The problem is how do you determine whether a trust materially participates ? Well, you look at what the trustee does. So make sure the trustee is one of the officers of the company, which in a family business is pretty likely anyway, and you are all set right ? Not so fast according to the IRS’ Associate Area Counsel who authored TAM 201317010.
The companies involved in the ruling were making money, but the passive activity rules were relevant because of an AMT gotcha, that references the passive activity loss rules. In computing alternative minimum taxable income, research and development costs have to be capitalized and amortized over ten years if you are not materially participating in the activities. I don’t think it is that common for trusts to own several different S corporations, so it would take something like this to make the rules relevant. Of course, for 2013 there will be the 3.8% ObamaCare tax, which will apply to a lot of trusts.
The President of the company was a special trustee and had the following powers:
he Special Trustee shall control the following activities relating to Company X and Company Y common stock owned by any trust created hereunder: all decisions regarding the sale or retention of such stock and all voting of such stock.
The trust maintained that the time that the President, who was the trustee, spent running the company constituted material participation by the trust. The IRS does not see it that way:
Thus, the sole means for Trust A and Trust B to establish material participation in the relevant activities of Company X and Company Y is if the fiduciaries, in their capacities as fiduciaries, are involved in the operations of the relevant activities of Company X and Company Y on a regular, continuous, and substantial basis.
The work performed by A was as an employee of Company Y and not in A ‘s role as a fiduciary of Trust A or Trust B and, therefore, does not count for purposes of determining whether Trust A and Trust B materially participated in the trade or business activities of Company X and Company Y under § 469(h). A ‘s time spent serving as Special Trustee voting the stock of Company X or Company Y or considering sales of stock in either company would count for purposes of determining the Trusts’ material participation. However, in this case, A ‘s time spent performing those specific functions does not rise to the level of being “regular, continuous, and substantial” within the meaning of § 469(h)(1).
I really have a hard time seeing how you will ever be able to get a trust to be considered to be materially participating in an S corporation, if this is the logic that is followed. Technical advice memoranda (TAMs) are not authoritative. This particular ruling came out of an internal request for guidance from exams, so it can be seen as an indication that the IRS will be taking a tough stand.
Another Gotcha To Watch Out For
I suspect that a lot of practitioners are thinking that much of the ObamaCare problem will be solved by trusts holding S stock flowing all income to beneficiaries for whom the tax does not kick in until a higher income level. If that is what you are thinking, be sure to study how “accounting income” differs from taxable income in the case of flow through entities. If the S corporation does not distribute all its income to the trust shareholders, which then distribute to beneficiaries, taxable income may be trapped at the trust level.
It is going to be an interesting year.
You can follow me on twitter @peterreillycpa.