Archive for January, 2017

Nappi-TedToday’s blog post about the Heckerling Institute is written by Withum’s Private Client Services Partner and Practice Co-Leader, Ted Nappi.

It was an enjoyable week in Orlando, Florida attending the Heckerling Institute on Estate Planning conference, catching up with old friends as well as making some new ones.

With the uncertainty of estate tax repeal and speculation of its replacement, the week was filled with predictions from all the experts. It will be an interesting year for the tax code and the estate planning profession.

Friday ended with two interesting sessions, the first was a review of when to claim Social Security benefits and a summary of the current rules in this area including the new one related to suspending benefits. Prior to 2016, a spouse could file for benefits and then suspend them. That filing would enable the other spouse to claim spousal benefits. Meanwhile, the suspended benefits would grow by 0.666% per month. After April 29, 2016, using the “file and suspend” method no longer creates a spousal benefit. The right of a spouse to claim spousal benefits depends upon the other spouse actually receiving benefits.

The second session was a review of the basis consistency and information reporting requirements for executors. The basis consistency provisions for property received from a decedent were enacted as Section 2004 of the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015, which extends funding of the “Highway Trust Fund” through October 29, 2015, and which was signed into law July 31, 2015. If the estate is required to file an estate tax return, the executor is required to report valuation information reports to both the recipients (i.e., “each person acquiring any interest in property included in the decedent’s gross estate”) and the IRS. Estates that file returns “for the sole purpose of making an allocation or election respecting the generation-skipping transfer tax” or portability are not subject to reporting requirements. The Form 88971 must be furnished to the recipients no later than 30 days after the return’s due date, including extensions (or 30 days after the return is filed, if earlier). The presenter provided a detailed analysis of proper values to report as well as who are the proper beneficiaries to receive the reporting forms.

If you have any questions or would like to discuss any of the topics covered in our blog posts from any of the five days, please do not hesitate to reach out to one of the Private Client Services partners that attended the conference this week (Hal Terr, Ted Nappi, Al LaRosa, and Don Scheier).

More from Withum’s Private Client Services Team soon!

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Scheier-DonToday’s blog post about the Heckerling Institute is written by Withum’s Estate & Trust Services Partner, Donald Scheier.

The Nuts and Bolts of Private Foundations (for Estate Planners)” – presented by Alan F. Rothschild, Jr.

This session focused on understanding the rules and intricacies of private foundations, their operations and how they differ from other types of qualified charitable tax exempt organizations, particularly public charities. These are some of the highlights of the presentation.

An income tax charitable deduction is allowed for contributions of cash or property to or for the benefit of a qualified charitable organization. The amounts of the charitable deductions are limited by 1) type of property contributed 2) type of organization the contribution was made to 3) taxpayer’s Adjusted Gross Income. Some examples of the more common qualified organizations for the purposes of the income tax deduction include the following:

  1. Federal, state, and other governmental units in the United States or its possessions.
  2. A domestic (U.S.) entity “organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes . . .”
  3. War veterans organizations.
  4. A domestic fraternal society, order, or association operating under the lodge system.
  5. A nonprofit cemetery company operated exclusively for the benefit of its members or for burial purposes.
  6. Foreign organizations with qualified domestic organizations or certain charities in countries with tax treaties permitting contributions.

In order to confirm that an organization is qualified you can access The IRS’ Exempt Organizations Select Check; an alternative source of this information is Guidestar, a nonprofit online database that draws from the IRS records, tax returns, and information submitted by charities themselves.

In addition to getting an income tax deduction, contributions made to tax exempt organizations whether classified as private foundations or public charities are deductible for estate and gift tax purposes; however, the allowable deduction for income tax purposes differs significantly.

An organization must qualify as a public charity (“PC”) by meeting certain criteria. The Internal Revenue Code does not expressly define the term “public charity,” but instead classifies all nonprofit entities by default as private foundations (“PF”), then provides “exceptions” to this default classification. PFs are further divided into private operating foundations and private non-operating foundations. Private operating foundations typically operate their own charitable programs, while private non-operating foundations’ primary activity is grant making.

Some of the benefits of establishing a private foundation are 1) Retain control – the donor and his or her family retains control over the investment of the assets, governance and operation of the entity and the ultimate selection of the charitable recipients. 2) Accelerated charitable deduction – contributions to a PF are deductible at the time of the gift, although the donor or his or her designee retains control over the assets. 3) Structured philanthropy – a family PF can provide a variety of non-tax benefits, including the building of a significant fund with which to accomplish greater philanthropic objectives, institutionalizing the family’s giving for present and future generations, and providing a buffer between the donor and prospective grantees.

