Title 26 — Internal Revenue Code
Part IV · Chapter 11 — Estate Tax
§ 2056A. Qualified domestic trust
Statutory text
Qualified domestic trust defined
For purposes of this section and section 2056(d), the term “qualified domestic trust” means, with respect to any decedent, any trust if—
the trust instrument—
except as provided in regulations prescribed by the Secretary, requires that at least 1 trustee of the trust be an individual citizen of the United States or a domestic corporation, and
provides that no distribution (other than a distribution of income) may be made from the trust unless a trustee who is an individual citizen of the United States or a domestic corporation has the right to withhold from such distribution the tax imposed by this section on such distribution,
such trust meets such requirements as the Secretary may by regulations prescribe to ensure the collection of any tax imposed by subsection (b), and
an election under this section by the executor of the decedent applies to such trust.
Tax treatment of trust
Imposition of estate tax
There is hereby imposed an estate tax on—
any distribution before the date of the death of the surviving spouse from a qualified domestic trust, and
the value of the property remaining in a qualified domestic trust on the date of the death of the surviving spouse.
Amount of tax
In general
In the case of any taxable event, the amount of the estate tax imposed by paragraph (1) shall be the amount equal to—
the tax which would have been imposed under section 2001 on the estate of the decedent if the taxable estate of the decedent had been increased by the sum of—
the amount involved in such taxable event, plus
the aggregate amount involved in previous taxable events with respect to qualified domestic trusts of such decedent, reduced by
the tax which would have been imposed under section 2001 on the estate of the decedent if the taxable estate of the decedent had been increased by the amount referred to in clause (i)(II).
Tentative tax where tax of decedent not finally determined
In general
If the tax imposed on the estate of the decedent under section 2001 is not finally determined before the taxable event, the amount of the tax imposed by paragraph (1) on such event shall be determined by using the highest rate of tax in effect under section 2001 as of the date of the decedent’s death.
Refund of excess when tax finally determined
If—
the amount of the tax determined under clause (i), exceeds
the tax determined under subparagraph (A) on the basis of the final determination of the tax imposed by section 2001 on the estate of the decedent,
such excess shall be allowed as a credit or refund (with interest) if claim therefor is filed not later than 1 year after the date of such final determination.
Special rule where decedent has more than 1 qualified domestic trust
If there is more than 1 qualified domestic trust with respect to any decedent, the amount of the tax imposed by paragraph (1) with respect to such trusts shall be determined by using the highest rate of tax in effect under section 2001 as of the date of the decedent’s death (and the provisions of paragraph (3)(B) shall not apply) unless, pursuant to a designation made by the decedent’s executor, there is 1 person—
who is an individual citizen of the United States or a domestic corporation and is responsible for filing all returns of tax imposed under paragraph (1) with respect to such trusts and for paying all tax so imposed, and
who meets such requirements as the Secretary may by regulations prescribe.
Certain lifetime distributions exempt from tax
Income distributions
No tax shall be imposed by paragraph (1)(A) on any distribution of income to the surviving spouse.
Hardship exemption
No tax shall be imposed by paragraph (1)(A) on any distribution to the surviving spouse on account of hardship.
Tax where trust ceases to qualify
If any qualified domestic trust ceases to meet the requirements of paragraphs (1) and (2) of subsection (a), the tax imposed by paragraph (1) shall apply as if the surviving spouse died on the date of such cessation.
Due date
Tax on distributions
The estate tax imposed by paragraph (1)(A) shall be due and payable on the 15th day of the 4th month following the calendar year in which the taxable event occurs; except that the estate tax imposed by paragraph (1)(A) on distributions during the calendar year in which the surviving spouse dies shall be due and payable not later than the date on which the estate tax imposed by paragraph (1)(B) is due and payable.
Tax at death of spouse
The estate tax imposed by paragraph (1)(B) shall be due and payable on the date 9 months after the date of such death.
Liability for tax
Each trustee shall be personally liable for the amount of the tax imposed by paragraph (1). Rules similar to the rules of section 2204 shall apply for purposes of the preceding sentence.
Treatment of tax
For purposes of section 2056(d), any tax paid under paragraph (1) shall be treated as a tax paid under section 2001 with respect to the estate of the decedent.
Lien for tax
For purposes of section 6324, any tax imposed by paragraph (1) shall be treated as an estate tax imposed under this chapter with respect to a decedent dying on the date of the taxable event (and the property involved shall be treated as the gross estate of such decedent).
Taxable event
The term “taxable event” means the event resulting in tax being imposed under paragraph (1).
Certain benefits allowed
In general
If any property remaining in the qualified domestic trust on the date of the death of the surviving spouse is includible in the gross estate of such spouse for purposes of this chapter (or would be includible if such spouse were a citizen or resident of the United States), any benefit which is allowable (or would be allowable if such spouse were a citizen or resident of the United States) with respect to such property to the estate of such spouse under section 2014, 2032, 2032A, 2055, 2056, 2058, or 6166 shall be allowed for purposes of the tax imposed by paragraph (1)(B).
Section 303
If the estate of the surviving spouse meets the requirements of section 303 with respect to any property described in subparagraph (A), for purposes of section 303, the tax imposed by paragraph (1)(B) with respect to such property shall be treated as a Federal estate tax payable with respect to the estate of the surviving spouse.
Section 6161(a)(2)
The provisions of section 6161(a)(2) shall apply with respect to the tax imposed by paragraph (1)(B), and the reference in such section to the executor shall be treated as a reference to the trustees of the trust.
