Virginia Law

Article 6. Allocation of Receipts: Receipts Normally Apportioned.

A. If a fiduciary determines that an allocation between income and principal required by § 64.2-1056, 64.2-1057, 64.2-1058, 64.2-1059, or 64.2-1062 is insubstantial, the fiduciary may allocate the entire amount to principal, unless subsection E of § 64.2-1038 applies to the allocation.

B. A fiduciary may presume an allocation is insubstantial under subsection A if:

1. The amount of the allocation would increase or decrease net income in an accounting period, as determined before the allocation, by less than 10 percent; and

2. The asset producing the receipt to be allocated has a fair market value less than 10 percent of the total fair market value of the assets owned or held by the fiduciary at the beginning of the accounting period.

C. The power to make a determination under subsection A may be:

1. Exercised by a co-fiduciary in the manner described in subsection F of § 64.2-1038; or

2. Released or delegated for a reason described in subsection G of § 64.2-1038 and in the manner described in subsection H of § 64.2-1038.

2022, c. 354.

A. As used in this section:

"Internal income of a separate fund" means the amount determined under subsection B.

"Marital trust" means a trust:

1. Of which the settlor's surviving spouse is the only current income beneficiary and is entitled to a distribution of all of the current net income of the trust; and

2. That qualifies for a marital deduction with respect to the settlor's estate under § 2056 of the Internal Revenue Code of 1986, as amended, because:

a. An election to qualify for a marital deduction under § 2056(b)(7) of the Internal Revenue Code of 1986, as amended, has been made; or

b. The trust qualifies for a marital deduction under § 2056(b)(5) of the Internal Revenue Code of 1986, as amended.

"Payment" means an amount a fiduciary may receive over a fixed number of years or during the life of one or more individuals because of services rendered or property transferred to the payor in exchange for future amounts the fiduciary may receive. "Payment" includes an amount received in money or property from the payor's general assets or from a separate fund created by the payor.

"Separate fund" includes a private or commercial annuity, an individual retirement account, and a pension, profit-sharing, stock-bonus, or stock-ownership plan.

B. For each accounting period, the following rules apply to a separate fund:

1. The fiduciary shall determine the internal income of the separate fund as if the separate fund were a trust subject to this chapter.

2. If the fiduciary cannot determine the internal income of the separate fund under subdivision 1, the internal income of the separate fund is deemed to equal four percent of the value of the separate fund, according to the most recent statement of value preceding the beginning of the accounting period.

3. If the fiduciary cannot determine the value of the separate fund under subdivision 2, the value of the separate fund is deemed to equal the present value of the expected future payments, as determined under § 7520 of the Internal Revenue Code of 1986, as amended, for the month preceding the beginning of the accounting period for which the computation is made.

C. A fiduciary shall allocate a payment received from a separate fund during an accounting period to income, to the extent of the internal income of the separate fund during the period, and the balance to principal.

D. The fiduciary of a marital trust shall:

1. Withdraw from a separate fund the amount the current income beneficiary of the trust requests the fiduciary to withdraw, not greater than the amount by which the internal income of the separate fund during the accounting period exceeds the amount the fiduciary otherwise receives from the separate fund during the period;

2. Transfer from principal to income the amount the current income beneficiary requests the fiduciary to transfer, not greater than the amount by which the internal income of the separate fund during the period exceeds the amount the fiduciary receives from the separate fund during the period after the application of subdivision 1; and

3. Distribute to the current income beneficiary as income:

a. The amount of the internal income of the separate fund received or withdrawn during the period; and

b. The amount transferred from principal to income under subdivision 2.

E. For a trust, other than a marital trust, of which one or more current income beneficiaries are entitled to a distribution of all of the current net income, the fiduciary shall transfer from principal to income the amount by which the internal income of a separate fund during the accounting period exceeds the amount the fiduciary receives from the separate fund during the period.

2022, c. 354.

A. As used in this section, "liquidating asset" means an asset whose value will diminish or terminate because the asset is expected to produce receipts for a limited time. "Liquidating asset" includes a leasehold, patent, copyright, royalty right, and right to receive payments during a period of more than one year under an arrangement that does not provide for the payment of interest on the unpaid balance.

B. This section does not apply to a receipt subject to § 64.2-1048, 64.2-1056, 64.2-1058, 64.2-1059, 64.2-1061, 64.2-1062, 64.2-1063, or 64.2-1066.

C. A fiduciary shall allocate:

1. To income:

a. A receipt produced by a liquidating asset, to the extent the receipt does not exceed four percent of the value of the asset; or

b. If the fiduciary cannot determine the value of the asset, 10 percent of the receipt; and

2. To principal, the balance of the receipt.

2022, c. 354.

A. To the extent a fiduciary does not account for a receipt from an interest in minerals, water, or other natural resources as a business under § 64.2-1050, the fiduciary shall allocate the receipt:

1. To income, to the extent received:

a. As delay rental or annual rent on a lease;

b. As a factor for interest or the equivalent of interest under an agreement creating a production payment; or

c. On account of an interest in renewable water;

2. To principal, if received from a production payment, to the extent subdivision 1 b does not apply; or

3. Between income and principal equitably, to the extent received:

a. On account of an interest in nonrenewable water;

b. As a royalty, shut-in-well payment, take-or-pay payment, or bonus; or

c. From a working interest or any other interest not provided for in subdivision 1 or 2 or subdivision a or b.

