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Who Would Have Thought: Charitable Trusts As a Viable Entity

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Who Would Have Thought: Charitable Trusts As a Viable Entity WHO WOULD HAVE THOUGHT: CHARITABLE TRUSTS AS A VIABLE ENTITY DARREN B. MOORE Bourland, Wall & Wenzel, P.C. 301 Commerce Street, Suite 1500 Fort Worth, Texas 76102 (817) 877-1088 E-mail: [email protected] Twitter: @darrenbmoore State Bar of Texas GOVERNANCE OF NONPROFIT ORGANIZATIONS COURSE August 23-24, 2012 Austin, Texas Information set forth in this outline should not be considered legal advice, because every fact pattern is unique. The information set forth herein is solely for purposes of discussion and to guide practitioners in their thinking regarding the issues addressed herein. All written material contained within this outline is protected by copyright law and may not be reproduced without the express written consent of Bourland, Wall & Wenzel. ©Bourland, Wall & Wenzel, P.C. Who Would Have Thought: Charitable Trusts as a Viable Entity Chapter X DARREN B. MOORE Bourland, Wall & Wenzel, P.C. 301 Commerce Street Fort Worth, Texas Phone: (817) 877-1088 Email: [email protected] Twitter: @darrenbmoore Mr. Moore practices with Bourland, Wall & Wenzel, P.C., a Fort Worth, Texas law firm which represents individuals, closely held and family businesses, professional practices and charitable organizations within its areas of legal practice. Mr. Moore was born in Lubbock, Texas on December 11, 1973. He earned a B.A., cum laude, from Texas A&M University and his J.D., magna cum laude, from Baylor Law School where he served as Editor in Chief of the Baylor Law Review. Mr. Moore was admitted to practice law in Texas in 2000 and before the United States District Court, Northern District of Texas and United States Tax Court in 2001. He is a member of the State Bar of Texas; Tarrant County Bar Association; American Bar Association (Business Law Section, Section of Taxation); College of the State Bar; and is a Fellow of the Texas Bar Foundation. He has been named a “Rising Star” by Texas Super Lawyers in 2009, 2010, 2011, and 2012. Mr. Moore’s practice focuses on representation of tax-exempt organizations. Mr. Moore advises clients on a wide range of tax and legal compliance issues including organization of various types of exempt entities, obtaining and maintaining tax-exempt status, risk management, employment issues, governance, and other business issues, as well as handling litigation matters on behalf of his exempt organization clients. Mr. Moore is an adjunct professor at Baylor Law School where he has taught Nonprofit Organizations since 2001. Additionally, he writes and speaks regularly on tax and legal compliance issues including co-authoring the third edition of Bourland, Wall & & Wenzel, P.C.’s publication, Keeping Your Church Out of Court. Who Would Have Thought: Charitable Trusts as a Viable Entity Chapter X TABLE OF CONTENTS I. INTRODUCTION .................................................................................................................................................. 1 A. Definition ............................................................................................................................................................. 1 B. As Distinguished from Private Trusts .................................................................................................................. 1 C. Split Interest Trusts and Section 4947 ................................................................................................................. 2 D. As Distinguished from Nonprofit Corporations ................................................................................................... 3 II. WHAT LAW GOVERNS CHARITABLE TRUSTS? .......................................................................................... 3 A. Texas Trust Code ................................................................................................................................................. 3 B. UPIA .................................................................................................................................................................... 4 C. Common Law (especially law of cy pres, equitable deviation) ........................................................................... 5 D. Chapter 123 Texas Property Code ....................................................................................................................... 5 III. HOW ARE CHARITABLE TRUSTS GOVERNED? ........................................................................................... 6 IV. WHEN IS A CHARITABLE TRUST PARTICULARLY VIABLE (OR NOT)? ................................................ 7 A. Grantmakers, Endowments, and Other Non-Operating Entities .......................................................................... 7 B. Operating Entities ................................................................................................................................................ 7 C. Tax Issues ............................................................................................................................................................. 7 V. HOW IS A CHARITABLE TRUST CREATED? ................................................................................................. 7 A. What Provisions Must Be Included? .................................................................................................................... 7 B. What Provisions Should Be Considered? ............................................................................................................. 8 1. Trust Protector .................................................................................................................................................. 8 2. Governance Options ......................................................................................................................................... 8 3. Exculpation of Trustees .................................................................................................................................... 8 4. Relaxation of Fiduciary Standards ................................................................................................................... 9 5. Indemnification Provisions .............................................................................................................................. 9 6. Amendment Provisions .................................................................................................................................... 9 7. Mandatory Distribution Provisions .................................................................................................................. 9 8. Resignation Provisions ..................................................................................................................................... 9 9. Termination .................................................................................................................................................... 10 10. Compensation ................................................................................................................................................. 10 VI. WHAT ARE THE FILING REQUIREMENTS OF CHARITABLE TRUSTS? ................................................ 10 VII. HOW IS A CHARITABLE TRUST CONSTRUED, MODIFIED OR TERMINATED? .................................. 11 A. Declaratory Judgment to Construe the Terms of a Trust ................................................................................... 11 B. Judicial Modification or Termination of a Trust ................................................................................................ 11 C. Parties Who May Bring a Construction, Modification or Termination Action .................................................. 12 D. Necessary Parties That Must Be Joined ............................................................................................................. 13 E. Jurisdiction ......................................................................................................................................................... 13 1. Jurisdiction Under the Property Code ............................................................................................................ 13 2. Jurisdiction Under the Probate Code .............................................................................................................. 14 F. Federal Tax Issues Related to Termination ........................................................................................................ 14 VIII. HOW IS A CHARITABLE TRUST CONVERTED? ......................................................................................... 15 A. Conversion of a Corporation to a Trust .............................................................................................................. 15 B. Conversion of a Trust to a Corporation .............................................................................................................. 15 IX. CONCLUSION .................................................................................................................................................... 16 APPENDIX A: SAMPLE DECLARARTION OF TRUST (IRS Form) ...................................................................... 17 APPENDIX B: SAMPLE DECLARATION OF TRUST (BWW) .............................................................................. 20 APPENDIX C: SAMPLE NOTICE TO THE ATTORNEY GENERAL ..................................................................... 35 APPENDIX D: SAMPLE AFFIDAVIT ......................................................................................................................
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