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CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND. It makes it hard to read. Suggest using the print command “BLACK and WHITE”; avoid using “color” #2 – PRINT SIX SLIDES PER PAGE. Slides contain a very large font. Six slides per page will conserve paper.
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CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Dec 18, 2015

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Oswin Turner
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Page 1: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

CHARITABLE PLANNING FOR UPPER-INCOME

DONORSPRINTING SUGGESTIONS:

If you want to print out these slides, may I suggest:

#1 – AVOID PRINTING THE DARK BACKGROUND. It makes it hard to read. Suggest using the print command “BLACK and WHITE”; avoid using “color”#2 – PRINT SIX SLIDES PER PAGE. Slides contain a very large font. Six slides per page will conserve paper.

Page 2: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

CHARITABLE PLANNING FOR UPPER-INCOME

DONORS

Advancement Network2014 Annual Conference

Cleveland, Ohio -- October 18, 2014

CHRISTOPHER R. HOYTUniversity of Missouri - Kansas City

School of Law

Page 3: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Tax Planning Challenges

* Planning Strategies for the new 3.8% surtax: Net Investment Income

* Retirement Assets -- Hot Topics -- Lifetime planning -- Bequests of Retirement Assets -- spouse -- trusts -- charities

Page 4: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

INCOME TAX RATES INVEST

WAGES LTCGIncome Level -MENT

(+1.45%) & Divid AGI < $200k/$250k 28%

29.4% 15%

Congratulations! Brilliant tax planning! “Bush tax cuts” remain in full effect for people with adjusted gross income under $200,000 ($250,000 on a joint return)

Page 5: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

INCOME TAX RATES INVEST

WAGES LTCGIncome Level -MENT

(+1.45%) & Divid AGI < $200k/$250k 28%

29.4% 15% AGI > $200k/$250k 33%

34.4% 15%

33% rate when taxable income > $186,350 -- single > $226,850 – married filing jointly

Page 6: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

TAX RATES paid on TAXABLE INCOME

ADJUSTED GROSS INCOME (“AGI”) Minus: Greater of -- Standard Deduction ($6,100) or -- Itemized Deductions (Mortgage interest; charitable contributions; state & local taxes)

Minus: Personal Exemption & Dependents ($3,900 each)

= TAXABLE INCOME

Page 7: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

WEALTHY PAY SOME TAXES ON “AGI”

ADJUSTED GROSS INCOME(“AGI”) Minus: Greater of

-- Standard Deduction ($6,100) or -- Itemized Deductions (Mortgage interest; charitable contributions; state & local taxes)

Minus: Personal Exemption & Dependents ($3,900 each)

= TAXABLE INCOME

Page 8: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

INCOME TAX RATES INVEST

WAGES LTCGIncome Level -MENT

(+1.45%) & Divid AGI < $200k/$250k 28%

29.4% 15% AGI > $200k/$250k 33%

34.4% 15% plus health care surtax 3.8% 0.9% 3.8% 36.8% 35.3% 18.8%

Page 9: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

0.9% MEDICARE SURTAX:When Compensation Exceeds $200,000

($250,000 married joint return)

Compensation -- wages & self-employment income (Added to 1.45% Medicare/Medicaid tax ) (Employee pays entire 0.9%; no employer match) Employer must withhold when W-2

Form compensation exceeds $200,000 Married joint? Together over

$250,000? -- Pay on Form 1040 , e.g. if neither spouse has over $200,000 . (e.g., Husband has $100k and Wife has $160k = $260k)

Page 10: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

3.8% Net Investment Income Tax

MAGI > $200,000 ($250,000 joint returns)

3.8% surtax on the lesser of: Net Investment Income or MAGI over $200,000 ($250,000 joint) ( $200k/$250k not indexed for inflation )

Trusts and estates pay 3.8% at $12,150 !!

Page 11: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

3.8% Net Investment Income Tax

MAGI > $200,000 ($250,000 joint returns)How many people are affected?

2011 Tax Returns with AGI over $200,000:

3.2% of all returns 0.7% of single returns 7.6% of married joint returns

86% of the returns with over $200,000* of AGI were married joint

Page 12: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

3.8% Net Investment Income Tax

MAGI > $200,000 ($250,000 joint returns)Strategies for three different taxpayers:

#1 - Richest 1% - Income over $400,000 -- Reduce NII (not likely to get AGI <200k)

#2 – Taxpayers with AGI near $200k ($250 jt)

-- Either reduce NII or reduce AGI

#3 - Taxpayers with AGI below $200k ($250 jt)

-- Avoid spikes in income that trigger 3.8% tax -- Charitable Remainder Trusts !!

