Bus Trust

A COMPREHENSIVE
INTRODUCTION TO THE
UNINCORPORATED BUSINESS ORGANIZATION
(I.R.S. CODE § 301.7701)
The trust that is not a trust . . . it’s a contract cast in the form of a trust.
Presented by:
The Baldwin Trust Group

6966 Sunrise Blvd., #246
Citrus Heights, California 95610
(916) 722-0667 Ž Fax (916) 729-7468
Pager (916) 450-8922
In cooperation with:
Torrance Financial & Insurance Services Ltd.

Brian E. Torrance
3400 Watt Avenue, Suite 205
Sacramento, CA 95821
(916) 679-1032 Ž Fax (916) 481-1143
DISCLAIMER
The disseminated information being offered within pertains to standing law, is a matter
of historical fact, or is other material within the public record; much of which can be
consultedat any law library. This material is purely educational and informative in nature
and does not constitute professional legal or tax advice. We do not under any
circumstances give legal or tax advice. You must take full responsibility for any liability
or loss incurred as a consequence of the use and application, directly or indirectly, of any
information contained in this free hand out. Please seek competent, licensed legal or tax
professionals if you find that you should need such advice. Any professional who reputes
this handout should provide you with a free rebuttal of equal quality providing as many
legal cites and opposing laws as contained within. Personal “I don’t think it will work ...”
should be UNACCEPTABLE to you.
TABLE OF CONTENTS
COMMON LAW versus STATUTORY LAW . . . . . . . . . . . . . . . . . . 1

First and foremost, Common Law . . . . . . . . . . . . . . . . . . . . . . . 2
Statutory Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
INTRODUCTION TO THE CONTRACT BUSINESS TRUST . . . . . . 7
THE IMPORTANCE OF YOUR BUSINESS . . . . . . . . . . . . . . . . . . . . 8
A BASIC BUSINESS DECISION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
WHAT IS A TRUST? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
WHAT IS A BUSINESS TRUST? . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
NECESSARY CHARACTERISTICS OF A BUSINESS TRUST

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
WHY USE A CONTRACT BUSINESS TRUST? . . . . . . . . . . . . . . . 18

Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Liability Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Tax Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Estate Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
WHY NOT USE A FOREIGN TRUST? . . . . . . . . . . . . . . . . . . . . . . . 22
HOW TO USE A CONTRACT BUSINESS TRUST . . . . . . . . . . . . . 24

Sole Proprietors and Partnerships . . . . . . . . . . . . . . . . . . . . . 24
Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
FLEXIBILITY FOR BUSINESS AND ESTATE PLANNING . . . . . . 25
WHO CAN USE A CONTRACT BUSINESS TRUST? . . . . . . . . . . . 27

END NOTES and REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ADDITIONAL CASE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
THE MONEY LAUNDERING CONTROL ACT . . . . . . . . . . . . . . . . 37
TABLE OF AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix A

FOREWORD
In the January 1996 American Bar Association Journal, an article appeared stating that America’s
lawyers are lining up, protecting their own assets from the hazards of litigation by setting up Asset
Protection Trusts (APT) for themselves; e.g., contractual unincorporated organizations. As one
attorney quoted in the article put it: "I do not want someone doing to me what I do to them all day
in court."
"It may be said that the Constitution executes itself. This expression may be allowed; but with as
much propriety. These may be said to be laws which the People have enacted themselves, and
no laws of Congress can either take from, add to or confirm them. They are rights, privileges or
immunities that are granted by the People, and are beyond the powers of Congress or State
Legislatures. It may be laid down as a universal rule, Admitting to no exception, that when the
Constitution has established a disability or immunity, a privilege or a Right, these are precisely as
that instrument has fixed them, and can neither be augmented nor curtailed by any act or law either
of Congress or a State Legislature. We are more particular in stating this because it has sometimes
been forgotten both by Legislatures and Theoretical expositors of the Constitution." Bouvier's Law
Dictionary. l870 pp 622-625
"The general rule is that an unconstitutional statute, though having the form and name of law, is in
reality no law, but is wholly void and ineffective for any purpose, since its unconstitutionality dates
from the time of its enactment...In legal contemplation, it is as inoperative as if it had never been
passed...Since an unconstitutional law is void, the general principles follow that it imposes no
duties, confers no right, creates no office, bestows no power or authority on anyone, affords no
protection and justifies no acts performed under it... A void act cannot be legally consistent with
a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed
insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby. No
one is bound to obey an unconstitutional law and no courts are bound to enforce it.’ 16 Am Jur
2d 177, late Am Jur 2d 256. Norton v. Shelby County, 118 US 178.
"... A regulation which is inconsistent with the law is invalid ... because a statute may not operate
in derogation of the Constitution." Title 5 U.S.C. 301, 559 C1. 2
13 Am Jur 2d, pg. 379, Paragraph 51 "One of the objectives of Business Trusts is to obtain for
the Trust associates, most of the advantages of corporations, without the authorityof any legislative
act and with the freedom from the restrictions and regulations generally imposed by law upon
corporations."
The main problem with sham trust providers, charlatan preachers, bad
insurance agents, auto salesmen, CPAs, Attorneys, and the lot is that when
you find out what category they are in ... it’s usually too late! You’re the
loser. “Study to show yourself approved.”
PREFACE
The following question was posed to Don L. Wood, author of Tax
Free! How the super rich do it! and was posted on the internet at
www.passpostsociety.org. It was such an honest and succinct response
that we decided to reprint the Q & A here. Please visit the site above
and order this remarkable book for yourself. Everyone who wants to
protect themselves must have this book in their library.
Q: [Don,] What's the difference between “pure trusts” and “common law trust
organizations”, and how can you determine the difference?
A: [Doug,] So called experts don’t know the difference. I'll offer an answer that is
far too simple, but the only other version would easily take a semester in law school.
All trusts . . . (how many does that leave out?) . . . are creatures of equity.
Equity is a legal system developed in England during the 7th Century when the
crown converted to Christianity. The king established a new court system whose
leadership (Chancellor) was also the head of the church of England. Therefore,
it is in every consideration an ecclesiastical court where the "judges"
(chancellors) try matters of conscience! Many of its terms, for example, are
religious in nature; "prayer for relief", "invoking equity", even the term
"chancellor". The term "chancellor" being corrupted from its original hard "ch"
sound as today's letter "k" sounds, and which we would spell today as cancellor,
was one who cancelled sins. As the head of the church of England, he had the
power to remit sins. Courts of Equity have jurisdiction over all statutory trusts.
In England and her colonies, the two courts, the courts of law and equity, were
merged so that today's "judge" is both judge and chancellor, i.e.; the cancellor
of sins. The United States followed suit in the 1920's. In only a few of the
Commonwealth States is law and equity still practiced separately. Unless one
knows the difference he may easily take his claim to a chancellor rather than to
a judge. Chancellors have the power to interpret matters of conscience as might
a priest. Judges, on the other hand, only referee the parties and interpret the law.
Chancellors interpreting matters of conscience in today's moral climate gives

me the shivers. When the President of the United States finds it convenient and
expedient to lie —— even when he knows everyone knows he's lying —— and
the people forgive him even though he's asked for no forgiveness, anything
corrupt can and will happen. (Somehow, Americans want a good government
without being good themselves, and the two are not as separable as they would
like to imagine. Corruption is as common at the top as it will be at the bottom.)
A court and a judge which have "equitable powers" gives me goose pimples. I have never
been able to understand why someone would write a contract and then permit the
opportunity for that type of judicial review of deciding what the parties meant or should
have meant! Instead of the rigidity of common law, that contract is as flexible and
flimsy as the paper it's written on!
Pure trusts, and 99% of the other so called common law trusts will invoke equity
jurisdiction even though there never needed to be any. Therefore, the judge is given the
power to interpret the spiritual aspects of a pure trust, and as I said, with today's moral
climate being what it is, I surely wouldn't write a contract and then permit equity to
interpret it for me. Common law trusts organizations prevent that. That is something
99.9% of the rest of the so called "trust practitioners" haven't even thought about yet.
Further, because it's so easy to step into that arena by accidentally invoking equity
somewhere or some other way, it should make your blood run cold.
[END OF Mr Wood’s QUESTION & ANSWER]
The most important landmark case handed down by the United States Supreme Court
concerning common law trusts is Hale v. Henkel, 201 U.S. 43(1906). It has been used
since 1906 more than 1,600 times. On the persuasive side in Hale v. Henkel, it was the
United States Supreme Court which was speaking the "Law of the Land." How much
more persuasive can a case be? The never overturned opinion of the court as stated at
page 89 is as follows:
"The individual may stand upon his constitutional rights as a citizen. He is

entitled to carry on his private business in his own way. His power to
contract is unlimited. He owes no duty to the State or to his neighbors to
divulge his business, or to open his doors to an investigation, so far as it
may tend to incriminate him. He owes no duty to the State, since he receives
nothing therefrom, beyond the protection of his life and property.
"His rights are such as existed by the Law of the Land (Common Law) long
antecedent to the organization of the State, and can only be taken from him
by due process of law, and in accordance with the Constitution.
"He owes nothing to the public so long as he does not trespass upon their
rights." [Emphasis Added.]
COMMON LAW versus STATUTORY LAW
(rights) vs. (privileges)
THE HISTORY OF [AMERICAN] COMMON LAW
Our American form of Common Law possesses a glorious and

rich ancestry; tracing its’ spiritual pedigree to the biblical “Seven Laws
of Noah” as recorded in Chapter 9 of the Book of Genesis; and perhaps
beyond. The modern day [American] Common Law was sired from the
loins of the “Magna Carta” as granted by King John at Runnymede on
June 15, 1215. This Great Charter of English Liberty was re-enforced
by the “Mayflower Compact,” being penned and signed on November
11, 1620 and later presented to King James. On October 19, 1765, the
“[First] Declaration of Rights” was signed by the assembled In
Congress and delivered to The [British] Crown and the House of
Commons. A second, and more severe indictment, the “[Second]
Declaration of Rights” was signed by the assembled In Congress, at
Philadelphia, on October 14, 1774, being delivered to the British
Parliament. Again, Common Law was upheld as the law of the land
within “The Unanimous Declaration of the Thirteen United States
of America...” as presented to King George in that great document we
hold so dear to ourselves, “The Declaration of Independence” as
adopted by the assembled In Congress on July 4, 1776. On November
15, 1777, in the second year of the independence of the united States,
the “Articles of Confederation,” being initially signed by those
assembled In Congress at Philadelphia on July 9, 1778, and formally
ratified by all the States on March 1, 1781. Under Federal Convention,
in the twelfth year of the independence of the States, on September 17,
1787, “...by the unanimous consent of the states present...”, the
“Constitution of the United States” was signed, being ratified by the
last of the thirteen original States on May 29, 1790.
Permission is granted to copy and distribute this material to anyone interested in its’ entirety.
The Baldwin Trust Group * 6966 Sunrise Blvd. * Citrus Heights, CA 95610 * (916)722-0667 * Page 1 of 42.
Following suit, the State of California petitioned for Statehood via the
“Act for the Admission of California Into the Union” submitted to the
assembled Joint Congress of the United States of America on
September 9, 1850 and approved on September 28, 1850 as evidenced
in Volume 9, Statues at Large, page 521.
Most Americans are unaware that they have a choice to decide which set
of laws, Common or Statutory, they want to invoke to manage their
personal and/or business affairs!
First and foremost, Common Law is CONTRACTUAL RIGHT

which is incapable of revision or modification, and cannot be statutorily
abridged: To most Americans, including both American and California
Bar Association members, Attorneys, Lawyers, Judges, Legislators, and
Members of the executive branch of our government: “Common Law
A
is not important and has no authority as compared to the thousands of
statutory laws and regulations created by legislators and government
administrators each year...”
“... [A] trust organization, consisting of a U.S. Constitutional right of

contract which cannot be abridged. The agreement when executed
becomes a Federal organization and not under the laws passed by any
of the several legislatures,” Crocker v. MacCloy, 649 U.S. Supp. 39 at
270
A
"Even Admiralty and maritime jurisdiction, when brought inland, is subject to the Common
Law remedy, the same as Equity; and cannot supersede the sovereign citizens' God endowed/given
unalienable/inalienable rights, and these same rights as secured in and under the Constitution of the
United States of America." Title 5 U.S.C., 559, cl.2; Title 28 U.S.C. 2072; Miranda v. Arizona, 384
US 436 at 491 (1966)
Defined by law dictionaries and the courts, “Common Law
consists of those principles, usages and rules of action applicable to
government and security of persons and property which do not rest for
their authority upon any express and positive declaration of the will of
the legislator.” [Bishop v. D.C. Tex., 334, F. Supp. 415, 418.]
Article 6, Section 2 of the Constitution of the United States

declares that the United States Constitution is the SUPREME LAW of
the Land B and the Constitutional provisions and laws of any state to the
contrary is not withstanding; unenforceable!
The Great State of California reaffirmed the supremacy of the

