Tax Law & Policy Perspectives: What Is a Grantor Trust?

Every Friday, we feature Tax Law & Policy Perspectives from Monte A. Jackel, UBalt Law’s graduate tax program scholar in residence. In this article, he provides background relating to grantor trusts and then explains that the law needs congressional authorization to provide clarity relating to what ownership of a grantor trust means.

Grantor trusts have been a statutory feature of our income tax system since the early days of the income tax. Section 671 of the Internal Revenue Code provides in part that:

“Where it is specified….that the grantor or another person shall be treated as the owner of any portion of a trust, there shall then be included in computing the taxable income and credits of the grantor or the other person those items of income, deduction and credits against tax of the trust….which are attributable to  that portion of the trust….”

The pertinent regulations (Treas. Reg.§1.671-2(a), (c)) then state:

“Under section 671 a grantor or another person includes in computing his taxable income and credits those items of income, deduction, and credit against tax which are attributable to or included in any portion of a trust of which he is treated as the owner…. An item of income, deduction, or credit included in computing the taxable income and credits of a grantor ….under section 671 is treated as if it had been received or paid directly by the grantor….”

  There has been a lingering question over the past several decades about whether ownership of a grantor trust means the same thing as actual ownership of the property held by the trust or, alternatively, whether such ownership means only the attribution of the trust’s items of income, gain, loss, deduction, or credit. (Jackel, “More on Grantor Trusts: Tax Attribution or Asset Ownership,” Tax Notes Federal, Jan. 24, 2022, p. 517; and Jackel, “Grantor Trust Ownership: What Does It Mean?” Tax Notes Federal, Apr. 13, 2020, p. 269.) This question relates to what the proper treatment of a transaction between the grantor and the grantor trust is: disregarded or recognized in the tax system?

  In Revenue Ruling 85-13 (1985-1 C.B. 184), a grantor trust sold trust property held by it and previously contributed by the grantor back to the grantor for a promissory note. The IRS stated:

“Because A is treated as the owner of the entire trust, A is considered to be the owner of the trust assets for federal income tax purposes…. In this case, A is considered to be the owner of the promissory note held by the trust. Therefore, the transfer of the [trust property] by T [trust] to A [the grantor] is not recognized as a sale for federal income tax purposes because A is both the maker and the owner of the promissory note. A transaction cannot be recognized as a sale for federal income tax purposes if the same person is treated as owning the purported consideration both before and after the transaction…..”

  In so holding, the IRS rejected the contrary holding of the Second Circuit Court of Appeals on the same facts. (Rothstein v. United States, 735 F.2d 704 (2d Cir. 1984)). That court viewed section 671 and its accompanying regulations as only attributing tax items to the grantor. The trust was still viewed as a separate tax entity for all transactions by the grantor with the trust.  

  Many estate planning techniques revolve around the fact that the IRS’s position over the years has been that a transaction between a grantor and his grantor trust is disregarded for federal income tax purposes. However, that same transaction is taken into account for federal estate and gift tax purposes. A recent IRS revenue ruling involves the related issue of whether there is a basis step-up under section 1014 for an irrevocable grantor trust (Rev. Rul. 2023-2, 2023-16 IRB 658) not included in the gross estate for estate tax purposes. This revenue ruling denies the basis step-up but expressly does not address as facts either when liabilities are in excess of basis at death or a transaction between the grantor and grantor trust involving a sale in exchange for a promissory note of the grantor, meaning a transaction between the grantor and his trust. That ruling, therefore, has limited usefulness.

  A good argument can be made that the Congress should address these issues by statute before the IRS addresses them administratively. This is primarily because of the need to avoid endless litigation on these issues if done by the IRS because the current grantor trust statutes and underlying regulations are unclear on these issues, as well as necessary coordination with other provisions of the IRC and regulations thereunder if grantor trust ownership is addressed by a future statute. Time will tell.

UBalt Law Team Places First Nationally in Pace University Environmental Law and Policy Competition

The University of Baltimore School of Law’s finalist team in the Pace University Elisabeth Haub School of Law Environmental Law and Policy Hack Competition finished first in the nation for its brief and presentation, “Achieving a Circular Economy for Textile Waste in Baltimore City: Improving a Significant Public-Private Partnership Through Targeted Legal Reform.” The virtual competition took place on April 19, 2024.

