Tuesday, April 29, 2014

Frequently Asked Questions

1. Why should I have a SPAT or SPA Trust?

First let me explain that there is no difference between a SPAT and SPA Trust, both are irrevocable. The best kept secret to the reason for a trust is asset protection. As long as there are no fraudulent conveyances you will have complete protection from creditors.

2. What is fraudulent conveyance?

Fraudulent conveyance occurs when you have or know of pending creditor claims or law suits against you and you move assets from your own name to any other name or entity.

3. What is the difference between a revocable and irrevocable Trust?

The revocable trust, such as a living trust has no asset protection, in other words creditors can reach your assets in this type of trust. An irrevocable trust is opposite of a revocable trust and has asset protection if properly written and done under the jurisdiction of the right state, such as Nevada. Some states trust law affords little protection and if you have language in the trust that allows a settlor to change the trust the trust become revocable and asset can be reached by creditors, such as Missouri.

4. Does federal law protect SPAT or SPA irrevocable Trust?

Yes. 11 USC sec. 541(b)(1) protects trusts that are other than the debtor and there was no foreseeable problems before the trust was set up, such as fraudulent conveyance. Trust law is really controlled by the governing state law named within the trust, such as Nevada chapter 163.

5. How does an irrevocable Trust protect assets?

When assets are placed or purchased by the trust the title to that asset is split with legal title being held by the trustees and equitable title being held by the beneficiaries. The definition of a trust is simple, assets held by trustees for the future benefit of the beneficiaries.

6. Can a trust create another trust?

Yes. In Nevada under chapter 163 a trust can create and fund another trust as long as the beneficiaries remain the same or the beneficiaries agree that the beneficiary can change.

7. Can an irrevocable Trust own a corporation or LLC?

Yes, but I do not advise it. What I do advise is that the trust be a stockholder or general partner of an LLC. This gives greater protection to the trust and possibly better tax advantages depending upon the type of corporation or LLC election, such as an S corp.

8. Is Wyoming a good jurisdiction to set up an LLC?

Yes, but it has its limitations, such as, you must have an officer within Wyoming and it has pierced the corporate veil more ways than Nevada in its case law.

9. If I need an LLC, would it be best to set one up in Nevada?

Yes. Nevada has the best all-around case law for the protection of LLCs.

10. I was trying to understand from something I read, it seems like the Wyoming and Nevada Corps and LLCs were similar, is this correct?

Yes. Corps and LLCs are similar in most states. The Wyoming Corp. is good in the sense that Wyoming has no income and capital gains taxes, but does it have corporate taxes every year? This I am not sure of without further research. I know that Nevada does not have income, cap gains or corporate taxes.

In Nevada, piercing the corporate vial is impossible and allows protections for single officer and board member and one can be the same with the same protections.

11. I keep reading about the Business Trust, is this different than the Revocable Trust that I was thinking about obtaining? I wanted to put house, car etc. in the Revocable Trust so my daughter/son will have full access.

Revocable Trusts and Irrevocable Business Trusts are two different animals under the law, either one can be used for the purposes you ask in your question. I prefer SPAT irrevocable trusts, because the business trust is one of the most picked on by the IRS and considered abusive.

12. Can a trust be put in the name of my Corporation?

I would never put any trust or corporation in the name of the other or have one being the owner of the other and vise a versa. The reason is, if the corp. veil is ever pierced then they have long arm reach into the other ownerships of that trust, business or corporation.

13. In speaking with a wealth manager friend here in NY State, he mentioned that an "irrevocable trust" is just that - i.e., it cannot be changed, and if it is, it is invalidated. Also, here is a definition I found that seems to confirm this:

"Irrevocable trust. In contrast to a revocable trust, an irrevocable trust is one in which the terms of the trust cannot be amended or revised until the terms or purposes of the trust have been completed. Although in rare cases, a court may change the terms of the trust due to unexpected changes in circumstances that make the trust uneconomical or unwieldy to administer, under normal circumstances an irrevocable trust may not be changed by the trustee or the beneficiaries of the trust."

Since I do want to make changes with regard to the beneficiaries, how is it that we can make the change via the minutes and be in compliance?

