Current Developments: April 2024 Review

From a new proposed rule that would identify certain charitable remainder annuity trust (CRAT) transactions as listed transactions, to the introduction of new legislation that would increase Medicaid and Supplemental Security Income (SSI) personal needs allowances, to new developments regarding the Corporate Transparency Act (CTA), we have recently seen significant legal developments. To ensure that you stay abreast of these changes, we have highlighted some noteworthy developments and analyzed how they may impact your estate planning, elder and special needs law, and business law practices.

Estate Planning

IRS Released Proposed Rule Identifying Certain Charitable Remainder Annuity Trust Transactions as Listed Transactions

Charitable Remainder Annuity Trust Listed Transaction, 89 Fed. Reg. 20569 (proposed Mar. 25, 2024)

On March 22, 2024, the Internal Revenue Service (IRS) released proposed regulations identifying certain CRATs and substantially similar transactions as listed transactions that it considers abusive or potentially abusive. The regulations, if adopted, would require material advisors or certain participants to file disclosures with the IRS and subject them to penalties for failure to make the necessary disclosures. Charitable remaindermen would not be subject to these requirements if their only role is as charitable remaindermen. 

To create a CRAT, a grantor contributes assets to an irrevocable trust with both charitable and noncharitable beneficiaries, which may include the grantor. The CRAT makes fixed distributions of income to the noncharitable beneficiaries in the form of an annuity whose value must be calculated as a fixed percentage—at least 5 percent but no more than 50 percent—of the initial value of the trust’s assets. The term of the CRAT is generally the life of the noncharitable beneficiary, who benefits for life. At the termination of the trust, the remaining assets are donated to the charitable beneficiaries. A CRAT can provide substantial tax advantages for the grantor, including an immediate charitable income tax deduction, reduced estate taxes, and avoidance of capital gains taxes on appreciated assets that remain in trust and are later sold by the charity (because charities are generally not subject to such taxation).

The IRS is concerned about certain transactions in which taxpayers attempt to use a CRAT and a single premium immediate annuity (SPIA) to permanently avoid recognition of ordinary income or capital gain; the beneficiaries claim that distributions from the trust are not taxable to the beneficiaries as ordinary income or capital gain under Internal Revenue Code (I.R.C.) § 664(b) because the distributions are the trust’s unrecovered investment in the SPIA and thus a significant portion of the distributions is excluded from gross income under I.R.C. § 72(b)(2). The beneficiary seeks to be taxed as if the beneficiary, rather than the CRAT, is the owner of the SPIA. The beneficiary’s desired result is that, until the entire investment in the SPIA has been recovered, the only portion of the annuity amount includible in the beneficiary's income is that portion of the SPIA required to be included in income under § 72. Further, the beneficiary’s position is that the distribution is not subject to § 664(b), which would treat a substantial portion of the annuity amount as gain attributable to the sale of the appreciated property contributed to the CRAT. The trustee of such a CRAT also might take the position—incorrectly according to the IRS—that the transfer of the appreciated property to the purported CRAT gives those assets a stepped-up basis to fair market value as if they had been sold to the trust rather than what the IRS considers to be the correct treatment, i.e., as a gift for federal tax purposes.

A “material advisor” who would be obligated to file a disclosure under the rule is a person who directly or indirectly derives gross income over a certain threshold amount for providing material aid, assistance, or advice with respect to the listed transaction.

Takeaways: Although charitable remaindermen would be excluded from the disclosure requirements under the proposed rule, material advisors and other participants who have engaged in the described or substantially similar transactions would need to be prepared to disclose them or, potentially, file amended tax returns. This proposed rule would cast a wide net for those who would be required to report. The comment period is now open and public comments on the proposed rule must be received by May 24, 2024.

