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REPORT NO. 6 - Thursday, 1/10/02
We still haven’t
received a report yet on the Tuesday afternoon EGTRRA Drafting
session, so we are going ahead and reporting on the Thursday CLE
sessions at this time. The bulk of this Report #6 was prepared
and submitted by reporter Bruce Stone of the Holland & Knight
law firm in their Miami, Florida office, and reporter Steve Leimberg
submitted the report for his afternoon Special Session.
Thursday, January 10, 2002
8:30 - 9:15 a.m
Subchapter J - Recent Developments Relating to the Income Taxation
of Trusts and Estates
Prof. Mark L. Ascher
Joe Gorman of Los Angeles convened the Thursday proceedings by
introducing Professor Mark Ascher of the University of Texas School
of Law.
Mark began with
a discussion of the separate share rules, which until 1997 applied
only to trusts. He used an example of an estate with two
equal beneficiaries (A and B) and with DNI of $25,000. The
estate distributes $25,000 to A and nothing to B during the taxable
year. Under prior law all of the estate’s DNI was deemed
to be distributed to A. Under the new law and regulations,
DNI is allocated equally to the separate and equal shares for
A and B, and thus A receives $12,500 of DNI, the estate has DNI
of $12,500, and B has no DNI for that year.
If the estate
contains a specific bequest of IBM shares to beneficiary C, that
is a third separate share. Under state law income on specifically
bequeathed assets passes with those assets. If the IBM shares
yield $5,000 in dividends, the estate now has $30,000 in DNI,
with three separate shares. However, expenses are not necessarily
allocated to all three shares, because if deductible expenses
relate solely to one of the separate shares, they will be allocable
solely to that share and will not affect the DNI of any other
share.
Now suppose that
the decedent’s spouse makes an election to take an elective share
under state law, and the share is a pecuniary amount based on
date of death values and does not share in the estate’s income.
The estate now has four separate shares, but because the spouse’s
share is not entitled to any income, no DNI will be attributable
to it. If state law provides for payment of interest on
the elective share amount, the spouse will have taxable income
but the estate gets no deduction for the interest paid to the
spouse (at least according to the regulations). In Mark’s
view this conclusion is wrong, but he notes that it is a final
regulation.
Mark then used
another example where an estate has two equal beneficiaries: child
A and the decedent’s revocable trust. A section 645 election
is made. There are two separate shares of the estate, those
of A and the trust. Because of the 645 election, the trust
is taxable on the estate’s DNI not allocated to child A.
If a non pro rata distribution is made during administration,
the separate share ratios must be adjusted.
Mark called attention to the regulation which states that if the
estate has IRD, it must be allocated among all of the separate
shares that could potentially be funded with the IRD irrespective
of whether the share is entitled to receive any income under the
governing instrument or under local law.
Mark then briefly discussed the proposed regulations under section
645. He pointed out Notice 2000-26, which states that until
the effective date of the final regulations, taxpayers can choose
to follow either the original guidelines in Rev. Proc. 98-13 or
the proposed regulations. He also pointed out that under
the proposed regulations, not all former grantor trusts will be
qualified revocable trusts upon the death of the grantor, and
that not even all trusts which were revocable by the grantor will
be qualified revocable trusts. Mark said that one of the
most intriguing parts of the regulations provides that at the
end of the election period, the combined estate and trust are
deemed to distribute to a new entity.
Mark then moved to the proposed section 643 regulations, which
in theory cannot be relied upon. Mark agreed with Jeff Pennell’s
observation from Monday that the proposed regulations do not make
major changes to existing law, but they do make some changes.
Overall they are an improvement over current law. The IRS
is trying to mesh section 643 with developments stemming from
the Uniform Prudent Investor Act and the Uniform Principal
and Income Act. Because those acts are not a source
for tax abuse, the IRS has recognized that it does not have a
"dog in the fight." There are two principal areas
of change: the definition in fiduciary accounting income
(FAI), and when capital gains will be included in DNI.
