iconoclast, demystifyier, thought leader
The Jack Straw Fortnightly newsletter analyzes current developments in the law -- both tax and nontax -- concerning the transfer of private wealth in this country -- with something of an emphasis on issues affecting charitable gift planning, and with something of a contrarian take on what the eponymous "Jack" would call the "trade" or "craft."
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volume 4, number 1 - 12 January 2021
| volume_four_number_one.pdf |
IRS finally relegates INGs to category five "no rule" list, pending study and possible formal guidance. The Supreme Court grants cert in two related California donor disclosure cases. Cares Act charitable incentives extended through 2021. Syndicated easement promoters plead guilty to felony conspiracy charges. Chief Counsel says no deduction for premiums on "insurance" against disallowance of deduction for conservation easement.
| 116hr133sa-rcp-116-68_division_e_sections_101_to_124.pdf |
| 116hr133sa-rcp-116-68_division_ee_sections_212_and_213.pdf |
| rpte_comment_letter_re_ir-2007-127.pdf |
| nysba_tax_section_report_1134.pdf |
| rev._rul._77-158.pdf |
| rev._rul._76-503.pdf |
| agee_information.pdf |
| zak_special_master_report.pdf |
volume 3, number 9 - 16 December 2020
| volume_three_number_nine.pdf |
Cert again denied as another state court says a QTIP remainder is taxable in the estate of a resident decedent, though the predeceased spouse had made the election elsewhere. Fairbairn under submission after a virtual bench trial. Not yet clear whether IRS is taking an appeal in Dickinson. The 7520 rate recovers slightly. And SOI data confirms the hollowing out of the middle.
| fairbairn_fidelity_trial_brief_091120.pdf |
| fairbairn_pltf_trial_brief_unredacted.pdf |
| fairbairn_motion_in_limine_5.pdf |
| fairbairn_oppose_in_limine_5.pdf |
| fairbairn_further_oppose_in_limine_5.pdf |
| fairbairn_supplemental_in_limine_5.pdf |
| fairbairn_fidelity_posttrial_brief_111820.pdf |
volume 3, number 8 - 23 November 2020
| volume_three_number_eight.pdf |
Back from a very long break. Something of a long form discussion of the Tax Court memo decision in Dickinson, which may portend closer IRS scrutiny of prearranged sales of contributed property. Another letter ruling allowing the interposition of a single member LLC to deflect what would otherwise be an act of self-dealing. A legislative proposal to defeat the strategy of using an ING to remove tax situs to a zero tax state. And cross-appeals filed in Oakbrook Land Holdings, one of several syndicated easement cases decided on an "improvements" clause.
| rr-77-275.pdf |
| rev_rul_78-197.pdf |
| dickinson_petr_memo_support.pdf |
| dickinson_resp_objection.pdf |
| dickinson_resp_motion_partial.pdf |
| dickinson_petr_objection.pdf |
volume 3, number 7 - 17 July 2020
| volume_three_number_seven.pdf |
A direct challenge to the eleven-factor facts and circumstances test for (c)(4) exempt status. A strategy to "trap" realized gains inside a charitable remainder annuity trust comes under scrutiny. We are one step closer to appellate review of the question whether an "improvements" clause should kill a conservation easement deduction. And the 7520 rate approaches zero.
| freedom_path_complaint_20-1349.pdf |
| rp-97-23.pdf |
volume 3, number 6 - 08 June 2020
| volume_three_number_six.pdf |
Dark money regs finalized, 9th Circuit says estate tax inclusion if settlor predeceases term of GRAT not limited to present value of unexpired term, and IRS says an exchange with a nongrantor trust that triggers "grantor" trust status is itself a nonrecognition event.
| badgley_sj_motion.pdf |
| badgley_17-cv-00877.pdf |
| badgley_opening_brief.pdf |
| badgley_response_brief.pdf |
| badgley_reply_brief.pdf |
| badgley_rehearing.pdf |
| yoder_grat.pdf |
| rr_76-273.pdf |
| rr_82-105.pdf |
| rr_85-13.pdf |
| rr_92-84.pdf |
volume 3, number 5 - 20 May 2020
| volume_three_number_five.pdf |
We have proposed regs clarifying the treatment of excess deductions on termination of an estate or trust in the hands of distributees. A divided Tax Court validates a regulation requiring that the donee of a conservation or facade easement participate "proportionately" in the proceeds of an extinguishment, and an interpretation of that reg forbidding compensation to the transferor for improvements.
