Charitable Contribution Primer. Advantage of Lifetime Giving. Testamentary. Lifetime. Section 170 3/17/2015. Estate Tax Deduction

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Preston Crawford
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1 Charitable Contribution Primer Advantage of Lifetime Giving Testamentary Estate Tax Deduction Lifetime Income Tax Deduction Remove from Estate Section 170 Overview of Basic Rules Individual taxpayer Itemized deduction Donations made during the taxable year Substantiated 1

Remove from Estate Section 170 Overview of Basic Rules Individual

2 Charitable Contribution Defined Voluntary transfer Money or property To a permissible donee Without the receipt of economic benefit Voluntary Transfers No Quid Pro Quo Exceptions Dual payment Incidental benefit Benefit indistinguishable from that received by the general community Permissible Donees Section 501(c) organizations Governmental entities and subdivisions Certain others organizations 2

Incidental benefit Benefit indistinguishable from that received by the general community

3 LIMITATIONS ON DEDUCTIONS Limits Based on Income Individual Taxpayers Donations to 50% charities (publicly supported) Cash and Ordinary Income Property Long term capital gain property Donations to Non 50% Other Charities Excess Contributions Ordinary Income Property Property that, if sold for fair market value, would generate ordinary income Inventory Short term capital gain property 3

to Non 50% Other Charities Excess Contributions Ordinary Income Property Property that, if sold

4 Long Term Capital Gain Property Property that, if sold for fair market value, would generate long term capital gain Capital assets held for more than one year Section 1231 property Election to Increase Limit Election Limit deduction to adjusted basis Qualifies for the 50% deduction limit Applies to all Donations Consider Election Taxpayer may not live long enough to deduct the excess donation, or Accelerate deduction where appreciation is minimal Limits Based on Type of Property General Rule Amount of deduction Sum of cash contributed Fair market value of donated property 4

Applies to all Donations Consider Election Taxpayer may not live long enough to deduct the excess donation, or Accelerate deduction where

5 Reduction for Ordinary Income Section 170(e) Deduction limited to: Property s fair market value Minus amount of gain that would be taxed as ordinary income if sold Affected Property Unaffected Property MAXIMIZING OUTRIGHT CHARITABLE CONTRIBUTIONS Donating Appreciated Long Term Capital Gain Property Donate appreciated long term capital gain property Deduct fair market value Appreciation not taxed Reduces the tax cost of donation by the tax that would have been paid if Taxpayer had kept property and sold it 5

Appreciated Long Term Capital Gain Property Donate appreciated long term capital gain property Deduct fair market value

6 Compare: Gift of Cash to Gift of Property Donate $1,000 cash Tax savings (at 40%) $400 Cost of the donation $600 Blackacre Long term capital gain property Fair market value $1,000 Adjusted basis $100 After tax proceeds $820 $900 * 20% Donate Blackacre Tax savings (at 40%) $400 Cost of donation $420 After tax proceeds ($820) minus tax savings ($400) Donating Appreciated Stock Publicly Traded Corporation Deduct FMV of stock Avoid appraisal Purchase replacement shares Closely held Corporation Deduct FMV of stock Appraisal If corporation redeems the stock Shareholder claims charitable contribution deduction Corporation s cash funds the donation Bargain Sale to Charity Defined Sell property to charity for less than fair market value Intend to make a gift of the balance Tax Treatment Donation of part Sale of part Taxpayer must recognize any gain Taxpayer must allocate adjusted basis between two transactions 6

Corporation Deduct FMV of stock Avoid appraisal Purchase replacement shares Closely held Corporation Deduct FMV of stock Appraisal If corporation redeems the stock Shareholder claims charitable

7 Example of Bargain Sale Blackacre Appreciated, long term capital gain property Fair market value of $800 Adjusted basis of $200. Bargain sale for $200 Treated as Sale of 25% Donation of 75% Allocation of Taxpayer s adjusted basis 25% ($50) to sales transaction 75% ($150) to donation Tax Consequences Taxpayer s gain realized $150 Charitable contribution deduction $600 Donation of Mortgaged Property Treated as bargain sale Even though the charity does not agree to assume or to pay the indebtedness Bargain sale price amount of mortgage Allocation of adjusted basis Determined by ratio of the outstanding balance of the debt to the fair market value of the donated property Donating Tangible Personal Property Deduction frequently limited to adjusted basis Section 170(e) Ordinary Income Property Depreciation Recapture If use by charity does not further the charity s exempt purpose If charity sells property Based on type of charity E.g., private foundation 7

$150 Charitable contribution deduction $600 Donation of Mortgaged Property Treated as bargain sale Even though the charity does not agree to assume or to pay the indebtedness Bargain sale price

