Posts Tagged ‘IRS’
Monday, April 13th, 2009
I’d like to hug every judge who had a hand in this classic Tax Court decision: [Estate of Davis, 110 TC 35, 6/30/98]. Instead of giving all the dull facts and all the technical stuff in the case, this article deals with what the result means to you, the average business owner who someday must value your business for tax purposes.
You (Joe) operate your family business (Success Co.) as a corporation. The assets of Success Co. include a number of appreciated assets; for example, investments in stocks, land and buildings. Also many assets subject to deprecation — mostly equipment — are on the books for much less than their current value. Now suppose Success Co. is correctly valued at $5 million. The value of the various assets that Success Co. owes is $4 million, but has only a book value of $3 million. So, if Success Co. were to sell the assets or actually liquidated (neither Joe nor Success Co. intend to sell the assets or liquidate), there would be a $1 million profit. Say the tax (state and federal) on the profit would be $400,000. The question that faced the court was could the value of the corporation be reduced by $400,000 to $4.6 million? “Yes,” said the court, turning thumbs down on the IRS’s claim to ignore this built-in-gains discount (actually the potential tax due for an asset sale or corporate liquidation).
Applause! Applause! for the court. Think about it: That discount of $400,000 could save Joe about $210,000 in estate taxes.
As a practical matter, this case allows you to take three distinct valuation discounts: (1) a discount for lack of marketability; (2) discount for built-in gains of assets, even if you don’t intend to sell them or liquidate (technically a part of the marketability discount); and (3) a discount for minority interest if you are transferring 50 percent or less of your stock to one person (for example, Joe Gives 30 percent of his Success Co. stock to each of his two children). After these three discounts, a $5 million company may only be worth in the $3 million range for tax purposes. Or a $2 million discount, yielding estate tax savings of about $1.1 million. Truly a great victory!
Now a personal puff of pride for our office, which has a large valuation department. We have been taking similar discounts for built-in gains for years.
The right value of your business, whether transferring to your kids, for estate planning or for other purposes, is one of the most important tax-impact considerations in the law.
Do you have a business valuation problem — particularly if you want to transfer your business to another family member — that is driving you up the proverbial “tax wall?” Then you are welcome to call me (847-674-5295). Let’s chat about your exact situation.
Tags: 1 million, 5 million, 6 million, article deals, assets, business owner, current value, deprecation, family business success, investments, IRS, liquidation, marketability discount, minority interest, stocks, tax court decision, tax purposes, tc, valuation discounts
Posted in Uncategorized | No Comments »
Tuesday, April 7th, 2009
Applause! Applause!
Congress in 1998 buried an old and onerous gift-tax killer rule. Yet few people are aware of the tax-saving advantages of the new law.
First, some background. Gifts to your spouse are sheltered by an unlimited marital deduction, no matter how much the gift — during life or at death — there is no gift tax or estate tax. For lifetime gifts to all other individuals, the first $12,000 ($24,000 if married) is also exempt from tax.
A gift-tax return is generally not required for gifts qualifying for the marital deduction. On the other hand, a gift-tax return must be filed for all gifts in excess of $12,000 per donee (the person receiving the gift) per year.
Just like your income-tax return, your gift-tax return is due on April 15. For example, taxable gifts made in 2005 should have been reported on a gift-tax return filed by April 15, 2006. The IRS has three years from the date a gift-tax return is filed to make a gift-tax assessment. So, if the IRS decides four years down the road that a gift was worth more than the value shown on your timely filed gift-tax return, it’s out of luck. The IRS cannot assess any additional tax on the gift.
In the past, there was a catch.
Again, some background. The estate and gift taxes are unified so that a single graduated rate schedule applies to cumulative lifetime and death transfers. As a result, the final tax on your estate depends on the amount of taxable gifts made during your life.
The more lifetime taxable gifts, the higher your estate tax.
Sad but true, the courts allowed the IRS to revalue gifts — even after death — in order to determine the decedent’s estate tax. While it was too late to assess additional gift taxes on the gift (because the three-year time period had run out), the revalued gift could bump the estate into a higher tax bracket and cost — often huge — additional estate-tax dollars.
If the IRS claimed that a lifetime gift — very often the stock of a family business — was seriously undervalued, the tax on the estate would skyrocket. The estate had a tough time proving that a business valuation made years earlier (5, 10, 15 years or more) was and is still correct.
OK, let’s hear the drumroll for the new law:
For gifts made after Aug. 5, 1997, the IRS can no longer revalue lifetime gifts for estate-tax purposes. You must only jump through one hoop: report the gift on a gift-tax return. The value of the gift must be shown on the return or disclosed on the return or an attachment in a manner adequate to disclose to the IRS the nature of the gift.
