The Pattie Boyd Report – Issue 334





 

 

 

 

 

Thursday, February 16, 2023

The Pattie Boyd Report – Issue #334

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

Edited By: Alan Gassman

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

Article 1

Qualified Longevity Annuity Contracts Under the Secure Act 2.0

Written By: Jason McCosby & Brandon Galvao

Article 2

Unique Tax Saving Strategy For Net Unrealized Appreciation on Company Stock

Written By: Jill Ashley, CPA, Law Degree Candidate

Article 3

Proposed Ban on Non-Compete Agreements

Written By: Jill Ashley, CPA, Law Degree Candidate

Forbes Corner

New Tax Law Rewards Charitable IRA Retirees With A $50,000 Income Tax Deferral Opportunity

Written By: Alan Gassman

For Finkel’s Followers

3 Signs You Have Control Issues

Written By: David Finkel

Free Saturday Webinar

Estate Tax Planning From Basic to Beyond

Presented By: Alan Gassman 

More Upcoming Events

YouTube Library

Humor

 

 

Increasing Diversity in the Estate-Planning Field

Alan Gassman details the concrete steps he’s taking toward inclusion.

I’ve heard many discussions and presentations on the importance of increasing diversity in the estate-planning field. But putting these thoughts into practice isn’t always easy. As I was networking with my colleagues at the Heckerling Institute on Estate Planning, I spoke with one attorney, Alan Gassman of Gassman, Crotty, and Denicolo, P.A., who’s created a program to increase diversity by partnering with Stetson University College of Law in Gulfport, Fla., to create an Estate Planning Council Diversity Fellowship and Award. The goal of the program is to introduce estate planning and elder law as a viable career opportunity for students of color by enabling two students to be selected for a two-semester fellowship beginning in fall 2023. Each fellow will receive an award of $1,500 per semester. They will join an estate-planning council and be mentored by two members of that group. I asked Alan what motivated him to create the program and to explain the details. Here’s his response:

Motivation

Given that when I started to practice law in Clearwater, Fla., in 1985, I wasn’t able to join certain clubs or to be involved with certain law firms or events that, quite frankly, gave other professionals opportunities that I didn’t have. My thought was to provide the opportunities that I found by being able to join and be active in the Pinellas County Estate Planning Council to others who wouldn’t have these available to them. I therefore joined NAEPC’s Diversity Committee but found no clear path of conduct that I could engage in to cause “diversity to happen.”

Last summer, I taught a course on Law Office Management and Professional Achievement at Stetson Law School and met several students who didn’t come from wealthy or well-educated families and felt they could use interaction with a local estate-planning council while in law school.

After a few months of attending diversity committee meetings, I realized that there was a natural need for students of color in law school to be involved in estate-planning councils and for them to mentor and nourish these students. CLICK HERE TO CONTINUE READING

 

NURTURING SUCCESS & ACHIEVEMENT: THE PATTIE BOYD STORY

The Beauty That Sold 99.8 Million Records

 

Written By: Josh Hawkins

I want you to picture yourself driving down an American highway in the 1970’s. The top is down, the wind blowing through your hair, the sun shines brightly on your face…life is good. For some readers this image is something purely of fantasy while for others, was part of their experience. Now what is this picturesque scenario missing? Well, some good tunes, of course. You turn the dial to your favorite rock and roll station, the other channels blurring together as you make your way up the array of FM frequencies. When you finally make it to the station, the DJ spouts off something in his faux baritone voice, a silence, and then, the guitar riff of all guitar riffs screams on all four speakers, the hair raises up on your arms while your brain is filled with pure auditory jubilation. It’s Layla by Derek & the Dominoes, some might say Eric Clapton’s Magnum opus. Your mind is transported to the first time you’ve heard that song, maybe in a pool hall, maybe walking through the courtyard at school on someone’s radio, maybe you had the pleasure of seeing the great one live and in person laying on the cool grass under an autumn sky. The next song is played, booked marked by the same radio DJ’s preamble, Something by The Beatles. You remember the feeling you got when you dropped the needle into the grove for the very first time, smelling the unforgettable smell of freshly pressed vinyl. You may have asked yourself, “who is she? Who is this astral goddess that dances in between every lyric, every note, every chord? 

For those who are unaware, those songs and a great deal more, were all written for one person, during different time periods, shaping Rock and Roll history with every instance and that person is Pattie Boyd. Pattie Boyd’s story is so integral to the history of rock and roll that without her, things would have never been quite the same. She is, in a lot of ways, “The muse of Rock and Roll”. 