United States Constitution as written in its’ State Constitution in Article
III, Section 1, which states “The State of California is an inseparable
part of the United States of America, and the United States Constitution
is the supreme law of the land.”
On the other hand ...
Statutory Law binds the procedural structure and creates entities

that arise out of privilege(s) derived ONLY from the State: Federal,
State and Local Statutory and Regulatory authority is created by
corporate United States or State Constitutional, Mandate, or the Charter
of a municipality to regulate the government and to create the guide
lines for the governments limitations with regard to the protected civil
rights of private citizens.
B
"This Constitution and the laws of the United States which shall be made in pursuance
thereof...shall be the supreme law of the land; and the judges in every State shall be bound
thereby...The Senators and representatives and members of the State legislatures, and all executive and
judicial officers of the United States and the several States, shall be bound thereby.." Constitution for
these United States, Article VI, § 2, Cl. 1
Within the United States Constitution, the authority for Congress
to create statutory and regulatory laws is authorized under Article 1,
Section 8. This authority is limited to implementing the delegated
powers listed in Article 1, aforementioned, regulating elected or
appointed officials, administrative agencies, courts and the Military.
The courts have ruled that entities created under the jurisdiction
of Statutes or Regulations such as corporations, associations, statutory
trusts (e.g.; revocable inter vivos living trusts), sole proprietor businesses,
partnerships, etc., do not have common law rights such as the
individual.
Statutory Law entities are [hideous] creatures of the [mad

scientist] State and owe their existence and charter power to the State.
A State chartered or sanctioned entity can make no contracts not
authorized by its Charter license. These Statutory Chartered entities
are presumed to have been created for the benefit of the public...
not for private enterprise. [Hale v. Henkle, 201 U.S. 43 at 74(1906);
Pinkerton v. Verberg, 78 Mich. 573, 584; State Ex. Real Cities Service Gas v.
Public Service Commission, S.W. 2d 890]
Most people today feel that, or act as if, they MUST ask
the State, County, City, the I.R.S., their attorneys,
accountants, doctors, religious leaders, etc. what to do in
their private and personal affairs. We are scared-to-
death to make decisions on our own!
It seems that consciously, or unconsciously, many people believe
they need to get permission from an external authority for practically
every thing they are going to do. Thomas Jefferson, our third President,
stated it very succinctly:
“If a nation expects to be ignorant and free in a state of civilization, it
expects what never was and never will be ... If we are to guard against
ignorance and remain free; it is the responsibility of every American to be
informed.” ~ President Thomas Jefferson
This principle is known today as The “Ashwander Doctrine”:
“... Anyone [or entity] who partakes of the benefits or privileges

of a given statute C, or anyone [or entity] who even places himself
into a position where he may avail himself of those benefits at
will, cannot reach constitutional grounds to redress grievances in
courts against the given statute.” [Ashwander v. T.V.A., 287 U.S.
288, 56 S. CT 466]
The traditional probate avoidance revocable inter vivos Living

Trust is a perfect example of a Statutory Law creation of the State. It
is called a living trust because someone’s life is connected to, or
associated with, the creation and termination of the trust. The entire life
span of the living trust is linked to the creator who can gift real or
personal property to the trust by a written agreement who’s structure
and content is governed by the State. While the grantor is alive, all he
puts into the living trust is a gift and the matter of ownership is clear
and concise; thus avoiding our antiquated probate system.
C
An example is the term “remedy.” Remedy is the means used or employed to force a right.
If you are in contract, you no longer have the court available to you to enforce that right. Remedies do
not apply to those who have alienated their property right by conveyance (a transfer of property).
E.G.; House Joint Resolution 192 was passed on June 5, 1933. It said; When you pass a Federal
Reserve note to purchase or buy anything, you transfer your rights with that note (contract), and, put
yourself under obligation to the IRS and/or Federal Reserve. They legally own what you purchased
with their note. Julliard v. Greenman, 110 U.S. 421 (1884).
However, living trusts CANNOT operate businesses! They are
strictly a vehicle for transferring an estate from one generation to
another. Upon the death of the creator, these Statutory Law trusts
avoid probate fees and time delays BUT they do not eliminate capital
gains taxes, estate or death taxes, generation skipping taxes, appraisal
fees, challenges in court, governmental controls, lawsuits, etc. They
also die with the death of the creator or are allowed to die a slow death
by the State.
Living trusts are also usually revocable by their creator which

allows him to “take back” the property at will, to amend, revoke, or
terminate the trust arrangement, and therefore allows others through
legal procedures to do the same. These Statutory Law trust
arrangements have specific I.R.S. code that pertains to their taxation and
therefore the assets are even accessible to them.
All is not lost on living trusts! Properly drafted “fully funded”

living trusts; along with their pour over wills, durable powers of
attorneys, medical healthcare directives with right-to-die decisions and
treatment preferences, guardianship appointment letters, deeds, etc.,
solve many major issues of your estate in an efficient manner:
♦ Elimination of Probate Court interference.
♦ No lengthy time delays – estate settled in days, not months.
♦ Allows total control during lifetime and control transfers to your successors upon your death.
♦ Easy to administrate even after death.
♦ No court interference during a period of disability.
♦ Creates no new tax forms.
♦ 100% “step-up in valuation” of all assets in the estate at date of death of the first spouse or
unmarried person solves the Gift and Capital Gain Tax problems.
♦ Double exemption from the Federal Estate Tax for couples.
♦ Provides for heirs of blended families to keep what’s theirs and not lose it to a surviving step-
parent’s heirs.
♦ Allows for times distribution to heirs, disinheriting heirs or ex-spouses, and ensuring your heirs do
not inherit a dime if they are on drugs, alcohol, etc.
♦ Prevention of your heirs losing their estate due to a judgment creditor.
♦ Uneven inheritances within the same family unit.
♦ Elimination/reduction of capital gains taxes.
INTRODUCTION TO THE CONTRACT BUSINESS TRUST
“The Trust that is NOT a trust!”
The survival of your estate - personal and/or business - IS

dependant SOLELY upon fact ... not uninformed, incomplete, and
incompetent advice disguised as fact. FEAR (False Evidence Appearing
Real) is the single deadliest enemy of the common man and the greatest
ally of the ignorant professional, or neighborhood know-it-all lawyer
and/or accountant. Until you demand a complete accounting of
evidence that will support someone’s advice ... all that you have worked
for ... or ever intend to acquire ... will continually be exposed to REAL
(Readied Enemies About to Lunge), not imagined, asset threatening
predators. Bottom line ... allowing irresponsible opinions to influence
any decision ... could mean that you have volunteered to become a
potentially unwitting victim!!!. Always demand ALL the facts before
making a decision of this nature!
Common Law trusts are really NOT TRUSTS!!! They are most
commonly referred to as a Massachusetts Business Trust
(MBT); but is also known as either a Contractual Business
Organization (CBO), an Illinois Land Trust (ILT), an
Unincorporated Business Organization (UBO), a Business
Trust Organization (BTO), a Common Law Trust (Colato), a
Pure [or Pure Equity] Trust, a Blind Trust, an Express Trust, or
a Contractual Company (CC) but they are not trusts.
The most all inclusive phase to describe the type of business

organization detailed below is to call it ... “the pure or true” (Hecht
v. Malley, 265 US 144 (1924)) type and “un-associated and non-
equitable” (Bouchard v. First People’s Trust, 148 NE 895 (1925) cf Lyndon
B. Johnson’s Foundation) “Massachusetts common law business trust
contractual organization.” A common law contract in trust form!
THE IMPORTANCE OF YOUR BUSINESS
Q. How important is your business?
Q. How important is it that your business be well organized to

offer the best protection (from liability, harassment, judgments, etc.)
and the greatest benefits?
The combination of an established, concise business goal coupled

with personal estate planning represents your lifetime building of that
business and estate. Protecting and preserving your accomplishments
should be your number ONE priority.
A BASIC BUSINESS DECISION
Every person, or group of persons, planning to enter into business

must make a basic decision at the outset. This decision will determine
such things as the benefits to be enjoyed, the risks to be assumed (and
shared? ), the problems to be avoided (or created!), and much more,
including the treatment of your business for estate purposes.
This decision concerns the form of business organization, and it

should NOT be made quickly or taken lightly!
There are, in actuality, four basic forms of business organizations

(and numerous variants) used in the United States today.
The first form, and by far the most numerous, is the Individual or
Sole Proprietor[ship]. According to the 1988 Annual Report of
the Internal Revenue Service (IRS); there were some 5,303,000+
Individual business or Sole Proprietor tax returns (Form 1040)
filed for the taxable year of 1987.
The second form most common and widely recognized form for
conducting business in 1987 was the “C” Corporation with some
1,976,500+ corporate tax returns (Form 1120) filed. Some
892,000+ American opted for the “S” Corporations (Form 1120S)
variant corporate returns for 1987.
A third form of business organization is the Partnership, limited

or general. In 1987, the IRS received 1,702,700+ Partnership tax
returns (Form 1065) from business and/or family partnerships.
Not considering Sole Proprietors; the IRS Compliance Research

1994 Update Doc 6186 for tax year 1993, the IRS received some
2,127,400+ “C” Corporation returns (or 24.9%...i.e., 2nd place);
an additional 1,905,800+ small business “S” Corporation returns
(here’s 22.3%...i.e., 3rd place); and business Partnerships came in
with another 1,567,200+ returns (and then 18.3%...i.e., 4th
place). But what’s the 1st place desired form of business in 1993?
The above mentioned three forms of business organizations; the

Sole Proprietor, Corporation, and Partnership are widely recognized and
used by the business community, their accountants, their attorneys, and
their consultants.
But there is a fourth form of business organization that is also

widely used, but is not well known among business professionals:
the “1041 Contract Business Trust”.
In 1987, some 2,336,000 plus fiduciary tax returns (Form 1041)

were filed with the IRS, including those of the Magellan Mutual Fund,
Kempler Insurance, Nuveen Funds, Edward Hines Lumber Company,
Sears Roebuck and Co. and the Sears Tower, and of most importance
“Meditrust”; whose 8,000,000 shares of “certificates of beneficial
interest” trade on the New York Stock Exchange. Other significant
contractual business trusts include Massachusetts Electric Companies,
North American Pulp & Paper Company, Adams Express Company, The
McKay Company, American Express Company, American Trust
Company, Chicago Elevated Railroads, Chicago City Railway
Company, Central Mfg. District of Chicago, American Express
Company, Postal Telegraph Company, Associated Simmons Hardware
Companies, Amoskeag Mfg. Company, Pepperell Mfg. Company, and
R. G. Dun & Company.
Likewise; on October 1, 1996, the Crabbe Huson Group, Inc., and

again on August 18, 1997, the Marcum Natural Gas Services, Inc.
(Nasdaq - MGAS), both announced their restructure from corporations
to Contractual Business Trusts to the business world.
In comparison, 1993 saw a 26% increase over 1987 in the number

of Business Trust tax returns being filed to more than 2,950,200+
fiduciary returns (an incredible 34.5% ... i.e., 1st place).
As a form of business organization; the Contract Business Trust

is not unusual. For the average business professional, along with his
attorney, his accountant, and/or his consultant, business trusts are
simply unknown! See Smith v. Anderson, British High Court (1880)
as a “point of law” that has cited several times in U.S.
[See American Jurisprudence (Am Jur), 2d, Volume 13, “Business Trust”,
pages 371-468; and California Jurisprudence (Cal Jur), 3d., Volume 15, §§
551-563 for detailed legal definitions. ]
WHAT IS A TRUST?
It is helpful to divide all trusts into two very distinct classes - (1)
those which are “birthed from our inalienable rights” and (2) those
“created by privilege of the State.”
To state it in the simplest terms, "A trust is a right of property, real

or personal, held by one party for the benefit of another."1. A trust, then,
is a contract in which an individual, variously called the Creator,
Trustor, Settlor, or Grantor, transfers property, either real or personal,
to one or more Trustees, private individuals or professional companies,
to be held or managed (under fiduciary responsibility) for one or more
Beneficiaries.
There are many types of trusts in use today for a variety of

purposes. We cannot examine them all, but they include Crummey
Trusts, Inter Vivos (during life ) Trusts, both revocable and irrevocable,
Testamentary Trusts, Generation-Skipping Trusts, Spendthrift Trusts,
Foreign Trusts, and many, many more.
WHAT IS A BUSINESS TRUST?
The “Business Trust” is a powerful entity by which individuals

may combine their resources to operate a business for profit. A
“Business Trust” is created when one or more individuals
convey/transfer/exchange legal title to assets to the trustees. The
trustees have vested power to manage and control all assets to which
title was conveyed/transferred/exchanged, and to pay the profits of the
enterprise to the persons who hold beneficial interest in the “Trust”.
The type of trust that we want to pursue is the Massachusetts or

