The ERC Report – Issue 341

By Info | October 30, 2023 |

Friday, October 27, 2023

ERC ALERT

Issue #341

Coming from the Law Offices of Gassman, Denicolo & Ketron, P.A. in Clearwater, FL.

Edited By: Alan Gassman

Please Note: Gassman, Crotty, & Denicolo, P.A. will be sending the Thursday Report out during the first week of every month.

Article 1

Corporate Transparency Act: Implications to Estate Planning

Written By: Abigail O’Connor, Martin Shenkman & Jonathan Blattmachr

Article 2

How the 3% Cap on Homestead Tax Assessments Continues after Death – You can’t take it with you but can you leave it to your spouse or significant other?

Written By: Brock Exline

Article 3

When There is No Will, There is Still a Way (To Retitle Automobiles of the Decedent)

Written By: Brock Exline & Joey Kleiner

For Finkel’s Followers

You Are Probably Looking for the Wrong Type of Personal Assistant

Written By: David Finkel

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Designing and Building a Family’s Complex Wealth Structure

Presented by: Alan Gassman, JD, LL.M. (Taxation), AEP (Distinguished) & Chris Roe

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Your CPAs Guide to the New ERC Crisis

Written By: Alan Gassman, JD, LL.M. (Taxation), AEP® (Distinguished)

Alan Gassman’s Forbes article posted today starts as follows:

The expansion and strong marketing tactics of good-for-nothing “accounting advisors” who encouraged taxpayers to qualify for the Employee Retention Credit (“ERC”) when they did not technically qualify has caused tens of thousands of ineligible and false applications. This will result in hundreds – if not thousands – of criminal investigations and many more civil penalty situations.

Taxpayers who may have filed an ERC claim with these issues should consult independent legal counsel immediately under the attorney/client privilege to determine how to move forward best.

On September 14, 2023, the Internal Revenue Service (“IRS”) issued IR-2023-169, which announced the immediate suspension of new claims through the end of the year. The Announcement came following “growing concerns inside the tax agency, from tax professionals as well as media reports that a substantial share of new claims from the aging program are ineligible and increasingly putting businesses at financial risk by being pressured and scammed by aggressive promoters and marketing.”

Following the Announcement, the IRS also issued FS-2023-24 on October 19^th, which outlines a process for taxpayers to withdraw their ERC claims.

Taxpayers who have filed claims should review the qualification requirements with a qualified attorney to determine whether the claim was appropriate. If the claim was deemed not appropriate, they should immediately withdraw the claim through the withdrawal process outlined by the IRS…Continue reading on Forbes

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Article 1

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Corporate Transparency Act: Implications to Estate Planning

Written By: Abigal O’Connor, Martin Shenkman, CPA, MBA, PFS, AEP, JD & Jonathan Blattmachr, JD, LL.M.

1. Introduction.

a. The Corporate Transparency Act (“CTA”)1 is a new federal law that will impact the owners, principles and other control persons involved in almost all limited liability companies (LLCs), corporations (both C and S corporations), limited partnerships (LPs), and other closely held entities, as well as those who form those companies. Congress enacted the CTA in 2021 as part of the National Defense Authorization Act for Fiscal Year 2021. The principal purpose of the CTA is to strip U.S. shell companies of anonymity that can hide illicit financial activity and for use in financing terrorist activities. But the reach will be very broad and will impact millions of legitimate small businesses. This is accomplished by requiring “reporting companies” to file information with the Federal government about those who control or own interests in them. There are exceptions to these filing requirements that are discussed below; generally, those exceptions apply to very large or already-regulated industries. Most of the entities created by individuals as part of an investment plan (e.g., a holding company for securities or owning rental real estate or almost any type of a small business,), an estate plan (e.g., an LLC designed to hold various investments to facilitate trust funding or administration),

or asset protection planning (any entity created to insulate the assets it holds, or to insulate those who own the entity for claims arising from the assets the entity holds) likely will be subjected to the new reporting rules. Unlike most laws which are aimed at larger entities, the CTA is aimed at smaller ones: those with fewer than 20 fulltime employees or whose gross receipts for the prior year do not exceed $5 million.