Page 13: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

CHARITABLE REMAINDER TRUSTS

Payment to non-charitable beneficiary (ies) for life *or* for a term of years (maximum 20 years)

Remainder interest distributed to charity

Exempt from income tax

Page 14: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

CHARITABLE REMAINDER TRUSTS

EXAMPLEHusband & wife age 65Sell stock or land for $1

million gainOther option: contribute to

CRT before sale is finalized; have CRT make the sale

Page 15: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

CHARITABLE REMAINDER TRUSTS

CRT PROVIDES:1. Charitable income tax

deduction2. Greater cash flow for life3. Avoid spike in income – 3.8%

tax4. “Wealth replacement” strategy

with life insurance.

Page 16: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

CHARITABLE REMAINDER TRUSTS

DONATE STOCK TO C.R.T.;

KEEP THE STOCK C.R.T. SELLS STOCK

Sales Price $ 1,000,000$1,000,000

Cost of Stock -0- -0-

Gain on Sale $ 1,000,000$1,000,000

Capital GainsTax (about 25%) 250,000

None

Remaining Proceeds $ 750,000$1,000,000

Page 17: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

CHARITABLE REMAINDER TRUSTS

DONATE STOCK TO C.R.T.;

KEEP THE STOCK C.R.T. SELLS STOCK

Remaining Proceeds $ 750,000$1,000,000

Interest Rate x 5% x 5%

Annual Income $ 37,500 $ 50,000 ══════ ══════

(33% more)

Page 18: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

3.8% Net Investment Income Tax

MAGI > $200,000 ($250,000 joint returns)Net Investment Income

Interest & Dividends Annuities Rents & Royalties Profits from LLC / S Corp (if not

employed) Business of trading commodities & fin

instruments Most capital gains

Page 19: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

3.8% Net Investment Income Tax

MAGI > $200,000 ($250,000 joint returns)Income Exempt from Surtax:

Trade / Business income from an LLC, partnership, Subchapter S corporation or sole proprietorship, provided the recipient is employed at the business.

-- “material participation” test (work 500+ hours during the year?) Gain from selling property used in trade/

business [rental property gains -> 3.8% tax]

Page 20: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

3.8% Net Investment Income Tax

MAGI > $200,000 ($250,000 joint returns)Other Income Exempt from 3.8%

Surtax:Income that isn’t interest, rents, gains, etc : Retirement income – social security,

qualified plans: IRAs, 401(k), pensions, etc – (non-qualified annuities are subject to tax)

Wages & self-employment income ( 0.9% tax)

Alimony income Lottery winnings

Page 21: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

INCOME TAX RATES INVEST

WAGES LTCGIncome Level -MENT

(+1.45%) & Divid AGI < $200k/$250k 28%

29.4% 15% AGI > $200k/$250k 33%

34.4% 15% plus health care surtax 3.8% 0.9% 3.8% 36.8% 35.3% 18.8%

Page 22: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

INCOME TAX RATES INVEST

WAGES LTCGIncome Level -MENT

(+1.45%) & Divid AGI < $200k/$250k 28% 29.4%

15% AGI > $200k/$250k 33%

34.4% 15% AGI > $250k/$300k 33%

34.4% 15%

-- 3% phase-out itemized deductions -- Phase-out personal exemptions

Page 23: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

PHASEOUTSAGI > $250,000 ($300,000

joint returns)[2014: > $254,200 ($305,060 joint

returns)] 3% Phase-out Itemized Deductions

-- disguised 1% tax rate hike (3% x 33% rate) Personal and Dependent

Exemptions -- $3,900 apiece for self & each dependent-- lose 2% for every $2,500 income increase-- 100% eliminated AGI > $377k ($427k jnt) (Phase-out $254k-$377k ( $305k-$427k jnt))

Page 24: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

INCOME TAX RATES INVEST

WAGES LTCGIncome Level -MENT

(+1.45%) & Divid AGI < $200k/$250k 28% 29.4%

15% AGI > $250k/$300k 33%

34.4% 15% plus 3% phase-out 1% 1 % 1% plus health care surtax 3.8% 0.9% 3.8% 37.8% 36.3% 19.8%[plus personal exemption phase-out means extra tax until AGI $377,000 ($427,000 jnt)]

