Don't Own Your Corporation

Small Business Corporations. Many small businesses are run through corporations. You have heard the radio ads that you must protect your home and banking accounts from business liabilities by running your business though a corporation.

Stock Not Protected. But what protects your shares in your corporation that owns your business? In contrast to a Virginia or Delaware LLC, a court may order the seizure and sale of your corporate shares to pay judgments against you.

Peter Plumber. Peter Plumber has a successful plumbing company (Peter Plumber, Inc.) with 20 employees, ten trucks and $3,000,000 a year in sales. One night he has a terrible auto accident while he was driving home from work. He ends up losing the lawsuit over the accident and a judgment for $5,000,000 is entered against him personally. His auto insurance only pays $500,000 of the judgment. The trial lawyer for the accident victim comes after Peter for the remaining $4,500,000. The trial lawyer obtains a court order for the sale of all the stock Peter owns in Peter Plumber, Inc., in addition to losing most of his assets.

Just Another Asset. Whether in Microsoft® or shares in Peter Plumber, Inc., corporate stock is treated as an asset just like a bank account or real estate and can be sold on the courthouse steps. In my experience, most business owners do not know this.

What to do. To protect your shares in your corporation, here are some of the techniques. Each of them has advantages and disadvantages:
1. Buy Sell. Have a buy sell agreement that mandates the sale of your stock in the event it is taken as a result of a court judgment.
2. Use an LLC. Consider setting up your business as a Limited Liability Company (LLC) in a state where LLC interests are protected. Consider making a corporate tax election for the LLC. More on this later.
3. Convert. If you have a corporation, review with your advisors the feasibility of converting to an LLC. Be aware that the IRS considers such conversions a sale and do not do this if you have to pay a lot of taxes.
4. Segregate Assets. Have all of the assets that you use in the business owned by separate LLCs and rent those assets from these LLCs. For example, Peter Plumbing, Inc. does not own the vehicles or its warehouse. The vehicles are owned by a separate LLC as is the warehouse.
5. Have LLCs own your Shares. If you have a C Corporation that pays corporate taxes, have your shares owned by an LLC that is protected. If you have an S Corporation that pays no corporate taxes, there is a special type of LLC to use. More on this later.

You Used Your Name: LLC Mistake Number Three

Dr. Fred F. Funkel LLC. Fred F. Funkel sets up his own LLC to own his money market funds, stocks, bonds and savings accounts. Fred does this because he wants to protect these assets from a future creditor. Fred is a medical doctor who delivers babies and therefore is at high risk for medical malpractice claims. Fred proudly names his LLC the Dr. Fred F. Funkel LLC. Fred sets it up in a state where the state law is not clear as to whether a creditor is able to obtain a court order requiring that Fred’s LLC membership interest be sold on the courthouse steps. (See “You Choose the Wrong State: LLC Mistake Number Two” blog)

Investigator Finds Funkel LLC. A couple lost their baby while Dr. Fred F. Funkel was the attending physician. There is no clear medical reason as to cause of death and Fred does not think he is at fault. The grieving couple consults Tom Triallawyer to see if they should sue Fred. Tom does an asset search and does not find that Fred personally has much liquid assets. (Fred’s liquid assets are held by Fred’s LLC). Tom also does an internet and name search and finds that Fred owns the Dr. Fred F. Funkel LLC. Tom retains an investigator who finds out that the Dr. Fred F. Funkel LLC has about $2,000,000 of liquid assets. Tom looks at recent judgments in his state and finds that a botched baby delivery is getting an average of $5,000,000 in jury awards. Tom decides to take the case of the couple on a contingency fee basis-that is the couple pays the expenses of the lawsuit, but no legal fees unless Tom gets a settlement or wins the case.

Tom Files Against Fred. Tom Triallawyer files the medical malpractice case against Fred. Fred consults Susan Sharp, his own personal lawyer, separate from the lawyer appointed by Fred’s malpractice insurance carrier.

