Constitutional Challenges to State Income Taxation of TrustsConstitutional Challenges to State Income Taxation of Trusts

One of the first questions asked by a client creating a trust is, “Where should I form my trust?” but rarely does the client fully understand the question … or the answer. Clients may care about the state where a trust is administered or the laws of the state that govern the trust, but they’re most likely to care about the state where the trust is taxed or the tax situs of the trust. The administrative situs of a trust, or “where the trust lives,” could impact the laws that govern the trust, its validity and whether it’s subject to state income taxation. They’re not, however, one and the same.

To determine the tax situs of a trust, one must first determine whether the trust is a grantor or non-grantor trust. A grantor trust is a trust ove...