Entries Tagged as 'Asset Protection'

Update on Effect of Parental Waivers for Children

Wright Penning and Beamer Woodman v. Kera, LLC and Parental WaiversIn 2008, the Michigan Court of Appeals held that a child’s ability to sue for a personal injury is not impaired despite any pre-injury waivers signed by the child’s parent. The case of Woodman v. Kera, L.L.C., 280 Mich. App. 125 (2008), involved a 5-year-old boy who was injured at an indoor recreation facility. The boy’s father had signed a pre-injury waiver, purporting to hold the recreation facility harmless if any injuries occurred to the child. According to the Court, the waiver could not prevent the child from pursuing a lawsuit against the facility. This conclusion was based on the common law rule that a parent lacks authority to waive, release, or compromise his or her child’s claims merely by virtue of the parental-child relationship. A parent, absent a specific exception created by the Michigan Legislature, cannot authorize an act that is detrimental to the child.

This case, which has far-reaching effects on commercial recreation establishments, churches, and schools, is currently under review by the Michigan Supreme Court. Oral argument on the case was heard by the Supreme Court in October of 2009, and an opinion is expected sometime later this year. It is also possible for the State Legislature to enact an exception to the general rule cited in Woodman, either before or after a decision is reached.

In the meantime, Woodman remains the rule in Michigan, and therefore establishments are best served by acting prudently and maintaining adequate insurance. While it is not recommended to discontinue the use of pre-injury waivers, awareness of the limited protection afforded by the waivers is important. For more information about this matter, please contact us.

How Businesses May Contest Personal Property Tax Classifications - Personal Property Taxes For Business

Personal Property Taxes For Business

There are two (2) types of property taxes in Michigan:

  • taxes applicable to real property
  • taxes applicable to personal property.

Picture“Real property” is land, and includes any buildings that are on the land, things that are permanently attached to the land and things that are permanently attached to the buildings. “Personal property” is anything that is not permanently attached to land or to a building. (Think in terms of machinery used by a business, furniture, equipment, and so on.) The State of Michigan taxes the personal property of businesses, but the personal property of individuals and charitable institutions is not taxed. And, even for businesses, some categories of personal property are exempt from taxation.

Personal property statements (Form L-4175; Michigan Department of Treasury Form 632) are mailed to businesses by the local assessor in January of each year and must be completed and returned by February 20. Although some assessors may ask that the form be returned earlier, they have no statutory authority to do so. Personal property taxes are then assessed for personal property located within the assessor’s jurisdiction as of the preceding December 31 (”tax day.”) If the personal property statement is not returned, the local assessor will estimate the value of the personal property and assess the tax accordingly. In completing the personal property statement, businesses must divide their personal property into specified categories, and then report the true cash value of all personal property in each category. The assessor, however, is not bound by the values or the categories assigned by the business.

PictureTaxpayers should then receive their assessment notice from their local assessor by March 1, but, in any event, by no later than ten (10) days before the March meeting of the local board of review. Any disputes must first be appealed to the local board of review at its March meeting. If not satisfied with that outcome, the taxpayer can file an appeal with the Michigan Tax Tribunal. Typically, that appeal must be filed by no later than May 31 of the assessment year. In some situations, the rules of the State Tax Commission and/or the Michigan Tax Tribunal may allow a direct appeal, without first going to the local board of review.

The Michigan General Property Tax Act requires that personal property be assessed based upon its true cash value. True cash value is presumed to be the usual selling price at private sale at the place where the personal property is located. Assessors are required to consider the advantages and disadvantages of location, along with the existing use of the personal property, in analyzing the values assigned by the taxpayer. The personal property statement (Form L-4175; Michigan Department of Treasury Form 632) requires that all items of personal property be listed by classification, and the responsibility for correct classification rests with the taxpayer. Classification is based on the nature of the property as opposed to how it is actually used by the taxpayer.

Prior to 2006, the net tax paid on personal property classified as “industrial” and on personal property classified as “commercial” was pretty much the same. However, as a result of Public Act 36 of 2007, which became effective on January 1, 2008, the Michigan legislature made personal property classified as “industrial” exempt from 24 mills of school tax, while personal property classified as “commercial” is exempt from just 12 mills of the 24 mill school tax. Stated simply, personal property taxed as “industrial” now receives an average 50% tax break when compared to personal property taxed as “commercial.” As a result, and, given the current economic climate, some assessors can be counted on to scrutinize closely the classifications assigned by taxpayers, looking for justification to re-classify industrial personal property as commercial.