Private Foundations have strict rules that must be followed as enumerated in IRC sections 4940-4945. These rules relate to a variety of areas and some examples are i) amount of annual distributions (5% of non-charitable assets), ii) types of investments it can make, iii) % of business holdings (excess business holdings), iv) types of transactions (taxable expenditures), v) dealings between certain persons (disqualified persons and self-sealing rules). A private foundation is also required to file an annual tax return on Form 990. Although a PF is tax exempt it is still subject to an annual excise tax of either 1% or 2% depending on the amount it distributes.

Knowing the Ropes and Binding the IRS when Fiduciaries are involved in Settlements and Modification: Income and Transfer Tax Issues every Fiduciary should know about – presented by Melissa J. Willms.

In this day and age where litigation and settlements are so prevalent, we were given an overview of the significant federal tax issues and problems that arise through various aspects of resolving estate and trust controversies.

Every aspect of estate and trust administration has one or more transfer tax (gift, estate, inheritance, and generation-skipping transfer tax) and fiduciary or personal income tax ramifications. Litigation and other dispute resolution measures in estate, trust, and guardianship administration are no different. Dealing competently with the tax ramifications is the responsibility of the fiduciary. Therefore, it is important for any party to actual or threatened litigation to consider the transfer and income tax consequences of any matter or issue that arises in any stage of the controversy.

The executor of a decedent’s estate is required to pay federal estate tax (and Generation Skipping Tax, if applicable) if the decedent died owning property worth more than the amount of his or her estate tax applicable exclusion amount. Living individuals, who make taxable gifts, must report those gifts annually, and pay any resulting gift tax (and Generation Tax, if applicable) if the gifts exceeds his or her remaining exclusion amount.
In general, private parties cannot simply agree as between themselves what the tax consequences of resolving their dispute will be. The shifting of valuable property rights as a result of litigation, or in compromising bona fide disputes between adverse parties, will have tax consequences to the parties that are largely dependent upon the nature of the underlying claim. Thus, for example, amounts received in settlement of a will contest are generally treated as amounts received in the nature of an inheritance, and as a result, are not subject to income tax. If a dispute is resolved by means of a settlement agreement instead of a final judgment, the IRS will generally respect the outcome so long as the settlement agreement resolves a bona fide dispute and the participants are bona fide claimants. Conversely, if there is no actual dispute, a settlement agreement that is a voluntary rearrangement of property interests may not be recognized by the IRS. Is the IRS bound by a state court adjudication of property rights when the United States was not a party to the state court action? To resolve any doubt, the taxpayer could seek a private letter ruling asking the IRS to approve the tax consequences of the action.

There are a number of obligations imposed by federal and state tax laws on an estate’s representative or a trustee in administering an estate or trust such as Duty to File Tax Returns and Duty to Pay tax Liabilities. Federal taxing authorities, to a large extent, use executors as their collection agents. They do so primarily through the notion of “fiduciary liability.” Pursuant to the concept of fiduciary liability, the executor is personally liable for tax liabilities of the decedent, at least to the extent that assets of the decedent come within the reach of the executor. More broadly, fiduciary liability may be personally imposed on every executor, administrator, assignee or “other person” who distributes a living or deceased debtor’s property to other creditors before he or she satisfies a debt due to the United States. While a liability is normally focused upon a court-appointed executor where one exists, where there is none, a wider net may be cast.

On its face, Section 3713(a) seems to impose absolute liability upon an executor. It essentially provides that debts due to the United States must be paid before the debts of any other creditor. No exceptions are made in the statute for the payment of administrative expenses or for the satisfaction of earlier liens out of the debtor’s property or estate. However, courts and the IRS have held that this apparent absolute priority is subject to a number of exceptions. First, costs of administering an estate may be paid before a tax claim. These expenses include court costs and reasonable compensation for the fiduciary and attorney. The theory for permitting the payment of these items is that they were not incurred by the debtor but are for the benefit of all creditors, including the United States. However, payments of state income taxes, general creditors, and other claims constitute the payment of debts in derogation of the government’s priority. . Likewise, distributions to beneficiaries are not “charges” against the estate, but are treated as the payment of a “debt.” In addition, a distribution to the executor-beneficiary cannot be treated as the payment of “administration expenses” unless the executor demonstrates that the expenses were used for that purpose. As a result, liability arises if the executor makes distributions to beneficiaries from an insolvent estate before payment of estate or gift taxes.

An executor may request a discharge from personal liability for estate, income, and gift tax liabilities of the decedent (which gives the IRS nine months to notify the executor of the amount of the relevant tax) by making a request for such a discharge (IRS Form 5495, “Request for Discharge from Personal Liability Under Internal Revenue Code Section 2204 or 6905″) pursuant to Code Section 2204 (as to estate tax), or 6905 (as to income and gift tax).

