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Understanding the Taxation and Benefits of Qualified Settlement Funds (QSFs)

November 22, 2024

Qualified Settlement Funds (QSFs) help manage settlement proceeds with tax advantages and protection for all parties. Learn how a QSF can benefit your case.

Qualified Settlement Funds (QSFs), or 468B Trusts, are tax-qualified trusts designed to manage the proceeds from litigation settlements and judicial awards. These unique financial tools offer many advantages for plaintiffs, defendants, lawyers, and settlement administrators but also have tax implications. Here, we review the Taxation and Benefits of Qualified Settlement Funds.

What Is a Qualified Settlement Fund?

As per Section 1.468B-1 et seq. of the Internal Revenue Code (IRC), Qualified Settlement Funds operate solely to resolve certain types of litigation, allowing the defendant to deposit funds into a trust and receive a full release of liability. They first arose from class action lawsuits and are now commonly used in various cases, including personal injury actions and other cases involving multiple plaintiffs.

The fund may be a trust, an account, or even a segregated portion of the transferor’s assets. Although a written trust agreement is generally a good practice, an attorney’s trust account could theoretically serve as a QSF. However, particular rules apply to the fund’s establishment and operation.

man on mountain top of taxes holding QSF flag

Key Features of a QSF

  1. Easy: With QSF 360, Qualified Settlement Funds are quick, easy, and straightforward to establish and maintain.
  2. Tax Benefits: Defendants can get an immediate tax deduction, while Plaintiffs can defer their income.
  3. Flexibility: Plaintiffs can plan when and how to be paid.
  4. Release of Liability: Defendants receive a full release of liability once they deposit the funds into the QSF.
  5. Orderly Administration: § 468B Trusts also offer an orderly way to manage and distribute settlement proceeds.
  6. Advantages of Qualified Settlement Funds: a win-win solution for all parties involved in litigation; they provide defendants with a quick exit strategy, plaintiffs with financial control, attorneys with flexible fee structures, and even help settlement administrators by simplifying the process.

Advantages for Defendants

Defendants can benefit from Qualified Settlement Funds in several ways:

  • Immediate Release from Litigation: Defendants can extricate themselves from litigation by depositing the agreed settlement amount into the § 468B trust. The plaintiffs can then take their time in allocating the settlement among themselves and dealing with various liens.
  • Immediate Tax Deduction: Instead of waiting for “economic performance” to occur, defendants and their insurers can obtain immediate tax deductions.

Advantages for Plaintiffs

Plaintiffs also stand to gain from the use of Qualified Settlement Funds:

  1. Control Over Settlement Allocation: With the defendant out of the picture, the plaintiff has greater flexibility in dividing the settlement among injured parties, often leading to more advantageous outcomes.
  2. Immediate Income from Settlement: The plaintiff may start immediately receiving income from the settlement once received by the § 468B trust.
  3. Time for Negotiations: A § 468B settlement trust gives the plaintiff extra time to negotiate and satisfy liens from Medicare, Medicaid, ERISA, and third-party insurers.
  4. Choice of Distribution Methods: The plaintiff can decide how much of the settlement to take as a lump sum and how much to structure.
  5. Resolution of Conflicts Among Plaintiffs: If a lawsuit involves multiple plaintiffs with conflicting interests, a Qualified Settlement Fund can provide time to resolve these conflicts.

The low cost of QSF 360 to establish a QSF is typically overwhelmingly outweighed by the added benefits gained through vastly improved financial returns.

1040 tax return form with a pair of glasses and a pen

Taxation of Qualified Settlement Funds

Since QSFs are separate tax entities, they are required to pay tax on any interest and dividend income. The tax rate is equal to the maximum rate in effect for trusts, which is currently 39.6%. Remember that the tax is a self-financing tax resulting solely from the interest earned on the QSF.

Several other income tax considerations must be taken into account when dealing with QSFs:

  • Economic Performance: The defendant receives an immediate tax deduction upon depositing the funds in the § 468B settlement fund.
  • Constructive Receipt: The deposit of the funds in the QSF is not “constructive receipt,” as the taxpayer’s (Claimant’s) receipt of income is subject to substantial limitations.
  • Economic Benefit: The deposit of the funds in the QSF is not “Economic Benefit,” as the taxpayer’s (Claimant’s) receipt of income is (i) not fixed nor vested, (ii) subject to the claims of other Claimants, and (iii) is subject to the QSF’s creditors.
  • Gross Settlement Proceeds: The transfer of settlement proceeds into a QSF does not represent gross income to the § 468B settlement fund, and when the fund pays them, they do not represent a tax deduction to the QSF. The QSF administrator/trustee must determine whether disbursements are subject to withholding requirements (such as backup withholding or, in the case of wage cases - wage-based withholding). Disbursements of attorneys’ fees in the underlying litigation are always reportable as taxable income.

