Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Monday, July 5, 2021

Enactment of FUDTA and CPTA Change the Rules on Florida Trusts

TrustOn June 29, 2021, Florida enacted the Florida Uniform Directed Trust Act (FUDTA) and the Community Property Trust Act (CPTA). 

According to Bilzin Sumberg: 

Florida will now have a more robust law whereby “trust directors” can be granted powers in a Florida governed law trust to direct the trustee as to certain management functions of such trust. With the CPTA, Florida has become the fourth state to enact Community Property Trust legislation to enable married couples living in non-community property states such as Florida to have the ability to take advantage of a full stepped-up income tax basis upon the death of either spouse. Both of the Acts will be effective July 1, 2021.

See Jennifer J. Wioncek & Osvaldo Garcia, Enactment of FUDTA and CPTA Change the Rules on Florida Trusts, Bilzin Sumberg, July 1, 2021. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

July 5, 2021 in Estate Administration, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)

Sunday, June 27, 2021

Minnesota farmer concerned tax proposals could fundamentally change structure of family farms

Estate planningKirby Hettver, a fifth-generation farmer from DeGraff, Minnesota, expressed concerns about proposed changes to the estate tax. Hettver believes that the proposed changes could "fundamentally change the way family farms are structured. 

Hettver stated, “Obviously we don’t want to make any decisions without knowing a little more about what exactly they are going to end up with.”

President Biden's proposed changes, which include elimination of the stepped-up basis, will affect a lot of families, farm families included. The elimination of stepped-up basis would cause "inherited assets, like land, to be taxed upon the previous owner's death, and lower the estate tax threshold from $11.7 million to $500,000.

Hettver further stated, “In order for us to maintain (the farm) and pass it onto the sixth generation, based on the new policies if we need to make changes we’ll have to figure out what rules we’re playing by and play by them.”

See Mark Dorenkamp, Minnesota farmer concerned tax proposals could fundamentally change structure of family farms, Brownfield Ag News, June 25, 2021. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

June 27, 2021 in Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, New Legislation | Permalink | Comments (1)

Saturday, June 19, 2021

Article: IRS Guidance About the SECURE Act's Beneficiary Provisions Requires Revision

Albert Feuer recently published an article entitled, IRS Guidance About the SECURE Act's Beneficiary Provisions Requires Revision, Wills, Trusts, & Estates Law ejournal (2021). Provided below is the abstract to the Article. Estate planning

The IRS has presented its first and only guidance about how the SECURE Act changed the Required Minimum Distribution (RMD) Rules. This was done in a detailed IRS guide for preparing 2020 returns, and an IRS FAQ web site that referenced the guide that had been released a day earlier. The SECURE Act limited the set of individual beneficiaries permitted to use their own life expectancy to stretch out the benefit distributions after the death of participant. Non-favored individual beneficiaries became subject to a 10-year rule similar to the 5-year rule upon which it is based. The 5-year rule does not require any benefit distributions before the end of the 5-year period, but requires distribution on or before the final day of the period. The 5-year rule is applicable to an estate or trust not treated as a pass-through entity when the participant died before attaining the participant’s required beginning date.

The IRS correctly treats the 10-year rule as replacing a disfavored individual beneficiary’s ability to use the beneficiary’s life expectancy to determine annual RMDs. The return guidance incorrectly describes the 10-year rule as requiring annual distributions in each year following the participant’s death even though the 5-year rule has no such requirement. Furthermore, if the participant dies after attaining the participant’s required beginning date, the IRS guidance prevents a disfavored individual beneficiary from continuing to use the participant’s life expectancy to determine annual minimum required distributions. The IRS does this even though such continuation would result in no further stretch-out of the benefit distributions, and an estate or trust not treated as a pass-through entity may so use the participant’s life expectancy. These limitations are not consistent with the stated purpose of the SECURE Act RMD provisions, the long-standing IRS regulations interpreting the RMD rules, or the amended RMD statute as a whole. Moreover, they may be readily avoided by well-advised participants.

