Case of First Impression

Case of First Impression

Article posted in Compliance on 4 January 2016| 6 comments
audience: National Publication, Richard L. Fox, Esq. | last updated: 8 January 2016
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Summary

Richard Fox explores a recent case, Green vs. US, which opens up some interesting planning opportunities

By: Richard L. Fox, Esquire

In Case of First Impression, District Court Holds That Contribution of Appreciated Property by Trust Purchased Out of Gross Income Qualifies for Charitable Income Tax Deduction Under IRC § 642(c) at Full Fair Market Value

In a case of apparent first impression, in Green v. U.S.,1 the court held that a trust that was authorized to distribute any amount of its gross income to charity was entitled to an income tax deduction under IRC § 642(c) for the full fair market value of donated property that was purchased with gross income the trust had received in prior years, and was not limited to the trust’s adjusted basis in the property.2

Background: Charitable Income Tax Deduction for Estates and Trusts Governed by IRC § 642(c) Rather Than IRC § 170(c)

In lieu of the charitable income tax deduction under IRC § 170(a), a charitable income tax deduction is available under IRC § 642(c) for charitable contributions made by estates and trusts. Unless all of the requirements of IRC § 642(c) are satisfied, a transfer of cash or property by an estate or trust that would otherwise be deductible as a charitable contribution under IRC § 170(a) will not be deductible for federal income tax purposes. Specifically, IRC § 642(c)(1) allows an estate and trust an income tax deduction for “any amount of gross income, without limitation, which pursuant to the terms of the governing instrument is, during the taxable year, paid for a purpose specified in IRC § 170(c).” Thus, the key to the charitable income tax deduction for an estate and trust under IRC § 642(c)(1) is that the amount:

1. Is paid during the taxable year;

2. Is from gross income (not from corpus or principal);

                        3. Is pursuant to the terms of the governing instrument (i.e., the will or trust document); and

4. Is for a purpose specified in IRC § 170(c).

There are key differences in the availability of a charitable income tax deduction to an estate or trust under IRC § 642(c) and to an individual under IRC § 170(c), summarized as follows:

                        1.         An individual is entitled to a charitable income tax deduction under IRC § 170(a), regardless of the source of payment of the charitable contribution, such that a contribution from any source is deductible by an individual. For a contribution to be deductible by an estate or trust under IRC § 642(c), the source of the contribution must be gross income and the contribution of such gross income must be made pursuant to the terms of the will or trust. Thus, absent a contribution being made from gross income and pursuant to the terms of the governing instrument, an estate or trust will not be eligible for a charitable income tax deduction, notwithstanding that a deduction would otherwise be available under IRC § 170(a).

                        2.         Unlike individuals, whose charitable deductions are limited to a certain percentage of income, estates and trusts are entitled to claim an unlimited charitable income tax deduction against their gross income. Where, for example, an estate or trust pays 100 percent of its income to charity during a taxable year, it may deduct the entire amount as a charitable contribution, provided the requirements of IRC § 642(c) are otherwise met. Because of availability of this unlimited deduction, unlike in the case of individuals, there are no provisions under IRC § 642(c) dealing with the carryover of excess charitable contributions for contributions exceeding the applicable percentage limitations.

                        3.         While individuals may only deduct contributions made to domestic charities, estates and trusts are eligible for a charitable income tax deduction for contributions to foreign charities.

                        4.         A special election is available to estates and trusts, but not to individuals, to claim a charitable income tax deduction in a taxable year for charitable contributions made in the following taxable year, thereby accelerating the deduction into the earlier taxable year.

                        5. Estates, as well as certain trusts created on or after October 9, 1969, are eligible for a charitable contribution for amounts of gross income that are permanently set aside for charitable purposes, whereas no permanent set-aside deduction is allowable to individuals.

Facts and Holding of District Court in Green v. U.S.

