The consensus at the 2012 Southern California Tax and Estate Planning Forum is that recapture or clawback will not occur for gifts made in 2012. And even if it does, the opportunity cost of not making a gift this year will significantly outweigh any potential harm.
From Prof. Samuel Donaldson:
The short answer is that individuals in a position to make large wealth transfers should most definitely strike now, as the proverbial irons could not be hotter. In addition to the potentially expiring window for utilizing a $5.12 million exclusion amount, two other factors indicate that this is a strategic time for wealth transfers. First, if one believes that asset values have more or less bottomed-out and that the darkest days of the Great Recession are behind us, one ought to make a large gift now before asset values begin to grow significantly.
If Congress ever acts, it will do one of four things:
(1) implement a “reduced” exclusion amount (i.e., one that is less than the $5.12 million amount in effect for 2012);
(2) extend the current $5.12 million exclusion amount, with or without adjustments for inflation;
(3) implement an “enhanced” exclusion amount (i.e., an amount greater than the $5.12 million amount in effect for 2012); or
(4) repeal the federal estate and generation-skipping transfer taxes (which may or may not bring with it repeal of the federal gift tax). The following table explains how a large wealth transfer in 2012 might appear in hindsight depending on which of those options Congress selects:
How would a large wealth transfer in 2012 look in hindsight?
1. Reduced exclusion (<$5.12M) Smart
2. Current exclusion ($5.12M) Smart, if asset values grow; otherwise, “meh”
3. Increased exclusion (>$5.12M) Smart, if asset values grow; otherwise, “meh”
4. Outright repeal Silly
The only scenario in which a large gift today appears silly is if Congress repeals the federal estate tax. The likelihood of this is left to the reader to guess.