Special rule where distribution tax paid out of trust
For purposes of this subsection, if any portion of the tax imposed by paragraph (1)(A) with respect to any distribution is paid out of the trust, an amount equal to the portion so paid shall be treated as a distribution described in paragraph (1)(A).
Special rule where spouse becomes citizen
If the surviving spouse of the decedent becomes a citizen of the United States and if—
such spouse was a resident of the United States at all times after the date of the death of the decedent and before such spouse becomes a citizen of the United States,
no tax was imposed by paragraph (1)(A) with respect to any distribution before such spouse becomes such a citizen, or
such spouse elects—
to treat any distribution on which tax was imposed by paragraph (1)(A) as a taxable gift made by such spouse for purposes of—
section 2001, and
determining the amount of the tax imposed by section 2501 on actual taxable gifts made by such spouse during the year in which the spouse becomes a citizen or any subsequent year, and
to treat any reduction in the tax imposed by paragraph (1)(A) by reason of the credit allowable under section 2010 with respect to the decedent as a credit allowable to such surviving spouse under section 2505 for purposes of determining the amount of the credit allowable under section 2505 with respect to taxable gifts made by the surviving spouse during the year in which the spouse becomes a citizen or any subsequent year,
paragraph (1)(A) shall not apply to any distributions after such spouse becomes such a citizen (and paragraph (1)(B) shall not apply).
Coordination with section 1015
For purposes of section 1015, any distribution on which tax is imposed by paragraph (1)(A) shall be treated as a transfer by gift, and any tax paid under paragraph (1)(A) shall be treated as a gift tax.
Coordination with terminable interest rules
Any interest in a qualified domestic trust shall not be treated as failing to meet the requirements of paragraph (5) or (7) of section 2056(b) merely by reason of any provision of the trust instrument permitting the withholding from any distribution of an amount to pay the tax imposed by paragraph (1) on such distribution.
No tax on certain distributions
No tax shall be imposed by paragraph (1) on any distribution to the surviving spouse to the extent such distribution is to reimburse such surviving spouse for any tax imposed by subtitle A on any item of income of the trust to which such surviving spouse is not entitled under the terms of the trust.
Definitions
For purposes of this section—
Property includes interest therein
The term “property” includes an interest in property.
Income
Except as provided in regulations, the term “income” has the meaning given to such term by section 643(b).
Trust
To the extent provided in regulations prescribed by the Secretary, the term “trust” includes other arrangements which have substantially the same effect as a trust.
Election
An election under this section with respect to any trust shall be made by the executor on the return of the tax imposed by section 2001. Such an election, once made, shall be irrevocable. No election may be made under this section on any return if such return is filed more than one year after the time prescribed by law (including extensions) for filing such return.
Regulations
The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this section, including regulations under which there may be treated as a qualified domestic trust any annuity or other payment which is includible in the decedent’s gross estate and is by its terms payable for life or a term of years.
Legislative history
Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.
Technical and Miscellaneous Revenue Act of 1988
Pub. L. 100–647 title V § 5033(a)(2) · 102 Stat. 3342
Enacted · 26 U.S.C. § 2056A
Added Pub. L. 100–647, title V, § 5033(a)(2), Nov. 10, 1988, 102 Stat. 3670
Source evidence
Code source credit
Added Pub. L. 100–647, title V, § 5033(a)(2), Nov. 10, 1988, 102 Stat. 3670Enacted provision · exact public law section
(2) Treatment of qualified domestic trust.— Part IV of subchapter A of chapter 11 of the 1986 Code is amended by inserting after section 2056 the following new section: “SEC. 2056A. QUALIFIED DOMESTIC TRUST. “(a) Qualified Domestic Trust Defined.— For purposes of this section and section 2056(d), the term ‘qualified domestic trust’ means, with respect to any decedent, any trust if— “(1) the trust instrument requires that all trustees of the trust be individual citizens of the United States or domestic corporations, “(2) the surviving spouse of the decedent is entitled to all the income from the property in such trust, payable annually or at more frequent intervals, “(3) such trust meets such requirements as the Secretary may by regulations prescribe to ensure the collection of any tax imposed by subsection (b), and “(4) an election under this section by the executor of the decedent applies to such trust. “(b) Tax Treatment of Trust.— “(1) Imposition of estate tax.— There is hereby imposed an estate tax on— “(A) any distribution before the date of the death of the surviving spouse from a qualified domestic trust other than a distribution of income required under subsection (a)(2), and “(B) the value of the property remaining in a qualified domestic trust on the date of the death of the surviving spouse. “(2) Amount of tax.— “(A) In general.— In the case of any taxable event, the amount of the estate tax imposed by paragraph (1) shall be the amount equal to— “(i) the tax which would have been imposed under section 2001 on the estate of the decedent if the taxable estate of the decedent had been increased by the sum of— “(I) the amount involved in such taxable event, plus “(II) the aggregate amount involved in previous taxable events with respect to qualified domestic trusts of such decedent, reduced by “(ii) the tax which would have been imposed under section 2001 on the estate of the decedent if the taxable estate of the decedent had been increased by the amount referred to in clause (i)(II). “(B) Tentative tax where tax of decedent not finally determined.