Posts Tagged ‘tax bracket’

Selling Your Business To Your Kids Is A Tax No-No

Monday, April 13th, 2009

About once a month I get a call from a reader (call him Joe) of this column who wants to sell his business (call it Success Co.) to his kids.

A short conversation with the caller explains why such a sale is a terrible idea — for Joe, and for the kids.

Let’s start with the kids, in this case Joe’s son, Steve, who wants to buy Success Co. for $1 million.

Follow these strangling tax numbers: Steve must earn about $1.66 to have $1 left to pay to Joe (40 percent in income tax on $1.66 is 66 cents in tax). Steve pays the full $1 to Joe. Steve cannot deduct any portion of this $1 because the purchase of stock (Success Co. or any other stock) is simply a nondeductible capital expenditure.

If Success Co. is a C corporation, any interest paid by Steve (in addition to the principal stock purchase amount) is generally not deductible. Steve could deduct this interest against portfolio income (interest and dividends on other investments).

Rarely do the kids have such investments. But Steve can make all the interest deductible simply by electing S corporation status.

What about Joe? Steve pays Joe that $1 (plus interest). Joe must pay a capital gains tax (typically 15 percent) on the dollar and pay his top tax bracket (typically 40 percent, including State and Federal income taxes) on the interest income.

OK, Joe has 85 cents left after paying the capital gains tax on the $1. If Joe doesn’t spend that 85 cents (he usually has it at death), the tax collector gets up to 55 percent (using 2011 rates) for estate taxes. That’s another 47 cents, leaving Joe’s heirs with only 38 cents out of the $1.

Let’s review. Steve had to make $1.66 for Joe to leave his family 38 cents.

Or would you believe that would turn into $1,660,000 for Steve to make while Joe’s family only gets $380,000.

That’s lousy tax planning!

Joe and Steve can avoid these tragic tax results. So can you. How?

Apply the above $1 example to the price you want to get for your business if you sell to one or more of your kids. You’ll immediately notice that the IRS gets more out of the sale of your business than you or your family combined. The lesson is simple. Don’t sell your business to your kids.

Watch this column for the right way for you to get a lifetime flow of income for you (and your spouse if you are married) and transfer your business to your kids without the IRS getting into your pocket.

You’ll want to take a look at the following strategies: Electing S corporation status; use of an intentionally defective trust to transfer your business to your kids — tax-free (yet stay in control for as long as you live).

One more thing: Do not transfer your business (by sale or otherwise) to the kids without putting three other plans in place: (1) a lifetime tax plan, (2) a retirement plan and (3) an estate plan.

Want to learn more about how to shield yourself and your family from the IRS when you transfer your business? Browse my Web site at www.taxsecretsofthewealthy.com.

Sick of paying tax? Call a tax doctor for a second opinion

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.

Multi-generational planning means more wealth for all.

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.

Don’t flip your lid if you have too many FLIP accounts.

Thursday, March 26th, 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 its business, its situations and its problems. Despite 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, Sam, calling at the request of his dad, Joe, agreed to send me the typical information: some tax returns and financial statements and a copy of the existing estate plan.

About one week later, a large, heavy box arrived with a 5-inch stack of documents. Most of the documents had to do with nine separate family limited partnerships, or FLIPs. All were identical, except each FLIP owned a different asset, like the family business, a residence or investments.

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 FLIP drunk.

One thing should be made clear: I am an enthusiastic cheerleader for the use of FLIPs in estate planning. I use ‘em all the time. But this overkill of a single strategy just didn’t do the best possible job.

The proof: Using the computations of the adviser, the IRS still would cash in for more than $2 million in estate taxes.

Another $1.1 million of IRS enrichment was likely because of a gross misuse of the FLIP strategy.

What does a FLIP accomplish? It allows you to totally control the use of any asset transferred (a tax-free transfer) to the FLIP as the general partner, yet reduce the value of the bundle of assets transferred for tax purposes.

For example, $1 million of assets transferred to a FLIP is usually worth only about $650,000 for tax purposes. That $350,000 discount in a 55 percent estate tax bracket will reduce your estate tax burden by $192,500. Not bad!