You are missing the point of the definition of irrevocable, i.e. "under normal circumstances an irrevocable trust may not be changed by the trustee or the beneficiaries of the trust". When you read that in your mind, did you hear anything about a grantor or settlor changing the terms of the trust? The definition is correct, a trustee or beneficiary cannot change the terms, but a settlor can. The Settlor(s) is/are the only persons in the trust who can and Nevada Law also reserves that. The changes can only be done while the original settlor(s) are alive after that an irrevocable trust cannot be changed by new or successive settlors or in other words the trust is set in stone. Read NRS Chapter 163 also apart of the handbook and the governing law of the trust.

Under normal circumstances a successive settlor, trustee or beneficiary cannot change the terms of a trust after the original settlors death unless they go to court and prove the terms are causing undo economical burdens, these cases are rare and is written in Nevada Law, also see the trust terms after the definitions. Under Nevada Law an original grantor or settlor cannot even change the terms of the irrevocable trust unless that term is specifically written in the trust. Read the definition of Settlor, which is the very last definition on page 9 of the trust indenture.

NRS 163.160 Power of settlor; liability of trustee for breach of trust.
1. The settlor of a trust affected by NRS 163.010 to 163.200, inclusive, may, by provision in the instrument creating the trust if the trust was created by a writing, or by oral statement to the trustee at the time of the creation of the trust if the trust was created orally, or by an amendment of the trust if the settlor reserved the power to amend the trust, relieve his or her trustee from any or all of the duties, restrictions and liabilities which would otherwise be imposed upon the trustee by NRS 163.010 to 163.200, inclusive, or alter or deny to his or her trustee any or all of the privileges and powers conferred upon the trustee by NRS 163.010 to 163.200, inclusive, or add duties, restrictions, liabilities, privileges or powers to those imposed or granted by NRS 163.010 to 163.200, inclusive, but no act of the settlor relieves a trustee from the duties, restrictions and liabilities imposed upon the trustee by NRS 163.030, 163.040 and 163.050.

NRS 163.4165 "Reserved power" defined. "Reserved power" means a power concerning a trust held by the settlor.

NRS 163.560 Irrevocable trust not to be construed as revocable.
1. If the settlor of any trust specifically declares in the instrument creating the trust that such trust is irrevocable it shall be irrevocable for all purposes, even though the settlor is also the beneficiary of such trust.
2. Such trust shall, under no circumstances, be construed to be revocable for the reason that the settlor and beneficiary is the same person.

14. What is the difference between the Creator and the Settlor?

The creator is first mentioned on the first page of the trust indenture as the Drafter and Offeror and then again in the very first paragraph of the same document and only as the drafter. The Creator and Offeror's only job in the trust is to buy the assets from the Investor and sell the same assets to the Trust for the benefit of the beneficiaries.

This happens by the stroke of the pen and no assets actually go into the Creators hands. The creator holds no office or position in the trust what-so-ever. Per say, there is no place in the trust indenture where the creator drops out, that happens automatically as the Settlor with all Veto Powers, the Trustees, the Executive Director and Executive Secretary takes over the trust 100% by executing such documents. Again, the only job the Creator has is drafting the trust and moving the assets within the trust, that's is it! The receipts for the assets are built in the trust at paragraphs 4, 5, 6, 7 and 8 of minute one and also in paragraph one of the trust indenture the Settlor is the Investor. Again in paragraph two of the trust indenture receipt of the assets is given to the trust with management of the assets to the trustees for the benefit of the beneficiaries. Read the Trust and the Trust handbook for full understanding and anyone saying any different is completely wrong, period ending!

Monday, April 28, 2014

Trusts, Income and Capital Tax Loophole under 26 USC sec. 643

Trusts, Income and Capital Tax Loophole under 26 USC sec. 643

Trusts that are qualified under 26 USC sec. 643 are simple irrevocable trusts, where you as the Settlor have control over the assets through veto powers over the trustee's decisions. 26 USC sec. 643 allows for the deduction of the sale of capital assets against income and capital gains taxes, but not against income taxes due on the normal course of business activity.

An example of a capital asset is the Trust purchases a house and holds it for a while and then sales it, but if you buy homes and fix them up to flip is considered normal course of business. Another example is the trust purchases Dinar hold it in the trust and then realize a gain is exempt from income taxes and capital gains under sec. 643, but if the trust is involved in forex trading or the buy and sale of Dinar that would be the normal course of business wherein the taxes would be due.

