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Supreme Court Grants Certiorari in Rudkin/IRS Rushes to Release Regulations on Sec. 67(e) Prior to Supreme Court Decision
During the fall, the Supreme Court will be considering the Michael J. Knight, Trustee of the William L. Rudkin Testamentary Trust v. Commissioner of the Internal Revenue (No. 06-1286). Certiorari was granted on June 25, 2007.
The petitioner’s brief and amicus curiae briefs have been filed (see below). The Second Circuit earlier this year affirmed the Tax Court holding that a trust’s investment management fees are not deductible above the line under section 67(e), and, thus, are subject to the 2 percent of its adjusted gross income limitation. The Circuit Courts are split on whether these fees are deductible or subject to the 2 percent floor.
While the Supreme Court began considering this matter, the IRS released proposed regulations (REG-12822406, July 27, 2007) on applying the two percent limitation to estates and trusts. In the proposed regulations, the Service adopts the Second Circuit’s position that estates and trusts may only claim a full deduction for costs that “an individual could not have incurred.” This approach contrasts with the position it advocated in Rudkin and other cases (Scott and Mellon) that full deduction is available for costs that individuals do not “commonly incur.” The AICPA Section 67(e) Task Force is drafting comments on the regulations, so you are welcome to forward any thoughts to esherr@aicpa.org.
Download discussion of proposed regs
Tax Court Reaffirms its Position that Investment Advisory Fees of Trust are Subject to 2 Percent Floor.
Miscellaneous itemized deductions are deductible only to the extent that they exceed 2% of the adjusted gross income of the taxpayer ("2% floor"). In the context of estates and trusts, Sec. 67(e) provides an exception to the application of the 2% floor for expenses incurred in connection with the administration of the trust that “would not have been incurred if the property were not held in trust”. Whether investment advisory fees ("IA fees") meet the Sec. 67(e) exception has been a controversial issue; the Sixth Circuit, in O’Neill (994 F.2d 302(1993)), reversed the Tax Court and held that the exception applied to IA fees. The Federal Circuit (in Mellon Bank (265 F.3d 1275(2001)), and the Fourth Circuit (in Scott (328 F.3d 132(2003)), however, affirmed the respective lower court’s decision in those cases that IA fees did not meet the exception.
The Tax Court had chance to revisit the IA fees issue in William K. Rudkin Testamentary Trust et al. v. Commissioner (124 T.C. No. 19). The decision, filed June 27, 2005, held that IA fees paid by a testamentary trust were subject to the 2% floor. The Court based its decision on its position in O’Neill, and the opinions in Scott and Mellon Bank. An appeal of this case would be heard by the Second Circuit; it will be interesting to see how they rule if an appeal is filed because, unlike all the previous cases, the Rudkin fiduciaries appeared to be acting under the Uniform Prudent Investor Act (UPIA) by delegating their investment management duties. (Connecticut adopted the UPIA in 2000, and the case involved a 2001 tax return.) In contrast, the O'Neill, Scott, and Mellon Bank fiduciaries were acting under either the legal list or the prudent man statutes, both of which are lower fiduciary standards that may not warrant delegation. It should also be noted that in Rudkin, the trustee was an individual, although it is not known if he was a professional trustee. Some commentators believe that it should be easier for a nonprofessional trustee to meet the requirements of section 67(e)(1) than a professional trustee.
View a detailed analysis of this issue prepared by the AICPA Tax Division’s Trust, Estate, and Gift Tax TRP’s Section 67(e) Task Force. As we mention in the guide, if a taxpayer (outside the Sixth Circuit) must go to Tax Court, he or she should expect to appeal as the Tax Court continues to rule against taxpayers in this area.
Download Unofficial Transcript from Supreme Court Oral Arguments
Download Dept. of Justice respondant's brief
Download Rudkin Trustee's reply brief
Download Rudkin Brief for Certiorari to the Supreme Court
Download IRS Brief in Opposition
Download Rudkin Reply Brief
Download Amicus Brief - American Bankers Association
Download Amicus Brief - State Banking Associations
Download Request to Postpone Regs Effective Date
Download Proposed Regs.
Download AICPA Comments on Proposed Regs
Download AICPA Request to Testify Before the IRS
Download Hearing Transcript on Proposed Regs
Download Rudkin Appeal Brief
Download Rudkin Amicus Curiae Brief
Download the Second Circuit Decision
Download the Petition for Rehearing En Banc
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