable at our office at ________ and 
expires at 3:00 p.m. [EDT, EST, CDT, CST, MDT, MST, PDT, PST] on 
____ at said office.
    For information and reference only, we are informed that this 
Letter of Credit relates to [Applicant should provide bank with the 
identity of qualified domestic trust and governing instrument], and 
the name, address, and identifying number of the trustee is 
[Applicant should provide bank with the trustee name, address and 
the QDOT's TIN number, if any].
    Drawings on this Letter of Credit are available upon 
presentation of the following documents:
    1. Your draft drawn at sight on us bearing our Letter of Credit 
No. ____; and
    2. Your signed statement as follows:
    The amount of the accompanying draft is payable under [identify 
bank] irrevocable Letter of Credit No. ______ pursuant to section 
2056A of the Internal Revenue Code and the regulations promulgated 
thereunder, because the Internal Revenue Service in its sole 
discretion has determined that a ``taxable event'' with respect to 
the trust has occurred; e.g., the trust no longer qualifies as a 
qualified domestic trust as described in section 2056A of the 
Internal Revenue Code and regulations promulgated thereunder, or a 
distribution subject to the tax imposed under section 2056A(b)(1) of 
the Internal Revenue Code has been made.
    Except as expressly stated herein, this undertaking is not 
subject to any agreement, requirement or qualification. The 
obligation of [Name of Issuing Bank] under this Letter of Credit is 
the individual obligation of [Name of Issuing Bank] and is in no way 
contingent upon reimbursement with respect thereto.
    It is a condition of this Letter of Credit that it is deemed to 
be automatically extended without amendment for a period of one year 
from the expiration date hereof, or any future expiration date, 
unless at least 60 days prior to any expiration date, we mail to you 
and to the U.S. Trustee notice by Registered Mail or Certified Mail, 
return receipt requested, or by courier to your and the trustee's 
address indicated above, that we elect not to consider this Letter 
of Credit renewed for any such additional period. Upon receipt of 
this notice, you may draw hereunder on or before the then current 
expiration date, by presentation of your draft and statement as 
stipulated above.
    [In the case of a letter of credit issued by a U.S. branch of a 
foreign bank the following language must be added]. It is a further 
condition of this Letter of Credit that if the U.S. branch of [name 
of foreign bank] is to be closed, that at least sixty days prior to 
closing, we mail to you and the U.S. Trustee notice by Registered 
Mail or Certified Mail, return receipt requested, or by courier to 
your and the U.S. Trustee's address indicated above, that this 
branch will be closing. This notice will specify the actual date of 
closing. Upon receipt of the notice, you may draw hereunder on or 
before the date of closure, by presentation of your draft and 
statement as stipulated above.
    Except where otherwise stated herein, this Letter of Credit is 
subject to the Uniform Customs and Practice for Documentary Credits, 
1993 Revision, ICC Publication No.

[[Page 60556]]

500. If we notify you of our election not to consider this Letter of 
Credit renewed and the expiration date occurs during an interruption 
of business described in Article 17 of said Publication 500, unless 
you had consented to cancellation prior to the expiration date, the 
bank hereby specifically agrees to effect payment if this Letter of 
Credit is drawn against within 30 days after the resumption of 
business.
    Except as stated herein, this Letter of Credit cannot be 
modified or revoked without your consent.
    Authorized Signature ______Date ______

    (3) Form of confirmation. If the requirements of this paragraph 
(d)(1)(i)(C) are satisfied by the issuance of a letter of credit by a 
foreign bank with confirmation by a bank as defined in section 581, the 
confirmation must be made in the following form (or in a form that is 
the same as the following form in all material respects), or an 
alternative form as the Commissioner prescribes by guidance published 
in the Internal Revenue Bulletin (see Sec. 602.101(d)(2) of this 
chapter):

[Issue Date]
To: Internal Revenue Service
Attention: District Director, [specify location] District Office 
Estate and Gift Tax Examination Group [State Address, City, State, 
ZIP Code]

[or in the case of nonresident noncitizen decedents and United 
States citizens who die domiciled outside the United States,

To: Estate Tax Group, Assistant Commissioner (International) 950 
L'Enfant Plaza CP:IN:D:C:EX:HQ:1114, Washington, DC 20024].

