At your own risk: The pitfalls of DIY estate planning

There’s no law that says you can’t prepare your own estate plan. And with an abundance of online services that automate the creation of wills and other documents, it’s easy to do. But unless your estate is small and your plan is exceedingly simple, the pitfalls of do-it-yourself (DIY) estate planning can be many.

Dotting the i’s and crossing the t’s

A common mistake people make with DIY estate planning is to neglect the formalities associated with the execution of wills and other documents. Rules vary from state to state regarding the number and type of witnesses who must attest to a will and what, specifically, they must attest to.

Also, states have different rules about interested parties (that is, beneficiaries) serving as witnesses to a will or trust. In many states, interested parties are ineligible to serve as witnesses. In others, an interested-party witness triggers an increase in the required number of witnesses (from two to three, for example).

Keeping abreast of tax law changes

Legislative developments during the last several years demonstrate how changes in the tax laws from one year to the next can have a dramatic impact on your estate planning strategies. DIY service providers don’t offer legal or tax advice — and provide lengthy disclaimers to prove it. Thus, they cannot be expected to warn users that tax law changes may adversely affect their plans.

Consider this example: A decade ago, in 2008, George used an online service to generate estate planning documents. At the time, his estate was worth $4 million and the federal estate tax exemption was $2 million.

George’s plan provided for the creation of a trust for the benefit of his children, funded with the maximum amount that could be transferred free of federal estate tax, with the remainder going to his wife, Ann. If George died in 2008, for example, $2 million would have gone into the trust and the remaining $2 million would have gone to Ann.

Suppose, however, that George dies in 2018, when the federal estate tax exemption has increased to $11.18 million and his estate has grown to $10 million. Under the terms of his plan, the entire $10 million — all of which can be transferred free of federal estate tax — will pass to the trust, leaving nothing for Ann.

While even a qualified professional couldn’t have predicted in 2008 what the estate tax exemption would be at George’s death, he or she could have structured a plan that would provide the flexibility needed to respond to tax law changes.

Don’t try this at home

These are just a few examples of the many pitfalls associated with DIY estate planning. To help ensure that you achieve your estate planning objectives, contact us to review your existing plan.

© 2018

Make a licensing agreement work for your nonprofit

Licensing your not-for-profit’s name to a for-profit company can provide a valuable new revenue source — but it can also be risky. If you’re considering a licensing arrangement, ensure that the partnership really will generate funds and, possibly more important, a positive impression of your brand.

Success . . . and controversy

When licensing arrangements work, both charities and companies can experience significant benefits. AARP and UnitedHealthcare, the ASPCA and Crum & Forster Pet Insurance Group, and Share Our Strength and American Express have all successfully executed profitable licensing arrangements.

But such arrangements can also cause controversy. In the 1990s, the Arthritis Foundation licensed its name to a line of Johnson & Johnson analgesics called Arthritis Foundation Pain Relievers in return for at least $1 million per year. But many groups complained that the arrangement compromised the charity’s objectivity.

Preventing unwelcome surprises

To ensure a license arrangement doesn’t become a public relations problem, thoroughly research any potential partner’s business and products and the backgrounds of its principals. Also confirm that your mission and values align. If you determine that a potential licensee’s products or services have the potential to undermine your brand, take a pass — no matter how high the promised royalties.

Work with your attorney to include certain provisions in any license agreement. Specify how the licensee can use your name and brand, mandate quality control standards and detail termination rights. And realize that signing the agreement doesn’t end your responsibility — you’ll need to actively monitor the licensee’s use of your name and intellectual property throughout the agreement period. If it sounds like all this will require additional staff time, you’re right.

In fact, the resource-intensive nature of licensing leads some nonprofits to outsource the work. Outsourcing allows your organization to focus on its mission, but you’ll probably pay upfront fees, a monthly retainer and a percentage of the royalties your consultant secures. So it’s important to crunch the numbers and make sure your license arrangement is worth this expense and effort.

Compliance matters

Nonprofits enjoy a royalty exclusion that generally exempts licensing revenues from unrelated business income taxes (UBIT). But certain arrangements can jeopardize this. You can’t receive compensation based on your licensee’s net sales — only on gross sales. And you must play a passive role, meaning you don’t actively provide services to the licensee. Contact us for more information.

