IRS increases time for late portability elections

The IRS recently released guidance (Rev. Proc. 2022-32) increasing the time limit for taxpayers to make a late portability election using the simplified method from two years from a decedent’s death to five years from a decedent’s death.

The portability election generally permits the unused exclusion amount from the first spouse to die (DSUE) to become available for application to the surviving spouse’s subsequent transfers by gift or at death. For 2022, the exclusion amount is $12,060,000. The election must be made on the decedent spouse’s timely filed estate tax return.

Prior to 2017, if taxpayers did not timely elect portability, they were generally required to obtain a private letter ruling (PLR) granting an extension of time to elect portability. In an effort to reduce these PLR requests, the IRS in 2017 issued Rev. Proc. 2017-34, which held that if estates were not required to file an estate tax return (except to elect portability), the IRS would provide a simplified method for requests made within two years of the decedent’s death.

Rev. Proc. 2022-32 supersedes Rev. Proc. 2017-24 and extends the period to make the simplified portability election to five years after the decedent’s death. Thus, executors of applicable estates may file a complete estate tax return prior to five years after the decedent’s death and elect portability. The estate tax return must state at the top of the form that the return is “FILED PURSUANT TO REV. PROC. 2022-32 TO ELECT PORTABILITY UNDER § 2010(c)(5)(A).” There is no fee for submissions under this procedure — though if the election results in an overpayment of estate or gift tax by the surviving spouse, Rev. Proc. 2022-32 does not extend the statute of limitations for filing a claim for refund by the surviving spouse or their estate.

This revenue procedure will be helpful to surviving spouses where subsequent appreciation of the value of the estate of the surviving spouse might otherwise result in an estate tax liability and there is DSUE available from the first-to-die spouse’s estate. If it has been more than five years after the death of the first-to-die spouse — or the surviving spouse does not qualify under this revenue procedure for other reasons — the surviving spouse still must file for a PLR to obtain relief.

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