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The goal of all asset protection planning is to insulate assets from claims of creditors without concealment or tax evasion. It is usually impossible to completely and absolutely protect assets, and the focus is on making assets more difficult and more expensive to reach. All asset protection planning is based on the following two premises:
(1) creditors can generally reach any asset owned by a debtor and
(2) creditors cannot reach those assets that the debtor does not own
The California Civil Code defines the term “transfer” as every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance.
The CCC Sections 3439.04(a) and (b) demonstrates that there are two types of fraudulent transfers: those done with an actual intent to defraud, delay or hinder a creditor, and those done for less than full consideration while the debtor was insolvent (constructive fraud).
With the equalization of the corporate and individual income tax rates, full deductibility of medical expenses by noncorporate taxpayers and with the advent of the limited liability companies and their inherent charging order protection, there has been a considerable shift in the choice of entity analysis.
Practitioners are no longer rushing off to form C or S corporations. As a matter of fact, it is increasingly more difficult to find reasons to form corporations. C corporations are almost entirely out of the picture, unless the taxpayer is planning on taking its business public in the near future or is concerned about an IRS audit. C corporations result in double taxation of profits from operations and gains on liquidation or sale, and do not allow for pass-through of losses.
What is Asset Protection?
For the past several years asset protection has been one of the fastest growing areas of law. It is also one of the most controversial – the goal of asset protection is to shield assets from the reach of creditors.
Asset protection should simply be about structuring the ownership of one’s assets to safeguard them from potential future risks. Most asset protection structures are commonly used business and estate planning tools, such as limited liability companies, family limited partnerships, trusts and the like. Properly implemented asset protection planning should be legal and ethical. It should not be based on hiding assets or on secrecy. It is not a means or an excuse to avoid or evade U. S. taxes.
The discord in legal tax practices has never been more evident than in the international tax practices of big multinationals. In an ongoing game of Tic-Tac-Toe between governments and big corps, it is glaringly obvious that the current score leaves regulatory bodies frustrated, angry and still trying to catch up.
You don’t have to plan your estate. No one can force you to. But if you don’t, you might end up like Einar Borglund (The name has been changed to protect the family). Mr. Borglund was not a client of Klueger & Stein, LLP. However, his children are clients. Mr. Borglund, according to his children, was apparently the most ornery old coot alive. Throughout his life, he amassed a good deal of wealth, owning a large collection of apartment buildings in Los Angeles.
One of the tools we commonly use to shield a client’s assets from creditors is a trust. Trusts are used so frequently, and benefits of trusts are so second nature to us, that we sometimes fail to explain some basic trust principles. We’re going to ameliorate that shortcoming right here.
After years of uncertainty, Congress has finally removed the uncertainty surrounding the taxation of decedents’ estates. Estate planning attorneys (and our clients) can now plan to reduce estate taxes with some degree of confidence that the landscape will not radically change as soon as the ink on the estate plan is dry.
There was a time – until very recently – when a U.S. citizen who maintained a foreign bank account but who didn't bother to pay the tax on the interest earned on that account had very little to worry about. After all, if the taxpayer himself was not going to report the income, the only other party who knew about the account was the foreign bank itself, and foreign banks don't send 1099 forms to the IRS. The only way the IRS could ever learn of the account is in the highly unlikely event that a routine audit would uncover the foreign-source income.
If you have never banked outside the United States, offshore banking may seem mysterious and shadowy. It is not, and the following will illuminate the subject.
Here are the most commonly used structures in asset protection. Click each to learn more.