IRS Rules Favorably On Income, Gift And Estate Tax by xeg10270

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Counsel                                                           AALU
Buchanan Ingersoll & Rooney PC   PricewaterhouseCoopers           David J. Stertzer, Chief Executive Officer
Gerald H. Sherman                William Archer                   Tom Korb, Vice President of Policy & Public Affairs
Stuart M. Lewis                  Donald Carlson                   Marc R. Cadin, Vice President of Legislative Affairs
Deborah M. Beers                                                  Sarah Spear, Director of Policy & Public Affairs
Keith A. Mong                    Ricchetti, Inc.                  Anthony Raglani, Asst. Dir. of Policy & Public Affairs
                                 Steve Ricchetti
                                 Jeff Ricchetti

Federal Policy Group             Sutherland Asbill & Brennan LLP 2901 Telestar Court, Falls Church, Virginia 22042
Ken Kies                         Stephen E. Roth                 Toll Free: 1-888-275-0092 Fax: 703-641-8119
Matthew Dolan                    Eric A. Arnold                  www.aalu.org


AALU Bulletin No: 09-76                                                            June 26, 2009
Subject: IRS Rules Favorably On Income, Gift And Estate Tax
             Consequences Of Pre-2002 (Grandfathered) Split-Dollar
             Agreement Between Trust And Partnership
Major References: PLR 200925003

Prior AALU Washington Reports: 09-04; 08-107; 08-47; 03-95

MDRT Information Retrieval Index Nos.: 2500.00; 7400.021; 7400.022; 7400.024

                       SEE THE CIRCULAR 230 DISCLAIMERS APPENDED TO
                        THE CONCLUSION OF THIS WASHINGTON REPORT.

                The Revenue Service has ruled, in a private letter ruling (PLR 200925003), that
        the payment of premiums by a life insurance trust (Trust) and a partnership
        (Partnership) under a pre-final regulations (grandfathered) collateral assignment non-
        equity split-dollar life insurance agreement (the Agreement) is neither income to, nor
        gifts by, the grantor, and that any policy proceeds payable to Trust is not included in
        the grantor's (Taxpayer's) gross estate.


       On Date 1, Taxpayer established Trust for the benefit of his issue. On Date 2, which is stated to be
pre-2002, Trust purchased an insurance policy on Taxpayer’s life. Trust was designated the policy's owner
and beneficiary. Also on Date 2, Trust and Partnership entered into the Agreement.

       Partnership is a limited liability limited partnership with two general partners, including a
corporation of which Taxpayer is the sole shareholder. Under the Agreement, as owner of the policy, Trust
may exercise all ownership rights, except the rights of the Partnership as collateral assignee. These Trust-
exercisable rights include the right to borrow against the cash value of the policy.
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        Pursuant to the Agreement, Partnership will pay all of the policy premiums and Trust is obligated to
repay Partnership that portion of the annual premiums equal to the lesser of: (1) the applicable amount
provided in the P.S. 58 tables set forth in Rev. Rul. 55-747, 1955-2 C.B. 228 (or the tables and rates as may
be in use under applicable treasury regulations for the date on which the determination is made); or (2) the
insurance carrier's rate for one-year renewable term insurance. Upon the death of Taxpayer, the Agreement
terminates and Partnership is to receive a portion of the proceeds of the policy equal to the greater of
premiums paid (less any Partnership loans against the policy) or cash surrender value (reduced by any
Partnership loans against the policy), i.e., the Agreement is a non-equity arrangement. Trust is designated
beneficiary of the balance of the insurance proceeds.

        Prior to the death of Taxpayer, the Agreement may be terminated unilaterally by Partnership or
Trust. The Agreement will also terminate upon the dissolution or bankruptcy of Partnership. Within 30 days
of termination, Trust is to pay Partnership the cash value of the Policy (reduced by any Partnership loans
against the policy).

       Taxpayer represented that the Agreement has not been modified in any manner since Date 2, and
that Taxpayer will dispose of his interest in the general partner of Partnership.

       On these facts, the Revenue Service ruled as follows:

      Ruling (1):      The payment of premiums by Trust and Partnership pursuant to the Agreement is not
income to, or a gift by, Taxpayer.

       With respect to the first issue, the Revenue Service noted that, since the Agreement was entered into
on a date that was prior to 2002, Taxpayer, pursuant to Notice 2002-8, Part III., may, to the extent provided
by Rev. Rul. 66-110, as amplified by Rev. Rul. 67-154 (and pending the issuance of future guidance),
continue to determine the value of current life insurance protection by using the insurer's lower published
premium rates that are available to all standard risks for initial issue one-year term insurance.