For estate tax returns filed prior to June 1, 2015, the IRS routinely issued an Estate Tax Closing Letter confirming that if a request for discharge of personal liability under Code Section 2204 was made and the executor paid the amount shown as due, the executor was released from personal liability. The letter further provided that the IRS would not reopen the return for further review absent (1) evidence of fraud, malfeasance, collusion, concealment or misrepresentation of a material fact, (2) a clearly defined substantial error based upon an established IRS position, or (3) a serious administrative error. In June, 2015, the IRS issued an administrative announcement indicating that, commencing with estate tax returns filed on or after June 1, 2015, it will only issue estate tax closing letters upon request by the taxpayer. Taxpayers are advised that they should wait at least four months after filing the return before requesting a closing letter in order to allow sufficient time for the IRS to process the return.script of Tax Return,” and such transcript can serve as a substitute for a closing letter.

The income tax consequences of all settlements and controversies must be analyzed in detail. Although the general rule that an inheritance is not taxable there could be exceptions due to the nature of the controversy and the type of settlement. Broadly speaking, income earned by a trust or estate in any year is taxed to the trust or estate to the extent that the income is retained, but is taxed to the beneficiaries to the extent that it is distributed to them. The Code sets forth a detailed method to determine which trust or estate distributions carry income out to the beneficiaries. Thus, the structure of the payments or distribution from a trust or estate may subject the beneficiary to income tax.

Reprise! The State Taxation of Trust Income Five years later – presented by Richard W. Nemmo

This session clearly indicated the major difference of how various States tax trusts and how they are defined in the different jurisdictions.  In general, States tax all income of a “Resident Trust” but just the “source income” of a “Nonresident Trust. They define “Resident Trust” in several different ways, however, leading to inconsistent income-tax treatment of the same entity, often resulting in double (or more) state income taxes being imposed on the same income. Moreover, recognizing the constitutional limits on their ability to tax, some states do not tax Resident Trusts in certain circumstances.

Practitioners must consider the state income-tax treatment of the trusts that are created for their clients into their estate-planning recommendations. They must take steps to assure that the income of these trusts is not taxed by any state, or by no more than one state in any event. Trustees of trusts that do not already reflect this planning must consider whether there is any way to reduce the incidence of state income taxation on the trusts’ income. Failure of the estate planner and the trustee to consider these issues may give rise to claims of malpractice or breach of the trustee’s fiduciary duty of competence.

All income of a trust that is treated as a grantor trust for federal income-tax purposes normally is taxed to the trustor, distributed ordinary income of a non-grantor trust generally is taxed to the recipient, and source income of a trust (e.g., income attributable to real property, tangible personal property, or business activity) usually is taxed by the state where the property is situated or the activity occurs.

In summary – The income of trusts based on one or more of five criteria: (1) the residence of the testator, (2) the residence of the trustor, (3) the place of administration, (4) the residence of the trustee, and (5) the residence of the beneficiary. Only the testator, trustor, or beneficiary can change residence for criteria (1), (2), and (5). But, it is possible to control the place of administration (criterion (3)) and the residence of the trustee (criterion (4)).

 If it has been determined that a trust has paid tax erroneously, the trustee should request refunds for all open years.

Feel Good Doing Good:  Impact investing when Settlors and Beneficiaries want to do more than make Money – presented by Susan N. Gary

This session’s focus was on clients who want to make sure that they are doing the “right thing”. How can they make sure that the directors of a charity align investment of the charity’s endowment with the mission of the charity? Can they do that and still comply with their fiduciary duties to the charity? Does the expected return on the investments matter? How can a new client draft a will with trusts for his children having the trustees of the trusts invest only in companies with good labor practices and with good ratings on corporate governance?

Explanation and analysis of some of the different types of investment strategies that consider social and environmental factors in addition to traditional financial analysis are shown below:

  • Socially Responsible Investing (SRI): is a type of investing that combines financial goals with social goals.
  • Impact Investing: often used in place of SRI, as a generic term to encompass various types of investing that combine traditional financial goals with social and environmental goals.
  • Values Based Investing, Triple Bottom Line Investing, Ethical Investing, Green Investing: Used without precision and somewhat interchangeably with SRI and impact investing. A variety of additional terms convey the idea of combining traditional financial goals with social or environmental goals.
  • Blended Value: Refers to an investment strategy that seeks all three forms of value. Targeted impact investing seeks blended value, as do mission-related investing and program related investing.
  • Mission-Related Investing (MRI): are terms used to describe investments that carry out a charity’s mission.
  • Program Related Investments (PRIs): Investments entered into by a private foundation primarily to carry out a purpose of the private foundation. A PRI is an investment entered into primarily for a program-related reason, but one that will generate some amount of financial return.
  • ESG Investing: (also called ESG integration) combines traditional financial analysis with material information about environmental, social and governance factors that may not be reflected in usual market data. Use of ESG integration has grown in recent years.

