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GiftLaw Note: Debt-encumbered property can only be transferred into a charitable remainder trust if the property has been held by the donor for more than five years and the debt has been outstanding for more than five years. Donors in this PLR tried to use an option strategy to create a CRT with debt-encumbered property. The IRS, however, did not grant a favorable ruling with regard to the option strategy. Essentially the IRS determined that the transfer to a option is similar to the transfer of a note or pledge and in the option situation there is a promise to sell property at a future date. Even though the promise may be enforceable, it is not itself a payment for purposes of deducting a contribution under section 170. Thus, no charitable deduction is allowable. There would also not be a gift tax deduction allowed because the proposed transfer of the purported option to the trust would not be a completed gift on the date of the transfer under section 25.2511-2(b). Under this ruling the use of the option strategy is not a good idea.
PRIVATE RULING 9501004

DATE: September 29, 1994


This is in response to a letter dated September 29, 1992, and supplemental correspondence submitted on your behalf. In this letter, your authorized representatives request the following specific rulings: (1) that Taxpayer will not be treated as the owner of the Trust under the grantor trust rules of subpart E of part I of subchapter J of the Internal Revenue Code and section 1.677(a)-1(d) of the Income Tax Regulations; and (2) that no gain or loss will be recognized by Taxpayer as a result of the contemplated assignment for valuable consideration of a purported option by the Trust to a third party purchaser. For purposes of the requested rulings, we have been asked to assume that the Trust is a valid charitable remainder trust within the meaning of section 664(d)(2), apart from the issue raised by the first requested ruling.

On d, Taxpayer, as trustor, and Trustee, executed an irrevocable declaration of trust establishing the Trust and funded it initially with a small amount of cash. Subsequent to the creation of the Trust, Taxpayer transferred certain unencumbered real property with an appraised value of v. to the Trust.

The terms of the Trust require Trustee to pay to Taxpayer, as beneficiary, an annual unitrust amount equal to 9-percent of the net fair market value of the Trust estate. For each taxable year of the Trust, the unitrust amount is required to be paid first from income. To the extent that income is not sufficient to pay the annual unitrust amount, the balance is to be paid from principal. If the Trust income exceeds the annual unitrust amount in any year, the excess is required to be accumulated and added to the principal of the Trust. On the death of Taxpayer, the remainder of the Trust estate must be distributed to the charitable remainderman named in the Trust document. The Trust is intended to qualify as a charitable remainder unitrust within the meaning of section 664(d)(2) of the Code.

Taxpayer proposes to enter into an agreement (hereinafter referred to as the purported option) with Trustee under which the Trust will possess the right (but not the obligation) to acquire a fee interest in certain encumbered real property (a capital asset in the hands of Taxpayer) by tendering to Taxpayer the sum of . The granting of this purported option to the Trust will be gratuitous, and Taxpayer will not receive any direct financial compensation in exchange for the transfer. The encumbered real property is contiguous to the unencumbered property previously contributed to the Trust. Taxpayer is personally liable on the underlying mortgage in the amount of approximately.

The Trust's rights under the purported option agreement will be assignable by the Trust and by any third party assignee. it is not anticipated that the Trust will exercise the purported option. Rather, it is contemplated that the Trust will assign the purported option to a third party purchaser and will receive as consideration for the assignment an amount approximating the difference between the fair market value of the real property at the time of the assignment (estimated to be about ??) and the exercise price of . The Trust will utilize the sale proceeds to invest in income-producing securities, which will be held by the Trust to pay the unitrust amount. The third party purchaser of the purported option will not be related to either Taxpayer or Trustee, and Taxpayer will not participate in any negotiations relating to the assignment of the purported option.

As stated above, we have been asked to assume that the Trust qualifies as a charitable remainder unitrust within the meaning of section 664(d)(2) of the Code and the regulations thereunder. However, we are unable to address the specific rulings requested without first determining whether the transfer of the purported option to the Trust would affect the Trust's qualification if it otherwise qualifies as a charitable remainder trust.

I. WHETHER THE TRUST QUALIFIES AS A CHARITABLE REMAINDER TRUST UNDER SECTION 664 OF THE CODE


Under section 664(d)(2) of the Code, a charitable remainder unitrust is a trust that provides for the distribution of the unitrust amount, at least annually for life or a term of years, to one or more persons (at least one of which is not a charitable organization) with an irrevocable remainder interest to be paid to or held for the benefit of a qualified charitable organization.