PictureIf you are a business and you haven’t already received your personal property statement, you will. It needs to be completed and in the hands of the local assessor by no later than February 20. (Since February 20 is a Saturday this year, you actually have until Monday, February 22.) You will then receive the notice of your assessment in early March. Examine that notice carefully. If you dispute the classification of property or the assessment, the first step is the timely filing of an appeal with the local board of review. If you don’t file that appeal in a timely fashion, the right to dispute the assessment may be lost. The attorneys at Wright Penning & Beamer are here to help in any way we can.

Dan A. Penning

Classification Matters - Personal Property Taxes

Beginning in 2008, the Michigan state legislature passed a large tax reduction for personal property classified as Industrial Property. As a result, personal property classified as Industrial Property receives an approximate 50% tax reduction when compared to personal property classified as Commercial Property. Thus, some assessing jurisdictions are reviewing the personal property tax reports of taxpaying businesses and are re-classifying tax-favored Industrial Property as Commercial Property on the assessors’ internal records.

Dan A. Penning

Estate Tax Uncertainties

As you probably have heard, the federal estate tax rules changed radically in 2010 and will change radically again in 2011 unless Congress passes new legislation. This article will discuss what some of the changes can mean for you.

First, a little background:
The 2001 Tax Act. In 2001, Congress passed legislation which significantly increased the federal estate tax exemption and lowered tax rates. Among other things, the 2001 Act provided:

  • In 2009, the estate tax exemption increased to $3.5 million per decedent, with a reduced 45% tax rate on any excess assets.
  • In 2010, the estate tax is repealed for one year. In addition, the step-up in basis (which gave a “fresh-start” fair market basis for most assets of a decedent) is replaced with a more complex adjusted carry-over basis system.
  • In 2011, the estate tax will be reinstated. However, the tax exemption will drop down to $1 million and the tax rate will jump up to 55%. In addition, carry-over basis will disappear and the step-up in basis will once again be the law of the land.

What Happened in 2009? Estate planners universally expected Congress to extend the favorable 2009 estate tax rules through 2010. However, unexpectedly in December, the House failed to enact a one-year extension and instead sent the Senate a bill to make the 2009 rules permanent. Because the Senate was focused on health care and there was broad disagreement in the Senate on what to do with estate taxes, it did nothing. Thus, effective January 1, 2010, there is no federal estate tax and the adjusted carry-over basis rules apply.

Estate Planning Is Now in Chaos. Congress’s failure to act in 2009 and the possibility that it will not act this year make for an unpredictable planning environment in which any number of radically different changes may occur.

Here are some of the possibilities:
Congress may do nothing this year. While you probably will not die in 2010, you still need to consider planning for that possibility because not doing so could be disastrous. For example:

  • Trust language that allocates your estate tax exemption to a “family trust” could disinherit or place undesirable restrictions on a surviving spouse or other heirs.
  • Conflicts could arise on asset basis issues.
  • Passing assets directly to your spouse may result in higher estate taxes after 2010.
  • Congress may retroactively adopt legislation to carry the 2009 rules over 2010. If a retroactive law is adopted, it will most likely be challenged as unconstitutional and it could take years for the Supreme Court to rule on the issue. Until such a ruling, uncertainty will prevail. In any event, your estate plan should contemplate your dying both before or after a potential retroactive enactment.

Congress may act to address the tax issues, in which case it may:

  • Adopt a permanent estate tax exemption. If so, most commentators anticipate the tax exemption will fall between $2-5 million and tax rates will range from 35% to 45%.
  • Adopt a temporary estate tax exemption.

What Should You Do? Uncertainty makes it difficult to plan, but waiting to see what happens next is not a good idea. The earlier you can implement flexible tax and estate planning to respond to these changes the better. Please call us to schedule a time to go over your current estate plan and determine what changes need to be made to minimize taxes and to reduce the possibility of future family conflicts in these chaotic times.

Dan A. Penning

Protecting Your Business and Personal Assets in a Difficult Economy

In today’s difficult economic climate, businesses and their owners face increase risk of being sued. Given this risk, business owners should do all they can to minimize exposure of their personal assets with respect to possible liability resulting from these lawsuits.