8 Property with Built-in Loss Property used in an income producing activity Fair market value is less than taxpayer s adjusted basis Don t donate Sell GIFT OF PARTIAL INTEREST NOT IN TRUST Partial Interest (Split Interest) Gifts Defined Donate less than the donor s entire interest in the property Benefit Current tax deduction Retain use Examples Life estate or a remainder interest Use of property without charge Artwork if donor owns and keeps copyright 8

Defined Donate less than the donor s entire interest in the property Benefit Current tax deduction Retain use

9 Deduction for Gifts of Partial Interests General rule No deduction Unless made in trust Exceptions Donor s only interest is a partial interest E.g., Taxpayer owns a remainder interest in Blackacre Remainder interest in personal residence Any personal residence, including vacation home Remainder interest in farm Land used by taxpayer or his tenant for the production of crops, fruits, or other agricultural products or for the sustenance of livestock May be made with respect to all or a portion of the farm Qualified conservation contribution E.g., conservation easement Fractional gifts E.g., Taxpayer gives 1/3 of Blackacre to charity Fractional Gifts of Tangible Personal Property Immediately before the contribution Only taxpayer and charity may hold interests in property Donor must contribute remaining interest within 10 years Charity must Take substantial physical possession of the property or Use it for the charity s exempt purpose 9

tenant for the production of crops, fruits, or other agricultural products or for the sustenance of livestock May be made with respect to all or a portion of the farm Qualified conservation

10 CHARITABLE REMAINDER TRUSTS Structure Donor Transfers property to trust Donor retains present interest Life estate or a term interest Donates remainder interest Deducts actuarial value of remainder interest Alternatively, Donor may give present interest to one or more non charitable beneficiaries One of whom may be the donor Benefits and Limitations Benefits Income tax deduction Retain benefit of property Shelter property from estate tax Limitation Restrictions on present interest Annuity interest (CRAT) Unitrust interest (CRUT) 10

non charitable beneficiaries One of whom may be the donor Benefits and Limitations Benefits Income tax deduction Retain benefit of

11 Income Taxation Taxation of Charitable Remainder Trust Tax exempt Unrelated business income Subject to a 100% excise tax. Taxation of Non charitable Beneficiary Distributions taxable to non charitable beneficiary Using Charitable Remainder Trusts Accelerate Tax Deduction Avoiding taxable distributions Sheltering Gain From the Sale of Property Diversifying Investment Comparing CRATs and CRUTs CRATs Larger deduction Security of a fixed payment Favoring CRUTs Hedge against inflation Additional contributions permitted 11

Accelerate Tax Deduction Avoiding taxable distributions Sheltering Gain From the Sale of Property Diversifying Investment

12 Unproductive Assets Trust funded with unproductive assets CRUT Can pay lesser of the unitrust amount or the trust s income May include a make up provision Permits deficiencies to be made up in future years where income exceeds the unitrust payment CRAT must always pay out the annuity amount CHARITABLE GIFT ANNUITIES Basics Structure Donor gives money or other property to a charity Charity promises to pay an annuity to the donor Or, to donor and another annuitant Charitable contribution deduction Equals difference between Value of the property given to the charity and Value of the annuity 12

CHARITABLE GIFT ANNUITIES Basics Structure Donor gives money or other property to a charity Charity promises to pay an annuity to the donor Or, to

13 Donations of Appreciated Property Treated as Bargain Sale Properly structured Gain recognized ratably over the donor s life expectancy Requirements to defer gain recognition Annuity must be non assignable Other than to the charity Only permissible annuitants Donor, or Donor and designated survivor annuitant or annuitants Taxation of Annuity Payments If the donor contributes cash Each annuity payment Partly a return of capital (non taxable) Partly interest (taxable as ordinary income) If the donor contributes appreciated property Each annuity payment Partly a return of capital (non taxable) Partly gain (long term capital gain, typically) Partly interest (taxable as ordinary income) Avoiding Taxation on Future Annuity Payments Relinquishing Annuity to Charity Donor s Premature Death 13

annuity payment Partly a return of capital (non taxable) Partly interest (taxable as ordinary income) If the donor contributes appreciated property Each annuity payment Partly a return of capital

GIVE AND YOU SHALL RECEIVE CHARITABLE GIVING, CREATING A PLAN THAT S RIGHT FOR YOU

GIVE AND YOU SHALL RECEIVE CHARITABLE GIVING, CREATING A PLAN THAT S RIGHT FOR YOU Contents 1 Give and you shall receive 3 Techniques summary 5 Planning for charitable giving NOT FDIC OR NCUA INSURED NOT