    Dear Sirs: We hereby confirm the enclosed irrevocable Letter of 
Credit No. ______, and amendments thereto, if any, in your favor by 
________ [Issuing Bank] for drawings up to U.S. ________ [same 
amount as in initial Letter of Credit] effective immediately. This 
confirmation is issued, presentable and payable at our office at 
________and expires at 3:00 p.m. [EDT, EST, CDT, CST, MDT, MST, PDT, 
PST] on ______at said office.
    For information and reference only, we are informed that this 
Confirmation relates to [Applicant should provide bank with the 
identity of qualified domestic trust and governing instrument], and 
the name, address, and identifying number of the trustee is 
[Applicant should provide bank with the trustee name, address and 
the QDOT's TIN number, if any].
    We hereby undertake to honor your sight draft(s) drawn as 
specified in the Letter of Credit.
    Except as expressly stated herein, this undertaking is not 
subject to any agreement, condition or qualification. The obligation 
of [Name of Confirming Bank] under this Confirmation is the 
individual obligation of [Name of Confirming Bank] and is in no way 
contingent upon reimbursement with respect thereto.
    It is a condition of this Confirmation that it is deemed to be 
automatically extended without amendment for a period of one year 
from the expiry date hereof, or any future expiration date, unless 
at least sixty days prior to the expiration date, we send to you and 
to the U.S. Trustee notice by Registered Mail or Certified Mail, 
return receipt requested, or by courier to your and the trustee's 
addresses, respectively, indicated above, that we elect not to 
consider this Confirmation renewed for any additional period. Upon 
receipt of this notice by you, you may draw hereunder on or before 
the then current expiration date, by presentation of your draft and 
statement as stipulated above.
    Except where otherwise stated herein, this Confirmation is 
subject to the Uniform Customs and Practice for Documentary Credits, 
1993 Revision, ICC Publication No. 500. If we notify you of our 
election not to consider this Confirmation renewed and the 
expiration date occurs during an interruption of business described 
in Article 17 of said Publication 500, unless you had consented to 
cancellation prior to the expiration date, the bank hereby 
specifically agrees to effect payment if this Confirmation is drawn 
against within 30 days after the resumption of business.
    Except as stated herein, this Confirmation cannot be modified or 
revoked without your consent.
    Authorized Signature ________ Date ______

