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What Every Trustee Should Know: The 65 Day Rule

Posted by Trisha Williams, CPA on Dec 12, 2016 2:25:56 PM

With the 2017 tax season fast approaching, I wanted to pass along a few tips and timelines to any executor or trustee who will be filing Form 1041 income tax filings for trust and estates, as well as Form 709 gift tax. Filing Fiduciaries of estates and complex trusts have the option to treat certain distributions as having occurred last year. An election can be made with respect to distributions made within 65 days after the end of a tax year.

Estate and Trust 1041s:

  1. The 65 Day Rule: The deadline on this is March 6, 2017, and it could save a significant amount of tax! The fiduciary overseeing an estate or complex trust has the ability to treat distributions made during the first 65 days of the following tax year as part of the income distributions for the prior year. As such, the executor or trustee can potentially shift taxable income from the estate or trust to the beneficiaries on a K-1, which is often desirable given that the maximum income tax rates and the 3.8% NIIT both kick in at $12,400 of taxable income for 2016 1041s.

    For example, assume we have a trust with 2016 taxable income of $30,000 from interest and dividends that could pass out to beneficiaries, but only $10,000 was paid out during 2016. Under the 65 Day Rule, the trustee can distribute up to $20,000 more to beneficiaries and elect to treat that as having been distributed on December 31, 2016, for income tax purposes. Note: To make this irrevocable election under §663(b), Question 6 on Page 2 of the 2016 1041 must be marked “Yes” on a timely filed return.

    Of course, there are other concerns for a trustee when making discretionary distributions from a complex trust. But from a pure income tax perspective, this income shifting can result in serious tax savings on a trust with high investment income.

  2. Distribution of Capital Gains: Depending on the terms of the trust, the state law, and past distribution activity, the potential exists to distribute capital gain income to beneficiaries along with ordinary investment income. The advantage here is the same tax rate arbitrage discussed above with regard to the 65 Day Rule. This could apply to complex trusts where there is capital gain income, and where distributions in excess of distributable net income were made – or where distributions were made from an estate before the final tax year of the estate. The 65 Day Rule could also be invoked to distribute capital gain income out for the prior tax year. Final Regulation Section 1.643(a)-3 discusses when capital gains can be included in DNI—and this is a complex determination. However, given the right circumstances, it could result in significant income tax savings.

  3. Documents: It is always best to have a copy of the trust document for reference when you start to prepare a 1041. With most estates, it’s the revocable lifetime trust document that you would need—or, you would need the will if there was no trust. If you don’t have the appropriate document, request it now so you have it when you get ready to have your preparer review the return. A quick review of the document is necessary in order to determine important income tax implications, like whether the trust is simple or complex, or whether capital gains may be passed out to beneficiaries. Also, don’t forget about Question 9 on Page 2 of the 1041, which asks whether any present or future beneficiaries are “skip persons” for the GST tax. You can’t answer that question without reviewing the document provisions, or discussing it with the drafting attorney.

Reporting: The Form 1041 does not require any kind of formal declaration of the amount of distributions paid in 2016 and treated as paid in 2016. (However, be sure to keep good records so that the amount is not reported again as a 2017 distribution.) There is a check box on the bottom of page 2 of the Form 1041 which must be checked when a §663(b) election has been made.

Timing: A §663(b) election must be made on a timely filed return (including extensions). The election becomes irrevocable once the due date of the return has passed [Reg. §1.663(b)-2.1]

Simple trusts are not required to consider actual distributions when determining the trust’s Income Distribution Deduction, as all accounting income is required to be distributed. If some amount of accounting income has not been distributed during a calendar year, then it should be distributed as soon as administratively possible, without regard to a hard 65-day limit.

Gift Tax Returns:

  1. Documents: If you have gifts made in trust to report on the 709 Form, having a copy of the trust should be a requirement before signing off on the Gift Tax return. The terms of the trust need to be reviewed in order to determine how gifts to the trust should be reported for GST tax purposes. A conversation with the drafting attorney is also useful in order to confirm the appropriate treatment in the first year of gifting to the trust. This is a very important consideration for a taxpayer with a taxable estate, and in my experience, it often does not receive the attention that it warrants. This can result in wasted GST exemption for individuals with limited ability to amend returns for irrevocable elections made on the original filing. Note that the Form 709 instructions also indicate that either a copy of the trust document or a brief summary of the trust provisions should be attached to the 709 if there are any trust gifts reported. I haven’t seen the IRS question the absence of this; but technically, the gift has not been “adequately disclosed” without this attachment, meaning that the statute of limitations never begins to run on the return.

  2. Filing Requirements: Let’s review the filing requirements for Gift Tax returns for 2016, as there seem to be misconceptions about when a Gift Tax return is supposed to be filed, and how annual exclusion is applied.

    a. Gifts to any person other than a spouse that are in excess of $14,000 (i.e., a check from one spouse’s checking account for anything over $14,000) triggers the filing. True, the gift can be split with a taxpayer’s spouse, such that up to $28,000 of annual exclusion is available per done. However, gift splitting is only available if an election is made to split the gift on a timely filed Form 709. Note that a $28,000 check from a joint account with the spouse would not require a filing, since each would be considered to have made a $14,000 gift. Gifts of “community property” are also considered to have been made equally (50%) by each spouse.

    b. Gifts of “future interests”. These are not eligible for the annual exclusion, so a filing is required. For example, a gift to a trust that does not grant “Crummey” withdrawal rights to the beneficiary would be a gift of a future interest.

    c. Gifts to a trust in excess of $14,000 may not technically require a filing if there are multiple beneficiaries; however, it is a good practice to file returns if there are gifts in trust to document whom the beneficiaries are, and the amount of annual exclusion claimed for each. The other reason to file in this case is that the GST tax annual exclusion is generally not available for gifts in trust. If you don’t file a return to address this issue, then the default election you are deemed to make by not filing may end up wasting some of the taxpayer’s GST exemption.
Trusts & Estates Planning is a complex subject and can be confusing. For more information on the above article or any Estate and Trust Tax services contact Trisha Williams, CPA at (334) 887-7022 or by leaving us a message below.

Topics: Individual Tax

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