Cal. Code Regs. tit. 18, § 13402.2 – Date of Death After 5:15 p.m., September 26, 1977--Examples.

(a) Nonincludible Transfers. As used in this regulation, the term “nonincludible transfer” denotes a lifetime transfer subject to gift tax under which the rights of the transferee are vested and under which the transferor does not postpone the possession or enjoyment of the property transferred until the transferor's death, nor retain any interest in the property transferred, nor reserve any power to revoke, terminate, alter, amend, revise or change the interest of the transferee, nor make the transfer in contemplation of death within three years prior to death, nor make the transfer as an advancement or in lieu of or in avoidance of probate, nor create a joint tenancy, and under which the transferee does not promise to make payments to care for the transferor. Such a transfer is not subject to inheritance tax upon the subsequent death of the transferor. However, in the case of decedents with a date of death after 5:15 p.m., September 26, 1977, the date of gift value of nonincludible transfers made after December 31, 1976, less any applicable annual exclusion, is added to the clear market value of transfers subject to inheritance tax for the purpose of determining the rates of taxation that shall apply to those transfers subject to inheritance tax at the death of the transferor.
1. (A) The gift was made after December 31, 1976. Therefore, the net gift is aggregated with the death time transfer to compute the inheritance tax.
2. (B) Only the net gift (i.e., date of gift value of the gift less the allowable $3,000 annual exclusion) is aggregated.
3. (C) The second (tax on prior gifts) inheritance tax computation is a separate computation in which the specific exemption applicable at date of death is allowed, and the tax on the excess over the specific exemption commences at the beginning tax rates in effect at date of death.
  EXAMPLE (2). Gift of nonincludible transfer made after December 31, 1976, change of exemption between date of gift and date of death.
  In 1977, P makes a gift to C, minor child, of $60,000 cash. The gift tax return is properly filed and gift tax paid.
  Gift Tax Computation:
  $60,000
  Gross gift
  -3,000
  Annual exclusion
  $57,000
  Net gift
  Gift Tax = $1,810
  $12,000
  Specific exemption
  13,000
  x
  3%
  =
  $390
  25,000
  x
  4%
  =
  1,000
  7,000
  x
  6%
  =
  420
  $57,000
  --
  Total --
  $1,810
  P dies in December, 1978, without having made any additional gifts. The 1977 transfer is determined to be nonincludible for inheritance tax purposes, and P's probate estate has a clear market value of $200,000, all of which goes to C who is an adult at P's date of death. The inheritance tax is computed as follows:
  C (adult child)
  $200,000
  Probate (CMV)
  $5,000 Specific exemption
  57,000
  Prior net gifts
  Tentative tax on balance
  $18,300
  $257,000
  Total
  Less tax on prior gifts
  2,020
  Inheritance tax due
  $16,280
  The Tentative Tax Computation and the Tax on Prior Gifts Computation Are the Same As in Example (1).
  POINTS TO NOTE:
4. (A) Although the $12,000 specific exemption was allowed in computing the gift tax paid, only a $5,000 specific exemption is used in computing the second (tax on prior gifts) inheritance tax computation where the transferee is an adult at the date of death. This is necessary because the “tax on prior gifts” reduction is similar to a credit applied against the “tentative tax.” If the larger exemption were used, the “credit” would be reduced correspondingly, resulting in an imposition of a tax at death on a portion ($7,000) of the specific exemption allowed at the date of gift. The exemption and rate of tax applied in both inheritance tax computations are those in effect and according to the beneficiary's status at the date of death, regardless of what may have been the rate of tax and exemption in effect at date of gift.
5. (B) The same principle applies in cases where there is a change of tax rates between date of gift and date of death, and in cases where there is a change of beneficiary's relationship between date of gift and date of death. The prior net gifts are added to the death transfers for the first (tentative tax) inheritance tax computation, and the tax rates in effect at date of death are applied to the sum of the value of those transfers, after allowance for the specific exemption in effect at date of death. Consequently, the applicable specific exemption and tax rates in effect at date of death must be used in computing the second (tax on prior gifts) inheritance tax computation, regardless of what tax rates or exemption may have applied at the date of gift. The tax on prior gifts reduction of the tentative tax may be the same as, more than, or less than the actual gift tax paid. Therefore, to insure the correct inheritance tax computation, it is necessary to make separate computation rather than merely apply a “credit” in the amount of the gift tax paid.
  EXAMPLE (3). Gift of nonincludible transfer made after December 31, 1976, change of beneficiary's relationship between date of gift and date of death.
  In 1977, X makes a gift to N, minor nephew, of $60,000 cash. The gift tax return is properly filed and gift tax paid.
  Gift Tax Computation:
  $60,000
  Gross gift
  -3,000
  Annual exclusion
  $57,000
  Net gift
  Gift Tax = $4,720
  $2,000
  Specific exemption
  23,000
  x
  6%
  =
  $1,380
  25,000
  x
  10%
  =
  2,500
  7,000
  x
  12%
  =
  840
  $57,000
  --
  Total --
  $4,720
  In 1978, X formally adopts N, who is a minor at the age of adoption. X dies in 1979 without having made any additional gifts. X's probate estate has a clear market value of $200,000, all of which goes to N. The 1977 transfer is determined to be nonincludible for inheritance tax purposes, and N is an adult at the date of X's death. The inheritance tax is computed as follows:
  N (adult child, adopted)
  $200,000
  Probate (CMV)
  $5,000 Specific exemption
  57,000
  Prior net gifts
  Tentative tax on balance
  $18,300
  $257,000
  Total
  Less tax on prior gifts
  2,020
  Inheritance tax due
  $16,280
  The Tentative Tax Computation and the Tax on Prior Gifts Computation Are the Same As in Example (1).
  POINTS TO NOTE:
6. (A) At the date of death, N is an adult Class A beneficiary, and therefore the tentative tax is computed upon the aggregate of lifetime and death transfers at the Class A exemption and tax rates. Consequently, Class A exemption and rates must be used in computing the reduction due to the tax on prior gifts (second inheritance tax computation).
  COMMENTS RE EXAMPLES (1), (2) and (3):
  The first three illustrations demonstrate that the reduction due to the tax on prior gifts (second inheritance tax computation) may be the same as, more than, or less than the actual gift tax paid. Therefore, to insure a correct inheritance tax determination, it is necessary to make a separate computation rather than merely apply a “credit” in the amount of gift tax paid.
  Since the tentative tax (first inheritance tax computation) is computed, on the aggregate of lifetime gifts made after December 31, 1976, and death transfers, at the exemption and tax rates in effect and applicable at date of death, the reduction for the tax on prior gifts (second inheritance tax computation) must also be computed at the exemption and tax rates in effect and applicable at date of death, regardless of what exemption or tax rates may have applied at the date of gift.
  In the first three illustrations, the date of gift exemption status of the beneficiary and the tax rates applied at date of gift varies resulting in a different amount of gift tax paid in cash case. However, the date of death status of the beneficiary and the value of the property received are identical in all three illustrations, i.e., an adult Class A beneficiary having received net gifts from parent/adoptive parent during lifetime and after December 31, 1976, of $57,000 and receiving a net probate estate having a clear market value of $200,000. By proceeding in the manner outlined, a uniform result is obtained, and the inheritance tax due in each case is determined to be $16,280.
