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ACT No. 346
Regular Session, 2011
HOUSE BILL NO. 123
BY REPRESENTATIVE RICHARD AND SENATOR THOMPSON
(On Recommendation of the Louisiana State Law Institute)
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
AN ACT1
To amend and reenact R.S. 6:765(B) and 767(D) and R.S. 9:2449(B) and to enact R.S.2
9:2432 through 2439, relative to the estate tax apportionment; to authorize the3
payment of certain savings or shares; to provide for the death of a member or4
depositor; to provide for the withholding of taxes; to provide exemptions,5
deductions, and credits when apportioning taxes; to provide an action for the6
recovery of taxes paid; to provide for actions against nonresidents; to provide for the7
estate tax marital deduction; to provide for individual retirement accounts; to provide8
for retroactive application; and to provide for related matters.9
Be it enacted by the Legislature of Louisiana:10
Section 1. R.S. 6:765(B) and 767(D) are hereby amended and reenacted to read as11
follows: 12
§765. Shares or savings accounts payable to two or more persons; survivorship13
* * *14
B. No association paying any such account in accord with this Section shall15
thereby be liable for any estate, inheritance, or succession taxes which may be due16
this state. The pledge to an association of all or part of a savings account or shares17
owned or subscribed for by two or more persons, executed by a person upon whose18
signature withdrawals may be made shall, unless the terms of the savings account19
provide specifically to the contrary, be a valid pledge and transfer to the association20
of all the shares or savings pledges.21
* * *22
§767. Death of member or depositor23
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D. Except as authorized by Subsections C and E of this Section and R.S.1
6:765, no association domiciled and doing business in Louisiana shall transfer any2
shares or savings or demand accounts pursuant to any part of this Section to any heir,3
legatee, or representative of any deceased person under any order, judgment, or4
decree of any court in or outside of this state until the inheritance taxes due the state5
of Louisiana, if any, have been fixed and paid, nor shall any such association pay the6
withdrawal value of any shares or savings or demand accounts to any such heir,7
legatee, or representative of any deceased person pursuant to any Subpart of this8
Section until the inheritance taxes due on the shares or accounts have been fixed and9
paid. Any association paying or transferring shares or accounts prior to the10
Louisiana inheritance taxes being fixed and paid shall be liable for the tax due on the11
shares or savings accounts. Any association may pay to the surviving spouse the12
value of any savings or demand account or shares standing in the name of the13
decedent in such association without authorization by any court proceeding, order,14
or judgment, whether the savings account or shares belong to the separate estate of15
the decedent or to the community property regime which existed between the16
decedent and the surviving spouse, subject to the provisions of R.S. 9:1513.17
* * *18
Section 2. R.S. 9:2449(B) is hereby amended and reenacted and R.S. 9:2432 through19
2439 are hereby enacted to read as follows:20
§2432. Apportionment of tax liability among persons interested in estate21
A. If the deceased has made no provision in his testament for the22
apportionment of the tax among the persons interested in the estate, the tax shall be23
apportioned among them by the court in the proportion that the value of the interest24
of each person interested in the estate bears to the total value of the interests of all25
persons interested in the estate. The values used in determining the tax shall be used26
for this purpose.27
B. If the deceased has provided in his testament for the apportionment of the28
tax among all the persons interested in the estate, the court shall apportion the tax as29
directed by the deceased.30 ENROLLEDHB NO. 123
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C. If the deceased has provided in his testament for the apportionment of the1
tax of some, but not of all the persons interested in the estate, the amount of the tax2
which has not been apportioned shall be apportioned by the court among those as to3
whom no provision has been made, in the same manner as is provided in Subsection4
A of this Section.5
§2433. No apportionment between principal and income beneficiaries of trust and6
between usufructuaries and naked owners7
No beneficial interest in income from a trust and no usufruct shall be subject8
to apportionment as between the principal beneficiary in the case of the trust and the9
naked owner in the case of the usufruct. The tax on the beneficial interest in income10
from a trust or the usufruct shall be chargeable against the principal of the trust or11
