IRS Provides Sample Testamentary Crut Declaration For Consecutive Measuring Lives.

Rev. Proc. 2005-58

SECTION 1. PURPOSE

This revenue procedure contains an annotated sample declaration of trust and alternate provisions that meet the requirements of § 664(d)(2) and (d)(3) of the Internal Revenue Code for a testamentary charitable remainder unitrust (CRUT) providing for unitrust payments payable consecutively for two measuring lives followed by the distribution of trust assets to a charitable remainderman.

SECTION 2. BACKGROUND

Previously, the Internal Revenue Service issued sample trust instruments for certain types of CRUTs. The Service is updating the previously issued samples and issuing new samples for additional types of CRUTs; annotations and alternate sample provisions are included as further guidance. In addition to the sample trust instrument included in this revenue procedure for a testamentary CRUT providing for unitrust payments payable consecutively for two measuring lives, samples are provided in other separate revenue procedures for:

(a) an inter vivos CRUT providing for unitrust payments for one measuring life (see Rev. Proc. 2005-52, superseding Rev. Proc. 89-20, 1989-1 C.B. 841, and section 4 of Rev. Proc. 90-31, 1990-1 C.B. 539);

(b) an inter vivos CRUT providing for unitrust payments for a term of years (see Rev. Proc. 2005-53);

(c) an inter vivos CRUT providing for unitrust payments payable consecutively for two measuring lives (see Rev. Proc. 2005-54, superseding section 4 of Rev. Proc. 90-30, 1990-1 C.B. 534, and section 5 of Rev. Proc. 90-31);

(d) an inter vivos CRUT providing for unitrust payments payable concurrently and consecutively for two measuring lives (see Rev. Proc. 2005-55, superseding section 5 of Rev. Proc. 90-30 and section 6 of Rev. Proc. 90-31);

(e) a testamentary CRUT providing for unitrust payments for one measuring life (see Rev. Proc. 2005-56, superseding section 6 of Rev. Proc. 90-30 and section 7 of Rev. Proc. 90-31);

(f) a testamentary CRUT providing for unitrust payments for a term of years (see Rev. Proc. 2005-57); and

(g) a testamentary CRUT providing for unitrust payments payable concurrently and consecutively for two measuring lives (see Rev. Proc. 2005-59, superseding section 8 of Rev. Proc. 90-30 and section 9 of Rev. Proc. 90-31).

SECTION 3. SCOPE AND OBJECTIVE

Section 4 of this revenue procedure provides a sample declaration of trust for a testamentary CRUT with consecutive interests for two measuring lives that is created by an individual who is a citizen or resident of the United States. Section 5 of this revenue procedure provides annotations to the provisions of the sample trust. Section 6 of this revenue procedure provides samples of certain alternate provisions concerning: (.01) the payment of part of the unitrust amount to an organization described in § 170(c); (.02) a qualified contingency; (.03) the last unitrust payments to the recipients; (.04) a power of appointment to designate the charitable remainderman; (.05) the net income method of calculating the unitrust amount; (.06) the net income with make-up method of calculating the unitrust amount; and (.07) a combination of methods for calculating the unitrust amount.

For transfers to a qualifying CRUT, as defined in § 664(d)(2) and, if applicable, § 664(d)(3), the remainder interest will be deductible by a citizen or resident of the United States under § 2055(e)(2)(A) for estate tax purposes if the other requirements of § 2055(e)(2)(A) (that is, the requirements not relating to the provisions of the governing instrument) also are met. The Service will recognize a trust as a qualified CRUT meeting all of the requirements of § 664(d)(2) and, if applicable, § 664(d)(3), if the trust operates in a manner consistent with the terms of the trust instrument, if the trust is a valid trust under applicable local law, and if the trust instrument: (i) is substantially similar to the sample in section 4 of this revenue procedure; or (ii) properly integrates one or more alternate provisions from section 6 of this revenue procedure into a document substantially similar to the sample in section 4 of this revenue procedure. A trust that contains substantive provisions in addition to those provided in section 4 of this revenue procedure (other than properly integrated alternate provisions from section 6 of this revenue procedure or provisions necessary to establish a valid trust under applicable local law that are not inconsistent with the applicable federal tax requirements), or that omits any of the provisions of section 4 of this revenue procedure (unless an alternate provision from section 6 of this revenue procedure is properly integrated), will not necessarily be disqualified, but neither will that trust be assured of qualification under the provisions of this revenue procedure. The Service generally will not issue a letter ruling on whether a testamentary trust created by an individual and with consecutive interests for two measuring lives qualifies as a CRUT. The Service, however, generally will issue letter rulings on the effect of substantive trust provisions, other than those contained in sections 4 and 6 of this revenue procedure, on the qualification of a trust as a CRUT.

SECTION 4. SAMPLE TESTAMENTARY CHARITABLE REMAINDER UNITRUST -- TWO LIVES, CONSECUTIVE INTERESTS

I give, devise, and bequeath [ property bequeathed ] to my Trustee in trust to be administered under this provision. I intend this bequest to establish a charitable remainder unitrust, within the meaning of Rev. Proc. 2005-58 and § 664(d)(2) of the Internal Revenue Code (hereinafter "the Code"). The trust shall be known as the ___ Charitable Remainder Unitrust and I hereby designate ___ as the initial trustee (hereinafter "the Trustee").

1. Payment of Unitrust Amount. In each taxable year of the trust during the unitrust period, the Trustee shall pay to [ permissible recipient ] (hereinafter "the Initial Recipient") until the Initial Recipient's death, and thereafter to [ permissible recipient ] (hereinafter "the Successor Recipient"), a unitrust amount equal to [ a number no less than 5 and no more than 50 ] percent of the net fair market value of the assets of the trust valued as of the first day of each taxable year of the trust (hereinafter "the valuation date"). The first day of the unitrust period shall be the date of my death and the last day of the unitrust period shall be the date of the death of the survivor of the Initial Recipient and the Successor Recipient. The unitrust amount shall be paid in equal quarterly installments at the end of each calendar quarter from income and, to the extent income is not sufficient, from principal. Any income of the trust for a taxable year in excess of the unitrust amount shall be added to principal. If, for any year, the net fair market value of the trust assets is incorrectly determined, then within a reasonable period after the correct value is finally determined, the Trustee shall pay to the Initial Recipient and/or the Successor Recipient (in the case of an undervaluation) or receive from the Initial Recipient and/or the Successor Recipient (in the case of an overvaluation) an amount equal to the difference between the unitrust amount(s) properly payable and the unitrust amount(s) actually paid.

