Month: April 2002

Turning off the Ordinary Income Pump

Employer Stock in Selected 401(k) Plans

Employer		Employer
Procter & Gamble	94.7	Williams	75.0
Sherwin-Williams	91.6	McDonald’s	74.3
Abbott Laboratories	90.2	Home Depot	72.0
Pfizer	85.5	McKesson HBOC	72.0
BB&T	81.7	Marsh & McLennan	72.0
Anheuser-Busch	81.6	Duke Energy	71.3
Coca-Cola	81.5	Textron	70.0
General Electric	77.4	Kroger	65.3
TexasInstruments	75.7	Target	64.0
William Wrigley, Jr.	75.6	Household International	63.7
Company stock as a percentage of total 401(k) plan assets		11/01 DC Plan Investing, InstituteofManagement andAdministration, NY.

Despite the clamor for pension reform resulting from the Enron debacle, many of the nation’s best companies still have plenty of their own stock in their profit-sharing and 401(k) retirement plans.  While there are no taxes when assets are sold and reinvested inside these plans, lifetime withdrawals typically produce all ordinary income, taxed at the owner’s highest marginal tax rate. In addition, such assets can be hit at death with both the income tax and the estate tax, consuming up to 80% of their value as IRD assets (income in respect of a decedent).  These IRD assets are more frequently found and many people don’t recognize the tax traps associated with a lifetime of tax deferred savings.

 

Many people nearing retirement or after leaving an employer irrevocably roll these assets into an IRA, wait until the mandatory withdrawal age (April 1 after the year the owner turns 70 ½), and then begin withdrawals under the required minimum distribution rules. From an IRA, withdrawals are 100% taxable ordinary income. There is another, more tax-efficient way.

 

 

What Works?

 

Under retirement plan distribution rules ⁽³⁾, if you meet certain requirements, you can convert the appreciation from ordinary income to long-term capital gain by taking an “in-kind distribution” of the employer securities inside your 40l(k) or profit-sharing plan There is no capital gain tax until you sell, but you report as ordinary income only the cost basis of the stock. This forces most people to sell stock to raise cash in order to pay the tax, but this sale would also trigger the 20% capital gain tax on the appreciation. What to do?

 

You can structure a win-win situation for you and for your favorite charity. The ordinary income tax to which you are subject when you receive an in-kind distribution can be offset by the charitable deduction generated by funding a CRT.

 

 

Example:        $2.5 million market value with $300,000 cost basis. Income tax is due on $300,000 cost basis. Owner sells the stock triggering 20% capital gain tax on the appreciation. Total income tax and capital gain tax is $555,800.

Solution:        Part Sale/Part Gift. Sell $500,000 worth of shares. Contribute $2 million worth of shares to a CRT.

 

SalePortion  Ordinary income tax on $300,000 basis; 20% capital gain tax on gain from the sale of $500,000.

 

CRT Portion  Charitable income tax deduction on remainder value of CRT. No immediate capital gain tax when CRT sells the shares. Lifetime income to owner/spouse; preferential tax treatment under the 4-tier system On death, CRT assets go to donor’s charity.  (For age M65/F65, 5% CRT, 5.4% discount rate, deduction is $705,540 to be claimed up to IRS contribution ceilings)

 

 

Who is Eligible?

Employee must have been a participant for five years, and attained age 59 1/2; or have terminated service with the employer; or be significantly disabled ⁽²⁾

 

 

Summary of Advantages of an In-kind ⁽³⁾ Distribution via CRT Planning

 

• Ordinary income from pension distributions can be converted to long-term capital gains.
• Avoids double taxation as IRD asset at death.
• Avoids the confusing minimum distribution requirements.
• Property can be transferred without triggering income tax on amount exceeding cost basis.
• Lifetime income to donor and spouse.
• Charitable deduction for CRT offsets income tax from in-kind distribution.
• Donor’s favorite charity receives substantial gift on death of CRT beneficiaries.