Typically, incorporating a business is an effective means of protecting a business owner’s personal assets from exposure to claims against his/her business. However, simply incorporating the business alone will not protect personal assets if the business has not complied with the formalities and requirements that the law requires of a corporation. When a business owner neglects those requirements, courts sometimes “pierce the corporate veil” allowing a business owner’s personal assets to be exposed in satisfying claims against the business. Essentially, when the courts allow piercing of a corporate veil, the business owner has lost all protection of the corporation entity form.

The term “piercing the corporate veil” basically means that the law treats the business owner and the business owner’s assets as one complete entity, making the owners personal assets subject to liabilities incurred by the company. In those situations, the corporation is basically seen as a mere alter ego of the business owner.

Michigan courts look to three elements needed to pierce a company’s corporate veil:

  1. Is the corporate entity operating as a mere alter ego of another entity or individual, meaning the business is being used in furtherance of another purpose rather than its stated mission?
  2. Is the corporate entity being used to commit fraud or wrong doing?
  3. A plaintiff in a lawsuit suffered an unjust loss or injury if recovery is limited only to the business and cannot extend to a business owner’s personal assets.

Fortunately, under Michigan law, only extraordinary circumstances justify a disregarding of a corporate entity exposing the owner to personal liability; however, that is not to say that a business owner will never be subjected to such a claim, especially in these unprecedented economic times.

Historically, Michigan courts in evaluating the aforementioned prerequisites look to a number of factors to decide whether these factors have been met and a corporate veil should be pierced.

The court looks to whether:

  • the corporation is under capitalized (lacks sufficient funds to pay its bills);
  • corporate books have, or have not, been maintained;
  • there is a separation between individual and corporate finances;
  • the corporation is used to support fraud or illegality;
  • the corporation formalities have been honored especially with respect to complying with the terms and conditions of the Michigan Corporation Act, and
  • the corporation has paid excessive dividends to its shareholders.

Where the court decides that a plaintiff’s claim meets the prerequisites to pierce the corporation, the court will find an abuse of the corporate form and allow a claim against the corporation to pass through and attach to a business owner’s personal assets.

A business owner, in order to protect himself/herself from potential claims to pierce a corporate veil, can initiate steps to protect themselves.

First, a business owner should always keep personal and business assets separate from one another. This can be accomplished by using separate bank accounts and books for personal expenses and for the separate expenses of the business.

Secondly, always observe and follow corporate legal formalities such as holding the required number of meetings, keeping track of meeting minutes and maintaining a comprehensive stock ledger regarding the ownership of the corporation.

Third, usually an owner of a business will be an officer, agent or employee of the corporation. In business dealings on behalf of the corporation with third parties, business owners should always portray himself/herself as acting in the role of as an officer, agent or employee on behalf of the business as opposed to dealing with third parties on an individual basis. When the business enters into transactions or agreements with any outside party, that person must be aware and understand that he or she is transacting business with the corporation and not with the business owner personally. This can be accomplished when the business owner executes contracts, the business owner should list the name of the business and the business owner should sign in the capacity as an officer on behalf of the business.

In this difficult economic environment, people with claims against businesses are often more willing to make the extra effort to make a claim for piercing the corporation to obtain a judgment against the business owner’s personal assets. If you have questions regarding this issue or would like assistance with conducting an audit of your corporation’s records to assess your risk of the possibility of a plaintiff being able to pierce your corporate veil, please do not hesitate to contact us.

Dan A. Penning

2010 “Notice of Assessments for Michigan Real Property”

You will soon be receiving your 2010 Notice of Assessment for your Michigan real property. We pursue tax appeals both at the local Board of Review and before the Michigan Tax Tribunal.

We can help with . . .

* What to do with my assessment notice?
* When can I file an appeal?
* How do I get through the appeal process?

We can help answer these questions and more. Please contact us.

Is a Property Tax Appeal Appropriate for Your Property?

Reminder:

You will soon receive your “2010 Notice of Assessment for Michigan Real Property

This notice provides valuable information to determine whether a Property Tax Appeal is appropriate.

We can help answer your questions ….

“What do I do with my assessment notice?”

“When can I file an appeal?”

“How do I get through the appeal process?”

