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HomeMy WebLinkAbout12-01-05 M.ETTE. EVANS & WOODSIDE ')., -~ S - '~'4) A PROll'ESSIO~AL OORPORATIO~ ATTORNEYS AT LAW 3401 NORTH FRONT STREET P.O. BOX 5950 HARRISBURG. PA 17110-0950 JENNIFER L. DENCHAK, ESQ. IRS NO. 23-1985005 E-MAIL ADDRESS jldencbak@mette.com TELEPHONE (717) S32-5000 FAX (717) 236-1816 http://www.mette.com December 1,2005 VIA HAND DELIVER Y Cumberland County Courthouse Attn: Register of Wills 1 Courthouse Square Carlisle, P A 17013 RE: PETITION TO REFORM THE SUDEN CHARITABLE REMAINDER UNITRUST Dear Register: Enclosed for filing with your office, please find the original and five (5) copies of the Petition to Reform the Suden Charitable Remainder Unitrust as well as our firm's check in the amount of $30.00 for the filing fee. Please file the original and return time-stamped copies to our courier for return to us. Thank you for your assistance in this matter. If you have any questions regarding the filing, please do not hesitate to contact me. Very truly yours, !~fu c72J~ iefutifer L. Denchak JLD:jag Enclosures cc w/enclosure: PNC Bank, N.A. Dr. and Mrs. Stephen C. Suden 438108vl IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: SUDEN CHARITABLE REMAINDER UNITRUST ORPHANS COURT DIVISION NO. ~'"\5 OF j,.~~ S PETITION TO REFORM THE SUDEN CHARITABLE REMAINDER UNITRUST, 1 ) -, Cl TO THE HONORABLE JUDGES OF SAID COURT: '.-.." --. AND NOW, comes Petitioner, STEPHEN C. SUDEN, Co-Trustee ofthe Slldeh Charitable Remainder Unitrust, by his attorneys, METTE, EV ANS & WOODSIDE, and respectfully represents that: 1. Dr. Stephen C. Suden and Barbara L. Suden, his wife, reside at 730 Vista Drive, Camp Hill, PA 17011. 2. Stephen C. Suden ("the Donor") established the Suden Charitable Remainder Unitrust (the "Trust") on December 30,2003 within the meaning of Section 664(d)(2) of the Internal Revenue Code. A copy is attached hereto and made a part hereof as Exhibit "A." I .' -- ;~::~ ( -) ) (--~) ~_(J , '-::1 j'-;'-J ; ',.::J 'c') :1 - ~.;--] '. (-,=) ),--) J1 l)f. 3. Stephen C. Suden and PNC Bank, NA were designated the initial Co-Trustees of the Trust. Both continue to serve as Co-Trustees. 4. The Trust annually files federal income tax return Form 1041-A and Form 5227, and Pennsylvania income tax return Form PA-41 under Tax Identification Number 25-6852603. 5. Item 2 of the Trust provides that in each taxable year of the Trust, the Trustee shall pay to Stephen C. Suden and Barbara L. Suden, in equal shares during their lifetimes, or the survivor thereof, an amount equal to the lesser of: (a) The Trust income for the taxable year, as defined in Section 643(b) of the Code and the regulations thereunder, and (b) 6% of the net fair market value of the assets of the trust valued as of the first day of each taxable year of the Trust. 6. Pursuant to Item 5, upon the death of the last surviving unitrust beneficiary, the Trustee shall distribute all ofthe then principal and income to the United Jewish Appeal unless the charitable remainderman is changed by the Donor by instrument executed during his lifetime or in his Last Will and Testament. 7. No notice is supplied to and no consent is obtained from the United Jewish Appeal regarding this Petition because the Donor has the power to change the charitable remainder beneficiary. 8. The intent of the Donor, Stephen C. Suden, was to create a trust that provided him and his wife with 6% of the trust's value each year, irrespective of the trust's income. 9. Reformation of the Trust to permit an annual distribution equal to 6% of the fair market value of the Trust assets would fulfill the Donor's intent. 10. Reformation of the Trust would also serve to correct a scrivener's error, which incorrectly defined the unitrust amount. 11. The market value of the Trust as of October 10, 2005 is $247,651. 12. Donor requests that the corrected definition of the unitrust amount be retroactive to January 1,2005. WHEREFORE, Petitioner respectfully requests that the Court enter an Order reforming the Trust as follows: (a) Section 2(B) will now read as follows: 2(B) The unitrust amount shall be an amount equal to 6% of the net fair market value of the assets of the trust valued as of the first day of each taxable year of the Trust (the "valuation date"). (b) The effective date of the reformation is January 1,2005. (c) Trustee be authorized to take any and all actions necessary to implement the revised definition of the unitrust amount. METTE, EVANS & WOODSIDE By: '\ _tr-- A , ,,) - __. v- ~ CJame.s. A\', Ulsh, Esquire ~~t. .D. #10169 .~.. . .\ ~, .