The Thursday Report 4.10.2014 – Bruce Stone in Kiev, Step-Ups and 2 Pups

Ed Morrow, Alan Gassman and Chris Denicolo on Stepped-Up Basis Planning

Running the Numbers on the Portability Mistake

Beware – Your Referral Sources May Not Be Protected, an Article by Darryl Richards, Esq.

What if a Residential Lease Longer Than One Year Does Not Have Two Witnesses?

Bruce Stone’s Reminiscences of Kiev – A Very Interesting Story – Part 1 of 2

The Thursday Report Goes to the Dogs! Scott Kelby’s Happiness Day Website Entry

We welcome contributions for future Thursday Report topics. If you are interested in making a contribution as a guest writer, please email Janine Gunyan at Janine@gassmanpa.com.

This report and other Thursday Reports can be found on our website at www.gassmanlaw.com.

Ed Morrow, Alan Gassman and Chris Denicolo on Stepped-Up Basis Planning

If you are a tax lawyer and have never read Ed Morrow’s articles on stepped-up tax planning do that next!  Cancel your Friday or Saturday night plans so that you have time for this and cuddle up with a bucket of Kentucky Fried Chicken and take a look at what Ed has to say about using Powers of Appointment.

A transcript of a recent live presentation provided by Ed, Alan and Chris is available upon request for Thursday Report readers along with the PowerPoint that we used and special tips on how to get the best value for dollar at Kentucky Fried Chicken.

What if a Residential Lease Longer Than One Year Does Not Have Two Witnesses?

Under Florida Statutes §689.01, any lease with a term of greater than one year must be in writing and signed in the presence of two witnesses.

What becomes of the lease when it is signed without witnesses? In University Square v. Congress Auto Center, 9 Fla L. Weekly Supp. (Palm Beach Circuit Court 2002), the tenant signed the lease through a real estate agent, but the landlord never signed the agreement. The landlord accepted payment and turned the keys over to the new tenant. Shortly thereafter, the landlord attempted to terminate the relationship, claiming that because they never signed the lease this was an oral contract with a month to month tenancy.

The Court looked to Demps v. Hogan, 48 So. 998 (1909), which ruled that an agreement will be enforced regardless of the statute of frauds when a seller puts the buyer in possession and the buyer has performed his obligations. The Court reasoned that applying the statute of frauds in this instance would act as a fraud against the tenant, thus the unsigned lease was found to be enforceable.

Since then, a number of court cases have found that landlords and tenants are “estopped” from invalidating a lease that is not in writing or that does not have two witnesses if the landlord put the tenant in possession.[1]

Typically, when witnesses are not present, the lease will be found to be an oral month to month tenancy. Florida Statute Section 83.03(3) states, “A tenancy at will may be terminated by either party giving notice as follows…Where the tenancy is from month to month, by giving not less than 15 days’ notice prior to the end of any monthly period.”

Essentially, the court has discretion to determine whether or not they wish to apply the statute of limitations when reviewing leases. Should it choose not to hold the lease as a valid agreement, it will default to a month to month tenancy where either party can terminate the relationship by giving appropriate notice.

Running the Numbers on the Portability Mistake

By: Alan S. Gassman, J.D., LL.M., Kenneth J. Crotty, J.D., LL.M. and Christopher J. Denicolo, J.D., LL.M.

Over and over again, we have heard many planners and commentators say that you can sit with a married couple who have a fairly long life expectancy and decide right then and there whether they should work to fund a credit shelter trust on the first death or “simply elect portability.”  These people state that this decision can be made at that time by taking into account the size of the couple’s estate, probable growth in savings, and the desire to avoid capital gains tax on the death of the surviving spouse.

We believe that in most cases this approach is completely wrong, and we feel that the numbers provided in the attached spreadsheet proves us right.

Planners and clients need to understand that the best position to be in after the death of one spouse is to have the flexibility for the surviving spouse, family, and/or advisors to decide how much should pass to a credit shelter trust that can have mechanisms which would allow for a stepped-up basis on the second death and how  much can pass to a GST exempt Q-TIP trust for the surviving spouse so as not to waste the first dying spouse’s generation skipping tax exemption. 

