Massachusetts Trust

A unique way to organize a business where the property is bought by, or transferred to, a trustee (such as a trust company) and the trustee issues trust units, which the investors, or their designates, hold as beneficiaries.

This is a not uncommon way to structure a large real estate purchase so as to avoid taxation.

In Eliot v Freeman (1911), the government of the day tried to tax Massachusetts trust based in Boston. The trust argued that there was no statutory authority (at that time) to tax a trust; only a corporation.

The government said that since the Massachusetts trust "walked like" a Corporation and "quacked like" a corporation, it must be taxable as was a corporation.

Of course, one of the primary considerations of organizing investments in the form of a trust was to avoid the taxation then set upon the income of corporations (but not upon trusts).

In Eliot v Freeman, the Supreme Court of the United States (Justice Day) wrote that the Massachusetts trust was not taxable:

"In (this case), the question is raised as to the right to lay a tax under the statute upon a certain trust, formed for the purpose of purchasing, improving, holding and selling lands and buildings in Boston, known as the Cushing Real Estate Trust.

"By the terms of the trust the property was conveyed to certain trustees, who executed a trust agreement whereby the management of the property was vested in the trustees, who had absolute control and authority over the same, with right to sell for cash or credit, at public or private sale, and with full power to manage the property as they deemed best for the interest of the shareholders. The shareholders are to be paid dividends from time to time from the net income or net proceeds of the property, and 20 years after the termination of lives in being, the property to be sold and the proceeds of the sale to be divided among the parties interested.... No shareholder had any legal title or interest in the property and no right to call for the partition their of during the continuance of the trust.

"Under the terms of the corporation tax law, corporations ... must be 'organized under the laws of the United States'.... The pertinent question in this connection it is: are these trusts organized under the laws of the state?

"A trust of the character of those here involved can hardly to be said to be organized within the ordinary meaning of that term. It certainly is not organized under statutory laws as corporations are.... These trusts do not have perpetual succession, but end with lives in being and 20 years thereafter."

For want of a term at the time, as trust law was just coming into its own, Justice Day used the corporation law term shareholder to refer to the beneficiaries of the trust, which lends some confusion to a modern-day analysis of the reasons.

Many, but not all, of the tax avoidance advantages associated with investing through trusts - as opposed to individually or through corporations - have been eliminated by the government's exercise of its statutory authority to to tax the income flowing to trusts, often through the use of it's extraordinary powers of legal fictions.

REFERENCES:

Eliot v Freeman 220 US 178 (1911)