~ ~A/~ Vicky nn Trimmer, Esquire Sup. Ct. I.D. #49679 By: 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 (717) 232-5000 (717) 236-1816 (fax) Attorneys for Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: SUDEN CHARITABLE REMAINDER UNITRUST ORPHANS COURT DIVISION NO. OF VERIFICATION The undersigned, deposes and says, subject to the penalties of 18 Pa. C.S.A. ~4904, relating to unsworn falsification to authorities, that the facts set forth in the foregoing Petition are true and correct to the best of his knowledge, information and belief. Stephen C. Suden, Co-Trustee By: ~~.. 0 --(1'-0 j~~ EXHIBITS A. Suden Charitable Remainder Unitrust B. Consent of Barbara L. Suden C. Consent of Stephen C. Suden D. Consent ofPNC Bank, N.A. E. Consent of the Office of Attorney General EXHIBIT nAn CHARITABLE REMAINDER UNITRUST AGREEMENT On this ~""'" day of December, 2003, Stephen C. Suden (hereinafter referred to as "the Donor"), desiring to establish a charitable remainder unitrust, within the meaning of Section 664( d)(2) of the Internal Revenue code (hereinafter referred to as "the Code") hereby creates the Suden Charitable Remainder Unitrust and declares Stephen C. Suden, Camp Hill, Pennsylvania, and PNC Bank, NA, to be the initial Co- Trustees (hereinafter referred to as "the Trustee"). 1. Funding of Trust. The Donor declares Stephen C. Suden and PNC Bank, NA, to be the Trustee of the property described in Schedule A and Trustee agrees to hold, manage, and distribute such property ofthe Trust under the terms set forth in this Trust instrument. 2. Payment of Unitrust Amount. A. In each taxable year of the Trust, the Trustee shall pay to Stephen C. Suden and Barbara L. Suden, in equal shares during their lifetimes, or the survivor thereof, hereinafter referred to as "the Recipient," a unitrust amount specified in paragraph B below: B. The unitrust amount shall be an amount equal to the lesser of: (i) The Trust income for the taxable year, as defined in Section 643(b) of the Code and the regulations thereunder, and (ii) 6% of the net fair market value of the assets of the trust valued as of the first day of each taxable year of the Trust (the "valuation date"). EXHIBIT RAR During this period, the unitrust amount for any year shall also include any amount of Trust income for such year that is in excess of 6% of the net fair market value of the assets of the Trust valued as of the first date of that taxable year of the Trust to the extent that the aggregate of the amounts paid in prior years was less than the aggregate of the amounts computed as 6% of the net fair market value of the Trust assets on the valuation dates. C. The unitrust amount shall be paid on the last day of each taxable year. Any income of the Trust for the taxable year in excess of a unitrust amount shall be added to principal. D. The date on which the payments of the unitrust amount cease by reason of the death of the last surviving Recipient is hereinafter referred to as "the termination date". E. If for any year the net fair market value of the Trust assets is incorrectly determined, then within a reasonable period after the value is finally determined for Federal tax purposes, the Trustee shall pay to the Recipient (in the case of an undervaluation) or receive from the Recipient (in the case of an overvaluation) an amount equal to the difference between the unitrust amount properly payable and the unitrust amount actually paid. F. Under Section 643(b) of the Code and applicable state law, all realized capital gains shall be allocated to trust income for accounting and unitrust amount distribution purposes. However, the proceeds from the sale of contributed assets shall be allocated to the principal of the trust to the extent of the fair market value of the assets when contributed to the trust. 3. Payment of Federal Estate Taxes and State Death Taxes. The lifetime unitrust interest of a successor Recipient will take effect upon the death of the first Recipient only if the successor Recipient furnishes the funds for payment of any federal estate taxes or state death taxes for which the Trustee may be liable upon the death of the first Recipient. 