Grantor Trusts

Under the Internal Revenue Code’s “grantor trust”[1] rules, the grantor of a trust may be treated as the “owner” of all or part of the trust.  As such, the grantor is taxed on the trust’s income and reports its deductions.  That is, trust income and deductions are attributed to the grantor as if he or she owned the trust or a portion of the trust.

If the grantor trust rules apply, the trust is not treated as a separate taxable entity for Federal income tax purposes—at least to the extent of the grantor’s interest.  Said another way, the provisions “look through” the trust form and treat the grantor and the trust as one and the same.

Generally, the grantor trust rules apply where the grantor has transferred property to a trust but has not given up sufficient dominion and control over the property or the income that it produces.

What is a Grantor Trust?

As a general matter, a “grantor trust” is a trust in which the grantor or other owner retains a sufficient level of power to control or direct the trust’s income or assets. If a grantor retains certain statutorily described powers over (or benefits in) a trust, the income of the trust is taxed to the grantor.

All “revocable trusts,” for example, are treated as grantor trusts. An “irrevocable trust,” however, may or may not qualify as a grantor trust.  An irrevocable trust may be treated as a grantor trust if one or more of the grantor trust conditions set out in §§ 671 – 678 are met.

Under those rules, a grantor trust is any trust in which the grantor retains one or more of the following powers:

• A reversionary interest of more than 5% of the trust property or income;
• The power to revoke the trust and/or to return the trust’s corpus/principle to the grantor;
• The power to distribute income to the grantor or grantor’s spouse;
• Power over the beneficial interests in the trust;
• Administrative powers over the trust allowing the grantor to benefit.

A trust will also be deemed to be a grantor trust under either of the following circumstances:

• A trustee, beneficiary, or other person a power exercisable solely by himself to vest the corpus or the income therefrom in himself;
• A United States person who directly or indirectly transfers property to a foreign trust.

 

Who is a Grantor?

A grantor includes any person to the extent such person either creates a trust, or directly or indirectly makes a gratuitous transfer of property to a trust. The grantor often establishes in the trust instrument the terms and provisions of the trust relationship between the grantor, the trustee, and the beneficiary.

If a person creates or funds a trust on behalf of another person, both persons are treated as grantors of the trust. However, a person who creates a trust but makes no gratuitous transfers to the trust is not treated as an owner of any portion of the trust under sections 671 through 677 or 679. Also, a person who funds a trust with an amount that is directly reimbursed to such person within a reasonable period of time and who makes no other transfers to the trust that constitute gratuitous transfers is not treated as an owner of any portion of the trust under sections 671 through 677 or 679.

In addition, a grantor includes any person who acquires an interest in a trust from a grantor of the trust if the interest acquired is an interest in certain investment trusts described in § 301.7701–4(c), liquidating trusts described in § 301.7701–4(d), or environmental remediation trusts described in § 301.7701–4(e).

If a trust makes a gratuitous transfer of property to another trust, the grantor of the transferor trust generally will be treated as the grantor of the transferee trust. However, if a person with a general power of appointment over the transferor trust exercises that power in favor of another trust, then such person will be treated as the grantor of the transferee trust, even if the grantor of the transferor trust is treated as the owner of the transferor trust under subpart E of part I, subchapter J, chapter 1 of the Internal Revenue Code.

 

How is a Grantor Trust Taxed?

With some exceptions, if a trust is a grantor trust, then the grantor is treated as the owner of the trust’s assets, and the trust is disregarded as a separate tax entity.  The grantor must include all items of trust income, deduction, and credit in computing their taxable income.

Under section 671 a grantor or another person includes in computing his taxable income and credits those items of income, deduction, and credit against tax which are attributable to or included in any portion of a trust of which he is treated as the owner. Sections 673 through 678 set forth the rules for determining when the grantor or another person is treated as the owner of any portion of a trust.

An item of income, deduction, or credit included in computing the taxable income and credits of a grantor or another person under section 671 is treated as if it had been received or paid directly by the grantor or other person (whether or not an individual). For example, a charitable contribution made by a trust which is attributed to the grantor (an individual) under sections 671 through 677 will be aggregated with his other charitable contributions to determine their deductibility under the limitations of section 170(b)(1). Likewise, dividends received by a trust from sources in a particular foreign country which are attributed to a grantor or another person under subpart E will be aggregated with his other income from sources within that country to determine whether the taxpayer is subject to the limitations of section 904 with respect to credit for the tax paid to that country.