US Entitled to Foreclose on Residential Property Where QRPT Was Invalidated Due to Prohibited Buy-Back Provision

Sohn v. United States, No. 22-cv-00385-PCP, 2024 WL 1182879 (N.D. Cal. Mar. 18, 2024)

In March 1996, Jeffrey and Olivia Yu purchased residential property, which they soon transferred into the Yu Personal Residence Trust (the Trust). Jeffrey and Olivia were the named trustors and the trustees. The Trust specified that they intended to make a completed gift to their two children subject to the retention of a right to the use of and income from the trust for 25 years, a contingent revisionary interest, a contingent annuity interest, and a limited right to substitute trust assets. The Trust also specified that Jeffrey and Olivia intended for it to be a qualified personal residence trust (QPRT) under Treas. Reg. § 25.2702-5(c) and I.R.C. § 2702(b). In addition, the Trust stated that it “and all interests in it are irrevocable, and the Trustors have no power to alter, amend, revoke or terminate any trust provision or interest, whether under this instrument or any statute or rule of law.” It also included a buy-back provision that allowed Jeffrey and Olivia to reacquire the residence by substituting other property of equivalent value.

Between 1998 and 2023, the residential property was transferred back and forth several times between Jeffrey and Olivia as trustees of the Trust and Jeffrey and Olivia as individuals. From 2004 to 2023, they, as individuals, held nominal title to the residential property. 

The IRS assessed Jeffrey $4,443,805 in unpaid penalties and interest for tax years 1997 through 2004. Jeffrey did not pay the penalties and interest. Federal tax liens were placed on Jeffrey’s property in 2014 and the IRS recorded notices of federal tax liens in the Santa Clara County recording office in 2016. Jeffrey and Olivia filed an action seeking a judgment quieting title to the residential property and declaring that the US government had no interest in the property. The US government counterclaimed, seeking an order that the Trust was no longer a valid QPRT.

The US government argued that Jeffrey and Olivia had failed to modify the Trust to eliminate the buy-back provision as required by December 1997 amendments to Treas. Reg. § 25.2702-5. In addition, it argued that Jeffrey and Olivia’s transfer to the residential property from the Trust to themselves invalidated the QPRT.

The United States District Court for the Northern District of California agreed, stating that not only did the Trust fail to prohibit buy-backs as required by the 1997 amendments to Treas. Reg. § 25.2702-5(c)(9), it expressly included a buy-back clause prohibited by the regulation. Because the Trust did not meet “all the requirements” set forth in Treas. Reg. § 25.2702-5(c) and was not timely reformed to eliminate the buy-back provision, it ceased to be a valid QPRT and was terminated in 1998. 

Jeffrey and Olivia did not dispute that, when the federal tax liens against Jeffrey attached to the property, record title to the residential property was held in their names as husband and wife, as community property with a right of survivorship. The court rejected their assertion that regardless of the record title, they did not have actual ownership of the residential property and that the QPRT remained the actual owner because the Trust was irrevocable, which precluded them from taking the residential property back from the Trust. 

First, the court determined that under California law, there was a presumption that when Jeffrey and Olivia transferred the residential property from the Trust to themselves, the transfer validly transferred full beneficial title to the property to them as their community property. Second, the Trust was a QPRT created by federal law, not an irrevocable trust created under California law (despite the Trust’s language regarding irrevocability). Certain terms of the Trust made it terminable under certain circumstances, including when it ceased to be a valid QPRT. Therefore, Jeffrey and Olivia could not overcome the presumption that they had full beneficial title to the property on the date when the federal tax liens attached to the residential property. Because the tax liens had properly attached to the residential property and Jeffrey had failed to pay the amounts due to the IRS, the government was entitled to foreclose on the liens. Thus, the court granted summary judgment in its favor.

Takeaways: A QPRT is an irrevocable trust that holds the donor’s personal residence. The donor retains the right to live in the residence for a fixed term of years and must pay property taxes and maintenance, insurance, and other expenses related to the property. Trust income must be distributed to the donor at least annually. At the end of the fixed term of years, the remaining interest is transferred to beneficiaries as a remainder interest. If the donor survives the term of years, the donor no longer has a continuing interest in the trust but may continue to live in the residential property if the donor leases it from the owner, which may be a continuing trust or a family member. A properly formed QPRT may be an effective estate planning technique to transfer a personal residence from one generation to another with reduced gift and estate taxes. If the donor dies before the end of the fixed term of years, however, the property will be brought back into the donor’s estate for estate tax purposes because of the retained income interest. The Sohn case provides a reminder that strict adherence to “all the requirements” set forth in Treas. Reg. § 25.2702-5(c) is necessary for a QPRT to be valid. Failure to modify a trust to eliminate a buy-back provision also will invalidate the QPRT.

