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Tax, Trust and Estate News

Avoiding the Most Common Missteps Retiring Business Owners Make

Posted in Business, Succession Planning

The way in which business owners plan their retirement is nearly as important as the strategies they used when they first launched or took over their business. Few business owners want to see their companies dissolved, but inadequate retirement planning can lead to insolvency, infighting between heirs and higher taxes.

These scenarios typically occur when business owners fail to pay enough attention to succession and tax issues, and there are several situations retiring owners should consider prior to stepping down from their company.

First, owners should ensure their beneficiaries are equipped to handle every facet of a company, according to the Wall Street Journal. Too often, small business owners oversee all business operations personally, ranging from marketing and advertising to accounting and tax preparation. Failing to prepare beneficiaries for decision-making roles and set clear guidelines for who will manage which divisions can lead to infighting and poor business decisions made by unqualified individuals.

Another common, and costly, mistake is failing to account for changes in a business’s valuation when transferring a company. The value of a business can appreciate by millions of dollars over a short period, and procrastinating when it comes to transferring assets or taking advantage of the benefits and protections under trust law will result in a sizable increase in the amount of taxes owners will pay when they eventually hand over the reins. Business owners may benefit financially from developing a clear-cut succession plan years before they retire and researching several different trust options to reduce their tax liability, the Journal reports.

In addition, failing to frequently conduct valuations can lead to last-minute tax and retirement planning surprises for owners who may have over- or undervalued their companies. For both succession and estate planning purposes, securing an accurate appraisal and valuation is crucial.

Procrastination on Estate Planning Can Land A Small Business in Probate Court

Posted in Business, Estate Planning, Estates

Many business owners hope that the companies they have built will outlive them and help build a family legacy. Too often, however, business owners procrastinate when it comes: (i) to estate planning, (ii) to taking advantage of gift tax exemptions and (iii) to utilizing trusts – all strategies that can help keep a company out of probate court.

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Jointly Held Powers of Appointment and Distribution Committees: Has Anything Changed?

Posted in Estates, Trusts

Jointly held powers of appointment over trust property are rarely seen today because of the complexity associated with their tax treatment. By way of background, there are two types of powers of appointment.  The first is a general power of appointment (“GPA”) which permits the holder to appoint or direct the distribution of funds to anyone, including the holder, his or her creditors, his or her estate, or creditors of his or her estate. The second type is a special or limited power of appointment (“LPA”) which restricts the holder’s ability to appoint or transfer. An LPA is anything that does not qualify as a GPA.

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IRS Held to Three-Year Timeline to Audit Tax Shelters

Posted in Audits, IRS, Taxes

The Supreme Court recently ruled the Internal Revenue Service is required to audit tax shelters within a three-year period, after which the statute of limitations will go into effect, despite the agency’s protests.

The Court ruled in favor of Home Concrete and Supply LLC after the IRS took roughly six years to launch an audit against the company for a Son of Boss tax shelter.

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‘Willful Tax Evasion’ Case Takes Personal Spending Into Account

Posted in IRS, Tax Evasion, Taxes

The U.S Court of Appeals for the Third Circuit upheld previous court rulings that allow judges to take a defendant’s personal spending habits and lifestyle into account when presiding over cases of willful tax evasion.

In July 2010, James and Theresa DeMuro, who owned and managed engineering firm TAD Associates LLC, were each indicted on one count of conspiracy to defraud the United States, and 21 counts of willfully failing to account for and turn over employment taxes, according to the New Jersey Law Journal. The couple received repeated warnings from the IRS between 2002 and 2008 that they may be held personally liable under tax law for the $546,242 they withheld from employee paychecks for Social Security, Medicaid and income taxes, but never turned over to the government.

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Accounting for Personal Changes During Estate Planning

Posted in Estate Planning, Estates

Business owners who drafted their estate plans months ago to prepare for the estate and tax law changes that will take effect in 2013 may have adopted a “set it and forget it” mentality. However, one of the most significant and potentially harmful results of filing away an estate plan too early is failing to account for personal or company changes that may occur in 2012.

Any number of financial circumstances that may occur can derail an estate plan if they are not addressed before the year’s end, according to the Columbia Business Times. The most immediate changes involve births, deaths, marriages and divorces that have occurred or are likely to occur over the course of the year. This may prompt changes in succession plans and business trust arrangements.

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Taxpayer Wins Court Approval of Defined Value Gift Clause

Posted in Estate Tax, Gift Tax, Taxable Gift, Taxes

Perhaps no recent taxpayer victory is more important to estate and gift tax planning than the case of Wandry v. Commissioner, T.C. Memo 2012-88.  The Court in Wandry held that a taxpayer may use a defined value gift clause (“DVGC”) to make a gift expressed in terms of a dollar figure rather than as a specified number of units of property (e.g., $10,000 of XYZ stock).  A DVGC protects a taxpayer against an increase in estate or gift tax as the result of a tax audit.

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Too Few Small Businesses Are Implementing Succession Plans

Posted in Business, Business Tax, Succession Planning, Taxes

Despite scheduled changes to estate and tax law in 2013, new data shows that not enough small businesses are enacting succession planning strategies and may be putting their companies in danger.

Small companies and family-owned businesses make up between 80 and 90 percent of companies in the United States, and employ 62 percent of the workforce. In addition, small companies fuel roughly 64 percent of the country’s gross domestic product. However, statistics from the Family Business Institute reveal only 30 percent of family businesses survive into the second generation, and only 12 percent are still viable by the third, as a result of failed succession planning.

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Estate Tax Changes in 2013 Spark More Concise Business Succession Planning

Posted in Business, Estate Tax, Gift Tax, Succession Planning, Taxes, Wealth Preservation

Uncertainty surrounding possible changes to estate and gift tax law in 2013 is prompting many business owners to reevaluate their succession strategies.  Essentially, business owners are considering trying to maximize the value of their gifting now, rather than run the risk that taxes on such transfers will be higher in 2013.

The current $5.12 million gift tax exemption will expire at the end of the year and revert to $1 million in 2013, giving business owners a small time frame in which to pass on assets that are expected to appreciate in value before the changes go into effect. In addition, the 35 percent tax rate attached to federal estate, gift and generation-skipping taxes is expected to rise to the top rate of 55 percent.

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Taxation of Earn Out Payments

Posted in Business, Sales Tax, Taxes

A seller of a business should consider the impact that a contingent sales price will have upon the amount to be realized net of tax.  A contingent sales price is adjusted by reference to performance milestones and is taxed as an installment sale.  The adjustments may be positive or negative, depending upon whether there is a maximum or minimum sales price, not to mention the other milestones that cause adjustments.  What is often missed is the impact that these variations have upon the timing and recognition of income.

Negotiations over the sales price of a business are often difficult, because there is always risk that the enterprise will not perform after the sale as it has in the past.   In the context of a typical, closely-held business, the proceeds of sale represent a significant portion of the owner’s retirement fund and the owner does not want to sell too cheaply. The buyer, on the other hand, is concerned that the best days of the target business are behind it, and that he or she is overpaying.  A contingent sales price is one means of bridging the gap in price between the positions of buyer and seller.

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