Archive for January, 2018

al la rosaToday’s blog post about the Heckerling is written by Withum’s Private Client Services Partner, Alfred La Rosa.

Well it’s Thursday, January 25, 2018 and Day 4 of the 52nd Annual Heckerling Institute on Estate Planning. Once again we have been introduced to a number of creative ideas and planning techniques presented by some of the most prestigious estate & gift tax planners in the country. The presenters continued to address certain revisions of the recent 2017 Tax Act and how such revisions may impact on estate, gift and income tax planning

This morning’s general sessions included the following presentations:

Joshua S. Rubenstein, of the New York City law firm Katten Munchin Rosenman kicked-off the morning with a very intriguing and interesting presentation addressing various tax and non-tax considerations when an individual from a community property jurisdiction has different connections to a common law (i.e. separate) property jurisdiction. This for example, can occur when people from different countries and/or states marry while owning assets in different property jurisdictions (community vs. common), or when family members (including spouses) live in different countries or states with different property jurisdictions.

Robert H. Sitkoff, a renowned professor of law at Harvard Law School addressed the new Uniform Directed Trust Act (“UDTA”), and explored how the Act simplifies drafting and administering directed trusts. In general, the investment, distribution, and management of a trust’s property are the responsibilities of a trustee. When the power to administer a trust belongs exclusively with a trustee, the fiduciary obligations, duties and responsibilities would apply exclusively to that trustee. In a directed trust however, a person other than a trustee has a power over some aspect of trust administration i.e., investment or distribution decisions. Unlike a trustee, a so-called “trust director,” who may also be referred to as a “trust protector” or “trust adviser,” does not necessarily hold title to a trust’s property. The division of authority between a trust director and a trustee raises difficult questions about how to divide fiduciary power, duty, responsibility and liability. The UDTA provides guidance on how to structure a directed trust while safeguarding the beneficiaries.

Michele A.W. McKinnon from the law firm McGuireWoods LLP in Richmond, Virginia addressed the manner in which donors should approach planned giving under the new tax laws, as well as changes affecting the charitable deduction and the impact on giving techniques. The presentation also addressed various charitable gifting techniques including Charitable Remainder Trusts, Charitable Lead Trusts, Private Foundations and Donor Advised Funds, Gift Annuities, using retirement accounts, etc. We explored the reasons why donors make gifts and whether these considerations are likely to be effected by the 2017 Tax Act.

While the 2017 Act preserves the deductibility of charitable contributions, the higher standard deduction means fewer people will itemize their deductions. It is anticipated that the number of taxpayers that will itemize will drop for 30% to 5%. Certain charities are concerned that this will impact on the incentive by “non -itemizers” to give the “smaller gifts” that so many charities rely upon.

In order to get “non-itemizers” over the new standard deduction to itemize, they may want to consider “bunching” the amount of the charitable gifts that they would ordinarily make over a few years into one year. Creating a donor advised fund would be quite useful here to help prevent certain charities from getting and spending all of the “bunched” contribution in the year received.  The doubling of the estate and gift tax exclusion amount from $5.6 million to approximately $11.2 million ($22.4 million for married clients) was also addressed, and, whether such increase will erode the incentive to leave the larger bequests to charity.  The changes that were made to contribution deductions under the new act have not been to significant.

The following revisions were discussed:

  • The increase in the limit on cash contributions from 50% to 60% of adjusted gross income.
  • For years, colleges and universities relied on somewhat of an obscure tax rule where a payment to a college or university for the right to buy certain tickets to athletic events (as opposed to the actual ticket themselves) was 80% deductible as a charitable contribution.  The Act repeals this 80% charitable deduction. There is a concern that the loss of this incentive could drastically reduce the amount of donations received by colleges and universities tied to seat licenses, which have become a stream of revenue for college athletics.

