Asset Protection Concerns for Hedge Fund Managers

We are currently in an economy where people are running scared and are uncertain. I also think their is a jaded perception where we never give thanks or gratitude for what we have and our fear and panic is all about loss of greed which is not useful. This type of environment leads people to always be dissatisfied with services and investments and many will go to the 12 person lotto (jury) via a lawsuit before you know it.

If anyone thinks I’m speculating just go to this website and review some of the ridiculous lawsuits and you’ll know we have become a country of whiners who expect to get paid from someone else based on our mistakes. Every month I go here because unlike much of the legal profession I’m for reducing lawsuit abuse Faces of Lawsuit Abuse.

Since my legal work is more about wealth creation or transfer than wealth deletion, we speak with many of the top financial firms and hedge fund managers. I have found in speaking to these financial professionals that many are concerned with being a victim to either a baseless lawsuit or one that could have been settled between the individuals. In times like this you can never satisfy investors when the market goes down or the investment does not work out as expected. It is difficult to perform your profession while a huge black cloud hangs overhead or you try to sleep after an investment tanks and you know the clients will be calling and accusing you of their financial demise as if you personally made the investment go down.

This is when a high quality and legitimate asset protection plan should be integrated into your overall risk management and personal estate/succession plan. All financial planners who advice clients on risk management owe it to their clients to do what they say and be a product of the product by having a proper estate and asset protection plan.

For clarification, asset protection is the use of risk management tools and legal strategies to preserve a person’s wealth so that it is not unfairly confiscated from them in a court proceeding. Because of the litigation lottery where predators go to the 12 person lotto (jury) and other fear and societal norms of solving problems with large pay days in court we see a rise in the abuse of the system and whether you win or not you’re a loser because you’ve had to pay to defend yourself at a cost of time, money and personal unrest.

A recent study of hedge fund professionals revealed that 39.8 percent had been involved in unjust lawsuits or divorce proceedings and 83.3 percent of hedge fund managers had a concern of their own personal wealth derailment through court proceedings. It should be said that it would be very difficult to get a jury of 12 people in this economy that would feel anything but contempt for a hedge fund manager or other wealthy person since they appear filthy rich and easily able to absorb the damages they caused to the poor person who is less fortunate. The case would ready like the quintessential “David meets Goliath” in the eyes of the jury since they are usually comprised of the folks who either don’t work or hate work so they are getting paid to be there by their company through a trial.

The cost of being caught with your pants down can be more than embarrassment and in some instances can wipe 0ut all of the hard work that went into building a business of a family legacy. It most attacks against you it might comes as a Pearl Harbor sneak attack or it might be something you knew was coming but failed to realize the gravity and that someone who thinks you’ve wronged them wants to be vindicated in dollars.

All this can be avoided and what we do every day is help folks incorporate proper tax and risk management strategies into their business, estate and retirement planning because you often do not get a second chance and by the time the complaint is served, it is too late to consider your options to save what you’ve worked for. I have had many professionals with practices they build up over a 20 year period see the light that it all could be lost if this person was to strike a chord with a group of 12 and take away everything.

I leave you with this thought: If you have assets when might a good time to protect them be?

James Burns, Esq.

The Asset Protection Guy

Obama and The Fate of your Estate

We are getting closer to some permanency in terms of future estate tax. US Congressman Earl Pomeroy (D - SD) has stated that  nearly every family, farmer and small business in America will be exempt from paying any estate tax under a bill passed by the House of Representatives on December 3, 2009.

The Permanent Estate Tax Relief for Families, Farmers, and Small Businesses Act of 2009 (HR 4154), authored by Pomeroy, would make  the 2009 estate tax exemption level of USD $3.5m permanent for an individual ($7m for a married couple) and a maximum tax rate of 45%.  The bill also maintains the “step-up in basis” tax rules, which protect many heirs from paying additional capital gains taxes on appreciated assets they inherit.

The bill was approved by 225 votes to 200, but must be passed by the Senate and signed by President Obama before it can become law.

Without change, the estate tax is scheduled to enter one year of full repeal (no taxes at all) in 2010 followed by a return of the estate tax in 2011 with much lower exemption amount ($1,000,000m per person or $2,000,000 for a married couple) and a much higher maximum tax rate (55%)…ouch!!!

