December 31, 2012
Dear Liza: Currently, I own 1/3 of a condominium. My mom owns 1/3 and and brother owns 1/3. My mom and brother (both alive) want to change the title to just my name. Do my mom and brother have to pay gift tax or do I have to pay gift tax? I read on IRS.gov that $5 million free of gift tax during my lifetime is only for estate tax and 13,000 is gift tax each year. Don’t you have to be dead to receive estate tax? So many good questions here. I will answer, with this caveat: if Congress makes a deal with the President, some of what I have to say may change. As of RIGHT NOW (December 30th, 2012), the donor of the gift (your mother and your brother) are liable for any gift tax due on the transaction, not the donee (that’s you). But, unless that’s one pricey condo, they’re not likely to actually owe any gift tax at all.
Until tomorrow, each person is allowed to give up to $5.12 million, free of gift tax. This ‘magic number’ currently applies to all lifetime gifts, or gifts made at death. That number is scheduled to go down to $1 million on January 1, 2013–but still, what that means is your mother and brother would have to file a gift tax return by April of the year following the gift and report the value of the gift (this will require an appraisal to document that value). If the value of the gift is less than the available magic number, no tax is actually due (but they’ll have used up some of their lifetime ability to give free of gift or estate tax).
That $13,000 gift is called an ‘annual exclusion gift’ and it can be made entirely free of tax, each year, and as long as no gift to any individual exceeds the annual exclusion, no gifts need to be reported at all. The annual exclusion is scheduled to increase to $14,000 in 2013.
I can’t tell from your question where you live. But in California, where I practice, the gift you describe will also result in a partial reassessment of your property taxes, so please make sure that you also understand the property tax issues raised by the gift you contemplate.