4. Proration of the Unitrust Amount. In determining the unitrust amount, the Trustee shall prorate the same on a daily basis for a short taxable year and for the taxable year ending on the termination date. 5. Distribution to Charity. Upon the termination date, the Trustee shall distribute all of the then principal and income of the Trust (other than any amount due a Recipient or his or her estate under the provisions above) to Vllil h~ .jfu ~~. ~ ApfPl1L (the "Charitable Organization"). The Donor shall have the power to change the charitable organization designation to such one or more alternate charitable organizations described in Sections 170(c), 170(b)(1)(A), 2055(a) and 2522(a) of the Code, by instrument executed during his lifetime or in his Last Will and Testament. If one or more of the foregoing Charitable Organization is not an organization described in Sections 170(c), 170(b)(1)(A), 2055(a) and 2522(a) ofthe Code at the time when any principal or income of the Trust is to be distributed to it, the share of such Charitable Organization shall lapse and the Trustee shall distribute such principal or income to such one or more organizations described in Sections 170(c), 170(b)(1)(A), 2055(a) and 2522(a) of the Code as the Trustee shall select in its sole discretion. 6. Additional Contributions. If any additional contributions are made to the Trust after the initial contribution, the unitrust amount for the year in which the additional contribution is made shall be computed using.6% ofthe sum of (a) the net fair market value of the Trust assets as of the valuation date (excluding the assets so added and any income from, or appreciation on, such assets) and (b) that proportion of the fair market value of the assets so added that was excluded under (a) that the number of days in the period that begins with the date of contribution and ends with the earlier of the last day of the taxable year or the termination date bears to the number of days in the period that begins on the first day of such taxable year and ends with the earlier of the last day in such taxable year or the termination date. In the case where there is no valuation date after the time of contribution, the assets so added shall be valued as of the time of contribution. 7. Prohibited Transactions. The Trustee shall make distributions at such time and in such manner as not to subject the Trust to tax under Section 4942 of the Code. Except for the payment of the unitrust amount to the Recipients, the Trustee shall not engage in any act of self-dealing, as defined in Section 4941 (d), and shall not make any taxable expenditures, as defined in Section 4945(d). The Trustee shall not make any investments that jeopardize the charitable purpose of the Trust, within the meaning of Section 4944 and the regulations thereunder, or retain any excess business holdings, within the meaning of Section 4943(c). 8. Successor Trustee. The Donor shall by instrument in writing executed during his lifetime or by his Last Will and Testament appoint a successor Trustee to serve as Trustee upon the death of the Trustee or his or her inability or refusal to serve as Trustee. If the Donor fails to name a successor Trustee, Barbara L. Suden shall act as successor Co-Trustee. A. Without the permission of any court the corporate fiduciary acting hereunder may resign by a writing lodged with the permanent records hereunder, effective (1) after thirty days' written notice to each adult income beneficiary and (2) a successor corporate fiduciary's execution of acceptance of appointment to act hereunder following the resignation. Such a successor corporate fiduciary may be located in or out of Pennsylvania and shall be appointed by the then acting fiduciaries, including the corporate fiduciary who wishes to resign, even if such corporate fiduciary is then acting alone. B. Any corporate fiduciary acting hereunder shall be compensated as provided from time to time in its published schedule of fees. 9. Taxable Year. The taxable year ofthe Trust shall be the calendar year. 10. Governing Law. The operation of the Trust shall be governed by the laws of the Commonwealth of Pennsylvania. The Trustee, however, is prohibited from exercising any power or discretion granted under said laws that would be inconsistent with the qualification of the Trust under Section 664(d)(2) of the Code and the corresponding regulations. 11. Irrevocability. The Trust is irrevocable. The Trustee shall have the power, acting alone, to amend the Trust in any manner required for the sole purpose of ensuring that the Trust qualifies and continues to qualify as a charitable remainder unitrust within the meaning of Section 664(d)(2) of the Code. 12. Investment of Trust Assets. Nothing in this Trust instrument shall be construed to restrict the Trustee from investing the Trust assets in a manner that could result in the annual realization of a reasonable amount of income or gain from the sale or disposition of Trust Assets. 13. Limitation on Power. No power enumerated herein or generally accorded to fiduciaries by law shall be construed to enable any person to purchase, exchange or otherwise deal with or dispose of any Trust assets for less than adequate or full consideration in money or money's worth or to borrow principal or income of the Trust directly or indirectly without adequate interest or without adequate security. 