The only down fall of the sec. 643 exception is you cannot make beneficiary distributions or the gain cannot be required to distributed to beneficiaries in the same taxable year, but the trust can do all the investing and re-investing and pay all trust expenses it want during the same taxable year.

26 USC sec. 643:

(a) Distributable net income
For purposes of this part, the term “distributable net income” means, with respect to any taxable year, the taxable income of the estate or trust computed with the following modifications—

(3) Capital gains and losses
Gains from the sale or exchange of capital assets shall be excluded to the extent that such gains are allocated to corpus and are not

(A) paid, credited, or required to be distributed to any beneficiary during the taxable year, or

(B) paid, permanently set aside, or to be used for the purposes specified in section 642(c). Losses from the sale or exchange of capital assets shall be excluded, except to the extent such losses are taken into account in determining the amount of gains from the sale or exchange of capital assets which are paid, credited, or required to be distributed to any beneficiary during the taxable year. The exclusion under section 1202 shall not be taken into account.

The exclusion under 26 USC sec. 1202 pertains to small business stock.

Maximum Benefit Rule

Maximum Benefit Rule

Maximum Benefits: The Internal Revenue Code permits a beneficiary to receive significant benefits from a trust without causing the trust or its assets to be considered part of the beneficiary's estate. Unless the assets were contributed by the beneficiary, the assets will not be considered part of the beneficiary's taxable estate if even the beneficiary has the right to:

i. Receive all trust income;

ii. Receive payments from trust principal for health, education, support, and maintenance;

iii. Withdraw 5% of principal per year. A right of withdrawal held at the time of death will trigger an estate tax on the amount over which the right might be exercised (currently 5 million per spouse). Because of that, it may be advisable not to include this right. Tax law permits withdrawals of $5,000 or 5%, whichever is greater, and so some planners refer to this as a “5 or 5 power”.

iv. Direct distributions of the principal during life (to recipients other than the beneficiary and the beneficiary's creditors);

v. Direct distributions of the principal after death (to recipients other than the beneficiary's estate or creditors); and

vi. Act as a trustee.
A trust which gives a beneficiary all of those rights is often referred to as a "maximum benefit trust". A maximum benefit trust gives most of the flexibility that would come from outright ownership without subjecting the assets to the claims of creditors, the claims of disgruntled spouses in a divorce proceeding, or the obligation to pay federal estate taxes.

The Ultimate Trust Power!

Special Power of Appointment Trust:

The best way to protect assets is to create a good old-fashioned irrevocable trust that includes a special power of appointment. I call this a "Special Power of Appointment Trust".  This publication explains why the Special Power of Appointment Trust is so much safer, more reliable, more confidential, and less expensive than all other asset protection trusts.

All other asset protection trusts are based on the concept of a self-settled trust (a trust in which the creator of the trust is also included as a potential beneficiary).  The asset protection provided by a self-settled trust has no case law to support it.  At least two bankruptcy courts have refused to uphold the asset protection provided by a self-settled trust because this would violate the policies of the bankruptcy system.  In contrast, my Special Power of Appointment Trust is based on laws that have been consistently upheld for centuries in all fifty states and in the US bankruptcy courts.

A Special Power of Appointment Trust is better than a Family Limited Partnership or an Offshore Trust for many reasons, including the fact that is safer, more confidential, less expensive, and much less of a hassle to create and maintain.

If you create a Special Power of Appointment Trust, you will be the only person with knowledge, access, or control over your assets.  Your Special Power of Appointment Trust will own all the assets.  As Settlor of the Trust, you have direct access and control over your assets and you can invest them without limitation.  The “special power of appointment” is a power that allows the assets to be appointed to you at any time even, though you are not a beneficiary.

If you are sued, bankrupt, divorced, or subject to scrutiny by a government agency, you will be asked to disclose all of your assets and any trust of which you are a beneficiary.  If you had a self-settled asset protection trust, you would have to answer that you are a beneficiary of the trust and this will open the trust up to examination and attack.  If you have a Special Power of Appointment Trust, you will correctly answer that you are not a beneficiary of any trust.  You have no legal or beneficial ownership in the assets of your Special Power of Appointment Trust and they cannot be included on a disclosure of your assets.

