If you have an asset protection plan in place, a periodic review of your strategy is critical. Tax laws and economic conditions change, as do your personal circumstances, and your asset and estate plan should reflect the most current conditions. Technology and globalization have brought us to a time and place where economic conditions have begun to change more rapidly than ever before. And, as a result, reviewing and updating your asset protection strategies regularly has become even more important. Protecting your assets and preserving your wealth is typically accomplished through a combination of investment strategies, estate- and tax planning, under the advisement of an experienced tax attorney. This is the most effective way to ensure that your planning strategies keep up with the changing economic landscape.
The Rapidly Changing Asset Protection LandscapeOne of the most intriguing changes that have emerged over the past decade is the increasing focus on social responsibility in asset management and protection, as well as in investments. Data-driven decision-making is another growing trend in investing, estate and tax planning strategies. High-level data analytics provide a more accurate snapshot into the future than we have ever had. However, as we move into 2020 and beyond, analytical insight will become as ubiquitous and reliable as technology has become. However, as no proverbial crystal ball yet exists, we must still err on the side of caution and incorporate an appropriate mix of high-, medium- and low-risk strategies into any asset, estate or tax plan.
How Will Future Economic Conditions Affect Your Assets?Although nothing new, speculation about rising interest rates and the potential for a capital market correction should keep us on our toes as we cruise toward a new decade. Globally, political issues will directly affect economic factors worldwide. Although few prognosticators envision any catastrophic economic events, ensuring you have effective protocols in place to protect your assets has never been more important. Ensuring you have made provisions for retirement, protecting your family and preserving wealth for future generations deserves your full attention today.
Strategies for Keeping Your Asset Protection Plan CurrentIf you have not established an asset protection and estate plan, it’s time to get started. But, even if you do already have a comprehensive plan in place, don’t rest on your laurels for too long. Consulting with an experienced tax and estate planning lawyer can provide a solid basis from which to begin. The tax attorneys of Cantley Dietrich assist business owners and highly compensated individuals with complex estate plans, tax planning and wealth preservation. With a strong focus on compliance, we work closely with our clients to ensure that asset protection strategies adhere to governing laws and regulations. Contact us today to discuss your asset protection and estate planning with one of our industry-leading tax attorneys.
Choosing a tax attorney requires careful consideration, to ensure you select an experienced professional who can provide the level of expertise and assistance you need. If you own a small or closely held business enterprise, however, choosing the right attorney becomes even more important. The issues business owners face are complex and unlike those that affect most individual and business taxpayers.
Why Do Business Owners Need a Tax Attorney?You have invested your time, your dedication and your hard-earned money into your business. You have dreams and goals for its future success and the many benefits that will provide for you. An attorney who understands not only the legal and financial aspects of your situation but who also understands your personal connection to your business is best equipped to support you in realizing your goals. Owning a business means you must consider how best to protect and grow your assets while looking at the tax code and regulations to mitigate your tax liability. You must consider your plans and how to begin working toward them. You must also consider the implications should you die or become incapacitated. All these complex issues are best addressed with the help of an experienced legal professional, alone or in conjunction with other trusted advisors.
What Should You Look for in a Tax Lawyer?Individual income tax advisors aren’t hard to come by. Likewise, you can find business attorneys in every city and state. Unfortunately, neither of these areas of specialization truly fits the needs of the business owner. Look for an attorney and advisor who focus their practice in income tax planning and estate planning specifically for business owners and highly compensated individuals. When your financial assets and cash flow are inextricably tied to your business, you need an attorney who has experience with these unique challenges. Depending on whether your plans involve continuing the business for future generations or developing an exit strategy, look for a tax-planning attorney who can advise you on the potential risks and rewards.
What Business Owners Should Look for in Their Tax AttorneyOnce you have established the experience and qualifications of each potential tax lawyer, you must identify the right fit for you. In addition to having relevant experience, your attorney should be committed to keeping you compliant with all governing laws and regulations. You will also benefit from working with a firm that specializes in estate planning for business owners as well. This helps ensure continuity and compliance among asset protection, estate planning, and tax planning. The professional attorneys of Cantley Dietrich work with business owners and highly compensated individuals, assisting them with all matters related to estate planning, asset protection, trusts, wills, and taxation. Contact us today to learn more about the benefits that our tax attorneys can provide to business owners.
Captive insurance companies (CICs) face increased scrutiny by the IRS, due to what the government views as a high risk of illegal tax avoidance or evasion. As a result, promoters, managers, and entities are shying away from forming captives, even when they have a good reason to do so.