A FLIP also is a great asset-protection strategy. Creditors can’t get at the assets in the FLIP. Neither can divorcing spouses of your kids, who are usually the limited partners.

Used properly, a FLIP is almost a perfect tax tool.

In general, a FLIP should not be used to own the stock of your family business. Nor should it be used for non-income-producing personal as sets, like a residence or auto.

It’s a valuable strategy for almost every other asset you might own — publicly traded stocks and bonds, real estate, you name it.

In short, we terminated the FLIPs that held the family business and two family residences.

The business elected S corporation status and was transferred to an intentionally defective trust (IDT), and the residences were transferred to qualified personal residence trusts (QPRTs). An IDT and a QPRT 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 FLIPs to pay the premiums on second-to-die life insurance (on Joe and his wife), which was owned by an irrevocable life insurance trust (ILIT) that we created. An ILIT 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 FLIP plan (depending on how long Joe and his wife live).

Stop IRS from taking most of the dollars in your retirement plan

Thursday, March 26th, 2009

I am about to kill a few sacred cows. Qualified-employee-benefit-plan cows to be exact. This is a painful subject.

The best introduction I ever heard of the subject was in a speech by Jonathan Blattmachr, a brilliant New York estate-planning lawyer, who said:

“What I’m going to talk about now is the most heavily taxed receipt in estate planning. …

“It is called income in respect of a decedent, typically known by its initials, IRD.

“I could tell you the story about the physician who came to me with $8 million in IRAs and pension plans. Within a year after he died without planning, his estate had been whittled down to under $800,000. …

“Everybody you know in your neighborhood, the lawyers, the doctors and dentists, are loaded up with income in respect of a decedent.”

And add owners of closely held businesses to the list of those who can get clobbered by IRD. In fact, anyone who has accumulated even a small amount of dollars in a qualified retirement plan is an IRD disease carrier. The disease eats the dollars in pension plans, profit-sharing plans, 401(k) plans and similar plans.

Can it be cured? Yes.

My usual explanation of IRD to a client — “The IRS gets 70 percent or more, while your family gets 30 percent or less” — has a predictable response, ranging from a look of horror to an expletive utterance.

How does this tax robbery take place?

Well, if you are in a high tax bracket and take a distribution during your life from your qualified plan, you are hit with about a 40 percent income tax, including state and federal. Say each distribution is $100,000. This leaves you $60,000.

When you die, another 50 percent (it could be as high as 55 percent) for estate taxes slices the $60,000 in half. Now only $30,000 (30 percent of the $100,000) is left for your family. Taxes gobbled up $70,000.

What if you die with money in your qualified plan? The balance in your account is taxed twice as IRD — once for income tax and a second time for estate tax.

Result? The same 30 percent tax disaster as in the when-you-were-alive example. Yep, 30 cents of each dollar for your family, 70 cents to the tax collector.

A new concept (as far as I know, this author was the first person to write and lecture about it) called the “IRD-avoidance concept” can turn that 30 cents back into a dollar (or $300,000 back into $1 million or whatever the number may be).

Although complex to implement, the concept can be explained as a simple three-step process:

– The plan participant (let’s call him Joe) takes his distribution in the form of an annuity payable for life.

– Joe collects the annuity payments for life.

– Joe uses an irrevocable life insurance trust (often called the “super trust”) to purchase a life insurance policy, using the after-tax balance of the annuity payment to pay the premiums.

What are the tax results?

– Income tax: tax-free.

Estate tax: no value at death, so no estate tax.

– Income tax: taxable as ordinary income.

Insurance proceeds are free of estate tax and income tax.

If you have about $350,000 or more in your qualified plans (add your pension, profit sharing, 401(k) and IRAs together), you owe it to yourself and your family to check with your tax professional to determine how the IRD-avoidance concept can save you and your family huge amounts of taxes, and also create wealth greater than the original amount in the plans.

Do it.

Estate Tax Blog

by Irv Blackman

First and foremost, Irv Blackman is both a CPA and a lawyer. Irv is a tax guy. Stay tuned to the site by signing up for the RSS feed.