A non grantor complex Massachusetts trust has a North Carolina trustee and one beneficiary in Massachusetts. There is no Massachusetts sourced income to the trust such as real estate rental income, only income and gains is from stock and bond portfolio. Should the trustee file a Massachusetts or NC trust tax return along with the federal return? The trust language allows the trustee discretion to allocate income and capital gains back to the corpus if desired or to distribute. However, trustee has been distributing 3 percent per year. Does Massachusetts and NC law allow capital gains to be distributed to the beneficiary?
ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:
Massachusetts will look to see if the trust is a “resident trust”. There are two types. A testamentary trust (a trust created through the decedent will is one. The other is an inter vivos trust (a trust created during the grantor’s life). To trigger a resident trust status for an inter vivos trust the following conditions must exist: At least one of the trustees is a Mass resident AND (1) at least one of the grantors was a Mass inhabitant when the trust was created or (2) at least one of the grantors resided in Mass during any part of the year for which the income is computed or (3) at least one of the grantors died a Mass resident.
If your trustee is an individual, it does not seem from your description that a return will be needed. However, if a business which also has locations in Massachusetts is the trustee, Mass will tax the trust. There was a case decided last year against Bank of America on that issue.
Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.
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