“Effective immediately, the so-called ‘Covered Opinion’ rules for written advice relating to any Federal tax issues that have been contained in section 10.35 of Circular 230 essentially have been repealed. All requirements for written advice relating to a Federal tax matter will now be contained in section 10.37. It is important, nonetheless, to remember and be aware of the many other provisions in the Circular that practitioners must adhere to, in order to avoid discipline which may include disbarment from practice before the IRS, in giving advice, whether written or oral, about Federal tax matters.”
Mitchell M. Gans is the Rivkin Radler Distinguished Professor of Law at the Hofstra University School of Law and an Adjunct Professor of Law at the New York University School of Law in its Masters in Tax program.
Jonathan G. Blattmachr is the Director of Estate Planning for the Alaska Trust Company, a principal of Pioneer Wealth Partners, LLC, and co-developer, with Michael L. Graham, Esq., of Dallas, Texas, of Wealth Transfer Planning, a computer system produced by Interactive Legal that provides artificial intelligence advice and automated document assembly systems for practitioners. Mitchell and Jonathan are prolific writers, lecturers and commentators, and are the authors of The Circular 230 Deskbook (PLI).
We are pleased that Jonathan Blattmachr will be presenting a free two-topic webinar moderated by Alan Gassman on Tuesday, August 12, 2014 at 12:00 p.m. The topics that they will be discussing are as follows:
- Foreign vs. Domestic Asset Protection Trusts; More Than Just Creditor Protection Considerations; and
- Empowering Your Powers of Appointment: Don’t Leave Out Important Tax and Practical Provisions or Ignore Important Considerations. With Sample Provisions.
To register for the webinar please click here.
We thank Steve Leimberg of Leimberg Information Services for allowing us to reprint this amazing article, and of course Mitchell Gans and Jonathan Blattmachr, not only for this article but also for all they have done for our industry and clients.
Here is their commentary:
Effective immediately, the so-called “Covered Opinion” rules for written advice relating to any Federal tax issues that have been contained in section 10.35 of Circular 230 essentially have been repealed. All requirements for written advice relating to a Federal tax matter will now be contained in section 10.37. It is important, nonetheless, to remember and be aware of the many other provisions in the Circular that practitioners must adhere to, in order to avoid discipline which may include disbarment from practice before the IRS, in giving advice, whether written or oral, about Federal tax matters. Among other things, the Circular 230 disclaimer attached to nearly every email sent out by tax practitioners can now be eliminated. Indeed, Karen Hawkins, Esq., head of the Office of Professional Responsibility for the IRS has stated that practitioner should eliminate any “warning” that the disclaimer is required by Treasury regulations.
Under the recent amendments to Circular 230, the rules in section 10.35 that had imposed a heightened standard for Covered Opinions have been eliminated. See T.D. 9668. As the preamble (or explanation accompanying the new provisions) contemplates, as a result of the amendment, there will no longer be any practical need for the Circular 230 disclaimers that had become so ubiquitous in emails and other correspondence in the aftermath of the promulgation of the Covered Opinion rules. Indeed, one can infer from the preamble that the extensive use of such disclaimers was at least partially responsible for the decision to delete these rules. The decision was also driven by a concern about the burden on taxpayers, resulting of course in extra cost for tax advice where the Covered Opinion rules were implicated – or even, as the preamble indicates, where they were possibly implicated inasmuch as the practitioner would be required in such circumstances to engage in an analysis of section 10.35 of the Circular to determine if it applied.
This is not to say, however, that the rules applicable to tax advice have been entirely eliminated. To the contrary, section 10.37, which previously had imposed rules in the case of written tax advice, will continue to apply to all written advice concerning a federal tax matter.[i] And while the rules under section 10.37 are not as rigorous as the now-withdrawn Covered Opinion rules in section 10.35, they are more rigorous under the amendment than they had previously been. Thus, the prior two-tier system – under which certain written advice was subject to the more rigorous Covered Opinion rules in section 10.35 while other written advice was subject to the less rigorous rules in section 10.37 – has now been replaced by a uniform system of rules contained in section 10.37.
Written vs. Oral Advice
It is worth emphasizing that, as indicated, section 10.37 applies only to written advice. As a consequence, in the case of oral advice, the section does not apply. Practitioners who give oral advice will nonetheless remain subject to other constraints. For example, oral advice about a position to be taken on a tax return remains subject to the section 10.34 and to the penalty provision in section 6694 of the Internal Revenue Code.
Under section 10.37(a)(1), government submissions on matters of policy of a general nature do not constitute written advice on a federal tax matter and, therefore, are not subject to the section. The preamble offers an example of a practitioner who submits written comments on a proposed regulation on behalf of a client. Such comments, according to the preamble, are not subject to the section. Nor are presentations made in a continuing education context subject to the section.[ii] Such presentations are, however, subject to the section if they involve the marketing or promoting of transactions.
Basic Written Advice Requirements
Under section 10.37, as amended, the following principles apply where written advice concerning a federal tax matter is given: (1) the advice must be based on reasonable factual and legal assumptions (including assumptions about future events); (2) the practitioner must consider all relevant facts that the practitioner knows or reasonably should know; (3) the practitioner must use all reasonable efforts to identify and ascertain facts relevant to the advice; (4) the practitioner may rely on others but only if doing so is reasonable; and (5) the practitioner must not take into account the possibility that the return will not be audited or that the issue would not be raised on audit.
In a significant departure from the rules under the Covered Opinion rules in section 10.35, there is no requirement in section 10.37 that the practitioner describe the relevant facts in the written advice. Nor is there any requirement that the practitioner analyze the application of the law to the facts in the written advice, which had also been required under section 10.35. Likewise, there is no requirement in section 10.37 that the conclusion concerning the application of the law to the facts be set forth in the written advice. The preamble explicitly states that, unlike former section 10.35, any analysis as to whether the practitioner has complied with section 10.37 will be based on all of the facts and circumstances, not on whether each of the required components is addressed in the writing.
As indicated, a practitioner may not, consistent with section 10.37, make unreasonable factual or legal assumptions. The preamble, as well as the text of the section itself, makes clear that a practitioner who fails to consider the relevant legal authorities or fails to relate that law to the facts makes unreasonable legal or factual assumptions. Therefore, while the failure to include in the written advice the relevant legal authorities or an analysis that applies the law to the facts is not necessarily problematic, a practitioner who fails to consider the relevant authorities or who fails to apply the law to the facts will be in violation of section 10.37.
While, as indicated, a practitioner who fails to include any particular piece of information or analysis in the written advice does not necessarily violate section 10.37, the preamble encourages practitioners, “in appropriate circumstances,” to describe in the writing the relevant facts, law, analysis and assumptions. The preamble explicitly states that, in determining whether a practitioner has complied with section 10.37, it will be appropriate to consider all of the facts and circumstances, including whether it was appropriate to describe in the writing all relevant facts, law, analysis and assumptions. In so cautioning practitioners, the preamble may have the, perhaps, unintended effect of encouraging practitioners to err in favor of including in written advice all facts, law, analysis and assumptions. To the extent that this is the effect, the new rules may fail to accomplish one of their objectives: reducing the cost taxpayers incur in securing tax advice. It is, of course, also possible that the effect will be an increase in the use of oral advice, which would of course enable the practitioner to avoid the requirements of the section entirely.
