TABLE OF CONTENTS
PART I: GENERAL PRINCIPLES 1
ALTERNATIVES TO THE CHARITABLE REMAINDER TRUST 3
Gift Annuity 3
Remainder Interests in Residences or Farms and Gifts of an Undivided Portion 12
Pooled Income Fund (PIF) 24
Charitable Lead Trusts 28
BASIC CHARACTERISTICS OF CHARITABLE REMAINDER TRUSTS 30
Definition of a Charitable Remainder Trust 30
Overview 43
IRS Model Agreements 45
Historical Perspective 45
When is a Charitable Remainder Trust Necessary? 52
When to Consider a Nonqualified Charitable Remainder Trust 64
Charitable Remainder Annuity Trust (CRAT) 67
Charitable Remainder Unitrust (CRUT) 77
Net Income Limitation 93
"Flip" Unitrusts 103
Definition of "Income" / Make-Up Account as Liability 116
Multiple Trusts 146
Multiple Grantors 150
Trusts and Estates as Grantors 156
Grantor Trust Rules 157
Sec. 673: Reversionary Interests 159
Sec. 674: Power to Control Beneficial Enjoyment 160
Sec. 675: Administrative Powers 169
Sec. 676: Power to Revoke 171
Sec. 677: Income for Benefit of Grantor 171
Sec. 679: Foreign Trusts Having One or More U.S. Beneficiaries 174
Invasion of Trust Prohibited 175
Selecting the Trustee 177
Exempt Status of the Trust 205
Trust Becomes a Private Foundation 235
Status of the Trust After Termination of Noncharitable Interests 241
FUNDING THE TRUST 242
Inter Vivos v. Testamentary Transfers 242
CRT / QTIP Considerations 246
Appreciated Assets / Carryover of Donor's Basis 255
Ability of CRT to Avoid Capital Loss Limitation 260
Restrictions on Trust Investments 262
Income in Respect of a Decedent 281
Assignment of Income 289
Avoiding Sale Treatment to the Donor 292
Transferring Liabilities to the CRT 296
Partial Sales 316
Two CRTs that Co-Own Property 321
BUSINESS OWNERS, EMPLOYERS AND EXECUTIVES 322
Corporations and Partnerships 322
General Considerations 322
"Cross-Over" Beneficiary Designations 333
Valuation Issues 337
Avoiding Dividend Treatment to the Donor 344
Compensation and Stock Option Issues 355
INCOME INTEREST 362
Annual Distributions Required 363
Number of Beneficiaries 377
Permissible Recipients 379
Definition of "Person" 381
Payments to Taxing Authorities 383
Payments to Creditors and Service Providers 391
Payments "For the Use Of" a Beneficiary 398
Payments to the Beneficiary's Estate or Heirs at Law 402
Payments of Interest Involving the Income Beneficiary 404
Limitations on Dispositions of the Income Interest 408
Class of Beneficiaries 414
Alive and Ascertainable Requirements for Lifetime
Interests 414
Unborn Children 415
Future Spouses 418
Trusts "Solely" for a Term of Years 419
Testamentary Allocations of Successor Interests, Inter Vivos Trust 421
Sprinkling Authority / Definition of "Class" 424
Donor's Estate as Final Successor Beneficiary 425
Payout Periods: Structuring the Relationships 427
Concurrent and/or Successor Interests 428
Grantor as Successor Beneficiary 431
Term Interest Follows Lifetime Interests 433
Lifetime Interests Following Term Interest 440
"Tacking" Multiple Term Interests 441
Arrangements Challenged as Not for Life or a Term of Years 442
Combinations of Interests for the Same Individual 444
Life and Term Interests Among Concurrent Beneficiaries 447
Income Interests Measured by a Term 451
Income Interests Measured by Life 457
"Lifeless" Entities as Beneficiaries 457
"Solely" for the Beneficiary's Life 462
Priority Allocations 467
Sprinkling Income Among Beneficiaries 470
Diminution of the Income Interest / Allocations 472
Death, Remarriage, and Conditions Subsequent 472
Revised Allocations Not Caused by Conditions Subsequent 474
Revoking or Terminating the Income Interest By Will 476
Terminating the Income Interest with a Qualified Contingency 493
