North Carolina Wealth Law Counselor : North Carolina Estate Planning Lawyers & Attorneys for Asset Protection & Trust Administration in Greensboro, Raleigh & Winston-Salem NC

In SEC v. Solow, the Securities and Exchange Commission ("SEC") charged Jamie Solow, a stock broker, with a fraudulent trading scheme involving inverse floating rate collateralized mortgage obligations. The case was tried to a jury , which returned a verdict in the SEC's favor on all seven counts. The final judgment found Mr. Solow liable for $2,646,485.99, plus prejudgment interest of $778,302.91, plus a civil penalty of $2,646,485.99.

During the four months between the date the trial ended and the date the final judgment was entered, Mrs. Solow retained a firm that specialized in Cook Islands trusts. Pursuant to the plan they created, the Solows, among other things, stripped approximately 6.5 million dollars in equity from two Florida properties, one of which they owned as tenants-by-the-entirety, and the other of which was owned by a corporation of which Mrs. Solow was the sole shareholder.

Following the entry of the final judgment Mr. Solow made three payments totaling $2,639.24 to the Court so the SEC sought to hold him in contempt. In response Mr. Solow argued:

1. The properties from which the equity was stripped were exempt from creditors' claims because the properties were held as tenants-by-the-entirety with his wife and, therefore, could never be reached by his creditors (a good argument)
2. He had no ability to make the trustee of the Cook Islands trust pay the judgment (a bad argument)
3. As a result of the Court's order he could no longer be a stock broker and, therefore, could not earn money to pay the judgment (an ugly argument)

After reviewing other securities fraud cases in which the defendant sought to shelter assets in an offshore trust, notably In re Lawrence and SEC v. Bilzerian, the Court noted, " where assets are held in an offshore trust, the 'burden of proving impossibility as a defense to a contempt charge will be especially high.'" 

The Court went on to point out that because disgorgement is an equitable remedy, a federal district court is not bound by state exemption laws. Instead it "has broad discretion in fashioning the equitable remedy of a disgorgement order...and will not be guided by state law where its effect is to make a liable party judgment proof." The Court noted that Mr.Solow created the impossibility by transferring the assets to the Cook Islands trust and, therefore, the defense of impossibility was unavailable. As a result the Court ordered Mr. Solow to be jailed until he satisfied the disgorgement order.

If offshore trusts are so great, what went wrong?

1. Hiding ill-gotten gains is never a goal of asset protection.  The  majority of "bad" asset protection cases are those in which the defendant is attempting to secret ill-gotten gains or avoid paying a federal tax liability.
2. The best asset protection plans, implemented for lawful reasons, are those implemented well before there are any claims on the horizon.
3. It is often said, "It is okay to be a pig, but all hogs get slaughtered." It is worth consideration whether if, had the Solows done nothing, the court would have forced the sale of their home.

Whether and when to use an offshore trust depends on the particular client's unique facts and circumstances.  As with all other planning techniques, the best plans are implemented well prior to the existence of any threatened or actual claims. Finally, legitimate asset protection planning never involves sheltering ill-gotten gains.

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The English proverb, "A fool and his money are soon parted" is particularly applicable in the context of tax schemes and bogus asset protection plans.  Sometimes half the battle is pointing out the bogus plans and scams and why those plans not only do not work, but subject the client to even greater losses.

The recent Tax Court case of Matthies v. Commissioner is such a case.  From the Tax Court's perspective, here is what happened and what went wrong. 

Mr. Matthies was the sole owner of a s-corporation.  The company had a profit-sharing plan ("PPS").  Mr. Matthies had an IRA as well. Mr. Matthies was the sole trustee of the PPS.

Mr. Matthies was "sold" a "Pension Asset Transfer" plan, which claimed it could "transfer qualified pension assets or IRA dollars to the participant or the participant's family without significant taxation."

Mr. Matthies made two transfers of $1,250,000 from his IRA to the PPS. The PPS purchased life insurance on Mr. Matthies inside the PPS, with the premiums paid by the PPS.  The PPS transferred the policy to Mr. Matthies for the policy's cash surrender value of $315,023, net of a $1,062,461 surrender charge. Mr. Matthies valued the policy at the cash value, net of the surrender charge, and reported no gain.  The IRS assessed a deficiency for the surrender charge amount and sought an accuracy related penalty.