My LLC Was Supposed to PROTECT ME! “I thought my LLC would stop people from suing me”, Fred painfully complains to Susan. Susan sees Fred is in pain and doesn’t say “I told you that I should set up your LLC because of all of the mistakes you could make”. Instead, Susan says in a soft voice: “The investigator’s job was a lot easier finding you because you used your own name as the name of the LLC. I recommend that we change the name of the LLC in the future to make it harder to find your assets.”

My LLC is Secret. Fred replies: “Well, I will just won’t tell them what my LLC owns.” Susan: “At a point in the litigation, the other side will require a statement of all of your assets and at that point, the court can force you to list the value of all of your assets in your LLC. This can happen in any lawsuit, whether or not they know that you have an LLC.”

My Assets Are Safe in My LLC. Fred: “At least I have the LLC. My assets in my LLC should be safe even if I lose the lawsuit”. Susan: “Unfortunately, the law of Maryland is not clear on this point. In general, a state court judge has the power to enforce judgments and this may include the authority to reach the assts in your LLC. For example, if Tom Triallawyer obtains a judgment for $5,000,000 against you in the existing litigation and your insurance carrier pays $3,000,000 of the judgment, the remaining $2,000,000 could be collected against you. After entry of the judgment, Tom Triallawyer will schedule a deposition of you to force you under oath to disclose everything you own, including the assets of your LLC. If you have a bank account in your name, then Tom Triallawyer will request that the Judge place a lien on your bank account, remove the funds from your bank account and deliver the resulting funds to Tom Triallawyer. The general power of a judge may authorize the court to order that your membership interests in your LLC be sold to the highest bidder in a court supervised auction sale. Tom Triallawyer buys your membership interests at a low price at the sale, takes over your LLC, liquidates the LLC, retains a third of the proceeds and disperses the remainder to his clients.

Fix My LLC Now! Fred: “What can I do to fix this? Could I move the LLC to another state?”

Too Late for Now. Susan: "If you had formed the LLC in Virginia, Delaware and several other states, we would have a strong argument that the judge does not have the power under those laws to have your LLC sold. However, since you have been sued, we can not now change the state of your LLC because this could be held by the court to be an action that hinders or delays an existing creditor. This is called a fraudulent conveyance and may be grounds to set aside the move of the LLC from Maryland to Virginia.” (Susan says to herself that when Fred consulted her about setting up an LLC she told Fred about this and Fred decided to save some legal fees and set up the LLC himself.) Susan gently adds: “We need to examine a strategy for the future after this awful time is past you.”

Fred Loses $1,000,000 from his LLC. In the settlement of the case, Fred is forced to pay $1,000,000 out of his LLC because of the possibility that Triallawyer could penetrate the LLC. If Triallawyer didn’t know that Fred had an LLC with $2,000,000, Triallawyer may not have taken the case. If the LLC had been stronger, Triallawyer probably would have settled for just a payment from the insurance company without a significant contribution from Fred.

Don’t Use Your Name. Fred let his pride make the mistake of using his own name in his LLC that was intended, but failed, to provide protection of his cash and securities assets. Fred could have named it the FFF LLC, or Chesapeake Three LLC or some other name, not used or trademarked by someone else, which does not so quickly lead the asset investigator directly to Fred’s doorstep.

When to Use Your Name. This is different if Fred conducts his medical practice in an LLC. In that case, if Fred is promoting his name “Fred Funkel” as a preeminent obstetrician, the name of Fred’s medical practice would be the Dr. Fred Funkel MD LLC. Or, if Fred’s practice uses medically sound natural childbirth techniques, the practice could be the Natural Child Birth Center LLC. You should have a conversation with your advisors as to the best name for your LLC.

Insider Secrets to Maxing Your IRA

Little Used Powerful Tool. This is about a little known planning tool, the Retirement Benefits Trust, which can provide dramatic benefits for generations of your family.

Great Wealth Accumulation. There is a way to create great wealth using IRA (Individual Retirement Account) and other retirement benefit planning. This is basically done by using the tax deferral available from IRAs for multiple generations. It will become much more important because taxes on your earnings and the earnings of your children and grandchildren are going up dramatically in the coming decades. For many, income taxes will take away 50% of your income. Because you can roll over your company retirement plan to an IRA when you retire, your IRA can have millions of dollars. Without proper planning, most of your retirement savings could go to taxes.