2. Deferral Provision. The obligation to pay the unitrust amount shall commence with the date of my death, but payment of the unitrust amount may be deferred from this date until the end of the taxable year in which the trust is completely funded. Within a reasonable time after the end of the taxable year in which the trust is completely funded, the Trustee must pay to the Initial Recipient and/or the Successor Recipient (in the case of an underpayment) or receive from the Initial Recipient and/or the Successor Recipient (in the case of an overpayment) the difference between any unitrust amounts actually paid, plus interest, and the unitrust amounts payable, plus interest. The interest shall be computed for any period at the rate of interest, compounded annually, that the federal income tax regulations under § 664 of the Code prescribe for this computation.

3. Proration of Unitrust Amount. For a short taxable year and for the taxable year during which the unitrust period ends, the Trustee shall prorate on a daily basis the unitrust amount described in paragraph 1. If the Successor Recipient survives the Initial Recipient, the Trustee shall prorate on a daily basis the next regular unitrust payment due after the death of the Initial Recipient between the estate of the Initial Recipient and the Successor Recipient.

4. Distribution to Charity. At the termination of the unitrust period, the Trustee shall distribute all of the then principal and income of the trust (other than any amount due the Initial Recipient and/or the Successor Recipient under the terms of this trust) to [ designated remainderman ] (hereinafter "the Charitable Organization"). If the Charitable Organization is not an organization described in §§ 170(c) and 2055(a) of the Code at the time when any principal or income of the trust is to be distributed to it, then the Trustee shall distribute the then principal and income to one or more organizations described in §§ 170(c) and 2055(a) of the Code as the Trustee shall select, and in the proportions as the Trustee shall decide, in the Trustee's sole discretion.

5. Additional Contributions. No additional contributions shall be made to the trust after the initial contribution. The initial contribution, however, shall be deemed to consist of all property passing to the trust by reason of my death.

6. Unmarketable Assets. Whenever the value of a trust asset must be determined, the Trustee shall determine the value of any assets that are not cash, cash equivalents, or other assets that can be readily sold or exchanged for cash or cash equivalents (hereinafter "unmarketable assets"), by either (a) obtaining a current "qualified appraisal" from a "qualified appraiser," as defined in § 1.170A-13(c)(3) and § 1.170A- 13(c)(5) of the Income Tax Regulations, respectively, or (b) ensuring the valuation of these unmarketable assets is performed exclusively by an "independent trustee," within the meaning of § 1.664-1(a)(7)(iii) of the Income Tax Regulations.

7. Prohibited Transactions. The Trustee shall not engage in any act of self-dealing within the meaning of § 4941(d) of the Code, as modified by § 4947(a)(2)(A) of the Code, and shall not make any taxable expenditures within the meaning of § 4945(d) of the Code, as modified by § 4947(a)(2)(A) of the Code.

8. Taxable Year. The taxable year of the trust shall be the calendar year.

9. Governing Law. The operation of the trust shall be governed by the laws of the State of . However, the Trustee is prohibited from exercising any power or discretion granted under said laws that would be inconsistent with the qualification of the trust as a charitable remainder unitrust under § 664(d)(2) of the Code and the corresponding regulations.

10. Limited Power of Amendment. This trust is irrevocable. However, the Trustee shall have the power, acting alone, to amend the trust from time to time in any manner required for the sole purpose of ensuring that the trust qualifies and continues to qualify as a charitable remainder unitrust within the meaning of § 664(d)(2) of the Code.

11. Investment of Trust Assets. Nothing in this trust instrument shall be construed to restrict the Trustee from investing the trust assets in a manner that could result in the annual realization of a reasonable amount of income or gain from the sale or disposition of trust assets.

12. Definition of Initial Recipient and Successor Recipient. References to the Initial Recipient and/or the Successor Recipient in this trust instrument shall be deemed to include the estate of the Initial Recipient and/or the Successor Recipient with regard to all provisions in this trust instrument that describe amounts payable to and/or due from the Initial Recipient and/or the Successor Recipient. The prior sentence shall not apply to the determination of the last day of the unitrust period.

SECTION 5. ANNOTATIONS REGARDING SAMPLE TESTAMENTARY CHARITABLE REMAINDER UNITRUST -- TWO LIVES, CONSECUTIVE INTERESTS

.01 Annotations for Introductory Paragraph of the Sample Trust.

(1) Factors concerning qualification of trust. A deduction must be allowable under § 2055 for property contributed to the trust. Section 1.664-1(a)(1)(iii)(a) of the Income Tax Regulations. The trust must meet the definition of, and function exclusively as, a charitable remainder trust from the creation of the trust. Section 1.664-1(a)(4). Solely for purposes of § 664, a trust is deemed created at the earliest time that no person is treated as the owner of the entire trust under subpart E, part 1, subchapter J, chapter 1, subtitle A of the Code (subpart E). For purposes of § 2055, a charitable remainder trust shall be deemed created at the date of death of the decedent (even though the trust is not funded until the end of a reasonable period of administration or settlement) if the obligation to pay the unitrust amount with respect to the property passing in trust at the death of the decedent begins as of the date of death of the decedent, even though the requirement to pay this amount is deferred in accordance with § 1.664-1(a)(5)(i). In addition, funding the trust with certain types of assets may disqualify a charitable remainder trust. See § 1.664-1(a)(7) and Rev. Rul. 73-610, 1973-2 C.B. 213.

