FOR LIVE PROGRAM ONLY Allocating Capital Gains to Distributable Net Income in Estates and Trusts: Achieving Optimal Tax Treatment THURSDAY , FEBRUARY 14, 2019, 1:00-2:50 pm Eastern IMPORTANT INFORMATION FOR THE LIVE PROGRAM This program is approved for 2 CPE credit hours . To earn credit you must: • Participate in the program on your own computer connection (no sharing) – if you need to register additional people, please call customer service at 1-800-926-7926 ext.1 (or 404-881-1141 ext. 1). Strafford accepts American Express, Visa, MasterCard, Discover . • Listen on-line via your computer speakers. • Respond to five prompts during the program plus a single verification code . • To earn full credit, you must remain connected for the entire program. WHO TO CONTACT DURING THE LIVE EVENT For Additional Registrations : -Call Strafford Customer Service 1-800-926-7926 x1 (or 404-881-1141 x1) For Assistance During the Live Program : -On the web, use the chat box at the bottom left of the screen If you get disconnected during the program, you can simply log in using your original instructions and PIN.
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Allocating Capital Gains to Distributable Net Income in Estates and Trusts FEBRUARY 14, 2019 Jeremiah W. Doyle, IV, Senior Wealth Strategist BNY Mellon Wealth Management, Boston jere.doyle@bnymellon.com Jacqueline Patterson, Partner Buchanan & Patterson, Los Angeles jpatterson@bplawllp.com
Notice ANY TAX ADVICE IN THIS COMMUNICATION IS NOT INTENDED OR WRITTEN BY THE SPEAKERS’ FIRMS TO BE USED, AND CANNOT BE USED, BY A CLIENT OR ANY OTHER PERSON OR ENTITY FOR THE PURPOSE OF (i) AVOIDING PENALTIES THAT MAY BE IMPOSED ON ANY TAXPAYER OR (ii) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY MATTERS ADDRESSED HEREIN. You (and your employees, representatives, or agents) may disclose to any and all persons, without limitation, the tax treatment or tax structure, or both, of any transaction described in the associated materials we provide to you, including, but not limited to, any tax opinions, memoranda, or other tax analyses contained in those materials. The information contained herein is of a general nature and based on authorities that are subject to change. Applicability of the information to specific situations should be determined through consultation with your tax adviser.
Including Gains in Distributable Net Income Jeremiah W. Doyle IV, Esq. Jacqueline A. Patterson, Esq. Senior Vice President Buchanan & Patterson, LLP BNY Mellon Wealth Management 1000 Wilshire Blvd. One Boston Place Suite 570 Boston, MA Los Angeles, CA 90017 Jere.doyle@bnymellon.com jpatterson@bplawllp.com February, 2019 5
What We’ll Cover • Background • The Problem – Generally, Gains Are Taxed to the Trust or Estate • Reg. 1.643(a)-3(b) – Three Ways To Include Gains in DNI – Method 1 – Method 2 – Method 3 • In-Kind Distribution Under Section 643(e) • Grantor Trust • Conclusion 6
Background • Traditionally, the income beneficiary of a trust would be paid and taxed on the trust accounting income (e.g., interest and dividends) and capital gains would be allocated to principal and taxed to the trust. • Changes have occurred in investment world – Low yield on equities and bonds – Trusts investing for total return per the Prudent Investor Act • Two changes in determination of definition of “income” – Adoption of “power to adjust” under Section 104 of the UPIA – Adoption of unitrust statutes • Changes in tax rates trusts and estates versus rates for individuals – Estates and trusts reach 20% maximum rate for long-term capital gains, the 37% bracket for ordinary income (including short-term capital gains) and the 3.8% surtax at $12,750 of taxable income (2019) – Individuals reach maximum rate for long-term capital gains and the 3.8% surtax at higher thresholds 7
Income Taxation of Trusts and Estates Code Outline • PART I, SUBCHAPTER J – Subpart A - Sec. 641-646 - General Rules – Subpart B - Sec. 651-652 - Simple Trusts – Subpart C - Sec. 661-664 - Complex Trusts and CRTs – Subpart D - Sec. 665-668 - Accumulation Distributions – Subpart E - Sec. 671-679 - Grantor Trusts – Subpart F - Sec. 681-685 - Misc. Rules • PART II, SUBCHAPTER J – Sec. 691-692 - Income in Respect of a Decedent 8
2019 Fiduciary Income Tax Rates Over Not Over 0 2,600 10% 2,600 9,300 24% 9,300 12,750 35% 12,750 37% 9 9
