Charitable Remainder Annuity Trust
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The donor funds a qualifying trust under Code §664, providing a fixed annuity (minimum 5% of the original value of the principal, maximum 50%) for one or more individuals. The trust may last for the lifetimes of the beneficiaries or a term of years (maximum 20 years). When the trust ends, the principal passes to one or more qualified charities. No additional contributions are permitted to the trust.
Income Tax Deduction
The present value of a charity's remainder interest (10% minimum required) is deductible, based on the ages of income beneficiaries (or a fixed term up to 20 years), applicable federal rate (§7520 rate) and an unvarying dollar amount to be paid each year. A 5% probability test limits the maximum payouts.
Capital Gains Consequences
No capital gains are recognized upon a transfer of appreciated assets to the trust, or upon a sale by the trustee. Part of the beneficiary's income may be taxed at low capital gains tax rates under the four-tier tax reporting system.
Federal Taxation
Charitable remainder trusts are tax-exempt. Payments are taxable to income beneficiaries under a four-tier, worst-in-first-out system: (1) any current and accumulated ordinary income ( dividends taxed at 15% or 20% are considered last); (2) capital gains, beginning with short-term gain, then 28% gain (collectibles), 25% gain (recapture of depreciation), and finally 20% or 15% gain; (3) other (tax-exempt) income; (4) corpus (tax free). Trust income earned and distributed may be subject to the 3.8% net investment income tax. The trust pays a 100% tax on its unrelated business taxable income.
Transfer Taxes
One-life trust for donor: corpus is included in the gross estate, but a 100% charitable deduction is available. Two-life trust for donor and spouse: gift and estate tax marital/charitable deductions eliminate tax; adding additional beneficiaries voids the marital deduction. A trust for a non-spouse creates a taxable gift for income interest. The donor can retain the right to revoke, by will, the income interest of the survivor beneficiary, avoiding a taxable gift, but the survivor's interest is taxable in the donor's estate. The value of the testamentary trust is included in the donor's gross estate, but remainder interest gives rise to an estate tax charitable deduction.
Tax Returns
Donors must file gift tax returns (Form 709) for all lifetime trusts, even where a donor is the sole income beneficiary [Code §6019(3)]. Form 8283 is needed with the donor's tax return except for cash transfers. The trustee must file Form 5227 annually and Form 4720 is required if the trust is liable for excise taxes.
Best Funding Assets
Appreciated property, generally, and cash work best. Transfers of mortgaged real estate will disqualify the trust. Unproductive, hard-to-sell assets may be unsuitable for annuity trusts if the trustee is unable to make the required annuity payments. S stock is prohibited.
Special Considerations
Annuity trusts are most appealing where the income beneficiaries are in their mid-70s and older and prefer the security of a fixed income. Low §7520 rates (AFR) limit deductions and payouts for annuity trusts.
Charitable Remainder Unitrust
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Summary of Gift Plan
Beneficiaries receive a fixed percentage (minimum 5%, maximum 50%) of the value of the trust assets as revalued every year (the standard unitrust). Alternatively, the trust may pay the lesser of the unitrust amount or the trust's actual income (a net-income unitrust); make-up provisions are permitted. Additional contributions are possible.
Income Tax Deduction
The present value of the charity's remainder interest (10% minimum) is deductible, based on the ages of income beneficiaries (or a fixed term up to 20 years), §7520 rate and percentage of trust value to be paid each year. Higher payout rates are possible than with an annuity trust because the 5% probability test does not apply.
Capital Gains Consequences
Same capital gains result as with an annuity trust. Post-contribution long-term capital gain may be treated as income and paid out from net-income unitrusts, if the trust instrument and state law permit.
Federal Taxation
Charitable remainder trusts are tax-exempt. Payments are taxable to income beneficiaries under a four-tier, worst-in-first-out system: (1) any current and accumulated ordinary income (dividends taxed at 15% or 20% are considered last); (2) capital gains, beginning with short-term gain, then 28% gain (collectibles), 25% gain (recapture of depreciation), and finally 20% or 15% gain; (3) other (tax-exempt) income; (4) corpus (tax free). Trust income earned and distributed may be subject to the 3.8% net investment income tax. The trust pays a 100% tax on its unrelated business taxable income.
Transfer Taxes
One-life trust for donor: corpus included in gross estate, but 100% charitable deduction. Two-life trust for donor and spouse: gift and estate tax marital/charitable deductions eliminate tax; adding additional beneficiaries voids marital deduction. A trust for a non-spouse creates a taxable gift for income interest. The donor can retain the right to revoke, by will, income interest of the survivor beneficiary, avoiding a taxable gift, but the survivor's interest is taxable in the donor's estate. The value of the testamentary trust is included in donor's gross estate, but remainder interest gives rise to an estate tax charitable deduction.
Tax Returns
Donors must file gift tax returns (Form 709) for all lifetime trusts, even where the donor is the sole income beneficiary [Code §6019(3)]. Form 8283 is needed with a donor's tax return except for cash transfers. The trustee must file Form 5227 annually and Form 4720 if the trust is liable for excise taxes.
