NIMCRUT Key benefits: • Permits income payment flexibility • Creates an additional retirement income source with no limits on contributions, no early withdrawal penalties, and no minimum distribution requirements 23
NIMCRUT Other benefits: • Delays impact of capital gains tax • Permits full use of highly appreciated asset(s) for investment • Increases potential net income to donor which may keep pace with inflation • Creates immediate income tax deduction • Reduces estate taxes through charitable gift 24
STAGE 1 After Transfer To Asset Net Income Trust Triggering Net Income Event, Holds Asset & Trust Produces Converts Annual To CRUT Income, if any STAGE 1 Income, if any, Up to Fixed STAGE 2 % of Trust Market Value STAGE 2 CRUT Fixed % Diversifies Distribution of Portfolio & Trust Value for Distribution Produces Certain Period Recipients Annual or Life Distribution After Distribution Period -- Allows time to convert illiquid assets Charitable Organization -- Permits flexible income planning for future needs Receives Remainder From CRUT 25
CHARITABLE LEAD TRUST (CLT) • A CLT permits an estate owner to: • Transfer assets to heirs and receive significant estate or gift tax deductions • Reduce exposure to income tax by providing income to a charitable organization 26
CLT Donor: • Makes a gift of property to irrevocable trust • charitable organization is income recipient and receives either an annual fixed % of the net fair market value of trust assets or an annual fixed amount for a certain period of time or the life of the donor or another individual. • Receives either a gift tax charitable deduction or estate tax deduction depending upon whether or not trust is created during lifetime of donor. 27
CLT Key benefits: • Permits transfer of assets to heirs with significantly reduced estate or gift taxes • Can reduce income taxes • Flexible planning tool to zero out estate tax • Can create delayed inheritance/retirement benefit for heirs 28
CLT Other benefits: • Allows excess return on investment within trust to go to heirs tax free • May make multiple gifts • Provides long lasting value to charity 29
Asset CLT Transfer May Diversify -- Gift or To CLT Portfolio & Estate Produces Tax Annual Distribution for Deduction Distribution Certain Period or At end of Life Distribution Period Charitable Beneficiaries Organization Receive Remainder From CLT -- Charity receives income immediately -- Reduced gift or estate taxes on the transfer of the trust 30 assets
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ADVANTAGES OF A CRT • By setting up a CRT, a donor can avoid currently paying tax on the disposition of appreciated assets • Donor can invest the sale proceeds to generate a future income stream. The donor forms a CRT and contributes assets (such as appreciated stock) to it. • The donor receives an income tax charitable deduction (as well as a gift or estate charitable deduction) when the CRT is created. The amount of the deduction is measured by the actuarial present value of the charity’s right to receive the corpus on termination of the noncharitable (remainder) interest. • The CRT sells the stock but does not pay tax on the gain, because the CRT is generally a tax-exempt entity under IRC § 664(c). 32
ADVANTAGES OF CRT CONT… • The CRT then invests the proceeds of the stock sale and pays the donor an income stream for a fixed term of years (or over the course of a life or lives), based either on the value of the assets at the time the trust is created (annuity trust) or a fixed percentage of asset value each year going forward (unitrust). • Any gain is taxable to the income beneficiary only when it is distributed. On completion of the term, the CRT distributes the remaining assets to a charity, which can include a private foundation established by the donor. • If the donor retains an interest in the trust for life, the assets remaining in the CRT at death are deductible for estate tax purposes. • Another type of charitable trust is the charitable lead trust (CLT), which pays an income stream to the charity on the front end, with a remainder interest payable to noncharitable beneficiaries. CLTs are generally used to minimize gift and estate tax. 33
CRT REQUIREMENTS • A CRT must make a minimum annual distribution of at least 5% of the fair market value (FMV) of the trust assets for either the lifetime of an individual or individuals or a term not to exceed 20 years. • No distributions are permitted to any other individual, but a qualifying charity may in certain circumstances also receive income. • Another individual or individuals can receive an interest for a term of years or for life following the first interest. However, state law may require that federal estate or state death taxes due upon the first beneficiary’s death be equitably apportioned among the interests in the estate. • In such cases, in the absence of clear direction to the contrary in a decedent’s will, the secondary beneficiary will lose the life estate unless the secondary beneficiary pays any estate or death taxes for which the trustee may be liable on the first beneficiary’s death (Revenue Ruling 82 - 128, 1982-2 CB 71). After the term of years or on the death of the measuring individual, the remainder interest (the present value of which must be at least 10% of the initial FMV of assets on funding) must pass to a qualifying charity. The trust must operate according to these rules from its inception. 34