This national competition challenges law students across the nation to propose innovative legal solutions to environmental and social issues facing our country. This year, the competition prompted students to address the issue of household waste at the regional, subnational or national scale. The UBalt Law team focused on the increasing concerns surrounding household textiles (clothing, durable fabric goods, etc.) and the waste and environmental justice concerns associated with them in Baltimore City and Maryland more broadly, says 3L and team leader James Duffy.

UBalt Law’s team for the Pace University Environmental Law and Policy Hack Competition

The Pace Competition allows finalist teams to present their proposals to a panel of expert judges, and rewards the first-place team with a $2,000 grant to implement proposed solutions.

The Baltimore Law team consisted of students pictured: front row, from left, James Duffy and Jessica Kweon; middle row, from left: Adam Fetian, Hannah Krehely and Cameron Luzarraga; back row, from left: Abby Badro, Carmen Perry, Paige Lauenstein and Spencer Baldacci.

The team was coached by UBalt Law Prof. Sonya Ziaja; Lisa Scianella, chief of staff from Helpsy, for contributing a wealth of knowledge and feedback on proposed solutions; and law alumni Lisa Blitstein, J.D. ’22, and Grant Foehrkolb, J.D. ’14.

Scholar Nitasha Kaul to Visit UBalt Law to Discuss Her Views on How Misogyny Erodes Democracy Around the World

Prof. Nitasha Kaul, director of the Centre for the Study of Democracy at the University of Westminster, London, will visit the University of Baltimore School of Law from noon to 2 on Wednesday, April 10 to speak on “How Misogyny Unravels Democracy.” The talk, co-sponsored by the UBalt Law Center on Applied Feminism and Center for International and Comparative Law, will be in the 12th Floor Reading Room of the Angelos Law Center. Registration is required, and lunch will be served.

Prof. Nitasha Kaul

Kaul, who holds a chair in Politics, International Relations and Critical Interdisciplinary Studies at Westminster, will explore the intersection of misogyny with political legitimacy and point to the strategic uses of misogyny for the purposes of democratic erosion by authoritarian leaders of right-wing political projects in numerous contemporary democracies.

She also will highlight recent empirical findings on the attitudes of so-called MAGA Republicans towards gender, authoritarianism and climate change in the United States. She has published widely on themes related to democracy, political economy, identity, and rise of right-wing nationalism, feminist and postcolonial critiques, and small states in geopolitics.

She has appeared on major international news outlets, including BBC, CNN, Al Jazeera, France 24, The Guardian, and The Independent. She has delivered invited lectures and keynotes at institutions around the world, addressing diverse audiences, including U.S. Congress, United Nations, and European Parliament.

The event is co-sponsored by Baltimore Law’s International Law Society (lunch sponsor), Women’s Bar Association, Students Supporting the Women’s Law Center, and If/When/How: Lawyering for Reproductive Justice.

UBalt Law Prof. Kim Wehle Receives Fulbright Grant to Study Civic Engagement and Constitution Law in Netherlands

University of Baltimore School of Law Prof. Kim Wehle has been named a Fulbright Scholar for 2024-2025. The Fulbright Program’s stated mission is to increase mutual understanding between people of the United States and people of other countries.

Wehle’s Fulbright project, which will be conducted in conjunction with scholars in The Netherlands and the University of Virginia, entails empirical research, analysis, and public-facing discussion regarding how citizens actually internalize constitutional norms and use them, to varying degrees, to reinforce constitutional structures through voting, civic participation, financial support, and other means. She will visit The Netherlands during the Spring 2025 semester.

Prof. Kim Wehle

Wehle says she will work with Prof. W.J.M. Voermans, of the University of Leiden, and other scholars to study how social constructivism informs constitutional law and, in turn, how courts and government actors should consider the public’s internalized values in shaping the rule of law. It will continue their three-year collaboration comparing the two oldest constitutions in the world: the U.S. and Dutch Constitutions.

