THE PHYSICIAN’S GUIDE TO           CREDITOR PROTECTION                                     Presented to:                  ...
TABLE OF CONTENTS                                                             PAGE                                        ...
$116M is awarded in stroke suitBy TIMES STAFF WRITERPublished September 30, 2006__________________________________________...
Doctors in lawsuit now suingBy Carrie Weimar                         attorneysPublished March 7, 2007_____________________...
Amputee awarded $30MJurors say a mom who lost her fingers and feet deserves that much.By Justin George and Colleen Jenkins...
Doctor kills self after malpractice verdict       Lawrence Grey, who specialized in vasectomy reversals, had been ordered ...
“It wasn’t raining when Noah built the ark.”Copyright © 2012 Gassman Law Associates, P.A.                                 ...
When and How To                 Terminate          a Questionable Employee                        Colleen M. Flynn, Esq.  ...
Giving a Deposition?                        What Doctors Need to                               Know!                      ...
Malpractice Litigation Defense               Strategies for Florida Physicians:               What Every Doctor Should Kno...
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GASSMAN LAW ASSOCIATES, P.A.                                     COMPLIMENTARY WEBINARS                   ESTATE, ESTATE T...
“If you’re not confused, you’re not paying attention.”                                                             - Tom P...
CONSIDER A PRIVATE WEBINAR – WHAT WOULD YOU COVER WITH YOUR                     ESTATE AND CORPORATE ADVISORS?            ...
CONSIDER A PRIVATE WEBINAR – WHAT WOULD YOU COVER WITH YOUR                     ESTATE AND CORPORATE ADVISORS?            ...
FLORIDA RESIDENTS- LEARNING HOW TO PROTECT YOUR ASSETS IN TWO MINUTES         CREDITOR EXEMPT ASSETS                     A...
ASSET PROTECTION DEFINITIONS               To understand the subject of asset protection, you must speak the language. The...
ASSET PROTECTION DEFINITIONSFirewall Protection - The concept that the shareholder of a corporation or limited partner in ...
ASSET PROTECTION DEFINITIONSBad Faith - The malpractice insurance carrier has an obligation to settle any claim within the...
ESTATE AND ASSET PROTECTION PLANNING FOR THE SINGLE PROFESSIONAL                                                          ...
PROTECTIVE TRUST LOGISTICAL CHART   During both                          First Dying Spouse’s                             ...
COMING SOON FROM BNA AND ALAN GASSMANHighlights include: Impact on 2010 Tax Relief Act Options for traditional planning ...
New Estate Tax Law Summary                                  2009                      2010                             201...
Determining Best How To Allocate Assets As Between A Married                                    Couple                    ...
Determining Best How To Allocate Assets As Between A Married                                   Couple                     ...
Copyright © 2012 Gassman Law Associates, P.A.   26
Tenancy by the Entireties: Our rebuttal to the September   2011 Florida Bar Journal Article – Our letter to the           ...
TYPE OF PERSONAL                              HOW TBE IS ESTABLISHED                                                    ST...
CHARGING ORDER LAW AND EXPOSURE AFTER                      THE JUNE 2011 FLORIDA LLC LEGISLATION                          ...
10 Year Gifting Period    Moving More Value Out  Of Taxable Estates by Using                   $26,000 Annual Exclusion Al...
CHOICES AND FACTORS WITH RESPECT TO ALLOCATION AND PAYMENT OF             MEDICAL PRACTICE INCOME FOR THE SOLO PRACTITIONE...
A Florida Physician’s Guide to Wages and Wage                                  Accounts    Florida law provides limitation...
A Florida Physician’s Guide to Wages and Wage                                        Accounts Other creditor exempt assets...
2010 Competitive Malpractice Insurance                                    Rates                              $250,000/$750...
MALPRACTICE INSURANCE ISSUES               The debate continues after over 30 years as to whether it is best to maintain h...
MALPRACTICE INSURANCE ISSUES   2. Out of State or Country Malpractice Carriers: A Dangerous   Middle Ground:   (a) Many ph...
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Creditor protection powerpoint.1

  1. 1. THE PHYSICIAN’S GUIDE TO CREDITOR PROTECTION Presented to: Medical Business Leaders Network Thursday, March 8, 2012 ALAN S. GASSMAN, J.D., LL.M. PARIKSITH SINGH, M.D. Alan S. Gassman, Esq. Pariksith Singh, M.D.agassman@gassmanpa.com psingh@accesshealthcarellc.com
  2. 2. TABLE OF CONTENTS PAGE PAGE General Information 3 Single Physician Owned Medical Practice 38 Previously Recorded Webinars 8 Multiple Owned Doctor Medical Practice 39 Complimentary Webinars 12 The Many Faces of Practice Asset Protection 40 Techniques Agenda for Conference with Attorney 14 Professional Practice Lien Structure Logistics 41 Florida Residents – Learning How To Protect Your Assets 16 New Parent F Reorganization 45 in Two Minutes Asset Protection Definitions 17 Limited Liability Trust – Asset Protection Trust 46 Estate and Asset Protection Planning for the Single 20 Dynasty Wealth Protection Trust 47 Professional Protective Trust Logistical Chart 21 Example of a Husband/Wife Dynasty Trust 48 Arrangement New Estate Tax Law Summary 23 Defective Grantor Trusts and Disregarded Entities 49 Determining Best How to Allocate Assets as Between a 24 Planning for a Dynasty Trust 50 Married Couple Unconventional Uses of 529 Plans Should Not Be Ignored 26 Considering Offshore or Domestic Creditor Protection 52 by Taxpayers and Their Advisors Trusts – Should I Stay or Should I Go? Tenancy by the Entireties 27 A Matter of Opinion 54 Charging Orders 29 Offshore Trust – Ticking Time Bombs 55 Gifting 30 Do Domestic Asset Protection Trust Work? 56 Choices and Factors Chart 31 Avoid Theft 57 Wages and Wage Accounts 32 Understanding Your Liability Insurance Coverage 58 Malpractice Insurance 34 6 Catastrophes 61Copyright © 2012 Gassman Law Associates, P.A. 2
  3. 3. $116M is awarded in stroke suitBy TIMES STAFF WRITERPublished September 30, 2006_______________________________________________________________________ TAMPA – A jury on Friday awarded a $116-million medical malpractice verdict to the family of a Tampa man who attorneys arguedbecame a paraplegic after an unlicensed hospital worker misdiagnosed a stroke as sinusitis.On Aug. 9, 2000, All Navarro, now 50, of Tampa went to University Community Hospital Carrollwood campus with nausea, doublevision, headaches and an unsteady gate. He was sent home with the diagnosis of sinusitis, attorney Steve Yerrid said, and went onto suffer severe brain swelling. Twenty hours after his initial diagnosis, Navarro was back in the emergency room, getting treated fora stroke.Yerrid said the decision was the largest jury award in a malpractice suit in Florida history. Punitive damages are expected to beconsidered on Tuesday.Navarro, a former pro basketball player from the Philippines, came to the United States in the 1990s. His wife Marilyn, 52, and son,Scottie, 10, are named as claimants in the jury verdict, Yerrid said.UCH officials could not be reached for comment late Friday.Copyright © 2012 Gassman Law Associates, P.A. 3