TRUSTS AS A FINANCIAL TOOL • As you can see, charitable trusts are useful to: • Increase income from low yielding assets • Transfer assets to heirs on a tax effective basis • Reduce exposure to income tax or create a deduction by providing a gift to a charitable organization There are many variations to meet the needs of your clients. You should ensure your clients use a reputable estate planning attorney. 35
THANK YOU Dawn D. Hallman Hallman & Associates, P.C. 2230 McKown Drive Norman, Oklahoma 73072 www.hallmanlawoffice.com dhallman@hallmanlawoffice.com (405) 447-9455
Rosemarie Steeb, Chiampou Travis Besaw & Kershner TAX CONSEQUENCES AND RECENT DEVELOPMENTS
Topics Covered Income and transfer tax considerations: • ― Charitable remainder trust (CRT) ― Charitable lead trust (CLT) Form 5227 presentation • ― Compliance reminders ― Applicable Private foundation excise taxes ― Public inspection rules • Unrelated business income (UBI) ― Hedge funds ― Debt financed income • Advantages & planning • 3.8% Medicare tax issues 38
Charitable Remainder Trust (CRT) Transfer of highly- appreciated assets Donor CRT (Income Beneficiary) Annual (or more frequent) payments At the donor’s death (or at for life (or a term of the end of the trust term), years) the charity receives the Donor receives an residual assets held in the immediate income tax trust deduction for present value of the remainder Public interest (must be at least 10% of the value of the Charity assets originally (Remainder Beneficiary) contributed) 39
Income Tax Consequences - CRT Formation: A donor receives no charitable income tax deduction for a gift • of a remainder interest to charity unless the trust is a CRT described in Section 664. Intervivos CRT - The grantor is entitled to an immediate • income tax deduction in the amount of the present value of the remainder interest passing to charity. Testamentary CRT - The estate of the decedent whose will • created a CRT is entitled to an estate tax deduction for the present value of the remainder interest passing to charity. 40
Charitable Contribution Deduction - CRT CRAT - At the time a CRAT is formed, the donor may deduct the fair • market value of the property placed in trust less the present value of the annuity as a charitable contribution on his or her individual tax return and for estate and gift taxes • Additional contributions cannot be made to a CRAT because the annuity amount is based on the value of the assets only valued as of creation. The governing instrument of the CRAT must prohibit additional contributions. CRUT - the deduction is the present value of the remainder interest • Additional contributions can be made to a CRUT as long as the • governing instrument provides a formula upon which to base the unitrust amount, which takes into account the additional contribution. 41
Charitable Contribution Deduction The value of the donor's federal income tax deduction is a function of: 1. The type of charitable remainderman; 2. The kind of property contributed to the CRT; and 3. Whether, at the end of the non-charitable term, the assets are: a) Distributed outright to the charitable remainderman; or b) Held in trust for the benefit of the charitable remainderman 42
Type Of Charitable Remainderman A public charity including churches, educational institutions, • hospitals and medical institutions • University endowment funds, governmental units, publicly supported organizations under Sections 170(c)(2) & 509(a)(2) (i.e., museums, drama companies, ballet companies, etc.) Supporting organizations under Section 509(a)(3) • Private operating foundations • • Two types of non-operating private foundations: ― Distributing foundations ― Foundations that maintain a common fund 43
Impact Of Kind Of Property Contributed - CRT The donor gets a federal income tax deduction for the fair market value of the remainder interest passing to charity subject to the following percentage limitations. • Gift of cash and non-appreciated property ― Passes outright to public charity at end of non-charitable term ― In the year of the gift, the donor's fair market value charitable income tax deduction is limited to 50% of his/her adjusted gross income (AGI) with a five-year carryforward. ― Held in trust for the benefit of public charity at end of non- charitable term ― In the year of the gift, the donor's fair market value charitable income tax deduction is limited to 30% of his/her AGI with a five-year carryforward. 44