  In the first three illustrations, there were no gifts made prior to January 1, 1977. Nonincludible lifetime gifts made prior to January 1, 1977, are not aggregated with transfers subject to inheritance tax. Consequently, the computation of the tax on prior gifts (second inheritance tax computation) requires special consideration in the case of decedents dying after 5:15 p.m., September 26, 1977, who during lifetime made gifts both before January 1, 1977, and after December 31, 1976. See Example (4) below.
  EXAMPLE (4). Gift of nonincludible transfer made prior to January 1, 1977, plus gift of nonincludible transfer made after December 31, 1976.
  In 1968, P makes a gift to C, adult child, of $33,000 cash, for which a gift tax return is properly filed and gift tax paid.
  Gift Tax Computation:
  $33,000
  Gross gift
  -3,000
  Annual exclusion
  $30,000
  Net gift
  Gift Tax = $800
  $5,000
  Specific exemption
  20,000
  x
  3%
  =
  $600
  5,000
  x
  4%
  =
  200
  $30,000
  --
  Total --
  $800
  In 1977, P makes a further cash gift to C of $60,000 for which a gift tax return is properly filed and gift tax paid.
  Gift Tax Computation:
  $60,000
  Gross gift
  $5,000 Specific exemption
  -3,000
  Annual exclusion
  Tax on total net gifts
  $3,820
  Less tax on prior year gifts
  800
  $57,000
  Current year net gift
  Current year gift tax
  $3,020
  30,000
  Prior year net gift
  $87,000
  Total net gifts
  TOTAL NET GIFT COMPUTATION
  $5,000
  Specific exemption
  20,000
  x
  3%
  =
  $600
  25,000
  x
  4%
  =
  1,000
  37,000
  x
  6%
  =
  2,220
  $87,000
  --
  Total --
  $3,820
  PRIOR YEAR NET GIFT COMPUTATION
  $5,000
  Specific exemption
  20,000
  x
  3%
  =
  $600
  5,000
  x
  4%
  =
  200
  $30,000
  --
  Total --
  $800
  P dies in December, 1978, without making any additional gifts. The 1968 and 1977 transfers are determined to be nonincludible for inheritance tax purposes, and P's probate estate has a clear market value of $200,000, all of which goes to C. The inheritance tax is computed as follows:
  C (adult child)
  $200,000
  Probate (CMV)
  $5,000 Specific exemption
  57,000
  Prior net gifts
  Tentative tax on balance
  $18,300
  $257,000
  Total
  Less tax on prior gifts
  3,020
  Inheritance tax due
  $15,280
  TENTATIVE TAX COMPUTATION
  $5,000
  Specific exemption
  20,000
  x
  3%
  =
  $600
  25,000
  x
  4%
  =
  1,000
  50,000
  x
  6%
  =
  3,000
  100,000
  x
  8%
  =
  8,000
  57,000
  x
  10%
  =
  5,700
  $257,000
  --
  Total --
  $18,300
  TAX ON PRIOR GIFT COMPUTATION
  $57,000
  Post-1976 gift
  30,000
  Pre-1977 gift
  $87,000
  Total
  TAX ON TOTAL
  $5,000
  Specific exemption
  20,000
  x
  3%
  =
  $600
  25,000
  x
  4%
  =
  1,000
  37,000
  x
  6%
  =
  2,220
  $87,000
  --
  Total --
  $3,820
  LESS TAX ON PRE-1977 GIFT
  $5,000
  Specific exemption
  20,000
  x
  3%
  =
  $600
  5,000
  x
  4%
  =
  200
  $30,000
  --
  Total --
  800
  Tax on Post-1976 Gift
  $3,020
  POINTS TO NOTE:
7. (A) The 1968 gift is determined to be nonincludible for inheritance tax purposes. In the case of decedents with a date of death after 5:15 p.m., September 26, 1977, nonincludible transfers made prior to January 1, 1977 are not aggregated with the death transfers. Therefore, the pre-1977 nonincludible transfer is not included in the measure of the tentative tax and the tentative tax is not reduced by a tax computed upon the net gift value of the pre-1977 nonincludible transfer.
8. (B) By reason of the progressive tax rate structure of the gift tax, the pre-1977 nonincludible transfer results in the subsequent (post-1976) nonincludible transfer being taxed in the higher tax rate brackets. Therefore, to determine the amount of tax on prior gifts reduction of the tentative tax with respect to the subsequent (post-1976) transfer, it is necessary to take into account the effect of the pre-1977 transfer. In such a case, the tax on prior gifts reduction of the tentative tax is determined in the following manner:
  1. 1. Add to the sum of the net gift value of post-1976 transfers the sum of the net gift value of pre-1977 transfers.
  2. 2. Compute the tax on the total net gift value thus determined at the rate and exemptions in effect at date of death.
  3. 3. Compute the tax on the sum of the net gift value of all transfers made prior to January 1, 1977, at the rate and exemptions in effect at date of death and commencing with the primary rates.
  4. 4. The tax computed in step 2, is then reduced by the tax computed in step 3, and the result is the amount of tax on prior gifts reduction of the tentative tax.
9. (C) As demonstrated in the previous examples, the tax on prior gifts reduction of the tentative tax may be the same as, more than, or less than the actual gift tax paid. Where there is no change in the transferee's beneficiary status, and no change in the specific exemption, and no change in the tax rates between the date of gift and date of death, the tax on prior gifts reduction of the tentative tax will be the same as the gift tax paid with respect to the transfers made after December 31, 1976.
EXAMPLE (1). Gift of a nonincludible transfer made after December 31, 1976.
In 1977, P makes a gift to C, adult child, of $60,000 cash, for which a gift tax return is properly filed and gift tax paid.
Gift Tax Computation:
$60,000
Gross gift
-3,000
Annual exclusion
$57,000
Net gift
Gift Tax = $2,020
$5,000
Specific exemption
20,000
x
3%
=
$600
25,000
x
4%
=
1,000
7,000
x
6%
=
420
$57,000
--
Total --
$2,020
P dies in December, 1978, without having made any additional gifts. The 1977 transfer is determined to be nonincludible for inheritance tax purposes, and P's probate estate has a clear market value (after allowable deductions) of $200,000, all of which goes to C. The inheritance tax is computed as follows:
C (adult child)
$200,000
Probate (CMV)
$5,000 Specific exemption
57,000
Prior net gift
Tentative tax on balance
$18,300
$257,000
Total
Less tax on prior gifts
2,020
Inheritance tax due
$16,280
TENTATIVE TAX COMPUTATION
$5,000
Specific exemption
20,000
x
3%
=
$600
25,000
x
4%
=
1,000
50,000
x
6%
=
3,000
100,000
x
8%
=
8,000
57,000
x
10%
=
5,700
$257,000
--
Total --
$18,300
TAX ON PRIOR GIFTS COMPUTATION
$5,000
Specific exemption
20,000
x
3%
=
$600
25,000
x
4%
=
1,000
7,000
x
6%
=
420
$57,000
--
Total --
$2,020
POINTS TO NOTE:
(b) Includible Transfer: General. As used in this regulation, the term “includible transfer” denotes a lifetime transfer subject to gift tax under which the rights of transferee are contingent or the transferor postpones the possession or enjoyment of the property transferred until the transferor's death, or retains an interest in the property transferred, or reserves the power to revoke, terminate, alter, amend, revise or change the interest of the transferee, or make the transfer in contemplation of death within three years prior to death, or makes the transfer as an advancement or in lieu of or in avoidance of probate, or creates a joint tenancy, or under which the transferee promises to make payments to or care for the transferor. Such a transfer is also subject to inheritance tax, at its date of death value, upon the death of the transferor. However, where the date of transferor's death is after 5:15 p.m., September 26, 1977, the method of computing the inheritance tax in the case of an includible transfer made by the decedent during lifetime will differ depending upon whether the date of gift was before January 1, 1977 or after December 31, 1976.