— “(i) In general.— If the tax imposed on the estate of the decedent under section 2001 is not finally determined before the taxable event, the amount of the tax imposed by paragraph (1) on such event shall be determined by using the highest rate of tax in effect under section 2001 as of the date of the decedent’s death. “(ii) Refund of excess when tax finally determined.— If— “(I) the amount of the tax determined under clause (i), exceeds “(II) the tax determined under subparagraph (A) on the basis of the final determination of the tax imposed by section 2001 on the estate of the decedent, such excess shall be allowed as a credit or refund if claim therefore is filed not later than 1 year after the date of such final determination. “(3) Tax imposed where trust ceases to qualify.— If any person other than an individual citizen of the United States or a domestic corporation becomes a trustee of a qualified domestic trust (or such trust ceases to meet the requirements of subsection (a)(3)), the tax imposed by paragraph (1) shall apply as if the surviving spouse died on the date on which such person became such a trustee or the date of such cessation, as the case may be. “(4) Due date.— The estate tax imposed by paragraph (1) shall be due and payable on the 15th day of the 4th month following the calendar year in which the taxable event occurs. “(5) Liability for tax.— Each trustee shall be personally liable for the amount of the tax imposed by paragraph (1). Rules similar to the rules of section 2204 shall apply for purposes of the preceding sentence. “(6) Treatment of tax.— For purposes of section 2056(d), any tax paid under paragraph (1) shall be treated as a tax paid under section 2001 with respect to the estate of the decedent. “(7) Lien for tax.— For purposes of section 6324, any tax imposed by paragraph (1) shall be treated as an estate tax imposed under this chapter with respect to a decedent dying on the date of the taxable event (and the property involved shall be treated as the gross estate of such decedent). “(8) Taxable event.— The term ‘taxable event’ means the event resulting in tax being imposed under paragraph (1). “(c) Definitions.— For purposes of this section— “(1) Property includes interest therein.— The term ‘property’ includes an interest in property. “(2) Income.— The term ‘income’ has the meaning given to such term by section 643(b). “(d) Election.— An election under this section with respect to any trust shall be made by the executor on the return of the tax imposed by section 2001. Such an election, once made, shall be irrevocable.”Revenue Reconciliation Act of 1989
Pub. L. 101–239 § 7815(d)(7)(A)(i) · 103 Stat. 2106
Amended · 26 U.S.C. § 2056A(a)(1)
Pub. L. 101–239, § 7815(d)(7)(A)(i), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “the trust instrument requires that all trustees of the trust be individual citizens of the United States or domestic corporations,”
Source evidence
Code amendment note
Subsec. (a)(1). Pub. L. 101–239, § 7815(d)(7)(A)(i), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “the trust instrument requires that all trustees of the trust be individual citizens of the United States or domestic corporations,”.Enacted provision · exact public law section
(i) by amending paragraph (1) to read as follows: “(1) the trust instrument requires that at least 1 trustee of the trust be an individual citizen of the United States or a domestic corporation and that no distribution from the trust may be made without the approval of such a trustee,”, andRevenue Reconciliation Act of 1989
Pub. L. 101–239 § 7815(d)(7)(A)(ii) · 103 Stat. 2106
Redesignated · 26 U.S.C. § 2056A(a)(2)(4)
Pub. L. 101–239, § 7815(d)(7)(A)(ii), redesignated pars. (3) and (4) as (2) and (3), respectively
Struck · 26 U.S.C. § 2056A(a)(2)(4)
Pub. L. 101–239, § 7815(d)(7)(A)(ii), struck out former par. (2) which read as follows: “the surviving spouse of the decedent is entitled to all the income from the property in such trust, payable annually or at more frequent intervals,”
Source evidence
Code amendment note
Subsec. (a)(2) to (4). Pub. L. 101–239, § 7815(d)(7)(A)(ii), redesignated pars. (3) and (4) as (2) and (3), respectively, and struck out former par. (2) which read as follows: “the surviving spouse of the decedent is entitled to all the income from the property in such trust, payable annually or at more frequent intervals,”.Enacted provision · exact public law section
(ii) by striking paragraph (2) and redesignating paragraphs (3) and (4) as paragraphs (2) and (3), respectively.Revenue Reconciliation Act of 1989
Pub. L. 101–239 § 7815(d)(7)(C) · 103 Stat. 2106
Struck · 26 U.S.C. § 2056A(b)(1)(A)
Pub. L. 101–239, § 7815(d)(7)(C), struck out “other than a distribution of income required under subsection (a)(2)” after “qualified domestic trust”
Source evidence
Code amendment note
Subsec. (b)(1)(A). Pub. L. 101–239, § 7815(d)(7)(C), struck out “other than a distribution of income required under subsection (a)(2)” after “qualified domestic trust”.Enacted provision · exact public law section
(C) Subparagraph (A) of section 2056A(b)(1) is amended by striking “other than a distribution of income required under subsection (a)(2)”.Revenue Reconciliation Act of 1989
Pub. L. 101–239 § 7815(d)(11) · 103 Stat. 2106
Inserted · 26 U.S.C. § 2056A(b)(2)(B)(ii)
Pub. L. 101–239, § 7815(d)(11), inserted “(with interest)” after “credit or refund”
Source evidence
Code amendment note
Subsec. (b)(2)(B)(ii). Pub. L. 101–239, § 7815(d)(11), inserted “(with interest)” after “credit or refund”.Enacted provision · exact public law section
(11) Clause (ii) of section 2056A(b)(2)(B) is amended by striking “as a credit or refund” and inserting “as a credit or refund (with interest)”.Revenue Reconciliation Act of 1989
Pub. L. 101–239 § 7815(d)(12) · 103 Stat. 2106
Added · 26 U.S.C. § 2056A(b)(2)(C)
Pub. L. 101–239, § 7815(d)(12), added subpar. (C)
Source evidence
Code amendment note
Subsec. (b)(2)(C). Pub. L. 101–239, § 7815(d)(12), added subpar. (C).Enacted provision · exact public law section