  4. 4. Doctors in lawsuit now suingBy Carrie Weimar attorneysPublished March 7, 2007_____________________________________________________________________TAMPA – They got hammered with a record-breaking $217-million verdict for misdiagnosing a patient who suffered a stroke.Now the doctors who were the target of that high-profile lawsuit are hoping to turn the tables. They’re suing their attorneys.Among the doctors’ chief complaints: The attorneys turned town settlement offers of $1-million and $3-million, a fraction of the final judgment.“This case should have never gone to trial,” said Dr. Frank Winkles, who is representing Franklin, Favata & Hulls physicians group and Carrollwood EmergencyPhysicians.“It should have settled. Those doctors were just hung out to dry,” Winkles said.The other doctor involved in the case, Michael Austin, is represented by Tampa attorney Barry Cohen, who said the lawsuit spoke for itself.“The allegations are pretty clear,” Cohen said.The lawyers named in the suit, filed March 2 in Hillsborough Circuit Court, did not return telephone calls seeking comment.The lawyers are Louis J. LaCava and Victor Guzman, who work for a West Palm Beach firm that also has a Tampa branch. Also named is Brian Stokes, who iswith the Unger Law Group, which is based in Orlando.The disagreement stems from a medical malpractice case decided by a Tampa jury in October.Allan Navarro, a former pro basketball player in the Philippines, went to the University Community Hospital Carrollwood emergency room August 9, 2000,complaining of nausea, headache, dizziness and double vision.He was sent home five hours later with a painkiller prescription and a diagnosis of sinusitis.No one realized Navarro was having a stroke. He returned to the hospital with more severe symptoms the next morning and underwent surgery hours later torelieve brain swelling. He ended up in a coma for three months and emerged from it permanently disabled.Before his illness, Navarro was a machine operator earning just above minimum wage. Now he is confined to bed or must use a wheelchair.Navarro’s attorney sued. Testimony revealed that an unlicensed physician’s assistant initially examined Navarro, and Austin based his diagnosis on that exam.Copyright © 2012 Gassman Law Associates, P.A. 4
  5. 5. Amputee awarded $30MJurors say a mom who lost her fingers and feet deserves that much.By Justin George and Colleen JenkinsPublished May 26, 2007_______________________________________________________________________ TAMPA – Sally Lucia, a mother of three who lost her fingers and feet after complications of tummy tuck surgery, deserves $30-million, a jury in a malpracticesuit said Friday.But it will be up to Hillsborough Circuit Judge Gregory P. Holder to sort out how much of that is owed by a former Tampa doctor and a hospital.Defense attorneys predicted that Lucia, 47, would get somewhere between $12-million and $16-million, while her own attorneys declined to name figures.Holder must now make sense of the jury’s parceling out of blame and the impact of Florida’s “Good Samaritan” law. That is expected to begin Wednesday.Four women on the jury wouldn’t leave the courtroom without seeing Lucia privately and telling her they did everything they could to ensure justice was served.Afterward, teary-eyed, they declined to comment.Lucia said the verdict left her “overwhelmed, but in a good way.” She said she was glad the trail was finally over.Jurors assigned Memorial Hospital 40 percent blame. Dr. George Haedicke 20 percent blame and Dr. Charles McLaughlin 40 percent blame. McLaughlinreached a settlement for an undisclosed amount and was not on trial.While Lucia viewed the verdict as a win, so did the attorney representing Haedicke.While finding fault, jurors said Haedicke did not act with reckless disregard, which could give him immunity under the state’s “Good Samaritan” law.The law protects emergency room doctors seeing patients in emergencies from malpractice judgments as long as a jury finds they didn’t act recklessly.An hour before jurors reached their verdict, they told Holder they were deadlocked. The trail had taken three weeks. They had deliberated 17 hours. Heordered them to keep talking.Lucia’s troubles culminated on Super Bowl Sunday 2001 when an ambulance carried her to Memorial Hospital in Tampa. She had undergone a tummy tuck 20days earlier to repair abdominal muscle damage from three caesarean sections. Blood and fluid had collected in her wound. Her fingers were blue.Her surgeon was out of town. Hospital staff called Haedicke, the on-call surgeon who was playing at a park with his children.During closing arguments Wednesday, attorneys quibbled about what happened once doctor and patient met.Copyright © 2012 Gassman Law Associates, P.A. 5
  6. 6. Doctor kills self after malpractice verdict Lawrence Grey, who specialized in vasectomy reversals, had been ordered to pay a former patient $1-million. By Bill Coats Published May 4, 2006 _______________________________________________________________________ TAMPA – On Friday afternoon, Dr. Lawrence Grey listened in a Hillsborough County courtroom as a jury announced its verdict: He should pay a former patient $1-million. Late Friday night, Grey’s wife found him dead in the $2-million Bayshore Boulevard home, hanging in a bedroom closet from a yellow nylon rope. Grey’s apparent suicide left lawyers in the malpractice case reeling. Jeffery Hunter, the Tampa lawyer who represented Grey, heard about the death Saturday night after a family outing. “I was shocked,” Hunter said Wednesday “I still am.” Timothy Moran, the Jacksonville lawyer who represented the former patient, learned of Grey’s death Wednesday from a Times reporter. “I never intended for something like this to happen,” Moran said. “I blame his insurance company for not doing the right thing.” Moran said he offered to settle the case for $250,000, the limit of Grey’s insurance coverage, and later for $175,000 but was turned down. If the jury’s verdict of $1,005,000 stands, Grey’s business will be liable for $755,000. Hunter wouldn’t comment on the settlement decisions. He said he intends to ask for a new trial. If denied, he plans to appeal. Grey, a 51-year old urologist, specialized in microsurgery that reversed vasectomies, restoring his patients’ abilities to father children. Grey marketed himself online as the Vas Doctor. That’s a reference to the vas deferens, the narrow tube through which sperm travels from the testicles, and which a surgeon snips in a vasectomy. Grey used laser tools and techniques that he developed, he told the Tampa Bay Business Journal in a profile three years ago. “The microbeam is strictly my own creation,” Grey said in the profile. “The laser beam gives you a cleaner, more precise cut with less damage to tissue. Hunter said Grey recently was performing 400 to 450 vasectomy reversals a year.Copyright © 2012 Gassman Law Associates, P.A. 6
  7. 7. “It wasn’t raining when Noah built the ark.”Copyright © 2012 Gassman Law Associates, P.A. 7
  8. 8. When and How To Terminate a Questionable Employee Colleen M. Flynn, Esq. Alan S. Gassman, Esq. Johnson, Pope, Ruppel & Burns, LLP. Gassman, Bates & Associates, P.A. Jpfirm.com Gassmanbateslawgroup.com colleenf@jpfirm.com agassman@gassmanpa.com (727) 461-1818 (727) 442-1200Copyright © 2012 Gassman Law Associates, P.A. 8
  9. 9. Giving a Deposition? What Doctors Need to Know! Presented by: Alan S. Gassman, Esq. Jeffrey Goodis, Esq. agassman@gassmanpa.com jmg@thompsongoodis.com Gassman Law Associates, P.A. Thompson Goodis Thompson Groseclose Clearwater, FL Richardson Miller, P.A., St. Petersburg, FLCopyright © 2012 Gassman Law Associates, P.A. 9
  10. 10. Malpractice Litigation Defense Strategies for Florida Physicians: What Every Doctor Should Know. a presentation by: Jeffrey M. Goodis, Esq. & Alan S. Gassman, Esq. jmg@thompsongoodis.com agassman@gassmanpa.com 727-823-0540 (727) 442-1200Copyright © 2012 Gassman Law Associates, P.A. 10
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  12. 12. GASSMAN LAW ASSOCIATES, P.A. COMPLIMENTARY WEBINARS ESTATE, ESTATE TAX & HEALTH CARE LAW AND PHYSICIAN ISSUES CREDITOR PROTECTION PLANNING •Protecting Medical Practice Assets from Creditors – General•Creditor Protection for the Single Floridian Strategies and Common Mistakes•For Couple’s Only – All About Tenancy by the Entireties – How To •Creditor Protection for the Single PhysicianUse It – How To Lose It•Cornflakes and Estate Planning Mistakes •Special Planning Needs for Doctors Who are Married to Doctors•How to Advise Clients Under The New Estate Tax Law •Malpractice Litigation Defense Strategies for Florida Physicians•What Has Just Changed With Regard To Undisclosed Foreign •Unannounced Medicare Audits; What To Do If InvestigatorsAccounts Come To Your Office•Helter Shelter – Planning with Credit Shelter Trusts Under the •A Medicare Practice Compliance Paperwork Checklist for FloridaNew Estate Tax Law Physicians•Major Changes in the Florida Power of Attorney Law: What You •Understanding ACO’s in 30 Minutes – A Physicians GuideNeed to Know – With A View From The Bench•What Mary Poppins Didn’t Know About Umbrellas: Ensure that •Giving A Deposition – What Doctors Need To Knowyour Insurances Will Insure You•The 15 Minute Guide to the New Florida Power of Attorney Act •New Healthcare Price Transparency Rules•Riders on the Storm: How to Make Sure Your Insurances Do Not •How the New Pain Care Clinic Regulations Affect Your MedicalHave Any Catastrophic Exceptions or Gaps Practice •How Medical Practices Can Respond to the New Healthcare Law•Drafting Durable Powers of Attorney for the New Florida Law With and Eminent ChangesForms•Common Mistakes in the Filing of Gift Tax Returns and How to •How to Market Your Medical PracticeAvoid Them, With Sample Form 709 Completed Pages TO CONTACT US FOR INFORMATION ON OUR COMPLIMENTARY WEBINARS PLEASE CALL 727-442-1200 or email agassman@gassmanpa.com They are available for viewing and download at: www.gassmanlawassociates.com/webinarlibrary.html 12
