TN 49 (11-14)

A. Introduction to evaluating IGRA trusts

This section provides instructions for evaluating IGRA trusts established by Indian tribes for tribal members who are minor children or incompetent adults.

B. Background on Indian Gaming Regulatory Act of 1988 (IGRA)

The Department of the Interior regulates Indian gaming under the provisions of IGRA. IGRA provides the requirements for how a tribe may allocate its gaming revenues.

Under IGRA, a tribe can issue a portion of its gaming revenues to individual tribal members in the form of per capita payments. In addition, IGRA requires a tribe to protect and preserve the interests of minor children and incompetent adults who are entitled to receive any of the per capita payments. Tribes may establish IGRA trusts for such individuals to safeguard these payments and reduce income tax liability for the individuals.

When a tribal member who has an IGRA trust files for SSI, we must determine how to count assets held in the IGRA trust under our resource counting rules. Part of that determination requires us to determine whether the tribe or the member is the grantor of the trust. The procedures in this section for determining the grantor are based, in part, on Internal Revenue Service guidelines for analyzing IGRA trusts for income tax purposes.

C. Definitions related to IGRA trusts

The following definitions apply to terms commonly used in IGRA trusts. These definitions are consistent with the regulations issued by the Department of the Interior’s Bureau of Indian Affairs (BIA).

1. IGRA trust

An IGRA trust is a trust that an Indian tribe establishes under IGRA, regulations promulgated by the BIA, and the tribe’s BIA-approved revenue allocation plan. The tribe establishes the trust to receive and invest per capita payments for its members, some of whom are minors or legally incompetent adults, pending distribution of the trust assets to those members after they attain the age of majority or cease to be legally incompetent.

2. Minor child (or minor)

A minor child is an individual who is eligible to participate in a per capita payment and who has not reached the age of 18 years.

3. Legally incompetent adult (or legal incompetent)

A legally incompetent adult is an individual, other than a minor, who is eligible to participate in a per capita payment and who has been declared to be under a legal disability, by a court of competent jurisdiction, including tribal justice systems or as established by the tribe.

4. Per capita payment

Per capita payments are the distribution of money or other things of value to all members of the tribe, or to certain identified groups of members, paid directly from the net revenues of any tribal gaming activity. This definition does not apply to payments that the tribe sets aside for special purposes such as social welfare payments, medical assistance, education, housing or other similar needs.

D. Policy for determining who is the grantor of an IGRA trust

If an IGRA trust meets all the requirements in SI 01120.195F in this section, we will treat the Indian tribe as the grantor of the trust.

If the tribe is the grantor of the IGRA trust, follow the policy in SI 01120.200 to determine if the trust is a resource and if disbursements from the trust are countable income.

If the tribe is not the grantor of the IGRA trust, follow the policy SI 01120.201 to determine if the trust is a resource and if the disbursements from the trust are countable income.

E. Policy for the effective date of change of position for IGRA trusts

The change of position affects how we determine when an Indian tribe is the grantor of an IGRA trust for a tribal member who is a minor child or legally incompetent adult.

For determinations made for any month after November 30, 2014, we will determine that the Indian tribe is the grantor of an IGRA trust for a minor child or incompetent adult if the trust meets the requirements in SI 01120.195F of this section.

For determinations made for any months prior to December 1, 2014, we will continue to apply the policy that the minor child or the incompetent adult is the grantor of the IGRA trust.

For additional instructions for processing cases affected by this change of position and rules for re-opening prior determinations, see SI 04070.040C.

F. Policy for evaluating who is the grantor of an IGRA trust

Use this section to evaluate the IGRA trust and determine who the grantor is.

A tribe’s IGRA trust may have a master agreement and joinder agreements for individual beneficiaries similar to a pooled trust. In that situation, evaluate both the master agreement and the joinder agreement to determine who the grantor is.

We will treat the Indian tribe as the trust grantor if an IGRA trust meets all of the following requirements:

1. The Indian tribe establishes the trust for the benefit of tribe members who are minors and legally incompetent adults and it funds the trust using only per capita payments from gaming revenues.

2. The trust beneficiary is a minor or legally incompetent adult at the time the trust (or trust account) is established.