Also, more rumination on nuances in the "unlimited" deduction for cash contributions to (b)(1)(A) charities in 2020. The ACGA makes another downward adjustment to its recommended maximum gift annuity rates. And the 7520 rate hits yet another new low.
Also, more rumination on nuances in the "unlimited" deduction for cash contributions to (b)(1)(A) charities in 2020. The ACGA makes another downward adjustment to its recommended maximum gift annuity rates. And the 7520 rate hits yet another new low.
| 2204_and_2205.pdf |
| motion_leave_to_amend.pdf |
| motion_relief_discovery_orders.pdf |
| lechter_v._aprio_complaint.pdf |
volume 3, number 4 - 05 May 2020
| volume_three_number_four.pdf |
The Missouri state supreme court gets it wrong in a case they should have dismissed. IRS cuts a deal with Panera Cares. In yet another ING ruling, the pretense is dropped. And the 7520 rate falls through the floor.
| ali-cle_excerpt.pdf |
| draft_042213_cover.pdf |
| 4128h01.01h.pdf |
| listserv_posting_re_draft_amendment.pdf |
volume 3, number 3 - 08 April 2020
| volume_three_number_three.pdf |
Some subtleties in the charitable incentives included in the third round of COVID-19 stimulus, another batch of ING rulings, the disallowance of operating expenses for cannabis dispensaries, and more.
| fairbairn_order_030220.pdf |
| fairbairn_order_112818.pdf |
| fairbairn_complaint_081018.pdf |
volume 3, number 2 - 25 February 2020
| volume_three_number_two.pdf |
Another batch of ING rulings, another Tax Court decision on noncompliance with the substantiation regs, and a drop in the 7520 rate.
| 12-04171-pbs-142.pdf |
volume 3, number 1 - 06 February 2020
| volume_three_number_one.pdf |
In the annual update to its "no rule" list, IRS takes half a step back on INGs and draws a line on split-interest trusts for which no deductions have been claimed. The Tax Court says flatly you cannot have "substantial compliance" with the substantiation regs unless you disclose your adjusted basis on Form 8283. And a couple other small items.
volume 2, number 15 - 31 December 2019
| volume_two_number_fifteen.pdf |
A brief discussion of the interaction between the repeal of the age limit on making deductible contributions to an IRA and the charitable IRA "rollover." An update on the recent Tax Court decision disallowing altogether a deduction for a conservation easement that included an "improvements" clause. A closer look at a recent letter ruling approving the reformation of a nonqualified testamentary CRUT.
| rr_02-20.pdf |
volume 2, number 14 - 02 December 2019
| volume_two_number_fourteen.pdf |
A somewhat lengthy discussion of a sketchy tax strategy involving the transfer of nonvoting units in an LLC to a donor advised fund, and then some. Also a few quick takes on other recent developments -- we have final regs on "clawback," the Tax Court disallows a nine-digit deduction for a conservation easement because of an "improvements" clause, and more.
| rr-81-282.pdf |
| 106srpt54_pp_27-32.pdf |
| crpt-106srpt201_pp_41-46.pdf |
| crpt-106hrpt478_pp_167-171.pdf |
| amended_complaint_meyer.pdf |
| stipulation_meyer.pdf |
| judgment_meyer.pdf |
| magistrate_report_meyer.pdf |
| motion_to_vacate_meyer.pdf |
volume 2, number 13 - 09 October 2019
| volume_two_number_thirteen.pdf |
The 7520 rate continues to trend down. Connecticut enacts a version of the uniform trust code, but takes the occasion to allow self-settled spendthrift trusts and to extend the "wait and see" period under the statutory rule against perpetuities to eight hundred years.