Page 25: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

INCOME TAX RATES INVEST

WAGES LTCGIncome Level -MENT

(+1.45%) & Divid AGI < $200k/$250k 28%

29.4% 15% Taxb>$400/$450 39.6%

41.0% 20%

Page 26: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

INCOME TAX RATES INVEST

WAGES LTCGIncome Level -MENT

(+1.45%) & Divid AGI < $200k/$250k 28%

29.4% 15% Taxb>$400/$450 39.6%

41.0% 20% plus 3% phase-out 1% 1 % 1% plus health care surtax 3.8% 0.9% 3.8% With $12,000+ income, 44.4% 42.9% 24.8%Trusts & Estates >> 43.4% 23.8%

Page 27: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

3.8% Net Investment Income Tax

MAGI > $200,000 ($250,000 joint returns)

Two Ways to reduce the 3.8% surtax :

#1 - Reduce AGI to less than $200,000 ($250,000 joint) and/or

#2 – Reduce Net Investment Income

Page 28: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

3.8% Net Investment Income Tax

MAGI > $200,000 ($250,000 joint returns)

Strategies for three different taxpayers:

#1 - Richest 1% - Income over $400,000 -- Reduce NII (not likely to get AGI <200k)

#2 – Taxpayers with AGI near $200k ($250 jt)

-- Either reduce NII or reduce AGI

#3 - Taxpayers with AGI below $200k ($250 jt)

-- Avoid spikes in income that trigger 3.8% tax

Page 29: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Reduce Net Investment Income

Two Ways to reduce Net Investment Income:

#1 - Convert NII into income that isn’t NII #2 – Shift NII to family and to charity that aren’t subject to tax on their NII

Page 30: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Reduce Net Investment Income

Convert NII into Income That Isn’t NIISome examples:

#1 - Taxable interest to tax-free muni interest

#2 – Life insurance

#3 – Work 500+ hours at business

#4 – Monster-size Roth IRA Conversions

Page 31: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Reduce Net Investment Income

Shift NII to Family/Charity who pay no 3.8% tax [note: trusts do pay 3.8%]

Family: Give income-generating investmentsCharity: #1 – Make gifts of appreciated stock#2 - Donor advised funds & private foundations

#3 – Charitable lead trusts

Page 32: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

#1 – MAKE GIFTSOF APPRECIATED STOCK

DOUBLE-TAX ADVANTAGE Charitable Income Tax

Deduction for the Full Appreciated Value of the Stock

Never Pay Income Tax on the Growth of the Value of the Stock

Loss Property? Sell for tax loss; give cash

Page 33: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

DOUBLE BENEFIT FROM GIFT OF APPRECIATED

L.T.C.G. PROPERTY

<< AVOID LONG-TERM CAPITAL GAIN TAX

<< CHARITABLE INCOME TAX DEDUCTION

Page 34: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

$ Benefits Max Federal Taxes Saved

Person in 2012

50%

<< 15%* LTCG Tax Rate

<< 35% Marginal Tax Rate

* 25% RE Dep Recap * 28% Collectibles

Page 35: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

IMPACT OF INDIVIDUAL INCOME TAX

RATE CHANGES in 2012 and 2013-14

Page 36: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

FUTURE INCOME TAX RATES

Highest tax rates 2012 2013-14

Investment income 35% 44.4%

Earned income 36.4% 43.0%

(wages – 1.45% health) LT Capital Gains 15%

24.8%

Page 37: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

$ Benefits Max Federal Taxes Saved

Person in the Year 201250%

<< 15%* LTCG Tax Rate

<< 35% Marginal Tax Rate

* 25% RE Dep Recap * 28% Collectibles

Page 38: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

$ Benefits Max Federal Taxes Saved

Person in the Year 201465.4%

<< 24.8%* LTCG Tax Rate

<< 39.6*% Marginal Tax Rate(3.8% surtax not avoided by charitable deduction)

* 29.8% RE Dep Recap * 32.8% Collectibles

Page 39: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Reduce Net Investment Income

Shift investment income to charity: #1 – Make gifts of appreciated stock

#2 - Donor advised funds & private foundations#3 – Charitable lead trusts

Page 40: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

DONOR ADVISED FUNDS

Administrative Convenience – split large gift to many charities-- anonymous gifts possible with DAFs-- one receipt from DAF/PF instead of many CWAs from many charities

