Quatloos!
> Investment
Fraud > Financial
Planning > Stupid
Private Annuity Tricks
Notice Regarding Proposed Changes - Some Private Annuity Transactions Restricted, But Many Transactions Remain Advantageous
Proposed Tax Changes
regulations that provide guidance on the taxation of the exchange of property for an annuity contract.
Stokes
v. Commissioner
In a case involving the National Association of Financial and Estate
Planners, the court held that the private annuity trust in that
particular case "constituted a sham trust that lacked economic
substance". Not only did Mr. Stokes not receive the promised tax
benefits, but he also got slammed with an accuracy-related penalty! |
Reprinted with the permission of Joseph Petrucelli, JD, LLM
[Forward: When carefully planned and properly
used, private annuities can be a very powerful tax deferral and
estate planning tool. Like any such tool, however, private annuities
do come with significant limitations and complexities. With the
recent boom in the real estate markets and sellers desiring to
defer the capital gains on the sale of their property, many unscrupulous
and often unqualified promoters have started hawking private annuities
to the masses by promising them a tax planning panacea that is
simply not supported by the tax laws. Persons who are about to
sell an asset and defer capital gains through the sale of a private
annuity should be cautious about the described practices. As with
all complex tax planning strategies, the review of the transaction
by an independent tax attorney who is familiar with private annuity
transactions is not only suggested, but is essential, since the
tax consequences if a private annuity fails or if the payments
are not calculated correctly can be horrendous to the seller.
~ Jay Adkisson]
1. Too Late Sales of Property via Private Annuities
Recently, a number of people have inquired about using Private
Annuities to defer income tax on the sale of property that has
already been placed in escrow. This poses significant tax issues
under some or all of the Assignment of Income, the Step Transaction
and the Sham Transaction Doctrines. Under the Assignment to Income
doctrine, the Courts have consistently held that when a person
attempts to shift income to a different taxpayer after the income
has been earned, the income will be taxable to the taxpayer who
earned the income rather than the taxpayer to whom the income
was shifted. Once property has been placed in escrow, it would
be difficult to argue that the property was actually sold by a
"Private Annuity Trust" or any other form of Annuity
Obligor.
Further, merely pulling the property out of escrow and then placing
it immediately back into escrow with a newly named "seller"
will likely not remedy the situation. In such an instance, an
argument would likely be made that the Annuity Obligor is simply
acting as agent for the real seller of the property and the IRS
would likely prevail in such an instance.
2. Private Annuities to Sell Commercial Annuities
Over the past 18 months or so, several organizations have begun
marketing the use of Private Annuities as a means of deferring
capital gains on the sale of real estate. Generally, these marketing
groups have as an added agenda, the "management" of
the money earned by the "Private Annuity Trust." The
management consists typically of the purchase of commercial annuities
from life insurance or annuity companies. There are several problems
with this strategy.
First, is that these marketing organizations often do not have
much experience in the use of Private Annuities.
Second, the transaction is susceptible to challenge by the IRS
as a Step Transaction. Generally, a Private Annuity transaction
should not be susceptible to a challenge under the Step Transaction
doctrine because they are generally intra-family estate planning
devices that do not result in the exchange of an asset for a different
asset. However, when real estate is being sold and "replaced"
with a commercial annuity, the IRS may argue that the use of the
Private Annuity is nothing more than a device to trade real estate
for a commercial annuity. Because there are no provisions in the
Internal Revenue Code or under Federal tax doctrines which allow
a direct exchange of real estate for commercial annuities without
taxation of the transaction, the use of a Private Annuity as an
intermediate step will not be recognized as a valid tax transaction
and the IRS may collapse the transaction and consider the taxpayer
to have sold property and bought the commercial annuity with what
amounts to after-tax dollars. This could result in immediate taxation
of the entire gain associated with the sale of the real property.
Additionally, certain provisions of the Code may result in inclusion
of the commercial annuity in the estate of the taxpayer.
