August 2009

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MONTH YEAR: Lead Article: 1 ¾ pages [2nd page about 45 lines]
Lead Article Title: Golf Talk – Back 9Summary: So last month we gave you exiting tidbits for each of the front nine. To assure you have talking points for the rest of the course, here’s some for the back nine.Hole #10 Start the back 9 with a cool acronym “BDIT” a Beneficiary Defective Inheritor’s Trust. The BDIT is creation of Las Vegas estate planning maven Richard Oshins, Esq. of Oshins & Associates. Your golf buddies have all set up self-settled grantor dynasty trusts and you wanna one up them. The BDIT is the answer. Have mom (anyone other than you or your spouse) set up a dynasty trust to benefit you. If you never make a gift to the trust, many of the estate tax rules that can operate to pull a trust’s assets back into your estate arguably won’t apply. For example, if your golf buds give assets to their dynasty trusts but retain the right to enjoy those assets (e.g., the income from a rental property, or the right to live in a beach house), those assets will be included in their estates. But with your BDIT, since you don’t transfer assets to the BDIT you don’t face the sasme risks. But if mom sets up the trust, how can it be a grantor trust to you? Characterization as a grantor trust assures all income is taxed to you and that you can sell assets to the trust without triggering capital gains. The mechanism to accomplish this feat is having your BDIT include an annual demand or Crummey power for you to withdraw gifts mom makes to the trust. If you can vest all of the principal of the trust in yourself, you’ll be treated as the owner of the trust for income tax purposes so long as the trust is not a grantor trust as to mom. So if mom gives $13,000 annual gifts to the trust each year and you don’t exercise the Crummey power to withdraw those gifts, the trust will be a grantor trust as to you. Because you didn’t set up the BDIT, you can be given more control over the trust then your golf buds can over their plain vanilla dynasty trusts with less tax and asset protection risk.

Hole #11 UTMA, Uniform Transfer to Minors Act, accounts use to be standard operating procedure for kids savings. But they ain’t fun since at the age of majority Junior can spend the money on a beer instead of tuition. What can you do? One approach is to have the UTMA invest in a family partnership or LLC so that when Junior attains the age of majority he’ll have to convince the local beer depot to take FLP interests as payment. Many financial institutions object to encumbering Junior’s money more than the UTMA account would. Solution – Give Junior the right to cash in his FLP interest within 30 days of attaining the age of majority! For you Code Section geeks this is similar to the 2503(c) trust right to withdraw at age 21.

Sample Provision: Whereas, it is the express desire of the parties, notwithstanding anything in this Agreement or applicable partnership law to the contrary, that if any partner is a minor for whom custodial funds were transferred or invested in this Partnership. Then in such event as the minor attaining the age of majority (determined by the laws of the State) such Partner may upon notice given at any time within Sixty (60) days of the date of attaining the age of majority that all of his or her partnership interests attributable to said custodial funds must be liquidated and the fair value therefore be distributed to said partner. If this right is not exercised within said period this right shall lapse.

Hole #12 Lots of trusts are structured as directed trusts where a person or board of investment advisers direct the trustees how to invest and the trustee is absolved of most or all liability for investment decisions (depending on state law and the trust terms). Many such trusts could benefit from the Doublemint gum approach to trust investment advisers. Many investment advisers are selected to hold family business or real estate assets that an institutional trustee might not be adept at. However, at some time even a trust largely comprised of a closely held business interest may become liquid (e.g. a sale of the business). Does the same investment adviser have the expertise to invest in marketable securities that knew say real estate or widgets? Unlikely. The dual approach can provide a better investment result. Finally, what if funds from one property or business are to be reinvested? Have an independent fiduciary, e.g., the investment adviser, authorized to allocate liquid assets from the marketable to the business/real estate component of the trust.

Sample Provision: At the direction of the Investment Adviser, if any, or if none, the Trust Protector, or if none, the Individual Trustee, assets which are readily marketable shall be made available for investments in assets which are not readily marketable or which are closely held or family businesses or Personal Use Assets. The express intent of this provision is to ensure that the Institutional Trustee, or the investment adviser who has the investment authority over marketable securities, not hinder or delay making those securities available to the Investment Adviser for investment or use in family business interests or other non-marketable investments under the direction of the Investment Adviser or a delegate of the Investment Adviser.

