Maurice A.

Deane School of Law at Hofstra University

Scholarly Commons at Hofstra Law
Hofstra Law Faculty Scholarship

Fall 2009

A Beneficiary as Trust Owner: Decoding Section

678
Jonathan G. Blattmachr

Mitchell M. Gans
Maurice A. Deane School of Law at Hofstra University

Alvina H. Lo

Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship

Recommended Citation
Jonathan G. Blattmachr, Mitchell M. Gans, and Alvina H. Lo, A Beneficiary as Trust Owner: Decoding Section 678, 35 ACTEC J. 106
(2009)
Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/525

This Article is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Faculty
Scholarship by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact lawcls@hofstra.edu.
 A Beneficiary as Trust Owner:
Decoding Section 678
by Jonathan G. Blattmachr, New York, New York
Mitchell M. Gans, Hempstead,New York, and
Alvina H. Lo, New York, New York*
Editor's Synopsis: This article explores under is the position of the Internal Revenue Service ("IRS"
what circumstances a person who did not actually or "Service") and at least one court' that the existence
contribute property to a trust can be considered its of a grantor trust is ignored for all income tax purposes.
"owner" for income tax purposes. In particular the
article undertakes a detailedexamination of whether a Some Consequences of Grantor Trusts
non-grantor holding a power to distribute trust prop-
erty to himself or herself subject to an "ascertainable One potentially significant gift, estate and genera-
standard," is properly treated as the trust's owner for tion-skipping transfer tax advantage of a grantor trust
income tax purposes and the extent to which a non- is that the grantor (or a third person other than the
grantor who held an unrestrictedpower of withdrawal grantor treated as a substantial owner) pays the income
that has lapsed may continue to be treated,for income tax on the trust's income which allows the trust assets,
tax purposes, as the owner of the portion of the trust in effect, to grow income tax-free for the benefit of the
with respect to which the power lapsed. trust beneficiaries. Certain empirical studies indicate
that grantor trust status adds more value to a trust
Introduction estate than ordinary market performance or valuation
discounts.'
As a general rule, a trust is a taxpayer separate and In certain circumstances, it may not be possible to
independent of its grantor and its beneficiaries and is make a trust a grantor trust with respect to its grantor
taxed in the same manner as an individual.' There are, (for example, if the grantor has died). In other cases, it
however, certain special rules and limitations to this may be more advantageous for a third person other
taxing regime. One exception is that a trust may be than the grantor to be treated as a substantial owner of
treated as substantially owned, under Section 671 of the trust and to pay the income tax on the trust's
the Internal Revenue Code of 1986, as amended (the income. Section 678 provides the means to make a
"Code" or "I.R.C."), 2 by its grantor (or a third person trust a grantor trust with respect to a third person other
other than the grantor treated as a substantial owner). than the grantor.
To that extent, the income, deductions and credits A grantor trust may provide other income tax
against tax of the trust are attributed for income tax advantages. For instance, if the grantor of a grantor
purposes to its grantor (or a third person other than the trust is a U.S. individual taxpayer, the trust automati-
grantor treated as a substantial owner), essentially as cally qualifies under Section 1361(c)(2)(A)(i) as an
though the trust does not exist or, in other words, as if eligible shareholder of a so-called "S Corporation."
its grantor (or third person) owned the assets of the Nonetheless, grantor trust status may be viewed in
trust. Such a trust is called a "grantor trust." In fact, it some cases as adverse.' Although a trust that is neither

* Copyright 2009 by Jonathan G. Blattmachr, Mitchell M. announced it would not follow Rothstein.
Gans and Alvina H. Lo. All rights reserved. See Jonathan G. Blattmachr et al., Selected Comparisons of
I.R.C. §641(b) directs that "[t]he taxable income of an Selected Estate Tax Reduction Strategies, Presentation at Fall 2007
estate or trust shall be computed in the same manner as in the case Meeting of The American College of Trust and Estate Counsel.
of an individual, except as otherwise provided." I Indeed, the grantor trust rules were long viewed as adverse,
"Section," unless otherwise indicated, refers to a Section. and a grantor trust often was referred to as a "defective" trust. See,
Madorin v. Commissioner, 84 T.C. 667 (1985) (ruling that a e.g., Mitchell M. Gans, Stephanie E. Heilborn and Jonathan G.
grantor should be treated as the owner of partnership interests the Blattmachr, Some Good News About Grantor Trusts: Reiv Rul.
grantor transferred to his grantor trust). But, cf, Rothstein v. Unit- 2004-64, 31 EsT. PLAN. 467, 469 (2004). That term continues to be
ed States., 735 F.2d 704 (2d Cir. 1984) (reaching a contrary posi- in use today. See, e.g., James A. Busse Jr., The Deficit Reduction
tion and ruling that a trust owned by a grantor must be regarded as Act Makes Estate Planning for the Needs of an Ill Spouse and a
a separate taxpayer capable of engaging in sales transaction with Well Spouse More Difficult, 30 Los ANGELES LAWYER 35 (2007).
the grantor). In Rev. Rul. 85-13, 1985-1 C.B. 184, the IRS

35 ACTEC Journal 106 (2009)

a grantor trust nor a tax-exempt trust6 reaches the high- 679. To the extent a trust is a grantor trust, the income,
est federal income tax bracket at a low threshold of deductions and credits of the trust are attributed to the
taxable income ($11,150 for 2009), the trust may face grantor (or to a person other than the grantor treated as
lower income tax on the income it earns than the a substantial owner under Section 678). A trust, in gen-
grantor would.' Also, a trust may be structured, in eral, will be a grantor trust with respect to the grantor in
some cases, to avoid state or local income taxes that any one or more of the following situations: if the
the grantor faces.! In addition, over time, the financial grantor holds a reversionary interest at the time of the
burden of paying tax on the trust's income may trust's creation that is more than 5 percent of the value
become unacceptably high. of the trust estate, 9 if the grantor or a nonadverse person
This Article will provide a brief overview of the as defined in Section 672(a) has the power to determine
grantor trust rules and discuss in some detail Section the beneficial enjoyment of either corpus or income, 0 if
678, which deals with a person other than the grantor the grantor or the grantor's spouse has the power to
being treated as the income tax owner of all or a por- revoke the trust without the consent of an adverse
tion of a trust. Specifically, this Article will explore party," if the grantor or a nonadverse person has the
how an ascertainable standard such as the so-called power to use the trust income for the benefit of the
health, education, maintenance and support standard grantor or the grantor's spouse 2 or if the grantor is a
limits the application of Section 678(a) and whether a United States person defined under I.R.C. §679(a) and
lapse or complete release of a Section 678(b)(1) power the trust is a foreign trust that has one or more United
constitutes a "partial release" or "modification" under States beneficiaries." In addition, a trust may be a
Section 678(b) so that the powerholder thereafter grantor trust with respect to the grantor if the trust
remains the substantial owner of the trust. This Article instrument grants certain administrative powers that are
will also examine the meaning of the exception under viewed as exercisable for the grantor's benefit. 4 These
Section 678(b) when the income, deduction and credits administrative powers include the power to deal with
against tax of a trust are attributed to the grantor under trust assets for less than adequate and full considera-
the grantor trust rules rather than to a third person other tion,'I the power to borrow trust assets without adequate
than the grantor treated as a substantial owner under interest and security,'" actual borrowing of trust assets
Section 678(a) and what happens when the Section without adequate interest or security and repayment
678(b) exception no longer applies because the grantor during the taxable year 7 and certain administrative
is no longer the owner under the grantor trust rules. powers exercisable in a nonfiduciary capacity." The
foregoing are general rules only. The grantor trust rules
Overview of Grantor Trust Rules and Section 678 are complex, and reference to the Treasury Department
regulations that have been promulgated and other
Under Section 671, a trust is treated as a grantor authority and commentary that deal with them must be
trust for federal income tax purposes if it falls under cir- consulted to determine the scope and application of the
cumstances described in one or more of Sections 673- grantor trust rules.19

6 Certain trusts, including a charitable remainder trust 13I.R.C. §679.

described in Section 664(b), except to the extent of its unrelated " I.R.C. §675.
business income, are exempt from tax. Also, a foreign trust, 5 I.R.C. §675(l).
described in I.R.C. §7701(a)(31)(B), is exempt from United States 6 I.R.C. §675(2).
income tax on non-U.S. source income although adverse income I.R.C. §675(3).
tax consequences may arise with respect to contributions to and I.R.C. §675(4).
distributions from such trusts. See I.R.C. §§684 and 668. For example, although I.R.C. §677(a)(3) expressly provides
7 There are at least two reasons why a trust may face lower that a trust will be a grantor trust if the trustee (without the consent
income tax on the income it earns than the grantor would: (1) the of any adverse party) may use assets of the trust to pay premiums
taxable income may be below the threshold at which a trust reach- on a policy of insurance on the life of the grantor or the grantor's
es the highest tax bracket; and (2) the grantor may be subject to spouse, case law suggests that I.R.C. §677(a)(3) will apply only if
state and local tax where the trust is not. the policies are in existence during the year. Further, it seems like-
' See, e.g., NY CLS Tax §605(b)(3) (an irrevocable non- ly that there must be some suggestion by the grantor that income be
grantor trust is not subject to New York income tax if the trust has so used. However, this does not seem necessary if income is actu-
no New York trustee, no New York source income and no New York ally so used. Jonathan G. Blattmachr and F. Ladson Boyle, Income
situs asset, even if its grantor was a New Yorker). Taxation of Estates and Trusts (Practicing Law Institute 2007) at
* I.R.C. §673. §4:5.4 (footnote with citations omitted). See generally Leo L.
Io
1.R.C. §674. Schmolka, Selected Aspects of the GrantorTrust Rules, 9 INST. ON
" I.R.C. §676. EsT. PLAN. 1400 (1975).
2 I.R.C. §677.

