Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Similar documents
Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features: Brian E. Hammell, Esq., Sullivan & Worcester, Boston

Springing the Delaware Tax Trap: Drafting Limited Powers of Appointment to Increase Asset Income Tax Basis

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features: Dean C. Berry, Partner, Cadwalader Wickersham & Taft, New York

Impact of Tax Reform on ABLE Accounts and Special Needs Trusts: Guidance for Elder Law Attorneys

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Estate Planning and Tax Reform: Wealth Transfer Structures Under the New Tax Law

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Estate Planning With Grantor Trusts: Leveraging GRATs and IDGTs to Minimize Taxes, Preserve and Transfer Assets

Protecting Business Assets From Creditors in Litigation: Strategic Choice of Entities, Avoiding Fraudulent Transfers

Structuring Equity Compensation for Partnerships and LLCs Navigating Capital and Profits Interests Plus Section 409A and Tax Consequences

Scott J. Bakal, Partner, Neal Gerber & Eisenberg, Chicago Robert C. Stevenson, Attorney, Skadden Arps Slate Meagher & Flom, Washington, D.C.

QDRO Drafting Boot Camp: Preparing QDROs for 401(k)s and Similar Defined Contribution Plans

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

New Section 199A: Structuring Real Estate Transactions to Take Advantage of the Qualified Business Income Deduction

Commercial Lease Negotiations: Property and Liability Insurance, Proof of Coverage, AI and Loss Payee Issues

Asset Sale vs. Stock Sale: Tax Considerations, Advanced Drafting and Structuring Techniques for Tax Counsel

Completion Guaranties in Construction Lending: Key Provisions for Lenders and Guarantors

Structuring Equity Compensation for Partnerships and LLCs Navigating Capital and Profits Interests Plus Section 409A and Tax Consequences

A December Guide to the Trump Tax Act: Where We Stand and New Planning Opportunities

Advanced Trust Drafting for Income Tax Minimization: Including Capital Gains in DNI, Push-Outs and More

U.S.-Israeli Estate Tax Planning for Dual Citizens

Drafting Income-Only Trusts for Medicaid Eligibility and Tax Planning

Exercising Setoff and Recoupment Rights in Bankruptcy

Universal Health Services v. Escobar: Avoiding Implied Certification Liability Under FCA

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Survivor Benefit Plans and Military Divorce: Defending Against or Claiming Former-Spouse SBP Coverage

Executive Compensation: Tax and Other Considerations for Restricted Stock Awards

Private Investment Funds and Tax Reform

Attendees seeking CPE credit must listen to the audio over the telephone.

Presenting a 90-minute encore presentation featuring live Q&A. Today s faculty features:

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Property Management and Leasing Agreements: Key Provisions for Multi-Family, Office, Retail and Industrial Properties

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features: W. Aaron Hawthorne, Managing Director, Andersen Tax, Dallas

Grantor Retained Annuity Trusts in 2013: Tax-Efficient Estate Planning Techniques Leveraging GRATs to Preserve and Transfer Assets

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Tax Allocation in Pass-Through Entities

ERISA Retirement Plan Investment Management Agreements: Guidance for Plan Sponsors to Minimize Risks

ERISA Compliance and Monitoring 401(k) Investments: Safe Harbor Rules and Appointing Advisers

Investment Adviser Advertising Rule: New SEC Guidance and Best Practices for Compliance

Structuring Special Needs Trusts for the Elderly and Disabled to Protect Public Benefits

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features: James O. Lang, Shareholder, Greenberg Traurig, Tampa, Fla.

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

VA Benefits and Medicaid Eligibility

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features: Elizabeth A. Gartland, Esq., Fenwick & West, San Francisco

Private Equity Waterfall and Carried Interest Provisions: Economic and Tax Implications for Investors and Sponsors

Financing Multi-Family Housing: Structuring the Low Income House Tax Credit and Tax-Exempt Bonds Documenting Transactions for Investors and Developers

Foreign Investment in U.S. Real Estate: Impact of Tax Reform

Fiduciary Compliance in ESOP Transactions: Recent DOL Settlement Agreements

Tax Challenges for NPO Counsel: Excess Benefit Transactions for Executive Comp and Other Financial Dealings

ERISA Pre-Approved and Customized Benefit Plans: Overhauled IRS Procedures and Determination Letter Process

Creatively Completing The Capital Stack: Real Estate GP Private Equity Funds

Clearing Title for Defects Due to Mortgage-Related Issues, Legal Description Errors, and Foreclosure

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Robert S. Barnett, Partner, Capell Barnett Matalon & Schoenfeld, Jericho, N.Y.

