Posts Categorized: BBA News

Upcoming Events at the BBA – November 2020

By: Jennifer D. Taddeo, Conn Kavanaugh and Rebecca Tunney, Goulston & Storrs, Communications Committee, Trusts and Estates

Upcoming Programs at the BBA: 

Introduction to Revocable Trusts   11/4/2020 – 12:30PM to 1:30PM   This program will provide an introduction to revocable trusts in estate planning and review the key components of revocable trusts, including funding formulas, marital provisions, possible trust structures for children and other beneficiaries, and trustee provisions.  The program will also provide drafting suggestions and advice on avoiding certain pitfalls when advising clients about establishing revocable trusts.

Trust Situs: Planning and Administration Considerations   11/5/2020 – 2:00PM – 4:00PM  Trust situs can refer to taxation of a trust, jurisdictional matters, location of assets, and/or principal place of administration. What do trustees and estate planners need to know about this broad, sometimes confusing, topic? Please join us as our panel of experts discusses estate planning, trust administration, and fiduciary income tax considerations relating to trust situs.

Gifts and Sales to Intentionally Defective Grantor Trusts & Use of High Exemption Levels in 2020 – 2021  11/16/2020  – 12:30PM – 1:30PM   This seminar will provide an overview of the structure, tax treatment and proper administration of gifts and sales to intentionally defective grantor trusts (“IDGTs”). Some of the structuring topics we will discuss include:

  • proper trust drafting to ensure estate tax exclusion and grantor trust status for income tax purposes,
  • how to choose the right assets to transfer to an IDGT,
  • “entitizing” assets,
  • the proper documentation needed for a “gift” and/or “sale” of assets, including the use of “defined value” (Wandry) and “price adjustment” (King) language,
    timing issues,
  • debt v. equity issues,
  • ensuring sufficient cash flows,
  • the proper administration of the IDGT after the transfers, and
  • the presenters’ recent audit experience and the IRS’ hostility to the strategy.
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We will also focus on the tax benefits including: (i) leveraging assets through use of value-freezing techniques and discounts, (ii) maximizing use of GST exemption, and (iii) optimal benefits of grantor trust status as a means to further deplete the grantor’s estate without consuming exemption and avoid income taxes upon the sale of assets and payments under any promissory note.

This seminar will further discuss why it may be critical to advise clients about using the enhanced wealth transfer tax exemptions now in light of possible post-election reforms. 

Estate Planning with Seniors during COVID-19: Undue Influence, Incapacity & best Practices  11/17/2020 – 12:30PM-1:30PM  In this second part of a two-part series focusing on the unique vulnerabilities of seniors during COVID-19, Attorneys Laura Goodman and Christina Vidoli will discuss best practices with respect to estate planning for seniors during the pandemic and, specifically, how to navigate new challenges such as virtual and socially distanced meetings without putting yourself at risk for later questions of undue influence or incapacity.

Evidence of Transferor’s Intent is Key in Distinguishing Loans and Gifts for Purposes of Calculating Estate Tax. Estate of Mary P. Bolles v. Commissioner, Tax Court Memo. 2020-71

By: Katelyn Allen, Nutter.

Facts:

Throughout her life, the decedent made numerous transfers among her five children and kept a personal record of advancements and repayments to each child.  On the advice of tax counsel the decedent treated the advancements as loans and accounted for loan “forgiveness” each year for each child on the basis of the annual gift tax exemption.

From the year 1985 through 2007, the decedent transferred $1,063,333 to or for the benefit of her son Peter. Peter did not make any repayments to the decedent after 1988.  In 1989, the decedent executed a revocable trust, where she specifically excluded Peter from any distribution of her estate upon her death.

In 1996, the decedent executed an amendment to her revocable trust that included provisions for Peter and explicitly instructed the trustees to account for “loans” made to Peter during the decedent’s lifetime when calculating the share of assets Peter would receive upon the decedent’s death.  The decedent executed a contemporaneous document entitled “Acknowledgement and Agreement Regarding Loans”, in which Peter acknowledged that he received loans from the decedent and that the amount of the loans, including any accrued interest, would be taken into account for purposes of calculating his share of trust assets.

