Trusts and estates often pay more tax than individuals in like circumstances. This is not because they are taxed at higher rates, but rather because the same rates applicable to individuals are “compressed,” meaning that each marginal rate increase happens at a lower level of income than it does for individuals. For example, the highest rate of income tax for both trusts and individuals for 2016 was 39.6%, but whereas this rate only applies to income over $415,050 for single individual filers, for trusts and estates, this rate applies to all income over $12,400. Other tax burdens, such as the 3.8% Net Investment Income Tax (a/k/a the “Obamacare Tax”) and higher rates of capital gains tax follow suit along similar lines. Obviously, these add up to a significant potential tax burden.
Fortunately, there is a way to mitigate this tax burden. Trusts and estates may take a deduction for “distributable net income,” which is generally the amount of income that is distributed from the trust to a beneficiary. When this happens, the income is effectively shifted from the trust to the beneficiary, who simply adds it to their personal return and pays at whatever rate is applicable to them (including the distributed trust income, of course).
Since large amounts of unnecessary tax can be avoided by shifting income to beneficiaries in this manner, it is common practice for trustees to make distributions for this purpose, assuming, of course, that such distributions are permissible and proper under the terms of the trust. But there is a problem: How does the trustee know how much income to distribute from a given trust before the close of a given tax year? Unfortunately, it is impossible, to know exactly how much income a trust has until after the tax year has closed, at which point, it’s too late to distribute all the income.
Enter IRC §663(b). Under this special provision, a trust or estate may elect to treat any distribution made within the first 65 days of a given tax year as having been made on December 31 of the previous year. In other words, the trustee gets 65 days after the actual close of the year to calculate how much income should have been distributed and then actually make that distribution. The trustee then makes an election on the trust or estate’s income tax return (Form 1041) and voila, the problem is solved!
Although §663(b) distributions may provide a significant benefit, the can also represent a significant danger to trustees. On the one hand, any distribution from a trust should only be made if and to the extent it is proper under the terms of the trust. Even if such a distribution is permissible, it may not be in the best interests of a given beneficiary, as taxes are only one of many considerations. On the other hand, a §663(b) distributions can save a significant amount of tax, so failing to make such a distribution, if permitted, could subject a trustee to liability for waste.
Making the right decision requires careful analysis. The fiduciary attorneys at Farrow-Gillespie & Heath, LLP are well-versed with the applicable law and have the practical experience to understand the nuanced process that is involved with make the right decision. If we can help you with this, please don’t hesitate to call.
The trust and estate planning attorneys at Farrow-Gillespie Heath Witter LLP, located in downtown Dallas, serve all of your trust and estate planning needs, including:
Estate planning for small estates
Estate planning for large, taxable estates
Trust review and modification
Trust and estate administration
Trust litigation
Will contests
Probate
Heirship proceedings
Guardianships
