Session of 1999
         
HOUSE BILL No. 2158
         
By Committee on Judiciary
          
1-27
          
  9             AN  ACT concerning taxation; relating to estate tax act; amending K.S.A.
10             1998 Supp. 79-15,100, 79-15,102, 79-15,103, 79-15,107, 79-15,109 and
11             79-15,113 and repealing the existing sections; also repealing K.S.A.
12             1998 Supp. 79-15,104 and 79-15,110.
13      
14       Be it enacted by the Legislature of the State of Kansas:
15             Section  1. K.S.A. 1998 Supp. 79-15,100 is hereby amended to read
16       as follows: 79-15,100. K.S.A. 1998 Supp. 79-15,100 through 79-15,119
17       and sections 7 through 11 shall be known and may be cited as the Kansas
18       estate tax act.
19             Sec.  2. K.S.A. 1998 Supp. 79-15,102 is hereby amended to read as
20       follows: 79-15,102. (a) A tax is hereby imposed on the estate of every
21       resident decedent, and every nonresident decedent who died holding an
22       interest in property with a Kansas tax situs, whose estate is required by
23       federal law to file a return for federal estate taxes. The amount of such
24       tax shall be equal to the amount of the maximum credit allowed allowable
25       by section 2011 of the internal revenue code against the tax that would
26       otherwise be imposed on the transfer of the estate of the decedent by
27       section 2001 of the internal revenue code.
28             (b) When the estate of a resident decedent shall consist consists of
29       property within and without the state, or in the case of the estate of a
30       nonresident decedent who died holding an interest in property with a
31       Kansas tax situs, the tax imposed under subsection (a) shall be the per-
32       centage thereof that the gross estate for federal estate tax purposes less
33       the value of all property included therein having a tax situs which is not
34       within the jurisdiction of the state of Kansas, bears to the total gross estate
35       for federal estate tax purposes.
36             Sec.  3. K.S.A. 1998 Supp. 79-15,103 is hereby amended to read as
37       follows: 79-15,103. (a) The personal representative of every estate subject
38       to the tax imposed by K.S.A. 1998 Supp. 79-15,102 and amendments
39       thereto who is required by federal law to file a return for federal estate
40       taxes shall file in the office of the director a return on forms prepared
41       and furnished by the secretary together with a copy of the federal estate
42       tax return on or before the date the federal estate tax return is required
43       to be filed. The personal representative of any decedent whose estate is

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  1       not taxable under the provisions of this act, may obtain a determination
  2       of the director that no tax liability exists on such estate by filing a return
  3       on forms prepared and furnished by the secretary stating that such estate
  4       is not taxable.
  5             (b) The taxes imposed under the provisions of this act shall be paid
  6       by the personal representative to the director at the expiration of nine
  7       months after the death of the decedent.
  8             (c) If the taxes contemplated by this act are not paid when due, in-
  9       terest at the rate prescribed by K.S.A. 79-2968(b) subsection (b) of K.S.A.
10       79-2968, and amendments thereto, shall be charged and collected com-
11       mencing at the time the same become payable.
12             Sec.  4. K.S.A. 1998 Supp. 79-15,107 is hereby amended to read as
13       follows: 79-15,107. (a) Property of which a decedent died seized or pos-
14       sessed, subject to the taxes imposed by this act, in whatever form of
15       investment it may happen to be shall be charged with a lien for all taxes,
16       penalty and interest thereon which are or may become due on such prop-
17       erty; but the lien shall not affect any property after it has been sold or
18       disposed of for value by the executors or administrators in accordance
19       with law, but in all such cases a lien shall attach to the proceeds realized
20       from any such sale or other disposition for all taxes and interest thereon
21       which are or may be due on such property. That portion of the decedent's
22       property which is used for the payment of charges against the estate and
23       expenses of its administration, allowed by any court having jurisdiction
24       thereof, shall be divested of such lien. The lien on any property subject
25       to the act by virtue of the provisions of this subsection shall be divested
26       after 10 years from the date of the decedent's death. If the taxes imposed
27       under this act are not paid when due, the spouse, transferee other than a
28       bona fide purchaser for value, surviving tenant, person in possession of
29       the property by reason of the exercise, nonexercise or release of a power
30       of appointment, or beneficiary, who receives, or has on the date of the
31       decedent's death, property included in the gross estate as determined for
32       federal estate tax purposes shall be personally liable for such tax, to the
33       extent of the value of such property at the time of the decedent's death.
34             (b) If the personal representative fails to timely pay the tax imposed
35       by K.S.A. 1998 Supp. 79-15,102 and amendments thereto, the director
36       shall enforce the director's lien payment of the tax by the issuance of a
37       warrant under the director's hand and official seal, directed to the sheriff
38       of any county of the state, commanding such sheriff to levy upon and sell
39       the real and personal property of the estate found within the sheriff's
40       county for the payment of the amount thereof, with the added interest
41       and the cost of executing the warrant, and to return such warrant to the
42       director and pay to the director the money collected by virtue thereof
43       not more than 60 days from the date of the warrant. The sheriff shall