The Act changes the charitable contribution deduction of an Elective Small Business Trust (“ESBT”), and provides that the rules under IRC Section 170 applicable to individuals should control the deductibility of charitable contributions attributable to the ESBT. Thus, the percentage of contribution base limitations and carry-forward provisions applicable to individuals applies to charitable contributions deemed made by the portion of an ESBT holding S Corp stock. Further, the ESBT should be able to deduct the fair market value of long-term capital gain property gifted in-kind to charity, subject to applicable percentage limitations. The changes for ESBTs are permanent and do not sunset after 2025.Some other interesting facts/statistics were addressed during the presentation, supporting the fact that in many instances taxes are not the main motivator for charitable giving. For many people in the United States philanthropy is important and despite these tax uncertainties impacting their charitable giving, in addition to other economic factors, many people continue to give generously.

Current market conditions should favor charitable giving and, in particular tax efficient charitable giving through the use of appreciated property gifts. Continued uncertainty in political and economic landscape may also inhibit charitable giving.  Perceived and real cuts in government funding for certain programs and activities may be a motivating factor for some individuals to increase charitable giving as social needs increase.

Farhad Aghdami, the Managing Partner of the Richmond office of Williams Mullen, focused on the income tax and wealth transfer tax planning opportunities (and pitfalls) associated with planning for real estate investors, including a discussion of non-tax considerations and obstacles. The program also explored valuation discount planning, freeze, and leveraging strategies when transferring real estate. The 2017 Tax Act basically doubled the estate and gift tax exclusion amount from $5.6 million to approximately $11.2 million. The GST exemption will also be $11.2 million in 2018, the maximum estate/gift tax rate is 40%, and the Code §1014 basis adjustment (“step-up”) at death is retained. The increase in the exclusion amount is scheduled to sunset after December 31, 2025.

The planning implications of the new tax law are significant. For married clients with assets below $22.4 million, the need to engage in sophisticated estate tax planning is substantially diminished. However, we should be aware of the potential risk of a repeal of current law and a return to the lower exemption amount.

Some of the issues that were addressed:

  • The risk of engaging in lifetime gifting is the loss of the basis adjustment (“step-up”) at death which, for real estate investors and developers, can be significant. It was noted that “a gift of a $1 million assets with a zero basis would have to appreciate to approximately $2,470,000 (to a value that is 247% of the current value) in order for the estate tax savings on the future appreciation ($1,469,135 x 40%) to start to offset the loss of basis step-up ($2,469,135 x 23.8% for high bracket taxpayers.). The required appreciation will be even more if state income taxes also apply on the capital gains.
  • Clients may want to consider “unwinding” certain lifetime transfers to cause estate tax inclusion to obtain a step-up in basis at death.
  • For clients with assets significantly in excess of estate and gift tax exclusion amount, the change in law presents additional planning opportunities and strategies. For example, a husband and wife considering a sale to a grantor trust could fund a trust with a 10% “seed money” gift of $22.4 million and then sell $201.6 million of assets to the trust.

Mr. Aghdami focused on some of the basics of valuing property for estate and gift tax purposes, including the use of fractional interest, minority, and marketability discounts to achieve substantial transfer tax savings. He discussed how the implementation of a proper plan will decrease the risk of the IRS challenging the valuation for gift or estate tax purposes.

Some of the wealth transfer planning techniques that can that work well with real estate were addressed, including: grantor retained annuity trusts, sales to defective grantor trusts (including the use of self-canceling installment notes or private annuities), sale/leasebacks, and personal residence trusts.

After lunch the attendees had a choice of attending a fundamental presentation on the various tax issues when dealing with families who have multi-national members and assets (including U.S. income and transfer tax rules relevant to residents and non-residents, inbound and outbound investments, foreign trusts and their U.S. beneficiaries, and expatriation), or a number of concurrent “breakout” sessions. I attended the following two concurrent sessions:

Trust Asset Protection Through a Tri-Focal Lens Daniel S. Rubin of Moses & Singer LLP, Terrence M. Franklin of Sacks Glazier Franklin & Lodise and Michael M. Gordon of Gordon, Fournaris & Mammarella, addressed the asset protection provided to beneficiaries through trusts from the unique and sometimes conflicting perspectives of (i) the drafting attorney, (ii) the trustees and other fiduciaries administering the trust and (iii) those creditors seeking to reach the trust assets