Patricia Anne Boyd was born in Taunton, Somerset, England on March 17, 1944. Her career as a model began in 1962 at first in London and then in Paris. Her look, known as the embodiment of the “British Female Look” was emulated by other greats in London at the time. Her iconic style was quickly devoured by the British public and as a result her international celebrity skyrocketed. Before she was the “muse of rock and roll” she was the muse of fashion and the inspiration for much of Ossie Clark’s designs during the early 1960’s. When she was cast in the film, A Hard Day’s Night, music history was about to change for she met and fell in love with George Harrison of the Beatles. Boyd was the inspiration for Harrison’s songs, “I Need You”, “If I Needed Someone”, “So Sad”, “Love You To”, “Something” and “For You Blue”. Later, she married Eric Clapton whom she had been close friends with prior. “Layla”, “Bell Bottom Blues”, “Golden Ring, and perhaps most famously, “Wonderful Tonight” were all written with Pattie Boyd in mind, proving that her energy and beauty all toiled with the imagination and artistry of both Harrison and Clapton producing some of the greatest songs to reach the annals of music history. Her photography captured the greats during their everyday life and also in some extraordinary moments. Her breathtaking work cataloged the historic times when rock and roll music was arguably at its pinnacle. She became a member of the Royal Photographic Society however it was not until 2004 did she feel she was “emotionally ready” to revisit the images. Her first exhibition featuring photographs of Eric Clapton and George Harrison entitled, Through the Eyes of a Muse debuted on Valentine’s Day 2005 at the San Francisco Art Exchange. Boyd has said that she believes in soul mates, “You can meet someone and just recognize the essence of their being,” she explains, “And they’re always a joy to be with. Even if a year goes by and you don’t see them, when you will reunite, you’re still on the same page.” 

    The station has gone to commercial so you turn the radio off, it clicks, the sound of the cool breeze is all that can be heard as you drive down the road, you think of Pattie Boyd and what marvelous things she must have seen, what love she must have shared, you think on this, smile and sing softly to yourself, “…there’s something in the way she moves…attracts me like no over lover…something in the way she woos me…”

 

 

The Internal Revenue Service has released the Applicable Federal Rates (AFRs) for January 2023 and February 2023

Here are the rates for January 2023:

 

Annual

Semiannual

Quarterly

Monthly

Short-term

4.50%

4.45%

4.43%

4.41%

Mid-term

3.85%

3.81%

3.79%

3.78%

Long-term

3.84%

3.80%

3.78%

3.77%

Here are the rates for February 2023:

Annual

Semiannual

Quarterly

Monthly

Short-term

4.47%

4.42%

4.40%

4.38%

Mid-term

3.82%

3.78%

3.76%

3.75%

Long-term

3.86%

3.82%

3.80%

3.79%

For Monthly Rate updates click here

 

Article 1

Qualified Longevity Annuity Contracts Under the Secure Act 2.0

Written By: Jason McCosby & Brandon Galvao

A Qualified Longevity Annuity Contract (QLAC) is a special type of deferred annuity contract generally purchased after age 55[1] from a life insurance company, using funds held in a traditional IRA, 401(k), or other qualified retirement account.

            Like many traditional deferred annuity contracts, the insurer guarantees equal annual lifetime payments to annuitants to help ensure they do not outlive their savings. Annual payouts begin at a predetermined date and extend over an annuitant’s lifetime or for a specified term of years. Payments under a QLAC may begin as early as age 72 or as late as age 85.

            What makes the QLAC special is that the Secure Act 2.0, effective December 29, 2022[2], removed several restrictions related to QLACs.

Under the revised rules:

  • The portion of an individual’s retirement account invested in a QLAC is not counted in computing annual Required Minimum Distributions (RMDs) until the earlier of the date the annuity payouts begin – or the account owner’s 85th birthday.[3]

Thus, the Secure Act 2.0 helped resolve a predicament for individuals who owned a deferred annuity in their IRA and reached the age requiring minimum distributions when the annuity did not yet permit payouts.

  • Individuals are permitted to invest a maximum of $200,000 of qualified retirement funds in a QLAC. This dollar limit is indexed for inflation going forward. The Secure Act 2.0 removed previous limitations on QLAC investments to the lesser of $145,000 or twenty-five percent of all pre-tax accounts.

For example, an individual with qualified retirement accounts valued at $300,000 could invest up to $200,000 in a QLAC in 2023, while RMDs would be required only on $100,000 non-QLAC assets until age 85 or when the QLAC distributions begin, if earlier.

Under Internal Revenue Code (IRC) Section 401(a)(9), an IRA, as defined in 408(a) or (b), is subject to the required minimum distribution rules, as laid out in IRC Section 401(a)(9). Per Treasury Tax Regulation Section 1.401(a)(9)-5[4] the value of a QLAC will not be included in the IRA balance for determining the annual minimum distribution requirement for said IRA. The regulations, issued in 2014, state that the balance invested in the QLAC will not be included in the calculation of the Required Minimum Distribution (RMD) until the QLAC begins issuing the income or the owner turns age 85, whichever occurs first.

Inflation Factors and Cost of Living Adjustments to Consider Before Investing in a QLAC:

  • Because QLACs are not self-directed, and the annuities cannot be invested in equity-indexed mutual funds,[5]they may not provide sufficient cash flows to outpace inflation through retirement.

However, rather than requiring strictly equal annual payouts, there are now occasions where QLAC payments are permitted to increase annually. Some insurance companies have stepped up to offer QLACs that permit annual Cost of Living Adjustments (COLAs) to help reduce the impact of inflation.