Section 643 itself defers completely to the governing instrument
and governing local law. But the IRS has long said that
governing instrument provisions will not be recognized if they
depart fundamentally from general principles of law. The
new proposed regulations add the word "generally" to
the phrase "will not be recognized." But then
the proposed regulation goes on to add 5 additional sentences,
and Mark says to think of them as examples. He said that
because a majority of states have now adopted the uniform acts,
there will be no fundamental departure from general principles
of law when governing instruments define income in unitrust amounts
or allow discretionary allocations or include capital gains in
income.
One objective of the proposed regulations was to make it easier
to include capital gains in DNI. Under current law, capital
gains are not included in DNI, but there are three exceptions
(although there have been some liberal interpretations of those
three exceptions).
The first exception (if capital gains are allocated to income
by the governing instrument or by local law or by the fiduciary
on its books) is modified by the proposed regulations to impose
a new requirement of reasonableness and consistency if gains are
allocated to income by the fiduciary. (Indeed, the requirement
that a fiduciary’s exercise of discretion be reasonable and consistent
applies to all three exceptions, not just the first exception.)
The second exception (if capital gains are allocated to corpus
and actually distributed during the taxable year) is changed in
a major way: the requirement of actual distribution is eliminated.
The focus instead is on whether the fiduciary treats the gain
as part of a distribution to a beneficiary on the fiduciary’s
books, records, and tax returns. The third exception (if
gains are utilized under the terms of the governing instrument
or by the practice of the fiduciary in determining the amount
which is to be distributed) by dropping the requirement of a "practice"
by the fiduciary. In the past the IRS has taken the position
that there cannot be a "practice" in the first year
of an entity’s existence. The omission of a "practice"
requirement may mean something.
When appreciated property is used to discharge fixed-dollar obligations
to beneficiaries, the Kenan gain that results will likely
not be deemed to have "been paid" to the beneficiaries
under the second exception in the proposed regulations.
The question then is whether those gains nonetheless might enter
into DNI under the first exception (where capital gains are allocated
to income by the governing instrument or by local law or by the
fiduciary on its books). Under unitrust statutes it would
seem reasonable to expect that any gains would be included in
DNI, but (as stated in Mark’s outline materials) the analogy to
Rev. Rul. 68-392 is so close that the failure of those
gains to enter into DNI would cause a cautious analyst to pause.
9:15 10:00 a.m.
The State Income Taxation of Multi-Jurisdictional Trusts
Max Gutierrez Jr.
Max Gutierrez,
who hails from San Francisco, California, began his presentation
with a general overview of some general rules and constitutional
considerations. The constitutional ability of a state to
tax trust income is limited by the due process and interstate
commerce clauses.
The 1987 Swift
case from Missouri (727 S.W.2d) was seminal in a line of cases
which establish six points of contact that support the nexus to
tax a trust’s income: (1) domicile of the settlor, (2) the state
where the trust was created, (3) the location of the trust property,
(4) the domicile of the beneficiaries, (5) the domicile of the
trustees, and (6) the location of administration of the trust.
The Swift line
of cases was challenged in the 1997 D.C. v. Chase case
from the District of Columbian (689 A.2d 539). The court
found that residency of the grantor was alone sufficient contact
for a jurisdiction constitutionally to exercise its taxing authority.
This was reasoning was further extended in 1999 in five Connecticut
cases under the heading of Chase v. Gavin (733 A.2d 782),
where the only connection to Connecticut consisted of three of
the five trusts having one or more beneficiaries resident in Connecticut,
plus the fact that two of the trusts were required to submit regular
accountings.
The 1990 Blue
case from Michigan (Court of Appeals, No. 116666) held that Michigan
could not tax a trust that had been created in Michigan by an
individual who died while a resident of Michigan. The trustee
and beneficiaries were all Florida residents. The only connection
to Michigan was one parcel of real estate there, which did not
produce income.
Residency of the
trustee alone generally is a sufficient nexus to tax a trust.
Nine states tax on this basis. But California taxes on the
basis of "fiduciary" residence which raises questions
such as whether a trust protector or someone who holds veto powers
of trust administration matters is a fiduciary for tax purposes.
Situs of trust
administration alone is sufficient nexus to tax. Generally
this should require more important functions than merely keeping
books and records, although in some states that alone is held
to be enough connection to impose tax on all trust income.
