26 USC 6166 - Extension of time for payment of estate tax where estate consists largely of interest in closely held business

U.S Code last checked for updates: Nov 22, 2024

§ 6166.

Extension of time for payment of estate tax where estate consists largely of interest in closely held business

(a)

5-year deferral; 10-year installment payment

(1)

In general

(2)

Limitation

The maximum amount of tax which may be paid in installments under this subsection shall be an amount which bears the same ratio to the tax imposed by section 2001 (reduced by the credits against such tax) as—

(A)

the closely held business amount, bears to

(B)

the amount of the adjusted gross estate.

(3)

Date for payment of installments

(b)

Definitions and special rules

(1)

Interest in closely held business

For purposes of this section, the term “interest in a closely held business” means—

(A)

an interest as a proprietor in a trade or business carried on as a proprietorship;

(B)

an interest as a partner in a partnership carrying on a trade or business, if—

(i)

20 percent or more of the total capital interest in such partnership is included in determining the gross estate of the decedent, or

(ii)

such partnership had 45 or fewer partners; or

(C)

stock in a corporation carrying on a trade or business if—

(i)

20 percent or more in value of the voting stock of such corporation is included in determining the gross estate of the decedent, or

(ii)

such corporation had 45 or fewer shareholders.

(2)

Rules for applying paragraph (1)

For purposes of paragraph (1)—

(A)

Time for testing

(B)

Certain interests held by husband and wife

Stock or a partnership interest which—

(i)

is community property of a husband and wife (or the income from which is community income) under the applicable community property law of a State, or

(ii)

is held by a husband and wife as joint tenants, tenants by the entirety, or tenants in common,

shall be treated as owned by one shareholder or one partner, as the case may be.

(C)

Indirect ownership

(D)

Certain interests held by members of decedent’s family

(3)

Farmhouses and certain other structures taken into account

(4)

Value

(5)

Closely held business amount

(6)

Adjusted gross estate

(7)

Partnership interests and stock which is not readily tradable

(A)

In general

If the executor elects the benefits of this paragraph (at such time and in such manner as the Secretary shall by regulations prescribe), then—

(i)

for purposes of paragraph (1)(B)(i) or (1)(C)(i) (whichever is appropriate) and for purposes of subsection (c), any capital interest in a partnership and any non-readily-tradable stock which (after the application of paragraph (2)) is treated as owned by the decedent shall be treated as included in determining the value of the decedent’s gross estate,

(ii)

the executor shall be treated as having selected under subsection (a)(3) the date prescribed by section 6151(a), and

(iii)

for purposes of applying section 6601(j), the 2-percent portion (as defined in such section) shall be treated as being zero.

(B)

Non-readily-tradable stock defined

(8)

Stock in holding company treated as business company stock in certain cases

(A)

In general

If the executor elects the benefits of this paragraph, then—

(i)

Holding company stock treated as business company stock

(ii)

5-year deferral for principal not to apply

(iii)

2-percent interest rate not to apply

(B)

All stock must be non-readily-tradable stock

(i)

In general

(ii)

Special application where only holding company stock is non-readily-tradable stock

(C)

Application of voting stock requirement of paragraph (1)(C)(i)

(D)

Definitions

For purposes of this paragraph—

(i)

Holding company

(ii)

Business company

(9)

Deferral not available for passive assets

(A)

In general

(B)

Passive asset defined

For purposes of this paragraph—

(i)

In general

(ii)

Stock treated as passive asset

The term “passive asset” includes any stock in another corporation unless—

(I)

such stock is treated as held by the decedent by reason of an election under paragraph (8), and

(II)

such stock qualified under subsection (a)(1).

(iii)

Exception for active corporations

If—

(I)

a corporation owns 20 percent or more in value of the voting stock of another corporation, or such other corporation has 45 or fewer shareholders, and

(II)

80 percent or more of the value of the assets of each such corporation is attributable to assets used in carrying on a trade or business,

then such corporations shall be treated as 1 corporation for purposes of clause (ii). For purposes of applying subclause (II) to the corporation holding the stock of the other corporation, such stock shall not be taken into account.