Impact Of Kind Of Property Contributed – CRT (Cont.) Gift of appreciated property • ― Passes outright to public charity at end of non-charitable term ― In the year of the gift, the donor's fair market value charitable income tax deduction is limited to 30% of his/her AGI with a five-year carryforward. ― Held in trust for the benefit of public charity at end of non-charitable term ― In the year of the gift, the donor's fair market value charitable income tax deduction is limited to 20% of his/her AGI with a five-year carryforward 45
Income Tax Consequences - CRT Annually – annuity recipient The distributions to the recipient of the annuity amount or unitrust • amount are includable in the recipient's gross income – reportable on Schedule K-1 • Tiered structure - the highest-taxed items are deemed to be distributed first in the following order: ― Ordinary income to the extent of the CRT's ordinary income for that year and undistributed ordinary income from prior years ― Capital gains to the extent of the CRT's capital gains for that year and undistributed capital gains from prior years (short term gains first) ― Current and undistributed tax exempt income ― Corpus – non-taxable 46
Income Tax Consequences – CRT (Cont.) Annually – annuity recipient (Cont): Net income make-up charitable remainder unitrust (NIMCRUT) • The unitrust payment from a NIMCRUT is based on a fixed percentage of the value of the trust assets at the beginning of the year, but is limited to the trust's annual income. If the trust income is less than the payment based on the fair • market value of trust assets, the trust may increase payments to the beneficiary in subsequent years to compensate for a prior deficiency. Tiered distribution rules still apply • 47
Income Tax Consequences – CRT (Cont.) Annually – annuity recipient (Cont): CRAT and the fixed-percentage CRUT: • The trustee may be forced to make a distribution in kind if the income is insufficient to satisfy the annuity amount of the CRAT or the unitrust amount of the fixed percentage CRUT A distribution in kind is deemed to be a sale of the property so distributed • causing the recipient to recognize capital gain on the property in kind distributed. ― For example, if a donor funds a fixed percentage CRUT with closely held C stock and then the stock cannot be sold after such funding, the trustee will be obligated to distribute enough stock to the donor to meet the annual fixed percentage and the CRUT will realize the capital gain on that stock even though it was not sold; that capital gain will be passed through to the recipient under the income tax characterization rules above causing the recipient to recognize gain. 48
Income Tax Consequences – CRT (Cont.) Annually – annuity recipient (Cont): CRAT and the fixed-percentage CRUT: • If NIMCRUT , the trustee will not be forced to make a distribution in kind. Rather, the trustee can satisfy the unitrust amount based on the income earned by the CRUT . Obviously, if a non-income earning asset, such as real estate, is used to fund a CRT , it is best to choose a CRUT with the lesser of income feature. 49
Income Tax Consequences – CRT (Cont.) Annually – trust: A CRT is a tax exempt entity; therefore, the CRT pays no • income tax on its income unless it has unrelated business taxable income (UBTI). A CRT is not taxed on any retained gain it realizes upon selling • appreciated property, whether donated by the grantor or appreciation occurring after the donation. 50
Transfer Tax Consequences - CRT The retention of a right to revoke by the donor results in the CRT assets being includable in the donor's estate at his/her death The gift tax consequences is based on the recipient of the annuity amount or unitrust amount: ― Just the donor : The donor gets a charitable gift tax deduction for the value of the remainder interest passing to charity. ― The donor and spouse only : The donor has made a gift to his/her spouse of the value of the annuity amount or unitrust amount going to his/her spouse but such gift is shielded by the marital deduction. The donor also gets a charitable gift tax deduction for the value of the remainder interest passing to charity 51
Transfer Tax Consequences – CRT (Cont.) The gift tax consequences is based on the recipient of the annuity amount or unitrust amount (Cont): Spouse and others (e.g. the donor, then spouse and then children) - • The donor has made a gift to his/her spouse that does not qualify for the marital deduction. Further, the donor has made a gift to his/her children. However, the donor can retain the right to revoke by will his/her spouse and children's rights to the annuity amount or unitrust amount without disqualifying the trust as a CRT and if so, the gifts are incomplete. • Someone other than the donor's spouse : The donor has made a gift to that person in the amount of the present value of the annuity amount or unitrust amount unless the donor retains the right to revoke by will that person's right to the annuity amount or unitrust amount. 52