Under U.S. Treasury Regulations, QLAC payments may increase:[6]

    1. With an annual percentage increase that does not exceed the percentage in an eligible cost-of-living index for a 12-month period ending in the year during which the increase occurs;
    1. With a percentage increase that occurs at specified times (e.g., specified ages) and does not exceed the cumulative total of annual percentage increases in an eligible cost-of-living index;
    1. To the extent of the reduction in the amount of the employee’s payments to provide for a survivor benefit, but only if there is no longer a survivor benefit because the beneficiary whose life was being used to determine the period over which payments were being made dies or is no longer the beneficiary;
    1. To pay increased benefits that result from a plan amendment;
    1. To allow a beneficiary to convert the survivor portion of a joint and survivor annuity into a single sum distribution upon the employee’s death; or
    1. Regarding annuity payments from a contract purchased through an insurance company, if the total future expected payments exceed the value being annuitized, the payments may increase in accordance with:
      1. A constant percentage, applied not less frequently than annually;
      1. Providing a final payment upon the death of the employee that does not exceed the excess of the total value being annuitized over the total of payments before death;
      1. As a result of dividend payments resulting from actuarial gains;
      1. An acceleration of payments under the annuity.

 

The “Short Free Look Period” for QLAC Purchases:

QLACs are permitted to include a provision under which the purchaser has the option to rescind the purchase of the contract, within a period not exceeding 90 days from the date of the purchase, known as the “Short Free Look Period.”

QLACs Are Intended to Supplement Other Sources of Retirement Income:

It is important to note that QLACs are not intended to be an individual’s sole-source of retirement income, but instead, are intended to supplement other sources. However, to get the benefits of this supplement, individuals are subject to some additional requirements to qualify the annuity as a QLAC. To qualify as a QLAC, a contract is not permitted to allow for any commutation benefit, cash surrender value, or any other similar feature. During the issuance, the contract must state its intended purpose as a QLAC. Further, distributions under a QLAC must satisfy the generally applicable requirements under 26 U.S.C. § 401(a)(9). These requirements, namely the RMD requirements, are supplemented by Treasury Tax Regulation Section 1.401(a)(9)-5, giving QLACs preferential treatment.

Planning For Financial Uncertainty:

Given the current $200,000 maximum allowed for funding QLACs and given that funds are tied up until the payout begins at the age you chose when you purchased the contract and that payout age cannot be changed after your 90-day “short free look period,” you might consider purchasing smaller QLAC contracts over several years.

Owning separate QLACs provides as opportunity to ladder the future payouts to begin at different ages up until age 85 when annual payouts become mandatory.

Joint and Survivor Benefits of a QLAC in the Event of Divorce:

The Secure Act 2.0 clarified confusion in circumstances when individuals purchased QLACs choosing joint and survivor annuity benefits, and later divorced. Under the clarified rules, a divorce or legal separation occurring before annuity payments begin under the joint and survivor annuity contract will not affect permissibility of joint and survivor benefits, if the divorce or separation instrument specifically provides for the spouse remaining as the survivor beneficiary.[7]

For example, if you intend to maintain that spouse as the beneficiary after the divorce/separation, you should make sure that the separation instrument provides for this, with language indicating that the former spouse is entitled to the survivor benefits under the contract, or that the former spouse is treated as a surviving spouse for purposes of the contract.

QLAC Payout Options to Choose From:

There are four standard payout options for QLACs: a single life annuity, a joint and survivor annuity, a period certain annuity, and a return of premium annuity.

Under a single life annuity, the individual will receive a guaranteed income for the remainder of his/her life. The joint and survivor annuity option is similar, but following the individual’s death, a reduced amount of income flows to the surviving beneficiary. Under a period certain annuity, the individual receives guaranteed income, for a number of years specified in the contract, regardless of whether or not they are alive – the post-death payments will follow the estate plan of the deceased. Lastly, under a return of premium annuity, the individual receives a guaranteed income stream for life, but after their death, any remaining annuity funds are paid to the individual’s beneficiaries – passing by operation of law, in contrast to the period certain annuity.

These subtle differences may be important when choosing an annuity that outlives the original beneficiary. It is also important to note that annual payment amounts are typically reduced for joint and survivor annuities and return of premium annuities, to account for the after-death payments.

Below are three tables, outlining sample QLAC payouts currently posted on the websites of various insurers. Before purchasing a QLAC, prudence requires comparing the contract options and features in addition to the monetary payouts offered by several insurers as well as the financial stability of the insurer guaranteeing the payouts.[8]

All three samples are based on the following scenario:

A Florida man (primary annuitant), born 07/29/1959, and his wife (secondary annuitant), born 05/14/1958. The man purchases a QLAC with a $100,000 premium with payments beginning on the date the primary annuitant reaches age 85, i.e. 07/29/2044. All three QLACs offer a refund upon death, each has a 100% continuation level, and all have a qualified tax status. The QLAC offered by Insurer #1 pays $3,444.38/month, the QLAC offered by Insurer #2 pays $2,750.57/month, and the QLAC offered by Insurer #3 pays $2,419.53/month. It is important to note that despite the charts ending at age 100, payments would continue for the entire lifespan of the annuitant; there is no cited “cut-off” age within these contracts.