“In 2019, Professor Voermans and I met when we both spoke at the John Adams Institute in Amsterdam about our recent books, How to Read the Constitution—and Why (Wehle), and The Story of Constitutions (Voermans),” Wehle says. “Thus began a collaboration around Professor Voermans’ ongoing research on how constitutions live in the ‘hearts and minds’ of ordinary people.

Wehle, who has been on the faculty at Baltimore Law since 2009, teaches administrative law, constitutional law, civil procedure and federal courts. She is the author of three books — How to Read the Constitution — and Why (2019), What You Need to Know About Voting — and Why (2020), and How to Think Like a Lawyer and Why: A Common-Sense Guide to Everyday Dilemmas (2022).

Her forthcoming book, Pardon Power: How the Pardon System Works — and Why, will be published in September 2024.

At the University of Leiden, she says, “The teaching component will be dynamic, collaborative and responsive to the needs of the University, student feedback, and current events, focusing on a central question relating to democratic norms in the U.S. today: Whether the election results will be honored in the event that a Democrat wins the presidential popular vote and/or Electoral College in 2024.

My teaching will extend outside a single course or classroom in order to reach as wide an audience as possible, including students, other faculty, policymakers, and concerned citizens,” Wehle says.

“I am truly honored to have been selected as a Fulbright Scholar, one of the world’s most prestigious organizations for fostering intercultural scholarship and community,” she says. “I’m thrilled to continue my research at the University of Leiden on how citizens internalize constitutional norms –and its impact on the interaction among politicians, civil servants, and the voting public.”

University of Baltimore School of Law Names Georgia State Law Dean LaVonda Reed as Its New Dean

LaVonda N. Reed, J.D., dean and professor at the Georgia State University College of Law, has been named dean of The University of Baltimore School of Law. Following an extensive national search led by an internal committee and the Witt Kieffer search firm, UBalt President Kurt L. Schmoke, in consultation with representatives from the law school, selected Reed from among five finalists. Reed, who will begin her duties at the University on July 1, will replace Ronald Weich, who has been named dean of Seton Hall School of Law. She will be the first female dean at the School of Law.

Reed has been dean of Georgia State University College of Law since July 2021. Her areas of focus in research and teaching include wills and trusts, property, and communications regulatory law and policy.

LaVonda N. Reed

In announcing Reed’s appointment, President Schmoke said, “I am pleased and excited to welcome LaVonda Reed as dean of our law school. She is an outstanding leader who will build on the strengths of the law school and engage with other deans in developing outstanding interdisciplinary programs. In a short time, she will be viewed as an impactful leader by the state bar and Maryland citizens in general. My special thanks to the members of our search committee, who worked diligently on the process that led us to Dean Reed.”

Reed said, “I am excited to join the University of Baltimore as the dean of the School of Law as the university celebrates its centennial anniversary. The school’s commitment to excellence in teaching, impactful research, and service to the legal academy and the profession is as inspiring as the people who make up this wonderful academic community.

“I look forward to building on the work of providing access to an affordable education and actively engaging the broader law school community in supporting faculty, staff, students, and alumni in achieving their academic and professional goals and advancing the mission of the school. This work aligns with my values, and I am honored and excited about my return to the state of Maryland.”

Prior to her appointment at Georgia State, Reed served as professor of law and associate provost for faculty affairs at Syracuse University. In this position, she had oversight of research and administrative leaves, awards, promotion and tenure review, policy development and enforcement among other duties. She led initiatives to recruit and retain a diverse faculty and created the Center for Teaching and Learning Excellence and the Center for Faculty Leadership and Professional Development.

During her time at Georgia State, Reed focused on five guiding principles: access to the profession; affordability of legal education; academic excellence in faculty scholarship, teaching, and career advancement; student and staff professional achievement; and active engagement of all stakeholders.

Search Committee Chair Prof. Dionne Koller, director of UBalt Law’s Center for Sport and the Law, said, “From the start of this process, the committee heard from every UBalt Law constituency that we must prioritize finding a dean who appreciates our mission and spirit, will amplify our considerable strengths, and will position us well to meet the challenges of legal education today. The community recognized that Dean Reed is unquestionably that person. We are thrilled to welcome her as our new dean.”