Contract Business Trust. So what exactly is this Business Trust?
Most [honest] attorneys will readily admit that they were never
taught the mechanics of “1041 complex trusts” during their average
three years in law school. West Publishing Company, a major law book
publisher who presently publishes about 60 volumes of “Horn Books”
provides less than one volume to the subject of “Trust Law.” Likewise,
the “Corpus Juris Secundum” which contains approximate-ly 130
volumes encompassing all major subjects considered important to
American attorneys dedicates less than one volume to trusts; and the
primary subject matter discussed in that volume is the statutory inter
vivos revocable family living trust variety.
In order to clearly and thoroughly answer this question, we will

provide several complimentary definitions from authoritative legal
sources. We will then examine and explain those definitions.
"The Massachusetts or business trust, which is also called a

common-law or 1041 irrevocable complex trust, is essentially “a
contractual business organization” cast in the form (created in the
image) of a trust. It is said to have originated in Massachusetts to
circumvent a prohibition in that state against the organization of
corporations to deal in real estate."2.
"Modern cases support the view that a business trust is an

unincorporated business organization created by an instrument by which
property is to be held and managed by trustees for the benefit and profit
of such persons as may be or become the holders of transferable
certificates evidencing the beneficial interests in the trust estate."3.
"The 'Massachusetts Trust' is a form of business organization,

common in that state, consisting essentially of an agreement whereby
property is conveyed to trustees, in accordance with the terms of an
instrument of trust, to be held and managed for the benefit of such
persons as may from time to time be the holders of transferable
certificates issued by the trustees showing the shares into which the
beneficial interest in the property is divided. These certificates, which
resemble certificates for shares of stock in a corporation and are issued
and transferred in like manner, entitled the holders to share in the
income of the property, and, upon termination of the trust, in the
proceeds."4.
"The trust is a very comprehensive institution. It is as general and

as elastic as a contract. It originated and was reduced to practice under
the jurisdiction of courts by the civil law, was expanded and developed
in the courts of chancery, and has been employed in nearly every field of
human activity. Of late years, it has been and is utilized in the field of
commerce and trade as a substitute for the corporation or partnership
organization. Such a trust is created by the execution of a declaration
of trust by one or more trustees, to whom there has been, or will
presently be, transferred [more correctly exchanged]D the property or
money which is to constitute the corpus of the trust. When the express
trust is used as an agency of commerce, i.e.; having an economic reality
along with a business interest, it is commonly known as a Business
Trust, and because it finds its basis in the law of contract and does not
depend upon any statute for its existence, it is sometimes called a
"common-law trust." It may be stated as a general proposition that any
one competent to contract may make such disposition of the legal title
to his property as he pleases, may annex such conditions and limitations
to its enjoyment as he chooses, and may vest it in trustees for the
purpose of carrying out his intention. He has the same power to create
trusts as he has to alienate the legal title to his property."5.
D
An "exchange" is a reciprocal transfer of property as distinguished from the transfer of
property for money or consideration only". Treasury Regulation 118.39.112(a)1, (e). The case of Stern
v. C.I.R., 747 F.2d 555 (1984) is very important in that it relates to and gives several examples of
taxpayers exchanging stocks into a “trust” in exchange for projected future income.
"These organizations originated because of the hostility of some
states towards corporations, and due to the desire of those organizing
the same to secure some of the advantages that would be secured by
incorporating without incurring the burdens and restrictions resulting
therefrom. The chief advantages of such organizations from the
standpoint of those desirous of combining their wealth for business
purposes are that until recently they were, in most states, free from
regulation and enjoyed freedom from personal liability that is imposed
upon partners. This type of organization is nothing more than an
attempt to use the old common-law trust for the purpose of carrying on
business enterprises."6.
It is very important to construct the contractual business trust in such a

manner that every trustee, officer, manager, banking agent, etc. has a
contractual relationship to the trust agreement; otherwise, the
protection of the contract is lost. The trustee(s) must be appointed and
must accept their position by contract. The business manager(s) must
be contracted in the same manner and if they were the “exchangor(s)”
cannot have unsupervised control over the trust assets. Every interested
party to the trust must have some kind of contractual relationship with
the trust.
NECESSARY CHARACTERISTICS OF A BUSINESS TRUST
The legal definitions given above for a Business Trust describe a

flexible and efficient business organization. "The flexibility of the business
trust admits considerable latitude in adapting the organization to unusual
requirements of the particular enterprise."7. In fact, the Business Trust was
historically such an attractive vehicle for conducting business that John Sears,
in his authoritative work Trust Estates as Business Companies, maintained
that the Business Trust represented "the ideal toward which much corporate
legislation has strived, and will continue to strive, in vain."8.
[ In IRS Regulation § 301.7701-4(b), it states “There are other arrangements...which are often known as
business or commercial trusts...which normally would have been carried on through business organizations
that are classified as corporations or partnerships...[unless] if, applying the principles set forth in Sections
301.7701-2 and 301.7701-3, the organization more nearly resembles an association or a partnership than a
trust.”
Section 301.7701-2(a)(1) clarifies the characteristics of corporations. It states “There are a number of
major characteristics ordinarily found in a pure corporation which, taken together, distinguish it from other
organizations. These are: (I) Associates, (ii) an objective to carry on business and divide the gains therefrom,
(iii) continuity of life, (iv) centralization of management, (v) liability for corporate debts limited to corporate
property, and (vi) free transferability of interest.” The remainder of the Section says that “the organization
[must] more nearly resemble a corporation than a partnership or trust.” See IRS Revenue Ruling 75-258 and
Morrissey v. Commissioner (1935) 296 U.S. 344.
Section 301.7701-3(a) also defines the partnership as any group that “includes a syndicate, group, pool,
joint venture, or other unincorporated organization...which is not a corporation or a trust or estate within the
meaning of the Internal Revenue Code of 1954.”
This type of trust seeks no privileges or benefits from any government or government agency, does not have
associates, has been created for an ongoing business, expires after an arranged length of time, deliberately
has centralized management in the form of an independent trustee, is totally liable to debts, and under no
circumstances allows free transferability of interest. The trust has only three of the six characteristics and not
a preponderance of those characteristics; and is certainly not a partnership or corporate "statutory trust,"
but a separate lawful entity having its existence under the common law.
We expressly declare this type of entity to be an Organization founded upon the freedoms and rights inherent
in the common law of the Republic of these united States of America as set forth by W e T h e P e o p l e in the
Constitution of the United States, the Bill of Rights, and the original state constitutions of the several states
comprising (the union) of the United States of America.]
But the Contractual Business Trust described within this article is not
the same as the traditional "Massachusetts-type" business trust. Due to
changes in the tax laws since the 1930s, and the rise of a great deal of statute
laws regulating many aspects of both the corporation and the traditional
business trusts, the use of the Business Trust described herein has required
several modifications in order to achieve all of the desired benefits. A
properly constructed Business Trust, of the type described in this article,
established for the purpose of operating an on-going business, must possess
certain characteristics.
First, a Business Trust must be a non-grantor trust formed under the

common-law and Constitutional right of contract (See Article I, Section
10 of the Constitution of the United States ) E.
A Business Trust is often
referred to as a "common-law" trust because "it finds its basis in the law
of contract and does not depend upon any statute for its existence."9.
This raises the distinction between "statutory" trusts (i.e., those

dependent upon a specific statute for their creation) and "common-
law" trusts such as the Business Trust described here. Most trusts
formed by attorneys today are statutory in nature. This also
distinguishes the Business Trust from the Corporation.
"The right to be a corporation and to exercise corporate powers,

is derived from the state. The power which creates has the
power to destroy. The state has the right to limit the period of
existence of its creature, the corporation; to provide conditions
precedent or subsequent by laws existing at the time of its
creation, or by laws subsequently passed to destroy its existence,
for such reasons as may seem to the Legislature sufficient."10.
The Business Trust described in this article is NOT a creature of

the state or statute. It owes its existence to the common-law and
Constitutional right of contract. 11.
Second, in order to have a valid contract there must be: (a) a valid
offer and acceptance of valuable consideration; (b) two or more parties
E
"The opinion of the court after serious deliberation is that this is a contract, the obligation of
which can not be impaired without violating the Constitution of the United States... After the revolution,
the Constitution of the United States imposed this additional limitation ... that the legislative of a State
shall pass no 'law impairing the obligation of contract.' It results from this opinion, that the acts of the
legislative of New Hampshire are repugnant to the consti-tution of the United States." US Supreme
Court, Dartmouth College v. Woodward 17 US 518. Since 1819, Dartmouth College v. Woodward
has been cited by the US Supreme Court over 105 times, and by the lower Federal and State courts
over 2,365 times. It has never been reversed!
involved; (c) parties who are of legal age and competent understanding;
and (d) a termination date.
Third, there can be no division of ownership (title) in the trust assets.