If portability is going to be used then the GST exemption of the first dying spouse can be preserved by allocation to a QTIP marital deduction trust that can pay income to the surviving spouse and will be considered as owned by the surviving spouse for estate tax purposes on the second death.  If an outright marital devise or an income/general power of appointment trust is used then the GST exemption of the first dying spouse will be lost.

Many planners (and commentators also it seems) do not understand or are not keeping in mind that the trustee of a credit shelter trust can disclaim some or all of a disposition to pass to a Q-TIP trust to the extent that portability is determined appropriate.  Alternatively, a credit shelter trust can actually become a Q-TIP trust, in whole or in part, by making a Clayton Q-TIP election, as described below.

This puts the family and their advisors in a great position.  They can look at expected future savings, spending, investment returns, life expectancy of the surviving spouse, and remarriage possibilities when considering credit shelter trust funding options.

For example, is the surviving spouse a wife who is likely to remarry because of her age and outlook?  If so, then the odds are fairly high that her new husband will die before she does.  If this happens her portability allowance may be reduced or lost (if her new husband has used more of his estate tax exemption than her previous husband had available on his death, or the new husband’s fiduciaries do not allow for a portability election).

Does this mean that credit shelter trusts should always be formed if a husband dies first, but not if a wife dies first?  Why would anyone try to foresee any of this?

The opposite approach of allowing for the surviving spouse who receives a devise, or a Q-TIP trust trustee to disclaim  a marital devise into a credit shelter trust will not work most of the time, because of the well known propensity of surviving spouses to be unwilling to disclaim into a credit shelter trust because of financial insecurity, and the desire to not lose the ability to appoint how the credit shelter trust assets will pass on the surviving spouse’s death.

If one spouse dies five years after documents are drafted and the documents provide for a credit shelter trust to be funded with assets of the first dying spouse, then there will be an ability to see what the federal estate tax exemption level is, what the income tax situation is, what the assets are, and who will be around to guide them.

Further, the typical married couple has a fairly short attention span and does not want to authorize lawyers and accountants to spend a few hours running numbers and explaining scenarios with this type of situation.  Isn’t it much better to wait until you know what the exact situation is after the death of one spouse, when the surviving spouse is much more willing to allow numbers to be run and alternatives to be considered?

Why do so many planners resist the idea of the JEST system that can allow the surviving spouse and advisors to permit assets considered as held by or for the surviving spouse to pass to a Credit Shelter Trust B that may facilitate a stepped-up basis in that spouse’s own assets, and avoidance of federal estate tax on the second death?

The private letter rulings and TAM cited in our JEST materials directly support the proposition that credit shelter trust funding is permitted and Credit Shelter Trust B can have features to help to substantially increase the possibility that the stepped up basis can be obtained on the first death.

Trust protectors can have the power to give the surviving spouse the ability to appoint assets to creditors of his or her estate on the second death to the extent that the surviving spouse has extra estate tax exemption available and assets within the credit shelter trusts are best situated to receive a step-up in basis on the second death.

With the above in mind, why would any planner representing a moderately successful family not keep the doors open for the above possibilities?

Within a few years we will know whether the IRS accepts the JEST trust technique, and far more about what our tax system and our clients will be and prefer.

Please do not slam the door shut on your client’s planning opportunity in view of the above.

Please click here for a demonstration on how devastating the use of portability can be.

Beware – Your Referral Sources May Not Be Protected
by Darryl Richards, Esq.

Darryl Richards is an extremely well respected and effective litigation lawyer with the Johnson Pope law firm in Tampa.

Darryl has extensive experience in litigating over the enforceability of non-competition covenants, and has written the following article recently which gets straight to the point in laying out the issues that apply with respect to the enforceability of a non-competition covenant where referral sources are a key component.

Our book Florida Law for Tax, Business and Financial Planning Advisors has extensive discussion on this topic and can be purchased on Amazon.com by clicking here.

We thank Darryl for allowing us to reprint his article, and for all of the excellent work that he has done for dozens of our clients over the years.  We estimate that 90% of Darryl’s work settles well before trial, which is one key track record item that we look for in helping clients to identify an appropriate litigator.   Below is the article Darryl wrote.