Hole #13 When a partnership, or an LLC taxed as an partnership, must close its taxable year (e.g., on the termination of a partner/member during the year), the economic results of the partnership must be allocated for that partner to the time period prior to the closing of the FLP/LLC books, and to the period after the closing. There are two methods which can be used to make this allocation: (1) the interim closing of the FLP/LLC books; or (2) the pro-ration method. Treas. Reg. Sec. 1.706-1(c)(2)(ii); See, Richardson v. Comr., 693 F.2d 1189 (5th Cir. 1982). If the executor has discretion to choose the assets to fund a bequest under the will, which is common, these rules and that discretion, will impact the estate’s tax results. If a pecuniary bypass trust (i.e., funded with a dollar figure not a portion of the estate) is funded with the interests in an partnership/LLC, the tax year of the partnership/LLC close and the bypass trust would be allocated the pro rata portion of the gain for the portion of the year in which it holds the interests in the partnership/LLC. If the executor uses the discretion granted under the will to distribute the deceased partner’s interests in the partnership/LLC under the residuary clause of the will to a residuary trust, instead of to the pecuniary bypass trust (assuming that the will was so constructed), the tax year of the partnership/LLC may not close as a result of the estate funding the residuary trust. As a result, all income from the date of death forward would inure to the residuary trust (since there would be no closing or allocation). If this discretion is combined with an interim closing of the books method, in contrast to the proration method, the executor has flexibility to determine which amount of gain to trap in the estate versus what gain (or other tax consequence) will be reported on the income tax return of one of the distributee testamentary trusts.

These general rules need to be applied to common estate and probate-related situations. The results are not certain as to how every estate/probate event impacts the requirement to close the tax year of an FLP/LLC owned in part by a decedent, estate or trust. For example, Code Sec. 761(e) provides that the distribution of an interest in a partnership will generally be treated as an exchange for purposes of determining whether Code Sec. 743(b) basis adjustment rules will apply. The IRS has held that the distribution of a lower tier partnership by an upper tier partnership constituted such an exchange, thereby permitting a Code Sec. 743(b) adjustment, even though no gain was recognized on the distribution. The Regulations indicate that a distribution by an estate is not an exchange (Reg. §1.706-1(c)(3)(vi), Example (3)). The IRS has indicated that a distribution by a trust may be an exchange under Code Sec. 706, thus permitting a basis adjustment under Code Sec. 743(b) (Rev. Rul. 72-352, 1972-2 CB 395). Congressional committee reports appear to indicate intent to exclude distributions by an estate or trust triggered by the death of a member from the exchange provisions of Code Sec. 761(e) (S. Rep. No. 99-313, at 924 (1986)).

Hole #14 If you buttoned up your FLP so tight to justify discounts you may undermined the annual gift exclusion for FLP interests. This is because a gift has to be of a “present interest” to qualify for the $13,000 annual exclusion and if the donee/partner cannot realize any current economic benefit because of all the restrictions, it may not qualify. See, Hackl V. Commr. 118 TC 14 (2002), aff’d, 335 F.3d 664 (7th Cir. 2003). Consider adding a right of first refusal, or provision analogous to a “Crummey” demand power, to the transfer restrictions or distribution clauses of the partnership agreement. If there is no present contemplation of annual gift transfers, this issue may be better not to be addressed in the Operating Agreement as such a provision may detract from the general discounts.

