Tuesday, April 8, 2014

Conundrum of Material Participation for Trusts Closer to Resolution

At the end of March, the tax court released a decision in Frank Aragona Trust v.Commissioner, 142 T.C. No. 9 (3/27/14). The long-awaited decision addresses the issue of whether a trust can materially participate in rental real estate activities so that the trust can avoid passive activity taxes.

Starting in 2013, the Affordable Care Act introduced a 3.8% Medicare Tax on certain investment income. The tax does not extend to non-passive trade or business income. Under § 469(c)(7) of the Internal Revenue Code, a taxpayer who material participates in business activities can classify the income from the activities as non-passive. So trusts can avoid the Medicare Tax if they can have their investment income classified as non-passive trade or business income.

Prior to Aragona Trust, the IRS maintained that a trust materially participates in business activities only if the trustee is directly involved in the operations of the trust's business activities on a regular, continuous and substantial basis. The trustee also has to be fiduciary of the trust, so the activities of special trustee whose role is limited to participating in the trust's business are not considered in determining if the trust material participates in the business. The IRS further maintained that if the trustee is also an employee of the underlying business, only activities performed by the trustee in his capacity as trustee count toward material participation, and not activities done as an employee.

In Aragona Trust, the trust attempted to have income from its rental real estate activities classified as non-passive business income. The Bloomberg BNA Estate Tax Blog summarizes that facts and arguments as follows:

In 1979, Frank Aragona formed a trust naming himself as the grantor and trustee and with his five children as beneficiaries. Frank Aragona passed away in 1981 and he was succeeded as trustee by six trustees. One of the trustees was an independent trustee and Frank Aragona's children comprised the other five trustees. Two of the five children had very little involvement with the trust or the business of the trust. Three of the five children worked full time for a limited liability company (LLC) that was wholly owned by the trust. This LLC managed most of the trust's rental real estate properties. It employed several people in addition to Frank Aragona's children including a controller, leasing agents, maintenance workers, and accounting clerks. In addition to receiving a trustee fee, the three children who were employed by the wholly-owned limited liability also received wages from the limited liability company.

During 2005 and 2006, the Frank Aragona Trust incurred substantial losses from its rental real estate properties. The trust also reported gains from its other (non-rental) real estate activities. In the Tax Court, the IRS argued that the trust's rental real estate activities were passive because a trust is incapable of materially participating in rental real estate activities. Alternatively, the IRS argued that even if a trust could materially participate in rental real estate activities, in the Aragona case, the court should disregard the activities of the three trustees who also work for trust's wholly-owned LLC because these trustees performed their activities as employees of the LLC and not in their duties as trustees. The trust contended that it could materially participate in its rental real estate activities, and that the activities of the three trustees who were also employed by the wholly-owned limited liability company should not be disregarded.

In its decision, the tax court held first that a trust is capable of materially participating in business activities through the activities of its trustees. The court then considered the Aragona Trust and found that on the facts of the case, the trustees' involvement in the business activities qualified as regular, continuous and substantial. The court held that the trustees' activities as employees of the LLC counted as the trust's participation because the trustees retained their duties as trustees of the trust while acting as employees of the LLC.

The holding of material participation in Aragona Trust is limited to the facts of the case, but the case provides some clarity on the issue and furnishes trustees with arguments to use in dealing with the IRS. As the Daily Tax Report puts it,

The case gives trustees, who have been suffering for decades from a lack of Internal Revenue Service guidance on material participation, another arrow in their quiver to say that a trust or estate can materially participate in a business—and that it isn't only the fiduciary acting solely in the fiduciary capacity that counts in making that determination.

