Gift

Article Dean Dorton

You may have been interested in or may have contributed to funding campaigns on sites such as Kickstarter. There are a number of fundamental issues relating to crowdfunding – is your payment a gift to the fundee, an equity investment, a loan, or a purchase of an item? Funders don’t often think about these issues and the law isn’t always clear. Recently, the Securities and Exchange Commission (SEC) adopted final rules allowing private companies to sell securities (an equity investment) through internet-based crowdfunding. These rules will become effective on May 16, 2016 and will allow all investors (not just accredited investors) to buy private securities – i.e., to invest in crowdfunding ventures. There are limitations – see below:

  • The amount the company can raise through crowdfunding is limited to $1 million in any 12-month period.
  • If an individual investor’s annual income and net worth are both greater than $100,000, he can invest up to 10% of his net worth.
  • If an individual investor’s annual income or net worth is less than $100,000, he can invest the greater of $2,000 or 5% of his annual income or net worth.
  • Crowdfunding investors generally may not sell their securities for one year. Even without that limitation, crowdfunding investors should view their investments as highly illiquid.
  • Funding portals will be required to register with the SEC.
  • Those seeking this type of equity crowdfunding will be required to provide information about the offering and the financial condition of the company. These requirements are much less onerous than those associated with a public offering, but they are significant, and failure to comply may permit an unhappy investor to obtain a refund.

This is a significant improvement to the rules for small companies seeking to raise capital and for funders seeking an equity investment in such companies. We’re not sure if it will bring a sea-change in Kickstarter type fundraising and so the confusion about the nature of such contributions will likely continue – is it a gift, a loan, or a purchase of an item? If it’s an equity investment, it should comply with the new SEC rules.

Contact your Dean Dorton advisor if you have any questions or would like to learn more.

Article Dean Dorton

Two of the most common ways to remove assets from your taxable estate is to make outright gifts or make gifts in trust.

An outright gift simply means giving assets directly to your children, grandchildren or other selected beneficiaries. This approach is very easy and does not require the creation of new entities, such as trusts or partnerships. But there are concessions for such simplicity. Once you give assets to your beneficiaries, you no longer have any control over those assets. The beneficiaries can do with them what they wish. There is no asset protection for your beneficiaries, so the assets would be available to the creditors of your beneficiaries or disgruntled spouses. Any assets gifted in this manner would also be included in the taxable estates of your beneficiaries.

A gift in trust means giving assets to a trust, rather than to a person. A trust is a separate legal entity which is governed by the terms of a trust agreement. This additional entity adds some complexity and cost to your gifting plan. The trust agreement can be drafted in a variety of ways to achieve your specific goals. You could structure the trust to enhance your control over the distribution of assets from the trust by naming yourself or a trusted designee as the trustee of the trust. You could structure the trust to potentially enhance your financial security, if your spouse is a named beneficiary of the trust. You could structure the trust to preserve the flexibility to make unequal distributions to different beneficiaries, either now or in the future, which could allow you to account for special considerations such as sickness, disability, or financially irresponsible beneficiaries. A trust also provides asset protection for your beneficiaries, as the assets of the trust are beyond the reach of your beneficiaries’ creditors or spouses.

You could structure the trust to terminate after the deaths of your immediate beneficiaries, or structure it to keep the assets out of the taxable estates of your beneficiaries in perpetuity or at least skipping tax on one or more generations.

You could structure the trust so you are treated as the “owner” of the trust for income tax purposes, called a grantor trust. In this circumstance, you, rather than the trust or beneficiaries, would report the trust income on your income tax return. This feature provides an additional “tax-free gift” in the amount of income tax that you pay on the trust income. An irrevocable trust can structured to be treated as a grantor trust if is contains certain provisions, such as, providing income for the benefit of the grantor or the grantor’s spouse, or allowing the grantor the power to substitute assets. Grantor trusts also allow you the flexibility to exchange high basis assets that are in your personal name for low basis assets held in the trust where they will get a step up in basis at your death.

Whether to make outright gifts or gifts in trust depends on a variety of factors which are as unique as you and your beneficiaries. We’d be happy to help you define your goals and find a solution that fits you – contact your Dean Dorton advisor if we may be of assistance.