All Present and Accounted For: Proactively Preparing Fiduciary Accountings to Facilitate Pre- and Post-Mortem Planning and Mitigate Risk Joshua Rubenstein of Katten Muchin Roseman LLP and Scott Ditman of Berdon LLP did a very interesting presentation on the importance of a rendering fiduciary accountings. The world is becoming more litigious, especially in the private client arena. Legal and accounting professionals must work together to make sure that when their clients are serving as trustees and executors, fiduciary accountings are properly prepared on a current basis, that they are issued to the interested parties, and “sign-offs” from beneficiaries are received currently. Not only will this protect fiduciaries and the professionals who represent them from litigation, fiduciary accountings can serve other useful and valuable purposes. They can be used to properly calculate annual fiduciary accounting income, trustee commissions, cash flow and liquidity analysis, facilitate pre and post mortem income and estate tax planning, etc.

Thank you for following our recap of the 2018 Heckerling Institute on Estate Planning!

Read Full Post »

Scheier-DonToday’s blog post about the Heckerling Institute on Estate Planning is written by Withum’s Estate & Trust Services Partner, Donald Scheier.

Today’s session started with The Beatles 1967 hit “When I’m Sixty-Four.”  Bernard A. Krooks, Esq. of Littman Krooks LLP, New York, New York started the presentation by reminding us that this is a question we will all most likely ponder eventually (I am thinking more at 84 than 64).  His discussion focused on the variety of options available to people in need of long term care, how to pay for it, and other factors to consider.

The significance of Long Term Care (“LTC”) is now more important today than it has ever been.  Below are some of the important facts and issues to consider.

  1. Seventy percent of Americans will require some form of LTC. People are living longer past age 65 (average of 19.3 years for men, 21.6 years for women).  For the highly educated and higher income demographic the average lifespan is even longer.
  2. There are over 40 million Americans age 65 or older; by 2050, 20% of Americans will be age 65 or older.
  3. The reliance on family and friends for support will be much less likely. Children are now more scattered across the country and do not live close by their parents.  The increase in divorces is another factor of not moving in with their children.
  4. Over five million individuals in the United States have Alzheimer’s disease. That number is expected to triple by 2050.

Medicare Benefits

Many people are unaware that Medicare does not pay for LTC.  Although Medicare will sometimes pay some costs for very specific kinds of care like “skilled nursing care” while after a qualifying hospital stay “custodial care” is never covered.  In addition, even if some rehabilitation services are covered for a limited time, the LTC related costs of a chronic illness, such as dementia or Alzheimer’s disease, are not covered.

LTC includes an array of services including help with activities of daily living, such as bathing, dressing, toileting, transferring, caring for incontinence and eating. It may also include assistance with instrumental activities of daily living, such as housework, managing finances, taking medication, shopping or using the telephone.

LTC Costs

The average annual cost of LTC can exceed $100,000; in major metropolitan areas, the cost can approach $200,000 or more. These costs often bankrupt middle-class families since the United States has no health insurance system for LTC. Medicare does not cover long-term care and Medicaid’s income and asset requirements is often difficult to meet.

Married individuals are usually responsible for the cost of their spouse’s care.  Although the law does provide some limited protections.  The well spouse living at home (the “community spouse”) is entitled to certain allowances, including a community spouse resource allowance and a minimum monthly maintenance needs allowance.  Even for couples who maintain separate finances, the responsibility for LTC costs of the spouse exists since the marital estate is deemed to be one entity for these purposes.

Divorced individuals will not be responsibility for payment of costs in the future for their ex-spouses, but distribution of marital assets in the hands of the sick spouse will be available to pay for the cost of his/her care. Prenuptial agreements limiting or eliminating the responsibility for the cost of a spouse’s LTC are typically disregarded by government agencies.

In the case of second marriages, it often makes sense for the spouse with the greater net-worth to consider purchasing LTC insurance for his spouse, if possible or consider setting aside funds in a trust to pay for LTC.  These issues can become extremely contentious, especially in a second marriage involves children from a prior marriage who do not agree with the individual’s spouse.