 

⁽¹⁾DC Plan Investing,InstituteofManagementand Administration,New York

⁽²⁾IRC Sec. 72(m)(7)

⁽³⁾IRC 402(e)(4)(D)

 

 

© 2002, Henry & Associates – Ashton Associates

 

 

 

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Last Updated: November 11, 2002

CONTACT US FOR A FREE PRELIMINARY CASE STUDY FOR YOUR OWN CRT SCENARIO or try your own at Donor Direct Please note — there’s much more to estate and charitable planning than simply running software calculations, but it does give you a chance to see how the calculations affect some of the design considerations. This is not “do it yourself brain surgery”. When is a CRUT superior to a CRAT? Which type of CRT is best used with which assets? Although it may be counter-intuitive, sometimes a lower payout CRUT makes more sense and pays more total income to beneficiaries. Why? When to use a CLUT vs. CLAT and the traps in each lead trust. Which tools work best in which planning scenarios? Check with our office for solutions to this alphabet soup of planned giving tools.

Real Estate and the CRT

Controlling 100% of Your Family’s Social Capital

Real Estate Income Property Converted for Retirement

Sarah Sullivan, a widow age 72, has a modest estate with some cash savings and an apartment complex that has become increasingly burdensome to manage. As a former high school biology teacher, she is comfortable with her pension, but she would like to travel with her grandchildren while her health remains good. The rental property generates a decent source of income, but the responsibilities of day to day management keep her tied closely to the units. As the property ages, recurring repairs and dealing with renters has taken most of the enjoyment out of the property since her husband passed away some 5 years earlier. She would like to move to Florida to spend more time with her adult daughter and grandchildren. However, she is unwilling to sell the apartments and pay 30% of her proceeds as a capital gains tax. Besides the income tax issue, she was especially incensed to learn that she would also have the remaining balance taxed again at death when she passes that value on to her family. With a tentative offer of $680,000 for her property, she views this as an opportunity to sell and retire more comfortably. Her attorney suggested a charitable remainder uni-trust (CRUT) as a possible planning tool to minimize tax liabilities and retain some control over 100% of the family capital. The attorney requested that our firm to run a sample scenario*, and compare what would happen if (a) she kept the apartment complex and continued to operate it, or (b) sold it and paid the tax, reinvesting the balance, or (c) gifted it to an IRC § 664 Trust. The following presentation was reviewed and accepted by Mrs. Sullivan, her family and advisors. The major attraction was that the CRT would revert to a family type foundation after Mrs. Sullivan passed away. In this way, the family keeps a presence in the community and commits annual funds to the school district’s high school science program.

Income Property CRT Strategy (seehttp://members.aol.com/CRTrust/CRT.htmlfor other tools)	Keep Asset and Pass to Heirs (A)	Sell Asset and Reinvest the Balance (B)	Gift Asset to CRT and Reinvest (C)
Fair Market Value of Apartment Complex	$680,000	$680,000	$680,000
Less: Cost of Sale (legal fees, commissions, appraiser)		27,200	$27,200
Adjusted Sales Price		$652,800	$652,800
Less: Tax Basis		$40,000
Equals: Gain on Sale		$612,800
Less: Capital Gains Tax (federal and state combined)		$183,840
Net Amount at Work	$680,000	$468,960	$652,800
Annual Net Return From Asset Valued at $680,000 @ 5%	$34,000
Annual Return From Asset Reinvested in Balanced Acct @ 9%		$42,206
Avg. Annual Return From Asset in 7% CRUT Reinvested @ 9%			$51,808
After-Tax (31%) Avg. Spendable Income	$23,460	$29,122	$35,748
Statistical Number of Years of Cash Flow for Income Beneficiary	15	15	15
Taxes Saved from $330,664 Deduction at 31% Marginal Rate			$102,506
Tax Savings and Cash Flow over One Life Expectancy	$351,900	$436,836	$638,724
Total Increase in Net Cash Flow Compared to Original Asset		$84,936	$286,824

* Hypothetical evaluations are provided as a professional courtesy to members of the estate planning community. Call for suggestions.

Normally, a wealth replacement trust would be established to offset the loss of value in the charitable gift. As once the asset is irrevocably transferred to the CRT it is unavailable to the heirs, and many families opt for insurance protection to replace the value of the gift. However, she and her husband had already purchased a $500,000 “second to die” insurance policy to provide liquidity for estate taxes, so this policy was simply converted to a different use and shifted out of her estate via gifts to her family while the early policy value was low. Now, since there won’t be estate taxes to pay; the existing policy will be used instead to offset much of the value lost in the gift.