  13. 13. “If you’re not confused, you’re not paying attention.” - Tom Peters “Anything that can go wrong will go wrong.” -Murphy’s Law “Anyone who acts as his own lawyer has a fool for a client.” -- F. Lee Bailey “Perfectionists don’t always win.” “Don’t put all your eggs in one basket.” “Don’t handicap your children by making their lives easier.” --Robert A. HeinleinCopyright © 2012 Gassman Law Associates, P.A. 13
  14. 14. CONSIDER A PRIVATE WEBINAR – WHAT WOULD YOU COVER WITH YOUR ESTATE AND CORPORATE ADVISORS? AGENDA FOR CONFERENCE WITH ATTORNEY5.REVIEW OF FAMILY INFORMATION.7.REVIEW OF FINANCIAL INFORMATION.9.IS THERE SUFFICIENT LIFE INSURANCE TO SUPPORT SURVIVORS? a) PROCEEDS MULTIPLIED BY WHAT EXPECTED RATE OF RETURN CAN SUPPORT SURVIVORS? b) TERM POLICY EXPIRATION DATES AND FOLLOW-UP. 4. POTENTIAL LOGISTICS FOR PLANNING. 5. TRUST ARRANGEMENTS FOR SURVIVING SPOUSE. 6. TRUST ARRANGEMENTS FOR OTHERS. 7. EXTENDED FAMILY PLANNING. a) INHERITANCES EXPECTED. b) PARENTS OR OTHERS WHO MAY NEED SUPPORT. c) RELATIVES WHO SHOULD NOT INHERIT OR HAVE INPUT OR FIDUCIARY ROLES. d) BENEFICIARIES IF NOT DESCENDANTS SURVIVE. 8. FINANCIAL POWERS OF ATTORNEY. a) FROM SPOUSES TO ONE ANOTHER. b) FROM ANY FAMILY MEMBERS WHO MAY REQUEST OR NEED ASSISTANCE FROM CLIENTS.Copyright © 2012 Gassman Law Associates, P.A. 14
  15. 15. CONSIDER A PRIVATE WEBINAR – WHAT WOULD YOU COVER WITH YOUR ESTATE AND CORPORATE ADVISORS? AGENDA FOR CONFERENCE WITH ATTORNEY CONTINUED9. HEALTH CARE POWERS OF ATTORNEY. a) FROM SPOUSES TO ONE ANOTHER. b) FROM ANY FAMILY MEMBERS WHO MAY REQUEST OR NEED ASSISTANCE FROM CLIENTS.10. BENEFICIARY DESIGNATIONS FOR IRA, ANNUITY, AND PENSION ACCOUNTS.11. BENEFICIARY DESIGNATIONS AND OWNERSHIP VERIFICATION FOR LIFE INSURANCE.12. DISCUSS DISABILITY INSURANCE.13. DISCUSS AUTOMOBILE OWNERSHIP AND UMBRELLA COVERAGE.14. ADVISOR COMMUNICATIONS.15. BUSINESS ACTIVITIES AND OWNERSHIP.16. DISCUSSION OF SPOUSAL BUSINESS/PROFESSIONAL INVOLVEMENT.17. PROFESSIONAL OR BUSINESS PRACTICE/COMPANY PROJECTION FROM POTENTIAL CREDITORS.18. ENTITY TAX PLANNING.19. ENTITY MINUTES.20. OTHER ITEMS?Copyright © 2012 Gassman Law Associates, P.A. 15
  16. 16. FLORIDA RESIDENTS- LEARNING HOW TO PROTECT YOUR ASSETS IN TWO MINUTES CREDITOR EXEMPT ASSETS ASSETS THAT ARE DIFFICULT FOR A ASSETS EXPOSED TO CREDITORS CREDITOR TO OBTAIN Homestead Limited partnership and similar entity Individual money and brokerage accounts. -Up to half acre if within city limits. interests. -May be immune from fraudulent transfer statute. IRA Foreign trusts and companies. Joint assets where both spouses owe money. -Includes ROTH, Rollover, and Voluntary IRAs, but possibly not inherited IRAs. 401(k) Foreign bank accounts. One-half of any joint assets not TBE where -Maximize these! one spouse owes money. Permanent Life Insurance Note – foreign entities are very rarely Personal physical assets, including car, -Must be owned by insured. recommended and must be reported to IRS - except for $4,000 exemption ($1,000 if homestead exemption is claimed in bankruptcy). Annuity Contracts Vocabulary: EXEMPT ASSET – An asset that a creditor cannot reach by reason of Florida law Wages of Head-of-Household – protects Florida residents. Wage Accounts (for six months only) CHARGING ORDER PROTECTION – The creditor of a partner in a limited Tenancy by the Entireties (joint where only partnership, limited liability limited partnership, or properly drafted LLC can only one spouse is obligated) receive distributions as and when they would be paid to the partner. - Must be properly and specially titled – joint FRAUDULENT TRANSFER - Defined as a transfer made for the purpose of avoiding a creditor. Florida has a 4 year reach back statute on fraudulent with right of survivorship may not qualify. transfers. A fraudulent transfer into the homestead may not be set aside unless 529 College Savings Plans the debtor is in bankruptcy. It takes 3 creditors of a debtor who has 12 or more creditors to force a bankruptcy. Upon filing a Chapter 7 Bankruptcy, an individual debtor may be able to cancel all debts owed and keep exempt assets, subject to certain exemptions. Annuities and life insurance policies are not always good investments, and can be subject to sales charges and administrative fees. There is a lot more to know- but this chart may be a good first step.Copyright © 2012 Gassman Law Associates, P.A. 16
  17. 17. ASSET PROTECTION DEFINITIONS To understand the subject of asset protection, you must speak the language. The following vocabulary and definitions will provide you with abasic understanding of the fundamental concepts which make up the “art and science” of Florida creditor protection planning.Debtor - A party who owes money.Creditor - A party who is owed money by the debtor.Judgment - A court order establishing that a debtor owes money to a creditor. The existence of a judgment is almost always necessary before a creditor canseize a debtors property.Plaintiff - A party suing to get a judgment against a defendant.Defendant - A party being sued by a plaintiff.Exempt Assets - Assets that are protected from seizure under the creditor laws. A debtor will generally be able to keep these assets notwithstanding that acreditor may have a judgment against the debtor.Non-Exempt Assets - Assets of a debtor that are subject to creditor claims.Fraudulent Transfer - The name given to a transfer of assets from a creditor available status to a creditor non-available status if a primary purpose was to avoidknown creditors. Under federal and state law, such transfers may be set aside if the assets are within the jurisdiction of an applicable court making such afinding. Outside of Bankruptcy Court, Florida has a statute of limitations on the ability of a creditor to set aside a fraudulent transfer, which in many cases runs 4years after the applicable transfer. This does not apply under Florida law to a transfer of assets to homestead. Under bankruptcy law, however, a discharge ofdebt can be denied if there has been a fraudulent transfer made within one year of the bankruptcy filing. Also, the homestead exemption may be limited to$136,875, if there has been a “fraudulent transfer” to homestead within 10 years of filing bankruptcy. There is also a 10 year set aside rule for “fraudulenttransfers to asset protection trusts and similar arrangements” under the 2005 Bankruptcy Act. Oftentimes, clients will be advised to make transfers in exchangefor receiving full value to avoid the fraudulent transfer rules while still making the resulting arrangement more creditor protective than it would have been.Preferential Transfer - A transfer that may be set aside under state or bankruptcy law, such as a transfer made to any party within 90 days of filing a bankruptcy,or a transfer made to an “insider” within one year of filing the bankruptcy. See also Florida Statute §726 (providing a two year look back on transfers).Charging Order - A creditor with a judgment cannot reach into a properly structured limited partnership or LLC arrangement, where the debtor does not own theentire entity. Instead, the creditor receives a “charging order” from the court, whereby if and when distributions are made from the entity, the pro rata share ofthe debtor would be paid to the creditor. There is nothing in the law that allows a court to order that a distribution be made. Therefore, someone having ajudgment against a debtor whose sole asset is a part ownership interest in a limited partnership or an LLC may have limited leverage to obtain cash or moniesfrom the debtor, although the debtor will also have difficulty receiving distributions when a charging order is in place. This will often result in settlement, or thepossibility of the creditor trying to force the debtor into bankruptcy.Copyright © 2012 Gassman Law Associates, P.A. 17