In Florida, there is no doubt that non-compete agreements to protect legitimate business interests are enforceable.  Yet, actions to enforce restrictive covenants are hotly contested.  The litigation often centers on the question of whether the restrictive covenant is reasonably necessary to protect a “legitimate business interest.”  While §542.335(1)(b), Florida Statutes, defines the term legitimate business interest, it does so without limitation.  One area which is the subject of great debate and conflicting decisions is whether referral sources are legitimate business interests which may be protected by a restrictive covenant.  Successful doctors and other professionals diligently cultivate referral sources and relationships.  Those relationships are the lifeblood of any professional practice.  Doctors and other professionals immerse themselves in professional, social and civic organizations in part to develop relationships with other professionals, community leaders and civic leaders who are potential referral sources.  To develop strong referral relationships often takes years of time, effort and expense.  Referral sources are important to any professional practice, but are referral sources legitimate business interests that may be protected by a non-compete agreement?  Under Florida law, the answer depends in part on where a professional practices.

In the Florida Keys and South Florida, one trial court found that a non-compete may be used to protect a “patient base, referral doctors, specific prospective and existing patients, and patient goodwill.”  An appellate court agreed and said that the restrictive covenant was reasonably necessary to protect legitimate business interests in a patient base, referral doctors, specific prospective and existing patients, and patient goodwill.  In South Florida, therefore, doctors and other professionals can reasonably expect enforcement of non-compete agreements to protect referral sources.

Not too far to the north in the Orlando area, however, the story is quite different.  There, a new doctor joined an established hematology practice.  That practice introduced the new doctor to patients, referral sources and helped him get privileges at local hospitals.  The practice had taken years to develop its referral sources and patient goodwill.  The new doctor had no contacts in the community and used the practice’s relationships to develop his practice.  After the new doctor established a practice using his employer’s contacts, he left and started a competing practice.  A trial court and appellate court refused to enforce a non-compete to protect referral sources, even though those courts recognized that specialists receive “a significant share of their new patients from referring physicians” and that they spend significant time and money to cultivate referral relationships.

The Florida Supreme Court, however, has decided not to resolve the conflict.  Chief Justice Lewis dissented and argued that “a uniform interpretation of §542.335 is critical not only to medical doctors but to those in all walks of life, because this legislation applies to all types of restrictive covenants.  On a daily basis, economic futures are placed at risk through the use of such covenants and reliance upon such covenants.  It is clear to me that referral professionals are ‘legitimate business interests’ subject to protection in the geographic jurisdiction of Dade and Monroe Counties.  However, those in the geographic jurisdiction of the Fifth District Court of Appeal do not have the same legal rights.”

So, where you work may decide what your rights are.  Do not let your hard work be taken from you.  There are steps you can take to protect your referral sources.  Those steps will be different based on where you are located.  If you wait until your former employee or partner is walking out the door with your referral sources, it may be too late.

Bruce Stone’s Reminiscences of Kiev – A Very Interesting Story, Part 1 of 2

Bruce Stone is more than just a top trust lawyer, author and teacher.  He is also a very well respected man who gives to his family, his community and charitable causes.  Further, he speaks fluent Russian and studied Russian for four years at the University of Florida while pursuing his degree in sociology before going to law school, perhaps hedging his bets since the gold war wasn’t over yet!”

Bruce’s story is below about an experience in the Ukraine in 1974.  It is a great read.  Enjoy it!

The recent events in the Ukraine take my mind back forty years to January 1974.  A recent law school graduate, less than a month out of law school, I was in Kiev, traveling alone around the USSR for six weeks as a tourist.  My knowledge of Russian was workably fluent, and so I was able to walk around the city and engage in conversation with people on the streets.  I stood out as an obvious American BACK THEN -with long hair, dressed in Levi blue jeans and Dingo boots.  People were friendly and unafraid to talk with me – we were in the beginning of Henry Kissinger’s “détente.”  Older men would tell me about their service in World War II, fighting as allies with the Americans.  One man who didn’t speak English told me that he knew only one phrase in English which he remembered from General Douglas MacArthur: “I shall return!”