If the portion treated as owned consists of specific trust property and its income, all items directly related to that property are attributable to the portion. Items directly related to trust property not included in the portion treated as owned by the grantor or other person are governed by the provisions of subparts A through D (section 641 and following), part I, subchapter J, chapter 1 of the Code. Items that relate both to the portion treated as owned by the grantor and to the balance of the trust must be apportioned in a manner that is reasonable in the light of all the circumstances of each case, including the terms of the governing instrument, local law, and the practice of the trustee if it is reasonable and consistent.

If the portion of a trust treated as owned by a grantor or another person consists of an undivided fractional interest in the trust, or of an interest represented by a dollar amount, a pro-rata share of each item of income, deduction, and credit is normally allocated to the portion. Thus, where the portion owned consists of an interest in or a right to an amount of corpus only, a fraction of each item (including items allocated to corpus, such as capital gains) is attributed to the portion. The numerator of this fraction is the amount that is subject to the control of the grantor or other person and the denominator is normally the fair market value of the trust corpus at the beginning of the taxable year in question.

 

Is there a Distinction Between “Corpus” and “Income” for Grantor Trusts?

Since the principle underlying subpart E (section 671 and following), part I, subchapter J, chapter 1 of the Code, is in general that income of a trust over which the grantor or another person has retained substantial dominion or control should be taxed to the grantor or other person rather than to the trust which receives the income or to the beneficiary to whom the income may be distributed, it is ordinarily immaterial whether the income involved constitutes income or corpus for trust accounting purposes.

 

Reversionary Interest

Under section 673(a), a grantor, in general, is treated as the owner of any portion of a trust in which he has a reversionary interest in either the corpus or income if, as of the inception of that portion of the trust, the grantor’s interest will or may reasonably be expected to take effect in possession or enjoyment within 10 years commencing with the date of transfer of that portion of the trust.

Even though the duration of the trust may be such that the grantor is not treated as its owner under section 673, and therefore is not taxed on the ordinary income, he may nevertheless be treated as an owner under section 677(a)(2) if he has a reversionary interest in the corpus. In the latter case, items of income, deduction, and credit allocable to corpus, such as capital gains and losses, will be included in the portion he owns.

Section 673(c) provides that a grantor is not treated as the owner of any portion of a trust by reason of section 673 if his reversionary interest in the portion is not to take effect in possession or enjoyment until the death of the person or persons to whom the income of the portion is regardless of the life expectancies of the income beneficiaries. If his reversionary interest is to take effect on or after the death of an income beneficiary or upon the expiration of a specific term of years, whichever is earlier, the grantor is treated as the owner if the specific term of years is less than 10 years (but not if the term is 10 years or longer).

 

Power to Control Beneficial Enjoyment

Under section 674, the grantor is treated as the owner of a portion of trust if the grantor or a nonadverse party has a power, beyond specified limits, to dispose of the beneficial enjoyment of the income or corpus, whether the power is a fiduciary power, a power of appointment, or any other power. Section 674(a) states in general terms that the grantor is treated as the owner in every case in which he or a nonadverse party can affect the beneficial enjoyment of a portion of a trust, with certain limitations.

In general terms the grantor is treated as the owner of a portion of a trust if he or a nonadverse party or both has a power to dispose of the beneficial enjoyment of the corpus or income unless the power is one of the following:

• A power that can only affect the beneficial enjoyment of income (including capital gains) received after a period of time such that the grantor would not be treated as an owner under section 673 if the power were a reversionary interest;
• A testamentary power held by anyone (other than a testamentary power held by the grantor over accumulated income);
• A power to choose between charitable beneficiaries or to affect the manner of their enjoyment of a beneficial interest;
• A power to allocate receipts and disbursements between income and corpus.
• A power to distribute corpus to or for a current income beneficiary, if the distribution must be charged against the share of corpus from which the beneficiary may receive income;
• A power to distribute income to or for a current income beneficiary or to accumulate it either (a) if accumulated income must either be payable to the beneficiary from whom it was withheld; (b) if the power is to apply income to the support of a dependent of the grantor, and the income is not so applied; or (c) if the beneficiary is under 21 or under a legal disability and accumulated income is added to corpus.