The trust in Green v., U.S. expressly authorized the trustee to “distribute to charity such amounts from the gross income of the Trust as the [trustee] determines appropriate.” The trust also provided that “[a] distribution may be made from the Trust to charity only when both the purpose of the distribution and the charity are as described in Section 170(c) of the Code.”  The trust was a partner in a partnership from which it had a substantial allocation of gross income and received substantial distributions from the partnership.  The trust utilized some of that gross income received attributable to the partnership distributions to purchase interests in real estate.  After the real estate had substantially appreciated in value, the trust made contributions of the real estate to charitable organizations.  On its originally filed tax return, the trust claimed an income tax charitable deduction under IRC § 642(c), but only in an amount equal to its income tax basis, not the fair market value of the real estate.  Subsequently, the trust filed claims for refund claiming charitable deductions for the full fair market value of the real estate.  

The IRS disallowed the refund claim and the trust filed suit in the United States District Court.  The IRS argued that (1) IRC §642(c)(1) limits a trust's deduction to the amount of gross income it contributed to charity; (2) gross income does not include unrealized appreciation; and (3) a liberal construction of the statute allowing fair market valuation would negate the gross income derivative requirement. The IRS also asserted that the trust was not entitled to the IRC § 642(c)(1) deduction because, when the donations were made, the real estate had become part of the principal of the trust, and that trustee of the trust was not authorized to make charitable donations from principal, such that the donations were not “pursuant to the terms of the governing instrument.” The court determined that the donated properties were all purchased with distributions from a partnership in which the trust had an interest and that each distribution was part of the partnership’s gross income for the year in which it was distributed. Therefore, the court held that the “Donated Properties were purchased with an amount of the Trust's gross income” and stated that there can be no serious question that the donations were made “pursuant to the terms of the governing instrument.”

The court in Green considered whether the trust’s charitable deduction should be limited to the income tax basis of property that had been originally acquired with its gross income.  A key element in the court’s decision apparently was whether the deduction allowed under IRC § 642(c) should be strictly construed.  The court acknowledged that generally deductions are a “matter of legislative grace” and thus should be strictly construed.  The court held that charitable deductions are not a “matter of legislative grace,” but “rather expression[s] of public policy” that should be liberally construed. Thus, the court stated that even if the language of the statute were unclear, a liberal construction in favor of the taxpayer would be appropriate.”  The court further noted that the policy behind the charitable income tax deduction allowed under IRC § 170 is to encourage charitable activities and IRC § 642(c)(1) has a similar purpose and must be read in light of the basic definitions and principles set forth in §170, except where expressly contradictory.  In this regard, the court stated that Congress did not specify a different standard of valuation in § 642 and in light of IRC § 170’s general rule of fair market valuation regarding donations of property other than cash, a fair market valuation standard is consistent “does not do violence to the plain language of § 642(c)(1).”

Planning Possibilities

Under the Green case, an estate or trust that is authorized to make distributions of gross income to charity could purchase assets (out of gross income) that are likely to appreciate in value and, when assuming they have appreciated, contribute the appreciated property to charity and receive an enhanced deduction under IRC § 642(c) (over and above the tax cost basis) without having to recognize the inherent gain in those assets, just as in the case of an individual who contributes appreciated property.  Investments may, of course, decline in value so that if those depreciated assets are contributed to charity, the trust or estate would have a smaller deduction, so that a sale of the asset producing a taxable loss would be preferable to a charitable contribution. 

  • 1. 116 AFTR 2d 2015-6668 (W.D. Ok 2015).
  • 2. Before discussing the court’s decision in more detail, it is interesting to note CCA 201042023. The issue discussed in the CCA was whether a trust’s deduction under section 642(c) was limited to the trust’s tax basis in non-cash assets acquired with its gross income, notwithstanding that the fair market value of that property was much greater than tax basis. Although not as well detailed as the facts in Green, it seems that the CCA discusses the actual Green situation. The CCA acknowledged there were “no prior cases or other authority in which the Service has so limited” the charitable deduction under section 642(c) to the basis of the property contributed. Nevertheless, the CCA concluded that the charitable income tax deduction should be limited to income tax basis, not its higher fair market value.

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Comments

Re: Case of First Impression

Section 681 imposes the deductibility limitation, overriding section 642(c).

