- 13 - The bill does not change the present law requirement that a qualified use be an active trade or business use as opposed to a passive, or investment use. For example, if a decedent has leased otherwise qualified real property to a son pursuant to a net cash lease, and the son conducts a farming operation on the property, the son's business use is attributed under the bill to the decedent for purposes of satisfying the qualified use requirement (sec. 2032A(b)(1)). On the other hand, during any period when the decedent leases the real property to a nonfamily member for use in a qualified use pursuant to a lease under which the rental is not substantially dependent upon production, the qualified use requirement is not satisfied. [Fn. ref. omitted.] With this amendment, Congress acknowledged that a decedent may become ill or disabled in the years immediately preceding death. Permitting a family member to farm the property prior to a decedent's death facilitates an orderly transition of ownership. H. Conf. Rept. 97-215, at 248 (1981), 1981-2 C.B. 481, 507-508; S. Rept. 97-144, supra, 1981-2 C.B. at 463-464. The committee reports to the 1981 amendment state, however, that the new provision did "not change the present requirement that the qualified heir owning the real property after the decedent's death use it in the qualified use throughout the recapture period." S. Rept. 97-144, supra, 1981-2 C.B. at 464; H. Rept. 97-201, supra, 1981-2 C.B. at 382. Thus, post-death qualified use remained person- and activity-specific. See Shaw v. Commissioner, T.C. Memo. 1991-372. ERTA did make one change as to post-death qualified use. It enacted a 2-year grace period after decedent's death during whichPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011