© 2018

Addressing long-term care costs with a tax-qualified LTC insurance policy

No matter how diligently you prepare, your estate plan can quickly be derailed if you or a loved one requires long-term home health care or an extended stay at a nursing home or assisted living facility.

The annual cost of long-term care (LTC) can reach as high as six figures, and this expense isn’t covered by traditional health insurance policies, Social Security or Medicare. So it’s important to have a plan to finance these costs, either by setting aside some of your savings or purchasing insurance.

LTC insurance

An LTC insurance policy supplements your traditional health insurance by covering services that assist you or a loved one with one or more activities of daily living (ADLs). Generally, ADLs include eating, bathing and dressing.

LTC coverage is relatively expensive, but it may be possible to reduce the cost by purchasing a tax-qualified policy. Generally, benefits paid in accordance with an LTC policy are tax-free. In addition, if a policy is tax-qualified, your premiums are deductible (as medical expenses) up to a specified limit.

To qualify, a policy must:

  • Be guaranteed renewable and noncancelable regardless of health,
  • Not delay coverage of pre-existing conditions more than six months,
  • Not condition eligibility on prior hospitalization,
  • Not exclude coverage based on a diagnosis of Alzheimer’s disease, dementia, or similar conditions or illnesses, and
  • Require a physician’s certification that you’re either unable to perform at least two of six ADLs or you have a severe cognitive impairment and that this condition has lasted or is expected to last at least 90 days.

It’s important to weigh the pros and cons of tax-qualified policies. The primary advantage is the premium deduction. But keep in mind that medical expenses, including LTC insurance premiums, are deductible only if you itemize and only to the extent they exceed 7.5% of your adjusted gross income (AGI) in 2018 or 10% of AGI in future years (unless Congress extends the lower threshold). So some people may not have enough medical expenses to benefit from this advantage. It’s also important to weigh any potential tax benefits against the advantages of nonqualified policies, which may have less stringent eligibility requirements.

Think long term

Given the potential magnitude of long-term care expenses, the earlier you begin planning, the better. We can help you review your options and analyze the relative benefits and risks.

© 2018

Nonprofits should be prepared for sudden outpouring of support

Americans gave unprecedented sums to charity in response to the devastating hurricanes last year. Large organizations, such as the American Red Cross, were equipped to handle the huge influxes of donations. However, some smaller charities were overwhelmed. Although it may seem like an unlikely problem, your not-for-profit needs a plan to handle a potential outpouring of support.

Know what’s normal

Perhaps the biggest lesson to learn from recent disasters is to always have an expansion plan in place. When the influx of online giving reached critical mass, many organizations found that their websites overloaded and went offline. Their sites had to be moved to more powerful servers to handle the increased traffic.

Keep track of “normal” website hits, as well as the numbers of calls and email inquiries received, so you won’t be caught off guard when you start to surpass that amount. Also, know your systems’ ultimate capacity so you can enact a contingency plan should you approach critical mass.

Mobilize your troops

Having an “early warning system” is only one part of being prepared. You also need to be able to mobilize your troops in a hurry. Do you know how to reach all of your board members at any time? Can you efficiently organize volunteers when you need extra hands quickly? Be sure you have:

• An up-to-date contact list of board members that includes home, office and mobile phone numbers,
• A process, such as a phone tree, so you can communicate with the board quickly and efficiently, and
• One or more emergency volunteer coordinators who can call and quickly train people when you need them.

Also conduct a mock emergency with staff and volunteers to learn where you’re prepared to ramp up and where you’re not.

Build relationships

A surge in donor interest may mean a surge in media attention. While it might be tempting to say, “not now, we’re busy,” don’t pass up the opportunity to publicize your organization’s mission and the work that’s garnering all the attention.

In most cases, the immediate surge of interest eventually wanes. Before that happens, start to build lasting relationships with new donors and media contacts. Inform them about the work your organization does under “normal” circumstances and suggest ways to get them involved.

© 2018

IRS issues guidance on new bonus depreciation rules

The Tax Cuts and Jobs Act (TCJA) significantly expands bonus depreciation under Section 168(k) of the Internal Revenue Code for both regular tax and alternative minimum tax (AMT) purposes. Now, the IRS has released proposed regulations that clarify the requirements that businesses must satisfy to claim bonus depreciation deductions. Although the regs are only proposed at this point, the IRS will allow taxpayers to rely on them for property placed in service after September 27, 2017, for tax years ending on or after September 28, 2017.

