Nebraska Probate Form 810 - Discharge Of Fiduciary From Personal Liability Under Irc § 2204

FULL NAME OF FORM: Discharge Of Fiduciary From Personal Liability Under Irc § 2204

WHEN TO USE THE FORM: This form should be used when the Personal Representative desires to be discharged from personal liability for the estate tax. Such personal liability is based on IRC § 2002, 31 USCA § 3713 and Regulation § 20.2002-(1) under which the Personal Representative who pays debts and distributes estate assets before all claims of the United States, including tax claims, are satisfied is personally liable to the extent of the debts paid and the distributions made, if the remaining estate assets are insufficient to pay all government claims.

IRC § 2204 provides that if the Personal Representative applies for a determination of the amount of the estate tax and a discharge from personal liability, the Internal Revenue Service has nine (9) months from the later of the filing of the application or the due date of the 706 to notify the Personal Representative of the amount of the estate tax. On payment of such tax, other than any estate tax the time for payment of which is deferred under IRC §§ 6161, 6163 or 6166, and the furnishing of a bond which may be required for the deferred tax, the Personal Representative is discharged from personal liability for any subsequently determined deficiency and is entitled to written evidence of the discharge. If the Personal Representative is not so notified, the Personal Representative is discharged at the end of such nine (9) month period.

HOW TO USE THE FORM: There is no Internal Revenue Service form. This Form 810, preferably, should be filed separately from the IRS Form 706 with the Internal Revenue Service office where the 706 is filed and would normally be filed promptly after the 706 is filed.

If the Personal Representative has elected under IRC § 6166 to defer the time for payment of any part or all of the estate tax attributable to the Decedent's interest in a closely held business, and if the Personal Representative desires to use the special lien under IRC § 6324A in lieu of a bond required by IRC § 2204 for the deferred tax, this form is used in conjunction with Forms 809 and 809a. See IRC § 2204(c).

It seems that the primary use of this form would be by an independent Personal Representative who is not a beneficiary of the estate. See below "When Not to Use The Form."

WHEN NOT TO USE THE FORM: Any application by a Personal Representative for a discharge from personal liability or a request for prompt assessment may trigger an audit and a deficiency which otherwise may not have occurred. When the Personal Representative is a substantial beneficiary of the estate, the discharge from personal liability under IRC § 2204 may be of little value since the general lien on estate assets under IRC § 6324 continues. Also, the Personal Representative/beneficiary is liable for the tax as a transferee under IRC § 6324(a)(2).

COMMENTS: When the Personal Representative desires to be discharged from personal liability for the Decedent's income tax and gift tax liability and from the estate's income tax liability, use Internal Revenue Service Form 4810 "Request for Prompt Assessment under IRC § 6501(d)."