Audit Lottery Considerations
Although a practitioner may not in analyzing the substantive issue take into account the possibility of an audit or the likelihood that the issue would be raised on audit – a prohibition was also contained in the pre-amendment version of the section – this does not prevent the practitioner from taking into account or from informing the client about the possibility and/or likelihood that the issue could be settled if raised by the IRS. As the preamble indicates, the provision in the pre-amended version of the section prohibiting the discussion or consideration of the settlement issue could improperly interfere with practitioner’s obligation to keep the client properly informed.[iii] As a result, the settlement-related prohibition is not carried over into the section as amended.
One commentator had suggested that the section be amended to indicate that taking into account audit-related issues is impermissible not only in the case of written advice but also in the case of oral advice. The preamble explains that it would not have been appropriate to include such a prohibition in section 10.37 given that it is not otherwise applicable in the case of oral advice. Nonetheless, the preamble does state that audit-lottery issues may not be taken into account in the oral-advice context under existing authority.[iv]
Under the proposed amendment to section 10.37, practitioners would have been subject to a heightened standard of review in determining whether they complied with the section where the advice would be used in a marketing context involving a significant purpose to avoid or evade tax. This, of course, might have had the effect of bringing into section 10.37 through “the back door” the more rigorous Covered Opinion approach, at least in that context. In response to comments that the heightened-standard approach was too vague, the preamble indicates that, as provided in section 10.37(c)(2), a “reasonable practitioner” standard will be used in determining if the advice is in compliance. And where the advice involves the marketing of such a significant-purpose transaction, an emphasis will be given to the additional risk involved as a result of the practitioner’s limited knowledge of the taxpayer’s particular circumstances.[v]
Reliance on Advice from Others
Tax practitioners often rely on the advice of other professionals in formulating their own advice. In section 10.37(b), the rules concerning such reliance are set forth. The rules apply, as the preamble indicates, even where the practitioner relies on an appraiser or someone who is not subject to the Circular. The rules contain three elements.[vi] First, if the practitioner knows or reasonably should know that the opinion of the other professional should not be relied on, the practitioner is precluded from relying on the opinion. Second, reliance is not appropriate if the practitioner knows or should reasonably know that the other professional is not competent. The preamble suggests that, if the practitioner is not familiar with the other professional’s background, the practitioner will have an affirmative obligation to inquire about the other professional’s competence. Third, reliance is again not appropriate if the practitioner knows or reasonably should know that the other professional has a conflict of interest under the provisions of the Circular. As the preamble makes clear, however, despite the conflict, reliance can be appropriate if it was waived through informed consent.
Reasonable Practitioner Standard
In section 10.37(c), the standard for reviewing compliance with the section is set forth. Under the provision, a “reasonable practitioner” standard is to be applied. In applying this standard, all of the facts and circumstances are to be considered, including the scope of the engagement and the type and specificity of the advice sought. Does this suggest that, where the scope of the engagement or the nature of the advice is limited, a practitioner may more easily establish compliance with the section? Or, conversely, does it suggest a more rigorous application of the section will be required in such a case? Other than to indicate that the scope of the engagement and the nature of the advice are relevant, the provision does not clarify how the limited nature of the advice/engagement will impact on the analysis.
Amended Section 10.35
Section 10.35 has been, to a very large extent, gutted, with the elaborate Covered Opinion rules replaced by a general standard of competence. Under this standard, a practitioner is required to possess the necessary level of competence before undertaking an assignment within the scope of the Circular. For example, if a client wants to engage a practitioner to prepare written advice concerning a federal tax matter, the matter would fall within the scope of section 10.37 of the Circular and the practitioner would violate section 10.35 if he or she accepted the engagement and did not have the requisite competence. On the other hand, section 10.35 would have no application if the subject of the engagement were not within the scope of the Circular.
Competence is defined in section 10.35 as “the appropriate level of knowledge, skill, thoroughness, and preparation necessary for the matter for which the practitioner is engaged.” The preamble acknowledges that preparation is a function of experience. Hence, with a practitioner who has more experience concerning the issue, less preparation for the engagement may be required in order to satisfy the competence standard.
The section indicates that a practitioner who lacks the necessary competence may nonetheless acquire it and therefore be able to accept the engagement either by relying on other experts or through study of the law. According to the preamble, whether such consultation and/or research is sufficient to permit a practitioner who otherwise lacks competence to accept the engagement will depend on the particular facts and circumstances.
Finally, although some had requested that examples be included that would clarify the competence standard, the preamble rejects this approach. It instead makes reference to legal and accounting ethics as sources from which the competency standard can acquire more content.[vii]
The Circular has been amended in several other ways, all of which will be covered in our Circular 230 book. However, it is worth mentioning here the requirements for practitioners to establish procedures to ensure compliance with former section 10.35. Because the new regulations remove former section 10.35, these regulations also remove former section 10.36(a). As set forth in the notice of proposed rulemaking preceding these final regulations, Treasury and the IRS, however, amended Section 10.36 to ensure compliance with Circular 230 generally.
[i] Section 10.37(d) defines federal tax matter broadly to include any matter concerning the interpretation or application of: a revenue provision as defined section 6110(i)(1)(B) of the Internal Revenue Code; any provision of the Code or regulations affecting a person’s obligations or liability; any other law or regulation administered by the IRS. This definition replaces the definition that had been contained in section 10.35, which has been deleted, and, as indicated in the preamble, is broader than the now-deleted definition.
[ii] The preamble indicates that practitioners who provide continuing-education presentations, while not subject to section 10.37, will remain subject to the general competence and due diligence standards in sections 10.22 and 10.35.
[iii] Although the preamble does not acknowledge the First Amendment implications, the settlement-related prohibition under the pre-amended version of the section did have the potential to create an impediment to appropriate communication between practitioner and client that could have been unconstitutional. The First Amendment implications might be different in the context of the audit-lottery prohibition that remains in the section. See Milavetz, Gallop & Milavetz, P.A. v. U.S., __ U.S. __, 130 S.Ct. 1324 (2012) (applying a regulation concerning legal advice, although the Court explicitly indicated that the First Amendment issue was not before it).
[iv] While the preamble does not cite authority for this proposition, it would seem impermissible under section 6694 of the Code to take the audit lottery into account in formulating oral advice. For to the extent that section 6694 (imposing penalties on certain return preparers) requires substantial authority in order to avoid the penalty it imposes, it implicitly relies on the definition of substantial authority in Treas. Reg. §1.6662-4(d)(2)), which makes audit lottery issues irrelevant. See also section 10.34, which incorporates section 6694 principles; and further see ABA Opinion 314 (making it unethical to take the audit lottery into account).
[v] See section 10.37(c)(2).
[vi] As the preamble indicates, the rules are designed to be consistent with the provisions in section 10.22 and 10.34(d).
