Section 5 Apportionment of taxes, interest and penalties; “net estate” defined
[Text of section effective until July 1, 2011. Repealed by 2008, 521, Sec. 1. See 2008, 521, Sec. 44.]
Section 5. Whenever it appears upon any accounting, or in any appropriate action or proceeding, that an executor, administrator, trustee or other person acting in a fiduciary capacity, has paid or may be required to pay an estate tax levied or assessed under the provisions of chapter sixty-five C or under the provisions of this chapter, or under the provision of any estate tax law of the United States heretofore or hereafter enacted, upon the transfer of the estate of any person who at the time of his death was an inhabitant of this commonwealth, the net amount of said tax shall be apportioned among and borne by recipients and beneficiaries of the property and interests included in the gross estate in the following manner:—
(1) If any portion of the estate passed under the will of the decedent, such proportion of the net amount of the tax so levied or assessed, other than any tax payable from property described in paragraph (3) shall, except as otherwise provided or directed by the will, be charged to and paid from the general funds of the estate as the net amount of the property passing under the will and included in the measure of such tax, exclusive of property over which the decedent had any power of appointment as defined from time to time by the estate tax laws of the United States, bears to the amount of the net estate as hereafter defined in this section.
(2) If any portion of the property with respect to which such tax is levied or assessed, other than property described in paragraph three of this section, is held under the terms of any trust created inter vivos or is subject to such a power of appointment, such proportion of the net amount of the tax so levied or assessed, other than any tax payable from property described in paragraph (3), shall, except as otherwise provided or directed by the trust instrument with respect to the fund established thereby, or by the decedent’s will, be charged to and paid from the corpus of the trust property or the property subject to such power of appointment, as the case may be, as the net amount of the property of such trust or property subject to such power of appointment and included in the measure of such tax bears to the amount of the net estate as hereafter defined in this section. The amount so charged shall not be apportioned between temporary and remainder estates.
(3) If any portion of the property with respect to which such tax is levied or assessed is property in which the decedent had a qualifying income interest for life within the meaning of section three A of chapter sixty-five C or section two thousand and forty-four of the Internal Revenue Code or any statutes of similar import in effect on January first, nineteen hundred and eighty-five, such portion of the net amount of the tax so levied or assessed, including, in the case of the Massachusetts estate tax, any tax imposed under the provision of subsection (b) of section two of said chapter sixty-five C, shall, except as otherwise provided or directed by the decedent’s will, be charged to and paid from the corpus of such property as equals the amount by which the total net amount of such tax levied or assessed exceeds the total net amount of such tax which would have been levied or assessed if the value of such property which is included in the measure of such tax had not been so included. The amount so charged shall not be apportioned between temporary and remainder estates.
(4) The balance of the net amount of the tax so levied or assessed, or if paragraphs (1), (2) and (3) are inapplicable the whole of the net amount of such tax shall, except as otherwise provided or directed by the decedent’s will, be equitably apportioned among and charged to and paid by the recipients and beneficiaries of property or interests included in the measure of such tax and passing or arising otherwise than under the will of the decedent or by virtue of any such trust or by the exercise or nonexercise of any such power of appointment or by reason of the termination of any such qualifying income interest for the decedent’s life in the proportion that the net amount of such property or interest bears to the amount of the net estate as hereafter defined in this section; provided, however, that where any provision is made whereby any person is given an interest in income or an estate for years or for life or other temporary interest in any property or fund the amount so charged to such recipients or beneficiaries shall not be apportioned between temporary and remainder estates but shall be charged to and paid out of the corpus of such property or fund; and provided, further, that any apportionment made under this section shall accord with applicable estate tax laws of the United States where such laws specify with respect to an apportionment or a right of recovery.
(5) For the purposes of the apportionment of the tax levied or assessed under the provisions of chapter sixty-five C or this chapter, or under the provisions of any estate tax law of the United States, the term “net estate” as used in this section shall mean the gross estate as defined for purposes of the particular tax less (i) any property described in paragraph (3) which is included in the gross estate for purposes of the particular tax and (ii) any deductions, other than specific exemptions, allowed for purposes of the particular tax other than deductions attributable to such property described in said paragraph (3).
(6) If the court shall determine that it is inequitable, because of special circumstances, to apportion interest and penalties in connection with estate taxes as provided herein, it may direct apportionment thereof in such manner as it shall find equitable.