The IRS has done yeoman’s service in publishing specimen safe-harbor charitable remainder unitrust agreements for inter vivos and testamentary trusts. The specimens update, improve and greatly expand on those previously issued by the IRS. The Service gives copious annotations on the underlying law and supplies alternative provisions.

It’s been said that a footnote is equivalent to going downstairs on one’s wedding night to answer the doorbell. When it comes to the footnotes to IRS’s specimens (the annotations and alternative provisions) you ignore the doorbell at your peril because some of the alternative provisions should be in the vast majority of CRUTs.

Before producing the specimens, IRS asked for suggestions from the public. Mirable dictu, IRS followed most of the suggestions and it has done a most thorough job. IRS says that a CRUT will qualify for "safe-harbor" treatment (be qualified) if a CRUT is "substantially similar" to IRS’s specimen and other requirements are met. More about that later.

As I wrote back in 2003 when IRS issued helpful charitable remainder annuity trust specimens, the trust forms are extremely helpful but you can’t just tell your golden retriever to fetch a specimen and fill in the blanks. He must first determine: the type of property ownership (e.g., separate property, jointly held); whether the donor or donors will also be beneficiaries, who the donors are; whether the funding asset is marketable; the nature of the charitable remainder organization (e.g., publicly supported or private foundation); that the payout is not less than 5% nor more than 50%; compliance with the 10%-minimum-remainder-interest (10% MRI) requirement; and when to add or substitute an alternative provision. Of course, this is just a partial listing so Rover still has his work cut out for him.

To get the whole ball of tax (all the specimens, alternative provisions and annotations), see Rev. Proc. 2005-52 through Rev. Proc. 2005-59. Go to and click on IRS’s Specimen Charitable Remainder Unitrusts.

Glaring Omission: Rev. Proc. 2005-24—Spousal "Right of Election" Isn’t Even Mentioned

In the eight revenue procedures (discussed in this issue) detailing the numerous requirements for a CRT’s qualification there’s not a peep from IRS about Rev. Proc. 2005-24 which if not complied with will disqualify all trusts that meet the requirements of IRS’s safe-harbor specimens.

Rev. Proc. 2005-24 dictates that unless sometimes impossible-to-meet requirements are met, inter vivos charitable remainder unitrusts and annuity trusts are disqualified—retroactively to the date of creation—if a spousal right of election now exists under state law, exists in the future and can exist if the grantor (donor) of a CRUT or CRAT, moves, marries or remarries. For a trust created on or after June 28, 2005 disqualification can be avoided—under a "safe harbor" rule—if the spouse’s waiver of a right of election is timely obtained and kept with the CRT’s records. The mere existence of a right of election—even though it isn’t exercised—will cause a CRT’s disqualification as of the date of its creation if a waiver hasn’t been obtained. Back reference. Inter Vivos CRUTs and CRATs—Spousal "Right of Election", Taxwise Giving, April ‘05, page 1.

To satisfy the requirements of Rev. Proc. 2005-24, donors will often have to jump through more hoops than a circus dog. So it’s surprising that IRS doesn’t even mention the spousal right of election waiver requirement in its specimen forms. The American Council on Gift Annuities and a few other groups have written to Treasury and the IRS asking them to withdraw Rev. Proc. 2005-24 for further study—or at the very least announce that waivers won’t be required whatever date a CRT was created or will be created.

ACGA maintains that waivers shouldn’t be required for CRUTs or CRATs—whether created before June 28, 2005 or on or after that date. It tells how the government can be protected in the very rare case that a right of election is actually exercised. Back reference: Revenue Procedure 2005-24, Taxwise Giving, May ‘05, page 1; and Ask IRS to Modify or Withdraw the Spousal Right of Election Requirement for CRUTs and CRATs, Taxwise Giving, July ‘05, page 1.

Fixed percentage unitrust. For each of the four situations (below), IRS’s specimen form is for the fixed percentage method of computing the payments (so-called standard unitrust or STAN-CRUT)—the Recipient (Beneficiary) is paid a fixed percentage x the net fair market value of assets valued annually.

• Net income method of calculating the unitrust amount (NI-CRUT). The unitrust amount is the lesser of the fixed percentage x the net fair market value (valued annually) or the trust income for that year.

• Net-income-with-makeup method of calculating the unitrust amount (NIM-CRUT). The fixed percentage x the net fair market value (valued annually) or the actual income whichever is lower; in any year that the income exceeds the fixed percentage x the fair market value, the excess is paid to the extent needed to make up shortfalls in an earlier year or years.

