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Monday, August 10, 2015

New York Reserves Right to Subject Real Estate Owned By Single Member LLC to Estate Tax

In a recent New York tax advisory opinion, TSB-A-15(1)M, the Commissioner of Tax and Finance stated that if a single member LLC owns an interest in New York real property, that property can be subject to the New York estate tax upon the death of the sole owner.

In this situation, the Petitioner had set up a single member Delaware LLC to own an interest in New York real estate. The Petitioner then wished to permanently leave New York to live in another jurisdiction.  New York has a state estate tax on real estate but it does not have an estate tax on intangible property.

Typically, an interest in corporation, partnership or trust is considered an interest in intangible property and therefore not subject to New York's estate tax laws.  This raised the question of how to treat the interest in an limited liability company.  An LLC can be taxed as a partnership, a corporation, an S-Corporation or as a disregarded entity.  Single member LLCs are taxed as a disregarded entity unless the taxpayer elects to have it taxed differently.

The rationale behind the opinion in this case is that if the federal government disregards the entity for tax purposes, so should the state of New York.  Accordingly, if you own real property in New York and are not a New York resident, you should speak with your tax advisers about the best way to minimize your estate tax burden.

The nice thing about an LLC is that you can always make an election to have it taxed in a different manner simply by filing a form with the federal government.  By electing to have it taxed as a Corporation or S-Corporation, or by adding your children on as owners of the LLC and having it taxed as a partnership, the LLC will no longer be treated as a disregarded entity.

Sunday, August 9, 2015

Moving Office Location and Adding Franklyn Z. Aronson as Of Counsel

We are pleased to announce that Franklyn Z. Aronson, Esq. has joined our firm as Of Counsel.  Mr. Aronson's practices in the area of Wills, Trusts and Estates and Small Business Law.

Additionally, we have moved our New Jersey offices from Pennington, NJ to:

100 Federal City Road
Building C, Suite 104
Lawrenceville, NJ 08648

Our other contact information has not changed.

Tuesday, May 26, 2015

Japan Institutes Exit Tax

Effective July 1, 2015, Japan will institute an "Exit Tax" on Japanese residents.  If a Japanese resident has lived in Japan for 5 of the last 10 years and then moves to another country (or gives up residence), the Exit Tax will create a deemed sale of all of such person's assets, triggering capital gains.

The purpose behind the new tax is of course to raise revenue for the Japanese government.  Under the old rules, a Japanese resident could move to another country for a year, sell his or her assets, and avoid the Japanese capital gains tax because the Japanese government only had the right to impose an income tax on residents.  (This is different from the US income tax which imposes an income tax on assets worldwide, subject to treaties and certain exceptions.)

There are numerous exceptions to the Japanese Exit Tax.  The most important exception is that it only applies to individuals who have assets in excess of 100 million yen (approximately $820,000). Another major exception is that it does not apply to foreign expatriate employees staying in Japan on a working Visa.  

KPMG has a detailed explanation of who is affected by the Exit Tax.

Friday, February 13, 2015

Dynasty and Generation Skipping Trusts Can Trigger a Compromise Tax

A number of years ago I wrote about the dangers of accidentally triggering a Compromise Tax in New Jersey and in Pennsylvania.  It occurs to me that most dynasty trusts are set up to go to children, grandchildren and more remote descendants, but there is also boilerplate that says if the Grantor doesn't have any living descendants, it will go to other family members or friends.

This is where the tax gets tricky.  As a refresher, if money goes to a child, in New Jersey there is no inheritance tax and in Pennsylvania there is a 4.5% inheritance tax.  If money goes to other parties, like nieces and nephews, there can be an inheritance tax of 15-16%.   So, when money goes into trust for the life of a child, and then it goes to a niece or nephew after that, the tax must be computed based upon the value of the remainder interest.

Now let's take it a step further, what happens if the trust doesn't say upon the death of  the child that it goes to nieces and nephews, but rather there is a contingency.  The contingency being that it goes to the child's heirs, and if the child doesn't have any heirs, it goes to the nieces and nephews.

In this situation, technically you still have to calculate the actuarial interest of the child's interest, but now you also have to calculate the actuarial interest that the nieces and nephews will receive the remainder interest rather than any descendants of the child. 

If the chance that the nieces and nephews will receive the remainder interest is too remote that there will not be a tax, the question then becomes what is too remote?  In a call to the New Jersey Division of Inheritance Tax, they advised me that there is no bright-line rule.  Each situation is a facts and circumstances test.  

