[Federal Register Volume 72, Number 109 (Thursday, June 7, 2007)]
[Proposed Rules]
[Pages 31487-31491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11062]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 20

[REG-119097-05]
RIN 1545-BE52


Grantor Retained Interest Trusts--Application of Sections 2036 
and 2039

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of proposed rulemaking and notice of public hearing.

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SUMMARY: This document contains proposed regulations providing guidance 
on the portion of a trust properly includible in a grantor's gross 
estate under Internal Revenue Code (Code) sections 2036 and 2039 if the 
grantor has retained the use of property in a trust or the right to an 
annuity, unitrust, or other income payment from such trust 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. This document also provides notice of a public hearing on these 
proposed regulations.

DATES: Written or electronic comments must be received by September 5, 
2007. Outlines of topics to be discussed at the public hearing 
scheduled for September 26, 2007, must be received by September 5, 
2007.

ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-119097-05), Internal 
Revenue Service, POB 7604, Ben Franklin Station, Washington, DC 20044. 
Submissions may be hand delivered to the Courier's Desk, Internal 
Revenue Service, Attn: CC:PA:LPD:PR (REG-119097-05), room 5203, 
Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington 
DC 20044. Alternatively, submissions may be hand-delivered Monday 
through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR 
(REG-119097-05), Courier's Desk, Internal Revenue Service, 1111 
Constitution Avenue, NW., Washington DC, or sent electronically via the 
Federal eRulemaking Portal at http://www.regulations.gov (IRS REG-
119097-05). The public hearing will be held in the auditorium, Internal 
Revenue Building, 1111 Constitution Avenue, NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations, 
Theresa M. Melchiorre, (202) 622-7830; concerning submissions of 
comments, the hearing, and/or to be placed on the building access list 
to attend the hearing, Richard Hurst, (202) 622-7180 (not toll-free 
numbers) or e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The proposed regulations provide guidance on what portion of a 
trust is includible in the deceased grantor's gross estate under 
section 2036 if the grantor retained the right to use property in the 
trust or the right to receive from that trust an annuity, unitrust, or 
other income payment for the grantor's life, for any period not 
ascertainable without reference to the grantor's death, or for any 
period that does not in fact end before the grantor's death. In 
addition, the proposed regulations provide guidance on the possible 
application of section 2039 to trusts in which the decedent has 
retained the use of property held in the trust or has retained an 
annuity, unitrust, or other income interest that is includible in the 
decedent's gross estate under section 2036. These trusts include 
without limitation certain charitable trusts (collectively CRTs) such 
as charitable remainder annuity trusts (CRATs) within the meaning of 
section 664(d)(1), charitable remainder unitrusts (CRUTs) within the 
meaning of section 664(d)(2) or (d)(3), and charitable remainder trusts 
that do not qualify under section 664, as well as other trusts 
established by a grantor (collectively GRTs) such as grantor retained 
annuity trusts (GRATs), grantor retained unitrusts (GRUTs), and various 
forms of grantor retained income trusts (GRITs), such as qualified 
personal residence trusts (QPRTs) and personal residence trusts (PRTs). 
A CRT is within the scope of these proposed regulations whether or not 
the CRT meets the qualifications of sections 664(d)(1), (2), or (3) and 
a GRT is within the scope of these proposed regulations whether or not 
the grantor's retained interest is a ``qualified interest'' as defined 
in section 2702(b). This guidance does not apply to trusts or other 
contractual arrangements arising by reason of a decedent's employment 
and generally does not apply to annuities purchased by the decedent, as 
these types of interests fall within the ambit of section 2039.
    Under section 2036(a), a decedent's gross estate includes the value 
of any interest in property transferred by the decedent in which the 
decedent retained for the decedent's life, for any period not 
ascertainable without reference to the decedent's death, or for any 
period that does not in fact end before the decedent's death, either 
the possession or enjoyment of the property or a right to the income 
from the property, or the right (either alone or with another) to 
designate the persons who may possess or enjoy the property or its 
income. Section 20.2036-1(a) provides generally that, if the decedent 
retained or reserved an interest with respect to all of the property 
transferred by the decedent, the amount to be included in the gross 
estate under section 2036 is the value of the entire property on the 
date of death. If the decedent retained a right with respect to only 
part of the property transferred, the amount to be included in the 
decedent's gross estate under section 2036 is the corresponding 
proportionate amount of the corpus. Rev. Rul. 76-273, 1976-2 CB 268, 
and Rev. Rul. 82-105, 1982-1 CB 133 (See Sec.  601.601(d)(2)), 
generally provide that the portion of the corpus of a CRUT and CRAT 
includible in the decedent's gross estate under section