© Vaughn W. Henry, 1997

Real Property and the CRT – Henry & Associates

The CRT and Real Estate Contributions

Vaughn W. Henry

Highly appreciated real estate transferred to a CRT is a classic use of a §664 Trust, and one of the nation’s largest trust administrators reports that 28% of CRTs were created with real estate as the contributed asset. However, there are potential land mines that need to be discovered and neutralized before plunging into the transaction. For what problems should the planner watch?

1. In the design of the trust, generally, stay away from standard CRUT or CRAT instruments because they lack the flexibility to deal with liquidity shortfall problems if the land doesn’t sell immediately. As a rule, it’s usually better to use the NIMCRUT or FLIP-CRUT. These specialized charitable remainder trusts offer more options to avoid distributing parcels of land back to the income beneficiary when income is not adequate to meet required payouts.

2. Is the property debt free? If not, there may be a problem contributing the mortgage holder’s assigned interest to an irrevocable trust. The trust can’t be placed in a position of paying off the note, so any property contributed to a CRT should either have the debt paid off or the mortgage transferred to another parcel that is not contributed to the CRT. Specifically, a debt-encumbered asset may generate four distinct sets of problems that need to be addressed.

• Unrelated Business Income – if a CRT earns unrelated business income for the year in which it’s made, the CRT is non-qualified and subject to tax. This is a disaster if the original contribution year generated UBTI, as not only is the charitable deduction lost, the capital gains liability is accelerated. This potential malpractice error effectively negates the advantage of creating the CRT in the first place. So how does mortgaged property create UBTI? Through Unrelated Debt Financed Income (UDFI) or “acquisition indebtedness” which may occur if the mortgage has materially changed in the previous five years or if the donor has owned the property for less than five years.
• Self-dealing – the contribution of mortgaged property by a disqualified person raises some troubling issues, especially if partial interests are involved.
• Bargain Sales – require the recognition of a pro-rata capital gains tax liability.
• Grantor Trust – any trust that is non-qualified, and if there is any other owner of the asset, the CRT would be non-qualified and a tax paying entity. A number of attorneys have tried to address this concern by stipulating debt payment be made from principal or from assets outside the trust, but these suggestions create management problems for most donors and raise the issue of self-dealing.

The basic solutions include:

1. the retirement of existing debts
2. transferring debt to other non-contributed parcels as collateral
3. sell enough land in a taxable sale to finance the debt payment and offset those added tax liabilities with deductions from the donation of debt-free real estate assets
4. contribute a fractional interest in the indebted property to the charitable remainderman, if the property is eventually going to pass to the charity anyway. Some planners have advocated the contribution of an option to circumvent the debt-financed rules, but the IRS effectively shut this strategy down by ruling that no contribution exists when options are used.

3. Are there environmental problems, title defects or liens, on-going lease agreements (especially with prohibited persons)? Find out how the property is legally owned and whether or not it may be contributed to a CRT. Make sure there’s no prior commitment to sell, or you run afoul of the step-transaction rules.

4. Does the IRS consider the donor a “dealer”? If so, the appreciation is not treated as a preferred capital gain, but as ordinary income on inventory; the deduction is then based on basis, not fair market value. To protect the donor’s beneficial tax treatment, there are four tests under §1237 that may be worth pursuing:

1. this parcel wasn’t held by the taxpayer as inventory for sale to customers in the ordinary course of business
2. the taxpayer held no other property for sale in the ordinary course of business
3. no substantial improvements to enhance the parcel’s value were made
4. the parcel was inherited or held for five or more years. If all four tests are met, dealer status may be avoided.

5. If the CRT’s trustee then chooses to develop and sell lots in the property, will the CRT then generate unrelated business income and be treated as a dealer and exposed to UBTI? Maybe. Seldom appreciated by most planners, a charity can have unrelated business income and just pay tax on that portion of the resulting income that is not substantially related to the charitable purpose of the charity. On the other hand, if a CRT has unrelated business income, it loses its tax-exempt status for an entire year and becomes a tax-paying trust, and that creates severe, even catastrophic, burdens.