the naked ownership of the property in the case of the usufruct. The court shall order12
that portion of the property subject to the usufruct, or that portion of the trust13
principal subject to the rights of an income beneficiary, to be sold in whole or in part14
to pay the tax apportioned in accordance with this Section. Thereafter, only the15
balance of the property remaining after the sale or the balance of the proceeds of the16
sale not necessary for the payment of the tax shall be subject to the usufruct or the17
rights of an income beneficiary of a trust. To avoid the sale or other disposition of18
property which is subject to a usufruct or an income interest in a trust to satisfy the19
tax liability, the usufructuary and the naked owner, or the principal beneficiary and20
the income beneficiary, may agree to the method of and responsibility for payment21
of the tax.22
§2434. Fiduciary's right to withhold or recover proportion of tax attributable to23
persons interested in estate; security by person interested in estate for24
payment of tax25
A. The fiduciary or other person in possession of the property of the26
deceased required to pay the tax may withhold from any property distributable to any27
person interested in the estate, upon its distribution to him, the amount of tax28
attributable to his interest. If the property in possession of the fiduciary or other29
person required to pay the tax and distributable to any person interested in the estate30 ENROLLEDHB NO. 123
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is insufficient to satisfy the proportionate amount of the tax determined to be due1
from the person, the fiduciary or other person required to pay the tax may recover the2
deficiency from the person interested in the estate. If the property is not in the3
possession of the fiduciary or other person required to pay the tax, the fiduciary or4
other person required to pay the tax may recover from any person interested in the5
estate, in accordance with R.S. 9:2436, the amount of the tax apportioned to that6
person as provided in R.S. 9:2432.7
B. If property is to be distributed prior to final apportionment of the tax, the8
court may require, upon application of the fiduciary or other person who may be9
required to pay the tax, any person who is to share in the distribution of the estate to10
provide a bond or other security for the apportionment liability in the form and11
amount prescribed by the court. This application shall be made by contradictory12
motion or rule to show cause.13
§2435. Allowance for exemptions, deductions, and credits14
A. In making an apportionment, allowances shall be made for any15
exemptions granted, any classification made of persons interested in the estate, and16
for any deductions and credits allowed by the law imposing the tax.17
B. Any exemption or deduction allowed by reason of the relationship of any18
person to the decedent or by reason of the purposes of the gift shall inure to the19
benefit of the person bearing such relationship or receiving the gift, except when an20
interest is subject to a prior present interest which is not allowable as a deduction,21
the tax apportionable against the present interest shall be paid from principal.22
C. Any deduction for property previously taxed and any credit for gift taxes23
or death taxes of a foreign country paid by the decedent or his estate shall inure to24
the proportionate benefit of all persons liable to apportionment.25
D. Any credit for inheritance, succession or estate taxes, or taxes in the26
nature thereof in respect to property or interests includable in the estate shall inure27
to the benefit of the persons or interests chargeable with the payment thereof to the28
extent that or in proportion as the credit reduces the tax.29 ENROLLEDHB NO. 123
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E. To the extent that property passing to or in trust for a surviving spouse or1
any charitable, public, or similar gift or bequest does not constitute an allowable2
deduction for purposes of the tax solely by reason of an inheritance tax imposed3
upon and deductible from the property, the property shall not be included in the4
computation provided for in R.S. 9:2432, and to that extent no apportionment shall5
be made against the property. This Subsection shall not apply where the result will6
deprive the estate of a deduction otherwise allowable under Section 2053(d) of the7
Internal Revenue Code of 1954 of the United States, relating to deduction for state8
death taxes on transfers for public, charitable, or religious uses.9
§2436. Action to recover amount of tax or deficiency from person interested in10
estate; time of filing; liability of fiduciary11
A. A fiduciary or other person required to pay the tax has a right of action12
against any person interested in the estate to recover the original amount of the tax13
apportioned to the person, and any additional amounts based upon the assertion of14
