Easy Ways To Destroy Your Trust Plan?

SLATs have been the planning acronym du jour for several years. You create a trust for your spouse and perhaps other beneficiaries, and your spouse creates a trust for you and other beneficiaries. The groovy part of the SLAT pitch is that now you have all the assets in both trusts outside the reach of your creditors, outside the estate to avoid estate tax, but you can still both benefit from all the money in the trusts. This is the estate planning equivalent of having your cake, eating it too, and that cake not having many calories.  Sounds almost too good to be true.

It’s Dangerously Easy To Ruin Your SLAT Plan

While SLATs are a popular planning technique and might well work, you can really destroy this plan if you don’t give your SLATs appropriate care and feeding. So, here are some great ways to ruin your SLAT plan. While it is not clear how many bad things you have to do, or how bad you have to do them, your goal should be to try to do everything perfectly. That’s because there are foot faults in the administration of every trust and estate plan and you don’t want small cracks to grow into large fissures. So, if you are looking to ruin your SLATs here are some great steps to take.

The Commingle Jingle

Sing the following: “I don’t care if it’s the trust or me, I’ll pay stuff however I want to, you’ll see…”

A great way to undermine any trust or entity is just ignore all the formalities and the independent existence of that trust or entity. If you funded your SLAT out of a joint account or worse out of your spouse’s account, that’s a start. Next, deposit personal funds in your SLAT and don’t report them as a gift. Have the SLAT pay inappropriate personal expenses (see more on this below). If you really want to blow the trust, don’t even set up a trust bank account, just mix it all up with your personal checking account. Commingling is a great way to destroy any trust (or entity).

Beware of the Joint Checking Account

Joint checking accounts can help ruin your SLAT plan.

So, the theory of SLATs is that one spouse can set up a trust for the other, and vice versa. And, SLATs don’t need to be spouses, it could be siblings or BFFs that set them up. Example: Dick and Jane create SLATs for each other. Dick is a beneficiary of Jane’s trust. Jane is a beneficiary of Dick’s trust. [this might make a good book for your elementary schoolers – Fun With Dick and Jane’s SLAT]. But let’s say a distribution is made out of Dick’s trust to Jane. First, where does Jane deposit that check? Most likely in a joint checking account Dick and Jane keep. Next, Dick spends money from that account on himself. Is that really Jane using the distribution or is that no different than Dick getting distribution from a trust he created and of which he is not a beneficiary? The IRS or a creditor could say that is the same as a self-settled trust. While 19 states permit such trusts, the other states don’t. Also, there are specific requirements to make a self-settled trust. So, unless you had your SLAT in one of the 19 magical states, you could be: “Houston, We’ve Had a Problem”.

The better approach is that each spouse should have their own bank account and you probably should get rid of that joint account to avoid what might be the inevitable.

Who Is the Beneficiary Anyway?

Closely related to the above joint checking account issue is trying to figure out whose expense something is. But, if you’re looking to ruin your SLATs, which is what this article is about. Just don’t bother. Just Fuggedaboutit.

So, let’s go back to Dick and Jane. Jane’s house owns a vacation home. Dick’s SLAT for Jane pays for the vacation house Jane lives in. Dick lives there too because, as Jane’s husband, that is probably OK.  Estate Of Allen O. Gutchess. Docket No. 4926-63. 1966-08-9. But Jane and Dick go car shopping and buy Dick a new red sports car. Dick’s trust wires the money to the dealer. That doesn’t sound cricket and could be a challenge point on an IRS audit or creditor attack.

Here’s a possible clause that you might discuss with your lawyer including in a future SLAT that might help address this issue, though some advisers don’t like it and it’s probably never been done. For existing SLATs these ideas might be used in an agreement signed by the spouses and trustee to address reimbursement if an incorrect distribution is made. Another alternative might just be to have the trust’s accountant monitor expenses (e.g., do a review of all expenses and the backup for them at minimum when preparing the trust income tax return Form 1041) and have these concepts of reimbursement implemented. So regardless of whether your SLAT has any type of provision like the following, the sample clause might help you and your trustee understand the issue and how to handle it.

Lifestyle Expense Distribution Reimbursement Provision. Recognizing the difficulty of delineating which expenses of the spouse beneficiary are those of that spouse beneficiary versus those of the settlor spouse, the Trustee and the spouse beneficiary agree to the following reimbursement provision. By accepting any distribution from this trust, the spouse beneficiary agrees to this reimbursement provision. If the Trust makes a distribution to the spouse beneficiary under the terms of the trust believing that those expenses for which the distribution is being made are for the beneficiary spouse, and those expenses are later determined by the trustee or another beneficiary, a creditor, or a tax authority, to be expenses of the other spouse (who is the settlor of the Trust), then the recipient beneficiary spouse will have to reimburse the trust for such inappropriate (or inadvertent) reimbursement with interest at the applicable federal rate from the date of each occurrence of such expense reimbursement distributions until the date of repayment.

