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TRUSTS & ESTATES, WILLS, AND TAX LAW UPDATE

TAX: Minimum Contacts Necessary for Taxation of Trust

Posted by James P. Witt on Tue, Mar 26, 2019 @ 09:03 AM

Jim Witt—Senior Attorney, National Legal Research Group

            In Kimberley Rice Kaestner 1992 Family Trust v. North Carolina Department of Revenue, ___ N.C. App. ___, 789 S.E.2d 645, aff'd, ___ N.C. ___, 814 S.E.2d 43 (2018), cert. granted sub nom. North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, No. 18-457, 2019 WL 166876 (U.S. Jan. 11, 2019) the court addressed the issue of whether North Carolina's taxation under North Carolina General Statutes § 105-160.2 of the income accumulated by the trust in question met the minimum contacts requirement of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution, where the trust's only connection with North Carolina was the residence and domicile of the beneficiary.

            The Trust, the Kaestner 1992 Family Trust, was established by Joseph Lee Rice III, with William B. Matteson as trustee. The situs of the trust was New York. The primary beneficiaries of the trust were the settlor's descendants (none of whom lived in North Carolina at the time of the trust's creation). In 2002, the original trust was divided into three separate trusts: one for each of the settlor's children, with each trust named for a child. At that time, one of the children, Kimberley Rice Kaestner, the beneficiary of the plaintiff Kimberley Rice Kaestner 1992 Family Trust, was a resident and domiciliary of North Carolina. Neither the original trustee nor his successor was a resident of North Carolina.

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Topics: Due Process Clause, minimum contacts, taxation of trust income, beneficiary's residence, trust situs

TAX: Free Like-Kind Exchanges of Property

Posted by D. Bradley Pettit on Thu, Dec 27, 2018 @ 11:12 AM

Brad Pettit—Senior Attorney, National Legal Research Group

            The Internal Revenue Code provides generally that "[n]o gain or loss shall be recognized on the exchange of real property held for productive use in a trade or business or for investment if such real property is exchanged solely for real property of like kind which is to be held either for productive use in a trade or business or for investment," as long as the transaction does not involve an "exchange of real property held primarily for sale." 26 U.S.C. § 1031(a) (also includes Pub. L. Nos. 115-233 to 115-253, 115-255 to 115-269; Title 26 current through Pub. L No. 115-270). "As used in section 1031(a), the words 'like kind' have reference to the nature or character of the property and not to its grade or quality." 26 C.F.R. § 1.1031(a)-1(b). Thus, "[o]ne kind or class of property may not, under that section, be exchanged for property of a different kind or class." Id. For example, "[t]he fact that any real estate involved is improved or unimproved is not material, for that fact relates only to the grade or quality of the property and not to its kind or class." Id.

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Topics: IRC, Brad Pettit, tax, like-kind exchanges, nature or character of property, personal residence

ESTATE PLANNING: Lifetime Gifts of Closely Held Business Stock to Family Members

Posted by D. Bradley Pettit on Thu, Dec 13, 2018 @ 12:12 PM

Brad Pettit—Senior Attorney, National Legal Research Group

 

         "Rather than disposing of stock in a closely held business (by sale or corporate reorganization) at retirement the retiree may decide to transfer all or a portion of the stock by gifts to various family members." Streng & Davis, Tax Planning for Retirement ¶ 7.05[1] (Thomson Reuters Tax & Acct’g 2018).  Three important objectives can be achieved by making gifts of closely held business stock to family members:

 

It eliminates the stock's dividend income from the gross income and the estate of the retiree/donor

 

It removes the value of the stock from the retiree/donor's estate for federal estate tax purposes upon the retiree's death

 

It solidifies the interests of the family members receiving the stock as officers of the closely held corporation, enabling them access to corporate executive compensation arrangements and other benefits.

 

Id.