The one year of estate tax repeal was also coupled with the enactment of  “carryover basis” tax rules, which will require heirs in 2010 to pay capital gains taxes on inherited assets based on the decedent’s original purchase price.

Under the step-up in basis rules, continued under Pomeroy’s bill, the value of the asset is calculated at the time of the decedent’s death. It is claimed that preserving the step-up in basis rules will protect small businesses from paying an estimated $34,000,000,000 billion in capital gains taxes so who knows if this bill will make it because they could really use this to pay for bailout and TARP funds.

According to the United States Department of Agriculture’s Economic Research Service, the continuation of the$7m exemption for couples will help the vast majority of family farmers, as the average farm household’s net worth ranged from $586,000 for small farms to $2,200,000m for very large farms in 2008.

“By making the 2009 estate tax level permanent, we will make the estate tax go away for 99.75% of all percent of families, farmers, and small businesses in this country,” Pomeroy observed, concluding that: “It’s time to resolve this issue once and for all, and this bill is the fair way to do it.”

We so desperately need to know the rules of the game so we can start playing to win it again and hopefully Senate and the President can get on board and make this happen.

Untaxingly,

James Burns, Esq.

Estate Planning and New Estate Tax Laws

There are three estate tax bills on the table and each one makes  you feel like why bother trying to get wealthy if they are going to take it away when I die.

First there is S.722 which is introduced by Sen. Max Baucus, D-Mont., Chairman of the Senate Finance Committe which proposes a freeze on the estate tax exclusion rate at 2009 ($3.5 million per person). S.722 also provides for reunification of the estate and gift tax credit (use $3.5 towards estate or gift tax) and is indexed for inflation.

Also in the House is H.R. 2032, sponsored by Rep. McDermott, D-Wash., who would like to make the estate tax exemption permanent at $2million per person ($4mil for husband and wife) and index for inflation with progressive estate tax rates of 45% for estates valued between $2 million and $5 million; 50% for estates at $5 million to $10 million; and 55% for estates valued over $10 million…makes you want to go out right now and make over $10 million so you can give 55% back to a government that can’t balance its budget and just put a couple trillion worth of bailout money on the equivalent of a credit card.

Finally, there is Bill H. R. 436 which is introduced by yet another Democrat Rep. Earl Pomeroy, D-N.D. and it would freeze the exclusion at 2009 level (same as above) and reunify the estate and gift tax. However, this nasty pernicious Bill would wack out the opportunities found with Family Limited Parnterships (FLIPs) which is valuation discounts so you can remove highly appreciated assets out of your estate.

You need to contact your representatives and give them a piece of your mind before they rule on some of the most anti-wealth legislation in recent years punishing those who do well and want to leave a legacy for their family or charity.

In order to protect your assets there is a new form of asset protection which is protection against adverse legislation. Every American’s retirement hangs in the balance especially if you have a large IRA that would run afoul of these potential laws.

Untaxingly,

James Burns, Esq.

“Six Secrets of How Wealthy Landowners Protect Themselves From Lawsuits”

I recently read that a lawsuit is filed every 13 minutes of every working day in California and this disease is proliferating throughout the country.

In addition, the toxic substance and mold litigation is on a rise with multi-million dollar verdicts against the landowners.

Over 80 million lawsuits are filed each year in the U.S. Each year trial attorneys create new causes of action aimed at the perceived deep pockets of businesses and individuals. For instance, most people are familiar with the infamous McDonald’s hot coffee case and lately, the mold cases. The San Francisco Chronicle reported on January 22, 2003, that tenants of an apartment building in Hayward are suing the owner for five million dollars for mold related injuries. Mold damage awards in recent cases have been so great that the major property insurance companies are reluctant to write policies in California. It may be a limitation or exclusion in your policy.

Mistake Number One - Not understanding the implications of how you own your real property.

The inexperienced landowner holds all their property as themselves, jointly, or as “joint tenants”. In some cases this can work, but in many cases it can be the cause of an expensive and devastating mistake.