• Combination of methods for calculating the unitrust amount (FLIP-CRUT). Simply put, this is a unitrust that starts out as a NI-CRUT or NIM-CRUT and on the occurrence of an authorized triggering event becomes a STAN-CRUT on January 1 of the year following the triggering event. Any shortfalls in a NIM-CRUT as of December 31 of the year of the triggering event are forfeited and not to be made up.

• Unitrust payments for one measuring life—Rev. Proc. 2005-52. Use this when the donor or an individual designated by the donor is to be the beneficiary.

• Unitrust payments for a term of years—Rev. Proc. 2005-53. As a reminder, the term can’t exceed 20 years. The Code and regulations also authorize a trust to make payments to an individual for life or for a term up to 20 years, whichever is longer (or shorter). IRS doesn’t supply a specimen trust (or an alternative provision) for those situations. But, hey, that’s why the trust’s drafter went to law school.

• Unitrust payments for two consecutive measuring lives—Rev. Proc. 2005-54. By this IRS means, for example, pay Alpha (the donor) for life and if she is survived by Bravo, pay him for life. This form will generally be the one to use when the donor owns the funding assets as separate property and wishes to provide payments for herself and then for a survivor.

Alert: To avoid making a gift to the survivor that could subject the donor to gift tax (or unnecessarily reduce any remaining $1 million gift tax exemption), the donor should keep the right—exercisable only by will—to revoke the survivor’s payments. A clause to accomplish this isn’t in IRS’s specimen, but is an alternative provision.

IRS’s specimen can also be used when the donor doesn’t wish to be a CRUT beneficiary but wants to provide payments to two other individuals, with one individual to receive the entire payment for life and then the entire payment is to be made to a survivor beneficiary.

In this situation, the donor shouldn’t keep the right to revoke. Doing so would result in the value of the trust assets being includable in the donor’s gross estate. Although keeping the right to revoke when the donor is a beneficiary will result in inclusion of the trust assets in her gross estate, the assets would have been included even without the revocation provision because the donor kept the right to life income. Of course, the donor’s estate will get a 100% estate tax charitable deduction for the value of the charity’s remainder interest at her death if the second beneficiary doesn’t survive—resulting in a wash. The estate tax charitable deduction will be smaller if the second beneficiary does survive. An estate tax marital deduction is allowable if the survivor beneficiary is a U.S. citizen spouse. For a non-citizen (alien) spouse, the marital deduction will be available if the Qualified Domestic Trust (QDOT) requirements are met.

• Unitrust payments concurrent and consecutive for two measuring lives—Rev. Proc. 2005-55. By this IRS means, for example, pay Alpha and Bravo jointly for life and then to the survivor of them for life. Use this trust for donors who are spouses owning the funding assets as joint property, tenants by the entirety, tenants in common or community property and wish to provide payments for both of them and then for the survivor. The right to revoke each other’s survivorship interest needn’t be kept because the survivorship interest automatically qualifies for the gift tax marital deduction (spouses are U.S. citizens) and then the estate tax marital deduction. Nevertheless, I believe the revocation right should generally be kept. If for some reason the CRUT isn’t qualified, the gift tax marital deduction won’t be available. Keeping the right to revoke avoids a gift being made to the other spouse and thus a gift tax marital deduction isn’t needed. As for the estate tax marital deduction, that won’t be available if at the death of the first spouse to die, the parties are divorced (the party’s over). So keeping the right to revoke could be a good idea.

Multiple grantors (donors)—heads up. To qualify for the safe-harbor, IRS states in the annotations that the donor must be an individual. If there are two donors, they must be husband and wife. In Letter Ruling 9547004, IRS ruled that a charitable remainder unitrust wasn’t qualified because it had multiple grantors as beneficiaries —grandma, grandpa and their six grandchildren. Responding to numerous requests that the ruling be withdrawn and that IRS affirmatively announce that multiple grantor unitrusts are okay, the letter ruling’s author said that the IRS held to its position.

Now the IRS imposes the non-spouse-multiple-grantor restriction on CRUTs by an annotation in a revenue procedure: "For purposes of qualification under this revenue procedure, the donor may be an individual or a husband and wife." Thus a brother and sister (or domestic partners) who own property jointly can’t create a CRUT and qualify for safe-harbor protection.