For example, in the situation described above, they might look at the age of the child when the trust is created, whether there are actually any grandchildren alive at that point, the terms of the trust, and many other factors.  So in a situation where the children are older, unmarried and without children of their own, there is a much higher chance that nieces and nephews will wind up with the remainder interest.

So how can you complete the inheritance tax return when there are so many possible contingencies?  The safe route, and the one recommended by the New Jersey Division of Inheritance Tax, is to make a note of the potential tax and explain why you think there should only be a minimal or no tax.  Usually this is the better way to go in New Jersey because if someone is setting up a dynasty trust, they typically are doing it with a fair amount of assets and are going to be paying the New Jersey estate tax anyway.  In Pennsylvania, because there is no estate tax, this may be a tougher negotiation.  

Because of the complexity of these situations, I strongly recommend hiring a competent estate administration attorney to assist.  Failure to deal with this at the time the inheritance tax return is due could lead to substantial interest and penalty costs.


Monday, January 5, 2015

Change in Pennsylvania Power of Attorney Law

Happy New Year!  Effective January 1, 2015, under Act 95, Pennsylvania modified Chapter 56 of Title 20 of the Pennsylvania Consolidated Statutes, which deals with Powers of Attorney.  The amendment was made to try to better protect the Grantor of the powers.

Under the new statute, a Pennsylvania Power of Attorney must be witnessed by two witnesses and a notary to be valid.  Also, the warning statement that the Grantor must sign at the beginning of the Power of Attorney was also modified slightly so that the Grantor better acknowledges the power he or she is potentially giving to the Agent.

The new law also creates some mandatory duties on the Agent that the principal cannot waive or modify. These three requirements are that the agent must: (1) act in accordance with the principal’s reasonable expectations to the extent actually known by the agent, and otherwise in the principal’s best interests; (2) act in good faith; and (3) act only within the scope of authority granted in the power of attorney.

Furthermore, under the new law, unless the document says otherwise, an Agent must also:
(1)  Keep his funds separate from the principal’s funds unless: 
    (i)  the funds were not kept separate as of the date of the execution of the power of attorney; or 
    (ii) the principal commingles the funds after the date of the execution of the power of attorney and the agent is the principal’s spouse.
(2)  Act so as not to create a conflict of interest that impairs the agent’s ability to act impartially in the principal’s best interest.
(3)  Act with the care, competence and diligence ordinarily exercised by agents in similar circumstances.
(4)  Keep a record of all receipts, disbursements and transactions made on behalf of the principal.
(5)  Cooperate with a person who has authority to make health care decisions for the principal to carry out the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal’s best interest.
(6)  Attempt to preserve the principal’s estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal’s best interest based on all relevant factors, including:
    (i)    The value and nature of the principal’s property.
    (ii)   The principal’s foreseeable obligations and need for maintenance.
    (iii)  Minimization of taxes, including income, estate, inheritance, generation-skipping transfer and gift taxes.

Finally, Section 5601.4(a) limits the power of an agent to take certain actions unless the authority is expressly granted in the POA and is not prohibited by another instrument. The major powers and actions that must be specifically authorized are:  
(1)  Create, amend, revoke or terminate an inter vivos trust other than as permitted under section 5602(a)(2), (3) and (7) (relating to form of power of attorney).
(2)  Make a gift.
(3)  Create or change rights of survivorship.
(4)  Create or change a beneficiary designation.
(5)  Delegate authority granted under the power of attorney.
(6)  Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan.
(7)  Exercise fiduciary powers that the principal has authority to delegate.
(8)  Disclaim property, including a power of appointment.
Section 5601.4(b) further limits the exercise of hot power authority by agents who are not in certain family relationship with the principal. However, a Power of Attorney can be written to specifically opt out of these limitations.

Friday, December 5, 2014

Dynasty Trusts Explained

I am frequently asked about the best way to transfer wealth to younger generations.  Sometimes people feel that absent having a minor child, a problem child or a special needs child, there is no reason to set up a trust.  Often times they are correct and there is no reason create a trust because the client has very responsible children.

Sometimes though, even if the children are quite responsible, if the client has a lot of money, it may be worthwhile to set up a dynasty trust.  Most trusts are designed so that the trust assets will be distributed to the beneficiaries at staggered ages (e.g., one-half at age 25 and the balance at age 30). On the other hand, a dynasty trust is a trust designed to hold assets for many generations usually without any requirement that the principal ever be distributed. 

Keeping assets in trust has many benefits.  If money is in trust it can be protected from creditors, including an ex-wife or an ex-husband.  Additionally, keeping assets in trust will protect it from estate taxes.  (If you give money to a child upon death, it is taxed, when they die, it is taxed again, and so forth...)  