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  1       within five days after the receipt of the warrant, file with the clerk of the
  2       district court of the sheriff's county a copy thereof, and thereupon the
  3       clerk shall enter in the appearance docket in appropriate columns, the
  4       name of the estate named in the warrant, the amount of the tax or portion
  5       thereof and interest for which the warrant is issued and the date such
  6       copy is filed. The amount of such warrant so docketed shall thereupon
  7       become a lien upon the title to, and interest in, the real property of the
  8       estate against whom it is issued in the same manner, as a judgment duly
  9       docketed in the office of such clerk. The sheriff shall proceed in the same
10       manner and with like effect as prescribed by law with respect to execu-
11       tions issued against property upon judgments of a court of record, and
12       shall be entitled to the same fees for the sheriff's services to be collected
13       in the same manner.
14             (c) The court in which the warrant is docketed shall have jurisdiction
15       over all subsequent proceedings as fully as though a judgment had been
16       rendered in the court. In the discretion of the director, a warrant of like
17       terms, force and effect may be issued and directed to any officer or em-
18       ployee of the director, and in the execution thereof such officer or em-
19       ployee shall have all the powers conferred by laws upon sheriffs, and the
20       subsequent proceedings thereunder shall be the same as provided where
21       the warrant is issued directly to the sheriff. The estate shall have the right
22       to redeem the real estate within a period of 18 months from the date of
23       such sale. If a warrant be returned, unsatisfied in full, the director shall
24       have the same remedies to enforce the claim for taxes as if the state of
25       Kansas had recovered judgment against the distributee for the amount of
26       the tax. No law exempting any goods and chattels, land and tenements
27       from forced sale under execution shall apply to a levy and sale under any
28       such warrants or upon any execution issued upon any judgment rendered
29       in any action for inheritance taxes. The director shall have the right at
30       any time after the warrant has been returned unsatisfied or satisfied only
31       in part, to issue alias warrants until the full amount of the tax is collected.
32             Sec.  5. K.S.A. 1998 Supp. 79-15,109 is hereby amended to read as
33       follows: 79-15,109. (a) As soon as practicable after the return is filed and
34       the taxes paid, the director shall issue a closing letter. Such closing letter
35       shall be issued to the personal representative upon the director being
36       satisfied that there has been a final determination of all taxes due and
37       that all such taxes have been paid. The director shall issue such closing
38       letter to the personal representative, and when the estate is involved in
39       probate proceedings before a district court, a copy of such closing letter
40       shall be forwarded to the judge of such court for recording in full in the
41       journal of such court.
42             (b) Release of the lien imposed by K.S.A. 1998 Supp. 79-15,107, and
43       amendments thereto, may be provided by filing notice of release in the

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  1       office of the register of deeds in any county where any such real property
  2       included in the gross estate is located or, when the estate is involved in
  3       proceedings before the district court, with the court. Any such notice of
  4       release shall be in such form as prescribed by the secretary and may
  5       include use of or reference to the closing letter issued by the director or
  6       may be included as part of that closing letter.
  7             Sec.  6. K.S.A. 1998 Supp. 79-15,113 is hereby amended to read as
  8       follows: 79-15,113. A refund clearing fund, designated estate tax abate-
  9       ment refund, not to exceed $50,000 shall be set apart and maintained by
10       the director of taxation from estate tax collections and held by the state
11       treasurer for the prompt payment of all abatements and refunds. If the
12       director of taxation finds that a claim for refund duly filed by a personal
13       representative should be allowed, or if a court upon a final judgment shall
14       find that the estate tax, penalty or interest paid by a personal represen-
15       tative is in excess of the amount legally due, then the director of taxation
16       shall issue the director's vouchers to the director of accounts and reports
17       for the refund to the personal representative of such tax, penalty or in-
18       terest together with interest provided for hereinafter. Upon receipt of
19       such voucher properly executed and endorsed, the director of accounts
20       and reports shall issue the director's warrants to the state treasurer for
21       the payment to the personal representative out of the estate tax abatement
22       refund fund. The director of taxation shall file a duplicate of such voucher
23       and also a statement which shall set forth the reasons why such abatement
24       or refund was allowed. Upon the allowance of an abatement or refund of
25       any tax or interest paid, interest shall be allowed and paid on the amount
26       of such abatement or refund at the rate of 12% per annum prescribed
27       and determined pursuant to K.S.A. 79-2968 and amendments thereto
28       from the date such tax, penalty or interest was paid to the date the refund
29       or abatement of estate taxes is made.
30             New Sec.  7. If the tax or any part of the tax is paid by, or collected
31       out of, that part of the estate passing to or in the possession of any person
32       other than the personal representative in their capacity as personal rep-
33       resentative, such person shall be entitled to reimbursement out of any
34       part of the estate still undistributed or by a just and equitable contribution
35       by the persons whose interest in the estate of the decedent would have
36       been reduced if the tax had been paid before the distribution of the estate
37       or whose interest is subject to equal or prior liability for the payment of
38       taxes, debts or other charges against the estate. It is the purpose and
39       intent of this act that so far as practicable and unless otherwise directed
40       by the will of the decedent, the tax shall be paid out of the estate prior
41       to the distribution of the estate.
42             New Sec.  8. Unless the decedent otherwise directs by will or trust,
43       if any part of the gross estate on which tax has been paid consists of the