Best Funding Assets
Appreciated property and cash work best. Transfers of debt-encumbered real estate disqualify trust. Gifts of unproductive assets may be facilitated with a flip unitrust. Deductions for gifts of tangible personal property are reduced and postponed until the assets are sold by the trustee. S stock is prohibited.
Special Considerations
Greater flexibility of the unitrust enables donors to arrange lifetime income with a hedge against inflation. Unitrusts can be structured to shift income to retirement years and to achieve other purposes, including college funds for grandchildren or other younger beneficiaries.
Charitable Gift Annuity
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Summary of Gift Plan
The donor transfers cash or securities in exchange for a charity's promise to pay a fixed annuity to one or two individuals for life. The present value of the annuity is less than the amount transferred, creating a gift to charity. Most charities pay annuities based on the rates recommended by the American Council on Gift Annuities.
Income Tax Deduction
The amount transferred to a charity, less the present value of lifetime annuity retained for one or two persons, is deductible. Deductions are identical to those afforded by a charitable remainder annuity trust, but much lower amounts are needed to fund a gift. Higher deductions are possible if the first payment is deferred for several years.
Capital Gains Consequences
Capital gains are partially avoided with gifts of appreciated assets. Remaining gain can be reported ratably over the annuitant's life expectancy, if the donor is the annuitant.
Federal Taxation
Annuity payments are part tax-free return of principal, during the annuitant's life expectancy, and the rest is ordinary income. Capital gain is reportable in part where a donor funds an annuity with appreciated securities; the donor/annuitant may spread such gain ratably over his or her life expectancy. Capital gains and ordinary income may be subject to the 3.8% net investment income tax.
Transfer Taxes
No transfer tax results from a one-life annuity for a donor or a two-life annuity for a donor and spouse. The donor may keep the right to revoke an annuity established for a non-spouse during life, rendering the gift incomplete for gift tax purposes except for payments received, but the value of the annuity is included in the donor's estate.
Tax Returns
A gift tax return is required if a non-spouse is named current or survivor annuitant, and the donor has not kept the right to revoke. The charity reports annual payments to annuitants on Form 1099-R. Gifts of securities require Form 8283.
Best Funding Assets
Cash gifts ensure maximum tax-free payments. Gifts of securities enable donors to convert stocks to annuities while minimizing capital gains taxes. Many charities do not accept gifts of real estate, closely held stock or tangible personal property.
Special Considerations
Donors are typically in their 70s or older, although deferred payment annuities may be attractive for younger individuals who wish to supplement retirement savings. Most charities accept contributions as low as $10,000 or sometimes less.
Deferred Payment Gift Annuity
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Summary of Gift Plan
The donor transfers cash or securities in exchange for a charity’s promise to pay a fixed annuity to one or two individuals for life with the first payment occurring at least one year after the date of the gift. Most charities offer deferred payout rates based on recommendations of the American Council on Gift Annuities. Payout rates are higher for deferred annuities than for immediate payment gift annuities: the longer the deferral period, the higher the payout rate.
Income Tax Deduction
The amount transferred to a charity, less the present value of the lifetime annuity retained for one or two persons, is deductible. Charitable deductions are higher for deferred payment annuities than those available for immediate payment gift annuities.
Capital Gains Consequences
Capital gains are partially avoided when appreciated assets are used to fund a deferred payment annuity. Remaining gain can be reported ratably as payments are received over the annuitant’s life expectancy, if the donor is the annuitant.
Federal Taxation
Annuity payments are partly tax-free return of principal, during the annuitant’s life expectancy, and the rest is ordinary income. Some capital gain is reportable where a donor funds a deferred annuity with appreciated securities, but the donor/annuitant may spread such gain ratably over his or her life expectancy.
Transfer Taxes
No transfer tax results from a one-life deferred annuity where payments are made only to the donor. For a two-life annuity, a taxable gift occurs, but gift taxes may be postponed or avoided if the donor keeps the right to revoke the second annuitant’s annuity. The gift would be rendered incomplete for gift tax purposes except for payments actually received. No gift tax would be due, however, if the payments are sheltered by the annual gift tax exclusion, or if the recipient is married to the donor. The value of the survivor’s annuity is included in the donor’s estate, but the marital deduction is available if the survivor is the donor’s spouse.
Tax Returns
A gift tax return is required if another person, including a spouse, is named as an annuitant, and the donor has not kept the right to revoke. The charity reports annual payments to annuitants on Form 1099-R. Gifts of securities require Form 8283.
Best Funding Assets
Cash gifts ensure maximum tax-free payments. Gifts of securities enable donors to convert stocks to annuities while minimizing capital gains taxes. Many charities do not accept gifts of real estate, closely held stock or tangible personal property for charitable gift annuities.
Special Considerations
Deferred gift annuity donors are generally younger than people who arrange immediate payment gift annuities. Baby Boomers often see deferred gift annuities as a way to supplement retirement savings while minimizing income taxes during their peak earning years. However, deferred gift annuities may be attractive to any donor who needs a large income tax deduction in a particular year and has the ability to wait several years before receiving the initial annuity payment. Several private IRS rulings have approved flexible deferred gift annuity plans whereby donors may choose an initial starting date for payments, but have the option to then continue postponing payments for several more years – resulting eventually in larger payments
Charitable Lead Trust
Summary of Gift Plan
The charitable lead trust is the reverse of the charitable remainder trust. The lead trust pays either an annuity or a unitrust amount to one or more charities during the trust term and the remainder passes to the donor or a named beneficiary. Lead trusts can be set up during life (either as grantor or nongrantor trusts) or at death.
