Owners of business, real estate, and other highly appreciated assets are often reluctant to sell due to the significant capital gains tax liability that can result. Fortunately, Estate Panning Team's Deferred Sales Trust™ ("DST") offers an attractive and flexible tax deferral alternative to a 1031 Exchange, which can dramatically decrease or eliminate the capital gains taxes that would otherwise be recognized in the year of the sale.
Rather than experiencing the debilitating drain of equity that results from a fully taxable sale, the DST permits the seller to generate a potentially higher rate of return by leveraging the pre-tax proceeds from the sale, which can be significantly greater.
The DST is a type of IRC Section 453 installment sale, also known as a "seller carry-back" sale. Under this code section, the seller can achieve significant tax-deferral benefits by not receiving actual or constructive receipt of the proceeds at the time of the sale, instead receiving payments made to them over time. Moreover, the Deferred Sales Trust™ has greater flexibility than a conventional installment sale with respect to investment selection, risk management and the repayment timeframe.
The process starts with a detailed consultation with one of our specialized tax attorneys who will gather appropriate details of the transaction to determine if it is suitable for structuring aDST, as well as what the potential benefits would be to the taxpayer. Then, if the transaction meets the requirements for a DST, and sufficient benefits can be obtained for the taxpayer, a conditional engagement agreement is offered to the taxpayer by the tax law firm. This engagement requires no upfront retainer and does not obligate the taxpayer to pay for any services unless, and until, the closing of the sale of the appreciated asset and a decision by the taxpayer to proceed with the funding of the trust.
When the taxpayer decides to proceed, the ownership of their highly appreciated capital asset is transferred to a dedicated trust, set up solely for the taxpayer's own transaction. The trust then sells the asset to the buyer at the higher cost basis that was just established in the prior transfer from the seller to the trust.
As a result, there is likely no capital gains tax immediately owing from the initial transfer to the trust because of Section 453, and no capital gains tax liability from the sale from the trust to the buyer because there is no capital gain.
By utilizing the DST structure, the seller of the property becomes a noteholder (creditor) and the trust makes the agreed upon payments to the noteholder, pursuant to a payment agreement called an "installment sales contract." Under this contract, the trust is obligated to make installment payments to the noteholder (seller), representing interest on the pre-tax proceeds or principal from the sale, or both, If the noteholder (seller) has other income and doesn't need the payments right away, they may elect to defer the start date of the note payments. The tax code does not require payment of the capital gains tax until the seller starts receiving payments of principal. The capital gains tax that will be recognized and paid to the IRS and the State is only that portion of the overall capital gains due from the taxpayer's sale to the trust, based upon the proportion of principal repayment established in the terms of the installment agreement.
The note payments and the capital gains tax deferral effect from the DST will continue to the next generation upon the demise of the seller. With additional planning by the tax attorneys, the proceeds from the sale can be entirely removed from the seller's taxable estate.
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Tax Deferral: When appreciated assets are sold, tax on the gain is deferred until the seller received payments of the principal. Opting to receive future payments in lieu of an immediate lump sum delays the recognition of capital gains, thereby enabling the taxpayer to enjoy the benefit of the pretax proceeds for an extended period. Managing the amount and frequency of principal distributions can also enable the seller to benefit from lower marginal tax rates for the years in which the gains are recognized. The DST can defer capital gains taxes on the sale of almost any type of highly appreciated asset including: businesses & professional practices, commercial real estate, investment properties, high end primary residences, major stock positions, and very valuable artwork and collectibles, among other things.
The repayment terms and schedule can be structured in a variety of ways to best serve the needs of each specific taxpayer. This includes anything from minimal repayment of principal or rapid amortization. In addition, the commencement of payments can be immediate or can be delayed into the future.
Can potentially convert an illiquid asset, like a business or commercial real estate, into a diversified portfolio of liquid investments. This can help reduce risk and volatility by preventing overexposure to a single asset class.
Can provide a stream of income for retirement based on the pre-tax proceeds from the sale instead of the after-tax proceeds, which are likely to be substantially less.
Helps to maintain wealth within the family in a number of ways. First, by avoiding a massive drain of equity at the time of the sale, resulting from the immediate recognition of the full capital gains tax liability at the highest rates. Second, by potentially providing significant estate planning benefits. And finally, the DST can provide estate liquidity so that significant assets of the family do not have to be liquidated under less than ideal circumstances.
The DST can be combined with additional planning to accomplish an estate freeze for estate tax purposes, and to potentially remove the proceeds of the sale from the sellers taxable estate, potentially beyond the amounts exempted by the unified credit. Further, the ability to select the state in which to domicile the trust can provide additional tax savings.
Unlike a 1031 Exchange, the proceeds from the sale do not have to be invested in “like-kind” property in a very short timeframe to achieve tax deferral. Moreover, a DST can be used to rescue a 1031 Exchange that is in danger of failing, subject to the 1031 exchange being appropriately set up with a DST certified QI (“qualified intermediary”).
