KRS 140.040: Taxation of transfers by power of appointment -- When transfer deemed

to take place -- Date as of which value of property determined -- Remainder

interests -- Rates and exemptions.

(1) As used in this section, "power of appointment":

(a) Means only a general power of appointment that may be exercised in favor of:

1. The individual holding the power of appointment;

2. That individual's estate;

3. That individual's creditors; or

4. The creditors of that individual's estate;

(b) Does not include a power that is:

1. Limited by an ascertainable standard relating to the health, education,

maintenance, and support of the individual holding the power of

appointment; or

2. Exercisable only by the individual holding the power of appointment in

conjunction with another person having a substantial interest in the

property subject to the power of appointment which is adverse to the

exercise in favor of:

a. The individual holding the power of appointment;

b. That individual's estate;

c. That individual's creditors; or

d. The creditors of that individual's estate; and

(c) Shall be administered by the Department of Revenue as nearly as practicable

identical to a general power of app ointment as defined in 26 U.S.C. sec.

2041(b).

(2) (a) Whenever any person exercises a power of appointment derived from any

disposition of property:

1. Whether by will, deed, trust agreement, contract, insurance policy or

other instrument; and

2. Regardless of when the person exercises the power of appointment;

the power of appointment shall be deemed a transfer taxable under the

provisions of this chapter in the same manner as though the property to which

the appointment relates belonged absolutely to the donee of the power and had

been bequeathed or devised by the donee by will.

(b) Whenever any person possessing a power of appointment omits or fails to

exercise the power of appointment, in whole or in part, within the time

provided therefor, a transfer taxable under the provisions of this chapter shall

be deemed to take place to the person receiving the property as a result of the

omission or failure to the same extent that the property would have been

subject to taxation if it had passed under the will of the donee.

(c) The time at which a transfer shall be deemed to take place, for the purpose of

taxation, shall be governed by the provisions of subsections (3) to (5) of this

section.

(3) (a) In the case of a power of appointment which passes to the done e at the death

of the donor, under any instrument:

1. The transfer shall be deemed to take place, for the purpose of taxation,

at the time of the death of the donor;

2. The assessment shall be made at that time against the life interest of the

donee and the remainder against the corpus;

3. The value of the property shall be determined as of the date of the death

of the donor;

4. The donee of the property shall be taxed at the rates and be subject to

the exemptions in effect at the death of the donor; and

5. The determination of the applicable rates and exemptions, in effect at

the death of the donor, shall be governed by the relationship of the

beneficiary to the donee of the power of appointment.

(b) In the event the payment of the tax at the death of the d onor should operate to

provide an exemption for any beneficiary of a donee not authorized by KRS

140.080, then the exemption shall be retrospectively disallowed at the time of

the death of the donee.

(c) The remainder interest passing under the donee's pow er of appointment,

whether exercised or not, shall be added to and made a part of the

distributable share of the donee's estate for the purpose of determining the

applicable exemption and rates.

(4) In all cases other than that described in subsection (3) of this section:

(a) The transfer shall be deemed to take place, for the purpose of taxation, at the

time of the death of the donee;

(b) The value of the property to which the power of appointment relates shall be

determined as of the date of the death of the donee and shall be taxed at the

rates and be subject to the exemptions in effect at the death of the donee; and

(c) The determination of the applicable rates and exemptions, in effect at the

death of the donee, shall be governed by the relationship of the beneficiary to

the donee of the power of appointment.

(5) (a) The provisions of subsection (3) of this section shall not preclude the taxation,

at the death of the donee, of any transfer made by means of a power of

appointment if the transfer was not i n fact reported to or a tax assessed by the

Department of Revenue within the period of limitation prescribed by KRS

140.160.

(b) If the transfer by the power of appointment is not reported or a tax is not

assessed, the period of limitation prescribed in KRS 140.160 shall not begin to

run until the death of the donee of the power of appointment.