1. (1) Includible Transfers, Date of Gift After December 31, 1976. In each of the previous examples, the lifetime transfer is not subject to inheritance tax. In such a case, the date of gift value of net gifts made after December 31, 1976, is used in both the first (tentative tax) inheritance tax computation and the second (tax on prior net gifts) inheritance tax computation.
  1. (A) The transfer in which P reserved a life estate is subject to inheritance tax (Revenue and Taxation Code Section 13644). Consequently, the transfer is valued at date of death value in the first (tentative tax) inheritance tax computation.
  2. (B) The date of gift value of the net gifts subject to gift tax must be used in the second (tax on prior gifts) inheritance tax computation even though the full date of death value is subject to inheritance tax.
  3. (C) Since the lifetime gift is an includible transfer, subject to inheritance tax, the gift tax on the gift is also subject to inheritance tax (Revenue and Taxation Code Section 13648), and is included in the measure of the first (tentative tax) inheritance tax computation.
    EXAMPLE (6). Gift of includible transfer made after December 31, 1976, plus gift of nonincludible transfer made after December 31, 1976.
    In February, 1977, P makes a gift to C, adult child, of a residence, reserving a life estate. At the date of gift, the market value of the residence is $80,000, and the value of the remainder interest transferred to C is $34,116. A gift tax return is properly filed and gift tax paid.
    Gift Tax Computation:
    $34,116
    Net gift
    Gift Tax = $965
    THE COMPUTATION IS THE SAME AS IN EXAMPLE (5).
    In December, 1977, P makes a further gift to C of $50,000 cash, for which a gift tax return is properly filed and gift tax paid.
    Gift Tax Computation:
    $50,000
    Gross gift
    $5,000 Specific exemption
    -3,000
    Annual exclusion
    Tax on total gift
    $3,467
    $47,000
    Current qtr net gift
    Less tax on prior qtr gift
    965
    34,116
    Prior qtr net gift
    Tax on current qtr gift
    $2,502
    $81,116
    Total net gift
    TOTAL NET GIFTS
    $5,000
    Specific exemption
    20,000
    x
    3%
    =
    $600
    25,000
    x
    4%
    =
    1,000
    31,116
    x
    6%
    =
    1,867
    $81,116
    --
    Total --
    $3,467
    PRIOR QUARTER NET GIFTS
    $5,000
    Specific exemption
    20,000
    x
    3%
    =
    $600
    9,116
    x
    4%
    =
    365
    $34,116
    --
    Total --
    $965
    P dies in December, 1978, without having made any additional gifts. The residence in which C received a remainder interest by gift made in February, 1977, has a date of death value of $90,000, and the cash gift made in December, 1977, is determined to be nonincludible for inheritance tax purposes. P's probate estate has a clear market value of $250,000, all of which goes to C. The inheritance tax is computed as follows:
    C (adult child)
    $250,000
    Probate (CMV)
    $5,000 Specific exemption
    90,000
    Includible transfer
    Tentative tax on balance
    $33,156
    965
    Gift tax paid
    Less tax on prior gifts
    3,467
    47,000
    Other prior net gifts
    Inheritance tax due
    $29,689
    $387,965
    Total
    TENTATIVE TAX COMPUTATION
    $5,000
    Specific exemption
    20,000
    x
    3%
    =
    $600
    25,000
    x
    4%
    =
    1,000
    50,000
    x
    6%
    =
    3,000
    100,000
    x
    8%
    =
    8,000
    100,000
    x
    10%
    =
    10,000
    87,965
    x
    12%
    =
    10,556
    $387,965
    --
    Total --
    $33,156
    TAX ON PRIOR NET GIFT COMPUTATION
    $34,116
    = February 1977 net gift
    47,000
    = December 1977 net gift
    $81,116
    Total prior net gifts
    $5,000
    Specific exemption
    20,000
    x
    3%
    =
    $600
    25,000
    x
    4%
    =
    1,000
    31,116
    x
    6%
    =
    1,867
    $81,116
    --
    Total --
    $3,467
    POINTS TO NOTE:
  4. (A) In the first (tentative tax) inheritance tax computation, the includible transfer is valued at the date of death value and the nonincludible transfer is valued at date of gift value.
  5. (B) In the second (tax on prior gifts) inheritance tax computation, both lifetime gifts (includible and nonincludible) are valued at date of gift value.
  6. (C) The gift tax paid with respect to includible transfers is subject to inheritance tax, and is included in the measure of the tentative tax. The gift tax paid with respect to nonincludible transfers is not subject to inheritance tax, and is not included in the measure of the tentative tax.
    EXAMPLE (7). Gift of includible transfer made after December 31, 1976, plus gift of nonincludible transfer made prior to January 1, 1977. In 1976, P makes a gift to C, adult child, of $33,000 cash for which a gift tax return is properly filed and gift tax paid.
    Gift Tax Computation:
    $33,000
    Gross gift
    -3,000
    Annual exclusion
    $30,000
    Net gift
    Gift Tax = $800
    $5,000
    Specific exemption
    20,000
    x
    3%
    =
    $600
    5,000
    x
    4%
    =
    200
    $30,000
    --
    Total --
    $800
    In 1977, P makes an additional gift to C of a residence, reserving a life estate. At the date of gift, the market value of the residence is $80,000 and the value of the remainder interest transferred to C is $34,116. A gift tax return is properly filed and gift tax paid.
    Gift Tax Computation:
    $34,116
    Current year net gift
    $5,000 Specific exemption
    30,000
    Prior year net gift
    Tax on total gift
    $2,447
    $64,116
    Total net gifts
    Less tax on prior gifts
    800
    Tax on current year gift
    $1,647
    TOTAL NET GIFTS
    $5,000
    Specific exemption
    20,000
    x
    3%
    =
    $600
    25,000
    x
    4%
    =
    1,000
    14,116
    x
    6%
    =
    847
    $64,116
    --
    Total --
    $2,447
    PRIOR YEAR GIFT
    $5,000
    Specific exemption
    20,000
    x
    3%
    =
    $600
    5,000
    x
    4%
    =
    200
    $30,000
    --
    Total --
    $800
    P dies in December, 1978, without having made any additional gifts. The residence in which C received a remainder interest by gift made in 1977 has a date of death value of $90,000, and the cash gift made in 1976 is determined to be nonincludible for inheritance tax purposes. P's probate estate has a clear market value of $250,000, all of which goes to C. The inheritance tax is computed as follows:
    C (adult child)
    $250,000
    Probate (CMV)
    $5,000 Specific exemption
    90,000
    Includible transfer
    Tentative tax on balance
    $27,598
    1,647
    Gift tax paid
    Less tax on prior gift
    1,647
    $341,647
    Total
    Inheritance tax due
    $25,951
    TENTATIVE TAX COMPUTATION
    $5,000
    Specific exemption
    20,000
    x
    3%
    =
    $600
    25,000
    x
    4%
    =
    1,000
    50,000
    x
    6%
    =
    3,000
    100,000
    x
    8%
    =
    8,000
    100,000
    x
    10%
    =
    10,000
    41,647
    x
    12%
    =
    4,998
    $341,647
    --
    Total --
    $27,598
    TAX ON PRIOR GIFT COMPUTATION
    $34,116
    Date of gift value, includible transfer
    30,000
    Pre-1977 nonincludible gifts
    $64,116
    Total
    Tax on total prior gifts
    $2,447
    Less tax on pre-1977 nonincludible
    800
    Tax on prior includible gift
    $1,647
    POINTS TO NOTE:
  7. (A) The cash gift made in 1976 is determined to be nonincludible for inheritance tax purposes and therefore that transfer is not aggregated with the death transfers, and is not included in the measure of the tentative tax.