Charitable Lead Trust (CLT) Transfer of cash, stock and/or other assets Donor (Income Beneficiary) Annual (or more frequent) payments for Public life (or a term of years) CLT Charity (Income Beneficiary) At the donor’s death (or at the end of the trust term), the remainder beneficiaries receive the residual assets held in the trust Donor’s Children 53 (Remainder Beneficiary) 53
Types Of CLTs Grantor or non-grantor trust depending on whether the grantor • retains the power to control beneficial enjoyment, the power to revoke the trust, or any of the attributes described in IRC sections 672 – 677. A retained reversionary interest triggers grantor trust treatment • if the reversion is valued at more than 5% of the trust property's fair market value at the time the trust is formed 54
Income And Transfer Tax Consequences - CLT Grantor Nongrantor Income tax: Formation Grantor can deduct the present value No deduction of the income interest, subject to charitable contribution limits Annually Grantor will include trust income on Trust recognizes income offset by the individual income tax return, but no annuity or unitrust payment each year, deduction for charitable contributions but cannot deduct any excess made by the trust contribution Transfer tax: Inter Vivos - Gift tax Grantor deducts the present value of Grantor deducts the present value of the the income interest at the time of income interest at the time of formation. formation. No deduction is allowed as No deduction is allowed as the payments the payments are made to the charity are made to the charity by the trust. by the trust. Testamentary - Not applicable Estate deducts the present value of the Estate income interest at the time of formation. The trust cannot deduct charitable contributions as they are made. 55
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Form 5227 – Compliance Reminders Due date April 15 – extended with Form 8868 (not 7004) for up to six • months – three months at a time (i.e. until July 15 and then October 15) • All filed with IRS Center in Ogden, UT • Copy of trust instrument must be attached to initial return • Balance sheet (Part IV) – all trusts must complete columns a and b based on the accounting method the trust uses in keeping its books and records ― Column c only applies to CRUTs and should be completed as of the valuation date – valuation date and method must be used each year Short tax years – the annuity or unitrust amount for short tax year is • computed by multiplying the full year annuity or unitrust amount by the number of days in the trust’s tax year divided by 365 or 366 for leap years 57
Applicable Private Foundation Excise Taxes Since some but not all of the unexpired interest are charitable • the following private foundation excise taxes also apply to CRTs and CLTs: ― Self-dealing (Section 4941) ― Excess business holdings (Section 4943) ― Investments that jeopardize charitable purposes (Section 4944) ― Taxable expenditures (Section 4945) and political expenditures (Section 4955) 58
Self-Dealing The trust must not be involved in self-dealing. This includes any of the • following direct or indirect transactions between the trusts and a disqualified person: ― Sale, exchange, or leasing of property; ― Lending of money or extension of credit; ― Furnishing of goods, services, or facilities, unless such goods, services, or facilities are made available to the general public on at least as favorable a basis as they are made to the disqualified person, ― Payment of compensation (or payment or reimbursement of expenses), unless it is for personal services and such compensation is reasonable and necessary to carry out the exempt purpose and is not excessive; ― Transfer to, or use by or for the benefit of, a disqualified person of the income or assets of the trust 59
Disqualified Person A disqualified person is: • ― A substantial contributor to the trust, ― A family member of a substantial contributor (i.e. spouse, descendants, and spouses of descendants), or ― Persons owning more than 20% of an entity that is a substantial contributor to the trust • A substantial contributor is an individual, trust, estate, corporation, or partnership who contributes an aggregate amount in excess of $5,000 to the trust, if his or her total contributions are more than 2% of the total contributions received 60