June 19, 2021 in Articles, Current Events, New Legislation | Permalink | Comments (0)

Sunday, June 13, 2021

Plan to Revive I.R.S. ‘Wealth Squad’ Puts the Richest on Notice

Wealth taxPresident Biden has proposed "adding $80 billion to the Internal Revenue Service budget as well as giving the agency more authority to crack down on tax evasion by high-earners and large corporations." 

The propose additions came before reports were released that indicated how little in taxes the richest Americans paid from 2014 to 2018. In addition to President Biden's proposals, those reports have "intensified interest in the tax code." 

The reports do not necessarily indicate those in the high net worth categories have been engaging in illegal activity in order to pay less in taxes. It is just as likely that high-earners have simply been using the tax code to their advantage.

There are many legal tax strategies that high-earners have used to "minimize their taxes." The tax strategies appear to be exactly what President Biden looks to eliminate. 

In order to deal with this new attention to tax strategies, tax experts have agreed that the wealthy and slightly-less-wealthy should keep better records. 

If President Biden's plan is adopted, "[s]ome of the additional money in his budget would toward reviving an underfunded organization within the I.R.S. called the global high-wealth industry group, which focuses on the complicated tax returns filed by the affluent." 

See Paul Sullivan, Plan to Revive I.R.S. ‘Wealth Squad’ Puts the Richest on Notice, N.Y. Times, June 11, 2021. 

Special thanks to Matthew Bogin, (Esq., Bogin Law) for bringing this article to my attention. 

June 13, 2021 in Estate Planning - Generally, Income Tax, New Legislation | Permalink | Comments (0)

Wednesday, June 2, 2021

Texas Legislature Extends The Rule Against Perpetuities To 300 Years For Trusts

TrustThe Texas Legislature has just passed a bill that extends the rule against perpetuities to 300 years for trusts. The Bill will take affect on September 1, 2021. 

The Bill (HB 654) was sent to the governor from the Legislature on May 20, 2021, but he has not yet signed the bill into law. Unless the governor vetoes the bill, it will become law after 10 days. 

Under the Texas Constitution: "Perpetuities and monopolies are contrary to the genius if a free government, and shall never be allowed. . . ." According to ConocoPhillips Co. v. Koopmann "[a] perpetuity is a restriction on the power of alienation that lasts longer than a prescribed period." 

The rule against perpetuities is not so simple to understand. The rule against perpetuities considers invalid any will or trust that "attempts to create any estate or future interest which by any possibility may not become vested within a life or lives in being at the time of the testator's death and twenty-one years thereafter, and when necessary the period of gestation.

This rule applies to wills and non-charitable trusts. 

Due to the recent amendment to Texas Trust Code Section 112.036, the interest in a trust must vest, if at all "not later than 300 years after the effective date of the trust, if the effective date of the trust is on or after September 1, 2021. 

See David Fowler Johnson, Texas Legislature Extends The Rule Against Perpetuities To 300 Years For Trusts, Winstead: Texas Fiduciary Litigator, May 27, 2021. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

June 2, 2021 in Estate Administration, Estate Planning - Generally, New Legislation, Trusts | Permalink | Comments (0)

Tuesday, June 1, 2021

New IRS Guidance On IRA Inheritances Clouds Retirement, Tax Planning

IRSEstate and retirement planning continues to be an area confusion due to the "unclear IRS guidance regarding how long beneficiaries are required to take payouts from inherited IRAs."

The IRS's new guidance, Publication 590-B, "which seems to indicate that certain beneficiaries will no longer have 10 years to take distributions from inherited IRAs and instead will be required to take payouts the first year of their inheritance" is one essential cause for the confusion. 

The unclear language in Publication 590-B has left many wondering where they stand in regard to their IRA inheritance. Further, those engaging in estate planning are unsure of the implications of passing on an IRA to a beneficiary. 

Advisors and CPAs are advising those "to wait for the proposed regulations under the SECURE Act to come out and indicate whether the apparent nine-year timing issue. . . is a real issue or not," according to Seymour Goldberg. 