The Tax Court ruled that under the regulation in effect at the time, the value of the policy was the entire cash value, inclusive of the surrender charge.  As a result, Mr. Matthies had to recognize the bargain element, i.e. the surrender charge of $1,053,304 he did not pay, as income.  The Tax Court declined to impose an accuracy related penalty because it was an issue of first impression.

As Paul Harvey said, "And now for the rest of the story."

Through an insurance agent, Mr. Matthies was put in touch with GSL Advisory Service who marketed a "Pension Asset Transfer" (PAT) plan.  Among other things, GSL represented that it:

• had "an IRS nationally approved prototype plan, the only plan with specific language to support this kind of purchase"
• its product would deliver 25% better results than comparable products (I thought it was the only one)
• a positive IRS determination letter is provided on each and every case (where was it in this case)

In his article, Court Orders Walnut Creek - Lafayette Man, Edwin Lichtig III, to Stop Peddling Unlawful Tax Schemes Tom Dunn reports that a federal court in San Francisco ordered one of GSL principal's Ed Lichtig, to stop promoting unlawful tax schemes including the PAT plan as well as the FROCO (Financed Roth Conversion Strategy), which "allegedly helped customers use annuities to transfer funds from their traditional IRAs to Roth IRAs without paying the proper amount of tax that is imposed on such transfers."

Beware tax schemes and asset protection plans that make too-good-to-be-true promises. GSL's representations were classic red flags.  The next time you or your client is approached by someone peddling such a plan, look closely. Ask competent tax counsel to review the deal before you leap.

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Failure to specify whether real property was deeded as tenants-in-common or tenants by the entirety created an additional $330,000 federal estate tax deficiency.  In Goldberg v. Commissioner, a recent Tax Court case arising in New York, the decedent executed deeds for two pieces of property, both located in New York, to "Oscar Goldberg and Judith Goldberg, as wife."  At the time the decedent, Oscar Goldberg, executed the deeds, he was married to Judith Goldberg.

After his wife's death in 2001, in that same year the decedent executed two deeds conveying all of Judith's interest in each of the two properties to a trust.  Following the decedent's death in 2004, his estate listed one-half the value of each piece of property on Schedule E of Form 706.  The Service assessed a deficiency of $330,432.96 based on its contention that the decedent owned the properties as tenants by the entirety with his wife, not as tenants-in-common.

State law determines whether and to what extent a taxpayer has an interest in property and federal law determines the tax effect of that ownership interest.  Under New York law, absent any further language in the deed, a conveyance to a husband and wife creates a tenancy by the entirety. The rule is the same in North Carolina.

If property is held as tenants by the entirety, the surviving spouse becomes the sole owner of the interest in property owned by the married couple at the death of the first spouse, regardless of what the spouse's will may say. As a result, there is no separate interest of the first spouse that could be passed by will, deed, or intestacy (dying without a will).

On the other hand, if property is held as tenants-in-common, each tenant-in-common owns an undivided interest in the property that it can be transferred by will, deed, or intestacy.  A tenant-in-common interest can also be reached by a creditor of just one of the tenants-in-common, while a tenancy by the entirety interest can only be reached by a creditor of both spouses on the same obligation.

This case does not mention Judith Goldberg's date of death, nor does it mention who were the beneficiaries of her trust.  Depending on the circumstances, Mr. Goldberg's executor may have been able to avoid the problem altogether by executing a qualified disclaimer, but the case is silent on this issue.

While most real property owned by a married couple in North Carolina is held as tenants by the entirety, there are circumstances where real property owned by couples should be held as tenants-in-common.  In that case, care must be taken to indicate that intention clearly in the deed, otherwise the law will deem the property to be held as tenants by the entirety, which defeats the planning goals and objectives.

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Until recently, the answer would have been a fuzzy, "Uh maybe.  I don't know."  Now the answer is a resounding YES.  Withdrawals from an IRA account are exempt--regardless of how the judgment debtor chooses to use the withdrawal or the age at which the debtor makes the withdrawal (i.e. premature distributions before age 591/2).

In Kinlaw v. Harris the North Carolina Court of Appeals ruled that a defendant may withdraw funds from an IRA and use those funds "in the same manner as if there were no judgment against the Defendant."  Thus the funds representing the judgment debtor's withdrawal from his IRA remained exempt.

