By Steven J. Oshins, Esq., AEP (Distinguished)

State income tax avoidance planning has become a necessary area of expertise for all estate planners. After all, how can an estate planner design a trust without first analyzing the income tax effects of selecting residents of different states as trustees?

The 8th Annual Non-Grantor Trust State Income Tax Chart

The 8th Annual Non-Grantor Trust State Income Tax Chart is a summary of the state income tax rules for non-grantor trusts and highest state income tax rate from state to state.  It simplifies the analysis by summarizing each state’s taxing rules and providing a hyperlink to the applicable taxing statutes.  The Chart was created not only to be a resource to practitioners and clients, but also to create opportunities for them.

Different states have different rules as to what creates a “resident trust” that is subject to taxation in that state.  States may tax a trust based on the residency of the settlor or testator, based on whether there is a resident trustee or beneficiary or whether there is administration in that state, or for a combination of these factors and/or other similar factors.

So it isn’t as easy as simply situsing a trust in a state with no state income tax.  You have to look at the state taxing statutes that may apply.

The Tax Drag

The “tax drag” is the amount by which investment returns are reduced due to taxes.  The opportunity to move a non-grantor trust to a jurisdiction where state income tax can be avoided often makes a substantial impact on the value of the trust’s underlying assets. By avoiding the tax drag inherent in a trust that is subject to state income tax, the trust grows in value much faster.

This planning opportunity is very well-known to many advisors, but yet it appears to be underused by most and should be considered whenever any trust is being planned and created and whenever an advisor is reviewing an existing trust to look for opportunities to help the client.

$10,000 State and Local Tax Deduction (“SALT Deduction”)

The 2017 Tax Cuts and Jobs Act created a new $10,000 limitation on the federal income tax deduction for state and local taxes paid. This hits residents of states with a high state income tax especially hard, thereby making it that much more important for estate planners to understand how and why a non-grantor trust is subjected to a state income tax and how to design new trusts and modify old trusts to avoid or reduce the state income tax hit.

Planning Opportunities

There are various planning options available, including the following:

1. Incomplete Gift Non-Grantor Trust (“ING Trust”) – This is an irrevocable trust in which transfers to the trust are incomplete for gift tax purposes, but complete for income tax purposes. These trusts are generally set up in Nevada or Delaware, however they can be set up in any state that has a Domestic Asset Protection Trust statute and no state fiduciary income tax.
2. Non-Grantor Gift Trust for Descendants – This is an irrevocable trust in which transfers to the trust are complete for gift tax and income tax purposes. These trusts should be set up in a state that has no state fiduciary income tax.
3. Non-Grantor Gift Trust for Spouse and Descendants – This is an irrevocable trust in which transfers to the trust are complete for gift tax and income tax purposes. It is sometimes referred to as a SLANT.  In order to make it a non-grantor trust, it must require an adverse party to approve a distribution to a beneficiary.  These trusts should be set up in a state that has no state fiduciary income tax.
4. Non-Grantor Gift Trust for Settlor, Settlor’s Spouse and Descendants – This is an irrevocable trust in which transfers to the trust are complete for gift tax and income tax purposes. In order to make it a non-grantor trust, it must require an adverse party to approve a distribution to a beneficiary.  Since this trust must qualify as a Domestic Asset Protection Trust, it should be set up in a state that has a Domestic Asset Protection Trust statute.  The state also should not have a state fiduciary income tax.

Conclusion

The Non-Grantor Trust State Income Tax Chart is an easy-to-use summary that should open up opportunities for practitioners to save state income tax for their clients both with newly-created non-grantor trusts and by moving and fixing any existing non-grantor trusts that are needlessly paying state income tax and therefore dragging down the trust’s asset base.  The $10,000 state and local tax deduction limitation magnifies this problem, thereby bringing state income tax planning into the spotlight.

Advisors should be taking advantage of the opportunity to avoid the tax drag inherent in many trusts that accumulate income that is subject to state income tax even if not sourced to that state.  In fact, it is somewhat shocking that this concept isn’t the most talked about concept among the financial planners whose assets under management are ratably affected by this tax drag.

RELATED EDUCATION

If you found this article interesting, you might also be interested in these other educational programs and products by Steve Oshins:

• The Spousal Lifetime Access Trust: A Gifting and Creditor Protection Technique
• Estate Planning Techniques in a Time of Low Interest Rates
• The Installment Sale to an Intentionally Defective Grantor Trust
• The Grantor Retained Annuity Trust: Significant Estate Tax Savings with Nearly Zero Gift Tax Risk
• Steve’s FREE State Rankings Charts

ABOUT THE AUTHOR

Steven J. Oshins, Esq., AEP (Distinguished)  is a member of the Law Offices of Oshins & Associates, LLC in Las Vegas, Nevada. He was inducted into the NAEPC Estate Planning Hall of Fame® in 2011.  He has been named one of the 24 “Elite Estate Planning Attorneys” and the “Top Estate Planning Attorney of 2018” by The Wealth Advisor and one of the Top 100 Attorneys in Worth. He is listed in The Best Lawyers in America® which also named him Las Vegas Trusts and Estates/Tax Law Lawyer of the Year in 2012, 2015, 2016, 2018, 2020 and 2022.  He can be reached at 702-341-6000, ext. 2, at soshins@oshins.com or at his firm’s website, www.oshins.com.