[vii] The preamble makes reference to Rule 1.1 of the ABA Model Rules, State Bar opinions and the AICPA competency standard – though, as the preamble indicates, these other sources are not binding on the Treasury or the IRS. While acknowledging that the standard in section 10.35 is nearly identical to the standard in the Model Rules, the preamble points out that the standard in section 10.35 will apply to all practitioners subject to the Circular, not just attorneys.
The speakers and topics for the 40th annual Notre Dame Tax & Estate Planning Institute have been announced and are as follows:
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.
The line-up of speakers is as follows:
|Bart, Susan||Saving for Education: Creating Educational Dynasty Trust Using 529 Plans.|
|Kahn, Prof. Doug||What Every Estate Planner Needs to Know About Cancellation of Indebtedness, Loan Modifications, Foreclosures and Converting Debt into Equity.|
|Kahn, Prof. Jeff||What Every Estate Planner Needs to Know About Cancellation of Indebtedness, Loan Modifications, Foreclosures and Converting Debt into Equity.|
|Blattmachr, Jonathan||The IRS’s Recent Attacks on Private Annuities, SCINs and Installment Sales to Grantor Trust. How to Properly Structure These Techniques.|
|Jansen, Don||Evaluating the Different Forms of Life Insurance Policies and Complexities in How They are Valued.|
|Tritt, Prof. Lee Ford||Benefit of the Beneficiary: How Trustees Must Serve Their Beneficiaries.|
|Davis, Mickey||Evaluating Portability, Portability Mistakes and the ATRA Math Impact.|
|Williams, Melissa||Evaluating Portability, Portability Mistakes and the ATRA Math Impact.|
|Peebles, Laura||“Blinking Trusts” When Grantor Trusts Become Complex Trusts or Complex Trusts Become Grantor Trusts: An Income Tax Conundrum.|
|Bloom, Prof. Ira||Powers of Appointment Under The New Uniform Powers of Appointment Act: Planning and Drafting Considerations.|
|Lavelle, Chaz||Evaluating Captive Insurance Proposals: Business Uses, Pressure Points and IRS Hot Spots.|
|Lapiana, Prof. William||Drafting for Flexibility, Especially if Estate Taxes are No Longer a Concern.|
|Schlessinger, Sandy||Maximizing the Chances Your Donor’s Charitable Intentions are Followed: Creating Charitable Legacies that are Workable, Sustainable and Sensible.|
|Berry, Turney||Maximizing the Chances Your Donor’s Charitable Intentions are Followed: Creating Charitable Legacies that are Workable, Sustainable and Sensible.|
|Pennell, Prof. Jeff||Current Developments.|
|Lee, Paul||Obtaining Basis Step-Up at Death: Part 2 Using Illustrative Examples.|
|Berry, Turney||Obtaining Basis Step-Up at Death: Part 2 Using Illustrative Examples.|
|Verdon, Jeff||Asset Protection Due Diligence: What Lawyers Do to Protect Themselves.|
|Herzig, David||Evaluating Mistakes and Risks with Commonly Used Planning Techniques: Part 2|
|Handler, David||Evaluating Mistakes and Risks with Commonly Used Planning Techniques: Part 2|
|Harrington, Carol||Automatic Allocation of the GST Exemption and Other Tax Traps for Trusts.|
|(Unavailable)||Automatic Allocation of the GST Exemption and Other Tax Traps for Trusts.|
|Choate, Natalie||NIIT Picking: Trusts, Retirement Benefits and the 3.6% Surcharge.|
|Lee, Henry||Reinvent Yourselves and Staying “Linked” to Younger Clients Using Social Media.|
|Gassman, Alan||Evaluating Commercial Annuities and Reverse Mortgages.|
|Zeydel, Diana||Changing the Unchangeable? Modifying Irrevocable Trusts by Revising, Decanting, Moving to New Jurisdictions or Early Termination.|
|Seal, Catherine||Scams that Target the Elderly; Recognizing Ponzi Schemes and Preventing Them; Exploitation of Services by Family Members; How Predators Target Homes of Seniors.|
|Kirtland, Michael||Scams that Target the Elderly; Recognizing Ponzi Schemes and Preventing Them; Exploitation of Services by Family Members; How Predators Target Homes of Seniors.|
|Fisher, Howard||The New Circular 230 Guidelines; Ethical Guidelines and How to Minimize Potential Professional Liability.|
|Harwood, Richard||Planning for Art as Unique Assets, Working with Dealers and Auction Houses.|
|Burda, Joan||Reproductive Rights of Parents; Genetic Material and Inheritance Rights for Posthumously Conceived Children.|
|Teitel, Conrad||Choosing Wisely Among Charitable Life Income Plans.|
|Kirk, David||The 3.8% Surcharge: Part 2|
|Keebler, Bob||The Final Regulations on the Section 67 2% Phase-Out for Trusts and Estates; Using Trusts and Estates for Assignment of Income and Income Tax Deferral.|
|Albright, Christine||Looking Over the Past 30 Years: Trends That are Changing.|
|Kamin, Kim||What It Means to be a Fiduciary: Directed Trusts, Duties of Loyalty, Surviving Spouse as a Fiduciary, The Evolving Landscape.|
|McBryde, Neill||The Ascendancy of Income Tax Planning: Income Tax Planning Using Estate Planning Techniques.|
|(Wednesday Session)||ESOPs: A Primer and the Burdens Put on Employees in Funding the Buyout.|
WHY MANY SAME GENDER COUPLES LIVING IN NONRECOGNITION STATES SHOULD TITLE THEIR ASSETS AS TENANTS BY THE ENTIRETIES?
“With tea for two and two for tea
Just me for you and you for me alone
Read below and you will see”
Alan S. Gassman is also the co-author of two recent Haddon Hall Publishing books on planning for same gender couples.
The professional guide is entitled The Florida Advisor’s Guide to Counseling Same Sex Couples and the layman version is entitled The Florida Legal Guide for Same Sex Couples.
To receive a 20% discount off the cost of the book please use the top secret code: K2UQPYWT.
On and well before July 4, 1776, the law of England, and thus each of the original thirteen (13) and many subsequently admitted US states provided that husbands and wives could own their assets jointly as tenants by the entireties, and as a result neither spouse alone nor any creditor would be able to break the tenancy or have a claim against such joint assets.
Today exactly one-half (2) of the states recognize tenancy by the entireties as a form of ownership between married couples, and fourteen (14) of these states prohibit creditors of one spouse from having access to the tenancy by the entireties assets. Some of the other tenancy by the entireties states offer varying degrees of creditor protection.
The law of England did not recognize same sex marriages until this was legislated in the United Kingdom effective March 13, 2014. As of submission of this article to the publisher, 13 of the states that recognize tenancy by the entireties, and 7 of the states that provide Apure protection@ for tenancy by the entireties have recognized same sex marriage, as set forth in the chart that follows this article.
What should same gender couples who reside in states that recognize tenancy by the entireties but not same sex marriage (Florida, Mississippi, Missouri, North Carolina, Virginia and Wyoming) do?
In the vast majority of situations, we believe that the best strategy for same gender couples, who would otherwise own their assets jointly with right of survivorship, will be to attempt to establish tenancy by the entireties status while having back-up structures and mechanisms, as they may choose. This is to protect the couple in case the tenancy by the entireties is not recognized.
