CH.15 – Non-Donative Transfers

· Intrafamily installment sales

· Gift-leaseback arrangements

· Tax-free exchanges

· Private annuities

· Grantor retained annuity trusts

· QPRTs

· Joint or split purchases

· Remainder interest sale

· Intentionally defective grantor trust

Fundamental Objectives for these Transactions

· Limit transfer tax exposure

· Transfer appreciation potential for benefit of younger generation members

· Gain recognition, if any, for FIT purposes:

- Capital gains (not ordinary income) treatment

- Deferral of any gain recognition

· Leverage on borrowing arrangements, e.g., low interest costs for debt component

Family Installment Sales
p.2

Older family member sells appreciated property to younger family member (e.g., Maxwell case where a retained interest):

- Deferred payments & deferral for capital gains tax recognition (15%?)

- Eligible for §453 treatment (if not listed stock or a sale to a related party who sells property)

- Subsequent appreciation accrues to the buyer

- Interest is to be paid by buyer to seller? §7872

Alternative Approach
p.3

Alternative to a family member sale: 

- Mortgage the property & retain the indebted property (subject to the mortgage debt).

- Make a gift of the cash received.

- Tax basis step-up (§1014) for property at death.

- But, greater value of the property at time of death (through appreciation)?

Sale for Self-Cancelling Installment Note (SCIN)    

Installment sale from parent to child but the promissory note specifies its cancellation at the time of death of the seller:

- Increase the interest (or principal?) amount to include an actuarial component in payment?

- What inclusion of the transferred property in the estate for estate tax purposes?  None?

- Installment sales treatment?

- Income tax treatment at death?  IRD?

Estate of Frane           p.6
Cancelled debt at death

Installment obligations cancelled at death: Issue:  (1) IRD (under §691), or (2) Installment debt disposition recognition (§453B), or (3) no income event?

Tax Court: Estate taxed on income - §453B(f)

Tax Court dissent: no income event; Est. of Moss (p.22) – no interest in the notes at death.

Ct. of Appeals: §691(a)(2) applies – an IRD item on the final individual income tax return

Planning the SCIN Transaction

Essential:  Clear documentation – see Costanza, p. 24

Include an actuarial premium in the amount  being paid to seller.  An additional asset in seller’s estate (unless spent).

Alternative:  provide a contingent bequest to the note issuers to fund the unpaid balance on the promissory note?

Gift or Sale/Leaseback
p.25

Sale – gain recognition & basis is fmv; 

Gift – carryover basis to donee.

Transferor:  (1) pays (deductible) rent to the new property owner; (2) receives interest & principal if a sale (& a capital gains event; cf., §1239, seller’s cap gain transformed into ordinary income in limited situations).

Transferee: (1) rental income; (2) pays interest expense (& principal) & (3) gets an investment interest expense deduction (& depreciation?).

Tax-free exchanges & family members         p.26

Code §1031 re gain postponement on like-kind exchanges: is the exchange eligible for §1031?
Why do this?  Exchange high appreciation potential property for income producing property on tax-free basis? & get gross income.

Hold the replacement property for a tax basis step-up at death - §1014.

See §1031(f) limitation on related party like-kind exchanges when a sale of exchange property made by the related person.

Private Annuity           p.28
Non-commercial Obligor

Objectives in implementing the private annuity transaction?

Tax issues:  1)  gain recognition on the transferred property at the time of the annuity transaction (or later)?

· If deferral, how report the annuity income for FIT purposes?

3)  Estate tax inclusion at the time of death of the annuitant?  A retained life interest?

PLR 9009064
p.30

Private annuity a with school for transfer of coop apartment remainder interest.

Minimum (250x, refund feature) & COLI

See reliance on Rev. Rul. 69-74, p.32

Possible elements in each payment: 

· tax basis recovery,

· capital gain,

· 3)   ordinary income (interest),

· possible depreciation recapture 

      (a component of the total gain).

Abandoning “Open Transaction” Treatment

IR 2006-161 (2006), p.35 – announcement & proposed regulations & an immediate effective date; but, no final regs. (six years later).  Wait how long for final regs?

Prop. Reg. §1.1001-1(j) – receipt of the contract is the “receipt of property.”

Prior Stern case (p.37) & “closed transaction”? §677 (grantor trust issuing a private annuity obligation);  not closed here since no security for assuring payment of annuities. But, Prop. Reg. to the contrary. 

Shortened Life Expectancies             p.39

Private annuity transaction by a terminally ill person (assuming no reg.)? McLendon case, p. 39 – private annuity transaction with a family trust; transfer of remainder interests in a partnership in exchange for annuity.

Actuarial life expectancy:  15 years

Adequate & full consideration? See old Rev. Rul. 80-80 allowing use of tables? 10% survival probability?  See Reg. §1.7520-3(b)(3) – 50% chance of dying within one year; but, rebutted if living for 18 months.

Grantor Retained Annuity Trust (GRAT)             p.49

What is the primary tax planning objective for implementing a “GRAT”?

Cf., a “GRIT” (grantor retained income trust).

See Code §2702(a)(2) & (b)(1) – the retained interest must be a “qualified interest” – or the retained interest is treated as having zero value (i.e., all value is transferred as a gift).

“Qualified interest” as defined – a right to receive fixed amounts payable at least annually.

How long a term?  See H.R.4849 (2010) (fn., p.49) re a possible minimum ten year term.