35 ACTEC Journal 107 (2009)

 Beneficiary Treated as "Owner" or "Grantor" of appointment over the trust income or corpus or a so-
called "Crummey power."23
A trust also may be a grantor trust with respect to Section 678(b) provides an exception to the gener-
a person who is not a grantor of the trust. Under Sec- al rules described above. The person with the with-
tion 678(a), a person other than the grantor may be drawal power is not to be treated as the owner of the
treated as the owner of the whole or a portion of the trust income if the grantor of the trust is otherwise
trust if: (a) such person has the power, exercisable treated as the owner of that income under the other
solely by himself or herself, to vest the corpus or grantor trust rules of Sections 673-677 or 679.24 A
income in himself or herself;20 or (b) he or she has plain reading of subsection (b) implies that, if a third
"partially released or otherwise modified such a person holds a power over the trust principal, Section
power" so that, if the control were retained by the 678(b) would not apply, and therefore the person with
grantor, the grantor would be treated as the owner of the withdrawal power would be taxed as owner of the
the trust under the principles of Sections 671-677.21 trust. The key reconciling this seeming inconsistency
For example, assume a child has the unilateral right to between Section 678(b) treatment of a power over
withdraw all property in a trust created under the will income and a power over principal seems to be in the
of the child's deceased parent. This unilateral power definition of the word "income" (which will be dis-
of withdrawal triggers Section 678(a) causing the cussed later in this Article). Section 678(c) provides
child to be treated as the trust's owner for purposes of another exception where a third person, in his or her
Section 671 so that the income, deductions and credits capacity as trustee or co-trustee, will not be treated as
against tax of the trust are attributed directly to the the owner of the trust if he or she has the power mere-
child. Two years later, the child partially releases the ly to apply the income of the trust to the support or
power. If the trustee (a person other than the child), maintenance of a person whom such third person is
without consent of any adverse party, may distribute obligated to support or maintain, except to the extent
the income and corpus to the child and because such a that such income is so applied.2 5
power to distribute income and corpus to the grantor
would cause the trust to be a grantor trust with respect Section 678(a) and Ascertainable Standards
to the grantor under Sections 676 and 677, it remains a
grantor trust with respect to the child. As discussed above, Section 678(a)(1) provides
Section 678 was added to the tax law as a result of that "a person other than the grantor shall be treated as
the decision in Mallinckrodt v. Commissioner22 by the the owner of any portion of a trust with respect to
United States Court of Appeals for the Eighth Circuit. which such person has a power exercisable solely by
In that case, the grantor created a trust for the benefit himself to vest the corpus or income therefrom in him-
of a beneficiary and the beneficiary's family. The trust self." The question is to what extent Section 678(a)(1)
instrument provided that the trustees were to distribute applies if the person's withdrawal power is subject to
trust income to the beneficiary upon his request. The limitations such as an ascertainable standard.
Eighth Circuit held that, because the beneficiary could For both income and transfer tax purposes, the
essentially direct the timing and amount of distribu- type of control that a court is permitted to exercise
tion of income from the trust, the beneficiary had the over a discretionary act undertaken by a trustee or ben-
equivalent of ownership of the trust income for pur- eficiary can be critical. Depending on the context, it
poses of taxation and should be taxed as the owner of may be necessary for the discretionary act to be sub-
the trust. Some common examples of a Mallinckrodt ject to different types of state court control in order to
power would be a beneficiary holding a general power achieve the desired outcome.

I.R.C. §678(a)(1). Trusts, at A-9 thru A-18; Diana S.C. Zeydel, How to Create and
1 I.R.C. §675(a)(2). Note that I.R.C. §679 is not mentioned Administer a Successful Irrevocable Life Insurance Trust, 34 EsT.
in I.R.C. §678(a) but is mentioned in I.R.C. §678(b). PLAN. 3, 10-13 (2007).
22 Mallinckrodt v. Commissioner, 146 F.2d I (8th Cir. 1945). 2 I.R.C. §678(b) which states, "Subsection (a) shall not apply

Although the grantor trust rules were added to the Internal Revenue with respect to a power over income, as originally granted or there-
Code in 1954, the Treasury Regulations were promulgated under after modified, if the grantor of the trust or a transferor (to whom
the Internal Revenue Code of 1939. See 1939 Treas. Reg. §111, I.R.C. §679 applies) is otherwise treated as the owner under the
§29.22(a)-21. The Treasury Regulations were codified into the provisions of this subpart other than this Section."
Internal Revenue Code of 1954 with little change. ' I.R.C. §678(c). This provision should be compared with
" See Crummey v. Commissioner, 397 F.2d 82 (9th Cir. Treas. Reg. § 1.662(a)(4) which would attribute a distribution of
1968). See generally Georgiana J. Slade, Personal Life Insurance income of a non-grantor trust to a person whose support obligation
Trusts, Portfolio 807 Tax Management (BNA) Estates, Gifts, and is satisfied by the distribution.

35 ACTEC Journal 108 (2009)

 There are, in essence, five categories of cases. holder's grantor trust under Section 678. As a result,
First, the governing instrument of the trust may give the powerholder is in effect deemed to own the trust's
the beneficiary the right to withdraw assets from the assets outright, making all of the trust's income direct-
trust for certain purposes but make the judgment of the ly taxable to the powerholder. Absent this power, the
beneficiary conclusive.26 Where the instrument takes trust would ordinarily be respected as a separate entity
this form, the court is precluded from exercising any for income tax purposes and therefore taxable on its
supervisory control regarding withdrawals.27 Second, income, subject to subchapter J's pass-through regime.'
while the instrument may give the trustee extraordi- This ownership-equivalence concept makes sense.
narily broad discretion without imposing any standard After all, it would elevate form over substance to treat
to guide the trustee's decision making, it may nonethe- a powerholder with such an unfettered right to with-
less have the effect of giving the court the authority to draw trust assets differently. Indeed, when Congress
review any exercise of discretion to make sure that it enacted Section 678, codifying the famous Mallinck-
does not violate any type of mandatory fiduciary duty rodt decision,32 it explicitly made unrestricted or unfet-
that may not be waived in the trust instrument, such as tered access the touchstone for triggering grantor trust
the duty to act in good faith. Third, the instrument status under Section 678.11
may impose a standard designed to constrain the In the second category of cases, where the power-
trustee's discretion. When a so-called ascertainable holder has unlimited discretion but the court nonethe-
standard is used, a court has the authority to hold the less has some supervisory authority, the ownership-
trustee accountable for any decision that deviates from equivalence concept applies only for transfer tax
the standard. Fourth, the instrument may contain an purposes. To illustrate, assume that the trust instrument
ascertainable standard relating to the powerholder's authorizes the powerholder to withdraw trust assets and
health, education, maintenance or support (HEMS). that, as a matter of state law, the court may require the
This is a subset of the ascertainable standard category, powerholder to reimburse the trust for a withdrawal if it
with the court having the authority to hold the power- determines that the powerholder did not act in good
holder accountable for any withdrawal that is not con- faith. For estate and gift tax purposes, the powerholder
sistent with the HEMS standard. As will be discussed, would be taxable on any lifetime transfer or transfer at
the HEMS standard is relevant only in determining death of the trust's assets.34 Inasmuch as the powerhold-
whether a powerholder has a general power of er would not have unfettered or unrestricted access to the
appointment for transfer tax purposes. (Of course, the trust's assets, however, Section 678 should not apply.
use of such a HEMS limitation converts what would The transfer tax treatment of such a power is con-
otherwise be a general power of appointment into a sistent with the approach the Supreme Court has taken
non-general power.) Finally, in the fifth category of in its Section 2036 jurisprudence. In O'Malley v. United
cases, a powerholder's discretion may be constrained States," where the trust grantor served as trustee, the
not by trust law or by the trust instrument, but rather Court held that the trust's assets should be included in
by a fiduciary duty that derives from corporate law. the grantor's gross estate under Section 2036(a)(2)
In the first category of cases, where the power- because of the grantor's retained discretion, as trustee,
holder may withdraw trust assets with impunity from to determine which beneficiaries should receive
judicial review, the powerholder is treated as the income distributions. In reaching this conclusion, the
absolute owner of the trust's assets for all tax purposes. Court did not find that the duty of a trustee to act in
Thus, in such a case, the assets would be included in good faith constituted a sufficient constraint on the
the powerholder's gross estate28 and could be subject to trustee to justify excluding the value of the trust's
gift tax were the power exercised or released29 (subject assets from the grantor's gross estate.
to the "five-and-five" exception 0 ). Similarly, for The disparity in the income tax and transfer tax
income tax purposes, the trust is treated as the power- treatment of this type of power can perhaps be justi-