Section 1.664-1(a)(1)(iii)(a) of the regulations provides that the term "charitable remainder trust" means a trust with respect to which a deduction is allowable under section 170, 2055, 2106, or 2522 of the Code and which meets the description of a charitable remainder annuity trust (as described in section 1.664-2) or a charitable remainder unitrust (as described in section 1.664-3).

Section 1.664-1(a)(2) of the regulations provides that a trust is a charitable remainder trust only if it is either a charitable remainder annuity trust in every respect or a charitable remainder unitrust in every respect.

Section 1.664-1(a)(4) of the regulations provides that in order for a trust to be a charitable remainder trust, it must meet the definition of and function exclusively as a charitable remainder trust from the creation of the trust.

To qualify as a charitable remainder trust within the meaning of section 664 of the Code and the regulations thereunder, a trust must be one with respect to which a deduction is allowable under one of the specified sections -- section 170, 2055, 2106, or 2522. Further, the trust must be a charitable remainder trust in every respect and must meet the definition of and function exclusively as a charitable remainder trust from its creation. The requirements of being a charitable remainder trust in every respect and functioning exclusively as a charitable remainder trust from its creation cannot be met unless each transfer to the trust during its life qualifies for a charitable deduction under one of the applicable sections (section 170, 2055, 2106, or 2522).

Qualified charitable remainder trusts were created by Congress to ensure that the amount received by a charitable organization at the end of the trust reflects the amount on which the donor's charitable deduction was based. Certain benefits are available to qualified charitable remainder trusts, but certain restrictions accompany those benefits. Among the benefits are a tax deduction for the present value of the remainder interest passing to a charitable organization and the exemption from income tax on the trust's income (unless it has any unrelated business income). In situations in which no tax deduction is allowable for a transfer to the trust, it appears that the donor is merely using the trust as a means to take advantage of the exemption from current income tax on the gain from the sale of the property. This use of a trust, in the absence of a charitable deduction, is inconsistent with the Congressional purpose for charitable remainder trusts.

Charitable remainder trust are subject to certain statutory and regulatory requirements. Many of the rules applicable to private foundations apply to charitable remainder trusts pursuant to the provisions of section 4947(a)(2) of the Code. In addition, there are other Code provisions that limit the type of property that can be transferred directly to a charitable remainder trust. When an option to purchase property, rather than the property itself, is transferred to a charitable remainder trust, the donor is attempting to avoid the requirements that would be applicable to a direct transfer of the property. Thus, in this case Taxpayer is using the purported option in an attempt to avoid the restrictions that would be applicable to a direct transfer of encumbered real estate to a charitable remainder trust.

Sections 1.664-1(a)(1)(iii)(a), 1.664-1(a)(2), and 1.664- 1(a)(4), read together, require that each contribution to a charitable remainder trust qualify for a charitable deduction under one of four sections of the Code. This reading is necessary to ensure that the benefits provided to charitable remainder trusts are used in a manner consistent with the Congressional purpose. This reading also ensures that all the statutory and regulatory provisions applicable to a direct transfer of property to a charitable remainder trust are not nullified by a transfer of an option to purchase that same property.

The income tax deduction under section 170 and the gift tax deduction under section 2522 are the only deductions applicable to intervivos transfers to a trust. Therefore, because of the proposed, intervivos transfer in this case, we must determine whether the transfer of the purported option to the Trust would qualify for either an income tax or a gift tax charitable deduction.

A. Charitable deduction under section 170 of the Code


Section 170(a)(1) of the Code allows a deduction for a charitable contribution to or for the use of organizations described in section 170(c), payment of which is made within the taxable year.

Section 170(f)(2)(A) of the Code provides that in the case of property transferred in trust, no deduction shall be allowed for the value of a contribution of a remainder interest unless the trust is a charitable remainder annuity trust or a charitable remainder unitrust (described in section 664) or a pooled income fund (described in section 642(c)(5)).

Section 170(f)(3) of the Code provides that in the case of a contribution (not made by a transfer in trust) of an interest in property which consists of less than the taxpayer's entire interest in such property, a deduction shall be allowable as a deduction under this section only to the extent that the value of the interest contributed would be allowable as a deduction under this section if such interest had been transferred in trust.

