Failure to follow the trust document is a breach of fiduciary duty. While the income is deemed distributed for income tax purposes resulting in the income beneficiary paying taxes on the income distributed, failure to actually distribute the accounting income is a breach of duty by the trustee. There are Tax Court cases that hold the failure to make a mandatory income distribution is a taxable gift by the income beneficiary. At the death of the income beneficiary, there is a potential estate tax problem caused by the failure to make actual distributions of the mandatory income distribution. The fiduciary will have little to support why they did not follow the trust document and make actual distributions which caused the estate tax problem. I highly encourage the trustee to make actual distributions of the accounting income which is required by the trust document. Never let to tax tail wag the dog.
Answered on May 22nd, 2013 at 7:35 PM