For example, Brittany and Angela are a Florida couple who have shared their assets for a number of years. They were recently married in Delaware in a legitimate ceremony, but Florida does not recognize their marriage. Angela is an obstetrician, and has a high risk of being sued by patients. Brittany works part-time as a podiatrist, and also drives the children to school, soccer, and other events. She was in an accident recently and one of her friend=s children was injured. The other driver received a ticket, and she does not expect to get sued, but unfortunately the damages could exceed the limits of her liability insurance policy. You explain that it could be three (3) years or longer before the United States Supreme Court finally decides whether all states must recognize same sex marriages that are consecrated in a state that recognizes them, and that until then it will be unclear in Florida and many other states as to whether a same sex married couples= joint assets can be considered as held as tenants by the entireties.
Most of their assets have been owned under a limited liability company owned five percent (5%) by Angela and ninety-five percent (95%) by Brittany. They ask about placing the ownership of the limited liability company into tenancy by the entireties so that if Brittany was in a car accident they would not lose or have a charging order against ninety-five percent (95%) of their LLC.
A large portion of their assets have been held in a limited liability company owned ninety percent (90%) by a revocable trust owned by Brittany and ten percent (10%) in a revocable trust owned by Angela. In years past they have entered into a Marital Property Clone Agreement which provides that their assets would be equally divided in the event that either of them files a court petition to separate their assets.
You explain that if the attempted tenancy by the entireties is not recognized, the creditors can make claim to the one-half (2) ownership held by the debtor spouse, but that mechanisms can be put into place to provide a degree of protection if tenancy by the entireties will not be recognized. You also explain that since they are now married, Angela could transfer enough ownership of the LLC to Brittany so that they will be equal owners, and no gift tax return would need to be filed. They could then transfer the ownership of the LLC to themselves as tenants by the entireties, which may or may not be recognized, as discussed below.
Each state has had a different evolution or legislative history that causes the formation and recognition of tenancy by the entireties to be different in each state. However, it is a common requirement that joint assets that are held with right of survivorship will not be considered as tenancy by the entireties assets unless and until there is a conveyance by the spouses, through a straw man, from themselves as joint tenants, to themselves as tenants by the entireties, by deed, bill of sale, establishing new accounts, cancellation and re-issuance of stock certificate, or whatever else is needed to satisfy the legal requirements that apply in that state.
For example, in Florida real estate owned before a marriage with right of survivorship as well as bank accounts and stock certificates will not be considered as tenancy by the entireties property until the couple reconveys the real estate or stock certificate from themselves as joint owners to themselves as tenants by the entireties. In the case of bank or brokerage accounts they must open new tenancy by the entireties accounts and transfer or ledger the jointly held money or assets over into tenancy by the entireties.
You also explain that bank and brokerage accounts that are held in a financial institution that exists only in a state that does not recognize tenancy by the entireties may not be considered a tenancy by the entireties asset, even if the titling is otherwise correct.
From the above discussion it seems clear that any same gender couple that wishes to own assets jointly with right of survivorship in a state that recognizes creditor protection for tenancy by the entireties assets will be well advised to re-title the assets as tenants by the entireties in order to have a degree of creditor protection that may not otherwise apply.
Nevertheless, clients need to understand that it may be many years before our courts, legislatures, and case law provide exact guidance and predictability as to the degree of protection that tenancy by the entireties will receive.
This is why many Floridians establish Florida LLCs that in turn own assets that may be situated outside of Florida to assure that the ultimate ownership qualifies as tenants by the entireties.
You also explain that under Florida law (and the laws of most other states) if a married couple owns an LLC jointly but not as tenants by the entireties, and a creditor receives a judgment against only one spouse, the creditor cannot reach into the limited liability company or take over one-half (2) ownership, but instead only receives a charging order that gives it the right to monitor the LLC and to receive one-half (2) of any LLC distributions. Such a creditor has no right to require that the LLC make distributions, so typically charging order positions are bought off by debtors for a small percentage of the underlying value that the charging order attaches to.
Brittany and Angela might also consider establishing a Delaware tenancy by the entireties trust. By legislation passed in 2010, Delaware law provides that assets held by a Delaware Trustee under a bona fide Delaware tenants by the entireties trust will be considered as tenancy by the entireties assets, notwithstanding the residency or other potential circumstances of the married couple.
It is unknown whether a Florida court will apply Delaware law if Florida does not recognize tenancy by the entireties for same gender marriages. Regardless, the Delaware creditor protection trust statute may apply to provide protection from creditors of the couple. This is assuming that the full faith and credit clause of the Constitution does not require Delaware to follow a court decision in Florida that may deny applying Delaware law to a case involving a Florida LLC that has assets originating from Florida but is owned by a Delaware tenancy by the entireties trust. A decision that may indicate how a court would view this would be the 2013 case of In re Huber which has been widely discussed. In that case, a federal judge from the Western District of Washington found jurisdiction over an Alaska trust having an Alaska trustee, where the Grantor lived in Washington state and funded the trust under circumstances found to have been a fraudulent transfer (for the purpose of avoiding creditors) and the trust in Alaska held only a $10,000 account and ownership of an LLC that in turn owned Washington real estate.
It is worth noting that Tennessee has an asset protection and TBE trust statute that many commentators believe is stronger and more thoroughly drafted than Delaware=s statute. This new Tennessee statute was legislated to go into effect on July 1, 2014.
It is also worthwhile to note that tenancy by the entireties protection also applies under the Federal Bankruptcy Code, and based on the statement issued in February 2014 by Attorney General Eric Holder same gender married couples residing in states that do not recognize their marriage may nevertheless file as married in bankruptcy under the Federal Bankruptcy Code. Presumably, this means that if a married individual has creditors who does not have a claim against his or her same gender spouse and resides in a state that does not recognize tenancy by the entireties, the Bankruptcy Court in the state where he resides will provide protection of tenancy by the entireties. This should be true regardless of whether the law in that state provides creditor protection or recognition for same sex couples.
It would therefore seem that the protection of tenancy by the entireties assets will be more certain for same gender married individuals who file bankruptcy even when they live in a state that does not recognize their marriage or creditor protection for tenancy by the entireties assets.
Notwithstanding the above conversation, you explain that it could be decades before the law in this area is ever clear, and other creditor protection vehicles such as annuities, life insurance, homestead, and asset protection trusts may be employed as and when applicable.
More details on the state of the law and where it may be heading follows:
Will the Supreme Court confirm that tenancy by the entireties (TBE) is a viable option when a same-gender couple is married in a jurisdiction that allows TBE, and resides in a jurisdiction that allows TBE and creditor protection for TBE? In half of the states, TBE is utilized as a favorable type of property ownership, but is only available to those who are married. TBE gives both parties an equal and undivided interest in the property and provides advantages like the right of survivorship and protection from creditors. As the gay rights movement pushes forward, with marriage as the hot topic in the wake of the Supreme Court=s landmark decision in Windsor, other issues like this also remain unanswered.