The grantors of the trust can also control the flow of money out of the trust.  For example, they can allow for an income stream, they can allow for small percentage distributions when their heirs reach certain ages or graduate from college, they can allow invasion for certain expenses or they can simply let the trustee decide when and how to give their heirs money based upon whatever criteria they think is important.  The most common standard is for the health, education, maintenance and support of their heirs.

Another beneficial feature of a dynasty trust is that it can be located anywhere.  Typically, wealthy parents have provided for their children and already have good careers and plenty of their own assets.  If parents simply give more money to their children outright, it will be taxed in the jurisdiction where the children live.  If that state has a high income tax, it could be a drain on the funds.  If trust were created in a place that doesn't have a state income tax, that can save significant assets for future generations.

Almost anyone can be trustee of the dynasty trust other than the Grantor.  The Trustee is the party that manages the money and makes distribution from the trust.  Common choices of trustee include the heirs of the Grantor, a friend or an attorney or a corporate trustee.  If the Trustee is also a beneficiary of the trust, there will have to be restrictions on what the Trustee gives himself (otherwise you lose the tax and asset protection benefits).  Often times a trust is created with substantial flexibility so that an heir can act as trustee with limited invasion, but that heir also can be given the power to hire and fire additional trustees who have much broader discretion to distribute funds.  

A dynasty trust can go on for as long as the Grantor has heirs.  In case something happens to the entire family, most people usually name a charitable remainder beneficiary.  Other features that most good dynasty trusts include are the ability to relocate the trust to another jurisdiction (usually to obtain a more favorable tax rate), the ability to have a separate investment advisor, and the creation of a trust protector to modify terms of the trust in the events facts or circumstances change. 

A dynasty trust can be created during the lifetime of the Grantor (an intervivos trust) or upon his death (as a testamentary trust).  Usually it is better to create the trust during the lifetime of the Grantor because it will offer more flexibility in terms of jurisdiction (where the trust is located).  Jurisdiction is important because some states do not allow a perpetual trust, there is a state income tax in some states, and some states offer better creditor protection than others.  Another benefit to creating a dynasty trust during the lifetime of the Grantor is because the trust can be set up as an Intentionally Defective Grantor Trust (IDGT).

An IDGT is an irrevocable trust created during the Grantor's life that is not includible in the gross estate of the Grantor at the time of his death, but while the Grantor is alive, the income is taxable to the Grantor.  The benefit to this is that the Grantor can pay the taxes on the trust with his own money, allowing the trust to grow at a faster rate.  Essentially, it is like making a tax free gift to the trust in the amount of the tax.

Even if a trust is created during a Grantor's lifetime, it does not have to be funded until the Grantor passes away.  Sometimes a Grantor will want to or need to maintain control over certain assets.  Often, it is best to partially fund the dynasty trust with assets that the Grantor thinks will appreciate substantially in the future and transfer low basis assets that have already highly appreciated to the dynasty trust on death.

Because of the potential that these trusts can go on forever, it should not be set up unless the individuals involved have a fair amount of assets.  Normally I would not recommend it unless the Grantor is planning to fund it with several million dollars.  However, each client's situation is unique. Please contact our attorneys if you think a dynasty trust might be right for you.

Monday, December 1, 2014

Update to Executor's Commissions in NJ

Back in March of 2014, I wrote a lengthy post about how to Calculate an Executor's Commissions in New Jersey.  Frankly, most of the executors I work with don't want a commission.  However, I recently came across an interesting situation where an executor wanted a commission and the decedent had substantial joint survivorship accounts with the executor.

Normally, a survivorship account is not subject to an executor's commission on the theory that the executor doesn't have to do any work with respect to those accounts.  In this situation though, the survivorship accounts were actually convenience accounts.  A convenience account is a type of account that goes to the surviving account holder, primarily to pay bills, but based upon the intent of those involved, the balance of the funds will be disposed of with the rest of the Decedent's estate.  In other words, the money does not legally belong to the surviving joint account holder, it belongs to the estate of the Decedent.

In my situation, even though the money passed to the executor, in his individual capacity, on the death of the decedent, the money will ultimately be processed through the estate's accounts and go to the beneficiaries under the Decedent's Will. Accordingly, the executor CAN take a commission on these joint accounts.  More importantly, this commission is tax deductible for purposes of calculating the New Jersey estate tax.

I had trouble finding legal authority for this position, so I called up the New Jersey Division of Tax, Estate and Inheritance Department, and they confirmed this result.