Page 41: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Shift Net Investment Income

Client with $400,000+ of income says:• “My $100,000 investment produces

$4,000 of taxable income every year”

• “I give $4,000 to charity every year”

• “I want to make a charitable bequest of $100,000”

Page 42: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Shift Net Investment Income

Client with $400,000+ of income says:• “My $100,000 investment produces $4,000 of taxable income

every year”• “I give $4,000 to charity every year”

SOLUTION: LIFETIME GIFT OF $100,000 TO PF or DAF; Shift income• Lifetime income tax deduction produces

refund; better than just estate tax bequest• Investment income of PF/DAF not subject

to 3.8% NII surtax• Tip: Make gift to DAF of appreciated stock

Page 43: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Reduce Net Investment Income

Shift NII to Family/Charity who pay no 3.8% tax [note: trusts do pay 3.8%]

Family: Give income-generating investmentsCharity: #1 – Make gifts of appreciated stock#2 - Donor advised funds & private foundations

#3 – Charitable lead trusts

Page 44: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Shift Net Investment Income

Client with $400,000+ of income says:• “My $100,000 investment produces

$4,000 of taxable income every year”

• “I give $3,000 to charity every year”• “I don’t want a charitable bequest

of $100k. Want $100k to go to family.”

Page 45: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Shift Net Investment Income

Client with $400,000+ of income says:• “My $100,000 investment produces $4,000

of taxable income every year”• “I give away $3,000 to charity every year”• “I want family to get the $100,000 investment”

CONCEPT: Put $100,000 into a Charitable Lead Trust for a term of years. Whereas donor is paying 3.8% NIIT on all 4%, the CLT would pay only on undistributed 1%. [ PLUS: CLT discount on wealth transfer ]

Page 46: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Reduce Net Investment Income

Shift NII to Family/Charity who pay no 3.8% tax [note: trusts do pay 3.8%]

#1 – Donate appreciated stock#2 - Donor advised funds & private foundations#3 – Charitable lead trusts

COST/BENEFIT – Is administrative cost of PF or CLT worth doing just for 3.8% tax savings? Other benefits are needed. ( Compare: DAF cheap!)

Page 47: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Taxpayers with AGI Near $200,000

Two Ways to reduce the 3.8% surtax :

#1 - Reduce Net Investment Income (convert NII or shift NII) and/or

#2 – Reduce AGI to less than $200,000 ($250,000 joint)

Page 48: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Taxpayers with AGI Near $200,000 and with lots of Net Investment Income

Reduce AGI to less than $200k ($250 jnt)

• Reduce NII (see strategies listed earlier)

• Avoid large Roth IRA conversions• Maximize compensation deferral -- 401(k) contributions -- Non-qualified deferred comp (Sec. 409A)• “Charitable IRA Rollover”

Page 49: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Taxpayers with AGI Near $200,000

”Charitable IRA Rollover” - over age 70 ½

• “QCD” – Qualified Charitable Distribution• Have charitable gift made directly from

IRA to charity (max: $100,000 /year)• QCD distribution not counted as income

(Price? No itemized charitable deduction)• QCD can satisfy annual RMD

Page 50: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

REQUIRED MINIMUM DISTRIBUTIONS*LIFETIME DISTRIBUTIONS*

Age of Account OwnerRequired Payout

70 1/2 3.65%

75 4.37%

80 5.35%

85 6.76%

90 8.75%

95 11.63%

100 15.88%

Page 51: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Taxpayers with AGI Near $200,000 and

with lots of Net Investment Income”Charitable IRA Rollover” - over age

70 ½

71 year old professional• $150,000 compensation income• $50,000 net investment income• This year: first RMD from IRA: $40,000• Intends to make charitable gift:

$30,000

Page 52: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Taxpayers with AGI Near $200,000

”Charitable IRA Rollover” - over age 70 ½

Compensation $150,000Investment 50,000IRA RMD 40,000 << IRA income AGI $240,000 not subject to 3.8% tax

Page 53: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Taxpayers with AGI Near $200,000

”Charitable IRA Rollover” - over age 70 ½

Normal GiftCompensation $150,000Investment 50,000 IRA RMD 40,000 AGI $240,000 << 3.8% surtaxTaxable Income $210,000 on $40,000

Page 54: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Taxpayers with AGI Near $200,000

”Charitable IRA Rollover” - over age 70 ½

Normal Gift IRA GiftCompensation $150,000 $150,000Investment 50,000 50,000IRA RMD 40,000 10,000AGI $240,000 $210,0003.8% surtax on: $40,000 $10,000

Page 55: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

Will Law Be Extended to 2014?