After three years, the IRS (and you) are bound by the values shown on the return.
The door is, however, still open for the IRS to revalue some gifts:
• Any gift made prior to Aug. 6, 1997;
• A gift-tax return is filed, but the gifts are not properly disclosed or reported;
• Gifts not shown on a return;
• No gift tax return was filed because you thought the gift was worth $12,000 or less.
Here’s what to do for absolute protection:
Except for cash gifts under $12,000, report all gifts — particularly gifts involving the stock or an interest in any kind of family business or partnership — on a timely filed gift-tax return.
The more you are worth, the more your estate plan should include a well-thought-out lifetime plan, which includes a gifting program to the next generation.
Generally, cash gifts are a no-no. Leveraged gifts (usually involving a family limited partnership (FLIP), intentionally defective trust (IDT) or one or more of the dozens of life insurance strategies, are smart. They beat up the IRS legally and keep you in control of the gifted assets for as long as you live.
Gifting (using an FLIP, IDT or life insurance) is only one of 22 strategies used to legally avoid the estate tax. Learn how and when to use all the strategies —whether you are worth $2 million or $20 million.
Tags: congress, cumulative lifetime, decedent, family business, gift tax return, gift taxes, higher tax bracket, income tax, IRS, lifetime gift, marital deduction, stock, tax assessment, tax dollars, taxable gifts, time period
Posted in Estate Tax, Family Tax Issues, General Tax Strategies, Insurance | No Comments »
Sunday, April 5th, 2009
Through the years, our office has listened to an endless stream of taxpayers complain about the income tax.
But if you ever want to see anger, frustration and bitterness, meet with the beneficiaries (usually the kids) of an estate when they are told to write a seven- or eight-figure check to the IRS — for estate taxes.
Taxes that could have been avoided with proper planning.
Tragic!
A recent post-death estate planning consultation got us thinking about what you are now reading. Yes, the estate tax was exactly $3,167,000 after Mom died; Dad had died six years earlier. The really sad part of this story is that Dad’s and Mom’s entire estate tax liability could have been legally avoided with a rather simple estate plan.
Mom and Dad were survived by three kids and eight grandchildren. The business that Dad started back in the mid-50s was worth $4.5 million and owned 100 percent by Mom when she died.
According to Dad’s estate tax return, the business, which he left to Mom, was worth $2.9 million when he died. No estate tax (because of the marital deduction) was paid when Dad died.
Dad and Mom had a typical estate plan: a will and a trust. The trust created two trusts: one trust to take advantage of passing $1 million tax-free (the amount that was tax-free when Dad died) and a second trust to capture the marital deduction.
The tax-free amount is $2 million in 2006, rising to $3.5 million in 2009 and back to $1 million in 2011.
There is no estate tax if you die in 2010. I’m betting Congress will change these amounts before 2010 (or sooner).
The real answer (to why many people procrastinate and don’t complete a comprehensive estate plan during their life) is the deceased person whose estate caused the tax did not have to personally write that big check to the IRS.
Whenever we are about to plan an estate, we estimate the amount of estate tax that ultimately will be due.
Then we ask the client to write a check to the IRS for that amount. The client always gets the point. Then, we plan the estate so the client’s wealth goes to their family, instead of the IRS.
The plan must be a lifetime plan, that implements the proper strategies, as necessary, during your life. A plan contained in the typical will and trust-like Mom’s and Dad’s above-only enriches the IRS.
The person (your executor) who must write the check to pay your estate tax is helpless when it comes to minimizing or eliminating the estate tax. Only you, while you are alive, can eliminate the estate tax… by creating the proper comprehensive estate plan.
Here are the three things you can do to drive the estate-tax devil away:
(1) Learn all you can (this column is a good start);
(2) No matter what your age, put a complete estate plan into place now (then monitor it every two to four years);
(3) Only work with experienced professionals who can show you how to pass all your wealth — intact —to your family (if you are not sure, get a second opinion).
Tags: 1 million, 401 k plans, annuities, balance sheet, beneficiaries, business life, business succession plan, capital gain, conservative investments, consultation, deceased person, employee benefit plan, endless stream, estate planning, Estate Tax, estate tax return, income in respect of a decedent, income tax, Insurance, IRA, IRS, marital deduction, moneymaker, potfolio, predictable response, professional advisers, profit, qualified retirement plan, return, sacred cows, stock market, strategy, tax deffer, tax free, tax free investments, tax liability, taxpayers, trusts
Posted in Estate Tax, Family Tax Issues, General Tax Strategies | No Comments »
Saturday, April 4th, 2009
Professionally, my second love is writing this column. My first love is consulting with the people who read it.