26 See, e.g., Matter of Woollard, 295 N.Y. 390 (1946). In re 3 See S. Rept. No. 1622, 83d Cong., 2d Sess., p. 87 (I.R.C.

McCoy, 274 B. R. 751 (Bankr.N.D.Il1. 2002), affd 2002 WL §678 is to apply if the beneficiary "has an unrestricted power to
1611588. But see RESTATEMENT (THIRD) OF TRUSTS §58 (2003) take the trust principal or income" (Emphasis added). See also
(critiquing McCoy). Stavroudis v. Commissioner, 27 T.C. 583 (1956) (indicating that
27 See, e.g., Woollard, supra; McCoy, supra. I.R.C. §678 will only apply if the powerholder has the right to act
21 See I.R.C. §2041.
arbitrarily); Trust No. 3 v. C.R.T., 33 T.C. 734, rev'd on other
* See I.R.C. §2514. grounds, 285 F.2d 102 (7th Cir. 1960) (indicating that "unfettered
3 See I.R.C. §2514(e). command" is the touchstone of I.R.C. §678).
" See I.R.C. §§651-652, 661-662. 1 Estate of Lanigan v. Commissioner, 45 T.C. 247 (1965).
32 Mallinckrodt v. Nunan, 146 F.2d I (1945). 3 O'Malley v. United States, 383 U.S. 627 (1966).

35 ACTEC Journal 109 (2009)

fied. Whereas treating the powerholder as the owner where the withdrawal power is subject to a HEMS
for income tax purposes would require him or her to standard, Section 678(a)(1) cannot apply because the
bear the burden of the tax, the question of who bears powerholder does not have unfettered access. In other
the tax burden is different for transfer tax purposes. words, if a state court has the authority to review the
When a person holding a general power dies, the propriety of a distribution, Section 678(a)(1) would
resulting estate tax is paid not by the powerholder but appear to be inapplicable. If, on the other hand, the
by the person receiving the property that had been the governing instrument eliminates the state court's
subject of the power (in the absence of a contrary pro- authority to approve or disapprove the distribution,
vision in the powerholder's will).3 6 Thus, while the then Section 678(a)(1) would apply.
court's supervisory authority limits the powerholder's The question is whether there is any "space"
access to the trust's assets such that it may seem inap- between Section 678(a)(1) and Section 2041 (or Sec-
propriate to tax the powerholder on all of the trust's tion 2514, the gift tax analog to Section 2041). In the
income, including the assets in the powerholder's case of a HEMS-based standard, Section 678(a)(1)
estate does not so significantly impact the powerhold- should not apply. Nor, of course, would Section 2041
er necessarily to warrant not taxing the trust as a part apply. On the other hand, in the case of a non-HEMS-
of the powerholder's estate." based standard, Section 2041 should apply, but Sec-
In Mallinckrodt, the beneficiary's power to tion 678(a)(1) should not apply given the lack of
demand a withdrawal of income was not limited by unfettered access. In short, one cannot draft an instru-
any standard. It would seem that, if a third party other ment that would produce estate tax exclusion while
than the grantor (e.g., a trust beneficiary) has unfet- triggering Section 678 (i.e., any HEMS-based stan-
tered control over the trust income or corpus, then Sec- dard, which would be sufficient to preclude estate-tax
tion 678(a)(1) would apply to make that portion of the inclusion, would concomitantly preclude application
trust (the income portion or the corpus portion) a of Section 678(a)(1)). Conversely, an instrument
grantor trust with respect to the third party. If, howev- could be drafted that would produce estate tax inclu-
er, the third party could withdraw only if a condition sion without triggering Section 678 (e.g., a powerhold-
exists, it seems doubtful that Section 678(a) would er is given the right to withdraw based on a standard
apply unless and until the condition arises. For exam- other than HEMS).
ple, assume a trust created by will unilaterally permits These conclusions are borne out in case law. In
a child to withdraw all of the property when she attains Smither v. United States,39 a case decided before the
the age of 50. She has no other right to withdraw enactment of Section 678 in 1954,40 the court held that
income or corpus prior to that time. It seems nearly a beneficiary would not be treated as the owner of the
certain that Section 678(a)(1) will apply only when the trust because her withdrawal right was limited to her
child reaches age 50. "support, maintenance, comfort and enjoyment."4 In
In the estate tax context, a decedent's power to Smither, the decedent devised his entire estate to his
consume, invade, or appropriate property for her own widow for her own support, maintenance, comfort
benefit which is limited by an ascertainable standard and enjoyment and for the support, maintenance, edu-
relating to the health, education, support or mainte- cation, comfort and the enjoyment of their children.4 2
nance of the decedent is not deemed to be a general The decedent's will further provided that the execu-
power of appointment and therefore not subject to tors had the power to expend such part of the income
inclusion in the powerholder's gross estate for estate and to invade the corpus for the support, maintenance,
tax purposes." Some practitioners take the position comfort and pleasure of the widow and of the children
that, even though the withdrawal power is limited to a "as in the discretion of my said executors may appear
HEMS standard in order to avoid inclusion for estate to be proper or desirable."43 The decedent's two
tax purposes, it is nonetheless sufficient to trigger Sec- brothers and his widow were appointed as executors.
tion 678(a)(1) for income tax purposes. This, howev- Some years later, the two brothers died and the widow
er, does not appear to be a tenable position. In cases remained as the sole executor. The IRS asserted that,

3 See I.R.C. §2207. 1 Smither v. United States, 108 F.Supp. 772 (S.D. Tex. 1952).
" Note, however, a release or exercise of a general power I.R.C. §678 is the statutory adoption of Treasury Regula-
would subject the powerholder to gift tax. See I.R.C. §2514. And tions that were promulgated under the Internal Revenue Code of
there is no provision in the Code that would allow the powerholder 1939.
to seek reimbursement of the gift tax from the person who receives " Stnither t United States, supra.
the property. Id.
" I.R.C. §2041. I.R.C. §2514(c)(1) provides for the same test Id. at 772-773.
for gift tax purposes.

35 ACTEC Journal 110 (2009)

in the years in question during which the widow was The United States Court of Appeals for the Ninth Cir-
the sole executor, she had unlimited discretion to cuit ruled that the powers held by each of the taxpay-
expend all or any part of the income for her own pur- ers were "expressly limited to her needs, maintenance
poses and, therefore, should be treated as the owner of and comfort" and that, therefore, she did not have
the income and be liable for the tax thereon." The unlimited power to take the corpus for herself." As a
United States District Court rejected the Service's result, the taxpayers were not taxable on income.
argument and held that the widow's withdrawal power Similarly, in Funk, the United States Court of
was not unfettered but rather restricted by the terms of Appeals for the Third Circuit focused on the word
the will. The widow's power was subject to a "legal "needs" to bar income taxation to the beneficiary. In
obligation," namely her power to withdrawal was lim- that case, the taxpayer had the power to make distribu-
ited to what was "necessary for her support, mainte- tion to herself subject to her "needs, of which she shall
nance, comfort and enjoyment, with a similar right in be the sole judge."52 The United States Tax Court
favor of the children."45 This standard, the court seemed to have ignored the standard imposed in the
explained, was "sufficiently clear and definite to be governing instrument and held that the taxpayer
both understandable and enforceable."4 6 Therefore, should be taxable on the trust income because she had
the widow could withdraw "no more than that the absolute control over the trust's income under the
needs of maintaining the family in the station in life to terms of the trust instrument." The Court of Appeals
which it had become accustomed should be met,"47 reversed the Tax Court and ruled that the taxpayer was
and the trust, and not the widow, was the proper tax- not the owner of the trust because her power was lim-
payer with respect to the trust income. By holding ited by the word "needs" in the trust instrument. The
that the widow did not have unfettered control over Court of Appeals explained that, although the word
the trust assets and that her power was subject to a "needs" cannot be defined precisely, it nevertheless
legal obligation, the Smither Court indicated that it established a "standard effectively distinguishing this
had the authority and indeed exercised that authority case from, and taking it out of the rule, of the
to review the propriety of distributions based on the Mallinckrodt... decision."54 The Court of Appeals fur-
HEMS standard as expressed in the decedent's Will. ther explained that the word "needs" has been con-
It is, therefore, reasonable that Section 678(a)(1) strued by the state court to mean what is reasonably
should not apply in this case. necessary to maintain a beneficiary's station in life and
The United States Courts of Appeal for the Ninth it, therefore, "confined the trustee to limits objectively
and Third Circuits reached similar decisions in United determinable.""
49
States v. De Bonchamps and Funk v. Commissioner, The effect of an ascertainable standard on the
respectively. De Bonchamps was a consolidation of applicability of Section 678(a) is not beyond debate.
three cases where the IRS contended that all three life There are at least two cases and one private letter rul-
tenants were taxable as the owners of income. In all ing'6 that seem to support a contrary position. Howev-
three cases, the taxpayers' powers to withdraw were er, upon closer examination of these cases and private
subject to their "needs, maintenance and comfort.""o letter ruling, they seem to be distinguishable and can-