IRS again allows the modification of a pre-1985 trust in a marginal case. The chief counsel weighs in on valuing the remainder interest in a GRAT funded with publicly traded stock on the eve of a merger announcement.
IRS again allows the modification of a pre-1985 trust in a marginal case. The chief counsel weighs in on valuing the remainder interest in a GRAT funded with publicly traded stock on the eve of a merger announcement.
| rev._rul._59-60.pdf |
volume 2, number 12 - 16 September 2019
| volume_two_number_twelve.pdf |
Rather than continue to defend the rev. proc., the Treasury and IRS have issued proposed regs that would relieve orgs other than (c)(3)s of the obligation to identify substantial contributors. And a notice relieving from penalties anyone who had relied on the rev. proc. in the meantime.
Jack offers his usual two cents.
Americans for Prosperity has filed its petition for cert from the 9th Circuit decision rejecting their challenge on First Amendment grounds to the California state requirement that they disclose substantial contributors.
And Berea College says the proposed regs implementing the excise tax on endowment funds would improperly characterize their students as "tuition-paying," possibly subjecting the college to the tax.
Jack offers his usual two cents.
Americans for Prosperity has filed its petition for cert from the 9th Circuit decision rejecting their challenge on First Amendment grounds to the California state requirement that they disclose substantial contributors.
And Berea College says the proposed regs implementing the excise tax on endowment funds would improperly characterize their students as "tuition-paying," possibly subjecting the college to the tax.
volume 2, number 11 - 14 August 2019
| volume_two_number_eleven.pdf |
A federal court has invalidated the rev. proc. relieving (c)(4)s of the obligation to identify substantial contributors. The ABA Taxation Law section asks for formal guidance allowing late allocations of the temporarily increased exemption from generation-skipping transfer taxes to pre-2018 transfers. And we go deep into the weeds on the "total return" pooled income fund.
| bullock_order_073019.pdf |
| james_grewal_sj_memo_072919.pdf |
| rev._proc._88-53.pdf |
volume 2, number 10 - 26 July 2019
| volume_two_number_ten.pdf |
The "stretch" IRA is not dead yet, even if something like the House bill passes both chambers. We have proposed regs on the 1.4 pct. excise tax on income from endowments held by a handful of private colleges and universities. Three states and a village sue to invalidate the recently finalized regs targeting SALT cap workarounds. And the 7520 rate continues to drop.
| 19-6642_complaint_071719.pdf |
| 19-6654_complaint_071719.pdf |
volume 2, number 9 - 25 June 2019
| volume_two_number_nine.pdf |
The decision in Kaestner Trust is limited to a small subset of its facts. We have final regs on SALT cap workarounds. And Nina Olson says IRS is failing to do the necessary screening on "streamlined" exemption applications.
volume 2, number 8 - 29 May 2019
| volume_two_number_eight.pdf |
We have a result in RERI Holdings, we have more pushback against Rev. Proc. 2018-38, and we have another letter ruling to pick apart.
| joint_letter.pdf |
| bullock_v._irs_first_amended.pdf |
| reply_brief_sj_motion_bullock.pdf |
volume 2, number 7 - 14 May 2019
| volume_two_number_seven.pdf |
A pair of letter rulings allowing a trust beneficiary with a limited appointment power to escape estate tax inclusion of insurance on her life. A lawsuit to force the Treasury and IRS to explain their thinking in allowing (c)(4)s not to disclose their major contributors. And a couple of state court decisions. What is not to like.
| rr_95-58.pdf |
| rr_84-179.pdf |
| rr_73-142.pdf |
volume 2, number 6 - 30 April 2019
| volume_two_number_six.pdf |
A brief recap of oral argument in Kaestner Trust, a questionable decision from an intermediate appellate court in New York, another call for priority guidance projects, and the continuing downward trend of the 7520 rate.
volume 2, number 5 - 15 April 2019
| volume_two_number_five.pdf |
The petitioner has filed its reply brief filed in Kaestner Trust, and we have oral argument tomorrow. The foundation that operated the Panera Cares "pay what you can" cafes is fighting the revocation of its exempt status in the Tax Court. And the Senate Finance Committee leadership has joined the fray on syndicated conservation easements.