Re: Case of First Impression

Richard, this is a very interesting case. I have a question as it relates to the interplay between 642(c) and 512(b)(11). Is there a distinction between regular income and UBTI in terms of what is deductible? Are we to assume that the trust in this case had all passive income and that is why the trust got a full charitable deduction and not subject to any AGI limitations? I ask this because I thought that in a CLT (which is taxed as a complex trust if it is a Non Grantor CLT) if there is UBTI that section 512(b)(11) limits the deduction the trust can take. Please let me know if I am off on this issue! Thanks! :-)

Re: Case of First Impression

It was an irrevocable, complex trust. If you send me your email address to rfox@dilworthlaw.com, I can email you a copy of the case.

Richard Fox

Re: Case of First Impression

An irrevocable trust - see case below:

GREEN v. U.S., Cite as 116 AFTR 2d 2015-6668, Code Sec(s) 642; 170, (DC OK), 11/04/2015

Mart D. GREEN, Trustee of the David and Barbara Green 1993 Dynasty Trust, PLAINTIFF v. UNITED STATES OF AMERICA, DEFENDANT.
Case Information:

[pg. 2015-6668]

Code Sec(s): 642; 170
Court Name: U.S. District Court, Western Dist. of Oklahoma,
Docket No.: Case No. CIV-13-1237-D,
Date Decided: 11/04/2015.
Tax Year(s): Years 2002, 2003, 2004.
Disposition: Decision for Taxpayer.
[pg. 2015-6669]
HEADNOTE

1. Trust deductions—charitable contributions—donated real property—valuation; FMV vs. adjusted basis. Trustee was granted partial summary judgment that Code Sec. 642 (c)(1) deduction, for donated real property purchased out of gross income, should be calculated on basis of property's FMV. Govt. arguments, that deduction was statutorily limited to amount of gross income contributed to charity and that gross income didn't include unrealized appreciation, were belied by fact that statute didn't contain any such limiting language and otherwise unavailing. Similarly, govt.'s claim that valuation standard should be adjusted basis rather than FMV was belied by facts that such would allow no consideration for appreciation of property donated in kind and that Congress intended for deduction to be without stated limitation.

Reference(s): ¶ 6425.02(80) Code Sec. 642 ;Code Sec. 170

Green
OPINION

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA,

Judge: TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE

ORDER

This is a tax refund action arising from the internal revenue laws of the United States. Before the Court are the parties” cross-motions for summary judgment [Doc. Nos. 37, Plaintiff, and 38, Defendant]. Defendant has responded to Plaintiff's motion [Doc. No. 42], and Plaintiff has responded to Defendant's motion [Doc. No. 43]; Plaintiff has filed a Reply in support of his motion [Doc. No. 47]. The motions are fully briefed and ready for determination. This Order primarily addresses Plaintiff's Motion for Partial Summary Judgment.1

Statement of Undisputed Facts

The Trust and GDT

On December 7, 1993, David M. Green, Barbara A. Green, and Mart D. Green signed a Trust Agreement creating The David and Barbara Green 1993 Dynasty Trust (the “Trust”). See Complaint [Doc. No. 1-1]. David and Barbara Green are the settlors of the Trust, and Mart D. Green is the trustee (“Plaintiff”). The Trust expressly authorizes Plaintiff to “distribute to charity such amounts from the gross income of the Trust as the [Plaintiff] determines appropriate” [Doc. No. 1-1, § 2.2]. The Trust also provides that “[a] distribution may be made from the Trust to charity only when both the purpose of the distribution and the charity are as described in Section 170(c) of the Code” [Doc. No. 1-1, § 1.6].2

The Trust wholly owns GDT CG1, LLC (“GDT”), a single-member limited liability company. GDT is disregarded as an entity separate from the Trust for federal income tax purposes.3

Hob-Lob Limited Partnership

Between 2002 and 2004, Hob-Lob Limited Partnership (“Hob-Lob”) owned or operated many, but not all, Hobby Lobby stores.4 During this same period, the Trust was a 99% limited partner in Hob-Lob. Consequently, Hob-Lob filed its yearly income tax return (Form 1065, U.S. Return of Partnership Income) with the Internal Revenue Service (“IRS”) and, in conjunction with that filing, issued a yearly form known as a Schedule K-1 to all of its partners, including the Trust.5

On line 22 of the 2002 Schedule K-1 issued to the Trust, Hob-Lob reported that the Trust received distributions of $38,722,126 during the year ending December 31, 2002. On line 1 of the same document, Hob-Lob reported that the Trust's distributive share6 of ordinary business income totaled $72,465,646 for that same year. The Trust reported such amount on its 2002 income tax return.