        The Service also cited Notice 2002-8, Part IV.2, which provides that, for split-dollar life insurance
arrangements entered into before the date of publication of final regulations (September 17, 2003) - see our
Bulletin No. 03-95 - , in cases where the value of current life insurance protection is treated as an economic
benefit provided by a sponsor to a benefited person under a split-dollar life insurance arrangement, the
Service will not treat the arrangement as having been terminated (and thus will not assert that there has
been a transfer of property to the benefited person by reason of termination of the arrangement) for so long
as the parties to the arrangement continue to treat and report the value of the life insurance protection as an
economic benefit provided to the benefited person.

        The taxation of the split-dollar life insurance arrangement between Trust and Partnership is not
subject to the final split-dollar regulations because the Agreement was entered into on or before September
17, 2003 and, as represented by Taxpayer, has not been materially modified after that date. Instead, the
taxation of the arrangement is determined under prior law, including Rev. Rul. 64-328 and Rev. Rul. 66-
110.

        Therefore, because, under the terms of the Agreement, Trust will pay the portion of the premium
equal to the cost of current life insurance protection, Partnership will pay the balance of the premium, and
Partnership will be entitled to receive an amount equal to the greater of premiums paid or cash surrender
value at the death of Taxpayer, the payment of the premiums by Partnership under the terms of the
Agreement, will not result in income to, or gifts by Taxpayer, provided that the amounts paid by Trust for
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the life insurance benefit that Trust receives under the Agreement is at least equal to the amount prescribed
under Rev. Rul. 64-328, Rev. Rul. 66-110, and Notice 2002-8.

        The Service made the caveat, however, that, if some or all of the cash surrender value is used (either
directly, or indirectly through loans) to fund the Trust's obligation to pay premiums, Partnership (i.e., the
partners) will be treated as making a gift at that time.

        Ruling (2):   Any policy proceeds that are payable to Trust will not be included in Taxpayer's
gross estate under Revenue Code section 2042(2).

         That Section provides the value of a decedent's gross estate shall include the proceeds of all life
insurance policies on the decedent's life receivable by beneficiaries other than the executor of the decedent's
estate, to the extent that the decedent possessed at his death any incidents of ownership exercisable either
alone or in conjunction with any other person.

        Applicable Treasury Regulations provide that "incidents of ownership" is not limited in its meaning
to ownership of a policy in the technical legal sense. Generally, the term has reference to the right of the
insured or his estate to the economic benefits of the policy. Thus, it includes power to change the
beneficiary, to surrender or cancel the policy, to assign the policy, to revoke an assignment, to pledge the
policy for a loan, or to obtain from the insurer a loan against the surrender value of the policy.

       Without further discussion, the Service concluded that since Taxpayer will dispose of his interest in
the general partner of Partnership, the proceeds of the policy payable to the Trust will not be included in
Taxpayer’s estate under section 2042(2). We note, however, that if Taxpayer retains any interest in
Partnership, even as a limited partner, his estate will be increased by the portion of the cash value (or
premiums, if greater) of the policy that is receivable by the Partnership on his death.

       PLR 200925003 may be the first ruling on a grandfathered split-dollar arrangement that addresses
the arrangement's income tax aspects. Previous rulings have considered the gift and estate tax
consequences. (See, e.g., PLRs 200851013, 200848002 and 200822003, discussed in our Bulletins Nos.
09-04, 08-107, and 08-47.)

        Any AALU member who wishes to obtain a copy of any of PLR 200925003 may do so through the
following means: (1) use hyperlink above next to “Major References,” (2) log onto the AALU website at
www.aalu.org and enter the Member Portal with your last name and birth date and select Current Washington
Report for linkage to source material or (3) email Anthony Raglani at raglani@aalu.org and include a
reference to this Washington Report.

 In order to comply with requirements imposed by the IRS which may apply to the Washington Report as
             distributed or as re-circulated by our members, please be advised of the following:

 THE ABOVE ADVICE WAS NOT INTENDED OR WRITTEN TO BE USED, AND IT CANNOT
  BE USED, BY YOU FOR THE PURPOSES OF AVOIDING ANY PENALTY THAT MAY BE
                IMPOSED BY THE INTERNAL REVENUE SERVICE.

In the event that this Washington Report is also considered to be a “marketed opinion” within the meaning
       of the IRS guidance, then, as required by the IRS, please be further advised of the following:

     THE ABOVE ADVICE WAS NOT WRITTEN TO SUPPORT THE PROMOTIONS OR
   MARKETING OF THE TRANSACTIONS OR MATTERS ADDRESSED BY THE WRITTEN
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ADVICE, AND, BASED ON THE PARTICULAR CIRCUMSTANCES, YOU SHOULD SEEK
               ADVICE FROM AN INDEPENDENT TAX ADVISOR.




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