[[Page 31488]]

2036 is that portion of the trust corpus necessary to generate a return 
sufficient to provide the decedent's retained annuity or unitrust 
payment.
    Rev. Rul. 76-273 considers a situation where the decedent created 
an intervivos trust that provided for a stated unitrust percentage of 6 
percent to be paid each year to the decedent during life. At the 
decedent's death, the remainder is to be paid to a charitable 
organization. The revenue ruling concludes that, for purposes of 
section 2036(a), the portion of the value of the trust corpus 
includible in the decedent's gross estate is the portion necessary to 
yield (at the then current interest rate specified under the applicable 
regulations) the amount of the annual unitrust payment in perpetuity. 
Based upon the valuation rules and interest rate assumptions specified 
in Sec.  20.2031-10 (the regulations applicable at the time the ruling 
was issued), the revenue ruling provides the following formula to be 
used to determine this includible portion of the trust corpus: 
Equivalent income interest rate divided by the interest rate mandated 
by the applicable regulations at the date of death, where the 
equivalent income interest rate = adjusted payout rate/1 minus adjusted 
payout rate. The result, however, is limited to 100 percent of the 
trust corpus. (Since the issuance of this revenue ruling, the 
regulations (Sec.  20.2031-7(d)(1)) have been changed to instead 
require the use of the section 7520 interest rate in lieu of the rate 
specified in Sec.  20.2031-10). The revenue ruling concludes that, 
because the equivalent income interest of the unitrust payment exceeds 
the equivalent income interest required to produce that unitrust 
payment, the grantor retained an interest in the entire corpus of the 
trust, and thus the entire trust corpus is includible in the deceased 
grantor's gross estate under section 2036.
    Rev. Rul. 82-105 considers a situation where the decedent created 
an intervivos CRAT, pursuant to which the decedent retained the right 
to receive a fixed annuity for life. The ruling confirms that the 
decedent's retained annuity represents the retained right to receive 
all of the income from all or a specific portion of the trust for 
purposes of section 2036. That portion of the trust corpus with respect 
to which the decedent retained a right to receive all of the income is 
properly includible in the decedent's gross estate under section 
2036(a)(1). Under the ruling, the amount of the corpus with respect to 
which the decedent retained the income is that amount of corpus that 
would be sufficient to yield the annual annuity based on the assumed 
rate of return prescribed by the regulations as of the applicable 
valuation date. The ruling prescribes the following formula for this 
determination: (Annual Annuity) / (Assumed Rate of Return) = Amount 
Includible. Assuming a rate of return of 6 percent, as specified under 
Sec.  20.2031-10 (the regulation applicable at the time the ruling was 
issued), the ruling concludes that only a portion of the trust's corpus 
is includible in the deceased grantor's gross estate. (Since the 
issuance of this revenue ruling, the regulations (Sec.  20.2031-
7(d)(1)) have been changed to instead require the use of the section 
7520 interest rate in place of the rate specified in Sec.  20.2031-10.) 
Rev. Rul. 82-105 expressly qualifies this conclusion by stating that 
the ruling does not consider the amount, if any, that may be includible 
in the gross estate under any other provisions of the Code.
    Section 2039(a) provides that a decedent's gross estate includes 
the value of an annuity or other payment under any form of contract or 
agreement (other than an insurance policy on the decedent's life) 
receivable by any beneficiary by reason of surviving the decedent if, 
under the contract or agreement, an annuity or other payment was 
payable to the decedent, or the decedent possessed the right to receive 
such annuity or other payment, for the decedent's life or for any 
period not ascertainable without reference to the decedent's death, or 
for any period that does not in fact end before the decedent's death.
    Section 2039(b) provides, in part, that the amount includible in 
the decedent's gross estate is limited to that portion of the value of 
the annuity or other payment receivable under the contract or agreement 
as is proportionate to the portion of the purchase price of the 
contract or agreement that was contributed by the decedent. Section 
20.2039-1(b)(1) provides, in part, that the term ``annuity or other 
payment,'' as used with respect to both the payment receivable by the 
decedent and by the beneficiary, has reference to one or more payments 
extending over any period of time, whether the payments are equal or 
unequal, conditional or unconditional, periodic or sporadic. The term 
``contract or agreement'' includes any arrangement, understanding, or 
plan, or any combination of them, arising by reason of the decedent's 
employment. Section 20.2039-1(b)(1).
    As is acknowledged in Rev. Rul. 82-105, section 2036 as well as 
other sections of the Code might apply to the same interest or trust 
for purposes of the Federal estate tax. Although either section 2036 or 
section 2039 may be applied to include at least some portion of a trust 
in the decedent's gross estate if the decedent transfers property 
during life to a trust and retains the right to use the trust's 
property or the right to an annuity, unitrust, or other payment from 
the trust, the amount includible may differ depending upon which 
section is applied for this purpose.