3. Long-Term Deferral of Private Annuity Payments
While it is possible to defer the payment of Private Annuities
for some period of time, there is no bright line test in the Code
or under Federal tax law for the length of deferral. Certain marketing
organizations have adopted the "rule" that an annuity
may be deferred until age 70 ½. While this may be legal,
it can pose significant issues with the calculation of the annuity
payments due from the "Private Annuity Trust." Generally,
a private annuity will be treated as a sale of property and therefore
not subject to gift tax as long as the Fair Market Value ("FMV")
of the property is equal to the Present Value ("PV")
of the stream of Private Annuity payments.
Generally, for the PV of the Private Annuity payments to remain
equal to the FMV of the property transferred to the trust, the
annuity payments would have to increase for periods of deferral.
The use of a commercial annuity as the sole funding mechanism
may not result in the necessary accrual of value to ensure the
PV of the Private Annuity stream remains equal to the FMV of the
property. It should be noted, that for the transfer of property
to be considered a gift, there would also need to be some gift
intent so whether there is some disparity between the PV of the
Private Annuity and the FMV of the property there may not automatically
be a gift tax due.
However, if there is a significant difference between the PV
of the Private Annuity and the FMV of the property that was originally
transferred, the transfer of the property to the Annuity Obligor
might be considered a fraudulent conveyance as something other
than a transfer for reasonably equivalent value. A disparity between
the PV of the Private Annuity and the FMV of the property could
also result in the property transfer not being considered a sale
and therefore subject to inclusion in the estate of the taxpayer
under §2036.
4. Canned Opinion Letters
Changes to Circular 230 have made it less appealing to rely on
tax opinions as a means of avoiding potential penalties associated
with the assessment of tax by the IRS. While a properly drafted
opinion letter should still be able to be reasonably relied upon
in good faith by a taxpayer, opinion letters provided by promoters
(or the counsel of promoters) of the use of Private Annuities
as a means of deferring capital gains tax with an eye toward selling
commercial annuity products should not be relied upon and independent
counsel should be used to provide an opinion letter upon which
a taxpayer can rely to avoid penalties. Where time allows, a more
prudent course of action would be to obtain a Private Letter Ruling
on aspects of the Private Annuity transaction. If a promoter advises
against the taxpayer obtaining a Private Letter Ruling, the taxpayer
should take this as a sign to be cautious in dealing with the
promoter.
5. Private Annuity Trusts
The term "Private Annuity Trust" has become a part
of the new lexicon of estate/tax planning (as well as insurance
and real estate sales seminars). However, there is no such thing
as a "Private Annuity Trust" and it is no special species
of trust anymore than a "Family Limited Partnership"
is a special species of limited partnership. Ultimately, a trust
that is used as an Annuity Obligor is either a grantor or non-grantor
trust (or potentially some hybrid of the two). The tax treatment
associated with the Private Annuity transaction is largely dependent
on how the trust will be treated. It should be noted that in some
instances, companies marketing "Private Annuity Trusts"
tout the use of trusts which begin as a grantor trust and then
later become a non-grantor trust. In such an instance, it is highly
likely that the conversion of the trust to a non-grantor trust
following the transfer of property to the "Private Annuity
Trust" will have no effect on basis of the property and that
there will be no tax deferral available as a result of the conversion
of the trust.
6. Basis if no payments
While most private annuity arrangements end up in the property
that was transferred to the obligor being sold, there are instances
when an obligor may hold property for some period of time prior
to the property being sold. In such an instance, if no annuity
payments have been made and the annuitant passes away, the obligor
will have zero basis in the property and therefore would be taxable
on the full amount of the gain associated with a later sale of
the property. Many promoters fail to point this risk out to their
clients. Certain steps can be taken to reduce this risk if desired
but many promoters may not understand the issue let alone the
potential ways of mitigating the risk.