  8. (B) The gift made prior to January 1, 1977, results in the gift made after December 31, 1976, being taxed for gift tax purposes in the higher tax rate brackets. Therefore, the tax on prior gifts reduction of the tentative tax must be computed in the manner demonstrated in Example (4) under subsection (a) of this section.
    The tax on prior gifts reduction of the tentative tax must be computed in this manner in every case where transfers subject to gift tax were made during lifetime of the decedent both before January 1, 1977 and after December 31, 1976, and the date of death is after 5:15 p.m., September 26, 1977.
  Where the lifetime transfer is also subject to inheritance tax (as, for example, in the case of a transfer with a life estate reserved or a transfer into joint tenancy), the date of death value of the property transferred must be used in the first (tentative tax) inheritance tax computation, but the date of gift value continues to be used in the second (tax on prior net gifts) inheritance tax computation.
  The following examples illustrate the computation in cases where lifetime transfers which are subject to inheritance tax have been made and the date of death of the transferor is after 5:15 p.m., September 26, 1977.
  EXAMPLE (5). Gift of an includible transfer made after December 31, 1976.
  In 1977, P makes a gift to C, adult child, of a residence, reserving a life estate. At the date of gift, the market value of the residence is $80,000, and the value of the remainder interest transferred to C is $34,116. A gift tax return is properly filed and gift tax paid.
  Gift Tax Computation:
  $34,116
  Net gift
  Gift Tax = $965
  $5,000
  Specific exemption
  20,000
  x
  3%
  =
  $600
  9,116
  x
  4%
  =
  365
  $34,116
  --
  Total --
  $965
  P dies in December, 1978, without having made any additional gifts. The residence in which C received a remainder interest by gift made in 1977 has a date of death value of $90,000. P's probate estate has a clear market value of $250,000, all of which goes to C. The inheritance tax is computed as follows:
  C (adult child)
  $250,000
  Probate (CMV)
  $5,000 Specific exemption
  90,000
  Includible transfer
  Tentative tax on balance
  $27,516
  965
  Gift tax paid
  Less tax on prior gift
  965
  $340,965
  Total
  Inheritance tax due
  $26,551
  TENTATIVE TAX COMPUTATION
  $5,000
  Specific exemption
  20,000
  x
  3%
  =
  $600
  25,000
  x
  4%
  =
  1,000
  50,000
  x
  6%
  =
  3,000
  100,000
  x
  8%
  =
  8,000
  100,000
  x
  10%
  =
  10,000
  40,965
  x
  12%
  =
  4,916
  $340,965
  --
  Total --
  $27,516
  TAX ON PRIOR GIFT COMPUTATION
  $5,000
  Specific exemption
  20,000
  x
  3%
  =
  $600
  9,116
  x
  4%
  =
  365
  $34,116
  --
  Total --
  $965
  POINTS TO NOTE:
2. (2) Includible Transfers, Date of Gift Prior to January 1, 1977. Pursuant to the provisions of Section 13402 of the Revenue and Taxation Code, as amended by Stats. 1978, Chapter 1388, nonincludible transfers made prior to January 1, 1977, are not aggregated with transfers subject to inheritance tax where the date of death is after 5:15 p.m., September 26, 1977 (see Stats. 1979, Ch. 1005). Therefore, in estates where the date of death is after that date, pre-1977 nonincludible transfers are not included in the measure of the tentative tax and the tentative tax is not reduced by a tax computed upon the net gift value of the pre-1977 nonincludible transfers.
  1. (A) Even though the includible transfer was made prior to January 1, 1977, it is nevertheless subject to inheritance tax, at its date of death value.
  2. (B) Where the includible transfer is made prior to January 1, 1977, and the date of death is after 5:15 p.m., September 26, 1977, a tax on prior gifts computation is not made with respect to the includible transfer. In such a case, a gift tax credit is allowed for gift tax paid at the date of gift.
  3. (C) In the case of pre-1977 includible gifts, the amount of gift tax paid which is allowed as a gift tax credit is added to other assets subject to inheritance tax, as a prepaid inheritance tax. Reference: Estate of Giolitti, 26 Cal. App. 3d 327 and Estate of Schmalenbach, 15 Cal. 3d 102.
    EXAMPLE (9). Gift of includible transfer made prior to January 1, 1977 plus gift of nonincludible transfer made after December 31, 1976.
    In 1974, P transfers real property to himself and C, adult child, as joint tenants. The date of gift value of the property transferred is $60,000. A gift tax return is properly filed and gift tax paid.
    Gift Tax Computation:
    $60,000
    Value of property transferred into joint tenancy
    / 2
    $30,000
    Cross value of gift
    -3,000
    Annual exclusion
    $27,000
    Net gift
    Gift Tax = $680
    THE COMPUTATION IS THE SAME AS IN EXAMPLE (8).
    In 1977, P makes a further gift to C of $33,000 cash, A gift tax return is properly filed and the gift tax paid.
    Gift Tax Computation:
    $33,000
    Gross gift
    $5,000 Specific exemption
    -3,000
    Annual exclusion
    Tax on total
    $2,020
    $30,000
    Current year net gift
    Less tax on prior gift
    680
    27,000
    Prior year net gift
    Tax on current year gift
    $1,340
    $57,000
    Total net gifts
    TAX ON TOTAL
    $5,000
    Specific exemption
    20,000
    x
    3%
    =
    $600
    25,000
    x
    4%
    =
    1,000
    7,000
    x
    6%
    =
    420
    $57,000
    --
    Total --
    $2,020
    TAX ON PRIOR YEAR GIFTS
    $5,000
    Specific exemption
    20,000
    x
    3%
    =
    $600
    2,000
    x
    4%
    =
    80
    $27,000
    --
    Total --
    $680
    P dies in December, 1978, without making any additional gifts. The date of death value of the joint tenancy property is $75,000, and the cash gift made in 1977 is determined to be nonincludible for inheritance tax purposes. P's probate estate has a clear market value of $250,000, all of which goes to C. The inheritance tax is computed as follows:
    C (adult child)
    $250,000
    Probate (CMV)
    $5,000 Specific exemption
    75,000
    Joint tenancy
    Tentative tax on balance
    $29,282
    680
    Prepaid inheritance tax
    Less tax on prior transfer
    1,340
    30,000
    Other prior gifts
    Less gift tax credit
    680
    $355,680
    Total
    Inheritance tax due
    $27,262
    TENTATIVE TAX COMPUTATION
    $5,000
    Specific exemption
    20,000
    x
    3%
    =
    $600
    25,000
    x
    4%
    =
    1,000
    50,000
    x
    6%
    =
    3,000
    100,000
    x
    8%
    =
    8,000
    100,000
    x
    10%
    =
    10,000
    55,680
    x
    12%
    =
    6,682
    $355,680
    --
    Total --
    $29,282
    TAX ON PRIOR GIFT
    $30,000
    Post-1976 net gift
    72,000
    Pre-1977 net gift
    $57,000
    Total
    Tax on total prior gifts
    $2,020
    Less tax on pre-1977 gifts
    680
    Tax on post-1976 gift
    $1,340
    POINTS TO NOTE:
  4. (A) The transfer into joint tenancy is an includible transfer, and therefore the date of death value of the joint tenancy property is included in the measure of the tentative tax. However, the transfer into joint tenancy was made prior to January 1, 1977. Consequently, the tax on prior transfers reduction of the tentative tax does not include the amount of tax computed upon the net gift value of the 1974 transfer into joint tenancy. Where a gift tax has been paid on a pre-1977 includible transfer, a gift tax credit is allowed with respect to such transfer.