Tuesday, March 25, 2014

When Is a Manditory Arbitration Clause in a Trust Enforceable? California Court Offers Answer

The California appellate court recently addressed the issue of whether an arbitration clause in a trust can bind a beneficiary. The case, McArthur v. McArthur, involves a dispute between two sisters, Pamela and Kristi. Their mother created a trust naming them as equal beneficiaries. Shortly before her death, she amended the trust to give a great portion to Kristi. She also added a clause requiring arbitration of disputes involving the trust. After the mother's death, Pamela sued Kristi, alleging that the amendment was invalid because of Kristi's undue influence and elder abuse. Kristi responded by invoking the arbitration clause. The trial court held that the clause did not bind Pamela because she was not a signatory to the arbitration agreement.

The appellate court affirmed the trial court by taking its reasoning one step further. No only was Pamela not a signatory to the agreement, she "ha[d] not accepted benefits under the 2011 Trust nor ha[d] she attempted
to enforce rights under the amended trust instrument." Since Pamela had not claimed any benefits under the agreement or indicated any assent to it, the arbitration agreement did not bind her. The Court also rejected Kristi's argument that public policy, as demonstrated by national trends, favors arbitration in trust disputes. Said the Court, "These are arguments best addressed to the Legislature, not to this court. . . . [W]hatever the national trend might be, Kristi fails to demonstrate that any other jurisdiction would compel arbitration under the facts of this case, where the beneficiary has not either expressly or implicitly sought the benefits of a trust instrument containing the disputed arbitration provision."

The Elder Law Prof Blog has a more in-depth discussion of the case and some of its implications.

Tuesday, March 11, 2014

The Digital Death Conundrum

What happens to your client's Facebook page after he or she dies? Does a decedent's executor have access to the decedent's Gmail account? These are some of the questions facing attorney's dealing with estate planning in the digital age. The current issue of the University of Miami Law Review features an article that tackles the issue of digital assets and attempts to provide answers to these questions.

"The Digital Death Conundrum: How Federal and State Laws Prevent Fiduciaries from Managing Digital Property," by James D Lamm, Christina L. Kunz, Damien A Riehl, and Peter John Rademacher, considers the problems that digital assets create for four types of fiduciaries: powers of attorney, conservatorships, probate administration, and trusts. From the article:

[T]he digital world is like the “Wild West,” in that its growth has outpaced legal and regulatory efforts. Although federal and state governments have enacted laws to control aspects of the digital world, some of these laws predate the World Wide Web and stand as inadvertent barriers to the execution of fiduciary duties in the digital world. State legislatures, private entities, and courts have made some efforts to correct these problems, but no current solutions provide the level of certainty that account holders and courts typically seek in fiduciary property management. Consequently, account holders are uncertain about the future of their digital property; fiduciaries must choose between refusing to manage digital property at the risk of civil liability, and executing their duties at the risk of criminal liability. . . . After illustrating the problems that digital property creates for each fiduciary, the article shifts to resolving these problems. It begins by debunking purported solutions by both private and governmental entities. It concludes by offering a holistic approach to resolving the conflicts facing account holders, fiduciaries, and service providers and providing the level of security sought in fiduciary property management, as well as a best-practices approach in the interim to a complete solution.

Tuesday, February 25, 2014

Public Housing and Medicaid Refreshers from the Congressional Research Service

Congress has released two new Congressional Research Service reports to the public. The reports, given to Congress in January, provide an introduction to two valuable government services.  

Introduction to Public Housing by housing policy specialist Maggie McCarty "serve[s] as an introduction to the federal public housing program. It provides information on the history of the program, how it is administered and funded, and the characteristics of public housing properties and the households they serve." The report reviews the trends in the public housing program and introduces the current debate surrounding the issue of private funding for public housing.

The second report, Medicaid: An Overview by Alison Mitchell, Evelyne P. Baumrucker, and Elicia J. Herz, looks at the basic elements of medicaid such as eligibility, services, and financing. The report then deals with selected issues relating to the Patient Protection and Affordable Care Act: "the ACA Medicaid expansion, the impact of the ACA health insurance annual fee on Medicaid, and the ACA maintenance of effort (MOE) with respect to Medicaid eligibility."

