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Friday July 3, 2015

Case of the Week

Lucky Lucy Lindstrom's Unitrust

Case:

Lucky Lucy Lindstrom finished college and headed west. She started as a financial analyst with a large company in Seattle. After just four years, she became a Registered Investment Advisor and began advising clients. Lucky Lucy also managed her own investments. With her keen insight into financial markets, Lucy soon began to move from traditional stocks and bonds into futures and commodities markets. Lucky Lucy realized that “shorting” financial stocks was going to be a bonanza. She was so successful in the down market that she now manages only her mega-dollar personal portfolio.

Somewhat late in life, Lucky discovered the wonderful world of philanthropy. She volunteered at her favorite charity and has learned that giving someone in need a helping hand is even more gratifying than making another million in the futures market. After reading in the charity’s weekly eNewsletter about a charitable remainder trust, Lucy called Clara Johnson, the gift planner for favorite charity.

Lucy suggested that she would transfer $5,000,000 of securities to a 5% net plus makeup unitrust. She would serve as trustee, make the investments and favorite charity would be the remainder recipient. Since Lucky Lucy normally earns 14% per year on her futures and commodities investments, she feels that it would be easy to make the unitrust grow to $10,000,000 or more.

Question:

Would this plan work? May Lucy serve as trustee? Is it permissible to invest unitrust assets in the futures market?

Solution:

With a possible $10,000,000 gift from the unitrust, gift planner Clara Johnson very much wants to make this plan work. However, there are several potential obstacles. First, it is permissible for Lucky Lucy to serve as trustee. The trust document can include provisions to appoint an independent special trustee to handle hard-to-value assets or for other needed purposes. Favorite charity or a corporate trustee could be successor trustee. Second, a trust administration company can be hired to do the accounting and unitrust tax returns. This service is available for a reasonable 20 to 40 basis points per year.

The key issue is the unitrust investments. Unitrusts are generally subject to Sec. 4944 rules on investments that may jeopardize the charitable remainder. Section 4944 imposes a tax on the investments that jeopardize the carrying out of any of the exempt purposes of a private foundation. Section 53.4944-1(a)(2)(i) states that an investment shall be considered jeopardizing if the foundation managers have failed to exercise ordinary business care and prudence under the facts and circumstances prevailing at the time the investment is made. While no category of investments shall be treated as a per se violation, certain types of investments (such as investments in futures, options, puts and calls) require close scrutiny to determine whether the foundation managers have met the requisite standard of care and prudence.

However, in PLR 200218038 (note that a PLR is not a legal tax precedent), the Service permitted a private foundation to use four brokers to invest in futures and commodities. The plan by Lucky Lucy is clearly somewhat aggressive. But if she is willing to use the methods for her futures and commodities investments that reduce risk to the “ordinary business care and prudence” standard, then her plan may be acceptable.

A better solution is to use a combined investment strategy. Lucy will be investing both the unitrust assets and her personal portfolio. Since she knows that some investments are more risky than others, she uses her personal assets for most of the risky investments, and her unitrust is invested in less risky securities.

Lucy used that method very successfully. Her unitrust with “conservative” futures and commodities investments averaged a 12% return, while her personal portfolio produced a greater return with greater risk and volatility. Lucy considers herself “Lucky” that she now has a large personal portfolio, a large unitrust and a warm feeling from helping others.

Published June 26, 2015
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scriptsknown

Beneficiary Designations Language

All beneficiary designations should be made to the Board of Regents of The University of Texas System, EIN 30-0710145, for the use and benefit of The University of Texas Health Science Center at San Antonio. This gift shall be used for the further benefit of [College, School, Department] and shall be used to _________________."

View and download:
   Sample Bequest language
   Sample Beneficiary language
   Estate Intention Letter

Charitable Gift Annuity
Single Rates from the American Council of Gift Annuities

Age Rate
60 4.40%
65 4.70%
68 4.90%
70 5.10%
72 5.40%
74 5.70%
76 6%
78 6.40%
80 6.80%
82 7.20%
84 7.60%
86 8%
88 8.40%
90 9%

CGA's are also available for two lives and can be deferred

UT Health Science Center San Antonio

Office of Institutional Advancement, MC – 7835
7703 Floyd Curl Drive
San Antonio, Texas 78229-3900
Phone: 210-567-5001 | Fax: 210-567-3156
giftplanning@uthscsa.edu

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