Let's Talk Tax

Don't die rich or you'll get taxed!

Vier Aznar Vier Aznar

One week from now, we commemorate All Souls Day. Many of us will visit the cemetery to remember departed loved ones. For some, this occasion is a reminder that, after all the toils and struggles in life, our physical bodies will be laid to rest in the same place. Then, what happens?

Aside from the spiritual and religious aspects of death, there is another aspect which we might not be able to avoid -- tax. In particular, upon death, our estate could be subject to estate tax. Others call it the death tax. Is this applicable only to rich people?

Actually, the estate tax is imposable on the right to transfer the estate of the deceased person to his heirs or beneficiaries. There is estate tax if the net estate at the time of death (after deducting the allowable deductions, including the standard deduction at P1 million and the family home also at P1 million) is valued at more than P200,000. The excess of P200,000 net estate is subject to estate tax. In computing the estate tax due, there is a tabular estate tax rate which ranges from 5% to 20%. These are based on the basic tax rules that we currently have, while we are still waiting for the outcome of the on-going proposals to amend our estate tax laws.

To give an example, if someone dies with a “net” estate of P7 million, the amount of estate tax due, based on the tax table, would be P765,000. The remittance of the P765,000 estate tax will be attended to by the heirs (if there is no executor/administrator). This tax remittance should be made within six months of the decedent’s death, unless extended by the Commissioner of the Bureau of Internal Revenue (BIR) in meritorious cases, which extension does not exceed 30 more days.

So, when we die, we will leave to our heirs/loved ones -- (1) our net properties, (2) the obligation to remit estate tax, and (3) the obligation to beat the deadline within six months from the time of death. The last two items are, undeniably, the other gloomy consequences of death. But can we somehow lessen the impact of future estate tax when we intend to transfer our properties to our loved ones?

You might consider the following modes:

  1. Donate while alive;
  2. Sell the asset; or
  3. Create a trust fund or obtain life insurance coverage.

The ensuing discussions will give a glimpse of the above.

DONATING WHILE ALIVE

When you donate your properties to your intended loved ones while you’re alive, your future estate that could be subjected to estate tax will be reduced. Here, the donor’s tax applicable ranges from the tax rate of 2% to 15%. This range is relatively lower than the 5% to 20% of the estate tax. However, note that the 2% to 15% rate applies only if the donee is classifiable as your brother, sister, spouse, ancestor, lineal descendant, or relative by consanguinity in the collateral line within the fourth degree of relationship. Otherwise, if the donation is made to a stranger, the donor’s tax rate applicable is even higher at 30%.

In addition, the donation should also qualify as a valid donation, and not just a mere transfer of properties but still in contemplation of death.

SELLING THE ASSET

Selling the asset to the intended heirs/beneficiaries will also reduce your future estate that could be subjected to estate tax. This can also be considered if you have the objective of transferring an identified property to a particular heir.

From your perspective as the seller, the resultant tax consequence in a sale would be lower, particularly when what is being sold is a real property that is considered a capital asset. Here, the applicable taxes on the value of the asset are capital gains tax at 6%, documentary stamp tax at 1.5%, and less than 1% of local transfer tax. The total of these taxes, even when combined, could still be lower than the amount of estate tax which has a maximum rate of 20%.

As a reminder, the sale should be a valid sale.

CREATING A TRUST FUND OR OBTAINING LIFE INSURANCE COVERAGE

In this option, although you will not be reducing your future estate, you will, instead create a fund to cover the future estate tax. While alive, you may want to invest in trust funds or you may want to get life insurance coverage, with the objective of raising the amount that would approximate the amount of possible estate tax in the future. You may approach several financial institutions or insurance companies that can give you the package that would suit your interest.

Here, you will be able to ease the burden of your heirs/beneficiaries to raise the money for estate tax remittance to the BIR within a period of 6 months.

The above discussions are but previews only, and there are a lot more details to consider in an estate planning. There are also other modes or combinations thereof which could be applicable depending on the objectives of the taxpayer.

Certainly, you would want your loved ones to succeed to the fruits of your hard work when you pass away. But how about reducing your net estate by giving some to charity? You can do this while alive or you may set aside a portion of your future net estate for this; especially so, when you have already reserved enough for your family and loved ones. You may want to know that there are donations to accredited institutions/organizations that are exempt from tax under the rules. After all, giving to charity -- a more valuable investment in life -- is not a bad idea.

Next week, we will visit our departed loved ones. While doing so, we might remember that we cannot bring our properties with us after we die, and for the properties that we will leave behind -- these can be taxed!

Olivier D. Aznar is a partner of the Tax Advisory and Compliance Division of Punongbayan & Araullo.

As published in Business World, dated 25 October 2016.