These types of trusts have been tested in litigation, in bankruptcy, or in administrative proceedings, and all of them have proven to be completely unassailable.  In fact, there has never been a case anywhere in this country where a creditor has pierced a trust because the debtor was a permissible appointee under a special power of appointment.

Unlike a self-settled asset protection trust which is only accepted in a few progressive jurisdictions, the Special Power of Appointment Trust is equally effective in all fifty states and all foreign jurisdictions regardless of where you are from or where the litigation takes place.  Your Special Power of Appointment Trust can be located in any jurisdiction that you prefer, and it can be moved at any time.  In addition, the special power of appointment is a provision in your trust that allows the conditions, beneficiaries, or terms of the trust to be changed at any time, but only with your consent.  This makes the Special Power of Appointment Trust much more flexible than any other asset protection trust.

You create a Special Power of Appointment Trust with the following features:

1.  You are the “settlor” (or creator) of the trust.

2.  You appoint your spouse, friend or relative as the “trustee” of the trust.  If you wish to have the trust located in a foreign jurisdiction, you will also need to name a trustee in that jurisdiction, which is not true in all cases or jurisdictions, such as Nevada.  The trustee signs the trust document and has authority to sign for the trust.  The trustee has no risk of personal liability and they can resign at any time.

3. You name your spouse, children, or others as the “beneficiaries” of the trust.  Assets can be distributed to the beneficiaries from time to time, but only with your consent.  After your death, the trust will be held for the beneficiaries according to your wishes as outlined in the trust document.

4. You appoint some combination of trusted friends, relatives or advisors as the “donees” of a special power of appointment.  This gives the donees power to appoint the assets of the trust to any person or entity, including you, but not including the donees or their creditors.  In order to be sure that the donees do not abuse this power, you provide that the power can only be exercised with your consent and you also have a trust protector.

5.  You appoint someone as your trust protector.  The trust protector has power (with your consent) to change the trustee, the donees, or the location of the trust, in order to ensure that the trust fulfills your objectives.

6. You design the trust so it is “incomplete” for gift tax purposes, allowing you to transfer unlimited amounts to the trust at any time without incurring a gift tax.

7. You design the trust so it is a “grantor trust” for income tax purposes. This means that you don’t have to file any extra tax returns and all income is simply reported on your personal income tax return.  The trust files on form 1041.

8. You transfer assets of any kind and any value to the trust that is owned by your Special Power of Appointment Trust.  The transfers must be done at a time and in a manner that they are not considered a fraudulent transfer.

9. Years later, you are the object of a frivolous lawsuit by an aggressive creditor with unlimited resources.  You have no legal or beneficial ownership in the trust.  The trust is not a public record anywhere.  The entities and assets can be moved to any jurisdiction at any time.  You are not a beneficiary of the trust or a trustee.  Your creditors will have no way to discover the assets of the trust, and even if they could, they will have no legal recourse.  The trustees, whom you have appointed, can transfer the assets of the trust back to you, in any amount, at any time.


Another Type of Trust:  Power of Appointment Trust

How Does a Power of Appointment Trust Work?

A power of appointment trust can be structured in a number of different ways. A general power of appointment trust can be created by both spouses to place property in trust to be held for the benefit of the other spouse. The trust is revocable until the death of the first spouse. Upon the first spouse’s death, the surviving spouse receives a general power of appointment which gives the surviving spouse discretion to decide how to distribute the property during his life or after his death. Because the surviving spouse has a general power of appointment upon the first spouse’s passing, the surviving spouse can bequeath the property to his children, creditors, estate, creditors of his estate, or a charity and the predeceased spouse has no say in how the property is distributed, even though the property placed in the trust belonged to the predeceased spouse.

In a general power of appointment trust, all income from the trust must be paid to the surviving spouse no less than once annually. It can be paid more frequently if necessary. The property in the trust may be subject to claims of the surviving spouse’s creditors. The value of property over which one holds a general power of appointment is included in the holder’s gross estate, even if the holder does not exercise the general power of appointment. If the general power of appointment was created on or before October 21, 1942, other rules apply.

The Advantages of a Power of Appointment Trust

• A power of appointment trust allows a person to ensure his or her spouse will have income for life from the trust.

• The property in the trust avoids probate upon the death of the donor that created the trust.