Explanation of Provisions

    The proposed regulations amend Sec.  20.2036-1 to incorporate the 
guidance provided in Rev. Rul. 76-273 and Rev. Rul. 82-105. The 
proposed regulations provide that, if a decedent transfers property 
during life to a trust and retains the right to an annuity, unitrust, 
or other income payment from, or retains the use of an asset in, the 
trust for the decedent's life, for a period that does not in fact end 
before the decedent's death, or for a period not ascertainable without 
reference to the decedent's death, the decedent has retained the right 
to income from all or a specific portion of the property transferred as 
described in section 2036. The portion of the trust corpus includible 
in the decedent's gross estate is that portion of the trust corpus, 
valued as of the decedent's death (or the alternate valuation date, if 
applicable) necessary to yield that annual payment (or use) using the 
appropriate section 7520 interest rate. In this regard, because the 
specific portion of corpus includible in the gross estate is properly 
determined as of the decedent's death, the appropriate section 7520 
rate is the rate in effect on the decedent's date of death (or on the 
alternate valuation date, if applicable). The proposed regulations 
provide both rules and examples for calculating the amount of trust 
corpus to be included in a deceased grantor's gross estate under 
section 2036 in such a case.
    The IRS and Treasury Department believe that in many cases both 
section 2036 and section 2039 may be applicable to these annuity and 
unitrust interests and to such other payments retained by a deceased 
grantor. Although the language of section 2039 is broad enough to 
include all or a portion of a trust's corpus if the grantor retains an 
annuity or unitrust interest in, or other payments from, a trust, the 
IRS and Treasury Department believe that, in the interest of ensuring 
similar tax treatment for similarly situated taxpayers, it is 
appropriate in this circumstance to provide regulatory rules under 
which only one of these two potentially applicable Code sections 
(section 2036 and section 2039) will be applied in the future. For the 
reasons mentioned below, the IRS and Treasury

[[Page 31489]]