Irrevocable Trust Reformed Where Grantor’s True Intentions Established by Clear and Convincing Evidence

In re Matter of Beebe, No. 2022-CA-01176-SCT, 2024 WL 857220 (Miss. Feb. 29, 2024)

In 1992, Elton Beebe, Sr. created an irrevocable trust (the Trust), which held assets valued at approximately $80 million. The trustees, in their sole discretion, could distribute net income and principal to 16 individuals named as lifetime beneficiaries for their support, welfare, and maintenance. Income that was not distributed was to be accumulated. Section 3.2, the provision governing termination of the trust, stated as follows: 

Unless all of the principal of this Trust is previously distributed, this Trust shall terminate upon the death of the last of the named beneficiaries to die; at such time, any remaining principal and accumulated income of the Trust shall be distributed in equal shares to the descendants of the named beneficiaries, or their issue, per stirpes.

In re Matter of Beebe, No. 2022-CA-01176-SCT, 2024 WL 857220, at *2 (Miss. Feb. 29, 2024) (emphasis added).

More than 25 years later, Elton reviewed the Trust document and discovered that Section 3.2 did not accurately reflect his intent. His current trustee filed a petition to modify or reform the trust under Miss. Code §§ 91-8-410 and 91-8-415 (Rev. 2021), which permits the court to reform unambiguous terms of a trust to conform to the settlor’s intention if there is clear and convincing evidence of the settlor’s true intention and that the terms of the trust were affected by a mistake of fact or law. Elton’s affidavit stated that the Trust contained a scrivener’s error and that the Trust did not accurately reflect the intentions he had communicated to his attorney. In the affidavit, Elton stated that “[i]t was always my intention and wish that the Trust provide a lifetime benefit only to the sixteen (16) named individuals; then, once all said individuals are deceased, the Trust would be administered for the benefit of my lineal descendants.” In re Matter of Beebe, No. 2022-CA-01176-SCT, 2024 WL 857220, at *2. Based on the testimony of Elton and one of the initial trustees, the trial court found there was clear and convincing evidence that Elton had intended for the Trust assets to pass to his lineal descendants upon termination. 

On appeal, the Mississippi Supreme Court agreed, finding that the trial court did not abuse its discretion by reforming the Trust to conform to Elton’s original intent. The trustee had submitted sufficient evidence that the termination provision was a mistake of expression and did not reflect Elton’s intention when the Trust was created in 1992. Although Elton had not read the Trust document when his attorney had provided it to him for review, he and other witnesses testified that Elton was a very busy businessperson and had trusted his attorney to draft the Trust according to his wishes. The court found that Elton had not willfully refused to participate in the drafting process due to a lack of interest but had simply relied on his attorney to draft the document as he intended. Accordingly, the court affirmed the decision of the trial court.

Takeaways: The Beebe case provides a reminder that irrevocable trusts—which typically cannot be amended or revoked by the grantor—may be changed under certain circumstances. Depending on state law, irrevocable trusts may be modified via court order, decanting, or termination for specified reasons. Further, the trust document may permit changes to an irrevocable trust, for example, by designating an independent person, such as a trust protector, who is authorized to make certain changes to the trust or by providing a power of appointment to a trust beneficiary.

In the Beebe case, the court determined that because the irrevocable trust did not accurately reflect the grantor’s intention at the time the trust was created, it could be reformed under Mississippi law where the grantor’s intentions were clearly established by the evidence. Trustees and their attorneys who are considering changes to an irrevocable trust should evaluate whether they will trigger adverse tax consequences, are consistent with the purpose of the trust, and are congruent with the fiduciary duties owed by the trustee to the trust’s beneficiaries.

Elder Law and Special Needs Law

Bills to Increase Personal Needs Allowances and Preclude Medicaid Estate Recovery Introduced in US House

The Dignity and Autonomy for Our Supplemental Security Income PNA Beneficiaries Act, H.R. 7697, introduced March 15, 2024, would provide annual cost-of-living adjustments to the minimum personal needs allowance (PNA) for institutionalized individuals and couples under the SSI program and require state supplementary payments under that program to be increased by the amount of each adjustment.