(12) Paragraph (2) of section 2056A(b) is amended by adding at the end the following new subparagraph: “(C) Special rule where decedent has more than 1 qualified domestic trust.— If there is more than 1 qualified domestic trust with respect to any decedent, the amount of the tax imposed by paragraph (1) with respect to such trusts shall be determined by using the highest rate of tax in effect under section 2001 as of the date of the decedent’s death (and the provisions of paragraph (3)(B) shall not apply) unless, pursuant to a designation made by the decedent’s executor, there is 1 person— “(i) who is an individual citizen of the United States or a domestic corporation and is responsible for filing all returns of tax imposed under paragraph (1) with respect to such trusts and for paying all tax so imposed, and “(ii) who meets such requirements as the Secretary may by regulations prescribe.”Revenue Reconciliation Act of 1989
Pub. L. 101–239 § 7815(d)(7)(B) · 103 Stat. 2106
Redesignated · 26 U.S.C. § 2056A(b)(3)
Pub. L. 101–239, § 7815(d)(7)(B), added par. (3). Former par. (3) redesignated (4)
Source evidence
Code amendment note
Subsec. (b)(3). Pub. L. 101–239, § 7815(d)(7)(B), added par. (3). Former par. (3) redesignated (4).Enacted provision · exact public law section
(B) Subsection (b) of section 2056A is amended by redesignating paragraphs (3) through (8) as paragraphs (4) through (9), respectively, and by inserting after paragraph (2) the following new paragraph: “(3) Certain lifetime distributions exempt from tax.— “(A) Income distributions.— No tax shall be imposed by paragraph (1)(A) on any distribution of income to the surviving spouse. “(B) Hardship Exemption —No tax shall be imposed by paragraph (1)(A) on any distribution to the surviving spouse on account of hardship.”Revenue Reconciliation Act of 1989
Pub. L. 101–239 § 7815(d)(7)(D) · 103 Stat. 2106
Amended · 26 U.S.C. § 2056A(b)(4)
Pub. L. 101–239, § 7815(d)(7)(D), amended par. (4) generally. Prior to amendment, par. (4) read as follows: “If any person other than an individual citizen of the United States or a domestic corporation becomes a trustee of a qualified domestic trust (or such trust ceases to meet the requirements of subsection (a)(3)), the tax imposed by paragraph (1) shall apply as if the surviving spouse died on the date on which such person became such a trustee or the date of such cessation, as the case may be.”
Source evidence
Code amendment note
Subsec. (b)(4). Pub. L. 101–239, § 7815(d)(7)(D), amended par. (4) generally. Prior to amendment, par. (4) read as follows: “If any person other than an individual citizen of the United States or a domestic corporation becomes a trustee of a qualified domestic trust (or such trust ceases to meet the requirements of subsection (a)(3)), the tax imposed by paragraph (1) shall apply as if the surviving spouse died on the date on which such person became such a trustee or the date of such cessation, as the case may be.”Enacted provision · exact public law section
(D) Paragraph (4) of section 2056A(b) (as redesignated by subparagraph (B)) is amended to read as follows: “(4) Tax where trust ceases to qualify.— If any qualified domestic trust ceases to meet the requirements of paragraphs (1) and (2) of subsection (a), the tax imposed by paragraph (1) shall apply as if the surviving spouse died on the date of such cessation.”Revenue Reconciliation Act of 1989
Pub. L. 101–239 § 7815(d)(7)(B) · 103 Stat. 2106
Redesignated · 26 U.S.C. § 2056A(b)(4)
Pub. L. 101–239, § 7815(d)(7)(B), redesignated par. (3) as (4). Former par. (4) redesignated (5)
Target inherited from the preceding amendment note.
Source evidence
Code amendment note
Pub. L. 101–239, § 7815(d)(7)(B), redesignated par. (3) as (4). Former par. (4) redesignated (5).Enacted provision · exact public law section
(B) Subsection (b) of section 2056A is amended by redesignating paragraphs (3) through (8) as paragraphs (4) through (9), respectively, and by inserting after paragraph (2) the following new paragraph: “(3) Certain lifetime distributions exempt from tax.— “(A) Income distributions.— No tax shall be imposed by paragraph (1)(A) on any distribution of income to the surviving spouse. “(B) Hardship Exemption —No tax shall be imposed by paragraph (1)(A) on any distribution to the surviving spouse on account of hardship.”Revenue Reconciliation Act of 1989
Pub. L. 101–239 § 7815(d)(15) · 103 Stat. 2106
Amended · 26 U.S.C. § 2056A(b)(5)
Pub. L. 101–239, § 7815(d)(15), amended par. (5) generally. Prior to amendment, par. (5) read as follows: “The estate tax imposed by paragraph (1) shall be due and payable on the 15th day of the 4th month following the calendar year in which the taxable event occurs.”
Source evidence
Code amendment note
Subsec. (b)(5). Pub. L. 101–239, § 7815(d)(15), amended par. (5) generally. Prior to amendment, par. (5) read as follows: “The estate tax imposed by paragraph (1) shall be due and payable on the 15th day of the 4th month following the calendar year in which the taxable event occurs.”Enacted provision · exact public law section
(15) Paragraph (5) of section 2O56A(b) (as redesignated by paragraph (7)(B) of this subsection) is amended to read as follows: “(5) Due date.— “(A) Tax on distributions.— The estate tax imposed by paragraph (1)(A) shall be due and payable on the 15th day of the 4th month following the calendar year in which the taxable event occurs; except that the estate tax imposed by paragraph (1)(A) on distributions during the calendar year in which the surviving spouse dies shall be due and payable not later than the date on which the estate tax imposed by paragraph (1)(B) is due and payable. “(B) Tax at death of spouse.— The estate tax imposed by paragraph (1)(B) shall be due and payable on the date 9 months after the date of such death.”Revenue Reconciliation Act of 1989
Pub. L. 101–239 § 7815(d)(7)(B) · 103 Stat. 2106
Redesignated · 26 U.S.C. § 2056A(b)(5)
Pub. L. 101–239, § 7815(d)(7)(B), redesignated par. (4) as (5). Former par. (5) redesignated (6)
Target inherited from the preceding amendment note.
