Advantages of Qualified Settlement Funds vs. Environmental Remediation Trusts

Overview

From time to time, Eastern Point Trust Company (EPTC) receives requests to create and administer a Qualified Settlement Fund (“QSF”) pursuant to 26 CFR §1.468B-1 et. seq to fund current or future liabilities (by way of example, future response or remediation requirements) arising from Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) claims (and violations of state and local environmental law).

This White Paper summarizes via a FAQ format the utilization of a QSF established and operated pursuant to 26 CFR §1.468B-1 related to funding CERCLA environmental claims (and violations of state and local environmental law) and the key advantages of a QSF over an Environmental Remediation Trust (“ERT”) established under IRC §301.7701.

The author assumes for this paper that the reader is familiar with CERLA, ERTs, the associated federal, state, and local environmental law, and the related environmental remediation liability aspects and processes.

Questions and Answers

1. What are the requirements for a QSF?

Answer: On December 23, 1993, the IRS issued a final regulation regarding Qualified Settlement Funds, which went into effect on January 1 as 26 CFR §1.468B-1 et seq., establishing the qualification and operational requirements for a QSF.

26 CFR §1.468B-1 included torts, breach of contract, violation of law, and environmental claims under CERLA as qualifying events.

According to 26 CFR §1.468B-1(c), a QSF must meet the following criteria:

“(c) Requirements. A fund, account, or trust satisfies the requirements of this paragraph (c) if -

(1) It is established pursuant to an order of, or is approved by, the United States, any state (including the District of Columbia), territory, possession, or political subdivision thereof, or any agency or instrumentality (including a court of law) of any of the foregoing and is subject to the continuing jurisdiction of that governmental authority;

(2) It is established to resolve or satisfy one or more contested or uncontested claims that have resulted or may result from an event (or related series of events) that has occurred and that has given rise to at least one claim asserting liability -

(i) Under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (hereinafter referred to as CERCLA), as amended, 42 USC 9601 et seq.; or

(ii) Arising out of a tort, breach of contract, or violation of law; or

(iii) Designated by the Commissioner in a revenue ruling or revenue procedure; and

(3) The fund, account, or trust is a trust under applicable state law, or its assets are otherwise segregated from other assets of the transferor (and related persons).”

2. Does a QSF qualify for use to fund the associated liabilities under CERCLA (e.g., future response or remediation requirements)?

Answer: Yes, a QSF, pursuant to 26 CFR §1.468B-1(c)(2)(i), qualifies to fund the associated liabilities under CERCLA if:

“it is established to “resolve or satisfy one or more contested or uncontested claims that have resulted or may result from an event (or related series of events) that has occurred and that has given rise to at least one claim asserting liability -

(i) Under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (hereinafter referred to as CERCLA), as amended, 42 USC 9601 et seq.

(ii) Arising out of a tort, breach of contract, or violation of law; or”…

As noted, 26 CFR §1.468B-1(c)(2)(i) implicitly provides for liabilities under CERCLA as eligible for QSF treatment if (pursuant 26 CFR §1.468B-1(f)(2)) the transferor’s sole remaining liability to the Environmental Protection Agency (“EPA”) upon transfer to the QSF “is a remote, future obligation to provide services or property.”

“(2) CERCLA liabilities. A transferor’s liability under CERCLA to provide services or property is described in paragraph (c)(2) of this section if following its transfer to a fund, account, or trust the transferor’s only remaining liability to the Environmental Protection Agency (if any) is a remote, future obligation to provide services or property.”

Notwithstanding the foregoing, and pursuant to 26 CFR §1.468b-1(c)(2), if, on a facts and circumstances basis, a QSF established in good faith on the then known facts would remain qualified if reopener claims arose as new claims arising from “claims that have resulted or may result from an event (or related series of events).”

Practice Note: It is common to have multiple QSFs associated with the same event. Nothing in 26 CFR §1.468B-1 et seq. prohibits the bifurcation of liabilities into multiple QSFs, each addressing different elements of the claims, different transferors, or other administrative-related segmentation. However, a QSF may not hold claims arising from an unrelated series of events.

Practice Note: As clarified in 26 CFR §1.468B-1 - Example 7 (regarding a landfill operator), there must be at least one claim asserting a liability. General business obligations are not a claim, such as a future cost to perform, even if the law nominally requires the obligation.

PLR Number: 200821019 Release Date: 5/23/2008 clarifies that the funds in the QSF must “resolve or satisfy claims described in section 1.468B-1(c)(2)” and Example 7 considered the following scenario: “There a corporation owned and operated a landfill in a state that required the corporation to transfer money to a trust annually based on the total tonnage of material placed in the landfill during the year. Under the law, the corporation is required to perform (either itself or through contractors) specified closure activities when the landfill is full, and the trust assets would be used to reimburse the corporation for these closure costs. The trust in that example is not a qualified settlement fund because it is established to secure the liability of the corporation to perform such closure activities.”

