Tax Type
Estate Tax
Fiduciary Income Tax
Individual Income Tax
Description
The committee of trustees does not operate in VA and is not controlled in VA
Topic
Estates and Trusts
Fiduciary
Nexus
Date Issued
10-10-2007
October 17, 2007
Dear *****:
This is in response to your letter of June 2007, in which you requested a ruling on behalf or your clients, (Child A, Child B and Child C) regarding Virginia income tax nexus and trusts.
FACTS
The Taxpayers are the beneficiaries of three trusts, created by a nonresident in 1966 (Trust A, Trust B and Trust C). At their formation, none of the trustees or beneficiaries of the trusts were Virginia residents, all trust property was located outside of Virginia and the administration of the trusts occurred outside of Virginia.
Pursuant to an agreement among the trustees and beneficiaries, the assets of all three trusts and the situs of trust administration were moved to Virginia. The administration of the trusts was moved to Virginia with the intent of converting the trusts to Virginia resident trusts for income tax purposes. The trusts have filed Virginia income tax returns and paid income tax to Virginia since the change of situs.
Currently, the trustees and beneficiaries of the trusts reside in several states. Only one trustee/beneficiary, Child A, is a resident of Virginia. Child A is a trustee for each of the three trusts as well as being the primary beneficiary of the Trust A.
The trustees and beneficiaries of the trusts now wish to change the situs of the administration of the trust and the trust assets to another state in the following manner: A corporate trustee outside of Virginia will be appointed for each trust and the assets of the trust will be moved outside of Virginia. The individual trustees will retain their status as trustees for their respective trusts. Trust A will have three trustees: Child A, a nonresident individual and the nonresident corporate trustee. Trust B and Trust C will have four trustees: Child A, two nonresident individual trustees and the nonresident corporate trustee.
You concede that Trust A will continue to have Nexus with Virginia for income tax purposes. You ask whether Trust B and Trust C will have nexus with Virginia and be subject to Virginia income tax once the administration and trust property is moved from Virginia.
RULING
Virginia Code § 58.1-302
Virginia Code § 58.1-381 provides that all resident trusts are required to file a tax return with the Department of Taxation (TAX). The relevant portion of Virginia Code § 58.1-302 defines a "resident trust" as:
-
- 2. A trust created by will of a decedent who at his death was domiciled in the Commonwealth;
3. A trust created by or consisting of property of a person domiciled in the Commonwealth; or
4. A trust ... which is being administered in the Commonwealth.
- 2. A trust created by will of a decedent who at his death was domiciled in the Commonwealth;
Section 23 V.A.C. 10-115-10 of the Virginia Administrative Code provides that a trust is being administered in the Commonwealth if its "assets are located in Virginia, its fiduciary is a resident of Virginia, or it is under the supervision of a Virginia court."
Administrative Rulings
The Department of Taxation has issued several rulings related to this issue. In determining whether or not a trust has nexus in Virginia "the Department must consider... the current domicile of the trustee(s), beneficiaries, and the location of the Trust property. If any of these parties are domiciles of Virginia, the tax imposed on Virginia resident trusts or estates ...is appropriate." P.D. 93-189 (August 26, 1993). Where "neither the beneficiaries, trustees nor the Trust income property are in Virginia" none of those entities "receive the benefit or protection of Virginia law. Thus there [is not] sufficient nexus for Virginia to ...tax the undistributed assets of the Trust." Id.
As a general rule when the sole trustee is a Virginia resident a trust is deemed to have nexus in Virginia. P.D. 97-121 (March 7, 1997). This holds true even when the trust owns no property in Virginia and the investment and bookkeeping for the trust is performed by agents of the trustee outside of Virginia. Id. Where a Committee administers a trust and the members of that Committee cannot exercise control of the trust individually "so long as the Committee does not operate in Virginia or is not controlled in Virginia, membership in the Committee by a Virginia resident or residents would not make the trust a `resident trust' for Virginia income tax purposes." P.D. 02101 (June 24, 2002).
As with the Committee members in P.D. 02-101 the trustees of Trust A, Trust B and Trust C cannot exercise control over the trust as individuals. Rather, the trustees make decisions by a majority or a consensus of the trustees; therefore, a committee of trustees is responsible for the administration of the trust not any individual trustee. Consequently, as long as the committee of trustees does not operate in Virginia and is not controlled in Virginia, the fact that a Virginia resident is a member of the committee does not make Trust B or Trust C a resident trust for Virginia income tax purposes.
The Code of Virginia sections cited are available on-line at www.tax.virginia.gov in the Tax Policy Library section of TAX's web site. If you have any questions regarding this ruling, you may contact ***** in the Office of Tax Policy, Policy Development, at *****.
-
-
-
-
-
-
-
- Sincerely,
-
-
-
-
-
-
-
-
-
-
-
-
-
- Janie E. Bowen
Tax Commissioner
- Janie E. Bowen
-
-
-
-
-
-
Rulings of the Tax Commissioner