In the past, traditional business trusts were normally established with
the trustee holding legal title to the trust corpus and the beneficiary
holding equitable title in the form of shares of beneficial interest. 12. But
due to changes in the tax laws, and in order to achieve all of the desired
benefits (to be discussed below); all evidences of ownership (both legal
and equitable title) must reside in the trustee. This form of absolute
ownership by the trustee is referred to as Fee Simple Absolute. This
kind of alodial ownership enables the trustee to manage and dispose of
the trust assets in whatever manner he may wish in keeping with the
terms specified by the trust document. Furthermore, the trust must be
under the administration of an independent, third party trustee. The
trust is irrevocable, it is managed by the trustee who may appoint
officers or agents.
Fourth, the Business Trust, like all trusts, must have beneficiaries.
Some companies selling UBOs F try to tell you that their UBOs have
something else. But, "a rose is a rose is a rose" no matter what you call
it. Units or Certificates of interest are still units or certificates of
interest no matter what you call them. Therefore, the receiver of any
distribution of a trust is a holder of at least one unit of interest, or a
fractional part thereof, ... ALWAYS.
F
Unincorporated Business Organization - If your Business Trust is properly set up and
managed, the beneficiaries, as beneficiaries, NEVER have any voice in the operation of the trust. The
unit holder stands in the position of simply receiving any distributions made from the trust as a result of
either operations or the sale of trust assets.
Fifth, the trust must avoid those "corporate attributes" which would
cause it to be treated and taxed like a corporation under statutory
provisions regulating corporations. The four "corporation attributes"
are:
(1) centralized management;
(2) continuity of life;
(3) limited personal liability of trustees; and
(4) easy transferability of beneficial interest in the trust.
If the trust possesses any three (3) of these attributes, it will be treated
as a corporation. 13. As long as a Business Trust established to operate
a business does not have the "attributes" of a corporation (or an old-style
Massachusetts-type trust); it will not be treated or taxed like a corporation
but rather taxed as a 1041 complex trust.
A Business Trust of the type described here is referred to as a "Pure [Equity

or Business] Trust" or a "True Trust".
WHY USE A CONTRACT BUSINESS TRUST?
In general terms, a Business Trust will provide benefits and flexibility

not available with other forms of business organization. As a result, it is
finding some new and contemporary uses G . An article in the Wall Street
Journal of June 20, 1988, p. 20, illustrates one of the many uses of a
Business Trust. Media mogul Rupert Murdock was confronted with a legal
hurdle in owning both a newspaper and a television station in the same
market. He solved the problem by placing the station into a business trust.
By doing so, Mr. Murdock divested himself of legal ownership while
G
If you have access to the Internet; using any search engine, type in the following and see that
each weeks dozens of businesses are making public announcement that they are converting to the
“business trust” mode of business: “business|trust”. Make sure you use the “pipe” key (usually the
“Shift” + “\” keys), not a vertical line symbol.
retaining effective control of the assets by means of conditions stipulated in
the trust document. Mr Murdock also retained all of the benefits derived
from the profitable operation of the trust since his News Corporation was the
trust's named "beneficiary" holder of its Capital Units.
In further indication of the growing interest in business trusts, the State

of Ohio wrote an entire chapter of their State Code (see Ohio State Code §
1746) to recognize the legitimacy of Business Trusts, and the State of
Delaware recently up-dated its statutes regarding such trusts. On June 21,
1988, the Delaware General Assembly passed Senate Bill No. 355 which
amended Part V, Title 12, of the Delaware Code by adding a new chapter
entitled "Chapter 38, Treatment of the Delaware Business Trusts". Ac-
cording to the bill's sponsor, the banking community within the state of
Delaware was a major supporter of the legislation.
The proper design and use of a Business Trust will provide at least four
important and specific benefits.
Organization. A Business Trust will provide an effective and efficient

form of business organization, very similar to a corporation but without
the above mentioned corporate attributes and far better than either a
sole proprietorships, partnerships, and better than most small
corporations, especially closely held ones.14.
Liability Protection. The proper design and use of a Business Trust

should provide the highest degree of professional liability protection.
It is a fact established at law that "the beneficiary of an ordinary trust is
not personally liable to third persons for torts committed by the
trustee."15. With a Business Trust, potential liability claims are limited
to the assets of the trust. This protection can be enhanced by separating
high-risk assets, equipment, or processes into separate trusts, and then
“triple-net” leasing the assets back from the trust. Furthermore, the
assets of a Business Trust are exempt, in the absence of a fraudulent
conveyance, within one year prior to a bankruptcy, from the claims and
actions of personal creditors.
Tax Management. A properly designed and operated Business Trust

can provide the ability to control, manage, and perhaps limit both estate
tax and current tax liabilitiesH.
[For example, the 1988 Social Security Handbook states (on page 180, at
paragraph 1115) that "A beneficiary of a trust which operates a trade or
business is not engaged in the trade or business because the trust, rather than
the beneficiary, is engaged in the activity."]
This means that a trust beneficiary, or the holder of Capital Units,

who receives passive income as a K-1 distribution, rather than as
W-2 wages, will realize a current (1997) tax savings of 13.02%
on self-employment tax or a 15.02% tax savings on the combined
corporate rate. Since many business operators pay out more in
personal Social Security tax than in personal withholding (because
it is normally computed on net business income before personal
deductions), this can constitute a significant savings!
Furthermore, a properly designed and operated Complex Business

Trust is not subject to the corporate tax on dividends. According
to the Internal Revenue Code, a trust that distributes all of its
income each year to its beneficiaries is allowed to treat such
distributions as a deduction to the trust, resulting in no taxable
income to the trust. The beneficiaries will be required to declare
the income as a taxable income on their own personal returns.16.
If the income of a complex trust is not distributed, then the trust
H
It is recommended, that all of the sections of Title 26 USC be researched thoroughly, so that
false or misleading information is not circulated to the prospective client who desires to preserve and
protect his estate. See chart at back of handout.
is required to pay the taxes (see below chart). This provides a
significant advantage over a corporate structure. Simple
contractual business trusts are required to pass all income to the
beneficiaries every year.
FEDERAL INCOME TAX RATES (1999)
TAX 1041 SINGLE/ MARRIED/

RATE TRUST INDIVIDUAL JOINT
15.0% $0 ~ 1,750 $0 ~ 25,750 $0 ~ 43,050
28.0% $1,751 ~ 4,050 $25,751 ~ 62,450 $43,051 ~ 104,050
31.0% $4,051 ~ 6,200 $62,451 ~ 130,250 $104,051 ~ 158,550

36.0% $6,201 ~ 8,450 $130,251 ~ 283,150 $158,551 ~ 283,150
39.6% $8,451 ~ $283,151 ~ $283,151 ~
Estate Planning. A Business Trust will provide important estate

considerations. Because the business, and its assets, are owned in Fee
Simple Absolute, meaning both legal and equitable title together, by the
fiduciary trustee; there is no probate, no transfer of ownership, no
disclosure of assets (i.e., privacy is maintained)I, and no estate taxes. The
I
"There is a clear distinction between an individual and a corporation, in that the latter has no
right to refuse to submit its books and papers for an examination at the suit of the State... The individual
may stand upon his constitutional rights as a Citizen. He is entitled to carry on his private business in his
own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to
divulge his business or to open his doors to investigation, so far as it may tend to incriminate him.... He
owes no duty to the State since he receives nothing therefrom beyond the protection of his life and
property... His rights are such as existed by the Law of the Land, long antecedent to the organization
of the State, and can only be taken from him by due process of the law and in accordance with the
Constitution. He owes nothing to the public so long as he does not trespass upon their rights." US
Supreme Court, Hale v. Henkle 201 U.S. 43 at 74. Since 1905, Hale v. Henkle has been cited by the
Supreme Court over 144 times, and by the lower Federal and State courts over 1,600 times. It has
never been reversed!
business itself may continue uninterrupted with a successor
operator/manager/agent appointed by the trustee, including a surviving
spouse, children, or a hired employee.
The Beneficial, or Capital Units, of the trust are regarded as

intangible personal property and can be transferable for estate
planning purposes. Should a decision be made to liquidate or sell
the business, all proceeds would be payable to the Capital Unit
holders. Because a business and its assets can form a large part
of an estate, and therefore a significant contributor to eventual
estate taxes, the value of a Business Trust in both business and
estate planning quickly becomes obvious.
WHY NOT USE A FOREIGN TRUST?
Strategies utilizing foreign situs trusts, trusts domiciled in a foreign

jurisdiction, are being used by some individuals in an attempt to protect assets
from the claims of creditors and court judgments. Such "asset protection
trusts" usually consist of a transfer of the legal title in an asset to a trust
formed in a tax-haven jurisdiction such as the Isle of Man or Jersey in the
Channel Islands, or the British West Indies. The argument is that such a
transfer of title to a foreign entity will make those assets more difficult to
reach in the event of a claim or judgment against the grantor.
While such trusts have the potential of protecting assets, they present
some potential problems.
First, a foreign situs trust can be expensive to establish and administer.

For example, the Caymen Island subsidiary of the Swiss Bank and Trust
Corporation Limited requires a $10,000 retainer, applicable toward
fees for trust services, a minimum $100,000 balance in a Trust Account
with the bank at all times, and it prefers to act as trustee for "bankable
assets" (other types of assets considered on a case-by-case basis, but the fees
double). Annual administration fees begin at $4,000 per year. In
contrast, a Business Trust of the type described and recommended in
this article generally costs from $3,000 to $8,000 to establish and
administer for the first year and from $600 to $2,000 per year thereafter
depending upon the number of trusts needed.
Second, a foreign situs trust can present a potential problem of

ownership, depending upon its design. If the trust is established with a
divided title, the trustee holding legal title and the grantor/ beneficiary
holding equitable title, and/or the grantor/beneficiary retains the right
to revoke the trust and its assets (i.e., a revocable trust as opposed to an
irrevocable trust ), both the property and the income of such a trust will
be treated as belonging to the grantor/beneficiary. The result will be
two-fold. Under current tax laws (Internal Revenue Code, Sections 671,
673 and 679), the grantor of a trust who retains a reversionary interest
will be regarded as the owner of the trust and will be taxed on the
income from the trust, thereby eliminating any potential benefits.
Furthermore, although a foreign situs trust can make assets held in trust
more difficult to reach, the equitable and reversionary interest of the
grantor or beneficiary can be the object of a suit in satisfaction of a
legal judgment.
Third, utilizing a foreign situs trust to hold assets used in a domestic

trade or business can potentially create difficulties in acquiring or
transferring clear title to assets that must be purchased, sold, held, or
transferred in the course of doing business (i.e., Foreign Withholding Tax
on any gain from the sale of U.S. assets by a foreign trust engaged in U.S.
trade or business).
Fourth, the transfer of property by a citizen or resident of the United

States to a foreign situs trust may trigger the imposition of a 35%
excise tax upon any gain recognized by the transferor as determined by
IRC Section 1491.18.
While the above mentioned potential problems may not eliminate the
need for or the use of foreign situs trusts, they should be carefully weighed
and considered when deciding whether to utilize a foreign trust as opposed to
a domestic Business Trust.
HOW TO USE A CONTRACT BUSINESS TRUST
Sole Proprietors and Partnerships. These two forms of business basically

represent individuals in business for themselves with little or no protection,
organization, or benefits. A sole proprietor or a partnership could sell all of
the business assets to a trust in consideration for non-voting Capital Units.
Such assets, in a simple situation, could include business inventory, business
equipment (computer, photocopier, desk, etc.), a business vehicle, and even
business contracts (excellent for anyone receiving 1099's as an independent
contractor). The business would now be operated as a Business Trust under
contract with the independent trustee.
Corporations. A popular form of business organization among professionals

such as physicians, dentists, chiropractors, attorneys, CPAs, insurance
brokers/agents, and other professions is the Professional Service Corporation.
These are usually small to medium-sized businesses and are usually closely
held (i.e., no publicly offered shares). We could include in this group many
other small-to-medium-sized professional corporations such as Sub-Chapter
“S” Corporations, that are closely held. In terms of professional liability
protection, estate planning, and tax management, this form of business
organization offers very limited benefits. How could such corporations
utilize the Business Trust?
First, the corporation could divest itself of all real estate/property (if,
for example, it owns the building in which it resides) by selling the property
to a Business Trust in exchange for Capital Units, and then leasing the
property from the trust. As the holder of the Capital Units, the
corporation would receive any benefit derived from the profitable
leasing operation of the trust.
Second, the corporation could divest itself of all business equipment

and/or office equipment, by selling such equipment to another separate
trust, again in consideration for its Capital Units, and then leasing the
equipment from the trust. A physician, dentist, chiropractor or other
medical professional, for example, might place all professional
equipment (x-rays, ultra-sounds, microscopes, lab equipment, examination
tables, etc.) into a trust for leasing business equipment. He might then
place all other office equipment (desks, typewriters, computers, fax
machines, filing cabinets, etc.) into a separate trust for office equipment.
Finally, the corporation itself could continue to function, receiving

payments, hiring employees, paying bills, etc., but would own few
assets (the usual targets of liability proceedings), leasing its necessary
equipment and property from the various independent trusts. Profits
generated by the trust through its leasing operations would be passed
through to its Capital Unit holders, either the corporation or the
principal who owns it. For its part, the corporation would not own any
legal or equitable title in the trust or exercise any voting rights or
control over the trustee or the activities of the trust.
FLEXIBILITY FOR BUSINESS AND ESTATE PLANNING
This process of separating and divesting assets can be as simple or as

expansive as required by each particular business situation. A sole proprietor,
partnership, or a sole professional operating as a corporation might require
only a single trust. But a dry cleaning business with several locations and a
small fleet of vehicles might need to place each location into a separate trust.
A hotel, for example, might consider placing the bar, restaurant, pool area,
and even its’ parking lot into separate trusts (a strategy in liability management
that has been very successful) as a means of either protecting an asset or
separating and isolating a potential liability.
In addition to the business planning aspect, the business person could

carry this process of separating and protecting assets even further by placing
personal assets into other trusts as part of a total estate planning strategy.
This could include a land trust (commonly referred to as an Illinois Land Trust)
for houses, improved or unimproved property, or other real estate (or notes
and mortgages secured by real estate), and establishing a separate "inter vivos"
(living) trust for other personal property. The use of the Business Trust along
with the land and living trusts contributes significantly to overall estate
planning since such trust is unaffected by the death of a beneficiary ( except for
"inter vivos" living trust), and since the shares of beneficial interest are
transferable as intangible personal property.
WHO CAN USE A CONTRACT BUSINESS TRUST?
In reality, the list of individuals and businesses that could benefit by

using a Business Trust structure is virtually endless. Any business, regardless
of its nature, size or current form of organization, is eligible to operate as a
Business Trust (i.e., as mentioned above, the Fidelity Magellan Fund, the largest
mutual fund in America, was reorganized as a Business Trust on October 1, 1984).
The following is a short list of candidates for a Business Trust:
All Sole Proprietors 1099 Independent Contractors