b. The US Treasury’s Financial Crimes Enforcement Net (known as FinCEN and which is charged with enforcing the law), estimates that 32 million existing entities may face filing obligations. That will be increased by all new entities formed in the future. Thus, the CTA will impact a wide swath of Americans and their advisers as all try to grapple with this broad new requirement. FinCEN will be in charge of creating and maintaining the database, which as of now will not be public record but it will be available to a variety of governmental agencies, and possibly others in the future.

c. Existing entities (those in existence prior to January 1, 2024) will have until January 1, 2025 to comply. But as discussed in more detail below, entities and owners/control persons should begin planning for the filings now. New entities formed after January 1, 2024 will have 30 days to file their initial reports. FinCEN has proposed to extend the initial filing deadline for beneficial ownership reports from 30 to 90 days for entities created or registered on or after Jan. 1, 2024, and before Jan. 1, 2025, from formation to file.2 As of the writing of this article, that extension has not been granted and companies should for now plan on the 30-day requirement. While lawsuits have been filed challenging these new requirements, considering that similar requirements apply in many other countries, it may be unlikely for the challenges to succeed. But in any event, given the proximity of the filing requirements, the challenges of 32 million entities complying with a new and complex law, everyone who might be impacted should begin planning now for how they will comply.

d. Considering the severe penalties for non-compliance, anyone who may even possibly be effected should proactively address the requirements. These are discussed below.

e. Most, if not all, small businesses will be subject to the new rules (other than proprietorships and general partnerships), including “business” entities that are formed as part of what most practitioners consider regular, everyday estate planning. The couple who purchases a weekend home but uses an LLC to insulate themselves from liability for anything occurring on the property, will be subject to these rules. The group of siblings, who inherit a family cabin together and create an LLC to govern coownership more easily, will be subject to the new rules. Although there are exemptions to the rules, there are no exemptions for small entities such as these. It matters not if the entity has no (or virtually no) receipts, if the entity holds assets. Indeed, while there is an exemption for very large entities, there is no exemption for very small entities, even if there is no gross income, as long as there are assets held by the entity.

f. There are significant civil and criminal penalties for failing to comply, so all entities, entity owners, managers and those controlling these entities, need to be

aware of these developments. Importantly, the reporting requirement is not a one-time event. There is an initial reporting requirement and then ongoing reporting requirements if there is a change, e.g., a control person moves to a new home address, or perhaps a new manager is named for an LLC and that might have to be reported as a change in control persons. These rules will impact many who have implemented estate planning or asset protection planning. The clients of most estate planning practitioners are likely to be affected.

g. A critical issue will be who will handle the filing. Corporate filing services that assist in the formation of entities and serve as registered agents may try to expand to meet the new CTA filings as yet another service they offer. CPAs may try to assist in the CTA reporting but may not have the information or expertise for all aspects of this. Wealth advisory firms might even endeavor to expand the scope of services they offer. However, attorneys will have the most relevant expertise and in addition to handling the filings may also be able to identify other legal matters that need to be tended to (e.g., an update of the entity governing documents, identifying “beneficial owners” of trusts that hold interests in LLCs).

h. As an example the complexity and challenges that will face potential filers involved with estate planning the guidance issued to date is not clear or particularly instructive as to complex trust planning. The guidance provided: “Note for trusts: The following individuals may hold ownership interests in a reporting company through a trust or similar arrangements: A trustee or other individual with the authority to dispose of trust assets; A beneficiary who is the sole permissible recipient of trust income and principal or who has the right to demand a distribution of or withdraw substantially all of the trust assets; A grantor or settlor who has the right to revoke or otherwise withdraw trust assets.” Given the tremendous variation it fiduciary and non-fiduciary positions, variations in state laws that govern trusts, trustees, powerholders, etc. there will be significant uncertainty over filing requirements and who will have responsibility. Beginning the analysis of each trust and its position and rights will be a daunting task that should begin now. Note that while trusts themselves are not among the entities directly covered by the new CTA, a trust which owns or controls an entity that is covered will have reporting requirements.