The Personal Needs Modernization Act, H.R. 7682, introduced March 13, 2024, would double Medicaid’s PNA—the maximum amount of income a Medicaid-funded nursing home resident can retain for personal expenses such as clothing, vitamins, haircuts, and cell phones—from $30 per month (set in 1988) to $60 per month for individuals and $120 per month for couples. In addition, the bill would require the amount to be adjusted annually for inflation. Under current law, states may allow a higher PNA up to a maximum of $200 per month; therefore, PNA amounts currently vary depending upon the state and range from $30 to $200 per month.

The Stop Unfair Medicaid Recoveries Act, H.R.7573, introduced March 6, 2024, would repeal the federal mandate that requires state Medicaid programs to establish a Medicaid estate recovery program to seek repayment of Medicaid long-term care benefits from the deceased recipient’s estate or heirs and to limit the circumstances when a state may place a lien on a Medicaid beneficiary’s property.

Takeaways: The Dignity and Autonomy for Our Supplemental Security Income PNA Beneficiaries Act is a new bill, but the Personal Needs Modernization Act and Stop Unfair Medicaid Recoveries Act were introduced in past sessions of Congress. It is unclear if they will be brought for a vote in the 118th Congress. If passed, they would benefit SSI and Medicaid recipients, who have been impacted by high rates of inflation in recent years that diminish the real value of the existing benefits, as well as recipients’ families, who must navigate complex state estate-recovery rules. Many states impose Medicaid recovery on assets beyond the probate estate, further exacerbating the consequences felt by families. Clients who plan proactively can often avoid the imposition of a lien and estate recovery through the use of a Medicaid Asset Protection Trust and other planning techniques and forms.

Oklahoma Supreme Court: Incapacitated Person May Revoke Advance Directive if Intent to Revoke Is Shown by Clear and Convincing Evidence

In re Guardianship of L.A.C., No. 120500, 2024 WL 442442 (Okla. Feb. 6, 2024)

L.A.C. was diagnosed with several progressive degenerative diseases, and in 2013, executed an advance directive stating her wish that if she had a terminal condition, was persistently unconscious, or had an end-stage condition, her life should not be extended by “life-sustaining treatment, including artificially administered nutrition and hydration.” The advance directive further stated as follows: 

In the absence of my ability to give directions regarding the use of life-sustaining procedures, it is my intention that this advance directive shall be honored by my family and physicians as the final expression of my legal right to choose or refuse medical or surgical treatment including, but not limited to, the administration of life-sustaining procedures, and I accept the consequences of such choice or refusal.

In re Guardianship of L.A.C., No. 120500, 2024 WL 442442, at *1 (Okla. Feb. 6, 2024)

In March 2018, L.A.C. lost her ability to speak. In May 2021, L.A.C. was hospitalized for aspiration pneumonia, and her daughter was appointed by the court as her special guardian on an emergency basis for 30 days. After her appointment as special guardian, the daughter authorized the insertion of a percutaneous endoscopic gastronomy (PEG) tube to hydrate and feed L.A.C., which remained in place after she was discharged and moved to an assisted living facility. L.A.C.’s sister asserted that she was L.A.C.s attorney-in-fact. The court appointed an attorney as L.A.C.’s guardian ad litem, temporarily suspended her advance directive, and ordered that the PEG tube remain in place until the matter was resolved. Another guardian over L.A.C.’s person and property was appointed pursuant to a settlement agreement between L.A.C.’s sister and her children. The agreement also specified that the advance directive would remain in place but that the PEG tube would not be removed and no effort would be made to withdraw L.A.C.’s nutrition or hydration. 

The trial court found L.A.C. to be an incapacitated person and adopted the agreement in September 2021, but L.A.C.’s children and sister continued to disagree about whether the PEG tube should remain in place. As a result, in April 2022, a trial commenced to address whether the PEG tube should remain or be removed. L.A.C.’s guardian ad litem asserted that L.A.C., who, despite being nonverbal, was cognizant and could communicate through facial expressions and movements of her hands and feet, had revoked her advance directive after the guardian ad litem had explained to her that the removal of the PEG tube would be painful and lead to her death by starvation. 