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  1       proceeds of policies of insurance on the life of the decedent receivable
  2       by a beneficiary other than the personal representative, the personal rep-
  3       resentative shall be entitled to recover from such beneficiary such portion
  4       of the total tax paid as the proceeds of such policies bear to the taxable
  5       estate. If there is more than one such beneficiary, the personal represen-
  6       tative shall be entitled to recover from such beneficiaries in the same
  7       ratio. In the case of such proceeds receivable by the surviving spouse of
  8       the decedent for which a deduction is allowed on federal form 706 under
  9       section 2056 of the internal revenue code, relating to marital deduction,
10       this section shall not apply to such proceeds except as to the amount of
11       such proceeds in excess of the aggregate amount of the marital deductions
12       allowed under such section.
13             New Sec.  9. Unless the decedent otherwise directs by will or trust,
14       if any part of the gross estate on which the tax has been paid consists of
15       the value of property included in the gross estate under section 2041 of
16       the internal revenue code, the personal representative shall be entitled
17       to recover from the person receiving such property by reason of the ex-
18       ercise, nonexercise or release of a power of appointment such portion of
19       the total tax paid as the value of such property bears to the taxable estate.
20       If there is more than one such person, the personal representative shall
21       be entitled to recover from such persons in the same ratio. In the case
22       of such property received by the surviving spouse of the decedent for
23       which a deduction is allowed under section 2056 of the internal revenue
24       code, relating to marital deductions, this section shall not apply to such
25       property except as to the value of such property reduced by an amount
26       equal to the excess of the aggregate amount of the marital deductions
27       allowed under section 2056 of the internal revenue code over the amount
28       of proceeds of insurance upon the life of the decedent receivable by the
29       surviving spouse for which proceeds a marital deduction is allowed under
30       such section.
31             New Sec.  10. (a) (1) If any part of the federal gross estate consists
32       of property the value of which is includable in the federal gross estate by
33       reason of section 2044 of the internal revenue code, relating to certain
34       property for which marital deduction was previously allowed, the personal
35       representative shall be entitled to recover from the person receiving the
36       property the amount by which: (A) The total tax under chapter 11 of the
37       internal revenue code which has been paid, exceeds (B) the total tax under
38       chapter 11 of the internal revenue code which would have been payable
39       if the value of such property had not been included in the gross estate.
40             (2) Subsection (a)(1) shall not apply with respect to any property to
41       the extent that the decedent specifically indicates by will or trust an intent
42       to waive any right of recovery with respect to such property.
43             (b) For purposes of this section, if there is more than one person

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  1       receiving the property, the right of recovery shall be against each such
  2       person.
  3             (c) In the case of penalties and interest attributable to additional taxes
  4       described in subsections (a) and (b), rules similar to subsections (a), (b)
  5       and (c) shall apply.
  6             New Sec.  11. (a) (1) If any part of the gross estate on which tax has
  7       been paid consists of the value of property included in the gross estate
  8       by reason of section 2036 of the internal revenue code, relating to trans-
  9       fers with retained life estate, the decedent's estate shall be entitled to
10       recover from the person receiving the property the amount which bears
11       the same ratio to the total tax under chapter 11 of the internal revenue
12       code which has been paid as: (A) The value of such property, bears to
13       (B) the taxable estate.
14             (2) Subsection (a)(1) shall not apply with respect to any property to
15       the extent that the decedent by will or revocable trust specifically indi-
16       cates an intent to waive any right of recovery under this provision with
17       respect to such property.
18             (b) For purposes of this section, if there is more than one person
19       receiving the property, the right of recovery shall be against each such
20       person.
21             (c) In the case of penalties and interest attributable to the additional
22       taxes described in subsection (a), rules similar to the rules of subsections
23       (a) and (b) shall apply.
24             (d) No person shall be entitled to recover any amount by reason of
25       this section from a trust to which section 664 of the internal revenue code
26       applies, determined without regard to this section. 
27       Sec.  12. K.S.A. 1998 Supp. 79-15,100, 79-15,102, 79-15,103, 79-
28       15,104, 79-15,107, 79-15,109, 79-15,110 and 79-15,113 are hereby
29       repealed.
30        Sec.  13. This act shall take effect and be in force from and after its
31       publication in the statute book.