(2) Valuation of unmarketable assets. If the trust is funded with unmarketable assets, the net fair market value of the assets must be determined exclusively by an independent trustee, as defined in § 1.664-1(a)(7)(iii), or must be determined by a current "qualified appraisal" from a "qualified appraiser," as defined in § 1.170A-13(c)(3) and (c)(5), respectively. Section 1.664-1(a)(7). See section 5.06 of this revenue procedure for further guidance related to the valuation of unmarketable assets.

(3) Trustee provisions. Alternate or successor trustees may be designated in the trust instrument. In addition, the trust instrument may contain other administrative provisions relating to the trustee's duties and powers, as long as the provisions do not conflict with the rules governing charitable remainder trusts under § 664 and the regulations thereunder.

.02 Annotations for Paragraph 1, Payment of Unitrust Amount, of the Sample Trust.

(1) Permissible recipients. For a CRUT with a unitrust period based on the lives of two individuals, the unitrust amount must generally be paid to those individuals and both must be living at the time of the creation of the trust. See Rev. Rul. 2002-20, 2002-1 C.B. 794, for situations in which the unitrust amount may be paid to a trust for the benefit of an individual who is financially disabled. An organization described in § 170(c) may receive part, but not all, of the unitrust amount. Section 664(d)(2)(A) and § 1.664-3(a)(3)(i). See section 6.01 of this revenue procedure for an alternate provision that provides for payment of part of the unitrust amount to an organization described in § 170(c).

(2) Fixed percentage method. Paragraph 1, Payment of Unitrust Amount, of the sample trust calculates the unitrust amount under the fixed percentage method by using a fixed percentage of the net fair market value of the trust assets valued annually. See section 6.05 of this revenue procedure for an alternate provision that uses the net income method for calculating the unitrust amount. See section 6.06 of this revenue procedure for an alternate provision that uses the net income with make-up method for calculating the unitrust amount. See section 6.07 of this revenue procedure for an alternate provision that uses a combination of methods for calculating the unitrust amount as described in § 1.664- 3(a)(1)(i)(c).

(3) Percentage requirements. The fixed percentage unitrust amount must be at least 5 percent and not more than 50 percent of the annual net fair market value of the assets in the trust. Section 664(d)(2)(A). In addition, with respect to each contribution of property to the trust, the value of the charitable remainder interest (determined under § 7520) is required to be at least 10 percent of the net fair market value of the contributed property as of the date of its contribution to the trust. Section 664(d)(2)(D).

(4) Payment of unitrust amount in installments. Paragraph 1, Payment of Unitrust Amount, of the sample trust specifies that the unitrust amount is to be paid in equal quarterly installments at the end of each quarter. However, the trust instrument may specify that the unitrust amount is to be paid to a recipient annually or in equal or unequal installments throughout the year. See § 1.664-3(a)(1)(i). The amount of the charitable deduction will be affected by the frequency of payment, by whether the installments are equal or unequal, and by whether each installment is payable at the beginning or end of the period. See § 1.664-3(c) and § 1.664-4.

(5) Rules applicable to valuation. Paragraph 1, Payment of Unitrust Amount, of the sample trust specifies that the net fair market value of trust assets is to be valued as of the first day of each taxable year of the trust. However, the value of the trust assets may be determined on any one date during the taxable year of the trust, or by taking the average of valuations made on more than one date during the taxable year of the trust, so long as the same valuation date or dates and the same valuation methods are used each year. If the governing instrument does not specify the valuation date or dates, the trustee must select the date or dates and indicate the selection on the first Form 5227, "Split- Interest Trust Information Return," that the trust must file. Section 1.664-3(a)(1)(iv). Note that if the valuation date is a date other than the first day of each taxable year of the trust, it may be necessary to modify the provisions in the sample trust regarding: (i) the timing of the payment of the unitrust amount; and (ii) the proration of the unitrust amount in a short taxable year and the last taxable year of the unitrust period. See § 1.664-3(a)(1)(v).

(6) Payment of unitrust amount by close of taxable year. Generally, the unitrust amount for any taxable year, if computed under the fixed percentage method, must be paid before the close of the taxable year for which it is due. For circumstances under which the unitrust amount computed under the fixed percentage method may be paid within a reasonable time after the close of the taxable year, see § 1.664-3(a)(1)(i)(g) and (k). See section 5.03(1) of this revenue procedure for additional information regarding the deferral of the payment of the unitrust amount until the end of the taxable year in which the trust is completely funded.

(7) Incorrect valuations. Nothing in § 664 or the regulations thereunder requires that interest be paid on the amount of any underpayment or overpayment of the unitrust amount resulting from the incorrect valuation of trust assets. Section 1.664-3(a)(1)(iii). Notwithstanding the foregoing, state law may require the payment of interest on the amount of any such underpayment or overpayment of the unitrust amount.

(8) Early distributions to charity. The trust instrument may provide that an amount other than the unitrust amount shall be paid (or may be paid in the discretion of the trustee) to an organization described in § 170(c). If such a distribution is made in kind, the adjusted basis of the property distributed must be fairly representative of the adjusted basis of the property available for distribution on the date of distribution. Section 1.664-3(a)(4).

.03 Annotations for Paragraph 2, Deferral Provision, of the Sample Trust.

(1) Deferral of requirement to pay unitrust amount. The deferral provision in paragraph 2 of the sample trust authorizes deferring the payment of the unitrust amount until the end of the taxable year of the trust in which the trust is completely funded. Section 1.664-1(a)(5)(i) provides the operational rule for deferring payment of the unitrust amount in this circumstance. The deferral provision in paragraph 2 of the sample trust uses the method for computing deferred payments that is provided in § 1.664- 1(a)(5)(i). Note that § 1.664-1(a)(5)(ii) provides an alternate method for determining the amount described in § 1.664- 1(a)(5)(i)(b), i.e., the unitrust amounts payable plus interest on those amounts. Rev. Rul. 92-57, 1992-2 C.B. 123, provides sample language to be included in the governing instrument if the alternate method set forth in § 1.664-1(a)(5)(ii) for determining the amount described in § 1.664-1(a)(5)(i)(b) is selected.