Section 1.170A-1(a) of the regulations provides that a deduction is allowable to an individual under section 170 of the Code only for charitable contributions actually paid during the taxable year, regardless of when pledged and regardless of the method of accounting employed by the taxpayer in keeping his or her books and records.

Rev. Rul. 82-197, 1982-2 C.B. 72, considers a situation in which an individual grants a charitable organization an assignable written option to purchase real property owned by the taxpayer. The price of the option is less than the fair market value at the time the option is granted. Under the law of the state in question, an option does not, before exercise, vest in the optionee any interest, estate, or title in the land. Rev. Rul. 82-197 states:

Under section 170 of the Code and the Income Tax Regulations thereunder, a charitable contribution may be in the form of money or other property. The transfer to a charitable organization of an option by the option writer is similar to the transfer of a note or pledge by the maker. In the note situation there is a promise to pay money at a future date; in the pledge situation there is a promise to pay money or transfer other property, or to do both, at a future date; and in the option situation there is a promise to sell property at a future date. Although the promise may be enforceable, a promise to pay money or to sell property in the future is not itself a "payment" for purposes of deducting a contribution under section 170 of the Code. Thus, the grant of the option to the charitable organization in this case is not a contribution for which a deduction is allowable under section 170.

Rev. Rul. 82-197 concludes that the taxpayer is not entitled to a charitable deduction for income tax purposes in the year the option is granted but is allowed a charitable deduction in the year in which the charitable organization exercised the option. The amount of the contribution is the excess of the fair market value of the property on the date the option is exercised over the exercise price.

In the present case, there can be no "payment" or "transfer of property" to a charitable organization for income tax purposes unless the purported option is purchased and exercised by a charitable organization or is exercised by the Trust. The facts indicate that it is anticipated that the Trust will not exercise the purported option but will assign the purported option to a third party purchaser for valuable consideration. If the third party purchaser were a charitable organization within the meaning of section 170(c) of the Code, there could be a payment for section 170 purposes when the option is exercised. However, no deduction would be allowable under section 170(f)(3) for any payment made to such a third party purchaser that purchases and exercises the purported option. In such a situation, the payment by Taxpayer would be made to the third party charitable organization outside the Trust. And Taxpayer would be considered to transfer less than Taxpayer's entire interest in the property by retaining the income stream from the charitable remainder trust. Accordingly, the sale of the real property to the third party purchaser would be considered a transfer of a partial interest within the meaning of section 170(f)(3) for which no deduction would be allowable. See Rev. Rul. 81-282, 1981-2 C.B. 78 (contribution of voting stock with the donor retaining the right to vote the stock constitutes a contribution of a partial interest; donor did not transfer all substantial rights in the stock).

B. Charitable deduction under section 2522 of the Code


Section 2501 of the Code imposes a tax on the transfer of property by gift by any individual. Section 25.2511-1(a) of the Gift Tax Regulations provides that the gift tax applies to every kind of transfer by way of gift, whether direct or indirect, and whether the property is real or personal, tangible or intangible.

Section 25.2511-2(a) of the regulations provides that the gift tax is not imposed upon the receipt of the property by the donee, nor is it necessarily determined by the measure of enrichment resulting to the donee at the time of the transfer. The tax is a primary and personal liability of the donor that is measured by the value of the property passing from the donor and attaches at the time the property passes, regardless of the fact that the identity of the donee may not then be known or ascertainable.

Under section 25.2511-2(b) of the regulations, generally, a gift is complete and subject to the gift tax when the donor has so parted with dominion and control over the property transferred as to leave in donor no power to change its disposition, whether for the donor's own benefit or for the benefit of another.

Section 2522(a) of the Code provides, in part, that in computing taxable gifts for a calendar year a deduction will be allowed for the amount of all gifts made by a citizen or resident during the calendar year for public, educational, scientific, literary, charitable, or religious uses.

Section 2522(c)(1) of the Code provides that no deduction shall be allowed under section 2522 for a gift to or for the use of an organization or trust described in section 508(d) or 4948(c)(4) subject to the conditions specified in such sections.

