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Can Benficiary pay tax on a Grantors Trust

Skylane
Level 11
Level 11

Clients established two irrevocable residence grantors trusts years ago; Mom's trust was funded with one property (a summer house). Dad's Trust with a  2 family 50% owner occ. 50% rental they still live in.

Daughter is sole trustee and beneficiary.

Mom's  house was sold and proceeds deposited in brokerage account titled to trust.  Parents still occupy and rent the 2 family.    Parents report and pay taxes on the income via grantor letter

For reasons of Medicaid look back, trustee or her atty, says the parents should not be paying the tax on the trust money. I'm okay with paying tax at the trust level but daughter would like a k1 as beneficiary to pay the tax at her on her return.  Distributions have not been made from the trust account.. 

My understanding is that grantors are responsible for the tax....  What say you o wise ones? 

 

 

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Accepted Solutions
BobKamman
Level 15

"was told tax can be reported and paid at the trust level. Any truth to that?"

True, if there were no distributions to the grantor.  False, otherwise.

There is something called a "sprinkling trust, where the trustee is allowed to disperse funds according to the needs of the beneficiaries. Unlike many trusts where the trustee must follow strict instructions from the creator of the trust, sprinkling trusts allow almost unlimited flexibility for the trustee to give funds to the beneficiaries as needed."  But I doubt that's what you have.  

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8 Comments 8
BobKamman
Level 15

Exactly who is sending the parents a "grantor letter" ?

If others want to use this forum as a place to discuss how to beat the Medicaid system's rules, it may be interesting to watch.  The answer to your tax question is, it depends on the trust document.  Apparently, someone determined long ago that this is a grantor trust.  If that hasn't changed, the treatment of its income can't be changed.  

IRonMaN
Level 15

A new attorney said oops on the setup?


Slava Ukraini!
Skylane
Level 11
Level 11

The trusts were established about 12 years ago.  Yes, grantors trust; I have copy of trust document and confirmed with the  attorney when the trust was created.  The tax has always been reported and paid on grantors 1040. 

I won't issue k1 in favor of the beneficiary but was told tax can be reported and paid at the trust level. Any truth to that?

 

 

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Taxtime3
Level 3

If it is a Grantor trust, the income will pass out on a grantor tax letter (if a 1041 is done, and the grantor trust has its own EIN).  This happens most of the time when the grantor becomes incapacitated and a successor trustee takes over.  Typically it is reported under the grantors SSN.  If its a simple irrevocable trust, the income will still pass pass out (even if they don't get a distribution).  A complex trust (complex $100), you can keep the income in the the trust and pay it at the trust level.  You can just leave the DNI in the trust (no distributions, no income will pass out).  A complex $300 income is typically required to be passed out.  Not sure if that helps you or not.

BobKamman
Level 15

"was told tax can be reported and paid at the trust level. Any truth to that?"

True, if there were no distributions to the grantor.  False, otherwise.

There is something called a "sprinkling trust, where the trustee is allowed to disperse funds according to the needs of the beneficiaries. Unlike many trusts where the trustee must follow strict instructions from the creator of the trust, sprinkling trusts allow almost unlimited flexibility for the trustee to give funds to the beneficiaries as needed."  But I doubt that's what you have.  

Skylane
Level 11
Level 11

Thank you.  Definitely not a sprinkling trust.   

I'm not fan of millionaires on Medicaid. Always pushed LTC insurance... whatever is left over goes to kids...  

If at first you don’t succeed…..find a workaround
Taxes-by-Rocky
Level 7

You said "irrevocable trust."  Any gift tax return filed to ascertain property out of estate for gift and estate tax purposes?  [And, perhaps, Medicare look-back depending on the state and its use rules.]

If truly irrevocable and out of the estate/MC estate, what powers (in the trust instrument) did the grantor(s) retain making the trust a grantor trust for income tax purposes?  For example, see tax research on grantor trusts and commonly retained administrative powers making the grantor subject to income tax, IDGT, etc., but perhaps, the transfer still being subject to gift tax or an ETIP).

Finally, has it been assumed that the trust is a grantor trust merely because the grantor still lives in (benefits from) the property?  Does that 'square' with any retained interest issues for estate tax purposes or are we just trying to get a step-up on death (i.e., see the recent IRS rulings on 'acquired from a decedent' and grantor/irrevocable trusts).  Last but not least, do the grantors pay rent to the trust, have signature authority over the trust, contribute assets (repairs) to the trust, etc?

I know it's not an answer, but I'd suggest starting with the attorney who drafted the trust (presumably as a Medicaid trust) and ask them the specific powers retained by the grantors, if any, to determine what the original intentions were (for income, gift, estate and Medicaid purposes).  My guess is that once you know that, things will line up a little more clearly for tax purposes.

Skylane
Level 11
Level 11

@Taxes-by-Rocky  Thanks for the reply…. From the bottom up….

i started with the attorney who drafted the agreement. 12 years ago he said it was a grantors trust and I have treated it as such since.  

the grantors have been collecting rent on one unit (and reporting it on their 1040) and living in the other. Moving forward, rents will probably be deposited to the trust and grantor will likely pay rent to the trust… 

not looking for stepped up basis on death. Property doesn’t transfer on death. 
did not file gift tax return.

 

IMO, the whole problem with this is that by putting 

If at first you don’t succeed…..find a workaround
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