It’s crucial to note that the tax implications of Qualified Settlement Funds can be complex, and working with an experienced QSF administrator, such as Eastern Point Trust Company, can assist you in navigating potential pitfalls.

The Role of the QSF Trustee/Administrator

The Regulations require a 468B Trust to have a “QSF Administrator.” If the fund is a trust, the same person can serve as both Trustee and Administrator, or there can be a separate trustee and a separate Administrator. The Trustee/Administrator is responsible for making distributions from the QSF to claimants, State Medicaid Agencies to satisfy liens, CMS to satisfy Medicare liens, ERISA Plans to satisfy ERISA liens, and any other lien holders that require satisfaction from the settlement fund.

The Trustee/Administrator also assists with the proper funding process of structured settlements, including making a § 130 Qualified Assignment to a third-party assignee who shall make the periodic payments.

The QSF Administrator additionally oversees the QSF’s KYC/AML process.

Gold coins on top of a lawyer gavel on a table

Taxability of Settlement Funds

The general rule for the taxability of amounts received from the settlement of lawsuits and other legal remedies is within IRC Section 61 and dictates that all income is taxable from whatever source derived unless exempted by another code section. However, the facts and circumstances surrounding each settlement payment are essential to determine the purpose of the underlying settlement or judicial award because not all amounts received from a settlement are exempt from taxes.

Awards and settlements can be divided into generally distinct groups to determine whether the payments are taxable or non-taxable. The most common are claims relating to physical injuries, and the other is for legal claims relating to non-physical injuries but other damages, as shown below, which may apply:

  • Actual Damages: resulting from physical or non-physical injury;
  • Emotional Distress Damages: arising from the actual physical or non-physical injury;
  • Punitive, Statutory, or Penalty Damages: awarded in addition to actual damages in certain circumstances. Punitive, Statutory, or Penalty damages are considered punishment and typically awarded at the court’s discretion.
  • Interest on the Judgement Damages: in such events, the interest compensates the plaintiff for the lost time value of money.

Conclusion

In conclusion, Qualified Settlement Funds offer a unique solution for managing and distributing litigation settlement proceeds. QSFs provide significant tax and other benefits for all parties involved but also have complex tax regulations that require careful management. Working with experienced professionals, with no conflicts of interest, when dealing with QSFs is crucial to ensure compliance with all tax and regulatory requirements.

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Frequently Asked Questions

Under IRC § 61, all income from whatever source derived is taxable unless a specific exclusion applies. Lawsuit settlements are included in gross income by default. The key exceptions are physical injury and physical sickness recoveries under IRC § 104(a)(2), which are excluded from gross income when received as compensation for a physical injury or physical sickness claim.

IRC § 104(a)(2) excludes from gross income damages received on account of personal physical injuries or physical sickness. The exclusion applies to compensatory damages only. The injury or sickness must be physical — emotional distress damages, employment discrimination recoveries, breach of contract proceeds, and punitive damages do not qualify for the exclusion and are taxable.

Yes. Punitive damages are taxable as ordinary income regardless of whether the underlying claim involves a physical injury. IRC § 104(a)(2) does not exclude punitive damages. Even in a physical injury case where compensatory damages are excluded, any punitive damages awarded are included in the plaintiff's gross income and subject to federal income tax.

For most plaintiffs, no. The Tax Cuts and Jobs Act of 2017 suspended miscellaneous itemized deductions under IRC § 67(g) for tax years 2018 through 2025, eliminating the attorney fee deduction for most civil litigation recoveries. IRC § 62(a)(20) provides an above-the-line deduction only for qualifying discrimination and whistleblower cases. Plaintiffs in personal injury, breach of contract, and most tort cases cannot deduct attorney fees under current law.

A Qualified Settlement Fund (QSF) under IRC § 468B separates the timing of the defendant's payment from the plaintiff's taxable receipt of funds. The defendant transfers proceeds to the QSF and takes an immediate tax deduction. The plaintiff does not recognize taxable income until distribution from the QSF, preserving a planning window to implement structured settlements, Plaintiff Recovery Trusts, Special Needs Trusts, or other tax-minimization strategies before receiving taxable income.

A Plaintiff Recovery Trust (PRT), administered by Eastern Point Trust Company, addresses the attorney fee double tax created by Commissioner v. Banks, 543 U.S. 426 (2005), and worsened by TCJA 2017. The PRT separates the attorney fee portion of the settlement from the plaintiff's taxable recovery, allowing each party to recognize income only on their respective portion. Eastern Point Trust Company has saved plaintiffs $30 million or more through PRT structures. The PRT is implemented during the QSF administration window before taxable distributions occur.

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