Other articles on poorly designed trusts using land and the well designed planned gifts are available at Zero Estate Tax Planning, as well as the case studies for Berger, Moore, Williams and Sullivan. Ongoing CRT and Planned Giving Workshops available for nonprofit organizations, boards, planned giving and estate planning councils and for-profit financial services firms. Need an evaluation of potential assets going into a CRT? We provide courtesy preliminary analyses for the professional estate and gift planning community. Call for a hypothetical fact finder

Henry & Associates

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Socially Responsible Retirement Planning

Socially Responsible Planning – A Compensation Bonus and the CRT

Dan (30) and Pamela (26) Newberg work for a hi-technology software developer on the West Coast. As a part of their compensation, they have been provided low-basis stock as a bonus for their extraordinary development skills. After an initial public offering, the $80,000 basis stock is now worth $1,000,000. The stock produces no income, but has historically appreciated annually at 10%. This young couple has expressed an interest in using an IRC§664 net income with make-up charitable remainder unitrust (NIMCRUT) as a retirement planning tool to diversify their investment portfolio and reduce volatility. As IPOs tend to be erratic, they want to capitalize on the current high market value. The Newbergs have other assets and want to consider two scenarios to provide a supplemental pension plan designed to pay them $800,000 of after-tax annual income starting at age 65. For ease of investment comparisons and consistency, a well-structured tax deferred variable annuity earning a moderate 9% was selected to fund the CRT and a comparably invested after-tax mutual fund the other scenario. The unique ability to control the distributable net income (DNI) inside the NIMCRUT is a major advantage. The Newbergs are active in conservation and wilderness preservation groups and want to support environmental and educational programs. By controlling their social capital, they create a sense of economic citizenship benefiting causes they feel are inadequately supported by the federal government. Under the recently enacted 1997 Taxpayer Relief Act (July 28, 1997), this scenario will no longer work as originally planned. Consult your tax advisors and see the chart of Unitrust Remainder Calculations to review the opportunities.

The Facts

Annual adjusted gross income	$125,000, which meets their current lifestyle needs
Income tax bracket	36%
Capital gains bracket	28%
Investment options	9% D.A. inside CRT and 9% mutual fund for non-charitable options

 

Summary

The charitable scenario provides for comparable net income of $18.4 million for retirement over the Newberg’s joint life expectancies, and simultaneously produces $61.2 million to support the charities that mean so much to this childless couple.

Family Wealth and Responsibility – New Tools for Old Problems

Family Wealth and Responsibility – New Tools for Old Problems

Dr. Gerald (64) and Suzanne (62) Berger have a diversified estate with the basic estate planning provisions already in place. Like most professionals, Dr. Berger has the bulk of his estate tied up in a qualified retirement plan (QRP) which is valued in excess of $5 million. Besides owning some commercial real estate, farm ground and an appreciating stock portfolio, the Bergers also own vacation homes in two other states. With three children, the Bergers have had a lifetime commitment to their church and many charitable organizations and wanted to review their estate planning options. Their credit shelter trusts in place, and the remaining assets held in joint tenancy, it appeared that the Berger estate and income tax liabilities at death would take almost 70% of their accumulated wealth. Dissatisfied with that scenario, they asked their professional advisors to present a plan that would eliminate unnecessary taxes, assure them of retirement income security, pass their children an inheritance of $1million each and the remainder to the many charities they have supported.