(2) Treatment of distributions. For the proper treatment of distributions to a charitable remainder trust or to a recipient during the period of administration of an estate or settlement of a trust that is not a charitable remainder trust, see § 1.664-1(a)(5)(iii).

.04 Annotations for Paragraph 3, Proration of Unitrust Amount, of the Sample Trust.

(1) Prorating unitrust amount. To compute the unitrust amount in a short taxable year and in the taxable year in which the unitrust period terminates, see § 1.664- 3(a)(1)(v)(a) and (b), respectively.

(2) Determining unitrust amount payable in year of each recipient's death. Paragraph 3, Proration of Unitrust Amount, of the sample trust specifies that, upon the death of the initial recipient, the next regular unitrust payment due shall be prorated on a daily basis between the estate of the initial recipient and the successor recipient. See section 6.03 of this revenue procedure for an alternate provision that terminates the payment of the initial recipient's share of the unitrust amount with the last regular payment preceding his or her death and/or terminates the payment of the unitrust amount with the last regular payment preceding the termination of the unitrust period.

.05 Annotations for Paragraph 4, Distribution to Charity, of the Sample Trust.

(1) Minimum value of remainder. As noted in section 5.02(3) of this revenue procedure, the value of the charitable remainder interest (determined under § 7520) is required to be at least 10 percent of the net fair-market value of the property contributed to the trust as finally determined for federal estate tax purposes. Section 664(d)(2)(D).

(2) Distribution to remainderman. The trustee of a charitable remainder trust has a reasonable time after the termination of the unitrust period to complete the settlement of the trust, including making the required distributions. See § 1.664- 3(a)(6)(ii).

(3) Designated remainderman. Any named charitable remainderman must be an organization described in §§ 170(c) and 2055(a) at the time of the transfer to the CRUT. See § 664(d)(2)(C). The trust instrument may restrict the charitable remainderman to an organization described in §§ 170(c) and 2055(a), but grant to a trustee or other person the power to designate the actual charitable remainderman. See section 6.04 of this revenue procedure for an alternate provision in which a recipient is granted a power of appointment to designate the charitable remainderman.

(4) Multiple remaindermen. The remainder interest may pass to more than one charitable organization as long as each organization is described in §§ 170(c) and 2055(a). Section 1.664-3(a)(6)(i).

(5) Alternative remaindermen. The trust instrument of a CRUT must provide a means for selecting alternative charitable remaindermen in the event any designated organization is not qualified at the time any payments are to be made to it from the trust. Section 1.664-3(a)(6)(iv). This requirement is satisfied in the sample trust by conferring the power upon the trustee to designate an alternative charitable remainderman. Note that the donor may designate one or more alternative charitable remaindermen in the trust instrument; however, the trust instrument must continue to provide a means for selecting an alternative charitable remainderman if any designated organization is not qualified at the time payments are to be made to it from the trust.

(6) Continuing trust for charity. Upon the expiration of the unitrust period, the trust may continue in existence for charity. See § 1.664-3(a)(6)(ii). See section 5.07(3) of this revenue procedure for certain governing instrument requirements that apply when the trust continues in existence for charity.

.06 Annotations for Paragraph 6, Unmarketable Assets, of the Sample Trust.

(1) Multiple trustees. Any co-trustee who is an independent trustee, within the meaning of § 1.664-1(a)(7)(iii), may value the trust's unmarketable assets.

(2) Valuation using qualified appraisal or independent trustee. The trustee may alternately use an independent trustee or a qualified appraisal by a qualified appraiser to value unmarketable assets. For instance, an unmarketable asset that is valued in one year by an independent trustee may be valued in a successive year by a qualified appraiser in a qualified appraisal. In addition, within a single year, some unmarketable assets may be valued by a qualified appraiser while others are valued by an independent trustee.

(3) Appointment of independent trustee. The governing instrument may authorize the trustee of the trust to appoint from time to time an independent trustee, within the meaning of § 1.664-1(a)(7)(iii), to perform the valuation of unmarketable assets.

.07 Annotations for Paragraph 7, Prohibited Transactions, of the Sample Trust.

(1) Payment of the unitrust amount. Payment of the unitrust amount to the recipients is not considered an act of self- dealing within the meaning of § 4941(d), as modified by § 4947(a)(2)(A), or a taxable expenditure within the meaning of § 4945(d), as modified by § 4947(a)(2)(A). Section 53.4947-1(c)(2) of the Foundation and Similar Excise Taxes Regulations.

(2) Prohibitions against certain investments and excess business holdings. Prohibitions against investments that jeopardize the exempt purpose of the trust within the meaning of § 4944, as modified by § 4947(a)(2)(A), and against retaining any excess business holdings within the meaning of § 4943, as modified by § 4947(a)(2)(A), are required if the trust provides for payment of any part of a unitrust amount to an organization described in § 170(c) and an estate tax charitable deduction is sought for the organization's interest in the unitrust amount. See § 4947(b)(3). See section 6.01 of this revenue procedure for an alternate provision that provides for payment of part of the unitrust amount to an organization described in § 170(c).

(3) Trust to continue in existence for benefit of charity. The governing instrument requirements of § 508(e) must be included in the trust instrument if, after the termination of the unitrust period: (i) the trust instrument provides that the trust shall continue in existence for the benefit of the charitable remainderman and, as a result, the trust will become subject to the provisions of § 4947(a)(1); and (ii) the trust will be treated as a private foundation within the meaning of § 509(a), as modified by § 4947(a)(1). Except as provided in paragraph 7 of the sample trust, the trust instrument may limit the application of the provisions of § 508(e) to the period after the termination of the unitrust period when the trust continues in existence for the benefit of the charitable remainderman.