>Planning strategy for 2014

if, as in 2008, 2010 & 2012, law has not been extended until December!:

Give RMD to charity; can’t lose ! (Some IRAs balk)

(May 29, 2014 – House Ways & Means Cmmtee voted to make retroactive &

permanent !)

Page 56: CHARITABLE PLANNING FOR UPPER-INCOME DONORS PRINTING SUGGESTIONS: If you want to print out these slides, may I suggest: #1 – AVOID PRINTING THE DARK BACKGROUND.

3.8% Net Investment Income Tax

MAGI > $200,000 ($250,000 joint returns)

Strategies for three different taxpayers:

#1 - Richest 1% - Income over $400,000 -- Need to reduce NII (won’t have AGI <200k) #2 – Taxpayers with AGI near $200k ($250 jt) -- Either reduce NII or reduce AGI

#3 - Taxpayers with AGI below $200k ($250 jt)

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Retirement Assets

Proposal to liquidate inherited IRAs in just five years

Impact on planning

charitable bequests

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THREE STAGES OF A RETIREMENT ACCOUNT

Accumulate Wealth

Retirement Withdrawals

Distributions After Death

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Accumulate WealthTax deduction at contribution

Accumulate in tax-exempt trust

Taxed upon distribution = Tax Deferred Compensation

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TYPES OF QRPs

1. Sec. 401 – Company plans

2. Sec. 408 – IRAs -- SEP & SIMPLE IRAs

3. Sec. 403(b) & 457–Charities

4. Roth IRAs & 401(k)/403(b)

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Roth IRA, Roth 401(k), or Roth

403(b)INVERSE OF TRADITIONAL:

No tax deduction at contribution

Accumulate in tax-exempt trust

Not taxed upon distribution

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THREE STAGES

Accumulate Wealth

Retirement Withdrawals

Distributions After Death

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RETIREMENT

TAXATIONGeneral Rule – Ordinary income

Exceptions: -- Tax-free return of capital-- NUA for appreciated employer stock

-- Roth distributions are tax-free

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USUAL OBJECTIVE: Defer paying income taxes in order to get greater cash flow

Principal 10% Yield

Pre-Tax Amount $ 100,000 $ 10,000

Income Tax on Distribution (40%) 40,000

Amount Left to Invest $ 60,000 $ 6,000

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REQUIRED MINIMUM DISTRIBUTION (“RMD”)

BACKGROUND: 50% penalty if not

receive distribution from IRA, 401(k), etc:

#1 – lifetime distributions from own IRA:

beginning after age 70 ½#2 – an inherited IRA, 401(k),

etc – beginning year after

death *

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REQUIRED MINIMUM DISTRIBUTIONS

*LIFETIME DISTRIBUTIONS*

Age of Account OwnerRequired Payout

70 1/2 3.65%

75 4.37%

80 5.35%

85 6.76%

90 8.75%

95 11.63%

100 15.88%

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ADVANTAGES OF ROTH IRAs

Unlike a regular IRA, no mandatory lifetime distributions from a

Roth IRA after age 70 ½

Yes, there are mandatory distributions after death

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THREE STAGES

Accumulate Wealth

Retirement Withdrawals

Distributions After Death

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Distributions After Death

Income taxation Mandatory ERISA

distributions Estate taxation Asset Protection – Clark v.

Rameker

Collision of multiple laws at death

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Inherited IRAs -- Bankruptcy

US Supreme Court: Inherited IRAs are not “retirement funds” entitled to Sec. 522 bankruptcy exemption under federal or state exemption laws. Clark, et ux v. Rameker, 573 U. S. __ (Jun, 12, 2014)

Solution: Name trust with spendthrift provisions as beneficiary of an IRA or other qualified plan ?

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Distributions After Death

> Income taxation> Mandatory ERISA distributions> Estate taxation

Collision of three tax worlds at death

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INCOME IN RESPECT OF A DECEDENT - “IRD” – Sec.

691 No stepped up basis for

retirement assets After death, payments are

income in respect of a decedent (“IRD”) to the beneficiaries

Common mistake in the past: children liquidate inherited retirement accounts.