Long-term Care Options: Home Care


  • Stay in familiar surroundings
  • Family and friends can provide much of the required care sometimes up to 80%, spending 20 hours a week, on average, giving care and compensation to
  • Informal or family caregivers can receive compensation for their services
  • If the ultimate goal is Medicaid qualification, there generally must be a written caregiver agreement in place, Medicaid may require a payback for the unused portion not spent on care giving
  • The performance of caregiving services raises a number of significant income tax issues, including whether the caregiver is an independent contractor or an employee

Draw Backs

  • Home care can be very expensive, sometimes costing as much as or more than institutional level of care
  • Increased risk of both financial and physical elder abuse by caretakers at home
  • Sequester in the home often contributes to social isolation and may place an individual at risk for both physical and psychological medical problems

Assisted living facility.


  • An assisted living facility is an option for those who do not wish to, or cannot, remain in the community, but do not yet need the skilled level of care provided by a nursing home
  • Facility will provide for custodial care in an apartment-like setting, providing three meals a day, and supportive assistance

 Draw Backs

  • Assisted living facilities are generally not licensed to provide medical care
  • Restrictions and requirements imposed on residents in an assisted living facility that do not apply to other settings, in particular there are no federal regulations governing these facilities, although many states have their own laws, regulations and licensing standards
  • Signed admissions agreement is typically required and is often non-negotiable and can contain personal guarantees
  • may require private payment

Nursing home


  • Facilities participating in the Medicare and Medicaid programs must meet certain requirements giving families far more recourse in dealing with the facility
    Cannot require or request a third party guarantee of payment, a resident representative may be required
  • Some nursing home admissions agreements attempt to impose additional liability on the responsible party
  • Nursing homes may not require a security deposit, as a condition of admission, from an individual who is being admitted to the facility for skilled nursing care after a qualifying hospital where the individual is eligible for Medicare coverage for a portion of his stay in the nursing home

Draw Back

  • If the prospective resident does not have a qualifying hospital stay prior to admission to the nursing home, then there is no Medicare coverage available for the nursing home stay. In these cases, the facility is permitted to require a security deposit and often requires payment in advance for the first month’s charges as well as a two-month security deposit
  • Mandatory pre-dispute arbitration provisions are common in nursing home admission agreements

Continuing Care Retirement Community (“CCRC”)


  • They offer the entire residential continuum, from independent housing, to assisted living, to nursing home care
  • Allows highest quality of life possible for married couples, admission to a CCRC can aid in ensuring that they are not separated as a result of their differing care needs. Spouses at varying care levels can remain near one another while receiving the appropriate level of care

Draw Backs

  • CCRCs can be very expensive. Typically, there is an entrance fee, which can range from over one hundred thousand ($100,000) dollars to more than one million ($1,000,000) dollars (all or a portion of the fee may be refundable)
  • In addition to the entrance fee, the CCRC will require a monthly fee of several thousand dollars

Read Moore, Esq. of McDermott Will & Emery LLP discussion entitled “Theory Meets Reality: A Practical Look At the U.S. Income Taxation Of Beneficiaries Of Foreign Trusts” focused on the many challenges faced by U.S. beneficiaries of Foreign Trusts.

The United States has extensive statutes and regulations related to the taxation of trust beneficiaries on distributions from trusts, and these rules generally apply equally to beneficiaries of domestic trusts and foreign trusts; however beneficiaries of foreign trusts, are subject to a number of additional rules and regulations that do not apply to beneficiaries of domestic trusts, including the accumulation distribution or “throwback” tax.  Beneficiaries of foreign trusts are also subject to extensive information reporting requirements that do not apply to beneficiaries of domestic trusts.

The differences in trust law and the administration of trusts in countries other than the United States presents significant challenges in advising U.S. citizen and resident beneficiaries of foreign trusts. In addition to having to know which set of U.S. rules must be followed you must be aware of the filing requirements in the foreign jurisdiction.

A trust is either classified as a Domestic Trust or a Foreign Trust.  A Domestic Trust in general is one in which:

  1. a court in the United States has authority over and
  2. a U.S. person has basically the authority to control all substantial decisions. A foreign trust is one in which a U.S. court may not have authority over or a non-U.S. person has the authority to control some substantial decisions. The classification of a Trust is required in order to determine which rules under Subchapter J apply in addition to which compliance rules must be followed.

