Pure/Common-Law/Non-Statutory/etc Trusts

[Thule]

I did it myself, the best I could.

I see. What does "the place of celebration" mean?

[The Dog]

OK, fmmcosta -- which country is that?

Portugal.

Article 103
(Fiscal system)
1. The fiscal system shall aim to satisfy the financial needs of the state and of other public entities and to ensure a just distribution of income and wealth.
2. Taxes shall be created by laws, which shall lay down their applicability and rate, fiscal benefits and the guarantees accorded to taxpayers.
3. No one shall be obliged to pay taxes that are not created in accordance with the Constitution, are retroactive in nature, or are not charged and collected as laid down by law.

Article 104
(Taxes)
1. Personal income tax shall aim to reduce inequalities, shall be single and progressive and shall pay due regard to the needs and incomes of households.
2. Enterprises shall essentially be taxed on their real income.
3. The taxation of assets must contribute to equality between citizens.
4. The taxation of consumption shall aim to adapt the structure of consumption to evolution in the requirements for economic development and social justice, and must increase the cost of luxury consumer items.

http://www.tribunalconstitucional.pt/tc ... ingles.pdf

Seems to me that you have to pay Income Tax in Portugal.

[LPC]

Portugal has never been a common law country, AFAIK. Why do you think common law has any application to Portugal? Why do you think the laws of the US apply in Portugal?

What do you think this Article means?

ARTICLE 41
(Obligations arising from legal transactions)
1. The obligations arising from legal transactions, as well as the very substance of it, are regulated by the law that the subjects have appointed or had in view.
2. The designation or reference of the parties may, however, fall on law whose applicability corresponds to a serious interest of the "parties" or is in connection with some of the elements of the legal transaction justifiable in the field of private international law.

Isn't it clear?

No, it is not clear.

You may be under the delusion that two people in Portugal can agree to form a trust under the laws of Pennsylvania (even though neither person has any connection with Pennsylvania), and that the courts in Portugal will then enforce the trust. Do you have any citation of any authority for that proposition other than your own personal interpretation of the constitution of Portugal?

And, even if you are correct, what does this have to do with US tax laws? Whether two people can agree on what law to apply in determining their rights against each other doesn't have anything to do with what tax laws will apply to them.

[LPC]

I think we all agree that anyone as a individual citizen has to pay income tax and is subject to statutory law.

The point is, does a trust have a distinct legal personality or not?

What is really depressing (and annoying) to me is that it is clear that you don't realize that the second sentence is a complete non sequitur.

It should be enough to say that the word "personality" does not appear in the Internal Revenue Code. Trusts are subject to the tax laws of the United States regardless of what kind of personality they might have.

As I showed in a previous post, in my country the parties of a legal transaction (contract, trust, etc.) can choose the governing law of the contract/trust.

And as I have explained in previous posts, even if the rules regarding choice of law allowed someone to choose between statutory law and common law (which they don't), choice of law is still irrelevant to taxation.

IF the law chosen is some other law, i.e. common law, does the trust pay income tax and other taxes?

Yes. The Internal Revenue Code does not distinguish between trusts created under common law and trusts created under statutory law. The same tax rules apply to both.

I'm glad we could finally clear that up.

Please keep in mind that I don't need to be the grantor of the trust where "my" property is held.

That sentence is just brimming with fraud.

Two points:

1. The "grantor" of a trust is the person who actually transfers property to the trust, not the person named in the document as the grantor. If person A signs an agreement of trust, and B transfers property to the trustee, then B is the grantor of the trust for tax purposes.

2. Transfers to a trust can be direct or indirect. If A transfers property to B, and then B transfers the same (or different) property to a trust, then A is the grantor of the trust and not B.

This is stated quite clearly in income tax regulations, Sec. 1.671-2(e)(1):

For purposes of part I of subchapter J, chapter 1 of the Internal Revenue Code, a grantor includes any person to the extent such person either creates a trust, or directly or indirectly makes a gratuitous transfer (within the meaning of paragraph (e)(2) of this section) of property to a trust. For purposes of this section, the term property includes cash. If a person creates or funds a trust on behalf of another person, both persons are treated as grantors of the trust. (See section 6048 for reporting requirements that apply to grantors of foreign trusts.) However, a person who creates a trust but makes no gratuitous transfers to the trust is not treated as an owner of any portion of the trust under sections 671 through 677 or 679. Also, a person who funds a trust with an amount that is directly reimbursed to such person within a reasonable period of time and who makes no other transfers to the trust that constitute gratuitous transfers is not treated as an owner of any portion of the trust under sections 671 through 677 or 679.

