TITLE V
TAXATION

Chapter 87
TAXATION OF TRANSFERS OF CERTAIN ESTATES

Section 87:1

    87:1 Tax Imposed. –
I. An estate tax is hereby imposed upon the transfer of the estate of every decedent leaving an estate which is subject to an estate tax under the provisions of the United States Internal Revenue Code of 1986, as amended, and who has property within this state.
II. The amount of the New Hampshire estate tax shall be equal to the maximum federal estate tax credit allowable for state death taxes with respect to property subject to this state's jurisdiction to impose a tax.
III. If only a portion of a decedent's estate is located in this state, such maximum tax credit shall be determined by multiplying the entire amount of the credit allowable by the percentage which the gross value of the portion of the decedent's estate located in this state bears to the gross value of the entire estate.
IV. This tax shall be imposed in every case in which the credit for state death taxes paid is available as a credit on the decedent's federal estate tax return.

Source. 1931, 125:1. RL 88:1. RSA 87:1. 1955, 72:1. 1967, 110:1. 1995, 246:1. 2002, 232:3, eff. Jan. 1, 2003.

Section 87:2

    87:2 When Payable. – The New Hampshire estate tax shall be payable to the department of revenue administration at the same time or times at which the United States estate tax is payable and shall bear interest as prescribed in RSA 21-J:28.

Source. 1931, 125:1. RL 88:2. 1950, 5, part 8, 49:2. RSA 87:2. 1975, 439:26. 1983, 441:13. 1991, 348:9, eff. July 31, 1991.

Section 87:3

    87:3 Extension of Time. – The department of revenue administration may, for cause shown, extend the time of payment of said tax whenever the circumstances of the case require.

Source. 1931, 125:1. RL 88:5. 1950, 5, part 8, 49:2. 1975, 439:26, eff. July 1, 1975.

Section 87:4

    87:4 Liability for Tax. – Administrators, executors, trustees, and grantees under a conveyance, made during the grantor's life and taxable hereunder, shall be liable for such taxes, with interest, until the same have been paid.

Source. 1931, 125:1. RL 88:3.

Section 87:5

    87:5 Lien of Tax. – Said taxes and interest shall be and remain a lien on the property subject to the taxes until the same are paid.

Source. 1931, 125:1. RL 88:4.

Section 87:6

    87:6 Returns and Extensions. –
I. The executor or administrator of the estate of every decedent whose death gives rise to a tax liability under this chapter shall, within the time prescribed by the Internal Revenue Service to file a federal estate tax return, file a return with the commissioner of revenue administration. The commissioner of revenue administration shall adopt rules, pursuant to RSA 541-A, relative to the form of such return and the data which it must contain for the correct computation of the New Hampshire estate tax. All returns shall be signed by the administrator or executor and the return preparer if other than the administrator or executor, subject to the pains and penalty of perjury.
II. It shall be the duty of the legal representative of the estate of any decedent who was a resident of this state at the time of his death and whose estate may be subject to the payment of a United States estate tax to attach a duplicate copy of the United States estate tax return as filed with the Internal Revenue Service to the return required by paragraph I.
III. For good cause, the commissioner may extend the time within which a taxpayer is required to file a return, and if such return is filed during the period of extension, no penalty for the failure to file under RSA 21-J:31 shall be imposed, but the executor or administrator shall be liable for interest as prescribed in RSA 21-J:28. An extension of time for filing a return shall not extend the time for the payment of the taxes due under this chapter. Failure to file the return within the period of the extension shall void such extension.
IV. When the commissioner has reason to believe that an executor or administrator has failed to file a return or include any part of the taxable property in a filed return, the commissioner may require the executor or administrator to file a return or a supplementary return showing such additional information as the commissioner prescribes. Upon receipt of the supplementary return, or if none is received within the time set by the commissioner, the commissioner may find and assess the amount due upon the information that is available. The making of such returns by the commissioner shall not relieve the executor or administrator of any penalty for the failure to make a correct original return or relieve them from the liability for interest imposed under RSA 21-J:28 or any other additional charges imposed by the commissioner.
V. The failure to file returns, the filing of fraudulent returns or the making, causing to be made or permitting to be made any false entry in the books or records of the estate with the intent to defraud the state or to evade the payment of the tax or any part thereof shall subject the executor or administrator to the penalties provided in RSA 21-J for such actions.

