The tax implications of “accelerated charitable remainder trusts” might seem as exciting as a pot of drying glue. But when Carlyn McCaffrey, a partner in New York’s Weil, Gotshal & Manges, began reviewing the instrument’s “fourth-tier return of corpus distribution” for her client The Goldman Sachs Group, Inc., in late 1998, she was lawyering for high stakes. The document prepared by McCaffrey — one of the nation’s most renowned trusts and estates experts — wasn’t standard lawyer-client advice. Goldman Sachs has been using McCaffrey’s favorable analysis as promotional material in peddling these trusts as aggressive tax shelters, according to one lawyer who has seen the document and another who is familiar with the deals. With this seal of approval from Weil, Gotshal, the investment bank has enticed companies into believing that this clever device will let them drastically slash their tax bills. Insiders call it the “chutzpah trust.”
Normally, wealthy people use trusts like these to donate property to charities while keeping an ongoing income stream from the asset. In this case, a corporation might transfer portfolio stock to a charitable trust, and the trustee would then enter into a forward sales contract with a financial institution. In exchange, the trustee gets cash equal to 70 – 80 percent of the stock’s value, which it pays out to the corporate donor over two to four years. The trust’s promoters claim that the government’s complex rules define this cash as a return of “trust corpus,” which is not taxed.
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