    (4) Additional governing instrument requirements. The trust 
instrument must provide that if the Internal Revenue Service draws on 
the letter of credit (or confirmation) in accordance with its terms, 
neither the U.S. Trustee nor any other person will seek a return of any 
part of the remittance until April 15th of the calendar year following 
the year in which the letter of credit (or confirmation) is drawn upon. 
After that date, any such remittance will be treated as a deposit and 
returned (without interest) upon request of the U.S. Trustee after the 
date specified above, unless it is determined that assessment or 
collection of the tax imposed by section 2056A(b)(1) is in jeopardy, 
within the meaning of section 6861. If an assessment under section 6861 
is made, the remittance will first be credited to any tax liability 
reported on the Form 706-QDT, then to any unpaid balance of a section 
2056A(b)(1)(A) tax liability (plus interest and penalties) for any 
prior taxable years, and any balance will then be returned to the U.S. 
Trustee.
    (5) Procedure. The letter of credit (and confirmation, if 
applicable) is to be filed with the decedent's federal estate tax 
return, Form 706 or 706NA (unless an extension for filing the letter of 
credit is granted under Sec. 301.9100 of this chapter). The U.S. 
Trustee must provide a written statement with the letter of credit that 
provides a list of the assets that will be used to fund the QDOT and 
the respective values of the assets. The written statement must also 
indicate whether any exclusions under paragraph (d)(1)(iv) of this 
section are claimed.
    (D) Disallowance of marital deduction for substantial 
undervaluation of QDOT property in certain situations. (1) If either--
    (i) The bond or letter of credit security arrangement under 
paragraph (d)(1)(i) (B) or (C) of this section is chosen by the U.S. 
Trustee; or
    (ii) The QDOT property as originally reported on the decedent's 
estate tax return is valued at $2 million or less but, as finally 
determined for federal estate tax purposes, the QDOT property is 
determined to be in excess of $2 million, then the marital deduction 
will be disallowed in its entirety for failure to comply with the 
requirements of section 2056A if the value of the QDOT property 
reported on the estate tax return is 50 percent or less of the amount 
finally determined to be the correct value of the property for federal 
estate tax purposes.
    (2) The preceding sentence does not apply if--
    (i) There was reasonable cause for the undervaluation; and
    (ii) The fiduciary of the estate acted in good faith with respect 
to the undervaluation. For this purpose, Sec. 1.6664-4(b) of this 
chapter applies, to the extent applicable, with respect to the facts 
and circumstances to be taken into account in making this 
determination.
    (ii) QDOTs with assets of $2 million or less. If the fair market 
value of the assets passing, treated, or deemed to have passed to the 
QDOT (or in the form of a QDOT), determined without reduction for any 
indebtedness with respect to the assets, as finally determined for 
federal estate tax purposes, is $2 million or less as of the date of 
the decedent's death or, if applicable, the alternate valuation date 
(adjusted as provided in paragraph (d)(1)(iv) of this section), the 
trust instrument must provide that either no more than 35 percent of 
the fair market value of the trust assets, determined annually on the 
last day of the taxable year of the trust (or on the last day of the 
calendar year if the QDOT does not have a taxable year), will consist 
of real property located outside of the United States, or the trust 
will meet the requirements prescribed by paragraph (d)(1)(i)(A), (B), 
or (C) of this section. See paragraph (d)(1)(ii)(D) of this section for 
special rules in the case of principal distributions from a QDOT, 
fluctuations in the value of foreign real property held by a QDOT due 
to changes in value of foreign currency, and fluctuations in the fair 
market value

[[Page 60557]]