Previous law

Under pre-TCJA law, businesses could claim a first-year bonus depreciation deduction equal to 50% of the basis of qualifying new (not used) assets placed in service in 2017. The deduction was available for the cost of qualifying new assets, including computers, purchased software, vehicles, machinery, equipment and office furniture. Used assets didn’t qualify for the deduction.

You also could claim 50% bonus depreciation for qualified improvement property (QIP), generally defined as any qualified improvement to the interior portion of a nonresidential building if placed in service after the building was placed in service. QIP costs didn’t include costs for the enlargement of a building, an elevator, an escalator, or a building’s internal structural framework.

TCJA changes

The TCJA allows 100% first-year bonus depreciation in Year 1 for qualifying assets placed in service between September 28, 2017, and December 31, 2022. The bonus depreciation percentage will begin to phase out in 2023, dropping 20% each year for four years until it expires at the end of 2026, absent congressional action to extend the break. (The phaseout reductions are delayed a year for certain property with longer production periods and aircraft.)

To qualify for 100% bonus depreciation, property generally must:

  • Fall within the definition of “qualified property,”
  • Be placed in service between September 28, 2017, and December 31, 2022, and
  • Be acquired by the taxpayer after September 27, 2017.

The proposed regs provide additional guidance on several of these elements.

Qualified property

Under the proposed regs, “qualified property” for bonus depreciation purposes is defined to include:

  • Property depreciated under the Modified Accelerated Cost Recovery System (MACRS) that has a recovery period of 20 years or less (generally, tangible personal property),
  • Certain computer software,
  • Water utility property,
  • Qualified film or television productions,
  • Qualified live theatrical productions, and
  • Specified plants.

For 50% first-year bonus depreciation, it also includes QIP acquired after September 27, 2017, and placed in service before January 1, 2018.

Congress intended for QIP placed in service after 2017 to have a 15-year MACRS recovery period, which would make it eligible for bonus depreciation. However, due to a drafting error, the 15-year recovery period for QIP isn’t reflected in the statutory language of the TCJA. Absent a technical correction to fix this glitch, QIP placed in service after 2017 has a 39-year MACRS recovery period and, therefore, is ineligible for bonus depreciation.

Qualified property also doesn’t encompass property that must be depreciated under the Alternative Depreciation System (ADS). That includes MACRS nonresidential real property, residential rental property and QIP held by real estate businesses that elect out of the TCJA’s limit on the business interest deduction. It also includes property with a recovery period of 10 years or more held by a farming business that elects out of the business interest limit.

The proposed regs detail how taxpayers can elect out of bonus depreciation. They also provide rules for electing 50% bonus depreciation, instead of 100% bonus depreciation, for property acquired after September 27, 2017, and placed into service during the taxable year that includes September 28, 2017.

Acquired used property

The proposed regs provide that the acquisition of used property is eligible for bonus depreciation if the property wasn’t used by the taxpayer or a predecessor at any time prior to acquisition of the property. Property is treated as used by the taxpayer or a predecessor before acquisition only if the taxpayer or a predecessor had a depreciable interest in the property at any time before the acquisition, regardless of whether the taxpayer or predecessor actually claimed depreciation.

Businesses that lease property, therefore, can acquire that property at the end of the lease and qualify for bonus depreciation. If a business has a depreciable interest in improvements made to lease property and subsequently acquires the property, the unadjusted depreciable basis of the property that’s eligible for the additional first-year depreciation excludes the unadjusted depreciable basis attributable to the improvements.

If a business initially acquires a depreciable interest in a part of a property and later acquires an additional depreciable interest in it, the additional interest isn’t treated as being previously used by the business. If, however, the business holds a depreciable interest in a portion of a property, sells that portion or part of it, and then acquires a depreciable interest in another part of the same property, it’s treated as previously having a depreciable interest in the property, up to the amount of the part for which the business held a depreciable interest in the property presale.

