Twist to a QSST presents a trap.

S Corporation shareholders can transfer stock to a qualifying trust without terminating S status. One type of qualifying trust is a qualified subchapter S trust (QSST). To qualify, under Sec. 1361 (d) (3), the (1) trust must have only one beneficiary, an individual who is a U.S. citizen or resident; (2) corpus distributions must be made only to the current income beneficiary; (3) trust interests must terminate either on the beneficiary's death or the trust's termination; (4) trust assets must be distributed to the beneficiary if the trust terminates before death; and (5) S income must be distributed annually.

Defective Trusts

To add potential gift or estate tax benefits, the trust can contain provisions that would cause the income to be taxable to the grantor. This is referred to as a defective trust, and causes the trust to be treated as a grantor trust. While the grantor pays the tax on the income reportable by the defective trust, the beneficiaries receive distributions without gift or estate tax consequences. The typical right given to a grantor to make a trust defective is the right to substitute other assets of the same value for the assets in the trust. The grantor maintains the right to terminate this provision, at which point the trust would no longer be defective.

A gift to this type of trust is generally combined with the grantor selling some of the S stock to the trust in return for a downpayment and a note. Because the trust is treated as a grantor trust, the sale is not a taxable event. Even the payoff of the note is not taxable, as long as the grantor is alive. The payments on the note help the grantor pay the taxes he or she owes on the trust's income. Once the note is fully repaid, the grantor is generally eager to "cure" the defect and revoke his or her right to substitute trust assets.

Electing QSST Status

When a defective trust is created with S stock, an election cannot be made to qualify the trust as a QSST, as it is deemed a grantor trust. However, once the grantor revokes the provision that causes the trust to be a grantor trust, the current income beneficiary is required to make the QSST election within two months and 16 days. The filing of the election can easily be overlooked and can jeopardize the corporation's S status. Regs. Sec. 1.1361-1(j)(6)(iii)(E) provides that, if a corporation's S election is terminated because of a late QSST election, the corporation may request inadvertent termination relief under Sec. 1362(f).

FROM SOL SCHWARTZ, CPA, SOL SCHWARTZ & ASSOCIATES, PC, SAN ANTONIO, TX