of assets held by the QDOT. See paragraph (d)(1)(iv) of this section 
for a special rule for personal residences. If the fair market value, 
as originally reported on the decedent's estate tax return, of the 
assets passing or deemed to have passed to the QDOT (determined without 
reduction for any indebtedness with respect to the assets) is $2 
million or less, but the fair market value of the assets as finally 
determined for federal estate tax purposes is more than $2 million, the 
U.S. Trustee has a reasonable period of time (not exceeding sixty days 
after the conclusion of the proceeding or other action resulting in a 
final determination of the value of the assets) to meet the 
requirements prescribed by paragraph (d)(1)(i) (A), (B), or (C) of this 
section. However, see paragraph (d)(1)(i)(D) of this section in the 
case of a substantial undervaluation of QDOT assets. See Sec. 20.2056A-
2(d)(1)(iii) for the definition of finally determined.
    (A) Multiple QDOTs. For purposes of this paragraph (d)(1)(ii), if 
more than one QDOT is established for the benefit of the surviving 
spouse, the fair market value of all the QDOTs are aggregated in 
determining whether the $2 million threshold under this paragraph 
(d)(1)(ii) is exceeded.
    (B) Look-through rule. For purposes of determining whether no more 
than 35 percent of the fair market value of the QDOT assets consists of 
foreign real property, if the QDOT owns more than 20% of the voting 
stock or value in a corporation with 15 or fewer shareholders, or more 
than 20% of the capital interest of a partnership with 15 or fewer 
partners, then all assets owned by the corporation or partnership are 
deemed to be owned directly by the QDOT to the extent of the QDOT's pro 
rata share of the assets of that corporation or partnership. For a 
partnership, the QDOT partner's pro rata share is based on the greater 
of its interest in the capital or profits of the partnership. For 
purposes of this paragraph, all stock in the corporation, or interests 
in the partnership, as the case may be, owned by or held for the 
benefit of the surviving spouse, or any members of the surviving 
spouse's family (within the meaning of section 267(c)(4)), are treated 
as owned by the QDOT solely for purposes of determining the number of 
partners or shareholders in the entity and the QDOT's percentage voting 
interest or value in the corporation or capital interest in the 
partnership, but not for the purpose of determining the QDOT's pro rata 
share of the assets of the entity.
    (C) Interests in other entities. Interests owned by the QDOT in 
other entities (such as an interest in a trust) are accorded treatment 
consistent with that described in paragraph (d)(1)(ii)(B) of this 
section.
    (D) Special rule for foreign real property. For purposes of this 
paragraph (d)(1)(ii), if, on the last day of any taxable year during 
the term of the QDOT (or the last day of the calendar year if the QDOT 
does not have a taxable year), the value of foreign real property owned 
by the QDOT exceeds 35 percent of the fair market value of the trust 
assets due to: distributions of QDOT principal during that year; 
fluctuations in the value of the foreign currency in the jurisdiction 
where the real estate is located; or fluctuations in the fair market 
value of any assets held in the QDOT, then the QDOT will not be treated 
as failing to meet the requirements of this paragraph (d)(1). 
Accordingly, the QDOT will not cease to be a QDOT within the meaning of 
Sec. 20.2056A-5(b)(3) if, by the end of the taxable year (or the last 
day of the calendar year if the QDOT does not have a taxable year) of 
the QDOT immediately following the year in which the 35 percent limit 
was exceeded, the value of the foreign real property held by the QDOT 
does not exceed 35 percent of the fair market value of the trust assets 
or, alternatively, the QDOT meets the requirements of either paragraph 
(d)(1)(i) (A), (B), or (C) of this section on or before the close of 
that succeeding year.
    (iii) Definition of finally determined. For purposes of 
Sec. 20.2056A-2(d)(1) (i) and (ii), the fair market value of assets 
will be treated as finally determined on the earliest to occur of--
    (A) The entry of a decision, judgment, decree, or other order by 
any court of competent jurisdiction that has become final;
    (B) The execution of a closing agreement made under section 7121;
    (C) Any final disposition by the Internal Revenue Service of a 
claim for refund;
    (D) The issuance of an estate tax closing letter (Form L-154 or 
equivalent) if no claim for refund is filed; or
    (E) The expiration of the period of assessment.
    (iv) Special rules for personal residence and related personal 
effects--(A) Two million dollar threshold. For purposes of determining 
whether the $2 million threshold under paragraphs (d)(1)(i) and (ii) of 
this section has been exceeded, the executor of the estate may elect to 
exclude up to $600,000 in value attributable to real property (and 
related furnishings) owned directly by the QDOT that is used by, or 
held for the use of the surviving spouse as a personal residence and 
that passes, or is treated as passing, to the QDOT under section 
2056(d). The election may be made regardless of whether the real 
property is situated within or without the United States. The election 
is made by attaching to the estate tax return on which the QDOT 
election is made a written statement claiming the exclusion. The 
statement must clearly identify the property or properties (i.e. 
address and location) for which the election is being made.
    (B) Security requirement. For purposes of determining the amount of 
the bond or letter of credit required when paragraph (d)(1)(i)(B) or 
(C) of this section applies, the executor of the estate may elect to 
exclude, during the term of the QDOT, up to $600,000 in value 
attributable to real property (and related furnishings) owned directly 
by the QDOT that is used by, or held for the use of the surviving 
spouse as a personal residence and that passes, or is treated as 
passing, to the QDOT under section 2056(d). The election may be made 
regardless of whether the real property is situated within or without 
the United States. The election is made by attaching to the estate tax 
return on which the QDOT election is made a written statement claiming 
the exclusion. If an election is not made on the decedent's estate tax 
return, the election may be made, prospectively, at any time, during 
the term of the QDOT, by attaching to the Form 706-QDT a written 
statement claiming the exclusion. A statement may also be attached to 
the Form 706-QDT that cancels a prior election of the personal 
residence exclusion that was made under this paragraph, either on the 
decedent's estate tax return or on a Form 706-QDT.
    (C) Foreign real property limitation. The special rules of this 
paragraph (d)(1)(iv) do not apply for purposes of determining whether 
more than 35 percent of the QDOT assets consist of foreign real 
property under paragraph (d)(1)(ii) of this section.
    (D) Personal residence. For purposes of this paragraph (d)(1)(iv), 
a personal residence is either the principal residence of the surviving 
spouse within the meaning of section 1034 or one other residence of the 
surviving spouse. In order to be used by or held for the use of the 
spouse as a personal residence, the residence must be available at all 
times for use by the surviving spouse. The residence may not be rented 
to another party, even when not occupied by the spouse. A personal 
residence may include appurtenant structures used by the