Department have concluded that section 2036 (and therefore, when 
applicable, section 2035), rather than section 2039, will be applied in 
the future to these interests. First, section 2039 appears to have been 
intended to address annuities purchased by or on behalf of the decedent 
and annuities provided by the decedent's employer. Second, the 
interests retained by grantors in the types of trusts described in this 
guidance are more similar in most relevant respects to the interests 
addressed under section 2036 than those most clearly addressed under 
section 2039. Accordingly, the proposed regulations also amend Sec.  
20.2039-1(b)(1) by providing that section 2039 shall not be applied to 
an annuity, unitrust, or other payment retained by a deceased grantor 
in a CRT or GRT.
    Although these proposed regulations provide guidance as to which 
section of the Code (specifically, section 2036 or section 2039) is to 
be used in certain circumstances when each of those sections applies to 
the same CRT or GRT, these proposed regulations should not be construed 
to imply that only one section of the Code may apply to a particular 
situation or interest. These proposed regulations are not intended to 
foreclose the possibility that any applicable section of the Code 
(sections 2035 through 2039, or any other section) properly may be 
applied in the future by the IRS in appropriate circumstances beyond 
those described in these proposed regulations. (For example, although 
section 2039 generally will apply to govern the includability of 
annuities purchased by or on behalf of the decedent and annuities 
provided by the decedent's employer in the decedent's gross estate, 
section 2036 may instead be applied if the facts and circumstances 
indicate that the annuity constituted a retained interest in the 
property exchanged for that annuity.)

Proposed Effective Date

    The first, second, and fourth sentences in Sec.  20.2039-1(a) and 
the provisions in Sec.  20.2036-1(a)(1), (a)(2), and (c)(1)(i) are 
applicable to the estates of decedents dying after August 16, 1954. The 
fifth sentence of Sec.  20.2039-1(a) is applicable to the estates of 
decedents dying on or after October 27, 1972, and to the estates of 
decedents for which the period for filing a claim for credit or refund 
of an estate tax overpayment ends on or after October 27, 1972. The 
provisions of Sec.  20.2036-1(c)(1)(ii) and (2), Sec.  20.2039-1(e), 
and the third, sixth, and seventh sentences of Sec.  20.2039-1(a) apply 
to the estates of decedents for which the valuation date of the gross 
estate is on or after the date of publication of the Treasury decision 
adopting these rules as final regulations in the Federal Register.

Special Analyses

    It has been determined that this notice of proposed rulemaking is 
not a significant regulatory action as defined in Executive Order 
12866. Therefore, a regulatory assessment is not required. It also has 
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 
these regulations do not impose on small entities a collection of 
information requirement, the Regulatory Flexibility Act (5 U.S.C. 
chapter 6) does not apply. Pursuant to section 7805(f) of the Code, 
this regulation has been submitted to the Chief Counsel for Advocacy of 
the Small Business Administration for comment on its impact on small 
business.

Comments and Public Hearing

    Before these proposed regulations are adopted as final regulations, 
consideration will be given to any written (a signed original and eight 
(8) copies) or electronic comments that are submitted timely to the 
IRS. The IRS and Treasury Department also request comments on the 
clarity of the proposed rules and how they can be made easier to 
understand. All comments will be available for public inspection and 
copying.
    A public hearing has been scheduled for September 26, 2007 in the 
auditorium Internal Revenue Building, 1111 Constitution Avenue, NW., 
Washington, DC. Due to building security procedures, visitors must use 
the main building entrance. In addition, all visitors must present 
photo identification to enter the building. Because of access 
restrictions, visitors will not be admitted beyond the immediate 
entrance area more than 30 minutes before the hearing starts. For more 
information about having your name placed on the list to attend the 
hearing, see the FOR FURTHER INFORMATION CONTACT section of this 
preamble.
    The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who 
wish to present oral comments at the hearing must submit written (a 
signed original and eight (8) copies) or electronic comments by 
September 5, 2007 and an outline of the topics to be discussed and the 
time to be devoted to each topic by September 5, 2007. A period of 10 
minutes will be allotted to each person for making comments. An agenda 
showing the scheduling of the speakers will be prepared after the 
deadline for receiving outlines has passed. Copies of the agenda will 
be available free of charge at the hearing.

Drafting Information

    The principal author of these regulations is Theresa M. Melchiorre, 
Office of Chief Counsel, IRS.

List of Subjects in 26 CFR Part 20

    Estate taxes, Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 20 is proposed to be 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. Section 20.2036-1 is amended by:
    1. Redesignating paragraphs (a)(i) and (a)(ii) as paragraphs (a)(1) 
and (a)(2), respectively.
    2. Designating the undesignated text following newly-designated 
paragraph (a)(2) as paragraph (c)(1)(i) and adding new paragraph 
headings.
    3. Adding paragraphs (c)(1)(ii), (c)(2), and (c)(3).
    The additions read as follows:


Sec.  20.2036-1  Transfers with retained life estate.