Why does IRS have a problem with multiple grantor trusts? Apparently Letter Ruling 9547004 was IRS’s attempt to thwart the so-called near-zero-net-income-with-makeup charitable remainder unitrust.

Some donors apparently had created NIM-CRUTs to pass assets to family members at no or reduced gift tax. Yet, what the family member received down the line could have great value. A donor could, according to an IRS example, create a NIM-CRUT paying a unitrust amount to the donor for 15 years or his life, whichever is shorter, and then to the donor’s daughter for her life. The donor’s gift to his daughter was relatively small (discounted for the period she had to wait) compared to the amount the daughter would actually receive. She typically, said IRS, would receive something worth much more then the discounted value because the trustee could invest the NIM-CRUT assets in a way to produce little or no income while the donor was entitled to receive the income, creating substantial makeup amounts.

When the donor’s interest ended, the trustee would switch to a high-income-producing investment. The trustee would then pay the daughter the makeup amount. That created an opportunity, said IRS, to transfer property to a family member free of or at greatly reduced gift tax. Note: This ploy couldn’t have worked with a charitable remainder annuity trust (because there is no net-income-with-makeup annuity trust).

An IRS regulation—Reg. §25.2702-1(c)(3)—issued after the 1995 letter ruling, eliminates the near-zero-NIM-CRUT strategy by valuing the donor’s retained interest at zero, making the value of the daughter’s interest, in the example, equal to the full fair market value of the assets used to fund the trust.

Suggestion to IRS: In light of the just cited regulation, announce that multiple-grantor CRUTs and CRATs are allowable in all cases.

• Unitrust payments for one measuring life—Rev. Proc. 2005-56.
• Unitrust payments for a term of years—Rev. Proc. 2005-57.
• Unitrust payments for two consecutive measuring lives—Rev. Proc. 2005-58.
• Unitrust payments concurrent and consecutive for two measuring lives. Rev. Proc. 2005-59.

"This trust is irrevocable. However, the Trustee shall have the power, acting alone, to amend the trust from time to time in any manner required for the sole purpose of ensuring that the trust qualifies and continues to qualify as a charitable remainder unitrust within the meaning of section 664(d)(2) of the Code."

This is an important provision. In many cases it can save a trip to the courthouse. Note, however, the provision doesn’t enable a trustee to correct major muck-ups. For those, a court reformation (not always successful) based on a scrivener’s error is often required.

It is often important to have such a provision in NIM-CRUTs and NI-CRUTs. And it can be especially important for FLIP-CRUTs. When the trigger is pulled, the trust becomes a STAN-CRUT on the following January 1. Any deficit in the makeup account on December 31 of the year of the triggering event is forfeited. By having a capital-gains-as-income provision in a FLIP-CRUT and with proper timing of pulling the trigger, the deficit can be reduced or eliminated before the trust flips. The trustee waits to pull the trigger until there is enough post-transfer-to-the-trust appreciation so that on pulling the trigger the accounting income will reduce or eliminate the amount in the makeup (forfeiture) account. IRS doesn’t supply a specimen capital-gains-as-income provision in its specimen. Query. Will your trust "substantially follow"

IRS’s specimens—and thus give you safe-harbor protection—if your trust has such a provision? It is an important provision in many cases and just because you are not in the safe harbor doesn’t mean that your unitrust isn’t qualified. It means, however, that you don’t have a guarantee in your back pocket.

IRS provides sample alternative provisions for a number of situations. You’ll want to look at all of them, but here are the ones that I believe merit attention:

• Retained right to revoke—by will—a beneficiary’s survivorship interest. This is too important to bury down here so I’ve discussed it upstairs on page 5.

• Avoiding deductibility limitations imposed for remainders to private foundations (other than operating or "pass through" foundations). To qualify for the higher income tax deductibility ceilings for gifts to public charities and in many cases have the remainder for gifts of appreciated assets based on the fair market value (instead of the cost basis), the governing instrument should restrict the charitable remainderman (or any alternative charitable remainderman) to an organization that is described in IRC §170(b)(1)(A) as well as IRC §§170(c), 2055(a), and 2522(a).

Caution. IRS’s specimens don’t recite IRC §170(b)(1)(A). That’s one of the alternative provisions.

• Proration of annuity amount for last year of trust. IRS’s specimens prorate the unitrust amount payable to a beneficiary on a daily basis for the number of days that the beneficiary lived in the last taxable year. As an alternative, the payments can terminate with the payment preceding the beneficiary’s death. This means that the charitable remainderman will receive more and there will be no payment to the beneficiary’s estate.