7. Ballooning Payments
Many promoters extol the virtue of deferring the start of the
annuity payments due in a private annuity transaction. While it
is true that in certain circumstances there may be benefits to
deferring the start of the annuity payments, many promoters fail
to understand the long-term effects of the deferral. In a properly
structured private annuity transaction, the fair market value
of the property transferred for the annuity should equal the present
value of the annuity stream. This "test" needs to be
made as of the date of the transfer of the property. This means
that as annuity payments are deferred, they must increase in size
to keep the present value of the annuity stream equal to the fair
market value of the property. This means that the required annuity
payments may become very large if the annuity starting date is
deferred for a long period of time.
8. Trust Taxation Issue
A fundamental issue to consider is that the trust/obligor of
in a private annuity transaction is a taxable entity (or the beneficiaries
of the trust are taxable) and that the obligor must therefore
pay tax on income it earns.
9. No Deduction
The obligor in a private annuity transaction does not receive
a tax deduction for the annuity payments. Because the obligor
is taxable on its income, the obligor may be in the position of
having to satisfy annuity payments with after-tax dollars which
can significantly raise the economic cost of the transaction.
10. Estate Tax
Most private annuity promoters will list mitigation of estate
tax as a benefit of utilizing a private annuity transaction. While
this is true, what many promoters will fail to point out is that
the annuity payments received by the annuitant are typically received
back in their own name and therefore each payment that is received
rebuilds the taxable estate of the annuitant. Once again, there
are ways to mitigate this potential problem but most promoters
will not consider means of mitigating the problem.
11. Stop and Go Annuity
The "stop and go" annuity is another problem. Once
annuity payments begin, they should not be stopped. The definition
of an annuity revolves around periodic payments being made. If
the annuity contract allows payments to begin and then cease,
there is a question as to whether the contract is actually an
annuity.
12. Live too long
Private annuities can result in the annuitant paying more tax
than they would have if they paid the tax at the time of the sale.
Additionally, a private annuity transaction can result in the
conversion of capital gains to ordinary income. This can happen
in a situation when the annuitant outlives his or her actuarial
life expectancy. All payments made by the obligor after the date
of the annuitant's actuarial life expectancy are ordinary income
because the annuitant will have received back all of his capital
gains and his basis.
13. Not asset protecting annuity payments
One of the benefits of using a private annuity is the potential
for asset protection. However, the payments received by the annuitant
are subject to creditors in most instance and generally private
annuity transactions are not structured in a way that will provide
asset protection to the annuity payments.
14. Annuitants are not entitled to the "growth"
in the annuity
When an annuitant exchanges property for a private annuity, the
annuitant is entitled to an annuity stream equal to the fair market
value of the property transferred. So, if property valued at $500,000
is transferred to the obligor, the annuitant is entitled to a
$500,000 annuity. The obligor, particularly in situations where
an annuity is deferred, might accrue significant value in excess
of the original fair market value of the property transferred
for the annuity. Some promoters will build in "interest"
for foregoing the annuity payments. They may also draft a private
annuity in such a manner that the annuity will be made up of the
accrued value of the annuity obligor. In these situations, it
is possible that the annuity calculations will not result in the
appropriate "balance" between the fair market value
of the property and the present value of the annuity. If a client
wants to have what amounts to a variable annuity or to have "access"
to the growth of the annuity obligor, the client should seek a
private placement annuity.
15. Private annuities are not "exchangeable"
In certain instances, promoters will seek to defer payments by
having a client exchange the original annuity for a new "re-valued"
annuity. The re-valued annuity will often include the accumulated
value of the annuity obligor. There are several problems with
this but the glaring one is that the provisions of the Internal
Revenue Code which allow the exchange of annuity contracts probably
do not apply to private annuities. Therefore, such an exchange
of annuity contracts would likely result in taxation.
Melnik
v. Commissioner of the IRS
Stock sale to
foreign corporation lacked economic substance; no penalty.
Stokes
v. Commissioner
In a case involving the National Association of Financial and Estate
Planners, the court held that the private annuity trust in that
particular case "constituted a sham trust that lacked economic
substance". Not only did Mr. Stokes not receive the promised tax
benefits, but he also got slammed with an accuracy-related penalty!
More information on the proper use of private annuities at http://www.assetprotectionbook.com/private_annuity_petrucelli.htm
Comment Form