2. Corporate Transparency Act.

a. The purpose of the CTA is to create a national database of companies in the U.S. that identifies the human beings behind the companies (both owners and those in control of the entities). The law is part of an increasing effort to combat money-laundering, terrorism, tax evasion and other financial crimes. Congress intended to try to help law enforcement by creating this national database that would allow law enforcement to sift through so-called “shell companies” that are used for nefarious purposes. These rules are very different from any reporting that people have faced previously (e.g., annual reports to states where formed and income tax returns). Because the reporting requirements are quite different from income tax returns, clients’ CPAs may not be able to, or perhaps may not be willing to, handle these filings.

b. These rules and reports will be uncomfortable as well as burdensome. Those required to report may have to disclose their names and home addresses to comply with the rules, even if they do not actually own an interest in a company. This could apply, for example, to someone who has control over certain financial aspects of a reporting entity, but owns no interests, and will have to make detailed personal disclosures. Many will find these disclosures invasive and a further erosion of whatever limited privacy they believed they still have…..Continue Reading on LISI

LISI Business Entities Newsletter #280 (October 23, 2023) at http://www.leimbergservices.com ©2023 by Martin M. Shenkman, Abigail OConnor, and Jonathan G. Blattmachr. All Rights Reserved. Reproduction in Any Form or Forwarding to Any Person Prohibited Without Express Permission. This newsletter is designed to provide accurate and authoritative information regarding the subject matter covered. It is provided with the understanding that LISI is not engaged in rendering legal, accounting, or other professional advice or services. If such advice is required, the services of a competent professional should be sought. Statements of fact or opinion are the responsibility of the authors and do not represent an opinion on the part of the officers or staff of LISI.

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Article 2

Written By: Brock Exline, Esq.

Issue:

If I own a home and am taking the homestead exemption and I die and leave the homestead in a lifetime trust for my spouse or my dependent domestic partner, then the 3% cap continues, right?

Answer:

The answer varies as to spouse and as to a dependent domestic partner.

As to Spouse.

Yes.

As a preliminary consideration, transferring the homestead into the trust should not affect the homestead tax exemption. An individual setting up a trust and transferring property into that trust remains the owner of the property and may encumber the property during his lifetime; therefore, transferring the home d to the revocable trust should not jeopardize the homestead assessment limitation (“the 3% cap”), unless the Florida homestead does not remain the individual’s primary residence as of January 1^st of each year, in which case the benefits are lost.

As long as the trust complies with the Florida constitutional provisions regarding descent and devise, which provide that if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes,[1] the 3% cap should not be lost.

Florida Statute 193.155 (Homestead assessments) provides under paragraph 3 the exceptions to what is generally considered a change in ownership, and reads in pertinent part as follows:

193.155(3)(a)(2): “For purposes of this section, a change of ownership means any sale, foreclosure, or transfer of legal title or beneficial title in equity to any person, except if:….legal or equitable title is changed or transferred between husband and wife, including a change or transfer to a surviving spouse or a transfer due to a dissolution of marriage.”

Based on the above, it appears that the 3% cap will continue to apply to the homestead after it is left in trust for the spouse.

Kelly v. Spain, 160 So. 3d 78 (Fourth District Court of Appeal of Florida, Decided 2015) also corroborates the fact that a transfer of the homestead to a surviving spouse will not cause a reassessment where the surviving spouse continues to occupy the home as their primary residence.

As to Dependent Boyfriend

The answer is somewhat unclear.

Florida Statute 193.155 lists one of the exceptions from the general change in ownership rules as “Upon the death of the owner, the transfer is between the owner and another who is a permanent resident and who is legally or naturally dependent upon the owner.”[2]

Based on the plain text of the statute, as long as the domestic partner is a permanent resident of the home and the domestic partner is considered legally or naturally dependent upon the owner, the transfer to the domestic partner upon the death of the owner should not be deemed a change in ownership and the 3% assessment limitation should remain.

However, I have not found any Attorney General opinions or case law that would support this result. Additionally, it is hard to determine the extent and scope of “legally or naturally dependent” upon the owner.[3]One criterion the property appraiser might look at, for example, is that the dependent is listed as such on one’s tax return.