On line 22 of the 2003 Schedule K-1 issued to the Trust, Hob-Lob reported that the Trust received distributions of $41,076,436 during the year ending December 31, 2003. On line 1 of the same document, Hob-Lob reported that the Trust's distributive share of ordinary business income totaled $68,303,318 for that same year. The Trust reported such amount on its 2003 income tax return. [pg. 2015-6670]
On line 19 of the 2004 Schedule K-1 issued to the Trust, Hob-Lob reported that the Trust received distributions of $29,480,397 during the year ending December 31, 2004. On line 1 of the same document, Hob-Lob reported that the Trust's distributive share of ordinary business income totaled $60,543,215 for that same year. The Trust reported such amount on its 2004 income tax return.

Virginia Property

On February 19, 2003, GDT purchased approximately 109 acres of land and two industrial buildings in Lynchburg, Virginia from Ericsson, Inc. for $10.3 million. GDT obtained the money to purchase the property through a distribution from Hob-Lob to the Trust. For purposes of the summary judgment motions only, the parties stipulate that this distribution was part of the distributive share of ordinary business income from Hob-Lob to the Trust in 2003.

On March 19, 2004, GDT donated a significant portion of the property to the National Christian Foundation Real Property, Inc. (“NCF”). The donation consisted of the two industrial buildings and approximately 73 acres of land (the “Virginia Property”). At that time, NCF was an organization described in 26 U.S.C. § 170(b)(1)(A). The Trust reported on Form 8283, Noncash Charitable Contributions, attached to its 2004 income tax return, that as of March 19, 2004, its adjusted basis in the Virginia Property was $10,368,113.

Although a factual dispute exists between the parties regarding the fair market value of the Virginia Property on the date of donation, for purposes of the summary judgment motions only, both parties stipulate that the Virginia Property had a fair market value in excess of $10,368,113 on March 19, 2004.

Oklahoma Property

In August 2002, GDT purchased a church building and several outbuildings in Ardmore, Oklahoma (the “Oklahoma Property”) from Trinity Baptist Church for $150,000. GDT obtained the $150,000 necessary for the purchase through a distribution from Hob-Lob to the Trust. For purposes of the summary judgment motions only, the parties stipulate that this distribution was part of the distributive share of ordinary business income from Hob-Lob to the Trust in 2002.

On October 5, 2004, GDT donated the Oklahoma Property to the Southwest Oklahoma District Church of the Nazarene (“SWODCN”). At that time, SWODCN was an organization described in 26 U.S.C. § 170(b)(1)(A). The Trust reported on Form 8283, Noncash Charitable Contributions, attached to its 2004 income tax return, that as of October 5, 2004, its adjusted basis in the Oklahoma Property was $160,477. The fair market value of the Oklahoma Property was $355,000 on said date.

Texas Property

In June 2003, GDT purchased approximately 3.8 acres of land in Dickinson, Texas (the “Texas Property”) from Marina Bay Development Corp., Inc./Travis Moss for $145,000. GDT obtained the $145,000 necessary for the purchase through a distribution from Hob-Lob to the Trust. For purposes of the summary judgment motions only, the parties stipulate that this distribution was part of the distributive share of ordinary business income from Hob-Lob to the Trust in 2003.

On October 5, 2004, GDT donated the Texas Property to the Lighthouse Baptist Church (“LBC”). At that time, LBC was an organization described in 26 U.S.C. § 170(b)(1)(A). The Trust reported on Form 8283, Noncash Charitable Contributions, attached to its 2004 income tax return, that as of October 5, 2004, its adjusted basis in the Texas Property was $145,180. The fair market value of the Texas Property was $150,000 on said date.

Amended Return

On or about October 15, 2005, Plaintiff timely filed the Trust's Form 1041 income tax return for tax year 2004 with the IRS, claiming a charitable deduction totaling $20,526,383. On October 15, 2008, Plaintiff timely filed an amended Form 1041 (the “Amended Return”) on behalf of the Trust, increasing the Trust's reported charitable deduction to $29,654,233 and claiming a tax refund of $3,194,748. On December 8, 2011, the IRS sent Plaintiff a Notice of Disallowance of the refund claim stating “[t]he charitable contribution deduction for the real property donated in 2004 is limited to the basis of the real property contributed” [Doc. No. 1-3].