Additionally, 26 CFR §1.468B-1(c)(2)(ii) provides that claims “Arising out of a tort, breach of contract, or violation of law” qualify under the regulation. Thus, those liabilities arising from violations of state law and other environmental laws comparable to the federal CERCLA, to the extent they satisfy 26 CFR §1.468B-1(c)(2)(ii), qualify for transfer into a QSF.

Practice Note: QSFs have unique qualifications and operational requirements; the best practice is to have an independent, institutional trustee with well-established experience appointed to administer a QSF and act as the trustee. The trustee shall act on behalf of the QSF, established as a trust under state law, to enter into a Settlement Agreement between the QSF and the EPA (or other applicable state agency). The associated Settlement Agreement, incorporated into the terms of the QSF, formalizes the agreement between the trustee acting on behalf of a QSF and EPA (or other applicable state agency), defining the obligations under the QSF.

3. Does a QSF provide tax advantages over Environmental Remediation Trusts?

Answer: Yes, unlike ERTs, which provide for no Economic Performance at the time of funding, a QSF pursuant to 26 CFR 26IRC §1.468B-3(c)(1) provides for the “Economic Performance” of the “transferor” at the time of the irrevocable funding of the QSF. Accordingly, a QSF, which is properly qualified, allows a current-year tax deduction of the irrevocable funding amount(s).ⁱ

“In general. Except as otherwise provided in this paragraph (c), for purposes of section 461(h), economic performance occurs with respect to a liability described in 26 CFR §1.468B-1(c)(2) (determined with regard to 26 CFR §1.468b-1(f) and (g)) to the extent the transferor makes a transfer to a qualified settlement fund to resolve or satisfy the liability.”

By contrast, an ERT is a Grantor Trust, and each respected funder of an ERT is a “Grantor,” which retains ownership and control of the funds in the ERT, for tax purposes, and the Grantor Trust rules apply. Under the Grantor Trust rules, the funder of an ERT is the owner of the portion of the ERT contributed by that respective Grantor, as the funding does not constitute Economic Performance. Only when the ERT makes payments for the remediation project are the corresponding amounts deductible by the Grantor(s), and only in the current tax year in which the payments occur.

As such, the Grantor is not allowed to claim a deduction based solely upon the funding of the ERT.

4. May existing funds within an ERT be transferred into a QSF, and correspondingly, the transferor allowed a tax deduction at the time of the transfer?

Answer: Yes, funding transferred from an existing ERT into QSF would constitute Economic Performance and allow the “transferor” a corresponding tax deduction for the funding amount in the current tax year.

5. Does a QSF allow for installment or multiple funding by the transferor, and will the funding of a QSF be eligible for a current-year tax deduction?

Answer: Yes, 26 CFR §1.468B-1 et seq. establishes no limit on the number of funding events within the lifetime of a QSF, and each funding of a QSF shall constitute Economic Performance at the time of funding. The deduction of multiple fundings within the current year tax is likewise afforded to the transferor.

6. Environment remediation can take decades; is there a maximum duration for a QSF?

Answer: No, there is no statutory or regulatory time limit on the duration of a QSF. A QSF may operate for so long as potential liabilities are outstanding.

7. Once funded, are the assets/value of a QSF or the associated environmental remediation liability carried on the transferor’s Balance Sheet?

Answer: No, unlike an ERT, upon establishing a QSF, the transferor irrevocably transfers the funding and the associated value of the liability to the QSF. Therefore, the transferor no longer carries on their Balance Sheet the transferred portion of the environmental remediation liability or the assets held within the QSF.

Practice Note: Transferors report that the ability to remove liabilities from their Balance Sheet irrevocably provides secondary benefits of isolating liabilities and improving their reportable financial condition.

8. Does the transferor recognize the realized investment gains, interest, and dividends within a QSF as reportable income?

Answer: No, unlike an ERT (whose assets and investment gains are the transferor’s property), a QSF is responsible for its tax liability and files its own IRS Form 1120-SF (https://www.irs.gov/pub/irs-pdf/f1120sf.pdf).

Accordingly, a QSF is a separate entity, and the transferor has no ongoing accounting, tax liability, or reporting requirements related to the operation of a QSF.

Pursuant to 26 CFR §1.468B-2, a QSF is subject to taxation on its modified gross income. A QSF must file IRS form 1120-SF each tax year it exists (even if it has no assets) until terminated. The trustee/administrator of a QSF typically prepares and files the IRS Form 1120-SF along with any necessary 1099 reporting requirements that may arise from distributions made during the operation of a QSF.

Practice Note: A QSF’s tax treatment of income, distributions, deductions, and income differs materially from the rules generally governing trust taxation via IRS Form 1041. Seek the advice of an experienced QSF tax professional.