Source. 1931, 125:1. RL 88:6. 1950, 5, part 8, 49:2. RSA 87:6. 1975, 439:26. 1991, 348:10. 1995, 246:2, eff. Aug. 18, 1995.

Section 87:7

    87:7 Intent of Chapter. – It is hereby declared to be the intent and purpose of this chapter to obtain for this state the benefit of the credit allowed under the provisions of said United States revenue act, to the extent that this state may be entitled by the provisions of said act, by imposing additional taxes and the same shall be liberally construed to effect this purpose.

Source. 1931, 125:1. RL 88:7.

Section 87:8

    87:8 Repealed by 1981, 128:35, eff. May 11, 1981. –

Section 87:9

    87:9 Chapter Void, When. – This chapter shall become void and of no effect in respect to the estates of persons who die subsequent to the effective date of the repeal of the federal estate tax provisions within the United States Internal Revenue Code of 1986, as amended, or that portion of such provisions that allow a credit for state death taxes against the decedent's federal estate tax.

Source. 1931, 125:1. RL 88:9. RSA 87:9. 1995, 246:3, eff. Aug. 18, 1995.

Section 87:10

    87:10 Adjustments. – If the amount of the decedent's gross estate, state death tax credit or tax imposed by federal estate tax provisions of the United States Internal Revenue Code of 1986, as amended, shall be increased or decreased by the Internal Revenue Service, such changes shall be reported to the department of revenue administration and the tax imposed by RSA 87:1 upon such estate shall be changed accordingly. Any additional or excess tax shall be reported to the department of revenue administration on an amended return within 90 days after receiving notice from the Internal Revenue Service that a change in the federal estate tax return has been finally determined. Any additional tax shall be paid with such return with interest as prescribed in RSA 21-J:28. Any excess tax received by the state treasurer shall be refunded after the amount shall have been certified to the state treasurer by the department of revenue administration without special appropriation therefor.

Source. 1931, 125:1. RL 88:10. 1950, 5, part 8, 49:2. RSA 87:10. 1973, 544:10. 1975, 439:26. 1991, 348:11. 1995, 246:4, eff. Aug. 18, 1995.

Section 87:11

    87:11 Estates Affected. – The provisions hereof shall apply to the estates of all decedents dying after April 28, 1931 and shall also apply to the estate of any decedent with respect to which the United States estate tax had not been paid on April 28, 1931.

Source. 1931, 125:1. RL 88:11.

Section 87:12

    87:12 Repealed by 2002, 232:14, I, eff. Jan. 1, 2003. –

Section 87:13

    87:13 Disposition of Revenue. – The revenue derived hereunder shall be covered into the general funds of the state.

Source. 1931, 125:1. RL 88:13. 1953, 169:3, eff. July 1, 1953.

Section 87:14

    87:14 Books; Blanks. – The department of revenue administration shall provide the judges and registers of probate of the state with such books and blanks as are requisite for the execution of this chapter.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:15

    87:15 Expenses. – The expenses of the execution of this chapter shall be paid by the state treasurer upon the certification of the department of revenue administration and charged to the appropriations for the department of revenue administration and the bills therefor shall be submitted to the governor and council for their approval.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:16

    87:16 Disposal of Records. – Whenever in the opinion of the department of revenue administration any books, records, or papers more than 6 years old are no longer required, the department of revenue administration may destroy or cause such records to be destroyed.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:17

    87:17 Prerequisite to Administration. – Letters of administration shall not be issued to any executor or administrator until he or she has given bond to the judge of probate with sufficient sureties containing, in addition to the other conditions required by law, a condition in terms that he or she shall "pay all taxes for which he or she may be or become liable under the provisions of this chapter, and comply with all the provisions of this chapter."

