The Internal Revenue Service has posted the instructions for the estate tax form for people who died in 2010, the year the estate tax was not in effect for many taxpayers.

Under the original Bush tax cuts law of 2001, the estate tax was effectively gone for people who died in 2010. The tax cut extension that was passed last December reinstated the estate tax for those who died in 2010, but it allowed their executors to opt out of the estate tax, and instead elect to be governed by the repealed carryover basis provisions of the 2001 law. That choice is to supposed to be made by filing Form 8939.

The instructions for Form 706, which were posted last week, note that executors of estates of decedents who died in 2010 may make a special election to apply modified carryover treatment. If the special election is made, the estate will not be subject to federal income tax and Form 706 should not be filed.

Alternatively, for decedents who died between Jan. 1, 2010 and Dec. 16, 2010, the due date for Form 706 is Sept. 19. (For those who died later in the year, the due date is nine months after death.) The applicable exclusion amount is $5 million (a credit equivalent of $1,730,800), and the maximum estate tax rate is 35 percent. The applicable rate for generation-skipping transfers is zero. Prior gifts must be calculated at the rate in effect on the decedent’s date of death.

Last month, the IRS issued guidance to help taxpayers cope with the carryover basis rules for the estates of people who died last year. The guidance was intended to help executors who are making the choice to opt out of the estate tax and have the carryover basis rules apply. Form 8939, the basis allocation form required to be filed by executors opting out of the estate tax, is due Nov. 15, 2011.

However, the final version of that form has not yet been made available by the IRS. The American Institute of CPAs has asked the IRS for an extension of time to file Forms 706 and 8939 until they were both finalized, but the IRS has not yet responded to the request, according to the Journal of Accountancy.

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