Section 2522(c)(2) of the Code provides that where a donor transfers an interest in property (other than an interest described in section 170(f)(3)(B)) to a person, or for a use, described in section 2522(a), and an interest in the same property is retained by the donor, or is transferred or has been transferred (for less than an adequate and full consideration in money or money's worth) from the donor to a person, or for a use, not described in section 2522(a), no deduction shall be allowed under section 2522 for the interest which is or has been transferred to the person, or for the use, described in section 2522(a) unless, in the case of a remainder interest in trust, such interest is in a trust that is a charitable remainder annuity trust or a charitable remainder unitrust (described in section 664), or a pooled income fund (described in section 642(c)(5)).

Rev. Rul. 80-186, 1980-2 C.B. 280, concludes that the transfer of an option to purchase real property for a specified period is a completed gift under section 2511 of the Code on the date the option is transferred, if, under state law, the option is binding and enforceable on the date of the transfer.

An option to purchase land is a valuable property right but, before exercise, does not vest in the optionee any interest, title, or estate in the land. Under applicable local law, an option is a contract by which an owner of property, for consideration, grants a person the exclusive right to purchase property at a fixed price within a specified time, without imposing an obligation on the optionee to exercise the right.

In the instant case, under local law, the purported option is not binding on Taxpayer when granted. Under applicable local law, because the purported option will be granted gratuitously, the purported option would not bind Taxpayer. Rather, Taxpayer would have the power to withdraw the purported option at any time. Further, the gratuitous nature of the purported option would be apparent from the purported option agreement, giving notice to any purchaser for value of Taxpayer's right to withdraw. Neither Trustee nor a third party purchaser of the purported option from Trustee could prevent Taxpayer from withdrawing the purported option at any time.

Accordingly, the proposed transfer of the purported option to the Trust would not be a completed gift on the date of transfer under section 25.2511-2(b), because Taxpayer would not have made a binding offer on that date. See Rev. Rul. 80-186, supra. Taxpayer's proposed transfer of the purported option to the Trust would not constitute a completed gift, and, therefore, a gift tax charitable deduction under section 2522 would not be allowable with respect to the transfer.

It has been asserted that the purported option would be supported by consideration in the form of Trustee's obligation under the Trust agreement to pay the unitrust amount to Taxpayer. We disagree with this assertion.

Initially, we note that for federal transfer tax purposes, Taxpayer's interest in the unitrust amount of the property transferred to the Trust does not constitute consideration received by Taxpayer for the transfer. An analogous question has been addressed in several cases involving the application of section 2036(a)1 of the Code to the surviving spouses' share of community property that the spouse transferred pursuant to a community property election to her deceased husband's testamentary trust containing his share of the community estate. Generally, under the trust terms, trust income generated by both spouses' shares of the community property was payable to the surviving spouse for life with the remainder to a third party. The estates argued that the income interest the spouse received in the entire trust corpus constituted consideration for her transfer of her community property share. Therefore, in determining the amount includible under section 2036(a) in the surviving spouse's gross estate on her death, the value of the property transferred by the spouse had to be offset by the value of the spouse's income interest received at the time of the transfer. See section 2043(a).

The case law holds that only the surviving spouse's income interest in that part of the trust attributable to the husband's community property interest was consideration received by the surviving spouse for the transfer of her community property share to the trust. The surviving spouse's life interest in her own portion of the community property constituted an interest retained by the spouse in her property, rather than consideration received by the spouse for the transfer of her property. See, e.g., Gradow v. United States, 897 F.2d 516 (Fed. Cir. 1990); United States v. Past, 347 F.2d 7, 13 n.4 (9th Cir. 1965). In Estate of Gregory v. Commissioner, 39 T.C. 1012, 1017 (1963), the Tax Court stated, "It is clear that retention of a life estate in one's own property cannot be consideration for a transfer."

Further, Taxpayer's right to be paid the unitrust amount does not qualify under general principles of contract law as consideration received by Taxpayer for transfers to the Trust. Generally, "consideration" is any benefit flowing to the promisor that the promisor would not have received without the contract. 17 C.J.S. Contracts section 74 (1963). See also Restatement (Second) of Contracts section 71 (1981), which provides that in order to constitute consideration, a performance or return promise must be bargained for. To be bargained for, a performance or return promise is sought by the promisor in exchange for his promise and given by the promisee in exchange for that promise.

