67-8-105 - Gifts between or by spouses. - Tennessee Statutes

67-8-105. Gifts between or by spouses.

(a)  Where a donor transfers during the calendar year by gift an interest in any property specified in § 67-8-101(a) or (b) to a donee who at the time of the gift is the donor's spouse, there shall be allowed as a deduction, in computing taxable gifts an amount equal to the gift. The provisions of § 2523(b)-(g) of the Internal Revenue Code (26 U.S.C. § 2523(b)-(g)) shall be applicable to this deduction; provided, that the election specified in § 2523(f) of the Internal Revenue Code is made to the department of revenue; and provided further, that the reference to “subsection (a)” in paragraph (1)(A) of § 2523(f) shall be treated as meaning the first sentence of this subsection (a).

(b)  A gift made by one (1) spouse to any person other than the donor's spouse shall, for purposes of this chapter, be considered as made one-half (½) by the donor and one-half (½) by the donor's spouse. This subsection (b) shall not apply with respect to a gift by a spouse of an interest in property, if the donor creates in the donor's spouse a general power of appointment, as defined in § 2514(c) of the Internal Revenue Code (26 U.S.C. § 2514(c)), over such interest. For purposes of this subsection (b), an individual shall be considered as the spouse of another individual only if the spouse is married to such individual at the time of the gift and does not remarry during the remainder of the calendar year. The liability for gift tax with respect to gifts made under this subsection (b) shall be joint and several between the spouses. This subsection (b) shall apply only if both spouses have signified, under rules promulgated by the commissioner, their consent to the application of this subsection (b) in the case of all such gifts made during the calendar year by either while married to the other.

[Acts 1939, ch. 137, § 4; C. Supp. 1950, § 1295.4 (Williams, § 1328.40); Acts 1965, ch. 19, § 1; 1978, ch. 731, § 17; 1983, ch. 73, § 11; T.C.A. (orig. ed.), § 67-2505(e), (f); Acts 1993, ch. 483, § 1.]