[[Page 60558]]

surviving spouse for residential purposes and adjacent land not in 
excess of that which is reasonably appropriate for residential purposes 
(taking into account the residence's size and location).
    (E) Related furnishings. The term related furnishings means 
furniture and commonly included items such as appliances, fixtures, 
decorative items and china, that are not beyond the value associated 
with normal household and decorative use. Rare artwork, valuable 
antiques, and automobiles of any kind or class are not within the 
meaning of this term.
    (F) Required statement. If one or both of the exclusions provided 
in paragraph (d)(1)(iv)(A) or (B) of this section are elected by the 
executor of the estate and the personal residence is later sold or 
ceases to be used, or held for use as a personal residence, the U.S. 
Trustee must file the statement that is required under paragraph (d)(3) 
of this section at the time and in the manner provided in paragraphs 
(d)(3)(ii) and (iii) of this section.
    (G) Cessation of use. Except as provided in this paragraph 
(d)(1)(iv)(G), if the residence ceases to be used by, or held for the 
use of, the spouse as a personal residence of the spouse, or if the 
residence is sold during the term of the QDOT, the exclusions provided 
in paragraphs (d)(1)(iv)(A) and (B) of this section cease to apply. 
However, if the residence is sold, the exclusion continues to apply if, 
within 12 months of the date of sale, the amount of the adjusted sales 
price (as defined in section 1034(b)(1)) is reinvested to purchase a 
new personal residence for the spouse. If less than the amount of the 
adjusted sales price is reinvested, the amount of the exclusion equals 
the amount reinvested in the new residence plus any amount previously 
allocated to a residence that continues to qualify for the exclusion, 
up to a total of $600,000. If the QDOT ceases to qualify for all or any 
portion of the initially claimed exclusions, paragraph (d)(1)(i) of 
this section, if applicable (determined as if the portion of the 
exclusions disallowed had not been initially claimed by the QDOT), must 
be complied with no later than 120 days after the effective date of the 
cessation. In addition, if a residence ceases to be used by, or held 
for the use of the spouse as a personal residence of the spouse or if 
the personal residence is sold during the term of the QDOT, the 
personal residence exclusion may be allocated to another residence that 
is held in either the same QDOT or in another QDOT that is established 
for the surviving spouse, if the other residence qualifies as being 
used by, or held for the use of the spouse as a personal residence. The 
trustee may allocate up to $600,000 to the new personal residence (less 
the amount previously allocated to a residence that continues to 
qualify for the exclusion) even if the entire $600,000 exclusion was 
not previously utilized with respect to the original personal 
residence(s).
    (v) Anti-abuse rule. Regardless of whether the QDOT designates a 
bank as the U.S. Trustee under paragraph (d)(1)(i)(A) of this section 
(or otherwise complies with paragraph (d)(1)(i)(A) of this section by 
naming a foreign bank with a United States branch as a trustee to serve 
with the U.S. Trustee), complies with paragraph (d)(1)(i)(B) or (C) of 
this section, or is subject to and complies with the foreign real 
property requirements of paragraph (d)(1)(ii) of this section, the 
trust immediately ceases to qualify as a QDOT if the trust utilizes any 
device or arrangement that has, as a principal purpose, the avoidance 
of liability for the estate tax imposed under section 2056A(b)(1), or 
the prevention of the collection of the tax. For example, the trust may 
become subject to this paragraph (d)(1)(v) if the U.S. Trustee that is 
selected is a domestic corporation established with insubstantial 