Under applicable local case law, a court defined consideration for a promise as an act or a return promise, bargained for and given in exchange for the promise. The court found that, although a potential buyer of a parcel of realty suffered a detriment in attempting to obtain approval of rezoning and subdivision, these actions were not consideration for the granting of an option because the landowners did not agree to accept them as consideration.

The performance of a legal duty, including the duties of a fiduciary, is not consideration. Restatement (Second) of Contracts section 73, comment b (1981). See also 17 C.J.S. Contracts section 110 (1963). In the present case, under the terms of the Trust, Taxpayer has a right to be paid the unitrust amount (a fixed percentage of the fair market value of the trust) whether or not Taxpayer transfers the purported option to the Trust. Taxpayer's right to receive the unitrust amount with respect to any property voluntarily transferred to the Trust by Taxpayer is a right retained by Taxpayer in the transferred property and not a right granted to him by Trustee, pursuant to arms length bargaining, in exchange for the property transferred. Trustee is granted no discretion in paying the unitrust amount to Taxpayer, but is required by the terms of the Trust agreement to do so. Thus, payment of the unitrust amount is not a performance Taxpayer would need to bargain for in exchange for Taxpayer's transfer of the purported option to the Trust. In addition, because Trustee has a fiduciary responsibility under the Trust instrument to pay the unitrust amount to Taxpayer, performance of this obligation cannot be consideration.

Accordingly, in the present case, under applicable local law, as well as established estate and tax case law, Taxpayer's right to receive the unitrust amount from any property Taxpayer transfers to the Trust would not constitute consideration received by Taxpayer for the transfer of that property to the Trust.

It has also been asserted that, under local contract law, a benefit conferred upon the promisor or upon a third party can constitute consideration and that detrimental reliance by the third party charitable remainderman may constitute consideration. First, it has been suggested that the grant of the purported option to Trustee would confer a substantial benefit upon the charitable remainderman of the Trust as well as a benefit upon the grantor of the purported option. It has been represented that the purported option could be reported by the charitable remainderman in its financial statements and could be used to promote contributions from other sources. In addition, Taxpayer, by granting the purported option, may be recognized as a donor by the charitable remainderman.

It has further been argued that, if Taxpayer agrees to be bound by the purported option for a specified period of time, Trustee would be entitled to sell the purported option for valuable consideration. Under these circumstances, it would be foreseeable that the charitable remainderman could rely to its detriment on the grant of the purported option in soliciting potential donors or reporting its financial status. To the extent the charity relies on the purported option grant, Taxpayer would be estopped from revoking the purported option. In this regard, an analogy has been made to the grant of the purported option and a charitable pledge.

We disagree with these assertions. Taxpayer has not agreed to be bound by the purported option for any period of time. The purported option will be granted gratuitously, and, thus, under local law, could be revoked by Taxpayer at any time. Consequently, we question whether a charity could justifiably use the purported option as suggested, such that the purported option would become enforceable.

Similarly, we question whether promissory estoppel would apply to render the gratuitous purported option enforceable. We note that the charity's only interest is that of a remainderman of the trust. Thus, in this transaction, the only "promise" made to the charity by Taxpayer is that the charity will be entitled to receive any existing corpus of the Trust upon termination. No guarantee or promise is made as to the amount of the corpus. Thus, the charity has no basis for relying on the purported option such that would stop Taxpayer from revoking it.

Under these arguments, whether or not the purported option becomes enforceable is dependent on hypothetical and somewhat speculative future events, e.g., whether Taxpayer derives some benefit from the purported option through recognition as a patron of the charity, or whether the charity uses the purported option to solicit additional contributions. Thus, even assuming these arguments are correct, the purported option would not be enforceable at the time it is transferred to the Trust, but would only become enforceable at some indeterminate future date.

In summary, the transfer of the purported option to the Trust under these facts would not constitute a completed gift for federal gift tax purposes. Accordingly, the transfer would not constitute a transfer with respect to which a gift tax charitable deduction is allowable.