Id. at 773. treated as the owner of any portion of the trust with respect to
45 Id. at 774. which the minor has a power to vest the corpus or income in him-
4 Id. self, despite the fact that no guardian has been appointed for the
4 Id. minor and the minor does not have the legal capacity to exercise
" United States v. De Bonchamps, 278 F.2d 127 (9th Cir. such power. The Service explained that "[flor purposes of Section
1960). §678 it is the existence of a power rather than the capacity to exer-
4 Funk v. Commissioner, 185 F.2d 127 (3rd Cir. 1950), rev'd, cise such a power that determines whether a person other than the
14 T.C. 198 (1950). grantor shall be treated as the owner of any part of a trust." The rul-
1oDe Bonchaips, 278 F.2d at 128. ing relied on Trust No. 3 v. Commissioner, 285 F.2d 102 (7th Cir.
" Id. at 130. 1960), where the United States Court of Appeals for the Seventh
12 Funk, 185 F.2d at 128. Circuit held that minor beneficiaries with a power to terminate a
1 Id. For discussion of this point in the Tax Court decision, trust and to take possession of the trust property have a vested pre-
see 14 T.C. at 213. sent right to use all or any part of the trust property upon demand
14 Id. at 131. despite the fact that no guardians have been appointed. The Ser-
5 Id. vice acknowledged the Court of Appeals' reasoning that the
56 It should be noted that Rev. Rul. 81-6, 1981 -1 C.B. 385 is appointment of a guardian is a routine step that should have no
not inconsistent with the notion that section 678 can only apply bearing upon the fundamental question of the legal right of the ben-
where there is unrestricted or unfettered access to the trust's assets. eficiaries to terminate the trust.
In the ruling, the Service ruled that a minor beneficiary of a trust is

35 ACTEC Journal 111 (2009)

not be said to offer contrary authority. The first of ceeding in the state court involving the accounting of
these cases is Koffman v. United States" where the the trustees of a testamentary trust. The decedent's will
decedent created a trust for the benefit of his widow to provided that the income of the testamentary trust was
be used by her for her "personal support and mainte- to be payable to the decedent's widow as "she deems
nance, the reasonablenessthereof to be determined by necessary for her own support and for the maintenance,
her" (Emphasis added). 8 The United States Court of education and support of [the decedent's] children."'
Appeals for the Sixth Circuit ruled the widow should The state court had previously determined that the
be taxable on the trust income because she had unfet- widow was entitled to $30,000 per year from the trust
tered right to determine the reasonableness of her with- income for her maintenance and support." The Tax
drawals for her support and that her power was not Court relied on this determination and held that the
subject to any limitation." At first blush, it seems that widow was taxable on this $30,000 of income. The
Section 678(a) applies even if the beneficiary's with- Tax Court's holding that the beneficiary widow should
drawal right is limited to her support and maintenance. be taxed as the owner of the $30,000 of the trust
However, a closer examination of the decision indi- income does not appear to be based on the support and
cates that the key language in Koffman, causing the maintenance standard in the governing instrument but
Section to be triggered, may not have been the "support rather on the state court decree that $30,000 was the
and maintenance" standard itself but rather the manner amount the widow was entitled to receive under such
in which the standard was determined to have been standard. Since a state court had determined what
met. The words "reasonableness thereof to be deter- amount was payable to the widow subject to the stan-
mined by her" could be interpreted to have granted the dard, then the widow had unfettered right and control
beneficiary the subjective right to determine whether over that amount and should be taxable on that income.
the standard has been met. If the reasonableness of In the absence of any state court decree, it is unclear
whether the standard has been met is to be determined whether the standard would been met and whether the
solely by the beneficiary and cannot be questioned or widow would be entitled to any income from the trust.
enforced by another party, then the beneficiary essen- It is also important to note that Townsend was decided
tially has unfettered control over the trust assets.' This prior to the United States Supreme Court's decision in
is different from Smither,De Bonchamps and Funk dis- Commissioner v. Bosch,' and it is doubtful that a sub-
cussed above, because unlike the governing instru- sequent court would follow a lower state court decision
ments in those cases, the governing instrument in Koff- in its determination of a federal income tax issue. Last-
man provided that the propriety of the distribution was ly, Townsend was decided by the Tax Court in 1945,
to be judged solely by the beneficiary, essentially elim- just a few years prior to Funk (where the Tax Court
inating a state court's authority to review the propriety held that a beneficiary withdrawal power subject to a
of the distribution. In Smither De Bonchamps and "needs" standard is not taxable to the beneficiary), yet
Funk, the courts made clear that the standard in those Funk did not mention or cite Townsend. Therefore, it
cases was one that is "objectively determinable" 6' and seems likely that the Townsend holding is limited to its
"understandable and enforceable"62 by the courts. In facts and stands only for the proposition that, if the
contrast, the court in Koffman could not objectively beneficiary's withdrawal right is subject to a standard
determine or enforce the standard set forth by the dece- and a state court has issued a decree (and thus exer-
dent in the governing instrument. cised authority to review the propriety of distributions)
63
The second case is Townsend v. Commissioner, granting the beneficiary the right to withdraw a certain
in which the United States Tax Court held that the ben- amount based on that standard, then that amount will
eficiary widow was taxable on the amount of income be taxable to the beneficiary under Section 678(a).
deemed to be necessary for her support as determined Another authority potentially contrary to the propo-
by the state court. The case began as a contested pro- sition that an ascertainable standard limits the applica-

" Koffman v. United States, 300 F.2d 176 (6th Cir. 1962). 62 Smither, 108 F.Supp. at 774.
Id. at 176. 63 Townsend v. Commissioner, 5 T.C. 1380 (1945).
Id. at 177. 4 Id. at 1381.
6 Cf Matter of Woollard, 295 N.Y. 390 (1946) (ruling that a * Id. at 1384.
will that provided the decedent's widow with the right to income * Commissioner v. Bosch, 387 U.S. 456 (1967) (ruling that
and principal of the trust, as the widow shall deem necessary for only the decree of a state's highest court would be binding for Fed-
her maintenance, comfort or well being is a power granted to the eral tax purposes). Cf Rev. Rul. 73-142, 1973-1 C.B. 405 (IRS is
widow that may not be questioned by anyone). bound if the court decree is entered before taxing event).
6' Funk, 185 F.2d at 131.

35 ACTEC Journal 112 (2009)

bility of Section 678(a) is PLR 8211057 (Dec. 16, would not that withdrawal right, not so limited, consti-
1981).61 In this ruling, the IRS ruled that a beneficiary's tute a general power of appointment? It might be dif-
power to invade corpus for her "support, welfare and ficult for the taxpayer's estate successfully to take
maintenance" would be taxable under Section 678(a). such inconsistent positions.
However, "welfare" is not an ascertainable standard 68 Tax return preparers and advisors also may be
and therefore is not subject to review by a state court. somewhat concerned about taking a position or pro-
In addition, this private letter ruling serves only as an viding advice that a trust is a grantor trust under Sec-
indicator of what the Service's position was at the time tion 678 with respect to a beneficiary if the beneficiary
the ruling was issued. It has no precedential value.69 has a withdrawal right that is subject to an ascertain-
The authorities seem to suggest that there is indeed able standard. Under amended Section 6694, a pre-
no space between Section 678(a)(1) and Section 2041 parer may not take a position on a return and an advi-
(or Section 2514). Therefore, where a goal is to avoid sor may not provide advice that the position may be
estate tax under Section 2041 (or taxable gift tax status taken unless there is "substantial authority" for the
under Section 2514), imposing a HEMS standard on a position or unless there is, in fact, a reasonable basis
trust beneficiary's power of withdrawal will likely for the position and the position is specifically dis-
block grantor trust treatment under Section 678(a)(1) closed (generally by completing and attaching IRS
with respect to the holder of the power of withdrawal." Form 8275 to the return)." Otherwise, the preparer or
It would seem that consistent treatment should be advisor may be subject to a penalty under the Section.
applied to both the taxpayer during his or her lifetime Fortunately, for both preparers and advisors, IRS
for income tax purposes and his or her estate after his Notice 2008-13 has at least temporarily relaxed those
or her death for estate tax purposes (or to the taxpayer standards.73 But because there may well be a substan-
during his or her lifetime for gift tax purposes), tial understatement of the trust's income tax liability if
although estate and income tax provisions, unlike gift the trust is not a grantor trust but pays no income tax
and estate tax provisions, are not in pari materia." because the trustee treats it as a grantor trust, the trust's
Indeed, a taxpayer probably should be cautious in return would have to have the disclosure form attached
taking the position that Section 678(a) applies, even if to avoid the penalty under Section 6694, unless there
his or her withdrawal power is limited by an ascertain- is substantial authority to treat the trust as a grantor
able standard, in order to make the trust a grantor trust trust. Whether there is substantial authority for that
with respect to himself or herself for income tax pur- position is an objective determination, not one of the
poses. By taking that position, the taxpayer is essen- preparer's belief (although the Section 6694 penalty
tially representing to the Service that his or her power does not apply if the preparer or advisor acted with
to withdrawal is an unfettered one and that he or she reasonable cause, also likely an objective standard,
has absolute control over the trust. If the taxpayer's and acted in good faith)." It seems questionable
withdrawal right were for income tax purposes consid- whether there is substantial authority for the position
ered not limited by an ascertainable standard, then that a trust under which the beneficiary may withdraw

