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Friday, January 13, 2023

Latest Developments in Break up-Greenback Preparations


This yr on the Heckerling Institute on Property Planning, Donald O. Jansen, Mary Ann Mancini, and G. Michelle Ferreira introduced “Break up Greenback is Nonetheless Alive and Kicking – Fundamentals and Intergenerational Replace” – an attention-grabbing and academic look into the foundations and up to date developments of split-dollar preparations.

Treasury Laws Part 1.61-22(b) defines “break up greenback” as an association between an proprietor and a non-owner of a life insurance coverage premium contract that satisfies the next standards:

  1. Both occasion to the association pays, instantly or not directly, all or any portion of the premiums on the life insurance coverage contract, together with a fee via a mortgage to the opposite occasion that’s secured by the life insurance coverage contract;
  2. Not less than one of many events to the association paying premiums is entitled to get well (both conditionally or unconditionally) all or any portion of these premiums and such restoration is to be comprised of, or is secured by, the proceeds of the life insurance coverage contract; and
  3. The association isn’t a part of a group-term life insurance coverage plan described in Inside Income Code Part 79 except the group-term life insurance coverage plan supplies everlasting advantages to staff.

Foundations

Jansen kicked off the presentation with the historical past and makes use of of split-dollar preparations between staff and employers—notably specializing in worker fringe advantages, cross buy agreements, nonqualified deferred compensation and property tax planning. Jansen and Mancini additionally delved into the construction and nuances of the 2 split-dollar regimes: the financial profit regime and the mortgage regime.

Below the financial profit regime, the employer or donor owns the life insurance coverage coverage and endorses the financial advantage of the coverage to the worker or donee, which can end in earnings, employment and/or reward tax penalties. The financial profit regime is useful when the employer desires to personal and management the money worth of the coverage.

Below the mortgage regime, the employer or donor loans the coverage premiums (often on the present relevant federal charge) to the worker or donee, who owns the coverage. The employer’s curiosity within the money worth of the coverage is proscribed to the premium loans made (plus gathered curiosity), and the remaining money worth is owned and managed by the worker or donee and might develop tax-free.

Intergenerational Break up Greenback

After offering a complete background of split-dollar preparations, Jansen and Mancini turned the presentation over to the star of the present: Michelle Ferreira. Final yr, Ferreira efficiently defeated the Inside Income Service in Property of Marion Levine v. Commissioner, 158 T.C. No. 2 (2022), which targeted on the property tax penalties of intergenerational split-dollar life insurance coverage planning preparations.

Intergenerational break up greenback is an property planning technique wherein a grandparent (Gen 1) funds an irrevocable life insurance coverage belief (the ILIT) that advantages their grandchildren (Gen 3). The ILIT subsequently purchases a life insurance coverage coverage on the lifetime of Gen 1’s little one (Gen 2). Gen 1 advances the life insurance coverage premiums to the ILIT and takes again a receivable beneath which Gen 1 is entitled to the larger of: (1) the premiums paid; or (2) the money worth of the life insurance coverage coverage on the time of Gen 2’s demise. In keeping with Ferreira, intergenerational split-dollar preparations are greatest for purchasers who aren’t doing “deathbed planning” and who:

  1. Have ample liquidity to reside for the remainder of their life with out the necessity of the money used for the insurance coverage insurance policies and liquidity to buy the life insurance coverage insurance policies;
  2. Face an property tax invoice ample sufficient to justify the prices of planning; and
  3. Have insurable youngsters who themselves have ample internet value for to qualify for giant life insurance coverage insurance policies.

Property of Marion Levine v. Comm’r

In 2008, Marion Levine entered into an intergenerational split-dollar association by which her revocable belief paid $6.5 million {dollars} for 2 life insurance coverage insurance policies on her daughter and son-in-law’s lives. The insurance policies have been held in an ILIT, of which South Dakota Belief Firm, LLC was the trustee. Importantly, solely an Funding Committee might make selections concerning the investments throughout the ILIT, together with the choice to terminate the insurance policies. As is critical with intergenerational split-dollar preparations, the ILIT agreed to pay the revocable belief the larger of: (1) the whole quantity of the premiums paid for these insurance policies (that’s, $6.5 million); and (2) both (a) the present money give up values of the insurance policies on the demise of the final surviving insured or (b) the money give up values of the insurance policies on the date that they have been terminated, in the event that they have been terminated earlier than each insureds died.

At Levine’s demise, her property reported just one asset: the receivable, which was valued at $2.2 million (that’s, the current worth of the precise to obtain the funds sooner or later). The IRS took the place that the property ought to embody the present worth of the money give up values of the life insurance coverage insurance policies ($6.2 million) or the worth of the premiums paid ($6.5 million) beneath IRC Sections 2036 and 2038.

The Tax Court docket discovered that Sections 2036 and 2038 didn’t apply as a result of Levine and her property didn’t have the precise to find out who might use possess or benefit from the earnings from the life insurance coverage insurance policies. The ILIT that owned the insurance policies had an unbiased, company trustee, and solely the Funding Committee retained the precise to terminate the insurance policies.

The IRS additionally argued that the particular valuation guidelines beneath Part 2703 utilized to the split-dollar association and that by getting into into the split-dollar association, Levine restricted her proper to regulate the $6.5 million and the insurance coverage insurance policies. In keeping with the IRS, this restriction is what ought to be disregarded when figuring out the worth of the property. The property contended that the particular valuation guidelines of Part 2703 solely apply to property owned by Levine (that’s, the receivable, which didn’t have any restrictions), and never the insurance coverage insurance policies, which she by no means owned in any respect. The courtroom agreed, and solely the $2.2 million receivable was thought of included within the property.

Planning Ideas

In closing, Ferreira supplied the next planning suggestions for split-dollar preparations:

  1. The shopper shouldn’t have the power (alone or at the side of some other particular person) to unwind the split-dollar association, and the one who can unwind the association shouldn’t be performing on behalf of the shopper.
  2. Impartial members ought to function fiduciaries. If a fiduciary isn’t being paid for his or her providers, it have to be clear that the fiduciaries wouldn’t profit personally from the association.
  3. The ILIT ought to be the one proprietor of the insurance coverage insurance policies. Preparation of all varieties, drafting, purposes for insurance coverage and different authorized belief devices and assignments clearly point out who the proprietor of the life insurance coverage insurance policies is.
  4. The authorized paperwork ought to be rigorously drafted, signed, stored, monitored and ready to comport with the holdings within the controlling circumstances and split-dollar rules. Reward and property tax returns ought to be well timed filed and valuation reviews ready and included with the returns to report the worth of the receivable.

Katie Coeyman is a Tax and Property Planning Legal professional with Schechter

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