Tax Strategies for Real Estate LLC and LP Agreements: Capital Commitments, Tax Allocations, Distributions, and More

Allocating Operating Expenses in Commercial Real Estate Leases: Negotiating Strategies for Landlords and Tenants

Corporate Governance of Subsidiaries: Board Roles and Responsibilities, Interplay With Parent Board, Liability Risks

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Structuring Commercial Loan Documents to Protect Non-Affiliated Lenders

IRC Section 338(h)(10) Election

Bankruptcy Section 506(c) Surcharge on Secured Collateral

Section 704, Targeted Allocations, and the Distribution Waterfall: Overcoming Challenges Absent IRS Guidance

UCC Article 9 Update: Searching and Filing Under New Amendments

S-Corp Trusts in Estate Planning: Drafting Grantor, Testamentary, Qualified Sub S and Electing Small Business Trusts

Structuring Preferred Equity Investments in Real Estate Ventures: Impact of True Equity vs. "Debt-Like" Equity

UCC Article 9 Blanket Asset Lien Exclusions and Purchase Money Security Interests

Insurance Coverage for Statutory and Liquidated Damages and Attorney Fees: Policyholder and Insurer Perspectives

Leveraging Earnings-Stripping Regs for Foreign Investments: Maximizing Tax Savings, Minimizing IRS Scrutiny

M&A Indemnification Deal Terms: 2017 Survey Results

Mastering Form 8937 and Section 6045B:

UCC Article 9 Update on Searching and Filing: Best Practices for Secured Lenders Under the Amended Rules

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features: Matthew B. Grunert, Partner, Andrews Kurth Kenyon, Houston

Opinion Letters in Commercial Real Estate Best Practices to Minimize Risk When Crafting Third Party Opinions on Loans and Acquisitions

Asset Spend-Down for Medicaid Qualification Navigating the Complexities of Classifying Assets, Individuals vs. Married Couples, and Appeals Process

ERISA Considerations in Structuring Credit Facilities with Private Investment Funds

UCC Article 9 Blanket Asset Lien Exclusions and Purchase Money Security Interests

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Interest Rate Hedges in Real Estate Finance: Placing Swaps, Caps, and Collars on Floating Rate Loans

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

401(k) Plan Nondiscrimination Testing: Guidance for Employee Benefits Counsel

Best Efforts and Commercially Reasonable Efforts in M&A Agreements: Drafting and Interpretation Challenges

Distressed Loan Workouts: How Equity Cure Rights Work, Negotiating Loan Restructuring and Forbearance Agreements

Final IRS Sect. 67(e) Regs for Estate and Trust Taxpayers: Applying the Required 2% Deduction Floor

Fraudulent Conveyance Exposure for Intercorporate Guaranties, Integrated Transactions and Designated-Use Loans

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Uninsured and Underinsured Motorist Claims: Leveraging Insurance Stacking

Presenting a live 110-minute teleconference with interactive Q&A

Form 1041 Schedule D: Reporting Capital Gains for Trusts and Estates

Auto Injury Claim Recovery: Maximizing Pain and Suffering, Loss of Future Earning Capacity Damages

Drafting Irrevocable Silent Trusts: Preserving Privacy of Trust Assets from Spendthrift Beneficiaries

Minority Investors in LLCs: Contractual Limitations, Waivers of Fiduciary Duties, Other Key Provisions

Bank Affiliate Transactions Under Scrutiny Complying With Regulation W's Complex Restrictions on Business Dealings with Affiliate Institutions

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Presenting a live 90-minute webinar with interactive Q&A. Today s faculty features:

Mezzanine Lending: Overcoming Lender Risks to Protect ROI

Drafting Shareholder Agreements for Private Equity M&A Deals

Tax Treatment of Carried Interest: Planning Opportunities for Tax, Private Equity and Real Estate Professionals

Transcription:

Presenting a live 90-minute webinar with interactive Q&A NING and DING Trusts in Estate Planning: Designing ING Trusts to Avoid State Income Tax and Protect Assets Effective Drafting of Incomplete Gift Non-Grantor Trusts, Jurisdictional Differences, IRS PLRs TUESDAY, AUGUST 11, 2015 1pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Robert S. Keebler, Partner, Keebler & Associates, Green Bay, Wis. Steven J. Oshins, Oshins & Associates, Las Vegas The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. NOTE: If you are seeking CPE credit, you must listen via your computer phone listening is no longer permitted.

Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-258-2056 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. NOTE: If you are seeking CPE credit, you must listen via your computer phone listening is no longer permitted. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

Continuing Education Credits FOR LIVE EVENT ONLY In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you email that you will receive immediately following the program. For additional information about CLE credit processing call us at 1-800-926-7926 ext. 35. For CPE credits, attendees must participate until the end of the Q&A session and respond to five prompts during the program plus a single verification code. In addition, you must confirm your participation by completing and submitting an Attendance Affirmation/Evaluation after the webinar and include the final verification code on the Affirmation of Attendance portion of the form. For additional information about CPE credit processing call us at 1-800-926-7926 ext. 35.

Program Materials FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: Click on the ^ symbol next to Conference Materials in the middle of the lefthand column on your screen. Click on the tab labeled Handouts that appears, and there you will see a PDF of the slides for today's program. Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon.

NING and DING Trusts in Estate Planning: Designing ING Trusts to Avoid State Income Tax and Protect Assets Presented by: Robert S. Keebler, CPA/PFS, MST, AEP (Distinguished), CGMA and Steven J. Oshins, Esq., AEP (Distinguished) Copyright 2015 by Steven J. Oshins and Robert S. Keebler. All rights reserved.

Nevada Incomplete Gift Non-Grantor Trust There must be a way to save state income taxes! 6

The Opportunity #1 Resident of state with state income tax contributes low basis asset to NING Trust Trustee sells low basis asset Avoids state income tax on the sale 7

The Opportunity #2 Resident of state with state income tax contributes investment portfolio to NING Trust Trustee continues to invest portfolio Avoids state income tax on gains 8

NING Trust Description NING Trust Non-grantor trust for income tax purposes Distribution Committee made up of adverse parties Incomplete gift for gift tax purposes Retained testamentary power of appointment Retained non-fiduciary inter vivos power of appointment for HEMS Chief Counsel Advisory 201208026 9

How States Tax Non-Grantor Trusts The NING Trust doesn t work if you can t work around the resident s state income tax rules Source income Non-source income Grantor s residency? Administered in state? Resident trustee? Resident beneficiary? 10

PLR 201310002 Grantor created irrevocable trust for the benefit of himself and his issue Grantor had four sons Sole Trustee = corporate trustee Distribution Committee = Grantor and his four sons Must be at least two members or the Distribution Committee ceases to exist Ceases to exist upon Grantor s death 11

PLR 201310002 (cont.) During Grantor s lifetime, distributions may be made Grantor s Consent Power: Majority of Distribution Committee Members plus written consent of the Grantor Unanimous Member Power: All of the Distribution Committee Members, other than the Grantor Grantor s Sole Power: Grantor, in a non-fiduciary capacity, may distribute to one or more of Grantor s issue for HEMS 12

PLR 201310002 (cont.) Grantor retained the following powers to avoid a completed gift: Lifetime power of appointment, in a non-fiduciary capacity, to distribute to one or more of Grantor s issue for HEMS Testamentary power of appointment to appoint to anyone other than the Grantor s estate, the Grantor s creditors or the creditors of the Grantor s estate 13

PLR 201310002 (cont.) Requested Rulings Request #1: Rule that the trust is a non-grantor trust for income tax purposes Request #2: Rule that contributions to the trust by the Grantor are not completed gifts for gift tax purposes Request #3: A distribution from the Distribution Committee to the Grantor is not subject to federal gift tax by any member of Distribution Committee Request #4: A distribution from the Distribution Committee to a beneficiary other than the Grantor is not subject to federal gift tax by any member of Distribution Committee 14