Accountants and CPAs Manufacturers
Doctors Dentists
Tax Preparers Pest Control Companies
Chiropractors Opticians
Attorneys Insurance Brokers/Agents
Day Care Operators Motel/Motel Owners
Franchise Operators Ministers
Churches Multi-level Sales People
Business owners Airline Pilot
Property managers Real Estate Agencies/Agents
Apartment Building, etc. Shop Owners
Service Providers Professional Services
Artists & Writers Property Owners/Managers
Restaurant Owners Health Practitioners
Sports & Gun Dealers Recreational Businesses
Rental Property Taxi Cab Drivers
Bus Drivers Veterinarians
Self-employed Business Person Auto Mechanics
Towing Operations Lien Companies
Roofers, Plumbers, Electricians, Masons, Carpenters, General Contractors, etc.
For more information on fiduciary responsibilities of the “independent” trustee of UBO’s, please
ask for the pamphlet entitled “Fiduciary Responsibilities in the Use of Trusts” available through
your “Agent.”
END NOTES and REFERENCES
1.
John H. Sears, Trust Estates as Business Companies, 2nd Edition, (Kansas
City, Vernon Law Book Company, 1921), p. 1, paragraph 1.
2.
88 American Law Reports, d., 711, paragraph 2; see also 13 American
Jurisprudence, 2nd, 375, paragraph 1; 156 American Law Reports, 27.
3.
88 American Law Reports, d., 711, paragraph 2.
4.
Hecht v. Malley, 265 U.S. 144. An important U.S. Supreme Court
decision (1923) acknowledging the legal validity of a Business Trust and
defining it in general terms.
5.
Schumann-Heink v. Folsom, 159 North Eastern Reporter 250; 328 Illinois
321. A 1927 decision by the Illinois Supreme Court acknowledging the
validity of the Business Trust and defining it in general terms.
6.
Goldwater v. Oltman, 292 Pacific Reporter 624. A 1930 decision by the
California Supreme Court regarding the nature and validity of the Business
Trust.
7.
13 American Jurisprudence, 2d, 388, paragraph 13.
8.
Sears, Trust Estates as Business Companies, p. 7, paragraph 3.
9.
Schumann-Heink v. Folsom, 159 North Eastern Reporter, 250; see also 13
American Jurisprudence, 2d, 375, paragraph 1 and also note 4 regarding the
common law status; see also 13 American Jurisprudence, 2d, 388, paragraph
13.
10.
City of New York v. Bryan, 130 Appellate Division 658 (1909), 115 New
York Supplement 551, as quoted in Sears, Trust Estates, page 5, paragraph
13.
11
The basis for the terminology “common-law trust,” in this connection, is
not that this trust is a creature of the common law, as distinguished from
equity, but that this business trust is created under the common-law of
contracts and does not depend upon any statute of the state. Brown v. Donald,
(Tex Civ App) 216 SW2d 679; Colin v. Paine, 137 Wash 566, 243 P 2, 247
P 476, 46 ALR 165; Schumann-Heink v. Folsom Ill 321, 159 NE ALR 485.
12.
Sears, Trust Estates, page 1, paragraph 1, "It implies two interests, one
legal and the other equitable; the trustee holding legal title or interest and the
cestui que trust or beneficiary holding the equitable title or interest." See also
156 American Law Reports 102, paragraph 2, "Where (as is usually the case)
the legal title to the trust property is vested in the trustees, the shareholders
have an equitable interest in the property."
13.
The most extensive treatment of corporate characteristics as they apply to
trusts is found in Outlaw v. United States, 494 F.2d, 1376-1386; see also
Morrissey v. Commissioner, 296 U.S. 344-362.
14.
13 American Jurisprudence, 2d, 378, paragraph 5, "One of the objectives
of business trusts is to obtain for the associates most of the advantages of
corporations, without the authority of any legislative act and with the freedom
from the restrictions and regulations generally imposed by law upon
corporations."
15.
13 American Jurisprudence, 2d, 405, paragraph 35; see also page 430,
paragraph 68; and 156 American Law Reports, 113, paragraph 3.
"It has been held that public policy is not offended by permitting a
business to be carried on by trustees who limit their liability to the trust
estate, nor under the prevailing view, do statutes authorizing limited
liability partnerships and corporation by implication prohibit the
creation of other types of organizations, such as business trusts,
enjoying similar immunity by virtue of the common law."
13 American Jurisprudence, 2d, 380, paragraph 6.
16.
Regarding the tax treatment of trusts that distribute current income only;
see Internal Revenue Code, section 651, which reads (in part):
"SEC. 651. DEDUCTION FOR TRUSTS DISTRIBUTING

CURRENT INCOME ONLY.
(a) Deduction. -- In the case of any trust the terms of which --
(1) provide that all of its income is required to be distributed
currently, and
(2) do not provide that any amounts are to be paid, permanently
set aside, or used for the purposes specified in section 642(c)
(relating to deductions for charitable, etc. purposes), there shall
be allowed as a deduction in computing the taxable income of the
trust the amount of the income for the taxable year which is
required to be distributed currently."
Regarding the tax treatment of trust income received by beneficiaries,

see Internal Revenue Code, section 652, which reads (in part):
"SEC. 642. INCLUSION OF AMOUNTS IN GROSS INCOME OF

BENEFICIARIES OF TRUSTS DISTRIBUTING CURRENT INCOME
ONLY.
(a) Inclusion. -- Subject to subsection (b), the amount of income
for the taxable year required to be distributed currently by a trust
described in section 651 shall be included in the gross income of
the beneficiaries to whom the income is required to be
distributed, whether distributed or not."
17.
Regarding the imposition of an excise tax upon the transfer of assets by a
U.S. citizen or resident to a foreign trust or corporation, see Internal Revenue
Code, section 1491, which reads:
"SEC. 1491. IMPOSITION OF TAX.

There is hereby imposed on the transfer of property by a citizen or
resident of the United States, or by a domestic corporation or
partnership, or by an estate or trust which is not a foreign estate
or trust, to a foreign corporation as paid-in surplus or as a
contribution to capital, or to a foreign estate or trust, or to a
foreign partnership, an excise tax equal to 35 percent of the
excess of --
(1) the fair market value of the property so transferred, over