PLR 20001013            p.50
GRAT Established

· Grantor trust treatment - §§674 (P/A) & 677 (discretion to pay all income)

- Rev. Rul. 85-13 treatment – no gain on transfer of assets for annuity payments.

· Grantor trust - Qualified for Sub S stock

· For gift tax, a “qualified interest” – since right held to receive fixed amounts. Gift value excludes qualified annuity interest.

· 4)  Estate tax - not includible (§2036)  in grantor’s gross estate – if surviving the term of GRAT.

Objective of the “Zeroed-Out” GRAT                  p.57

PLR 9717008 – short term (two year) GRAT and payments to be funded with promissory note.  Held:  not a qualified GRAT.

Funded with shares which appreciated and latter annuity payments were made with shares.

No IRS ruling re a “zeroed out” GRAT (p.65) –

- The remainder interest must be at least 10 percent of the initial net market value &

- The annuity not more than 50% of the value.

Pay the GRAT with a Promissory Note?     P.65

Regs.:  A promissory note can not be used to pay the annual GRAT obligation – the transferor’s retained interest will be valued at zero (for gift tax purposes).  The note is not a “payment.”

The annuity agreement must prohibit the use of  a promissory note to pay the annuity.

Estate Tax Inclusion – Death before GRAT Ends

What value is includible in the gross estate if the grantor dies before the expiration of the specified term of the GRAT?

Inclusion in the gross estate of only an amount necessary to fund the annuity for the remaining term based on §7520 rates.  Reg. §20.2036-1(c)(2).  

No inclusion of the full value of the trust as measured at the time of death (possibly occurring under §2039).

Use “staggered GRATs”?

Qualified Personal Residence Trust        p.67

Code §2702(a)(3)(A)(ii) – re personal residence trust.

Choices under the tax regulations:

- Personal residence trust, or,

- Qualified personal residence trust (QPRT)

Valuation of the gift of the remainder interest is based on:  (1) the FMV of the property, (2) the client’s age, and (3) the §7520 interest rate (120% of mid-term AFR).

PLR 200241039
p.68

What is the “personal residence”?

Adjoining property?  Guesthouses?

This ruling specifies:

- Property (including other structures) is used       for residential purposes.

- The trust agreement includes all the required provisions to enable QPRT treatment.  See Reg. §25.2702-5(c).

Residential Property Management Issues

QPRT & property managements issues:

Who deals with the maintenance costs?

Real estate taxes? Insurance?

Cost of improvements – who pays?

Who has the replacement cost obligation for a casualty loss if the loss is not covered by casualty insurance?

Rev. Proc. 2003-42
p.74

Sample form for QPRT agreement with one term holder.

“Safe harbor” trust agreement format – the agreement must be “substantially similar.”

But, also a possible PLR concerning the status of property as being QPRT eligible?

What Happens When QPRT Term Ends?

Where does the QPRT trust grantor live after the expiration of the QPRT term?

- Sale of the property back to grantor? No

- But, possible lease back (without §2036(a) estate tax inclusion)?  Yes.

- Use a “return QPRT”?  Yes (see PLRs, p. 74) re beneficiaries creating a QPRT for the benefit of the original donor.

How to reduce the gift tax values?

- Spouses partition their interests and put (then discounted) fractional shares into several QPRTs?  See p. 75.

2)  Retention of a contingent reversion if dying within the specified QPRT period – since the asset is included in grantor’s gross estate in this situation (under §2036).   P. 75.  This can reduce the value of the gift to the remainderman.

Joint Purchases
p.77

Code §2702(c)(2) – two or more family members acquire interests in property where one interest is a term interest.

The person acquiring the term interest is treated as acquiring the entire property (less any consideration provided by the other party).

Therefore, the transaction is an entire gift of the property, less any consideration provided by the remainderman.

PLR 9206006
p.78

This private letter ruling was issued before Code §2702 enactment.

Purchase of condo unit:  Parent acquires  life interest & child acquires the remainder interest.

Issue re Code §2036(a) estate tax inclusion.

Result:  Inclusion of most of the value.

Problems:  (1) failure to use the correct actuarial factor and (2) borrowings from the parent to purchase the remainder interest.

Joint Purchase of a Personal Residence?

P. 83.

Reg. §25.2702-1(c)(2) states that Code §2702 does not apply to a “transfer in trust that meets the requirements of §25.2702-5.”

Sale of a Remainder Interest in Property

Remember the forced widow’s election re the widow’s sale of a remainder interest.

See Reg. §25.2702-4(d), Example 2:  Sale by parent of remainder interest to child, retaining income right for 20 years.  Even if value paid by child is equal to §7520 value, the parent’s retained interest is not a “qualified interest” and, therefore, the value of the retained interest is zero.  Therefore, a gift of entire property value (less consideration from child).

D’Ambrosio case
p. 83      Cf., Gradow case

Transfer by 80 year old person of (1) a remainder interest in preferred shares in exchange for an annuity and (2) retained the income interest. 

Inclusion of full value of shares in the estate?

Tax Court:  inclusion of full share value, offset only for annuity payments received.

3^rd Circuit:  Held: inclusion of remainder interest less the value of the annuity (paid for the remainder interest).

Intentionally Defective Grantor Trust (IDIT)    p.96

Trust as:  (1) an effective transfer to avoid estate tax inclusion, but

(2) defective for income tax purposes.

Purpose of this arrangement?