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:18

    87:18 Inventory; Appraisal. – An inventory and appraisal under oath of the whole of every estate, any part of which may be subject to a tax hereunder, in the form prescribed by the probate court, shall be filed in probate court by the executor, administrator, or trustee within 3 months after appointment and a copy of such inventory shall be provided to the department of revenue administration by the executor, administrator, or trustee at such time.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:19

    87:19 Penalty. – If an executor, administrator, trustee, fiduciary, or custodian neglects or refuses to comply with any of the requirements of RSA 87:17 or RSA 87:18, such person shall be liable to a penalty of not more than $1,000, to be recovered by the department of revenue administration for the use of the state, and, upon petition by the department, notice and hearing, the probate court may remove such person, and appoint another person administrator with the will annexed, or administrator, as the case may be.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:20

    87:20 Report of Trusts. – Every executor, administrator, trustee, fiduciary, or custodian having knowledge of the existence of a trust funded either prior to or as a result of the decedent's death in whole or in part with property of a decedent and which transfers a beneficial interest in property of the decedent to another effectively in the same manner as a will or other testamentary instrument shall, within 6 months of the decedent's death, file with the department of revenue administration, upon a form prescribed by the department of revenue administration, a report of the existence and provide a copy of such trust document, including any schedule of beneficiaries, to the department.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:21

    87:21 Notifying Department of Revenue Administration. – The clerk shall notify the department of revenue administration, within 30 days after the expiration of the 3-month period under RSA 87:18, of the failure of any executor, administrator or trustee to file such inventory and appraisal.

Source. 2002, 232:1. 2011, 88:20, eff. July 1, 2011.

Section 87:22

    87:22 Copies to Department of Revenue Administration. – The clerk shall send to the department of revenue administration, by mail, a copy of every will within 7 days after it is filed, unless notified by the department of revenue administration that such copies will not be required. The clerk shall also furnish such copies of papers, and such information as to the records and files in his or her office, in such form as the department of revenue administration may require. A refusal or neglect of the clerk to send such copies or to furnish such information shall be a breach of his or her official bond.

Source. 2002, 232:1. 2011, 88:20, eff. July 1, 2011.

Section 87:23

    87:23 Special Appraisal. – If an executor or administrator shall fail to file an inventory and appraisal in the probate court as provided in RSA 87:18, or if the department of revenue administration is not satisfied with the inventory and appraisal which is filed, the department of revenue administration may employ a suitable person to appraise the property and the executor or administrator shall show the property of the decedent to such appraiser upon demand, and shall make and subscribe his or her oath that the property thus shown includes all the property of the decedent that has come to his or her knowledge or possession. Such appraiser shall prepare an inventory of said property, and shall appraise it at its actual market value at the time of the decedent's death, and shall return such inventory and appraisal to the department of revenue administration.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:24

    87:24 Expense. – The expense of such appraisal shall be a charge upon the estate of the decedent, as an expense of administration, in all cases where an inventory and appraisal has not been filed as provided in RSA 87:18; otherwise the expense shall be paid by the state treasurer.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:25

    87:25 Conditions of Allowance of Account or Motion for Summary Administration. – No final account or motion for summary administration of an executor, administrator, or trustee shall be allowed by the probate court until the certificate of the department of revenue administration has been filed in said court, stating that all tax returns required by the provisions of this chapter have been filed and that the amounts of taxes have been paid, and that provision has been made for any taxes which may become due on said property or interest secured by deposit, or by lien on real estate.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:26

    87:26 Certificate and Receipt. – A certificate from the department of revenue administration verifying that the required returns have been filed and the amount of the self-assessed tax reported has been paid may be requested by the executor, administrator, the clerk, or the judge of the probate court having jurisdiction over the estate.

Source. 2002, 232:1. 2011, 88:20, eff. July 1, 2011.

Section 87:27

    87:27 Continuance of Account. – Whenever a final account is otherwise in order for allowance by the court, but the certificate of the department of revenue administration, as provided in RSA 87:26, is not produced or on file in the probate court, the account shall be continued by the judge of probate until the certificate of the department of revenue administration is filed with the court.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:28

    87:28 Determination of Amount. – The executor or administrator shall compute the amount of all taxes due and payable under the provisions of this chapter, and shall prepare and submit the required returns to the department of revenue administration.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:29

    87:29 Lien. – The taxes and interest shall be a lien on the property subject to the taxes until the same are paid; however, commencing with the date of decedent's death there shall be a 20-year statute of limitations for said lien.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:30

    87:30 Discharge of Lien. – Whenever any real estate or separate parcel thereof is subject to a lien created by this chapter, the probate court shall have jurisdiction to make such order or decree as will otherwise secure to the state the payment of any tax due, or to become due, on such real estate or separate parcel thereof, and, upon the performance of such order or decree, to discharge such lien.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:31

