Overview of New Section 385 Regulations

The IRS has issued final and temporary regulations under Code Section 385. These provisions, intended to limit earnings stripping, will enhance the IRS’ ability to characterize related party ownership arrangements, purportedly established as debt, as equity instead.

One set of rules provides prerequisite requirements …

Recent News

27 Sep 2020

Florida Irrevocable Trust Amendment Mechanisms

For many years, we have published a diagram that lists and provides information on the mechanisms under Florida law available to modify irrevocable trusts, both judicially and non-judicially. There have been 1000+ downloads of the diagram, attesting to the interest in this topic and how often people want to amend an irrevocable trust.

My partner, Jenna Rubin, recently summarized a Florida case (Demircan v. Mikhaylov) on the ability of a settlor and beneficiaries to modify an irrevocable trust.You can read the summary on her Rubin on Probate Litigation blog here.

The summary diagram has now been updated to include the new case.

Previously, the diagram was posted as a PDF or a text file, and not in its native mindmap formula, because of its size. Because of its size, it was hard to read. The mindmap program (MindManager) now allows a cloud posting which allows easier and full access. To view the updated diagram, click on the link: http://RubinOnTax.tinyc.co/IrrevocTrustMechanisms.

25 Sep 2020

Demircan v. Mikhaylov

By Jenna G. Rubin

This Third DCA case addresses several elements of Florida trust law, with a focus on the ability to modify an irrevocable trust under the Florida common law. It involved an irrevocable trust established by the settlor for the benefit of his children, which initially appointed an independent trustee and a third party with trustee removal powers. When disagreements arose between the settlor and the beneficiaries against the trustee and the third party, litigation ensued.

24 Sep 2020

Lopez v. Hernandez

By Jenna G. Rubin

This decision deals with the ability of the probate court to impose personal liability for attorney’s fees and costs. Here, the court entered an order addressing fees and costs sought by the attorney for one of two feuding brothers.

23 Sep 2020

New Case on Loan vs. Gift

In a low-interest rate environment, loans by wealthy parents to children often makes sense from a planning perspective. If the recipient can invest the proceeds and earn more than the low interest rate charged, the net profit is effectively transferred without a taxable gift.

It is important that the loan be respected as a loan and not a gift. A recent Tax Court Memorandum decision dealt with this issue. In the case, the taxpayer had made significant loans over time from 1984 to 2007. The issue was whether these were bona fide loans or taxable gifts.

The Tax Court noted the traditional factors in determining whether a transfer is a loan or a gift – namely these factors support a loan: ( 1) there was a promissory note or other evidence of indebtedness, (2) interest was charged, (3) there was security or collateral, (4) there was a fixed maturity date, (5) a demand for repayment was made, (6) actual repayment was made, (7) the transferee had the ability to repay, (8) records maintained by the transferor and/or the transferee reflect the transaction as a loan . . .

25 Aug 2020

Congratulations to Jenna Rubin – RPPTL Rising Star Award Recipient

Jenna G. Rubin received the 2019-2020 Real Property, Probate and Trust Law Section (“RPPTL”) Rising Star Award. The Rising Star honor recognizes members of the RPPTL section of the Florida Bar who demonstrate the potential for future leadership through their active participation in section committees and projects. It may be awarded annually to a member of each of the divisions of the section who have made significant contributions to the section. Jenna currently serves as a Vice Chair of the RPPTL Trust Law Committee, the Ad Hoc Committee on Electronic Wills and the Elective Share Review Committee. She was recognized for her contributions to those Committees as well as her writing and speaking for the Section. Congratulations Jenna!

A boutique law firm with a practice limited to

tax, estate planning, probate, trust & guardianship law and litigation, and related commercial matters