Examples from the regulations:

Example 1. A creates and funds a trust, T, for the benefit of her children. B subsequently makes a gratuitous transfer to T. Under paragraph (e)(1) of this section, both A and B are grantors of T.

[...]

Example 3. A, an attorney, creates a foreign trust, FT, on behalf of A's client, B, and transfers $100 to FT out of A's funds. A is reimbursed by B for the $100 transferred to FT. The trust instrument states that the trustee has discretion to distribute the income or corpus of FT to B and B's children. Both A and B are treated as grantors of FT under paragraph (e)(1) of this section. In addition, B is treated as the owner of the entire trust under section 677. Because A is reimbursed for the $100 transferred to FT on behalf of B, A is not treated as transferring any property to FT. Therefore, A is not an owner of any portion of FT under sections 671 through 677 regardless of whether A retained any power over or interest in FT described in sections 673 through 677. Furthermore, A is not treated as an owner of any portion of FT under section 679. Both A and B are responsible parties for purposes of the requirements in section 6048.

[...]

Example 7. A, B's brother, creates a trust, T, for B's benefit and transfers $50,000 to T. The trustee invests the $50,000 in stock of Company X. C, B's uncle, purportedly sells property with a fair market value of $1,000,000 to T in exchange for the stock when it has appreciated to a fair market value of $100,000. Under paragraph (e)(2)(ii) of this section, the $900,000 excess value is a gratuitous transfer by C. Therefore, under paragraph (e)(1) of this section, A is a grantor with respect to the portion of the trust valued at $100,000, and C is a grantor of T with respect to the portion of the trust valued at $900,000. In addition, A or C or both will be treated as the owners of the respective portions of the trust of which each person is a grantor if A or C or both retain powers over or interests in such portions under sections 673 through 677.

Sections 671 through 677 of the Internal Revenue Code describe situations in which the income of a trust is taxed to the grantor of the trust, regardless of whether or not the grantor is a beneficiary of the trust. Then there is section 679, which provides that a transferor to a foreign trust can be taxed on the income from that trust if the trust has any beneficiary that is a citizen or resident of the United States. All of which are recommended reading for all self-proclaimed experts on trust law.

[fmmcosta]

OK, fmmcosta -- which country is that?

Portugal.

Thanks! Now, I find myself imagining myself driving from Lisbon to Oporto and getting stopped by the police for some traffic law violation. How successful would I be if I cited the UDHR as justification for driving as I please? I don't think that I'd be any more successful than I would be over here, because I'm sure that the Portuguese police and courts care about keeping Portugal's roads safe for everyone.

First of all, it's not that simple.

Why would you cite the UDHR to a cop? can he make legal determinations?

Why do you assume that everyone is irresponsible ?

[fmmcosta]

I did it myself, the best I could.

I see. What does "the place of celebration" mean?

It's the place of creation of the legal transaction.

[fmmcosta]

OK, fmmcosta -- which country is that?

Portugal.

Article 103
(Fiscal system)
1. The fiscal system shall aim to satisfy the financial needs of the state and of other public entities and to ensure a just distribution of income and wealth.
2. Taxes shall be created by laws, which shall lay down their applicability and rate, fiscal benefits and the guarantees accorded to taxpayers.
3. No one shall be obliged to pay taxes that are not created in accordance with the Constitution, are retroactive in nature, or are not charged and collected as laid down by law.

Article 104
(Taxes)
1. Personal income tax shall aim to reduce inequalities, shall be single and progressive and shall pay due regard to the needs and incomes of households.
2. Enterprises shall essentially be taxed on their real income.
3. The taxation of assets must contribute to equality between citizens.
4. The taxation of consumption shall aim to adapt the structure of consumption to evolution in the requirements for economic development and social justice, and must increase the cost of luxury consumer items.

http://www.tribunalconstitucional.pt/tc ... ingles.pdf

Seems to me that you have to pay Income Tax in Portugal.