67 Under I.R.C. §611 0(k)(3), neither a private letter ruling nor either the estate tax law or the gift tax statutes").
a national office technical advice memorandum may be cited or n As a further alternative: the preparer includes the necessary
used as precedent. disclosure form and the taxpayer removes it before filing it. See
' Rev. Rul. 77-60, 1977-1 C.B. 282 ("A power to use proper- Mitchell M. Gans, Jonathan G. Blattmachr & Elisabeth Madden,
ty for the comfort, welfare or happiness of the holder of the power Notable Changes Seen With 2008 Amendments to §6694 and Trea-
is not limited by [an ascertainable] standard") (Emphasis added). sury's Final Tax Return PreparerPenalty Regulations, 2009 TAX
* Nevertheless, a private letter ruling may be used, in some MANAGEMENT ESTATES, GiFrS AND TRUSTS JOURNAL 120.
cases, to meet a standard that may permit a taxpayer to avoid cer- " See generally Mitchell M. Gans & Jonathan G. Blattmachr,
tain penalties. See, e.g., Treas. Reg. § 1.6662-4(d) Notice 2008-13: Interim Guidance on Tax Return Preparationand
70Indeed, it appears that the only viable way to make a credit Advice, BNA Daily Tax Report, J-1 (Feb. 2, 2008).
shelter trust a grantor trust with respect to the surviving spouse 11The Notice also does not require the disclosure form if the
would be to "supercharge" it as discussed in Mitchell M. Gans, matter relates to a tax shelter defined in I.R.C. §6662(d)(2)(C)(ii).
Jonathan G. Blattmachr & Diana S. C. Zeydel, Supercharged Cred- It may be that, if the trust was intentionally structured to permit the
it Shelter Trust", 21 PROBATE & PROPERTY 52 (July-Aug. 2007). beneficiary to claim it is a Section 678 trust, it is a tax shelter. Nev-
" Merrill v. Fahs, 324 U.S. 308 (1945), 311 ("The gift tax ertheless, it seems odd that a taxpayer would so contend as better
was supplementary to the estate tax. The two are in pari materia opportunities exist to avoid substantial underpayment of income
and must be construed together"); Farid-Es-Sultanehv. Commis- tax penalties under I.R.C. §6662 by not falling within the definition
sioner, 160 F.2d 812 (2d Cir. 1947), 814 ("[Ilncome tax provisions of a tax shelter. See I.R.C. §6662(d)(2)(C)(i).
are not to be construed as though they were in pari materia with

35 ACTEC Journal 113 (2009)

under an ascertainable standard is a Section 678 of a child's deceased parent which gave the unilateral
grantor trust." Indeed, it is possible a court would right to the child to withdraw all property in the trust.
conclude that there is not even a reasonable basis for This unilateral power of withdrawal triggers Section
such a position. If there is no reasonable basis, the 678(a) causing the child to be treated as the trust's
penalty on the preparer or advisor is imposed (unless owner for purposes of Section 671 so that the income,
he or she can establish there was reasonable cause for deductions and credits against the tax of the trust are
the position and he or she acted in good faith). It is attributed directly to the child. Two years later, the
possible that the trust will be structured so no income child partially releases the power to withdraw. Howev-
tax return needs to be filed if it is, in fact, a grantor er, because the trustee (or a person other than the
trust. But failure to file a return is itself subject to child), without consent of any adverse party, may dis-
penalty unless there was a reasonable cause for failure tribute the income and corpus to the child and because
to file.16 Cautious preparers, advisors and trustees may such a power to distribute to the child, had she been the
well wish to file at least a grantor trust "information" grantor of the trust, would have caused the trust to be a
return" and attach a disclosure form in the event that, grantor trust with respect to the child under Sections
as the authorities cited and discussed above suggest, 676 and 677, the portion of the trust over which the
such a trust is not a Section 678 trust. Those preparers child released her power of withdrawal would cause
and advisors who are practitioners under Circular 230 the trust to remain a grantor trust with respect to the
face similar duties under Section 10.34 of the Circular. child under Section 678(a)(2). Suppose, instead, the
Those who violate the Circular in preparing returns Will provides that the child's unilateral right to with-
and giving advise also face potential sanctions includ- draw lapses at some time pursuant to the terms of the
ing public censure, suspension of practice or disbar- Will. The question then is whether such a lapse of the
ment of practice before the IRS. child's withdrawal constitutes a partial release or other
modification under Section 678(a)(2).
"Lapse" of a Section 678(a) Power Neither the Code nor any regulation addresses that
issue. In Rev. Rul. 67-241, 1976-2 C.B. 225, the Ser-
Section 678(a)(2) provides that a person other than vice discussed the application of Section 678(a) to a
the grantor may be treated as the owner of the whole or trust in which the beneficiary has a right of withdraw-
any portion of a trust if "such person has previously al. In the ruling, the IRS considered a situation where
partially released or otherwise modified such a power the decedent created a trust under his will and gave his
and after the release or modification retains such con- widow a power, exercisable solely by her, to require
trol as would, within the principles of Sections 671 to the trustees to distribute to her from corpus an amount
677, inclusive, subject a grantor of a trust to treatment equal to the greater of 5 percent of the value of the
as the owner thereof." In other words, if a third party trust corpus or $5,000 each year. The widow's right to
partially releases or otherwise modifies a power that withdraw was noncumulative and lapsed at the end of
would have caused the third party to be treated as the each calendar year.79 The Service ruled that the
owner of that portion of the trust under Section 678(a), widow's power was subject to Section 678(a)(1) and
and after such partial release or modification, that third the widow must be treated as the owner of that portion
party retains an "interest" in or "control" over the trust of the trust for income tax purposes. The Service did
that would have caused him or her to be treated as the not address the issue of whether the widow would con-
owner under the grantor trust rules of Sections 671-677 tinue to be treated as the owner of that portion of the
had she created the trust," then that third party would trust over which the power of withdrawal has lapsed.
continue to be treated as the owner of that portion of Similarly, in Rev. Rul. 81-6, 1981-1 C.B. 385, a
the trust over which she has partially released or other- parent created an irrevocable inter vivos trust for the
wise modified the power. As discussed above, an benefit of his child. The child had a noncumulative
example of this would be a trust created under the Will power in any calendar year to withdraw a portion of

" See generally Jonathan G. Blattmachr & Bridget J. Craw- ' Under I.R.C. §§2041(a)(2) and 2514(b), a release of a gen-
ford, Grantor Trusts and Income Tax Reporting: A Primer, 16 PRo- eral power of appointment is equivalent to exercising the power.
BATE & PROPERTY 18, 19 (2002). Under 1.R.C. §§2041(b)(2) and 2514(e), a lapse is considered a
71 See I.R.C. §665 1(a). release but only to the extent that the property which could have
" See Treas. Reg. § 1.671-4. been appointed by exercise of such lapsed power exceeds in value
* I.R.C. §678(a)(2) uses the word "control" but apparently the greater of $5,000 or 5 percent of the aggregate value of the
would include any interest, power or circumstance where the trust assets out of which, or the proceeds of which, the exercise of the
would be a grantor trust with respect to its grantor. lapsed power could be satisfied.