Every family I work with is different. So are their businesses, their situations, their problems. In spite of these differences, I’m rarely surprised by anything totally new. But one reader sent me something I had never seen before.
Here’s the story.
After about an hour on the phone discussing an estate plan, son Sam calling at the request of dad Joe agreed to send me some typical information: tax returns, financial statements and a copy of the existing plan. About one week later, a heavy box arrived with a five-inch stack of documents. About four inches worth were nine separate family limited partnerships. They were the same except each partnership owned a different asset: the family business, a residence, investments, etc.
As I thumbed through the papers, I couldn’t help thinking about the drunk who was told, “A shot of whiskey each day is good for you.” The guy who did Joe’s estate plan was clearly drunk on partnerships.
One thing should be made clear: I am an enthusiastic cheerleader for the use of limited partnerships in estate planning. Use ‘em all the time. But this overkill of a single strategy just didn’t do the best possible job.
Using the computations of the adviser, the IRS would get more than $2 million in estate taxes. Another $1.1 million of IRS enrichment was likely because of a gross misuse of the partnership strategy.
What does a family limited partnership accomplish? It allows you as a general partner to totally control the use of any asset transferred to the partnership yet reduce the value of the assets transferred. For example, $1 million of assets transferred to a partnership are usually worth only about $650,000 for tax purposes. That $350,000 discount in a 55 percentestate-tax bracket would reduce your estate-tax burden by $192,500. Not bad!
A familylimited partnership is also a great asset-protection strategy. Creditors can’t get at the assets in the partnership. Neither can divorcing spouses of your kids, who are usually the limited partners.
Used properly, a partnership is almost a perfect tax tool. In general, don’t use them to own the stock of your family business. Nor should one be used for non-income-producing personal assets, like a home or car. It’s a valuable strategy for almost every other asset you might own: publicly traded stocks and bonds, real estate, you name it.
Without covering every detail, we terminated the partnerships that held the family business and two family homes. The business elected S corporation status and was transferred to an intentionally defective trust, and the residences were transferred to qualified personal residence trusts. Those are similar concepts that allow you to heavily discount the value of the assets transferred to them.
We used the liquid assets in two other partnerships to pay the premiums on second-to-die life insurance on Joe and his wife, which was owned by an irrevocable life insurance trust that we created. That trust removes life insurance from the taxable estate of the husband and wife.
When all the smoke clears, Joe and his four children, including Sam, will be enriched $4 million to $7 million more than the original overkill plan, depending on how long Joe and his wife live.
One warning: This is an example of overindulgence in one tax strategy. Although the above descriptions cover the main points of how Joe’s problems were solved., this is not a do-it-yourself kit. There are a number of traps and exceptions. Only proceed with the help of an expert.
Tags: annuities, asset protection, computations, creditors, estate planning, Estate Tax, family business, family limited partnership, family limited partnerships, general partner, gross misuse, income tax, information tax, Insurance, IRA, IRS, partnership strategy, potfolio, profit, protection strategy, qualified retirement plan, return, son sam, stock market, strategy, tax burden, tax deffer, tax free, tax free investments, tax purposes, tax returns, whiskey
Posted in General Tax Strategies, General Tax Talk, Uncategorized | No Comments »
Friday, April 3rd, 2009
Business owners have many legitimate complaints these days: taxes, regulations, competition (from home and abroad), can’t find good people.
The list goes on and on. Always has, always will.
Yet the pride of the American capitalistic system is the successful family business. These entrepreneurs have found their way through, around or over the seemingly endless obstacles to become a “successful business owner.”
An SBO for short.
For the purposes of this article, SBOs have excess funds to invest (other than back into the operation of their business that produced the funds in the first place). Typically these excess funds are in one (or more) of three places: (1) still in the business, (2) in their (or spouse’s) name or (3) in a qualified plan (profit-sharing, 401(k), IRA or similar plan).
Over the years, the quote that follows has been nicknamed the SBO’s lament:
“I know how to make money in my business, but when it comes to making money with my investment money, either I don’t have time to watch it, don’t know how to watch it or rely on my investment advisor. When the market is up, my advisors do fine, when it’s down they do lousy.”
For the past couple of years, the lament usually ends with, “Now the market is lousy (or down, or uncertain, or similar words). What should I do?”