  5. (B) The nonincludible transfer was made after December 31, 1976. Therefore, the nonincludible transfer is included in the measure of the tentative tax, and the tentative tax is reduced by a tax computed, at the exemption and rates of tax in effect at date of death, on the value of the post-1976 nonincludible net gift.
    However, by reason of the pre-1977 transfer, the post-1976 nonincludible transfer was taxed at the higher rate brackets for gift tax purposes. Therefore, the tax on prior gifts reduction of the tentative tax is computed in the same manner as is demonstrated in Example (4) under subsection (a) of this section.
    There was no change in the specific exemption or tax rates between the date of the 1977 nonincludible transfer and the date of death. Consequently, the tax on prior gifts reduction of the tentative tax, in the inheritance tax computation, is the same as the gift tax paid on the 1977 nonincludible transfer.
  6. (C) The gift tax paid with respect to the pre-1977 includible transfer is included in the measure of the tentative tax as a prepaid inheritance tax.
  7. (D) The gift made after December 31, 1976 was determined to be nonincludible for inheritance tax purposes. Therefore, the gift tax paid with respect to this transfer is not included in the measure of the tentative tax.
    EXAMPLE (10). Gift of includible transfer made prior to January 1, 1977 plus gift of includible transfer made after December 31, 1976.
    In 1974, P transfers real property to himself and C, adult child, as joint tenants. The date of gift value of the real property is $60,000. The gift tax return is properly filed and gift tax paid.
    Gift Tax Computation:
    The gift tax computation is the same as in Example (8).
    Gift Tax = $680.
    In 1977, P makes a further gift to C of a residence, reserving a life estate. At the date of gift, the market value of the residence is $80,000, and the value of the remainder interest transferred to C is $34,116. A gift tax return is properly filed and gift tax paid
    Gift Tax Computation:
    $34,116
    Current year net gift
    $5,000 Specific exemption
    27,000
    Prior year net gift
    Tax on total gifts
    $2,267
    $61,116
    Total
    Less tax on prior year gift
    680
    Tax on current year gift
    $1,587
    TOTAL GIFT
    $5,000
    Specific exemption
    20,000
    x
    3%
    =
    $600
    25,000
    x
    4%
    =
    1,000
    11,116
    x
    6%
    =
    667
    $61,116
    --
    Total --
    $2,267
    TAX ON PRIOR YEAR GIFT
    $5,000
    Specific exemption
    20,000
    x
    3%
    =
    $600
    2,000
    x
    4%
    =
    80
    $27,000
    --
    Total --
    $680
    P dies in December, 1978, without having made any additional gifts. The date of death value of the joint tenancy property is $75,000, and the residence in which C received a remainder interest has a date of death value of $90,000. P's probate estate has a clear market value of $250,000, all of which goes to C. The inheritance tax is computed as follows:
    C (adult child)
    $250,000
    Probate (CMV)
    $5,000 Specific exemption
    75,000
    Joint tenancy
    Tentative tax on balance
    $37,017
    90,000
    Includible transfer
    Less tax on prior transfer
    1,587
    1,587
    Gift tax paid
    Less gift tax credit
    680
    680
    Prepaid inheritance tax
    Inheritance tax due
    $34,750
    $417,267
    Total
    TENTATIVE TAX COMPUTATION
    $5,000
    Specific exemption
    20,000
    x
    3%
    =
    $600
    25,000
    x
    4%
    =
    1,000
    50,000
    x
    6%
    =
    3,000
    100,000
    x
    8%
    =
    8,000
    100,000
    x
    10%
    =
    10,000
    100,000
    x
    12%
    =
    12,000
    17,267
    x
    14%
    =
    2,417
    $417,267
    --
    Total --
    $37,017
    TAX ON PRIOR GIFT COMPUTATION
    $34,116
    Date of gift value post-1976 net gift
    27,000
    Date of gift value pre-1977 net gift
    $61,116
    Total
    Tax on total gifts
    $2,267
    Less tax on pre-1977 transfer
    680
    Tax on post-1976 includible transfer
    $1,587
    POINTS TO NOTE:
  8. (A) All includible transfers, whether made prior to January 1, 1977, or after December 31, 1976, are valued at date of death value for the tentative tax computation.
  9. (B) A gift tax credit is allowed for includible transfers made prior to January 1, 1977, and the tax on prior gifts reduction of the tentative tax is computed only with respect to transfers made after December 31, 1976.
  10. (C) Where transfers have been made prior to January 1, 1977, and a transfer is subsequently made after December 31, 1976, the tax on prior gifts reductions of the tentative tax is computed in the manner demonstrated in Example (4) under subsection (a) of this section. Where there is no change in the specific exemption and tax rates applicable to the donee/beneficiary between the date of the post-1976 transfers and the date of death, the tax on prior gifts reduction of the tentative tax is the same as the gift tax paid on the post-1976 transfers.
  11. (D) In the case of post-1976 includible transfers, the amount of gift tax paid is added to other assets subject to inheritance tax for the tentative tax computation, and is not included in the tax on prior gifts computation. See Revenue and Taxation Code Section 13648.
  12. (E) In the case of pre-1977 includible transfers, the amount of gift tax paid which is allowed as a gift tax credit is added to other assets subject to inheritance tax for the tentative tax computation, as a prepaid inheritance tax, and is not included in the tax on prior gifts computation. Reference: Estate of Giolitti, 26 Cal. App. 3d 327 and Estate of Schmalenbach, 15 Cal. 3d 102.
  Includible transfers, by definition, are subject to inheritance tax upon the death of the donor, and are included in the measure of the tentative tax at the date of death market value, regardless of the date of gift. However, where the date of death is after 5:15 p.m., September 26, 1977, a tax on prior gifts reduction of the tentative tax is not computed for the pre-1977 includible transfer. In such a case, a gift tax credit is allowed with respect to the pre-1977 includible transfers. See Section 14077 concerning gift tax credit.
  EXAMPLE (8). Gift of includible transfer made prior to January 1, 1977.
  In 1974, P transfers real property to himself and C, adult child, as joint tenants. The date of gift value of the real property is $60,000. A gift tax return is properly filed and gift tax paid.
  Gift Tax Computation:
  $60,000
  Value of property transferred into joint tenancy
  / 2
  $30,000
  Gross value of gift
  -3,000
  Annual exclusion
  $27,000
  Net gift
  Gift Tax = $680
  $5,000
  Specific exemption
  20,000
  x
  3%
  =
  $600
  2,000
  x
  4%
  =
  80
  $27,000
  --
  Total --
  $680
  P dies in December, 1978, without having made any additional gifts. The date of death value of the joint tenancy real property is $75,000, and P's probate estate has a clear market value of $250,000, all of which goes to C. the inheritance tax is computed as follows:
  C (adult child)
  $250,000
  Probate (CMV)
  $5,000 Specific exemption
  75,000
  Joint tenancy
  Tax on balance
  $25,682
  680
  Prepaid inheritance tax
  Less gift tax credit
  680
  $325,680
  Total
  Inheritance tax due
  $25,002
  POINTS TO NOTE:
3. (3) Includible Transfers Made After December 31, 1976, Decrease in Value.