Standard of Decision

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is one that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for either party. Id . at 255. If a party who would bear the bur[pg. 2015-6671] den of proof at trial lacks sufficient evidence on an essential element of a claim, all other factual issues concerning the claim become immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The movant bears the burden of demonstrating the absence of a dispute of material fact warranting summary judgment. Celotex, 477 U.S. at 322-23. If the movant carries this burden, the nonmovant must then go beyond the pleadings and “set forth specific facts” that would be admissible in evidence and that show a genuine issue for trial. See Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324; Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998). “To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at 671; see also Fed. R. Civ. P. 56(c)(1)(A). “The court need consider only the cited materials, but may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). The Court's inquiry is whether the facts and evidence identified by the parties present “a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52.

Matters of statutory interpretation present questions of law “appropriate for resolution on summary judgment.” Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (citation omitted). When interpreting statutory language, the Court's duty is to determine congressional intent bybeginning with the “plain language of the law.” St. Charles Inv. Co. v. Comm'r, 232 F.3d 773, 776 [86 AFTR 2d 2000-6882] (10th Cir. 2000). Traditional canons of statutory interpretation guide “judges [in] determin[ing] the Legislature's intent as embodied in particular statutory language.” Chickasaw Nation v. United States, 534 U.S. 84, 94 [88 AFTR 2d 2001-6967] (2001). However, such guides “need not be conclusive and are often countered ... by some maxim pointing in a different direction.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001). Therefore, the Court must analyze the statute as a whole and look to the “disputed language in context, not in isolation,” when ascertaining congressional intent from statutory text. True Oil Co. v. Comm'r, 170 F.3d 1294, 1299 [83 AFTR 2d 99-1315] (10th Cir. 1999) (internal quotations omitted).

Analysis

[1] Plaintiff's Motion presents the following issue: “whether a charitable deduction under 26 U.S.C. § 642(c)(1) for donated real property purchased out of gross income should be calculated based on the property's fair market value or the [T]rust's adjusted basis7 in the property.” See Plaintiff's Motion [Doc. No. 37] at 1. Plaintiff contends the fair market value standard should apply to the charitable deduction because Congress did not specify a different valuation standard in 26 U.S.C. § 642(c)(1). Defendant argues (1) that 26 U.S.C. §642(c)(1) limits a trust's deduction to the amount of gross income it contributed to charity; (2) gross income does not include unrealized appreciation; and (3) a liberal construction of the statute allowing fair market valuation would negate the gross income derivative requirement.

Construction of § 642(c)(1)

The Court begins its analysis with the language of 26 U.S.C. § 642(c)(1), which, in pertinent part, provides:

[T]here shall be allowed as a deduction in computing its taxable income (in lieu of the deduction allowed by section 170(a), relating to deduction for charitable, etc., contributions and gifts) any amount of the gross income, without limitation, which pursuant to the terms of the governing instrument is, during the taxable year, paid for a purpose specified in section 170(c) (determined without regard to section 170(c)(2)(A)). If a charitable contribution is paid after the close of such taxable year and on or before the last day of the year following the close of such taxable year, then the trustee or administrator may elect to treat such contribution as paid during such taxable year. The election shall be made at such time and in such manner as the Secretary prescribes by regulation.
Id.8 As indicated in the statute, to properly understand the meaning of § 642(c)(1) requires one to look to 26 U.S.C. § 170, which pertains to charitable deductions by individuals and corporations. Among other things, § 170 defines and categorizes qualifying charities and, based upon the particular charity, limits the amount of a taxpayer's adjusted gross income which can be deducted in a single year.9 See 26 U.S.C. § 170(b). It also distinguishes between charitable contributions of cash and property other than money, and values the latter at the fair market [pg. 2015-6672] value at the time of contribution. See 26 U.S.C. §170(f)(8)(B)(1) ; see also 26 C.F.R. § 1.170A-1(c)(1).10 The policy behind § 170 is to “encourag[e] charitable activities.” Michael P. Rose and John C. Chommie, Federal Income Taxation § 11.18, at 664 (3d ed. 1988). The statute at issue, 26 U.S.C. § 642(c)(1), has a similar purpose,11 and must be read in light of the basic definitions and principles set forth in §170, except where expressly contradictory. See Erlenbaugh v. United States , 409 U.S. 239, 243 (1972) (discussing the rule of in pari materia).12