The power to distribute corpus or income to or among beneficiaries or to accumulate income will not give rise to grantor-trust treatment if:

(i) the power is held by a trustee or trustees other than the grantor, at least half of whom are independent, or

(ii) the power is limited by a reasonably definite standard in the trust instrument, and in the case of a power over income, if in addition the power is held by a trustee or trustees other than the grantor and the grantor’s spouse living with the grantor.

These powers include powers to “sprinkle” income or corpus among current beneficiaries, as well as powers to shift income or corpus between current beneficiaries and remaindermen.

 

Administrative Powers

Section 675 provides in effect that the grantor is treated as the owner of any portion of a trust if under the terms of the trust instrument or circumstances attendant on its operation administrative control is exercisable primarily for the benefit of the grantor rather than the beneficiaries of the trust. If a grantor retains a power to amend the administrative provisions of a trust instrument that is broad enough to permit an amendment causing the grantor to be treated as the owner of a portion of the trust under section 675, he will be treated as the owner of the portion from its inception.

The circumstances that will cause administrative control to be considered exercisable primarily for the benefit of the grantor are specifically described below:

Dealing with Trust for Less than Adequate Consideration

The rules will apply if there is a power, exercisable by the grantor or a nonadverse party, or both, without the approval or consent of any adverse party, which enables the grantor or any other person to purchase, exchange, or otherwise deal with or dispose of the corpus or the income of the trust for less than adequate consideration in money or money’s worth. Whether the existence of the power itself will constitute the holder an adverse party will depend on the particular circumstances.

Borrowing Trust Assets

The Code provides that, generally, the grantor of a trust will be treated as the owner of any portion of a trust in respect to which the grantor has borrowed the corpus or income and has not completely repaid the loan, including any interest, before the beginning of the taxable year.

The grantor rules also come into play where there is a power exercisable by the grantor or a nonadverse party, or both, that enables the grantor to borrow the corpus or income of the trust, directly or indirectly, without adequate interest or adequate security, except where a trustee (other than the grantor acting alone) is authorized under a general lending power to make loans to any person without regard to interest or security. A general lending power in the grantor, acting alone as trustee, under which he has power to determine interest rates and the adequacy of security is not in itself an indication that the grantor has power to borrow the corpus or income without adequate interest or security.

Finally, the grantor trust rules will apply if the grantor has directly or indirectly borrowed the corpus or income of the trust and has not completely repaid the loan, including any interest, before the beginning of the taxable year, although there is an exception to this rule for a loan that provides for adequate interest and adequate security, if it is made by a trustee other than the grantor or a related or subordinate trustee subservient to the grantor.

Administrative Powers Exercised in a Nonfiduciary Capacity

The rules will apply if there are certain powers of administration exercisable in a nonfiduciary capacity by any nonadverse party without the approval or consent of any person in a fiduciary capacity, including:

(i) A power to vote or direct the voting of stock or other securities of a corporation in which the holdings of the grantor and the trust are significant from the viewpoint of voting control;

(ii) A power to control the investment of the trust funds either by directing investments or reinvestments, or by vetoing proposed investments or reinvestments, to the extent that the trust funds consist of stocks or securities of corporations in which the holdings of the grantor and the trust are significant from the viewpoint of voting control; or

(iii) A power to reacquire the trust corpus by substituting other property of an equivalent value.

 

Power to Revoke

If a power to revest in the grantor title to any portion of a trust is exercisable by the grantor or a nonadverse party, or both, without the approval or consent of an adverse party, the grantor is treated as the owner of that portion, except as provided in section 676(b) (relating to powers affecting beneficial enjoyment of income only after the expiration of certain periods of time). If the title to a portion of the trust will revest in the grantor upon the exercise of a power by the grantor or a nonadverse party, or both, the grantor is treated as the owner of that portion regardless of whether the power is a power to revoke, to terminate, to alter or amend, or to appoint.

 

Income Payable to or Accumulated for the Grantor or the Grantor’s Spouse

Section 677 deals with the treatment of the grantor of a trust as the owner of a portion of the trust because he has retained an interest in the income from that portion. Section 677 also deals with the treatment of the grantor of a trust as the owner of a portion of the trust because the income from property transferred in trust after October 9, 1969, is, or may be, distributed to his spouse or applied to the payment of premiums on policies of insurance on the life of his spouse.