* * * * *
    (c) Retained or reserved interest--(1) Amount included in gross 
estate--(i) In general.* * *
    (ii) Example. The application of paragraph (c)(1)(i) of this 
section is illustrated in the following example:

    Example. In 2001, Decedent (D) creates an irrevocable intervivos 
trust. The terms of the trust provide that all of the trust's income 
is to be paid to D and E, D's spouse who is a U.S. citizen, in equal 
shares during their joint lives and, on the death of either of them, 
all of the income is to be paid to the survivor of them. On the 
death of the survivor of D and E, the remainder is to be paid to 
another individual, F. In 2006, D dies with E still surviving. A 
portion of the trust's corpus is includible in D's gross estate 
because D retained the right to receive a portion of the income from 
the trust for a period that does not in fact end before D's death. 
The portion of the trust's corpus includible in D's gross estate 
bears the same ratio to the entire corpus as D's income interest in 
the trust bears to the entire income interest in the trust. 
Therefore, in this case, because D and E share equally in the 
trust's income, 50 percent of the trust's corpus is includible in 
D's gross estate under section 2036. If instead

[[Page 31490]]

E had predeceased D, D would have died while entitled to all of the 
income from the trust, so that the entire trust corpus would have 
been includible in D's gross estate under section 2036.

    (2) Retained annuity and unitrust interests in trusts--(i) In 
general. This paragraph (c)(2) applies to a grantor's retained use of 
an asset held in trust or a retained annuity, unitrust, or other income 
interest in any trust (other than a trust constituting an employee 
benefit) including without limitation the following (collectively 
referred to in this paragraph (c)(2) as ``trusts''): Certain charitable 
trusts (collectively CRTs) such as a charitable remainder annuity trust 
(CRAT) within the meaning of section 664(d)(1), a charitable remainder 
unitrust (CRUT) within the meaning of section 664(d)(2) or (d)(3), and 
any charitable remainder trust that does not qualify under section 
664(d), as well as other trusts established by a grantor (collectively 
GRTs) such as a grantor retained annuity trust (GRAT), a grantor 
retained unitrust (GRUT), and various other forms of grantor retained 
income trusts (GRITs), whether or not the grantor's retained interest 
is a qualified interest as defined in section 2702(b), including 
without limitation qualified personal residence trusts (QPRTs) and 
personal residence trusts (PRTs). If a decedent transferred property 
into such a trust, and retained or reserved the right to use such 
property or the right to an annuity, unitrust, other income interest in 
such trust with respect to the property so transferred by the decedent, 
or to determine the persons who may possess or enjoy the property or 
its income, for the decedent's life, for any period not ascertainable 
without reference to the decedent's death, or for a period that does 
not in fact end before the decedent's death, then the decedent's right 
to use the property or retained annuity, unitrust, or other income 
interest (or to designate the beneficiaries of the property) represents 
the retained right to receive all of the income from all or a specific 
portion of the trust for purposes of section 2036. The portion of the 
trust's corpus includible in the decedent's gross estate for Federal 
estate tax purposes is that portion of the trust corpus necessary to 
yield the decedent's retained use or retained annuity, unitrust, other 
income payment as determined in accordance with Sec.  20.2031-7 (or 
Sec.  20.2031-7A, if applicable).
    (ii) Examples. The application of paragraph (c)(2)(i) of this 
section is illustrated in the following examples:

    Example 1. (i) In 2000, Decedent (D) transferred $100,000 to a 
trust that qualifies as a CRAT under section 664(d)(1). The trust 
agreement provides for an annuity of $12,000 to be paid each year to 
D for D's life, then to D's child (C) for C's life, with the 
remainder to be distributed upon the survivor's death to N, a 
charitable organization described in sections 170(c), 2055(a), and 
2522(a). The annuity is payable to D or C, as the case may be, 
annually on each December 31st. D died in 2006, survived by C who 
was then age 40. On D's death, the value of the trust assets was 
$300,000 and the section 7520 interest rate was 6 percent. D's 
executor did not elect to use the alternate valuation date.
    (ii) The amount of corpus with respect to which D retained the 
right to the income, and thus the amount includible in D's gross 
estate under section 2036, is that amount of corpus necessary to 
yield the annual annuity payment to D. In this case, the formula for 
determining the amount of corpus necessary to yield the annual 
annuity payment to D is: annual annuity/section 7520 interest rate = 
amount includible under section 2036. The amount of corpus necessary 
to yield the annual annuity is $12,000/.06 = $200,000. Therefore, 
$200,000 is includible in D's gross estate under section 2036(a)(1). 
(The result would be the same if D had irrevocably relinquished D's 
annuity interest no more than 3 years prior to D's death because of 
the application of section 2035.) D's estate is entitled to a 
charitable deduction under section 2055 for the present value of N's 
remainder interest in the CRAT. The applicable annuity factor (based 
on C's age on D's death and the section 7520 rate applicable on that 
date) is 14.1646. Therefore, the present value of the annuity is 
$169,975.20 (14.1646x$12,000). As a result, the allowable charitable 
deduction for D's estate is $30,024.80 ($200,000--$169,975.20). 
Under the facts presented, the Internal Revenue Service (IRS) will 
not seek (and the estate will not be permitted) to include under 
section 2039 any amount in D's gross estate by reason of this 
retained annuity. See Sec.  20.2039-1(e).
    Example 2. (i) D transferred $100,000 to a GRAT in which D's 
annuity is a qualified interest described in section 2702(b). The 
trust agreement provides for an annuity of $12,000 per year to be 
paid to D for a term of ten years or until D's earlier death. The 
annuity amount is payable at the end of each month in twelve equal 
installments. At the expiration of the term of years or on D's 
earlier death, the remainder is to be distributed to C, D's child. 
No additional contributions were made to the trust after D's 
transfer at the creation of the trust. D dies prior to the 
expiration of the ten-year term. On the date of D's death, the value 
of the trust assets was $300,000 and the section 7520 interest rate 
was 6 percent. D's executor did not elect to use the alternate 
valuation date.
    (ii) The amount of corpus with respect to which D retained the 
right to the income, and thus the amount includible in D's gross 
estate under section 2036, is that amount of corpus necessary to 
yield the annual annuity payment to D. In this case, the formula for 
determining the amount of corpus necessary to yield the annual 
annuity payment to D is: annual annuity (adjusted for monthly 
payments)/section 7520 interest rate = amount includible under 
section 2036. The Table K adjustment factor for monthly annuity 
payments in this case is 1.0272. Thus, the amount of corpus 
necessary to yield the annual annuity is ($12,000x1.0272)/.06 = 
$205,440. Therefore, $205,440 is includible in D's gross estate 
under section 2036(a)(1). Under the facts presented, the IRS will 
not seek (and the estate will not be permitted) to include under 
section 2039 any amount in D's gross estate by reason of this 
retained annuity. See Sec.  20.2039-1(e).
    Example 3. (i) In 2000, D created a CRUT within the meaning of 
section 664(d)(2). The trust instrument directs the trustee to hold, 
invest, and reinvest the corpus of the trust and to pay to D for D's 
life, and then to D's child (C) for C's life, in equal quarterly 
installments payable at the end of each calendar quarter, an amount 
equal to 6 percent of the fair market value of the trust as valued 
on December 15 of the prior taxable year of the trust. At the 
termination of the trust, the then corpus, together with any and all 
the accrued income, is to be distributed to N, a charitable 
organization described in sections 170(c), 2055(a), and 2522(a). D 
died in 2006, survived by C, who was then age 55. The value of the 
trust assets on D's death was $300,000 and D's executor did not 
elect to use the alternate valuation date.
    (ii) The amount of the corpus with respect to which D retained 
the right to the income, and thus the amount includible in D's gross 
estate under section 2036, is that amount of corpus necessary to 
yield the unitrust payments. In this case, such amount of corpus is 
determined by dividing the trust's equivalent income interest rate 
by the section 7520 rate (which was 6 percent at the time of D's 
death). The equivalent income interest rate is determined by 
dividing the trust's adjusted payout rate by the excess of 1 over 
the adjusted payout rate. Based on Sec.  1.664-4(e)(3) of the Income 
Tax Regulations, the appropriate adjusted payout rate for the trust 
at D's death is 5.786 percent (6 percent x .964365). Thus, the 
equivalent income interest rate is 6.141 percent (5.786 percent / 
(1--5.786 percent)). The ratio of the equivalent interest rate to 
the assumed interest rate under section 7520 is 102.35 percent 
(6.141 percent / 6 percent). Because this exceeds 100 percent, D's 
retained payout interest exceeds a full income interest in the 
trust, and D effectively retained the income from all the assets 
transferred to the trust. Accordingly, because D retained for life 
an interest at least equal to the right to the income from all the 
property transferred by D to the CRUT, the entire value of the 
corpus of the CRUT is includible in D's gross estate under section 
2036(a)(1). D's estate is entitled to a charitable deduction under 
section 2055 for the present value of N's remainder interest in the 
CRAT. The remainder factor (based on C's age at D's death, the 
section 7520 rate in effect on D's death, and the timing and 
frequency of the payments) is 0.28253. Therefore, the charitable 
deduction allowable to D's estate is $84,759 ($300,000 x 0.28253). 
Under the facts presented, the IRS will not seek (and the estate 
will not be permitted) to include under section 2039 any amount in 
D's gross estate by reason of D's retained unitrust interest. See 
Sec.  20.2039-1(e).

