I have only worked on a few FLIP Charitable Remainder Unitrusts (FLIP CRUTs) in my career (at least ones that came to fruition) and all of a sudden in the past few weeks, I am working on one and talking to a former client about another. I don’t think two FLIP CRUT situations makes for a national trend but they both raised really interesting quandaries, stuff to think about in case you ever get to work on one of these.
Just in case you forgot (or never knew), a FLIP CRUT is a charitable remainder unitrust which has two payment periods. The first period is when the trust is funded (most likely with real estate or other not readily marketable assets) before its assets are sold. During this period, the donor receives the lessor of the trust income or the Unitrust percentage (% times the principal). The second period starts on the January 1st in the year following the sale of the assets – the income beneficiaries from that point forward are entitled to typical unitrust payments. There are primarily for real estate or unmarketable assets being put into a CRT.
So why this post? A few interesting questions came up very quickly in both situations that are important for us to be aware of (and to watch out for!). #1 – one of the properties has a business interest (happens to be some sort of agriculture) operating on the property where the current owner’s rent is in some way tied to the production on the property. The donor’s counsel, as well as other counsel, weren’t that concerned but there is a potential problem there.
If the owner of the property looking to put it in the FLIP CRUT has more than a landlord/renter relationship with that farmer, then that farming enterprise income is considered UBI (Unrelated Business Income) to the FLIP CRUT (once it becomes the owner). And, the IRS’s brilliant rule regarding UBI in a CRT is a 100% tax on any UBI in a CRT. In other words, the IRS confiscates any UBI you might have in that trust. Not the end of the world, by the way, but certainly annoying!
Next issue. One of the potential buyers of one of the properties is also buying a business interest from the same donor (separate and apart from the real estate going to fund the FLIP CRUT). The buyer of the business interest wants some sort of legal guarantee on his potential purchase of the property intended for the FLIP CRUT. That is what we call a prearranged sale – a big “no-no” for CRTs. No contractual agreements can be in place with a potential buyer prior to the donor putting the real estate into the FLIP CRUT. Otherwise, the donor is not entitled to his avoidance of capital gains and probably other bad stuff. Not worth testing these waters – don’t engage in any contracts regarding the intended property for a FLIP CRUT prior to the funding of the CRT.
Lastly, one of the situations was in “full-steam ahead” mode because they felt that they had a buyer willing to buy the property next year (not legally bound but enough to give them comfort that the property would be liquidated soon enough). Well, they realized that this particular buyer might actually have trouble being able to buy the property. I always warn donors of the possibility for unforeseen events happening, and having a FLIP CRUT own and manage property for more than a year is certainly something that could happen.
Of course, a CRT being stuck with unmarketable property can be a disaster as eventually the property has to be sold and quite possibly at much less than everyone expected. Never a good thing with donors who may end up blaming the fundraisers who encouraged this gift option. Always spell out the potential negative consequences of any gift like this in advance, and preferably in writing (in a nice way but one that is clear enough that you can pull it out of the file to defend yourself if need be).
While two CRTs coming across my path isn’t so earth shaking, I suspect that people are finaling gaining more comfort with their investments and starting to look for options to avoid capital gains.
Have an interesting gift planning scenario? Please share with us and we will repost (facts altered, of course).