Gift Tasx Return or Not?

[Kram BergGold]

Husband and wife are making automatic transfers of $2,000 per month starting in January 2010 to their child's 529 Plan account, so $24,000 for the year. I have been told, that if husband signed a $13,000 check from a joint acocunt and then wife did the same that a gift tax return would not be required. Which to me makes sense . However, in this case since it can't be shown who intended to make the gift that a return showing gift splitting would need to be filed. Do you agree?

[solomon]

§529(c)(2)(B)

Treatment of excess contributions

If the aggregate amount of contributions described in subparagraph (A) during the calendar year by a donor exceeds the limitation for such year under section 2503 (b), such aggregate amount shall, at the election of the donor, be taken into account for purposes of such section ratably over the 5-year period beginning with such calendar year.

[JG EA]

Here is another quote:

You may contribute up to $60,000 per student in a single year (or up to $120,000 per student in a single year if you and your spouse contribute) without owing any gift tax. This is a unique feature of 529 Plans. You will need to file a gift tax return and treat the gift as if it were made in equal payments over five years. To avoid gift tax, you should make no additional gifts to the student during that five-year period.

https://www.americancentury.com/investment_education/529_tax_benefits.jsp

[solomon]

Actually, it is 65,000 since the annual amount is 13,000.

[appelman]

However, Kram seems to be saying...

...that the client wants to take it as a one-year gift. My take is that if each of them writes a check, there is no need for a gift tax return. (And if they happen to be in a community property state, it doesn't matter nohow.) If I write a check on a joint account for a gift, it is de facto my gift, barring unusual evidence to the contrary. If it is done by automatic transfer, it is slightly less clear, if it is not in a community property state, though I would still think that the default interpretation would be 50% from each owner of the account.