PLR 201310002 (cont.) Requested Ruling #1: Rule that the trust is a nongrantor trust for income tax purposes Self-settled asset protection trust jurisdiction Many grantor trust provisions have adverse party exception: person having a substantial beneficial interest in the trust which would be adversely affected by the exercise or nonexercise of the power Retained lifetime power of appointment for HEMS in nonfiduciary capacity IRC Sec. 674(b)(5)(A) reasonably definite standard 15

PLR 201310002 (cont.) Requested Ruling #2: Rule that contributions to the trust by the Grantor are not completed gifts for gift tax purposes Estate of Sanford, 308 U.S. 39 (1939) - Reservation of power to change beneficial interests Treas. Reg. Sec. 25.2511-2(b) Transfer of property where donor retains testamentary power of appointment is incomplete gift Remember Chief Counsel Advisory 201208026 Treas. Reg. Sec. 25.2511-2(c) Transfer of property where donor retains power to change interests of the beneficiaries is incomplete gift unless power is a fiduciary power limited by a fixed or ascertainable standard 16

PLR 201310002 (cont.) Requested Ruling #3: A distribution from the Distribution Committee to the Grantor is not subject to federal gift tax by any member of Distribution Committee IR-2007-127 (July 9, 2007) IRS announced that they were reconsidering whether the Distribution Committee was making gifts According to the PLR, any distribution of property by the Distribution Committee from Trust to Grantor is merely a return of Grantor s property. 17

PLR 201310002 (cont.) Requested Ruling #4: A distribution from the Distribution Committee to a beneficiary other than the Grantor is not subject to federal gift tax by any member of Distribution Committee Grantor s Consent Power IRC Sec. 2514(c)(3)(A) says power of appointment exercisable in conjunction with creator of the power is not a GPOA Unanimous Member Power IRC Sec. 2514(c)(3)(B) says power of appointment exercisable in conjunction with person having substantial interest in the property which is adverse to the exercise of the power is not a GPOA The PLR gives an example using X, Y and Z demonstrating the point 18

Numerical Example Low Basis Asset Example using round numbers Assumptions Business will be sold for $5,000,000 Income tax basis is $0 Federal capital gains rate is 20% plus 3.8% Obamacare State capital gains rate is 10% Disregard Federal income tax deduction for state income tax paid Using NING Trust $5,000,000 sales proceeds $1,190,000 Federal income tax (i.e., $5,000,000 times 23.8% tax) No state income tax (would have been $500,000 without the NING) $3,810,000 after-tax proceeds (would have been $3,310,000 without the NING) 19

Numerical Example Portfolio Example using round numbers Assumptions $3,000,000 stock/bond portfolio 6% annual dividend/capital gains income State dividend/capital gains rate is 10% Using NING Trust $180,000 annual dividend/capital gains income No state income tax (would have been $18,000 without the NING) This is just one year -- the results compound over time! 20

NRS 166.015.2 - Trustee Requirements At least one trustee of a spendthrift trust must be: (a) A natural person who resides and has his or her domicile in this State; (b) A trust company that: (1) Is organized under federal law or under the laws of this State or another state; and (2) Maintains an office in this State for the transaction of business; or (c) A bank that: (1) Is organized under federal law or under the laws of this State or another state; (2) Maintains an office in this State for the transaction of business; and (3) Possesses and exercises trust powers. 21

NRS 166.015.1(d) - Other Requirements At least one Nevada trustee must have powers that include maintaining records, and preparing income tax returns for the trust All or part of the administration of the trust must be performed in Nevada 22

Other Use Sprinkling Income Many of our clients make annual exclusion gifts (and sometimes exemption gifts) each year Rather than making a gift out of their pocket, consider: Distribution from NING Trust of $14,000 per year (or $28,000 per year if Grantor is married) to each intended beneficiary Most of our clients children, grandchildren and other intended beneficiaries are in lower income tax brackets 23

Other Use Sprinkling Income 2015 Ordinary Income Tax Rates for Estates & Trusts 39.6% 33% 28% 25% 15% $ 12,300 $ 9,050 $ 5,900 $ 2,500 24