The mere presence
of beneficiaries in a state is generally not enough connection
to tax the income of a trust, which has no other nexus with that
state, but eight states do impose an income tax where the only
contact with the state is that one or more beneficiaries reside
in the state.
No state imposes
income tax solely on the basis that the law of that state is the
governing law of the trust.
In planning, great
care must be given to the selection of trustees. Clauses
should be used that limit the selection of trustees to jurisdictions
that will not impose an income tax, or at least which require
state income taxes to be considered in the selection of trustees.
Provisions allowing trust situs to be moved should be included.
Beneficiaries should be required to notify the trustee of change
of residence, and the trustee should be exonerated from losses
for failing to pay taxes resulting from a change of residence
without notice to the trustee.
10:00 10:45 a.m.
Implementing Total Return Trust Statutes
Richard W. Nenno
Dick Nenno of
Wilmington, Delaware noted that most states have now adopted the
Uniform Prudent Investor Act. He also noted that
90% of long-term investment returns are attributable to asset
allocation, and that only modest returns are attributable to security
selection, sector selection, and market timing.
Dick used an example
of an income beneficiary of a classic income only trust who demands
a higher rate of income than would be produced by a 50-50 allocation
between equity and debt investments in today’s markets.
He said that under the old prudent man rule, you could usually
safely invest 100% in bonds, because this did "preserve"
principal for remainder beneficiaries, but this is clearly not
permissible under the prudent investor rule. Of course,
if the document allows principal invasions or allows what would
normally be principal to be allocated to income, the income beneficiary’s
needs can perhaps be met using those techniques. Alternatively,
the trust could perhaps be converted to a unitrust.
Dick reviewed
the power to adjust under sections 103 and 104 of the Uniform
Principal and Income Act. He noted that some states
have gone beyond the uniform act by allowing income to be defined
as a unitrust amount, and he briefly reviewed the law of
those states: Delaware, Missouri, and New York (and he also reviewed
the provisions of the proposed legislation in Pennsylvania).
Dick identified
five situations where it is generally inadvisable to convert to
a unitrust: when a higher payout can be reached by creditors;
when the trust assets consist of illiquid interests which then
would have to be liquidated to pay out the unitrust amount and
which would require appraisals; when conversion in a generation-skipping
trust would unnecessarily increase the amounts to be paid out
to nonskip persons; where the trust is not likely to last for
a long time (because the advantages of a total return trust typically
increase with the length of the trust term); and where the current
beneficiary has a low tolerance for fluctuations in trust distributions.
Dick then turned
to a discussion of the federal income tax treatment of total
return trusts. The proposed regulations under section
643 give three examples of unitrusts, but none, which deal with
the power to adjust under sections 103 and 104 of the uniform
act. He discussed unitrust statutes (Delaware and the proposed
Pennsylvania statute) which contain ordering provisions which
would enable the trustee to distribute capital gains to the current
beneficiary, and he contrasted those statutes to the New York
and Missouri statutes which do not contain any ordering rules.
It is generally thought that statutes with ordering provisions
will be more likely to be recognized as allowing capital gains
to be distributed to the current beneficiary than statutes without
those provisions. There is also some doubt whether the exercise
of the power to adjust under sections 103 and 104 of the uniform
act will allow the trustee to distribute capital gains to current
beneficiaries for income tax purposes.
Dick reviewed
the GST consequences of total return trusts. He broke those
trusts down into three categories: grandfathered trusts, exempt
trusts, and nonexempt trusts. He cited two PLRs (200148034
and 200150016), which have given favorable treatment to grandfathered
trusts even in the absence of state statutory authority.
Dick cautioned
practitioners not to ignore the possible gift tax consequences
of converting income trusts to total return unitrusts, under
the possible broad scope of the Dickman case. He
also reminded the audience of the Cottage Savings case
and its potential reach to recharacterize reorganizations of trusts
as recognition events for federal income tax purposes. He
pointed out that the private letter rulings which have addressed
trust reorganizations have not ruled upon income tax consequences.