2019 Preferential Rates for Qualified Dividends and LTCG for Estates and Trusts Over Not Over 0 2,650 0% 2,650 12,950 15% 12,950 20% 10 10
Background - Income Taxation of Trusts and Estates • Income Taxed to Either Entity or Beneficiary – If income is accumulated and not deemed distributed, it is taxed to the trust or estate – If income distributed : • Trust gets deduction for amount of distribution, limited to DNI • Beneficiary accounts for income distributed on his own tax return, limited to DNI 11
Background - Income Taxation of Trusts and Estates - Distributable Net Income (DNI) • Distributable Net Income (DNI) governs: – Amount of trust or estate’s distribution deduction – Amount beneficiary accounts for on his own return – Character of income in beneficiary’s hands 12
Background - Income Taxation of Trusts and Estates DNI DNI acts as ceiling DNI acts as ceiling on entity’s on amount distribution beneficiary deduction accounts for on his return Trust/Estate Beneficiary 13
Background - DNI - Sec. 643(a) • Start With Taxable Income and . . . – Add back the distribution deduction – Add back the personal exemption – Subtract out capital gains/ add back capital losses allocable to principal (except in the year of termination) – Subtract out extraordinary dividends and taxable stock dividends allocated to corpus for simple trust – Add back net tax-exempt income 14
Background - DNI - Sec. 643(a) • General Rule: capital gains generally taxed to trust or estate – Exceptions: • 3 situations under Reg. 1.643(a)-3 • Paid to or set permanently set aside for charity. Reg. 1.643(c) • year of termination 15
Including Capital Gains in DNI – The Problem • Generally, capital gains are allocated to principal and taxed to the estate or trust • Compressed tax rate schedule for estates and trusts – Short-term capital gains taxed at 37% + 3.8% surtax if taxable income exceeds $12,750 (2019) – Long-term capital gains taxed at 20% + 3.8% surtax if taxable income exceeds $12,950 (2019) • Planning point – have gains taxed to beneficiary where gains would most likely be taxed at a lower tax rate 16
Including Capital Gains in DNI – The Problem • Where a beneficiary is entitled to distributions of principal, the beneficiary is not taxed in the capital gain unless one of the specific exceptions under Reg. 1.643(a)-3 is satisfied • For capital gains to be taxed to a beneficiary, the capital gain must be included in DNI • Analysis: – May the fiduciary include capital gains in DNI and have them taxed to the beneficiary? – Should the fiduciary allocate capital gains to DNI? • Overriding factor – trustee must consider his fiduciary duty to both the income beneficiary and the remainderman in making principal distributions – Uniform Trust Code imposed a “duty of impartiality” on the trustee 17
Including Capital Gains in DNI • The regulations describe 3 circumstances under which capital gains can be included in DNI. Reg. 1.643(a)-3(b). • Gains are included in DNI where they are, pursuant to the governing instrument and applicable local law, or pursuant to a reasonable and impartial exercise of discretion by the fiduciary in accordance with a power granted to the fiduciary by applicable local law or by the governing instrument if not prohibited by applicable local law: 1. Allocated to income (but if income under the state statute is defined as, or consists of, a unitrust amount, a discretionary power to allocate gains to income must also be exercised consistently and the amount so allocated may not be greater than the excess of the unitrust amount over the amount of DNI determined without regard to this subparagraph 1.643(a)-3(b)); 2. Allocated to corpus but treated consistently by the fiduciary on the trust’s books, records and tax returns as part of a distribution to a beneficiary; or 3. Allocated to corpus but actually distributed to the beneficiary or utilized by the fiduciary in determining the amount that is distributed or required to be distributed to a beneficiary. 18
Analyzing Regulation 1.643(a)-3(b) • Reg. 1.643(a)-3(b) has specific requirements must be met in order to have capital gains taxed to the beneficiary • No pressing the “easy button” • Regulations have: – Two prerequisites and – Three methods 20
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