Used property also must satisfy certain related party and carryover basis requirements, as well as certain cost requirements. The proposed regs include antiabuse provisions for members of a consolidated group, certain acquisitions in accordance with a series of related transactions, and syndication transactions. And they explain how the new bonus depreciation rules apply to a variety of transactions involving partnerships holding assets that are otherwise eligible for bonus depreciation (for example, used machinery or vehicles).

Date of acquisition

The TCJA states that property won’t be treated as acquired after the date on which a “written binding contract” is entered into for the acquisition. The proposed regs clarify that the closing date, delivery date or other such date is irrelevant when determining the date of acquisition — only the date the contract is entered into matters for this purpose.

Under the proposed regs, a written contract is binding if it’s enforceable under state law against a taxpayer (or a predecessor) and doesn’t limit damages to a specified amount. A contractual provision that limits damages to at least 5% of the total contract price won’t be treated as limiting damages to a specified amount.

A letter of intent for an acquisition isn’t a binding contact, according to the proposed regs. Further, supply agreements aren’t treated as written binding contracts until a taxpayer provides the amount and design specifications of the property.

The proposed regs eliminate the safe harbor for property produced under a contract. Such property is no longer treated as self-constructed property, so the date that the contract is entered into generally is the date of acquisition.

Actual self-constructed property isn’t subject to the written binding contract requirement. The acquisition rules for self-constructed property are met if the taxpayer begins manufacturing, constructing or producing the property after September 27, 2017.

The rules regarding the eligibility of acquired used property could have a significant impact on mergers, acquisitions and divestitures. For example, buyers might prefer to structure a transaction as an asset purchase rather than a stock acquisition to take advantage of bonus depreciation. Businesses also should review transactions that have closed but are subject to the new rules to ensure they achieve the optimal tax treatment.

Amount of the deduction

According to the proposed regs, the amount of the first-year depreciation deduction equals the applicable percentage of the property’s unadjusted depreciable basis. The unadjusted depreciable basis generally is limited to the property’s basis attributable to manufacture, construction or production of the property before January 1, 2027.

Plan carefully

Businesses that wish to take advantage of the new rules for fiscal tax years beginning in 2017 but ending in 2018 may have several bonus depreciation options, and amended returns may be advisable in some cases. We can help you make the most of the new rules for fiscal tax years beginning in 2017 and going forward.

© 2018

Choosing the right accounting method for tax purposes

The Tax Cuts and Jobs Act (TCJA) liberalized the eligibility rules for using the cash method of accounting, making this method — which is simpler than the accrual method — available to more businesses. Now the IRS has provided procedures a small business taxpayer can use to obtain automatic consent to change its method of accounting under the TCJA. If you have the option to use either accounting method, it pays to consider whether switching methods would be beneficial.

Cash vs. accrual

Generally, cash-basis businesses recognize income when it’s received and deduct expenses when they’re paid. Accrual-basis businesses, on the other hand, recognize income when it’s earned and deduct expenses when they’re incurred, without regard to the timing of cash receipts or payments.

In most cases, a business is permitted to use the cash method of accounting for tax purposes unless it’s:

1. Expressly prohibited from using the cash method, or
2. Expressly required to use the accrual method.

Cash method advantages

The cash method offers several advantages, including:

Simplicity. It’s easier and cheaper to implement and maintain.

Tax-planning flexibility. It offers greater flexibility to control the timing of income and deductible expenses. For example, it allows you to defer income to next year by delaying invoices or to shift deductions into this year by accelerating the payment of expenses. An accrual-basis business doesn’t enjoy this flexibility. For example, to defer income, delaying invoices wouldn’t be enough; the business would have to put off shipping products or performing services.

Cash flow benefits. Because income is taxed in the year it’s received, the cash method does a better job of ensuring that a business has the funds it needs to pay its tax bill.

Accrual method advantages

In some cases, the accrual method may offer tax advantages. For example, accrual-basis businesses may be able to use certain tax-planning strategies that aren’t available to cash-basis businesses, such as deducting year-end bonuses that are paid within the first 2½ months of the following year and deferring income on certain advance payments.

The accrual method also does a better job of matching income and expenses, so it provides a more accurate picture of a business’s financial performance. That’s why it’s required under Generally Accepted Accounting Principles (GAAP).

If your business prepares GAAP-compliant financial statements, you can still use the cash method for tax purposes. But weigh the cost of maintaining two sets of books against the potential tax benefits.