Prior to her appointment at Syracuse University, Reed served on the faculty of the Louis D. Brandeis School of Law at the University of Louisville. She also was a judicial clerk for the Honorable Donald W. VanArtsdalen of the U.S. District Court for the Eastern District of Pennsylvania, and she practiced communications and corporate law with the international firm of Paul Hastings LLP.

She has published several articles in law reviews and other journals, and is currently working on scholarly pieces covering a range of topics involving the federal regulatory environment, including a piece on the Congressional Review Act and its impact on internet privacy and net neutrality.

Reed earned her Juris Doctor degree from the University of Southern California Gould School of Law and a Bachelor of Arts degree in economics from the University of Virginia.

Peter Angelos, Generous UBalt Law Alumnus, Legal Luminary and Baltimore Orioles Owner, Dies at 94

Peter Angelos, LL.B. ’61, the longtime owner of the Baltimore Orioles, a leader of the legal community and a major financial supporter of his alma mater, passed away on Saturday, March 23 following a long illness. He was 94.

Peter Angelos. (Algerina Perna/Baltimore Sun/Tribune News Service via Getty Images)

Mr. Angelos was a true friend of the University, giving more than $18 million during his lifetime, including a total gift of $15 million for the University’s law center building named in honor of his parents. Standing tall over the intersection of Charles Street and Mt. Royal Avenue, the John and Frances Angelos Law Center is an iconic structure for both the University and central Baltimore.

The Angelos name also is prominent in the law school’s academic programming, with the Fannie Angelos Program for Academic Excellence serving as a nationally acclaimed model to encourage diversity in the development of lawyers and the practice of law. Fannie Angelos, L.L.B. ’51, Peter’s sister and a practitioner in his family’s law firm, was a champion of such efforts. She graduated from UBalt Law in 1951, one of three women in her class. She died in 2015.

In the 1990s, Mr. Angelos and his law firm organized multiple class-action lawsuits against asbestos manufacturers, winning more than $1 billion in damages for pipefitters, steelworkers and their families. Commissions from this work allowed him to purchase the baseball team in 1993.

UBalt Law Dean Ronald Weich, who became dean in 2012 and saw the opening of the Angelos building soon after, said, “Peter Angelos was one of the most successful and most loyal graduates of our law school. He was a fierce advocate for his clients and a champion for justice.”

Services will be private.

UBalt Law Alumna Kerri L. Smith to Receive Maryland Bar Foundation’s Professionalism Award

Silverman Thompson attorney Kerri L. Smith, J.D. ’12, will receive the Edward F. Shea, Jr. Professionalism Award at the Maryland Bar Foundation’s annual meeting in June. The award is presented in conjunction with the Maryland State Bar Association (MSBA) during its Legal Summit and Annual Meeting in Ocean City, MD.

Smith is a member in the firm’s Real Estate Group, where she concentrates her practice on commercial and residential real estate. She represents landlords, tenants, business owners, property management companies, commercial property owners and contractors in all aspects of development, construction, leasing, and management. Her practice includes all types of commercial, residential, retail, office, industrial, and mixed used developments.

Kerri L. Smith, J.D. ’12

She also represents businesses and individuals in federal and state courts. She has experience in a broad range of matters including contract litigation, construction litigation, class actions, financial disputes, and collection actions. She advocates in court on a daily basis.

Smith is very active in the local and legal community. She serves in numerous leadership roles for the Bar Association of Baltimore City, MSBA and American Bar Association. She is also a member of the Dean’s Committee of the CollegeBound Foundation, serves as a Wingman with Athletes Serving Athletes, and is a volunteer field hockey coach for Perry Hall Recreation Council.

In selecting a recipient for the Shea Award, the committee considers a reputation of professionalism, contributions of time and resources to public service or charitable activities, encouragement of other lawyers to develop and maintain their knowledge of the law and proficiency in practice, and demonstration of a high degree of courtesy, personal dignity, and professional integrity.

Baltimore attorney and past president of the MSBA Edward F. Shea, Jr., exemplified professionalism, civility, integrity, compassion and commitment to public service, according to the MSBA. Since 1996, the Maryland Bar Foundation has honored his memory and impact on our profession by awarding the Shea Award to attorneys who embody the same ideals.