Now, regular readers of this column know that I am a tax planner prone to finding legal ways to avoid all types of taxes — particularly estate taxes. To do this requires, among other things, getting my client’s personal balance sheet.
Here’s what I can tell you that the balance sheets reveal about the investments of SBOs (and also other estate planning clients). Their success (or failure) in the stock market and a myriad of other investments, in general, mirrors the Dow Jones: happy on the way up and painful on the way down.
Usually, real estate investments are a winner.
Now what about that excess cash? Terrible results. Almost always the investments are conservative: divided between (1) CDs and money market funds, (2) municipal bonds and (3) a “zillion” variety of annuities. After taxes and inflation, your net earnings on (1) investments are typically less than 3 percent, sometimes even negative. Those income tax free bonds, (2), not only have a low rate of return, but fall in value when interest rates rise. Annuities, (3), could fill a large book to describe all the varieties and, most of all, the complaints from clients.
Never has a client told me that he/she is happy with the results of an annuity. (Sure would like to hear from a reader who has personally had a positive experience with any annuity.)
As you can imagine, almost every estate planning consultation with an SBO — and other clients — requires serious consideration concerning the client’s investments: safety, risk, tax consequences, rate of return and other factors. We discuss alternate investments, considering, among other things: profitability, risk and how taxed.
Currently, the most popular alternative investment is senior settlements (SS), also called Life Settlements. The following quote from The Wall Street Journal and USA Today (and other sources) tells you why SS are becoming such a popular investment.
“Life Settlements (have become a) trillion dollar industry, dominated by institutional investors including Berkshire Hathaway (billionaire Warren Buffet’s company), AIG and CNA. Their pursuit of this market is related to the degree of safety, high yields in excess of 15 percent per year and the fact that a Life Settlement is not affected by market forces.
“Life settlements are a very good option for the investor who has as his or her investment philosophy a desire for a secure, safe and ‘no risk’ investment. It is for your ‘nest egg’ money. It is not considered a security by SEC. Therefore it is not normally provided as an investment option by stock brokers.”
Of course, your question is: “Can a little guy (as opposed to an institutional investor) invest in SS?
Yes, it’s all made possible by a small, publicly traded (on the NASDAQ) company. Its average rate of return an SS investments has been 16.28 percent per year on average during the company’s 14-year operating history.
If you want to make a killing on your investments, SS are not for you. But if a 16 percent-plus rate of return, with no market risk is of interest to you (or your IRA, 401(k) or other qualified plan) fax me (847-674-5299) your name, address, phone numbers (business/home/cell) and estimated amount to invest ($50,000 minimum, for accredited investors).
Tags: annuities, annuity, balance sheets, business owner, capitalistic system, cash surrender value, common denominator, dow jones, estate planning, Estate Tax, excess cash, happy on the way, income tax, Insurance, investment advisor, IRS, legitimate complaints, life insurance product, money marke, municipal bonds, nook and cranny, personal balance sheet, principal and interest, profit, profit sharing, qualified retirement plan, real estate investments, stock market, successful business, tax deffer, tax free, tax free investments, transferable insurance policies, types of taxes
Posted in Estate Tax, General Tax Strategies, Investment Strategies, Uncategorized | No Comments »
Friday, April 3rd, 2009
This article is about an old IRS letter ruling that is one of my favorites. It might be labeled “The lazy man’s way to plan your business transfer.“
The ruling shows you how to take advantage of some favorable tax law while avoiding pitfalls. Good stuff!
Well, there is one slight problem to using the technique: You must drop dead before your family can enjoy the benefits of Letter Ruling 9116031.
But wait, hold the phone. The ruling has one redeeming quality. Really!
First, the facts: Joe, his wife, Mary, and their children owned all the stock in a family business. Joe died in 1990 and Mary inherited all of his stock.
(Note: Mary’s tax basis — for computing capital gains — is the fair market value (FMV) of the stock on the day Joe died. For example, if the FMV was $1 million and she sold it for $1 million, there would be no capital gains tax.)
The fact that Joe’s tax basis, while he was alive, was $25,000, is immaterial. Mary immediately sold all of her stock back to the corporation.
Here’s the general rule: When you or any member of your family sells stock back to your corporation (called a redemption), the redemption is usually taxed as a dividend — a tax disaster.
But there is a special tax-saving exception for a family member who has owned the stock for 10 years or more: If he/she divests all interest in the company (including any position as an officer or director), the redemption is treated as a sale (gets favorable capital gains treatment, instead of being a dividend).
Since Mary sold all (stock she owned before Joe died and stock she inherited from him) of her interest in the corporation, the purchase by the corporation of her shares was considered a bona fide sale (redemption) and not a dividend — a big tax victory.