One day a young man not much older than I came up to me on the street and struck up a conversation.  He wanted to try out his English with me.  He offered to take me around Kiev and show me things that I would not find or see on my own, not even if I had a guide.  He showed me the building where the local KGB headquarters were.  He asked me if I was Christian, and when I said yes, he told me that he was Eastern Orthodox.  He offered to take me to a Christmas service at a church in the city.  Because of the difference in the Eastern and Western calendars, I was able to celebrate Christmas in church twice, as I had left on my trip three days after our Christmas in the US.  The church was packed with worshipers, mostly older people, but there were a few younger people.  This was very special, because religion in the USSR was outlawed for being “the opium of the people” for parts of the twentieth century.

That experience, followed up by a subsequent visit to Russia in 2010, convinced me that decades of Communism were no match for the depth of religiosity among the people of the Ukraine and Russia and are an important reminder of how fortunate we are to have freedom of religion in the U.S. and most of the western world.

The day before my departure from Kiev (to Sochi, of all places), my new friend asked me if I would send him record albums and denim cloth once I got back home, if he gave me rubles to do so.  I was concerned but convinced that the request was sincere.  He gave me a large amount of rubles – not worth so much on the official government controlled exchange rate, but worth perhaps a thousand dollars at the true black market rate.  I would have to spend those rubles over the course of my travels over the remaining weeks of my journey, because I would not be able to show how I had acquired them when I left the country.  So I took the rubles, and when I got back to my hotel for that last night in Kiev, I stuffed the wad of currency into my Dingo boots, and went to sleep.

I was awakened by a telephone call at 6 a.m. the next morning.  My flight to Sochi wasn’t scheduled to leave until noon.  A male voice was telling me in Russian that I had to get up and come down to the station immediately.  I was terrified!  I had been set up in a KGB sting operation!  What should I do?  Would I be jailed for a foreign crime, or worse? My answer: simply ignore the call and pretend it hadn’t happened.  So there I sat in my room, in a nervous state of wreck.  The phone rang again ten minutes later.  The same male voice spoke with the same message, only this time more demanding: I had to go to the station immediately.  Once again I chose to ignore it.

Shortly afterward, there was a knock on my door.  My heart just about stopped beating.  In what was the moment of greatest terror in my life, I opened the door.

This is the end of Part 1 of Bruce’s story.  Part 2 will be published in next week’s Thursday Report.  See you then!

We thank friend and visionary, Scott Kelby, for a beautiful happiness day entry for the Coca Cola website.  His profile on Marcia is below.  For the entire site you can click here.

Scott writes:

Every week for the past four years, Marcia takes her specially-trained certified therapy dogs, Layla and Ringo, to local nursing homes to visit, cuddle, and love the residents.

“I started pet therapy because my dogs bring me a joy that I must share with people who don’t have dogs anymore because they can’t. During these visits with the dogs, you see something resonate inside the residents, and when it does, you see life.”

I thought nothing captured that more than Marcia’s story of visiting a resident who had suffered a stroke, becoming completely unresponsive. But when Marcia placed Layla in the resident’s lap, she smiled. This amazed everyone at the nursing home and also demonstrates how we connect with our pets and how much happiness they can bring.

Scott Kelby is the Editor and publisher of Photoshop User Magazine and President of KelbyOne.com. He is the co-host of the highly acclaimed weekly videocast The Grid, and teaches photography, Lightroom and Photoshop workshops around the world.

Scott is an award-winning author of more than 50 books, including The Digital Photography Books, The Adobe Photoshop Book for Digital Photographers, The Adobe Photoshop Lightroom Book for Digital Photographers, and Light It, Shoot It, Retouch It: Learn Step by Step How to Go from Empty Studio to Finished Image.

For more on Scott, see his blog at www.scottkelby.com.

Upcoming Seminars and Webinars

LEGAL COMPLIANCE FOR MEDICAL PRACTICES THAT USE NURSE PRACTITIONERS AND PRACTICE EXTENDERS

Date: Today, Thursday, April 10, 2014 | 5:00 p.m. (30 Minutes)

Location: Online webinar

Speakers: Cynthia Mikos, Esq. and Alan S. Gassman, Esq.