Example Of Potential Self-Dealing Reimbursement to disqualified persons for travel expenses Could cause the trust and the disqualified person' to be potentially liable for • penalty taxes for self-dealing, for making non-charitable expenditures, or possibly both. • Such reimbursement of expenses will not be subject to the excise tax if the expenses are reasonable and necessary to carrying out the exempt purposes of the trust and are not excessive. The Code does not explain what is "reasonable and necessary” – follow guidance • under business expense deductions rules include travel fares, meals, lodging, and expenses incident to travel. Travel expenses are not reasonable and necessary if the trip is primarily personal in nature. An amount spent on director's services will not be deemed "excessive" if it is • only such as would be paid "for like services by like enterprises under like circumstances. 61
Example Of Potential Self-Dealing (Cont.) Attendance by grantor/trustee at fundraising event for one of trust’s charitable beneficiaries where donor benefits are received. • The grantor/trustee who participated in the event should reimburse the trust for the value assigned to the benefits received so as to minimize appearance of self dealing. If the trustee reimbursement comes after year end then reflect as an accounts receivable on the balance sheet 62
Consequences To Self-Dealing Any disqualified person who engages in an act of self-dealing is • assessed an excise tax of 5% of that amount involved in the transaction for each year that the transaction is uncorrected. A trustee who knows that the act is prohibited but approves it may • also be subject to a tax of 2.5% of the amount involved (up to $10,000 for each such act) for each year that the transaction is uncorrected. If the transaction is not timely corrected and the 5% was initially • assessed, the disqualified person is subject to being assessed an additional tax of 200% of the amount involved. • Any trustee who does not correct the transaction may also be subject to an additional assessment of 50% of the amount involved (up to $10,000 for each such act.) 63
Excess Business Holdings – Section 4943 Section 4943 imposes an excise tax on the value of the "excess • business holdings" of the trust. • A trust created after May 26, 1969 has excess business holdings to the extent that it, together with all disqualified persons, owns in the aggregate more than 20% of the voting stock of an incorporated business enterprise (or corresponding interests in non-incorporated business enterprises). In general, where a trust acquires excess business holdings by • gift or bequest, the trust has five years from the date it acquires such holdings to dispose of them 64
Jeopardizing Investments – Section 4944 Section 4944 imposes an excise tax on a trust (and under some • circumstances trustees) for investing any amount in such a manner as to jeopardize the carrying out of its exempt purposes. The imposition of an excise tax on "jeopardy" investments is • intended to assure that the trustees adopt a "prudent person" approach toward the investment of trust assets. 65
Exceptions To Sections 4943 And 4944 The excess business holdings provisions of Section 4943 and the • "jeopardy investment" provisions of Section 4944 do not apply to a split-interest trust if either: ― All of the income interests (and none of the remainder interests) of the trust are devoted solely to charitable purposes and all amounts in trust for which a charitable deduction was allowed have an aggregate value of not more than 60% of the aggregate fair market value of all amounts in trust; or ― A charitable deduction was allowed for amounts payable under the terms of the trust to every remainder beneficiary, but not to any income beneficiary, as is the case with the majority of charitable remainder trusts. 66
Public Inspection Requirements Form 5227 be open to public inspection, except for • information related to non-charitable trust beneficiaries, which is disclosed on Schedule A that is not open to public inspection. To inspect a return, the petitioner must submit a written • request to the IRS that must include the name of the trust, the trustee’s address, the type of return and the year for which the return was filed. 67
Unrelated Business Income (UBI) Prior To 2006 The CRTs tax exempt status would be suspended for any year • that the CRT generated UBTI forcing the trust to pay tax on the entire amount of income for that year. The CRT would be taxed as a complex trust with an allowable • deduction for amounts required to be distributed to the beneficiary. • Any remaining income would be subject to income tax at the appropriate trust tax rates. 68
UBI After 2006 The Tax Relief and Health Care Act of 2006 (the “2006 Act”) changed • the income tax rules on CRTs for any year in which the CRT incurs UBTI. No longer is the entire trust income subject to tax. Rather, an excise tax is imposes equal to 100% of the amount of the UBTI incurred by the CRT . The UBTI is considered income of the trust for purposes of determining • the character of the distributions made to CRT beneficiaries, without a reduction of such income for the excise taxes paid by the CRT . Example: CRT with $4.5M of stocks & bonds and $500K in hedge funds. • The investment return after deduction for the amounts paid to the beneficiary is a total of $240,000 of which $5,000 is UBTI. he CRT owes an excise tax of $5,000. Prior to 2006, the CRT tax obligation could have been as high as $84K. 69