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Distributions After Death

> Income taxation> Mandatory ERISA distributions> Estate taxation

Collision of three tax worlds at death

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Distributions After Death

After death, must start liquidating account• Tax planning for family members who inherit: DEFER distributions as long as possible – greater tax savings• “Stretch IRA” – make payments over beneficiary’s life expectancy

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Distributions After Death

“ life expectancy“Oversimplified: Half of population will die before that age, and half will die after

Implication: For the 50% of people who live beyond L.E. date, an inherited IRA will be empty before they die.

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REQUIRED MINIMUM DISTRIBUTIONS

*LIFE EXPECTANCY TABLE*

Age of Beneficiary Life Expectancy

30 83 53.3 more years

40 83 43.6 50 84 34.2 60 85 25.2 70 87 17.0

80 90 10.2

90 97 6.9

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REQUIRED MIN. DISTRIBUTIONS

*LIFE EXPECTANCY TABLE*“STRETCH IRAS”

Age of Beneficiary Life Expectancy

30 53.3 more years

40 43.6 50 34.2 60 25.2 70 17.0 80 10.2

90 6.9

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REQUIRED MIN. DISTRIBUTIONS

*LIFE EXPECTANCY TABLE*“STRETCH IRAS”

Age of Beneficiary Life Expectancy

30 1.9% 53.3 more years

40 2.3% 43.6 50 2.9% 34.2 60 4.0% 25.2 70 5.9% 17.0 80 10.0% 10.2

90 14.5% 6.9

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SENATE PROPOSAL: LIQUIDATE ALL

INHERITED IRAs IN FIVE YEARS

2012 – Highway Bill – not enacted President Obama budget proposal June, 2014 – Sen. Wyden adds to

Highway BillEXCEPTIONS -- Spouse -- minor child -- disabled -- Person not more than ten years

younger

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REQUIRED MINIMUM DISTRIBUTIONS

Example: Death at age 80?CURRENT LAW: *Life Expectancy

Table*Age of Beneficiary Life

Expectancy 30 1.9% 53.3

more years 40 2.3% 43.6 50 2.9% 34.2 60 4.0% 25.2 70 5.9% 17.0 80 10.0% 10.2

90 10.0% 6.9 * [10.2 yrs]

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REQUIRED MINIMUM DISTRIBUTIONS

Example: Death at age 80?PROPOSED: FIVE YEARS if >10 yrs

youngerAge of Beneficiary Life

Expectancy 30 5 years 40 5 50 5 60 5 70 5.9% 17.0 80 10.0% 10.2

90 10.00% 6.9 * [10.2 yrs]

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SENATE PROPOSAL: LIQUIDATE ALL

INHERITED IRAs IN FIVE YEARSEXCEPTIONS

-- Spouse -- minor child -- disabled

-- Person not more than ten years younger

TAX TRAP: Does naming a trust for a spouse (e.g., QTIP trust; credit shelter trust) as an IRA beneficiary mean required liquidation in 5 years?

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SENATE PROPOSAL: LIQUIDATE ALL INHERITED IRAs IN FIVE

YEARSIMPLICATIONS FOR CHARITIES

Donors more likely to considerOutright bequestsRetirement assets to tax-

exempt CRT Child: income more than 5 years;

then charity Spouse only (marital estate tax

deduction) Spouse & children (no marital

deduction)

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FUNDING CRTs WITH

RETIREMENT ASSETS

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2-GENERATION CHARITABLE REMAINDER

TRUSTTypically pays 5% to elderly

surviving spouse for life, then 5% to children for life, then liquidates to charity

Like an IRA, a CRT is exempt from income tax

Can operate like a credit-shelter trust for IRD assets [no marital deduction]

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2-GENERATION CHARITABLE REMAINDER

TRUSTCan be a solution for second marriages when estate is top-heavy with retirement assets. Example:

-- Half of IRA to surviving spouse

-- Other half of IRA to a CRT for 2nd

spouse and children from 1st marriage

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2-GENERATION CHARITABLE REMAINDER

TRUSTTECHNICAL REQUIREMENTS Minimum 10% charitable

deduction -- all children should be over

age 40 CRUT – minimum 5% annual

distrib Not eligible for marital

deduction (see 2002 article on topic)

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MANDATORY DISTRIBUTIONS[Assume inherit IRA at age 80

and die at 92]

Own Accumulation ConduitAGE IRA Trust Trust .

C R T .

