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ABA Comments on Draft Form 8939

As discussed in previous entries, the IRS recently released a draft Form 8939, for decedents who died in 2010 and wish to elect no estate tax (which comes with no basis step-up in assets (with limited exceptions)). Only estates of very wealthy 2010 decedents will likely wish to file a Form 8939. The IRS has still not issued instructions to the form. On January 31, 2011, the ABA sent the IRS a detailed comment letter on the Form 8939, and the IRS, in turn, responded to the comments. Commentators requested clarity on the due date of the form (the IRS hinted at a 9/19/11 due date). The ABA questioned whether the act of filing the Form 8939 constituted making the election (the IRS responded that it did, and that it preferred an executor complete the form rather than simply checking a box to make the election). Finally, the ABA asked whether the IRS would consider allowing estates to make a “protective election” out of the estate tax in the event an IRS audit adjustment subsequently made the election more advantageous. The IRS appears disinclined to do so. More to come soon on the Form 8939.