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Alfred LaRosaToday’s blog post about the Heckerling Institute is written by Withum’s Private Client Services Partner, Alfred La Rosa.

In the morning we heard from Victoria B. Bjorklund, of Simpson Thacher & Barlett LP NYC, on how to advise clients seeking U.S. tax deductions for charitable donations where those donations will be expended outside of the United States. The presentation also reviewed the “American Friends of” structure and the cross-border donor advised fund. Circumstances where the IRS may disallow the deductibility of cross-border charitable contributions and the loss of an entity’s exemption were addressed.

The rules governing charitable-contribution deductions for federal income-tax, gift-tax, and estate-tax contributions can be quite complex and confusing, especially when such donations are expended outside the U.S. Therefore, we must be careful when advising clients on cross border gifts or grants. Here are some of the issues, concerns and “quirks” that were discussed during the presentation.

  • The Code does not allow U.S. persons any income tax deduction for direct contributions to foreign charities. Section 170(c) of the Code provides that an income tax deduction is permitted only if the donee organization was created or organized in the United States or any possession thereof, or under the law of the United States, any state, the District of Columbia or any U.S. possession. Unless there is a treaty exception, if a U.S. individual wants a charitable income tax deduction for funds designated for a foreign charity, the donation must be made to a U.S. tax exempt organization that operates abroad or can make grants abroad.
  • The IRS may view a U.S. organization as a mere conduit and deny or revoke its tax-exempt status if it does not exercise control or discretion over donations and simply pays it over to a non-U.S. charity. The U.S. organization should be independent of and not dominated by its foreign affiliate in its decisions-making process. The U.S. charity must not be depicted as the agent of the foreign charity. “Conduit means no deduction” and has to be avoided at all costs!
  • Foreign charities wishing to establish a base of support in the United States often seek to establish U.S. charities to solicit contributions from U.S. donors to support their causes. The U.S. affiliates of such foreign charities are often referred to as “Friends of” organizations, which must be operated independently of the foreign organizations they support and must meet various other requirements. “Friends of’’ organizations defeat the conduit problem.
  • The U.S. income tax treaties with Canada, Israel and Mexico contain more generous provisions regarding deductions for gifts by U.S. persons to charities in the foreign jurisdiction. These treaties allow U.S. donors to deduct donations to charities in the contracting state against their foreign-source income from that jurisdiction
  • In addition to “American Friends of” grant-making organizations, there are several sponsoring organizations of pre-approved projects, fiscal sponsorship or “donor advised funds” which make grants to foreign charitable organizations that have been determined in advance to make certain that they are suitable recipients. 
  • Where the donation is to be used abroad, the Treasury Department has determined that, to be deductible by a corporate donor, the gift must be paid to an organization created or organized under the laws of the United States or its territories, so long as the recipient organization is itself a corporation rather than a trust.
  • In contrast, the estate and gift tax deduction provisions of the Code look exclusively to the purpose for which the contribution will be spent without regard to the geographic location of the expenditure or the jurisdiction in which the recipient organization was created. Therefore, estate and gift tax charitable deductions are not necessarily affected by geography.
  • When dealing with contributions from a Private Foundation to a Foreign Charity it is imperative that the Foundation managers perform their necessary due diligence and make certain that such contributions are deemed qualified distributions. Federal tax law allows private foundations either to make an “equivalency determination” or to exercise “expenditure responsibility” in order to make a grant to a non-U.S. organization without incurring a taxable-expenditure excise tax.


During session two, Michelle B. Graham, from Withers Bergman LLP, provided a very informative presentation addressing the various U.S. income tax and estate & gift tax rules that apply to non-U.S. persons who invest in the United States. The session addressed tax treaty planning and other issues that should be considered when planning for non-U.S. persons who invest in the United States. 