| panera_petition_5198-19-x.pdf |
| panera_examiners_report_886-a.pdf |
| panera_form_1023.pdf |
| panera_determination_letter_1045.pdf |
| panera_foundation_990_for_calendar_2012.pdf |
| panera_foundation_financials_2011-2012.pdf |
| oppose_zak_motion_dismiss.pdf |
| oppose_clark_motion_dismiss.pdf |
| reply_ecovest_response_motion_to_strike.pdf |
volume 2, number 4 - 01 April 2019
| volume_two_number_four.pdf |
Another batch of ING rulings, including one with a new wrinkle, and IRS maybe gets it wrong. A lengthy footnote on Kaestner Trust, and some other bits and pieces.
| trust_instrument.pdf |
| bernstein_affidavit.pdf |
| explanation_of_changes_new_york.pdf |
| zak_et_al_complaint.pdf |
| answer_ecovest.pdf |
| motion_to_strike_affirmative_defenses.pdf |
| zak_motion_dismiss.pdf |
| clark_motion_dismiss.pdf |
| ecovest_response_to_motion_to_strike.pdf |
volume 2, number 3 - 18 March 2019
| volume_two_number_three.pdf |
The 9th Circuit decision in Estate of Dieringer "accomplishes a rough justice, but it cannot serve as a coherent precedent." Also, another letter ruling elevating form over substance, some comments submitted on whether excess deductions on termination are "miscellaneous itemized," a downward trend in the 7520 rate, and more.
| e-mail_to_parillo.pdf |
| desoto_chancery_judgment_amended.pdf |
volume 2, number 2 - 05 March 2019
| volume_two_number_two.pdf |
In which we open a can of worms. In light of the recently finalized substantiation regs, do we need to completely rethink how we document the value of the deductible remainder in a charitable remainder trust?
volume 2, number 1 - 16 February 2019
| volume_two_number_one.pdf |
Back on track after the partial shutdown.
A quick glance at some items that have come down during the hiatus, a preview of items we are planning to cover in upcoming issues, and a long form piece on an appeal pending in the Arizona courts from the dismissal of a claim against a decedent's estate.
A quick glance at some items that have come down during the hiatus, a preview of items we are planning to cover in upcoming issues, and a long form piece on an appeal pending in the Arizona courts from the dismissal of a claim against a decedent's estate.
| order_granting_summary_judgment.pdf |
| goddard_letter_061515.pdf |
| kirven_letter_071515.pdf |
| hiatt_affidavit.pdf |
| divorce_decree.pdf |
| divorce_settlement.pdf |
| obituary.pdf |
| decedents_will.pdf |
| stipulation_for_distribution.pdf |
| opening_brief.pdf |
| opening_brief.pdf |
| response_brief.pdf |
| reply_brief.pdf |
| petition_for_review.pdf |
| response_to_petition_for_review.pdf |
volume 1, number 12
| volume_one_number_twelve.pdf |
When might a QTIP remainder not be taxable by the state in which the surviving spouse resides.
volume 1, number 11
| volume_one_number_eleven.pdf |
Somewhat ahead of schedule, because.
volume 1, number 10
| volume_one_number_ten.pdf |
Three short items. What a fortnightly should be.
The Tax Court says the holder under even a very long-term lease cannot claim a facade easement deduction. The chief counsel suggests maybe holding off processing a refund claim premised on portability of the predeceased spouse's unused exclusion amount until after dealing with a request for 9100 relief to allow a late QTIP election as to a portion of the underlying trust. IRS actually denies a request for a set-aside pending litigation, where neither party had asked the court to impose a freeze.
The Tax Court says the holder under even a very long-term lease cannot claim a facade easement deduction. The chief counsel suggests maybe holding off processing a refund claim premised on portability of the predeceased spouse's unused exclusion amount until after dealing with a request for 9100 relief to allow a late QTIP election as to a portion of the underlying trust. IRS actually denies a request for a set-aside pending litigation, where neither party had asked the court to impose a freeze.
volume 1, number 9
| volume_one_number_nine.pdf |
Odds and ends collected over the past few weeks.