The SECURE Act of 2019 added some clarity regarding payouts, but due to the potential issues regarding the contradiction posed by Publication 590-B, there may be significant implications due to the remaining confusion. 

See Tracey Longo, New IRS Guidance On IRA Inheritances Clouds Retirement, Tax Planning, Financial Advisor, May 28, 2021.

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

June 1, 2021 in Estate Administration, Estate Planning - Generally, New Legislation | Permalink | Comments (1)

Monday, May 24, 2021

Democrats Mull Weakening Biden Tax On Capital Gains For Estates

Wealth taxThe Biden administration's proposal to "dramatically expand the inheritance tax bill for wealthy Americans" is beginning to frequent obstacles as Democrats on Capitol Hill are becoming nervousness about the "scope and size of elements of the White House's ambitious plans." 

One of the key elements of the Biden Administration's proposal is ending the step-up in basis, which allows heirs to use the market value of assets at the time of inheritance (as opposed to the purchase price) as the cost basis for capital gains. 

According to those in the loop, "[i]nstead of hitting heirs with a hefty tax payment at the time of the death of their benefactor, staff for House Ways and Means Chair Richard Neal have floated allowing the beneficiaries to defer the bill as long as they hang on to the asset. . ." 

The "Green Book," which is a report from the Treasury Department, is expected to provide some detail on the Biden Administration's tax plans.

See Laura Davison & Nancy Cook, Democrats Mull Weakening Biden Tax On Capital Gains For Estates

Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.

May 24, 2021 in Current Events, Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, New Legislation | Permalink | Comments (0)

Monday, May 10, 2021

Dividends Received by an Employee of a Corporation are Still Part of Net Investment Income

IRSIn Chief Counsel Advice 202118009 the IRS addresses an interesting question: "Whether tax dividends received by a shareholder who is also employed by the C corporation is subject to the net investment income tax, as well as if the answer changes if the corporation is closely held." 

Net Investment Income Under IRC §1411

IRC §1411, which was added to The Affordable Care Act, "imposes a tax on the lesser of the net investment income of a taxpayer or the taxpayer's adjusted gross income in excess of threshold amounts that vary by filing status." 

This "net investment income" includes gross income from dividends apart from those that are the result of the ordinary course of a trade or business. (IRC §1411(c)(1)). 

The situation that is addressed by the IRS is quoted below: 

The Taxpayer is a shareholder in a C corporation. It was determined under examination that the corporation paid Taxpayer’s personal expenses from corporate accounts, and the payments were reclassified as dividend income paid to the Taxpayer by the corporation. The Taxpayer is also an employee of the corporation and is involved in the day-to-day operations of the corporation’s manufacturing trade or business. The facts further indicate that the corporation may be a closely-held corporation within the meaning of § 469(h)(1) as described in § 465(a)(1)(B) (the Taxpayer appears to own a majority of the shares of the corporation). The Taxpayer contends that because the Taxpayer materially participates in the manufacturing trade or business of the corporation as an employee, the dividend income that the Taxpayer received from the corporation is not subject to tax under § 1411, because the dividend income is derived in the ordinary course of a trade or business that is not a passive activity of the Taxpayer within the meaning of § 469

The deeper question is, under IRC §1411(c)(1), if a taxpayer is involved in day to day operations of the corporation whether the dividend income is removed from the investment income category found in (c)(1), or whether the dividends retain their status as investment income, and are outside the scope of the ordinary course of a trade or business. 

According to the IRS, employment does not change the nature of the dividends, meaning they retain their status as part of investment income.

For more information see, Ed Zollars, CPA, Dividends Received by an Employee of a Corporation are Still Part of Net Investment Income, Kaplan Financial Education: Current Federal Tax Developments, May 7, 2021. 

Special thanks to Mark J. Bade (CPA, GCMA, St. Louis, Missouri) for bringing this article to my attention. 

May 10, 2021 in Estate Planning - Generally, Income Tax, New Legislation | Permalink | Comments (0)

Wednesday, April 14, 2021

Client Alert: Are Changes Afoot for Estate and Gift Taxes?

