The IRSs Renewed Focus On Abusive Trust Arrangements – Tax


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Taxpayers have long utilized trust arrangements for the transfer
of wealth to beneficiaries or for the protection of assets from creditors.
Generally, there is nothing nefarious about these types of
arrangements. Rather, the Internal Revenue Code of 1986, as amended
(the “Code“) simply provides special
rules for the taxation of trusts and/or beneficiaries in addition
to certain reporting requirements-particularly if the trust is
foreign.

Recently, the IRS cautioned taxpayers that it has become aware
of taxpayers who are using trusts in a manner that crosses the
bounds into illegality. Given these warnings, taxpayers who have
entered into trust arrangements should be diligent in ensuring that
their arrangements comply with federal income tax laws. This
article discusses general tax concepts applicable to trusts and
also discusses the IRS’s renewed push to focus on abusive trust
arrangements. It concludes with potential options taxpayers may
have to eliminate or mitigate civil penalties and criminal
exposure.

The Taxation of Trusts – Subchapter J.

Under federal tax law, trusts are generally treated as separate
entities.1 Accordingly, the fiduciary (i.e.,
the trustee) must file an IRS Form 1041, U.S. Income Tax Return
for Estates and Trusts
, with the IRS if, among other things,
the trust has any taxable income for the tax year or gross income
of $600 or more (regardless of its taxable income). See
I.R.C. § 6012(a)(4), (a)(5); see also Treas. Reg.
§ 1.641(b)-2(a) (“The fiduciary is required to make and
file the return and pay the tax on the taxable income of . . . a
trust.”).

Because trusts are separate entities, they are generally subject
to income tax. Specifically, the Code imposes an income tax on the
“taxable income” of property held in trust. I.R.C. §
641(b). For these purposes, the taxable income of the trust is
computed in a manner similar to that of individuals, with certain
modifications. See I.R.C. § 641(b); see also
Treas. Reg. § 1.641(b)-1. Modifications include: (1) no
standard deduction; (2) a small personal exemption; (3) an
unlimited charitable contribution deduction, if certain
requirements are met; and (4) a deduction for trust administration
costs. See I.R.C. §§ 63(c)(6)(D); 642(b), (c);
67(e).

In certain instances, the trust may also be permitted a
deduction for distributions made to beneficiaries. In these cases,
the beneficiaries pay federal income tax on the income of the trust
that is distributed to them.

The Deduction for Distributable Net Income (DNI)

For federal income tax purposes, a trust may be either
characterized as “simple” or “complex.”
See Treas. Reg. § 1.651(a)-1. Simple trusts are
trusts that meet all three of the following requirements in a tax
year: (1) the trust agreement requires that all fiduciary
accounting income (“FAI“) be distributed
currently; (2) the terms of the trust do not provide for any
amounts to be paid, permanently set aside, or used for the tax year
for a charitable purpose as set forth in section 642(c) of the
Code; and (3) the trust does not actually distribute any amounts
during the year other than its FAI required to be distributed
currently. I.R.C. § 651(a). If a trust fails any one of these
requirements, it is considered a complex trust for federal income
tax purposes. The characterization of a trust as either simple or
complex is made on a year-by-year basis.

Trusts that are simple trusts are governed by section 651 and
section 652 of the Code. Section 651(a) permits the trust to claim
a deduction for income “required to be distributed
currently.” And section 652(a) subjects the beneficiary to
taxation on amounts “required to be distributed, whether
distributed or not.”

Conversely, trusts that are complex trusts are governed by
section 661 and section 662 of the Code. Under those provisions,
only the part of the trust income which is paid or credited to the
beneficiary during the year may be deducted by the trust and taxed
to the beneficiary. “Taxable income” that stays within
the trust and that is not distributed to the beneficiaries is
taxable to the trust itself. I.R.C. § 641.

In all cases, the amount of the trust deduction is limited to
DNI, which is a rough measure of the income not previously taxed by
the trust. See I.R.C. § 643(a).

Trust Reporting Obligations

Aside from income tax payment and filing obligations, trusts can
also give rise to other tax and reporting obligations. For example,
transfers to a trust for the benefit of a third-party beneficiary
may subject the transferor to gift tax and/or a gift tax return
reporting obligation. In addition, transfers to foreign trusts may
give rise to certain information reporting obligations, including
Forms 3520 and/or 3520-A.

Gift Tax and Gift Tax Reporting

The Code imposes a gift tax on certain transfers of property
(directly or indirectly) to third parties. I.R.C. § 2501. In
addition, the Code imposes certain reporting requirements
associated with certain transfers by gift. Accordingly, a
transferor’s transfer of property to a trust for the benefit of
beneficiaries can give rise to both gift tax and gift tax reporting
obligations.

However, there are exceptions to these gift tax and gift tax
reporting obligations. First, donors of certain lifetime gifts are
provided an annual exclusion of $15,000 per donee in 2021 ($16,000
in 2022) that does not count towards the unified credit. I.R.C.
§ 2503(b). Second, the unified credit effectively exempts a
total of $11.7 million (for 2021) in cumulative taxable transfers
from the gift tax. Rev. Proc. 2020-45, I.R.B. 2020-46.

If the gift exceeds the applicable annual exclusion threshold,
taxpayers are required to file IRS Form 709, United States Gift (and
Generation-Skipping Transfer) Tax Return
, to report the
gift.

Foreign Trust Reporting

The establishment of a foreign trust can create a multitude of
IRS reporting obligations: to the foreign trust, to certain
transferors, and even to the beneficiaries. To determine whether a
trust is domestic or foreign-i.e., whether there is a
reporting obligation-the Code sets forth a “court test”
and a “control test.” I.R.C. § 7701(a)(30); Treas.
Reg. § 301.7701-7(a)(1). If either test is
not met, the trust is deemed a foreign trust.