For a two-life trust, IRS specimen provides that the payment immediately following the first beneficiary’s death is to be prorated between the first beneficiary’s estate and the survivor beneficiary. An alternative provision provides that the payments to the first beneficiary shall terminate on his death and the survivor shall receive the entire payment subsequent to the first beneficiary’s death (with no pro rata payment to the first beneficiary’s estate).

• Self-dealing, taxable-expenditure, jeopardy-investment and excess-business holding prohibitions. IRS’s specimens provide that the trustee shall not engage in any act of self-dealing and shall not make any taxable expenditures. But if a CRUT provides for payments of part of a unitrust amount to an IRC §170(c) organization, the trust must also prohibit investments that jeopardize the trust’s exempt purpose and prohibit retaining any excess business holdings.

• Early distributions to charity. The trust instrument may provide that an amount other than the unitrust shall be paid (or may be paid in the discretion of the trustee) to an IRC §170(c) charity. If that distribution is made in kind, the adjusted basis of the property distributed must be fairly representative of the adjusted basis of the property available for distribution on the date of distribution. See Reg. §1.664-3(a)(4). Note: The donor gets no charitable deduction for any amounts distributed to charity.

• Trustee provisions. Although IRS doesn’t give specimen language, the annotations provide that alternative or successor trustees may be designated in the trust instrument. In addition, the trust instrument may contain other administrative provisions relating to the trustee’s duties and powers, as long as those provisions don’t conflict with the Code and regulations governing charitable remainder trusts.

• Tax payment clause. If it is possible that all or part of the fair market value of the trust assets will be includable in the donor’s gross estate for federal estate tax purposes, the trust must provide that any federal estate taxes and state death taxes are to be paid from sources other than the trust. Even if the tax payment clause will never become operative, says IRS, the clause is necessary because it ensures that the trustee will never be required to pay federal estate taxes or state death taxes from the trust assets. See IRC §664(d)(2)(B); Reg. §1.664-1(a)(6), Example 3; and Rev. Rul. 82-128, 1982-2 C.B. 71.

• CRUT to continue in existence for benefit of charity. The governing instrument requirements of IRC §508(e) must be included in the trust instrument if, after the termination of the unitrust period: (1) the trust provides that it shall continue in existence for the benefit of the charitable remainderman and, as a result, the trust will become subject to the provisions of IRC §4947(a)(1); and (2) the trust will be treated as a private foundation within the meaning of IRC §509(a), as modified by IRC §4947(a)(1). The trust instrument may limit the application of the provisions of IRC §508(e) to the period after the termination of the unitrust period when the trust continues in existence for the benefit of the charitable remainderman.

Note: When the trust provides for the trust corpus to be retained in trust for the charitable remainderman, the higher deductibility limitations in IRC §170(b)(1)(A) for the income tax charitable deduction won’t be available even if the charitable remainderman is restricted to a public charity because the contribution of the trust corpus is made "for the use of" rather than "to" the charitable remainderman. See Reg. §1.170A-8(b).

• Sprinkling of the unitrust amount among members of a named class in the trustee’s discretion. A CRUT isn’t qualified if any person has the power to alter the amount to be paid to any named person other than an IRC §170(c) organization "if the power would cause any person to be treated as the owner of the trust, or any portion thereof, if subpart E . . . were applicable to the trust." Reg. §1.664-2(a)(3)(ii). See Rev. Ruls. 72-395, 1972-2 C.B. 340; 77-73, 1977-1 C.B. 175. A trustee’s discretionary power, exercisable solely by that trustee, to allocate the annuity amount among the members of a class would cause the trustee to be treated as the owner of all or a portion of the trust under IRC §678(a) if the trustee is a member of the class, if the trustee may apply trust income or corpus to satisfy the trustee’s own legal obligation, or if the trustee actually exercises the power to satisfy a support obligation owed by the trustee. Therefore, if any trustee is given the discretionary power exercisable solely by that trustee to allocate the unitrust amount among members of a class, the trust instrument must provide that such trustee must be: (i) not a member of the recipient class; and (ii) prohibited from applying any part of the unitrust payment in satisfaction of the trustee’s own legal obligation.

