§2513 — Title 26 Internal Revenue Code | U.S. Code

Summary

If one spouse gives a gift to someone who is not their spouse, the gift is treated for tax purposes as if each spouse gave half — but only if both were U.S. citizens or residents when the gift was made. This does not apply if the giver gives the other spouse a "general power of appointment" (see section 2514(c)). The couple must be married when the gift is made and the giver must not remarry during the rest of that calendar year. Both spouses must agree, in the way the IRS rules require, to treat all such gifts made that year this way. That agreement can be made after the year ends but not later than April 15 following that year, unless no return was filed by either spouse before April 15 (then the agreement must come before a return is filed). The agreement cannot be made after a notice of deficiency under section 6212(a) is sent. If the agreement is given, it can be revoked only as the IRS rules allow, and there are limits tied to the April 15 date. If the agreement applies for the year, both spouses are fully responsible for the entire tax for that year.

Title 26, §2513

Internal Revenue Code — Source: USLM XML via OLRC

(a)(1)A gift made by one spouse to any person other than his spouse shall, for the purposes of this chapter, be considered as made one-half by him and one-half by his spouse, but only if at the time of the gift each spouse is a citizen or resident of the United States. This paragraph shall not apply with respect to a gift by a spouse of an interest in property if he creates in his spouse a general power of appointment, as defined in section 2514(c), over such interest. For purposes of this section, an individual shall be considered as the spouse of another individual only if he is married to such individual at the time of the gift and does not remarry during the remainder of the calendar year.

(2)Paragraph (1) shall apply only if both spouses have signified (under the regulations provided for in subsection (b)) their consent to the application of paragraph (1) in the case of all such gifts made during the calendar year by either while married to the other.

(b)(1)A consent under this section shall be signified in such manner as is provided under regulations prescribed by the Secretary.

(2)Such consent may be so signified at any time after the close of the calendar year in which the gift was made, subject to the following limitations—

(A)The consent may not be signified after the 15th day of April following the close of such year, unless before such 15th day no return has been filed for such year by either spouse, in which case the consent may not be signified after a return for such year is filed by either spouse.

(B)The consent may not be signified after a notice of deficiency with respect to the tax for such year has been sent to either spouse in accordance with section 6212(a).

(c)Revocation of a consent previously signified shall be made in such manner as in provided under regulations prescribed by the Secretary, but the right to revoke a consent previously signified with respect to a calendar year—

(1)shall not exist after the 15th day of April following the close of such year if the consent was signified on or before such 15th day; and

(2)shall not exist if the consent was not signified until after such 15th day.

(d)If the consent required by subsection (a)(2) is signified with respect to a gift made in any calendar year, the liability with respect to the entire tax imposed by this chapter of each spouse for such year shall be joint and several.

Notes & Related Subsidiaries

Editorial Notes

Amendments

1981—Subsec. (a)(1), (2). Pub. L. 97–34, § 442(b)(2)(A), substituted “calendar year” for “calendar quarter”. Subsec. (b)(2). Pub. L. 97–34, § 442(b)(2)(B)–(D), in introductory text, substituted “calendar year” for “calendar quarter”, in subpar. (A), substituted “The consent” for “the consent”, “15th day of April following the close of such year” for “15th day of the second month following the close of such calendar quarter”, and “such year” for “such calendar quarter” in two other places, and in subpar. (B) substituted “The consent” and “such year” for “the consent” and “such calendar quarter”. Subsec. (c). Pub. L. 97–34, § 442(b)(2)(E), in provision preceding par. (1) substituted “calendar year” for “calendar quarter” and in par. (1) “15th day of April following the close of such year” for “15th day of the second month following the close of such quarter”. Subsec. (d). Pub. L. 97–34, § 442(b)(2)(F), substituted “any calendar year” and “such year” for “any calendar quarter” and “such calendar quarter”. 1976—Subsecs. (b)(1), (c). Pub. L. 94–455 struck out “or his delegate” after “Secretary”. 1970—Subsecs. (a), (b)(2). Pub. L. 91–614, § 102(b)(2)(A), substituted “calendar quarter” for “calendar year”. Subsec. (b)(2)(A). Pub. L. 91–614, § 102(b)(2)(B), substituted “the 15th day of the second month” for “the 15th day of April” and substituted “such calendar quarter” for “such year”. Subsec. (b)(2)(B). Pub. L. 91–614, § 102(b)(2)(C), substituted “such calendar quarter” for “such year”. Subsec. (c). Pub. L. 91–614, § 102(b)(2)(A), substituted “calendar quarter” for “calendar year”. Subsec. (c)(1). Pub. L. 91–614, § 102(b)(2)(D), substituted “15th day of the second month following the close of such calendar quarter” for “15th day of April following the close of such year”. Subsec. (d). Pub. L. 91–614, § 102(b)(2)(A), (E), substituted “calendar quarter” for “calendar year” and “such calendar quarter” for “such year”.

Statutory Notes and Related Subsidiaries

Effective Date

of 1981 AmendmentAmendment by Pub. L. 97–34 applicable with respect to gifts made after Dec. 31, 1981, see section 442(e) of Pub. L. 97–34, set out as a note under section 2501 of this title.

Effective Date

of 1970 AmendmentAmendment by Pub. L. 91–614 applicable with respect to gifts made after Dec. 31, 1970, see section 102(e) of Pub. L. 91–614, set out as a note under section 2501 of this title.

§2513 Gift by husband or wife to third party

Summary

Title 26, §2513

Notes & Related Subsidiaries

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Citations & Metadata