With the proliferation of mold cases mounting, it is a best practice to not hold investment property in your own name because insurance will not cover these claims.

The wealthy and experienced real estate investor knows that they have to use a limited liability entity to hold the property creating a prophylactic between themselves and any liabilities stemming from the property.

Mistake Number Two - Not knowing which estate-planning document to use so you’ll avoid lawsuits

Should I use a revocable or irrevocable trust and should it be domestic or foreign?

A lot of folks don’t know that a revocable trust is only for avoiding probate but offers no creditor protection.

Depending on timing when a person is sued, there are great opportunities with the right irrevocable domestic trust. On the other hand, there are some really great offshore solutions that allow you to participate in the global equity markets and are experiencing much higher gains than the U.S. market.

There is also one super investment tool that is protected and avoids capital gains providing far better returns than mutual funds and independent stock investments.

The experienced real estate investor knows that they should put their home into a plan that will not affect their tax benefits but still render solid protection from a creditor by using the right tool.

Mistake Number Three – Holding Too Much Equity in Your Home.

If a creditor can’t get at cash, they go after real estate. The best place to start is with the roof over your head. Most states are experiencing record appreciation which means there is a lot of equity in many homes.

But how much interest is this equity earning? There are products where you could be investing some of the equity proceeds and earning more than you’re paying for the loan. The wealth minded landowner leverages everything, earns on that leverage and tries to reduce ownership.

Some superior mortgage products are on the market that will keep your equity down while you live in the home. At first blush, it sounds contrary to common thinking. Nonetheless, the wealthy person puts everything at their disposal to work to create extraordinary wealth, even home equity.

Doesn’t it make more sense to tie the money up in investments that earn and keep your home safe?

Mistake Number Four – Not Keeping Adequate Property Insurance

A good insurance policy can provide a solid first line of defense. However, you must be aware of its limitations.

General business insurance policies insure against accidents on the business property such as slip and falls and fire and equipment malfunction. These policies often exclude accidents occurring outside the scope of employment, an intentional act by an owner or employee, contract claims and working at home.

Liability policies for professionals such as doctors, dentists, attorneys, architects, engineers and accountants also have exclusions from coverage such as grossly negligent acts, willful or wanton misconduct, punitive damages and liability related to product liability.

Personal liability insurance policies include auto, homeowners and umbrella coverage. If a plaintiff’s damages exceed your auto policy limits, you will be personally liable for the balance. Homeowner’s insurance policies provide insurance for damage to the residence caused by acts of God, insects and often construction defects. The policies often exclude coverage for any business activities at the home. Umbrella insurance policies are a relatively inexpensive way to supplement auto and homeowners policy limits, but they are not complete. Umbrella policies generally exclude coverage for dangerous sports, dangerous equipment such as guns, trampolines, swimming pools and sometimes lawn mowers, chain saws and power tools. In addition, such policies may exclude dog bites, intentional acts and business activities.

Another problem with relying exclusively on insurance is the risk that your insurance company may not be in business when you file a claim. The Wall Street Journal reported on January 30, 2003, that a rash of insolvencies among insurers is resulting in hundreds of thousands of consumers at risk of not collecting on their claims. The problem is growing as more and more insurance companies are filing for bankruptcy.

While insurance is a good first step, it not always reliable. The experienced real estate investor never relies on one tool but uses all tools in their tool belt to protect themselves.

Mistake Number Five- Not Avoiding Probate

Multiple Probates. If you have real property in multiple states, then you will have to probate the property in each state.  That means attorney fees in each state, potentially larger probate fees in other states, and the administrative burden of multiple state probates. The average is 3% to 8% of the gross estate, if you compound this by five or more states your estate is in trouble.

Along with protective features, a good plan should tie into your estate plan so that you avoid multiple probates. Our office and the tools we use on a daily basis to take care of clients can accomplish this very easily.

Mistake Number Six - Procrastinating

This is likely the biggest and most costly mistake the novice real property investor makes. The wealthy real property investor always takes out time to do proper planning because the alternative could be catastrophic.

If you want to avoid these outcomes, you need to take a little bit of time out of your schedule and plan.

The truth is with proper planning almost anyone can dramatically improve their estate, business and retirement plan.

