Tag Archives: GRAT

Facebook Billionaires Avoid Taxes with GRATs

Forbes recently highlighted how Facebook co-founders Mark Zuckerberg and Dustin Moskovitz established grantor retained annuity trusts (GRATs) to transfer significant amounts of wealth tax-free.  In 2008, Zuckerberg and Moskovitz established GRATs which will enable the Facebook executives to transfer as much as $185 million to future offspring or others without paying any gift tax.  Most wealthy individuals recognize that this year offers a golden opportunity to transfer $5.12 million in assets without incurring any gift tax. However, the Facebook executives followed a similar tax strategy to the Walmart founders, the Walton family, by funding their GRATs with their rapidly appreciating Facebook shares.

ImageGRATs function by allowing a grantor (Zuckerberg and Moskovitz) to place shares or other assets into an ­irrevocable trust and retain the right to ­receive an annual payment back from the trust for a period of time.  Typically, to avoid the risk of premature death, advisors select a shorter time period of 2 to 4 years. If the grantor survives that period, any property left in the trust when the annual payments end passes to family members, other beneficiaries, or another trust.

A crucial aspect is determining the value of the remainder interest in the annuity. In calculating how much value will be left at the end of the annuity term (the remainder) — and thus how big a gift the grantor is making — the IRS does look at the performance of the actual stock (or any other asset) in the trust. Instead, the IRS assumes the trust assets are earning a meager government-determined interest rate. With a zeroed-out, or “Walton” GRAT, the grantor receives an annuity that leaves nothing for heirs if assets grow only at the IRS’ lowly interest rate. If the assets grow faster, the excess goes to the heirs gift tax free. If assets or stock under-perform or decrease in value, there is no downside for the grantor because the annuity can be paid by returning some shares each year to the grantor.

As a result, a GRAT is an ideal instrument to shift assets you expect to suddenly increase in value.  Hence, rapidly appreciating stock of technology giants (Facebook) or growing retails empires (Walmart) have proven to be the perfect assets to utilize within a GRAT.  President Obama and Democrat legislators have targeted zeroed-out GRATs as tax loopholes of the wealthy and have proposed legislation which would eliminate their use.  Until that time, the GRAT remains a valuable wealth transfer tool.

Nevada is Premier Self-Settled Spendthrift Trust State

On June 4, 2011, Governor Sandoval signed Senate Bill 221 which strengthened Nevada’s already outstanding self-settled spendthrift trust laws.  The most beneficial aspect of the new legislation relates to changing the situs of existing asset protection trusts to Nevada without restarting the statute of limitations period.  Nevada has two primary advantages over the other 13 states which permit self-settled, spendthrift trusts.  First, Nevada is the only state without a statutory exception allowing creditors to pierce the trust.   Second, Nevada has the shortest statute of limitations period to protect a transfer to the trust.

The new legislation makes the following changes effective October 1, 2011:

1. More Trust Types (CRT, QPRT, GRAT) Qualify

The new bill specifically allows charitable remainder trusts, qualified personal residence trusts, and grantor retained annuity trust to qualify under the statute.  Also, the bill allows the settlor to use real or personal property owned by the trust without limiting the scope of the protection provided by the spendthrift trust.

2. Tacking of Statute of Limitations Period for Trusts Migrating to Nevada

This new provision allows settlors who have established asset protection trusts in other states with less favorable laws to change the situs to Nevada without restarting the statute of limitations.

3. Limited Trustee Liability

Nevada law already protects an advisor to the settlor or trustee of a spendthrift trust from claims unless the claimant can prove by clear and convincing evidence that the advisor knowingly and in bad faith violated Nevada law, and that his actions directly caused damage to the claimant. The new legislation now also protects the trustee of a spendthrift trust unless the claimant can make the same showing as to the trustee.

4.  “Last in, First out”

The bill clarifies that later transfers in trust are disregarded for purposes of determining whether a creditor may bring an action with respect to an earlier transfer to the trust.  The new language makes clear that a more recent
transfer for which the statute of limitations period has not run will not spoil
the whole trust.

5.  Decanting Spendthrift Trusts

Now, the trustee of a self-settled spendthrift trust may decant the trust into another spendthrift trust without affecting the statute of limitations period applicable to the assets in the original trust. The date the property was initially transferred to the original spendthrift trust will be the deemed transfer date for the property even after it has been decanted into the second spendthrift trust.

