Q&A: "If You Have Investment Properties, Can You Transfer Them to a Trust and Save on Your Taxes?"

Question and background: 

If you have investment properties, can you transfer them to a trust and save on your taxes? I am at a 55 percent tax bracket. I was told if I transfer them to a trust, when the rental income comes in kiss that deposit directly into the trust and the trust is only taxed 10%. [Asked by "Kris"]

Answer: 

Hello Kris,

I think you received incorrect advice. 

1) If you transfer ownership of the investment properties to a Revocable Living Trust (RLT), that can help reduce future probate fees when you die and make for smoother administration of your estate, but it will do nothing for income taxes now. That's because the RLT is an ownership vehicle only...the IRS "looks through" the RLT to you as the income recipient and you would continue being taxed on the income.

2) If you establish an Irrevocable Trust (there are many types) and transfer ownership of the properties into it, the Trust is an independent entity from an income tax standpoint. The Trust itself collects the income and pays any taxes due. However--and here's the kicker--estates and trusts pay the highest federal income tax rate (39.6%) on taxable income over $12,150. (Yes, you read that right.) Now, you can structure the Trust to take distributions so you minimize any taxes the Trust itself pays, but those distributions would then be taxable in your hands. 

If you truly are in a 55% marginal tax bracket, that implies you're in the highest federal tax bracket of 39.6%, you pay the additional Medicare surtax of 3.8%, and you're in the highest state and local tax brackets where you live. The highest 39.6% federal income tax bracket kicks in at taxable income over $406,750 (single) or $457,600 (married filing jointly). Compare that with the $12,150 threshold for estates and trusts.

There may be some interesting tax planning you can do with certain charitable trusts and vehicles--and you might be able to reduce the overall tax burden on that front. But in such cases, there's typically a donative element where you relinquish ownership and/or control of the properties. 

For detailed review and specific advice for your situation, I recommend you get in touch with a good CPA or tax attorney. Hope that helps. All the best.