You must know who the grantor of a foreign trust is in order to evaluate whether the trust is a grantor trust. This in turn affects the taxation of the grantor and the trustee on U.S.-source income as well as the beneficiaries on trust distributions.  Congress in 1996 limited the application of the grantor trust rules to trusts settled by nonresident aliens. The grantor trust rules now apply only to the extent their application results in income being taken into account in computing the income of a U.S. citizen or resident individual or a domestic corporation. IRC § 672(f)(1). In other words, the grantor trust rules generally do not apply to treat a nonresident alien as the owner of a trust’s items of income, gain, and loss for U.S. federal income tax purposes. Under certain limited circumstances, however, a nonresident alien may be treated as the owner of a trust’s income, gain, and loss.  The criteria that must be met makes it very difficult to qualify as a foreign grantor trust.

The more common situation is to have foreign non-grantor trusts.  Foreign non-grantor trusts will pay U.S. income tax on U.S. source income.  The beneficiaries of foreign non-grantor trusts will pay income tax on distributions made to them to the extent of Distributable Net Income (“DNI”).  DNI is generally calculated the same way as it is for Domestic Trusts with the exception that capital gains and foreign taxes paid are included.  If DNI is not distributed in a particular year it is accumulated and there is a concept of Undistribuited Net Income (“UNI”).  If there is UNI and there is a distribution in a year in excess of DNI then the “throwback rule” applies to the excess income.  A special calculation must be performed on Form 4970 and interest is charged on the UNI amount.  As you can tell, these rules are extremely complex!

Foreign trusts have many special rules in determining what are distributions, loans and beneficiary reporting requirements, also it is mandatory to determine the forms that must be filed.

In summary the planning and paying for long-term care must be analyzed thoroughly well in advance of its need. More commentary about the conference to come from Withum’s Alfred LaRosa coming tomorrow!


Read Full Post »

Nappi-TedToday’s blog post about the Heckerling Institute on Estate Planning is written by Withum’s Private Client Services Partner and Practice Co-Leader, Ted Nappi.

Day 2 is highlighted by sessions hitting many of the hot topics concerning estate planners across the country.  Below is a brief summary of the topics discussed throughout the day.

Putting It On & Taking It Off: Managing Tax Basis Today for Tomorrow Presented by Paul S. Lee, Northern Trust

The management and creation of tax basis is the most important planning issue today and, even more so, with “tax reform” occurring for 2018 and beyond. Death may be inevitable but capital gains taxes shouldn’t be. Every client should capitalize on strategies to maximize and concentrate basis in assets where it can be of most benefit. This presenter discussed how innovative, advance planning can maximize value many times over.

Two types of trusts that were discussed in detail to try and take advantage of the tax code to maximize basis step up were Joint Revocable Trust (JEST) and Section 2038 Estate Marital Trust.

Business Succession: Abdicate? Affiliate? Alienate? Bifurcate? Syndicate? Liquidate? Vacillate? Don’t Wait. Cogitate and Participate. Presented by Thomas W. Abendroth, Schiff Hardin LLP

Business succession planning is the process of planning to exit the business, either through sale or through transfer to succeeding generations. This session examined selected tax and non-tax issues associated with exiting the business, and how planning must work with either form of exit.

There is not a special category of estate planning strategies designed solely for use when an owner is planning for the future transfer of her or his business interests or selling.  Rather, the usual array of planning strategies and transfer tax techniques are available to owners.  Indeed, some of these techniques may be especially effective with such interests.

  1. Direct gifts using the annual exclusion and the lifetime gift exemption.
  2. Grantor Retained Annuity Trusts.
  3. Sales to irrevocable grantor trusts in exchange for a note.
  4. Use of multiple classes of equity to freeze or limit the growth of certain equity owners.
  5. Transfers using limited partnerships or LLCs, to facilitate transfers of value while maintaining consolidated management, and to better take advantage of valuation discounts.
  6. Use of a charitable remainder trust to avoid immediate capital gain upon a sale.

Care and Feeding of a Dynasty Trust: High Protein or Low Fat? Presented by Diana S.C. Zeydel, Greenberg Traurig, P.A.