14. Concerning Self-Dealing. No rule of law against self-dealing, divided loyalty, or conflict of interest shall be applied to render any transaction effected by the fiduciaries void, voidable, or otherwise subject to attack solely for violation of such rule, nor shall the fiduciaries incur any liability, nor shall any fiduciary commissions for acting hereunder be reduced, solely for violation of such rule. Any transaction which involves self-dealing, divided loyalty, or conflict of interest by the fiduciaries shall be judged by the rules of law which would apply to the same transaction at arm's length between strangers free of any element of self-dealing, divided loyalty, or conflict of interest. Thus, by way of illustration and not of limitation, all fiduciaries are authorized, without giving any notice required by statute. [REMAINDER OF PAGE LEFT BLANK INTENTIONALL Y] IN WITNESS WHEREOF, STEPHEN C. SUDEN, the Donor and the Trustee, has hereunto set his hand and seal the day and year first above written. Signed, sealed and delivered in the p~ ~ "The Donor" ~> C~ (SEAL) STEPHE C. SUDEN '----- cz~ "The Trustee" STE~~ (SEAL) P~!.U p~ BY: l~'D A. g/1>W1';/ (SEAL) COMMONWEALTH OF PENNSYLVANIA COUNTYOF ~~A1?.6~/~~~- On this, the~ ::j',e ~aY~('?"""'-'/'7/.v~,Pr, 2003, before me, a Notary Public in and for said Commonwealth and County, personally appeared STEPHEN C. SVDEN, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purpose therein contained. IN WITNESS WHEREOF, I have here and and notarial seal. I ./ ~ (SEAL) NOTARIAL SEAL . DENISE C. SULLENBERGER, Notary Public Hampden T~rp.. cu~berland Cou~ My Commission expires Nov. 22, 2 j ,: COMMONWEALTH OF PENNSYLVANIA COUNTYOF C~/h'.Lf~.rk/;7~ On this, the 3D?!!. day of December, 2003, before me the subscriber personally appeared 1)%.,'0 iA, g~ , who acknowledged himself/herselfto be a (Vice) President of PNC BANK, N.A., a Corporation, and that being authorized to do so as such corporate officer executed the foregoing instrument for the purposes therein contained on behalf of the corporation. : SS. IN WITNESS WHEREOF, I have f NOTARIAL SEAL DENISE C. SULLENBERGER. Notary Public MHampdery T~., Cumberland County Y CommIssion Expires Nov. 22, 2004 SCHEDULE "A" 4,97J shares Clear Channel Communications, Inc. stock transferred from PNC Advisors Account 127-27-007-3923411. Dr. Stephen C. Suden Inv. Mgmt. Account 38571&vl EXHIBIT nBn IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: SUDEN CHARITABLE REMAINDER UNITRUST ORPHANS COURT DIVISION NO. OF CONSENT The undersigned, deposes and says, that she has reviewed the Petition and consents to the trust reformation in her capacity as Recipient of the unitrust amount under the Trust. ~.~ Barbara L. Suden EXHIBIT nBn EXHIBIT nen IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: SUDEN CHARITABLE REMAINDER UNITRUST ORPHANS COURT DIVISION NO. OF CONSENT The undersigned, deposes and says, that he has reviewed the Petition and consents to the trust reformation in his capacity as Recipient of the unitrust amount under the Trust. --- ~ Step~en EXHIBIT nen EXHIBIT RDn IN RE: SUDEN CHARITABLE REMAINDER UNITRUST ORPHANS COURT DIVISION NO. OF CONSENT The undersigned, deposes and says, that he/she has reviewed the Petition and consents to the trust reformation in his/her capacity as Co-Trustee of the Trust. PNC Bank, N.A. By: Name: [),AVlb A. !3 ~JvvfV Title: VIU-:' - P f-.3f5S I OGrvT EXHIBIT RDR EXHIBIT nUln COMMONWEALTH OF PENNSYLVANIA OFFICE OF ATTORNEY GENERAL TOM CORBETT ATTORNEY GENERAL November 16, 2005 Charitable Trusts and Organizations Section 14th Floor, Strawberry Square Harrisburg, PA 17120 (717) 783-2853 (717) 787-1190 (Fax No.) James A. Ulsh, Esquire Vicky Ann Trimmer, Esquire METTE, EVANS & WOODSIDE Attorneys At Law 3401 North Front Street P.O. Box 5950 Harrisburg, PA 17110-0950 RE: SUDEN CHARITABLE REMAINDER UNITRUST Dear Counsel: I am in receipt of your Petition to Reform the Suden Charitable Remainder Unitrust. Please be advised that the Attorney General's Office has no objection to the prayer in your petition for the reformation of that trust. You may submit this letter as clearance from the Attorney General's Office that we have no objection to your petition and its prayer. The Attorney General by traditional protocol responds to these requests in the form of a no objection letter rather than a consent to the procedure. Please provide me with a copy of the Court's Order on the reformation of this Charitable Remainder Unitrust so that I can than close my file on this matter. Very truly yours, ~r/Jl! {)&1H Thomas M. Devlin Senior Deputy Attorney General TMD /188 EXHIBIT -En t" ~