Every year the Internal Revenue Service updates its list of topics on which it will: (1) not issue rulings, (2) ordinarily not issue rulings, and (3) not issue rulings because the issue is under extensive study. Rev. Proc. 2015-3, 2015-1 IRB 129 (Jan. 2, 2015).
The items on this year’s list of particular interest to charities and their donors advisers are —
Topics on which IRS won’t rule:
• Internal Revenue Code Section 102—Gifts and Inheritances. Whether a transfer is a gift within the meaning of IRC Section102(a).
• IRC Section 170—Charitable, etc., Contributions and Gifts. Whether a charitable contribution deduction under IRC Section 170 is allowed for a transfer of an interest in a limited partnership or a limited liability company taxed as a partnership to an organization described in IRC Section 170(c).
• IRC Section 170—Charitable, etc., Contributions and Gifts. Whether a taxpayer who advances funds to a charitable organization and receives a promissory note may deduct as contributions, in one taxable year or in each of several years, amounts forgiven by the taxpayer in each of several years by endorsement on the note.
• IRC Sections 507, 664, 4941 and 4945—Termination of Private Foundation Status; Charitable Remainder Trusts; Taxes on Self-Dealing; Taxes on Taxable Expenditures. Issues pertaining to the tax consequences of the termination of a charitable remainder trust (as defined in IRC Section 664) before the end of the trust term as defined in the trust’s governing instrument in a transaction in which the trust beneficiaries receive their actuarial shares of the value of the trust assets.
• IRC Sections 511, 512, 513 and 514—Imposition of Tax on Unrelated Business Income of Charitable, etc., Organizations; Unrelated Business Taxable Income; Unrelated Trade or Business; Unrelated Debt-Financed Income. Whether unrelated business income tax issues arise when charitable lead trust assets are invested with charitable organizations.
• IRC Section 641—Imposition of Tax. Whether the period of administration or settlement of an estate or a trust (other than a trust described in IRC Section 664) is reasonable or unduly prolonged.
• IRC Section642(c)—Deduction for Amounts Paid or Permanently Set Aside for a Charitable Purpose. Allowance of an unlimited deduction for amounts set aside by a trust or estate for charitable purposes when there is a possibility that the corpus of the trust or estate may be invaded.
• IRC Section 664—Charitable Remainder Trusts. Whether the settlement of a charitable remainder trust upon the termination of the non-charitable interest is made within a reasonable period of time.
• IRC Section 1001—Determination of Amount of and Recognition of Gain or Loss. Whether the termination of a charitable remainder trust before the end of the trust term as defined in the trust’s governing instrument, in a transaction in which the trust beneficiaries receive their actuarial shares of the value of the trust assets, is treated as a sale or other disposition by the beneficiaries of their interests in the trust.
• IRC Section 1221—Capital Asset Defined. Whether the termination of a charitable remainder trust before the end of the trust term as defined in the trust’s governing instrument, in a transaction in which the trust beneficiaries receive their actuarial shares of the value of the trust assets, is treated as a sale or exchange of a capital asset by the beneficiaries.
• IRC Section 2031—Definition of Gross Estate. Actuarial factors for valuing interests in the prospective gross estate of a living person.
• IRC Section 2055—Transfers for Public, Charitable, and Religious Uses. Whether a charitable contribution deduction under IRC Section 2055 is allowed for the transfer of an interest in a limited partnership or a limited liability company taxed as a partnership to an organization described in IRC Section 2055(a).
• IRC Section 2512—Valuation of Gifts. Actuarial factors for valuing prospective or hypothetical gifts of a donor.
• IRC Section 2522—Charitable and Similar Gifts. Whether a charitable contribution deduction under IRC Section 2522 is allowable for a transfer of an interest in a limited partnership or a limited liability company taxed as a partnership to an organization described in IRC Section 2522(a).
Topics on which IRS ordinarily won’t rule:
• IRC Section 170—Charitable, etc., Contributions and Gifts. Whether a transfer to a pooled income fund described in IRC Section 642(c)(5) qualifies for a charitable contribution deduction under IRC Section 170(f)(2)(A).