capitalization by the surviving spouse or members of the spouse's 
family.
    (2) Individual trustees. If the U.S. Trustee is an individual 
United States citizen, the individual must have a tax home (as defined 
in section 911(d)(3)) in the United States.
    (3) Annual reporting requirements--(i) In general. The U.S. Trustee 
must file a written statement described in paragraph (d)(3)(iii) of 
this section, if the QDOT satisfies any one of the following criteria 
for the applicable reporting years--
    (A) The QDOT directly owns any foreign real property on the last 
day of its taxable year (or the last day of the calendar year if it has 
no taxable year), and the QDOT does not satisfy the requirements of 
paragraph (d)(1)(i) (A), (B), or (C) or (d)(4) of this section by 
employing a bank as trustee or providing security; or
    (B) The personal residence previously subject to the exclusion 
under paragraph (d)(1)(iv) of this section is sold, or that personal 
residence ceases to be used, or held for use, as a personal residence, 
during the taxable year (or during the calendar year if the QDOT does 
not have a taxable year); or
    (C) After the application of the look-through rule contained in 
paragraph (d)(1)(ii)(B) of this section, the QDOT is treated as owning 
any foreign real property on the last day of the taxable year (or the 
last day of the calendar year if the QDOT has no taxable year), and the 
QDOT does not satisfy the requirements of paragraph (d)(1) (A), (B), 
(C) or (d)(4) of this section by employing a bank as trustee or 
providing security.
    (ii) Time and manner of filing. The written statement, containing 
the information described in paragraph (d)(3)(iii) of this section, is 
to be filed for the taxable year of the QDOT (calendar year if the QDOT 
does not have a taxable year) for which any of the events or conditions 
requiring the filing of a statement under paragraph (d)(3)(i) of this 
section have occurred or have been satisfied. The written statement is 
to be submitted to the Internal Revenue Service by filing a Form 706-
QDT, with the statement attached, no later than April 15th of the 
calendar year following the calendar year in which or with which the 
taxable year of the QDOT ends (or by April 15th of the following year 
if the QDOT has no taxable year), unless an extension of time is 
obtained under Sec. 20.2056A-11(a). The Form 706-QDT, with attached 
statement, must be filed regardless of whether the Form 706-QDT is 
otherwise required to be filed under the provisions of this chapter. 
Failure to file timely the statement may subject the QDOT to the rules 
of paragraph (d)(1)(v) of this section.
    (iii) Contents of statement. The written statement must contain the 
following information--
    (A) The name, address, and taxpayer identification number, if any, 
of the U.S. Trustee and the QDOT; and
    (B) A list summarizing the assets held by the QDOT, together with 
the fair market value of each listed QDOT asset, determined as of the 
last day of the taxable year (December 31 if the QDOT does not have a 
taxable year) for which the written statement is filed. If the look-
through rule contained in paragraph (d)(1)(ii)(B) of this section 
applies, then the partnership, corporation, trust or other entity must 
be identified and the QDOT's pro rata share of the foreign real 
property and other assets owned by that entity must be listed on the 
statement as if directly owned by the QDOT; and
    (C) If a personal residence previously subject to the exclusion 
under paragraph (d)(1)(iv) of this section is sold during the taxable 
year (or during the calendar year if the QDOT does not have a taxable 
year), the statement must provide the date of sale, the adjusted sales 
price (as defined in section 1034(b)(1)), the extent to which the 
amount of the adjusted sales price has been or will be used to purchase 
a new