Due to the complexities of estate preservation planning (“Asset Protection”) and the many changes slated to occur, it’s extremely difficult to explain each application of these strategies here in print.

While one client may be able to benefit from a strategy by using it one way, another client may be able to benefit from a different application of the same strategy. Everyone’s situation is like a snowflake, no two are alike.

If any of these strategies make as much sense to you as they have for America’s wealthiest landowners, then we invite you to contact us for more information on how to do the same.

You can also find out more by reading the “The 3 Secret Pillars of Wealth” which is sold at Amazon, Barnes & Noble, Borders and other fine book stores.

James Burns, Esq.

www.jamesgburns.com

Extension on Offshore Account Disclosure

The US Internal Revenue Service has announced an extension of the deadline for special voluntary disclosures by taxpayers with unreported income from offshore accounts.

The extension, announced by the IRS on September 21, gives taxpayers until October 15, 2009, to make a disclosure.

Under special provisions issued in March, taxpayers with undisclosed offshore accounts originally had until September 23, 2009 to come forward. Those taxpayers who do not voluntarily disclose their hidden accounts by the new deadline face much harsher civil penalties and possible criminal prosecution.

Usually if  the IRS  discovers that a taxpayer has not reported an interest in an offshore account or income on such accounts, the IRS may impose penalties of up to 50% of the balance of each offshore account for each year the account remains undisclosed. The taxpayer will also be liable for additional tax on income earned by the foreign account plus interest on the additional tax. Additional penalties may include a fraud penalty of up to 75% of unpaid taxes and a penalty equal to the greater of $100,000 or 50% of the offshore account balance for willful failure to file a Report of Foreign Bank and Financial Accounts form for each offshore account.

Making a disclosure under this program, the taxpayer will be liable for a reduced single penalty equal to 20% of the amount of the offshore account for the one day in the past six years in which the account had the highest aggregate value. However, this penalty could be reduced to just 5% under certain circumstances.

The IRS warned that it has no intention of extending the deadline and those who do not voluntarily disclose shall face the fullest of the penalties.

If you have an account and haven’t disclosed please contact our office so we can get you compliant and put this behind you as peace of mind is priceless.

Untaxingly,

James Burns, Esq.

“The Sensation with Inflation”

There is a lot of confusion as to where we are headed right now so I thought I would break down the different flations and maybe we can all decide which one is the fit right now.

Inflation is a where your currency buys less due to a rise in the price of goods and services; accordingly, inflation is the erosion in the purchasing power of money. Over time, as the cost of goods and services increase, the value of a dollar is going to fall because a person won’t be able to purchase as much with that dollar as he/she previously could.

What cost $29,900 in 2000 would cost $37031.75 in 2008. Also, if you were to buy exactly the same products in 2008 and 2000, they would cost you $29900 and $24235.11 respectively.

As a harbinger, gold recently rallied above $1,000 an ounce and many experts think that this is partly due to the Fed’s continued money-printing campaign over the past year will cause the dollar to weaken even further than it already has.

That’s putting upward pressure on other commodities. Oil is trading around $71.50 a barrel, an increase of about 20% over the past six months. The prices of sugar and copper have shot up.

Deflation: A decline in price levels caused by a decline in the supply of money or credit. Deflation often includes the side-effect of enlarged unemployment because of the lower demand for goods and services in the financial system.

Stagflation: High inflation and high unemployment occurring simultaneously.

Taxflation: aka bracket creep the gradual movement of income into a higher federal income-tax bracket as a result of wage and income increases intended to help offset inflation. It can also affect the liquidity of an estate by increasing the estate tax burden.

Example – single person with estate worth $5,000,000 and in 2009 that would cost the estate $1,200,000 or represent shrinkage of 24%.

If they pass away in 5 years or 2014- and was growing at 8% per year. The estate will have grown to approximately $7,346,640.38 the federal estate taxes would be $3,893,719 and represent shrinkage of about 53%.

It looks like we have a combination of them all but I would say Taxflation and stagflation are a good fit but it really is anyone’s guess.

It’s A Shame For You Not To Find Money — When These People Do It So Easily

Times are tough and without money it can be a long cold winter until we have economic recovery in this country.

