Did receiving income from an irrevocable trust create Florida intangible tax when the beneficiary's other powers were limited?

Plain-English summary

The Florida Department of Revenue concluded that neither the trustee nor the income beneficiary of the 1995 irrevocable trust owed Florida intangible tax. The trust had no Florida return-filing requirement under the stated facts.

The current trustee was not a Florida resident. The trust also prohibited Florida-resident individual trustees and corporate trustees that qualified to do or did business in Florida, and required a trustee to stop serving if the trustee became taxable in Florida. The Department therefore found no Florida taxable situs.

Although the beneficiary had a right to trust income, the appointment power was limited. The beneficiary could not appoint assets or income to the grantor, the grantor's estate, or creditors of the estate and could not revoke the trust or invade its corpus. The Department found that those rights did not amount to a taxable beneficial interest.

What this means for you

Income beneficiaries

The ruling did not treat the income right alone as sufficient. It also examined whether the beneficiary held revocation, corpus-invasion, or general appointment powers.

Trustees

Trustee residence and business domicile controlled the situs analysis. The serving trustee had to remain outside the Florida connections specified in the trust.

Accountants and tax professionals

This 1996 ruling found no tax and no return requirement for the particular combination of trustee situs and restricted beneficiary powers. Confirm current law and the operative trust language before applying the result.

Common questions

Q: Did the beneficiary have a current right to trust income?
A: Yes.

Q: Why was that income right not a taxable beneficial interest?
A: The beneficiary could not revoke the trust, invade its corpus, or exercise a general power of appointment.

Q: Could the beneficiary appoint assets back to the grantor?
A: No. Appointments to the grantor, the grantor's estate, and the estate's creditors were prohibited.

Q: Did the trust have to file a Florida intangible-tax return?
A: No. The Department said no returns were required under these facts.

Citations and references

• Fla. Stat. § 199.052(5) — responsibility of a Florida trustee for intangible tax
• Fla. Stat. § 199.175 — taxable situs
• Fla. Stat. § 199.023(7) and Fla. Admin. Code r. 12C-2.002(1)(c) — taxable beneficial interest in a foreign trust
• Fla. Stat. § 213.22 — Technical Assistance Advisements

Source

• Landing page: Florida Tax Law Library
• Advisement: TAA 96C2-148

Original ruling text

Dec 26, 1996

Re: Technical Assistance Advisement No. 96(C)2-148
Intangible Tax; Trust
ss. 199.023(7), and 199.052(5), F.S.
XXX Irrevocable Trust of 1995

Dear :

This office has received your request for a Technical
Assistance Advisement for the trust listed above. This office
has examined the provisions of the trust document that contains
provisions governing duties of trustees and rights of the
beneficiary.

Discussion of Trust Provisions

Under the provisions of the trust, the beneficiary is
granted the right to trust income and a limited power of
appointment over the assets of the trust. This limitation
states that the beneficiary/grantor may not appoint to or for
the benefit of the grantor, or the grantor's estate, or the
creditors of the grantor's estate, any asset or income of the
trust. The trust further provides that the individual trustee
may not be a resident of Florida and that a corporate trustee
may neither be qualified to do nor do business in Florida. If
any trustee becomes taxable in Florida, the trust requires that
the trustee cease to act as trustee.

Provisions and Discussion of Law

Section 199.052(5), F.S., places primary responsibility for
payment of intangible tax on a Florida trustee. Section
199.175, F.S., describes persons and assets with taxable situs
in Florida. A trustee must be a Florida resident or legally or
commercially domiciled in Florida to have a taxable situs in
Florida. Based upon this statute and the provisions of the
trust, the individual trustee may not be a resident of Florida
and no corporate trustee may do or be qualified to do business

in Florida. The current trustee is a not a Florida resident.
Therefore, the trustee does not have a taxable situs in Florida.

Section 199.023(7), F.S., and Rule 12C-2.002(1)(c), F.A.C.,
state that a taxable beneficial interest in a foreign trust
includes at least a current right to income coupled with either
a right to revoke the trust, or a right to invade the corpus of
the trust or a general power of appointment. Based on the
statute and the express provisions of the trust, the income
beneficiary has a limited power of appointment over the assets
of the trust, does not have a power to invade the corpus of the
trust, and does not have power to revoke the trust. Therefore,
beneficiary does not have a taxable beneficial interest in the
trust.

In summary, neither the trustee nor the beneficiary is
liable for the intangible tax in Florida and no returns are
required to be filed for the trust.

This response constitutes a Technical Assistance Advisement
under s. 213.22, F.S., which is binding on the Department only
under the facts and circumstances described in the request for
this advice as specified in s. 213.22, F.S. Our response is
predicated on those facts and the specific situation summarized
above. You are advised that subsequent statutory or
administrative rule changes or judicial interpretations of the
statutes or rules upon which this advice is based may subject
similar future transactions to a different treatment than
expressed in this response.

You are further advised that this response and your request
are public records under Chapter 119, F.S., which are subject to
disclosure to the public under the conditions of s. 213.22, F.S.
Your name, address, and any other details which might lead to
identification of the taxpayer must be deleted by the Department
before disclosure. In an effort to protect the confidentiality
of such information, we request you notify the undersigned in
writing within 15 days of any deletions you wish made to the
request or the response.

Sincerely,

J.V. Parramore, Jr.
Tax Law Specialist
Technical Assistance

JVP/mh