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Topics: Brad Pettit, estate planning, closely held business stock, estate tax liability

Succession to the Estate of Charles Manson

Posted by James P. Witt on Mon, Nov 26, 2018 @ 11:11 AM

Jim Witt—Senior Attorney, National Legal Research Group

            In 1971, Charles Manson (“Manson”), the leader of the Manson Family cult, was convicted of first-degree murder and conspiracy to commit murder for the deaths of nine people in July and August 1969. He was originally sentenced to death, but his sentence was commuted to life with the possibility of parole after the suspension of the death penalty under both California and federal law (California's adoption in 1978 of a death penalty that qualified under federal guidelines and the sentence of life imprisonment with no possibility of parole could not be applied retroactively to Manson). After 46 years of incarceration, Manson died on November 19, 2017 of acute cardiac arrest, respiratory failure, and colon cancer. What has ensued, however, is an estate proceeding that has been complicated by a number of factors:

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Topics: estates, Jim Witt, Charles Manson, last domiciliary, succession

TAX: Sales and Use Tax—The End of the “Physical Presence” Test

Posted by D. Bradley Pettit on Wed, Oct 17, 2018 @ 12:10 PM

Brad Pettit, Senior Attorney, National Legal Research Group

            On January 12, 2018, in South Dakota v. Wayfair, Inc., 138 S. Ct. 735 (2018) (Mem.), the United States Supreme Court granted a petition for writ of certiorari with respect to the decision by the Supreme Court of South Dakota in State v. Wayfair Inc., 2017 SD 56, 901 N.W.2d 754, holding that a state statute that requires Internet sellers with no physical presence in the state to collect and remit sales tax violated the dormant Commerce Clause of the U.S. Constitution.

            In reaching this decision, the Supreme Court of South Dakota had relied on the prior rulings from the United States Supreme Court in National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753 (1967), and Quill Corp. v. North Dakota, 504 U.S. 298 (1992), holding that the Commerce Clause of the federal Constitution prohibits a state from requiring an out-of-state seller to collect and remit sales or use tax with respect to mail-order and similar sales and shipments of merchandise to in-state purchasers unless the former has a "physical presence" in the taxing state.

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Topics: Commerce Clause, sales and use tax, Internet sellers, physical presence in taxing state

ESTATES: Removal of an Executor or Trustee

Posted by D. Bradley Pettit on Fri, Feb 16, 2018 @ 16:02 PM

     The general rule is that a probate or surrogate's court may revoke letters of administration that were granted to an executor or personal representative if there is demonstrated friction, hostility or antagonism between the appointed fiduciary and beneficiaries of a decedent's estate, but only if the enmity between the fiduciary and the beneficiaries threatens to interfere with the administration of the estate.  In re Estate of Brown, 2016 N.Y. Slip Op. 02691, 138 A.D.3d 1191, 29 N.Y.S.3d 630 (3d Dep't 2016).  In other words, neither a conflict of interest nor hostility between an executor or trustee and the beneficiaries of an estate or trust provide the basis for removing a trustee or personal representative unless the administration of the trust or estate has been adversely affected.  In re Gerald L. Pollack Trust, 309 Mich. App. 125, 867 N.W.2d 884 (2015); In re Estate of Robb, 21 Neb. App. 429, 839 N.W.2d 368 (2013) (when executor of estate has a personal interest in administration of estate and in disposition of estate property and circumstances reveal that those conflicting interests are preventing executor from performing fiduciary duties in impartial manner, then executor should be removed).

     The mere fact that the personal representative of a decedent's estate is also a beneficiary thereof does not necessarily create a conflict of interest that would justify the removal of the personal representative as the fiduciary for the estate.  Gardiner v. Taufer, 2014 UT 56, 342 P.3d 269.  In order to justify removal of a personal representative who is also a beneficiary of an estate, the evidence must show that the personal representative committed some negligent act or mismanagement of the estate before a court can find a sufficient conflict of interest that is serious enough to justify removal of the estate fiduciary.  Id. ¶ 31, 342 P.3d at 279.

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Topics: motives and conflict of interest if trustee is a b, hostility between trustee and beneficiary, removal of executor or personal representative, executor of estate

TAX: U.S. Tax Court Quotes Show Business Celebrity

Posted by James P. Witt on Thu, Oct 26, 2017 @ 12:10 PM

Jim Witt, Senior Attorney, National Legal Research Group 

            It is not often, if ever, that the U.S. Tax Court quotes a show business celebrity in its opinions, but it did so in a summary opinion filed on August 16, 2017, in the case of Omoloh v. Commissioner, T.C. Summ. Op. 2017-64, 2017 WL 3530853. The case turned on whether the taxpayer, Wilfred Omoloh, was age 59½ at the time that he took a distribution from his individual retirement account ("IRA"). I.R.C. § 72(t) ("10-percent additional tax on early distributions from qualified retirement plans") provides in subsection that (1) if the taxpayer receives a distribution from a qualified retirement plan such as an IRA, the taxpayer's income tax liability for the year will be increased by an amount equal to 10% of the portion of the distribution includible in gross income. However, under subsection (2), the 10% penalty of subsection (1) shall not apply if the distribution is made on or after the date on which the taxpayer attains age 59½.