    87:31 Collection. – An executor, administrator, trustee, grantee or donee holding property subject to said tax shall deduct the tax therefrom, or collect it from the legatee or person entitled to said property, and he or she shall not deliver property or a specific legacy subject to said tax until he or she has collected the tax thereon.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:32

    87:32 Suit for Tax. – The department of revenue administration may commence an action for the recovery of any of said taxes at any time after the same become payable; and shall do so whenever the judge of probate certifies to it that the final account of an executor, administrator or trustee has been filed in such court, and that the settlement of the estate is delayed because of the nonpayment of said tax.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:33

    87:33 Notice to Appear. – Whenever the department of revenue administration shall desire the attendance of an executor, administrator, or beneficiary as herein provided, it shall issue an administrative summons to appear, give testimony or produce documentation as provided in RSA 21-J:3 or RSA 21-J:5, to such person or corporation, 14 days prior to the date when such person or corporation is required to appear.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:34

    87:34 Appearance by Department. – The department of revenue administration shall be entitled to appear and shall represent the state in any proceeding in any court in which the decree may in any way affect the tax. No decree in any such proceeding, or upon appeal therefrom, shall be binding upon the state, or upon a probate appeal, unless personal notice of such proceeding shall have been given to the department of revenue administration.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:35

    87:35 Records of the Estate. –
Every executor or administrator shall:
I. Keep such records as may be necessary to determine the amount of liability for tax under this chapter.
II. Preserve such records for a period of 3 years after the returns required by this chapter have been filed or until any litigation or prosecution under this chapter is finally determined, whichever is later.
III. Make such records available for inspection by the commissioner or the commissioner's authorized agents, upon demand, at reasonable times during regular business hours. Whoever violates the provisions of this section shall be subject to the penalties provided in RSA 21-J for such actions.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:36

    87:36 Authority to Audit. –
The department of revenue administration shall have the authority to audit the returns required by this chapter to determine whether there has been an error in the assessment of the taxes imposed by this chapter in accordance with the following provisions:
I. An executor, administrator, legatee, or probate court may request in writing within 2 years of the decedent's death an audit of the return.
II. The department may, on its own motion, undertake such an audit upon written notice to the executor, administrator, or legatee within the statute of limitations as provided in RSA 21-J:29, except that where a change is reported as provided in RSA 87:10, such notice shall be provided within 6 months of the receipt of such amended return.
III. An executor, administrator, or legatee may request an administrative hearing pursuant to RSA 21-J:28-b, I, II, and III.
IV. Within 30 days after notice of any adjustment ordered by the commissioner as a result of an administrative hearing, an executor, administrator, or legatee may appeal the revenue commissioner's determination to the probate court having jurisdiction over the decedent's estate. The probate court shall determine de novo the correctness of the commissioner's action.

Source. 2002, 232:1, eff. Jan. 1, 2003.

Section 87:37

    87:37 Administration; Rulemaking. –
I. The commissioner of revenue administration shall collect the taxes, interest, additions to tax and penalties imposed under this chapter and RSA 21-J.
II. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to:
(a) The administration of the estate tax; and
(b) The recovery of any tax, interest or penalties imposed by this chapter and RSA 21-J.
III. The commissioner may institute actions in the name of the state to recover any tax, interest, or penalties imposed by this chapter and RSA 21-J.
IV. In the collection of the tax imposed by this chapter, the commissioner may use all of the powers granted to tax collectors under RSA 80 for the collection of taxes. The commissioner shall also have all of the duties imposed on tax collectors by RSA 80 that are applicable to the commissioner.
V. The commissioner may take the oath of any person in the course of any hearing authorized under RSA 87:36, III. In connection with hearings, the commissioner and the executor or administrator shall have the power to compel attendance of witnesses and the production of books, records, papers, vouchers, accounts, or other documents. The commissioner and executor or administrator may take the deposition of witnesses residing within or without the state pertaining to any matter under this chapter, in the same way as depositions of witnesses are taken in civil actions in the superior court. Fees of witnesses are the same as those allowed to witnesses in the probate court and in the case of witnesses summoned by the commissioner shall be considered as an expense of administration of this chapter.
VI. Any notice required by this chapter to be given by the commissioner to an executor or administrator shall be made by first class mail to the last known address of the executor or administrator, but in the case of hearings, notice shall be given at least 10 days before the date of the hearing.

Source. 2002, 232:1, eff. Jan. 1, 2003.