  18. 18. ASSET PROTECTION DEFINITIONSFirewall Protection - The concept that the shareholder of a corporation or limited partner in a limited partnership will not be liable for liabilities incurred by theentity. This is why many companies put the more hazardous activities under a separate subsidiary.Limited Liability Partnerships, Limited Partnerships, Limited Liability Limited Partnerships, Limited Liability Companies, Professional Limited Liability Companies,and Partnerships of the above Entities - The names given to various legal entities which have different effects as to firewall, tax, and charging order versus assetseizure protection. Be cautious as to which entity you choose because they do not all offer the same protection. For example, the creditor of a partner in aFlorida limited liability partnership (LLP) can seize the partnership interests, and is not limited to receiving a charging order, but the creditor of a partner in aFlorida limited partnership (LP) or a limited liability limited partnership (LLLP) will be limited to the charging order remedy. It is important not to confuse theseentities, but this commonly occurs, even among well-meaning lawyers.Staying Out of Bankruptcy - Many debtors will prefer to stay out of bankruptcy, so it is important for someone with an imminent judgment to understand how thiscan be achieved. Generally, it takes three creditors to force an individual into bankruptcy, if that individual has at least 12 creditors.Bankruptcy - A federal process whereby every debtor has the right to file in the bankruptcy court, generally under Chapter 7, Chapter 11, or Chapter 13. Manylawyers say that this is like having the debtor “swim in a fish bowl” because there must be full disclosure of all documentation and information upon filing. Moreinformation about the specific types of bankruptcy is available in Chapter 9.Joint and Several Liability - The concept that individuals who participate in a negligent or improper act will be totally liable for all damages imposed to the extentthat the other "co-defendants" do not pay their fair share. There are limitations on joint and several liability pursuant to Florida Statute Section 768.81.Vicarious Liability - The concept that an employer is generally responsible for liabilities incurred by an employee acting within the scope of the employees duties.The Greek term for this phenomenon is “respondeat superior.”Under this concept, parents may be responsible for the driving activities of their nannies or errand runners, and doctors may be responsible for unforeseenactions by employees who might aggressively try to help people using prescription scripts, giving medical advice, and/or driving automobiles.Secured Interest - The concept whereby a creditor can record a mortgage or lien on assets whereby that creditor would be entitled to repossess the assets andsell them at auction to satisfy a debt owed to the creditor. Real estate is liened by the recording of a proper mortgage, and non-real estate assets may be lienedby recording UCC-1 Financing Statements based upon appropriately drafted security and/or pledge agreements. If a friendly debtor has a secured interest in aparticular asset, then another debtor would have to pay the friendly secured debtor before they would be able to seize the asset secured. This is why doctorswill often give the bank with a mortgage on business real estate a lien against medical practice assets, so that a malpractice claimant would have to pay thebank off or take other steps before seizing medical practice assets.Marshaling of Assets - Whereby a party having a lien against assets may be forced to sacrifice their position if there are plenty of other assets that it has accessto, to satisfy the obligation of the debtor. Over-secured creditor issues may also arise.Asset Protection Trust - A trust arrangement whereby creditors of the grantor may not have access – which is contrary to Florida and basic common law that ifthe grantor could receive any benefit whatsoever, then creditors may receive all assets.Copyright © 2012 Gassman Law Associates, P.A. 18
  19. 19. ASSET PROTECTION DEFINITIONSBad Faith - The malpractice insurance carrier has an obligation to settle any claim within the limits of coverage of the physician, if reasonably possible. Thefailure of an insurance carrier to settle within policy limits can result in the carrier being responsible for an “excess verdict.” When this occurs, the plaintiff’slawyer will often settle with the defendant by receiving an assignment of the defendant’s right to pursue the insurance carrier for the excess amount.If the malpractice carrier believes it has a 90% chance winning at trial and a 10% chance of losing with a verdict well over policy limits, then it may make goodeconomic sense for the carrier to take the chance, but not from the point of view of the physician. If the carrier takes the chance then if it has acted in bad faith itwill be responsible for any excess verdict. Private legal counsel is commonly hired to encourage the carrier to settle within policy limits, and a physician shouldalmost never encourage a carrier not to settle or be without private representation when the carrier or its lawyer recommends private representation!Fortunately, most verdicts exceeding coverage limits result in the physician assigning their bad faith claim to the plaintiff in exchange for a total release,particularly where the physician is otherwise judgment proof.Automobile Liability – As discussed in Chapter 3, the owner of a motor vehicle in Florida is liable for operation of the vehicle by another driver, except that if theother driver has insurance then the owner’s exposure may be limited to $300,000 per incident. If the driver has $500,000 of liability insurance, then the ownermay not have liability exposure, unless the owner was negligent in allowing the driver to use the vehicle. Refer to Chapter 3 for more details.Sovereign Immunity - The concept whereby an individual working for a governmental agency and the agency itself has limited liability, presently being $250,000per incident. This applies to a physician working full time for public hospitals, medical schools, and the Veteran’s Administration.Successor Liability - When a corporation has a liability and a “successor corporation” has identical or similar ownership, identity, customers, employees and/orgeneral identity, a judge may find the new company responsible for the liabilities of the old company, even if there was a legitimate bankruptcy of the oldcompany before the new company was formed and operational.Reverse Veil Piercing - When a court unwinds transfers made to entities where the transferor is a debtor that had control over the entity, and used the entity todisguise personal assets to keep them beyond the reach of personal creditors.Concealment - Under the doctrine of concealment an asset “given away” but actually held for the original transferor will be considered as continually owned bythe original transferor, notwithstanding title. Concealing assets puts the debtor at risk for losing a bankruptcy discharge.How to Stop Worrying and Start Living - A book written by the late Dale Carnegie, which includes phenomenal advice on how to counsel for and live withconcerns about what may happen in the future, what can be done about these potential future problems, and how to handle oneself and others in a logical,sequential, and effective manner.Copyright © 2012 Gassman Law Associates, P.A. 19
  20. 20. ESTATE AND ASSET PROTECTION PLANNING FOR THE SINGLE PROFESSIONAL SINGLE (NON- MARRIED) Child or Children INDIVIDUAL 529 Plans UGMA Accounts (Subject to Creditors of the Child) Childs or Childrens Automobiles?IRA Account (Who signed for driving priviledges?) Automobile401k/Pension Account HOMESTEAD Parent, TrusteeAnnuity ContractsLife Insurance TRUST OFFSHORE ALASKA ASSET FORMED BY LIVING TRUST ASSET CHILDRENCan deposit wages into a wage account GIFTING TRUST PROTECTION WITH PROTECTION TRUST EXCESS TRUST ASSETS 3% 3% 97% 97% S Corporation Stock 1% 99% PROFESSIONAL Long PROFESSIONAL REAL ESTATE WAGE SECURITIES FLP Wages PRACTICE Term BUILDING AND/OR FLP ACCOUNT? CORPORATION Lease EQUIPMENT LLC Brokerage Accounts Furniture, equipment, accounts receivable LLC LLC LLC Building 1 Lot 1 Condo 1 20 Copyright © 2012 Gassman Law Associates, P.A.