On April 19th and 20th, Oregon and Pennsylvania became the 18th and 19th states to recognize same-gender marriages, respectively. These are just the two most recent decisions furthering same-gender marriages since the Windsor decision, issued in June of 2013. Windsor struck down part of the Defense of Marriage Act (DOMA) and forced the federal government to recognize same-gender marriages. Using the logic set forth in Windsor many states, including Kentucky, Ohio, Indiana, and Tennessee, have held that bans on same-gender marriages are completely unconstitutional. No federal court has held that such bans are constitutional.
With the same-gender marriage landscape shifting so quickly, many estate planners representing same-gender couples who are married in a Arecognition state@ are left to ponder whether traditionally recognized marital rights will also be given to same-gender couples. Equal Protection is the constitutional guarantee that no person or class is denied the same protection of the laws that is enjoyed by other classes. Under this definition of Equal Protection, one would assume the class of same-gender people could not be discriminated against for sexual orientation. For this reason, it seems like a no-brainer for estate planners to use TBE in states like Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, and Vermont, where same-gender marriage and TBE are both recognized. Things start to get more fuzzy in states where they are only required to recognize legitimate out of state same-gender marriages.
In the recently decided Obergfell v. Kasich, which forced Ohio to recognize legitimate out of state same-gender marriages, U.S. District Judge John G. Heyburn IIsaid that Ohio=s refusal to recognize gay marriage is Aunenforceable in all circumstances.@ Also within the ruling was the acknowledgment that once the government attaches benefits to marriage, it must constitutionally grant equal protection to all. With TBE undeniably being one of those benefits provided to heterosexual married couples, logically courts would extend that line of reasoning to recognize same-gender TBE as well. Therefore, in states that recognize legitimate out of state same-gender marriages, couples should title their assets as TBE if state law protects such assets from the creditors of either partner. States like Ohio are seemingly in a transition to fully allowing same-gender marriages, however, over half the states still do not recognize same-gender marital rights at all.
The states that provide significant creditor protection, but not same-gender marriage recognition, are Florida, Indiana, Michigan, Mississippi, Missouri, North Carolina, Virginia, and Wyoming. Estate planners representing same-gender couples who reside in these states face the greatest dilemma due to the potential upside of successfully titling assets as a TBE. These estate planners should strongly consider continuing to push the envelope and title their assets as TBE. Since the 2013 Windsor decision, courts in these jurisdictions have been far more willing to recognize that laws favoring heterosexual couples are unconstitutional.
The chart below shows the states that recognize tenancy by the entireties, and the degree of creditor protection associated with it, as featured in our recent book The Florida Advisor’s Guide to Counseling Same Sex Couples and The Florida Legal Guide for Same Sex Couples.
|STATE||LAW||PURE PROTECTION||Allows Same Sex Marriage|
|Alaska||Recording a judgment against a judgment debtor, thus creating a judgment lien against property owned by the judgment debtor, does not sever a tenancy by the entireties between the judgment debtor and spouse. Smith v. Kofstad, 206 P.3d 441 (Alaska 2009)||No||No|
|Arkansas||Real property owned by the husband and wife as tenants by the entireties may be sold under execution to satisfy a judgment against the husband, subject to the wife’s right of survivorship. Morris v. Solesbee, 892 S.W. 2d 281 (1995).||No||No|
|Delaware||Creditors of a spouse have no interest in realty that is held by the entireties. Johnson v. Smith, 1994 WL 643131 (Del. Ch. 1994)||Pure Protection||Yes|
|D.C.||Although tenancy by the entireties property is liable for the spouses’ joint debts and for the individual debts of the surviving co-tenant, it is unreachable by the creditors of one tenant. Morrison v. Potter, 764 A.2d 234 (D.C. 2000).||Pure Protection||Yes|
|Florida||Property is subject only to the debts of both spouses. In re Matthews, 360 B.R. 732 (Bankr. M.D. Fla. 2007).||Pure Protection||No|
|Hawaii||An estate by the entireties is not subject to the claims of the spouse’s individual creditors during the joint lives of the spouses. Sawada v. Endo, 561 P.2d 1291 (1977).||Pure Protection||Yes|
|Illinois||Tenancy by the entireties in real property is available for homestead property only. Premier Property Management, Inc. v. Jose Chavez, 728 N.E. 2d 476 (2000).||No||Yes|
|Indiana||Generally, the creditor of one spouse may not seize, sell or attach entireties property. Anuszkiewicz v. Anuszkiewicz 360 N.E. 2d 230, 232 (Ind. App. 1977).||Pure Protection||No/Yes(law will take effect June 1st)|
|Kentucky||A creditor cannot force a sale of property owned by husband and wife as tenants by the entireties with right of survivorship, but the debtor spouse’s expectant interest can be sold. Coleman American Companies, Inc. v. Leasure, 2008 WL 5191463 (2008).||No||No|
|Maryland||Because entireties property is owned by the husband and wife as the marital unit, it is not subject to the claims of individual creditors of either spouse. Schlossberg v. Barney, 380 F.3d 174, 178 (4th Cir. 2004).||Pure Protection||Yes|
|Massachusetts||The property is protected from creditors of the debtor spouse, so long as the nondebtor spouse lives in the house. Coraccio v. Lowell Five Cents Sav. Bank, 612 N.E. 2d 650, 654 (1993). If the nondebtor spouse no longer occupies the residence, it is subject to the execution for the debts of the other spouse. In re Snyder, 231 B.R. 437, 443 (Bankr. D. Mass. 1999).||No||Yes|
|Michigan||In re Strausbough, 426 B.R. 243 (Bankr. E.D. Mich. 2010). A tenancy by the entireties form of concurrent ownership is intended to protect the marital estate. In a tenancy by the entireties, neither husband nor wife may sell or encumber property to a third person without consent of the other spouse. To the extent of joint debt, entireties property is not protected from claims of the joint creditors.||Pure Protection||No|
|Mississippi||Mississippi statutory authority states that assets of a debtor do not include “[a]n interest in property held in tenancy by the entireties to the extent it is not subject to process by a creditor holding a claim against only one tenant.” Miss. Code Ann. ‘ 15-3-101(b)(iii) (Supp.2010).||Pure Protection||No|
|Missouri||Hanebrink v. Tower Grove Bank & Trust Company, 321 S.W. 2d 524, 527 (Mo. App. 1959).||Pure Protection||No|
|New Jersey||While New Jersey recognizes tenancy by the entireties, creditors of either spouse have the right to reach entireties property, including debtor-spouse’s present interest therein, subject to the right of survivorship; thus, a creditor who does so becomes a tenant in common, in possession with nondebtor-spouse. In re Etoll, 425 B.R. 743 (Bankr. D. N.J. 2010).||No||Yes|
|New York||A tenancy by the entireties cannot be divided absent consent of both spouses. Prario V. Novo, 645 N.Y.S. 2d 269 (N.Y. 1996) Applies only to real estate.||No||Yes|
|North Carolina||Where property is held as tenants by the entireties, any judgment against only one of the spouses may not attach to the real property while it remains as a tenancy by the entireties. Dealer Supply Co. v. Greene, 522 S.E. 2d 350 (N.C. App. 1992).||Pure Protection||No|
|Ohio||Only recognizes Tenancy by the entireties if established prior to April 4, 1985.||No||No|
|Oklahoma||Some, but not all, creditors can pursue the obligations of individual spouses in the entireties property. See 60 Okla. Stat. ‘ 74.||No||No|