Tax law and concerns about asset protection have driven estate planners to create trusts with longer and longer durations. Keeping these trusts healthy can be challenging. The presenter discussed how we can build muscle to withstand challenges. She discussed whether we go lean now the estate and GST taxes exemptions have been significantly increased. The best practices to achieve a fit and flexible trust in uncertain times was discussed in great detail.

Money in Politics: A Hydraulic or a Legal Issue? Presented by Trevor Potter, Caplin & Drysdale

For over a century federal law has attempted to regulate the sources and amounts of money in elections. The result proves to some that money is a hydraulic force: efforts to channel it only result in broken dikes and washed away dams. Others believe that the problem is in artful drafting, failed regulators, partisan greediness, the leveraging of the tax code to subvert the campaign finance laws, and a Supreme Court which has no understanding of how politics and the legislative system actually work.

Estate Planning in Anticipation of a Contest or a Difficult Beneficiary Presented by  S. Andrew Pharies, DLA Piper LLP

This session focused on practical issues in structuring an estate plan to withstand a potential contest or a beneficiary likely to disrupt the post-death administration. It focused on enhancing the enforceability of no contest clauses as well as structuring an estate plan to mitigate fiduciary risk.

Estate planners face high risk cases on a regular basis.  In order to deal with those cases effectively, estate planners must reach outside of their regular form files and office procedures and adopt the mindset of a litigator in order to reverse engineer an estate plan that will carry out and protect, against all external influences, the client’s testamentary desires.  This task is much harder than it used to be, and it is much harder than many estate planners imagine.  While post-death contests and disgruntled beneficiaries are age-old enemies of testamentary intent, new threats have arisen in recent decades in the form of sanctioned post-death modifications of testamentary documents.  While giving lip service to carrying out the testamentary intent of a testator or trustor, courts and legislatures are rapidly devising new ways to frustrate that intent by giving the beneficiaries greater power to devise an estate plan that meets their, rather than the decedent’s, objectives.   The session discussed the tools to carry out the testamentary desires of the client while mitigating the possibility of post-death frustration of those desires. The presenter explored methods to mitigate the risk of a direct attack on estate plan documents and to mitigate the risk of an indirect attack on testamentary intent by a disgruntled beneficiary during the post-mortem administrative period.

Buy-Sell Agreements: A Critical Part of Any Business Formation Presented by Louis A. Mezzullo, Withers Bergman LLP

This session discussed the objectives and key tax and non-tax issues when drafting a buy-sell agreement for a closely-held business.

The following planning considerations were discussed

  1. Nature and size of the entity.
  2. Value of the entity as a going concern.
  3. Book value, market value, or other liquidation value of the entity’s underlying assets.
  4. Relative ownership interests of the owners.
  5. Ages of the owners.
  6. Financial condition of the owners.
  7. Health and insurability of the owners.
  8. Commitment of owners to the business and importance of their participation in the business.
  9. Availability of assets for redeeming the interest.
  10. State law with respect to stock redemptions in the case of a corporation or distributions to members of an LLC.
  11. Existence of restrictions under loan agreements on the use of the entity’s assets to redeem equity interests.
  12. Family relationships among owners.
  13. Working relationships among owners.
  14. The extent to which the owners are active in the business and intend to remain active in the business.
  15. Licensing or other qualification requirements.
  16. Type of entity: C corporation, S corporation, personal holding company, professional corporation, general partnership, limited partnership, or LLC.
  17. Potential conflicts of interest and ethical questions involved in representing or advising more than one owner and the entity, either when the agreement is negotiated or when an event occurs that causes the agreement to become operative.


Beyond the Private Foundation Presented by Martin Hall, Ropes & Gray LLP

A private foundation may not be the most effective tax-exempt vehicle to implement a client’s charitable intentions. The presenter explored the use and structuring of other options, including donor-advised fund accounts, supporting organizations and 501(c)(4) social welfare organizations.  He also provided a detailed summary comparing the differences between the private foundation, donor advised fund and a SO.