Translating the above, an independent trustee could be given the power to "sprinkle the unitrust amount among my nephews, Huey, Duey and Louie." A different annotation states that a charitable organization can be one of the unitrust Recipients (Beneficiaries). The annotation, however, doesn’t alert you to Letter Ruling 9423020 that holds that if a charitable organization is one of the recipients of a sprinkling charitable remainder unitrust, the amounts sprinkled to the noncharitable beneficiaries cannot be de minimus.

• Multiple remaindermen. The remainder interest may pass to more than one charitable organization as long as each organization is described in IRC §§170(c), 2522(a), and, if needed, 2055(a). See Reg. §1.664-2(a)(6)(i). Note: Add IRC §170(b)(1)(A) if the donor wishes to benefit only public charities and thus get the greater tax benefits for remainder gifts to those charities.

• The payment of part of the unitrust amount to an IRC §170(c) charity.

• A qualified contingency. Although no examples of qualified contingencies are given in IRS’s forms, they are defined in IRC §664(f)(1), (2), (3). Here’s my example: Pay my ex-husband for life, but if he remarries the payments terminate.

• A retained right by the donor to substitute charitable remaindermen.

• A power of appointment given to a Recipient (Beneficiary) to designate the charitable remaindermen.

• The charitable remainder unitrust agreements must contain provisions regarding the valuing of unmarketable assets. Basically there are two methods and IRS’s form doesn’t require you to select one method beforehand in the trust agreement, You can give the trustee discretion to choose either method. Here is IRS’s paragraph on that point.

Unmarketable assets. Whenever the value of a trust asset must be determined, the Trustee shall determine the value of any assets that are not cash, cash equivalents, or other assets that can be readily sold or exchanged for cash or cash equivalents (hereinafter "unmarketable assets"), by either (a) obtaining a current "qualified appraisal" from a "qualified appraiser," as defined in section 1.170A-13(c)(3) and section 1.170A-13(c)(5) of the Income Tax Regulations, respectively, or (b) ensuring the valuation of these unmarketable assets is performed exclusively by an "independent trustee," within the meaning of section 1.664-1(a)(7)(iii) of the Income Tax Regulations.

• Incorrect valuations. IRS’s specimens all require that if there’s an underpayment or overpayment of the unitrust amount resulting from the incorrect valuation of trust assets, the Trustee shall pay to the Recipient in the case of an undervaluation or receive from the Recipient in the case of an overvaluation an amount equal to the difference between the unitrust amount properly payable and the unitrust amount actually paid. This must be done "within a reasonable period after the correct valuation is finally determined."

Point of interest regarding interest. In an annotation, IRS notes that nothing in IRC §664 or the regulations requires that interest be paid on the amount of any underpayment or overpayment. IRS goes on to say notwithstanding that, state law may require the payment of interest on the amount of underpayments or overpayments. Apparently, that won’t disqualify the trust.

• Early distributions to charitable remaindermen. The trust may provide that amounts other than part of the annual unitrust payment shall be paid (or may be paid at the trustee’s discretion) to a charity described in IRC §170(c). IRS goes on: "If such a distribution is made in kind, the adjusted basis of the property distributed must be fairly representative of the adjusted basis of the property available for distribution on the date of distribution." So if you provide for early distributions to charity, make sure to have the adjusted-basis-fairly-representative language in the trust.

Testamentary additions. If an inter vivos CRUT has a provision allowing testamentary additions, the specimens provide that although the obligation to make the payments begins as of the date of the donor’s death, the requirement to pay the portion of the unitrust amount allocable to that testamentary contribution may be deferred under the provisions of Reg. §1.664-1(a)(5)(i). An alternative way of computing the amount to be paid under the deferral provision is provided for in Reg. §1.664-1(a)(5)(ii). The alternate way may be preferable in some cases. Although IRS gives no specimen language for that alternative provision, the annotation refers you to Rev. Rul. 92-57, 1992-2 C.B. 123 for sample language for that method.

IRS warns that trust income generally means income as defined under IRC §643(b). Reg. §1.664-3(a)(1)(i)(b)(3). Even if permitted by applicable state law, the trust income of NIM-CRUTs and NI-CRUTs and combination-of-method CRUTs (FLIP-CRUTs) may not be determined by reference to a fixed percentage of the net fair market value of the trust property.

This can be confusing, so here’s my example. Harold’s NIM-CRUT provides that the income beneficiary is to receive 5% of this year’s $100,000 net fair market value of the trust’s assets or the actual income, whichever is lower. The trust earns no income this year and he gets zip. Suppose state law provides, contrary to the ordinary definition of income, that if the trust assets earn no income, the income beneficiary shall nevertheless receive 3% of the trust’s fair market value—or $3,000 in our example. IRS says that to follow state law would disqualify the NIM-CRUT.