Hole #15 Recession brought lower asset values so many estates are choosing to value assets not at the date of death, but 6 months later on the alternate valuation date (AVD). But this election is not simple and can trigger family disputes if it benefits one heir at the expense of others. Most if not all wills and other documents are silent as to how to address this potentially volcanic dilemma. Example: An estate is comprised of a family business valued as of the date of death at $7M, securities valued at $10M and a house valued at $4M. The business on the date of death constitutes $7M/($7M + $10M + $4M) 33% of the estate, insufficient to qualify for estate tax deferral under Code Section 6166. At the AVD 6 months later the business value has declined to $6M, the securities to $4M and the house increased to $5M. The value of the business is now $6M/($6M + $4M +$5M) 40% of the estate, sufficient to qualify for estate tax deferral under IRC Sec. 6166. Thus, use of the AVD can have the added benefit of enabling the estate to qualify for additional estate tax benefits. The use of the AVD benefited the children receiving the business and securities, but penalized the child receiving the house. How can an executor make the election in such a situation? How can the executor avoid making the election? What’s good for the goose may not be good for the gander! The election must apply to all estate assets, no partial application is permitted. Treas. Reg. Sec. 20.2032-1(b)(2). The result is the classic Shakespearean decision: “To ADV, or not to ADV: that is the question: Whether ’tis nobler in the estate administration to suffer the slings and arrows of outraged beneficiaries…”.

Hole #16 It remains common for investments to be structured in the form of a limited partnership (FLP): control, income shifting, gift and estate discounts (but that window may be closing), etc. If you’re transferring securities to a FLP watch the Code Section 721 investment rules. Many folk forgot about these because capital gains kinda disappeared. But with the run up in the equity markets and other investments these rules could easily ensnare you. If you form an FLP consisting primarily of securities there generally is no income tax consequence, but if the FLP is characterized as an “investment company” and you diversify your previously undiversified securities portfolios by forming that FLP, then all the gain on all assets contributed to the FLP will be triggered for income tax purposes. Ouch! To make this even more painful, losses are not triggered, just gains!

A portfolio is considered diversified if less than 25% of its assets are invested in any single issuer and less than 50% are invested in any five or fewer issuers.

Hole #17 If you have or are divorcing, watch the home sale exclusion rules — the housing market will eventually recover and you’ll get nailed if you don’t. Most folks cannot imagine appreciating home values, but if you’re negotiating a divorce agreement don’t ignore it. If your ex-spouse is granted exclusive use of the residence that use will be credited to you for purposes of meeting the use and ownership requirements for the $250,000 home sale exclusion if mandated by a qualifying agreement (divorce agreement, decree of separate maintenance, and a decree of legal separation). IRC Sec. 71(b)(2). If not, it will not be credited to you if you’re not residing in the house. Bottom line: you could loose a big tax bennie.The timing of each spouse’s use and ownership should be considered to assure the maximum qualification for the exclusion.

It may be advantageous to delay the divorce, or the common filing of separate tax returns, to assure that the full $500,000 exclusion is available. In the context of a divorce settlement, if the house is transferred to one spouse, that transferee spouse may treat the house as if he or she had owned it during the period it was owned by the transferor spouse. I.R.C. §121(d)(3).

Hole #18 Financial stress is a top factor triggering divorce. This recession has been plenty stressful financially. It has also wreaked havoc with investment portfolios like none other since the depression. If you are in the process of or were recently divorced, review and revise your investment strategy. Pre-divorce portfolios are structured on a family basis. Post divorce each spouse may end up with non-coordinated pieces of the former family portfolio. Diversification which may have been adequate before, may be undermined by a divorce settlement that focused on tax basis, accounts within the control of each spouse, and other non-investment factors. The financial realities of divorce often necessitate a portfolio geared more toward generating cash to cover post-divorce living expenses, then growth for the future. An issue to address in the reallocation process is that the portfolio likely has a carry over cost basis under Code Sec. 1041 from your ex-spouse, or low basis equities purchased and held by you.

Example: In some instances selling covered calls against some of the holdings, with the intention of having the calls exercised, can produce incremental income to offset some of the tax liability.
Example: ABC stock is selling at $48/share. Cost basis is $25/share. If a client sells 1,000 shares the capital gain is $23,000 which at 15% (ignoring state tax) implies a tax liability of $3,450. If a $50 call (an option or right to purchase the stock at the $50 strike price) is sold for 1 point, this would generate $1,000. The client would sell the call, and hope the stock exceeds $50/share prior to the expiration of the call. If so, the call would be exercised and the client would realize $51/share, an additional $3,000 above the current value of the shares. That incremental revenue will offset most of the tax liability. If the stock price does not exceed $50, the call won’t be exercised, but the client has received $1,000 towards the tax cost to be incurred on restructuring the portfolio.