Payout Rates 501
General 502
5% Probability Test / Contingencies in General 505
Annuity Trust 516
Unitrust 523
INTERESTS OF THE CHARITY 536
Charity's Remainder Interest 536
Entire Corpus Must Be Distributed to Charity 536
Designating the Remaindermen 540
Financing the Remainderman's Activities 562
Sale of the Remainder Interest 565
Charity Succeeds to the Entire Income Interest 567
Charity Shares in the Income Interest 568
Charity Receives "Excess" Income 574
Other Distributions to Charity 579
Reduction in Payouts Permitted Upon Certain Distributions 584
Annuity Trust 585
Unitrust 596
INCOME TAX 603
Income Tax Charitable Deduction 603
Substantiation Requirements 603
Qualified Charities for Income Tax Purposes 606
Income Limitation Rules 612
Measurement and Timing of the Deduction 630
Transfers to CRATs and CRUTs 651
Actuarial Considerations: Annuity Trust 664
Actuarial Considerations: Unitrust 665
Gift of the Income Interest to the Charitable Remainderman 668
Reduction in Itemized Deductions for High-Income Taxpayers 673
Income Stream Retained and Taxes Thereon 674
Characterization and Timing of Income 674
Ordinary Income 691
Capital Gains 695
Exempt Income 705
Taxfree Returns of Corpus 707
Allocating Deductions 708
Deferral of Income 708
Retirement Planning 733
Income Shifting 736
Investment of Tax Savings and the Retained Income Stream 739
General 739
Life Insurance / Wealth Replacement for Heirs 739
Passive Activity Rules 742
Gift of the Income Interest 743
Testamentary Right to Revoke Income Interest Retained by Grantor 746
Grantor Retains Income Interest 748
Preserving Basis: Avoiding Sec. 1001(e) 753
ALTERNATIVE MINIMUM TAX (AMT) 755
GIFT TAX 759
Gift Tax Charitable Deduction 759
Charitable Distributions During the Term of the Trust 766
Donations of the Income Interest 773
Marital Deduction, Annual Exclusion and Completed Gifts 776
Relinquishment of Testamentary Right to Revoke an Income Interest 799
ESTATE TAX 800
Estate Tax Charitable Deduction 800
Powers of Appointment 810
Qualification of Testamentary Trusts 811
Problem Caused by "Interrelated" Trusts 811
Use of a New Trust to Create a CRT 812
Funding a Testamentary CRT 816
Testamentary Trusts v. Testamentary Transfers 825
Testamentary Transfers to an Inter Vivos CRUT After the Termination of Noncharitable Interests 832
Marital Deduction 835
Inclusion of CRT Assets In Grantor's Estate 842
Life Insurance 851
Inclusion of CRT Assets in Beneficiary's Estate 851
Selected Planning Considerations 856
GENERATION-SKIPPING
TRANSFER TAX 860
EXCISE TAXES 864
Sec. 4940: Investment Income 867
Sec. 4941: Taxes on Self-Dealing 868
General 868
Common Self-Dealing Issues 876
Compensation 879
Co-Ownership Issue 885
Sec. 4942: Taxes on Failure to Distribute Income 895
Sec. 4943: Taxes on Excess Business Holdings 896
Sec. 4944: Jeopardy Investments 902
Sec. 4945: Taxes on Taxable Expenditure 902
STATE AND LOCAL TAXES 903
State Taxes 903
Local Taxes 904
TRANSFERS OF PARTIAL INTERESTS
TO CHARITABLE REMAINDER
TRUSTS 905
Does Sec. 170(f)(3) Eliminate the Income Tax Deduction? 910
Interpreting Sec. 170(f)(3) 916
Estate and Gift Tax Considerations 925
Short-Term, Low-Payout CRTs as Substitutes for Direct Gifts 930
Caveats 934
OTHER FACTORS 935
Administrative, Appraisal and Other Costs 935
Sheltering Assets from Claims 942
FACTORS AFFECTING THE SALE ALTERNATIVE 944
PROFILES OF POTENTIAL CANDIDATES 945
RULING REQUESTS, DISCLAIMERS AND REFORMATIONS 952
PART II: SPECIAL CONSIDERATIONS AFFECTING THE ALIEN 963
GENERAL INCOME TAX RULES AFFECTING NRAs 964
General Scheme of Taxation 964
Income Tax Charitable Deduction 964
Alternative Minimum Tax (AMT) 968
CHARITABLE REMAINDER TRUSTS (CRTs) 969