Not all captives are created equal. When formed for the right reasons, managed conservatively, and within the constraints of the ever-evolving law related to micro-captives, they can offer many benefits and advantages. When considering a captive insurance transaction, the only reason to consider a CIC is to provide for insurances that can be proven as prohibitively expensive or difficult to obtain.
CICs formed for any purpose other than a demonstrable insurance need should be regarded with the utmost caution.
Understanding the Reasons for Captive Insurance Companies
The U.S. government implemented laws to encourage the development of small, closely-held, for-profit insurers as a way to stimulate economic growth. Forming a CIC allows businesses to obtain the insurance coverage they might not be able to find in the commercial marketplace and to keep insurance premium costs as low as possible.
It is important to remember that the overarching purpose of any captive is to provide insurance. The CIC can eventually make a profit and provide tax advantages to investors, but ultimately, it should serve the insurance needs of a parent company that has uninsured, uninsurable, or underinsured risk.
The Still Existing Advantages of a Captive
By providing businesses with a way to control their insurance coverage, CICs are a highly effective means for transferring risk and protecting business assets from unexpected losses. Businesses may save money on premiums and can tailor policies to cover exactly the risks they face. Captive coverages can fill in the gaps and carveouts in commercial policies, or in some cases, replace them. Throughout the entire formation process, the business owner should work with their commercial insurance agent to ensure coverages are maintained and that the insurance purpose is followed.
While the law provides that CICs are allowed to pass profits along to investors when the company is profitable (i.e., paid premium revenue exceeds claims liability), CICs should never operate as a piggy bank or investment vehicle or “alternative financing” entity. It is critical that a CIC be managed just like you would expect a commercial insurance company would operate. Meaning, coverages are tailored to need, premiums match up with reality, and there is a strictly adhered to claims process—among other important operational requirements.
The Imperatives of Captive Compliance
Many captive promoters and managers have been targeted by IRS promoter audits recently for advocating CIC transactions primarily as a tool for minimizing the investor’s tax liability and protecting assets. As a result, the IRS has—as they have with every other tax-motivated transaction—begun to impose more scrutiny as well as substantial penalties on captive insurance company owners. As we have reported in our other articles, investors who unfortunately found themselves in hot water have begun to file class-action lawsuits against promotors.
Captives are currently in hot water with the IRS over the repeated refrain that the promoter knows best how to structure the transaction. Business owners are required to understand the complex transactions they enter into. Consider that—if you were to invest in any other company in any other industry—and you were told “don’t worry” and “set it up like this so you never make a claim” or “loan your own money back to you”—you would never agree to something that sounds like a sham. In a similar manner, do not agree to a CIC transaction that does not pass the smell test.
Creating a captive that is — and remains — compliant is critical. However, as the rules and regulations governing CICs are in a constant state of flux, this requires input from a tax attorney who is highly knowledgeable in this complex field.
Cantley Dietrich is recognized as one of the world’s foremost experts in captive insurance compliance matters. If you have questions regarding the operations of your captive insurance company, are a concerned advisor, or have concerns about any other transaction you have entered into, we assist our clients in ensuring they’re operating well within the constraints of governing laws. Contact us today to learn more or to schedule a consultation.
For purposes of complex estate planning and wealth preservation, a 1031 tax-deferred exchange can provide an effective means of deferring the recognition of — and, hence, the tax liability for — capital gains on the sale of property held for income or investment. The structure of a tax-deferred exchange makes it uniquely useful in estate planning, particularly in light of the increased estate tax exemption created by the Tax Cuts and Jobs Act of 2017. When a tax-deferred exchange is structured correctly, you may be able to successfully defer capital gains tax liability indefinitely and potentially eliminate it.
How Do 1031 Tax-Deferred Exchanges Work?Section 1031 establishes the basis for a tax-deferred property exchange. Upon the sale of real property held for income or investment, you must immediately reinvest your gains into another property of like kind, which must be of equal or greater value than that of the relinquished property. The parameters of this program require that you never take possession of the gains — otherwise you become liable for taxes. To facilitate this aspect of the transaction, you must have the sale proceeds deposited directly into an IRS-approved safe harbor. This can be a qualified intermediary (QI), a qualified escrow account or some types of trusts.
How 1031 Exchanges Can Benefit Estate PlanningYou can legally continue to defer the recognition of capital gains indefinitely this way, either by holding the exchanged property or making subsequent exchange transactions. Should you elect to pass a 1031 exchange property to an heir or designee upon your death, they receive the property at stepped-up basis value with no recognition of appreciation. In other words, they will not be subject to capital gains tax upon the sale of said property. Your tax attorney can advise you as to how any tax liability may affect your heirs, but with the increased estate tax exemption included in the Tax Cuts and Jobs Act, the exemption for a single person is $11 million, and for a married couple, $22 million.