|Oregon||The interest of a judgment debtor spouse, as tenant by entireties with nondebtor spouse, may be sold on execution, and the execution purchaser only obtains the debtor spouse’s interest, which ceases to exist should a debtor spouse predecease the nondebtor spouse. Hoyt v. American Traders, Inc., 725 P.2d 336 (1986).||No||Yes|
|Pennsylvania||Property held as tenancy by the entireties is unavailable to satisfy the claims of the creditor of one of the tenants. Johnson v. Johnson, 908 A.2d 290 (2006).||Pure Protection||Yes|
|Rhode Island||In Cull v. Vadnais, 406 A.2d 1241 (1979), the court held that a creditor had the right to attach a debtor-spouse’s interest in real property held as tenancy by the entireties.||No||Yes|
|Tennessee||Where the debtor owns property with a nondebtor spouse in a tenancy by the entireties, only the debtor’s survivorship interest is subject to execution, not the debtor’s present, possessory interest. 16 Tenn. Prac., Debtor-Creditor Law and Practice ‘ 15:33 (2d ed.).||No||No|
|Vermont||If a tenancy by the entireties is validly created, it is protected from the sole creditors of an individual debtor. RBS Citizens, N.A., v. Ouhrabka, 30 A.3d 1266 (Vt. 2011). The court noted that the property held by husband and wife, as husband and wife, is protected from either the sole creditors of either the husband or the wife. Anchor Foundations, Inc. v. Ingalls, 191 Vt. 641 (Vt. 2011 Unpublished LEXIS case)||Pure Protection||Yes|
|Virginia||Property that is held in tenancy by the entireties by spouses is protected from the claims of the debtor’s individual creditors. In re Bradby, 455 B.R. 476 (Bankr. E.D. Va. 2011).||Pure Protection||No|
|Wyoming||Wyoming law does not allow a judgment creditor to seize property held by a husband and wife as tenants by the entireties to satisfy the individual debts of one of the spouses. Colorado Nat. Bank v. Miles, 711 P.2d 390, 393-94 (Wyo. 1985).||Pure Protection||No|
Advisors representing same-gender couples who reside in tenancy by the entireties states that offer creditor protection attributes should consider advising their clients to title assets and entities between them as tenants by the entireties, and advise on the possible impact of such titling. The creditor protection aspects may be very important for medical or other professionals who work in areas of high risk or for business people who guarantee debts or have other possible obligations that their same gender spouse would not be responsible for.
Clients that need or wish to have a higher chance of success, if a creditor were to pursue assets, may wish to consider using a Delaware or Tennessee tenancy by the entireties trust. Both states have legislation which specifically provides that their tenancy by the entireties rules will apply to assets held under a trust that has an active trustee and assets held in that state. Time will tell whether the Full Faith & Credit Clause of the U.S. Constitution will permit assets held in a trust under one state to be classified pursuant to the characterization laws of that state, but it cannot hurt to try.
Many same gender couples choose to own their assets jointly, and normally this will be with right of survivorship between them. If a creditor gets a judgment against one joint owner, then the one-half (2) ownership interest of that joint owner would normally become accessible to the creditor.
In a state that recognizes creditor protection for tenancy by the entireties assets, a creditor holding a judgment against one spouse is not able to reach the tenancy by the entireties assets.
Pariksith Singh, M.D. is board certified in Internal Medicine. Dr. Singh received his medical education at Sawai Man Singh Medical College in Rajasthan, India (where he was awarded honors in internal medicine and physiology). His residency training occurred at All India Institute of Medical Services (New Delhi, India) and Mount Sinai Elmhurst Services, (Elmhurst, New York). Upon completion of his residency, Dr. Singh relocated to Florida and worked for several years before establishing Access Health Care, LLC in 2001.
Dr. Singh thanks Alan Gassman for his assistance in reviewing and refining this article.
We have all heard of the 80/20 rule and although it is applied to several disciplines and in several different aspects, the general premise is that there is an unequal relationship between inputs and outputs. Dr. Singh unfolds this ancient theory, known as The Pareto Principle, and provides an analysis as to how it is applied in medical practices and organizations. Enjoy!
The Pareto principle, discovered by an Italian researcher Vilfredo Pareto in 1897, states that 20% of causes invariably produce 80% of the results. While not mathematically exact, it underlines an important principle in statistics and population medicine, quality improvement and process-corrective action. This principle has several applications in health care, some of which are described below.
1. Risk Population: In the world of managed care and ACO’s, 20% of patients cause nearly 80% of the expenses. This has significant implications in care management of high-risk population. Further study shows that the sickest 5% of a given population can cause the plan or panel to incur 60-70% of the costs. Improving morbidity and mortality for the most vulnerable and sickest members of a given population will therefore result in enormous savings. This does not mean that normal preventive testing and screening and standard primary health care of the population in the bell curve should be eschewed, however, it does show that exceptional focus and attention should be directed at the farthest end of the bell curve of the population. That 5% skews the spread of expenses and makes it uneven.
If one were to graph the disease status of a population against the expense, we would find that a bell curve might well describe the severity of disease as it spreads in the entire population. In the middle two-thirds of the bell curve would be those with minor ailments or with one or two chronic conditions. On the far left would be the extremely healthy with minimal medical issues. On the far right would be patients with more than three chronic conditions which are complex and require intense and collaborative management. If one plots this bell curve against the graph of expenses that spread across the population, one would likely see a flat line or slightly ascendant line up to the first 75-80% of the population. As the line moves towards the right side of the curve, it dramatically goes up until it ends up being almost vertical at the end. It is this far end, the vertical end of the bell curve that we are interested in, in hopes of having a proper handle on Intense Care Management, Disease Management and Daily Utilization Review.
2. Process Improvement: Used in Quality Improvement by Deming and Juran in Japan in the post-World War II world, it was discovered that a focused effort to improve the most deficient areas in operations and processing resulted in dramatic reductions in defects in factories. Applying these principles, IBM found 80% of the time spent by its computers are on 20% of their functions. IBM developed the fastest and best computers in the world by concentrating on the improvement of those 20% concentrated functions.
3. Marketing: In a recent book ‘The Tipping Point’, Malcom Gladwell discusses a similar principle when he points out that epidemics and marketing campaigns need just a few things to happen at the right time to cause a significant impact.
4. Network development: One does not need to enroll each physician in a geographical area to create a network. We know from experience that a successful network can be initiated by connecting with approximately 20% of select specialties. These 20% can have a strong impact on the health of the population and can create Care Management Initiatives and negotiate successful contracts with insurers or self-insured employers, as the case may be.