Taxation of the Retained Income Interest 970
Gift of the Income Interest 976
Sale of the Income Interest 976
Resident Alien Becomes NRA 977
U.S. REAL PROPERTY INTERESTS 978
Time of the Transfer 979
Time of the Sale by the CRT 986
Time of Beneficiary's Income Inclusion 989
Withholding 991
Gift of the Income Interest 992
Resident Alien Becomes NRA 993
Pooled Income Fund 994
GIFT TAX 994
ESTATE TAX 1004
Marital Deduction: Qualified Domestic Trust (QDT) 1005
Life Insurance 1014
Relevance of Situs Issue 1015
Determination of Situs of CRT 1017
GENERATION-SKIPPING TRANSFER TAX 1022
SUMMARY OF TRANSFER TAX CONSIDERATIONS 1023
PROFILES OF POTENTIAL CANDIDATES 1024
Nonresident Aliens 1024
Gain Would Not Be Subject to U.S. Tax 1025
Gain Would Be Subject to U.S. Tax 1025
Gift of the Income Interest 1027
Resident Aliens 1027
ECONOMICS OF THE CRT FOR THE NRA 1028
PART III: UNDERSTANDING THE ECONOMICS 1031
DISCOUNT RATE 1032
BASIC MODEL 1034
General Principles 1039
Expenses 1041
Assumptions 1041
CALCULATIONS OF CHARITABLE DEDUCTIONS 1042
Unitrust / Payout for Single Life 1043
Unitrust / Payout for Term of Years 1043
Annuity / Payout for Single Life 1044
Annuity / Payout for Term of Years 1045
BRIEF INTRODUCTION AND INDEX TO THE EXAMPLES 1045
PRESENTATION AND SUMMARY TABLES OF PRESENT VALUE EXAMPLES 1045
Summary of Financial Factors 1047
Summary of Present Values to Family Unit 1050
Summary of Relationships Among Examples 1051
Summary of Assets Available to Charity 1053
Summary of Discount Factors 1055
Presentation of Present Values Examples 1-41 1056
DISCUSSION OF PRESENT VALUE EXAMPLES 1097
Fundamentals: Examples 1-8 1097
Variations in Discount Rate: Examples 9 and 10 1098
Variations in Tax Rate Assumptions: Examples 11 and 12 1099
Payout Reflects Taxfree Return of Corpus: Examples 13
and 14 1100
Example 13 1100
Example 14 1101
Shifting Income to Lower or Zero Tax Brackets:
Examples 15-19 1103
Example 15 1103
Example 16 1106
Example 17 1106
Example 18 1107
Example 19 1107
Increasing Yield on Investments 1107
Deferring Income: Examples 20 and 21 1108
Capital Gains Depletion of the Earnings Base:
Examples 22-26 1112
Combinations of Benefits: Examples 27 - 29 1114
Avoiding Capital Gains Tax + Shifting Income to Lower or Zero Tax Brackets 1114
Avoiding Capital Gains Tax + Deferring Income:
Example 27 1116
Avoiding Capital Gains Tax + Deferring Income + Shifting Income to Lower Tax Brackets: Examples 28 and 29 1118
Extraneous Issues: Examples 30-34 1120
Passive Activity Losses: Example 30 1120
Alternative Minimum Tax: Example 31 1122
3% Cut-Back in Itemized Deductions & Phase Out of Personal Exemptions: Example 32 1123
Deferral of Charitable Deduction: Example 33 1124
Administrative Expense Savings: Example 34 1124
Other Extraneous Income Tax and Financial Issues 1125
Life Insurance: Example 35 1125
Estate Tax: Example 36 1127
Estate Tax Actuarial Value v. Actual CRT Benefit:
Example 37 1128
Estate Tax with Income Tax Savings: Examples 38 and 39 1130
Life Insurance and Estate Tax: Examples 40 and 41 1130
THE PERSPECTIVE OF DONATIVE INTENT 1133
CONCLUSION 1134
GLOSSARY 1136
BIBLIOGRAPHY 1139
TABLE OF AUTHORITIES 1205
SUBJECT INDEX 1261
APPENDICES 1285
TEXT OF IRS MODEL AGREEMENTS 1287
TAX GUIDELINES TO IRS MODEL AGREEMENTS 1344
PROSPECTIVE CRT DONOR INFORMATION / INTERVIEW FORM 1516
CHECKLIST OF DISCLOSURES AND DISCLAIMERS 1545
CHECKLIST FOR GETTING THE CRT STARTED 1554
CHECKLIST FOR REVIEW OF A CRT ADMINISTRATION AGREEMENT 1558
CHECKLIST IF CHANGE CRT ADMINISTRATORS 1563
CHECKLIST OF CRT, DONOR AND EXECUTOR REPORTING REQUIREMENTS 1566
CHECKLIST FOR REVIEW OF FORM 5227 RETURN 1572
SAMPLE RETURNS AND ADMINISTRATOR REPORTS 1582