Enter the life Settlement - this is a strategy to take a non-productive or useless insurance policy and turn it into cash today so you can get in on the opportunity that is out there.

WHO BUYS THESE LIFE INSURANCE POLICIES?

Institutions continue to provide the majority of funds to purchase life settlement contracts.  Some more notable players who have participated include Berkshire Hathaway (Warren Buffett’s firm), Citibank, Credit Suisse, Goldman Sachs, Deutsche Bank, and Morgan Stanley.

WHAT KIND OF LIFE INSURANCE POLICIES ARE THE MOST DESIRABLE?

Universal life and term life insurance policies are the most desirable.

Term policies should still be within their conversion period for maximum value.  Whole life policies are also considered.

HOW SMALL CAN THE POLICY AMOUNT BE?

An amount of $250,000 and greater is preferred, however.

WHAT CAN I EXPECT TO RECEIVE FOR MY POLICY?

Life settlement offers have ranged between 10% and 40% of the policy’s face value. Some offers have been less and some higher—always dependent upon the health of the insured and premium costs.

WHO’S ELIGIBLE?

Eligibility is fairly straightforward:

• The insured must be at least 65 years of age (Age 62 if health is significantly impaired).
• The insured is not terminally ill or have a catastrophic illness.

HOW LONG DOES IT TAKE TO COMPLETE A LIFE SETTLEMENT?

It generally takes 6-8 weeks from the time a completed application package is received until funds are wired into the policy owner’s account.

If you would like to have your policy assessed for settlement please contact my office.

Some of the most common reasons for a life settlement are:

• The premium payments have become too costly
• You may no longer require the policy
• You may be considering the surrender of the policy or the policy may be about to lapse
• There may be a change in your estate planning needs
• You may have a need for liquidity
• You want to give a gift to a family member
• You may need to retire other debt
• You may want to purchase a new less expensive policy
• You may want to generate funds for charitable giving

Common Business Reasons:

• The “Key Man” insurance no longer needed
• The Buy/Sell insurance taken out for the business partners is no longer needed
• Increase liquidity needs for the business
• Eliminate company debt

Untaxingly,

James Burns, Esq.

Consumers Get Insult to Injury in a Worsening Economy

I was paying my T-mobile bill today when I noticed that if I didn’t sign up for electronic billing and kept the hard copies coming in the mail I am now going to be charged $1.50 per month for the luxury of getting a bill sent to me.

As if it wasn’t bad enough, now you have companies trying to stick it to you even for the bills they need to send to you. I’m not a fan of receiving the electronic bills because I receive so many e-mails and a lot of them are junk and might miss the bill or delete it by accident. I’m old school on my billing and want it in hard copy so I can organize it in a file with dates and make sure they get paid.

This is akin to the airline practice of hitting you up extra for a bag. It started out with no more meals. OK we said, we had enough of that cardboard food anyway but it was nice to get it offered or included in the outrageous price for flying. Now they are charging you not just for an additional bag, but every bag you check; even if it is one. We need to rebel Americans and show them we’re not going to take it. Forget sending a tea bag to your public representatives, start sending tea bags to these company CEOs who allow such caustic policies to be deployed that are not consumer friendly.

If we as consumers don’t work together to show them what is unacceptable they will continue to push us down and before you know it they be billing us for our carry on bag and to bring your own meal on the flight and there will be no stop to their adverse creative ideas to bilk you.

Sincerely,

James Burns, Esq.

“THREE WAYS YOU CAN AVOID GOING BROKE IN THE NEW ECONOMY”

The first thing you can do as illustrated in “The 3 Secret Pillars of Wealth” book is take ownership of your monthly expenditures by having a family budget and a family balance sheet you observe with conviction. If you’re desirous of change, you have to do the work since the only place success comes before work is the dictionary.

Number two, if your home payments are too high because you’re job or industry has fallen off, seek a loan workout with your lender or use a law firm to assist you that has a success rate.

Mr. Burns also states that if you are carrying too much bad debt like credit cards and you’re slowing sinking into the quicksand, think about debt settlement or management services that don’t have an upfront cost and can get you from point A to point B in terms of eliminating this debt. While it may have a temporary blemish on your credit score, at least you get back to the surface where you can breathe.