That already has been agreed.

We are talking about trusts/contracts/legal transactions and not about me.

[notorial dissent]

No, what we are talking about here is you trying to get the people here, many of whom are tax and legal professionals, to agree with the determination you have already made about what a trust is and can do. You are not interested in anything other than finding someone to agree with your fantasies. It isn’t going to happen here.

It isn’t going to happen! You are wrong on all counts, and by virtue of you trying to argue it the way you are, you know you are wrong and are trying to find someone to go along with your fantasies. It isn’t going to happen!!!!

[fmmcosta]

What is really depressing (and annoying) to me is that it is clear that you don't realize that the second sentence is a complete non sequitur.

It should be enough to say that the word "personality" does not appear in the Internal Revenue Code. Trusts are subject to the tax laws of the United States regardless of what kind of personality they might have.

I'm not talking about the United States.

A trust (in Portugal is called "Contract in favor of third party") can be an "autonomous figure" if properly created with that in view.

And as I have explained in previous posts, even if the rules regarding choice of law allowed someone to choose between statutory law and common law (which they don't), choice of law is still irrelevant to taxation.

Then what do they allow? Since there are no states here and there is only 1 law (the Portuguese law) but you can choose the law of the legal transaction?

What's the point of having the option of choosing that law if there is only 1 law available?

Yes. The Internal Revenue Code does not distinguish between trusts created under common law and trusts created under statutory law. The same tax rules apply to both.

I'm glad we could finally clear that up.

Isn't the IRC statutory law? If it's statutory law, as I'm pretty sure it is, doesn't it only refers to statutory trusts?

That sentence is just brimming with fraud.

Two points:

1. The "grantor" of a trust is the person who actually transfers property to the trust, not the person named in the document as the grantor. If person A signs an agreement of trust, and B transfers property to the trustee, then B is the grantor of the trust for tax purposes.

2. Transfers to a trust can be direct or indirect. If A transfers property to B, and then B transfers the same (or different) property to a trust, then A is the grantor of the trust and not B.

(...)

you are right.

[fmmcosta]

No, what we are talking about here is you trying to get the people here, many of whom are tax and legal professionals, to agree with the determination you have already made about what a trust is and can do. You are not interested in anything other than finding someone to agree with your fantasies. It isn’t going to happen here.

It isn’t going to happen! You are wrong on all counts, and by virtue of you trying to argue it the way you are, you know you are wrong and are trying to find someone to go along with your fantasies. It isn’t going to happen!!!!

For starters, who the f*ck are you to make such determinations about me?

Many are but you aren't and you haven't made a single contribution to this thread besides trolling. What are you doing on this thread? get a life.

[Pottapaug1938]

Thanks! Now, I find myself imagining myself driving from Lisbon to Oporto and getting stopped by the police for some traffic law violation. How successful would I be if I cited the UDHR as justification for driving as I please? I don't think that I'd be any more successful than I would be over here, because I'm sure that the Portuguese police and courts care about keeping Portugal's roads safe for everyone.

First of all, it's not that simple.

Why would you cite the UDHR to a cop? can he make legal determinations?

I would never dream of doing something that stupid; but you were the one who cited the UDHR as justification for evading restrictions on one's "right to travel", so I wondered if that was the practice in Portugal. And no -- a cop can't make legal determinations, at least in the way that a judge can; but he or she can look at a certain mode of conduct (say, driving the wrong way down a street) and make an initial determination that the driver has violated the law. If the cop can be shown, at the scene, that the conduct for which a driver was stopped is in fact legal, that cop can choose not to write a citation.

Why do you assume that everyone is irresponsible ?[/quote]

I don't assume that EVERYONE is irresponsible; but I've seen enough irresponsible people on the roads, both here and overseas, to know that traffic laws are absolutely essential to the public safety.

And, to address other points, "choice of law" is available only in those cases where more than one law might be said to apply to a legal matter. For example, imagine that I own real property in Massachusetts, Vermont and Maine, and wish to create a real estate trust. Imagine that I am a resident of Quebec (but still a U.S. citizen). Choice of law issues apply, obviously. However, if I was a U.S. citizen and only owned property in Massachusetts, choice of law is an absurd concept because no other jurisdictions, aside from Massachusetts and the United States, have any relevance to the trust property.