5. Billing processes and Auditing: If we study Henry Ford’s Flow Line Method and the Theory of Constraints, we realize that the focus should be on optimizing the overall flow. It is best to study the entire supply chain step by step, process by process, and determine where the bottlenecks are as a primary goal to improve the overall flow and abolish local efficiencies. When such an approach is taken, one notices that removing bottlenecks at one step improves the flow of the entire operation and accelerates the whole chain.
With such insight, the Pareto Principle provides a very good gauge for analyzing the billing cycle of each office and, eventually, the whole organization. Oftentimes we find that the biggest bottleneck in a compliant practice is the billing department. The physicians and their staff are incentivized to see more and more patients and send the claims in a timely manner to the auditors and billers. As the auditors review the claims and either approve them or return them to the office for correction of documentation or level of billing, we find a slowing of the entire billing cycle. Thus, it makes sense to get additional help in auditing or billing by hiring temps or more billers and auditors, improving the technology and work flow for auditing review as needed, and eventually eliminating this bottleneck.
As one bottleneck is opened up, others might appear. Again, the same laser-like precise approach will impact the output of the entire Flow Line.
6. Compliance: 15-20% physicians require 80% of the time invested by operations, leadership, finance and legal departments. At what point should these physicians be given the opportunity to work elsewhere or make major changes in their methodology and attitudes?
7. HEDIS and outcomes: Star Ratings: in our experience, the plans that do not rely simply on processes but are extremely hands-on with patient data and address deficiencies, say use of ACE or ARB in Diabetics, or COA forms, patient by patient until the last day of the year, week by week, physician by physician, deliver the highest scores. We have seen sizeable populations of patients reach scores of 5 in Star Ratings with such detailed and precise effort.
8. Financial: One is reminded of the story of a famous consultant who was invited to hear a 3-day presentation of how a giant conglomerate of 1500 factories was hemorrhaging money day after day due to change in the industry. The consultant listened quietly and reviewed all complex recommendations on how long it would take the conglomerate to climb out of its hole and had to innovate itself out of trouble and how it was going to be an extremely difficult task. At the end of the presentation, when he was asked for his recommendations, his answer was simple. “Close the 500 factories where you are incurring these huge losses and you will be financially solvent within a month,” he said, illustrating the same principle. In our experience, we have seen a significant turnaround for a company when in times of drastically reduced premiums and decreased profits, it closed nearly ten percent of its offices and ensured liquidity within a few months.
9. Contracting and negotiating Multi-Platform Business agreements: One does not need to accept all the companies in the market; nor does one need to contract with every physician in the market. It is the key physicians or anchor-practices that can influence contract negotiations one way or other. Having a strong contract with a plan opens the door to be able to contract favorably with more suitable providers thereby causing a positive feedback loop.
Can the Pareto Principle be applied to everything medical? No, certainly not in compliance where a basic standard of adherence is needed across the board. But there too, it might be found that it is the few that skew the results of the many, and if addressed, will have maximum impact on overall scores. It is these few that can be brought ahead with concise effort.
Our law firm currently has eight staff members participating in a book club that is held every six weeks.
The Book Club operates as follows:
A few days before the meeting, an email is circulated to members asking them to add any book suggestions to the bin in my office for possible selection at the upcoming meeting. Members are encouraged to print out descriptions of a couple of books they are interested in reading and would like to discuss with the group. All genres of books are welcome.
The meeting is held in our upstairs conference room and generally lasts for one hour. The participating staff members are “off the clock” but enjoy complimentary lunch.
During the meeting, we discuss the current book selection. Sometimes this involves a list of discussion questions that we bring to the meeting and other times it is an open discussion without a set outline. Often personal stories that relate to situations in the book are shared. The meeting provides an opportunity to learn more about your co-workers and to enrich office friendships.
Toward the end of the meeting, we circulate the book suggestions around the table and everyone writes their initials on the book they would like to read next. The book with the most votes is chosen as the next month’s book.
On the afternoon after a meeting, an email is circulated to members giving them the date of the next Book Club meeting and the name and author of the next book we are reading.
A few of us will get a copy of the next book from the library and then share that copy with whoever has not read the book when we are finished. Everyone has the option of buying the book, taking a copy from the library or borrowing the book from another member. We allow six weeks between meetings so that “borrowers” have time to read the book after someone else is finished.
A lending library is also set up in the office and Book Club members along with other staff members are encouraged to borrow and share books. We include books that we read for Book Club and also books that we enjoyed and would like to share with our co-workers.
Prior Book Club selections are below:
Sisterland by Curtis Sittenfeld Burial Rites by Hannah Kent
The Husband’s Secret by Liane Moriarty The Silent Wife by A.S.A. Harrison
Lies You Wanted to Hear by James Whitfield Thomson The Divorce Papers by Susan Rieger
How to Kill Your Boss by Anonymous
Seminars and Webinars
NEW PORT RICHEY SEMINAR:
Alan Gassman will be speaking at the North FICPA Monthly meeting on a topic to be determined.
Date: Wednesday, July 16, 2014 | 4:30 p.m.
Additional Information: If you would like to attend this seminar please contact Ron Cohen at 352-257-9518 or email email@example.com
FREE LIVE WEBINAR:
STEP-UP YOUR EFFORTS TO STEP-UP CLIENTS’ BASIS – STRATEGIC ESTATE PLANNING AND STEPPED-UP BASIS CONSIDERATIONS
Date: Wednesday, July 23, 2014 |12:30 p.m. (30 Minute Webinar)
Speakers: Ed Morrow, III, Alan S. Gassman
Location: Online webinar
Additional Information: To register for the webinar please click here.
FREE LIVE WEBINAR:
GAUGING AND HANDLING ENTITLEMENT TENDENCIES OF BENEFICIARIES, EMPLOYEES AND OTHERS – A FASCINATING AND EXTREMELY PRACTICAL GUIDE ON SOCIETY’S NEWEST ISSUE
Date: Tuesday, July 29, 2014 | 12:30 p.m. (30 Minute Webinar)
Speakers: Stephanie Thomason, Ph.D. and Alan Gassman
Location: Online webinar
Additional Information: To register for the webinar please click here.
FREE LIVE WEBINAR:
A POWERFUL 40 MINUTE DOUBLE HEADER WITH JONATHAN BLATTMACHR
- Foreign vs. Domestic Asset Protection Trusts: More Than Just Creditor Protection Considerations
- Empowering Your Powers of Appointment: Don’t Leave Out Important Tax and Practical Provisions or Ignore Important Considerations. With Sample Provisions
Date: Tuesday, August 12, 2014 | 12:00 p.m.
Location: Online webinar
Additional Information: To register for the webinar please click here.
LIVE ISLE OF MAN PRESENTATION:
Alan Gassman will be speaking on US TRUST AND TAX LAWS FOR INTERNATIONAL INVESTORS at Cayman National Bank and Trust Company on the Isle of Man
Sign up now and you will receive a free lunch! Transportation not included.
Date: Wednesday, September 3, 2014
Additional Information: If you would like to receive a copy of the materials that will be presented please email Janine Gunyan at firstname.lastname@example.org and we will send them to you once they are ready.