[[Page 31491]]

    (iii) If instead D had retained the right to a unitrust amount 
having an adjusted payout for which the corresponding equivalent 
interest rate would be less than the 6 percent assumed interest rate 
of section 7520, then a correspondingly reduced proportion of the 
trust corpus would be includible in D's gross estate under section 
2036(a)(1). Alternatively, if the interest retained by D was instead 
only one-half of the 6 percent unitrust interest, the computation of 
the portion of the trust includable in D's gross estate (set forth 
in Example 3 (ii)) would be reduced by one-half. In each case, the 
amount of the estate's charitable deduction for the remainder 
interest in the trust also would be reduced. All of the results in 
this Example 3 (except those relating to the charitable deduction) 
would be the same if the trust was a GRUT instead of a CRUT.
    Example 4. During D's life, D established a 15-year GRIT for the 
benefit of individuals who are not members of D's family within the 
meaning of section 2704(c)(2). D retained the right to receive all 
of the net income from the GRIT, payable annually, during the GRIT's 
term. D died during the third year of the GRIT term. D's executor 
did not elect to use the alternate valuation date. In this case, the 
GRIT's corpus is includible in D's gross estate under section 2036 
because D retained the right to receive all of the income from the 
GRIT for a period that did not in fact end before D's death. If 
instead, D had retained the right to receive 60 percent of the 
GRIT's net income, then 60 percent of the GRIT's corpus would have 
been includible in D's gross estate under section 2036.
    Example 5. D transfered D's personal residence to a trust that 
met the requirements of a qualified personal residence trust (QPRT) 
as set forth in Sec.  25.2702-5(c) of this chapter. Pursuant to the 
terms of the QPRT, D retained the right to use the residence for 10 
years or until D's prior death. D died before the end of the term. 
D's executor did not elect to use the alternate valuation date. In 
this case, the fair market value of the QPRT's assets on the date of 
D's death are includible in D's gross estate under section 2036 
because D retained the right to use the residence for a period that 
did not in fact end before D's death.