Making a change

Keep in mind that cash and accrual are the two primary tax accounting methods, but they’re not the only ones. Some businesses may qualify for a different method, such as a hybrid of the cash and accrual methods.

If your business is eligible for more than one method, we can help you determine whether switching methods would make sense and can execute the change for you if appropriate.

© 2018

Steering your nonprofit through its growth stage

A not-for-profit’s growth stage generally starts two or three years after formation and continues until maturity at around age 7. This period comes with a sense of accomplishment and the opportunity to refine and expand, but these “adolescent” years can pose challenges as well.

Board shifts

Perhaps the most common marker of a growth-stage nonprofit is changes in the composition and focus of its board of directors. Boards usually continue to be active in operations to some degree, but also must begin to work on strategic matters — the policies, planning and evaluations necessary for long-term sustainability.

Founding board members may move on at this stage. The result could be a larger and more inclusive group of individuals, preferably with a wider range of skills, talents and backgrounds. Boards also can establish committees at this time.

Staff expansion

As demand for services builds and you expand programming, staffing needs increase. Adding to staff in the growth stage will help avoid burnout. Your nonprofit should design a clear organizational structure and hire experienced managers.

You should also develop formal job descriptions. Employees will now be expected to work under formal systems, following policies and procedures and in a more efficient manner. Your organization’s executive director is still the primary decision maker, but he or she may not have time to be as involved in every area.

Mission adjustment

You might want to adjust your nonprofit’s mission during the growth stage. Changed demographics or economic developments could make it appropriate to revise your organization’s purpose.

You can home in more intensely on a subset of the original mission or shift focus to another area. For example, a literacy organization that started out helping native English speakers improve their reading skills might expand to include teaching English as a second language. The charity may then develop a strategic plan to incorporate the changes to its mission.

Funding augmentation

Growth-stage organizations are generally in a more comfortable financial position, with less uncertainty. You may have developed good relations with key funders, but there are still obstacles in securing necessary funding (and cash flow) to support current programming. To maintain growth, you’ll need to diversify revenue sources, manage cash flow and develop solid budgets. We can help you.

© 2018

Contemplating compensation increases and pay for performance

As a business grows, one of many challenges it faces is identifying a competitive yet manageable compensation structure. After all, offer too little and you likely won’t have much success in hiring. Offer too much and you may compromise cash flow and profitability.

But the challenge doesn’t end there. Once you have a feasible compensation structure in place, your organization must then set its course for determining the best way for employees to progress through it. And this is when you must contemplate the nature and efficacy of linking pay to performance.

Issues in play

Some observers believe that companies shouldn’t use compensation to motivate employees because workers might stop focusing on quality of work and start focusing on money. Additionally, employees may feel that the merit — or “pay-for-performance” — model pits staff members against each other for the highest raises.

Thus, some businesses give uniform pay adjustments to everyone. In doing so, these companies hope to eliminate competition and ensure that all employees are working toward the same goal. But, if everyone gets the same raise, is there any motivation for employees to continually improve?

2 critical factors

Many businesses don’t think so and do use additional money to motivate employees, whether by bonuses, commissions or bigger raises. In its most basic form, a merit increase is the amount of additional compensation added to current base pay following an employee’s performance review. Two critical factors typically determine the increase:

1. The amount of money a company sets aside in its “merit” budget for performance-based increases — usually based on competitive market practice, and2. Employee performance as determined through a performance review process conducted by management.

Although pay-for-performance can achieve its original intent — recognizing employee performance and outstanding contributions to the company’s success — beware that your employees may perceive merit increases as an entitlement or even nothing more than an inflation adjustment. If they do, pay-for-performance may not be effective as a motivational tool.

Communication is the key

The ideal solution to both compensation structure and pay raises will vary based on factors such as the size of the business and typical compensation levels of its industry. Nonetheless, to avoid unintended ill effects of the pay-for-performance model, be sure to communicate clearly with employees. Be as specific as possible about what contributes to merit increases and ensure that your performance review process is transparent, interactive and understandable. Contact us to discuss this or other compensation-related issues further.

