This is the first in a three-part series on the taxation of trusts. The first part reviews how a trust can be “substantially owned” by someone, i.e., what is commonly known among Estate Planning or Trusts & Estates attorneys as a “grantor trust.” It will also look at the advantages of using a grantor trust. The second article in the series will examine the taxpayer identification number which trusts, including grantor trusts, should use. The third article in the series will look at the taxation of nongrantor trusts.
A grantor trust is “substantially owned” by someone under Code Sections 671 and following. A common power which causes a trust to be a grantor trust is the retention of the power to revoke the trust under Section 676. A revocable trust is income taxed to the grantor and it’s also included in the estate of the grantor for estate tax purposes. However, a trust need not be included in the taxable estate of the grantor to be a grantor trust. A trust could be called what is known commonly, though confusingly, as an “intentionally defective” grantor trust. In reality, there’s nothing at all “defective” about such a trust. It’s excluded from the estate for estate tax purposes, but, taxed to the grantor for income tax purposes.
For example, if the grantor retains the power to substitute other assets of an equivalent value for the assets of a trust, it’s a grantor trust, pursuant to Section 675(4)(C).
A grantor trust can offer many advantages. First among those is simplicity from an income tax perspective. A grantor trust does not need to file its own income tax return but can report the income on the grantor’s taxpayer identification number. Second, the income from the trust is taxed to the grantor, whether or not it is distributed to the grantor. This may sound like a flaw, but it’s a huge advantage if the grantor is trying to remove value from their taxable estate. It allows the assets in the trust to grow tax-free because the grantor is paying the taxes on the income of the trust. It’s important to note that the payment of taxes by the grantor is not considered a gift by the grantor, but rather the grantor’s own legal obligation.
Let’s look at a quick example. Mary set up a trust and contributed $1,000,000 to the trust. The trust has $50,000 in taxable income and no distributions in the year. The $50,000 of taxable income is taxed on Mary’s income tax return. Mary pays the tax which she owes on the $50,000 of income, which comes to $20,000. Mary pays the taxing authorities the $20,000 from her own funds, not diminishing the trust’s assets. When Mary pays the $20,000, she is not making an additional gift to the trust.
A grantor trust allows assets to grow tax-free, much like a Roth IRA. This increased compounding power is a very powerful advantage for a grantor trust. The next article in the series will examine the tax reporting of trusts. In other words, what tax identification number and address does the trustee provide to the bank or brokerage company?
Stephen C. Hartnett, J.D., LL.M.
Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
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