 

Table 1: Insurance Company #1

AGE

ANNUAL INCOME

CUMULATIVE INCOME

RATE OF RETURN

63-84

$0.00

$0.00

85

$41,332.56

$41,332.56

86

$41,332.56

$82,665.12

87

$41,332.56

$123,997.68

0.8%

88

$41,332.56

$165,330.24

2.1%

89

$41,332.56

$206,662.80

3.0%

90

$41,332.56

$247,995.36

3.7%

95

$41,332.56

$454,658.16

5.8%

100

$41,332.56

$661,320.96

6.8%

 

Table 2: Insurance Company #2

AGE

ANNUAL INCOME

CUMULATIVE INCOME

RATE OF RETURN

63-84

$0.00

$0.00

85

$33,006.84

$33,006.84

86

$33,006.84

$66,013.68

87

$33,006.84

$99,020.52

88

$33,006.84

$132,027.36

1.1%

89

$33,006.84

$165,034.20

2.0%

90

$33,006.84

$198,041.04

2.8%

95

$33,006.84

$363,075.24

4.9%

100

$33,006.84

$528,109.44

5.9%

 

Table 3: Insurance Company #3

AGE

ANNUAL INCOME

CUMULATIVE INCOME

RATE OF RETURN

63-84

$0.00

$0.00

85

$29,034.36

$29,034.36

86

$29,034.36

$58,068.72

87

$29,034.36

$87,103.08

88

$29,034.36

$116,137.44

0.5%

89

$29,034.36

$145,171.80

1.5%

90

$29,034.36

$174,206.16

2.2%

95

$29,034.36

$319,377.96

4.4%

100

$29,034.36

$464,549.76

5.4%

 


[1] Kiplinger’s Personal Finance, Jerry Golden, January 31, 2023, “What is a QLAC and How Does It Work?

[2] Secure 2.0 Act became effective 12/29/22, but the Treasury Regulations are not required to be updated until 2024. Full details regarding the changes are included within the Act, itself, but may not be apparent if only searching the Treasury Regulations, alone.

[3] Supra, Kiplinger’s Personal Finance, Jerry Golden.

[4] 26 CFR 1.401(a)(9)-5(A3)(d); The account balance does not include the value of any qualifying longevity annuity contract (QLAC), defined in A-17 of § 1.401(a)(9)-6, that is held under the plan. This para

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Article 2

Unique Tax Saving Strategy For Net Unrealized Appreciation on Company Stock

Written By: Jill Ashley, CPA, Law Degree Candidate

Taxpayers owning employer stock in their qualified retirement plans (401k or ESOP) have a unique tax planning opportunity not available to other investors.

            What is Net Unrealized Appreciation?

            In this context, Net Unrealized Appreciation (NUA) refers to the increase in value of an employee’s shares of an employer’s company stock at the time of a triggering event (disability, death, retirement or other separation of service, or termination of the employer’s retirement plan) permitting a lump sum distribution of all plan assets to the employee.

            In lieu of rushing to roll the entire account to an IRA, the employee should “run the numbers” to consider electing under Internal Revenue Code § 402(e)(4) to distribute some or all of the company securities to a taxable account – and roll the remaining (non-employer stock) assets to a tax deferred IRA.

            By doing this, the employee only pays tax on the (presumably low) cost-basis of the company stock and defers the Net Unrealized Appreciation on that stock to be taxed at preferred capital gains rates upon any future liquidations rather than ordinary tax rates if the stock was held in a traditional IRA.

            Who Benefits from this Strategy?

  • Employees who separated from service of their employer (or experienced other triggering event mentioned above); AND
  • Hold highly appreciated employer stock in their employer-sponsored retirement plan; AND
  • Are permitted to take a lump sum distribution of the entire company-sponsored plan account; AND
  • Anticipate remaining in a high tax bracket in the future.

 

            What are the Benefits of this Strategy?

  • Deferral of taxes on Net Unrealized Appreciation until subsequent sale of the employer securities; NUA is treated as long-term gain on a disposition of a capital asset, no matter how long the plan or the employee held the employer securities.[i]
  • Removing the employer securities from retirement accounts reduces the amount of future Required Minimum Distributions to be taxed at ordinary tax rates.

 

What are the Necessary Steps?

  • The employee’s company sponsored retirement account must be completely rolled over as part of a lump sum distribution, meaning that the employer stock must be distributed “in kind” (no liquidated cash transfers) via a direct trustee-to-trustee distribution to a taxable brokerage account in the same calendar year that all other assets are directly distributed to a traditional IRA.
  • The amount of NUA securities transferred into a taxable account is a matter of choice. It is not an all or nothing decision. You can “cherry-pick” the lowest cost employer-stock shares subject to ordinary income tax and roll the higher-cost employer shares along with all the other assets into an IRA.

What are the Caveats?

  • If you die leaving NUA company stock in your taxable account, your heirs will not be entitled to a step-up in basis upon your death.[ii]
  • Consider whether the tax tail is wagging the dog. There’s a tradeoff for electing to immediately pay ordinary income tax on the cost-basis of company stock holdings, since there’s no guarantee that the stock will continue to increase or that you’ll be in a higher tax bracket in the future, justifying the earlier payment of tax.

 

What if the Employer Company Stock is Worthless at the Time of the Triggering Event?

  • If the employer’s securities are worthless at the time of the lump sum distribution to the employee, the employee is allowed an ordinary loss deduction in the amount equal to aggregate employee contributions allocated to the purchase of the employer securities.

Worthlessness is determined according to the same standards used for other investment purposes; there must be no possibility of realizing any return on the investment.[iii]

A Simplified Illustration[iv]

FACTS & BACKGROUND:

  • Solomon has worked for the same company for many years; He has accumulated a large position of his employer’s stock in his qualified retirement plan (401k or ESOP). His loyalty to the company is evident by his oft-repeated conviction: “This is the stock that made me rich.”
  • The single company’s stock makes up a large percentage of his overall net worth.
  • Solomon’s cost-basis in the stock is very low – since he was able to purchase at low average costs over many years, while the stock value appreciated over time.
  • Solomon is retiring soon and must decide what to do with his company retirement plan.