Other Use Sprinkling Income 2015 Ordinary Income & Capital Gain Rates for Individuals Single NIIT Threshold < $ 9,225 $ 37,450 $ 90,750 $ 189,300 $ 411,500 $ 413,200+ 39.6% 35% 33% 28% 25% 15% 10% $ 464,850+ $ 411,500 $ 230,450 Married $ 151,200 PEP/PEASE Threshold $ 74,900 < $ 18,450 Capital Gains Rates 0% 15% 20% 25

Other Use Sprinkling Income Federal Marginal Rate Comparison 45.0% 40.0% 35.0% 30.0% 25.0% 20.0% 15.0% 10.0% $- $100,000 $200,000 $300,000 $400,000 $500,000 Single MFJ Trust 26

Other Use Sprinkling Income Federal Tax Savings of Shifting Income 27

Other Use Sprinkling Income General Tax Rules Income taxed to either the trust or the beneficiary If income is accumulated, then the income is taxed to the trust If income is distributed, then the trust receives an income tax deduction and beneficiaries report taxable income 28

Other Use Sprinkling Income Distributable Net Income (DNI) Determines the amount of the trust s or estate s income distribution deduction. Determines how much the beneficiaries must report as income on their tax returns. Determines the character (e.g. interest, dividends, etc.) of the taxable income in beneficiaries hands. 29

Other Use Sprinkling Income Distributable Net Income (DNI) Trust/Estate DNI acts as a ceiling for purposes of the allowable deduction DNI Beneficiary DNI acts as a ceiling for the total amount of income the beneficiary must report on his/her tax return 30

Other Use Sprinkling Income 65-Day Rule IRC 663(b) Applies to estates and complex trusts Allows fiduciary to treat distributions made within 65 days after year-end to be treated as if they were made as of December 31 st of the prior year Limited to DNI (reduced by distributions made during the prior year) Election must be made by the due date of the tax return Election is irrevocable Annual election 31

Other Use Sprinkling Income 65-Day Rule IRC 663(b) Distributions for the 2015 tax year made during this period will be treated as have been made as of 12/31/2015 (if a timely election is made) 2015 2016 12/31 +65 days 32

Other Use Reducing the Itemized Deduction Phase-out IRC 68 (named after Congressman Pease) limits the use of itemized deductions. It reduces certain itemized deductions of individuals by 3% of the amount by which AGI exceeds a threshold, up to a maximum reduction of 80% of the affected deductions. The 2015 thresholds are as follows: Single $ 258,250 Head of Household $ 284,050 Married Filing Jointly $ 309,900 33

Other Use Reducing the Itemized Deduction Phase-out Example Consider a single taxpayer with an AGI of $3,000,000 and itemized deductions of $100,000. This taxpayer s income exceeds the threshold by $2,741,750 [$3,000,000 - $258,250]. Itemized deductions are reduced by the maximum amount of $80,000 [$100,000 x 80%] because this amount is less than the $82,253 [$2,741,750 x 3%] calculated using the 3% phaseout. 34

Other Use Reducing the Itemized Deduction Phase-out Example (cont) Therefore the taxpayer can only claim $20,000 in itemized deductions [$100,000 - $80,000]. Assuming the lost deductions of $80,000 would have offset ordinary income and the NIIT applies, the taxpayer will incur $34,720 [$80,000 x 43.4%] in additional tax. 35

Other Use Reducing the Itemized Deduction Phase-out Example (cont) However, consider if the taxpayer shifts income producing investments into trust and reduces AGI to $500,000. In that case, the $100,000 in itemized deductions are only reduced by $7,253 [($500,000 - $258,250) x 3%] and the tax savings are $31,572 [$34,720 ($7253 x 43.4%)]. 36

Thank You For Attending Today s Seminar Robert S. Keebler, CPA, MST, AEP (Distinguished) Keebler & Associates, LLP 420 S Washington St. Green Bay, WI 54301 Phone: 920-593-1701 Website: www.keeblerandassociates.com Email: robert.keebler@keeblerandassociates.com Steven J. Oshins, Esq., AEP (Distinguished) Law Offices of Oshins & Associates, LLC 1645 Village Center Cir., Ste. 170 Las Vegas, NV 89134 Phone: 702-341-6000 Fax: 702-341-6001 Website: www.oshins.com Email: soshins@oshins.com 37