[[Page 60559]]

personal residence and, if not timely reinvested, the steps that will 
or have been taken to comply with paragraph (d)(1)(i) of this section, 
if applicable; and
    (D) If the personal residence ceases to be used, or held for use, 
as a personal residence by the surviving spouse during the taxable year 
(or during the calendar year if the QDOT does not have a taxable year), 
the written statement must describe the steps that will or have been 
taken to comply with paragraph (d)(1)(i) of this section, if 
applicable.
    (4) Request for alternate arrangement or waiver. If the 
Commissioner provides guidance published in the Internal Revenue 
Bulletin (see Sec. 601.601(d)(2) of this chapter) pursuant to which a 
testator, executor, or the U.S. Trustee may adopt an alternate plan or 
arrangement to assure collection of the section 2056A estate tax, and 
if the alternate plan or arrangement is adopted in accordance with the 
published guidance, then the QDOT will be treated, subject to paragraph 
(d)(1)(v) of this section, as meeting the requirements of paragraph 
(d)(1) of this section. Until this guidance is published in the 
Internal Revenue Bulletin (see Sec. 601.601(d)(2) of this chapter), 
taxpayers may submit a request for a private letter ruling for the 
approval of an alternate plan or arrangement proposed to be adopted to 
assure collection of the section 2056A estate tax in lieu of the 
requirements prescribed in this paragraph (d)(4).
    (5) Adjustment of dollar threshold and exclusion. The Commissioner 
may increase or decrease the dollar amounts referred to in paragraph 
(d)(1)(i), (ii) or (iv) of this section in accordance with guidance 
published in the Internal Revenue Bulletin (see Sec. 601.601(d)(2) of 
this chapter).
    (6) Effective date and special rules. (i) This paragraph (d) is 
effective for estates of decedents dying after February 19, 1996.
    (ii) Special rule in the case of incompetency. A revocable trust or 
a trust created under the terms of a will is deemed to meet the 
governing instrument requirements of this paragraph (d) notwithstanding 
that the requirements are not contained in the governing instrument (or 
otherwise incorporated by reference) if the trust instrument (or will) 
was executed on or before November 20, 1995, and--
    (A) The testator or settlor dies after February 19, 1996;
    (B) The testator or settlor is, on November 20, 1995, and at all 
times thereafter, under a legal disability to amend the will or trust 
instrument;
    (C) The will or trust instrument does not provide the executor or 
the U.S. Trustee with a power to amend the instrument in order to meet 
the requirements of section 2056A; and
    (D) The U.S. Trustee provides a written statement with the federal 
estate tax return (Form 706 or 706NA) that the trust is being 
administered (or will be administered) so as to be in actual compliance 
with the requirements of this paragraph (d) and will continue to be 
administered so as to be in actual compliance with this paragraph (d) 
for the duration of the trust. This statement must be binding on all 
successor trustees.
    (iii) Special rule in the case of certain irrevocable trusts. An 
irrevocable trust is deemed to meet the governing instrument 
requirements of this paragraph (d) notwithstanding that the 
requirements are not contained in the governing instrument (or 
otherwise incorporated by reference) if the trust was executed on or 
before November 20, 1995, and:
    (A) The settlor dies after February 19, 1996;
    (B) The trust instrument does not provide the U.S. Trustee with a 
power to amend the trust instrument in order to meet the requirements 
of section 2056A; and
    (C) The U.S. Trustee provides a written statement with the 
decedent's federal estate tax return (Form 706 or 706NA) that the trust 
is being administered in actual compliance with the requirements of 
this paragraph (d) and will continue to be administered so as to be in 
actual compliance with this paragraph (d) for the duration of the 
trust. This statement must be binding on all successor trustees.


Sec. 20.2056A-2T   [Removed]

    Par. 3a. Section 20.2056A-2T is removed.

PART 602--OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT

    Par. 4. The authority citation for part 602 continues to read as 
follows:

    Authority: 26 U.S.C. 7805.

    Par. 5. In Sec. 602.101, paragraph (c) is amended by:
    1. Removing the following entry from the table:


Sec. 602.101  OMB Control numbers.

* * * * *
    (c) * * *

------------------------------------------------------------------------
                                                          Current OMB   
 CFR part or section where identified and  described      control No.   
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
20.2056A-2T(d)......................................           1545-1443
                                                                        
                  *        *        *        *        *                 
------------------------------------------------------------------------

    2. Adding the following entry in numerical order to the table to 
read as follows:


Sec. 602.101  OMB Control numbers.

* * * * *
    (c) * * *

------------------------------------------------------------------------
                                                          Current OMB   
 CFR part or section where identified and  described      control No.   
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
20.2056A-2..........................................           1545-1443
                                                                        
                  *        *        *        *        *                 
------------------------------------------------------------------------

    Approved: September 19, 1996.
Margaret Milner Richardson,
Commissioner of Internal Revenue.

Donald C. Lubick,
Acting Assistant Secretary of the Treasury.
[FR Doc. 96-29827 Filed 11-27-96; 8:45 am]
BILLING CODE 4830-01-U