When all the smoke cleared, not only had Mary escaped a big dividend income tax bill, but she had succeeded in effectively transferring the business to her children. How? Since the kids now owned all the remaining issued and outstanding stock, they owned 100 percent of the business.
To sum up: Mary walked off with a near-tax-free capital gain, (the price paid to Mary for the stock was a bit more than the exact FMV of the stock inherited from Joe) while the kids walked off with the business.
A fantastic tax result.
Stop and think about your own business succession plan for a moment. Isn’t that the result you want — a fantastic tax-free (for income, gift and estate taxes) result? Yes, you can get that tax-free result every time.
More often than not, succession plans are implemented during life, which means there is a second issue (the first issue is tax-free): control.
The typical business owner wants control of his business for as long as he lives. So, when you sit down with your professional advisors, make sure you accomplish a perfect solution to the two key issues: (1) a tax-free transfer and (2) keeping control for as long as you live.
If any other result is offered (no matter how good or smart it sounds), get a second opinion.
Tags: 1 million, 401 k plans, annuities, business transfer, capital gains tax, computing capital, dividend income, employee benefit plan, estate planning, Estate Tax, family business, family limited partnerships, family member, favorable tax, fmv, good stuff, income in respect of a decedent, income tax, income tax bill, Insurance, insurance premium, investment interest, IRA, IRS, irs letter ruling, lazy man, note payments, one of my favorites, painful subject, pitfalls, potfolio, predictable response, profit, qualified retirement plan, redemption, return, sacred cows, stock market, strategy, tax deffer, tax disaster, tax free, tax free investments, tax victory, wife mary
Posted in Corporate Tax, Estate Tax, Tax Strategies | No Comments »
Friday, April 3rd, 2009
Often, I feel like an old-fashioned country doctor makin’ house calls. But there is a difference: my patients are sick of paying taxes.
Recently, I visited a successful family business in North Carolina, owned by a semi-retired 64-year-old named Joe and run by his son, Sam, a 36-year-old.
Joe called me. He wanted a second tax opinion for a business transfer plan and an estate plan put in place by Sam (with the advice of his professional advisors, the “best” estate planning team in the county) almost two years ago.
Wow, this patient was really sick (running a high tax fever, bleeding lots of tax dollars).
This is the story of the symptoms, the diagnosis and the “magic tax potions” that cured the patient.
First, the facts:
Joe owns 98 percent of two corporations: a profitable S corporation (Success Co.), which operates a string of stores, and a C corporation (a tax-paying corporation, called R/E Co.), which owns real estate leased to Success Co.
The real estate has an income tax basis of $1 million, but a current fair market value of about $6 million. Sam owns the remaining two percent of the stock of both corporations. Each of the corporations is the owner and beneficiary of a separate $1 million insurance policy on Joe’s life.
Four more little details:
• Joe’s second wife, Mary, is 45 years old and they have a premarital agreement that gives Mary the income from one-half of the value of Joe’s assets at his death for as long as Mary lives. But get this: none of the stock of Success Co. can be used to provide Mary her income.
• An artificially low price in a buy/sell agreement would force Joe’s estate to sell his stock in Success Co. back to Success Co. and the same for R/E Co. (Result: Sam would then own 100 percent of both corporations.)
• Joe has two other grown children who are not in the business.
• Joe is not insurable.
The diagnosis:
• The $1 million in life insurance payable to R/E Co. would kick up an unnecessary alternative minimum tax.
• The full $2 million of insurance would be included in Joe’s estate because he controls both corporations, but the $2 million (less the alternative minimum tax of about $150,000) would belong to the corporations, not Joe’s estate.
• There are not enough liquid assets to satisfy the obligation to Mary. Worse yet, if the obligation to Mary is met, there would be zero dollars (outside of the corporations) to pay an estimated $3.5 million estate tax liability. Simply put, the estate would be broke.
Our objectives to cure Joe’s tax illness are clear:
• Reduce the value of Joe’s estate.
• Get cash to fund the obligation to Mary.
• Pay the estate tax.
Here are the five major tax medicines I recommended to cure Joe’s business transfer and estate plan:
• Merge R/E Co. into Success Co. This maneuver is tax-free. R/E Co. is worth about $6 million as a real estate investment company but, as part of the operating company, its value is reduced by at least $2 million for estate tax purposes. Estate tax saving — over $1 million.
• Transfer the nonvoting stock (created after the merger) to a grantor retained annuity trust (GRAT), which reduces the value of Success Co. by about 40 percent for estate tax purposes. This maneuver saves about $.5 million in estate taxes.