Are Hedge Funds Appropriate For CRTs? A prudent fiduciary of a CRT should consider the following factors before adding • hedge funds to the trust’s investment portfolio: ― How much UBTI is present? ― Percentage of hedge fund return generated in the form of ordinary income – an investment mix that promises to distribute a heavy annual dose of ordinary income or short term capital gain become less attractive than one which promises a lower tax cost to the non-charitable recipient ― Other investment considerations: ― Liquidity needs ― Risk of downside volatility ― Tolerance for fees and expenses ― Offshore fund reporting requirements 70
UBI – Debt-Financed Income Unrelated business taxable income includes income from debt-financed • property. • A trust has debt-financed income it acquires realty subject to a mortgage. The trust will not have unrelated business taxable income if for a period of 10 • years following the gift: ― The trust does not assume the debt or ― Meets all the following requirements: 1. The debt was placed on the property more than five years before the date of the gift; 2. The property was held by the donor for more than five years before making the gift; and 3. The CRT does not assume the debt. See PLR 9533014 PLR 9015049. 71
Advantages Of A CRT Non-recognition of capital gains A donor can contribute highly appreciated property to a CRT and benefit • from the appreciated value of the asset because the donor's unitrust amount from a CRUT will be greater due to such assets high value not reduced by income tax on the appreciation. • The donor benefits from the appreciation and at the same time the donor avoids immediate payment of the tax from the appreciation. The key is to make sure that as of the date of the funding (not just • creation) of the CRT that there is no legal obligation to sell such asset. If, when the trust receives the asset, the trustee is subject to an obligation to sell, the IRS will ignore the gift to the CRT and treat the transaction as if the donor sold the asset. The donor then gets the worst of both worlds- payment of tax and loss of the asset. 72
Advantages Of A CRT (Cont.) Growth of assets in a tax-exempt entity: • Since a CRT is a tax-exempt entity, the value of the assets in the CRT can grow at a faster rate because gain realized on the sale of assets of the CRT is not recognized for income tax purposes in the CRT . • The recipient of the unitrust amount from a CRUT gets the benefit from such growth since the fixed percentage is applied to a larger capital base. If family members are concerned that their inheritance will be • reduced, the donor may use the tax savings created by the charitable contribution deduction to buy life insurance. This plan reduces the client's taxable estate and provides a liquid inheritance for heirs. 73
Advantages Of A CLT CLTs are attractive for clients with ample income seeking to transfer • assets at minimal estate and gift taxes. By prolonging the payment period to the charitable beneficiary, the present value of the remainder interest is decreased and the value of the gift is reduced. In deciding whether to use a CLAT or CLUT , consider the donor's goals. • If the donor seeks to maximize the payment that the non-charitable beneficiary will receive at the trust termination, a CLAT is preferable if the trust assets are expected to significantly appreciate in value. A CLAT also favors the remainderman if the amount paid to the • charitable beneficiary is less than the trust's annual income, since the excess accumulates for the benefit of the non-charitable beneficiary. 74
Advantages Of A CLT (Cont.) A CLAT provides a fixed distribution, or annuity, to one or more charities in • each year of the trust. • Distributions can be the same each year or can increase annually at a rate established when the trust is put in place. • Starting with a small annual payment but increasing the amount over the course of the trust may result in assets of greater value passing to the non- charitable beneficiary. For instance, a $1 million CLAT providing steady payments of $108,000 to • charity for 10 years would result in $369,000 passing to the non-charitable beneficiary if it earned 6% per year. If, however, that $1 million CLAT started with an initial payment of $33,000, increasing by 25% each year for 10 years, $476,000 would pass to the non-charitable beneficiary. In both cases, the taxable value of the gift to the non-charitable beneficiary would be zero. 75