• IRC Section 170—Charitable, etc., Contributions and Gifts. Whether a transfer to a charitable remainder trust described in IRC Section 664 that provides for annuity or unitrust payments for one or two measuring lives qualifies for a charitable deduction under IRC Section 170(f)(2)(A).
• IRC Section 170—Charitable, etc., Contributions and Gifts. Whether a taxpayer who transfers property to a charitable organization and thereafter leases back all or a portion of the transferred property may deduct the fair market value of the property transferred and leased back as a charitable contribution.
• IRC Section 642—Special Rules for Credits and Deductions; Pooled Income Fund. Whether a pooled income fund satisfies the requirements described in IRC Section 642(c)(5).
• IRC Section 664—Charitable Remainder Trusts. Whether a charitable remainder trust that provides for annuity or unitrust payments for one or two measuring lives or for annuity or unitrust payments for a term of years satisfies the requirements described in IRC Section 664.
• IRC Section 664—Charitable Remainder Trusts. Whether a trust that will calculate the unitrust amount under IRC Section 664(d)(3)—a net-income-with-makeup trust (NIMCRUT)—qualifies as an IRC Section 664 charitable remainder trust when a grantor, a trustee, a beneficiary, or a person related or subordinate to a grantor, a trustee, or a beneficiary can control the timing of the trust’s receipt of trust income from a partnership or a deferred annuity contract to take advantage of the difference between trust income under IRC Section 643(b) and income for Federal income tax purposes for the benefit of the unitrust recipient.
• Sections 2035, 2036, 2037, 2038 and 2042—Adjustments for Certain Gifts Made Within Three Years of Decedent’s Death; Transfers with Retained Life Estate; Transfers Taking Effect at Death; Revocable Transfers; Proceeds of Life Insurance. Whether trust assets are includable in a trust beneficiary’s gross estate under Sections 2035, 2036, 2037, 2038 or 2042 if the beneficiary sells property (including insurance policies) to the trust or dies within 3 years of selling such property to the trust, and (i) the beneficiary has a power to withdraw the trust property (or had such power prior to a release or modification, but retains other powers which would cause that person to be the owner if the person were the grantor), other than a power which would constitute a general power of appointment within the meaning of Section 2041, (ii) the trust purchases the property with a note, and (iii) the value of the assets with which the trust was funded by the grantor is nominal compared to the value of the property purchased.
• IRC Section 2055—Transfers for Public, Charitable, and Religious Uses. Whether a transfer to a pooled income fund described in IRC Section 642(c)(5) qualifies for a charitable deduction under IRC Section 2055(e)(2)(A).
• IRC Section 2055—Transfers for Public, Charitable, and Religious Uses. Whether a transfer to a charitable remainder trust described in IRC Section 664 that provides for annuity or unitrust payments for one or two measuring lives or a term of years qualifies for a charitable deduction under IRC Section 2055(e)(2)(A).
• IRC Section 2522—Charitable and Similar Gifts. Whether a transfer to a pooled income fund described in IRC Section 642(c)(5) qualifies for a charitable deduction under IRC Section 2522(c)(2)(A).
• IRC Section 2522—Charitable and Similar Gifts. Whether a transfer to a charitable remainder trust described in IRC Section 664 that provides for annuity or unitrust payments for one or two measuring lives or a term of years qualifies for a charitable deduction under IRC Section 2522(c)(2)(A).
Lexicon time. What’s the difference between will “not ordinarily” rule and won’t rule because the issue is “under study”?
The IRS says “not ordinarily” means that unique and compelling reasons must be demonstrated to justify the issuance of a ruling or determination letter.
The category “temporarily not issuing” because “under study” seems to offer more hope than “ordinarily won’t rule." Still, being on the "ordinarily won’t rule" list is better than being on yet another list—“will not” rule.
© Conrad Teitell 2015. This is not intended as legal, tax, financial or other advice. So, check with your adviser on how the rules apply to you.