  21. 21. PROTECTIVE TRUST LOGISTICAL CHART During both First Dying Spouse’s Surviving Spouse’s spouse’s lifetimes: Revocable Trust Revocable Trust Upon first $5,120,000* Remaining death in (Adjusted upward for 2011: inflation after 1/1/2011) Assets During Family QTIP Non- (By-Pass) Surviving Spouse’s Revocable Trust surviving GST Trust Generation Skipping Trust (Marital Deduction (Will include assets owned jointly on first spouse’s (Not taxed in surviving spouse’s Trust that is not death) remaining estate) generation skipping) lifetime: Upon Surviving spouse can have the $5,120,000* Remaining right to redirect (Adjusted upward after second how assets are distributed on 1/1/2011) Assets death: second death. Children’s Generation Skipping Children’s After Generation Skipping Trust (or Trusts for Children Trust (or deaths of Trusts for Children outright (Can merge with first dying outright both distributions) spouse’s Generation Skipping Trusts shown on left) distributions) spouses: Benefits children and Benefits children. Benefits children and Benefits children. grandchildren. Taxable in their estates. grandchildren. Taxable in their estates. Not estate taxable in their estates. Not estate taxable in their estates.*Assumes first spouse dies in 2011 and that the surviving spouse dies in a later year when the estate tax exemption is still $5,120,000.*The Unified Credit Exemption is $5,120,000 in 2011 and 2012, and is scheduled to go back to $1,000,000 in 2013.Copyright © 2012 Gassman Law Associates, P.A. 21
  22. 22. COMING SOON FROM BNA AND ALAN GASSMANHighlights include: Impact on 2010 Tax Relief Act Options for traditional planning structures Best practices: Portability of estate tax exemption vs. credit shelter planning How to integrate asset protection into the estate plan How to repurpose redundant life insurance trusts, and more!If you would like to purchase a copy of the bookplease email agassman@gassmanpa.com 22
  23. 23. New Estate Tax Law Summary 2009 2010 2011-2012 2013 and Our Best Guess for thereafter FutureAnnual Exclusion Gifts $13,000 $13,000 $13,000 (unless $13,000 Same(Don’t Count at All) adjusted to $14,000)Tuition and Medical Unlimited Unlimited Unlimited Unlimited SameDirect Payment Like Before Like Before Like Before Like BeforeExemptionLifetime Exemption $1,000,000 $1,000,000 2011 - $5,000,000 $1,000,000 Between 2012 $5,120,000 $1,000,000 and $5,000,000Estate Tax Exemption $3,500,000 (less Unlimited—See 2011 - $5,000,000 $1,000,000 (less Between what was used of Footnote* 2012 $5,120,000** portion of used $3,500,000 and $1,000,000 above) (less portion of used lifetimes gifting $5,000,000 lifetime gifting exclusion) exclusion)Estate Tax Rate 45% 35% 35% 55% 35%Discounts and Available Available Available initially (at Let’s hope these Who knows?Installment least, not sure about are not lost in taxSales/GRAT’s, etc. rest of 2011-2012) legislation compromises.Portability of First Dying No No Yes Not as presently Will be continued.Spouse’s $5,000,000 legislated.Exemptions*Although the default is a $5,000,000 exclusion, with a 35% tax rate, an election can be made to have no estate tax apply with respect to decedants dying in 2010, but theincome tax “stepped-up” basis is limited for larger estates.** In addition to the above, the amount that passes estate tax-free ($10,240,000 per couple) will increase with the cost of living beginning in 2012 in $10,000 increments.***The State Death Tax Credit still does apply. There is a state death tax deduction in 2010 through 2012, and the State Death Credit would return in 2013.****Note that exclusion increase does not apply for Non Resident Aliens or future or already existing Qualified Domestic Trusts (QDOT’s) established for Non Resident Alienspouses. They still are subject to a $60,000 estate tax exclusion level for assets subject to US estate tax and need planning as much as ever! 23
  24. 24. Determining Best How To Allocate Assets As Between A Married Couple Part IGeneral Rules:-Typically want each trust funded with at least $3,500,000 worth of assets on death for estate tax planning. Wife could be Trustee if Trustee other than- May be funded from ½ of tenancy by the entireties assets via disclaimer and probate or by life insurance/pension/IRA assets. Husband is sole grantor Husband Wife Husband or Wife (or vice versa)Protected lifeinsurance and Husband’s Wife’s Gifting Trust Lifetime By-annuity Revocable Revocable (Irrevocable) Pass Trustcontracts Trust Trust (Irrevocable)“owned by theinsured.” TBE (Tenancy by the Entireties) • Only exposed to creditors if • Safe from creditors of husband 1. Safe from creditors of• Assets held directly by 1. Safe from the creditors both spouses owe the but exposed to creditors of wife both spouses. revocable trust are subject to of the Grantor’s spouse. creditor or if one spouse (Maintain large umbrella liability 2. If divorce occurs, husband’s creditor claims. 2. If funded by one spouse, dies and the surviving insurance coverage to protect should not be subject• Direct ownership of limited may benefit other spouse spouse has a creditor, the these assets.) to rules for division of partnership or LLC not in TBE • and children during the spouses divorce, or state On wife’s death, can be held property between may have charging order lifetime of both spouses. law or the state of residence under a protective trust, spouses. protection (meaning that if a 3. Otherwise can be changes. which will continue to be safe 3. May be controlled by creditor obtains a lien on the identical to gifting trust 2. On death of one spouse, from creditors of husband and the “entrepreneurial limited partnership or LLC, pictured to the left. surviving spouse may disclaim subsequent spouses and “future spouse” by using a the husband cannot receive up to ½ (if no creditor is new family” Family Limited monies from the limited pursuing the deceased Partnership. partnership or LLC without spouse) to fund By-Pass Trust the creditor being paid). on first death.SEE NEXT PAGE FOR SECOND TIER PLANNINGA COMMON SOLUTION - to use a limited partnership or similar mechanisms and have no assets directly in the “high risk” spouse’strust, half to two-thirds of the assets held as tenants by the entireties, and half to two-thirds of the assets directly in the “low risk”spouse’s trust.Copyright © 2012 Gassman Law Associates, P.A. 24
  25. 25. Determining Best How To Allocate Assets As Between A Married Couple Part II Wife could be Trustee ifSubsidiary Entity Techniques: Husband is sole grantor-Limited partnerships can be used to facilitate discounts, for estate tax purposes, and for charging order Trustee other than Husband Wife protection. (or vice versa)-Limited partnerships and LLCs can also be used to provide “firewall protection” from activities or properties owned. Wife Husband or Husband’s Wife’s Gifting Trust Lifetime By- Revocable TBE Revocable (Irrevocable) Pass Trust Trust Trust (Irrevocable) (Tenancy by the Entireties)• Assets held directly by • Only exposed to creditors if • Safe from creditors of husband 1. Safe from creditors of both spouses owe the 1. Safe from the creditors revocable trust are subject to but exposed to creditors of wife both spouses. creditor or if one spouse of the Grantor’s spouse. husband’s creditor claims. (Maintain large umbrella liability 2. If divorce occurs, dies and the surviving 2. If funded by one spouse,• Direct ownership of limited insurance coverage to protect should not be subject spouse has a creditor, the may benefit other spouse partnership or LLC not in TBE these assets.) to rules for division of spouses divorce, or state and children during the may have charging order • On wife’s death, can be held property between law or the state of residence lifetime of both spouses. protection (meaning that if a under a protective trust, spouses. changes. 3. Otherwise can be creditor obtains a lien on the which will continue to be safe 3. May be controlled by 2. On death of one spouse, identical to gifting trust limited partnership or LLC, from creditors of husband and the “entrepreneurial surviving spouse may disclaim pictured to the left. the husband cannot receive subsequent spouses and “future spouse” by using a monies from the limited up to ½ (if no creditor is new family” Family Limited partnership or LLC without pursuing the deceased Partnership. the creditor being paid). spouse) to fund By-Pass Trust on first death.SECOND TIER 97% 96% 100% 3% 1% 3% Husband, PLANNING: Manager FLP FLP LLC FIREWALL LLC Leveraged Investment Property or activityA COMMON SOLUTION - to use a limited partnership or similar mechanisms and have no assets directly in the “high risk” spouse’s trust, half to two-thirds ofthe assets held as tenants by the entireties, and half to two-thirds of the assets directly in the “low risk” spouse’s trust. 25