The court test is satisfied if a court within the United States
is able to exercise primary supervision over the administration of
the trust. Treas. Reg. § 301.7701-7(a)(1)(i). The control test
is satisfied if one or more United States persons have the
authority to control all substantial decisions of the trust. Treas.
Reg. § 301.7701-7(a)(1)(ii). For these purposes, substantial
decisions include: (1) whether and when to distribute income and
corpus; (2) the amount of any distributions; (3) the selection of a
beneficiary; (4) whether a receipt is allocable to income or
principal; (5) whether to terminate the trust; (6) whether to
compromise, arbitrate, or abandon claims of the trust; (7) whether
to remove, add, or replace a trustee; (8) in certain instances,
whether to appoint a successor trustee; and (9) in general,
investment decisions. Treas. Reg. § 301.7701-7(d)(1)(ii).

If a trust is determined to be a foreign trust, section 6048 of
the Code governs. Under that provision, a “responsible
party” must file an IRS Form 3520, Annual Return to Report
Transactions with Foreign Trusts and Receipt of Certain Foreign
Gifts
, if a “reportable event” occurs during the
tax year. For these purposes, a “reportable event” means:
(1) the creation of a foreign trust by a United States person; (2)
the transfer of money or property to a foreign trust by a United
States person (including through a written will); and (3) the death
of the United States resident or citizen, if the decedent was
either treated as the owner of any portion of the foreign trust
under the grantor trust rules or any portion of the foreign trust
was included in the gross estate of the decedent. See
I.R.C. § 6048(a)(3). A “responsible party” means
either: (1) the grantor if the reportable event relates to the
creation of the foreign trust; (2) the transferor in the case of a
transfer of money or property to the trust (unless accomplished
solely by death); or (3) the executor in all other cases.
See I.R.C. § 6048(a)(4).

United States beneficiaries who receive distributions from
foreign trusts as well as United States persons who are treated as
grantors of foreign trusts also have reporting obligations.
Specifically, a United States beneficiary who receives a
distribution from a foreign trust must file Form 3520 whereas a
United States person who is treated as the owner of any portion of
a foreign trust under the grantor trust rules must file IRS Form
3520-A, Annual Information Return of Foreign with a U.S.
Owner
, if the foreign trust does not file the form with the
IRS. I.R.C. § 6048(b), (c).

Failure to file a Form 3520 and/or Form 3520-A can result in significant
penalties. For example, if a United States person establishes a
trust and transfers property to the foreign trust but fails to file
Form 3520, the IRS may impose a 35% penalty on the fair market value of the
property transferred to the foreign trust.

Abusive Trust Arrangements

The IRS continues to caution taxpayers that it is aware of “Abusive Trust Tax Evasion Schemes.”
Specifically, the IRS has communicated to taxpayers that “[i]n
the last few years, the Internal Revenue Service has detected a
proliferation of abusive trust tax evasion schemes . . . [which]
are targeted towards wealthy individuals, small business owners,
and professionals such as doctors and lawyers.” And that:

Taxpayers should be aware that abusive trust arrangements will
not produce the tax benefits advertised by their promoters and that
the IRS is actively examining these types of trust arrangements.
Furthermore, in appropriate circumstances, taxpayers and/or the
promoters of these trust arrangements may be subject to civil
and/or criminal penalties.

Generally, in these promoter-type trust cases, a promoter
charges the taxpayer-from $5,000 to $75,000-for the use of trust
documents and other resources. In exchange for the service fee, the
promoter generally assures the taxpayer that entering into the
trust arrangement will significantly reduce or eliminate federal
income taxes. And the promoter may use either a “domestic
package” or a “foreign package”-i.e., a
purely domestic or purely foreign trust.

Because the IRS has indicated that it is aware of promoters
selling abusive trust schemes, taxpayers who have utilized promoter
services should tread carefully. Generally, after the IRS
identifies a promoter, it will request a list of the promoter’s
clients through either an administrative summons or a judicial subpoena. Armed with this
information, the IRS can begin civil and criminal examinations of
each promoter’s clients’ tax returns. And the IRS has a
litany of defenses it can use to defeat abusive trust arrangements,
such as the sham trust doctrine.

What Should Taxpayers with Questionable Trust Arrangements
Do?

Taxpayers who have entered into questionable trust arrangements
have many options. First, the taxpayer should hire a tax
professional to review the trust agreement to determine whether it
complies with federal income tax laws. Second, if the trust
agreement does not, the taxpayer should explore whether the
taxpayer meets certain eligibility requirements for IRS amnesty
programs that are offered, such as the IRS Voluntary Disclosure Program or the IRS Streamlined Filing Compliance Procedures.
Depending on the taxpayer’s facts and circumstances, other
options may be available as well. However, taxpayers should be
cognizant that many of the IRS’s amnesty programs are not
available after the IRS discovers the non-compliance.

Conclusion

Trusts can be wonderful tools if used properly. However, abusive
trust arrangements will continue to be a top priority to the IRS
for the foreseeable future. Given this renewed scrutiny, taxpayers
who have entered into trust agreements should consult with a tax
professional to determine whether there are any risks of civil
penalties and/or criminal exposure. If the trust arrangement is
considered abusive, taxpayers should act quickly to try to remedy
the non-compliance through an IRS amnesty program, if that option
is available.

Footnote

1. A notable exception applies to grantor trusts.

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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
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