Source evidence
Code amendment note
Pub. L. 101–239, § 7815(d)(7)(B), redesignated par. (4) as (5). Former par. (5) redesignated (6).Enacted provision · exact public law section
(B) Subsection (b) of section 2056A is amended by redesignating paragraphs (3) through (8) as paragraphs (4) through (9), respectively, and by inserting after paragraph (2) the following new paragraph: “(3) Certain lifetime distributions exempt from tax.— “(A) Income distributions.— No tax shall be imposed by paragraph (1)(A) on any distribution of income to the surviving spouse. “(B) Hardship Exemption —No tax shall be imposed by paragraph (1)(A) on any distribution to the surviving spouse on account of hardship.”Revenue Reconciliation Act of 1989
Pub. L. 101–239 § 7815(d)(7)(B) · 103 Stat. 2106
Redesignated · 26 U.S.C. § 2056A(b)(6)(9)
Pub. L. 101–239, § 7815(d)(7)(B), redesignated pars. (5) to (8) as (6) to (9), respectively
Source evidence
Code amendment note
Subsec. (b)(6) to (9). Pub. L. 101–239, § 7815(d)(7)(B), redesignated pars. (5) to (8) as (6) to (9), respectively.Enacted provision · exact public law section
(B) Subsection (b) of section 2056A is amended by redesignating paragraphs (3) through (8) as paragraphs (4) through (9), respectively, and by inserting after paragraph (2) the following new paragraph: “(3) Certain lifetime distributions exempt from tax.— “(A) Income distributions.— No tax shall be imposed by paragraph (1)(A) on any distribution of income to the surviving spouse. “(B) Hardship Exemption —No tax shall be imposed by paragraph (1)(A) on any distribution to the surviving spouse on account of hardship.”Revenue Reconciliation Act of 1989
Pub. L. 101–239 § 7815(d)(9) · 103 Stat. 2106
Added · 26 U.S.C. § 2056A(b)(10)(13)
Pub. L. 101–239, § 7815(d)(9), added pars. (10) to (13)
Source evidence
Code amendment note
Subsec. (b)(10) to (13). Pub. L. 101–239, § 7815(d)(9), added pars. (10) to (13).Enacted provision · exact public law section
(9) Subsection (b) of section 2056A is amended by adding at the end the following new paragraphs: “(10) Certain benefits allowed.— “(A) In general.— If any property remaining in the qualified domestic trust on the date of the death of the surviving spouse is includible in the gross estate of such spouse for purposes of this chapter (or would be includible if such spouse were a citizen or resident of the United States), any benefit which is allowable (or would be allowable if such spouse were a citizen or resident of the United States) with respect to such property to the estate of such spouse under section 2032, 2032A, 2055, 2056, or 6166 shall be allowed for purposes of the tax imposed by paragraph (1)(B). “(B) Section 803.— If the estate of the surviving spouse meets the requirements of section 303 with respect to any property described in subparagraph (A), for purposes of section 303, the tax imposed by paragraph (1)(B) with respect to such property shall be treated as a Federal estate tax payable with respect to the estate of the surviving spouse. “(C) Section 6161 (a) (1).— The provisions of section 6161(a)(2) shall apply with respect to the tax imposed by paragraph (1)(B), and the reference in such section to the executor shall be treated as a reference to the trustees of the trust. “(11) Special rule where distribution tax paid out of trust.— For purposes of this subsection, if any portion of the tax imposed by paragraph (1)(A) with respect to any distribution is paid out of the trust, an amount equal to the portion so paid shall be treated as a distribution described in paragraph (1)(A). “(12) Special rule where spouse becomes citizen.— If the surviving spouse of the decedent becomes a citizen of the United States and if— “(A) such spouse was a resident of the United States at all times after the date of the death of the decedent and before such spouse becomes a citizen of the United States, “(B) no tax was imposed by paragraph (1)(A) with respect to any distribution before such spouse becomes such a citizen, or “(C) such spouse elects— “(i) to treat any distribution on which tax was imposed by paragraph (1)(A) as a taxable gift made by such spouse for purposes of— “(I) section 2001, and “(II) determining the amount of the tax imposed by section 2501 on actual taxable gifts made by such spouse during the year in which the spouse becomes a citizen or any subsequent year, and “(ii) to treat any reduction in the tax imposed by paragraph (1)(A) by reason of the credit allowable under section 2010 with respect to the decedent as a credit allowable to such surviving spouse under section 2505 for purposes of determining the amount of the credit allowable under section 2505 with respect to taxable gifts made by the surviving spouse during the year in which the spouse becomes a citizen or any subsequent year, paragraph (1)(A) shall not apply to any distributions after such spouse becomes such a citizen (and paragraph (1)(B) shall not apply). “(13) Coordination with section 1015.— For purposes of section Gifts and property. 1015, any distribution on which tax is imposed by para-graph (1)(A) shall be treated as a transfer by gift, and any tax paid under paragraph (1)(A) shall be treated as a gift tax.”Revenue Reconciliation Act of 1989