Finally: notorial dissent has made many constructive and informative posts on Quatloos. I've yet to see much of anything from you; so if I have to choose between your competing opinions, I can't yet envision a situation in which notorial dissent's opinions would lose out to yours.

[Famspear]

No, what we are talking about here is you trying to get the people here, many of whom are tax and legal professionals, to agree with the determination you have already made about what a trust is and can do. You are not interested in anything other than finding someone to agree with your fantasies. It isn’t going to happen here.

It isn’t going to happen! You are wrong on all counts, and by virtue of you trying to argue it the way you are, you know you are wrong and are trying to find someone to go along with your fantasies. It isn’t going to happen!!!!

For starters, who the f*ck are you to make such determinations about me?

Many are but you aren't and you haven't made a single contribution to this thread besides trolling. What are you doing on this thread? get a life.

User notorial dissent is an experienced poster in this forum, that's who he/she is. He/she does not need your permission -- or approval -- to "make determinations" (whatever that means) about you.

Isn't the IRC statutory law? If it's statutory law, as I'm pretty sure it is, doesn't it only refers to statutory trusts?

I'm too bored here to get into much with you right now, pal, but it's obvious that you are in way over your head.

Yes, the Internal Revenue Code is statutory law.

No, the mere fact that the Code is a statute does not mean that the Code refers "only" to "statutory trusts." Think.

Take a deep breath and think about what you're saying (or writing). You are suffering from some significant misunderstandings about how law works.

EDIT: Made a correction. Again, the mere fact that the Code is a "statute" does not mean that the Code, in reference to "trusts," refers "only" to "statutory" trusts.

[Pottapaug1938]

To make the previous comment explicitly clear: the Internal Revenue Code applies to ALL trusts set up under the laws of any jurisdiction within the United States, no matter which law is used to construct them.

That's the great error of the people who try to use the so-called "pure", "common law" or "non-statutory" trusts -- they think that they have found some magical formula to escape the reach of our tax laws; and eventually they find out, the hard way, that their magical formula just doesn't work.

[wserra]

Trusts are subject to the tax laws of the United States regardless of what kind of personality they might have.

Really? Do you mean that a happy trust is taxed the same as a sad trust? How about a misplaced trust? It doesn't seem fair to tax it at all if you can't find it. And shouldn't a complete trust be taxed less than an incomplete trust? Now, I can understand taxing a trust fund, but doesn't an In God We Trust qualify for a religious exemption?

Why are we paying any sort of serious attention to this guy? Portugal? When he posted sovrun BS on Tran's blog, he didn't even pretend that he was talking about Portugal.

Trust!

[notorial dissent]

For starters, who the f*ck are you to make such determinations about me?
I am the person who has sat here and watched you make 35 mind numbingly tedious and pointless posts to start with.

I am the person who has watched you start from the position of an already preformed premise that you wanted to prove, and that when you were and have been repeatedly told NO, and NO, and hell NO, in no uncertain terms, you continue to come back with what amounts to the three year old’s “yes but” version of “if I just say it differently they will agree with me” responses. You are not looking for information, you are trying to force a confirmation of your already formed opinion. Wrong though it is.

I am the person watching someone from another country, purportedly Portugal, and who quite obviously is as unfamiliar with the laws of his own country as he is with the ones of this country, trying to get an answer that fits an already formed conclusion that has no basis in reality.

I am the person who has watched someone who has been repeatedly told that all trusts are subject to the statute law of the state, whatever state, who repeatedly comes back with “but if they aren’t statutory trusts then they aren’t subject to statute law” argument because that is what you want to believe. You have been told repeatedly that ALL trusts are statutory in nature because they only exist by statute. You have repeatedly refused to acknowledge this. For a trust to exist there must be statutory law to allow it.

I am the person who is tired of seeing the same questions asked and answered repeatedly, when you have no interest in an actual answer, but want confirmation of your already determined premise. You don’t want information, you want a confirmation for whatever fantasy you working towards, and sorry, you aren’t going to get it here.