• The property in the trust qualifies for the marital deduction and is not subject to estate tax upon the death of the first spouse, provided the surviving spouse is a U.S. citizen.

• A power of appointment trust allows the surviving spouse to determine how the assets in the trust should be distributed rather than requiring the predeceased husband or wife to choose the final beneficiaries.

Planning Tips for Making a Power of Appointment Trust

The spouse that establishes the power of appointment trust can determine the amount of control to grant the surviving spouse. For example, the spouse can name his or her surviving spouse as trustee with authority to manage trust assets during the surviving spouse’s lifetime. Alternatively, the spouse can name another person or entity as trustee, preventing the surviving spouse from having any authority to manage trust assets. When determining what type of authority to grant the surviving spouse, a donor should consider the ability of his or her spouse to manage trust assets, the amount of property that will be placed in trust, the federal and state estate and gift taxes to which the parties may be subject, and the donor’s objectives in creating the trust.

A general power of appointment trust must give the surviving spouse the right to receive all income from the trust during his or her lifetime.

A general power of appointment trust must give the trustee or surviving spouse the right to invade the trust principal in certain circumstances set forth in the trust document.

The property in the general power of appointment trust will be subject to estate tax upon the death of the surviving spouse.

What is a Power of Appointment Trust?

A power of appointment trust is a type of marital deduction trust which gives the surviving spouse the authority to choose the final beneficiaries of the trust. In a power of appointment trust arrangement, the first spouse to die leaves the surviving spouse the income from the trust property for life and the power to decide how to distribute the trust property during the surviving spouse’s lifetime or upon his or her death.

A power of appointment trust should not be used by a spouse that wants to control how his or her estate is distributed. For example, if you have children from a prior marriage or relationship, wish to leave a charitable bequest to your alma mater or a favorite charity, or want to ensure a specific bequest is made to your grandchildren or other heirs, do not place that property in a general power of appointment trust for your spouse.

While a power of appointment trust is beneficial in certain estate plans, some estates are not large enough to warrant the expenses involved in drafting and managing it. Before creating a power of appointment trust, consult a tax advisor or estate planning lawyer. Gift and estate tax issues of the donor and donee should be reviewed when creating a power of appointment trust. A power of appointment trust should only be made after consideration of your entire estate, along with your spouse's estate, and your overall objectives for distributing your property.

What is a General Power of Appointment?
In a general power of appointment, a donor grants another individual, called the holder or donee, the power to determine who shall receive the donor’s property. A general power of appointment can be exercised in favor of any beneficiary or appointee selected by the holder of the General Power of Appointment.

The first trust mentioned above is the best option and can be done with both spouses as settlors.

Non & Low-Profit Limited Liability Company, L3C

Overview of the L3C, or Low-Profit Limited Liability Company:

The L3C, or Low-Profit Limited Liability Company, is a new type of corporate entity that is a cross between a nonprofit and a for-profit corporation. L3Cs are not eligible for tax-exempt treatment by the IRS. Rather, they are intended to be profit-generating entities with charitable and educational (including positive social change) missions as their primary objectives. Building upon the LLC structure, the L3C has thus far been enacted in Vermont (May 2008), Michigan (January 2009), Utah (March 2009), Wyoming (July 2009) and Illinois (Jan 2010). L3C legislation is also being considered in several other states, including Georgia, Louisiana, Maine and Missouri. For more information about the status of L3C legislation please visit: http://www.americansforcommunitydevelopment.org/legislativewatch.html.

The Nevada legislature has not passed any legislation authorizing L3Cs as of July 2011. However, all states must recognize LLCs formed in other states and the L3C is a variant form of an LLC.

L3Cs are similar to LLCs in that they have the liability protection of a corporation, the flexibility of a partnership and membership shares can be sold to raise capital just like common stock. However, unlike the LLC, the L3C must be formed for a charitable or educational purpose, it cannot have a significant goal of producing income or capital appreciation and it may not accomplish political or legislative objectives.