  1. (A) The transfer into joint tenancy is an includible transfer subject to inheritance tax (see Revenue and Taxation Code Section 13671), and, therefore, it must be valued at the date of death value in the first (tentative tax) inheritance tax computation.
  2. (B) The date of gift value of the includible transfer, less any applicable annual exclusion, continues to be used in the second (tax on prior gifts) inheritance tax computation even though the value of the property decreases between the date of gift and the date of death. However, the tax on prior gifts cannot be used to reduce the tentative tax below a zero tax.
  3. (C) Although the value of the includible transfer decreases between the date of gift and date of death, the full amount of the gift tax paid, based upon the date of gift value of the includible transfer, is included as a taxable transfer (see Revenue and Taxation Code Section 13648).
    EXAMPLE (12). Gift of includible transfer, decreased by invasion between date of gift and date of death.
    In 1977, P transfers to T, trustee assets having a date of gift value of $100,000. Under the terms of the trust, income accumulates for the life of P. Upon P's death, the trust terminates, at which time accumulated income and corpus then remaining is to be paid to C, trustor's child, if living, otherwise to N, trustor's niece, or her issue, per stirpes, if N does not survive. During the term of the trust, the trustee is to pay so much income or principal as the trustee, in its discretion, deems necessary for the welfare, support, medical, hospitalization or other emergency needs of M, trustor's mother. The trust is expressly made irrevocable, and trustor retains no power to alter or amend the trust.
    In the gift tax determination, the trust contingencies are compromised (see Revenue and Taxation Code Section 15951) upon the basis that C will receive the entire trust corpus. The gift tax paid is computed as follows:
    Gift Tax Computation:
    $100,000
    Date of gift value of property transferred
    -5,000
    Specific exemption
    $95,000
    Tax on balance
    Gift Tax = $4,600
    20,000
    x
    3%
    =
    $600
    25,000
    x
    4%
    =
    1,000
    50,000
    x
    6%
    =
    3,000
    $95,000
    --
    Total --
    $4,600
    In 1978, M suffers a serious illness, and the trustee expends all of the accumulated income and $25,000 of trust corpus for medical and hospital expenses incurred by M. M dies in December, 1978. P dies in January, 1979, without having made any additional gifts and with C surviving. P's probate estate has a clear market value of $100,000, all of which goes to C. The value of the trust assets remaining after the invasion for M's expenses is $75,000. The inheritance tax is computed as follows:
    C (adult child)
    $100,000
    Probate (CMV)
    $5,000 Specific exemption
    75,000
    Trust
    Tentative tax on balance
    $10,876
    3,450
    Gift tax paid
    Less tax on prior gift
    3,450
    $178,450
    Total
    Inheritance tax due
    $7,426
    TENTATIVE TAX COMPUTATION
    $5,000
    Specific exemption
    20,000
    x
    3%
    =
    $600
    25,000
    x
    4%
    =
    1,000
    50,000
    x
    6%
    =
    3,000
    78,450
    x
    8%
    =
    6,276
    $178,450
    --
    Total --
    $10,876
    TAX ON PRIOR GIFT COMPUTATION
    $5,000
    Specific exemption
    20,000
    x
    3%
    =
    $600
    25,000
    x
    4%
    =
    1,000
    50,000
    x
    6%
    =
    3,000
    $100,000
    --
    Total --
    $4,600
    ADJUSTMENT FOR INVASION
    $75,000
    x
    4,600
    =
    $3,450
    $100,000
    POINTS TO NOTE:
  4. (A) In this illustration, the includible transfer is decreased between date of gift and date of death by reason of an invasion of trust corpus, thereby converting a portion of the original transfer to a nonincludible transfer. Therefore, only a portion of the original transfer is included in the first (tentative tax) inheritance tax computation as a transfer subject to inheritance tax. Consequently, in the second (tax on prior gifts) inheritance tax computation there must be an adjustment to prorate the tax on prior gift between the includible and nonincludible portion of the original transfer. The tax on the prior gift, measured by the date of gift value of the total original transfer and computed at the exemption and rates of tax applicable to the transferee at date of death, is first computed. That portion of the tax on prior gifts thus determined which bears the same ratio to the total tax thus computed as the date of gift value of the includible portion of the original transfer bears to the date of gift value of the total original transfer is used as the tax on prior gift reduction of the tentative tax computed with respect to the transferee of the includible transfer. (Compare with example (11) where all of the property transferred is included at date of death but the value of the property transferred is decreased between date of gift and date of death.)
  5. (B) The illustration assumes no change in the value of trust assets from date of gift to date of death. If, at the date of invasion, the market value of the assets placed in trust is different from the market value at date of gift, the amount by which the date of gift value of the trust is reduced is an amount that bears the same ratio to the date of invasion value of the amount converted to a nonincludible transfer as the date of gift value of the trust bears to the date of invasion value of the trust immediately before the invasion. This value is determined by the following formula:
    ((Date of gift value of trust)/(Date of invasion value of trust)) x invasion (amount converted to a nonincludible transfer)
    The result is the amount by which the date of gift value of the trust is reduced to determine the date of gift value of the includible transfer to be used in the second (tax on prior gifts) inheritance tax computation.
    In the event that there are successive invasions of trust corpus, the adjusted date of gift value, as determined by the immediately preceding invasion of trust corpus, shall be used to determine the amount by which the value of the includible transfer is reduced by reason of converting a portion thereof to a nonincludible transfer.
  6. (C) Only the gift tax paid with respect to the portion of the transfer which is included in the inheritance tax computation is added to the measure of the first (tentative tax) inheritance tax computation. This is determined by multiplying the actual gift tax paid by the fraction in which the numerator is the date of gift value of the includible portion of the original transfer and the denominator is the date of gift value of the total original transfer.
  7. (D) In such a case, if the transferee of the portion of the transfer that was converted to a nonincludible transfer (M in the illustration) survives the transferor and receives other assets the transfer of which is subject to inheritance tax, the nonincludible portion of the original transfer would be added to the transfers subject to inheritance tax, in the same manner as illustrated in examples (1) through (4), inclusive, to determine the amount of inheritance tax due with respect to that transferee.
    As in the case of the includible transfer, the second (tax on prior gifts) inheritance tax computation with respect to the transferee of the nonincludible portion of the original transfer must be adjusted to reflect only that portion of the tax on prior gifts that is attributable to the nonincludible portion of the original transfer. The tax on the prior gift, measured by the date of gift value of the total original transfer and computed at the exemption and rates of tax applicable to the nonincludible transferee at date of death, is first computed. That portion of the tax on prior gifts thus determined which bears the same ratio to the total tax thus computed as the date of gift value of the nonincludible portion of the original transfer bears to the date of gift value of the total original transfer is used as the tax on prior gift reduction of the tentative tax computed with respect to the transferee of the nonincludible transfer.
  EXAMPLE (11). Gift of an includible transfer, decrease in value between date of gift and date of death.
  In 1977, P transfers to herself and C, adult child, as joint tenants, 1,000 shares of stock having a date of gift market value of $100 per share. The gift tax return is properly filed and gift tax paid.