I
35 ACTEC Journal 114 (2009)
the trust principal up to the lesser of the amount 200147044 (Aug. 22, 2001). In this ruling, the
added to the trust during each year or the sum of grantor created a separate trust for each of his grand-
$3,000. The child also had the power to withdraw the children. The trustees had a discretionary power to
entire income of the trust until the child reached age distribute the income and principal of the trust for the
25 (when the trust terminates). The IRS ruled that benefit of the grandchild as the trustees deemed to be
under Section 678(a), the child is treated as the owner in the best interests of the beneficiaries. Any income
of any portion of the trust with respect to which the not so distributed would be added to the principal of
child had a power to vest the corpus or income in the the trust. The grandchild was given a noncumulative
child. The Service left open the question of whether right to withdraw each calendar year from the trust an
the child would continue to be treated as the owner of amount equal to the contributions made to the trust.
that portion of the trust over which the power of with- The Service ruled that, because each contribution to
drawal has lapsed. the trust was subject to the withdrawal power of the
Despite the lack of guidance from these revenue grandchild, the grandchild would be treated as having
rulings, the Service has consistently ruled in multiple a power to vest each contribution in himself or herself
private letter rulings that a lapsed power is considered within the meaning of Section 678(a)(1). The Service
"partially released or otherwise modified" for purpos- further ruled that, "[i]f [the grandchild] fails to exer-
es of Section 678(a)(2), causing the third party to be cise the withdrawal power, [he or she] will be treated
treated as the owner of that portion of the trust for as having released the power, while retaining a right to
income tax purposes even after the lapse of the have all trust income (ordinary income and income
power."o For example, in PLR 200104005 (Sept. 11, allocable to corpus), [which] in the sole discretion of
2001), the grantor created a trust for the benefit of her the trustee [may be], distributed to [the grandchild], or
husband. The husband was granted a noncumulative accumulated for future distribution to [the grandchild],
power to withdraw from the principal of the trust, not for purposes of Sections 678(a)(2) and 677(a)."
to exceed $5,000 or 5 percent of the then aggregate (Emphasis added).
market value of the trust property, otherwise known Similarly, in PLR 200022035 (Mar. 3, 2000),"8 the
as a "five or five power." The IRS ruled that, for each IRS also concluded that the lapse of a beneficiary's
year that the husband failed to exercise the five or five withdrawal power falls within the meaning of Section
power, he "will be deemed to have partially released 678(a)(2). In this ruling, the grantor created a trust
the power to withdraw the portion of the trust corpus where the beneficiary had an annual noncumulative
subject to that power under Section 678(a)(2)." "five or five" power. The beneficiary had a lifetime
(Emphasis added). The Service further explained that power to appoint all or any part of the trust income.
after each succeeding year in which the husband fails The Service first ruled that the five or five power was a
to exercise his power, he is treated as the owner of an power to vest in the beneficiary part of the trust corpus
increasing portion of the trust corpus. The annual and that, therefore, the beneficiary would be treated as
increase in the trust corpus that the husband would be the owner for each year of that portion of the trust
deemed to own is the product of the amount which he "until the beneficiary's power is exercised, released or
could withdraw multiplied by a fraction, the numera- allowed to lapse." (Emphasis added). This implies
tor was the portion of the trust corpus that he is not that a lapse has the same effect as an exercise or
already treated as owning, and the denominator was release. For purposes of Section 678(a)(2), the Ser-
the total trust corpus from which the withdrawal vice further ruled that, if the beneficiaries failed to
could be made. In this private letter ruling, the Ser- exercise the five or five power, the beneficiary "would
vice expressly treated a beneficiary's failure to exer- be deemed to have partially released" the power.
cise a withdrawal power (i.e., a lapse) to be the same (Emphasis added). Accordingly, because the benefi-
as if the beneficiary has partially released the power ciary had retained a power over the income of the trust
under Section 678(a)(2). The IRS, however, did not that would have subjected a grantor of the trust to
explain how it reached this conclusion. income tax under Section 677, the beneficiary would
The same conclusion was reached in PLR also be treated as an owner of the trust corpus under

0 Under I.R.C. §61 10(k)(3), neither a private letter ruling nor " See also PLR 9504024 (Jan. 27, 1995) (reaching the same
a national office technical advice memorandum may be cited or conclusion on similar facts-the beneficiary's withdrawal power
used as precedent. was not subject to the five or five rule limitation and lapsed within
1I See also PLR 200011054 (Mar. 20, 2000) (reaching the 60 days of notice of contribution to the trust).
same conclusion on substantially the same facts).

35 ACTEC Journal 115 (2009)

Section 678(a)(2). In this ruling, the IRS again equat- not discuss Section 678(a)(2) specifically or the con-
ed a lapse to a partial release of power." cept of a lapse." Nonetheless, it is important to note
Although the Service did not elaborate on the rea- that it does appear to contemplate broad application of
soning behind its position in the above private letter the release/modification concept."
rulings, the proposition that a lapse should be treated Another possible argument as to why a withdraw-
as a partial release or modification under Section al power that has lapsed is not considered "partially
678(a)(2) appears to be logical. First, it would seem released or otherwise modified" under Section
that, if Section 678(a)(2) is only limited to a partial 678(a)(2) is that a lapse could be characterized as a
release or modification, then it would have very limit- complete release of a power and Section 678(a)(2)
ed application as the lapse of a power to withdrawal is only refers to a partialrelease of a power. Commenta-
much more common than a release or modification.' tors have suggested that, perhaps, a lapse would be
Second, if a lapse is not covered by Section 678(a)(2), categorized under the "otherwise modified" lan-
then similarly situated taxpayers would receive differ- guage." Although a "lapse" implies that no action is
ent tax treatments simply because one beneficiary taken by the powerholder and "modify," in contrast,
took an action to partially release a power while the implies an action of some kind, the "otherwise modi-
other failed to take such action and let the power fied" language could be viewed as a catch-all, intend-
lapse." In neither case is the beneficiary's power ed to apply to any change to a power that would other-
exercised; the only difference is in the mechanical wise subject the third party to Section 678(a).
means by which the beneficiary chooses not to exer- If a lapse is a complete release and is, therefore,
cise the power. outside the application of Section 678(a)(2), then simi-
However, the terms "partially released" and larly situated taxpayers would be treated differently
"otherwise modified" do not appear to encompass the depending on the manner in which a given taxpayer
term "lapse." In other words, a complete lapse does allows her withdrawal power to become no longer
not seem to be a partial release or otherwise a modifi- exercisable. A taxpayer who relinquishes or permits to
cation of the power to withdraw. Moreover, the word lapse her withdrawal power on a yearly basis would be
"lapse" is expressly missing in the statute and the reg- treated differently from a taxpayer who relinquishes or
ulations. One may assume that Congress intentionally permits to lapse her entire withdrawal power, including
omitted the word for a reason. In fact, just a few years the power to withdraw in future years. Substantively,
prior to the enactment of Section 678, Congress enact- the end result is the same but due to the difference in
ed statutes that expressly treat a lapse as a release of a the way the relinquishment or lapse occurs, one tax-
power of appointment for gift and estate tax purpos- payer would not be treated as the owner of the trust for
es. 6 Yet, Congress did not include the concept of lapse income tax purposes while the other one would.
in Section 678(a)(2).11 Perhaps, a possible explanation is that a lapse is a
The legislative history to the Internal Revenue partial release of the power if one considers the power
Code of 1954 did not address the issue of "lapse." The as a whole over the entire term of the trust." On at
legislative history of Section 678 is brief and only pro- least one occasion, the Service has made a distinction
vides a very general description of the Section. It does between a complete release and a partial release. In

83 See also PLR 9450014 (Dec. 16, 1994) (ruling that, if a created after October 21, 1942, during the life of the individual
beneficiary who was granted a withdrawal power allowed the possessing the power shall be considered a release of such power."
power to lapse, then the beneficiary's retained right to have all the " See generally Blattmachr and Sembler, supra, at 8.
income and corpus paid, or accumulated for later distribution, to " See H.R. REP. No. 1337, at 4357 (1945); S. REP. No. 1622,
the beneficiary would cause the beneficiary to be the owner of the at 5013 (1945). See also SENATE FINANCE COMMITTEE REPORT TO
trust under I.R.C. §677(a)(1) and (a)(2)); PLR 9448018 (Dec. 2, ACCOMPANY H.R. 8300, Part 7 of 10 (Comm. Print 1954); HOUSE
1994) (reaching the same conclusion); and PLR 8308033 (Nov. 23, WAYS AND MEANS CoMMI-rEE REPORT TO ACCOMPANY H.R. 8300,
1982) (reaching the same conclusion). Part 6 of 10 (1954).
* See Jonathan G. Blattmachr and Frederick M. Sembler, " See Id. (Indicating that "a person other than the grantor may
Crununey Powers and Incone Taxation, THE CHASE REVIEW, July be treated as the substantial owner... if he has modified the power
1995 at 4. (by release or otherwise)"...).
* Id. ' Blattmachr and Sembler, supra, at 6. See also David West-
For gift tax purposes, I.R.C. §2514(e) provides that "[t]he fall, Lapsed Powers of Withdrawal and the Income Tax, 39 TAX L.
lapse of a power of appointment created after October 21, 1942. REV. 63, 69 (1983-1984); William Natbony, The Crumnmey Trust
during the life of the individual possessing the power shall be con- and "Five and Five" Powers after ERTA, TAXES-THE TAX MAGA-
sider a release of such power." Similarly for estate tax purposes, ZINE, 501 (July 1982).
I.R.C. §2041 (b)(2) provides "[t]he lapse of power of appointment " Blattmachr and Sembler, supra.