Dick suggested making disclosure for federal income tax purposes
under section 6501 to commence a three-year statute of limitations.
In some cases, conversion to a unitrust might be made contingent
upon obtaining a favorable private letter ruling, although this
will often be unsatisfactory because of the delay or because of
the possibility that a favorable ruling simply might not be issued.
Finally, Dick
drew the attention of the audience to the very detailed provisions
in his written outline that provide guidelines for the conversion
of an income trust to a unitrust which his employer (Wilmington
Trust Company) uses.
11:00 -11:45 a.m.
Generation-Skipping Transfer Tax Planning
Lloyd Leva Plaine
Lloyd Leva Plaine,
who hails from Washington, D.C., began her discussion with a summary
of the GST provisions in the 2001 tax legislation.
She said that the legislation was meant to be helpful, but that
in many cases taxpayers will want to elect out of the new automatic
allocation rules. She reviewed the new terms introduced
in the 2001 legislation indirect skips and GST trusts
and noted that the legislation applies to transfers made in 2001.
She cautioned the audience to be aware of this in the preparation
of 709s for 2001.
Lloyd began an
extended discussion of what GST trusts are under the new definition.
In general, the statute defines GST trusts (to which the automatic
allocation rules apply) too broadly. Some common trusts
which are included in the definition of a GST trust should be
elected out of the automatic allocation rules. She gave
an example of a spray trust, which provides for a parent and that
parent’s children until the parent’s death, which then holds the
trust property in trust until children reach a specified age.
Another example is an insurance trust which provides for distribution
of the trust assets on the later of the insured’s death or when
the insured’s child reaches a specified age (even if that age
is under the age of 46, which is the age used in the statute).
Lloyd pointed out that trusts which use hanging powers
where the amount that can be withdrawn in a particular year exceeds
the annual exclusion amount will not be excluded from the
definition of a GST trust, and thus GST exemption must be allocated
to these trusts if desired. On the other hand, if the amount
that can be withdrawn under the hanging power for a particular
year is not greater than the annual exclusion amount, the trust
will be a GST trust and the automatic allocation rules will apply.
Lloyd noted other reasons that you might not want the automatic
allocation rules to apply: such as where trust assets values
are expected to decline, or where a large distribution will be
made to nonskip persons. She noted that the automatic allocation
rules apply to trusts created before 2001 if the ETIP period for
such a trust ends after 2000.
You must elect out of the automatic allocation rules on
a timely filed form 709. Is an election to treat a trust
as a GST trust irrevocable? No one knows for certain. The new
automatic allocation rules have made it less likely that a failure
to make a timely allocation of GST exemption will cause more GST
tax to be paid. But they have created another problem, namely
that in many cases it will be inappropriate to have GST exemption
allocated to a particular trust or to have it allocated on a timely
basis. The failure to elect out of the automatic allocation
rules in those cases will cause GST exemption to be wasted.
Lloyd suggested an approach to dealing with an ETIP trust,
or with a trust where it is expected that children will survive
to an age specified as a condition precedent for distribution
to them, but where a child in fact dies before then. The
trust can provide for the assets to remain in a spray trust for
the benefit of the deceased child’s spouse or siblings (nonskip
persons) in addition to the deceased child’s descendants
for a fixed period of time such as six months. During that
period, GST exemption can be allocated to the trust, which can
then be divided in a qualified severance, so that the portion
for the deceased child’s descendants will have a zero inclusion
ratio and the other portions will have an inclusion ratio of one.
Lloyd also discussed the relief from late GST exemption allocations,
which is now available under section 9100. She described
that and the automatic allocation rules as being the two most
important parts of the legislation from the perspective of GST
tax planning. She noted that the IRS has indicated in PLR
9718020 that the 6-month extension period for a form 706 may
be available to extend the time in which to allocate GST exemption.
It is critical that the return or other filing includes
the statement "filed pursuant to section 301.9100-2"
written across the top. The existing section 9100 regulations
contain many definitions and set forth detailed rules when relief
will and will not be appropriate. She discussed the critical
need for affidavits, and how sometimes those affidavits might
work at cross purposes from the point of view of the practitioner
who might be accused of professional negligence.