A notice saying deductions under section 67(e) are not subject to the suspension of miscellaneous itemized deduction, but asking for comment on whether excess deductions on termination should be. A rev. proc. saying (c)(4)s need no longer report the identities of their substantial contributors, despite language in the regs to the contrary. A letter ruling approving the disclaimer by an appointee under a pre-1977 limited power, and another answering only in part the question whether unspecified transactions that might occur in settlement of the remainder of a QTIP trust distributable entirely to a private foundation would constitute self-dealing.
And briefing is complete in RERI Holdings.
A notice saying deductions under section 67(e) are not subject to the suspension of miscellaneous itemized deduction, but asking for comment on whether excess deductions on termination should be. A rev. proc. saying (c)(4)s need no longer report the identities of their substantial contributors, despite language in the regs to the contrary. A letter ruling approving the disclaimer by an appointee under a pre-1977 limited power, and another answering only in part the question whether unspecified transactions that might occur in settlement of the remainder of a QTIP trust distributable entirely to a private foundation would constitute self-dealing.
And briefing is complete in RERI Holdings.
| response_brief_reri.pdf |
| reply_brief_reri.pdf |
volume 1, number 8
| volume_one_number_eight.pdf |
The best laid plans. I had intended to write up the decision in Sveen v. Melin, but something came up.
The Greystocke Project has scored a modest victory, securing an opinion from the Arizona attorney general to the effect that statutes enacted some years back, one allowing a trust to continue indefinitely if the trustee has a power of sale, and another extending the "wait and see" period to five hundred years, "likely" violate the state's constitutional prohibition of legislation "permitting any perpetuity or entailment."
The Greystocke Project has scored a modest victory, securing an opinion from the Arizona attorney general to the effect that statutes enacted some years back, one allowing a trust to continue indefinitely if the trustee has a power of sale, and another extending the "wait and see" period to five hundred years, "likely" violate the state's constitutional prohibition of legislation "permitting any perpetuity or entailment."
volume 1, number 7
| volume_one_number_seven.pdf |
Pour yourself a cup of joe and let's read through a few private letter rulings together.
An incomplete gift of a remainder interest in artwork -- or is it a completed gift? -- to museums overseas. Transitioning a non-functionally integrated Type 3 supporting org to private foundation status. And modifiiying a pre-1985 trust to convert the "income" payout to a straight unitrust with an ordering rule: does shifting the incidence of tax on realized gains to the "income" beneficiary shift a benefit to a lower generation?
An incomplete gift of a remainder interest in artwork -- or is it a completed gift? -- to museums overseas. Transitioning a non-functionally integrated Type 3 supporting org to private foundation status. And modifiiying a pre-1985 trust to convert the "income" payout to a straight unitrust with an ordering rule: does shifting the incidence of tax on realized gains to the "income" beneficiary shift a benefit to a lower generation?
volume 1, number 6
| volume_one_number_six.pdf |
With issue six, we test the limits of the asterisk signifying "or occasional." A sort of mixed bag here of IRS notices, state legislation, oral argument on an appeal from the Tax Court, and the new ACGA rates. It's good to be back.
| section_11051.pdf |
| crpt-115hrpt-_466_excerpt.pdf |
| majority_summary_excerpt.pdf |
| hc_16_page_9.pdf |
volume 1, number 5
| volume_one_number_five.pdf |
In issue five, we take a break from the long form essay for a couple of shorter pieces, one analyzing a pair of recent letter rulings dealing with the consequences of the misreporting of split gifts to trusts with skip potential, and another briefly discussing a recent Tax Court decision disallowing on what might be seen as a technicality a claimed deduction for the contribution of a conservation easement.
