Saturday, May 30, 2015
Jason Kleinman (Herrick, Feinstein LLP) recently published an article entitled, Trust Decanting: A Sale Without Gain Realization, Real Property, Probate and Trust Law Journal, Vol. 49, Winter 2015. Provided below is an excerpt from the article:
This Article describes why decanting or modifying a trust cannot be a taxable event for trust beneficiaries. The Internal Revenue Service and trust law practitioners appear to assume the contrary and focus on determining which such events are taxable. Their perspective takes for granted that a property’s material modification gives rise to its deemed sale for tax purposes. This premise should not hold true for trusts, because a tax on gain requires the identification of an owner to derive the gain and trusts are not owned by any person. The perspective advanced in this Article should provide practitioners with a freer hand to undertake trust decantings and clarify the common law for determining when property modifications are taxable.