Your risk tolerance may change to reflect post-divorce economic reality, which is often much harsher than before. Intact families can often accept more risk in their portfolio when comfortable with their employment situation, and can rely on that cash flow for expenses. Post-divorce this certainty is often undermined by lower earnings, higher support or alimony payments, and the increased costs of maintaining separate homes and lives. Too often clients ignore the changed risk, or take the opposite approach and become so fearful of this new risk profile that they assume anything other than a money market account or CD is too risky. Clients seeking low risk portfolios often build a portfolio based on bonds, etc. They assume price risk is eliminated when they hold the securities to maturity. Reality is that the price risk remains because interest rates fluctuate. They are unknowingly assuming a great deal of risk, but risks of a different type, namely inflation risk. Even a modest rate of inflation can devastate a fixed income portfolio over time.

Checklist: Second Article 2 lines less than One Page [about 54 lines]:
Checklist Article Title: Death Panels

Summary: Instead of addressing real tough issues, let’s throw a fake. Death panels are a low blow fake, even for a moose hunter. But get real. Granny isn’t getting unplugged, but she should be responsible to address these issues while she can, but most don’t. Here’s a reality check – checklist on the non-existent death panels.

√ Rumors that bureaucrats will pull the plug on sick and elderly. It’s just static to avoid dealing with real issues. But are you dealing with the real issues?

√ Only 29% of people have signed living wills!! Folks are kicking up a ruckus about non-existent death panels when they haven’t taken the most basic step to address what they can control about their end of life decisions and treatment. Be responsible. Sign appropriate documents: a living will to make your wishes known; a health proxy authorizing someone as your agent to make those decisions.

√ Few people take the time to understand what end of life decisions are really about. Jane Brody in her recent book Guide to the Great Beyond (a must read) notes that there no significant survival benefit for pursuing aggressive medical options over hospice! Hospice can provide a more dignified and peaceful death, chance to address religious and spiritual issues and save a fortune in cost. One of the studies she cites found that those receiving aggressive end of life intervention survived 33 days while those receiving hospice instead survived 31 days. While any such studies are subject to wide interpretation and variation, and so much depends on the facts of the specific patient, there are some really important lessons and questions. Many religions view it as inappropriate to “pull the plug” on someone, even if in a vegetative state. If your wishes whether for religious or philosophical reasons are not to be removed from a ventilator or to have mechanical feeding cease, even if you are in a persistent vegetative state, make these wishes clearly known. They should be respected, health care reform or not. However, broad generalizations are dangerously inappropriate. If you face days of invasive medical procedures and what might be at most statistically insignificant longer life, or you can spend statistically about the same time in hospice, with the warmth of family, the guidance of your spiritual adviser, etc., even for someone with a strict fundamental faith what is preferable? Too often the decision is reduced to black and white inaccuracies, just like the death panel hyperbole. Consultations with appropriate advisers (medical, religious or other) is the only way to make informed decisions. Everyone should endeavor to address known issues and likely scenarios in advance. If the unforeseen occurs, that is why you should have a signed health proxy or medical directive appointing someone to undertake this analysis on your behalf.

√ Of the meager 29% who have living wills too often the family disregards a parent’s end of life wishes and don’t disclose the documents. Instead, out of guilt they often opt for aggressive end of life treatments the parent didn’t want, or they pursue what they believe to be religiously correct regardless of your religious beliefs. Think what you want, but the incidences of family members intentionally not disclosing living wills seems tragically significant.

√ Almost no families hold the recommended meeting with their advisers to discuss what often are widely divergent religious issues of their children (or other loved ones) and the impact on end of life decision making. While unpleasant and difficult, it will always prove easier to deal with then the explosions that too often occur when a parent or other family member is near death.