Advantages Of The Unitrust Appreciation in the value of trust assets causes unitrust payments to • increase, maximizing the payment to the charity in a CLUT or to the non-charitable beneficiary in a CRUT . Alternatively, if trust assets in a unitrust decline in value, the non- • charitable life tenant will receive a reduced annuity payment. The IRS has allowed early termination of CRUTs when the donor is dissatisfied with the annual return or needs access to the corpus. To avoid repayment of the tax benefits from the initial charitable contribution, the charity must receive the present value of its proportionate interest. Distributions made to the non-charitable beneficiary are taxed as long-term capital gains. NOTE: The annual valuation requirements for unitrusts increase • administrative costs over annuities . 76
Recent Increase In Use Of CLTs The IRS discount rate is used to determine the assumed rate of return for • assets contributed to a CLAT and affects the calculation of the lead payments (that is, how much must be paid to charities in order to “zero out” or eliminate the taxable gift component). When the discount rate is low, the annual payout to charity can be reduced. • A trust funded with $1 million when the discount rate is 6% would need to pay • the charitable recipient almost $136,000 per year for 10 years in order to have that stream of payments have a present value of $1 million. If, however, the discount rate is 1.4% (as it was in March 2012), the charitable recipient would need to be paid only $108,000 per year for the same result. That means that in today’s environment, if this trust had an annualized return in excess of only 1.4%, it would not only be able to satisfy the annuity payment to charity but also would have funds remaining at the end of 10 years for the non-charitable beneficiaries. 77
Recent Increase In Use Of CLTs (Cont.) Low initial asset values might grow at a higher than expected • rate, delivering more to your beneficiaries without increasing potential tax liability There is an expectation that the values of assets used to fund a • CLT may be only temporarily depressed and that over an extended investment cycle, values will normalize and perhaps appreciate. 78
Preferable Assets To Fund CRT Low basis, highly appreciated, marketable securities - The sale proceeds can • then be invested to produce payments to the recipient who benefits from the appreciation of his/her securities via the annuity amount or unitrust amount, but has no taxable recognition of the gain from the sale of the securities while the proceeds or those in that they are invested are held by the CRT . Investment by the CRT in tax free securities may not be wise if the CRT has • accumulated undistributed ordinary or capital gains since the recipient still has to recognize the income therefrom under the tier approach applicable to distributions to recipients. It is not a good idea to transfer a donor's personal residence to a CRT , whether • unencumbered or encumbered, because the donor cannot live in the residence without committing a prohibited act of self-dealing. Also using encumbered real estate caused unrelated business taxable income A CRT is not a qualified subchapter S shareholder, and therefore, a donor • cannot use subchapter S stock to fund a CRT . 79
3.8% Medicare Tax Issues Use a CRT to harbor “net investment income” in a tax -exempt environment • while at the same time leveling income over a longer period of time to keep modified adjusted gross income for the beneficiary below the “threshold amount”. Use a non- grantor CLT to offset “net investment income” against charitable • deductions dollar-for-dollar in a tax-efficient manner. • While a CRT itself is not subject to the 3.8% Medicare surtax on net investment income, distributions from the CRT to non-charitable beneficiaries will be potentially subject to the tax as the income is distributed. To avoid "unfairly" causing Medicare taxes to beneficiaries that receive income • in 2013 or beyond that was actually created prior to the Medicare tax (and just not yet distributed), the new rules stipulate that only income in the trust that was created in 2013 or later will be treated as net investment income. 80
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Donna J. Jackson, CPA, JD, LLM FINANCIAL ACCOUNTING REQUIREMENTS
FINANCIAL ACCOUNTING REQUIREMENTS Donna Jackson, CPA, JD, LLM 10400 Vineyard Blvd, Suite C Oklahoma City, OK 73120 (405) 840-1874
Financial Accounting Requirements 84 A charitable remainder trust should not pay the estate tax or gift tax of the donor. The creation of an income interest for a person other than the donor creates a gift equal to the value of the property transferred less the APVRI. If the donor’s spouse is the only person other than the donor to receive an income interest, then the gift tax marital deduction (IRC § 2523(g)) eliminates most gift tax concerns.
