Another case where a Form 709 is required is when a gift of community property is made. In this situation, the gift is considered to be made half by each spouse, so each spouse is again required to file their own Form 709. The same requirement applies when a married couple has gifted property they held as joint tenants or tenants by the entirety. Since only individuals are required to file gift tax returns, when a trust, estate, corporation, or partnership makes a gift, it is the individual beneficiaries, stockholders, or partners who would be liable for any gift or GST taxes. In the case where a donor fails to pay the gift tax, the person who received the gift might end up being required to pay the tax. Finally, in the case where a donor dies before a return is filed, it is up to the executor to file Form 709.
It may be easier to state the instances when a return does not need to be filed, since they are fewer. If the taxpayer did not make any gifts to his or her spouse during the year, the taxpayer did not give a gift or gifts of more than $12,000 to any one person, and any gifts the taxpayer did make were of present interests, a Form 709 would not be required to be filed.
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