The decedent’s estate filed an estate tax return reporting the value of a Promissory Note and receivable due from Peter Bolles as zero and reporting no prior taxable gifts.

Analysis:

Upon audit of the decedent’s estate tax return, the Commissioner determined that the fair market value of the Promissory Note and receivable due from Peter was $1,063,333, and this amount was includable in the decedent’s estate under IRC Section 2033.  Alternatively, the Commissioner determined that if the fair market value of the Promissory Note and receivable was zero, as it had been reported on the estate tax return, the decedent had made $1,063,333 of taxable gifts to Peter during her lifetime, and that figure should be used in computing the estate tax liability under IRC Section 2001(b).

The Tax Court examined the traditional factors set forth in Miller v. Commissioner (Tax Court Memo. 1996-3, aff’d, 113 F.3d 1241 (9th Cir. 1997)) in determining whether the transfers from the decedent during her lifetime were loans or gifts.  The factors to be considered in making this determination are as follows:

  1. The existence of a promissory note or other evidence of indebtedness.
  2. If interest was charged.
  3. The existence of security or collateral.
  4. A fixed maturity date.
  5. Whether or not actual repayment or a demand for repayment was made.
  6. The transferee’s ability to repay.
  7. Records maintained by the transferor and/or transferee.
  8. The manner in which the transaction was reported for federal tax purposes.

The Court noted that the decedent recorded the advances to Peter as loans and accounted for interest, but there were no loan agreements, security on the loans, or attempts to demand repayment on the loans. The Court noted that the shift in 1989, when the decedent executed a trust agreement that blocked Peter’s receipt of assets at the time of her death, characterized a shift from “loans” to gifts.

Result:

The Court concluded the transfers to Peter from 1985 through 1989 were loans, but the transfers made from 1990 through 2007 were gifts.  The decedent shifted from extending and accounting for the transfers as loans to accounting for the transfers as advances against Peter’s share of the estate, as evidenced by her excluding Peter from his share of the inheritance in her 1989 trust.  As a result, the transfers from 1990 through 2007 were accounted as prior taxable gifts for purposes of calculating the estate tax due.

Advice for Planners:

When advising clients who wish to make transfers to family members, it is important to have the client clearly articulate his or her intentions – whether he or she wishes to make the transfer as a gift or whether he or she intends the transfer to be a loan with an expectation for repayment.  Once the client has articulated his or her intentions, it is important for the planner to craft proper evidence of the transfer as a loan or a gift and ensure that the client’s estate plan does not contradict his or her intentions. The planner should review the factors of Miller v. Commissioner to ensure the evidence of a loan or gift would be accepted or supported by the Commissioner and the Tax Court.

Tax Deadlines Extended Due to COVID-19

By: Justin M. Hannan and Gene Schlack, Day Pitney LLP.

To provide relief to taxpayers impacted by the COVID-19 pandemic, the IRS and the Massachusetts Department of Revenue have issued guidance in recent weeks extending the deadlines for filing and paying certain taxes.

Pursuant to IRS Notice 2020-18, Notice 2020-20, and Notice 2020-23, the filing deadlines for all federal income tax returns, gift tax returns and estate tax returns that would have been due between April 1 and July 15 have been automatically extended to July 15.  Additionally, any income tax payments and gift, estate and GST tax payments, including estimated quarterly payments, that were due between April 1 and July 15 are now due on July 15, and such payments made by the July 15 deadline will not incur interest or penalties.  There is no limit on the amount of tax payments that may be deferred. 

It is important to note that while these extensions apply to all taxpayers, including trusts and estates, they do not apply to tax returns and tax payments originally due prior to April 1.  For example, a trust that failed to file Form 1041 by March 15 is not saved by this guidance, and any taxes due with said Form 1041 would remain subject to penalties and interest.

