One of the big announcements on Wall Street this summer is the Initial Public Offering (IPO) of Facebook. Some of the estimates that I have seen say it is possible that the IPO may bring in more than $100 billion for the company. That is a lot of cash for a new company and one that is founded and ran by people less than 30 years old.

But, as this is an estate and tax planning blog, the pertinent part I would like to discuss is the strategies of the founders to shift their wealth to their family without incurring excessive taxation. According to TaxProf Blog, some of the founders are using Grantor Retained Annuity Trusts (GRATs) to shift some of their stock to benefit other family members before the IPO.

The GRAT works by holding the property for the benefit of others, while still being income tax reported by the Grantor. When the Grantor sells his pre-IPO shares of Facebook to the GRAT, he takes a discounted value and a low rate of interest on the installment note. When the stock is offered at IPO and increases vastly in value, the other family members benefit from the appreciation.
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The headline I read stated that the combined strategies would save an estimated $200 million in taxes for these young entrepenuers!

So, the pertinent question for you here in Altus and southwest Oklahoma, is if a 30 year-old has already taken steps to protect his wealth for future generations, have you taken the necessary steps for your own family and your legacy?

An interesting article was in the New York Times recently how Apple, Inc., the world’s largest manufacturer now, avoid paying income taxes by shifting its places of operations. The article should be eye opening for most of the general population, not in the fact that tax avoidance is out there, but that all of this done legally and to show how tax rates affect business decisions.

With proper planning, you too, as a small business owner in southwest Oklahoma, can plan to lower your taxes and do your estate planning. I cannot guarantee you can save billions of dollars, but we can look at what is best for you.

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In an announcement last week, the Department of Labor withdrew the proposed child labor rules that would have prevented any child (under the age of 16) from doing most labor on farms not owned directly by his or her parents. Further, the Department said that the regulation would not be pursued for the duration of the Obama administration.

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Reviewing existing estate plans is an important part of the estate planning process. Although estate plans are valid at the time they are signed, periodically updating and reviewing the documents is important, especially after big life events like deaths, births, marriages, and divorces. The five areas where individuals should focus when updating and reviewing estate plans are below:

1. A simple review of your documents to ensure you have and understand the plan you put into place.

2. It is important to review that people nominated as guardians, agents, executors, and successor trustees are still in a trusted relationship with you and, if not, naming someone who is.

3. If your plan was created when you had minor children and now they are grown, ensuring the plan fits their needs now, and not what they were when they were minors.
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4. Ensuring that any assets acquired after creation of a trust  are in the name of the trust. A thing to remember here is that trusts only control the assets actually titled to the trust.

5. Keeping up with the changes in the estate tax and regulation over health care decisions. You will want to ensure that your estate plan completes its objectives in the most tax efficient way possible, and with that if you are unable to make decisions for yourself, that someone can act on your behalf.

If you would like a review with an attorney, I will offer one hour of my services, to tell you what your plan currently says and what it should say. If you are interested in this type of review, please call 580-318-8829 to set up an appointment.

I recently had a client come in and discuss how he should protect himself from liability on his closely-held business (he and his brother-in-law were the sole owners). This got me thinking that the information would probably be of a benefit to others who follow this blog.

When you look at limiting liability that may stem from a business (called inside liability protection), one must look to the state corporations law as well as the federal tax laws, and how the best options will work for all of the owners. That being said, there are still a few options out there and I will try to do a short overview of the options.

Incorporation: One of the oldest ways to leagally protect from liability, every state has laws to allow incorporation of a business. By incorporating, the business will file with the State and the owners will receive stock back to signify their ownership of the company. Incorporating has been around for a long time, so there are many positives with established law that come from this type of choice of entity, however, there are many downsides, too. One of the main downsides is that corporations are generally taxed at the corporate level, and then again at the owner level (dividends). This can be avoided for most small businesses via an “S” election, that only causes taxation at the shareholder level, but the “S” election comes with its own restrictions. Another downside of the corporate choice of entity is that it does not come with a standard “outside liability protection”. Outside liability protection means that if an owner is sued, his shares of stock are not protected from the creditor; e.g., the creditor can become the new owner of the stock. When you are dealing with a closely-held business, the other owners will not want to deal with another owner’s creditor, and by choosing corporate form, it may result in the end of the business. Another downside is the imposition of franchise taxes at the state level, which are usually avoided with the other entities.

Limited Partnership: The Limited Partnership (LP) was one of the fist attempts to allow limitation on inside and outside liability as well as a way to avoid the double taxation associated with corporations. The LP must have a general partner (GP) who is subject to full liability, but all limited partners only risk losing what they have invested in the business. This option was greatly used 50 years ago, but with the advent of the LLC, there are not used as often now. LPs must be taxed as partnerships and there must always be a General Partner and at least one Limited Partner.
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Limited Liability Company: The Limited Liability Company (LLC) is the most recent development in the options to limit liability of owners. The LLC (in most states) offers both inside and outside liability protection, meaning neither a creditor of the business nor a creditor of the owner will affect the other owners beyond initial investments. In addition, the LLC has the most flexibility with taxation due to the IRS “check the box” regulations. This means that an LLC can be taxed as a disregarded entity (if only one owner), as a partnership, as a corporation, or an “S” corporation. In addition, the LLC has flexibility for future planning because different classes of ownership can be created.

If you have a small business or farm then you should really look at ways to protect your assets and your family from liability. Consulting with a qualified estate and tax planning attorney is one of the best ways to rest assured you get the best protection.