Tax Reimbursement Clauses

A clause included in some but not all grantor SLATs is a provision that might permit the trustee to reimburse you (as the person who set up the trust and who is the “grantor” for income tax purposes) for income tax costs you incur on trust income. Example: The trust has Apple

AAPL
stock you gave it with a tax basis of $100,000 which is sold for $1 million. You’d pay the capital gains tax on the $900,000 gain but the full $1 million proceeds would remain inside the trust. Your bearing the tax cost is from an estate planning perspective a great benefit as it reduces your estate further thereby potentially saving future estate taxes (but who knows how the estate tax system will be changed in future years and decades). That is such a sought after benefit that tax folks have named it “tax burn.” But like for chocolate cake there can be “too much of a good thing.” Depending on the size of the gain and your remaining estate that tax burn could have too much impact on you.

This “grantor trust burn” may allow you to grow the assets within the trust, and therefore potentially out of your estate, at a faster pace while the assets in your personal names are exhausted at a faster pace due to paying the income tax costs for income within the corresponding trust.

Some advisers say these should be in every grantor trust. Some only like to use them sparingly. So, as with many estate planning technique, there are as many views as lawyers (and there are lots of them). The worry some advisers have is that tax reimbursement clauses can easily be mishandled. If the trustee is your brother-in-law does he have a clue how the calculation should be made? Will he have a CPA do an analysis of the actual tax cost you incurred on trust income? Probably not. More likely, he might just pay you whatever you want to get you to stop bothering him at family dinners. That is not really wise. Best to have a professional adviser help determine the amount of the reimbursement and to create reasonable back up for the trust records. As to your relationship with your brother-in-law, call Dr. Phil. And, by the way, if you divorce your brother-in-law’s sister (your wife), the trust remains a grantor trust , your now ex-wife may remain a beneficiary (which is common, unless you took steps to have a divorced spouse removed in the trust document which is not frequently done), and you have like no chance of ever seeing a tax reimbursement after that!

Can a trust reimburse you for income taxes? Yep. In Revenue Ruling 2004-64 the IRS said it is OK to have a trustee reimburse you for taxes if that power is discretionary in the trustee. But if the circumstances demonstrate an implied agreement that you’ll be reimbursed whenever you want, that can zap the plan. What is an implied agreement? It means a course of conduct that suggests you and the trustee had a side deal that the trustee would reimburse you whenever you ask for a payment. So, if every year for decades you get a check from the trustee for the tax cost you incurred, that is pretty extreme and certainly sounds like you and the trustee had a deal.

So, if you have a tax reimbursement clause in your SLAT and you want to abuse that clause to ruin your trust plan, here are some suggestions. First and perhaps the worst step you can take is if the trust document makes the tax reimbursement mandatory. If your SLAT says: “The Trustee shall reimburse the grantor for the income tax costs grantor incurs on trust income.” You lose. The trust assets are likely included in your estate. If you have bad language talk to your estate planner and determine if it can be corrected as a scrivener’s error by a trust protector, by a non-judicial modification or perhaps a decanting. Your attorney can walk you through the options to see if any are feasible.

If a tax reimbursement is made in excess of the amount you paid as the Grantor for income taxes attributed to the trust’s income, that could be tantamount to a distribution from the trust to you as the grantor, potentially causing the trust to be classified as a self-settled trust, which could potentially have adverse tax consequences and permit the trust assets to be reached by your creditors.

Before any reimbursement is made the Trustee should have the trust CPA make a calculation of the amount of tax you incurred and that analysis should be saved in the trust records. A calculation would need to be prepared to determine the exact amount of income tax paid due to income generated by the trust, so the reimbursement amount can be corroborated and an inadvertent distribution to the grantor avoided. Having an independent trustee, and preferably an institution, in place if reimbursements are made in the future is preferable. It has to be harder to prove that you had an implied agreement with an independent trust company than with your brother-in-law.

Don’t Bother Reporting to the IRS the Proper Way

Yep, getting cheap (or worse ignoring) IRS filing requirements is always a great way to torpedo any type of plan, SLATs included. You should be having your CPA file a Form 1041 trust income tax return for each SLAT. That should be properly done reflecting whether your SLAT is a grantor or non-grantor trust. If you don’t know what those terms mean have your CPA explain it again (your attorney had to do so when you were setting it up). If the SLAT is a grantor trust the income flows back to your personal return and should be reported there properly. If you made gifts to your SLAT, and/or sold assets to your SLAT (or engaged in other types of transactions) your CPA or attorney should be filing a gift tax return reporting all the transactions in detail and attaching a copy of the trust to the return. Some taxpayers like to think gift tax returns are easy and they get cheap on the preparer trying to do the job right. If the gift tax return isn’t done properly, it may not provide the IRS enough information (called “adequate disclosure”) which means the time period during which the IRS can audit won’t run out (“toll”). That means you can get audited until the cows come home. If you want to increase the risk of problems with your plan that’s another great way to do it.  If you split gifts with your spouse or expect the trust to go on for generations (generation skipping transfer or “GST” tax) considerations must also be addressed in the return. Those are complex and take some time and knowledge to deal with properly.

Conclusion

SLATs have been, especially in 2020 and 2021, an incredibly popular estate planning tool. Common usage doesn’t mean simplicity. A key take home message is that it is really easy for you to ruin your SLAT plan by improperly administering the trust. You need to be careful. The trustee should be deliberate and seek advice in advance of taking various steps. The best way to do that is for the trustee to consult before a transaction, and in all events once a year with a planning team of all your advisers. Web meetings make this easy and less costly to do. Often the difference between a supportable action and one that will undermine your plan, is quite nuanced.