Notably, IRS Notice 2020-23 clarifies that the extension to file tax returns also extends the deadline to file certain information returns, such as Form 3520, that are filed as attachments to such tax returns. This key point was previously unclear, creating substantial uncertainty among tax professionals.

In addition to the federal extensions, the Massachusetts Department of Revenue also extended various Massachusetts filing and payment deadlines. Per Technical Information Release (TIR) 20-4, state filings and payments for personal income tax, estate and trust income tax, and income tax due with a partnership composite return with an April 15, 2020 due date have been automatically extended to July 15.  Similarly, installments for estimated income tax payments that would otherwise be due on April 15 and June 15 are now due on July 15.  The filing and payment deadlines for Massachusetts estate tax returns have not been extended.

Though TIR 20-4 does not extend corporate excise tax filings and payments, it does waive late-file and late-pay penalties (but not interest) for corporate excise returns and payments with original due dates of April 15 that are filed and paid by July 15. 

Massachusetts (Temporarily!) Allows Remote Notarization

Massachusetts (Temporarily!) Allows Remote Notarization

The BBA endorsed temporary legislation authorizing notarization and witnessing of documents to be conducted remotely, by videoconference.  The Legislature passed, and the Governor enacted, such a law, which addresses an urgent need that was brought to our attention by practitioners from a number of our sections, including Trusts & Estates and Real Estate.  Read an exclusive Boston Bar Journal article on the requirements and restrictions for this new law.  Thank you to the authors Sara Goldman Curley, Kerry Spindler, and Rebecca Tunney.

REMINDER 6/24/16: BBA CLE – Trusts & Estates Section Year End Review

CLE Title: Trusts & Estates Section Year End Review

Time: 12:30 PM to 2:30 PM

Location: Boston Bar Association, 16 Beacon Street, Boston, MA

Description: An annual event not to be missed, the Trusts and Estates Section Year End Review covers recent federal and state case law, legislation and tax law matters. This year’s Year End review will touch on

  • New Developments subcommittee: in terrorem clauses; whether property held in an irrevocable trust will be considered a countable asset for MassHealth purposes; identifying heirs; evidence of lifetime gifts; and will contests.
  • Public Policy subcommitee: The Public Policy committee will give an update on legislative items relevant for trusts & estate attorneys and professionals, including (i) the revised Massachusetts estate tax reform act submitted by Rep. Dooley, (ii) the Massachusetts Revised Uniform Fiduciary Access to Digital Assets Act, which is expected to be submitted to the legislature in the coming year, (iii) Gov. Baker’s budget proposal that would affect estate recovery for MassHealth patients, and (iv) the pending correction on Adopted Children Act.
  • Tax Law Update subcommittee: Basis Reporting.

Information: For more event details, including accreditation, agenda, and fees, click here.

Sponsors: Trusts & Estates Section.

SpeakersMelissa E. Sydney of Burns & Levinson LLP, Allison Whitmore of Morgan Lewis, Annette Eaton of Nixon Peabody LLP, Katherine (Kerry) Reilly of K. Reilly Law LLC, David Menchaca.

Volunteer T&E Attorneys Needed for Veterans Legal Services

Claire Carrabba and Nikki Marie Oliveira, co-chairs of the Public Service Committee, have been working with Lynn Girton, the Pro Bono Director of Veterans Legal Services (“VLS”), in order to establish a volunteer project to assist homeless and low-income veterans with basic estate planning needs.  In order to qualify for services, the veteran must generally have an income below 200% of the federal poverty level.  Many of the veterans require assistance in obtaining a Will and other estate planning documents, such as Durable Powers of Attorney and Health Care Proxies.  No specialized knowledge of veterans’ law or benefits is needed to help VLS clients.  VLS is able to offer malpractice insurance to those attorneys who provide pro bono assistance to VLS clients.

