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Sunday, September 27, 2020

Florida Irrevocable Trust Amendment Mechanisms

 For many years, we have published a diagram that lists and provides information on the mechanisms under Florida law available to modify irrevocable trusts, both judicially and non-judicially. There have been 1000+ downloads of the diagram, attesting to the interest in this topic and how often people want to amend an irrevocable trust.

My partner, Jenna Rubin, recently summarized a Florida case (Demircan v. Mikhaylov) on the ability of a settlor and beneficiaries to modify an irrevocable trust.You can read the summary on her Rubin on Probate Litigation blog here.

The summary diagram has now been updated to include the new case.

Previously, the diagram was posted as a PDF or a text file, and not in its native mindmap formula, because of its size. Because of its size, it was hard to read. The mindmap program (MindManager) now allows a cloud posting which allows easier and full access. To view the updated diagram, click on the link:

Wednesday, September 23, 2020

New Case on Loan vs. Gift

 In a low-interest rate environment, loans by wealthy parents to children often makes sense from a planning perspective. If the recipient can invest the proceeds and earn more than the low interest rate charged, the net profit is effectively transferred without a taxable gift.   

It is important that the loan be respected as a loan and not a gift. A recent Tax Court Memorandum decision dealt with this issue. In the case, the taxpayer had made significant loans over time from 1984 to 2007. The issue was whether these were bona fide loans or taxable gifts.   

The Tax Court noted the traditional factors in determining whether a transfer is a loan or a gift - namely these factors support a loan: ( 1) there was a promissory note or other evidence of indebtedness, (2) interest was charged, (3) there was security or collateral, (4) there was a fixed maturity date, (5) a demand for repayment was made, (6) actual repayment was made, (7) the transferee had the ability to repay, (8) records maintained by the transferor and/or the transferee reflect the transaction as a loan, and (9) the manner in which the transaction was reported for Federal tax purposes is consistent with a loan. The Tax Court also noted that in a family loan situation, an actual expectation of repayment and an intent to enforce the debt are critical to loan treatment.   

In the case, it was noted that advances to the son began when he began his career as an architect. The court noted that there was an expectation that the son would have a successful career and would be able to repay the note. Over time, however, events occurred that created doubt on whether the loans would be repaid, including the default by the son's business on business loans and the failure of the business. In 1989, the taxpayer excluded the son from inheriting assets under her revocable trust agreement. In the mid-1990's, the taxpayer's estate planning documents and related agreements noted that the son did not have and was not expected to have in the future, earnings capacity so as to repay the notes. Thus, "an actual expectation of repayment" became a key issue. Based on this change of events, the Tax Court found that there was an expectation of repayment through 1989, and treated the advances through then as loans. However, that expectation of repayment was found to have disappeared after that, and the court found the advances made after 1989 were gifts.   

 Estate of Mary Bolles, TC Memo 2020-71  

Sunday, September 20, 2020

Applicable Federal Rates - October 2020

For the applicable federal rates for the above month, preceding months, and a data table that visually shows trends, click here