Lloyd discussed the new rules in the 2001 legislation, which allow
retroactive allocation of GST exemption when a descendant
dies before the transferor. This is a beneficial change
in the law, but it isn’t clear how it ties in with the ETIP rules.
In conclusion, Lloyd advised that estate planning advisers take
a careful look at all existing trust arrangements and determine
how the new automatic allocation rules should apply. Because
of the applicability to transfers made in 2001, and to ETIP periods
terminating after 2000, that review has some degree of urgency.
Finally, as always, wills and trust agreements should be drafted
clearly having in mind an understanding of the new GST rules.
11:45 a.m. 12:30 p.m.
Special Needs Trusts
Sterling L. Ross Jr.
Terry Ross of
Mill Valley, California began his presentation with a discussion
of some of the basic rules that apply to planning with persons
with special needs, such as what SSI (supplemental security income)
is. He emphasized the need of traditional estate planning
lawyers (as opposed to that branch of the practice traditionally
referred to as "elder law") to have an understanding
of these rules. As an example, he postulated a client who
is well to do financially and who asks his or her estate planning
lawyer to prepare an estate plan which will preserve resources
for the client’s child with special needs. The typical estate
planning lawyer might be tempted to respond, "that’s something
that ‘elder law’ attorneys do." But a sophisticated
client will care about preserving his or her estate and to make
sure that the needy child receives as many public benefits as
possible.
For example, an estate planning lawyer should be prepared to question
a client who says that his or her child is receiving SSI and to
ask instead whether that child is receiving SSI or SSDI (as there
are no resource limits on entitlements to SSDI). He also
discussed the basic differences between first party special
needs trusts (settled by the recipient of public benefits) and
third party special needs trusts (settled by a parent or someone
other than the recipient of the person receiving benefits).
The object of a special needs trust is to make funds available
for a beneficiary without disqualifying that beneficiary from
governmental benefit. The laws differ from program to program
and from jurisdiction to jurisdiction.
Terry discussed
whether a "wide open" trust (one with the broadest
possible discretionary powers) would work as a special needs trust.
The basic answer, if the trust is a third party special needs
trust, is yes but the trust will not give guidance to the
trustee. Furthermore, no matter what the niceties of trust
law provide, administrators and other persons who work with public
benefits programs have come to have a de facto (and almost intuitive)
understanding of what a traditional "special needs trust"
(a term which Terry coined back in the 1970’s) is. In fact,
if a caseworker sees a trust with the phrase "special needs
trust" in its title, that’s as far as the caseworker will
usually go.
Terry stated that
in 27 years of his practice, there have been no fundamental changes
in the rules that govern third party special needs trusts.
On the other hand, there have been a myriad of changes governing
first party special needs trusts.
If a judge questions
the public policy justifications for creation of a third
party special needs trust, Terry observed that the parent of a
disabled child over the age of 18 (if the disabled child is 18
or older, parents’ assets are not counted as available resources
of the child) functions as a special needs resource. Why
should the death of that parent change the ability to preserve
that parent’s assets for the child’s special needs? In reality,
good planning merely substitutes a trust in the parent’s place
after the parent’s death.
Terry stated that
if there was one essential point for estate planning lawyers
to remember from his presentation, it is that the common terminology
now equates a special needs trust with a (d)(4)© trust.
A (d)(4)© trust (under OBRA 1993) must have a "payback"
provision which requires the trust to pay to the state the amount
of medical assistance on behalf of the beneficiary under that
state’s Medicaid program. Third party special needs trusts
do not have to include such a provision, and many such trusts
are being erroneously drafted with payback provisions included
because of the inaccurate equation of all special needs trusts
with (d)(4)© trusts.
2:00 5:15 p.m.
Special Sessions III and IV
A variety of workshops
were presented on Thursday afternoon (see listing below).
Your reporter
participated with Lauren Detzel (of Orlando, Florida) and Bob
Goldman (of Naples, Florida) in a workshop discussing recent
developments in Florida trust and estate law. The workshop
was very well attended, with perhaps as many as 400 people present.
