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Law Offices of Ronald W. Rutz
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December 6, 2001: Gift-giving (and Receiving) Protocol

Q: I am sitting around the house, having just listened to a song about Santa running over grandma with his sleigh and now about cowboys and cowgirls two-stepping around the Christmas tree. But I am curious, when you close your eyes and envision your presents under the tree, what do you think about? (Yes, I know I need to get out more!)

A: You already know the answer because we joked about it last year.

First, even though you see gifts with your name on them, they really are not your property. The general rule is that as long as the giver has the ability to either take them back or prevent the giftee (you) from receiving the presents, then the gift giving has not been completed.

Thus if you wake up some morning and your presents are not there, you probably will not win if you sue "Santa" to get them back. So if you have a choice between being good or bad between now and Christmas, be good for goodness sake, as Gene Autrey used to sing.

Next you do not have to worry about paying taxes on those gifts. The value of these kinds of presents are not included as income to you. But the giver may have gift tax exposure. If the total value of transfers from one person to another (such as birthday and Christmas presents, free meals, free tickets, "love" dollars from Grandma, etc.) total more than $10,000 in any one calendar year, then gift taxes are due on the excess. The taxes must either be paid by the giver or the giver must file a form and deduct the excess from his or her estate tax exempt amount ($700,000 this year). An exception would be gifts between spouses.

Although we should never look a gift horse in the mouth, some gifts are better than others. Non-appreciated assets such as cash are always appreciated and functional. If an appreciated asset is given (such as stock), then the receiver has to pay capital gains tax, when he or she disposes of it, on the difference between the sale price and what the giver paid for it. So you really did not receive as much as first appears, after taxes are paid.

I see grandmas and grandpas putting assets in minor children's names, such as bonds, stocks, and land. Although anyone can own property, even a new born baby, minors do not have the capacity to enter into binding contracts, for the most part. Thus something like a conservatorship would have to be set up through the Courts to deal with these kinds of transfers. Otherwise the asset just sits there since no one, including the parents, has the legal right to act on behalf of the child.

Finally (because I am running out of space), the giver has a right to take back the gift in a number of ways, but taking "possession" is the key. Thus you might want to carry your present with you at all times. Or you may want to claim an area under the tree for your presents only and no one else is allowed the trespass. Or in the extreme case, open your presents early (but I would never encourage that).

Well, I need to stop here but as you can see some lawyers do have a different way of looking at the world, especially this time of year.

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