However, if survived by only adult children and no spouse, as here, the owner of the homestead may freely devise the homestead. But if the homestead is devised to persons outside of the class of intestate heirs, it is certain that the homestead creditor protections will not inure to those devisees.[4]

It is unclear whether the 3% cap will continue to inure to the benefit of a devisee who is not an intestate heir. It would depend primarily on whether such transfer would be deemed a change in ownership – this question deserves further research.

An individual could also add their dependent domestic partner on to the title of the property and the 3% cap will remain intact as long as the original owner remains on the title and the person who is added to the title does not apply for a Homestead exemption.[5]

Alternatively, the homestead could be retitled as JTWROS and the 3% may remain intact based on the following exception to the general change in ownership rules under F.S. 193.155:

“The transfer occurs with respect to property where all of the following apply:

a. Multiple owners hold title as joint tenants with rights of survivorship.

b. One or more owners were entitled to and received the homestead exemption on the property;

c. The death of one or more owners occurs; and

d. Subsequent to the transfer, the surviving owner or owners previously entitled to and receiving the homestead exemption continue to be entitled to and receive the homestead exemption.”[6]

F.S. 196.031 specifically permits co-owners of property held as TBE or JTWROS to use the entire $25,000 tax exemption and does not limit to an owner’s proportionate interest. Thus when at least one of the co-owners of tenants by the entirety property or right of survivorship property qualifies for the homestead tax exemption, the entire property (100% of the value of the property) is subject to the 3% assessment limitation.

The rules regarding devise and descent do not apply to transfer restricted homestead owned as JTWROS, because, similar to property owned as TBE, at death the property passes automatically to the other joint owners.

Interestingly, the Pinellas County Property appraisers website, under “Frequently Asked Questions About Adding Owners to your Homestead Property” – provides, under the question of “Will I lose my Save our Homes Cap if I add someone to my deed?” that, in the event that the newly added owner is a JTWROS, and he or she DOES NOT apply for homestead exemption, the SOH cap WILL NOT be adjusted.” However, if the co-tenant added to the title as JTWROS applies for the homestead exemption the property will be reassessed at market value. The original owner could reapply and port the cap in such a case, but the value would be reset to market value.

The determination to be made is whether it makes more sense to have the co-tenant apply while the original owner is still alive, or wait and apply after their death. This choice would hinge on a number of factors, including but not limited to increasing or decreasing market values, the life expectancies of the parties’, and the amount of the existing SOH cap.

It appears, therefore, that the dependent boyfriend/domestic partner who is added to the title could not have it both ways. Meaning that he cannot apply for the homestead exemption/have the creditor protections inure to his benefit AND keep the 3% assessment limitation intact. However, if the dependent boyfriend is OK with not receiving the creditor protections/devise restrictions that would otherwise be in effect if he were to apply for the homestead exemption, he will be able to keep the 3% cap intact, at least until the death of the original co-owner.

^{^[1]} F.S. § 732.401(1). 732.401(2) also provides that the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes

^{^[2]} See F.S. 193.155(3)(a)(4)

^{^[3]} See Willens v. Garcia, 53 So. 3d 1113 (2013) Where a son tried to claim 3% cap and argued that he was either legally or naturally dependent upon his disabled father under F.S. 193.155, on appeal, the court found that the son was not legally or naturally dependent on his father during those years, within the meaning of the Florida law on the assessment of real property for ad valorem tax purposes because the son had served as a full-time, in-home, resident caretaker of his stroke-bound father to the exclusion of an outside career. Thus, the reassessment of the property to the full value was deemed proper.

The Court’s discussion of what constitutes “legally or naturally dependent” observed that there must be, when adults claim such dependence, “an actual inability to support themselves” and that moral obligations are ones that exist based only upon conscience and thus are not legally enforceable.

^{^[4]} https://probatestars.com/complete-guide-to-florida-homestead/ See also, Kelley’s Homestead Paradigm.