When Should You Consider a 1031 Exchange?If you have unused capital in an income or investment property, consult your tax attorney or investment advisor about the potential benefits of a selling the property in a 1031 exchange transaction. Although this strategy is not appropriate for everyone, your estate planning lawyer can help you explore the potential of how an exchange could benefit you. It is important to note that the 2017 Tax Cuts and Jobs Act made several significant changes to Section 1031. Most notably, personal property is no longer eligible for deferral. In addition, licenses, franchise agreements, distribution rights, antiques, artwork and collectible items are now exempt also. However, the Act did implement a new, short-term deferred exchange program known as Qualified Opportunity Fund (QOF) investing. QOF funds offer several substantial benefits in terms of reducing and potentially eliminating capital gains tax liability on certain types of investments. The program ends soon, so it may be worth having a conversation with a tax attorney ASAP. To determine whether a 1031 or another type of tax-deferred property exchange might be appropriate in the context of your estate plan, contact one of the tax attorneys of Cantley Dietrich today.
As a business owner, you understand the importance of expert legal representation for your company, particularly as it concerns taxation and compliance. But do you take the same level of care with your personal financial matters? As complex as corporate taxation issues can be, business owners and highly compensated individuals face their own risks and liability issues. For that reason, you want a personal tax attorney who can capably deliver the diverse suite of services you need. Finding a lawyer with a solid grasp on laws and issues regarding taxation is imperative. However, you must ensure that your tax attorney is truly committed to getting and keeping you compliant with the IRS and applicable state taxation entities.
In-Depth Knowledge of Complex Subject MatterWith somewhere in the range of 7.7 million words of tax law and approximately 60,000 pages of case law related to tax matters, the complexity of the federal tax regulations alone is mind-boggling. Despite this overwhelming level of complexity, business owners look to their tax lawyer to know and understand the laws and regulations as they apply to their situation. In addition, lawyers must have an equally strong grasp on state-specific taxation matters.
An Up-to-Date Handle on Recent Tax ChangesThe federal tax code changes every year in dozens (sometimes hundreds) of ways. Some of these changes are high-profile and substantive. However, others are more subtle and unheralded — but critical to understand, nevertheless. Business owners need their tax attorney to be aware of every change and update, no matter how inconsequential they may seem. Otherwise, you won’t be able to adequately plan for the future. You could miss out on tax savings to which you’re entitled, or worse, find yourself in trouble with the IRS, facing penalties, interest and even the potential for legal action.
Commitment to ComplianceIn the process of tax planning, complex estate planning, asset protection and related matters, compliance is non-negotiable. Failing to remain in compliance with federal and state taxation laws and regulations inevitably leads to both financial and legal liability. Non-compliance triggers audits, fines, compounding interest and the potential for criminal prosecution, not to mention the time required to answer to the IRS. Business owners need a tax attorney who is committed to keeping them compliant. The highly experienced team at Cantley Dietrich assists business owners and highly compensated individuals with tax-related matters, including tax planning and estate planning. Our focus on asset protection assists our clients in minimizing their tax liability within the confines of applicable laws and regulations. If you are a business owner, particularly a small to medium-sized, closely held business, you need a tax lawyer who understands the unique challenges you face on a personal level. Contact one of our offices today to schedule your personal consultation with one of our knowledgeable, experienced tax attorneys.
If you have business partners, planning for business continuity is essential to ensure that operations continue uninterrupted, should something unexpected happen to one of the partners. A business buy-sell agreement is one way to accomplish this imperative, especially if the company is closely held. The reasons you should plan for such a contingency are logical and sound. However, if you have not implemented a continuity plan, negotiating the terms under which partners may exercise their rights to buy out one another can become a source of tension. Using the services of an asset- and tax-planning lawyer can ease those tensions and help business partners achieve a meeting of the minds.
Why Businesses Need Buy-Sell Agreements in PlacePlanning for unexpected events helps keep your business running smoothly, no matter what happens. Death or incapacitation of a partner is only one of the potential issues that could arise and derail your operations. A contentious divorce could cause problems, especially if the spouse attempts to legally obtain a partner’s assets. Legal action against a partner could also put that individual’s ownership share at risk of outside interference. Personal creditors and even the IRS could introduce complications that put you and other partners legally and financially at risk. With a buy-sell agreement in place, any such occurrences, known as triggering events, give the other partner(s) the right to buy out the beleaguered partner’s ownership interest. Consequently, the business is taken out of harm’s way, maintaining continuity.