Define Principal And Income 85 The definition of trust accounting income is a function of the language of the trust’s governing instrument and the principal and income statute of the applicable state. Where one or more provisions of the trust’s governing instrument are in conflict with the principal and income statute, the trust’s governing instrument takes precedence.
Trust Provisions 86 A number of desirable optional provisions exist that can increase the utility and flexibility of a CRT. For example, the donor may: Retain the power to change the charitable remainder beneficiary. Provide the trustee with the ability to accelerate the distribution of principal to the charity Spendthrift clause designed to restrict the income beneficiary’s ability to alienate his or her interest Give the income beneficiary the flexibility to make a charitable gift of his or her income interest
Proper Payments 87 Several potential traps exist regarding the proper amount to pay the income beneficiary. A CRT must use the calendar year as its tax year. As a result, it will have a short tax year in the first and last year of the trust. For any short year, prorate the annuity or unitrust payment. The proration is done on a daily basis. Considerations for Leap-Year
Payment Traps 88 Assuming that the current year’s unitrust payment will be the same as the prior year’s unitrust payment Paying the income beneficiary of a NIMCRUT or a Flip-CRUT (pre-flip) the full fixed percentage amount without regard to the trust’s accounting income.
Valuation Issues 89 Unmarketable assets provide the greatest challenge. A CRT trustee will need to know the value of the trust’s assets. For example: • Valuing the initial contribution to the trust; • Determining the annual valuation of the trust’s assets and liabilities required to compute the unitrust amount; • Valuing additional contributions for the incremental change in the unitrust amount; and • Computing how much of an asset to transfer to make an in-kind distribution
Treas. Reg. §1.664-1(a)(7) 90 Two alternative methods for securing the value of a CRT’s unmarketable assets. First, the valuation can be performed exclusively by an independent trustee. Second, the value can be determined by a current qualified appraisal.
Compliance 91 Ensure continued qualification of CRT Be familiar with the laws and regulations governing CRTs Be familiar with terms of the trust Monitor the activity of the trust for compliance
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Areas Of Concern 93 Trustee powers Principal and income allocations Prohibited investments Self-dealing transactions Transactions that could produce UBTI
Annual Reporting 94 In some states, the trustee is required to make a periodic statement or accounting to the income beneficiaries, remainder beneficiaries, and/or a court. Charities that prepare financial statements in accordance with GAAP are required to include certain information about charitable remainder trusts. The type of information to be included depends on whether the charity serves as trustee (or not) and whether the charity’s interest is revocable or irrevocable.
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Recording Balance Sheet 97 Limitations Assets recorded at historical cost (does not show true value of asset) Use of cost estimates (not true financial position) Omission of valuable non-monetary assets
Reporting 98 Financial statements Tax return presentation More requirements than fiduciary accounting to court
Reporting 99 A fiduciary accounting shall contain sufficient information to put the interested parties on notice as to all significant transactions affecting administration during the accounting period.
Financial Accounting Requirements 100 The presentation of the information in an account shall allow an interested party to follow the progress of the fiduciary’s administration of assets during the accounting period without reference to an inventory or earlier accounting that is not included in the current account. An account is not complete if it does not itemize assets on hand at the beginning of the accounting period.
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