Subpart E—Grantors and Others Treated as Substantial Owners
Amendments
1976—
Subpart Referred to in Other Sections
This subpart is referred to in
§671. Trust income, deductions, and credits attributable to grantors and others as substantial owners
Where it is specified in this subpart that the grantor or another person shall be treated as the owner of any portion of a trust, there shall then be included in computing the taxable income and credits of the grantor or the other person those items of income, deductions, and credits against tax of the trust which are attributable to that portion of the trust to the extent that such items would be taken into account under this chapter in computing taxable income or credits against the tax of an individual. Any remaining portion of the trust shall be subject to subparts A through D. No items of a trust shall be included in computing the taxable income and credits of the grantor or of any other person solely on the grounds of his dominion and control over the trust under section 61 (relating to definition of gross income) or any other provision of this title, except as specified in this subpart.
(Aug. 16, 1954, ch. 736,
Certain Entities Not Treated as Corporations
"(a)
"(b)
"(1) such entity was created in 1906 as a common law trust and is governed by the trust laws of the State of Minnesota,
"(2) such entity is exclusively engaged in the leasing of mineral property and activities incidental thereto, and
"(3) income interests in such entity are publicly traded as of October 22, 1986, on a national stock exchange.
"(c)
"(1)
"(A) shall be made by the board of trustees of the entity before January 1, 1991, and
"(B) shall not be valid unless accompanied by an agreement described in paragraph (2).
"(2)
"(A)
"(B)
"(i) surface rights to property the acquisition of which—
"(I) is necessary to mine mineral rights held on October 22, 1986, and
"(II) is required by a written binding agreement between the entity and an unrelated person entered into on or before October 22, 1986,
"(ii) surface rights to property which are not described in clause (i) and which—
"(I) are acquired in an exchange to which section 1031 [probably means
"(II) are necessary to mine mineral rights held on October 22, 1986,
"(iii) tangible personal property incidental to the leasing of mineral property and activities incidental thereto, or
"(iv) part of any required reserves of the entity.
"(3)
"(4)
"(d)
"(1)
"(A) such entity shall be treated as having been liquidated into a trust immediately before the period described in subsection (c)(3) in a liquidation to which section 333 of the Internal Revenue Code of 1954 (as in effect before the amendments made by this Act) applies, and
"(B) for purposes of section 333 of such Code (as so in effect)—
"(i) any person holding an income interest in such entity as of such time shall be treated as a qualified electing shareholder, and
"(ii) the earnings and profits, and the value of money or stock or securities, of such entity shall be apportioned ratably among persons described in clause (i).
The amendments made by subtitle D of this title [subtitle D (§§631–634) of title VI of
"(2)
"(3)
"(e)
"(1) a reversionary interest shall not be taken into account until it comes into possession, and
"(2) all items of income, gain, loss, deduction, and credit shall be allocated to persons holding income interests for the period of the allocation."
Section Referred to in Other Sections
This section is referred to in
§672. Definitions and rules
(a) Adverse party
For purposes of this subpart, the term "adverse party" means any person having a substantial beneficial interest in the trust which would be adversely affected by the exercise or nonexercise of the power which he possesses respecting the trust. A person having a general power of appointment over the trust property shall be deemed to have a beneficial interest in the trust.
(b) Nonadverse party
For purposes of this subpart, the term "nonadverse party" means any person who is not an adverse party.
(c) Related or subordinate party
For purposes of this subpart, the term "related or subordinate party" means any nonadverse party who is—
(1) the grantor's spouse if living with the grantor;
(2) any one of the following: The grantor's father, mother, issue, brother or sister; an employee of the grantor; a corporation or any employee of a corporation in which the stock holdings of the grantor and the trust are significant from the viewpoint of voting control; a subordinate employee of a corporation in which the grantor is an executive.
For purposes of sections 674 and 675, a related or subordinate party shall be presumed to be subservient to the grantor in respect of the exercise or nonexercise of the powers conferred on him unless such party is shown not to be subservient by a preponderance of the evidence.
(d) Rule where power is subject to condition precedent
A person shall be considered to have a power described in this subpart even though the exercise of the power is subject to a precedent giving of notice or takes effect only on the expiration of a certain period after the exercise of the power.
(e) Grantor treated as holding any power or interest of grantor's spouse
(1) In general
For purposes of this subpart, a grantor shall be treated as holding any power or interest held by—
(A) any individual who was the spouse of the grantor at the time of the creation of such power or interest, or
(B) any individual who became the spouse of the grantor after the creation of such power or interest, but only with respect to periods after such individual became the spouse of the grantor.
(2) Marital status
For purposes of paragraph (1)(A), an individual legally separated from his spouse under a decree of divorce or of separate maintenance shall not be considered as married.
(f) Special rule where grantor is foreign person
(1) In general
If—
(A) but for this subsection, a foreign person would be treated as the owner of any portion of a trust, and
(B) such trust has a beneficiary who is a United States person,
such beneficiary shall be treated as the grantor of such portion to the extent such beneficiary has made transfers of property by gift (directly or indirectly) to such foreign person. For purposes of the preceding sentence, any gift shall not be taken into account to the extent such gift would be excluded from taxable gifts under section 2503(b).
(2) Regulations
The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this subsection.
(Aug. 16, 1954, ch. 736,
Amendments
1990—Subsec. (f).
1988—Subsec. (e).
1986—Subsec. (e).
Effective Date of 1990 Amendment
Section 11343(b) of
"(1) any trust created after the date of the enactment of this Act [Nov. 5, 1990], and
"(2) any portion of a trust created on or before such date which is attributable to amounts contributed to the trust after such date."
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1986 Amendment
Section 1401(b) of
Section Referred to in Other Sections
This section is referred to in
§673. Reversionary interests
(a) General rule
The grantor shall be treated as the owner of any portion of a trust in which he has a reversionary interest in either the corpus or the income therefrom, if, as of the inception of that portion of the trust, the value of such interest exceeds 5 percent of the value of such portion.
(b) Reversionary interest taking effect at death of minor lineal descendant beneficiary
In the case of any beneficiary who—
(1) is a lineal descendant of the grantor, and
(2) holds all of the present interests in any portion of a trust,
the grantor shall not be treated under subsection (a) as the owner of such portion solely by reason of a reversionary interest in such portion which takes effect upon the death of such beneficiary before such beneficiary attains age 21.
(c) Special rule for determining value of reversionary interest
For purposes of subsection (a), the value of the grantor's reversionary interest shall be determined by assuming the maximum exercise of discretion in favor of the grantor.
(d) Postponement of date specified for reacquisition
Any postponement of the date specified for the reacquisition of possession or enjoyment of the reversionary interest shall be treated as a new transfer in trust commencing with the date on which the postponement is effective and terminating with the date prescribed by the postponement. However, income for any period shall not be included in the income of the grantor by reason of the preceding sentence if such income would not be so includible in the absence of such postponement.
(Aug. 16, 1954, ch. 736,
Amendments
1988—Subsecs. (c), (d).
1986—
1969—Subsec. (b).
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1986 Amendment
Section 1402(c) of
"(1)
"(2)
Effective Date of 1969 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§674. Power to control beneficial enjoyment
(a) General rule
The grantor shall be treated as the owner of any portion of a trust in respect of which the beneficial enjoyment of the corpus or the income therefrom is subject to a power of disposition, exercisable by the grantor or a nonadverse party, or both, without the approval or consent of any adverse party.
(b) Exceptions for certain powers
Subsection (a) shall not apply to the following powers regardless of by whom held:
(1) Power to apply income to support of a dependent
A power described in section 677(b) to the extent that the grantor would not be subject to tax under that section.
(2) Power affecting beneficial enjoyment only after occurrence of event
A power, the exercise of which can only affect the beneficial enjoyment of the income for a period commencing after the occurrence of an event such that a grantor would not be treated as the owner under section 673 if the power were a reversionary interest; but the grantor may be treated as the owner after the occurrence of the event unless the power is relinquished.
(3) Power exercisable only by will
A power exercisable only by will, other than a power in the grantor to appoint by will the income of the trust where the income is accumulated for such disposition by the grantor or may be so accumulated in the discretion of the grantor or a nonadverse party, or both, without the approval or consent of any adverse party.
(4) Power to allocate among charitable beneficiaries
A power to determine the beneficial enjoyment of the corpus or the income therefrom if the corpus or income is irrevocably payable for a purpose specified in section 170(c) (relating to definition of charitable contributions).
(5) Power to distribute corpus
A power to distribute corpus either—
(A) to or for a beneficiary or beneficiaries or to or for a class of beneficiaries (whether or not income beneficiaries) provided that the power is limited by a reasonably definite standard which is set forth in the trust instrument; or
(B) to or for any current income beneficiary, provided that the distribution of corpus must be chargeable against the proportionate share of corpus held in trust for the payment of income to the beneficiary as if the corpus constituted a separate trust.
A power does not fall within the powers described in this paragraph if any person has a power to add to the beneficiary or beneficiaries or to a class of beneficiaries designated to receive the income or corpus, except where such action is to provide for after-born or after-adopted children.
(6) Power to withhold income temporarily
A power to distribute or apply income to or for any current income beneficiary or to accumulate the income for him, provided that any accumulated income must ultimately be payable—
(A) to the beneficiary from whom distribution or application is withheld, to his estate, or to his appointees (or persons named as alternate takers in default of appointment) provided that such beneficiary possesses a power of appointment which does not exclude from the class of possible appointees any person other than the beneficiary, his estate, his creditors, or the creditors of his estate, or
(B) on termination of the trust, or in conjunction with a distribution of corpus which is augmented by such accumulated income, to the current income beneficiaries in shares which have been irrevocably specified in the trust instrument.
Accumulated income shall be considered so payable although it is provided that if any beneficiary does not survive a date of distribution which could reasonably have been expected to occur within the beneficiary's lifetime, the share of the deceased beneficiary is to be paid to his appointees or to one or more designated alternate takers (other than the grantor or the grantor's estate) whose shares have been irrevocably specified. A power does not fall within the powers described in this paragraph if any person has a power to add to the beneficiary or beneficiaries or to a class of beneficiaries designated to receive the income or corpus except where such action is to provide for after-born or after-adopted children.
(7) Power to withhold income during disability of a beneficiary
A power exercisable only during—
(A) the existence of a legal disability of any current income beneficiary, or
(B) the period during which any income beneficiary shall be under the age of 21 years,
to distribute or apply income to or for such beneficiary or to accumulate and add the income to corpus. A power does not fall within the powers described in this paragraph if any person has a power to add to the beneficiary or beneficiaries or to a class of beneficiaries designated to receive the income or corpus, except where such action is to provide for after-born or after-adopted children.
(8) Power to allocate between corpus and income
A power to allocate receipts and disbursements as between corpus and income, even though expressed in broad language.
(c) Exception for certain powers of independent trustees
Subsection (a) shall not apply to a power solely exercisable (without the approval or consent of any other person) by a trustee or trustees, none of whom is the grantor, and no more than half of whom are related or subordinate parties who are subservient to the wishes of the grantor—
(1) to distribute, apportion, or accumulate income to or for a beneficiary or beneficiaries, or to, for, or within a class of beneficiaries; or
(2) to pay out corpus to or for a beneficiary or beneficiaries or to or for a class of beneficiaries (whether or not income beneficiaries).
A power does not fall within the powers described in this subsection if any person has a power to add to the beneficiary or beneficiaries or to a class of beneficiaries designated to receive the income or corpus, except where such action is to provide for after-born or after-adopted children. For periods during which an individual is the spouse of the grantor (within the meaning of section 672(e)(2)), any reference in this subsection to the grantor shall be treated as including a reference to such individual.
(d) Power to allocate income if limited by a standard
Subsection (a) shall not apply to a power solely exercisable (without the approval or consent of any other person) by a trustee or trustees, none of whom is the grantor or spouse living with the grantor, to distribute, apportion, or accumulate income to or for a beneficiary or beneficiaries, or to, for, or within a class of beneficiaries, whether or not the conditions of paragraph (6) or (7) of subsection (b) are satisfied, if such power is limited by a reasonably definite external standard which is set forth in the trust instrument. A power does not fall within the powers described in this subsection if any person has a power to add to the beneficiary or beneficiaries or to a class of beneficiaries designated to receive the income or corpus except where such action is to provide for after-born or after-adopted children.
(Aug. 16, 1954, ch. 736,
Amendments
1988—Subsec. (c).
1986—Subsec. (b)(2).
Effective Date of 1988 Amendment
Amendment by
Effective Date of 1986 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§675. Administrative powers
The grantor shall be treated as the owner of any portion of a trust in respect of which—
(1) Power to deal for less than adequate and full consideration
A power exercisable by the grantor or a nonadverse party, or both, without the approval or consent of any adverse party enables the grantor or any person to purchase, exchange, or otherwise deal with or dispose of the corpus or the income therefrom for less than an adequate consideration in money or money's worth.
(2) Power to borrow without adequate interest or security
A power exercisable by the grantor or a nonadverse party, or both, enables the grantor to borrow the corpus or income, directly or indirectly, without adequate interest or without adequate security except where a trustee (other than the grantor) is authorized under a general lending power to make loans to any person without regard to interest or security.
(3) Borrowing of the trust funds
The grantor has directly or indirectly borrowed the corpus or income and has not completely repaid the loan, including any interest, before the beginning of the taxable year. The preceding sentence shall not apply to a loan which provides for adequate interest and adequate security, if such loan is made by a trustee other than the grantor and other than a related or subordinate trustee subservient to the grantor. For periods during which an individual is the spouse of the grantor (within the meaning of section 672(e)(2)), any reference in this paragraph to the grantor shall be treated as including a reference to such individual.
(4) General powers of administration
A power of administration is exercisable in a nonfiduciary capacity by any person without the approval or consent of any person in a fiduciary capacity. For purposes of this paragraph, the term "power of administration" means any one or more of the following powers: (A) a power to vote or direct the voting of stock or other securities of a corporation in which the holdings of the grantor and the trust are significant from the viewpoint of voting control; (B) a power to control the investment of the trust funds either by directing investments or reinvestments, or by vetoing proposed investments or reinvestments, to the extent that the trust funds consist of stocks or securities of corporations in which the holdings of the grantor and the trust are significant from the viewpoint of voting control; or (C) a power to reacquire the trust corpus by substituting other property of an equivalent value.
(Aug. 16, 1954, ch. 736,
Amendments
1988—Par. (3).
Effective Date of 1988 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§676. Power to revoke
(a) General rule
The grantor shall be treated as the owner of any portion of a trust, whether or not he is treated as such owner under any other provision of this part, where at any time the power to revest in the grantor title to such portion is exercisable by the grantor or a non-adverse party, or both.
(b) Power affecting beneficial enjoyment only after occurrence of event
Subsection (a) shall not apply to a power the exercise of which can only affect the beneficial enjoyment of the income for a period commencing after the occurrence of an event such that a grantor would not be treated as the owner under section 673 if the power were a reversionary interest. But the grantor may be treated as the owner after the occurrence of such event unless the power is relinquished.
(Aug. 16, 1954, ch. 736,
Amendments
1986—Subsec. (b)(2).
Effective Date of 1986 Amendment
Amendment by
Cross References
Nonadverse party defined, see
Section Referred to in Other Sections
This section is referred to in
§677. Income for benefit of grantor
(a) General rule
The grantor shall be treated as the owner of any portion of a trust, whether or not he is treated as such owner under section 674, whose income without the approval or consent of any adverse party is, or, in the discretion of the grantor or a nonadverse party, or both, may be—
(1) distributed to the grantor or the grantor's spouse;
(2) held or accumulated for future distribution to the grantor or the grantor's spouse; or
(3) applied to the payment of premiums on policies of insurance on the life of the grantor or the grantor's spouse (except policies of insurance irrevocably payable for a purpose specified in section 170(c) (relating to definition of charitable contributions)).
This subsection shall not apply to a power the exercise of which can only affect the beneficial enjoyment of the income for a period commencing after the occurrence of an event such that the grantor would not be treated as the owner under section 673 if the power were a reversionary interest; but the grantor may be treated as the owner after the occurrence of the event unless the power is relinquished.
(b) Obligations of support
Income of a trust shall not be considered taxable to the grantor under subsection (a) or any other provision of this chapter merely because such income in the discretion of another person, the trustee, or the grantor acting as trustee or co-trustee, may be applied or distributed for the support or maintenance of a beneficiary (other than the grantor's spouse) whom the grantor is legally obligated to support or maintain, except to the extent that such income is so applied or distributed. In cases where the amounts so applied or distributed are paid out of corpus or out of other than income for the taxable year, such amounts shall be considered to be an amount paid or credited within the meaning of paragraph (2) of section 661(a) and shall be taxed to the grantor under section 662.
(Aug. 16, 1954, ch. 736,
Amendments
1986—Subsec. (a).
1969—Subsec. (a)(1) to (3).
Subsec. (b).
Effective Date of 1986 Amendment
Amendment by
Effective Date of 1969 Amendment
Section 332(b) of
Cross References
Definitions—
Adverse party, see
Non-adverse party, see
Income from interest in an estate or trust as gross income, in
Section Referred to in Other Sections
This section is referred to in
§678. Person other than grantor treated as substantial owner
(a) General rule
A person other than the grantor shall be treated as the owner of any portion of a trust with respect to which:
(1) such person has a power exercisable solely by himself to vest the corpus or the income therefrom in himself, or
(2) such person has previously partially released or otherwise modified such a power and after the release or modification retains such control as would, within the principles of sections 671 to 677, inclusive, subject to grantor of a trust to treatment as the owner thereof.
(b) Exception where grantor is taxable
Subsection (a) shall not apply with respect to a power over income, as originally granted or thereafter modified, if the grantor of the trust or a transferor (to whom section 679 applies) is otherwise treated as the owner under the provisions of this subpart other than this section.
(c) Obligations of support
Subsection (a) shall not apply to a power which enables such person, in the capacity of trustee or cotrustee, merely to apply the income of the trust to the support or maintenance of a person whom the holder of the power is obligated to support or maintain except to the extent that such income is so applied. In cases where the amounts so applied or distributed are paid out of corpus or out of other than income of the taxable year, such amounts shall be considered to be an amount paid or credited within the meaning of paragraph (2) of section 661(a) and shall be taxed to the holder of the power under section 662.
(d) Effect of renunciation or disclaimer
Subsection (a) shall not apply with respect to a power which has been renounced or disclaimed within a reasonable time after the holder of the power first became aware of its existence.
(e) Cross reference
For provision under which beneficiary of trust is treated as owner of the portion of the trust which consists of stock in an electing small business corporation, see section 1361(d).
(Aug. 16, 1954, ch. 736,
Amendments
1983—Subsec. (e).
1976—Subsec. (b).
Effective Date of 1983 Amendment
Amendment by
Effective Date of 1976 Amendment
For effective date of amendment by
Section Referred to in Other Sections
This section is referred to in
§679. Foreign trusts having one or more United States beneficiaries
(a) Transferor treated as owner
(1) In general
A United States person who directly or indirectly transfers property to a foreign trust (other than a trust described in section 404(a)(4) Or 1 section 404A) shall be treated as the owner for his taxable year of the portion of such trust attributable to such property if for such year there is a United States beneficiary of any portion of such trust.
(2) Exceptions
Paragraph (1) shall not apply—
(A) Transfers by reason of death
To any transfer by reason of the death of the transferor.
(B) Transfers where gain is recognized to transferor
To any sale or exchange of the property at its fair market value in a transaction in which all of the gain to the transferor is realized at the time of the transfer and is recognized either at such time or is returned as provided in section 453.
(b) Trusts acquiring United States beneficiaries
If—
(1) subsection (a) applies to a trust for the transferor's taxable year, and
(2) subsection (a) would have applied to the trust for his immediately preceding taxable year but for the fact that for such preceding taxable year there was no United States beneficiary for any portion of the trust,
then, for purposes of this subtitle, the transferor shall be treated as having income for the taxable year (in addition to his other income for such year) equal to the undistributed net income (at the close of such immediately preceding taxable year) attributable to the portion of the trust referred to in subsection (a).
(c) Trusts treated as having a United States beneficiary
(1) In general
For purposes of this section, a trust shall be treated as having a United States beneficiary for the taxable year unless—
(A) under the terms of the trust, no part of the income or corpus of the trust may be paid or accumulated during the taxable year to or for the benefit of a United States person, and
(B) if the trust were terminated at any time during the taxable year, no part of the income or corpus of such trust could be paid to or for the benefit of a United States person.
(2) Attribution of ownership
For purposes of paragraph (1), an amount shall be treated as paid or accumulated to or for the benefit of a United States person if such amount is paid to or accumulated for a foreign corporation, foreign partnership, or foreign trust or estate, and—
(A) in the case of a foreign corporation, more than 50 percent of the total combined voting power of all classes of stock entitled to vote of such corporation is owned (within the meaning of section 958(a)) or is considered to be owned (within the meaning of section 958(b)) by United States shareholders (as defined in section 951(b)),
(B) in the case of a foreign partnership, a United States person is a partner of such partnership, or
(C) in the case of a foreign trust or estate, such trust or estate has a United States beneficiary (within the meaning of paragraph (1)).
(Added
Amendments
1980—Subsec. (a)(1).
Effective Date of 1980 Amendment
Amendment by
Effective Date
Section 1013(f)(1) of
"(A) foreign trusts created after May 21, 1974, and
"(B) transfers of property to foreign trusts after May 21, 1974."
Section Referred to in Other Sections
This section is referred to in