KEEPING THE FAMILY
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KEEPING THE FAMILY BUSINESS IN THE FAMILY Prepared by: Julius H. Giarmarco, Esq. Cox, Hodgman & Giarmarco, P.C. 101 W. Big Beaver Road, 10th Floor Troy, MI 48084 (248) 457-7200 [email protected] CIRCULAR 230 DISCLAIMER

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KEEPING THE FAMILY

BUSINESS IN THE FAMILY

Prepared by:

Julius H. Giarmarco, Esq.

Cox, Hodgman & Giarmarco, P.C.

101 W. Big Beaver Road, 10th Floor

Troy, MI 48084

(248) 457-7200

[email protected]


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CIRCULAR 230 DISCLAIMER

THESE MATERIALS ARE NOT INTENDED OR WRITTEN BY THE AUTHOR TO BE USED, AND THEY CANNOT BE USED BY YOU (OR ANY OTHER TAXPAYER) FOR THE PURPOSE OF AVOIDING PENALTIES THAT MAY BE IMPOSED ON YOU (OR ANY OTHER TAXPAYER) UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. 


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Techniques to be Discussed

  • Grantor Retained Annuity Trusts

  • Grantor Trusts

  • Private Annuities

  • Self-Canceling Installment Notes

  • Valuation Discounts


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Grantor Retained Annuity TrustTypical Features

  • Grantor transfers income producing assets(i.e., S corporation stock, FLP/FLLC interests) to an irrevocable trust f/b/o children.

  • Grantor retains the right to a fixed annuity payment for a set term of years.

  • At end of term, the assets remaining in the GRAT pass to the remainder beneficiaries (the children).

  • If grantor dies before the set term, the assets in the GRAT revert back to his/her estate.


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Grantor Retained Annuity TrustTypical Features

  • The risk of inclusion can be “insured” against with life insurance on the grantor’s life.

  • The gift tax value is the FMV of the assets transferred to the GRAT, lessthe present value of the annuity interest and the value of the reversion.

  • The grantor is taxed on all income and realized gains on trust assets even if these amounts are greater than the annuity payment.

  • All income and appreciation in excess of that required to pay the annuity accumulate for the benefit of the remaindermen.


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Grantor Retained Annuity Trust

IRC §7520 Rate 5%

Grantor’s Age 60

Term of Trust 10

Annual Growth of Principal 5%

Pre-discounted FMV $3,000,000

Income Earned by Trust (8% x $3M = $240K) 8%

Discounted FMV $2,000,000

Percentage Payout (12% x $2M = $240K) 12%

Payment Period Annual

Annual Annuity Payout $240,000

Value of Grantor’s Retained Interest $1,727,208

Taxable Gift Value of Residual Interest in Trust $272,792


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Grantor Retained Annuity TrustEconomic Schedule

Beginning 5% 8% Annual Annual

YearPrincipalGrowthIncomePaymentRemainder

1 $3,000,000 $150,000 $246,000 $240,000 $3,156,000

5 $3,758,783 $187,939 $308,220 $240,000 $4,014,942

10 $5,425,367 $271,268 $444,880 $240,000 $5,901,516

Summary $3,000,000 $2,008,150 $3,293,366 $2,400,000 $5,901,516


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Intentionally Defective Irrevocable Trust (“IDIT”)Do Nothing

During Life

  • FMV of S Corporation = $5,000,000

  • Dividend Distributions = 10% / year

  • Corporation’s Growth Rate = 3% / year

  • Donor’s Life Expectancy = 20 years

At Death

  • FMV of S Corporation = $ 9,031,000

  • Estate Tax (45%) = $ 4,063,950

  • Children’s Inheritance = $ 4,967,050


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IDITRecapitalization

  • Recapitalize the S Corporation

    • Donor owns 10%, voting shares

    • Donor owns 90%, non-voting shares

  • Obtain a qualified appraisal substantiating a valuation discount for the non-voting shares ranging from 10% to 40%


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    IDITObtain Appraisal

    S CorporationNo Discount With 35% Discount

    10% $500,000 $500,000voting

    90% $4,500,000 $2,925,000

    Non-

    voting

    Donor

    Retains 100% Voting Control

    Donor

    Transfers 90% of Corporation’s value out of his/her estate


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    IDITFund Trust

    • Establish Intentionally Defective Irrevocable Trust (“IDIT”)

      • Power of substitution - IRC §675(4)(c)

      • Power to borrow without security - IRC §675(3)

      • Power in non-adverse party to add charitable beneficiaries – IRC §674(b)(5)

    • Gift 10% of shares (all non-voting) to IDIT using $325,000 of gift tax exemption

      • This “seed” money avoids potential estate inclusion under IRC §2036

      • Can allocate GST exemption to IDIT


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    IDITFund Trust

    • Sell 80% of shares (all non-voting) to IDIT

      • Promissory Note with term of 20 years

      • Interest payments only (annually) with balloon payment at end of 20 years

      • IRS assumed interest rate is 5.5% (long-term AFR)

      • No capital gains tax, and grantor not taxed separately on interest payments

    • Alternatives to an installment note

      • Private annuity

      • Self-canceling installment note (“SCIN”)


