1. G creates a trust for the benefit of children. Which provision would be necessary to prevent the trust from bring includible under §2036, especially taking into account 20.2036-1(b)(2)? A. The Trustee has full discretion to pay income and principal to the children. B. The Trustee cannot make distributions that pay for a minor child’s food, clothing and shelter. C. The Trustee cannot make distributions that pay for a year long luxury cruise around the world for the child. D. The Trustee cannot make distributions that would be subject to GST tax.
Section 2036 of the Internal Revenue Code includes in a decedent's gross estate the value of any interest in property transferred by the decedent during their lifetime, if they retained certain rights or interests in the property. Treasury Regulation 20.2036-1(b)(2) provides that a decedent is considered to have the possession or enjoyment of transferred property if the enjoyment of the property is subject to a condition within the decedent's control. To prevent the trust from being included under §2036, the grantor (G) should not retain any right to the income from the property or the right to designate the persons who shall possess or enjoy the property. Therefore, the provision that would be necessary to prevent the trust from being includible under §2036 would be: A. The Trustee has full discretion to pay income and principal to the children. This provision ensures that the grantor does not retain any control over the enjoyment of the property, which would trigger inclusion under §2036. The trustee, not the grantor, has the discretion to distribute the income and principal to the children.
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