Tax treatment of compensation received as a nonprofessional representative.

• Author: Conner, Elizabeth C.

Most baby boomers, who are now between the ages of 42 and 60, will soon face two major events in their lives: planning for retirement and the death of their parents. Many of these individuals will take on the role of personal representative (executor) of their parents' estates when their parents die and will receive compensation from the estate for these services. From a tax standpoint, how is this income taxed? Is it considered self-employment (SE) income subject to both SE tax and income tax? Can this compensation be claimed as earned income for the purposes of contributing to an IRA?

SE Income

According to Regs. Sec. 1.1402(c)-1, a taxpayer must carry on a trade or business, either as an individual or as a member of a partnership, in order to have net SE earnings. According to Rev. Rul. 58-5:

Generally, nonprofessional fiduciaries (that is, for example, persons who serve as executor or administrator in isolated instances, and then as personal representative for the estate, of a deceased friend or relative) will not be treated as receiving income from a trade or business unless all of the following conditions are met:

(a) There is a trade or business among the assets of the estate,

(b) The executor actively participates in the operation of this trade or business,

(c) The fees of the executor are related to the operation of the trade or business.

However, according to Rev. Rul. 58-5, in some circumstances, even though the estate's assets do not include a trade or business, if the management activities required of the executor for administering the estate are sufficient in scope and duration, these activities could constitute operation of a trade or business and the income be deemed SE income.

In Rev. Rul. 72-86, the IRS distinguished between the SE treatment of the fees paid to executors and fees paid to persons serving in a fiduciary capacity as members of a corporation's board of directors. According to the IRS, the fees received from a corporation for performing services as a board director are SE income because the individual's work is on a regular and continuous basis and is based on that individual's qualities or expertise. The Service stated that fees paid to a nonprofessional executor or personal representative (except in certain circumstances) are not SE because the services are performed on an isolated basis and stem from a personal relationship with the decedent that is not based on particular expertise or special qualities.

The...