Tax Deferral. People use IRAs for postponing paying taxes during their lifetime. What is not well understood is how your IRA can continue to save on taxes even after you’re gone from this Earth (I am not talking about space travel).

Traditional IRA. There are two types of IRAs: Traditional and Roth IRAs. Under the traditional IRA, you are able to deduct the contributions you make to the IRA, there is no tax on gains inside the IRA for qualified contributions and when someone takes the money out of the IRA, the tax must be paid on all distributions at the then current ordinary income tax rate. The owner of the traditional IRA must start taking required minimum distributions from the owner’s IRA April 1 of the year after the owner turns 70 1/2. You must take out each year the required minimum distributions based upon the applicable IRS tables that project how long you will live. If you live as long as the IRS thinks you will live or longer, you may have taken everything out of the IRA.

Roth IRA. For the Roth IRA, you do not get a tax deduction when you make the contribution, you do not pay taxes on the earnings inside the Roth IRA and when someone takes funds out there is no tax on the money put in or on the earnings. The owner does not have to take out minimum distributions during the owner’s lifetime. But after the owner dies, the person inheriting the Roth IRA must take out distributions over their life expectancy under the IRS tables.

Tax Free Growth Does It. The trick is to legally postpone taking distributions as long as possible. That is because you get wealthy by consistently making money over time, reinvesting the earnings, getting a healthy rate of return and not paying taxes on the earnings.

Stretch it Out. The goal, then, is to have the IRA go to the youngest person possible after the owner dies. This does not happen in most cases because people leave the money to their surviving spouse who is usually about the same age (Anna Nicole Smith being the exception) or to children, nieces or nephews who take out the money and spend it. Only a few advisors understand Retirement Benefit Trusts (RBT).

Willy Wise and his Retirement Benefits Trust. Willy Wise wants to provide a legacy for his children, grandchildren and a favorite niece. He can see for that for the next 50 years or so, federal and state governments will be imposing higher and higher tax rates on income. He sets aside a life insurance trust and other assets that provide for all the needs for his wife. He has eight children and grandchildren and his niece. He sets up a “Retirement Benefits Trust” for his eight children, grandchildren and niece during his lifetime. Willy can amend this Retirement Benefits Trust during his lifetime so if Willy Wise III turns into a bum, Willy can cut Willy Wise III out of his RBT. Willy leaves the largest percentages in his RBT to his grandchildren, thereby maximizing the tax deferral and the growth of the assets. Willy does this for both his traditional and Roth IRAs. Willy’s advisors prepare beneficiary designation forms for Willy using the same percentages for his IRAs as is set forth in his RBT. Willy’s IRAs provide for the future education, capital for investments and a sound retirement for his eight descendants and his niece. When Willy dies, his spouse, children and advisors take all the necessary steps for each of the nine subtrusts of the Willy RBT to qualify to be an IRA beneficiary.

Multiple Benefits:

1. Maximum Tax Savings. Each child, grandchild and niece can use their life expectancy to determine minimum distributions. So for ten year old Wonda, with a 100 year life expectancy, Wonda’s trustee would only have to take out 1/100 each year and the remaining amount accumulates tax free.
2. Asset Protection. The assets inside the IRA are protected from the creditors, predators, spouses and relatives of the child, grandchild or niece.
3. Heirs Can’t Blow the Money. The heirs do not have to have the power to take out all of the money and blow it.
4. The Other Guy’s Kids Don’t Get Willy’s Money. Willy’s heirs get the money rather than a second spouse of the surviving spouse or someone else’s children.

Watch for Announcements. There are downsides, details and technicalities that need to be discussed with your advisor. Look for announcements on valuable workshops we will be having on this topic.

The Big IRA Book. This discussion is based upon the Big IRA Book from experts Robert S. Keebler, Cecil D. Smith and Carol H. Gonnella, but none of these individuals are responsible for any of the content of this article.

Circular 230 Disclosure Notice
Pursuant to recently enacted U.S. Treasury Department Regulations, we are now required to advise you that, unless otherwise expressly Indicated, any federal tax advice contained in this document, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed in this document.