35 ACTEC Journal 116 (2009)

PLR 7943153 (Jul. 30, 1979), the grantor created a Section 678(b) and the Definition of "Income"
trust in which the beneficiary has a lifetime power to
withdraw principal from the trust. The Service ruled Section 678(b) provides that the rules under Sec-
that, if the beneficiary "completely released the power tion 678(a) "shall not apply with respect to a power over
to vest corpus" in himself "(as opposed to a partial income, as originally granted or thereafter modified, if
release or modification)," the beneficiary will not be the grantor of the trust or a transferor (to whom Section
the owner of the trust under Section 678(a)(2).92 This 679 applies) is otherwise treated as the owner under the
ruling seems to suggest that, if a third party relinquish- provisions of this subpart other than this Section."
es her withdrawal power for all future years, then Sec- (Emphasis added). Therefore, on the face of Section
tion 678(a)(2) would not apply, but, if the third party 678(b), at least with respect to the income of a trust, if
simply allows the power to lapse with respect to the the grantor is also treated as the owner of the trust, then
property for one year, then Section 678(a)(2) would the third party who is otherwise treated as the owner of
continue to apply. This ruling may lend support to the the trust under Section 678(a) would not be treated as
argument that an annual lapse is a partial release with- the owner of the trust for income tax purposes. In other
in the meaning of Section 678(a)(2). On the other words, the grantor trust rules with respect to the grantor
hand, a complete lapse (as opposed to an annual one) "trump" the grantor trust rules with respect to the third
is more difficult to view, as indicated above, as a par- party when determining who should be taxed as the
tial release (or modification). owner of the trust. However, because Section 678(b)
In addition, a review of the language used by the addresses only "income," it is unclear, at least on the
Service in all the private letter rulings cited in this sec- face of Section 678(b), what would happen if both the
tion indicate that the Service has consistently held that third party and the grantor are treated as the owners of
a third party who has allowed a withdrawal power to the trust corpus under the various grantor trust rules.
lapse each year or after a number of days (as opposed The answer may be in the definition of "income.""
to a complete lapse of the power to withdraw in future The word "income" in Section 678(b) seems to mean
years) has either "released" or "partially released" the taxable income (as opposed to accounting income)
power.93 With the exception of PLR 7943153 dis- which includes income in a tax sense allocated to trust
cussed above, it does not appear that the Service, at accounting income and corpus. Treas. Reg. §1.671-
least in recent years, has made a distinction between a 2(b) provides that, for purposes of Subpart E of Part I
third party who has "released" or "partially released" a of Subchapter J of Chapter 1 (i.e., the grantor trust
withdrawal power in the context of a lapse. rules)9 6 the word "income," unless specifically limited,
In any case, it is uncertain that a trust will remain refers to income determined for tax purposes and not
a Section 678 trust after a beneficiary's withdrawal income for trust accounting purposes. Treas. Reg.
power lapses. As a consequence, it may not be wise to §1.671-2(b) further explains that, if it is intended that
rely on its continuing Section 678 status where loss of income is to refer to income for trust accounting pur-
that status could cause adverse effects.94 poses, it would use the phrase "ordinary income."97

92 PLR. 7943153 (Jul. 30, 1979). statute provides. Although that could be claimed to be a conces-
9 PLR 200104005 (Jan. 29, 2001) (a lapse of a power to with- sion by the IRS on the issue, such a claim likely would be unsuc-
draw after the calendar year is considered "partially released"); cessful as the statement is at most just a general description and is
PLR 200011054 (Mar. 20, 2000) (a lapse of a power to withdraw not critical to the holding of the ruling.
after 30 days is considered "released"); PLR 9504024 (Jan. 27, I It is interesting to note that Treas. Reg. § 1.671-2(b) specifi-
1995) (a lapse of a power to withdraw after 60 days is considered cally provides that the definitions are to apply as "stated in the regu-
"released"). lations under subpart E," leaving open the possibility that the defini-
I For example, the powerholder sells an appreciated asset to a tions may not apply as stated in the Code. Treas. Reg. §1.671-2(b)
Section 678 trust for a note. No gain is recognized. See Rev. Rul. states "[a]ccordingly, when it is stated in the regulationsunder sub-
85-13, supra. However, if Section 678 status ends before the note part E that 'income' is attributed to the grantor or another person, the
is paid and the powerholder dies, gain might occur. See Jonathan reference, unless specifically limited, is to income determined for
Blattmachr, M. Gans & Hugh Jacobson, Income Tax Effects of Ter- tax purposes and not to income for trust accounting purposes."
mination of GrantorTrust Status by Reason of the Grantor'sDeath, (Emphasis added.) However, Treas. Reg. §1.678(b)-I essentially
JOURNAL OF TAXATION 149 (Sept. 2002). repeats the language of I.R.C. §678(b). Therefore, it is likely that the
* Rev. Rul. 81-6, supra, states, in part, "Section 678(b) pro- definitions under Treas. Reg. § 1.671-2(b) are to apply to both I.R.C.
vides that Section 678(a) shall not apply if the grantor of the trust §678(b) and Treas. Reg. §1.678(b)-1.
or a transferor (to whom Section 679 applies) is otherwise treated I Indeed, the Treasury Regulations under Subpart E of Part I
as the owner under the provisions of subpart E of Part I of sub- of Subchapter J of Chapter 1 use the word "ordinary income" on
chapter J, other than Section 678" without limiting that statement twelve other occasions.
to a case where the I.R.C. §678 power is only over "income" as the

35 ACTEC Journal 117 (2009)

This suggests that, for purposes of Section 678(b) Therefore, the Service concluded that, "[b]ecause [the
(which is under subpart E of Part I of subchapter J of trust] is a grantor trust under §674 with respect to [the
chapter 1), the word "income" refers to taxable grantors], it is a grantor trust in its entirety with respect
income (as opposed to accounting income) and to [the grantors] notwithstanding the powers of with-
includes tax income allocated to both accounting drawal held by the beneficiaries that would otherwise
income and corpus of the trust. Therefore, if both a make them the owners under § 678." The ruling refer-
third party and a grantor are deemed the owners of enced Section 678(b) but did not discuss its application
income allocated to trust accounting income or corpus, to a "Crummey" power over trust corpus. Instead, the
or both, then, under Section 678(b), the grantor, and IRS simply reached the conclusion as stated above and
not the third party, would be treated as the owner of held that the trust in its entirety was treated as a grantor
that portion of the trust. trust with respect to the grantors.
Section 643(b) further lends support to this propo- On March 27, 2007, the Service issued a series of
sition. Section 643(b) provides that. for purposes of private letter rulings which seem to support the propo-
Subparts B, C and D of Part I of Subchapter J, the sition that the grantor would be treated as the owner of
word "income" means the "amount of income of the a trust despite the fact that a third party otherwise
estate or trust for the taxable year determined under would be treated as the owner of the trust corpus under
the terms of the governing instrument and applicable Section 678(a)." The facts are similar in all of the rul-
local law." The omission of a reference in Section ings: the grantor created a irrevocable trust and
643(b) to Subpart E, the grantor trust rules, seems to retained the power in a non-fiduciary capacity to
suggest that, if the word "income" is used in Subpart acquire trust property and to substitute other property
E, it would not have the meaning of accounting in its place which would make such trust a grantor
income. Indeed, it seems that the definition of income trust under Section 675(4)(C). The beneficiary of the
(that is, taxable income) under Treas. Reg. §1.671- trust was given a withdrawal power over an amount
2(b) controls for the provisions under Subpart E, equal to the additions made to the trust each year not
including Section 678(b). to exceed the applicable annual exclusion amount.
The Service's position seems to be consistent with The Service ruled that under such circumstances the
the above proposition. In several private letter rulings, grantors were treated as the owners of the trust under
the Service has consistently taken the position that, if a Sections 675 and 678(b). Similar to PLR 200732010,
grantor is treated as the owner of a trust under the the Service did not provide a detailed analysis of how
grantor trust rules, then the grantor will be treated as it reached this conclusion.
the owner of the trust despite the fact that a third party Another example in which the Service suggested
is treated as the owner of the trust corpus under Section that corpus also falls within the meaning of Section
678." For example, in PLR 2007320101 (May 1, 678(b) is PLR 200603040 (Jan. 20, 2006). In this rul-
2007), the grantors created a trust for their children and ing, the grantor created an inter vivos trust where the
provided that an advisory committee had the right, trustees were directed to distribute as much income
without the approval or consent of the grantors or any and principal of the trust to the spouse and the
adverse party, to add one or more tax-exempt charities grantor's issue as the trustee may determine. The
as permissible beneficiaries of the trust. The grantor's spouse was given a right to withdraw an amount equal
children were given the power to withdraw from the to the value of each contribution to the trust up to the
trust principal an amount equal to the value of the prop- amount of the gift tax annual exclusion. The taxpayer
erty added to the trust, up to the amount of the applica- sought a ruling that the trust was a grantor trust under
ble gift tax annual exclusion amount. The ruling held Section 671 in its entirety with respect to the grantor.
that the withdrawal power granted to the children The Service granted the ruling and ruled that, because
would result in the children being treated as the owners both income and corpus were payable to the spouse
of their respective portions of the trust subject to their during the grantor's life, the grantor was treated as the
withdrawal power unless the grantor is treated as the owner of the trust under Section 677(e). The Service
owner under Section 678(b). The power to add tax- further held that, "[b]ecause Trust is a grantor trust
exempt charities as beneficiaries affects the beneficial under §677 with respect to Grantor, it is a grantor trust
enjoyment of the trust and caused the grantors to be in its entirety with respect to Grantor notwithstanding
treated as the owners of the trust under Section 674(a). the powers of withdrawal held by Spouse that would

" Under I.R.C. §611 0(k)(3), neither a private letter ruling nor PLR 200729005 (Mar. 27, 2007) through PLR 200729016
a national office technical advice memorandum may be cited or (Mar. 27, 2007).
used as precedent.

