In an earlier article, we discussed the annual gift tax exclusion and how it works. In summary, we said that you could give up to $12,000 in cash or property to any one person during 2006 and not have to pay a federal gift tax. In fact, you don't even have to file a gift tax return. This is not the result of a kind and benevolent federal government at work. Rather, it is simply an effort to avoid an administrative nightmare keeping track of nominal gifts for weddings, birthdays, holidays, etc. Can you image having to file a gift tax return every time you took a bottle of wine over to your neighbors' for dinner?

So, the annual gift tax exclusion exists purely for administrative reasons. But, what happens if you exceed that exclusion amount during 2006 or any other year? What if, for example, you give your son or daughter $20,000 as a down-payment on a house?

In that case, you are required to file a federal gift tax return (Form 709) for the year of the gift. The return is required by April 15th of the following year, just like your personal income tax return (Form 1040). For 2006, the gift tax return would have to be filed by April 15, 2007.

However, that does not mean that you will actually pay a gift tax, because the tax laws give you a credit that can be applied against any gift taxes incurred during your lifetime and any estate taxes incurred upon your death. Because the credit applies against both the gift tax and the estate tax, it's called a "unified credit."

For years 2002 through 2009, the gift tax unified credit is $345,800. That translates into a gift of $1,000,000 before any gift taxes are actually paid.

That being the case, why do you have to file a gift tax return when your gifts to any one person exceed the annual gift tax exclusion for that year? The answer is simply because the gift tax unified credit of $345,800 through 2009 is cumulative, and the only way the federal government can keep track of your taxable gifts and the amount of unified credit you have used is through the filing of gift tax returns.

In our example above, we assumed that you gave your son or daughter $20,000 as a down-payment on a house in 2006. In that case, you would have to file a gift tax return for 2006 and report the gift. However, the amount of the reportable gift is not $20,000, but only $8,000, since the first $12,000 is covered by the annual gift tax exclusion. Under the gift tax rate schedule, the gift tax on $8,000 is 18% or $1,440. Against this gift tax, you would apply $1,440 of your gift tax unified credit of $345,800, leaving no gift tax owing. The amount of gift tax unified credit available to offset any of your future gifts would be reduced to $344,360 ($345,800 - $1440).

The important point here is that you don't pay any gift taxes on the first $1,000,000 in gifts that you make during your lifetime. And, the $1,000,000 in gifts does not include any gifts covered by the annual gift tax exclusion. So, for all practical purposes, if you don't plan to give away more than $1,000,000 during your lifetime, then your decision to make gifts should not be influenced by federal gift taxes. The only downside, if any, is that you will have to file a federal gift tax return for each year in which your gifts to any one person exceed the annual gift tax exclusion for that year.

Copyright 2005. The Living Trust Network, LLC.

Attorney Michael Pancheri is a practicing attorney and the founder and CEO of the Living Trust Network. You may contact him by email at info@livingtrustnetwork.com. You may also contact him at the Living Trust Network's web site. Its URL is http://www.livingtrustnetwork.com