A Donor Advised Fund (“DAF”) is not a separate charitable entity for federal tax purposes.  Instead, the term describes a segregated fund or account maintained by an existing section 501(c)(3) public charity to which a donor or small group of donors can make contributions.  What distinguishes the fund is that, while its assets belong legally to the public charity, the donor, or a person designated by the donor, retains an advisory role with respect to the distribution and/or the investment of assets held in the fund.

A Supporting Organizations (SO) are a group of organizations that were closely associated with public charities but formed as separate entities.   As defined by the Code, an SO is a type of public charity described in Internal Revenue Code section 509(a)(3). SOs are classified as public charities, but are not required to meet the strenuous public support tests that must be met by most section 509(a)(1) organizations and by all section 509(a)(2) organizations.  Instead, an SO derives its public charity status from a close relationship with one or more public charities described in those provisions.  In many cases, SOs perform functions or provide services that are integral to the conduct of the exempt purpose of the public charity or charities supported. Examples of SOs include trusts established to provide scholarships to students attending a particular college or university, fundraising foundations for a school or hospital, and endowment management entities.  Many non-profit healthcare systems and other large non-profit organizations also use SOs in their structures, sometimes as parent entities.

501(C)(4) Organizations Section 501(c)(4) of the Internal Revenue Code embraces two general classifications of tax-exempt organizations: a. civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare (“social welfare organizations”); and b. local associations of employees.

An organization is operated exclusively for the promotion of social welfare if “it is primarily engaged in promoting in some way the common good and general welfare of the community” and is operated primarily “for the purpose of bringing about civic betterments and social improvements.  While the concept of social welfare is inherently abstruse and the categorization somewhat of a catch-all for non-profit organizations that resist classification under other parts of Internal Revenue Code section 501(c), the organization “must be a community movement designed to accomplish community ends” to fall with in its ambit.  Examples of section 501(c)(4) organizations include homeowners associations, veterans organizations, volunteer fire departments, parks associations, community service organizations such as Rotary Clubs, Kiwanis Clubs and Lion Clubs and public recreational facility organizations.

In addition, many advocacy organizations are operated as section 501(c)(4) social welfare organizations.  Well-known examples include American Association of Retired Persons (AARP), American Civil Liberties Union (ACLU) and National Rifle Association of America (NRA).  In addition, section 501(c)(4) social welfare organizations are not prohibited from engaging in political campaign activities; however, those activities must be secondary to their primary focus on the promotion of social welfare.

Stay tuned for more updates about the remaining days of the conference coming out this week!

Read Full Post »

HalTerr-12-09Today’s blog post about the Heckerling Institute on Estate Planning is written by Withum’s Private Client Services Partner and Practice          Co-Leader, Hal Terr.

Greetings from the University of Miami’s 52nd Annual Hecklering Institute on Estate Planning, the largest continuing legal education conference in the country.  The largest crowd of attorneys, accountants, trust officers and other financial advisors gather for a week in Orlando, Florida to listen to the top speakers in estate planning.

The conference kicked off with a panel discussion on recent developments by Carol Harrington, Steve Akers and Jeffrey Pennell.   The group started with a tribute to long-time speaker, Dennis Belcher, who passed away this past spring.  Dennis was one of the conference’s most popular speakers and a long-time member of the Institute’s Advisory Committee.

The panel started with the primary topic discussed at last year’s conference, the proposed regulations under IRC Section 2704 which were to limit valuation discounts for lack of marketability and control.   With the new administration’s executive order to review all significant tax regulations that either impose an undue financial burden or add undue complexity of the Federal tax laws.   Under this review in the fall the IRS withdrawn the proposed regulations under 2704.   With IRS needing to focus on regulations with the 2018 Tax Act it is unlikely these regulations under 2704 will be proposed in the future.

The next topic discussed were the Consistent Basis Rules regarding basis consistency between estate and the beneficiary receiving property from the decedent.   Some unnecessarily harsh requirements under these rules include the following:

  • A requirement to provide estate tax values to beneficiaries 30 days after the estate tax return is filed, possibly long before the executor can know which beneficiaries will receive which assets, necessitating a wasteful, confusing, and divisive report of all assets the beneficiary might ever receive;
  • A requirement that successive transferors furnish those estate tax values to recipients of gifts and other transferees in carryover basis transactions, apparently in perpetuity

The proposed regulations under IRC Section 1014(f) were to be finalized by January 31, 2017 but were not.   With the new administration’s executive order to review all significate tax regulations, hopefully these harsh requirements will fall under the concept burden reducing and the IRS will provide some workarounds to these burdens.