    (3) Effective dates. Paragraphs (a)(1), (a)(2), and (c)(1)(i) of 
this section are applicable to the estates of decedents dying after 
August 16, 1954. Paragraphs (c)(1)(ii) and (c)(2) of this section apply 
to the estates of decedents for which the valuation date of the gross 
estate is on or after the date of publication of the Treasury decision 
adopting these rules as final regulations in the Federal Register.
    Par. 3. Section 20.2039-1 is amended by:
    1. Revising paragraph (a).
    2. Adding a new paragraph (e).
    The revision and addition reads as follows:


Sec.  20.2039-1  Annuities.

    (a) In general. A decedent's gross estate includes under section 
2039(a) and (b) the value of an annuity or other payment receivable by 
any beneficiary by reason of surviving the decedent under certain 
agreements or plans to the extent that the value of the annuity or 
other payment is attributable to contributions made by the decedent or 
his employer. Section 2039(a) and (b), however, has no application to 
an amount which constitutes the proceeds of insurance under a policy on 
the decedent's life. Paragraph (b) of this section describes the 
agreements or plans to which section 2039(a) and (b) applies; paragraph 
(c) of this section provides rules for determining the amount 
includible in the decedent's gross estate; paragraph (d) of this 
section distinguishes proceeds of life insurance; and paragraph (e) of 
this section distinguishes annuity, unitrust, and other income 
interests retained by a decedent in certain trusts. The fact that an 
annuity or other payment is not includible in a decedent's gross estate 
under section 2039(a) and (b) does not mean that it is not includible 
under some other section of part III of subchapter A of chapter 11. 
However, see section 2039(c) and (d) and Sec.  20.2039-2 for rules 
relating to the exclusion from a decedent's gross estate of annuities 
and other payments under certain ``qualified plans.'' Further, the fact 
that an annuity or other payment may be includible under section 
2039(a) will not preclude the application of another section of chapter 
11 with regard to that interest. For annuity interests in trust, see 
paragraph (e)(1) of this section.
* * * * *
    (e)(1) No application to certain trusts. Section 2039 shall not be 
applied to include in a decedent's gross estate all or any portion of a 
trust (other than a trust constituting an employee benefit, but 
including those described in the following sentence) if the decedent 
retained a right to use property of the trust or retained an annuity, 
unitrust, or other income interest in the trust, in either case as 
described in section 2036. Such trusts include without limitation the 
following (collectively referred to in this paragraph (e)(1) as 
``trusts''): certain charitable trusts (collectively CRTs) such as a 
charitable remainder annuity trust (CRAT) within the meaning of section 
664(d)(1), a charitable remainder unitrust (CRUT) within the meaning of 
section 664(d)(2) or (d)(3), and any other charitable remainder trust 
that does not qualify under section 664(d), as well as other trusts 
established by a grantor (collectively GRTs) such as a grantor retained 
annuity trust (GRAT), a grantor retained unitrust (GRUT), and various 
forms of grantor retained income trusts (GRITs), whether or not the 
grantor's retained interest is a qualified interest as defined in 
section 2702(b), including without limitation qualified personal 
residence trusts (QPRTs) and personal residence trusts (PRTs). For 
purposes of determining the extent to which a retained interest causes 
all or a portion of a trust to be included in a decedent's gross 
estate, see Sec.  20.2036-1(c)(1), (2), and (3).
    (2) Effective date. The first, second, and fourth sentences in 
paragraph (a) of this section are applicable to the estates of 
decedents dying after August 16, 1954. The fifth sentence of paragraph 
(a) of this section is applicable to the estates of decedents dying on 
or after October 27, 1972, and to the estates of decedents for which 
the period for filing a claim for credit or refund of an estate tax 
overpayment ends on or after October 27, 1972. The third, sixth, and 
seventh sentences of paragraph (a) of this section and this paragraph 
(e) are applicable to the estates of decedents for which the valuation 
date of the gross estate is on or after the date of publication of the 
Treasury decision adopting these rules as final regulations in the 
Federal Register.
* * * * *

Kevin M. Brown,
Deputy Commissioner for Services and Enforcement.
[FR Doc. E7-11062 Filed 6-6-07; 8:45 am]
BILLING CODE 4830-01-P