Finally, a sale of the purported option by Trustee of the unitrust to a third party, would not be treated as completing Taxpayer's gift to the Trust, assuming the sale to a third party does not render the purported option enforceable at that time. However, a subsequent sale of the realty by Taxpayer to a third party assignee at the option price might be viewed as a gift (in the form of a bargain sale) from Taxpayer to the third party assignee on the date of sale under section 2511 of the Code, depending on the facts presented at that time (e.g., the relationship of the third party assignee to Taxpayer). If the third party assignee is a charity, then the gift (the difference between the fair market value of the realty at the time of sale and the option price) could qualify for a gift tax charitable deduction, if the requirements of section 2522 (including section 2522(c)(2)) are satisfied. In this situation, the gift would be considered to be made to the third party charity outside the Trust. Accordingly, such a transfer would not constitute a transfer to the Trust for which a gift tax charitable contribution deduction is allowable with respect to the Trust.

In the present case, Taxpayer will make an intervivos transfer of the purported option to the Trust. For the reasons explained above, no deduction is allowable under section 170 or 2522 with respect to this transfer. Because no charitable deduction is allowable for income tax or gift tax purposes with respect to an asset transferred to the Trust, the Trust cannot be a charitable remainder trust in every respect and cannot function exclusively as a charitable remainder trust from its inception. Therefore, upon the transfer of the purported option to the Trust, the Trust ceases to qualify as a charitable remainder trust under section 664 and the regulations thereunder, even if it was otherwise qualified.

II. WHETHER TAXPAYER IS TREATED AS THE OWNER OF THE TRUST UNDER SUBPART E OF PART 1 OF SUBCHAPTER J OF THE CODE AND WHETHER GAIN REALIZED BY THE TRUST ON THE SALE OF THE PURPORTED OPTION IS TAXABLE TO TAXPAYER.


Having determined that, upon the transfer of the purported option to the Trust, the Trust does not qualify as a charitable remainder trust within the meaning of section 664 of the Code and the regulations thereunder, the Trust is subject to the provisions contained in subchapter J, including subpart E of part 1.

Section 671 of the Code provides the general rule that where the grantor or another person is treated as the owner of any portion of a trust, there shall be included in computing his or her taxable income and credits those items of income, deductions, and credits against the tax of the trust which are attributable to that portion of the trust, to the extent that such items would be taken into account in computing the taxable income or credit against the tax of an individual.

Sections 673 through 677 of the Code specify the circumstances under which the grantor is treated as the owner of a portion of a trust.

Section 677(a) of the Code provides that the grantor shall be treated as the owner of any portion of a trust whose income without the approval or consent of any adverse party is, or, in the discretion of the grantor or a nonadverse party, or both, may be distributed or accumulated for future distribution to the grantor or the grantor's spouse.

Because the income allocable to ordinary income or corpus of the Trust may be distributed to Taxpayer in order to make the required distribution of 9-percent of the net fair market value of the assets each year, the Taxpayer will be treated as the owner of the entire Trust pursuant to section 677 of the Code.

Rev. Rul. 85-13, 1985-1 C.B. 184, concludes that if a grantor is treated as the owner of an entire trust, the grantor is the owner of the trust's assets for federal income tax purposes. In accordance with the principles set forth in Rev. Rul. 85-13, because Taxpayer will be treated as the owner of the entire trust under section 677, Taxpayer will also be treated as the owner of the Trust's assets for federal income tax purposes. Accordingly, Taxpayer will be required to include in computing Taxpayer's taxable income and credits all the Trust's items of income, deduction, and credits against tax, including gain or loss realized by the Trust on the transfer of the purported option to a third party for valuable consideration.

Except as we have specifically ruled herein, we express no opinion as to tax consequences of the transaction under the cited provisions of the Code or under any other provisions of the Code.

A copy of this letter should be attached to the Trust's federal income tax return for the tax year in which the purported option is transferred to the Trust. A copy of this letter is enclosed for that purpose.

This ruling is directed only to the taxpayer who requested it. Section 6110(j)(3) of the Code provides that it may not be cited as precedent.

in accordance with the request for ruling submitted, a copy of this ruling is being sent to your authorized representatives.

Sincerely yours,

Frances D. Schafer
Senior Technician Reviewer
Branch 3
Office of Assistant Chief Counsel
(Passthroughs and Special Industries)

FOOTNOTE


1 Under section 2036(a) of the Code, the gross estate includes the value of property transferred by the decedent (other than pursuant to a bona fide sale for full and adequate consideration) in which the decedent retained a right to receive the income from the property. Under section 2043(a), the amount includible under section 2036(a) is offset by any consideration received by the decedent for the initial transfer.

END OF FOOTNOTE



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