SECTION 6. ALTERNATE PROVISIONS FOR SAMPLE TESTAMENTARY CHARITABLE REMAINDER UNITRUST -- TWO LIVES, CONSECUTIVE INTERESTS

.01 Payment of Part of the Unitrust Amount to an Organization Described in § 170(c).

(1) Explanation. An organization described in § 170(c) may receive part, but not all, of any unitrust amount. Section 664(d)(2)(A). If an estate tax charitable deduction is sought for the present value of the unitrust interest passing to a charitable organization, the trust instrument must contain additional provisions. First, the trust instrument must specify the portion of each unitrust payment that is payable to the noncharitable recipients and to the charitable organization described in §§ 170(c) and 2055(a). Second, the trust instrument must contain a means for selecting an alternative qualified charitable organization if the designated organization is not a qualified organization at the time when any unitrust amount is to be paid to it. Third, the trust instrument must contain prohibitions against investments that jeopardize the exempt purpose of the trust within the meaning of § 4944, as modified by § 4947(a)(2)(A), and against retaining any excess business holdings within the meaning of § 4943, as modified by § 4947(a)(2)(A).

(2) Instructions for use.

(a) Replace paragraph 1, Payment of Unitrust Amount, of the sample trust with the following paragraph:

Payment of Unitrust Amount. The unitrust amount is equal to [ a number no less than 5 and no more than 50 ] percent of the net fair market value of the assets of the trust valued as of the first day of each taxable year of the trust (hereinafter "the valuation date"). In each taxable year of the trust during the unitrust period, the Trustee shall pay [ the percentage of the unitrust amount payable to the noncharitable recipient ] percent of the unitrust amount to [ permissible recipient ] (hereinafter "the Initial Recipient"), until the Initial Recipient's death, and thereafter to [ permissible recipient ] (hereinafter "the Successor Recipient"). In each taxable year of the trust during the unitrust period, the Trustee shall pay [ the percentage of unitrust amount payable to the charitable recipient ] percent of the unitrust amount to [ an organization described in §§ 170(c) and 2055(a) of the Code ] (hereinafter "the Charitable Recipient"). The first day of the unitrust period shall be the date of my death and the last day of the unitrust period shall be the date of the death of the survivor of the Initial Recipient and the Successor Recipient. If the Charitable Recipient is not an organization described in §§ 170(c) and 2055(a) of the Code at the time when any unitrust payment is to be distributed to it, then the Trustee shall distribute that unitrust payment to one or more organizations described in §§ 170(c) and 2055(a) of the Code as the Trustee shall select, and in the proportions as the Trustee shall decide, in the Trustee's sole discretion. The unitrust amount shall be paid in equal quarterly installments at the end of each calendar quarter from income and, to the extent income is not sufficient, from principal. Any income of the trust for a taxable year in excess of the unitrust amount shall be added to principal. If, for any year, the net fair market value of the trust assets is incorrectly determined, then within a reasonable period after the correct value is finally determined, the Trustee shall pay to the Initial Recipient and/or the Successor Recipient and the Charitable Recipient (in the case of an undervaluation) or receive from the Initial Recipient and/or the Successor Recipient and the Charitable Recipient (in the case of an overvaluation) an amount equal to the difference between the unitrust amount(s) properly payable and the unitrust amount(s) actually paid.

(b) Replace each reference to "the Initial Recipient and/or Successor Recipient" in paragraph 2, Deferral Provision, of the sample trust with a reference to "the Initial Recipient and/or Successor Recipient and the Charitable Recipient."

(c) Replace the first parenthetical in paragraph 4, Distribution to Charity, of the sample trust with the following parenthetical: (other than any amount due the Initial Recipient and/or the Successor Recipient and the Charitable Recipient under the terms of this trust)

(d) Add the following sentence after the first and only sentence in paragraph 7, Prohibited Transactions, of the sample trust:

The Trustee shall not make any investments that jeopardize the exempt purpose of the trust within the meaning of § 4944 of the Code, as modified by § 4947(a)(2)(A) of the Code, or retain any excess business holdings within the meaning of § 4943 of the Code, as modified by § 4947(a)(2)(A) of the Code.

.02 Qualified Contingency.

(1) Explanation. Under § 664(f), payment of the unitrust amount may terminate upon the earlier of the occurrence of a qualified contingency (as defined in § 664(f)(3)) or the death of the survivor of the initial recipient and the successor recipient. The amount of the charitable deduction, however, will be determined without regard to a qualified contingency. See § 664(f)(2).

(2) Instructions for use. Replace the second sentence of paragraph 1, Payment of Unitrust Amount, of the sample trust with the following sentence:

The first day of the unitrust period shall be the date of my death and the last day of the unitrust period shall be the date of the death of the survivor of the Initial Recipient and the Successor Recipient or, if earlier, the date on which occurs the [ qualified contingency ].

.03 Last Unitrust Payment to the Recipients.

(1) Explanation. As an alternative to prorating the unitrust amount in the taxable year of the initial recipient's death, the obligation to pay the unitrust amount to the initial recipient may terminate with the last regular payment preceding the initial recipient's death. Similarly, as an alternative to prorating the unitrust amount in the taxable year of the successor recipient's death, the obligation to pay the unitrust amount may terminate with the last regular payment preceding the successor recipient's death. However, the fact that a recipient may not receive a final prorated payment shall not be taken into account for purposes of determining the present value of the remainder interest. Section 1.664-3(a)(5)(i). Note that although the obligation to pay the unitrust amount to a recipient may terminate with the last regular payment preceding that recipient's death, the trustee must pay a recipient's estate any amounts allocated to the payments payable before the recipient's death that are due as a result of an adjustment to the unitrust amount payable for that year, as in the case of an undervaluation.

(2) Instructions for use.