 

DILEMMA:

  • Solomon’s retirement account lacks diversification – his portfolio presents high single-stock risk.
  • Solomon will soon depend on consistent cash withdrawals from his account to fund his retirement lifestyle.
  • Solomon received complex paperwork from his employer’s personnel department to indicate his preference for transferring his company retirement plan assets.

 

IMPLEMENTING THE NUA STATEGY:

  • To increase the likelihood of achieving Solomon’s retirement income goals, prudence dictates reducing the risk of having all his “nest eggs in one basket” (because it’s an outdated idea that any one company is “too big to fail.’)
  • Solomon’s financial advisor carefully follows all of the strict rules outlined in the Internal Revenue Code to take advantage of the special NUA tax election.
  • Electing lump sum, Solomon receives an in-kind distribution of the company’s stock from his retirement account.
  • Only the remaining non-company securities are rolled over into an IRA account.
  • Solomon pays income tax only on the original cost-basis portion of his company stock.
  • The remaining “net unrealized appreciation” on the company stock is not taxed until it is sold. And it qualifies for long-term capital gain treatment – regardless of how soon Solomon liquidates the stock for diversification into other investment opportunities.
  • Since most of the value was immediately distributed in-kind, the lesser dollar amount transferred into his IRA reduces future RMDs, and thus reduces ordinary income taxes on future distributions.

 

  • This strategy works best under these circumstances:
    • There’s a significant difference between the retiree’s ordinary income tax rate and long-term capital gains tax rate.
    • Solomon held a larger portion of NUA versus non-NUA securities.
    • When the NUA assets are expected to be liquidated for cash flows sooner than later (the tradeoff for continued deferral of growth in an IRA).
  • Since the NUA tax treatment is not available to IRAs, care must be taken to avoid inadvertently rolling the employer’s stock into an IRA. The tax break would be lost forever – since the election is irrevocable.
 


[i] Checkpoint, WestLaw, Thomson Reuters, § 5.03[4][a] Long-Term Capital Gain on Net Unrealized Appreciation, August, 2022.

[ii] Financial Finesse Think Tank Research Portal, NUA – One Overlooked Benefit Of Employer Stock In Your 401(k), October, 2018.

[iii] Supra, Checkpoint, Westlaw, Thomson Reuters, August, 2022.

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Article 3

Proposed Ban on Non-Compete Agreements

Written By: Jill Ashley, CPA, Law Degree Candidate

 

President Biden issued a 2021 Executive Order, seeking to ban or limit employers’ no-poach agreements and non-compete agreements, subsequently appointing Lina Khan as chairwoman of the Federal Trade Commission (FTC).[1]

Khan gained notoriety when the Yale Law Journal published her 2017 article, Amazon’s Antitrust Paradox, asserting that despite the popularity of Amazon.com Inc., among consumers, its e-commerce dominance was founded on predatory pricing and aggressive expansion into multiple lines of business, thereby harming competitive markets. Khan draws correlations between commercial antitrust violations and non-compete clauses within employment contracts, inferring that both constitute unfair trade practices.

Earlier this month, the FTC published a Notice of Proposed Rulemaking in the Federal Register aimed at banning employers’ imposition of non-compete clauses, in workers’ employment agreements, which the FTC estimated to impact 18% of the U.S. labor force (approximately 30 million people) in 2021.

Noncompete clauses typically prohibit employees from working for competing businesses, within a specified geographic area, for a specified period after the employment relationship ends.

In a press release, the Director of the Office of Policy Planning indicated that research showed noncompetes not only restricted workers’ mobility and suppressed wages, but also “hinder[ed] innovation and business dynamism … preventing would-be entrepreneurs from forming competing businesses … harm[ing] consumers; in markets with fewer new entrants and greater concentration, consumers can face higher prices — as seen in the health care sector.”[2]

An example case cited an ophthalmologist who was constrained from practicing medicine in two Idaho counties, for two years after leaving the medical firm, unless the ophthalmologist paid the former employer a “practice fee” – ranging between $250,000 and $500,000, depending on the length of employment. [3]

In another example, a security firm inhibited its security guards from accepting employment in a competing business within a 100-mile radius, for a period of two years after employment, subject to a $100,000 “liquidated damages” clause, for breach of contract.[4]

            Despite egregiously oppressive restrictions on workers’ rights, generally lacking enforceability, lower-wage workers without legal counsel may feel stuck in a job they would prefer to leave.

The FTC Director hopes the proposed rule “would ensure that employers can’t exploit their outsized bargaining power to limit workers’ opportunities and stifle competition.”[5]

 

The details of the proposed rule:

The agency’s proposed rule would make it illegal for an employer to enter into, attempt to enter into, or maintain an existing noncompete agreement with a worker — whether they are an employee, independent contractor, extern, intern, volunteer, or apprentice — and whether they are paid or unpaid.

That means, if enacted, the rule would apply retroactively, requiring employers to rescind existing agreements and actively inform workers that such existing agreements would be extinguished. If a final rule is promulgated, the agency intends to provide model language for notifying applicable workers of their nullified agreements.

Potentially, other agreements or contract clauses could also be impacted.