Pub. L. 101–239 § 7815(d)(10) · 103 Stat. 2106
Substituted · 26 U.S.C. § 2056A(c)(2)
Pub. L. 101–239, § 7815(d)(10), substituted “Except as provided in regulations, the term” for “The term”
Source evidence
Code amendment note
Subsec. (c)(2). Pub. L. 101–239, § 7815(d)(10), substituted “Except as provided in regulations, the term” for “The term”.Enacted provision · exact public law section
(10) Paragraph (2) of section 2056A(c) is amended by striking “The term” and inserting “Except as provided in regulations, the term”.Revenue Reconciliation Act of 1989
Pub. L. 101–239 § 7815(d)(13) · 103 Stat. 2106
Added · 26 U.S.C. § 2056A(e)
Pub. L. 101–239, § 7815(d)(13), added subsec. (e)
Source evidence
Code amendment note
Subsec. (e). Pub. L. 101–239, § 7815(d)(13), added subsec. (e).Enacted provision · exact public law section
(13) Section 2056A is amended by adding at the end the following new subsection: “(e) Regulations.— The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this section, including regulations under which there may be treated as a qualified domestic trust any annuity or other payment which is includible in the decedent’s gross estate and is by its terms payable for life or a term of years.”Revenue Reconciliation Act of 1990
Pub. L. 101–508 § 11702(g)(2)(A) · 104 Stat. 1388
Amended · 26 U.S.C. § 2056A(a)(1)
Pub. L. 101–508, § 11702(g)(2)(A), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “the trust instrument requires that at least 1 trustee of the trust be an individual citizen of the United States or a domestic corporation and that no distribution from the trust may be made without the approval of such a trustee,”
Source evidence
Code amendment note
Subsec. (a)(1). Pub. L. 101–508, § 11702(g)(2)(A), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “the trust instrument requires that at least 1 trustee of the trust be an individual citizen of the United States or a domestic corporation and that no distribution from the trust may be made without the approval of such a trustee,”.Enacted provision · exact public law section
(A) Paragraph (1) of section 2056A(a) is amended to read as follows: “(1) the trust instrument— “(A) requires that at least 1 trustee of the trust be an individual citizen of the United States or a domestic corporation, and “(B) provides that no distribution (other than a distribution of income) may be made from the trust unless a trustee who is an individual citizen of the United States or a domestic corporation has the right to withhold from such distribution the tax imposed by this section on such distribution,”.Revenue Reconciliation Act of 1990
Pub. L. 101–508 § 11704(a)(15) · 104 Stat. 1388
Substituted · 26 U.S.C. § 2056A(b)(2)(B)(ii)
Pub. L. 101–508, § 11704(a)(15), substituted “therefor” for “therefore” in concluding provisions
Source evidence
Code amendment note
Subsec. (b)(2)(B)(ii). Pub. L. 101–508, § 11704(a)(15), substituted “therefor” for “therefore” in concluding provisions.Enacted provision · exact public law section
(15) Clause (ii) of section 2056A(b)(2)(B) is amended by striking “therefore” and inserting “therefor”.Revenue Reconciliation Act of 1990
Pub. L. 101–508 § 11702(g)(4) · 104 Stat. 1388
Substituted · 26 U.S.C. § 2056A(b)(10)(A)
Pub. L. 101–508, § 11702(g)(4), substituted “section 2011, 2014, 2032” for “section 2032”
Source evidence
Code amendment note
Subsec. (b)(10)(A). Pub. L. 101–508, § 11702(g)(4), substituted “section 2011, 2014, 2032” for “section 2032”.Enacted provision · exact public law section
(4) Subparagraph (A) of section 2056A(b)(10) is amended by striking “section 2032” and inserting “section 2011, 2014, 2032”.Revenue Reconciliation Act of 1990
Pub. L. 101–508 § 11702(g)(2)(B) · 104 Stat. 1388
Added · 26 U.S.C. § 2056A(b)(14); 26 U.S.C. § 2056A(b)(15)
Pub. L. 101–508, § 11702(g)(2)(B), added pars. (14) and (15)
Source evidence
Code amendment note
Subsec. (b)(14), (15). Pub. L. 101–508, § 11702(g)(2)(B), added pars. (14) and (15).Enacted provision · exact public law section
(B) Subsection (b) of section 2056A is amended by adding at the end thereof the following new paragraphs: “(14) Coordination with terminable interest rules.— Any interest in a qualified domestic trust shall not be treated as failing to meet the requirements of paragraph (5) or (7) of section 2056(b) merely by reason of any provision of the trust instrument permitting the withholding from any distribution of an amount to pay the tax imposed by paragraph (1) on such distribution. “(15) No tax on certain distributions.— No tax shall be imposed by paragraph (1) on any distribution to the surviving spouse to the extent such distribution is to reimburse such surviving spouse for any tax imposed by subtitle A on any item of income of the trust to which such surviving spouse is not entitled under the terms of the trust.”Revenue Reconciliation Act of 1990
Pub. L. 101–508 § 11702(g)(3)(A) · 104 Stat. 1388
Inserted · 26 U.S.C. § 2056A(d)
Pub. L. 101–508, § 11702(g)(3)(A), inserted at end “No election may be made under this section on any return if such return is filed more than one year after the time prescribed by law (including extensions) for filing such return.”