Another provision in the annotations dealing with NIM-CRUTs and NI-CRUTs provides that a discretionary power to make adjustments between principal and income can be granted to the trustee under the terms of the governing instrument, but only to the extent that the applicable state statute permits the trustee to make those adjustments to treat beneficiaries impartially. Reg. §1.664-3(a)(1)(i)(b)(3). The annotation goes on to provide "a definition of trust income that is consistent with these requirements may, but need not, be included in the trust instrument."

• Timeliness of payments. The annotations alert you to the requirement that the unitrust amount must generally be paid before the end of the taxable year in which it is due and mention that in some cases payments may be made within a reasonable period after the end of the year. IRS refers you to the regulations covering the latter point.

• 10%-minimum-remainder-interest requirement. IRS’s specimens have no provisions dealing with this requirement. However, the annotations state that a trust is not qualified if the 10% minimum-remainder-interest requirement is not met "as of the date of contribution to the trust." Another annotation deals with "certain additional contributions" stating "if an additional contribution is made to an existing CRUT and the contribution does not satisfy the 10% test described in section 664(d)(2)(D), the contribution shall be treated as a transfer to a separate trust. Section 664(d)(4)." Back reference. For a detailed analysis of the 10%-minimum-remainder-interest requirement, see CRT 10%-Minimum-Remainder-Interest Requirement. . . You Could Have a Ticking Tax Bomb, Taxwise Giving, April ‘04, page 1.

• The donor must be one individual or if two individuals are the donors they must be husband and wife.

• The Code requirements not relating to the provisions of the governing instrument must also be met.

• The trust must operate in a manner consistent with the terms of the trust instrument.

• The trust must be a valid trust under applicable local law.

• The trust instrument must be substantially similar to IRS’s sample in the applicable revenue procedure; or properly integrate one or more alternative provisions from the revenue procedure.

• A trust instrument that contains substantive provisions in addition to those provided in the revenue procedure (other than properly integrated alternative provisions from the revenue procedure, or provisions necessary to establish a valid trust under applicable local law that are not inconsistent with the applicable federal tax requirements), or that omits any of the provisions of the revenue procedure (unless an alternative provision is property integrated) "will not necessarily be disqualified, but neither will that trust be assured of qualification under the provisions of this revenue procedure." Can you read this sentence out loud without taking a breath?

Parthian shot—the Atkinson case. It’s not enough to have all the bells and whistles—the required governing instrument provisions. Even if a trust is exactly the same as an IRS safe-harbor specimen, it must actually operate as a charitable remainder trust and do what the trust instrument specifies.

Penalties for violating that requirement: Income, gift and estate tax charitable deductions will be denied; all capital gains will be taxable; and the gift and estate tax marital deductions will be lost.

The U.S. Court of Appeals for the Eleventh Circuit held that a inter vivos charitable remainder annuity trust’s failure to comply with the required-annual-payment regulations during the donor’s lifetime resulted in complete loss of the estate tax charitable deduction. And that’s so even though substantial sums would go to charity. The loss of the charitable deduction cost the estate $2,654,976. Atkinson, 309 F.3d 1290 (11^th Cir. 2002), cert. denied, 124 S. Ct. 388 (2003). Al- though the case dealt with a CRAT, the same rule applies to CRUTs.

Beneficiary’s non-payment of death tax. In a footnote, the appellate court in Atkinson skipped the issue of the estate’s payment of death taxes attributable to a caregiver’s life interest: "...since we decide that the trust was not a CRAT because of its failure to pay Atkinson a lifetime annuity, we do not reach the issue of whether the trust additionally failed due to its exposure to estate tax liability."

Back reference. For a discussion of the Tax Court decision (affirmed by the Eleventh Circuit), and the law of extended consequences that could have far-reaching and unpleasant tax consequences for CRTs and lead trusts having only minor operational infractions, see Perfectly Drawn Charitable Remainder Annuity Trust Disqualified Because Imperfectly Operated, Taxwise Giving, August ‘02, entire issue. For a discussion of the Eleventh Circuit’s opinion see Improperly Operated CRAT Disqualified–$2,654,976 Estate Tax Cost, Taxwise Giving, November ‘02, page 7.

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