√ Bottom line: People are creating a frenzy over a non-existent threat, when they have the power to address the real underlying issue, few bother too, and of those that do, even fewer understand the implications or act to honor the decisions ultimately made. There is an issue here, but not what the media is focused on. Personal responsibility is at the heart of this issue and health care reform generally. Every adult should prepare the appropriate documents, make their wishes known, and make the effort to understand the personal, life, religious and other implications.
Recent Developments Article 1/3 Page [about 18 lines]:
■ Proper Prenup Protects Estate: W and H signed a prenup agreement. Both were represented by counsel, engaged in discovery, and schedules of assets, liabilities and income tax return were attached to the agreement. H and W married July 8, 2003. H died March 9, 2008. On March 31, 2008 W filed a caveat to H’s will. A caveat is a challenge that the will should not be admitted. Issue – should the caveat be rejected and the will accepted, or should the prenuptial agreement be rejected and W be permitted to take a surviving spouse’s elective share under N.J.S.A. 3B:8-1 to -19. An elective share is a minimum inheritance a surviving spouse is entitled to by law, regardless of a will, if this right was not properly waived. W claimed, among other things that the agreed payments were made to her under a trust instead of under the will as required. The court found no practical difference. The court noted that the law, N.J.S.A. 37:2-38, places the burden of proof to set aside a prenup on the party alleging the agreement to be unenforceable and that burden must be met by clear and convincing evidence. A challenge can succeed on equitable considerations, such as unconscionability, failure to disclose, etc. In the matter of the estate of Donald Towbin, Deceased, Sup Ct NJ, App Div, Docket No. A-0161-08T30161-08T3, March 16, 2009.
■ Real Estate Tax Audits: The IRS Estate and Gift Tax Program recently started working with state and county authorities in several states to determine if real estate transfers reported to them are unreported gifts. Although a tax may not be due, a gift tax return may be required for real estate transfers above the annual exclusion amount. Penalties will be considered on all delinquent taxable gift returns filed.
Potpourri ½ Page:
Trust Protects Against Later Suit: Florida resident Grantor established a Trust. On Grantor’s death Trust divided amongst Grantor’s children. Defendant is the lifetime beneficiary of Trust which provides: ◙ The Trustee may, in the Trustee’s sole and absolute discretion, distribute to or for the direct or indirect benefit of B so much of the net income and/or principal from B’s Trust, up to the whole, during his lifetime, as Trustee deems advisable. ◙ Neither the beneficiary nor any other person or entity shall have any right to require or compel Trustee to make any distribution for any purpose whatsoever. ◙ No share or interest of any beneficiary shall vest in the beneficiary until actually paid or delivered to him or her by Trustee. ◙ Nor shall any share or interest of any beneficiary be liable for his or her debts, or be subject to the process or seizure of any court, or be an asset in bankruptcy of any beneficiary. ◙ No beneficiary shall have the power to anticipate, pledge, assign, sell, transfer, alienate or otherwise encumber his or her interest in any trust created hereunder in any way, or in the income. ◙ Nor shall any interest in any manner be liable for, of subject to, the debts, liabilities or obligations of any such beneficiary or claims of any sort against such beneficiary.

The court entered a judgment against defendant for failure to pay child support. The lower court held that the payment of child support is the paramount debt that any person could have. It is the most important obligation that a person has, is to support their children. However, on appeal the Court noted that the Trust was a non-self-settled trust established by a Florida resident, and comprised solely of the settlor’s property. Neither trustee was a resident of New Jersey. Other than the trustees subjecting the Trust to the special voluntary appearance to contest jurisdiction, the Trust has had no other contact with New Jersey. Pursuant to its own terms, the Trust is governed by Florida law which recognizes spendthrift trusts. The right of a third party to garnish assets of a beneficiary of a spendthrift trust is limited to disbursements from the trust and if disbursements are wholly within the trustee’s discretion, the court may not order the trustee to make such disbursements. The validity of spendthrift trusts is also recognized by New Jersey. In re Estate of Bonardi, 376 N.J. Super. 508, 516 (App. Div. 2005); Constanza v. Verona, 48 N.J. Super. 355, 359 (Ch. Div. 1958). Accordingly, even if the trial court had jurisdiction over the Trust, the court could not have ordered the trustees to disperse funds from the trust to pay an obligation of defendant. Lerman, v. Lerman, Sup Ct NJ, App Div Dock. No. A-1953-07T31953-07T3.
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