LIVE FT. LAUDERDALE PRESENTATION:
FICPA ANNUAL ACCOUNTING SHOW
Alan Gassman will be speaking at the FICPA Annual Accounting Show on Thursday, September 18, 2014 on the topic of ESSENTIAL GUIDE TO BASIC TRUST PLANNING for 50 minutes.
This presentation will introduce basic and intermediate trust planning background and provide attendees with an orderly list of the most commonly used trusts, practical features and traps for the unwary, including revocable, irrevocable and hybrid. The discussion will include tax, creditor protection and probate and guardian considerations.
Date: Wednesday, September 17 through Friday, September 19, 2014
Location: Fort Lauderdale, Florida
Additional Information: For more information about this program please contact Stephanie Thomas at ThomasS@ficpa.org
LIVE CLEARWATER PRESENTATION:
Board Certified Tax Attorney Michael O’Leary from the Trenam Kemker firm in Tampa, Florida will be speaking at the Ruth Eckerd Hall Planned Giving Advisory Council event on Tuesday, September 23, 2014 at 5:00 p.m.
Mr. O’Leary’s topic is HOT TOPICS IN CHARITABLE PLANNING
Date: Tuesday, September 23, 2014 | 5:00 p.m.
This presentation is free to members of the Ruth Eckerd Hall Planned Giving Advisory Council, Ruth Eckerd Hall members, and professionals who are attending a Ruth Eckerd Hall Planned Giving Advisory Council event for the first time.
Additional Information: You can contact Suzanne Ruley at email@example.com or via phone at 727-791-7400, David Abelson at firstname.lastname@example.org or via phone at 727-773-4626, Alan S. Gassman at email@example.com or via phone at 727-442-1200 or the Kentucky Fried Chicken located at 1960 Gulf to Bay Blvd, which is close in proximity to this location and available to provide you with crisp, spicy or even crispier chicken, mashed potatoes and gravy, rolls, and slaw! Bring your 32 oz. Kentucky Fried Chicken drink container to the presentation and we will fill it with your choice of club soda or seltzer water, but no sharing permitted.
LIVE NEW JERSEY PRESENTATION:
NEW JERSEY INSTITUTE FOR CONTINUING LEGAL EDUCATION (ICLE)_SPECIAL 3 HOUR SESSION
New Jersey song trivia: What song includes the words “Counting the cars on the New Jersey Turnpike, they’ve all gone to look for America”? What year was it recorded and who wrote it?
Alan Gassman will be the sole speaker for this informative 3 hour program entitled WHAT NEW JERSEY LAWYERS NEED TO KNOW ABOUT FLORIDA LAW
Here is some of what the New Jersey Bar Invitation for this program provides:
New Jersey residents have always had a strong connection to Florida. We vacation there (it=s our second shore). Own Florida property (or have favored relatives that do) and have family and friends living there. Sometimes our wealthiest clients move to Florida and need guidance, and you need background in order to continue representation.
There are real and significant differences between the two states that every lawyer should be cognizant of. For example, holographic wills are perfectly legitimate in New Jersey and anyone can serve as an executor of an estate, which is not the case in Florida. Also, Florida=s new rules regarding LLCs are different, and if you are handling estates of New Jersey decedents who owned Florida property, there are Florida law issues that must be addressed. Asset protection differs significantly in Florida too.
Attendees will receive Mr. Gassman’s book entitled “Florida Law for Tax, Business and Financial Planning Advisors,” which has a retail value of $34.95.
Our informative seminar, presented by Clearwater attorney Alan Gassman, highlights issues New Jersey lawyers should be aware of when handling matters for New Jersey residents who own Florida property, reside there part time, have interest in Florida businesses, or who are considering a move to Florida. The Florida Bar rules permit out of state lawyers to continue representation of Florida residents under rules that will be discussed.
Gain the knowledge you need to assist your clients with Florida matters, including:
- Florida specific laws involving businesses, trusts, and estates
- Florida tax planning
- Elective share and homestead rules
- Liability Insulation and Planning
- Creditor Protection and Strategies
- Medical Practice Laws
- Staying within Florida Bar Guidelines that allow representation of Florida clients
Comments from past attendees of this program:
- Excellent seminar and materials!!!
- This was one of the best ICLE seminars yet!
- One of the best seminars I have attended.
- Better than mashed potatoes and gravy. Glad he didn’t serve grits!
Date: Saturday, October 4, 2014
Additional Information: This is a repeat of the same program that we gave last year, but our book is now updated for the new Florida LLC law and changes in estate and trust law. Please tell all of your friends, neighbors and enemies in New Jersey to come out to support this important presentation for the New Jersey Bar Association. We will include discussions of airboats, how to get an alligator off of your driveway, how to peel a navel orange and what collard greens and grits are. For additional information please email firstname.lastname@example.org
LIVE PASCO COUNTY COCKTAIL HOUR AND PRESENTATION:
Alan Gassman and Christopher Denicolo will be speaking at the Pasco-Hernando State College’s Planned Giving Consortium Luncheon on Planning for Inherited IRA’s in View of the Recent Supreme Court Case – and Demystifing the “Stretch in Trust” Ira and Pension Rules
Date: Thursday, October 23, 2014 | 4:30 p.m.
Location: Spartan Manor, 6121 Massachusetts Avenue, Port Richey, Florida
Additional Information: For more information please contact Maria Hixon at email@example.com
LIVE UNIVERSITY OF NOTRE DAME PRESENTATION:
40th 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 and Analyzing Reverse Mortgages.
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 that apply to variable annuity contracts 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.
LIVE NAPLES PRESENTATION:
2nd ANNUAL AVE MARIA SCHOOL OF LAW ESTATE PLANNING CONFERENCE
Date: Friday, May 1, 2015
Location: Ave Maria School of Law, 1025 Commons Circle, Naples, Florida
Additional Information: Jerry Hesch and Alan Gassman will present The Mathematics of Estate Planning. If you liked Donald Duck in Mathematics Land you will love The Mathematics of Estate Planning. This will not be a Mickey Mouse presentation.
Other speakers include Jonathan Gopman, Bill Snyder, Elizabeth Morgan, Greg Holtz, and others.
Please let us know any questions, comments, or suggestions you might have for this amazing conference, which features dual session selection opportunities in one of the most beautiful conference facilities that we have ever seen.
And don’t forget to have a great weekend in Naples with your significant other, or anyone who your significant other doesn’t know! Domino’s Pizza is extra.
49th ANNUAL HECKERLING INSTITUTE ON ESTATE PLANNING
Date: January 12 – 16, 2015
Location: Orlando World Center Marriott 8701 World Center Drive, Orlando, Florida
Additional Information: For more information please visit: https://www.law.miami.edu/heckerling/?op=0
LIVE ST. PETERSBURG PRESENTATION:
ALL CHILDREN’S HOSPITAL FOUNDATION
Date: Thursday, February 12, 2015
Location: St. Petersburg, FL
Additional Information: Please contact Lydia Bennett Bailey at Lydia.Bailey@allkids.org for more information.
2015 FLORIDA TAX INSTITUTE
Date: Wednesday through Friday, April 22 – 24, 2015
Additional Information: Please contact Bruce Bokor at firstname.lastname@example.org for more information.