The Berger’s estate assets were evaluated and those suitable for compression and distribution to family members were placed into a Family Limited Partnership (FLP). This allowed the heirs to receive “paper value” and ownership of some of the business interests and future appreciation was removed from the Berger estate. The FLP still allows Dr. Berger, through his revocable living trust, to maintain control and management as long as he retains ownership of the general partnership units, and the children and grandchildren will eventually own 99% of the limited partnership units. The farm and commercial real estate properties were examined and the advisors found that after management fees, expenses and maintenance, those properties were generating a net return of less than 2%. While the property managers noted that the real estate assets might appreciate in value, they admitted that for clients seeking less complexity in their retirement, those real properties were no longer suitable. Since the Bergers had depreciated much of the property and had low basis in their farmland, any outright sale would generate a capital gains tax at the 20% federal and 3% state rates. A more viable option was to use the §664 Charitable Remainder Trust (CRT) to control 100% of the principal. After Berger’s estate planning team suggested bypassing the capital gains tax “hit” with the CRT, a serious effort was made to see how else this split-interest trust could be made to work inside the estate plan. One of the most powerful solutions was to make use of the qualified retirement account to provide wealth replacement, retirement security and further charitable support to family philanthropies. At the Berger’s ages, it was easy to acquire an economical survivor life insurance contract and with some pension plan modification have their profit sharing plan pay for the insurance with pre-tax dollars. Later, the plan would distribute the policy to the Family Limited Partnership as a “paid-up” contract and distribute additional partnership units to children and grandchildren via annual exclusion gifts. The advisors also changed the beneficiary designations on Dr. Berger’s pension plan to name his wife as primary beneficiary and his CRT as contingent beneficiary. This strategy allows Mrs. Berger to disclaim her interest in the pension so the qualified funds would instead flow to the CRT, of which she is still an income beneficiary. In this way, Mrs. Berger will still have a option of keeping the taxable qualified funds or, if she has other adequate assets, she can allow the CRT to control those funds. The end result is that her retirement income is secure and the non-taxed CRT would pass qualified funds at her death to the newly created family foundation. The family would pay no income tax, no estate tax, the family foundation would be funded with pre-tax dollars and the CRT’s remainder interest.

To make sure each child receives their $1 million inheritance and further protect family assets from any of the heirs’ mismanagement, the Berger’s attorney drafted a new Irrevocable Life Insurance Trust (ILIT) to make use of the Berger’s remaining Unified Credit and Generation Skipping Tax Exemptions. Properly structured, the ILIT protects all of the insurance policy proceeds from estate taxes for the duration of the trust. In addition to creating a “dynasty trust” and basing it in South Dakota, the perpetual nature of the trust will control and protect family assets from taxation, litigation, divorce and spendthrifts while still providing the heirs with an opportunity to distribute and spend family wealth for many generations. Besides controlling this tax leveraged asset, there will be an additional $12 million in “social capital” controlled inside the Berger family’s charitable trust. The alternative was to pass $7 million to the IRS and leave the heirs with less, a clearly unacceptable result for a family so interested in maintaining control of their family wealth.

Henry & Associates designed the Berger scenario* and compared the options. Option (A) sell marginally productive income properties and pay the capital gains tax on the appreciation and reinvest the balance at 10% or Option (B) gifting the property to an IRC §664 Trust and reinvesting all of the sale proceeds in a 10% balanced portfolio. At the maturation of the CRT, when the surviving spouse (most likely Mrs. Berger) passes away, the capital inside the trust will pass to a family foundation with Berger heirs sitting on the board funding charitable programs of interest to their family.

Real Estate Asset Sale CRT Strategy  (seehttp://members.aol.com/CRTrust/CRT.htmlfor other tools)	Keep Asset and Do Nothing	Sell Asset and Reinvest the Balance (A)	Gift Asset to §664 CRT and Reinvest (B)
Fair Market Value of Farm and Business Property Holdings	$5,000,000	$5,000,000	$5,000,000
Less: Cost of Sale (legal fees, commissions, appraiser)		$150,000	$150,000
Adjusted Sales Price		$4,850,000	$4,850,000
Less: Tax Basis		$75,000
Equals: Gain on Sale		$4,775,000
Less: Capital Gains Tax (federal and state combined)		$1,098,250
Net Amount at Work		$3,751,750	$4,850,000
Current Net Return at 2%	$100,000
Annual Return From Asset Reinvested in Balanced Acct @ 10%		$375,175
Avg. Annual Return From Asset in 5% CRUT Reinvested @ 10%			$477,582
After-Tax (42%) Avg. Spendable Income	$58,000	$217,602	$276,997
Statistical Number of Years of Cash Flow for Income Beneficiaries		27	27
Taxes Saved from $1,723,850 Deduction at 42% Marginal Rate			$724,017
Added Tax Savings and Cash Flow over Joint Life Expectancies		$4,309,241	$6,636,947