(2) the sum of --
(A) the adjusted basis (for determining gain) of such
property in the hands of the transferor, plus
(B) the amount of gain recognized to the transferor at
the time of the transfer.
The basis for the terminology “common-law trust,” in this connection, is not that this type of
trust is a creature of the common law, as distinguished from equity, but that the business trust
is created under the common law of contracts and does not depend upon any statute of the
state. Brown v. Donald, (Tex Civ App) 216 SW2d 679; Colin v. Paine, 137 Wash 566, 243 P
2, 247 P 476, 46 ALR 165; Schumann-Heink v. Folsom,328 Ill 321, 159 NE ALR 485.
ADDITIONAL CASE LAW SUPPORTING THE USE OF
CONTRACTUAL BUSINESS TRUSTS...
A. Certificate holders are devoid of legal rights, have no officers, and must remain forever mute:
Bourchard v. First People’s Trust, 253 Mass 351, 148 NE 895
B. Right to Contract:
Schumann-Heink v. Folsom, 159 NE 250 (1927)
C. U.S. Supreme Court upholds “due process” clauses of both Fifth and Fourteenth Amendments:
Patterson v. Bank Endora, 190 US 169, 47 L Ed 1002, 23 S Ct 821 (1903);
Muller v. Oregon, 208 US 412, 52 L Ed 551, 38 S Ct 324 (1908);
Frisbie v. U.S., 157 US 160, 39 L Ed 657, 15 S Ct 586 (1895).
D. Trust contract is for private parties and not registered with state corporation commissioners:
Hodgkiss v. Northland Petroleum Consolidated, 104 Mont 328, 67 P 2d 811;
Elliott v. Freeman, 220 US 178 (1911)
E. Certificate holders enjoy greater immunity from personal liability:
Goldwater v. Oltman, 210 Cal 408, 292 P624, 71 ALR 871
F. Freedom from the burdens, restrictions, and regulations generally imposed on corporations:
Ashworth v. Hagen Estates, 165 VA 151, 181 SE 381
G. U.S. Supreme has acknowledges the trust contract as “pure” or “true”:
Hecht v. Malley, 265 US 144 (1924);
Navarro v. Lee, 446 US 458 (1980).
H. Business trusts are found in Corpus Juris Secundum, American Jurisprudence, 2d, pgs 371-468 and
California Jurisprudence, 3d., pgs 673-681.
I. Business trusts are recognized under the term “common law trust”:
88 Am Law Rpts d. 704, citing Schumann-Heink v. Folsom, 328 Ill 321, 159 NE 250,
50 ALR 485;
Burnett v. Smith, 240 SW 1007 (1922);
Baker v. Stern, 58 ALR 462.
J. Internal Revenue Regulations acknowledge Contract Trust Organizations:
Internal Revenue Regulation 301.7701-4(b) vs (a);
Berry v. McCourt, 204 NE 2d 235, 240 (1965)
K. An “exchange” is (1) a reciprocal transfer of property and (2) the giving of one thing for another in kind
and excluding money as a basis of measure:
Treasury Regulation 118.39.112(a)1.(e);
Trenton Cotton Co. v. Comm., 147 F 2d 33 (1945).
L. The owner of beneficial certificates are not owners as are stockholders, possessing ownership
or voice:
Becker v. St. Louis Union Trust Bank, 296 US 48,50; 80 L Ed 35, 56 S Ct 78
M. Certificates are personal property, have no ascertainable “fair market value”, and therefore convey no
interest in the trust property:
Estate of Anderson v. Commissioner of Internal Revenue, 8 Tax Court 706, 721;
Parker v. Monamaric Trust, 278 SE 321;
13 Am Jur 2d, page 395, §23, footnote 9.
N. No capital gains tax if the transfer, sale or exchange is made at arm’s length or if on less than adequate
consideration:
Internal Revenue Service “Federal Estate and Gift Taxation Publication,” #488;
Tyson v. CIR, 146 F 2d 50 (1944).
O. Full and adequate consideration is met by issuance of trust certificates in exchange for
property:
Carpenter v. White, CIR 80 F 2d 145
P. The measure of the gain...of an exchange is the difference between the cost...basis...fair market
value...:
Internal Revenue Code 1011 (a), (b);
Parrington v. Attorney General, LRHL 100.122
Q. No “Equitable Construction” of a tax statute, Code must be strictly construed:
U.S. v. Merriam, 263 US 179 (1923);
Commissioner v. Harrelson, 282 US 55 (1930);
Gould v. Gould, US 151.
R. Fair market value is the price...between a willing buyer and a willing seller...:
Davis v. U.S., 287 F 2d 168, 82 S Ct 805, affirmed in part and reversed in part on other grounds,
370 US 65, 82 S Ct 1190, 8 L Ed 335, Rehearing denied 371 US 854, 83 S Ct 14, 15 (1961).
S. Section 111(b) requires...capital gain be measured by “the fair market value”...received by the
taxpayer...:
Commissioner v. Marshman, CA6 279 F 2d 27, Cert. den, 364 US 918, 8 S Ct 282, 286; 5 Led 2d
259 (1960);
Maxfield v. US, 152 F 2d 593, Cert. den. 2 Cases, 327 US 791, 66 S Ct 821.90.
T. Internal Revenue Service’s definition of “fair market value” cannot change from one instance to anoth-
er: i.e.; no tax is assessed on the conveyance of property to a Trust because it constitutes a tax-
free trade and exchange for Trust Certificates, which have only a contingent future interest of
indeterminable value. Capital gains are not paid until any gain is realized. The tax is not evaded or
avoided...it is merely deferred!
Burnt v. Logan, 283 US 404 (1931)
U. Interest which terminate “on” or “before” death are not a proper subject of the Federal Estate Tax:
Knowlton v. Moore, 178 US 41, 20 S Ct 747, 44 L Ed 969 (1900);
YMCA v. Davis, 264 US 47 (1924), 44 S Ct 291, 68 L Ed 564;
Goodman v. Granger, 243 F 2d 264 (1957);
Babb v. U.S., 349 F Supp 792(1972)
V. The trust owns the property, certificate holders are not treated as co-owners:
National City Finance v. Lewis, (Cal App), 3P 2d 316, (Rehearing denied) 4 P 2d 163
Beilin v. Krenn & Dato, 350 Ill 284, 183 NE 330;
Hemphil v. Orloff, 238 Mich 508, 213 NE 867, 58 ALR 507, affd 277 US 537, 72 L Ed 978, 48 S
Ct 577, Annotation 156 ALR 32;
Goldwater v. Oltman, 210 Cal 408, 292 P624, 71 ALR 871.
W. The trust does not escape the necessity of having substance and business motives:
Thompson v. Commissioner, 631 F 2d 642, 646 (1980), Cert Denied, 452 US 961 (1981);
Edwards v. Commissioner, 415 F 2d 578, 582 (10th Circuit);
Lewis and Talor Inc. v. Commissioner, 447 F 2d 1074 (1971).
X. The fact that transactions of business are so arranged that tax consequences are highly favor-
able affords no license to the government to recast it into a mold of less advantage:
Gyro Engineering , Inc v. U.S., 415 F 2d 578, 582;
Peter Pan Seafoods, Inc. v. Commissioner, 417 F 2d 670;
Weeks v. Sibley, (D.C.) 269 2d 155
Y. When legal and equitable title, possession and control of property are legally and irrevocably passed
from the Trustor to himself as Trustee in legal contemplation, it is as though the Trustee receiving
the conveyance is another person:
Commissioner of Internal Revenue v. St. Louis Trust Bank Co, 296 US 48, 50 (1935);
Hemphill v. Orloff, 48 S. Ct. 577, 277 US 537.
Z. Property invested in the Contract trust must be fixed and irrevocable:
Becker, Collector of Internal Revenue v. St. Louis Trust Bank Co, 296 US 48, 50; 80 L Ed 35, 56
S Ct 78;
Bank of America National Trust & Savings Association v. Scully, 92 F. 2d 97 (C.A. 10, 1937).
AA. Genuine contractual obligations control the substance:
Estate of Hilton Goodwin, T.C. Memo 1976-238
AB. Trustees of the trust have the exclusive power to interpret or construe trust indenture intent and
direction:
Cohen v. U.S. Trust Securities Corporation, 40 NE 2d 282
AC. Statutes may authorize limited liability to partnerships and corporations, but those statutes do not by
implication prohibit contract trust for similar immunity by virtue of the Common Law:
Goldwater v. Oltman, 210 Cal 408, 292 P624, 71 ALR 871
AD. Contract trust trustees and beneficiaries are not associated in a joint action:
Elm Street Realty Trust, 76 TC No 68 (1981);
Morrissey v. Commissioner, 296 US 34 (1935);
Crocker v. Malley, 249 US 223 (1919);
IRS Reg 301.7701-1, 2 (a) 2;
Schumann-Heink v. Folsom, 159 NE 250 (1927), annotations 58 ALR 485;
Hecht v. Malley, 265 US 144 (1924).
AE. “Person” includes an “unincorporated organization or group”:
Uniform Commercial Code, 1201(28), General definitions;
California Civil code, Section 23038 (b);
Internal Revenue Regulation 301.7701-1(a);
Internal Revenue Ruling 73-254;
RUPA approved by the Nat’l Conference of Commissioners on Uniform State Laws (NCCUSL)
as late as November 2, 1992.
AF. Are these entities taxes as corporations or as trusts:
Commissioner v. Brouillard, 70 F 2d 154, 157, Cert. den 293 US 574 No. 152
AG. U.S. Supreme Court articulated the standard for determining the above question:
Commissioner v. Brouillard, 70 F 2d 154, 157, Cert. den 293 US 574 No. 152;
Commissioner v. Shepherd Syndicate, 70 F 2d 154, Cert den. 293 US 574 No. 152;
Commissioner v. Pryor & Lockhart Development Co., 70 F 2d 154, Cert den. 293 US 574
No. 152;
Hemphil v. Orloff, 277 US 537, 48 S Ct 577, 72 L Ed 978 cited in Brouillard, Ibid.
AH. The income from a foreign trust, not connected with conduct of business or trade within US, is not
included in gross income under subtitle A (Income Taxes)
Internal Revenue Code Sec 7701(a)(31)
AI. Transfers of real or personal property not fraudulent conveyances.
Rosemary Burns v. Commissioner TC Memo 1141, 1989 Case;
Zahra Spiritual Trust 90-2 USTC (1990);
S.J. Mayors 86-1 USTC (1986);
J. Miele 87-2 USTC (1987);
H. Almassi 92-2 USTC (1992).
AJ. Transfers to trust constitute no sale to report unsecured transaction.
Sidney & Vera Stern v. Commissioner, TC Memo 1992-374;
Alfred Schwartz et al v. US, 40-1 USTC 9369;
Frank Carpenter et al v. Thomas White, 35-1 USTC 9033.
AK. Fair market value by buyer - no reportable sale by seller.
Jerry & Edna Hall v. Commissioner, TC Memo 1993-198;
US v. Thomas Davis et al, 62-2 USTC 9509;
Bar L. Ranch Inc v. US, 70-1 USTC 9399;
Raymond Mitchell v. Commissioner, 65 TC 1099;
Tasty Baking Co v. US, 68-1 USTC 9366;
Commissioner v. Homer & Ina Mae Marshman.
AL. Trust transfers not subject to gift tax.
Estate of Monroe Anderson v. Commissioner, 8 TC 706 (A) (1947);
Letter Ruling 8634004;
Carl Weller v. Commissioner, 38 TC 790;
Eva Hull v. Commissioner, TC Memo 1962-199.
AM. Bankruptcy cash assets of trust not available to creditors.
Homer & Nancy Lou Wilson v. US, 92-2 USTC
AN. Single trust valid -- Multiple trusts valid.
Edward Stephenson Trust v. Commissioner, 81 TC 283
AO. No emergency justifies a violation of any Constitutional Provision.
No National emergency or Executive Order, including but not limited to, The Act of October 6th,
1917, as amended [12 USCS Sec, 95a] March 9, 1933, shall nullify any of the Constitutional
Protections of this "Trust Estate". "No emergency justifies a violation of any Constitutional
provision." 16 Am Jur 2nd Ed. 71, 72 "The prohibitions of the federal constitution are designed to
apply to all branches of the national government and cannot be nullified by the executive and senate
combined." Reid v. Covert, ant, US 1, 1 ~ Ed 2nd 1148 (1951)
AP A Trust may be molded and given trust whatever shape the trust Creator desires, even for probate
avoidance, it is still a lawful, irrevocable, separate legal entity.
Shaw v. Paine, 12 Allen (Mass) 293; Harwood v. Tracy, 118 MA 631. 24 S.W. 214
AQ. The Trustees of a Trust have all the powers necessary to carry out their obligations which they
assume... and their books and records are not subject to review or subpoena.
Smith v. Morse, 2CA 524; Boyd v. US, 116 US 618; Silverthorne Lumber Company v. U.S., 1251
US 385
AR. A Pure Trust Is Non-statutory.
A Pure Trust is not subject to legislative control. The supreme court holds that the Trust is created
under the realm of equity under the common law and is not subject to legislative restrictions as are
corporations and other statutory entities created by legislative authority.
Crocker v. MacCloy, 649 US Supp 39 at 270; Elliot v. Freeman, 20 U.S. 178
AS. All subjects over which the sovereign power of the state extends [i.e. corporations or other statutory
entities] are objects of taxation [and regulations], but those over which it does not extend are
exempt from taxation [and regulation]. This proposition may almost be pronounced as self-evident.
The sovereignty of the state extends to everything which exists by its authority or its permission."
McCulloch v. the State of Maryland, 4 Wheat, 316
Crocker v. Malley, 264 U.S. 144; Gleason V. Mckay 134 Mass 419; Goldwater v. Oltman, 624
AT. Other cases of interest to read:
Clagett v. Kilboume, 66 US 346;
Coleman v. McKee, 257 SW 328;
Reeves v. Powell, 267 SW 328 (1924);
Forgan v. Mackie, 232 Mich 476, 205 NW 600;
Wagoner Oil & Gas Co. v. Marlow, 278 Pacific Reporter 294, 134 Oklahoma 116;
Weber Engine Co. v. Alter, 245 Pacific Reporter 143, 120 Kansas 557, 46 American Law
Reports 158;
Newhall v. McGill, 212 Pacific Reporter 2d 764;
Wilmington Trust Co v. Wilmington Trust Co, 186 A 903; Del Ch 183;
Estate of Comer v. Commissioner of Internal Revenue, 856 F 2d 755.
MONEY LAUNDERING CONTROL ACT
THE MONEY LAUNDERING CONTROL ACT (the "Act") makes it

criminal for anyone to conduct, or attempt to conduct, certain financial
activities which involve the proceeds of unlawful activities. As the transfer
of assets into a limited partnership, trust, or other entity may constitute a
financial activity within the scope of the Act, it is necessary that you swear
under oath that none of the assets intended to be transferred into such
entities was derived from any of the criminal activities specified in the Act.
(a) The specified unlawful activities under the Act consist primarily of
drug-trafficking offenses, financial misconduct and environmental
crimes. Drug-trafficking offenses include the manufacture,
importation, sale, or distribution of controlled substances; the
commission of acts constituting a continuing criminal enterprise; and
transportation of drug paraphernalia.
(b) Covered financial misconduct includes the concealment of assets from

a receiver, custodian, trustee, marshal, officer of the court, creditors
in a bankruptcy proceeding, the Federal Deposit Insurance
Corporation, the Resolution Trust Corporation, or a similar agency or
person; the making of a fraudulent conveyance in contemplation of a
bankruptcy proceeding or with the intent to defeat the bankruptcy law;
the giving of false oaths or claims in relation to a bankruptcy
proceeding; bribery; the giving of commissions or gifts for the
procurement of loans; theft, embezzlement, misapplication of bank
funds, or funds of other lending, credit, or insurance institutions; the
making of fraudulent bank or credit institution entries, loan, or credit
applications; and mail, wire, bank fraud, bank, or postal robbery or
theft.
(c) Environmental crimes include violations of the Federal Water