| opening_brief_reri.pdf |
| e-mail_to_committee_re_sb_311_hearing_032818.pdf |
| e-mail_to_french_re_sb_311_consent_calendar_report.pdf |
volume 1, number 4
| volume_one_number_four.pdf |
In issue four, we discuss the recent settlements in five federal lawsuits arising from IRS' use of "inappropriate criteria" to select several hundred applications for exempt status -- mostly from (c)(4) advocacy orgs -- for "heightened scrutiny" to ascertain whether these might be engaged more than insubstantially in political activity. The Justice Department says we are done, but there are still, shall we say, a couple of loose ends.
| amended_complaint_z_street.pdf |
| z_street_application_122809.pdf |
| response_to_ltr_1312.pdf |
| gentry_affidavit.pdf |
| waddell_affidavit.pdf |
| memo_opposing_motion_to_dismiss.pdf |
| memo_not_moot.pdf |
| memo_supporting_motion_to_dismiss.pdf |
| proposed_consent_order.pdf |
| modified_consent_order.pdf |
| linchpins_of_liberty_consent_order_102717.pdf |
| true_the_vote_consent_order_012118.pdf |
| freedom_path_070717.pdf |
| freedom_path_112817.pdf |
| norcal_class_certified.pdf |
| norcal_motion_protective_order.pdf |
| norcal_order_051817.pdf |
| norcal_summary_judgment_motion_memo.pdf |
| norcal_motion_to_seal.pdf |
| norcal_enquirer_motion_to_unseal.pdf |
| norcal_amicus_ohio.pdf |
| norcal_amicus_judicial_watch.pdf |
| lerner_e-mail_to_ingram_012210.pdf |
| lerner_e-mail_to_paterson_110212.pdf |
volume 1, number 3
| volume_one_number_three.pdf |
In the third issue, we look at the Craig Trust controversy now pending argument before the New Hampshire supreme court, and at an eleventh-hour effort to control the outcome through legislation. SB 311 would "clarify" a 2004 statute importing the rules of construction applicable to wills into the trust code, by carving out the pretermitted heirs statute.
| interlocutory_transfer_order.pdf |
| opening_brief_craig.pdf |
| response_brief_craig.pdf |
| reply_brief_craig.pdf |
| amicus_brief_craig.pdf |
| 012104_hearing_hb1224.pdf |
| 041304_hearing_hb1224.pdf |
| 010918_hearing_sb311.pdf |
| sc_7_page_2.pdf |
volume 1, number 2
| volume_one_number_two.pdf |
In the second issue, we examine the decision of the 10th Circuit federal appeals court in Green v. United States, No. 16-6371, reversing an Oklahoma district court that had allowed a trust an income tax charitable deduction under section 642(c) at fair market value for a contribution of appreciated property that had been purchased, it was said, from prior years' income. Copies of the trial court decision and of the briefs on appeal are posted here as well, together with excerpts of the record on appeal discussed in the newsletter.
| 01237_doc_48.pdf |
| green_opening_brief.pdf |
| green_response_brief.pdf |
| green_reply_brief.pdf |
| green_surreply.pdf |
| explanation.pdf |
| 8283s.pdf |
| driskill_memo.pdf |
volume 1, number 1
| volume_one_number_one.pdf |
The first issue, posted here, focuses on the decision of the New Hampshire supreme court in Hodges v. Johnson, No. 2016-0130 (12/12/17), affirming the result, if not the rationale, of a probate court order setting aside a series of purported decantings from two irrevocable trusts and removing the co-trustees. Copies of the trial court decision and of the briefs on appeal are posted here as well, together with the motion for rehearing and the objection to that motion.
| trial_court_order_hodges.pdf |
| opening_brief_hodges.pdf |
| response_brief_hodges.pdf |
| reply_brief_hodges.pdf |
| amicus_brief_hodges.pdf |
| motion_for_rehearing_hodges.pdf |
| objection_to_motion_for_rehearing_hodges.pdf |
| motion_for_leave_to_reply_to_objection_hodges.pdf |
| objection_to_motion_for_leave_to_reply_hodges.pdf |
| rehearing_denied_hodges.pdf |
| morse_v._kraft_466_mass._92__2013_.pdf |