A notable distinction between § 642 and § 170 is the absence of limiting language in § 642, which is present in § 170. Rather than place limiting language in § 642, Congress specified a deduction “without limitation.” See 26 U.S.C. § 642(c)(1); see also Daniel Halperin, A Charitable Contribution of Appreciated Property and the Realization of Built-in Gains, 56 TAX L. REV. 1, 24 (2002) (briefly discussing the distinction and acknowledging the unlimited charitable deduction that trusts and estates enjoy with regard to donations made from gross income). Defendant's interpretation, though, seeks to impose limitations where Congress clearly declined to do so. “[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992).

Despite the absence of any limiting language in § 642(c)(1), Defendant argues for a strained construction, and holds tight to the “familiar rule that an income tax deduction is a matter of legislative grace and that the burden of clearly showing the right to the claimed deduction is on the taxpayer.” INDOPCO Inc. v. Comm'r, 503 U.S. 79, 84 [69 AFTR 2d 92-694] (1992) (quoting Interstate Transit Lines v. Comm'r, 319 U.S. 590, 593 [30 AFTR 1310] (1943) (internal quotations omitted)).

The Sixth Circuit addressed this distinction in Weingarden v. Comm'r, 825 F.2d 1027 [60 AFTR 2d 87-5448] (6th Cir. 1987), acknowledging that generally statutes imposing a tax are construed liberally, in favor of the taxpayer, while statutes allowing deductions and exemptions are strictly interpreted, being “matters of legislative grace.” Id. at 1029 (citing Porter v. Comm'r, 288 U.S. 436, 442 [12 AFTR 25] (1933) and I. R. Mertens, Law of Federal Income Taxation §§ 3.05, 3.07 (1986) (internal quotations omitted)). However, and of particular importance here, Weingarden went further to distinguish statutes regarding charitable deductions, stating they are not matters of legislative grace, but rather “expression[s] of public policy.” Weingarden, 825 F.2d at 1029 (citing Helvering v. Bliss , 293 U.S. 144, 150-51 [14 AFTR 668] (1934) (further citations omitted, internal quotations omitted)). As such,“[p]rovisions regarding charitable deductions should ... be liberally construed in favor of the taxpayer.” Id. (citing Hartwick Coll. v. United States, 801 F.2d 608, 615 [58 AFTR 2d 86-5846] (2d Cir. 1986)). Thus, even if the language of the statute were unclear, a liberal construction in favor of the taxpayer would be appropriate.

Gross Income

Other language at issue in 26 U.S.C. § 642(c)(1) is the term “gross income,” and whether that term includes properties purchased by the Trust in one year and donated to charities in another (“Donated Properties”). 13 The Supreme Court, considering 26 U.S.C. § 642(c)(1)'s predecessor, noted “[t]here are no words limiting [donations] to something actually paid from the year's [gross] income. And so to interpret the Act could seriously interfere with [its] beneficent purpose.” Old Colony, 301 U.S. at 348 (emphasis added). Therefore, the fact that the Donated Properties were given to charities in a year subsequent to their purchase does not disqualify them from being considered as charitable donations derived from gross income.

However, Defendant also contends that for the Donated Properties to qualify as charitable [pg. 2015-6673] deductions under§ 642(c)(1), they must be “sourced from14 and traceable to15 a

trust's gross income.” See Defendant's Motion [Doc. No. 38] at 13 (citing 26 U.S.C. § 642(c)(1) and Crestar Bank v. I.R.S., 47 F. Supp. 2d 670 [83 AFTR 2d 99-2555] (E.D. Va. 1999) (emphasis added)). The parties agree that the requirements necessary to qualify as a deduction under § 642(c)(1) include that the donation be traceable to gross income. See infra note 16. The Court concurs, and finds there is no real question here regarding the type of income used to purchase the Donated Properties. The properties were all purchased with distributions from Hob-Lob to the Trust. Each distribution was part of GDT's gross income for the year in which it was distributed. Therefore, the Donated Properties were purchased with an amount of the Trust's gross income.