Although other types of agreements do not specifically prevent a former employee from obtaining other employment, or starting a competing business, the FTC indicated that other restrictive covenant clauses may be impacted by the ban – if they are broad enough in scope to function as de-facto noncompete clauses.[6]

  • Non-Disclosure Agreements (NDAs or “Confidentiality Agreements”)

NDAs prohibit workers from disclosing or using certain confidential information obtained in the service of their employment.

  • Training-Repayment Agreements (TRAs)

TRAs require workers to reimburse the employer for training expenses, incurred when the worker leaves the job, within a specified timeframe.

Narrowly defined exception to the proposed ban:

A limited exception for non-compete clauses may apply, between a buyer and seller of a business, where the restricted party owns at least 25% of the business, although antitrust laws may still apply.[7]

Questions of authority:

The FTC claims its authority under § 5 of the Federal Trade Commission Act, which delineates the power of the agency to regulate “unfair methods of competition.” From that proclamation, the agency points to unequal bargaining power between employers and workers and the agency further asserts that restrictions on workers’ mobility and employment opportunities constitute unfair methods of competition, affecting labor and service markets in the aggregated national commerce.

Some opponents of the ban claim the agency is exceeding its rulemaking authority with this proposed rule. This assertion mirrors last year’s Supreme Court reasoning in West Virginia v. EPA where the Court invoked the “Major Questions Doctrine” to prohibit an administrative agency’s rulemaking overreach when the agency lacked clear Congressional delegation of broad-scope authority to promulgate rules significantly impacting fundamental sectors of the economy.[8]

Opponents also assert that the FTC’s proposed rule unnecessarily usurps authority from states that have regulated non-compete contracts for over two centuries.[9]

In fact, all 50 states have addressed non-compete agreements. Forty-seven states’ statutes stipulate the scope of workers’ restrictions, carved-out exceptions, and enforceability of non-compete contract terms, determined on a case-by-case basis. Hawaii prohibits noncompete clauses only within the technology sector, other states prohibit non-compete clauses for low-wage-earners; while still, other states only allow noncompetes for key employees and contractors who have access to confidential information. The three remaining states (California, North Dakota, and Oklahoma) prohibit noncompetes altogether. [10]

Massachusetts and Oregon have enacted “garden leave” provisions, which require employers to compensate workers for the entire period they are bound by the noncompete clause.[11]

Florida tends to enforce non-compete agreements which advance legitimate business purposes, and the state presumes irreparable injury to employers where employees breach for non-public-policy reasons.

Those legitimate business interests include trade secrets and other confidential information, substantial relationships with specific prospective or existing customers, patients, or clients, and goodwill associated with an ongoing business or professional practice, as well as specifically protected geographic locations or trade areas, and extraordinary or specialized training.[12]

However, Florida statutes limit the use of noncompete agreements restricting the mobility of medical professionals, in particular. The statutes specifically refer to a Florida physician practicing a medical specialty, in an affiliated group with other physicians practicing the same specialty, could not be constrained by a non-compete agreement that would otherwise restrict patients’ access, and where the employer’s business interest was not harmed by the physician’s departure.[13]

 

Arguments in favor of the ban include:

  • Incentivizes employers to maintain attractive, competitive, and rewarding working conditions and environments to retain a talented workforce.
  • Defends workers’ liberty to remain in their communities without uprooting family, school, and social networks by having to seek employment opportunities outside of a restricted area.
  • Provides relief to workers occupying unequal bargaining positions with their employers. While highly trained lawyers draft employment contracts on behalf of sophisticated employers, workers often do not have equal access to personal legal counsel when presented with an employment contract to sign on their first day on the job.
  • Reduces the burden on workers to arbitrate employment contract disputes, which are often required to take place in a different state.

 

Arguments against the ban include:

  • Disincentivizes employers’ investment in training workers who are free to continuously “shop” for new positions when temporarily disillusioned from a challenging day at work.
  • Disincentivizes companies’ investment in human capital through training and information sharing[14] where workers or executives who have been trained in the operational processes and product or service development are free to establish their own competing business – even taking staff with them.
  • Increases harm to modern businesses, whose success depends on competitive protections to technological services and intellectual property, after enduring several years of heavy start-up and development costs.
  • Triggers legitimate risks to business owners’ interests in trade secrets, customer goodwill and relationships, gained on the job, which could migrate with former workers to their competitors, without reimbursement or remedy.[15]
  • Discourages cohesive teamwork in companies; may trigger disparate segmentation of the labor force, isolating workers into separate silos, to protect the company’s proprietary information.
  • The proposed ban is a sledgehammer response to a sample of egregious cases of worker oppression – “these are the exceptions, not the rule!”

The Federal Trade Commission is seeking public comments, through March 20, 2023, to express support or opposition to the proposed rule. All related feedback is welcomed, including opinions on whether senior executives or franchisees should be covered by the rule, whether any specific industry should be excluded by the rule, and whether low- and high-wage workers should be treated differently under the proposed rule, or whether regulation should remain with the states.

If you have strong feelings about this issue, you are encouraged to post your comments at this link: https://www.regulations.gov/docket/FTC-2023-0007/document. You can abbreviate your name, or even post anonymously, if you prefer. The agency must consider and respond to each issue collectively raised among all pertinent comments and may make changes to a final rule based on feedback received, or discard the proposal entirely.