  26. 26. Copyright © 2012 Gassman Law Associates, P.A. 26
  27. 27. Tenancy by the Entireties: Our rebuttal to the September 2011 Florida Bar Journal Article – Our letter to the editor. Dear Editor: A Florida Bar Journal article titled Are Florida Laws on Tenancy by the Entireties in Personalty as Clear as We Think?, dated September 2011 raised concern that Florida law is unclear on the question of whether a married couple can own personalty as tenants by the entirety (TBE) unless authorized under the Florida statutes. The author also questioned the clarity of Florida law regarding the creation of an entireties estate in personalty after the 2001 Florida Supreme Court decision in Beal Bank, SSB v. Almand & Assoc. Inc.. Extensivelresearch and review of several Florida Supreme Court cases, DCA opinions, and Bankruptcy court decisions has lead us to conclude that the law with respect to these issues is much more settled than the article seems to imply. Practitioners will want to review the three Florida Supreme Court cases that were not referenced in the article, and other citations mentioned in this letter. Florida law clearly permits a married couple to own all forms of personal property as TBE. Quoting solid prior precedent, the Florida Supreme Court stated in the 1925 case of Bailey v. Smith that "Under the law in force in this State there may be a tenancy by entireties in both real and personal property; and whether such an estate exists as the result of the acquisition of property by and in the names of both husband and wife, must be determined by a consideration of the nature and terms of the transaction as portraying the intent of the parties and of the rules of law applicable thereto." 89 Fla. 303, 307 (Fla. 1925). Beal Bank, SSB only modified Bailey by applying a presumption that jointly owned bank accounts are held as TBE unless there is evidence showing a contrary intent. Florida courts have consistently applied this presumption to all forms of personal property. Furthermore, the case law confirms that one spouse is a separate entity from a TBE, and can therefore transfer property to the marital unit without the use of a strawman, as explicitely held in the 1939 Florida Supreme Court decision of Johnson v. Landefeld. 138 Fla. 511 (Fla. 1939). Florida courts have followed suit with respect to personalty. See e.g., Hurlbert v. Shackleton, 560 So. 2d. 1276 (Fla.1st D.C.A. 1990) (recognizing a spouses right to transfer stock he owned individually to both himself and his wife as TBE); In re Kossow, 325 B.R. 478 (Bankr. S.D. Fla. 2005) (permitting a spouse to assign his interest in tangible personal assets he owned before marriage to TBE) for some of the several cases that reach the same conclusion. Language in the Beal Bank decision supports this as well, as described in the article mentioned below. Florida case law may not allow one spouse to add another spouse to an existing bank account or stock certificate, but that is much different than one spouse making a distinct transfer from himself or herself to facilitate the creation and funding of a new TBE account, stock certificate or other asset. . For an in-depth analysis of these issues and the current state of Florida law please read our article, "Florida Supreme Court Cases Confirm Tenancy By Entireties In Personal Property And Ability Of One Spouse To Transfer Assets To Tenancy By The Entireties," available at the following website, www.gassmanlawassociates.com/Floridatenancybytheentiretiesjurisprudence Sincerely, Alan S. Gassman, JD Ll.M and Erica G. Pless, JD, LL.M Candidate, University of Alabama School of LawCopyright © 2012 Gassman Law Associates, P.A. 27
  28. 28. TYPE OF PERSONAL HOW TBE IS ESTABLISHED STATUTE AND/OR CASE PROPERTY Mortgage/Promissory Any mortgage or assignment made to a married F.S. § 689.115 (2011) note couple is TBE unless there is evidence of a contrary Bailey v. Smith, (Fla. 1925) intent. In re Golub, (Bankr. M.D. Fla. 1987) Vandenberg v. Wells, (Fla. 5th D.C.A. 1998) Bank Accounts Any deposit or account made in the name of two F.S.§ 655.79 (2011) persons who are husband and wife shall be considered a TBE unless otherwise specified in writing. Presumption exists that accounts owned by a Beal Bank, SSB v. Almand & Assoc., Inc., (Fla. 2001) married couple are TBE if the couple checks the TBE box on the account agreement or the account agreement does not offer TBE and the couple In re Aranda (Bankr. S.D. Fla. 2011) checks the box for right of survivorship. Motor vehicle and Certificate of title must include conjunctive "and" F.S. § 319.22(2)(a)(2) (2011) mobile home between spouse names. The use of the disjunctive AmSouth v. Hepner, (Fla. 1st DCA 1994) "or" between spouse names will not create a TBE. In re Mastrofino, (Bankr. M.D. Fla 2000) In re Daniels, (Bankr. M.D. Fla. 2004) Certificate of title, not registration is controlling. In re Gorny, (Bankr. M.D. 2008) Tangible personal All unities must be present; Executed document In re Kossow, (Bankr. S.D. Fla. 2005) property conveying transfer to both spouses and no contrary In re Caliri, (Bankr. M.D. Fla 2006) intent to own as TBE. Bill of sale or physical delivery to both spouses and Doing v. Riley, (5th Cir., 1949) no contrary intent to own as TBE. Partnership interest All unities must be present; Executed document conveying In re Podzamsky, (Bankr. M.D. Fla. 1990) transfer to both spouses and no contrary intent to own as TBE. Stock certificate All unities must be present; Stock certificate must be issued in the Hurlbert v. Shackleton, (Fla. 1st D.C.A. 1990) name of both spouses and no contrary intent to own as TBE. Sackett v. Shahid, (Fla. 1st D.C.A. 1998) Words "with right of survivorship" not required. Cacciatore v. Fishermans Wharf, (Fla. 4th D.C.A. 2002) If TBE is not an option of ownership listed in the subscription or Cohen v. Mathews, (11th Cir. 2009). application form, then selection of another form of ownership such as Joint Tenants with the Right of Survivorship is not an express disclaimer.Copyright © 2012 Gassman Law Associates, P.A. 28