The trial court determined, as a matter of first impression, that the standard for revoking an advance directive was clear and convincing evidence. It found that L.A.C.’s “purported revocation” failed to meet the clear and convincing standard. On appeal, the appellate court disagreed, finding that the proper standard to revoke an advance directive was a preponderance of the evidence, and there was sufficient evidence based on that standard that L.A.C. had revoked her advance directive. The Oklahoma Supreme Court granted L.A.C.’s children’s petition for certiorari to address whether an incompetent or incapacitated person may revoke their advance directive and to establish the proper standard of proof.

The Oklahoma Supreme Court rejected L.A.C.’s children’s argument that she was legally incapable of revoking her advance directive because of her incapacity. Under 63 Okla. Stat. § 3101.6(A), “[a]n advance directive may be revoked in whole or in part at any time and in any manner . . . without regard to the declarant’s mental or physical condition.” (emphasis added). The court determined that, because § 3101.6 allowed a person to revoke an advance directive without regard to their mental or physical condition and without limitations, L.A.C., despite being ruled to be an incapacitated person, retained the legal right to revoke her advance directive.

Further, the court noted the purpose of the Oklahoma Advance Directive Act, as set forth in 63 Okla. Stat. § 3101.2(A), was that “decisions concerning one’s medical treatment involve highly sensitive, personal issues that do not belong in court.” As a result, the statute requires the courts to show “great deference to the wishes of an individual as expressed in their advance directive,” requiring a higher standard of proof to demonstrate that it has been revoked. Id. at *7. Although 63 Okla. Stat. § 3101.6 does not explicitly address the standard of proof for revocation of an advance directive, related statutes in Title 63 of the Oklahoma Code require clear and convincing evidence. The court held as follows: 

The purpose of § 3101.6 is to allow an individual to make their own end-of-life decisions, of their own free will. This requires that Ward's expressed wishes regarding her end-of-life treatment will continue to be honored during her incapacity without court involvement.

Id. at *8. The court recognized that finding that L.A.C. did not revoke her advance directive could result in hastening her death; however, she consciously chose in her advance directive to not prolong her life through artificial nutrition and hydration and those wishes should be honored without court involvement. 

Takeaways: In In re Guardianship of L.A.C., L.A.C. apparently never executed important estate planning documents such as a healthcare power of attorney that would have named a trusted individual to make important medical decisions on her behalf. This case provides an important example for attorneys to provide to clients regarding why it is necessary for their estate plan to be complete and finalized well before they think those documents will be needed. In addition, clients should be encouraged to communicate their wishes directly to family members and loved ones to avoid placing them in the difficult position of making life-or-death decisions based only on a best guess as to what an incapacitated or incompetent person would have wanted when that person is no longer able to express their wishes.

Business Law

Constitutional Challenges to the Corporate Transparency Act: Updates

On March 11, 2024, the US Department of Justice filed an appeal to the March 1, 2024, ruling of the United States District Court for the Northern District of Alabama in National Small Bus. United v. Yellen, No. 5:22-cv-1448-LCB, 2024 WL 899372 (N.D. Ala. Mar. 1, 2024) that held the CTA unconstitutional. A summary of the National Small Business United case is available here.

On March 15, 2024, a complaint was filed in the United States District Court for the District of Maine, Boyle v. Yellen, D. Me., No. 2:24-cv-00081, challenging the constitutionality of the CTA on the basis that it exceeds Congress’s authority under Article I of the Constitution and encroaches upon the states’ respective sovereignties in violation of the Ninth and Tenth Amendments and constitutional principles of federalism and retained state sovereignty.

On December 29, 2023, a complaint was filed in the United States District Court for the Northern District of Ohio, Gargasz v. Yellen, No. 1:23-CV-02468, challenging the constitutionality of the CTA on the basis that it violates the Fourth, Fifth, Ninth, and Tenth Amendments.

Takeaways: At this time, the CTA cannot be enforced against the particular plaintiffs in the National Small Business United case, but the decision could have far-reaching consequences if it is affirmed on appeal and ultimately reaches the United States Supreme Court. On March 4, 2024, FinCEN issued a news release regarding the National Small Business United case. As of the date of publication, there have been no rulings in the Boyle case. Business owners and their advisors should monitor the changing regulatory landscape as these cases—and any others—travel through the courts. WealthCounsel will continue to monitor developments related to the CTA and provide updates. 