80 5.35% 9.80% 9.80% 5.00%

85 6.76% 19.23% 13.16%

5.00%

90 8.78% 100.00% 18.18% 5.00%

91 9.26% empty 19.23% 5.00%

92 9.81% empty 20.41% 5.00%

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HOW TO LEAVE A RETIREMENT ACCOUNT TO

BOTH FAMILY & CHARITY

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CHARITABLE BEQUESTS FROM QRPs

Best type of bequest: taxable income !

Easier than formality of a will: Name charity as beneficiary on form of plan

-- no need for attorney to draft

-- no need for witnesses, etc.

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“You can’t make a charitable bequest unless

you have a will”

Wrong. A retirement plan is a trust with its own beneficiary designations. Like other trusts, assets can pass outside probate.

Name a charity as a beneficiary - the cheapest “charitable

remainder trust”

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LIFETIME GIFTS: ONLY IRAs

BEQUESTS: ANY QRP1. Sec. 401 – Company plans

2. Sec. 408 – IRAs -- SEP & SIMPLE IRAs

3. Sec. 403(b) & 457–Charities

4. Roth IRAs & 401(k)/403(b)

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Avoiding Problems With

Charitable Bequests* Let Other

Beneficiaries Have Stretch IRA

*Keep IRD Off of Estate’s Income Tax Return

* Guarantee Offsetting Charitable Income Tax Deduction if Have to Report Income

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REQUIRED MIN. DISTRIBUTIONS

*LIFE EXPECTANCY TABLE*“STRETCH IRAS”

Age of Beneficiary Life Expectancy

30 53.3 more years

40 43.6 50 34.2 60 25.2 70 17.0 80 10.2

90 6.9

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Avoiding Problems With

Charitable Bequests* Let Other Beneficiaries Have

Stretch IRA

*Keep IRD Off of Estate’s Income Tax Return

* Guarantee Offsetting Charitable Income Tax Deduction if Have to Report Income

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WHAT CAN GO WRONG ?

TWO WAYS TO MAKE A CHARITABLE BEQUEST FROM A RETIREMENT ACCOUNT

#1 – NAME CHARITY AS BENEFICIARY OF THE ACCOUNT

#2 – PAY ACCOUNT TO ESTATE OR TRUST THAT THEN MAKES A CHARITABLE BEQUEST

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Avoiding Problems With

Charitable Bequests* Let Other

Beneficiaries Have Stretch IRA

*Keep IRD Off of Estate’s Income Tax Return

* Guarantee Offsetting Charitable Income Tax Deduction if Have to Report Income

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WHAT CAN GO WRONG #1?

• Other beneficiaries cannot do stretch IRA if charity is beneficiary?

• Solutions: * cash out charity’s share

by Sept 30 or * separate account for

charity p. 39

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WHAT CAN GO WRONG #2 ?

TWO WAYS TO MAKE A CHARITABLE BEQUEST FROM A RETIREMENT ACCOUNT

#1 – NAME CHARITY AS BENEFICIARY OF THE ACCOUNT

#2 – PAY ACCOUNT TO ESTATE OR TRUST THAT THEN MAKES A CHARITABLE BEQUEST

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WHAT CAN GO WRONG #2?

Estate or trust has taxable income from receiving IRA distribution, but maybe there is no offsetting charitable income tax deduction when the IRA check is given to a charity.

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WHAT CAN GO WRONG? IRS Chief Counsel Memorandum ILM

200848020 Decedent left his IRA to a trust that

benefited his six children and several charities

Trust received cash from IRA; paid entire charitable share, leaving the six children as the only remaining beneficiaries of the trust.

IRS: “Taxable income from IRA, but no charitable deduction.” Reason: trust had no instructions to pay income to charities p.39

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WHAT CAN GO WRONG?

Solution #1 – Keep IRD off of estate’s/trust’s income tax return

a. Name charity as beneficiary of IRA

b. “Distribute” IRA to charity if document allows Caution: IRS memo on danger

of using retirement accounts to satisfy

pecuniary bequests p.41

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WHAT CAN GO WRONG?

SOLUTION #2 – draft document to get an offsetting charitable income tax deduction in case estate or trust has income

I instruct that all of my charitable gifts, bequests and devises shall be made, to the extent possible, from "income in respect of a decedent" ….. P.42

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CHARITABLE PLANNING FOR UPPER-INCOME

DONORS

Advancement Network2014 Annual Conference

Cleveland, Ohio -- October 18, 2014

CHRISTOPHER R. HOYTUniversity of Missouri - Kansas City

School of Law