Wealth taxUnder the current administration and "composition of Congress," changes to estate and gift taxes are likely. Senator Bernie Sanders recently proposed tax reform legislation that would "make major changes to the current estate and gift tax rules." 

If the legislation were adopted, there would be a reduction to the estate tax lifetime exemption. Under the proposed legislation, the current exemption ($11.7 million per taxpayer) would drop to $3.5 million, which would not be adjusted for inflation. Further, the gift tax lifetime exemption would be reduced to $1 million. 

Also, "gifts to irrevocable trusts and certain family entities, and gifts of assets subject to prohibitions on sale and those that cannot immediately be liquidated will be subject to a limit of $30,000 per donor annually." 

The rate of the estate tax which would change to a progressive rate and increase from 40 percent to 45 percent for taxable estates between $3.5 million and $10 million, "50 percent for estates between $10 million and $50 million, 55 percent for estates between $50 million and $1 billion, and 65 percent for estates over $1 billion." 

If adopted, the new legislation would affect the usefulness of grantor trusts, GRATs, and family entity discounts. 

The proposed legislation would also greatly affect trusts that are considered to be owned by a grantor for income tax purposes, which would be subject to federal estate tax upon the death of the grantor. Further, distributions from grantor trusts would be considered gifts from the grantor. 

Assuming that the proposed legislation, which would take effect in January 2022, would not be retroactive, taxpayers should consider taking advantage of the current laws so that they do not miss out on them if the proposal passes. 

See Carol A. Sobczak, Client Alert: Are Changes Afoot for Estate and Gift Taxes?, Shumaker, April 9, 2021. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

April 14, 2021 in Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, New Legislation | Permalink | Comments (0)

Friday, April 2, 2021

U.S. Senate Introduces Legislation for Higher Taxes on Wealth

Wealth taxOn March 25, 2021, Senator Bernie Sanders introduced the For the 99.5 Percent Act (the 99.5 percent Act). The Act looks to modify the estate, gift, and generation-skipping transfer tax. 

If accepted, the Act would "reduce the estate tax exemption, set the gift tax exemption at an amount lower than the estate tax exemption, and increase tax rates on large gifts and estates, effectively returning the gift and estate tax rules to the law in effect in 2009, but with higher rates." The changes would apply to transfers occurring after December 31, 2021. 

Other changes under the Act include: 

  • The estate tax exemption amount would be reduced to $3.5 Million per individual ($7 Million for married couples), with no adjustment for changes in the cost of living. Under current law, the estate tax exemption amount is $11.7 Million per individual ($23.4 Million for married couples), adjusted annually for changes in the cost of living. However, the current exemption amount is scheduled to be reduced by 50% after December 31, 2025. 
  • The amount of the exemption available to shelter lifetime transfers from gift tax would be reduced to $1 Million per individual ($2 Million for married couples), with no adjustment for changes in the cost of living. The portion of the $1 Million exemption used during an individual’s lifetime to shelter lifetime gifts from gift tax would reduce the amount of the $3.5 Million exemption available to shelter transfers at the individual’s death from estate tax. Under current law, the gift tax exemption is the same as the estate tax exemption (and will also be reduced by 50% after December 31, 2025), and any amount not used during an individual’s lifetime is available to shelter transfers at death from estate tax. 
  • The estate tax rate would increase using a progressive tax rate based upon the value of the decedent’s estate:
    • There would be no tax on the first $3.5 Million of the estate.
    • There would be a 45% tax on the estate in excess of $3.5 Million up to $10 Million.
    • There would be a 50% tax on the estate in excess of $10 Million up to $50 Million.
    • There would be a 55% tax on the estate in excess of $50 Million up to $1 Billion.
    • There would be a 65% tax on the estate in excess of $1 Billion.

See U.S. Senate Introduces Legislation for Higher Taxes on Wealth, Greenberg Glusker, March 26, 2021. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

April 2, 2021 in Estate Administration, Estate Planning - Generally, Estate Tax, Generation-Skipping Transfer Tax, Gift Tax, New Legislation | Permalink | Comments (0)