  29. 29. CHARGING ORDER LAW AND EXPOSURE AFTER THE JUNE 2011 FLORIDA LLC LEGISLATION By: Alan S. Gassman, and Christopher J. Denicolo A. WHAT IS A CHARGING ORDER? Most states have laws providing that the creditor of a limited partner of a partnership may not seize any portion of the partner’s ownership interest, if the limited partner individually has a creditor. The creditor may instead receive a court order (a “Charging Order”),forcing the partnership to make distributions that would normally be paid to the debtor limited partner to the creditor to the extent of the limited partner’s indebtedness to the creditor. Typically, the court will not have the authority to mandate if or when the limited partnership would make such distributions. Similarly, many states have similar laws that protect debtors with Limited Liability Company (“L.L.C.”) interests in many states; Nevada legislation even protects some corporations that have fewer than 75 shareholders in this manner. As stated above, a charging order prohibits a creditor from exercising any rights otherwise held by the debtor, such as management, alienation and governance rights, but does permit the creditor to receive distributions that would normally go to the debtor limited partner. Charging order protection for limited partnerships in Florida follows the rules under Florida Statute §620.17031. Subsection (3) of the Statute states that the charging order is the “exclusive remedy” for a creditor seeking to satisfy a judgment from the debtor’s limited partnership interest. Unlike this “exclusive remedy” approach that is used by some states,2 in Florida other remedies, such as foreclosure of the partner’s interest and order for directions and accountings, are explicitly unavailable to the judgment creditor under the statute. This legislative action is meant to prevent the management of a limited partnership from being affected by the creditor. Similar laws exist in a few other states to provide additional protection for limited partnerships.3 1 (1) On application to a court of competent jurisdiction by any judgment creditor of a partner or transferee, the court may charge the partnership interest of the partner or transferable interest of a transferee with payment of the unsatisfied amount of the judgment with interest. To the extent so charged, the judgment creditor has only the rights of a transferee of the partnership interest. (2) This act shall not deprive any partner or transferee of the benefit of an exemption law applicable to the partners partnership or transferees transferable interest. (3) This section provides the exclusive remedy which a judgment creditor of a partner or transferee may use to satisfy a judgment out of the judgment debtors interest in the limited partnership or transferable interest. Other remedies, including foreclosure on the partners interest in the limited partnership or a transferees transferable interest and a court order for directions, accounts, and inquiries that the debtor general or limited partner might have made, are not available to the judgment creditor attempting to satisfy the judgment out of the judgment debtors interest in the limited partnership and may not be ordered by a court. 2 See Ala. Code §10A-5-6.05 (1975)(Alabama); A.R.S. §29-341 (2007) (Arizona); Wyo. Stat. § 17-14-803 (1977)(Wyoming).. 3 See Ala. Stat. §32.11.340 (2004)(Alaska); S.D. Code §48-7-703 (2007)(South Dakota); Del. Code 6 §17-703 (2007)(Delaware); Tex. Bus. Org. Code §153.256 (2007)(Texas); Va. Code §50-73.46:1 (2006)(Virginia). Furthermore, according to some state statutes, no creditor of a partner will have the right to exercise any legal or equitable remedies with respect to property of the limited partnership.4 Rather than protecting solely the debtor’s interest, this additional provision seems to directly protect the limited partnership itself. The limited partnership is “safe” from reverse veil piercing, constructive trusts, resulting trusts, alter ego, and sole purpose theories that might otherwise apply to allow a creditor to reach the assets of the limited partnership. These remedies, which creditors may seek to use to circumvent the Florida limited partnership statute, are discussed in more detail below.5 4 See S.D. Codified Laws §48-7-703 (2007) (South Dakota). 5The author thanks Mark Merric for excellent writings on this subject, and commends the reader to review Mr. Merric’s series of LISI Newsletters numbered 112, 114, 117 and 127 on August 8, 2007, 2008, August 28, 2007, 2008, December 19, 2007, 2008, and April 17, 2008 respectively. Steve Leimberg’s Asset Protection Planning Newsletter can be found at Copyright 2007-2008 Leimberg Information Services, Inc. (LISI). Reproduction in any form or forwarding to any person prohibited - without express permission.Copyright © 2012 Gassman Law Associates, P.A. 29
  30. 30. 10 Year Gifting Period Moving More Value Out Of Taxable Estates by Using $26,000 Annual Exclusion Allowance Discounted Limited Partnership 35% Valuation Discount Or LLC Annual Gifting Permitted Annual Cumulative Value Gifting Equivalent Amount Cumulative Value Value Added By Year Gifting with 7% Growth Applying 35% Discount with 7% Growth Discount Phenomenon 1 $26,000.00 $26,000.00 $40,000.00 $40,000.00 $14,000.00 2 $26,000.00 $53,820.00 $40,000.00 $82,800.00 $28,980.00 3 $26,000.00 $83,587.40 $40,000.00 $128,596.00 $45,008.60 4 $26,000.00 $115,438.52 $40,000.00 $177,597.72 $62,159.20 5 $26,000.00 $149,519.21 $40,000.00 $230,029.56 $80,510.35 6 $26,000.00 $185,985.56 $40,000.00 $286,131.63 $100,146.07 7 $26,000.00 $225,004.55 $40,000.00 $346,160.84 $121,156.30 8 $26,000.00 $266,754.87 $40,000.00 $410,392.10 $143,637.24 9 $26,000.00 $311,427.71 $40,000.00 $479,119.55 $167,691.84 10 $26,000.00 $359,227.65 $40,000.00 $552,657.92 $193,430.27 11 $0.00 $384,373.58 $0.00 $591,343.97 $206,970.39 12 $0.00 $411,279.73 $0.00 $632,738.05 $221,458.32 13 $0.00 $440,069.31 $0.00 $677,029.71 $236,960.40 14 $0.00 $470,874.17 $0.00 $724,421.79 $253,547.63 15 $0.00 $503,835.36 $0.00 $775,131.32 $271,295.96 16 $0.00 $539,103.83 $0.00 $829,390.51 $290,286.68 17 $0.00 $576,841.10 $0.00 $887,447.85 $310,606.75 18 $0.00 $617,219.98 $0.00 $949,569.20 $332,349.22 19 $0.00 $660,425.38 $0.00 $1,016,039.04 $355,613.66 20 $0.00 $706,655.15 $0.00 $1,087,161.77 $380,506.62 21 $0.00 $756,121.01 $0.00 $1,163,263.10 $407,142.08 22 $0.00 $809,049.49 $0.00 $1,244,691.52 $435,642.03 23 $0.00 $865,682.95 $0.00 $1,331,819.92 $466,136.97 24 $0.00 $926,280.76 $0.00 $1,425,047.32 $498,766.56 25 $0.00 $991,120.41 $0.00 $1,524,800.63 $533,680.22 26 $0.00 $1,060,498.84 $0.00 $1,631,536.67 $571,037.84 27 $0.00 $1,134,733.76 $0.00 $1,745,744.24 $611,010.48 28 $0.00 $1,214,165.12 $0.00 $1,867,946.34 $653,781.22 29 $0.00 $1,299,156.68 $0.00 $1,998,702.58 $699,545.90 30 $0.00 $1,390,097.64 $0.00 $2,138,611.76 $748,514.12Copyright © 2012 Gassman Law Associates, P.A. 30
  31. 31. CHOICES AND FACTORS WITH RESPECT TO ALLOCATION AND PAYMENT OF MEDICAL PRACTICE INCOME FOR THE SOLO PRACTITIONER PAYEE CREDITOR TAX/EXPENSE NOTES AND OBSERVATIONS Pension Plans Yes Costs for staff and to maintain plan – spouse on payroll to justify additional contribution.Owned by Physician or asTenants by the Entireties Children on the Payroll Yes – If goes to Roth IRA in the Child in lower rate but 15.3% Can do this for parents and in- name of the child. employment taxes apply. laws as well! Wages paid to Doctor If Head of Household, Florida 15.3% Wage taxes on first Up to $245,000 countable for Statute 222 may apply – $102,000, and then 2.7% over pension contribution deposit directly into protected $102,000. purposes. account. 1.35% deductible at 35% rate, so “after income tax, employment tax rate” is 2.2275%. S CORPORATION Dividends to owner of entity. Only if owner is protected – Not subject to payroll taxes – Not creditor protected as PRACTICE such as tenants by the but could be recharacterized wages. ENTITY entireties or a family limited by IRS. partnership owning the entity. Spouse on payroll. Yes, if spouse is safe. Subject to 15.3% employment . taxes on first $102,000/2.9% over $102,000. May be worth it for protection and/or pension contribution for spouse. Rent Yes, if renting entity is 7% sales tax – after tax cost is May be worth paying full retail protected. They protect PA 4.55% rent if owner or part owner of assets if landlord has lien to building or equipment are enforce rent on long-term children and/or bypass trust lease. for spouse to facilitate estate tax savings. Interest owed to related If related party is protected. Deductible as interest – Why pay a bank 7% with parties. receiving party pays interest personal guarantees when a income. family limited partnership or trust for the children might loan the money without guarantees at 14% and take a lien on all practice assets.Copyright © 2012 Gassman Law Associates, P.A. 31