Defendant also asserts that Plaintiff is not entitled to the § 642(c)(1) deduction because, when the donations were made, the Donated Properties had become part of the principal of the Trust, and that Plaintiff was not authorized to make charitable donations from principal (i.e., the donations were not “pursuant to the terms of the governing instrument”). Plaintiff counters that Defendant conflates the federal tax concept of “gross income,” with state law fiduciary accounting concepts of “income” and “principal.” The Court agrees with Plaintiff.

First, it should be noted that Defendant's argument that the donations are not in conformity with the Trust instrument is belied by Defendant's apparent concession that Plaintiff is entitled to a § 642(c)(1) deduction in some amount – at most, limited by the adjusted basis in the Donated Properties. See, e.g., Defendant's Opposition to Plaintiff's Motion [Doc. No. 42] at 13 (“It is the United States” position that, at most, the Trust's charitable deduction relating to the Donated ... Properties would be the adjusted basis ....”). Indeed, Defendant devotes the vast majority of its argument not to the notion that the Donated Properties were purchased from a source other than gross income, but to the proposition that the amount of the § 642(c)(1) deduction should be limited to the adjusted basis in the Donated Properties. Nevertheless, the more appropriate focus when considering whether the first requirement16 of the § 642(c)(1) deduction is met – that the contribution was pursuant to the terms of the trust instrument – is whether the trust instrument authorizes the trustee to make charitable contributions, and here it clearly does. See Trust, § 2.2 [Doc. No. 1-1, p. 7 of 55 (ECF numbering)]; see also John Allan Love Charitable Found. v. United States, 710 F.2d 1316, 1319 [52 AFTR 2d 83-5487] (8th Cir. 1983) (“The statutorily mandated test is whether the charitable contributions were made “pursuant to the terms of the governing instrument.” We believe an essential element of this test is that the trust instrument authorize the trustee to make charitable contributions.”). Defendant's conflating of fiduciary accounting principles with the federal tax concept of gross income unnecessarily muddies the water – here, there can be no serious question that the donations were made “pursuant to the terms of the governing instrument.”17

Valuation

The remaining question is the proper valuation of the Donated Properties – whether adjusted basis or fair market valuation is appropriate under the statute. Plaintiff contends fair market value is applicable, while Defendant argues for adjusted basis.

Defendant contends that any capital appreciation must not be considered in the Donated Properties” valuation because such constitutes unrealized gains. See Defendant's Motion [Doc. No. 38] at 16-19 (citing W.K. Frank Tr. of 1931 v. Comm'r, 145 F.2d 411 [32 AFTR 1478] (1944), U.S. v. Benedict, 338 U.S. 692 [38 AFTR 1208] (1950), and Comm'r v. Cent. Hanover Bank & Tr. Co., 163 F.2d 208 [35 AFTR 1620] (2d Cir. 1947)). In support of this position, Defendant likens the Donated Properties either to (1) cash gifts not fully derived from gross income, or (2) donations made out of a trust's corpus. However, those analogies are inapposite because, as the Court has found, each of the Donated Properties derives from the Trust's gross income.

Under the facts of this case, using adjusted basis as the valuation standard would allow no consideration for the appreciation of real property donated in kind, regardless of whether such property was donated in the year of acquisition or in subsequent tax years. Defendant [pg. 2015-6674] asks the Court to read a limitation into the statute where none expressly exists.

[T]he term “income”, when not preceded by the words “taxable”, “distributable net”, “undistributed net”, or “gross”, means the amount of income of the estate or trust for the taxable year determined under the terms of the governing instrument and applicable local law.
See also Estate of Clymer v. Comm'r, 221 F.2d 680, 683 [47 AFTR 729] (3d. Cir. 1955); Casco Bank & Tr. Co. v. United States , 406 F. Supp. 247, 254 [37 AFTR 2d 76-355] (D. Me. 1975).