 


[1] Employers’ Associations, Worker Mobility, and Training, Pedro S. Martins and Jonathan P. Thomas, January 2, 2023.

[2] Elizabeth Wilkins, Director of the Office of Policy Planning. quoted in Federal Trade Commission press release, January 5, 2023.

[3] Intermountain Eye & Laser Ctrs. P.L.L.C. v. Miller, 127 P.3d 121, 123 (Idaho 2005).

[4] Federal Register, vol. 88, No. 12, January 19, 2023, 16 CFR Part 910 at 3483.

[5] Id.

[6] Federal Register, vol. 88, No. 12, January 19, 2023, 16 CFR Part 910 at 3509.

[7] Federal Trade Commission, 16 CFR, Part 910, §910.3 Exception, January 19, 2023.

[8] West Virginia v. EPA, 142 S. Ct. 2587 (2022).

[9] The Changing Public Policy and Legal Landscape Affecting Noncompete, Paul J. Schneider, JD, LLM, Journal of Financial Service Professionals, January, 2023.

[10] Id.

[12] West’s F.S.A. § 542.335 (2022).

[13] West’s F.S.A. § 542.336 (2019).

[14] The Changing Public Policy and Legal Landscape Affecting Noncompetes, Paul J. Schneider, JD, LLM, Journal of Financial Service Professionals, January, 2023.

[15] After 200+ Years Under State Law, FTC Proposes to Ban Noncompetes in Unauthorized Power Grab, Erik w. Weibust, Peter Steinmeyer, and Stuart Gerson, Washington Legal Foundation, Legal Backgrounder, January 12, 2023.

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Forbes Corner

New Tax Law Rewards Charitable IRA Retirees With A $50,000 Income Tax Deferral Opportunity

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

The SECURE 2.0 Act of 2022, which was included in the $1.7 trillion omnibus spending bill signed by President Biden on December 29, 2022, has a small gift… Continue Reading on Forbes.

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For Finkel’s Followers

3 Signs You Have Control Issues

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

As a business coach, I am in the business of helping business owners overcome hurdles and help them grow their businesses faster than they thought possible. And as such, I have seen my share of leadership issues and problems. And if I had to pinpoint one issue that causes the most problems for business owners- I would have to say the urge to control everything is high on the list. This is what I like to call “control‑itis.”  But if we want to call it what it actually is – it’s a behavior that traps you, the business person, the business leader, in endless rounds of doing, doing, doing.  It keeps you stressed and anxious, and can really take a toll on your business and your mental health. 

Thankfully there are ways to overcome this urge, but the first step is admitting that you have a problem. So today I want to go over the 3 signs that show that you might be suffering from control issues.

You Are Anxious All The Time

You feel like the world is on your shoulders. You feel like only you know how to run your business, and no one else cares as much as you do. You feel like if you want something done right, you have to do it yourself. You find yourself up late at night worrying about the future, worrying about the current projects on your plate, and whether you will meet your goals. While these thoughts are common for business owners, it becomes an issue when they become recurring thoughts consistently. When you find yourself anxious all the time, regardless of how well your business is doing, it might be a sign that you have control issues and have trouble letting go in your business.

You Can’t Stop Micromanaging

You have a strong history of micromanaging your staff’s work, even if it’s a low stakes situation that does not warrant it, where there’s no real payoff for doing that micromanagement.  You find yourself spending an inordinate amount of your time and leadership attention following through on things that don’t make a difference in your business or your goals. And have less time to focus on the things that will really drive the needle.

You Want to Do it Yourself

Your mantra is :”if you want something done right, you just have to go ahead and do it yourself.”  This is often coupled with the idea that you are on top of things within your business, and that you can do no wrong. Even if you have a history of having things both large and small fall through the cracks, and have a history of unfinished projects or failed goals. This desire to do everything yourself is a huge red flag that you have control issues that need to be addressed.

When you combine your anxiety, your desire to micromanage and your need to do it all yourself you often find yourself struggling to delegate anything to your team, which can leave them feeling frustrated and out of the loop. Which can lead to even larger issues down the road. If you find yourself exhibiting these three signs, admitting it will help you learn to start letting go in your business.

 

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Free Saturday Webinar

ESTATE TAX PLANNING FROM BASIC TO BEYOND   

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Date: Saturday, February 18, 2023

Time: 11:00 AM to 12:00 PM EST

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

Please Note:

After registering, you will receive a confirmation email containing information about joining the webinar. Approximately 3-5 hours after the program concludes, the recording and materials will be sent to the email address you registered with.

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Please email registration questions to info@gassmanpa.com.