When a partnership or other ownership group sells an appreciated asset, they do not need to remain together to achieve tax deferral, as is typically the case with a 1031 Exchange. Each individual owner can have their own Deferred Sales Trust™, the assets of which can be managed to each taxpayer's own individual risk tolerance and preferences.
Subject to State specific laws, and in conjunction with additional planning, the taxpayer can secure asset protection by utilizing the DST.
With additional planning, the DST can help avoid the delays and expense of probate.
Commercial Property sale in NYC
Sales proceeds after
commissions and closing costs: $20,000,000
Seller's Original Basis $5,000,000
Capital Improvements: $1,000,000
Mortgage Balance at time of closing $2,000,000
Seller’s adjusted basis: $2,000,000
(purchase price + capital improvements - depreciation)
Taxable gain: $18,000,000
(net sales proceeds minus adjusted basis)
Federal Tax 20-25% - Unrecaptured section 1250 gain applies
NY State & City Tax 12.7%
Medicare Tax 3.8%
Approximate Tax Due: $6,770,000
Approximate Tax Due with a Deferred Sales Trust™: $0
Business in Chicago
Sales proceeds after commissions and closing costs: $10,000,000
Sellers Original BASIS: $0
Business Loan balance at time of closing: $250,000
Taxable gain $10,000,000
(net sales proceeds minus adjusted basis)
Federal Tax 20%
Illinois State Tax 4.95%
Medicare Tax 3.8% (doesn’t apply to this situation)
Approximate Tax Due: $2,495,000
Approximate Tax Due with a Deferred Sales Trust™ with Mortgage Over Basis (MOB): $62,375
*Mortgage Over Basis (MOB) is taxable = $250k is non- deferrable.
Primary Residence in Los Angeles
Mr. and Mrs. Taxpayer want to sell the highly appreciated residential property in California that they have lived in for ten years:
Sales proceeds after commissions and closing costs $4,000,000
Seller’s Original Basis: $400,000
Mortgage Balance at time of closing: $300,000
IRC sec.121 exclusion:. $500,000
($250,000 per owner residing there for two of the last
Seller’s adjusted basis: $900,000
(purchase price + section 121 exclusion)
Taxable gain: $3,100,000
(net sales proceeds minus adjusted basis)
Federal Tax 20%
CA State Tax 13.3%
Medicare Tax 3.8%
Approximate Tax Due: $1,150,100
Approximate Tax Due with a Deferred Sales Trust ™ 2 $0
Enter the relevant details of the sale of your real property, business, or other highly appreciated asset at www.mydstplan.com/taxsolutions or call your EPT advisor who can assist you with the process. This information will be used to evaluate your case.
An experienced Tax Attorney, Trustee and Case Manager will review your case to determine if the DST is a good fit for your transaction.
An introductory conference call is set up to discuss how you can benefit from using a DST for your sale, and a tax deferral illustration is created for you. During this call, the Deferred Sales Trust™ structure will be explained to you and any questions that you have will be answered. Follow-up calls can be scheduled, if necessary, and your own tax and legal advisors are welcome to join.
A conditional engagement agreement is provided to you by the tax law firm, for your review. There is no upfront cost or obligation. Once the conditional engagement is signed, the tax law-firm will establish the trust and engage in preliminary planning. You are under no obligation to proceed or pay for any services unless your sale closes, and you decide to fund the trust. You are simply agreeing to pay for the services rendered by the law firm, if you do choose to proceed.
The tax attorney prepares the documentation and implements the Deferred Sales Trust™ at the close of sale, either through escrow or attorney.
The pre-tax proceeds from the sale are delivered to the Trust, the funds are invested in a manner that is consistent with your risk tolerance and preferences, and payments are made to you pursuant to the payment schedule.
Estate Planning Team is a membership organization with a network of experienced professionals who offer the Deferred Sales Trust™. These professionals include financial advisors, insurance and real estate professionals, business brokers, attorneys, CPAs, Qualified Intermediaries, and other professional partners. EPT’s organization stretches throughout the United States, providing significant capital gains tax deferral via the Deferred Sales Trust™, a flexible 1031 Exchange alternative.
The Deferred Sales Trust™ is offered exclusively by Estate Planning Team members along with experienced and specialized tax attorneys. These tax attorneys have unique expertise at structuring transactions in this manner for sellers of highly appreciated real estate, businesses or other highly appreciated assets, who wish to defer their capital gains taxes.
Estate Planning Team is managed by CEO and founder Robert Binkele, a member of the Forbes Finance Council, graduate of University of Utah, and former center for the San Francisco 49ers.
Interested in becoming one of our professional partners? Begin by going to www.myept.com and click on “JOIN NOW”. When setting up your DST website you will be asked for a Partner code. Please enter: taxsolutions.