Many are but you aren't and you haven't made a single contribution to this thread besides trolling. What are you doing on this thread? get a life.
I see no point in contributing anything when people far more knowledgeable and experienced than I have already told you that you are full of it, politely, but still the same effect, and more particularly when you are not really interested in what anyone here is saying, unless it agrees with your fantasy, and which it won’t.

Actually, the only one trolling here is you. The pattern is painfully obvious, and oh so transparent. As to what I am doing here, quite simply trying to learn something, be amused, see what is happening, which is my prerogative as a member of this forum.

I don’t have to have to do anything but read what you have written to see that you are fishing for an answer, and are getting quite put out that you aren’t getting the one you wanted. Hardly original, and hardly interesting. So, as you put it, that is what I am doing here.

And, if I can abuse a troll or two along the way, then life is sweet.

[LPC]

What is really depressing (and annoying) to me is that it is clear that you don't realize that the second sentence is a complete non sequitur.

It should be enough to say that the word "personality" does not appear in the Internal Revenue Code. Trusts are subject to the tax laws of the United States regardless of what kind of personality they might have.

I'm not talking about the United States.

The more important question is whether you're actually talking about anything at all.

And, if you really are talking about something, do you yourself even know what you're talking about? I don't mean whether what you're talking about is correct or coherent, but do you even know what *subject* you're talking about?

How do you know whether you're talking about US law or Portugese law? In order to know that, wouldn't that require some conscious thought? Unfortunately, there's no evidence of that from you in this thread.

And as I have explained in previous posts, even if the rules regarding choice of law allowed someone to choose between statutory law and common law (which they don't), choice of law is still irrelevant to taxation.

Then what do they allow? Since there are no states here and there is only 1 law (the Portuguese law) but you can choose the law of the legal transaction?

You're portugese, you figure it out.

Yes. The Internal Revenue Code does not distinguish between trusts created under common law and trusts created under statutory law. The same tax rules apply to both.

I'm glad we could finally clear that up.

Isn't the IRC statutory law? If it's statutory law, as I'm pretty sure it is, doesn't it only refers to statutory trusts?

Great. An obstinate, ignorant moron with reading comprehension problems.

[ArthurWankspittle]

For starters, who the f*ck are you to make such determinations about me?

Who the f*ck are you to tell me I can't?
As has already been pointed out, you spent some time on George Tran's website getting into arguments about sovereign type processes and ideas, and generally not answering questions asked of you. You also kept saying that people were doing it "wrong" and you knew how to do it "right". Further, you hold the view that UCC (I think it was UCC, if it wasn't it was some other group of laws) superseded and overruled all other, and was the only way to resolve any dispute or incident. When asked how this would apply to assault, IIRC, you were insistent that some variety of civil suit was the solution. It has obviously not occurred to you that your opinion represents a minority of one across the entire internet.

[Rebuck]

"I am not a lawyer" but I went to prison for being the promoter of Commonwealth Trust Company and their products. From my experience anyone who uses Common Law trusts and Sovereigns as trustees is as blind as I was and is in for a real learning experience when the IRS comes to knowledge of his actions.

The trusts I marketed until July of 2003 appeared legitimate, held real estate, obtained title insurance, wired proceeds offshore and owned vehicles plus much more. None held up when it came time to go to court. I have had to testify for the Government in six different cases being cross examined by Bernhoft's team, Beacraft twice, Mark Lane and others and all this sovereign trustee argument and right to contract did not help the past clients of mine.

In this world the only way one could or should consider the use of trusts is with the guidance of an expert trust/tax attorney. I remember the last day I was working for Commonwealth Trust Company. We were doing a conference in Las Vagas July 18, 2003 when the IRS burst throught the doors. That conference had three attorneys scheduled to be there and speak to and assist my clients, so make sure you find an attorney that is legitimate not the kind I recruited to take part in that conference.

The biggest mistake of my adult life was letting my grudgeful attitude lead me into the trust business. I have millions to pay in restitution and have harmed others because of my actions. I have had to file tax returns on trust income to comply with my plea agreement or I would still be in prison.

If we do not like the present tax system we must change it through new legislation!!!

Stay away from Common Law Trusts!

[fmmcosta]

I see no point in contributing anything

[/quote]

Good, then don't.

[Prof]

Rebuck: Welcome to Quatloos, thanks for the personal, eye-witness observations, and good luck and better luck from now on.