We can help answer these questions and more!

Please contact us at 231.271.4500 to assist you in reviewing your Michigan property assessment.

Dan A. Penning

Death and Taxes - Revisited

It has long been said that the only things certain in life are death and taxes. While most Americans pay any number of local, state and federal taxes while living, depending upon the extent of one’s property and the estate planning techniques used, additional taxes may be owed at death. According to the IRS website, “The Estate Tax is a tax on your right to transfer property at your death.” While the federal estate tax, therefore, has an impact on estate planning, the extent of that impact is currently in a state of flux. While death remains a certainty that all will face, the amount of federal estate tax is not.

In 2001, the Economic Growth and Tax Relief Act of 2001 (the “2001 Act”) was signed into law, significantly changing key provisions of the Internal Revenue Code dealing with the federal estate tax. Changes included an incremental increase in the estate tax unified credit exclusion from the pre-2001 amount of $650,000.00 per person, to $3.5 million per person in 2009, with no federal estate tax at all in 2010. In addition, the top estate tax rate declined from 55% to 45%. However, the 2001 Act contains a sunset provision and is set to expire on December 31, 2010. At that time the federal estate tax exclusion is scheduled to revert to $1 million per person and the maximum tax rate of 55% will be restored.

At 2009 rates, only inheritances above $3.5 million for an individual and $7 million per married couple were subject to the federal estate tax, at a tax rate of 45%. While it was estimated that only 1% of all inheritances would exceed those thresholds (encompassing an estimated 6,000 estates), Congress expected the federal estate tax to generate upwards of $25 billion in taxes in 2009.

Although there is no federal estate tax in 2010, the 2001 Act replaces the federal estate tax with a 15% capital gains tax on property inherited in 2010. Prior to 2010, beneficiaries of appreciated assets received those assets at their fair market value at the time of the decedent’s death (”stepped-up basis.”) Under stepped-up basis rules, the difference in the value of the asset from the time it was acquired by the decedent (the decedent’s “basis”) and the value of the asset at the time of the decedent’s death (the “gain” or “appreciation”) was not taxed as capital gains to the beneficiaries. This total exclusion no longer applies in 2010. While the capital gains scenario for 2010 is complicated and has its own system of exemptions, experts agree that many who thought that the elimination of the federal estate tax in 2010 would amount to a windfall may be in for a surprise.

The new capital gains treatment in 2010 notwithstanding, it is uniformly acknowledged that Republicans and Democrats alike are not going to accept the total elimination of the federal estate tax in 2010. In fact, on December 3, 2009, the House passed the Permanent Estate Tax Relief for Families, Farmers and Small Business Act of 2009, making permanent the $3.5 million per person exclusion, the 45% top tax rate, and stepped-up basis rules. However, the Senate, while focused on healthcare reform in the closing weeks of 2009, did not address the federal estate tax. As a result, the 2001 Act remains controlling — at least for now. Some Democratic Senators have vowed to reconvene early in January in order to pass an act that will be retroactive to January 1. As of this writing, the only thing that is certain is uncertainty.

We at Wright Penning & Beamer will continue to monitor this situation and the impact of future federal legislation on the estate planning needs of our clients. Stay tuned.

Dan A. Penning

Knowing What to Plan and When to Plan It

Important events require careful planning. For example, what happens to your assets, who will care for your children, will your business survive or will your children be able to protect a legacy asset such as a cottage or vacation property in the event of your incapacity or death all involve critical decisions. Planning “in time” does not necessarily mean that the planning is “on time.” Any ambulance driver will tell you that lying on a stretcher on your way to the hospital is not the time to begin working on your estate plan or business succession plan. On a number of occasions, the importance of timely planning has been dramatically presented to me. In each situation, clients with entirely different types of estates and needs had one thing in common, they waited to plan until it was almost too late. Sometimes the risk of delayed planning “on time” becomes “in time”.

Each of these examples involve critical decisions and require careful planning.

One such client was a mother of two minor children, a business owner and estranged from her husband who suffered from a substance abuse problem. In this article, I will give her the assumed name of Sarah. Sarah cared for her children on a full-time basis, was the sole means of financial support and was self-employed in her own business. Tragically, Sarah was diagnosed with cancer two years ago. She was losing a valiant battle with her illness and had been hospitalized on several occasions prior to the day we met at my office. A mutual friend suggested Sarah contact me to develop and establish an estate plan and business succession plan to protect Sarah, her children and to preserve her business that employed several people.