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Topics: tax law, distribution, income tax liability, IRA account, age and penalty

Creation/Timing of Self-Proving Affidavits

Posted by Matthew T. McDavitt on Fri, Sep 22, 2017 @ 11:09 AM

Matthew McDavitt, Senior Attorney, National Legal Research Group

            In the execution of wills, many testators utilize the optional execution of self-proving affidavits, where statutorily authorized, wherein the will execution witnesses sign a statement before an officer authorized to administer oaths affirming their observation of the testator's mental capacity and testamentary intent, as well as the signing of the will. A properly executed self-proving affidavit raises a legal presumption of due execution and eliminates the normal requirement mandating that witnesses to a will testify in court as to the authenticity of the will.

            In practice, self-proving affidavits are normally created contemporaneously with the execution of the will, and some states' statutes mandate such simultaneous affidavit execution. However, some state statutes expressly allow self-proving affidavits to be executed at any time after the observed will execution. Thus, for example, we see both simultaneous and postexecution self-proving affidavit execution mentioned in Michigan's statutory provision on the subject:

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Topics: trusts, timing, self-proving affidavits, contemporaneous with will

TAX:  Corporate Income Tax Reform

Posted by James P. Witt on Fri, Jun 9, 2017 @ 17:06 PM

The Lawletter Vol 42 No 4

Jim Witt, Senior Attorney, National Legal Research Group

     The one area of taxation that is recognized on both sides of the political aisle as badly needing reform is the federal corporate income tax. One fact that signals the need for reform is that the maximum tax rate for the ordinary income of U.S. corporations is at 35% on taxable income exceeding $10 million (Internal Revenue Code of 1986, § 11(b)(1)(D)), among the highest marginal rates in the world (e.g., Ireland 12.5%; Germany 29.65%). As a result, and as prominently reported in recent months, a number of U.S. corporations (notably Apple and Alphabet (Google)) have shifted the locus of intangible assets and/or corporate headquarters to countries with favorable tax rates (a procedure known as a "corporate inversion"). United States corporations are subject to federal income tax on their global profits, but by not repatriating their profits attributable to a foreign situs, those corporations avoid paying taxes by simply not bringing those profits back to the United States.

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Topics: tax law, U.S. high rate on taxable income, corporate income, location of corporate headquarters

TRUSTS: Charitable Trusts and Bankruptcy Proceedings

Posted by Matthew T. McDavitt on Mon, Mar 6, 2017 @ 17:03 PM

The Lawletter Vol 42 No 2

Matt McDavitt, Senior Attorney, National Legal Research Group

     Where testators or settlors create charitable gifts in trust for named institutional beneficiaries, when the contemplated distribution is ready to be made, sometimes it is found that the intended charity is involved in bankruptcy proceedings. Therefore, the question arises as to the proper disposition of such charitable gifts in trust to the bankrupt institutional beneficiaries.

     There is little law, even nationally, discussing the proper course of action in the event that a named charitable beneficiary is found to be in bankruptcy at the time of distribution. It is logical that a testator who makes a charitable gift would not want his or her gift to be subject to collection by the intended recipient institution's bankruptcy trustee, as such action would solely benefit the charity's creditors, rather than advancing the intended charitable purpose. There is at least one federal opinion interpreting and predicting state law on this point, holding that: (a) Under Massachusetts law as predicted by the First Circuit Court of Appeals, a charitable organization that has ceased to perform charitable work, and that is incapable of redirecting funds for charitable purposes, is ineligible to receive a charitable bequest or gift, absent a contrary provision in will or trust instrument; and (b) It is "difficult to imagine" that, absent special circumstances, a testator seeking to advance general charitable interests would ever intend her gift to be used for the benefit of creditors rather than to promote charitable purposes actually intended. In re Boston Reg’l Med. Ctr., Inc., 410 F.3d 100 (1st Cir. 2005).

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Topics: bankruptcy, trusts, charitable trust, proper disposition of gift

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