A majority of the attendees of the conference were in attendance to hear the panel’s thoughts on the impact to estate tax planning due to the recent 2018 Tax Act.   The estate, gift and GST exemption was increased to $10 million indexed with inflation, resulting in an estate exemption of $11.18 million for 2018, $22.36 million for a married couple.   The annual increases in the exemption will be increased by chained CPI, which presumably will result in smaller increases in the exemption in the future.

As with the other individual proposals under the 2018 Tax Act, the increase in the estate, gift and GST exemption sunset at the end of 2025.   As Marty McFly drove the DeLorean in Back to the Future, estate planners have been through this before when at the end of 2012 the $5 million exemption was to go back to $1 million.   The same planning in the past applies to the new law.   Many more clients will not be subject to a federal estate where planning will move from estate tax minimization to more focus on income tax basis planning.   With the increased estate exemption there is a higher importance on portability that would allow for a step-up in basis at both spouses passing as opposed to credit shelter planning that allows for only one step up.

Flexibility in estate documents become more important given the possible changes in the estate exemption in the future.   A more favored approach among many estate planners is the use of QTIP (“Marital”) Trusts versus Disclaimer Trusts.   Disclaimer Trusts are subject many impediments to successful planning.   The surviving spouse may choose not to disclaim and not take advantage of the first spouse’s estate exemption, receive benefits of the assets before disclaiming or be incapacitated at the death of the first spouse.   Benefits of a flexible QTIP approach are as follows:

  • The executor has up to 15 months to decide whether to make the QTIP election and over what portion of the trust.
  • The QTIP election could be made by a formula, thus providing a “savings clause” to assure that no estate tax would be paid at the first spouse’s death (if his or her assets are over the new $10 million basic exclusion amount – or $5 million exclusion amount after the increased exclusion amount has sunset).
  • If the QTIP election is made, the executor could make the “reverse-QTIP” election and allocate the decedent’s GST exemption to the trust.
  • If the state recognizes a “state only QTIP election,” having assets in the QTIP trust may make the planning easier to fully utilize the first spouse’s exclusion amount without paying any state estate taxes at the first spouse’s death.
  • Any unelected portion could pass to a standard bypass trust under a “Clayton” provision.

With the possibility of sunset, as in 2013, the concerns over clawback of utilization of the increased exemption reemerge.  The 2018 Tax Act amends §2001(g) to add a new §2001(g)(2) directing the Treasury to prescribe regulations as may be necessary or appropriate to address any difference in the basic exclusion amount at the time of a gift and at the time of death.  This is to deal with the possibility of a “clawback” – i.e., a prior gift that was covered by the gift tax exclusion at the time of the gift might result in estate tax if the estate tax basic exclusion amount has decreased by the time of donor’s death, thus resulting in a “clawback” of the gift for estate tax purposes.   The panel believes new regulations will be proposed so that clawback would not apply.   The decedent’s estate should get a credit at the estate tax rate and exemption in effect at the decedent’s death which may allow the estate to be entitled to a gift tax credit for more than the actual gift tax incurred by the decedent was alive.  Even if clawback was to occur, gifts of the increased exemption may make sense as the future appreciation is removed from the client’s estate.

The remainder of the day’s discussion was the impact of the income tax provisions of the 2018 Tax Act to estates and trusts.   As with individuals, trusts and estates deduction for state income and real estate taxes will be limited to $10,000.   Unlike individuals, accounting and attorney fees would be deductible on fiduciary income tax returns but investment management fees would not.   With the elimination of miscellaneous itemized deductions for individual, when an estate or trust terminates the excess deductions on termination could be lost.   As such, fiduciaries will need to better plan the timing of payment of administration expenses against the income realized so not to lose the benefit of these deductions.

Well that’s all for today! More commentary to come from the other Withum Private Client Service Tax Partners attending the conference.

Stay tuned!

Read Full Post »