Lastly, if you’re crunched for cash to invest or pay down bills, look if you or your parents have an old universal life or convertible term life insurance policy that has underperformed or is not really needed and consider having it sold in the secondary market as a life settlement.

More power solutions are available right here so stay tuned, get involved and please send in comments so we can save or pick up lives in this down economy. In numbers we are strong.

James Burns, Esq.

UBS Agreement - The End of Secret Swiss Bank Accounts

As we all heard this week UBS entered into a settlement with the U.S. Internal Revenue Service (IRS) was an upsetting blow for banking confidentiality. The issue on everyone’s mind was would UBS be in breach of Swiss banking confidentiality legislation if it were to meet the United States’ demands to hand over the names of 52,000 account holders. The Swiss Bankers Association said it expects the final agreement will be consistent with Swiss law but will it?

A day or two after the settlement it set off a worldwide fire storm to wit, a Swiss banking executive and a lawyer were charged with conspiring to defraud the U.S. and echoed a warning that the IRS is now looking beyond UBS in its international tax enforcement efforts. The banker, is Hansruedi Schumacher, and was a former regional market manager for UBS’s North America international business who later headed UBS’s cross-border business. At some point in 2002, Mr. Schumacher left UBS to conduct private banking with Zurich-based Neue Zuercher Bank, or NZB. Also, Swiss lawyer Matthias Rickenbach of the firm Rickenbach and Partners traveled regularly to the U.S. to conduct banking and investment activities (seminars) with U.S. clients.

Schumacher and Rickenbach supposedly helped their clients obtain offshore credit cards and created sham loan documents and used other nominee tactics. In addition, they purportedly falsified bank documents to generate the appearance that the assets of their U.S. clients belonged to Swiss citizens, and they falsified documents to disguise their U.S. clients’ repatriation of offshore funds as inheritances from foreign citizens; a huge no-no. One of the clients named is Jeffrey Chernick, who pleaded guilty last month to charges of evading taxes on $8 million in assets. See article here:  Jeffrey Chernick

It appears there is a worldwide currency hunt as this set off an inferno as other countries revenue authorities started their hunt for unreported monies. For instance, in the UK the Tax Chamber of the First-tier Tribunal has ordered over 300 banks to give details to the UK tax authority, HM Revenue and Customs (HMRC), about their customers who hold offshore accounts.

HMRC’s launched an amnesty theme recently which is along the lines of the IRS and reportedly netted some 60,000 individuals who were said to have come forward. About GBP400m in additional tax was raised, but a more ambitious revenue target of GBP2bn has been set.

In Ireland all is not shamrocks and pots of gold as the Revenue Commission set its sights on any undisclosed assets and. The Revenue Commission stated in a brief that taxpayers have until September 1, 2009, to deliver a Notice of Disclosure to the Revenue regarding trusts and offshore structures. Any follow-up disclosure and payment of tax due must then be made by October 31, 2009.

Then in Italy, in a television interview, the General Manager of Italy’s Revenue Agency, Attilio Befera, disclosed that there were 170,000 cases singled out within the Agency’s investigation of undeclared funds held abroad by Italians. In particular, he mentioned that the Agency has obtained 500 foreign bank account holder names from a Swiss lawyer recently arrested in Milan.

What is going on and can we invest outside of the United States without feeling like we are up to something illegal? Will they make investing abroad illegal or create so much difficulty it is not worth it, only time will tell but it feels like the land of the free is not free unless you flee.

Under IRC Section 7623 or the proverbial “Whistleblower Rewards” code, we are wondering if UBS qualifies not, despite involuntary disclosure of accounts. This code rewards 30% of the delinquent tax and if the 4,450 accounts are estimated to be worth $15 billion, then UBS could get $450 million approximately which would offset the settlement payment they have to make. What if someone made a career as a whistleblower? Wow, a couple $100 million for being the wealthiest rat on the planet.

Let us know how you feel about this assault on foreign accounts and if you have one and need assistance on making it compliant please contact my offices.

James Burns, Esq.