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    IDIT

    Donor

    IDIT / Dynasty Trust

    Donor gifts 10% of S Corp stock

    • Donor retains control as 10% voting shareholder

    (10% x $5,000,000 = $500,000 less 35% discount = $325,000)

    • $500,000 FMV

    • Donor receives $193,000 annually (from interest payment and dividends on the 10% voting shares)

    Donor sells 80% of S Corp stock

    • $4,000,000 FMV

    (80% x $5,000,000 = $4,000,000 less 35% discount = $2,600,000)

    IDIT pays interest only for 20 years of $143,000 annually

    • Donor pays income taxes of $210,000 ($500,000 x 42%) - for annual short fall of $17,000

    • IDIT earns 10% on $4,500,000 = $450,000/ year

    ($2,600,000 x 5.5%)

    IDIT’s Cash Flow

    $450,000

    ($143,000)

    $307,000

    • Paying IDIT’s income taxes is equivalent of tax-free gift


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    IDIT Cash Flow

    $450,000

    ($143,000)

    $307,000

    Excess cash flow could be used for reinvestment, purchase of real estate, and/or purchase of life insurance.

    IDIT


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    Sale to IDIT Illustration

    Grantor Gifts

    S Corp Stock

    $500,000

    Grantor Sells

    S Corp Stock $4,000,000

    Taxable Gift $325,000

    IDIT Issues Note

    $2,600,000

    Discounted Face

    Principal &

    Interest

    $5,460,000

    Value of IDIT

    in 20 Years

    $18,419,940


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    Private Annuity

    Sale of $1M of S Corporation Stock (with basis of $100K)

    Parent

    (Age 70)

    Child

    Annual Payout of $109,469

    • Annuity may not be secured.

    • Each payment is divided into capital gain ($58,065), interest income ($44,953), and a nontaxable recovery of basis ($6,452). Assumes the Section 7520 Rate is 5%.

    • Child cannot deduct any part of payments.

    • When parent dies, payments terminate.

    • Calculation assumes a 16 year life expectancy.

    • Standard valuation tables may be used if annuitant has at least a 50% probability of living one year. If the annuitant survives for at least 18 months, the 50% test is presumed to have been met. Regs § § 1.7520-3(b)(3) and 25.7520-3(b)(3).


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    Self Canceling Installment Note (“SCIN”)

    • Instead of a standard installment note, the sale can be paid with a SCIN. In Estate of Costanza, the Sixth Circuit, in a case arising out of Michigan, recognized a SCIN as a bona fide transaction.

    • A SCIN is an installment note that by it’s terms is extinguished at the death of the seller.

    • With a SCIN, nothing is included in the seller’s gross estate (similar to a private annuity).


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    Self Canceling Installment Note (“SCIN”)

    • The purchaser must pay a “risk” premium to the seller as consideration for the cancellation feature. However, there is no statutory or regulatory guidance as to how the risk premium should be calculated.

    • Apparently, the premium can be reflected as an increase in the sales price, or as an increase in the interest rate.


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    Self Canceling Installment Note (“SCIN”)

    IRC §7520 Rate 5.00%

    FMV of Property $2,600,000

    Cost Basis $1,000,000

    Initial Down Payment $0

    Age 60

    Term of Note 10 years

    Type of Note Interest Only

    AFR 5.50%

    Payment Period Annual


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    Self Canceling Installment Note (“SCIN”)

    Risk Premium

    PrincipalInterest

    Mortality Risk Premium (Principal) $263,567 N/A

    Total Sale Price $2,863,567 $2,600,000

    Principal Amount of Note $2,863,567 $2,600,000

    Mortality Risk Premium (Interest) N/A 1.2790%

    Total Interest Rate 5.5000% 6.7790%


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    IRS Support for IDITs

    • Rev. Rul. 85-13

      • There is no capital gain on sales between a grantor and a grantor trust.

  • Rev. Rul. 2004-64

    • The payment of income taxes by the grantor on behalf of a grantor trust does not constitute a gift to the trust’s beneficiaries.

    • If an independent trustee has the discretionary power to reimburse the grantor for income taxes, this does not cause the trust to be taxed in the grantor’s estate under IRC Sec. 2036(a)(1).

  • Karmazin vs. Commissioner

    • This gift tax audit, which was settled out of court, treated a sale to a grantor trust as a bona fide sale.

    • Trust was funded with 10% seed money.


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    IDIT

    GRAT

    vs.

    • Assumed discount rate is AFR

    • Only note is included in grantor’s estate

    • Can allocate GST exemption

    • End loading with balloon payment

    • Assumed discount rate is IRC §7520 rate

    • All trust assets included in grantor’s estate

    • Cannot allocate GST exemption because of ETIP rules

    • Annuity cannot exceed 120% of prior year’s annuity


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    IDIT

    GRAT

    vs.

    • Cannot reduce gift to zero because of seed money

    • Unintended gift maybe minimized with a “formula” gift

    • Potential capital gain if grantor dies while note is outstanding

    • Non-statutory technique

    • Can reduce gift to zero with Walton GRAT

    • Unintended gift is minimized if annuity is a percentage of FMV

    • No capital gain if grantor dies during the term

    • Statutory technique



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    The End. lawyers with me.”

    Thank You!


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