Determining the situs of a trust (i.e. the residence of a trust) is not always an easy matter. Each state has its own rules regarding whether a trust is a “Resident Trust”. These rules are oftentimes different from the tax rules. In some states these rules have been challenged in Court as unconstitutional, where the taxpayer has prevailed, but yet the “unconstitutional rule” is still on the books.This brings us to the wonderful worlds of New Jersey and Pennsylvania. (Although I am sure a challenge is coming to New York soon.)
Let’s take four different situations:
- A NJ Resident Trust;
- A Non-Resident NJ Trust;
- A PA Resident Trust; and
- A Non-Resident PA Trust.
In situation 1—A NJ Resident Trust
A Trust is considered a NJ Resident Trust for state income tax purposes, and must file Form NJ-1041, if:
a) The Trust consists of property transferred by a NJ decedent via his/her Will;
b) If a NJ person gifts property to an irrevocable trust; or
c) If a NJ person owns assets in a revocable trust dies and now the trust is irrevocable.
It is important to note that an irrevocable trust is NOT considered a NJ Resident Trust if it was created in another jurisdiction even if all the trustees and beneficiaries are now NJ residents unless the trust situs is changed to New Jersey.
Moreover, even if the trust is considered a NJ Resident Trust, it is NOT subject to New Jersey income tax if:
a) It does not have any tangible assets in NJ;
b) It does not have any income from NJ sources; AND
c) It does not have any trustees who are NJ residents.
It is probably worth creating a separate post on what it means for a person to be domiciled in a particular state, but for now, let’s say that it is clear that a person has fixed, permanent home in New Jersey.
All of the above can be gathered simply by looking at the instructions for NJ Form-1041. However, what happens if the Trustees and beneficiaries move out of state? Can NJ still tax the entire trust if only a portion of the income is attributable to NJ?
In 2013, the Tax Court of New Jersey decided in Residuary Trust A under the Will of Fred E. Kassner, Michele Kassner, Trustee v. Director, Division of Taxation, that New Jersey could not impose a tax on undistributed income generated by the trust simply because the Trust owned an S-Corporation created in New Jersey when the Decedent was a New Jersey domiciliary, but the Trustee was located outside of NJ and all of the other assets of the trust were located outside of NJ.
Specifically, the Court stated that the due process clause bars NJ from taxing undistributed income of a trust to the extent the trustee, assets and beneficiaries are outside of New Jersey, citing Pennoyer v. Taxation Division and Potter v. Taxation Division.
So, even if a trust is considered a NJ Resident Trust, it does NOT mean it will actually be subject to NJ income tax.
In situation 2—A Non-Resident NJ Trust
A Non-Resident NJ Trust, which can best be described as any trust that is not a NJ resident Trust, is only subject to NJ income tax to the extent the trust has income from NJ sources, such as a NJ business, real estate or gambling winnings. (Although hopefully your trustee is not actually gambling!)
With respect to Situation 3—A PA Resident Trust
The rules for determining whether a Trust is a PA Resident Trust are almost identical to New Jersey. However, where NJ had some clear exclusions whereby a trust was not subject to the NJ income tax, PA tries to tax all income if there was a resident trust. This can be a big problem if you have a PA grantor of a Trust or a PA decedent where following the creation of the trust, the Trustees and the beneficiaries are all out of state.
Now, all is not lost as there was very recently an important case, McNeil vs. Commonwealth of Pennsylvania, in which the Court decided that Pennsylvania did NOT have the right to tax the income of a trust, which was created by a PA Grantor, when the trust was created in another jurisdiction, the Grantor had died, the Trustees where located outside of PA, and the only connection to PA where some discretionary beneficiaries that had not in fact received any income.
Pennsylvania seems to have acquiesced considerably in this decision. While they still say “Resident Trusts” are subject to PA income tax and must file the PA Form 41, the instructions on that form, Pennsylvania allows a Resident Trust to be converted to a Non-Resident Trust by change the trust situs if it lacks sufficient nexus to PA. It appears that the Trustees must follow certain steps to do this, but once done, the trust will no longer be subject to PA income tax. (See page 3 of the form and 20 PA Code Section 7708.)
With respect to Situation 4—A Non-Resident PA Trust
If there is a PA Non-Resident Trust (basically a trust that was not created by a PA resident), PA generally takes the position that the Trustee must only file a tax return in PA if the trust has PA source income or if there is a resident beneficiary. The requirement to file the return when there is a resident beneficiary is new and particularly problematic because the requirement to file is true EVEN IF THE TRUST MAKES NO DISTRIBUTION TO THAT BENEFICIARY.
Importantly, the failure to file the PA-41 (Income tax return for a PA Trust) can trigger interest and penalties as high as 50%.