Post by conflict on May 29, 2015 2:42:17 GMT 4
Trust Decanting: A Sale Without Gain Realization
Jason Kleinman
Herrick, Feinstein LLP
May 8, 2015
Real Property, Probate and Trust Law Journal, Vol. 49, Winter 2015
Abstract:
This Article describes why decanting or modifying a trust cannot be a taxable event for trust beneficiaries. The Internal Revenue Service and trust law practitioners appear to assume the contrary and focus on determining which such events are taxable. Their perspective takes for granted that a property’s material modification gives rise to its deemed sale for tax purposes. This premise should not hold true for trusts, because a tax on gain requires the identification of an owner to derive the gain and trusts are not owned by any person. The perspective advanced in this Article should provide practitioners with a freer hand to undertake trust decantings and clarify the common law for determining when property modifications are taxable.
Number of Pages in PDF File: 38
SSRN-id2604267.pdf (324.88 KB)