Lynn Girton is looking for 15 volunteers to get the pro bono project started and she anticipates having a few cases available in the next month.  If you have any questions or are interested in volunteering, please fill out the sign-up sheet (click here) and return it to Nikki Marie Oliveira at noliveira@bassdoherty.com.

 

 

 

 

 

 

BBA Event @ 11/20/15 – Assisted Reproductive Technologies, Estate Planning, Family Law and Probate

Topic: When A.R.T. is the Issue: The Impact of Assisted Reproductive Technologies on Estates and Probate

When: Friday, November 20, 2015 12:30 PM to 1:30 PM

Where: Boston Bar Association16 Beacon Street, Boston, MA

Description:  Learn about assisted reproductive technologies and its impact on estate planning, family law and probate.  After this seminar, attendees will know statutes and case laws that control ownership of genetic material, what constitutes parentage and how to dispose of embryos in estate plans.

Event Co-Sponsors: Family Law Section, Health Law Section, Estate Planning Committee

Details: For more information about this event, click here.

Need Ethics Credits? – BBA CLE on Tues. Nov. 10th

CLE Title: Conflicts of Interest in Estate Planning and Fiduciary Representation

Time: 3:00PM – 6:00PM

Location: Boston Bar Association, 16 Beacon Street, Boston, MA

Description: This program is designed to facilitate a meaningful discussion about the many conflicts that arise (or may arise) in the context of estate planning and fiduciary litigation.  The panelists will guide the practitioners through real examples and will discuss issues to identify and ways to approach drafting to avoid some of the potential conflicts.  The panelists will also talk about best practices regarding engagement letters and conflict waivers.

Information: For more event details, including accreditation, agenda, fees, and program materials, click here.

Sponsors: Co-Chairs of the Trusts & Estates CLE Committee: Kelly Aylward of Tarlow, Breed, Hart & Rdgers, P.C., Jaclyn O’Leary of Day Pitney, LLP, and Amiel Weinstock of Thomas Brady & Associates

BBA Event Reminder: 11/3/15 – Resolving Domicile-Related Tax Disputes Efficiently

Topic: Resolving Domicile-Related Tax Disputes Efficiently: A Review of the Bank of America Decision, Other Recent Domicile-Related Case Law

When: Tuesday, November 3, 2015 12:00 PM to 1:00 PM

Where: Boston Bar Association16 Beacon Street, Boston, MA

Description: Hear a discussion of domicile as it relates to both individuals and fiduciaries.  The panelists will address importance of domicile for income and estate tax purposes, the Massachusetts definitions of domicile and residency, and facts and circumstances that are often considered in determining domicile.  Discussion will also address the recent Appellate Tax Board decision, Bank of America, N.A. v. Massachusetts Commissioner of Revenue, and potential implications and considerations. Finally, the discussion will include New Hampshire domicile considerations associated with fiduciaries.

Event Sponsor: Scott M. Susko of McDermott Will & Emery and Brian Marks of Ernst & Young LLP, co-chairs of the State and Local Tax Committee of the Tax Section

Details: For more information about this event, click here.

REMINDER 10/30/15: BBA CLE – Conflicts – They’re Not Just for Litigators!

CLE Title: Conflicts – They’re Not Just for Litigators!

Time: 9:00AM – 12:00PM

Location: Boston Bar Association, 16 Beacon Street, Boston, MA

Description: This program is designed to facilitate a meaningful discussion about the many conflicts that arise (or may arise) in the context of estate planning and fiduciary litigation.  The panelists will guide the practitioners through real examples and will discuss issues to identify and ways to approach drafting to avoid some of the potential conflicts.  The panelists will also talk about best practices regarding engagement letters and conflict waivers.

Information: For more event details, including accreditation, agenda, fees, and program materials, click here.

Sponsors: Co-Chairs of the Trusts & Estates CLE Committee: Kelly Aylward of Tarlow, Breed, Hart & Rdgers, P.C., Jaclyn O’Leary of Day Pitney, LLP, and Amiel Weinstock of Thomas Brady & Associates