6. Limitation of Actions Against Spendthrift Trust

This provision clarifies that no action of any kind may be brought at law or in equity against the trustee of a spendthrift trust if at the date the action is brought an action by a creditor with respect to a transfer to the spendthrift trust would be barred.  Prior to this, questions arose whether Nevada’s four year statute of limitations for fraudulent transfers applied in lieu of the two year statute of limitations period for spendthrift trusts. In addition, a creditor may not bring an action with respect to a transfer of property to a spendthrift trust unless the creditor can prove by clear and convincing evidence that the transfer (i) was a fraudulent transfer or (ii) “violates a legal obligation owed to the creditor under a contract or a valid court order that is legally enforceable by that creditor.”

7.  Unauthorized Agreements by Trustee are Void

SB 221 clarifies that the settlor only has rights and powers conferred specifically in the instrument, and any agreement between the settlor and trustee attempting to grant or expand those rights is void. This provision solidifies the use of the NV self-settled spendthrift trust as a completed gift trust, which will bolster its use as an estate tax avoidance method.

You can contact an experienced Nevada estate planning attorney at 775-688-3000.

Don L. Ross Presents at “It’s Your Estate” Seminars

KNPB Channel 5 and the Community Foundation of Western Nevada, along with 10 other non-profit sponsors, present a series of free, in-depth workshops on estate planning and family financial planning, “It’s Your Estate.”

Don L. Ross, Esq., will present on advanced estate planning topics including AB trusts, life insurance trusts, and grantor retained annuity trusts.  Don will present at the following times and locations:

Tuesday, April 26, 2011, 11:00 a.m. at the North Valleys Library, 1075 North Hills Blvd #340, Reno.

Wednesday, April 27, 2011, 2:00 p.m.  at the Spanish Springs Library, 7100 Pyramid Highway, Sparks.

Thursday, April 28th, 2011, 3:00 p.m. at the South Valleys Library, 15650A Wedge Parkway, Reno.

You can call Sandy at the Community Foundation 775-333-5499 to reserve your spot at the class location of your choice!

Ideal Time for Business Succession Planning

This article appeared in the February 21, 2011 edition of Northern Nevada Business Weekly:

One of the chief concerns of family business owners is how to pass the business to the next generation and/or key employees.  Although various provisions of the federal estate tax laws are intended to ease the tax burden on the transition of small businesses upon an owner’s death, these provisions are very limited in their scope and benefit.  However, the recently enacted Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (the “Act”) provides business owners with some meaningful tax-free opportunities to move their businesses to the next generation.

As widely publicized, the Act extends the Bush-era individual income, capital-gains and dividend tax cuts for all taxpayers for two years (2011 and 2012).  Most people also know that the Act temporarily increased the federal estate tax exclusion (i.e., the amount that may be passed to heirs free of federal estate tax) from $1 million to $5 million and reduces the federal estate tax rate to a single tax bracket of 35%.  For the first time ever the Act also provides for “portability” of the estate tax exclusion between spouses.  Portability means that any unused portion of a person’s estate tax exemption is transferable to his or her surviving spouse to be used upon the surviving spouse’s death.  So, if one spouse died in 2011 or 2012 and did not use any of his or her gift or estate tax exclusion, the surviving spouse will have an available estate tax exclusion of $10 million, and only the value of assets in excess of that sum would be subject to the 35% federal estate tax.

Obviously, a business owner who dies in the next two years will be able to pass substantially more of his or her business to his or her heirs than would have been possible without the act.  However, unless the business owner dies in the next two years (which is hopefully not the case) the Act’s changes to the estate tax laws really won’t help very much.  As seen in 2010, Congress may or may not extend, modify, or otherwise alter these new laws.  If nothing is done, we will revert to the rules that would have been applicable in 2011 without the Act, i.e., a $1 million federal estate tax exclusion and a maximum estate tax rate of 55%.

The Act’s biggest benefit to business owners, however, is a 500% increase in the federal lifetime gift tax exclusion.  Since 2001 the lifetime gift tax exclusion has remained at $1 million.  Under the terms of the Act, the gift tax exception increases dramatically to $5 million and the gift tax rate is reduced to 35% for transfers in excess of $5 million.  Like the estate tax exclusion, the gift tax exclusion is an exclusion from federal transfer taxes for assets transferred to other persons except that it relates to transfers made while you are alive rather than at death.  The federal gift tax and estate tax exclusions are unified such that any gifts made during your lifetime which use a portion of your gift tax exclusion will also reduce dollar for dollar the amount of your estate tax exclusion available upon your death.