(a) To add an alternate provision to terminate the payment of the unitrust amount to the initial recipient with the last regular payment preceding his or her death, replace paragraph 3, Proration of Unitrust Amount, of the sample trust with the following paragraph:

Proration of Unitrust Amount. For a short taxable year and for the taxable year during which the unitrust period ends, the Trustee shall prorate on a daily basis the unitrust amount described in paragraph 1. If the Successor Recipient survives the Initial Recipient, the obligation of the Trustee to pay the unitrust amount to the Initial Recipient shall terminate with the last regular quarterly installment preceding the death of the Initial Recipient, and the entire amount of the first regular quarterly installment after the death of the Initial Recipient shall be paid to the Successor Recipient.

(b) To add an alternate provision to terminate the payment of the unitrust amount with the last regular payment preceding the termination of the unitrust period, replace paragraph 3, Proration of Unitrust Amount, of the sample trust with the following paragraph:

Proration of Unitrust Amount. For a short taxable year, the Trustee shall prorate on a daily basis the unitrust amount described in paragraph 1. If the Successor Recipient survives the Initial Recipient, the Trustee shall prorate on a daily basis the next regular unitrust payment due after the death of the Initial Recipient between the estate of the Initial Recipient and the Successor Recipient. In the taxable year of the trust during which the unitrust period ends, the obligation of the Trustee to pay the unitrust amount shall terminate with the last regular quarterly installment preceding the death of the survivor of the Initial Recipient and the Successor Recipient.

(c) To add an alternate provision terminating the payment of the unitrust amount to the initial recipient with the last regular payment preceding his or her death, and terminating the payment of the unitrust amount with the last regular payment preceding the termination of the unitrust period, replace paragraph 3, Proration of Unitrust Amount, of the sample trust with the following paragraph:

Proration of Unitrust Amount. For a short taxable year, the Trustee shall prorate on a daily basis the unitrust amount described in paragraph 1. If the Successor Recipient survives the Initial Recipient, the obligation of the Trustee to pay the unitrust amount to the Initial Recipient shall terminate with the last regular quarterly installment preceding the death of the Initial Recipient, and the entire amount of the first regular quarterly installment after the death of the Initial Recipient shall be paid to the Successor Recipient. In the taxable year of the trust during which the unitrust period ends, the obligation of the Trustee to pay the unitrust amount shall terminate with the last regular quarterly installment preceding the death of the survivor of the Initial Recipient and the Successor Recipient.

.04 Power of Appointment to Designate the Charitable Remainderman.

(1) Explanation. The trust instrument may grant a recipient a power of appointment to designate the charitable remainderman. See Rev. Rul. 76-7, 1976-1 C.B. 179.

(2) Instructions for use. Replace paragraph 4, Distribution to Charity, of the sample trust with the following paragraph:

Distribution to Charity. At the termination of the unitrust period, the Trustee shall distribute all of the then principal and income of the trust (other than any amount due the Initial Recipient and/or the Successor Recipient under the terms of this trust) to one or more charitable organizations described in §§ 170(c) and 2055(a) of the Code as [ one of the named permissible recipients ] shall appoint and direct by specific reference to this power of appointment by inter vivos or testamentary instrument. To the extent this power of appointment is not effectively exercised, the principal and income not effectively appointed shall be distributed to one or more organizations described in §§ 170(c) and 2055(a) of the Code as the Trustee shall select, and in the proportions as the Trustee shall decide, in the Trustee's sole discretion. If an organization fails to qualify as an organization described in §§ 170(c) and 2055(a) of the Code at the time when any principal or income of the trust is to be distributed to it, then the Trustee shall distribute the then principal and income to one or more organizations described in §§ 170(c) and 2055(a) of the Code as the Trustee shall select, and in the proportions as the Trustee shall decide, in the Trustee's sole discretion.

.05 Net Income Method of Calculating the Unitrust Amount.

(1) Explanation. As an alternative to using the fixed percentage method of calculating the unitrust amount in paragraph 1 of the sample trust, a CRUT may use the net income method for calculating the unitrust amount. Under the net income method, the unitrust amount is the lesser of a fixed percentage of the net fair market value of the trust assets valued annually or the amount of trust income for that year. Section 664(d)(3)(A) and § 1.664- 3(a)(1)(i)(b)(1). For purposes of determining the amount of the charitable contribution, the remainder interest is computed on the basis that an amount equal to the fixed percentage unitrust amount is to be distributed each year, without regard to the possibility that a smaller amount of trust income may be the amount distributed. Section 664(e).

(2) Definition of trust income. For purposes of the methods described in § 664(d)(3), trust income generally means income as defined under § 643(b) and the applicable regulations. Section 1.664-3(a)(1)(i)(b)(3). Even if permitted by applicable state law, however, trust income of a CRUT that uses the net income method, the net income with make-up method, or a combination of methods of determining the unitrust amount may not be determined by reference to a fixed percentage of the net fair market value of the trust property. In addition, although certain proceeds from the sale or exchange of assets must be allocated to principal and not to trust income, other such proceeds may be allocated to trust income pursuant to the terms of the governing instrument, if not prohibited by applicable local law. A discretionary power to make this allocation may be granted to the trustee under the terms of the governing instrument, but only to the extent that the applicable state statute permits the trustee to make adjustments between income and principal to treat beneficiaries impartially. Section 1.664-3(a)(1)(i)(b)(3). A definition of trust income that is consistent with these requirements may, but need not, be included in the trust instrument.

(3) Instructions for use.

(a) Each and every time a reference to "§ 664(d)(2)" appears in the sample trust, replace it with a reference to "§ 664(d)(2) and (d)(3)."

(b) Replace the first four sentences of paragraph 1, Payment of Unitrust Amount, of the sample trust with the following:

In each taxable year of the trust during the unitrust period, the Trustee shall pay to [ permissible recipient ] (hereinafter "the Initial Recipient") until the Initial Recipient's death, and thereafter to [ permissible recipient ] (hereinafter "the Successor Recipient"), a unitrust amount equal to the lesser of (a) a fixed percentage amount equal to [ a number no less than 5 and no more than 50 ] percent of the net fair market value of the assets of the trust valued as of the valuation date (hereinafter "the fixed percentage amount described in (a) of paragraph 1") or (b) the trust income for the taxable year as defined in § 643(b) of the Code and the applicable regulations. The valuation date is the first day of each taxable year of the trust. The first day of the unitrust period shall be the date of my death and the last day of the unitrust period shall be the date of the death of the survivor of the Initial Recipient and the Successor Recipient. The unitrust amount shall be paid in equal quarterly installments at the end of each calendar quarter from income. Any income of the trust for a taxable year in excess of the unitrust amount shall be added to principal.

