Citation Numbers: 4 Or. Tax 426
Judges: CARLISLE B. ROBERTS, Judge.
Filed Date: 6/2/1971
Status: Precedential
Modified Date: 1/13/2023
Decision for plaintiffs rendered June 2, 1971. The plaintiffs appeal from the Department of Revenue's Order No. I-69-60, requiring them to pay additional personal income taxes for the years 1965 and 1966. The question presented is whether the income of trusts established by the plaintiffs in June *Page 427 1964, for the benefit of three minor children, should be taxed to the plaintiffs or to the trusts.
As to each beneficiary, the trust agreement (Plaintiffs' Exhibit 2, pp 10, 13, 16) provides:
"The Trustee shall, during the term of the trust, and until he shall attain the age of legal majority, distribute to or for the benefit of [the named beneficiary] * * * such amounts out of the net income of the * * * Trust as the Trustee shall from time to time determine, in the exercise of his sole discretion, as necessary or desirable for the education, advancement in life, and support of said beneficiary, and said distributions of net income shall be so made at such time or times as the Trustee shall decide. * * *"
ORS
"(1) There shall be included in computing the net income of the grantor of a trust, that part of the income of the trust which:
"* * * * *
"(b) May, in the discretion of the grantor or of any person not having a substantial adverse interest in the disposition of such part of the income, be distributed to the grantor."
Under the rule of Prentice v. Commission,
The plaintiffs recognize and accept the principle of the cases cited but protest that the trust, during the years in question, had little income which could be distributed to the beneficiaries and therefore the *Page 428
rule of the Prentice and the Hall cases, supra, should not be applied to the whole amount of income on which the trust was required to pay income taxes. Further, they contend that the trustee had a "substantial adverse interest" in the disposition of the trust income which would render ORS
In proof of their position, the plaintiffs submitted the following facts, which are undisputed:
In 1964, Melvin C. Shelley was one of 15 partners in a copartnership engaged in an extensive logging and lumbering operation. The partnership had substantial long-range indebtedness and, to guarantee repayment according to plan, the partnership agreement provided that the partnership interests were not alienable without the unanimous consent of the partners. Partnership income was to be used first to pay loans and taxes. Mr. and Mrs. Shelley desired to create an irrevocable trust for the benefit of their four children (three of whom were minors), consisting of one-half of their partnership interest in the partnership's capital account as of May 31, 1964, one-half of their interest in the undivided assets of the partnership on June 1, 1964, and one-half of their interest in the earnings and profits of the partnership on and after June 1, 1964. Pursuant to provisions in the partnership agreement (Plaintiffs' Exhibit 1), drafted for such a contingency, they obtained from the other partners the necessary approval for granting this interest in trust, subject to the condition that the trustee must be bound by all of the provisions of the partnership agreement. Under the agreement, the trustee thereupon became a partner in the business, fully bound by the articles. Consequently, he could not liquidate the partnership interest without the consent of the other partners, including the trustor. *Page 429
Substantial amounts of money were withheld by the partners to meet debts and operating expenses and the partnership agreement provided that "no partner shall be entitled to withdraw any part of his share of the accumulated earnings or profits of the partnership except at such time or times, and in such amount or amounts as shall be mutually agreed upon by a majority vote of all the members of the partnership," except for money necessary to pay income taxes on each partner's share of partnership income. The trustor thus had no right to call for a distribution of money, nor did the trustee. Except for money paid to satisfy income tax obligations of the trusts, the only money paid during 1965 to the three trusts for the minor children was $1,685.06 and the only money paid during 1966 to all three trusts was $7,086.06. The plaintiffs asserted that nothing more than these amounts, if any, should be subject to the Prentice rule. As a matter of fact, no sums whatsoever were paid by the trust to the beneficiaries, by way of support or otherwise.
The court finds for the plaintiffs, based on the following reasoning:
1. In this case, the trust agreement and the partnership agreement must be read in pari materia because each instrument was drafted in contemplation of the other, and they sanction interrelationship of trust and partnership. A trustee may be a partner. See 6 Mertens, Law of Federal Income Taxation, § 35.21.
2. The trustee, as a partner, is required to pay federal and state income taxes upon the trust's share of partnership net income, whether distributed to and received by the partner-trustee or not. IRC, Reg. § 1.702-1 (a); ORS
3. Plaintiffs conceded that the trust received income during 1965 in the sum of $1,685.06 and in 1966 in the sum of $7,086.06 which was not earmarked for payment of income taxes. They contend that the trustee, by reason of his status as a partner, must be regarded as having a "substantial adverse interest" in the disposition of this income as against the trustor and consequently ORS
The trustee, in the present case, does not have "a substantial adverse interest" in the disposition of the income.Loeb v. Commissioner,
As stated in Mertens, supra, § 37.03:
"An 'adverse party' is a person possessing a substantial beneficial interest in the trust which would be adversely affected by the exercise or nonexercise of the power which he possesses with respect to the trust. It is important to note that there must be a substantial beneficial interest for qualification as an adverse party. * * * However, the bare legal *Page 431 interest of a trustee is not regarded as a substantial beneficial interest so that a trustee qua trustee does not qualify as an adverse party."
1. While it may be argued that the trustee in the present instance, as a partner, has a "substantial adverse interest" in the disposition of the income, in the court's view the better interpretation is that the powers and duties of the trustee, even when functioning as a partner, are so closely connected to the trusteeship that he cannot be regarded as having a "substantial beneficial interest" in any other guise.
2, 3. However, the court concludes that the case must turn on a separate provision of the trust instrument, not hitherto referred to, found on page 25 thereof, entitled "IV. Limitations on Powers of Trustee." This provision prohibits the trustee and trustor or any other person to purchase, exchange or otherwise deal with or dispose of all or any part of the principal or income of the trust for less than an adequate consideration, or to enable the trustor to borrow therefrom without adequate interest or security, and closes with the following sentence:
"* * * No part of the principal or income of a trust estate shall be used for or applied to the payment of premiums upon policies of insurance on the life of Trustor or to satisfy any legal obligations of the Trustor." (Emphasis supplied.)
The defendant has contended that the provisions of the trust agreement, found on pages 10, 13 and 16, to allow the trustee to "distribute to or for the benefit of [the named beneficiary] * * * such amounts out of the net income of the * * * Trust as the Trustee shall from time to time determine, in the exercise of his sole discretion, as necessary or desirable for the education, *Page 432
advancement in life, and support of said beneficiary * * *," make the trusts subject to the Prentice and to the Hall
decisions. A reading of the instrument as a whole leads to the conclusion that the intent of the trust is not to support the infant during his minority but to make regular payments of income to him after reaching his majority. As stated by Mr. Justice ROSSMAN in the case of In re Edwards' Estate,
Following this rule, the defendant's order No. I-69-60 must be set aside and held for naught. The plaintiffs are entitled to costs.
Defendant's pretrial memorandum and argument, suggesting attribution of income through possible sale of interests in the trust corpus, have been noted, but the argument is too speculative and remote to be considered. *Page 433
Loeb v. Commissioner of Internal Revenue , 113 F.2d 664 ( 1940 )
Morton v. Commissioner of Internal Revenue , 109 F.2d 47 ( 1940 )
In Re Edwards' Estate , 153 Or. 696 ( 1936 )
Williams v. Morris , 144 Or. 620 ( 1933 )
Prentice v. Commission , 2 Or. Tax 215 ( 1965 )
Cohen v. Dept. of Revenue , 4 Or. Tax 270 ( 1971 )
Helvering v. Stuart , 63 S. Ct. 140 ( 1942 )