Cynthia Mikos is an excellent speaker and healthcare lawyer.  Join her fan club by attending this informative webinar.  Her materials are excellent.

Additional Information: To register for this webinar please click here.

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FIND OUT WHAT JERRY HESCH’S LATEST THINKING IS ON SELF-CANCELLING INSTALLMENT NOTES, THE KITE CASE, PRIVATE ANNUITIES, AND TRIUMPH SPIT-FIRES

Date: Monday, April 14, 2014 | 12:30 p.m. (30 Minutes)

Location: Online webinar

Speakers: Jerry Hesch and Alan S. Gassman

Additional Information: To register for this webinar please click here.

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FICPA SUNCOAST CHAPTER MONTHLY MEETING

Alan S. Gassman will be speaking at the FICPA Suncoast Chapter’s monthly meeting on the topic of THE FLORIDA CPA’S GUIDE TO PLANNING WITH PHYSICIANS AND MEDICAL PRACTICES

Date: Thursday, April 17, 2014 | 4:00 p.m.

Location: Tampa, Florida

Additional Information: For more information on this event please email agassman@gassmanpa.com or mary@clawsonasplus.com

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DONOR LUNCHEON AT RUTH ECKERD HALL WITH PROFESSOR JERRY HESCH IN CLEARWATER, FLORIDA

Sponsored by Gassman, Crotty & Denicolo, P.A. Co-sponsors invited.

Professor Jerry Hesch will be speaking at a Donor Luncheon on the topic of CHARITABLE TAX SAVINGS: HOW TO MAKE SURE THAT UNCLE SAM CONTRIBUTES HIS SHARE TO MAXIMIZE RESULTS

Date: Tuesday, April 22, 2014 | 11:30 am

Location: Ruth Eckerd Hall, Clearwater, Florida

Additional Information: For additional information please contact Suzanne Ruley at sruley@rutheckerd.net or Alan Gassman at agassman@gassmanpa.com

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RUTH ECKERD HALL PLANNED GIVING MEETING

Professor Jerry Hesch will be speaking at the Ruth Eckerd Hall Planned Giving Meeting in Clearwater, Florida on the topic of INNOVATIVE CHARITABLE GIVING TECHNIQUES FOR THE WELL TUNED ESTATE PLANNER

Sponsored by Gassman, Crotty & Denicolo, P.A. Co-sponsors invited.

Date: Tuesday, April 22, 2014 | 4:00 p.m.

Location: Ruth Eckerd Hall, Clearwater, Florida

Additional Information: This session qualifies for 1 hour of continuing education credit for lawyers and CPA’s.  To attend please email Suzanne Ruley at sruley@rutheckerd.net or Alan Gassman at agassman@gassmanpa.com

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1^st ANNUAL ESTATE PLANNER’S DAY AT AVE MARIA SCHOOL OF LAW

Speakers: Speakers will include Professor Jerry Hesch, Jonathan Gopman, Alan Gassman and others.

Alan Gassman will cover Using Estate Planning Techniques to Optimize Family Wealth Preservation.

Date: April 25, 2014

Location: Ave Maria School of Law, Naples, Florida

Sponsors: Ave Maria School of Law, Collier County Estate Planning Council and more to be announced.

Additional Information: For more information on this event please visit http://www.avemarialaw.edu/estateplanning/Index.aspx

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WHAT LAWYERS AND TAX ADVISORS NEED TO KNOW WHEN PLANNING FOR SAME SEX COUPLES – UNUSUAL RULES, STRATEGIES, CHECKLISTS AND TRAPS FOR THE UNWARY

Speakers: Alan S. Gassman, Professors Jason Palmer and Rebecca Morgan from Stetson University, Jessica Lillesand of Wells Fargo and Rob Webster, Esq.

Date: Monday, April 28, 2014 | 12:30 – 2:00 p.m.

Location: Bloomberg BNA Tax & Accounting Online webinar

Additional Information:  To register for the webinar please click here.