I first met Sarah on a Thursday morning. She came to my office in a wheelchair accompanied by her sister. This same sister was also caring for Sarah and her children during Sarah’s illness.

After listening to Sarah’s explanation of her situation, I recommended to Sarah that she establish an estate plan to protect Sarah’s assets, provide for the appointment of her sister as Sarah’s children’s legal guardian and adopt a succession plan for her business to give a key employee the chance to purchase the business in the event of Sarah’s death. This planning would insure that Sarah’s assets would not be subject to a claim by her estranged, addicted husband, and that the assets be managed and support her children so that their lives, as much as possible in her absence, would remain stable and financially supported into the future. The business succession plan, notably, provided additional proceeds to be paid over time to support Sarah’s children, but also protected the jobs of her employees who relied on Sarah’s business to support their families.

I copied and collected all the information I needed from Sarah to draft her estate and business plan documents. I advised Sarah that although the process of completing these plans typically can take weeks or even months, given her declining health, I would draft her documents right away. I sked if she could return the following day to review and sign her plans. Sarah responded that she might not live to sign the planning documents the next day. Based on my observations of Sarah during the initial part of our meeting, I had no reason to doubt that possibility.

Together with my staff, I proceeded to prepare her estate and business succession plans for her signature that day. We also coordinated with her financial advisor the transfer of assets into a Trust created by Sarah for her children’s benefit. It was quite an emotional day. My staff and I raced against each precious moment that passed to consolidate Sarah’s planning process into one day. Sadly, Sarah died the next day. Fortunately, Sarah’s plan continues to govern and support her children and business as well.

During the span of my career, I’ve drafted estate and business plans solving various issues for clients to avoid significant problems. I have reviewed and obtained signatures in critical care units of hospitals, nursing home rooms and literally, in one case, we obtained a client’s signature on his estate planning documents while walking beside his hospital gurney as he was being wheeled to the operating room for emergency heart surgery. While I have many success stories for people who planned “in time”, there are extraordinary risks involved in not planning “on time”.

Dan A. Penning
231.271.4500

2009 Year End Tax Tips

As we quickly approach the end of the year, you may want to consider the following information that could impact the amount of income tax you pay for the year 2009.

Home Energy Tax Credits

The American Recovery and Reinvestment Act (Recovery Act) enacted earlier this year expanded to home energy tax credits which are the Non-Business Energy Property Credit and the Residential Energy Efficient Property Credit.

The Non-Business Energy Property Credit. The Non-Business Energy Property Credit equals 30% of what a homeowner spends on eligible energy saving improvements, up to a maximum tax credit of $1,500.00 for the combined 2009 and 2010 tax years. Certain high efficiency heating and air conditioning systems, water heaters and stoves that burn biofuel along with labor costs for installation of these items all qualify as energy saving improvements and qualify for the credit. In addition, the cost of energy efficient windows and skylights, energy efficient doors, qualifying insulation in certain roofs also qualify for the credit.

By spending as much as $5,000.00 before the end of the year on eligible energy saving improvements, a homeowner can save as much as $1,500.00 on his/her 2009 Federal Income Tax Return. Due to the limits placed on tax liability, other credits claimed by a particular taxpayer and other factors, actual tax savings may vary. These tax savings are on the top of any energy savings that may result.

The Residential Energy Efficient Property Credit. Homeowners who are interested in “going green” should also check out a second tax credit designed to spur investment in alternative energy equipment. The Residential Energy Efficient Property Credit equals 30% of what a homeowner spends on qualifying property such as solar electric systems, solar hot water heaters, geothermal heat pumps, wind turbines and fuel cell property. In addition, all labor costs are generally included when calculating this credit. Finally, no cap exists on the amount of credit available except in the case of fuel cell property.

Eligible homeowners can claim both of these credits when they file their 2009 Federal Income Tax Return. Because these are credits, not deductions, they increase a taxpayer’s refund or reduce the tax he or she owes. An eligible taxpayer can claim these credits regardless of whether he or she itemizes deductions on Schedule A. Use Form 5695, Residential Energy Efficient Property Credit to figure and claim these credits. A draft version is available now on irs.gov.