deficiencies in the amount of the tax, and if the amounts sued for have become15
uncollectible at the time of the filing of the suit, the tax or the deficiencies shall be16
equitably apportioned among the other persons interested in the estate and subject17
to apportionment.18
B. This action shall be instituted as an ordinary proceeding. If the action is19
for the recovery of the original amount of the tax apportioned, it shall be instituted20
within a reasonable time after the expiration of one year from the date of payment.21
If the action is for the recovery of a deficiency, it shall be instituted within a22
reasonable time after the expiration of one year from the date of payment of the23
deficiency. Unless the action has been timely instituted, the fiduciary or other person24
required to pay the tax or the deficiency shall not be entitled to reimbursement for25
any portion of the tax or deficiency which he may have paid or has been required to26
pay and shall, in addition, be liable to any person interested in the estate for any loss27
occasioned by the delay.28 ENROLLEDHB NO. 123
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§2437. Action by nonresident; reciprocity1
A. A fiduciary or any other person required to pay the tax due who is2
domiciled or residing in a jurisdiction other than Louisiana, has a right of action for3
the proportionate amount (1) of the federal estate tax, (2) of an estate tax payable to4
another state, or (3) of a death duty due by the estate of a person deceased to another5
state, against any person interested in the estate domiciled or residing in Louisiana6
or who owns property in Louisiana subject to attachment or execution. This action7
shall be brought as an ordinary proceeding in the domicile of the defendant or, if not8
domiciled or residing in Louisiana, in the court of the parish where the property of9
the defendant is situated.10
B. For the purposes of this action, the apportionment of the tax liability as11
determined by the court having jurisdiction of the administration of the estate of the12
deceased in the other state shall be prima facie correct.13
C. With respect to the federal tax, this Section applies only if apportionment14
of the tax is authorized by congress. In all other respects, this Section applies only15
if the other state or jurisdiction affords a substantially similar remedy to a Louisiana16
resident.17
§2438. Application of provisions18
R.S. 9:2431 through 2437 shall not apply to taxes due on account of the death19
of a person dying prior to January 1, 1961.20
§2439. Estate tax marital deduction; formula qualifying21
A. In the event of the death of any person after December 31, 1981, if the22
testament contains a formula expressly providing that the spouse is to receive the23
maximum amount of property qualifying for the federal estate tax marital deduction24
allowable by federal law, the formula shall be construed as referring to the federal25
estate tax marital deduction as allowable by federal law as provided by Section26
2056(a) of the Internal Revenue Code as amended by Section 403 of the Economic27
Recovery Tax Act of 1981.28
B. The provisions of this Section shall not apply unless:29
(1) The decedent dies after December 31, 1981.30 ENROLLEDHB NO. 123
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(2) By reason of the death, property is acquired by the decedent's spouse1
under a formula provided in the testament.2
(3) The formula provided in the testament was not amended or otherwise3
changed as permitted by the laws of this state at any time on or after September 12,4
1981, and before the death of the decedent.5
C. It is the intention of this Section to allow an increase in the amount of the6
federal estate tax marital deduction available to certain estates by reason of Section7
2056 of the Internal Revenue Code to be conferred upon estates that would have8
been excluded from the benefits of Section 403 of the Economic Recovery Tax Act9
of 1981. To the extent necessary, this Section shall be retroactive to January 1, 1982.10
D. Nothing contained in the provisions of this Section shall be construed to11
impinge upon the legitime of a forced heir or to divest the rights of a forced heir to12
the legitime. 13
* * *14
§2449. Individual retirement accounts; payment of benefits15
* * *16
B. No account holder paying a beneficiary in accordance with this Section17
shall be liable to the estate or any heir of the decedent nor shall the account holder18
be liable for any estate, inheritance, or succession taxes which may be due the state.19
The provisions of this Section shall apply even when the decedent designates a20
beneficiary by last will and testament.21
Section 3. This Act is declared to be remedial, curative, and procedural and therefore22
is to be applied retroactively as well as prospectively.23
SPEAKER OF THE HOUSE OF REPRESENTATI VES
PRESIDENT OF THE SENATE
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED: