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Moreover, if the irrevocable trust is a grantor trust, is the penalty predicated on the grantor’s age then? Unfortunately, each of these questions remains unanswered. To avoid these issues, consideration should be given to distributing the contract to the beneficiary before the date withdrawals are to start outright. Remember that the PLRs cited above are only binding on taxpayers who requested the ruling, they do claim that an annuity contract acquired by an irrevocable trust or credit-shelter trust can offer tax deferral. But great care must be exercised to make sure that both the trust and annuity contract are properly structured.

The trust contract should not require its assets are invested in income-producing property. The trust contract should authorize the trustee to invest in an annuity agreement specifically. The trust agreement should specifically allow distribution of the annuity contract in-kind, to avoid adverse income tax consequences. If independent contracts are set up for each trust beneficiary, with each beneficiary called as the annuitant for his or her respective contract, the in-kind distribution of the agreement to the beneficiary-annuitant should be a non-taxable event.

To avoid gift taxes, the trust should directly purchase the annuity agreement. The trust ought to be the beneficiary and owner of the annuity contract. If the grantor of the trust is named as the annuitant, his or her death will probably trigger a whole and taxable liquidation of the contract within five years. If the annuitant were to die as the annuity contract was still held in trust, the agreement will have to be liquidated in five years likely.

Thus, consideration should be given to distributing the annuity contract to the beneficiary-annuitant before his or her death. By doing so, the beneficiary-annuitant, as the new owner, will continue steadily to enjoy every one of the contracts guarantees and benefits, and can name a fresh designated beneficiary. Prevent the 10% early distribution penalty when possible. The named annuitant should be changed.

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