• Joe takes the $2 million in insurance policies out of the corporations and gives it to his children. Result: The value of Joe’s estate drops about $2 million and will save another $1 million plus in estate tax.
• Change Joe’s will to put the entire estate tax obligation on the children. The $2 million in income tax-free/estate tax-free insurance proceeds will handle the entire estate tax load when Joe dies.
• Make sure Joe’s will qualifies for the 100 percent marital deduction for Mary’s one-half share, thus deferring any estate tax on this portion of Joe’s estate until Mary dies. Yes, there are other details and nuances in the plan, including gifts to Joe’s children, but these five tax medicines cured the patient.
What’s the lesson to be learned from this true-life Joe/Sam/Mary story? Always, yes always, get a second opinion after your estate plan is done, preferably before any documents are signed.
Tags: 401 k plans, alternative minimum tax, annuities, business transfer, c corporation, employee benefit plan, estate planning, Estate Tax, family business, income in respect of a decedent, income tax, Insurance, insurance policy, investment income, IRA, IRS, jonathan blattmachr, painful subject, pension plans, planning team, potfolio, premarital agreement, professional advisors, profit, profit sharing, qualified retirement plan, return, s corporation, stock market, strategy, successful family, tax basis, tax bracket, tax deffer, tax dollars, tax free, tax free investments
Posted in General Tax Strategies, General Tax Talk, Uncategorized | No Comments »
Wednesday, April 1st, 2009
One question I ask every client is: “Tell me about your family.” Most of the time, I get an earful — sometimes more than I bargained for — but it’s all good stuff that helps us work together to create exactly the right tax plan.
Almost always, the original reason a client calls is to ask me to create an estate plan that would kill the estate tax.
Everyone loves to beat up the IRS. Ah, such delight when they find out that avoiding the impact of the estate tax is the easy part.
So what’s the hard part?
Satisfying everyone in your family is by far the greatest challenge. Usually, the more kids, the tougher. Remember, those little kids grow up, get married and each “I do” brings a new son-in-law or daughter-in- law. Often, the growing family brings different opinions.
Life goes on.
Well, you get the idea.
Oh, and before we forget: Soon those cute — and almost always wonderful— grandchildren come along. And if you and your spouse live long enough, those little grandbabies repeat the cycle (grow up, marry, have babies of their own). The family grows bigger. That’s good. Yet now there are more family members to satisfy.
Let’s take a closer look at this trying-to-satisfy-every-member- of-the-family problem. What’s interesting is that a bit more than half of the time there is no real problem. Sure, there are differences from time to time, but the typical family knows how to deal with issues as they pop up. Then my job is easy. All efforts can be directed toward creating a plan that solves the lifetime goals of the family.
Beating up the IRS always is one of the goals.
But what happens when one or more of the family members just can’t be satisfied?
Unfortunately, my sad experience is most people do nothing. Since they can’t solve the problem — either as they see it or as some other family member sees it — the problem persists and festers.
Ultimately, Mom and Dad die. It’s tax disaster and the IRS wins.
Can such a result be avoided?
Almost always, the answer is a loud ‘Yes.’
But first, let’s divide the differences into two clear and separate categories: financial (money) and emotional (the full range of human feelings, more often than not without any logical explanation).
Money differences are the most common and are the easiest to overcome to everyone’s satisfaction. How?
Get everyone involved (usually only direct family members and no in-laws, subject to rare exceptions) in the same room at the same time. A moderator posts everyone’s likes, dislikes, wants, goals or whatever else is involved for all to see. Only one person speaks at a time. No discussions. No negotiation.
Each person gets as many turns as needed.
Amazing! Almost every time the posted-on-the-blackboard goals and wants show agreement rather than disagreement. We isolate the differences — almost always about money. Putting in the right tax-saving (income, gift and estate taxes) plan usually solves the money issues.
What happens if there still are differences — serious stuff — not from my viewpoint, but by one or more members of the family?
Remember, doing nothing while waiting for total peace (which rarely comes) among quarreling family members favors the IRS. So we build a tax plan around the agreements and continue to work on the disagreements. The head of the family (usually Mom and Dad working as a team) must make the final call.
A well-structured plan makes tough decisions much easier.
Indeed, perfection should be sought in every tax plan. But the sad fact is that an imperfect plan is way better than no plan for a family that can’t seem to get everyone on the same page.
Tags: greatest challenge, IRS, job, lifetime goals, tax disaster
Posted in Corporate Tax, Estate Tax, Family Tax Issues, Irv Talk, Planning, Tax Strategies | No Comments »
Monday, March 30th, 2009
Most of my consulting time is spent putting together wealth-transfer plans for successful business owners.