3. The trust only allows contributions while the beneficiary is still a minor or legally incompetent.

4. The trust instrument states that it is a grantor trust and the Indian tribe is the grantor of the trust, and grants to the Indian tribe a power or interest in the trust assets, such as the ability to vote any shares held in trust.

5. The Indian tribe is the owner of the trust for tax purposes and all the trust assets and the trust principal and income are subject to claims of general creditors of the Indian tribe under applicable federal, state, local, and tribal law.

6. At all times while the trust is in effect, the principal and income of the trust must be subject to claims of general creditors under applicable law. In addition, the trust documents must require the trustee to cease payments to or for the benefit of the beneficiary, and must require that the trustee hold trust assets for the benefit of the Indian tribe’s general creditors throughout any period during which the trustee believes or has reason to believe that the Indian tribe is unable to pay its debts as they become due, or is subject to a pending insolvency or bankruptcy proceeding.

7. The trust beneficiary does not have any preferred claim or beneficial ownership interest in any assets of the trust, and any rights created under the trust documents must be unsecured rights. In addition, amounts payable to, or for his or her benefit, cannot be anticipated, assigned (either at law or at equity), alienated, pledged, encumbered or subjected to garnishment, levy, or other legal or equitable process.

8. Trust assets are not available to or for the benefit of the beneficiary until the beneficiary ceases to be a minor or legal incompetent, except for the distributions for the beneficiary’s health, education, or welfare made at the discretion of the trustee and pursuant to the trust instrument.

9. Upon the beneficiary’s death, the beneficiary’s share must be paid to the Indian tribe, unless the trust document provides for payment either:

   • to persons who may inherit from the beneficiary under applicable state or tribal inheritance laws; or

   • based on the terms of a valid will or trust of the beneficiary.

   NOTE: An IGRA trust may provide that after the beneficiary ceases to be a minor child or legally incompetent adult, the trust may make distributions to or for the benefit of the beneficiary at a specified age or upon the occurrence of a specified event. Such a provision in the trust does not affect the determination that the tribe is the grantor of the IGRA trust.

   Example: The IGRA trust states that the beneficiary (a minor child) will receive funds from the trust when the beneficiary attains age 18, but only if he or she has graduated from high school.

G. Overview of procedure for reviewing IGRA trusts

This section describes the overall process for making IGRA trust resource determinations.

• The field office (FO) reviews new and amended IGRA trusts for initial claims and posteligibility actions and makes the trust resource determination.

• To ensure accurate and consistent determinations, the FO submits its IGRA trust resource determination to the Regional Trust Reviewer Team (RTRT) for review by the Regional Trust Lead (RTL) using the Supplemental Security Income Trust Monitoring System (SSITMS) website.

• The RTL reviews the FO determination, makes a final determination, and notifies the FO using SSITMS.

• If a precedent does not already exist for the trust, the RTL establishes a precedent and adds it to the SSITMS SharePoint Repository.

• FO technicians and RTRT members can access the SSITMS website at http://oasweb.ba.ssa.gov/ssitm/. For instructions on using the SSITMS website, visit the user guide located under the Help link on the SSITMS website.

H. Procedure when FO and RTL make the resource determination for an IGRA trust

1. FO Technician (Claims Representative or Technical Expert) makes resource determination on the IGRA trust

Follow these steps to make the trust resource determination and to document it.

• Use the master trust, joinder agreement and any pertinent documents in the individual’s possession to establish that they are a beneficiary of the IGRA trust and a tribal member.

  NOTE: It is not necessary to verify that the beneficiary of an IGRA trust is a tribal member. Only tribal members, or specifically defined groups of members, can be beneficiaries of IGRA trusts.

• If there is an IGRA trust precedent, compare the trust with the IGRA trust precedent to ascertain whether they contain the same provisions.

• If, according to the precedent, the tribe is the grantor of the trust, evaluate the trust based on the requirements in SI 01120.200 and determine if the trust is a resource or not.

• If, according to the precedent, the tribe is not the grantor of the trust, review the trust based on the requirements in SI 01120.201 and determine if the trust is a resource or not.

• If there is no IGRA trust precedent, evaluate the trust in accordance with SI 01120.195F in this section to determine who the trust grantor is. Depending on the determination, evaluate the trust in accordance with SI 01120.200 if the tribe is the grantor and SI 01120.201 if the tribe is not the grantor to determine if the trust is a resource.