Conversely, “the fair market value standard is as close to a generalized valuation standard as there is in the tax code.” Schwab v. Comm'r, 715 F.3d 1169 [111 AFTR 2d 2013-1746] (9th Cir. 2013).18 Notably, Congress did not specify a different standard of valuation in § 642. Further, considering the context of the statutory language in question and in light of § 170 's general rule of fair market valuation regarding donations of property other than cash,a fair market valuation standard is consistent with the observation of the court in Schwab, and does not do violence to the plain language of § 642(c)(1).

Conclusion

The plain language of 26 U.S.C. § 642 supports a construction in favor of Plaintiff. The Court finds that Congress sought in § 642(c)(1) to authorize a deduction “without limitation,” and fair market value is the appropriate valuation standard regarding the Donated Properties. Therefore, the Oklahoma Property is to be valued at $355,000 as of the date of donation, and the Texas Property is to be valued at $150,000 as of the date of donation. The Virginia Property's fair market value remains to be determined.

IT IS THEREFORE ORDERED that Plaintiff Mart D. Green's Motion for Partial Summary Judgment [Doc. No. 37] is GRANTED, and the portions of Defendant United States of America's Motion for Summary Judgment [Doc. No. 38] addressed in this Order are DENIED.

IT IS SO ORDERED this 4th day of November, 2015.

TIMOTHY D. DEGIUSTI

UNITED STATES DISTRICT JUDGE

1 The issues in the motions substantially overlap. However, in addition to the issues addressed in this Order, Defendant's Motion requests summary judgment regarding $4.7 million in cash contributions made by Hobby Lobby Stores, Inc., as well as Plaintiff's overall entitlement or lack thereof to a tax refund exceeding the $20 million it has already received. These issues will be addressed in a subsequent order.

2 “Charitable contribution,” as defined by 26 U.S.C. § 170(c), includes “a contribution or gift to or for the use of ... [a] corporation, trust, or community chest, fund, or foundation ... organized and operated exclusively for religious [or] charitable ... purposes.” Id. at § 170(c)(2)(B).

3 Absent a taxpayer election to the contrary, a single-member limited liabilitycompany is not regarded as separate from its owner for income tax purposes. See 26 C.F.R. § 301.7701-3. As such, the income, deductions, and credits of the disregarded entity are reported and reflected on its owner's income tax return. Id.

4 Hobby Lobby stores sell craft supplies throughout the United States.

5 Among other things, a Schedule K-1 identifies each partner's share of income, deductions, and credits that flow through the partnership to the partner, as well as any distributions from the partnership to the partner for the particular year.

6 “Distributive share” refers to the allocation of income, gain, loss, deduction, and credit from a partnership business to a partner. See 26 U.S.C. § 702.

7 Adjusted basis is “cost, less certain property-related expenditures, depreciation, and other statutory decreases.” See Defendant's Motion for Summary Judgment [Doc. No. 38] at 4, n.1 (citing 26 U.S.C. §§ 1011, 1012(a), and 1016).

8 Neither party contends that the language of § 642(c)(1) is ambiguous, but each advances different applications on the instant facts. The Court agrees that the language in question is clear and capable of interpretation without resort to extraneous sources.

9 Any excess deduction not allowed under the limitation can be carried forward for five years. See 26 U.S.C. § 170(b)(1)(B)(ii).

10 “If a charitable contribution is made in property other than money, the amount of the contribution is the fair market value of the property at the time of the contribution reduced as provided in section 170(e)(1) and paragraph (a) of § 1.170A – 4, or section 170(e)(3) and paragraph (c) of § 1.170 – 4A.” 26 C.F.R. § 1.170A – 1.

11 In Old Colony Tr. Co. v. Comm'r, 301 U.S. 379 [19 AFTR 489] (1937), the Court stressed the importance of construing § 162(a) of the 1928 Revenue Act – 26 U.S.C. § 642(c)'s precursor–congruent with Congress's intent to “encourage[] ... donations by trust estates.” Id. at 384. T

Re: Case of First Impression

I would like to know what kind or type of Estate or Trust are they referencing? (i.e.Revocable, Irrevocable, living, CRUT's, etc.)

Re: Case of First Impression

It was an irrevocable, complex trust. If you email me your email address to rfox@dilworthlaw.com, I will email you the case.

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