(c) Replace paragraph 3, Proration of Unitrust Amount, of the sample trust with the following paragraph:

Proration of Unitrust Amount. For a short taxable year and for the taxable year during which the unitrust period ends, the Trustee shall prorate on a daily basis the fixed percentage amount described in (a) of paragraph 1. In such a year, this prorated fixed percentage amount shall be used in place of the fixed percentage amount described in (a) of paragraph 1 to determine the unitrust amount payable for that year. If the Successor Recipient survives the Initial Recipient, the Trustee shall prorate on a daily basis the next regular unitrust payment due after the death of the Initial Recipient between the estate of the Initial Recipient and the Successor Recipient.

.06 Net Income with Make-up Method of Calculating the Unitrust Amount.

(1) Explanation. As an alternative to using the fixed percentage method of calculating the unitrust amount in paragraph 1 of the sample trust, a CRUT may use the net income with make-up method for calculating the unitrust amount. Under the net income with make-up method, the unitrust amount consists of two components: (i) the amount determined under the net income method (as described in section 6.05 of this revenue procedure); and (ii) the amount of trust income that is in excess of the fixed percentage amount for that year, but only to the extent that the aggregate of the unitrust amounts paid to the recipients in prior years was less than the amounts that would have been paid to the recipients if the unitrust amount had been computed using the fixed percentage method. Section 664(d)(3)(B) and § 1.664-3(a)(1)(i)(b)(2). For purposes of determining the amount of the charitable contribution, the remainder interest is computed on the basis that an amount equal to the fixed percentage unitrust amount is to be distributed each year, without regard to the possibility that a smaller or larger amount of trust income may be the amount distributed. Section 664(e). See section 6.05(2) of this revenue procedure for rules relating to the definition of trust income.

(2) Instructions for use.

(a) Each and every time a reference to "§ 664(d)(2)" appears in the sample trust, replace it with a reference to "§ 664(d)(2) and (d)(3)."

(b) Replace the first four sentences of paragraph 1, Payment of Unitrust Amount, of the sample trust with the following:

In each taxable year of the trust during the unitrust period, the Trustee shall pay to [ permissible recipient ] (hereinafter "the Initial Recipient") until the Initial Recipient's death, and thereafter to [ permissible recipient ] (hereinafter "the Successor Recipient"), a unitrust amount equal to the lesser of (a) a fixed percentage amount equal to [ a number no less than 5 and no more than 50 ] percent of the net fair market value of the assets of the trust valued as of the valuation date (hereinafter "the fixed percentage amount described in (a) of paragraph 1") or (b) the trust income for the taxable year as defined in § 643(b) of the Code and the applicable regulations. The unitrust amount for a taxable year shall also include any amount of trust income for the year that is in excess of [ the fixed percentage amount determined under (a) of this paragraph for the year ], but only to the extent that the aggregate of the amounts paid in prior years, whether to the Initial Recipient or to the Successor Recipient, was less than the aggregate of the amounts determined for all prior years under (a) of this paragraph. The valuation date is the first day of each taxable year of the trust. The first day of the unitrust period shall be the date of my death and the last day of the unitrust period shall be the date of the death of the survivor of the Initial Recipient and the Successor Recipient. The unitrust amount shall be paid in equal quarterly installments at the end of each calendar quarter from income. Any income of the trust for a taxable year in excess of the unitrust amount shall be added to principal.

(c) Replace paragraph 3, Proration of Unitrust Amount, of the sample trust with the following paragraph:

Proration of Unitrust Amount. For a short taxable year and for the taxable year during which the unitrust period ends, the Trustee shall prorate on a daily basis the fixed percentage amount described in (a) of paragraph 1. In such a year, this prorated fixed percentage amount shall be used in place of the fixed percentage amount described in (a) of paragraph 1 to determine the unitrust amount payable for that year. If the Successor Recipient survives the Initial Recipient, the Trustee shall prorate on a daily basis the next regular unitrust payment due after the death of the Initial Recipient between the estate of the Initial Recipient and the Successor Recipient.

.07 Combination of Methods for Calculating the Unitrust Amount.

(1) Explanation. The net income method (described in section 6.05 of this revenue procedure) or the net income with make-up method (described in section 6.06 of this revenue procedure) may be combined with the fixed percentage method for calculating the unitrust amount. Section 1.664-3(a)(1)(i)(c). More specifically, the governing instrument may provide for payment of the unitrust amount not less often than annually using the net income or the net income with make-up method of calculation, and then, in the years following a permissible triggering event (as described in § 1.664-3(a)(1)(i)(c) and (d)), for payment of the unitrust amount using the fixed percentage method of calculation. To provide for a one-time conversion from the net income or the net income with make-up method to the fixed percentage method of calculation, the governing instrument must provide that: (i) the change in method is triggered on a specific date or by a single event whose occurrence is not discretionary with, or within the control of, the trustees or any other persons; (ii) the change in method occurs at the beginning of the taxable year that immediately follows the taxable year during which the permissible triggering event occurs; and (iii) following the trust's conversion to the fixed percentage method, the trust will pay at least annually to the initial recipient and/or the successor recipient the amount described in § 1.664-3(a)(1)(i)(a) and no amount described in § 1.664-3(a)(1)(i)(b). Section 1.664-3(a)(1)(i)(c). Thus, any make-up amount described in § 1.664- 3(a)(1)(i)(b)(2) that is not paid by the beginning of the taxable year immediately following the taxable year during which the permissible triggering event occurs shall be forfeited by the initial recipient and/or successor recipient and added to principal.

