a "reality of sale" analysis of installment sales to grantor trusts: properly structured,...
TRANSCRIPT
A “REALITY OF SALE” ANALYSIS
OFINSTALLMENT SALES TO
GRANTOR TRUSTS:PROPERLY STRUCTURED, THE
BEST TRANSFER TAX STRATEGY
Sale To IDIT – Three Alternatives
• Promissory Note• Annuity Based Upon Life• Self-Canceling Installment Note [SCIN]
Standard Sale for Promissory Note
• Note Bears Interest at AFR (Frazee)• Fidelity-Philadelphia Trust Co Tests– Interest Not Tied to Income– Other Assets (10%)
Sale for an Annuity Based Upon Life
• 50% Probability of Survivorship for One Year
• The Exhaustion Test• Use Individual Other Than Seller as
Measuring Life
Self-Canceling Installment Note [SCIN]
• Similar to an Annuity Based Upon Life
Sale of Appreciated Property/Is Gain Recognized At Death?
• Madorin Case• Some conclude loss of grantor trust
status either during life or at death causes recognition of gain; note and assets inside IDIT appear simultaneously
• Others conclude gain not recognized at death under Crane
Four Recent Cases Impacting Sale to IDIT Strategy
• Trombetta• Woelbing (two companion cases)• Davidson and CCA201330033
Authorities Supporting Sale to IDIT
• “Reality of Sale” Cases• Cases Involving Sales to Trusts in
Exchange for an Annuity• The Kite case
Trombetta• Decedent transferred mortgaged rental
properties to annuity trust; value of transferred property exceeded value of reserved annuity payments; decedent’s children guaranteed annuity; decedent as Trustee with ½ of vote; Trustees authorized to distribute excess income to decedent
• Implied understandings; no negotiation; decedent on both sides of transaction; decedent benefited from trust payments on mortgage; no legitimate business reasons for transaction
Response to Trombetta
• Independent Trustee• 10% cushion funded with “old and cold”
assets• If interest in closely-held business being sold
to IDIT, seller should dispose of all other interest in the business and give up all contacts as an officer, director or manager
• Arm’s length negotiation with Trustees and beneficiaries represented by separate counsel
Woebling Cases
• IRS asserting inclusion under Section 2036 and gift under Section 2702
• Facts similar to Karmazin case which was settled recognizing validity of sale on terms favorable to estate
Davidson
• Sales to IDITs for SCINs• IRS asserts 50% probability of
survivorship test not apply to a SCIN• Even if IRS position is questionable, why
risk availability of 50% test?