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Thursday, February 16, 2023

LISI

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Alan Gassman Presents: 

DESIGNING YOUR MEAL AT THE SLAT-O-TERIA – DIFFERENT KINDS OF SLATS AND HOW THEY CAN BE DESIGNED, DRAFTED & IMPLEMENTED – WITH SAMPLE CLAUSES AND CLIENT EXPLANATION LETTERS

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Saturday, February 18 2023

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ESTATE TAX PLANNING FROM BASIC TO BEYOND

11:00 AM to 12:00 PM EST

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Thursday,

February 23, 2023

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 4 HOT TOPICS WITH SOLID ACTION ITEMS

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Friday, February 24, 2023 Stetson Business Law Review Tax Symposium

Alan Gassman, Jonathan Blattmachr, Marty Shenkman & Brock Exline Present:

ESTATE AND TAX PLANNING FOR COMMUNITY PROPERTY IN NON-COMMUNITY PROPERTY STATES: OPPORTUNITIES, STRATEGIES AND PITFALLS

Time: 12:00 PM to 12:30 PM EST

(30 minutes)

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Saturday, February 25, 2023

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Alan Gassman & Marty Shenkman Present:

PRACTICAL PLANNER QUARTERLY

11:00 AM to 12:00 PM EST

(60 minutes)

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Saturday, March 4, 2023

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Alan Gassman, Jim Hartley & Pattie Boyd Present:

NURTURING SUCCESS & ACHIEVEMENT: THE PATTIE BOYD STORY

11:00 AM to 12:00 PM EST

(60 minutes)

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Tuesday, March 7, 2023

New Jersey Estate Planning Council

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Alan Gassman Presents:

WHAT NEW JERSEY ESTATE PLANNERS NEED TO KNOW ABOUT FLORIDA LAW

8:05 AM to 9:05 AM EST

(60 minutes)

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Friday, March 17, 2023

LISI

(Not So Free)

Alan Gassman Presents: 

ESTATE AND BASIS PLANNING WITH JOINT TRUSTS INCLUDING THE JEST (JOINT EXEMPT STEP-UP TRUST)

2:00 PM to 3:00 PM EST

(60 minutes)

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Tuesday,

April 18, 2023

Boca Raton Estate Planning Council

(Not So Free)

Alan Gassman Presents: 

ESTATE AND ESTATE TAX PLANNING FOR FLORIDIANS: INCLUDING SLATs, COMMUNITY PROPERTY TRUSTS, AND CREDITOR PROTECTION IMPLICATIONS

6:50 PM to 7:40 PM EST

(50 minutes)

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  Thursday, 

April 20, 2023

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Kettering Health Foundation

Alan Gassman Presents: 

PUTTING ASSET PROTECTION INTO AN ESTATE PLAN

12:00 PM to 12:30 PM EST

(30 minutes)

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Thursday, April 27, 2023

LISI

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Alan Gassman Presents: 

CREATIVE AND DYNAMIC CHARITABLE PLANNING TECHNIQUES – WHAT YOU DO NOT KNOW CAN HURT YOUR CLIENT

1:00 PM to 2:00 PM EST

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Thursday, April 27, 2023

Financial Experts Network

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Alan Gassman Presents:

MATHEMATICS TO ESTATE TAX PLANNING 

1:00 PM to 2:00 PM EST

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Thursday,

May 18, 2023

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Thursday, June 1, 2023

Financial Experts Network

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Alan Gassman Presents:

ALPHABET SOUP: PLANNING WITH LLCS, IDGTS, GRATS, AND OTHER ACRONYMS

1:00 PM to 2:00 PM EST

(60 minutes)

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Wednesday,

October 11, 2023

National Association of Estate Planners & Councils

(Not So Free)

Alan Gassman Presents: 

DESIGNING AND IMPLEMENTING ESTATE PLANNING STRUCTURES WITH THE IRS IN MIND: AUDIT TRIGGERS & CONSIDERATIONS ASSOCIATED THEREWITH

3:00 PM to 4:00 PM EST

(60 minutes)

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November,

2023

Birmingham, AL Estate Planning Council

Alan Gassman and Brandon Ketron Present:

ESTATE TAX STRATEGIES, HOT TOPICS AND YEAR-END PLANNING — BETTER THAN BBQ, HOTTER THAN SUMMER

(100 minutes)

Coming Soon!

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HUMOR

 

“What I find most disturbing about Valentine’s Day is, look, I get that you have to have a holiday of love, but in the height of flu season, it makes no sense.” – Lewis Black

 

THE BALCONY SCENE, IF ROMEO AND JULIET WERE ATTORNEYS

Written By: Ron Ross

JULIET: Deny thy father, and refuse thy name, and petition in chancery court for a name change, and file before the office of vital statistics.

ROMEO: My name, dear saint, is hateful to myself, because it is an enemy to thee. I will therefore show that my petition is filed for no ulterior or illegal purpose and granting it will not in any manner invade the property rights of others, according to Title VI, Chapter 68.07 (j).

JULIET: How camest thou hither, tell me, and wherefore? The orchard walls are high and hard to climb, and a person who, without being authorized, licensed or invited, willfully enters upon or remains in any property violates Title XLVI, Chapter 810.09 and the place death, if any of my kinsmen find thee here. Does thou love me? I know thou wilt say ‘Aye’, thou may prove false, at lover’s perjuries, they say, ‘Jove Laughs’.

ROMEO: Lady, by the blessed moon, I swear

JULIET: O, swear not by the moon, the inconstant moon.

ROMEO: Then I call the judge from “Merchant of Venice” and a stenographer.

JUDGE AND STENOGRAPHER: Hello.

ROMEO: Who will now depose me, under rule 1.310 of the rules of civil procedure, recording my oath or affirmation taken or administered before an officer authorized under s. 92.50, knowing that the penalty for perjury, under s775.082, s775.083 or s775.084 may result in imprisonment for up to one year, a fine of $1,000 dollars, or both, since this is not a legal proceeding for a capital felony.

JUDGE: Ready, my lady?

(JULIET HAS FALLEN ASLEEP)

 


 

      

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