Invariably, about half of my clients bring up two critical and related operational problems:
“How do I keep my top executives?” (The headhunters — usually working for a competitor — are always circling.)
And, “How do I attract new quality people?”
The problem is not new, and more than likely, it will get worse in the future as the bidding war for talented people escalates.
What to do?
Almost 20 years ago, after struggling with the problem for about a year, we decided to develop an organized plan to find the answers. We interviewed our few client/owners who did not have the two problems. We also interviewed their key management people.
Then came the hard part: getting permission to interview the key people at clients that were suffering with the problem.
What quickly became clear was that almost 100 percent of the best key people have the soul of an entrepreneur. Yet for various reasons, they do not want to strike out on their own or couldn’t (usually because they can’t raise the required capital).
Solving the top-executive problem turned out to be simple: mimic ownership, give them the same challenges as an owner and, if successful, most of the rewards. Additional interviews just kept reconfirming the original solution.
The top (nonowner) executives wanted four core benefits of ownership:
• A piece of the action — a share of company profits;
• Pay when sick or disabled;
• Adequate retirement pay when it’s time to leave the company;
• Death benefits for their family. (“Like my piece of the equity if I get hit by a bus,” or similar words, is the way most executives put it.) Over the years we have created hundreds of contracts (the technical name is a nonqualified deferred compensation agreement; the nontechnical name is a golden handcuff agreement) that attract and keep the kind of key people you want in your organization.
Let’s take a closer look at each of the four desired benefits:
• A piece-of-the-action plan — Typically, this is a percentage of the profits in excess of a specific dollar amount. Often, the percentage grows as the business and profits grow.
For example, Sam Topgun will get 4 percent of all before-tax profits in excess of $200,000 per year. Profits in excess of $400,000 will be entitled to 6 percent. Say the amount earned under the plan for year one (or any subsequent year is $21,000).
Usually, Sam will get about one-third ($7,000) in cash and the balance ($14,000) is deferred. The deferred portion is invested for Sam’s benefit. When does Sam get the deferred portion and the accumulated earnings (usually called the side fund)? When the employee becomes disabled, dies or reaches retirement age (the age is usually set around 58 for younger key employees and in the 65-age range for older key people). When the key employee becomes entitled to collect the side fund (say it is $500,000), it usually is paid out in equal annual installments (say 10 years) or $50,000 per year plus the additional investment earnings for that year.
• Disability — The employee gets paid when sick or disabled, whether for a day or for a lifetime. This benefit is covered by long-term disability insurance. It is essential that “disability” is defined word-for-word in your agreement the same as it is defined in the disability insurance contract.
• Retirement — The side fund (described previously) supplements any regular retirement program (like a 401(k) or profit-sharing plan).
Typically, the executive is allowed to direct the investment of the side fund, which remains an asset of the employer. The tax consequences of the arrangement follow: The side-fund earnings are taxable to the employer. When the employee receives a distribution, the company gets a deduction for the exact amount distributed and the employee must report the identical amount as taxable income.
If the employee leaves for any reason — except because of disability, death or retirement — the entire side fund is forfeited by the employee and remains the property of the company. Hence, the name, “golden handcuffs.”
• Set amount of money at death — When an owner dies, the family can sell the business (assuming it is not transferred to the kids). A similar benefit (really a death benefit) should be given to the employee. Of course, this benefit should be insurance funded. We have been doing these nonqualified plan for years. Done right, they work. Often, when an owner does not have a family member to pass the business to, the side fund serves as the down payment by one or more of the key people to buy the business from the owner.
Two warnings:
This article does not attempt to cover every detail and the endless variations for tailoring an agreement that is perfect for your company. Always — and we mean always — work with a professional advisor. Years of experience have proved that the right agreement will make your good people even better.
Also, and sadly, there is no agreement we have ever seen that will make a bad employee even a little bit better. In a way, this topic of getting and keeping good people is frustrating. This is why we have never been able to develop a cookie-cutter solution. Yes, the four core benefits are almost always the same or similar. But the bells, whistles and unique requirements of each situation make it impossible to write a complete report — much less a book — on the subject.