  • Although a majority of the presentation focused on U.S. Tax concepts, Ms. Graham did address a number of non-tax considerations when advising and accepting an international client. Professionals should make sure they review their foreign clients’ intake procedures and exercise a higher threshold of due diligence before accepting an international client. “We need to understand the source of their income, where and how their money/wealth was generated, if they are compliant in their own country, do conflicts of law issues exist with the foreign country they are associated with? Etc.” 
  • Look at the individual from an income tax perspective. Are they a U.S. citizen or resident? If so, they are taxed on their worldwide income.
  • If they are not a U.S. citizen or resident, what income would be subject to income tax? Non-resident aliens are generally taxed in the same manner as a U.S. citizen or resident on all income that is “effectively connected” with the conduct of a trade or business in the United States.
  • Understand if any foreign income and estate & gift tax treaties are applicable.
  • While the determination of U.S. citizenship is generally very straightforward, the concept of residence differs for Federal income tax and Federal estate and gift tax purposes


While U.S. citizens and residents are subject to U.S. estate, gift and generation-skipping transfer tax on their worldwide assets, nonresident aliens are subject to federal estate taxes only on assets situated in the U.S. at the time of death. Therefore, a nonresident’s gross taxable estate is limited to U.S. situs assets, which includes U.S. real property, tangible assets located in the U.S. (note: currency and cash are considered tangible personal property), stock in a U.S. corporation (location of shares have no relevance), etc.

  • Nonresident aliens are subject to federal gift taxes only with respect to transfers by them of real or tangible property situated in U.S. One simple estate planning technique is to have the non-resident gift any stock in a U.S. corporation prior to his/her death.
  • Further, nonresidents are only subject to the Federal generation-skipping transfer tax with respect to transfers that are subject to the Federal estate or gift tax. Whether the skip person is a U.S. citizen or resident is irrelevant.


Before lunch, Dennis I. Belcher and Ronald D. Alcott of McGuireWoods, LLP from Richmond, Virginia, Samuel A. Donaldson (professor of Law at Georgia State University in Atlanta), Amy E. Heller from McDermott Will & Emery LLP in New York and John w. Porter from the Houston office of the law firm of Baker Botts LP, served on the Questions and Answers Panel to answer and comment on numerous questions from the audience. The following are just some of the questions, concerns and comments that were addressed during this very informative session:

  • A great deal of time was spent discussing the potential repeal of estate tax and addressing certain planning techniques that may allow for some flexibility until we have better guidance on what is going to happen with the estate taxes (including use of QTIPs, Clayton QTIPs, Credit Shelter Trusts, disclaimer trusts and portability).
  • Practitioners may be interpreting the proposed regulations under Section 2704 too broadly in that the purpose of the regulations was not intended to totally eliminate all marketability and minority discounts. There will be modifications to these proposed regulations which will clarify the applicability of these restrictions.
  • In order to get the statute of limitations running, the panel felt that it is critical to disclose on a gift tax return transfers with valuation discounts, and that the valuation of such transfers may be inconsistent with the proposed regulations under Section 2704. “Over disclose – do not under disclose”.
  • In order for a trust to take a charitable deduction, it must be made pursuant to the governing instrument. The IRS has challenged the validity of state modifications/reformations to a trust instrument in allowing the charitable deduction (on the basis that the deduction was not made pursuant to the original instrument).
  • Beware of the potential gift tax implications if a trust reformation impacts on a beneficial interest in the trust.
  • The panel addressed various questions pertaining the basis consistency rules and the filing of the Form 8971. The filing requirements were reviewed and concerns were raised as to the potential liability to fiduciaries if they failed to report an asset on the Form 8971 or if the value assigned to an asset on the Form 8971 was too low..
  • Several questions were raised about the potential capital gains tax at death (replacing the estate tax). The panel has no idea what will ultimately pass, but they did discuss how the Canadian system operates, and how it taxes appreciation at death. They also addressed the complexities that we may face here in the U.S. if such a regime is passed.
  • The requirement to also report charitable gifts on gift tax returns were addressed (although many practitioners do not follow this requirement). The panel addressed concern that if charitable gifts are not reported on a gift tax return, they exceed the annual gift tax exclusion amount (currently $14,000) and represent more than 25% of the total taxable gifts on the gift tax return, the statute of limitations may be extended to six years (refer to Sec. 6501(e)(2)). Therefore, this practice is advisable especially in situations where there might be other gifts (discounts, GRATS, etc.) on that gift tax return that can be scrutinized by the IRS.


Stay tuned for more from the Heckerling Institute as the week continues!

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Nappi-TedToday’s blog post about the Heckerling Institute is written by Withum’s Private Client Services Partner and Practice Co-Leader, Ted Nappi.

We have picked a few sessions from the day that have some interesting topics and issues that may affect our clients.