B. This section applies to an interest owned or held by a fiduciary whether or not a settlor was extracting minerals, water, or other natural resources before the fiduciary owned or held the interest.

C. An allocation of a receipt under subdivision A 3 is presumed to be equitable if the amount allocated to principal is equal to the amount allowed by the Internal Revenue Code of 1986, as amended, as a deduction for depletion of the interest.

D. If a fiduciary owns or holds an interest in minerals, water, or other natural resources before July 1, 2022, the fiduciary may allocate receipts from the interest as provided in this section or in the manner used by the fiduciary before July 1, 2022. If the fiduciary acquires an interest in minerals, water, or other natural resources on or after July 1, 2022, the fiduciary shall allocate receipts from the interest as provided in this section.

2022, c. 354.

A. To the extent a fiduciary does not account for receipts from the sale of timber and related products as a business under § 64.2-1050, the fiduciary shall allocate the net receipts:

1. To income, to the extent the amount of timber cut from the land does not exceed the rate of growth of the timber;

2. To principal, to the extent the amount of timber cut from the land exceeds the rate of growth of the timber or the net receipts are from the sale of standing timber;

3. Between income and principal if the net receipts are from the lease of land used for growing and cutting timber or from a contract to cut timber from land, by determining the amount of timber cut from the land under the lease or contract and applying the rules in subdivisions 1 and 2; or

4. To principal, to the extent advance payments, bonuses, and other payments are not allocated under subdivisions 1, 2, or 3.

B. In determining net receipts to be allocated under subsection A, a fiduciary shall deduct and transfer to principal a reasonable amount for depletion.

C. This section applies to land owned or held by a fiduciary whether or not a settlor was cutting timber from the land before the fiduciary owned or held the property.

D. If a fiduciary owns or holds an interest in land used for growing and cutting timber before July 1, 2022, the fiduciary may allocate net receipts from the sale of timber and related products as provided in this section or in the manner used by the fiduciary before July 1, 2022. If the fiduciary acquires an interest in land used for growing and cutting timber on or after July 1, 2022, the fiduciary shall allocate net receipts from the sale of timber and related products as provided in this section.

2022, c. 354.

A. If a trust received property for which a gift or estate tax marital deduction was allowed and the settlor's spouse holds a mandatory income interest in the trust, the spouse may require the trustee, to the extent the trust assets otherwise do not provide the spouse with sufficient income from or use of the trust assets to qualify for the deduction, to:

1. Make property productive of income;

2. Convert property to property productive of income within a reasonable time; or

3. Exercise the power to adjust under § 64.2-1038.

B. The trustee may decide which action or combination of actions in subsection A to take.

2022, c. 354.

A. As used in this section, "derivative" means a contract, instrument, other arrangement, or combination of contracts, instruments, or other arrangements, the value, rights, and obligations of which are, in whole or in part, dependent on or derived from an underlying tangible or intangible asset, group of tangible or intangible assets, index, or occurrence of an event. "Derivative" includes stocks, fixed income securities, and financial instruments and arrangements based on indices, commodities, interest rates, weather-related events, and credit-default events.

B. To the extent a fiduciary does not account for a transaction in derivatives as a business under § 64.2-1050, the fiduciary shall allocate 10 percent of receipts from the transaction and 10 percent of disbursements made in connection with the transaction to income and the balance to principal.

C. Subsection D applies if:

1. A fiduciary:

a. Grants an option to buy property from a trust, whether or not the trust owns the property when the option is granted;

b. Grants an option that permits another person to sell property to the trust; or

c. Acquires an option to buy property for the trust or an option to sell an asset owned by the trust; and

2. The fiduciary or other owner of the asset is required to deliver the asset if the option is exercised.

D. If this subsection applies, the fiduciary shall allocate 10 percent to income and the balance to principal of the following amounts:

1. An amount received for granting the option;

2. An amount paid to acquire the option; and

3. Gain or loss realized on the exercise, exchange, settlement, offset, closing, or expiration of the option.

2022, c. 354.

A. Except as otherwise provided in subsection B, a fiduciary shall allocate to income a receipt from or related to an asset-backed security, to the extent the payor identifies the payment as being from interest or other current return, and to principal the balance of the receipt.

B. If a fiduciary receives one or more payments in exchange for part or all of the fiduciary's interest in an asset-backed security, including a liquidation or redemption of the fiduciary's interest in the security, the fiduciary shall allocate to income 10 percent of receipts from the transaction and 10 percent of disbursements made in connection with the transaction and to principal the balance of the receipts and disbursements.

2022, c. 354.

A fiduciary shall allocate receipts from or related to a financial instrument or arrangement not otherwise addressed by this chapter. The allocation must be consistent with §§ 64.2-1061 and 64.2-1062.

2022, c. 354.