Understanding Buy-Sell AgreementsBuy-sell agreements are essentially a type of legal contract that defines the terms under which one partner’s business interest can be — or must be — purchased by other partner(s). In many cases, business owners struggle to determine how a given partner’s ownership share will be valued at the time a buyout becomes reality. Other key details that should be included are specifics about triggering events, how much (if any) input from heirs and designees will be involved and whether the buyout will be perfected by the remaining partners or by the entity itself. Once the business owners have agreed on the terms of the contract, however, each partner must ensure that they have the financial capacity to fulfill their obligations, should a triggering event take place — often this can be accomplished with insurance or other financial products. Financial capacity of the partners is critical when more than two partners are involved.
Implementing Buy-Sell AgreementsIf you do business with one or more partners who are actively involved in the daily operations and decision-making of the company, you need to have contingencies in place for unexpected events. If you have not implemented a succession or business continuity plan, talking to a tax attorney is imperative. At Cantley Dietrich, we specialize in helping closely held business owners protect what they have worked so hard to build. Our team provides assistance with income tax planning, complex estate planning and asset protection. Contact us today to learn more about buy-sell agreements, succession planning and business continuity.
Most high-net-worth people recognize the importance of estate planning. However, many more business owners and highly compensated individuals don’t have the time or in-depth knowledge to undertake this complex process. Worse, long hours and weighty responsibilities may tempt some into putting off what they know they should do, but often can’t find the time to get started. Understanding the basic principles of estate planning can help clear up some of the mystery and provide the necessary impetus to consult with an estate and tax-planning attorney.
Why You Need Estate PlanningYou have worked your entire life toward what you have today, and it is important that your hard-earned assets become your legacy and a testament to your efforts. It is also important that you preserve as much of your wealth as possible to transfer to your heirs or to causes that matter to you. No matter how young and vibrant you may be today, life can change in an instant. You simply cannot risk having your assets eaten up by probate fees and unnecessary tax liabilities. You also do not want to risk having what’s left of your assets go somewhere you never intended. Aside from the disposition of your estate upon your passing, you need a comprehensive plan in place in the event that you become incapacitated or otherwise unable to make your own financial decisions.
The First Steps of Estate PlanningOne of the most challenging parts of developing an estate plan is knowing where to start. Estate planning lawyers begin by helping their clients quantify their assets and determine their goals for the disposition of those assets, both during their lives and after they end. Assets to be evaluated might include property, stocks, bonds, investment accounts, retirement accounts, insurance policies, business interests and personal property such as art or jewelry. Disposition of assets could include establishing charitable trusts or gifts, setting up secure legal vehicles to provide for the needs of individual beneficiaries, transferring real property ownership, planning for succession of a business and bequeathing specific items of personal property to specific heirs.
Creating an Estate & Wealth Preservation PlanOnce you have determined what you have and what you hope to do with it during and after your lifetime, your estate planning attorney can explain any potential threats to your accumulated wealth. These might include probate fees, estate and inheritance taxes and transfer taxes. These and other liabilities have the potential to significantly erode your assets, unless you take the proper steps to protect them legally. Using wills, trusts and other safe, legal strategies, a complex estate planning lawyer can help you establish a comprehensive plan. This may involve powers of attorney, choosing an executor for your estate and selecting trustees as appropriate for your situation. Your attorney can also assist you in setting up contingency plans in the event of your incapacitation, such as strategies to care for minor children and continuing your business operations. Cantley Dietrich, a national boutique law firm, assists business owners and high-net-worth individuals with tax planning and compliance as well as asset protection. Contact us today to speak to one of our highly qualified tax advisors to learn more about how we can assist you with complex estate planning.
Professor Beckett Cantley, JD, LLM, senior partner at Cantley Dietrich, P.C., has been acknowledged by the Social Sciences Research Network (SSRN) as being among the top 10% of authors on SSRN, based on all-time downloads. Prof. Cantley is an internationally recognized expert in administrative tax, insurance and financial matters, as they relate to the law. As a subject matter expert and prolific author, Prof. Cantley regularly publishes on these and related topics.
What is the Social Sciences Research Network (SSRN)?SSRN is an online data library of scholarly research, specializing in social sciences, humanities, economics, corporate governance and the law. Partnering with almost 2,000 scholarly journals, SSRN provides download access to papers from researchers and authors that have appeared — or will soon appear — in a published journal. By agreement with their journal partners, SSRN provides the majority of these works at no cost to the user.