  Gift Tax Computation:
  $100,000
  Date of gift value of stock transferred
  / 2
  $50,000
  Gross value of gift
  -3,000
  Annual exclusion
  $47,000
  Net gift
  -5,000
  Specific exemption
  $42,000
  Tax on balance
  Gift Tax = $1,480
  20,000
  x
  3%
  =
  $600
  22,000
  x
  4%
  =
  880
  $42,000
  --
  Total --
  $1,480
  P dies in October, 1979, without having made any additional gifts. P's probate estate has a clear market value of $100,000, all of which goes to C. The joint tenancy stock has a date of death value of $75 per share. The inheritance tax is computed as follows:
  C (adult child)
  $100,000
  Probate (CMV)
  $5,000 Specific exemption
  75,000
  Joint tenancy
  Tentative tax on balance
  $10,790
  1,480
  State gift tax paid
  Less tax on prior gift
  1,480
  900
  Prepaid federal estate tax
  Inheritance tax due
  $9,310
  $177,380
  Total
  TENTATIVE TAX COMPUTATION
  $5,000
  Specific exemption
  20,000
  x
  3%
  =
  $600
  25,000
  x
  4%
  =
  1,000
  50,000
  x
  6%
  =
  3,000
  77,380
  x
  8%
  =
  6,190
  $177,380
  --
  Total --
  $10,790
  TAX ON PRIOR GIFT COMPUTATION
  $5,000
  Specific exemption
  20,000
  x
  3%
  =
  $600
  22,000
  x
  4%
  =
  880
  $47,000
  --
  Total --
  $1,480
  POINTS TO NOTE:
(c) Interspousal Transfers. The manner of computing the inheritance tax in the case of a deceased married person who made gifts to his or her spouse during lifetime and whose date of death is after 5:15 p.m., September 26, 1977 is demonstrated by the following examples.
1. (A) The nonincludible transfer made prior to January 1, 1977, is not aggregated with transfers subject to inheritance tax.
2. (B) The date of gift value of the net gift made after December 31, 1976 is aggregated with transfers subject to inheritance tax and included in the measure of the tentative tax. The tentative tax is reduced by a tax computed, at the exemption and rates of tax in effect at date of death, on the date of gift value of the nonincludible net gift made after December 31, 1976. By reason of the progressive tax rate structure of the gift tax, the pre-1977 nonincludible transfer results in the subsequent, post-1976 transfer being taxed in the higher tax brackets. Therefore, the tax on prior gifts reduction of the tentative tax is computed in the manner demonstrated in Example (4) under subsection (a) of this section.
  EXAMPLE (14). Husband and wife, nonincludible gift of separate property prior to 1977 plus includible gift of separate property made after 1976.
  In 1975, H. makes a gift to W of separate property having a date of gift value of $103,000. A gift tax return is properly filed and gift tax paid.
  Gift Tax Computation:
  The gift tax computation is the same as in Example (13). Gift tax = $4,600.
  In 1977, H makes an additional Gift to W of separate property, reserving a life estate. The date of gift value of the separate property is $200,000 and the value of the remainder interest transferred to W is $131,612. A gift tax return is properly filed and gift tax paid.
  Gift Tax Computation:
  $131,612
  Gross gift
  $60,000 Specific exemption
  -65,806
  Marital exclusion
  Tax on total net gifts
  $7,664
  $65,806
  Current year net gift
  Less tax on prior year gifts
  2,400
  100,000
  Prior year net gift
  Tax on current year gift
  $5,264
  $165,806
  Total
  TAX ON TOTAL
  $60,000
  Specific exemption
  40,000
  x
  6%
  =
  $2,400
  65,806
  x
  8%
  =
  5,264
  $165,806
  --
  Total --
  $7,664
  TAX ON PRIOR YEAR GIFT
  $60,000
  Specific exemption
  40,000
  x
  3%
  =
  $2,400
  $100,000
  --
  Total --
  $2,400
  H dies in December, 1978, without making any additional gifts. The clear market value of H's probate estate passing to W is $125,000 community property (representing H's ½ interest in the community property) and $100,000 separate property. The property in which W received a remainder interest by gift made in 1977 has a date of death value of $250,000, and the 1975 gift is determined to be nonincludible for inheritance tax purposes. The inheritance tax is computed as follows:
  W (spouse)
  $125,000
  Probate (CMV)
  $5,000 Specific exemption
  $125,000
  ½ C/P probate
  $177,632 Marital exclusion
  100,000
  S/P probate
  60,000 Specific exemption
  250,000
  Includible gift (S/P)
  Tentative tax on balance
  $20,716
  5,264
  Gift tax paid
  Less tax on prior gifts
  5,264
  $480,264
  Total
  Inheritance tax due
  $15,452
  TENTATIVE TAX COMPUTATION
  $480,264
  Total
  -177,632
  Marital exclusion
  $302,632
  $60,000
  Specific exemption
  40,000
  x
  6%
  =
  $2,400
  100,000
  x
  8%
  =
  8,000
  100,000
  x
  10%
  =
  10,000
  2,632
  x
  12%
  =
  316
  $302,632
  --
  Total --
  $20,716
  TAX ON PRIOR GIFTS
  $65,806
  1977 includible net gift
  100,000
  Pre-1977 nonincludible net gift
  $165,806
  Total
  Tax on total
  $7,664
  Less tax on pre-1977 gift
  2,400
  Tax on post-1976 includible gift
  $5,264
  POINTS TO NOTE:
3. (A) The 1975 gift is determined to be nonincludible, and therefore is not aggregated with transfers subject to inheritance tax and is not included in the measure of the tentative tax.
4. (B) The gift made in 1977 is an includible transfer, and is therefore included in the measure of the tentative tax at the date of death value of the property transferred.
5. (C) The tax on prior gifts reduction of the tentative tax is computed with respect to only the post-1976 transfer, and is measured by the date of gift value of the net gift. By reason of the gifts made prior to January 1, 1977, the gift made after December 31, 1976, was placed in the higher gift tax brackets. Therefore, the tax on prior gifts reduction of the tentative tax is computed in the same manner as is demonstrated in Example (4) under subsection (a) of this section.
6. (D) The gift tax paid on the includible transfer is included in the measure of the tentative tax, and is not included in the computation of the tax on prior gifts reduction of the tentative tax.
7. (E) The includible transfer was a gift of separate property, and the gift tax paid on the includible transfer is also regarded to have been separate property. Therefore, a marital exclusion is also allowed on the gift tax paid. In the example, the maximum marital exclusion allowed in the tentative tax is computed as follows:
  $100,000
  Separate property transferred at death (Probate CMV)
  250,000
  Separate property includible transfer
  5,264
  Separate property gift tax paid
  $355,264
  Total separate property subject to inheritance tax
  / 2
  $177,632
  Maximum allowable marital exclusion
  EXAMPLE (15). Husband and wife, includible gift of separate property prior to 1977 plus nonincludible gift of separate property after 1976.
  In 1975, H makes a gift to W of separate property reserving a life estate. At the date of gift the value of the property transferred is $200,000, and the value of the remainder interest transferred to W is $131,612. A gift tax return is properly filed and gift tax paid.
  Gift Tax Computation:
  $131,612
  Net gift
  Gift Tax = $7,129
  $5,000
  Specific exemption
  20,000
  x
  3%
  =
  $600
  25,000
  x
  4%
  =
  1,000
  50,000
  x
  6%
  =
  3,000
  31,612
  x
  8%
  =
  2,529
  $131,612
  --
  Total --
  $7,129
  In 1977, H makes an additional gift to W of separate property having a date of gift value of $106,000. A gift tax return is properly filed and gift tax paid.
