A grantor-retained annuity trust (commonly referred to by the
acronym
An acronym is a word or name formed from the initial components of a longer name or phrase. Acronyms are usually formed from the initial letters of words, as in ''NATO'' (''North Atlantic Treaty Organization''), but sometimes use syllables, as ...
GRAT), is a
financial instrument commonly used in the United States to make large financial gifts to family members without paying a U.S.
gift tax
In economics, a gift tax is the tax on money or property that one living person or corporate entity gives to another. A gift tax is a type of transfer tax that is imposed when someone gives something of value to someone else. The transfer must ...
.
Basic mechanism
A grantor transfers property into an
irrevocable trust
A trust is a legal relationship in which the holder of a right gives it to another person or entity who must keep and use it solely for another's benefit. In the Anglo-American common law, the party who entrusts the right is known as the " sett ...
in exchange for the right to receive fixed payments at least annually, based on original fair market value of the property transferred. At the end of a specified time, any remaining value in the trust is passed on to a
beneficiary of the trust as a gift. Beneficiaries are generally close family members of the grantor, such as children or grandchildren, who are prohibited from being named beneficiaries of another estate freeze technique, the grantor retained income trust. If a grantor dies before the trust period ends, the assets in the GRAT are included in the grantor's estate by operation of I.R.C. § 2036, eliminating any potential gift tax benefit; this is the GRAT's main weakness as a
tax avoidance
Tax avoidance is the legal usage of the tax regime in a single territory to one's own advantage to reduce the amount of tax that is payable by means that are within the law. A tax shelter is one type of tax avoidance, and tax havens are jurisdi ...
mechanism.
The United States
Internal Revenue Service has a number of regulations governing how the remaining value of the trust at the end of the term (or at the death of the grantor) is taxed. When the GRAT is first set up, a "gift value" of the GRAT is calculated. The gift value is set equal to the initial contribution to the GRAT plus a theoretical interest earned on the
principal, minus the annuity payments that would be made through the end of the term. The theoretical rate of interest is determined by IRS regulations. The rate is set equal to 120% of the
federal mid-term rate during the month that the GRAT is established.
To realize a tax benefit, the sum of the scheduled annuity payments of a GRAT is set to be about equal to the principal plus theoretical interest. Thus, for tax purposes, the initially calculated gift value is zero, since what will be paid back to the donor in annuity payments is anticipated to be about equal to what the donor invested, plus interest. If a GRAT is funded with highly volatile assets, it is possible that the actual interest earned on the assets will be substantially higher than the IRS theoretical interest. Thus at the end of the term, the value remaining in the GRAT may still be large, even though the initial IRS calculation suggests that it should have been zero. This remaining value is then passed on to the beneficiary without incurring a gift tax.
Important legal cases
*
Audrey J. Walton v. Commissioner, 115 T.C. 589 (2000), acq. Notice 2003-72, 2003-44 IRB, 15 October 2003. This case established the current way that the IRS established a gift value for a GRAT.
Patents
The
Wealth Transfer Group owns a
patent
A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A ...
covering different methods for managing SOGRATs. A SOGRAT is a GRAT that is at least partially funded with
stock options
In finance, an option is a contract which conveys to its owner, the ''holder'', the right, but not the obligation, to buy or sell a specific quantity of an underlying asset or instrument at a specified strike price on or before a specified da ...
. The patent number is , and is entitled "Establishing and managing grantor retained annuity trusts funded by nonqualified stock options". On 12 January 2011, the director of the
USPTO
The United States Patent and Trademark Office (USPTO) is an agency in the U.S. Department of Commerce that serves as the national patent office and trademark registration authority for the United States. The USPTO's headquarters are in Alexa ...
initiated a
reexamination
In United States patent law, a reexamination is a process whereby anyone—third party or inventor—can have a U.S. patent reexamined by a patent examiner to verify that the subject matter it claims is patentable. To have a patent reexamined, ...
of US patent 6,567,790. The reexamination serial number is 90/009,868.
Controversies
A ProPublica report detailed how several ultra-wealthy families exploited the GRAT to avoided potentially billions in
estate taxes.
See also
*
Trust law
A trust is a legal relationship in which the holder of a right gives it to another person or entity who must keep and use it solely for another's benefit. In the Anglo-American common law, the party who entrusts the right is known as the " sett ...
References
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Wills and trusts
Inheritance
Personal taxes
Taxation in the United States
Insurance in the United States
Annuities