Pollution Control Act, the Ocean Dumping Act, the Safe Drinking
Water Act, the Resources Conservation and Recovery Act, and similar
federal statutes.
(d) Other specified crimes include counterfeiting, espionage, kidnaping or
hostage-taking, copyright infringement, entry of goods by means of
false statements, smuggling goods into the United States, removing
goods from the custody of Customs, illegally exporting arms, and
trading with United States enemies.
Note: The Internal Revenue Service has become aware of serious widespread tax abuses
involving the use of business trust entities. The IRS notes that some promoters argue that
business trusts can eliminate all self-employment tax and most of the individuals income tax,
plus take business deductions for expenses which otherwise would be non-deductible
personal living expenses of the taxpayer. They go on to quote such cases as Schultz v.
Commissioner, 50 AFTR 2d 82-5562; Holman v. U.S. 5 AFTR 2d 84-862; Schmidt v. U.S.
68 AFTR 2d 91-5005; Zmuda v. Commissioner 53 AFTR 2d 84-1269; Wesenberg v.
Commissioner 69 TC 1005; and Smith v. Commissioner TC Memo 1986-487 to name a few.
It is important to note in the Schultz case, the courts firmly stated that “it is fundamental to
our income tax regime that personal consumption expenditures - food, clothing, travel,
education, entertainment - do not generate income tax deductions unless they are inextricably
linked to the production of income. The trust devices here [Schultz] are a transparent attempt
to transfer all of the family activities into trust activities and all the families expenses into
expenses of trust administration.” Make sure that any trust you create is for a legitimate
enterprise and not “an extension of your alter-ego!!!!!”
The Complete Book of Trusts, 2nd The Complete Book of Trusts, 2nd
By Martin M. Shenkman, JD by Martin M. Shenkman, JD
John Wiley & Sons, Inc © 1997 John Wiley & Sons, Inc © 1998
ISBN: 0-471-17044-5 ISBN: 0-471-23844-9
Papaerback edition ~ $24.95 Hardcover edition ~ $136.00
(320 pages) (432 pages w/ CD-ROM)
We all hide within our “comfort zone.” Where is your “comfort zone” based on the
above Efficacy Scale? Do you hide money? Would you use an independent trustee?
What would you do and at what cost? Asset protection and estate preservation
costs!
Chart of Tax Management benefits:
Title 26 §§ of US Code or Brief description of Section:

Code of Federal
Regulations
61 Gross Income Tax Defined

245(b) Certain Dividends Received from Wholly Owned Foreign Subsidiaries
367(a)(1) and (3)(B)(iii) Foreign Corporations ~ Transfers of Property from the United States ~ General Rule and
Exception for Transfers of Certain Property Used in the Active Conduct of a Trade or
Business ~ Paragraph Not to Apply to Certain Property
367(c)(1) Foreign Corporations ~ Transactions to Be Treated as Exchanges ~ Section 355

Distribution
367(d)(B) Foreign Corporations ~ Special Rules Relating to Transfers of Intangibles ~ in General
643(a)(3) and (6)(C) Definitions Applicable to Subparts A, B, C, and D ~ Distributable Net Income ~ Capital
Gains and Losses and Income of Foreign Trust ~
643(g)(1)(A) Definitions Applicable to Subparts A, B, C, and D ~ Certain Payments of Estimated Tax

Treated as Paid by Beneficiary ~ in General ~ in the Case of a Trust--
644(a)(1) and (2) Taxable Year of Trusts ~
645(a) Certain Revocable Trusts Treated as Part of Estate ~ General Rule
651(a)(1) and (2) Deduction for Trusts Distributing Current Income Only ~ Deduction
652(a) and (b) Inclusion of Amounts in Gross Income of Beneficiaries Of Trusts Distributing Current
Income Only ~ Inclusion and Character of Amounts
661(a)(1) Deduction for Estates and Trusts Accumulating Income Or Distributing Corpus ~ Deduction
663(a)(1); (2) and (3) Special Rules Applicable to Sections 661 and 662
667(a)(1), (2), (3); (b)(5) Treatment of Amounts Deemed Distributed by Trust in Preceding Years ~ General Rule;
and (c) Tax on Distribution ~ Multiple Distributions in the Same Taxable Year and Special Rule for
Multiple Trusts
668(a) Interest Charge on Accumulation Distributions from Foreign Trusts ~ General Rule
1.671-1(c) Grantors and Others Treated as Substantial Owners; Scope
1.671-2(a) Applicable Principles
1.671-2(b)(4) Applicable Principles
1.672(a)-1(b)(c) Definition of adverse party

1.674(a)-1(b)(3)(c) Power to control beneficial interest
1.674(b)-1(5)(1) Excepted powers exercisable by any person
1.674(b)(8) Excepted powers exercisable by any person
1.674(c)(1) Excepted powers exercisable only by independent trustees
1.674(d)(1) Excepted powers exercisable by any trustee other than grantor or spouse.
861(c)(1)(A) and (B)(ii) Income from Sources Within the United States ~ Foreign Business Requirements ~ Foreign
Business Requirements ~ in General and Active Foreign Business Income
864(b)(1)(A) and (B) Definitions and Special Rules ~ Trade or Business Within the United States ~ Performance
of Personal Services for Foreign Employer
864(c)(1)(A); (2); (3); Definitions and Special Rules ~ Effectively Connected Income, Etc. ~ General Rule;
(4)(A), (B), (D)(i)(ii); Periodical, Etc., Income from Sources Within United States--factors; Other Income from
(5)(B) and (6) Sources Within United States; Income from Sources Without United States; Rules for
Application of Paragraph (4)(B) and Treatment of Certain Deferred Payments, Etc.
872(b)(3)(A) and (B) Gross Income ~ Exclusions ~ Compensation of Participants in Certain Exchange or Training
Programs
2501(b)(2) Imposition of Tax ~ Taxable Transfers ~ Transfers of Intangible Property
7701(a)(1); (2); (5) and Definitions ~ Person; Partnership and Partner; Foreign and Fiduciary
(6)
301.7701-1(a)(1); (2); (5) Classification of organizations for federal tax purposes

and (6)
301.7701-4(b) Trusts
There are of course other sections which relate to trust income; i.e.: within and
without the United States, and connected with a trade or business, Domestic and
Foreign/Offshore Trusts. Then there are of course many Court case cites that are
available which support IRS Codes, Regulations, and Private Letter Rulings relating
to 'Trusts'. For Offshore Trusts and International Business Corporations (IBC's);
many of these IRS Codes, Regulations and Private Letter Rulings apply.
Other Readings:
Your Trustee Duties A Guide to Asset Protection

by Holmes F. Crouch By Robert F. Klueger, Esq.
All Year Tax Guides © 1998 John Wiley & Sons, Inc. © 1997
ISBN: 0-94481-752-1 ISBN: 0-471-14885-7
Asset Protection for Physicians Asset Protection Planning

by Robert J. Mintz, Esq. by Michael N. Brette, JD
w/ Richard L. Meckes, Esq.
Francis O’Brien & Sons © 1999 Griffin Publishing Group © 1997
ISBN: 0-9639971-2-2 ISBN: 1-882180-84-4
APPENDIX “A”
TABLE OF AUTHORITY
FEDERAL CASES
370 US 65, 82 S Ct 1190, 8 L Ed 335, Rehearing denied 371 US 854, 83 S Ct 14, 15 (1961)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
44 S Ct 291, 68 L Ed 564 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
5 Led 2d 259 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
80 L Ed 35, 56 S Ct 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 34
Am Jur 2d 256. Norton v. Shelby County, 118 US 178 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Ashwander v. T.V.A., 287 U.S. 288, 56 S. CT 466 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Babb v. U.S., 349 F Supp 792 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Becker v. St. Louis Union Trust Bank, 296 US 48,50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 34
Boyd v. US, 116 us 618 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Burnet v. Logan, 283 US 404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Carl Weller v. Commissioner, 38 TC 790 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Carpenter v. White, CIR 80 F 2d 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Clagett v. Kilboume, 66 US 346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Commissioner v. Brouillard, 70 F 2d 154, 157, Cert. den 293 US 574 . . . . . . . . . . . . . . . . . . . . 34
Commissioner v. Harrelson, 282 US 55 (1930) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Commissioner v. Marshman, 279 F 2d 27, Cert. den, 364 US 918, 8 S Ct 282, 286 . . . . . . . . . 33
Crocker v. Malley, 249 US 223 (1919) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Crocker v. Malley, 264 U.S. 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Davis v. U.S., 287 F 2d 168, 82 S Ct 805 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
i
APPENDIX “A”
Edward Stephenson Trust v. Commissioner, 81 TC 283 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Edwards v. Commissioner, 415 F 2d 578, 582 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Elliot v. Freeman, 20 U.S. 178 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Elm Street Realty Trust, 76 TC No 68 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Estate of Anderson v. Commissioner of Internal Revenue, 8 Tax Court 706, 721 . . . . . . . . . . 32, 35
Estate of Comer v. Commissioner of Internal Revenue, 856 F 2d 755 . . . . . . . . . . . . . . . . . . . . . 36
Estate of Hilton Goodwin, T.C. Memo 1976-238 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Eva Hull v. Commissioner, TC Memo 1962-199 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Frisbie v. U.S., 157 US 160, 39 L Ed 657, 15 S Ct 586 (1895) . . . . . . . . . . . . . . . . . . . . . . . . . 32
Goodman v. Granger, 243 F 2d 264 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Hale v. Henkle, 201 U.S. 43 at 74(1906) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Hecht v. Malley, 265 U.S. 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 32, 34
Hemphil v. Orloff, 277 US 537, 48 S Ct 577, 72 L Ed 978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Holman v. U.S. 5 AFTR 2d 84-862 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Jerry & Edna Hall v. Commissioner, TC Memo 1993-198 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Knowlton v. Moore, 178 US 41, 20 S Ct 747, 44 L Ed 969 (1900) . . . . . . . . . . . . . . . . . . . . . 33
Lewis and Talor Inc. v. Commissioner, 447 F 2d 1074 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Maxfield v. US, 152 F 2d 593, Cert. den. 2 Cases, 327 US 791, 66 S Ct 821.90 . . . . . . . . . . . 33
Morrissey v. Commissioner, 296 U.S. 344-362 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 29
Morrissey v. Commissioner, 296 US 34 (1935) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Muller v. Oregon, 208 US 412, 52 L Ed 551, 38 S Ct 324 (1908) . . . . . . . . . . . . . . . . . . . . . . . 32
ii
APPENDIX “A”
Navarro v. Lee, 446 US 458 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Outlaw v. United States, 494 F.2d, 1376-1386 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Patterson v. Bank Endora, 190 US 169, 47 L Ed 1002, 23 S Ct 821 (1903) . . . . . . . . . . . . . . . 32
Peter Pan Seafoods, Inc. v. Commissioner, 417 F 2d 670 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Raymond Mitchell v. Commissioner, 65 TC 1099 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Rosemary Burns v. Commissioner TC Memo 1141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Schmidt v. U.S. 68 AFTR 2d 91-5005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Schultz v. Commissioner, 50 AFTR 2d 82-5562 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Sidney & Vera Stern v. Commissioner, TC Memo 1992-374 . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Silverthorne Lumber Company v. U.S., 251 US 385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Smith v. Commissioner TC Memo 1986-487 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
State of Maryland, 4 Wheat, 316 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Thompson v. Commissioner, 631 F 2d 642, 646 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
U.S. v. Merriam, 263 US 179 (1923) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Wesenberg v. Commissioner 69 TC 1005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
YMCA v. Davis, 264 US 47 (1924) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Zmuda v. Commissioner 53 AFTR 2d 84-1269 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
STATE CASES
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 31, 32
4 P 2d 163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Ashworth v. Hagen Estates, 165 VA 151, 181 SE 381 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
iii
APPENDIX “A”
Beilin v. Krenn & Dato, 350 Ill 284, 183 NE 330 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Berry v. McCourt, 204 NE 2d 235, 240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Bourchard v. First People’s Trust, 253 Mass 351, 148 NE 895 . . . . . . . . . . . . . . . . . . . . . . . . . 32
Brown v. Donald, (Tex Civ App) 216 SW2d 679 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 31
Cohen v. U.S. Trust Securities Corporation, 40 NE 2d 282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Coleman v. McKee, 257 SW 328 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Colin v. Paine, 137 Wash 566, 243 P 2, 247 P 476, 46 ALR 165 . . . . . . . . . . . . . . . . . . . . 29, 31
Forgan v. Mackie, 232 Mich 476, 205 NW 600 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Gleason V. Mckay 134 Mass 419 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Goldwater v. Oltman, 210 Cal 408, 292 P624, 71 ALR 871 . . . . . . . . . . . . . . . . . . . . . . . . 32-34
Goldwater v. Oltman, 292 Pacific Reporter 624 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Harwood v. Tracy, 118 MA 631. 24 S.W. 214 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Hemphil v. Orloff, 238 Mich 508, 213 NE 867, 58 ALR 507, affd 277 US 537, 72 L Ed 978, 48 S Ct
577 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Hodgkiss v. Northland Petroleum Consolidated, 104 Mont 328, 67 P 2d 811 . . . . . . . . . . . . . . . 32
Pinkerton v. Verberg, 78 Mich. 573, 584 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Reeves v. Powell, 267 SW 328 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Schumann-Heink v. Folsom, 159 NE 250 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 34
Wagoner Oil & Gas Co. v. Marlow, 278 Pacific Reporter 294 . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Weber Engine Co. v. Alter, 245 Pacific Reporter 143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Wilmington Trust Co v. Wilmington Trust Co, 186 A 903 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
FEDERAL STATUTES
iv
APPENDIX “A”
12 USCS Sec, 95a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Internal Revenue Code, section 652 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Internal Revenue Code 1011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Internal Revenue Code of 1954 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Internal Revenue Code Sec 7701(a)(31) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Internal Revenue Code, section 1491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Internal Revenue Code, section 651 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Internal Revenue Code, Sections 671, 673 and 679 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
IRC Section 1491.18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Title 5 U.S.C. 301, 559 C1. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
OTHER AUTHORITIES
50 ALR 485 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
58 ALR 485 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
62-2 USTC 9509 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Annotation 156 ALR 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Bar L. Ranch Inc v. US, 70-1 USTC 9399 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Internal Revenue Ruling 73-254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
IRS Revenue Ruling 75-258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Tasty Baking Co v. US, 68-1 USTC 9366 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Thomas White, 35-1 USTC 9033 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
US, 40-1 USTC 9369 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
v
APPENDIX “B”
Types of Statutory Law Trust Chart
Trusts are statutory creatures - that means they are created by statutes legislated and regulated by the
several states. They are continually under the scrutiny and interference of the states. Trusts also MUST
split the “equitable” and “legal” title of the same piece of property. Trustees hold legal title while
beneficiaries look to and anticipate the equitable title sometime in the future. The following chart is only
a partial list of all the types of statutory law trusts available in the US. There are a host of other “so-
called” trusts with expensive names and fancy labels but when reduced to their basic objectives; fit into
one of the categories listed below. In either event; every entity below requires the highest degree of
fiduciary responsibility over not only the conservation of the assets but the distribution of assets, income,
interest, dividends, etc. Taxes need to be paid, investments must be wisely considered, and books still
have to be kept. Please consider the best person, individual or corporate, for the task set before them.
If using your children as fiduciaries; select the most competent, not necessarily the first born to fill those
shoes and you won’t be sorry.
Type / Name(s) of Trust: Brief description of what it does:
2503(c) Protects minor children while still qualifying for maximum gift tax benefits.
$5000 or 5% Allows a beneficiary to demand a non-accumative distribution of $5000 or 5% of the