  Gift Tax Computation:
  $106,000
  Gross gift
  -53,000
  Marital exclusion
  -3,000
  Annual exclusion
  $50,000
  Current year net gift
  Tax on total
  $8,929
  131,612
  Prior year net gift
  Less tax on prior year
  4,929
  $181,612
  Tax on current year
  $4,000
  TAX ON TOTAL COMPUTATION
  $60,000
  Specific exemption
  40,000
  x
  6%
  =
  $2,400
  81,612
  x
  8%
  =
  6,529
  $181,612
  --
  Total --
  $8,929
  TAX ON PRIOR GIFT COMPUTATION
  $60,000
  Specific exemption
  40,000
  x
  6%
  =
  $2,400
  31,612
  x
  8%
  =
  2,529
  $131,612
  --
  Total --
  $4,929
  H dies in December, 1978, without having made any additional gifts. The date of death value of the property in which W received a remainder interest by gift made in 1975 is $250,000, and the gift made in 1977 is determined to be nonincludible for inheritance tax purposes. The clear market value of H's probate estate, all of which goes to W, is $125,000 community property (representing H's ½ interest in the community property) and $100,000 separate property. The inheritance tax is computed as follows:
  W (spouse)
  $125,000
  Probate (CMV)
  $5,000 Specific exemption
  $125,000
  ½ C/P probate
  $176,783 Marital exclusion
  100,000
  S/P probate
  60,000 Specific exemption
  250,000
  Includible transfer
  Tentative tax on balance
  $26,614
  (pre-1977)
  Less tax on prior gifts
  4,000
  50,000
  Other prior gifts
  $22,614
  (post-1976)
  3,565
  Prepaid inheritance tax
  Less gift tax credit
  3,565
  $528,565
  Total
  $19,049
  TENTATIVE TAX COMPUTATION
  $528,565
  Total
  -176,783
  Marital exclusion
  $351,782
  $60,000
  Specific exemption
  40,000
  x
  6%
  =
  $2,400
  100,000
  x
  8%
  =
  8,000
  100,000
  x
  10%
  =
  10,000
  51,782
  x
  12%
  =
  6,214
  $351,782
  --
  Total --
  $26,614
  TAX ON PRIOR GIFT COMPUTATION
  $50,000
  Post-1976 net gift
  131,612
  Post-1977 net gift
  $181,612
  Tax on total
  $8,929
  Tax on pre-1977 gift
  $4,929
  Tax on post-1976 gift
  $4,000
  POINTS TO NOTE:
8. (A) The gift made in 1975 was an includible transfer, and is subject to inheritance tax, at date of death value, even though made prior to January 1, 1977. Therefore, the date of death value of the property transferred in 1975 is included in the measure of the tentative tax.
9. (B) Since the includible transfer was made prior to January 1, 1977, the tax on prior gifts reduction of the tentative tax does not include the gift tax on the includible transfer. However, a gift tax credit is allowed for the gift tax paid on includible transfers made prior to January 1, 1977.
10. (C) The gift made after December 31, 1976 is determined to be nonincludible for inheritance tax purposes. Therefore, the date of gift value of the net gift is included in the measure of the tentative tax, and the tentative tax is reduced by a tax on prior gifts computed on the date of gift value of the net gift, at the exemptions and rates of tax in effect at date of death.
11. (D) By reason of the prior gift, the 1977 gift was placed in the higher tax bracket for gift tax purposes. Therefore, the tax on prior gifts reduction of the tentative tax is computed in the manner demonstrated in Example (4) under subsection (a) of this section.
12. (E) To the extent that the gift tax paid on the includible transfer is allowed as a gift tax credit, the gift tax paid is subject to inheritance tax, and is included in the measure of the tentative tax as a prepaid inheritance tax. Reference: Estate of Giolitti, 26 Cal. App. 3d 327 and Estate of Schmalenbach, 15 Cal. 3d 102. See Section 14077 concerning gift tax credit.
EXAMPLE (13). Husband and wife, nonincludible gift of separate property prior to 1977 plus nonincludible gift of separate property after 1976.
In 1975, H (husband) makes a gift to W (wife) of his separate property having a date of gift value of $103,000. The gift tax return is properly filed and gift tax paid.
Gift Tax Computation:
$103,000
Gross gift
-3,000
Annual exclusion
$100,000
Net gift
Gift Tax = $4,600
$5,000
Specific exemption
20,000
x
3%
=
$600
25,000
x
4%
=
1,000
50,000
x
6%
=
3,000
$100,000
--
Total --
$4,600
In 1977, H makes another gift to W of his separate property having a date of gift value of $206,000. The gift tax return is properly filed and the gift tax paid.
Gift Tax Computation:
$206,000
Gross gift
-103,000
Marital exclusion
-3,000
Annual exclusion
$100,000
current year net gift
$60,000 Specific exemption
100,000
Prior year net gift
Tax on total net gifts
$10,400
$200,000
Total
Less tax on prior year gifts
2,400
Gift tax on current year gift
$8,000
TOTAL NET GIFTS
$60,000
Specific exemption
40,000
x
6%
=
$2,400
100,000
x
8%
=
8,000
$200,000
--
Total --
$10,400
PRIOR YEAR GIFTS
$60,000
Specific exemption
40,000
x
6%
=
$2,400
$100,000
--
Total --
$2,400
H dies in December, 1978, without making any additional gifts. The clear market value of H's probate estate passing to W is $125,000 community property (representing H's ½ interest in the community property) and $100,000 separate property. The lifetime gifts, made in 1975 and 1977, are determined to be nonincludible for inheritance tax purposes. The inheritance tax is computed as follows:
W (spouse)
$125,000
½ C/P probate
$50,000 Marital exclusion
100,000
S/P probate
60,000 Specific exemption
100,000
Net prior gifts
(post-1976)
Tentative tax on balance
$17,900
$325,000
Total
Less tax on prior gifts
-8,000
Inheritance tax due
$9,900
TENTATIVE TAX COMPUTATION
$325,000
Total
-50,000
½ S/P probate
$275,000
$60,000
Specific exemption
40,000
x
6%
=
$2,400
100,000
x
8%
=
8,000
75,000
x
10%
=
7,500
$257,000
--
Total --
$17,900
TAX ON PRIOR GIFTS COMPUTATION
$100,000
Pre-1977 net gift
100,000
Post-1976 net gift
$200,000
Total
TAX ON TOTAL
$60,000
Specific exemption
40,000
x
6%
=
$2,400
100,000
x
8%
=
8,000
$200,000
--
Total --
$10,400
Less tax on pre-1976 gifts
$60,000
Specific exemption
40,000
x
6%
=
$2,400
$100,000
--
Total --
2,400
Tax on post-1976 gift
$8,000
POINTS TO NOTE:

The provisions of Subsection (b) of Section 13402.1 are illustrated by the following examples:

Note: Authority cited: Section 14740, Revenue and Taxation Code. Reference: Section 13402, Revenue and Taxation Code, and Stats. 1979, Ch. 1005.

History

1. Amendment of section title filed 3-8-79; effective thirtieth day thereafter (Register 79, No. 10).

2. Repealer and new section filed 2-28-80; effective thirtieth day thereafter (Register 80, No. 9).