First Time Homebuyer Credit

If you are in the market for a new home, you may still be able to claim the First Time Homebuyer Credit. Congress recently passed the worker, home ownership and business assistance act of 2009 extending the First Time Homebuyer Credit and expanding who qualifies.

Here are the top ten things the IRS wants you to know about the expanded credit and the qualifications you must meet in order to qualify for it:

1. You must buy, or enter into a binding contract to buy a principal residence, on or before April 30, 2010.

2. If you enter into a binding contract by April 30, 2010 you must close on the home on or before June 30, 2010.

3. For qualifying purchases in 2010, you will have the option of claiming the credit on either your 2009 or 2010 return.

4. A long time resident of the same home can now qualify for a reduced credit. You can qualify for the credit if you lived in the same principal residence for any 5 consecutive year period during the 8 year period that ended on the date the new home is purchased and the settlement date is after November 6, 2009.

5. The maximum credit for a long time resident is $6,500.00. However, married individuals filing separately are limited to $3,250.00.

6. People with higher incomes can now qualify for the credit. The new law raises the income limits for homes purchased after November 6, 2009. The full credit is available for taxpayers with modified adjusted gross incomes up to $125,000.00, or $225,000.00 for joint filers.

7. The IRS will issue a December, 2009 revision of Form 5405 to claim this credit. This December, 2009 form must be used for homes purchased after November 6, 2009, whether the credit is claimed for 2009 or 2010, and for all home purchases that are claimed on 2009 returns.

8. No credit is available if the purchase price of the home exceeds $800,000.00.

9. The purchaser must be at least 18 years old on the date of purchase. For a married couple, only one spouse must meet this age requirement.

10. A dependent is not eligible to claim the credit. For more information about the Expanded First Time Homebuyer Credit, visit irs.gov/recovery.

Estate Planning Review

Generally speaking, your estate plan should be reviewed at least every 2 years to determine whether it needs to be changed or updated.

Additionally, if any of the following events occur, you will probably need to update your estate plan (i.e., your Living Trust, Will, health care documents, powers of attorney, life insurance coverage and post mortem letters).

* Divorce
* Marriage or remarriage
* Birth/adoption of a child
* Death of a spouse or child
* Sale of residence or purchase of new residence
* Retirement
* Enactment of new tax laws*

*The current law regarding estate tax is due to expire at the end of December 31, 2010. There are several legislative actions being taken to address the estate tax law. Stay tuned for further updates.

Here are some of the steps you may need to take:

1. Change the Successor Trustee of your Living Trust or Personal Representative of your Will.

2. Revise your plan to account for an increase in assets.

3. Reassess your life insurance needs.

4. Add or change a power of attorney.

5. Change legal documents to comply with state laws if you move to a different state.

6. Change Trust and Will instruments to account for changes in beneficiaries.

Pre-Retirement Checklist

In the event that you are considering retirement in the near future, there are various matters that you should consider. Here are some of the items that you should be aware of:

1. Health Insurance. Will you continue to be covered by your health insurance after retirement? If not, you will need to replace that coverage.

If you’ll be eligible for Medicare, you will want to start checking up on “Medigap” coverage. Before you retire, take care of any non-emergency medical, dental or optical needs if your employee plan coverage is broader then Medicare.

2. Other Insurance. Once you retire, you may need to replace employer provided life insurance by added life insurance. You should also consider purchasing long term health care insurance to cover the risk that you will need a lengthy nursing home stay in the future.

3. Social Security. Decide whether you want to take social security benefits if you are retiring before your full retirement age. You can get 80% of your benefits at age 62. For most people, taking social security benefits at their full retirement age makes the most financial sense. Be sure to discuss this with a financial adviser if you think you might need to take early benefits.

4. Company Plan Pay Out. It is important to plan well in advance how you will take the pay out from your pension plan or 401K plan. In most cases, it is advisable to transfer funds to an IRA in that you can transfer the funds “in kind” which maintains the character of the investments but yet allows you to name beneficiaries who could ultimately take advantage of the “stretch out rules” for income tax purposes. You should speak with your legal or financial adviser regarding these strategies.

5. Relocation. If you are planning on moving to another state, check out the various states to see what financial ramifications of living there will be. If you are relocating it may be a good idea to buy a new home before retirement.

Dan A. Penning