trust assets each year in addition to any others rights to income, interest, dividends, etc.
Alimony Utilized to pay alimony to your ex-spouse insuring that the ex-spouse pays all income
taxes that arise from the trust; not the creator of the trust.
Asset Protection (APT) Usually a foreign trust created to protect assets. Also referred to domestically as an
irrevocable 1041 contractual organization. These are categorized as “common law”
trust but they are really not trusts but contracts cast in the form of a trust.
Charitable Lead Annuity This is a charitable lead trust where the payment is based on an annuity.
Charitable Lead (CLT) You give $$$ or property to the trust, the charity(ies)receive annuity payments, and your
designated beneficiary(ies) get all the principal when the trust ends.
Charitable Lead Unitrust This is a charitable lead trust where the payment is based on a unitrust payment.
Charitable Q-TIP A trust for the spouse’s benefit which upon their death is paid to a charity.
Charitable Remainder A charitable remainder trust that makes payments to you based on annuity payments (a
Annuity (CRAT) fixed percentage of the initial value of the funding assets).
i
APPENDIX “B”
Charitable Remainder This trust is funded with unencumbered but highly appreciated assets such as real estate,
(CRT) stocks, etc. The trustee sells the assets devoid of capital gains taxes. You & your
spouse receive annual income and upon death of the principal(s); the charity receives
the remainder of the principal, if any exists. Meanwhile, you get the charitable tax
contribution based on the present value of the charity’s future interest.
Charitable Remainder This is a charitable remainder trust that makes payments to you based on a fixed
Unitrust (CRUT) percentage of the assets (usually easily valued) owned by the trust each year.
Children’s Sometimes called a Minor’s Trust ...is for children, grandchildren, or other minors is
designed to qualify for the $10,000 annual exclusion.
Christofoni This provision is usually coupled with a Crummey trust to allow the same annual
exclusions be afforded even to a grantors’ grandchildren.
Complex Is allowed to accumulate income and not distribute it annually. See Simple.
Credit Shelter (CST) This trust is more commonly referred to as the “A” trust; Bypass Trust; Unified Credit
Trust, etc. is used to double the lifetime exclusion for married couples.
Crummey This trust contains unique provisions that allow you to make completed gifts for your
children that qualify for the annual exclusion amount that can be taken or refused.
Foreign Situs A trust formed in a foreign county for legal or tax benefits.
Generation Skipping Used to transfer the $1 million GST tax exemption to the grantor’s grandchildren. It
Transfer (GST) minimized the impact of extremely costly generation skipping tax transfers.
Grandchildren’s Grandparents establish this trust to provide for the education of their grandchildren.
Grantor Retained Annuity A gift made now, for which the grantor keeps receiving the income each year based on
(GRAT) annuity payments, for any number of years the grantor desires.
Grantor Retained Interest In this arrangement, the grantor retains an interest (e.g., the right to all income) for a
(GRIT) specified period of time. The principal is then given to the beneficiaries.
Grantor Retained Unitrust For a gift made now, the grantor keeps getting annual income based on the fair market
(GRUT) value of the property, for a specified period of time.
Irrevocable Life Insurance This trust is used to keep large insurance policy proceeds out of your estate. It also
(ILIT) protects valuable insurance proceeds from creditors.
Inter Vivos (Living) This is the stock, standard, “A”, “A-B”, or “A-B-C” family trust setup.
Inter Vivos Credit Shelter Allows you to use pension or IRA assets to fund a credit shelter trust to utilize your
unified credit amount.
Inter Vivos Q-TIP Permits you to fund a Q-TIP (marital) trust with pensions or IRAs.
ii
APPENDIX “B”
Irrevocable A trust that cannot be altered, amended, or changed by the creator.
Massachusetts Realty A real estate holding trust unique to the State of Massachusetts.
Medicaid Avoidance Keeps your, or your special child’s, assets safe from nursing home/Medicaid claims.
Multiple Children’s Sets up separate trust for each child. Keeps their assets safe from creditors.
Personal Residence (PRT) Used to remove your primary/vacation home from your estate at a reduced tax rate.
Pooled Income You can contribute property and in exchange participate in the investment pool
managed by the charity for the term of the trust.
Pot This is a single trust set up for all your children beneficiaries to be distributed based on
the need of each child.
Qualified Domestic Obtains maximum gift or estate tax savings by qualifying a gift or bequest to your spouse
(Q-DOT) who is not a US citizen.
Qualified Personal A trust used to remove the value of your primary/vacation home from your estate at a
Residence (QPRT) discounted gift tax rate.
Qualified Subchapter S A special trust utilized to hold “S” corporation stock without jeopardizing “S”
(QSST) corporation tax benefits.
Qualified Terminal Interest Commonly referred to as the “C” trust; it has many uses (e.g., excesses above the first
Property (Q-TIP) to die grantor’s lifetime exemption is placed inside it for federal tax deferment).
Rabbi This trust is used to provide a degree of asset protection for compensation benefits.
Revocable Just the opposite of an irrevocable trust.
Right of Election Allows a spouse the least amount of assets allowed by law with the most control over
where those assets will be distributed upon death.
Special Needs Gives protection to the assets and provides for a child/beneficiary with special needs.
Spendthrift A simple provision that prohibits assets from a beneficiary’s creditors.
Sprinkling Used with flexibility for the trustee to distribute income and assets to beneficiaries.
Unitrust A type of grantor retained or charitable remainder trust.
Voting Provides control of stock in closely held or family businesses to assure management and
operations as you determine best.
Zero Inclusion A trust for grandchildren which are planned for GST exemption.
iii

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What are some of the different types of trusts discussed in the document?

What are some of the different types of trusts discussed in the document?

What are some benefits of using a contract business trust according to the document?

What are some benefits of using a contract business trust according to the document?

A COMPREHENSIVE

The Baldwin Trust Group

Torrance Financial & Insurance Services Ltd.

COMMON LAW versus STATUTORY LAW . . . . . . . . . . . . . . . . . . 1

INTRODUCTION TO THE CONTRACT BUSINESS TRUST . . . . . . 7

THE IMPORTANCE OF YOUR BUSINESS . . . . . . . . . . . . . . . . . . . . 8

A BASIC BUSINESS DECISION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

WHAT IS A BUSINESS TRUST? . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

NECESSARY CHARACTERISTICS OF A BUSINESS TRUST

WHY USE A CONTRACT BUSINESS TRUST? . . . . . . . . . . . . . . . 18

WHY NOT USE A FOREIGN TRUST? . . . . . . . . . . . . . . . . . . . . . . . 22

HOW TO USE A CONTRACT BUSINESS TRUST . . . . . . . . . . . . . 24

FLEXIBILITY FOR BUSINESS AND ESTATE PLANNING . . . . . . 25

WHO CAN USE A CONTRACT BUSINESS TRUST? . . . . . . . . . . . 27

ADDITIONAL CASE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

THE MONEY LAUNDERING CONTROL ACT . . . . . . . . . . . . . . . . 37

TABLE OF AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . . . . Appendix A

Chancellors interpreting matters of conscience in today's moral climate gives

[END OF Mr Wood’s QUESTION & ANSWER]

"The individual may stand upon his constitutional rights as a citizen. He is

THE HISTORY OF [AMERICAN] COMMON LAW

Our American form of Common Law possesses a glorious and

First and foremost, Common Law is CONTRACTUAL RIGHT

“... [A] trust organization, consisting of a U.S. Constitutional right of

Article 6, Section 2 of the Constitution of the United States

The Great State of California reaffirmed the supremacy of the

On the other hand ...

Statutory Law binds the procedural structure and creates entities

Statutory Law entities are [hideous] creatures of the [mad

This principle is known today as The “Ashwander Doctrine”:

“... Anyone [or entity] who partakes of the benefits or privileges

The traditional probate avoidance revocable inter vivos Living

Living trusts are also usually revocable by their creator which

All is not lost on living trusts! Properly drafted “fully funded”

The survival of your estate - personal and/or business - IS

The most all inclusive phase to describe the type of business

Q. How important is your business?

Q. How important is it that your business be well organized to

The combination of an established, concise business goal coupled

A BASIC BUSINESS DECISION

Every person, or group of persons, planning to enter into business

This decision concerns the form of business organization, and it

There are, in actuality, four basic forms of business organizations

A third form of business organization is the Partnership, limited

Not considering Sole Proprietors; the IRS Compliance Research

The above mentioned three forms of business organizations; the

But there is a fourth form of business organization that is also

In 1987, some 2,336,000 plus fiduciary tax returns (Form 1041)

Likewise; on October 1, 1996, the Crabbe Huson Group, Inc., and

In comparison, 1993 saw a 26% increase over 1987 in the number

As a form of business organization; the Contract Business Trust

To state it in the simplest terms, "A trust is a right of property, real

There are many types of trusts in use today for a variety of

WHAT IS A BUSINESS TRUST?

The “Business Trust” is a powerful entity by which individuals

The type of trust that we want to pursue is the Massachusetts or