^{^[5]} F.sS. 193.155(3)(a)(1)(c) providing that an exception to the general change in ownership rules includes the situation where: “The change or transfer is by means of an instrument in which the owner is listed as both grantor and grantee of the real property and one or more other individuals are additionally named as grantee. However, if any individual who is additionally named as a grantee applies for a homestead exemption on the property, the application is considered a change of ownership;”

^{^[6]} See F.S. 193.155(3)(a)(5)(a)-(d).

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Article 3

When There is No Will, There is Still a Way (To Retitle Automobiles of the Decedent)

Written By: Brock Exline, Esq. & Joey Kleiner, Stetson Student

When transferring an automobile in Florida, the Department of Motor Vehicles (DMV) requires the name on the vehicle’s title to match the name of the person selling the vehicle. Of course, matching the seller to the owner makes sense; you can’t sell what you don’t own! So how should you handle the sale or transfer of a vehicle following the unfortunate event of a loved one’s passing?

   Many estate assets can bypass the probate process. For example, assume a deceased individual’s estate is comprised of real estate, bank accounts, brokerage accounts, retirement accounts, and a couple of automobiles. If the deceased individual’s real estate transfers to their intended heirs through tenancy by the entireties, and the bank, brokerage, and retirement accounts all have valid pay-on-death beneficiary designations, the only remaining assets without an effective transfer on death would be the automobiles. In such a situation, it would appear both costly and cumbersome to initiate a probate proceeding solely for the purpose of transferring the vehicle’s title after the owner’s demise.

   Luckily, the State of Florida has a couple workarounds to assist those who are facilitating the transfer of leftover automobiles. First, a testamentary document – such as a Last Will and Testament – can devise automobiles to allow the estate administrator to transfer the ownership to the appropriate heir. A second exception to the matching owner/seller law is that a surviving spouse may assign the Certificate of Title to themselves by removing the decedent if the vehicle is jointly titled. However, the main focus of this article will be the additional steps required for non-surviving spouse administrators to retitle the automobile and prevent driveway rust formation.

   Florida Law, under Section 319.28, outlines the permissible methods for transferring ownership of the decedent’s motor vehicle(s) among other situations where a title may be transferred without the original owner, such as an order in bankruptcy or to satisfy a mechanic’s lien. The procedures set forth in Section 319.28 facilitate a surviving spouse or heir obtaining title to an automobile after the owner has died without the need of the probate process.

Particularly of note for this article, Subsection 319.28(1)(c) provides that when the application for a Certificate of Title is made by an heir of a previous owner who died intestate (without a valid will), it is not necessary to obtain an order of a probate court as long as the applicant files an affidavit with the DMV stating that the estate is not indebted and that the surviving spouse (if any) and other heirs have reached a mutual agreement upon a division of the estate.

The DMV publishes a helpful form for this exact scenario, called the HSMV 82040 MV. This two-page form allows the applicant wishing to gain ownership of the automobile to provide necessary information to transfer title, as well as gain signatures from any heirs to release the heirs potential claim to the vehicle.

Section 13 of the HSMV form 82040, entitled “Release of Spouse or Heirs Interest,” is signed under penalties of perjury by the surviving spouse and/or heirs and serves as the affidavit to satisfy the requirements of Section 319.28(1)(c). Alternatively, a more formal affidavit may be completed which contains recitals that the estate is not indebted and that the surviving spouse and other heirs have amicably agreed on the division of the estate.

Be sure to make an appointment at the DMV once you have all the paperwork in order to prevent sitting around a government office longer than necessary! Other important items to bring with you when applying for a transfer of Certificate of Title include: the current Certificate of Title, a photocopy of the decedent’s death certificate, proof of the applicant’s ID, notarized affidavits of no estate indebtedness and agreement among the surviving spouse and heirs regarding the amicable division of estate assets. The affidavit does not need to list specifics regarding how the estate’s assets will be divided, just that all parties have agreed upon a plan of distribution.

In conclusion, vehicles registered with the Florida DMV require a few extra steps to transfer ownership when there is no will directing an estate administrator. By following the guidelines in this article, you can navigate this process more smoothly and efficiently, arriving prepared for your appointment with the documents you need to get the vehicle retitled. For more information, check out section E (“Ownership is Recorded only in the Name of the deceased and the Estate is Not Administered”) on page 10 of the DMV’s procedure manual available at https://www.flhsmv.gov/pdf/proc/tl/tl-18.pdf.