Professor Cantley’s Work on SSRNTo date, Prof. Cantley has published 24 scholarly papers on SSRN. These works have been included for publication by renowned scholarly journals that include:
- The Houston Business and Tax Law Journal
- The Brigham Young University International Law & Management Review
- The U.C. Davis Business Law Journal
- The Hastings West-Northwest Journal of Environmental Law & Policy
- The Journal of Transnational Law & Policy
- The Fordham Journal of Corporate and Financial Law
- The Oregon Review of International Law
- The South Carolina Journal of International Law & Business
- Using conservation easements in lieu of eminent domain action
- The legality of governmental seizure of unpatented mining claims
- Capital control efforts through tax enforcement, gold regulation and retirement reform
- The U.S. attack on the sovereignty of Swiss banks
Getting to Know Prof. Beckett CantleyBeckett Cantley obtained his undergraduate degree from the University of California, Berkeley. He earned his J.D. from the Southwestern University School of Law and his LLM (taxation) at the University of Florida. Currently, Prof. Cantley is an associate professor of law at Atlanta’s John Marshall Law School and an adjunct professor at Northeastern University, where he teaches International Taxation as a part of the school’s master’s in taxation degree program. Prof. Cantley publishes multiple white papers, journal articles and scholarly papers each year. He is regularly invited to present at legal conferences around the world, addressing topics related to captive insurance, organizational risk management and international taxation issues. Prof. Cantley counsels clients that include law firms, CPA firms and financial planning firms, assisting them with individual, family, business owner and business entity matters relating to taxation, captive insurance companies, trusts, estates, corporate entity structures, probate and international business transactions. Contact the Salt Lake City location of Cantley Dietrich today to schedule a consultation.
When setting up the complex structure of an estate plan, choosing a trustee, executor and other fiduciaries can pose a daunting challenge. Working closely with a tax and estate-planning lawyer can help you understand the implications of these decisions, so that you can make informed choices. Although fees are always a consideration, it’s important to understand the types of decisions your fiduciaries will have to make and how you can help ensure that they honor your wishes.
Choosing Trustees in the Estate-Planning ProcessFor each trust you use in your estate plan, you must designate a trustee to handle the duties specific to that trust. Trustees may make decisions about investing the assets of the trust, handling tax preparation and filing, making distributions to beneficiaries, protecting the trust’s assets and overseeing the recordkeeping and other administrative matters. Because trustees carry so much responsibility, choosing the right individual or entity is paramount to the success of your estate plan. You must also designate a successor, should your first choice become unable to fulfill their obligations. Although you may be tempted to designate a trusted friend or family member for this role, discuss your options with your estate-planning attorney to determine the best course of action for your beneficiaries and your goals.
Choosing an Executor or Personal RepresentativeAn executor — sometimes called a personal representative, depending on the state where you live — will be responsible for overseeing the disposition of your estate upon your death. Specifically, an executor handles directions in accordance with your will. This may involve the distribution of assets detailed in your will, reconciling any debts of the estate, filing final tax documents, etc. To accomplish this goal, your personal representative may work closely with other members of your team, including your CPA, attorney and trusted advisors. Although you can choose a close friend or family member to act in this capacity, most estate-planning attorneys recommend designating a professional fiduciary. This helps remove pressure from family members as they cope with an already challenging time in their lives. It can also help prevent hard feelings and disputes among your heirs and designees.
Other Estate-Planning FiduciariesIn addition to trustees and a personal representative or executor, you may also have to designate other individuals or entities in a fiduciary role. For example, if you have minor children, you may want to designate a guardian in the event that you (and the child’s co-parent, if applicable) can no longer fulfill those duties. You may also want to name agents for handling health care and financial decisions via a power of attorney. Working with a tax and estate-planning attorney can help ensure that you have the correct structure and documentation in place. Reviewing your estate plan regularly will also help ensure that, should circumstances change, you keep your named representatives and agents closely aligned with your objectives. At Cantley Dietrich, we assist business owners and highly compensated individuals with asset protection, tax planning and complex estate planning. Our knowledgeable team will help ensure that you designate the best possible trustee, executor and other fiduciaries as appropriate. Contact us today to schedule your personal consultation with one of our experienced estate-planning lawyers.
When you own a closely held business, continuity and succession planning is critical for protecting the value you have built in your company. In fact, this consideration is an important component of comprehensive asset protection and estate planning. Have you considered what would happen if you died suddenly or became incapacitated and unable to continue the day-to-day tasks of running your business? Although this is a topic that few business owners want to consider, planning for the worst-case scenario is critical, if you hope to preserve as much of your accumulated assets as possible. And that includes the business you have worked so hard to build.