Placebo Planning by Jeffrey Pennell

The first session of the day dealt with whether a technique is simply a placebo (it does nothing beneficial but it also is not harmful), or worse (it doesn’t do what it is represented to accomplish and it can be detrimental to the client). This concept is true about any transfer that entails acceleration of gift tax, in lieu of estate tax, particularly because step-up in basis at death may be more desirable than any potential wealth transfer tax saving. The speaker focused mainly on the concept of the “Estate Tax Freeze”. If you run the numbers under various alternatives such as electing portability on the first death, maximizing the marital deduction, or accelerating the payment of estate tax on the first death, there doesn’t appear to be any significant tax savings under each plan with a flat estate tax rate (40%).

The presenter also touched on the topic of what may be a good asset to have at death if we see a repeal of the estate tax and a change to a carryover basis regime. In this case, life insurance may be a very good asset class. The appreciation in the policy would be converted to a death benefit paid in cash to the estate or beneficiary. The basis of the cash death benefit would be the full value received and there would be a step up / automatic elimination of the built in appreciation in the policy without use of any potential exemption that may be available.

Getting Gratifying GRAT Results by Carlyn McCaffrey

This session focused on techniques for enhancing the likelihood that a GRAT will produce a positive result at the end of the term, including the use of split-interest and leveraged GRATs. It also explored the possibilities of protecting a GRAT’s positive result from the generation-skipping transfer tax. The presenter discussed the use of short term GRATs to minimize the mortality risk as well as separate GRATs for separate asset classes to maximize the potential for positive returns passing to the beneficiaries.

Retirement Accounts in First and Second Marriages: The Fun Begins by Christopher Hoyt

After summarizing the rules governing required distributions from inherited retirement accounts, the presentation examined the estate planning and income tax challenges of funding a trust with retirement assets, especially a trust for a surviving spouse. It then explored the added challenges of a second marriage and a blended family.

In the discussion of IRA rules, there was a new revenue ruling that should be of interest to some clients. It relates to relieve when a taxpayer misses the date for rolling over an IRA distribution within the 60-day rule. If a person misses the 60-day deadline, he or she is presumed to have a taxable distribution. A taxpayer can apply to the IRS for a waiver, but that requires paying the IRS a $10,000 fee. An important development in 2016 is that the IRS will now permit a taxpayer self-certify to the retirement plan administrator that the delay was caused by any one of eleven reasons. The parties can operate as if the transfer had been a valid rollover.

Under Rev. Proc. 2016-47, 2016-37 I.R.B. 346. The eleven eligible reasons for missing the 60-day deadline are: (1) an error was committed by the financial institution receiving or making the contribution; (2) the check was misplaced and never cashed; (3) the distribution was deposited into and remained in an account that the taxpayer mistakenly thought was an eligible retirement plan; (4) the taxpayer’s principal residence was severely damaged; (5) a member of the taxpayer’s family died; (6) the taxpayer or a member of the taxpayer’s family was seriously ill; (7) the taxpayer was incarcerated; (8) restrictions were imposed by a foreign country; (9) a postal error occurred; (10) the distribution was made on account of an IRS levy and the levy proceeds were returned to the taxpayer; or (11) the retirement plan that made the distribution delayed providing information that the receiving plan or IRA required to complete the rollover, despite the taxpayer’s reasonable efforts to obtain the information.

Some planning options discussed:

  1. Retirement accounts for spouse; life insurance for children – One arrangement is to leave all retirement assets to the surviving spouse, but to purchase life insurance so that there is something from the children from a prior marriage to inherit.
  2. Divide retirement accounts – spouse & children – Another strategy is to split the retirement assets between the spouse and the children from a prior marriage. Although this can be done fairly easily with IRAs, ERISA will prevent such a splitting of 401(k) accounts unless the spouse executes a qualified consent.
  3. All retirement accounts for children – Section 401 – need spouse’s waiver – It will not matter who a married plan participant named as the beneficiary of a QRP account. If the individual was married on the date of death, the surviving spouse is entitled to the entire account balance. The one exception is if the surviving spouse executes a qualified waiver. In that case the retirement assets will be distributed to the individuals, trusts or estate that were named as the beneficiaries of the account.
  4. Two-generation CRT for spouse and children from prior marriage – A significant challenge exists when there is a sequence of beneficiaries of a retirement plan account (e.g., “to A for life, then to B for life”). The stretch IRA regulations require distributions to be made from an IRA or a QRP account over a time period that does not extend beyond the life expectancy of the oldest beneficiary. The IRA will likely be depleted when the oldest beneficiary dies. Whereas an IRA cannot make distributions over the lifetimes of the younger beneficiaries, a charitable remainder trust (“CRT”) can.