Tags: annuities, bidding war, company profits, compensation agreement, competitor, death benefits, employee benefit plan, estate planning, Estate Tax, headhunters, income in respect of a decedent, income tax, Insurance, IRS, jonathan blattmachr, key management, nonqualified deferred compensation, painful subject, profit, qualified retirement plan, retirement pay, return, rewards, sacred cows, stock market, strategy, successful business, tax deffer, tax free, tax free investments, top executives
Posted in Corporate Tax, Estate Tax | No Comments »
Monday, March 30th, 2009
While browsing though my small mountain of files looking for ideas on what to write, I ran across a timely and interesting article in an old issue of Newsweek titled, “Darling, It’ll All Be Yours — Soon.” The article explains how “the inheritance boom is quietly reshaping how we think about death.” How true.
When I began my professional practice as a certified public accountant and lawyer back in the 1950s, a millionaire was hard to find. Today, millionaires are plentiful. And when it comes to estate planning, they scurry around trying to find a professional who can lower their estate tax before they get hit by the “final bus.” The Newsweek article by Robert J. Samuelson, like so many other articles, entertainingly explored the problem but offered no solutions.
Let’s set the scene for how you — whether mom and dad trying to give it away tax-free or one of the kids on the receiving end — can, in fact, solve the problem. Let’s start with the elders, mom and dad, who have the wealth.
Fact number one: You aren’t dead yet. Typical estate plans, such as separate wills and trusts for him and her, don’t speak until you are dead — too late to beat the tax collector. The solutions lie in lifetime planning. A lifetime plan keeps you in control of your wealth for as long as you live, yet transfers it—including your business—to your kids (and grandkids) while you are alive.
Fact number two: Years of experience have taught us that wealth is always passed to the younger generations of the family. And then the younger generations step into mom’s and dad’s shoes and typically increase the family wealth.
This gives the second generation an even bigger estate tax problem than mom and dad had.
Here’s how we solve this do-not-enrich-the-IRS estate-tax problem:
Logic tells you that children, particularly business children, are likely to become wealthy.
Usually these children accumulate more wealth than their mom and dad — to be repeated again when the family wealth goes to the grandchildren two generations later. Because of this generation-to-generation wealth transfer, we view each generation of the family separately in terms of their special needs and objectives.
Yet, the plan should not be just for mom and dad. It should be a comprehensive and integrated plan for the entire family. Following is an overview of how it’s done.
Keep your wealth — every dollar of it — in your family, instead of losing it to taxes.
• First Generation. Install a lifetime plan that removes wealth from your taxable estate during life. Use strategies like a qualified personal resident trust for your residence; an intentionally defective trust for your business; a subtrust for your profit-sharing plan, rollover IRAs and similar plans; a family limited partnership for your other assets (typically investments, like stocks, bonds and real estate); and an irrevocable life insurance trust for insurance, probably second-to-die. All of these strategies — and there are many others — begin their work now while you are alive and allow you to stay in control of your assets, including your business, for as long as you live.
Of course, we’ll dovetail your will and trust (death documents) with your lifetime plan. But when done right, your death documents just clean up what’s left. The first part of the family plan, including a business succession plan, and your wealth transfer plan are completed tax-free while you and your spouse are alive.
• Your Kids—Second Generation. After completing a comprehensive plan for mom and dad, it is easy to project what the financial future of the kids might look like. As soon as we finish the plan for the first generation, we start a plan for each of the kids, based on their individual assets and objectives.
• Your Grandchildren— Third Generation. The plans for this generation are closely tied to the plans of the two older generations. Probably the most important point to keep in mind, because of the young ages in this generation, is getting the children into a tax-free environment as soon as possible, a wealth-building must. These plans center on short-term and long-term tax-advantaged strategies that fulfill lifetime needs: education, buying a house, starting a business and, if they don’t go in to the family business, building a retirement fund.
Tags: 1950s, 401 k, 401 k plans, adviser, annuities, asset mix, berkshire hathaway inc, boom, c corporation, certified public accountant, elders, employee benefit plan, estate planning, estate planning lawyer, Estate Tax, estate tax purposes, fact number, family wealth, free wealth, generations, grandkids, income in respect of a decedent, income tax, inheritance, Insurance, insurance premium, IRA, IRS, irs estate tax, jonathan blattmachr, key management, life insurance policy, lifetime plan, millionaire, millionaires, mom and dad, municipal bonds, newsweek, newsweek article, nonqualified deferred compensation, number 72, order of business, painful subject, pension plans, potfolio, predictable response, professional practice, profit, profit sharing, qualified retirement plan, return, robert j samuelson, sacred cows, second generation, stock market, stock market investors, stocks and bonds, strategy, tax blunders, tax bracket, tax deffer, tax free, tax free investments, tax monster, tax returns, transferable insurance policies, wills and trusts
Posted in Irv Talk, Planning, Uncategorized | No Comments »
