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The laws of the 50 states aren't uniform when it comes to shielding or exposing a debtor's assets from the claims of creditors. For example, some states fully expose a debtor's residence to a creditor. Other states, such as Florida and Texas, provide a complete homestead exemption. But no state beats Nevada when it comes to consistently and aggressively enacting legislation designed to assure that a debtor's assets remain with the debtor and out of the clutches of creditors.
Expatriation refers to not simply leaving the U.S. and living abroad, but also to surrendering U.S. citizenship or permanent residency. If someone does surrender U.S. citizenship, moves abroad and picks up a new citizenship, the U.S. government may be unable to recover taxes due to it by the expat (no more jurisdiction). Consequently, the expatriation rules of the Code look to extract a tax from the expat while the U.S. still has jurisdiction. This is commonly referred to as the "exit tax."
We advise our clients that asset protection is not about hiding assets; it's about structuring the debtor's affairs so that even if a creditor learns of the existence of the debtor's assets, he cannot access the assets.
On December 16, 2010, Congress passed and sent to the President the "Middle Class Tax Relief Act of 2010." The law contains the most sweeping change in the taxation of estates in 29 years. It also contains a ticking time bomb that might explode in the faces of the beneficiaries of many trusts. As a result of the new law, many existing estate plans no longer work, and many others will cause actual harm. As a result, every married couple's existing estate plan should at least be reviewed, if not scrapped.
The one asset nearest and dearest to most people's hearts – and the one most difficult to protect from creditors – is the personal residence. Unlike cash and other liquid assets, you cannot remove a residence from the jurisdiction and out of the hands of creditors. A creditor who obtains a judgment against a homeowner needs only to record the judgment and wait. Once the judgment is entered, the homeowner cannot sell or refinance the residence without first retiring the judgment. Eventually, the judgment will be paid.
The Treasury Department has issued proposed regulations on taxation of series limited liability companies. While we have set out the text of the proposed regulation below, here is a summary of what the Treasury has proposed....
This warning label should appear on every limited liability company ("LLC") charter that the California Secretary of State issues to every person who opens a new LLC. For good measure, the Secretary of State should post this warning on every renewal notice it sends to the owners and managers of existing LLC's. A new case from the Florida Supreme Court, Olmstead v. Federal Trade Commission, points out the asset protection risks inherent in single-member LLC's. In this law letter, we'll explain why.
Assume that a spouse in California becomes liable to a third party, either as a result of a tort claim, a business debt or any other source. To what extent may the other spouse (the "non-debtor spouse") be held liable for the debts of the "debtor spouse"? Unfortunately, California statutory law is mostly good news for creditors and bad news for married debtors. But the Family Code provides spouses who engage in some early planning with an escape hatch, permitting the non-debtor spouse to avoid the debts of the debtor spouse.
The United States District Court for the Southern District of California has recently provided practitioners with a roadmap for avoiding having the activities (and the assets) of one entity conflated into a sister entity by means of the "alter ego" theory. Failure to prove "alter ego" is particularly crippling to a creditor if there is personal jurisdiction over one entity but no jurisdiction over the sister entity that has the deep pocket.
For many of us, retirement plans are a very significant asset. It is estimated that over $15 trillion are held in ERISA and IRA plans. ERISA-qualified retirement plans (like 401k plans) are fully protected from creditors under federal law. Some non-qualified plans, including IRAs, are protected at least partially under state law (more on that below). IRAs that are inherited (i.e., the plan participant has died) are not protected, which is a big missing piece in the asset protection planning of most people.