A charitable remainder trust pays distributions to individuals over their lifetimes (or for a term of years), and then terminates with a distribution to one or more charities. Like an IRA, a CRT pays no income tax. Thus there will be no income tax liability when an IRA is completely liquidated after a person’s death with a single distribution to a CRT. Unlike an IRA, the term of a CRT can last until the last of the multiple beneficiaries dies, which will usually be the youngest beneficiary. This may be beneficial if Congress eliminates the ability to have a stretch IRA.

Warming Up to Preferred Partnership Freezes— Multiple Planning Applications with This Versatile Technique by Todd Angkatavich

This presentation focused on the ways to use Section 2701 compliant preferred partnerships to enhance planning. The presenter discussed ways to combine preferred partnerships with GRATs, QTIPs, GSTT exempt trusts, carried interest transfer planning and more.

In its most basic form, a preferred “freeze” partnership (“Freeze Partnership”) is a type of entity that provides one partner, typically a Senior Family Member, with a fixed stream of cash flow in the form of a preferred interest, while providing another partner with the future growth in the form of common interests in a transfer-tax-efficient manner. Preferred Partnerships are often referred to as “Freeze Partnerships” because they effectively contain or “freeze” the future growth of the preferred interest to the fixed rate preferred return plus its right to receive back its preferred capital upon liquidation (known as the “liquidation preference”) before the common partners. The preferred interests do not, however, participate in the upside growth of the partnership in excess of the preferred coupon and liquidation preference, as all that additional future appreciation inures to the benefit of the common “growth” class of partnership interests, typically held by the younger generation or trusts for their benefit.

With Great Power Comes Great Liability: Helping Trustees Avoid Pitfalls in Common Transactions by Lauren Wolven

Trustees are often asked to engage in loans to related parties or beneficiaries and other transactions with related trusts, closely-held assets and real estate. For a trustee who is not careful, even a seemingly simple act like making a loan to a beneficiary can lead to liability. This session explored methods to reduce fiduciary risk in common trust transactions.

When dealing with loans, there are a few basic guidelines for making loans to beneficiaries that, if they are followed, should protect any trustee. Of course, real life and trust purposes may make deviating from these guidelines perfectly sensible in certain circumstances. Before a trustee decides to move forward with a loan, it should consider whether it falls outside these guidelines and, if so, whether it can justify that deviation.

  • The loan would be considered prudent if it were being made to a third party.
  • With the loan in the trust portfolio, the duty to the beneficiaries is property balanced with the duty to make prudent investments.
  • If the loan would not necessarily be a prudent loan made in the everyday course of business, and if the trust instrument does not expressly authorize the “imprudent” loan, the other beneficiaries have consented in writing to the transaction in a document that also releases the trustee from liability for making the loan.

In states that allow virtual representation agreements, it is possible to get beneficiaries with current and remainder interests to sign off on the trustee’s actions either by approving of the action itself or by clarifying language in the trust that would allow the trustee to take such action. The documentation of beneficiary approval should contain a release of the trustee for engaging in the transaction. If one or more necessary parties to the approval is unwilling to release the trustee, then that is a signal to the trustee that it should reconsider its willingness to make the loan. In fact, that red flag is precisely the circumstance that should cause a trustee with authority to make a distribution to the beneficiary to revisit whether making a loan really is the best course of action.

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HalTerr-12-09Today’s blog post about the Heckerling Institute is written by Withum’s Private Client Services Partner and Practice Co-Leader, Hal Terr.

After the ball drops in Times Square on New Year’s Eve and New Year’s resolutions are made, many estate planning professionals finalize their travel plans to Orlando during the second week of January.   No, it is not to see Mickey and Minnie Mouse at Disney World or check out the latest ride at Universal Studios – it is to attend the University of Miami’s 51st Annual Hecklering Institute on Estate Planning, the largest Continuing Legal Education conference in the country. Over 3,000 attorneys, accountants, trust officers and other financial advisors gather for a week in Orlando, Florida to listen to the top speakers in estate planning.

The conference kicked off with a panel discussion on recent developments by Dennis Belcher, Ronald Aucutt and John Porter.   In addition, Catherine Hughes from the IRS joined the panel this year.   I have to give Catherine Hughes a lot of credit for presenting in front of this crowd and did a great job discussing the issues when the IRS has to implement the legislation passed by Congress or executive orders from the executive branch.   The two topics of primary interest during this session were the proposed regulations under IRC 2704 relating to valuation discounts and the possible future repeal of the estate tax.