(2) Instructions for use to combine the net income and fixed percentage methods. To convert from the net income method for calculating the unitrust amount to the fixed percentage method after a permissible triggering event:

(a) Each and every time a reference to "§ 664(d)(2)" appears in the sample trust, replace it with a reference to "§ 664(d)(2) and (d)(3)."

(b) Replace paragraph 1, Payment of Unitrust Amount, of the sample trust with the following paragraph:

(ii) Conversion to fixed percentage method of determining unitrust amount. Notwithstanding paragraph 1(i), upon the occurrence of [ permissible triggering event as described in § 1.664-3(a)(1)(i)(c) and (d) of the Income Tax Regulations ] (hereinafter "the triggering event") and effective as of the first day of the taxable year that immediately follows the triggering event (hereinafter "the effective date of the triggering event"), in each remaining taxable year of the trust during the unitrust period, the Trustee shall pay to the Initial Recipient until his or her death, and thereafter to the Successor Recipient, a unitrust amount equal to [ same percentage used in (a) of paragraph 1(i) ] percent of the net fair market value of the trust assets as of the valuation date. Beginning on the effective date of the triggering event, the Trustee shall no longer pay the amount equal to the lesser of (a) or (b) in paragraph 1(i). The unitrust amount shall be paid in equal quarterly installments at the end of each calendar quarter from income and, to the extent income is not sufficient, from principal. Any income of the trust for a taxable year in excess of the unitrust amount shall be added to principal.

(iii) In general. The first day of the unitrust period shall be the date of my death and the last day of the unitrust period shall be the date of the death of the survivor of the Initial Recipient and the Successor Recipient. The valuation date is the first day of each taxable year of the trust. If, for any year, the net fair market value of the trust assets is incorrectly determined, then within a reasonable period after the correct value is finally determined, the Trustee shall pay to the Initial Recipient and/or the Successor Recipient (in the case of an undervaluation) or receive from the Initial Recipient and/or the Successor Recipient (in the case of an overvaluation) an amount equal to the difference between the unitrust amount(s) properly payable and the unitrust amount(s) actually paid.

(c) Replace paragraph 3, Proration of Unitrust Amount, of the sample trust with the following paragraph:

(ii) Proration on and after effective date of triggering event. For a short taxable year beginning on or after the effective date of the triggering event, which may include the taxable year during which the unitrust period ends, the Trustee shall prorate on a daily basis the unitrust amount described in paragraph 1(ii).

(iii) Proration of unitrust amount between Initial Recipient and Successor Recipient. If the Successor Recipient survives the Initial Recipient, the Trustee shall prorate on a daily basis the next regular unitrust payment due after the death of the Initial Recipient between the estate of the Initial Recipient and the Successor Recipient.

(3) Instructions for use to combine the net income with make-up and fixed percentage methods. To convert from the net income with make-up method for calculating the unitrust amount to the fixed percentage method after a permissible triggering event:

(a) Each and every time a reference to "§ 664(d)(2)" appears in the sample trust, replace it with a reference to "§ 664(d)(2) and (d)(3)."

(b) Replace paragraph 1, Payment of Unitrust Amount, of the sample trust with the following paragraph:

(ii) Conversion to fixed percentage method of determining unitrust amount. Notwithstanding paragraph 1(i), upon the occurrence of [ permissible triggering event as described in § 1.664-3(a)(1)(i)(c) and (d) of the Income Tax Regulations ] (hereinafter "the triggering event") and effective as of the first day of the taxable year that immediately follows the triggering event (hereinafter "the effective date of the triggering event"), in each remaining taxable year of the trust during the unitrust period, the Trustee shall pay to the Initial Recipient until his or her death, and thereafter to the Successor Recipient, a unitrust amount equal to [ same percentage used in (a) of paragraph 1(i) ] percent of the net fair market value of the trust assets as of the valuation date. Beginning on the effective date of the triggering event, the Trustee shall no longer pay the amount equal to the lesser of (a) or (b) in paragraph 1(i) and shall not pay any amount of trust income described in the second sentence of paragraph 1(i). The unitrust amount shall be paid in equal quarterly installments at the end of each calendar quarter from income and, to the extent income is not sufficient, from principal. Any income of the trust for a taxable year in excess of the unitrust amount shall be added to principal.

(iii) In general. The first day of the unitrust period shall be the date of my death and the last day of the unitrust period shall be the date of the death of the survivor of the Initial Recipient and the Successor Recipient. The valuation date is the first day of each taxable year of the trust. If, for any year, the net fair market value of the trust assets is incorrectly determined, then within a reasonable period after the correct value is finally determined, the Trustee shall pay to the Initial Recipient and/or the Successor Recipient (in the case of an undervaluation) or receive from the Initial Recipient and/or the Successor Recipient (in the case of an overvaluation) an amount equal to the difference between the unitrust amount(s) properly payable and the unitrust amount(s) actually paid.

(c) Replace paragraph 3, Proration of Unitrust Amount, of the sample trust with the following paragraph:

(ii) Proration on and after effective date of triggering event. For a short taxable year beginning on or after the effective date of the triggering event, which may include the taxable year during which the unitrust period ends, the Trustee shall prorate on a daily basis the unitrust amount described in paragraph 1(ii).

(iii) Proration of unitrust amount between Initial Recipient and Successor Recipient. If the Successor Recipient survives the Initial Recipient, the Trustee shall prorate on a daily basis the next regular unitrust payment due after the death of the Initial Recipient between the estate of the Initial Recipient and the Successor Recipient.

SECTION 7. EFFECT ON OTHER REVENUE PROCEDURES

Section 7 of Rev. Proc. 90-30 and section 8 of Rev. Proc. 90-31 are superseded.

DRAFTING INFORMATION

The principal authors of this revenue procedure are Karlene M. Lesho and Stephanie N. Bland of the Office of Associate Chief Counsel (Passthroughs and Special Industries). For further information regarding this revenue procedure, contact Karlene M. Lesho or Stephanie N. Bland at (202) 622-7830 (not a toll-free call).