New York Enacts Revised LLC Transparency Law

8059, 2023-2024 Leg. Sess. (N.Y. 2024)

On March 1, 2024, New York Governor Kathy Hochul signed a new version of the New York Transparency Act (the Act), S. 8059, which repeals and replaces S. 995B/A. 3484, 2023-2024 Reg. Sess. (N.Y. 2023), an earlier version of the New York Transparency Act she signed in December 2023 (see Current Developments: January 2024 Review). The Act is similar to the federal CTA but requires the disclosure of beneficial ownership information (BOI) only for limited liability companies (LLCs)—not corporations, partnerships, or other business entities—formed in New York. If an LLC falls within 23 exemptions to reporting under the CTA, it will also be exempt from the disclosure requirements of the Act; however, in contrast to the CTA, which does not require an exempt entity to make any type of filing, the Act requires an exempt LLC to file an attestation of the exemption within 30 days of its formation or qualification to do business in New York.

The following information must be disclosed:

1. full legal name 
2. date of birth 
3. current business street address 
4. a unique identifying number from one of several listed identification documents 

Further, the Act requires an annual statement to be filed confirming or updating the information.

The revised Act, which is effective January 1, 2026, requires newly formed companies to file BOI within 30 days of the initial filing of the articles of organization. LLCs formed or authorized to do business in New York before the law’s effective date have until January 1, 2027, to make their initial filings.

Although an earlier version of the New York Transparency Act would have created a public database, under the new Act, information related to beneficial owners will be maintained in a secure database and deemed confidential except (1) pursuant to the written request or voluntary consent of the beneficial owner; (2) by court order; (3) to officers or employees of federal, state or local government agencies where necessary for the agency to perform its official duties; or (4) for a valid law enforcement purpose, including a purpose relevant to an investigation by the office of the attorney general.

Several notable differences between the revised and repealed versions of the Act include the following:

Takeaways: Failure to comply within 30 days will result in a past-due notice in the Department of State’s records. Failure to comply for a period exceeding two years will result in a $250 fine and a public notice of delinquency.

AI-Related Legal Developments: New Federal Guidance Regarding Patentability of AI-Assisted Inventions and New Tennessee Law Prohibiting Unauthorized Use of AI to Replicate Likeness, Voice, or Image

Inventorship Guidance for AI-Assisted Inventions, 89 Fed. Reg. 10043 (Feb. 13, 2024); S. 2096/H.B. No. 2091 (Tenn. 2024)

Patentability of AI-assisted inventions. On February 13, 2024, the United States Patent and Trademark Office (USPTO) published Inventorship Guidance for AI-Assisted Inventions, aimed at clarifying how the USPTO will analyze inventorship issues when artificial intelligence (AI) plays a role in the innovative process and solicited public comments, which must be received on or before May 13, 2024. The guidance indicates that AI-assisted inventions are “not categorically unpatentable,” but patent protection is only available for inventions “for which a natural person provided a significant contribution to the invention.” In addition, a joint inventor must also be a natural person. 

The guidance also clarifies that the USPTO has not changed or modified the duty of applicants for patents to disclose to the USPTO any information that raises a prima facie case of unpatentability due to improper inventorship or is inconsistent with an assertion of inventorship. For example, an applicant must disclose evidence that a named inventor did not significantly contribute to an invention because the purported contribution was made by an AI system.

Unauthorized use of AI to replicate a person’s voice, likeness, or image. On March 21, 2024, Tennessee’s Governor Bill Lee signed S. 2096/H.B. No. 2091, the Ensuring Likeness, Voice and Image Security (ELVIS) Act of 2024, which prohibits the unauthorized use of a person’s likeness, voice, or image, including the unauthorized use of AI to replicate their likeness, voice, or image. Specifically, the law provides that those who distribute an “algorithm, software, tool, or other technology service, or device” for the primary purpose of the unauthorized reproduction of an individual’s “name, photograph, voice, or likeness” are subject to civil liability. The ELVIS Act includes exceptions for the “fair use” of a person’s name, photograph, voice, or likeness, including, for example, its use in connection with news, sports broadcasts, satire, or parody. The ELVIS Act takes effect July 1, 2024.

Takeaways: Lawmakers and regulators are struggling to catch up to the rapid advancements in technology, particularly in the realm of AI. WealthCounsel will continue to monitor legal developments related to AI and provide updates.