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THE FLORIDA BAR ANNUAL WEALTH PROTECTION SEMINAR (with 2 hours of Ethics CLE credit)

Alan Gassman will be speaking at the Florida Bar Annual Wealth Protection seminar on How I Structure an Integrated Income, Estate Tax, and Asset Protection Family Plan as well as participating in a panel discussion with Barry Engel, Jerry Hesch and Denis Kleinfeld on What Are the Ethical, Legal and Administrative Liability Exposures in Wealth Protection Planning and How Do We Protect Ourselves.

Date: Thursday, May 8, 2014

Location: Hyatt Regency Downtown, Miami, Florida

Additional Information: For more information and to register please click here.

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THE JOINT EXEMPT STEP-UP TRUST AND PLANNING WITH COMMERCIAL ANNUITIES

Alan Gassman will be speaking at the Ohio Conference on two different topics: 1) Wealth Transfer on Structuring Joint Exempt Step-Up Trusts (“JESTs”): Maximizing Stepped-Up Basis Planning, Fully Funding Credit Shelter Trusts with Joint Assets and Practical and Technical Aspects Thereof – With Forms and 2) Planning with Commercial Annuities.  Mr. Gassman will also be participating in a panel discussion the evening before hosted by Johnson Investment Counsel and The Ohio State University.

Date: June 4, 2014

Location: Hilton at Easton, Columbus, Ohio

Additional Information:  For more information on the conference and to register for the conference please contact agassman@gassmanpa.com

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HIRING AND TERMINATING EMPLOYEES; WHAT TO DO, WHAT TO AVOID

Speaker: Colleen Flynn, Esq., Dr. Stephanie Thomason and Alan S. Gassman, Esq.

Date: Wednesday, June 18, 2014 | 2:00 – 3:00 p.m.

Location: Bloomberg BNA Tax & Accounting Online webinar

Additional Information:  For more information, to register and a discount code please email agassman@gassmanpa.com

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40^th ANNUAL NOTRE DAME TAX & ESTATE PLANNING INSTITUTE

Please send us your questions, comments and suggestions for Alan Gassman’s talk on Planning with Variable Annuities.

This presentation will cover the unique income tax and financial planning characteristics of fixed and variable annuities, and provide estate and tax planners with a number of strategies for understanding and planning with existing and contemplated contracts. With over one trillion dollars of US taxpayer money invested in annuity contracts, more and more clients are showing up in their estate planners offices with large annuity contracts and common misunderstandings about “guaranteed income” and “guaranteed rates of return” features.   The presentation will cover common policy features, what is actually happening inside of a policy, illustration techniques, and changes that can be made to defer income tax and reduce overall tax liability.   Minimum distribution rules akin to the IRA and pension Section 409A rules and common carrier practices will also be discussed.

Date: November 13 and 14, 2014

Location: Century Center, South Bend, Indiana

We welcome questions, comments and suggestions on variable annuities, which will be Alan Gassman’s topic for this conference.

Additional Information: The focus of this year’s institute will be on “Business Succession Planning: An Income Tax, Estate Tax and Financial Analysis.”  As in past years, several sessions are designed to evaluate certain financial products and tax planning techniques so that the audience can better understand and evaluate these proposals in determining not only the tax and financial advantages they offer, but also evaluate limitations and problems they may cause in the future.  Given that fewer clients will need high-end estate tax planning with the $5 million exemptions, other sessions will address concerns that all clients have.  For example, a session will describe scams that target elderly individuals and how to protect the elderly from these scams.  As part of the objective on refreshing or introducing the audience to areas that can expand their practice, other sessions will review the income tax consequences of debt cancellation, foreclosures, short sales, the special concerns that arise in bankruptcy and various planning available to eliminate the cancellation of debt income or at least defer it with a possible step-up basis at death.  The Institute will also continue to have sessions devoted to income tax planning techniques that clients can use immediately instead of waiting to save estate taxes far in the future.

Applicable Federal Rates

Below we have this month, last month’s, and the preceding month’s Applicable Federal Rates, because for a sale you can use the lowest of the 3.

 The 7520 rate for April is 2.2% and for March was 2.2%