Approximately 50 minutes was devoted to discussion of the planning
and administration aspects of Florida’s new elective share
law (which became effective on October 1, 2001). Approximately
20 minutes was devoted to discussion of the complete overhaul
of the Florida Probate Code. The chief point made
there was that many provisions that formerly were found in the
statutes are being moved to the probate rules promulgated
by the Florida Supreme Court, and that practitioners not versed
in day to day practice in Florida should not be misled into believing
that the statutes set forth all of the essential rules governing
administration of estates. Approximately 20 minutes was
devoted to a review of recent appellate cases of significance.
The chief case involved the assessment of punitive damages against
a corporate trustee for conflicts of interest and damages which
resulted to a trust when the lending side of the corporate trustee
made loans to the trust to engage in commercial ventures which
ultimately failed. The appellate court ruled that the attorney-client
privilege did not protect communications between the corporate
trustee and its attorneys in structuring and administering the
transaction.
III-A CASE STUDY Implementing Total Return Trusts
Richard W. Nenno
Ralph C. Wileczek
III-B Advanced LP, LLP and LLC Valuations
D. John Thornton
Curtis R. Kimball
III-C When Charitable Trusts Go Off The Track
Jerry J. McCoy
III-D Florida Law Update
Lauren Y. Detzel
Robert W.Goldman
Bruce Stone
See summary above.
III-E Future of the Profession
T. Randolph Harris
Zoe M.Hicks
Howard M. McCue III
Beth Clark Rodriguez
IV-A CASE STUDY Special Needs Trusts
Sterling L. Ross Jr.
IV-B Advanced LP, LLP and LLC Valuations
(repeat of Session III-B)
D. John Thornton
Curtis R. Kimball
IV-C What To Do With Life Insurance After the Hearse Leaves
With Your Client In It
Edward S. Schlesinger
IV-D How to Succeed in (the) Business (of Practicing) Without
Really Trying
Stephan R. Leimberg
Steve reports
on his own session as follows:
My talk was fully
entitled, GETTING THE FISH TO CHASE THE HOOK: How to Succeed in
(the) Business (of Practicing) Without Really Trying!
The thrust of
the talk was the importance of a systematic approach to letting
others know who you (and your firm) are - and how good you are!
IQ, hard work, caring for the client, knowledge of tax and other
laws, and even mastering tools and techniques will not alone suffice
in the harsh economic climate of this decade; practitioners must
pro-actively and ethodically determine who they want as clients,
how to reach them, how to attract them, and how to keep them.
Six steps are necessary to accomplish these objectives:
(1) Identify your target market,
(2) Expand your knowledge ("product") base,
(3) Develop a value-added strategy,
(4) Perpetually project positive imagery,
(5) Develop efficient planning systems, and
(6) Create a "quality control" culture.
The talk stressed
the importance of identifying, differentiating, interacting, and
customizing client contacts, of understanding the importance of
making it a practice to help others see and solve their problems,
of "sweating the small stuff", of understanding that
marketing is a "contact" sport and that the more often
we communicate with and are seen or heard by potential and present
clients, the more opportunities we have to help them.
We need to make it easy to contact and do business with us and
impossible to forget how to refer business to us.
Getting the fish
to chase the hook also requires that people see and think of you
as a human being and puts a premium on the ability to project
yourself as an individual and of giving the unexpected.
Because it is impossible for prospective clients (and even most
fellow professionals) to judge our real ability or experience,
the selection of a professional is more often based on perceptions
- and feelings and personalities - or exposure - than on true
value.
We must - more
often - and more tangibly - show we care about our clients and
those who provide us with clients - and learn what they want -
and thank and reward them more frequently and more effectively.
We must also create a focused, organized, written marketing plan
in which specific people in the firm are given specific tasks.
This requires a relationship oriented, effectively targeted, and
professional nurtured plan.
Finally, we need
to realize that until or unless we differentiate ourselves positively
and constantly in the minds of our targeted audience, no matter
how bright, dedicated, or experienced we are, we will remain an
easily replaced - or overlooked - or undervalued - commodity.
IV-E Income Taxation of Trusts and Estates
Mark L. Ascher
Linda B. Hirschson
_________________________________________________
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