© 2018

An FLP can save tax in a family business succession

One of the biggest concerns for family business owners is succession planning — transferring ownership and control of the company to the next generation. Often, the best time tax-wise to start transferring ownership is long before the owner is ready to give up control of the business.
A family limited partnership (FLP) can help owners enjoy the tax benefits of gradually transferring ownership yet allow them to retain control of the business.

How it works

To establish an FLP, you transfer your ownership interests to a partnership in exchange for both general and limited partnership interests. You then transfer limited partnership interests to your children.

You retain the general partnership interest, which may be as little as 1% of the assets. But as general partner, you can still run day-to-day operations and make business decisions.

Tax benefits

As you transfer the FLP interests, their value is removed from your taxable estate. What’s more, the future business income and asset appreciation associated with those interests move to the next generation.

Because your children hold limited partnership interests, they have no control over the FLP, and thus no control over the business. They also can’t sell their interests without your consent or force the FLP’s liquidation.

The lack of control and lack of an outside market for the FLP interests generally mean the interests can be valued at a discount — so greater portions of the business can be transferred before triggering gift tax. For example, if the discount is 25%, in 2018 you could gift an FLP interest equal to as much as $20,000 tax-free because the discounted value wouldn’t exceed the $15,000 annual gift tax exclusion.

To transfer interests in excess of the annual exclusion, you can apply your lifetime gift tax exemption. And 2018 may be a particularly good year to do so, because the Tax Cuts and Jobs Act raised it to a record-high $11.18 million. The exemption is scheduled to be indexed for inflation through 2025 and then drop back down to an inflation-adjusted $5 million in 2026. While Congress could extend the higher exemption, using as much of it as possible now may be tax-smart.

There also may be income tax benefits. The FLP’s income will flow through to the partners for income tax purposes. Your children may be in a lower tax bracket, potentially reducing the amount of income tax paid overall by the family.

FLP risks

Perhaps the biggest downside is that the IRS scrutinizes FLPs. If it determines that discounts were excessive or that your FLP had no valid business purpose beyond minimizing taxes, it could assess additional taxes, interest and penalties.

The IRS pays close attention to how FLPs are administered. Lack of attention to partnership formalities, for example, can indicate that an FLP was set up solely as a tax-reduction strategy.

Right for you?

An FLP can be an effective succession and estate planning tool, but it isn’t risk free. Please contact us for help determining whether an FLP is right for you.

© 2018

Is there a weak link in your supply chain?

In an increasingly global economy, keeping a close eye on your supply chain is imperative. Even if your company operates only locally or nationally, your suppliers could be affected by wider economic conditions and developments. So, make sure you’re regularly assessing where weak links in your supply chain may lie.

3 common risks

Every business faces a variety of risks. Three of the most common are:

1. Legal risks. Are any of your suppliers involved in legal conflicts that could adversely affect their ability to earn revenue or continue serving you?

2. Political risks. Are any suppliers located in a politically unstable region — even nationally? Could the outcome of a municipal, state or federal election adversely affect your industry’s supply chain?

3. Transportation risks. How reliant are your suppliers on a particular type of transportation? For example, what’s their backup plan if winter weather shuts down air routes for a few days? Or could wildfires or mudslides block trucking routes?

Potential fallout

The potential fallout from an unstable supply chain can be devastating. Obviously, first and foremost, you may be unable to timely procure the supplies you need to operate profitably.

Beyond that, high-risk supply chains can also affect your ability to obtain financing. Lenders may view risks as too high to justify your current debt or a new loan request. You could face higher interest rates or more stringent penalties to compensate for it.

Strategies to consider

Just as businesses face many supply chain risks, they can also avail themselves of a variety of coping strategies. For example, you might divide purchases equally among three suppliers — instead of just one — to diversify your supplier base. You might spread out suppliers geographically to mitigate the threat of a regional disaster.

Also consider strengthening protections against unforeseen events by adding to inventory buffers to hedge against short-term shortages. Take a hard look at your supplier contracts as well. You may be able to negotiate long-term deals to include upfront payment terms, exclusivity clauses and access to computerized just-in-time inventory systems to more accurately forecast demand and more closely integrate your operations with supply-chain partners.

Lasting success

You can have a very successful business, but if you can’t keep delivering your products and services to customers consistently, you’ll likely find success fleeting. A solid supply chain fortified against risk is a must. We can provide further information and other ideas.

© 2018