Source evidence
Code amendment note
Subsec. (d). Pub. L. 101–508, § 11702(g)(3)(A), inserted at end “No election may be made under this section on any return if such return is filed more than one year after the time prescribed by law (including extensions) for filing such return.”Enacted provision · exact public law section
(A) Subsection (d) of section 2056A is amended by adding at the end thereof the following new sentence: “No election may be made under this section on any return if such return is filed more than one year after the time prescribed by law (including extensions) for filing such return.”Pub. L. 105–34 § 1314(a) · 111 Stat. 788
Inserted · 26 U.S.C. § 2056A(a)(1)(A)
Pub. L. 105–34, § 1314(a), inserted “except as provided in regulations prescribed by the Secretary,” before “requires”
Source evidence
Code amendment note
Subsec. (a)(1)(A). Pub. L. 105–34, § 1314(a), inserted “except as provided in regulations prescribed by the Secretary,” before “requires”.Enacted provision · exact public law section
(a) In General.— Subparagraph (A) of section 2056A(a)(1) is amended by inserting “except as provided in regulations prescribed by the Secretary,” before “requires”.Pub. L. 105–34 § 1312(a) · 111 Stat. 788
Added · 26 U.S.C. § 2056A(c)(3)
Pub. L. 105–34, § 1312(a), added par. (3)
Source evidence
Code amendment note
Subsec. (c)(3). Pub. L. 105–34, § 1312(a), added par. (3).Enacted provision · exact public law section
(a) In General.— Subsection (c) of section 2056A (defining qualified domestic trust) is amended by adding at the end the following new paragraph: To the extent provided in regulations prescribed by the Secretary, the term trust’ includes other arrangements which have substantially the same effect as a trust.”.Pub. L. 107–16 title V § 532(c)(6) · 115 Stat. 38
Struck and inserted · 26 U.S.C. § 2056A(b)(10)(A)
Pub. L. 107–16 struck out “2011,” before “2014,” and inserted “2058,” after “2056,”
Source evidence
Code amendment note
Subsec. (b)(10)(A). Pub. L. 107–16 struck out “2011,” before “2014,” and inserted “2058,” after “2056,”.Enacted provision · exact public law section
(6) Subparagraph (A) of section 2056A(b)(10) is amended— (A) by striking “2011,”, and (B) by inserting “2058,” after “2056,”Effective date note
Amendment by Pub. L. 107–16 applicable to estates of decedents dying, and generation-skipping transfers, after Dec. 31, 2004, see section 532(d) of Pub. L. 107–16, set out as a note under section 2012 of this title.
24 of 24 references resolved to an enrolled provision
Editorial Notes
Amendments1989–2001 · 4 rounds
2001
Subsec. (b)(10)(A). Pub. L. 107–16 struck out “2011,” before “2014,” and inserted “2058,” after “2056,”.
1997
Subsec. (a)(1)(A). Pub. L. 105–34, § 1314(a), inserted “except as provided in regulations prescribed by the Secretary,” before “requires”.
Subsec. (c)(3). Pub. L. 105–34, § 1312(a), added par. (3).
1990
Subsec. (a)(1). Pub. L. 101–508, § 11702(g)(2)(A), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “the trust instrument requires that at least 1 trustee of the trust be an individual citizen of the United States or a domestic corporation and that no distribution from the trust may be made without the approval of such a trustee,”.
Subsec. (b)(2)(B)(ii). Pub. L. 101–508, § 11704(a)(15), substituted “therefor” for “therefore” in concluding provisions.
Subsec. (b)(10)(A). Pub. L. 101–508, § 11702(g)(4), substituted “section 2011, 2014, 2032” for “section 2032”.
Subsec. (b)(14), (15). Pub. L. 101–508, § 11702(g)(2)(B), added pars. (14) and (15).
Subsec. (d). Pub. L. 101–508, § 11702(g)(3)(A), inserted at end “No election may be made under this section on any return if such return is filed more than one year after the time prescribed by law (including extensions) for filing such return.”
1989
Subsec. (a)(1). Pub. L. 101–239, § 7815(d)(7)(A)(i), amended par. (1) generally. Prior to amendment, par. (1) read as follows: “the trust instrument requires that all trustees of the trust be individual citizens of the United States or domestic corporations,”.
Subsec. (a)(2) to (4). Pub. L. 101–239, § 7815(d)(7)(A)(ii), redesignated pars. (3) and (4) as (2) and (3), respectively, and struck out former par. (2) which read as follows: “the surviving spouse of the decedent is entitled to all the income from the property in such trust, payable annually or at more frequent intervals,”.
Subsec. (b)(1)(A). Pub. L. 101–239, § 7815(d)(7)(C), struck out “other than a distribution of income required under subsection (a)(2)” after “qualified domestic trust”.
Subsec. (b)(2)(B)(ii). Pub. L. 101–239, § 7815(d)(11), inserted “(with interest)” after “credit or refund”.
Subsec. (b)(2)(C). Pub. L. 101–239, § 7815(d)(12), added subpar. (C).
Subsec. (b)(3). Pub. L. 101–239, § 7815(d)(7)(B), added par. (3). Former par. (3) redesignated (4).
Subsec. (b)(4). Pub. L. 101–239, § 7815(d)(7)(D), amended par. (4) generally. Prior to amendment, par. (4) read as follows: “If any person other than an individual citizen of the United States or a domestic corporation becomes a trustee of a qualified domestic trust (or such trust ceases to meet the requirements of subsection (a)(3)), the tax imposed by paragraph (1) shall apply as if the surviving spouse died on the date on which such person became such a trustee or the date of such cessation, as the case may be.”
Pub. L. 101–239, § 7815(d)(7)(B), redesignated par. (3) as (4). Former par. (4) redesignated (5).
Subsec. (b)(5). Pub. L. 101–239, § 7815(d)(15), amended par. (5) generally. Prior to amendment, par. (5) read as follows: “The estate tax imposed by paragraph (1) shall be due and payable on the 15th day of the 4th month following the calendar year in which the taxable event occurs.”
Pub. L. 101–239, § 7815(d)(7)(B), redesignated par. (4) as (5). Former par. (5) redesignated (6).
Subsec. (b)(6) to (9). Pub. L. 101–239, § 7815(d)(7)(B), redesignated pars. (5) to (8) as (6) to (9), respectively.
Subsec. (b)(10) to (13). Pub. L. 101–239, § 7815(d)(9), added pars. (10) to (13).
Subsec. (c)(2). Pub. L. 101–239, § 7815(d)(10), substituted “Except as provided in regulations, the term” for “The term”.
Subsec. (e). Pub. L. 101–239, § 7815(d)(13), added subsec. (e).
Statutory Notes and Related Subsidiaries
Effective Date of 2001 Amendment
Amendment by Pub. L. 107–16 applicable to estates of decedents dying, and generation-skipping transfers, after , see section 532(d) of Pub. L. 107–16, set out as a note under section 2012 of this title.
Effective Date of 1997 Amendment
Pub. L. 105–34, title XIII, § 1312(b), , 111 Stat. 1045, provided that: “The amendment made by this section [amending this section] shall apply to estates of decedents dying after the date of the enactment of this Act [].”
Pub. L. 105–34, title XIII, § 1314(b), , 111 Stat. 1045, provided that: “The amendment made by this section [amending this section] shall apply to estates of decedents dying after the date of the enactment of this Act [].”
Effective Date of 1990 Amendment
Amendment by section 11702(g)(2), (4) of Pub. L. 101–508 effective as if included in the provision of the Technical and Miscellaneous Revenue Act of 1988, Pub. L. 100–647, to which such amendment relates, see section 11702(j) of Pub. L. 101–508, set out as a note under section 59 of this title.
Pub. L. 101–508, title XI, § 11702(g)(3)(B), , 104 Stat. 1388–516, provided that: “The amendment made by subparagraph (A) [amending this section] shall not apply to any election made before the date 6 months after the date of the enactment of this Act [].”
Effective Date of 1989 Amendment
Amendment by Pub. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Technical and Miscellaneous Revenue Act of 1988, Pub. L. 100–647, to which such amendment relates, see section 7817 of Pub. L. 101–239, set out as a note under section 1 of this title.
Effective Date
Section applicable to estates of decedents dying after , see section 5033(d)(1) of Pub. L. 100–647, set out as an Effective Date of 1988 Amendment note under section 2056 of this title.
Transitional Rule
Pub. L. 105–34, title XIII, § 1303, , 111 Stat. 1039, provided that:
“(a) General Rule.—
In the case of any trust created under an instrument executed before the date of the enactment of the Revenue Reconciliation Act of 1990 [], such trust shall be treated as meeting the requirements of paragraph (1) of section 2056A(a) of the Internal Revenue Code of 1986 if the trust instrument requires that all trustees of the trust be individual citizens of the United States or domestic corporations.
“(b) Effective Date.—
The provisions of subsection (a) shall take effect as if included in the provisions of section 11702(g) of the Revenue Reconciliation Act of 1990 [Pub. L. 101–508].”
Application of Amendments by Section 5033 of Pub. L. 100–647 to Estates of, or Gifts by, Noncitizen and Nonresident Individuals
For provisions directing that in the case of the estate of, or gift by, an individual who was not a citizen or resident of the United States but was a resident of a foreign country with which the United States has a tax treaty with respect to estate, inheritance, or gift taxes, this section shall not apply to the extent such section would be inconsistent with the provisions of such treaty relating to estate, inheritance, or gift tax marital deductions, but that in the case of the estate of an individual dying before the date 3 years after , or a gift by an individual before the date 3 years after , the requirement of the preceding provision that the individual not be a citizen or resident of the United States shall not apply, see section 7815(d)(14) of Pub. L. 101–239, set out as a note under section 2056 of this title.
Credits
1988–2001 · 5 acts
- 1988Added Pub. L. 100–647, title V, § 5033(a)(2), , 102 Stat. 3670
- 1989amended Pub. L. 101–239, title VII, § 7815(d)(7), (9)–(13), (15), , 103 Stat. 2415–2418
- 1990Pub. L. 101–508, title XI, §§ 11702(g)(2)(A), (B), (3)(A), (4), 11704(a)(15), , 104 Stat. 1388–515, 1388–516, 1388–518
- 1997Pub. L. 105–34, title XIII, §§ 1312(a), 1314(a), , 111 Stat. 1044, 1045
- 2001Pub. L. 107–16, title V, § 532(c)(6), , 115 Stat. 74.
Show as published
(Added Pub. L. 100–647, title V, § 5033(a)(2), , 102 Stat. 3670; amended Pub. L. 101–239, title VII, § 7815(d)(7), (9)–(13), (15), , 103 Stat. 2415–2418; Pub. L. 101–508, title XI, §§ 11702(g)(2)(A), (B), (3)(A), (4), 11704(a)(15), , 104 Stat. 1388–515, 1388–516, 1388–518; Pub. L. 105–34, title XIII, §§ 1312(a), 1314(a), , 111 Stat. 1044, 1045; Pub. L. 107–16, title V, § 532(c)(6), , 115 Stat. 74.)