Exploring the Distinctions Between Delaware Statutory Trusts and Deferred Sales Trusts

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Introduction:

In the realm of estate planning, asset protection, and tax optimization, there are a multitude of strategies and vehicles available to individuals and businesses. Two such tools that have gained attention in recent years are Delaware Statutory Trusts (DSTs) and Deferred Sales Trusts (deSTs). While their acronyms might appear similar, these two trusts serve distinct purposes and exhibit unique characteristics. 

Delaware Statutory Trusts (DSTs)

A Delaware Statutory Trust (DST) is a legal entity established under Delaware law. DSTs are widely used in real estate investments, particularly in 1031 exchanges, which allow property owners to defer capital gains taxes by reinvesting the proceeds from the sale of a property into a like-kind property. DSTs provide investors with an opportunity to pool their resources and invest in institutional-grade properties, such as apartment complexes, commercial buildings, and industrial facilities.

DST investors are typically passive, enjoying the benefits of property ownership without the active management responsibilities. Like limited liability companies (LLCs), DSTs offer limited liability protection for investors. DSTs facilitate 1031 exchanges, allowing investors to defer capital gains taxes on the sale of a property by reinvesting in a DST property whereby investors can access a diversified real estate portfolio and spread risk across different property types and locations.

Deferred Sales Trusts (deSTs): 

A Deferred Sales Trust (deST), on the other hand, is a financial arrangement used primarily for the sale of highly appreciated assets, such as real estate, businesses, or stocks. The deST is not a recognized legal entity; rather, it is a contractual arrangement between the seller and a third-party trust facilitator. The seller transfers the asset’s ownership to the trust, which then sells the asset to a buyer. The sale proceeds are invested, generating potential income for the seller over time.

A primary objective of a deST is to defer capital gains taxes from the sale of appreciated assets, potentially providing the seller with a significant tax advantage. Sellers receive periodic payments from the trust, often structured as annuity-like payments, providing a source of income. deSTs offer more flexibility in investment options compared to traditional 1031 exchanges, potentially including a wider range of assets beyond real estate. deSTs are contractual agreements, not recognized legal entities like trusts or corporations.

Differences and Considerations

DSTs primarily cater to real estate investors seeking to defer capital gains taxes, while deSTs offer a broader application for individuals looking to defer taxes on various appreciated assets. DSTs are established legal entities under Delaware law, while deSTs are contractual arrangements facilitated by a third-party trustee. DST investors are usually passive, whereas deST sellers might have more control over their investments through the trust’s chosen asset allocation. Both DSTs and deSTs offer tax deferral benefits, but the specifics of the tax treatment may differ depending on the nature of the asset and the chosen strategy.

DSTs are widely accepted as allowable property acquirable in a 1031 exchange. However, the IRS has raised concerns about the legitimacy of some deST structures. As a result, the IRS has been closely examining the compliance of DST arrangements with existing tax laws, particularly focusing on the proper valuation of assets, the timing of the deferred payments, and whether the primary purpose of the trust is indeed for legitimate investment purposes rather than tax avoidance.

Conclusion: 

Delaware Statutory Trusts (DSTs) and Deferred Sales Trusts (DSTs) offer distinct advantages to investors seeking tax-efficient solutions. It is essential for individuals and businesses to carefully consider their specific financial goals, risk tolerance, and legal implications when choosing between these two strategies, and seeking guidance from financial and legal professionals is crucial to making informed decisions.

Discover the potential of Delaware Statutory Trusts and Deferred Sales Trusts in estate planning, asset protection, and tax optimization. Every tool serves a unique purpose – understand these distinctions and make them work to your advantage.

Voss Real Estate Advisors

November 15, 2023

DST

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