L3Cs are intended to be vehicles which can both attract capital investment from for-profit enterprises and investment by foundations. Nontraditional for-profit investors who are willing to sacrifice market-level returns in exchange for social impact are prime candidates to provide capital investments or loans to L3Cs. Similarly, private foundations that wish to provide support in the form of a loan or equity rather than a grant may find an L3C to be attractive because the enabling legislation is written in such a way as to comply with the IRS “program related investment” or “PRI” regulations, thus eliminating the need for private letter rulings or legal opinions for such investments. PRIs can be attractive to foundations because they count toward its 5% minimum payout requirement, just as if they were grants. But if the investment is successful, the foundation could recapture the full amount of the investment, plus a reasonable rate of return, which it then must pay out again in the form of grants or more PRIs.

Existing nonprofit corporations can utilize the L3C structure in at least two ways. First, if the nonprofit generates enough earned income to qualify as “low profit,” it could reincorporate as a stand-alone L3C. Second, it could establish a subsidiary as an L3C to conduct low-profit earned income activities.

It is too early to tell whether L3Cs will proliferate and whether they will attract significant investments from non-traditional investors and foundations. Some experts have predicted that since PRIs comprise a relatively small amount of foundation grants and capital, the L3C will not succeed in attracting significant funds from foundations and thus this form of organization will not become the preferred vehicle.

The L3C is taxed like any other for-profit entity and is not eligible for tax exemption under Section 501(c)(3) of the Internal Revenue Code.  L3Cs hope to encourage an influx of new capital into charitable causes that are too risky for for-profit ventures and that nonprofit dollars alone cannot sustain.  The L3C effectively creates a market for investment in companies that offer low rates of return, but contribute to the community, unlike the non-profit, which offers no rate (and sometimes a negative rate) of return on investment.  Therefore, if an entity has a charitable mission, but does not believe it can be profitable, or has a social mission, but probably could not secure program-related investments ("PRIs") from private foundations, it would be better off forming as a not-for-profit or for-profit entity, respectively.


Program-Related Investments

IRS on Program-related investments (PRI) are those in which:

The primary purpose is to accomplish one or more of the foundation's exempt purposes,

Production of income or appreciation of property is not a significant purpose, and

Influencing legislation or taking part in political campaigns on behalf of candidates is not a purpose.

In determining whether a significant purpose of an investment is the production of income or the appreciation of property, it is relevant whether investors who engage in investments only for profit would be likely to make the investment on the same terms as the private foundation.

If an investment incidentally produces significant income or capital appreciation, this is not, in the absence of other factors, conclusive evidence that a significant purpose is the production of income or the appreciation of property.

To be program-related, the investments must significantly further the foundation's exempt activities.  They must be investments that would not have been made except for their relationship to the exempt purposes.  The investments include those made in functionally related activities   that are carried on within a larger combination of similar activities related to the exempt purposes.

The following are some typical examples of program-related investments:

Low-interest or interest-free loans to needy students,

High-risk investments in nonprofit low-income housing projects,

Low-interest loans to small businesses owned by members of economically disadvantaged groups, where commercial funds at reasonable interest rates are not readily available,

Investments in businesses in deteriorated urban areas under a plan to improve the economy of the area by providing employment or training for unemployed residents, and

Investments in nonprofit organizations combating community deterioration.

Once an investment is determined to be program-related, it will continue to qualify as a program-related investment if changes in the form or terms of the investment are made primarily for exempt purposes and not for any significant purpose involving the production of income or the appreciation of property.  A change made in the form or terms of a program-related investment for the prudent protection of the foundation's investment will not ordinarily cause the investment to cease to qualify as program-related.  Under certain conditions a program-related investment may cease to be program-related because of a critical change in circumstances, such as serving an illegal purpose or serving the private purpose of the foundation or its managers.

If a foundation changes the form or terms of an investment, and if the investment no longer qualifies as program-related, it then must be determined whether or not the investment jeopardizes carrying out its exempt purposes.

An investment that ceases to be program-related because of a critical change in circumstances does not subject the foundation making the investment to the tax on jeopardizing investments before the 30th day after the date on which the foundation (or any of its managers) has actual knowledge of the critical change in circumstances.
The L3c can also be used in a variety of other types of for profit with donations made to other types of education. It looks to me that you can make a profit, protect the principle and take a good salary, while donating a certain percentage (5%) of the profits and take good tax deductions,  all at the same time. If business, profit, salary, protecting the principle and donating back to the community are the goals you want to accomplish this would be a good vehicle to use for those goals.