 

Trust Owned by a Third Party

Where a person other than the grantor of a trust has a power exercisable solely by himself to vest the corpus or the income of any portion of a testamentary or inter vivos trust in himself, he is treated as the owner of that portion, except as provided in section 678(b) (involving taxation of the grantor) and section 678(c) (involving an obligation of support). The holder of such a power is also treated as an owner of the trust even though he or she has partially released or otherwise modified the power so that he or she can no longer vest the corpus or income in himself, if he has retained such control of the trust as would, if retained by a grantor, subject the grantor to treatment as the owner under another section.

 

Foreign Trust with US Beneficiaries

A U.S. transferor who transfers property to a foreign trust is treated as the owner of the portion of the trust attributable to the property transferred if there is a U.S. beneficiary of any portion of the trust, unless an exception applies to the transfer.

The foreign trust rules apply without regard to whether the U.S. transferor retains any power or interest described in sections 673 through 677. If a U.S. transferor would be treated as the owner of a portion of a foreign trust pursuant to the foreign trust rules and another person would be treated as the owner of the same portion of the trust pursuant to section 678, then the U.S. transferor is treated as the owner and the other person is not treated as the owner.

A foreign trust is treated as having a U.S. beneficiary unless during the taxable year of the U.S. transferor—

(i) No part of the income or corpus of the trust may be paid or accumulated to or for the benefit of, directly or indirectly, a U.S. person; and

(ii) If the trust is terminated at any time during the taxable year, no part of the income or corpus of the trust could be paid to or for the benefit of, directly or indirectly, a U.S. person.

However, there is also a backup rule.  Even if, based on the terms of the trust instrument, a foreign trust is not treated as having a U.S. beneficiary within the meaning of the test above, the trust may nevertheless be treated as having a U.S. beneficiary based on the following:

• All written and oral agreements and understandings relating to the trust;
• Memoranda or letters of wishes;
• All records that relate to the actual distribution of income and corpus; and
• All other documents that relate to the trust, whether or not of any purported legal effect.

For purposes of determining whether a foreign trust is treated as having a U.S. beneficiary, the IRS looks to the following additional factors as well:

• If the terms of the trust instrument allow the trust to be amended to benefit a U.S. person, all potential benefits that could be provided to a U.S. person pursuant to an amendment must be taken into account;
• If the terms of the trust instrument do not allow the trust to be amended to benefit a U.S. person, but the law applicable to a foreign trust may require payments or accumulations of income or corpus to or for the benefit of a U.S. person (by judicial reformation or otherwise), all potential benefits that could be provided to a U.S. person pursuant to the law must be taken into account, unless the U.S. transferor demonstrates to the satisfaction of the Commissioner that the law is not reasonably expected to be applied or invoked under the facts and circumstances; and
• If the parties to the trust ignore the terms of the trust instrument, or if it is reasonably expected that they will do so, all benefits that have been, or are reasonably expected to be, provided to a U.S. person must be taken into account.

For these purposes, an amount is treated as paid or accumulated to or for the benefit of a U.S. person if the amount is paid to or accumulated for the benefit of:

(i) A controlled foreign corporation, as defined in section 957(a);

(ii) A foreign partnership, if a U.S. person is a partner of such partnership; or

(iii) A foreign trust or estate, if such trust or estate has a U.S. beneficiary (within the meaning of paragraph (a)(1) of this section).

Finally, an amount is treated as paid or accumulated to or for the benefit of a U.S. person if the amount is paid to or accumulated for the benefit of a U.S. person through an intermediary, such as an agent or nominee, or by any other means where a U.S. person may obtain an actual or constructive benefit.

Terminating a Grantor Trust

To the extent that they apply, the grantor trust rules override the otherwise applicable general rules of trust taxation.

The termination of grantor trust status can have significant consequences.  By way of example, the termination of grantor trust status may lead to a taxable event where the trust holds a partnership interest in a partnership with certain liabilities in excess of the basis in the partnership.

Likewise, an individual who creates an irrevocable trust classified as a grantor trust, purchases, as trustee, an interest in a partnership generating losses derived from accelerated depreciation deductions that reduce the basis of the partnership interest almost to zero, and who renounces the powers that cause the grantor trust classification just before the partnership begins generating income, will recognize gain or loss under section 741 of the Code measured by the difference between the trust’s adjusted basis of the partnership interest and its share of the partnership’s liabilities.

[1] The “grantor trust” rules are set out in subpart E (§ 671 and following), part I, subchapter J, chapter 1 of the Code (a grantor trust).

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