Offshore Asset Protection Trust Taxation
Attorney Amand’s article, “Should I Stay or Should I Go? The Erosion of the Offshore Asset Protection Trust and the Rise of Its Domestic Analogue,” in the June 2017 Florida Bar Journal is an excellent review of the relative merits and disadvantages of offshore asset protection trusts and their domestic counterparts.
Although I generally agree with the conclusions expressed, I believe there is one significant misstatement. The article provides that if an offshore trust does not distribute all of its income currently, the trust beneficiary will be subject to the draconian “throwback rules” when later distributions of accumulated income are received. However, the typical offshore asset protection trust is a grantor trust and, as clarified by Treas. Reg. §1.641(a)-0(b), is not subject to the throwback rules. The author correctly observes that a foreign trust settled by a U.S. person with a U.S. beneficiary would be a grantor trust, but fails to clarify that such a trust would not be subject to the throwback rules. The article should be commended as a useful analysis of offshore/domestic asset protection trust distinctions, subject to the apparent scrivener’s error.