What does all of this mean for business owners?  During this brief, two-year window you have an unprecedented opportunity to pass up to $5 million (or up to $10 million for a married couple) in business interests or other assets to the next generation or generations.  The combination of this previously undreamed-of gift-tax exclusion, depressed asset and real property values, and rock-bottom interest rates has created a once-in-a-lifetime opportunity to transfer very large blocks of your business interests wealth to your children, grandchildren and beyond free of any federal gift and estate taxes.  There has not been a better time to make gifts in several decades.

Importantly, the Act does not disturb some very advantageous estate planning tools.  Valuation discounts for minority interests and illiquid assets (such as closely-held business interests) are still available and are often used with various estate planning techniques to leverage a person’s gift and estate tax exclusions to make tax-free transfers of substantially more assets than would otherwise be possible.  While it had been rumored that the new tax law might limit these valuation discounts, the Act is silent on this subject.  As a result, valuation discounts continue (at least for now) to be an effective estate planning tool, especially for business owners.  For example, assume Father and Mother own a business, including equipment, materials, and real property worth $10 million.  Father and Mother would like to transfer the business to their three children who all participate in the business.  By gifting equal 33% interests in the business to the three children, Father and Mother can take valuation discounts due to the lack of control and lack of marketability associated with those 33% interests.  After the transfers, none of the children will have a controlling interest in the company and there is no ready market or stock exchange available for them to quickly convert the business interests to cash.  Therefore, Father and Mother may be able to discount the value of the gifted business interests as much as 30% to 40%.

Assuming a 30% discount in our example, Father and Mother would utilize $7 million of their combined $10 million gift tax exclusions.  The remaining $3 million in gift tax exclusions could be utilized to transfer other assets to their children or lower generations .  Not only would Father and Mother avoid taxation resulting from the transfer of their business, but also they would maximize the amount of assets transferred by discounting the asset values.  The transfer also allows any future appreciation in the value of the business to inure directly to the benefit of the children outside of Father’s and Mother’s estates.

Some of you have already exhausted your $1 million lifetime gift-tax exclusion.  The Act provides a limited time period to make additional gifts.  You have another $4 million to gift for the next two years.  Some of you have sold business interests to irrevocable trusts for your children, in return for a low interest promissory note payable (which is still a very useful planning method).  Generally, the purpose of these transactions is to take advantage of valuation discounts and to “freeze” the value of the business interest in your estate by replacing the business interest with a very low interest promissory note.  If the business interest has not performed well or if you simply want to be free of the hassle of the ongoing note payments, then the additional $4 million of lifetime gift tax exclusion presents an opportunity to forgive the promissory note and thereby conclude the transaction and relieve your heirs of the burden of making the note payments.

Please keep in mind that other advanced planning techniques are available to leverage your lifetime exclusions to pass even more assets to your descendants or beneficiaries.  Prior legislative proposals would have instituted a minimum ten-year term for an estate planning technique known as a “Grantor Retained Annuity Trust” (“GRAT”), which would have greatly reduced the planning opportunities associated with this type of trust.  However, the Act did not address GRATs.  With a GRAT, the business owner receives fixed annuity payments for a specific term.  At the end of the term, any remaining trust property is transferred to the younger generation free of estate and gift taxes. Short-term GRATs (e.g. two years) are viable, at least in the immediate future.  GRATs can be particularly effective when interest rates are low, and with the current rates at historic lows GRATs are a very common planning tool at this time.

In terms of planning beyond the Act’s two-year horizon, we feel that the only prudent thing to do at this time is to assume that the Act will expire.  Therefore prompt action to take advantage of these planning opportunities is clearly advisable.

By Don L. Ross, Esq. and Jason C. Morris, Esq.

Grantor Retained Annuity Trust (GRAT) Strategy

The acronym “GRAT” stands for the term “grantor retained annuity trust.”  As the name indicates, a GRAT is a trust (an irrevocable trust) to which the grantor (i.e., the person who creates the trust) transfers property but retains the right to receive a fixed annuity from the trust assets for a certain number of years.  The fixed annuity amount is a percentage of the initial value of the assets transferred to the GRAT.  At the end of the term of the GRAT, the remaining property in the trust (net of the annuity payments) passes to the remainder beneficiaries (e.g., the grantor’s children); provided, however, that the trust property will revert to the grantor’s estate if the grantor dies during the term of the GRAT.