An "exempt" asset is one that cannot be seized by a creditor to satisfy a judgment.  The type and amount of assets that are exempt from creditors' claims varies by state. Some states do not exempt IRAs at all.  Others, like California, only exempt IRAs to the extent reasonably necessary to support the debtor and his family.

The Kimball court noted that the tax consequences, if any, of the withdrawal had no bearing on whether the withdrawal was exempt.  In this case the withdrawal was from a traditional IRA, so the debtor had to pay ordinary income tax and, because the debtor was under age 59and 1/2, an early withdrawal penalty of 10% of the amount of the withdrawal. 

Had the debtor's IRA been a Roth IRA, which is funded with after-tax dollars, not a traditional IRA, which is funded with pre-tax dollars, subject to certain timing conditions, the debtor could have withdrawn the amount of his contribution without any penalty and free of any additional income tax. 

This is a new and important asset protection planning tool.  Under North Carolina law, IRAs are exempt from creditors' claims without regard to whether the IRA is necessary to support the debtor's family.  Plus, unlike some states' exemptions as well as the federal bankruptcy exemptions, North Carolina DOES NOT LIMIT the exemption to a particular dollar amount.  Instead, any amount in an IRA (traditional or Roth) is exempt. Now, any withdrawal from an IRA is exempt as well.

 

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Is your Irrevocable Life Insurance Trust ("ILIT") funded by a universal life policy more than five years old? 

If so, your ILIT could go from a safe vehicle to leverage and shift wealth on a potentially estate and income tax free basis to a ticking time bomb that may implode when you need it the most. If your ILIT holds a universal life policy, now is a good time to dust off the policy and ask the carrier for a new illustration based on current assumptions. 

Here's why. Universal life policies are interest sensitive products, which means the illustrations the carrier gave when the policy was taken out were based on the prevailing interest rate environment at that time. In the early years of a universal life policy, the actual cost of insurance is for  far less than the premium and the insurance company invests the difference. The insurance company is betting it can make enough in the early years of the policy so that it can make up for the increased cost of insurance in the later years of the policy.

If the investment does not perform as the illustration shows, i.e. the internal rate of return on the investment is less than projected, the policy will terminate unless the owner infuses additional cash. If your universal life policy is older than five years, the interest rate assumptions contained in the illustration given when the policy was issued are probably unrealistically high, which means your policy is on a road to self-destruction.

A careful review of the illustration may show when the policy will implode due to these increased costs. But remember, that implosion date was determined based on the interest rate environment at the time the policy was issued. If the insurance company's return on investment is less than expected, the implosion will happened sooner, not later.

The good news is that in most cases the ticking time bomb can be diffused, sometimes on a tax neutral basis. It all starts with requesting a new illustration based on current assumptions, which the insurance company must provide upon request free of charge at least once a year. The new illustration based on current assumptions will show the new implosion date (date the policy lapses based on current assumptions).

With this information, you may be able to diffuse your bomb before it goes off and leaves nothing behind.

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In a recent decision, the normally unfriendly United States Tax Court ruled in favor of a taxpayer in a family limited partnership ("FLP") case. 

In Estate of Shurtz (.pdf), the Tax Court ruled that despite somewhat lax observations of the corporate formalities, a FLP was nevertheless formed for legitimate non-tax reasons and that the formation was a bona fide sale for full and adequate consideration.  The Tax Court held that asset protection and protection of the family business is a legitimate non-tax purpose. 

While the Shurtz' FLP followed ordinary formation procedures, the FLP:

• failed to open a checking account for at least 4 months
• made disproportionate distributions
• did not keep normal partnership records (accountant's records served as the paper trail to document capital accounts and other transactions). 

Nevertheless, the court ruled there was a bona fide sale for full and adequate consideration.  Reviewing the factors set out in Bongard (.pdf), a 2005 Tax Court case, the Shurtz Court noted:

1. The contributors received interests in the FLP proportionate to the ownership interest each contributed. The Shurtz engaged an accountant to calculate the value of a 1-percent general partnership interest in the FLP based on the value of the total property being contributed. The Shurtz each contributed property equal to the value of a 1-percent general partnership interest and the 98-percent limited partnership interest.
    