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For Finkel’s Followers

You Are Probably Looking for the Wrong Type of Personal Assistant

Written By: David Finkel; Author, CEO, and Business Coach

As a business owner, one of the best things that you can do to help maximize your time and be able to focus on the big picture items is to hire a personal assistant. In my twenty five plus years of business coaching, I have seen so many business owners really propel their business growth by having someone to take some items off their plate. But not all personal assistants are created equal. Some may actually cause you to lose momentum and do more work, instead of less. So today, I want to review the different types of personal assistants and discuss which ones are best for you as a business owner.

The first type of personal assistant is what I would call a gopher. You do not want a gopher. A gopher is someone you have to tell them every little thing to do. Move this file from here to here. Save this document and call it XYZ. Basically it is just an open invitation to the unpopular world of micromanaging. If you are interested in growth you’re not looking for a gopher.

The second type of assistant would be the person that I would consider an administrative assistant. And is what most business owners assume that they need. But again, I don’t think this is the right fit for most entrepreneurs. An administrative assistant is capable of doing clearly defined, concrete tasks. Which is usually not enough for a growing business. Why? As a business owner, nothing is ever clearly defined. There’s always going to be some level of ambiguity, and an admin person is often unable to handle that level of uncertainty. They’re just uncomfortable with it.

The third type of assistant would be the executive assistant, and is the one that I recommend for most of my business coaching clients. This type of person is really quite competent, and in most administrative functions, they can handle it with ease. Even if you give them an ambiguous thing that requires some research or a more complicated execution. For instance, my executive assistant recently noticed that Amazon had delisted one of my books for some reason. She took it on herself to research the issue and come up with a solution to get the book put back on the digital shelves. And with things like this she’s better at it than I am. She’s got more patience and more persistence with that type of stuff. And knowing that I can trust her with some ubiquity, frees me up to focus on things that matter most in my business.

For some of you, particularly if you are running a larger company, you may need someone with more competency. Which is where the fourth type of assistant, a chief of staff, comes into play. This would be somebody who is kind of like your personal COO. This person is probably better at execution in the business world than you are, but they want to play a secondary role, and they’ll help you get where you need to be. Generally, a chief of staff position opens up when you’ve found somebody at a lower level that you can promote up, that can grow into that role. Essentially an executive assistant that has been with you long enough to know the ins and outs of your business and wants to take on more responsibility. My chief of staff started their career as an executive assistant and now handles most of the day to day activities within my company.

So if you are looking for a personal assistant, I urge you to look at your needs and hire the correct person(s) for the job. Because in most cases a gopher or an administrative assistant will just end up being more work in the long run, whereas an executive assistant or chief of staff can help you excel and scale your business.

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Date: Saturday, October 28, 2023

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Saturday December 16, 2023	Free from our Firm *(Virtual Session – CPE Credits Will Be Offered Through CPAacademy.org)**	Alan Gassman & Chris Roe Present: MANAGING A FAMILY’S COMPLEX WEALTH STRUCTURE 11:00 AM to 12:00 PM EST (60 minutes)	REGISTER HERE FOR NON-CPE CREDIT
Saturday, january 6, 2023	Free from our Firm *(Virtual Session – CPE Credits Will Be Offered Through CPAacademy.org)**	Alan Gassman, Lynda Benson & Parik Singh Present: THE BUSINESS OF MEDICINE: LEGAL STRUCTURES & TAXATION 1:00 AM to 12:00 PM EST (60 minutes)	REGISTER HERE FOR NON-CPE CREDIT
Friday, January 19, 2023	Stetson Law School	Alan Gassman Presents: Sure Fire Success Techniques Time: TBD	Coming soon!
Wednesday, February 21, 2024	MIT Alumni Club of Southwest Florida	Alan Gassman Presents: The Mathematics of Estate and Estate Tax Planning Time: TBD	Coming Soon!