According to Catherine Hughes, over 10,000 comments were received by the IRS in response to the proposed regulations under IRC 2704.   According to Catherine Hughes, it was not the intention of the IRS to eliminate all minority discounts with these regulations.   Although many of the abuses of valuation discounts were with non-operating entities funded with marketable securities, these regulations do not distinguish between operating and non-operating entities.   These regulations created a new group of disregarded restrictions to be ignored to calculate discounts, such as restrictions to limit an individual’s right of liquidation.   In addition, for a non-family interest to be considered in valuations of family-controlled entities the interest should be significant to the family, significant to the non-family holder and the interest should be a long-term interest of the non-family holder, more than three years.   Catherine Hughes stated that given the numerous amounts of the comments that the regulations will not become effective by January 20th, President-elect Trump’s inauguration.

For 2016 gift tax returns, for those individuals who made gifts after the date of the proposed regulations that are subject to valuation discounts preparers making disclosures of the transactions may consider disclosing that the valuation does not consider the impact of the proposed Section 2704 regulations, in light of the fact that the regulations do not apply to transfers made before the regulations are finalized.  To start the three year statute of limitations for gift tax returns adequate disclosure must include “[a] statement describing any position taken that is contrary to any proposed, temporary or final Treasury regulations or revenue rulings published at the time of the transfer”.

The discussion then moved to predictions and possibilities of the proposed regulations.   Recently there has been proposed legislation, both in the House of Representative and Senate, not to have the regulations become final.   As one of the panel members noted, tax law is in danger when a member of Congress can cite the Code Section by name.   In addition, the proposed regulations were instituted under the direction of the Treasury Department of President Obama which the incoming President Trump has stated he plans to remove those executive orders burdensome to business.   However, if these regulations do not become final then the valuations rules will still have the prior uncertainty of these rules based on case law history.

The conversation then turned to the prospect of the repeal of the estate tax law.   As Dennis Belcher stated, things are never as good or as bad as it seems.   Both the President-elect Trump and Republican Congressional blueprint propose to repeal the estate and generation skipping tax.   However, both proposals are silent to the gift tax, which is seen as the backstop to protect the integrity of the income tax.  In connection with the repeal of the estate tax, President-elect Trump’s proposal calls for the elimination of step-up in basis for estates over $10 million where this is not mentioned in the Congressional proposal.

It is expected that there will be some tax reform enacted this year since the Republicans now control Congress and the executive branch.   However, given that the Republicans do not have a 60 vote majority in the Senate; it is likely that any tax reform legislation will need to be passed as part of a Budget Reconciliation bill.   While the estate tax only applies to .2% of the population of the U.S. and provides less than 2% of the revenue of the budget, President-elect Trump’s proposal of repeal of the Affordable Care Act, increased infrastructure spending and immigration reform are all significant expenditures to the budget which will need revenue to pay for.   Estate tax repeal was part of the 2001 tax law which sunset in 2010 and was only effective in 2010.   When the 2001 tax act was passed, there was an expectation of future budget surpluses.   This is not the current environment today where there are projected deficits each year in the near future.   It is unknown where estate taxes repeal ranks in order of importance to the President-elect and Congress when considering business tax reform, international tax reform and repatriation of money overseas and individual tax reform.   Also to be considered is the optics of the estate tax repeal when the President and proposed members of his cabinet are billionaires whose families will benefit significantly of estate tax repeal.   As Ronald Aucutt noted, the repeal of the estate tax would require political capital that may be needed to be used elsewhere to pass tax reform.  The Republicans will want to try to have some Democratic votes on the tax reform legislation as not to have the same appearance when the Democrats had no Republican votes when the Affordable Care Act was enacted.  To have the votes of the Democrats, will estate tax repeal be excluded from the tax reform legislation? We will need to wait and see.

Estate tax repeal is tied to the basis of assets at the death of the individual.   If step-up in basis is eliminated for all estates, will that create a death tax to be imposed on significantly more individuals then the current estate tax?   A portion of President-elect Trump’s constituency were the old Regan Democrats in the Rust Belt that felt that the political environment in Washington was not in their best interest and contributed to the income inequality in the country.   How will these voters feel with the estate tax repeal to benefit only the very wealthy and actually create a new death tax if there is no step-up in basis?

So then what should individuals do in preparing their estate plans?  It is expected that the Republicans would want to pass tax reform legislation before the August recess.   As such, most individuals should wait and see if estate tax repeal is included in the tax reform legislation.   Estate documents should be drafted to be as flexible as possible, including marital “QTIP” trusts that will or will not be elected depending on the estate tax law at the time of the individuals passing.   If individuals want to make transfers to shift appreciation from their estate, these individuals should only consider those estate freeze techniques that do not trigger a gift tax such as GRATs or sales to Defective Grantor Trusts.   These transfers should include formula clauses to prevent the imposition of a gift tax in case of a challenge to the valuation of the transfer.

Well that’s all for today!  More commentary to come from the other Withum Estate Tax Partners attending the conference, stay tuned.

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