35 ACTEC Journal 118 (2009)

otherwise make her an owner under §678." This pri- be the case if the third party continues to hold the uni-
vate letter ruling is consistent with the Service's posi- lateral drawdown power after grantor trust status with
tions in prior rulings.'" respect to the grantor ends. It seems logical that, if
A possible counterargument to the above may lie Section 678(b) is no longer applicable, then the third
in the wording of Section 678 itself. On two occasions, party who would otherwise be treated as the owner
Section 678 specifically refers to "corpus" and under Section 678(a) would be treated as the owner of
"income," thus implying that there is a distinction the trust. As stated, this would seem to be true for a
between the two.o' Similar distinctions are also con- third party who has a unilateral power to withdraw
tained in other parts of the grantor trust provisions that after the grantor trust status with respect to the grantor
apply to the trust's grantor. 0 2 If the definition of has been "turned off." This would also seem to be true
income under Treas. Reg. §1.671-2(b) includes income for a third party who has partially released or modified
allocated to both accounting income and corpus, then a power described under Section 678(a)(2) during the
the use of the word "corpus" in two parts of Section time the grantor is treated as the owner of the trust.
678 would seem superfluous. This internal inconsis- Once the grantor trust status with respect to the grantor
tency in the statutory language is perhaps a legislative has ended, then Section 678(a) would seem to become
oversight as suggested by some commentators.' 3 operative to make the trust a grantor trust with respect
to the third party (which provides for the "regular"
When Section 678(b) Exception No Longer grantor trust rules to trump Section 678(a)).
Applies Neither the Code nor the Regulations addresses
this issue. However, the Service adopted the above
As discussed above, Section 678(b) provides that, view in PLR 9026036 (Mar. 28, 1990). In this ruling,
when the grantor is treated as the owner of a trust, then the wife created a trust for the benefit of her husband
the third party who is otherwise treated as the owner of and provided for income to her husband for life. The
the trust under Section 678(a) will not be treated as the wife was the trustee of the trust. The trust agreement
owner of the trust. However, what happens when the granted the husband the power to withdraw all or any
grantor is no longer treated as the owner of the trust? portion of the trust within 30 days after the date of the
Grantor trust status with respect to the grantor ends execution of the trust agreements by written notice to
when the grantor dies or when a condition under the Trustee. The husband did not exercise his with-
which the grantor was deemed to be the owner of the drawal power and allowed the power to lapse. The
trust no longer applies. In such case, will Section Service ruled that, while the wife (who was the
678(a) operate to cause the third party to be treated as grantor) is alive, she would be treated as the owner of
the owner of the trust? the trust for income tax purposes, but, upon her death,
To the extent that a third party is treated as the the husband would be treated as the owner of the trust
owner under Section 678(a) after the grantor trust sta- for income tax purposes. Although the Service did not
tus with respect to the grantor has been "turned off," it provide any analysis or reasoning in its ruling, it
seems that the trust would be treated as a grantor trust would seem that the analysis would be as follows:
with respect to such third party. That would seem to While the wife is alive, the wife is treated as the owner

'" See also PLR 9309023 (Dec. 3, 1992) (reaching the same such income is so applied. In cases where the amounts so applied
conclusion in a case involving almost identical facts); PLR or distributed are paid out of corpus or out of other than income of
9141027 (Jul. 11, 1991) (ruling that the grantor is treated as the the taxable year, such amounts shall be considered to be an amount
owner of the trust for income tax purposes because all the income paid or credited within the meaning of paragraph (2) of I.R.C.
of the trust may possibly be distributed to the grantor's spouse §661(a) and shall be taxed to the holder of the power under I.R.C.
(I.R.C. §677) and the grantor's spouse holds a power of appoint- §662." (Emphasis added).
ment over the trust corpus (I.R.C. §674) despite the beneficiaries' " See, e.g., I.R.C. §§674(a), 674(b)(4)-(8), 674(c)(2) and
"Crummey" powers of withdrawal). 674(d).
I I.R.C. §678(a)(1) provides that "[a] person other than the 03 William R. Swindler et al., Beneficiary Withdrawal Powers

grantor shall be treated as the owner of any portion of a trust with in GrantorsTrust-A Crumm(e)y Idea?, 34 EsT. PLAN. 30, 33 (Oct.
respect to which such person has a power exercisable solely by 2007) ("Treasury officials have informally indicated that they view
himself to vest the corpus or the income therefrom in himself." the failure to include 'corpus' in I.R.C. §678(b) as a legislative
(Emphasis added). I.R.C. §678(c) provides that "[s]ubsection (a) oversight"). See also Jonathan E. Gopman, Crummey, the Saga
shall not apply to a power which enables such person, in the capac- Continues, 25 BNA TAX MGMT. EST., Glyrs & TR. J. 194 (Jul. 13,
ity of trustee or co-trustee, merely to apply the income of the trust 2000) (citing other commentators who have suggested that the fail-
to the support or maintenance of a person whom the holder of the ure to include "corpus" in I.R.C. §678(b) is a drafting oversight).
power is obligated to support or maintain except to the extent that

35 ACTEC Journal 119 (2009)

of the trust under Section 677 because her husband is grantor trust with respect to the grantor. Although the
an income beneficiary of the trust. During this same ruling did not address the situation of a third party
time, the husband would also be treated as the owner being treated as the owner under Section 678(a)(1), it
of the trust under Section 678(a)(2) because he arguably suggests that, even in such a case, the trust
allowed an unilateral withdrawal power to lapse while would not be a grantor trust with respect to the third
retaining "control" over the trust that would have party after the grantor trust status with respect to the
caused him to be treated as the owner under Section grantor has been "turned off."
677. However, because the trust is a grantor trust with The income tax treatment under Section 678 is
respect to the wife (the grantor), while she was alive, unclear for the situation where the trust ceases to be a
the husband would not be treated as the owner of the grantor trust with respect to the grantor. Without fur-
trust under Section 678(b). Upon the wife's death, ther guidance from the Service, it is difficult to under-
Section 678(b) is no longer applicable and Section stand the Service's reason in revising its position in
678(a)(2) would then apply to make the husband the PLR 9321050. Taxpayers who find themselves in this
owner of the trust for income tax purposes. situation may be well advised to seek a private letter
Interestingly, PLR 9026036 was essentially ruling to clarify this issue.
revoked three years later by PLR 9321050 (Feb. 25,
1993).'" In this ruling, the Service reconsidered its Conclusion
position in PLR 9026036 and reversed the holding
relating to the ownership for federal income tax purpose Section 678 provides an important rule for the
of the trust upon the wife's death. The Service did not income tax treatment of a trust with respect to a third
provide any explanation of its reversal or any analysis party who is not a substantial owner of the trust and the
of its new position. The Service simply ruled that, after grantor herself. It seems likely that, if a third person's
the wife's death, the husband will not be treated as the power to vest trust corpus or income in herself under
owner of the trust for income tax purposes. The Service Section 678(a)(1) is subject to an ascertainable stan-
did not clarify who, if anyone, would be the owner of dard, Section 678(a)(1) will not apply to cause the third
the trust for income tax purposes. Presumably, because party to be treated as the owner of that portion of the
the wife is deceased and the husband is not the owner of trust subject to that power. If the third party allowed a
the trust, the trust is no longer a grantor trust. power under 678(a)(1) to lapse, it appears that the lapse
The Service's reversal of its position in PLR would be considered a partial release or modification
9321050 would suggest that, if grantor trust status under Section 678(a)(2) which may cause the third
with respect to the grantor is "turned off," then Section party to remain the owner of that portion of the trust
678(a) is no longer operative. In order words, if the subject to such power for income tax purposes. Sec-
third party has partially released or otherwise modified tion 678(b) would seem to suggest that, even if the
a power that would have made the trust a grantor trust third party's power under Section 678(a)(1) applies
with respect to the third party under Section 678(a)(2), over the trust corpus, the grantor of the trust may still
the third party would not be deemed the owner of the be treated as the owner of the trust corpus for income
trust during and after the time that the trust was a tax purposes if the grantor is also treated as the owner
of the trust corpus under the grantor trust rules. Lastly,
" It is also interesting to note that in the interim, the Service there does not seem to be a clear answer as to what the
refused to rule on the income tax consequences of a similar trust income tax treatment would be once the trust ceases to
upon the death of the grantor. PLR 9141027 (Jul. 11, 1991). be a grantor trust with respect to the grantor.

35 ACTEC Journal 120 (2009)