Income Tax Deduction
The present value of income interest is deductible, if the donor is considered the owner of the trust under grantor trust rules, having retained reversionary interest or certain other powers. The deduction is based on the length of the trust term or age of measuring life, §7520 rate and annual payments, which can be an annuity or unitrust amount.
Capital Gains Consequences
The trustee takes the donor's basis, and the trust is taxable on net gains realized, unless the trust is structured as a grantor trust, in which case the donor is taxed. A testamentary lead trust receives a stepped-up basis.
Federal Taxation
Trust income of a grantor lead trust is taxed to the donor; at death, the trust becomes subject to tax as a complex trust. Nongrantor trusts, including testamentary trusts, are taxed as complex trusts but are allowed deductions under Code §642(c) for amounts paid to charity.
Transfer Taxes
A gift tax charitable deduction enables donors to transfer assets to family members at reduced gift tax or generation-skipping transfer (GST) tax. Testamentary lead trusts generate estate tax charitable deductions. A lead unitrust should be employed if the transfer is subject to GST tax.
Tax Returns
Donors must file gift tax returns for lifetime trusts. Trustees file Forms 1041, 1041-A (in general) and Form 5227 annually. Form 4720 must be filed if the trust owes excise tax.
Best Funding Assets
Appreciated property may be less suitable for lifetime lead trusts, if sale and reinvestment of assets by the trustee is anticipated, because trusts are not tax-exempt. Transfers of income-producing assets may be more tax efficient. Testamentary lead trusts receive a step-up in basis.
Special Considerations
Lead trusts help donors who wish to stretch the protection of the gift or estate tax credits, or the exemption for generation skipping transfer tax. Intentionally defective grantor trusts can provide donors with both transfer tax and income tax charitable deduction.
Remainder Interests in Residences and Farms
Summary of Gift Plan
The donor deeds a personal residence or agricultural property to a charity and retains a life estate for one or more individuals or for a fixed term of years. A residence need not be the donor's primary residence. The transfer is not made in trust and may not include personal property.
Income Tax Deduction
A donor may deduct the present value of the charity's remainder interest in depreciable and nondepreciable portions of property, using the remainder interest factors for one or two lives or a term of years, based on the §7520 rate, and taking into account the estimated useful life of depreciable property and salvage value.
Capital Gains Consequences
Capital gains taxes are avoided unless the property is subject to indebtedness, which brings bargain sale rules into play. For principal residences, the $250,000 exclusion may offset gain from a bargain sale.
Federal Taxation
There is no change in taxation of the life tenant following the contribution on income realized from property.
Transfer Taxes
The value of the property is included in the donor's gross estate, but a 100% estate tax charitable deduction avoids tax. Gift tax and estate tax marital deductions shelter transfers to a spouse; other transfers are subject to gift tax or estate tax.
Tax Returns
Donors file gift tax returns in all cases. Form 8283 must be filed with the donor's tax return for the year of the gift.
Best Funding Assets
Any residence occupied by the donor: principal residence, vacation property, condominium, etc. Farm property includes land and improvements used for the production of crops, fruits, or livestock. Donors may give remainders in undivided fractional interests.
Special Considerations
If the owner of the life estate can no longer use the property, it can be sold to a third party, with a division of the proceeds between charity and the life tenant, or the donor can give remaining life estate to charity outright or for a charitable gift annuity.
Charitable Bequests and Beneficiary Designations
Summary of Gift Plan
The donor designates a charity to receive a specific, general, percentage or residuary bequest from his or her will or revocable living trust, or names a charity to receive part or all of life insurance proceeds or remaining principal in his or her retirement, brokerage or financial accounts.
Income Tax Deduction
There is none for the donor, but estates and trusts may deduct income distributed to charities under Code §642(c), including income in respect of a decedent (IRD), if authorized under the donor's will or trust.
Capital Gains Consequences
Capital gains taxes are avoided 100%.
Federal Taxation
There is no change in taxation of the donor on income from assets revocably designated for charity. But bequests of income in respect of a decedent (IRD), such as US savings bonds and retirement accounts, avoid income taxes for the donor's estate or heirs.
Transfer Taxes
The value of the property is included in the donor's gross estate, but a 100% estate tax charitable deduction shelters bequests of any amount.
Tax Returns
Form 706 must be filed for estates subject to federal estate tax.
Best Funding Assets
Any assets, including cash or property will work, but ideally one should leave taxable assets such as IRAs and other retirement accounts, savings bonds, accounts receivable, renewal commissions of insurance agents, deferred compensation, stock options and installment obligations.
Special Considerations
Testamentary transfers can be shared between charity and family members through any of the gift techniques described above. Partial estate tax deductions reduce taxes on the estate.