(10)

Stock in qualifying lending and finance business treated as stock in an active trade or business company

(A)

In general

If the executor elects the benefits of this paragraph, then—

(i)

(ii)

5-year deferral for principal not to apply

(iii)

5 equal installments allowed

(B)

Definitions

For purposes of this paragraph—

(i)

Qualifying lending and finance business

The term “qualifying lending and finance business” means a lending and finance business, if—

(I)

based on all the facts and circumstances immediately before the date of the decedent’s death, there was substantial activity with respect to the lending and finance business, or

(II)

during at least 3 of the 5 taxable years ending before the date of the decedent’s death, such business had at least 1 full-time employee substantially all of whose services were the active management of such business, 10 full-time, nonowner employees substantially all of whose services were directly related to such business, and $5,000,000 in gross receipts from activities described in clause (ii).

(ii)

Lending and finance business

The term “lending and finance business” means a trade or business of—

(I)

making loans,

(II)

purchasing or discounting accounts receivable, notes, or installment obligations,

(III)

engaging in rental and leasing of real and tangible personal property, including entering into leases and purchasing, servicing, and disposing of leases and leased assets,

(IV)

rendering services or making facilities available in the ordinary course of a lending or finance business, and

(V)

rendering services or making facilities available in connection with activities described in subclauses (I) through (IV) carried on by the corporation rendering services or making facilities available, or another corporation which is a member of the same affiliated group (as defined in section 1504 without regard to section 1504(b)(3)).

(iii)

Limitation

(c)

Special rule for interest in 2 or more closely held businesses

(d)

Election

(e)

Proration of deficiency to installments

(f)

Time for payment of interest

If the time for payment of any amount of tax has been extended under this section—

(1)

Interest for first 5 years

(2)

Interest for periods after first 5 years

(3)

Interest in the case of certain deficiencies

(4)

Selection of shorter period

(g)

Acceleration of payment

(1)

Disposition of interest; withdrawal of funds from business

(A)

If—

(i)

(I)

any portion of an interest in a closely held business which qualifies under subsection (a)(1) is distributed, sold, exchanged, or otherwise disposed of, or

(II)

money and other property attributable to such an interest is withdrawn from such trade or business, and

(ii)

the aggregate of such distributions, sales, exchanges, or other dispositions and withdrawals equals or exceeds 50 percent of the value of such interest,

then the extension of time for payment of tax provided in subsection (a) shall cease to apply, and the unpaid portion of the tax payable in installments shall be paid upon notice and demand from the Secretary.

(B)

In the case of a distribution in redemption of stock to which section 303 (or so much of section 304 as relates to section 303) applies—

(i)

the redemption of such stock, and the withdrawal of money and other property distributed in such redemption, shall not be treated as a distribution or withdrawal for purposes of subparagraph (A), and

(ii)

for purposes of subparagraph (A), the value of the interest in the closely held business shall be considered to be such value reduced by the value of the stock redeemed.

This subparagraph shall apply only if, on or before the date prescribed by subsection (a)(3) for the payment of the first installment which becomes due after the date of the distribution (or, if earlier, on or before the day which is 1 year after the date of the distribution), there is paid an amount of the tax imposed by section 2001 not less than the amount of money and other property distributed.

(C)

Subparagraph (A)(i) does not apply to an exchange of stock pursuant to a plan of reorganization described in subparagraph (D), (E), or (F) of section 368(a)(1) nor to an exchange to which section 355 (or so much of section 356 as relates to section 355) applies; but any stock received in such an exchange shall be treated for purposes of subparagraph (A)(i) as an interest qualifying under subsection (a)(1).

(D)

Subparagraph (A)(i) does not apply to a transfer of property of the decedent to a person entitled by reason of the decedent’s death to receive such property under the decedent’s will, the applicable law of descent and distribution, or a trust created by the decedent. A similar rule shall apply in the case of a series of subsequent transfers of the property by reason of death so long as each transfer is to a member of the family (within the meaning of section 267(c)(4)) of the transferor in such transfer.