2. The respective assets contributed were properly credited to each partner's respective capital account.
    
3. Distributions from the FLP required a negative adjustment in the distributee partner's capital account.
    
4. Asset protection and protection of a family business is a legitimate and significant non-tax business reason for the establishment of the FLP.

For these reasons, the Tax Court was satisfied that the formation of the FLP and the contribution of property to the FLP were carried out in the way that ordinary parties to a business transaction would do business with each other. Consequently, the Tax Court ruled that the transfer of property to the FLP was made for adequate and full consideration.

FLPs, which include family limited liability companies, present a great opportunity to pass family wealth to future generations at discounted values, while at the same time providing significant asset protection features to preserve and protect a family's accumulated wealth.  However, the window of opportunity for passing wealth at discounted values may be closing soon.

The most recent proposal sent over by the White House substantially restricts valuation discounts.  If the legislation is passed in its current form, any entities formed and funded after the effective date of the legislation will lose valuable opportunities for discounting.  Once closed, the window may remain closed forever.

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In a recent article Reuters' article, "Vegetative patient "talks" using brain waves" Kate Kelland writes,

British and Belgian researchers used a brain scanner called functional magnetic resonance imaging to show the man, who suffered a severe traumatic brain injury in a road accident in 2003, was able to think "yes" or "no" answers to questions by wilfully changing his brain activity.

This story follows closely on the heels of another recent article by CNN's Mark Tutton, "Trapped 'coma' man: How was he misdiagnosed?" which reported how a Belgian car crash victim was misdiagnosed as being in a vegetative state for 23 years, when he was actually conscious the whole time.

These two articles highlight the need for those executing healthcare powers of attorney to have thorough conversations with their healthcare agents regarding the type of care and treatment decisions the healthcare agents should pursue if called upon to act.

Many state legislatures, including North Carolina's, have created statutory forms for healthcare powers of attorney and living wills.  While these forms convey the necessary legal authority, most are silent when it comes to communicating the principal's (the person on whose behalf the agent acts), wishes and desires.

Every person executing a healthcare power of attorney or a living will should discuss the following scenarios with their agent:

• If you are in a coma or persistent vegetative state
• Near death and in a coma with a small, but uncertain, chance of regaining higher mental function
• Terminal illness with weeks to live, but sometimes seem awake and seem to have feelings
• Brain damage or brain disease that, while not life threatening, is irreversible, but makes you unable to think or have feelings
• Other situations that come to mind

In these situations, should your healthcare agent:

• Treat aggressively
• Attempt to cure but re-evaluate frequently
• Limit treatment to less invasive/less burdensome treatment
• Provide comfort care only
• Other

Only by making their wishes clearly known to their healthcare agent, can someone insure that their wishes are clearly understood and honored. 

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North Carolina law exempts contributions to 529 plans from the reach of creditors. Recently a bankruptcy court called 529 plan exemptions into question, ruling that a grandparent's $40,000 contribution to a 529 plan owned by their child could be seized by the child's creditors in bankruptcy. 

In In re Bourguignon (.pdf), the debtor's mother contributed 40k to the 529 plan the debtor set up for the debtor's kids about two weeks prior to the debtor filing bankruptcy. The entire 40k was reached by the bankruptcy court and used to pay the debtor's creditors, leaving NO MONEY to pay for college!

As the court noted, it is the timing, not the source of the funds that determines whether it is property of the estate. The Bourguignon court explains why 529 plans enjoy only limited protection under bankruptcy law. Note the court's analysis is under 11 USC 541, which is property of the estate, not the exemptions and opt out provisions under 11 USC 522.

North Carolina is known as an "opt-out" state, which means North Carolina residents who file bankruptcy must use the exemptions provided by North Carolina law, not the federal bankruptcy exemptions. Under North Carolina law, only $25,000.00 of a 529 plan are exempt from the account owner's creditors. No amounts placed in a 529 plan within the 12 months preceding bankruptcy are exempt.

The asset protection issue could be solved simply by having a trust or llc be the account owner of the 529 plan. Where there are actual or anticipated large gifts to a 529 plan, it would be wise to set up a trust or llc to protect all funds within the 529 plan from creditors, not just the amounts protected under the Bankruptcy Code and North Carolina law.

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