  32. 32. A Florida Physician’s Guide to Wages and Wage Accounts Florida law provides limitations upon the access that creditors may have to “wages” and “wage accounts” earned and funded by Florida residents. Florida Statute Section 222.11 provides that wages earned by a head of household will generally be immune from creditors. Head of household has been defined to mean that the wage earner provides most of the support for themselves and other family members. For example, where the wage earner’s spouse earns more than the wage earner, the wage earner may not qualify as “head of household” for creditor exemption purposes unless it can be shown that the actual wages earned by such person provide more than half of the support for at least one other family member. Wages do not include dividends that are paid attributable to ownership of a professional practice, as opposed to being labeled as wages. Wages are subject to employment taxes. A family member being supported should be a relative, or maybe a non-relative, who actually resides in the household with the wage earner. Some courts have indicated that where the wage earner is a shareholder in a closely held corporation, and can thus manipulate between what would be received as wages and what would be received as dividends, then no wages may be protected. These unfortunate bankruptcy court decisions have not been appealed, and point out the importance of taking regular paychecks and having arm’s-length employment agreements in place so that wages are paid periodically in a traditional manner to enhance the probability that they will be protected. If wages are “creditor exempt,” then it is important to maintain the creditor exempt status of the wages by depositing them into an account or other investments that will also be creditor exempt.Copyright © 2012 Gassman Law Associates, P.A. 32
  33. 33. A Florida Physician’s Guide to Wages and Wage Accounts Other creditor exempt assets that wages may be “converted to” can include paying down the mortgage on a protected home, investing the paycheck directly into a properly titled annuity contract or life insurance policy, funding a tenancy by the entireties account where the wage earner’s spouse would not be sued by the same creditor as the wage earner, or making deposits into a wage account. Physicians who have monies or investments that are not creditor exempt might be well advised to spend down the non creditor exempt savings, while accumulating wages in a wage or other protected account. The Florida statutes do not explicitly impose any ownership, titling, naming or other specific requirement for an account to qualify as a wage account. A “wage account” can be owned by the physician earner, or may be held as tenancy by the entireties by the physician earner and the physician’s spouse. Most, if not all, married physicians whose spouses do not practice with them will be better protected by depositing their wages into a tenancy by the entireties account so that the wages may be safeguarded for two reasons: (1) the wage exemption rules as described above will apply, and (2) to “invade” a tenancy by the entireties bank account, a creditor must have a judgment against both spouses or show that the transfer into the account was Fraudulent transfer. If a wage check is a creditor exempt asset, then the deposit of the wage check directly into a protected tenancy by the entireties account should not be considered a Fraudulent transfer. Many physicians and bankers waste a lot of time opening “wage accounts” where tenancy by the entireties accounts or other vehicles are just as, if not more, protective and would qualify as wage accounts anyway. The statute simply says that wages are protected for six months in the account so long as they can be traced, and thus are not confused with non-wage or older wage deposits that would not be protected. It makes sense to have an account funded solely by wages, and to “empty the account” into other exempt investments, at least every six months, so that there would never have to be a tracing and proof analysis as to wage money protection.Copyright © 2012 Gassman Law Associates, P.A. 33
  34. 34. 2010 Competitive Malpractice Insurance Rates $250,000/$750,000 $1M/$3M Competitive Mature Rates 2010 Competitive Mature Rates 2010 Remainder of Dade County Broward Remainder of Dade County Broward Florida County Florida County Internal $9,016 $18,507 $17,464 $15,779 $32,388 $30,561 Medicine N/S Family $7,935 $16,287 $15,368 $13,886 $28,502 $26,894 Practice Dermatology $4,333 $8,450 $7,973 $6,464 $14,122 $13,325 N/S Cardiology $12,623 $25,911 $24,449 $22,090 $45,344 $42,785 Invasive Cardiology $14,426 $28,488 $26,577 $24,140 $47,073 $44,417 Interventional Gynecology $12,623 $24,645 $23,256 $21,123 $41,189 $38,866 SurgeryCopyright © 2012 Gassman Law Associates, P.A. 34
  35. 35. MALPRACTICE INSURANCE ISSUES The debate continues after over 30 years as to whether it is best to maintain high or low levels of malpracticeinsurance limits. We always recommend the highest limits that a doctor can reasonably afford, but important factors with respect tothis are as follows: As with any type of insurance, malpractice insurance is about the balance between cost and coverage. Higherpremiums will garner you higher coverage, but some physicians may wish to lower their premiums to save money, and take the riskof lower coverage. Factors to consider in finding the balance that works for you are discussed below:1. Lowering Malpractice Limits Advantages Disadvantages(a) Reduction of premiums. (a) If there is a serious claim, personal and practice assets will be exposed so that damages can exceed policy limits. If a claim value exceeds limits of liability, personal and practice assets may be lost, although this is generally unlikely if proper planning has been effectuated.(b) In a horrendous situation, a carrier is more likely to simply give (b) Having to defend a claim with the risk of losingup policy limits than to defend a complicated case. personal or practice assets results in significantly higher emotional distress for the physician, their partners, and loved ones.(c) In some instances where the liability may be great, but (c) Maintaining high limits going forward means that thenegligence is hard to prove, some plaintiff firms may not pursue a carrier would have to defend claims for future acts at the same highsuit if there are fewer dollars available at the end of the rainbow. limits. Reducing limits now means that claims made in the past willThe better firms may reject such claims, and the “second or third only be subject to the now lower limits.tier plaintiff firms” will more likely settle for less or lose the suit.(d) As a matter of principle, this will leave less money for plaintiffs’ (d) Potential employed physicians, banks, and managedlawyers and people who sue doctors to help stop feeding the care plans may be reluctant to work with a practice having lowerindustry. limits.(e) From a public records and future evaluation standpoint, the (e) In case of an actual error and an injured patient,prospect of being able to settle any claim at $250,000 instead of at having more coverage might be the right thing to do.a higher limit means that catastrophic claims will be described ashaving been $250,000 matters as opposed to $1,000,000 matters. 35Copyright © 2012 Gassman Law Associates, P.A. 35
  36. 36. MALPRACTICE INSURANCE ISSUES 2. Out of State or Country Malpractice Carriers: A Dangerous Middle Ground: (a) Many physicians have chosen small out-of-state or offshore carriers or “self-insurance” programs in lieu of traditional malpractice insurance. (b) These programs usually cost much less than traditional malpractice insurance, and offer the doctors “more control” over the claims process. (c) These carriers are not registered with Florida, and upon becoming insolvent the doctor has no protection at all. (d) These carriers are much more likely to become insolvent than Florida carriers. (e) In some cases, these carriers do not satisfy the definitional requirements of “malpractice insurance”, so the doctor is actually “bare”, but may not know to follow the going bare rules. A patient with a judgment against such a doctor may have the ability to cause the doctor to lose his or her discharge in bankruptcy and medical license!Copyright © 2012 Gassman Law Associates, P.A. 36
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