Pursuant to IRS regulations, the value of the “gift” of the remainder interest is determined when the GRAT is created.  As described above, the remainder interest is the assets remaining in the GRAT, net of the annuity, when the term of the GRAT expires.  The value of the remainder interest for federal gift tax purposes is equal to (a) the value of the initial principal contribution to the GRAT, PLUS (b) a fluctuating theoretical interest rate earned on the principal (called the “section 7520 rate” after the Internal Revenue Code section which establishes the rate), MINUS (c) the value of the annuity payments to be made during the term of the GRAT.

GRATs are especially beneficial when, as is the case currently, interest rates (and the corresponding section 7520 rate) are low because the annuity paid to the grantor is less than it would otherwise be if the section 7520 rate were higher.  The section 7520 rate is currently only 2.0%.  If the rate of return on the GRAT assets during the term of the GRAT exceeds the applicable section 7520 rate, the remaining trust property after payment of the annuity amounts will be distributed tax-free to the remainder beneficiaries.  Therefore, the strategy with a GRAT is to contribute property to the GRAT which will either appreciate or produce income at a rate substantially in excess of the section 7520 rate.

We often use a “zeroed-out GRAT” to reduce the value of the remainder interest for federal gift tax purposes to zero at the time the grantor funds the trust.  Of course, if we reduce the remainder interest to zero, we must structure the zeroed-out GRAT so that the grantor’s retained interest is approximately equal to the value of the property transferred to the trust.  This results in an annuity equal to the value of the property transferred to the GRAT plus the assumed section 7520 rate.  If the trust property appreciates faster than the section 7520 rate any excess appreciation passes to the remainder beneficiaries free of gift and estate tax as long as the grantor survives the term of the trust.  Under the IRS Regulations, the annuity amount does not have to be the same amount for each year.  But, variations in the annuity amount from year to year may not exceed 120 percent of the amount payable in the previous year.

The length of a GRAT’s term is an important planning consideration.  The shorter the trust term, the more likely it is that the grantor will survive it.  The longer the term, the greater chance that the grantor will not survive it and the property will be included in the grantor’s estate.  However, with a long-term GRAT it is possible to lock in a low section 7520 rate for an extended period.  Also, if a trust’s term is too short, the chance that the property will appreciate diminishes and so does the amount of property passing to the remainder beneficiaries.  One solution to balance some of these risks is for the grantor to create a series of short-term GRATs and reinvest the annuity payments in the successive trusts.  This “rolling GRAT” approach manages the probability of failure by increasing the odds that the donor will survive the trust term and heightens the chance that the property will appreciate over the collective terms of the GRATs.  Note, however, that the rolling GRAT strategy still exposes the grantor to the risk of section 7520 rate increases.

A grantor should fund a short-term GRAT with property that he or she expects to appreciate rapidly.  For example, if a grantor owns a closely-held business and anticipates an initial public offering (IPO) in the near future, the grantor could contribute the stock of the company to the GRAT.  The remainder beneficiaries would then benefit from the appreciation resulting from the IPO during the term of the trust.

The grantor may also want to fund the GRAT with assets that the grantor can discount for gift tax purposes.  Examples include fractional interests in real estate, unmarketable assets such as stock in a closely-held company, and family limited partnership interests.  If the grantor can reduce the value of the asset at the time of funding, the taxable gift will also be lower.  If the business or property is sold at full value or even at a premium during the trust term then there will be substantial assets remaining in the GRAT for the remainder beneficiaries at the end of the trust term.

The fair market value of any non-cash assets initially transferred to a GRAT must be determined.  For example, real estate and unmarketable securities (such as stock or other interests in closely-held companies) must be appraised.  If the value of the asset is to be discounted, a second valuation is generally required to determine the amount of the discount.  Likewise, the trustee must determine the fair market value of any non-cash assets distributed to the grantor as part of an annuity payment.  Just as some assets may be discounted when they are contributed to the GRAT, they will likewise be discounted when they come out of the GRAT as part of an annuity payment.  Distributing discounted assets to the grantor as part of an annuity payment can substantially reduce the potential benefit of the GRAT and is generally discouraged.

In March 2010, a bill passed in the House of Representatives that would radically change some of the aforementioned GRAT strategies.  The bill would, among other things, require GRATs to have a minimum term of ten years and would prohibit zeroed-out GRATs.  Although the bill failed this time around, there is a strong likelihood that it will surface again.  Therefore, the window for establishing short-term GRATs may be closing in a matter of months.  If you have any interest in establishing a short-term GRAT, please contact Woodburn and Wedge.

by Don L. Ross, Esq.