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Thursday December 13, 2018

Case of the Week

Wild Bill Russell's "Artistic" Unitrust


Bill Russell grew up on the Great Plains. During his youth, he was a rodeo bull rider and gained fame as "Wild Bill" for his daring exploits. But Wild Bill was an artist at heart and soon decided to move on to his artistic pursuits. He traveled throughout America and Europe and studied all of the great modern and classical artists. In France, he was greatly impressed by the delicate works of Impressionist painters Monet and Manet and the bold colors and brush strokes of Van Gogh. Upon his return to his beloved great plains of the west, Wild Bill combined the subtlety of the Impressionists, the colors of Van Gogh and his own unique skills. His Impressionist western landscapes and paintings of cowboys and life on the ranch became treasured by art collectors nationwide.


Wild Bill was rapidly gaining a national reputation. His western Impressionist art exhibits would draw art lovers from America and the world. He was selling his paintings for $75,000 or more and, as a result, was facing a much higher income tax bill. Wild Bill called his CPA Helen Swenson and said that he thought there must be a better way. Could Helen find a way for Wild Bill to sell his paintings tax free? After talking to the gift planner at the Cowboy Western Museum, Helen called Wild Bill and exclaimed, "I found the answer. We can sell your paintings tax free!"


Helen explained the benefits of giving Wild Bill's paintings to a charitable remainder unitrust. Generally, the unitrust will use either a net income plus makeup or a FLIP formula payout. If a FLIP unitrust is selected, the trigger event for the FLIP would be the sale of the art. The FLIP trust will be a net income plus makeup unitrust until the art is sold. On the following January 1, the FLIP trust may then become a straight unitrust and begin making standard payouts to Wild Bill.

When art is transferred to a charitable remainder trust, there are two specific rules that limit the deduction. First, there is no charitable deduction for a future interest in tangible personal property. The deduction applies only after all "intervening interests" have expired. Sec. 170(a)(3). Therefore, when art is transferred to a charitable remainder unitrust, there is no charitable deduction at that time. However, if the art is then sold by the trust, the charitable deduction is available in the year of the sale. After the art has been sold and cash has been received by the trust, the intervening interest in the tangible personal property expires. Reg. 1.170A-5(a)(1).

The second rule reduces the charitable deduction from fair market value to cost basis, assuming that the property's value exceeds cost basis. Even after the art is sold and the intervening interest has terminated, there still has been a transfer of tangible personal property for an unrelated use. The deduction for unrelated use gifts is the lesser of the donor's cost basis or the property's fair market value. Therefore, in this instance, the charitable deduction for an unrelated use gift of art to a charitable remainder unitrust is the cost basis of the art times the remainder factor. Reg. 1.170A-5(b)(7).

In order to calculate the charitable deduction, both of the above rules must be applied. This calculation will be different from that of a unitrust funded with cash or public stock, since the valuation date is deferred under the "intervening interest" rule. Each transfer to a charitable trust must be valued on a "valuation date." Sec. 7520(d). For a gift of art to a unitrust, the value is first reduced from fair market value to cost basis under the unrelated use rule. However, there still must be a valuation, since a charitable deduction is permitted at cost basis only if the fair market value is equal to or greater than cost basis.

Therefore, when the asset is sold, the intervening interest has terminated and the charitable deduction will be the appropriate factor times the lesser of cost basis or fair market value. The required Applicable Federal Rate (AFR) will be the rate for the month of that valuation date or either of the prior two months. Sec. 7520(a)(2). The highest rate will produce the largest deduction.

Because Bill's cost basis consists of only the cost of the paint and canvas in his paintings, he will receive a small deduction. But his primary goal is to sell the paintings tax free. Bill decided to use the unitrust to sell half of the paintings he creates each year. "Wow," he thought. "I cut my income in half and saved enough taxes to feed my horse Trigger for years. This is the best deal around!"

Bill was able to fund the unitrust with a painting. As each painting sold, he continued to add new paintings to his unitrust. In time, Wild Bill had over $1 million in value in his unitrust.

Published December 7, 2018
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