UBalt Law Prof. Margaret Johnson to Receive Roslyn B. Bell Award from Women’s Law Center of Maryland

Prof. Margaret Johnson, co-director of the Center on Applied Feminism and director of the Bronfein Family Law Clinic at the University of Baltimore School of Law, will receive the Rosalyn B. Bell Award from the Women’s Law Center of Maryland at its May 7 Annual Celebration and Awards Ceremony.

Prof. Margaret Johnson

Johnson joined the faculty in 2006. Her current research examines the intersection of law, policy and menstruation. She asks questions about how individuals who menstruate are subject to structural and intersectional forms of oppression. Recently, she explored comparative law and policy regarding menstruation as a Fulbright Scholar at UTS in Sydney, Australia.

Her research also examines the law’s role in surveillance of menstruators, including their reproduction. In addition, Johnson’s research addresses the use of narrative theory, critical reflection, and normative theory in lawyering for clients.

Johnson routinely advocates for menstrual justice legislation, regulations and policies. In addition, she is a frequent speaker and commentator on issues of menstrual justice. She has had a leadership role in many feminist organizations and projects, including the advisory panel for the Feminist Judgments book series and the board of directors of the Women’s Law Center of Maryland.

Hon. Rosalyn B. Bell, for whom the award was named, was the second woman to ever have been appointed to the Maryland Court of Appeals, now known as the Supreme Court of Maryland. In both her personal and professional life, Bell was a tireless advocate for women, both within the profession of law and as litigants and victims in the legal system.

UBalt Law’s DEIB Director Bell Receives UBalt Staff Diversity Award, is Named a Hoffberger Faculty Fellow

Mark Bell, the University of Baltimore School of Law’s director of Diversity, Equity, Inclusion and Belonging, received the Staff Diversity Award at the university-wide Mar. 12 Employee Recognition Event. Bell, who has worked at UBalt for 25 years and taught for many of those, also was recently named a Faculty Fellow in UBalt’s Hoffberger Center for Ethical Engagement. The Center addresses important topics in applied and professional ethics and encourages ethical engagement within the University and beyond.

Mark Bell

Working with law school students, faculty and staff, Bell leads efforts to develop and implement DEIB initiatives and programming to enhance the employee and law student experience and promote an inclusive law school culture. He leads efforts to convene a law school-wide DEIB council charged with advising the dean on DEIB community needs and best practices.

Bell received his B.S. in criminal justice and his master’s in public administration from the University of Baltimore.

Also at the Employee Recognition Event, UBalt employees were honored for milestone years of service. Among those at the law school with the lengthiest employment are Prof. Jack Lynch, 45 years; Prof. Michael Meyerson, 35 years (as of 2020); Prof. Walter Schwidetzky, 35 years (as of 2020); Lisa Bellamy-Smith, 35 years (as of 2022); Prof. F. Michael Higginbotham, 35 years; Prof. Fred Brown, 30 years (as of 2020); and Prof. Barbara White, 30 years.

Congratulations to all the employees celebrating milestones.

Prof. Nienke Grossman Attends Meeting of Inter-American Juridical Committee as First U.S. Woman Member

Prof. Nienke Grossman, co-director of the Center for International and Comparative Law (CICL), is in Panama City, Panama, for a March 11-15 meeting of the Inter-American Juridical Committee (IAJC). She was elected to the IAJC in January, following nomination by the United States and a vote by the Permanent Council of the Organization of American States (OAS). Grossman is the first woman from the United States to serve in this capacity.

Prof. Nienke Grossman speaks at Panama meeting of the Inter-American Juridical Committee of the Organization of American States.

The committee serves the OAS in an advisory capacity and promotes the progressive development and codification of international law. Its members are distinguished international law experts from across the Inter-American region. 

Among topics currently on the agenda of the IAJC as Grossman joins the committee are: 1) development of Inter-American guidelines on the participation of victims in criminal proceedings against acts of corruption; 2) strengthening the accountability regime in the use of information and communications technologies; 3) legal implications of the sea-level rise in the Inter-American regional context; and 4) corporate responsibility of manufacturers and sellers of weapons in the area of human rights.