These CRS reports cover the issues at a basic level, but they are an excellent resource for a quick refresher on Medicaid and the federal public housing program. Whether you want to be sure your aware of the issues that are of interest to Congress or need a perspective on how to introduce a client to aspects of these programs, you'll find something useful in the CRS reports. At under 50 pages each, they're worth the read.

Tuesday, February 11, 2014

Estates Plans Are Not Just For The Old

In his article in the most February 2014 issue of Estate Planning, Attorney Sean R. Weissbart talks about an often overlooked estate planning client population--the young and wealthy. The article, "Estate Planning Strategies for the Young and Wealthy," discusses estate-planning strategies attorney's should consider for their young and wealthy clients. From the article:

Young and wealthy individuals do not fit the mold of the traditional estate-planning client, and advice for them should be tailored accordingly. To prepare for possible changes in life circumstances and unpredictable future tax laws over the course of these individuals' life spans, practitioners should use flexible strategies when advising the young and wealthy. This article addresses several of the most effective estate-planning strategies for clients in this enviable segment of the population. The strategies discussed in this article address how to provide the young and wealthy with the benefits that matter most to them: minimizing estate and gift tax, maintaining use and control over their wealth, and asset protection.

The strategies Weissbart explains include making completed gifts to trusts, with forced estate tax inclusion; transferring assets to self-settled domestic asset protection trusts; creating life insurance trusts; and maximizing exclusion gifting.

Tuesday, January 28, 2014

States Look to Reducing Estate Taxes to Keep Retirees

The New York Times reports that several states are taking steps to reduce their estate taxes, either eliminating the tax or increasing the exemption. According to the article by Paul Sullivan, five states and the District of Columbia have recently re-evaluated their estate taxes. Indiana and Ohio have eliminated their estate taxes entirely. Tennessee is phasing out its estate tax, and New York, Maryland, and D.C. have begun serious discussions about raising their estate tax exemptions to the federal level.


If New York, Maryland, and D.C. do increase their estate tax exemptions, more states will likely follow suit. From Sullivan's article:

“There is a strong possibility that the gap [between state and federal exemptions] is going to be closed over a few years,” said Jamie C. Yesnowitz, a principal at Grant Thornton and chairman of the American Institute of Certified Public Accountant’s state and local tax technical resource panel. “Once some of these other states see New York and D.C. are doing this, I would find it unsurprising if some of these other states join the bandwagon.”

The reason for the move to reduce estate taxes, says Sullivan, is competition from other states for residents and their tax dollars.

[G]overnors of cold-weather states (along with the District of Columbia) . . . have realized affluent residents are moving to states without estate taxes (and in some cases, income taxes) and in doing so, depriving their old state of the other taxes they paid, like property, sales and income tax.

Tuesday, January 14, 2014

Purchasing Life Estates to Protect Assets

Jeff Marshall recently posted an article on how to use life estates in estate planning on the Marshall Elder and Estate Planning Blog.  Marshall describes how older clients can use life estates to manage health care costs and protect their children's inheritance. From the article:


In the right circumstances, the purchase of a life estate can be an effective means to protect a parent’s assets and a child’s inheritance. For example, a parent may sell his or her home and move in with a child. As part of the arrangement, the parent can purchase a life estate in the child’s home. This transfers cash to the child while giving the parent the legal right to reside in the home for the rest of the parent’s life. The care provided by the child may help the parent remain in a supportive home setting. If a few requirements are met, the cash paid to the child will be protected from the cost of long term care that may be needed by the parent in the future.

As Marshall goes on to explain, a correctly structured life estate can shelter the money paid for the estate from medicaid cost recovery. The medicaid laws specifically allow for this kind of financial protection, laying out the requirements a life estate must meet to qualify. A qualifying life estate will not affect the owner's eligibility for medicaid, and the purchase price will be protected from future long term care costs.

But Marshall cautions against people running out and purchasing life estates in anticipation of long term care bills. Medicaid and health care costs are only one aspect to consider when developing an estate plan. One must also keep in mind tax consequences and other non-Medicaid issues. A life estate will not be an effective estate planning tool in every situation.