Tax Implications of Deed of Extrajudicial Settlement with Waiver of Rights



A client consulted me about the computation of estate and donor’s tax on her late father’s estate. Estate refers to the properties left by a deceased person.

 

Her father died intestate (without a Will) in 2007 and was survived by his wife and six (6) children. The surviving heirs executed a Deed of Extrajudicial Settlement (EJS) with Waiver of Rights sometime in 2022 dividing the estate (all are real properties) among themselves. Two (2) of the six (6) siblings waived their inheritance in favor of the other heirs.

 

When they filed the Estate Tax Return, the BIR examiner showed them the ONETTE computation indicating the tax applicable, as follows:

 

A.    Estate tax based on the zonal value of the real properties in 2007.

B.     Donor’s tax based on the zonal value of the real properties in 2022.

 

She was advised that the waiver of the two (2) heirs of their inheritance shall be subject to donor’s tax.

 

Client asked why the donor’s tax was based on the zonal value of the real properties in 2022 while the estate tax was based on the zonal value in 2007. Her concern is that the Donor’s Tax due is higher if it is based on the zonal value in 2022.

 

I told her that for purposes of estate or donor’s taxation, the tax base shall be based on the zonal value at time of the transfer of the properties.

 

The Civil Code provides that succession and donation are among the modes of acquiring ownership of a property.

 

Succession is the transfer of ownership from a deceased person to his/her heirs. On the other hand, donation is the gratuitous transfer of property from a donor to the donee.

 

Succession is subject to estate tax while donation is subject to donor’s tax.

 

Succession

 

If the deceased person died intestate (without a Will), the surviving heirs can execute an EJS stating, among others, that (a) the decedent left no will, (b) they are the only surviving heirs, (c) the deceased left no other properties or debts, and (d) they agree to divide the estate among themselves.

 

Under the Civil Code, the possession of hereditary property (estate) is deemed transmitted to the heir without interruption and from the moment of the death of the decedent, in case the inheritance is accepted.

 

Therefore, as a general rule, the estate is deemed transmitted to the heir at the time of death of the decedent.

 

Donation

 

In case of donation, the Civil Code states that the transfer of property is perfected from the moment the donor knows of the acceptance of the donee coupled with the delivery of the property. In case of real property, the donation and acceptance of the donee must be made in a public instrument.

 

Here, the EJS Deed with Waiver of Rights shows the donative intent of the donor and acceptance of the done. Thus, its execution transfers the ownership of the real property through donation.

 

 Conclusion

 

Since both the succession and donation are modes of acquisition or transfer of ownership, the property subject of the transfer shall be valued at the time of their transfer, i.e., at the time of death of the deceased in case of succession and at the time of the execution of the Deed in case on Donation of real properties.

 

Hence, for purposes of computing the estate tax, the tax base shall be based on the zonal value of the real properties in 2007, the time of death of the decedent.

 

On the other hand, since the EJS with Waiver of Rights was executed in 2022, then tax base shall be the zonal value of the real properties in 2022.

 

General renunciation of inheritance

 

Finally, Revenue Memorandum Circular No. 94-2021 dated July 21, 2021 states that the general renunciation of an heir on his share from the inheritance is not subject to donor’s tax.

 

Here, two (2) heirs waived their inheritance in favor of other heirs.

 

Now, the question is if this waiver of inheritance is also not subject to donor’s tax? This may be subject to further discussion in another article.

 

Need further information? You can reach us at 09773186192 or rbb@bodotalaw.com

 

Our office is located at Reyes & Bodota Law Office, 3F Ventura Center Building, Sta. Rosa-Tagaytay Rd., Sta. Rosa City, Laguna.