(E)

Changes in interest in holding company

If any stock in a holding company is treated as stock in a business company by reason of subsection (b)(8)(A)—

(i)

any disposition of any interest in such stock in such holding company which was included in determining the gross estate of the decedent, or

(ii)

any withdrawal of any money or other property from such holding company attributable to any interest included in determining the gross estate of the decedent,

shall be treated for purposes of subparagraph (A) as a disposition of (or a withdrawal with respect to) the stock qualifying under subsection (a)(1).

(F)

Changes in interest in business company

If any stock in a holding company is treated as stock in a business company by reason of subsection (b)(8)(A)—

(i)

any disposition of any interest in such stock in the business company by such holding company, or

(ii)

any withdrawal of any money or other property from such business company attributable to such stock by such holding company owning such stock,

shall be treated for purposes of subparagraph (A) as a disposition of (or a withdrawal with respect to) the stock qualifying under subsection (a)(1).

(2)

Undistributed income of estate

(A)

If an election is made under this section and the estate has undistributed net income for any taxable year ending on or after the due date for the first installment, the executor shall, on or before the date prescribed by law for filing the income tax return for such taxable year (including extensions thereof), pay an amount equal to such undistributed net income in liquidation of the unpaid portion of the tax payable in installments.

(B)

For purposes of subparagraph (A), the undistributed net income of the estate for any taxable year is the amount by which the distributable net income of the estate for such taxable year (as defined in section 643) exceeds the sum of—

(i)

the amounts for such taxable year specified in paragraphs (1) and (2) of section 661(a) (relating to deductions for distributions, etc.);

(ii)

the amount of tax imposed for the taxable year on the estate under chapter 1; and

(iii)

the amount of the tax imposed by section 2001 (including interest) paid by the executor during the taxable year (other than any amount paid pursuant to this paragraph).

(C)

For purposes of this paragraph, if any stock in a corporation is treated as stock in another corporation by reason of subsection (b)(8)(A), any dividends paid by such other corporation to the corporation shall be treated as paid to the estate of the decedent to the extent attributable to the stock qualifying under subsection (a)(1).

(3)

Failure to make payment of principal or interest

(A)

In general

(B)

Payment within 6 months

If any payment of principal or interest under this section is not paid on or before the date determined under subparagraph (A) but is paid within 6 months of such date—

(i)

the provisions of subparagraph (A) shall not apply with respect to such payment,

(ii)

the provisions of section 6601(j) shall not apply with respect to the determination of interest on such payment, and

(iii)

there is imposed a penalty in an amount equal to the product of—

(I)

5 percent of the amount of such payment, multiplied by

(II)

the number of months (or fractions thereof) after such date and before payment is made.

The penalty imposed under clause (iii) shall be treated in the same manner as a penalty imposed under subchapter B of chapter 68.

(h)

Election in case of certain deficiencies

(1)

In general

If—

(A)

a deficiency in the tax imposed by section 2001 is assessed,

(B)

the estate qualifies under subsection (a)(1), and

(C)

the executor has not made an election under subsection (a),

the executor may elect to pay the deficiency in installments. This subsection shall not apply if the deficiency is due to negligence, to intentional disregard of rules and regulations, or to fraud with intent to evade tax.

(2)

Time of election

(3)

Effect of election on payment

(i)

Special rule for certain direct skips

(j)

Regulations

(k)

Cross references

(1)

Security

(2)

Lien

(3)

Period of limitation

(4)

Interest

(5)

Transfers within 3 years of death

(Added Pub. L. 94–455, title XX, § 2004(a), Oct. 4, 1976, 90 Stat. 1862; amended Pub. L. 95–600, title V, § 512(a), (b), Nov. 6, 1978, 92 Stat. 2882, 2883; Pub. L. 97–34, title IV, § 422(a), (c), (e)(5)(A), (B), Aug. 13, 1981, 95 Stat. 314–316; Pub. L. 97–448, title I, § 104(c), (d)(1)(B), Jan. 12, 1983, 96 Stat. 2382, 2383; Pub. L. 98–369, div. A, title V, § 544(b)(4), title X, § 1021(a)–(d), July 18, 1984, 98 Stat. 894, 1024–1026; Pub. L. 99–514, title XIV, § 1432(e), Oct. 22, 1986, 100 Stat. 2730; Pub. L. 104–188, title I, § 1704(t)(15),

cite as: 26 USC 6166