Proposed Regulations Just Issued

The United States Treasury (IRS) just issued Proposed Regulations that could have a dramatic impact on your estate planning by eliminating valuation discounts. For wealthy people looking to minimize their future estate tax, this is critical. Planning can also be essential for others as well. If you are concerned about protecting a family business from the risks of future divorce, or protecting your assets from lawsuits or malpractice claims, discounts can enable you to leverage the maximum amount of assets out of harm's way, without triggering a gift tax to do so. 

Act Now

Time is of the essence. Once the Proposed Regulations are effective, which could be as early as year-end, the ability to claim discounts might be substantially reduced or eliminated, thus curtailing your tax and asset protection planning flexibility. 

What are Discounts, Anyway?

Here's a simple illustration of discounts. Bernie has a $20M estate which includes a $10M family business. He gifts 40% of the business to a trust to grow the asset out of his estate. The gross value of the 40% business interest is $4M.  Since a minority 40% trust/shareholder cannot force a sale or redemption of its interest, the non-controlling interest in the business transferred to the trust is worth less than the pro-rata value of the underlying business. Thus, the value should be reduced to reflect the difficulty of marketing the non-controlling interest.  As a result, the value of the 40% business interest transferred to the trust might be appraised, net of discounts, at $2.4M. The discount has reduced the estate by $1.6M from this one simple transaction. 

Election Impact

If the Democrats win the White House and the Democratic estate tax proposals are enacted, the results will be devastating to wealth transfer planning. Some experts project that a Democratic White House could affect down-ballot races and flip the Senate to the Democrats. The Democratic tax plan includes the reduction of the estate tax exemption to $3.5M, elimination of inflation adjustments to the exemption, a $1M gift exemption and a 45% rate. The Democratic plan will most likely include the array of proposals included in President Obama's Greenbook which seek to restrict or eliminate GRATs, note sale transactions to grantor trusts, and more. Wealthy taxpayers who don't seize what might be the last opportunity to capture discount planning, might lose much more than just the discounts. They might lose many of the most valuable planning options. 

Not a 2012 Boy Who Cried Wolf

You may recall the mad rush to plan in late 2012 on the fear that the gift, estate and generation skipping transfer (GST) tax exemption might be reduced from $5M to $1M in 2013. After many incurred significant costs and hassles in implementing planning quickly, that change never occurred. For those who might be affected by discounts, the situation in 2016 seems vastly different. The Proposed Regulations could be changed and theoretically even derailed before they become effective. The more likely scenario is that they will be finalized after public hearings and the ability to claim valuation discounts will be severely curtailed. If you do undertake planning, be cognizant of an important lesson from much of the poor planning that was done in 2012. Consider using planning techniques that assure you (or if you are married, your spouse) access to funds transferred in the discount planning. The main regrets in 2012 planning were for those who transferred assets out of their own reach. That is really not necessary. 

What You Should Do

Contact your planning team. A collaborative effort is essential to have your planning done well. As your estate planning and tax attorney we can review strategic wealth transfer options that will maximize your benefit from discounts while still meeting other planning objectives. Projections completed by your wealth manager could be essential to confirming how much planning should be done and how. Your CPA will have vital input on wealth transfer options, federal and state income tax implications and more. Your insurance consultant can show you how to use life insurance to backstop some of the planning strategies, in coordination with the financial forecasting done by your wealth manager, to maximize both the tax benefits and your financial security.

Who Should Act

Married clients with estates that exceed $8M or more and single clients with estates of $4M or more should reevaluate the effectiveness of their plan.

Look for Upcoming Webinars

We are setting dates for webinars which detail the effect of these changes and describe some of the actions that may be appropriate to take. Please contact our office if you are interested in attending and let us know if a lunch, afternoon or evening time is best for you.

The Goralka Law Firm helps successful families, business owners and real estate owners achieve their enlightened dreams by better protecting their assets, reducing income and estate tax and providing for the distribution of their estate to the right people, at the right time and keeping the wrong people out. For over two decades, the Goralka Law Firm has satisfied our clients' unique planning needs by collaborating with our partners, attorneys, accountants, business managers, financial planners, stock brokers and insurance professionals.  As tax attorneys and as estate planning and asset protection professionals, our job is to provide peace of mind by easing the process of estate and asset protection planning, minimizing estate and income taxes and developing sophisticated retirement and post-mortem plans.

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