Date: July 19, 2022Attorney: Martin D. Hauptman

In Revenue Procedure 2022-32, the IRS stated that it will now permit an executor of an estate that is not otherwise required to file an estate tax return to file a late return to elect portability, up to five years after the date of the decedent’s death. Filing this return does not change the statute of limitations on a gift or estate tax return filed by the surviving spouse before the first spouse’s estate files an estate tax return pursuant to this procedure. Therefore, a surviving spouse who makes a taxable gift after the first spouse dies or the executor of the estate of a surviving spouse who dies after the first spouse dies, should make a protective claim for refund of these estate or gift taxes if a late return could be filed for the first spouse’s estate under this procedure.