9. May excess funds in a QSF be returned to the transferor and preserve the original funding deduction?

Answer: No, if excess funds remain in a QSF upon satisfying all environmental remediation obligations and claims and the pending termination of a QSF, there is no option to revert the funds to the transferor without compromising the transferor’s original deduction of the funding. Reverting the funds to the transferor would nullify the deductibility of the original transfer in the year of funding, thereby necessitating the transferor to file an amended tax return(s) for the year(s) corresponding to the original deduction(s).

Excess funds may offset trustee/administrator expenses, tax liabilities of the QSF, accounting and legal services of the QSF, notification of claimants and claim processing expenses, or other deductions.

Practice Note: One should be conservative in funding a future liability as additional funding may be added to the QSF at any time, but generally, excess funds may not revert without impacting the qualification of the QSF (some exceptions may apply as noted in PLR Number: 200821019 Release Date: 5/23/2008). If excess funds exist, it is not uncommon for a QSF to make a charitable contribution to distribute them or transfer / escheat them to an appropriate government entity.

10. Is the transferor required to fund the entire liability into a QSF, and must the funding occur in a single funding instance or tax year?

Answer: No, a transferor may choose to fund all or any portion of the potential or actual liability for environmental remediation, into a QSF, at their discretion. The corresponding liabilities are transferred into a QSF, and Economic Performance occurs as the funding occurs.

Practice Note: When applicable, transferors have conducted studies to determine the Net Present Value of funding required to offset the liabilities. Utilizing actuarial studies and or an appropriate funding vehicle, the transferor funds the associated QSF with the Net Present Value of the liabilities. In such a circumstance, transferors have transferred the entire liability to the associated QSF. However, the transferor may only claim a tax deduction for the actual funding, not the future value of the entire transferred liability. Further, depending on the investment performance of the assets within a QSF, additional funding into a QSF may be required to fulfill the potential or actual liability for environmental remediation liabilities if they exceed the associated QSF’s available funds. A fixed-income investment vehicle such as an annuity can pre-fund and match the long-term stewardship obligations. With an appropriate inflation factor, some cleanup companies shall agree to a guaranteed fixed-price contract. (The details of such arrangements are not within this White Paper’s scope.)

11. Must a court order or approve a QSF?

Answer: No, pursuant to 26 CFR §1.468B-1(c)(1), a QSF must meet the following criteria regarding governmental approval:

“(c) Requirements. A fund, account, or trust satisfies the requirements of this paragraph (c) if -

(1) It is established pursuant to an order of, or is approved by, the United States, any state (including the District of Columbia), territory, possession, or political subdivision thereof, or any agency or instrumentality (including a court of law) of any of the foregoing and is subject to the continuing jurisdiction of that governmental authority;”

Eastern Point’s online turnkey QSF platform allows you to design a QSF in as quickly as 15 minutes and create a QSF in as little as a single day, including the necessary governmental authority approvals and the IRS granting an EIN.

12. May a transferor also transfer property, such as real estate, to fund a QSF?

Answer: Yes, pursuant to 26 CFR §1.468B-1(d), a transferor may transfer (fund) “money or property to a qualified settlement fund to resolve or satisfy claims”

“Definitions. For purposes of this section -

(1) Transferor. A “transferor” is a person that transfers (or on behalf of whom an insurer or other person transfers) money or property to a qualified settlement fund to resolve or satisfy claims described in paragraph (c)(2) of this section against that person.”

Property such as real estate may be contributed to a QSF to fund claims settlement, but not as an income-producing property. IRS regulations prescribe the method to value property transfers to a QSF properly. The initial basis for the property a QSF receives is the property’s fair market value on the date of transfer to the fund.

Practice Note: Exercise caution to ensure a fair market valuation of the transferred property, which establishes the property’s initial basis.

Summary

QSFs provide material tax and financial advantages over an ERT.

QSF Advantages:

• Funding the QSF constitutes Economic Performance, allowing the transferor to accelerate a tax deduction of funds transferred into the QSF in the current tax year of the transfer.ⁱⁱ
• For financial reporting and tax purposes, a QSF is off balance sheet as both the transferor’s liability and the associated funding transfer irrevocably to the QSF.
• QSFs can facilitate settlement agreements to capitate and settle the environmental liability of the transferor, releasing the transferor.
• QSFs can be easily established and assure regulators and interested parties that funds are irrevocably available to ameliorate environmental liabilities.
• QSF eliminates future administrative burdens associated with an ERT as the trustee assumes the QSF’s administration.
• If a corresponding settlement agreement applies, the QSF assumes the environmental liability from present and any future claims under CERCLA, state, and local law.

Today’s QSF industry provides quick, inexpensive, and easy solutions to implement a QSF to fund environmental remediation liabilities with material tax and financial advantages.

ABOUT EASTERN POINT TRUST COMPANY

Eastern Point Trust Company is a global leader in trust innovation, providing technology-empowered services to individuals, courts, and institutional clients around the world.

Eastern Point is the only “end-to-end” turnkey QSF escrow solution., As an experienced provider, Eastern Point allows for QSF creation, approval, and operation in as little as one business day for QSF of all types.