• Document the trust determination in MSSICS on the Report of Contact (DROC) screen. For non-MSSICS cases, use a Report of Contact (SSA-5002). Indicate in the determination whether the tribe is the grantor of the trust and whether the trust is a resource or not. If the tribe is not the grantor, record the rationale for that determination.

• Fax the trust determination and a copy of the trust and pertinent trust documents into the electronic folder (EF) or Non-Disability Repository for Evidentiary Documents (NDRED). Indicate in Remarks any references and rationale used for the determination.

2. FO transmits IGRA trust determination to the RTRT for review by the RTL

Follow these steps to transmit the FO’s IGRA trust determination for review by the RTL. The RTL must review all FO IGRA trust determinations.

• Use SSITMS to transmit the FO trust determination to the RTRT.

• On the SSITMS website, input the claimant or recipient’s name, social security number, and any relevant information about the trust.

• Select “Other” as the trust type on SSITMS.

• Submit the trust determination to the RTRT for review following the instructions on SSITMS.

• SSITMS will send an email notification about the requested review to each member of the RTRT and to the FO/ADO/RO mailbox. The subject of the email will say, “SSI Trust for Review.”

3. RTL reviews FO’s IGRA trust determination

The RTL follows these steps when reviewing the FO’s trust resource determination.

• The RTL reviews the FO’s determination, and all relevant information in MSSICS and in the electronic folder, and determines whether it agrees or disagrees with the FO’s determination.

• In SSITMS, the RTL changes the trust status to “Review Completed” and indicates in the Results field whether it agrees or disagrees with the FO’s determination.

• In SSITMS, the RTL documents its determination, provides feedback to the FO in the Remarks field, and updates “Trust Status” to show that RTL completed its review.

• In SSITMS, the RTL will click on “Submit” to notify the FO by email that it completed its review.

4. FO reviews and effectuates the RTL’s trust determination

The FO follows these steps to effectuate the RTL’s trust resource determination.

• Upon receiving RTL’s email, the FO will go into SSITMS to view RTL’s decision.

• The FO selects its case from the Summary page listing in SSITMS or by using the link in the email to access the case, and clicking on the Details/Update tab.

• The Results tab shows whether the RTL agreed or disagreed with the FO’s resource determination.

• When the FO technician is ready to process the case, change the trust status to “FO Effectuated” using the edit function.

I. Procedure when RTL establishes a precedent for a tribe’s IGRA trust

The RTL follows these steps to establish a precedent for a tribe’s IGRA trust.

• After reviewing trust resource determination, the RTL establishes a precedent and adds it to the SSITMS SharePoint Repository for all new tribal IGRA trusts that do not have a precedent in file.

• The RTL must consult with the Regional Chief Counsel before establishing the precedent.

• Make sure to include all pertinent information such as structure of the trust, e.g., master trust with subaccounts and joinder agreements or individual trusts, date of establishment or modification of the trust reviewed, whether the trust meets the requirements in SI 01120.195F in this section, and the determination of whether the tribe or the claimant established the trust, etc.

• Use the SSITMS “Help” link to access the precedent library in the SharePoint site.

• Upload the trust precedent and related trust documents to the SharePoint site.

J. Procedure when claimant appeals the trust resource determination

Follow these steps when the claimant files for a reconsideration of the trust resource determination.

• When the claimant appeals the trust resource determination, the RTL must review the FO’s reconsideration determination before the FO effectuates the determination and notifies the claimant.

• Currently, SSITMS cannot process reconsiderations. The FO must send the request for review to the RTL using vHelp. Refer to the SSITMS User Guide for detailed instructions for handling these appeals.

• The RTL will send an email to the FO technician with the RTL’s decision and then the FO can process the reconsideration.

K. References

• SI 01120.200 Trusts -- General, Including Trusts Established Prior to 1/1/00, Trusts Established with the Assets of Third Parties and Trusts Not Subject to Section 1613(e) of the Social Security Act

• SI 01120.201 Trusts established with the assets of an individual on or after 1/1/00

• SI 01120.202 Development and Documentation of Trusts Established on or after 1/1/00

• SI 04070.010 Title XVI Administrative Finality – General Reopening Policies

• SI 04070.040 Revising SSI Determinations

• MSOM INTRANETSSI 013.005 Trust