E-UpdateGiarmarco, Mullins & Horton, P.C.
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Editor: Salvatore J. LaMendola, Esq. May 2012

In This Issue:

SHARK-FIN CLAT CASE STUDY

UNITED STATES MOST GENEROUS NATION IN 2011; DID THE ESTATE TAX HELP?

INHERITED IRA WIN IN MASSACHUSETTS

JUNE 2012 AFRs


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SHARK-FIN CLAT CASE STUDY

Every so often, we are asked for our opinion on the "Shark-fin" CLAT technique. In response, we have prepared a case study to illustrate the risks involved. While we certainly favor the use of life insurance in charitable planning by way of iCRUTs, wealth replacement ILITs as part of zero-estate tax plans, and foundation-owned life insurance, at this point, we think it is better to "wait this one out." See if you agree. To read the case study click here.

For more information regarding this topic, please e-mail your requests to Salvatore J. LaMendola, or call Sal at (248) 457-7204.

THIS ARTICLE MAY NOT BE USED FOR PENALTY PROTECTION.

UNITED STATES MOST GENEROUS NATION IN 2011; DID THE ESTATE TAX HELP?

The "World Giving Index", is the largest study into charitable behavior across the globe involving 153 countries in total. Using data from Gallup's Worldview World Poll, the report is based on three measures of giving behavior - giving money, volunteering time and helping a stranger. The results show that the U.S. was officially the most charitable nation in the world in 2011, moving from fifth place in 2010 to first place in 2011. Ireland is the second most charitable country, and Australia the third. According to the survey, 65% of Americans gave money, 43% volunteered time, and 73% percent helped a stranger in 2011.

Overall the World Giving Index demonstrates that the world has become a more charitable place during 2011 - with a 2% increase in the global population "helping a stranger" and a 1% increase in people volunteering. Yet 1% fewer people gave money to a charity in 2011 than in 2010, a result likely attributable to the ongoing economic impact of the financial crisis.

According to the study, Thailand is the highest ranked country for giving money, with 85% of the population donating to charity each month. The second highest-ranked country is the UK with 79% of the population having made a monetary donation. Ireland and the Netherlands are jointly third with 75%.

The study comes at a time when, as a result of the higher estate tax exemption ($5.12 million per person) and lower estate tax rate (35%), the tax benefits of giving through an estate plan have been eliminated for all but less than 1% of Americans who have taxable estates. In other words, for most Americans, the new, lower estate tax changes their charitable planning. They might have given more away while alive if they knew that their estates would be hit with a 55% tax on assets above $1 million (which, without further Congressional action, will be the law beginning on January 1, 2013). Moreover, the tax savings for a charitable bequest are only 35 cents on the dollar, rather than 55 cents, so the new estate tax is a lesser incentive for testamentary bequests.

While some studies show that taxes are not the most important reason for charitable giving, it's hard to argue that estate taxes don't motivate charitable giving. In fact, data from the Internal Revenue Service (released in late 2009) shows that from 2001 to 2007, as the estate tax was reduced, the percentage of wealthy decedents leaving charitable bequests declined too. The report is stoking charities' longstanding fear that bequests would drop off if the estate tax were repealed (or substantially reduced). According to the IRS data, the share of decedents with gross estates of $20 million or more who left a charitable bequest fell gradually from 48% in 2001 to 43% in 2007. For estates of at least $3.5 million but less than $20 million, the percentage leaving a charitable bequest also fell gradually from 25% in 2001 to 20% in 2007. During that period, the estate tax rate declined from 55% to 45%, and the amount exempt from estate tax grew from $675,000 to $2 million. To review the IRS data click here.

For more information regarding this topic, please e-mail your requests to Julius Giarmarco, or call Julius at (248) 457-7200.

THIS ARTICLE MAY NOT BE USED FOR PENALTY PROTECTION.

INHERITED IRA WIN IN MASSACHUSETTS

On May 24, 2012, the U.S. Bankruptcy Court for the District of Massachusetts, Western Division, held that an inherited IRA was exempt from the IRA beneficiary's bankruptcy creditors. In re: Holly Anne Seeling, 2012 Bankr. LEXIS 2337 (5/24/2012). Since bankruptcy courts tend to follow the decisions of the other bankruptcy courts in the same Circuit, and since this case was decided in the First Circuit, it is reasonable to conclude that inherited IRAs are now protected in the bankruptcy courts of Maine, New Hampshire, Massachusetts, and Rhode Island. And, since favorable decisions have already been handed down by bankruptcy courts in Circuits 2, 3, 5, 6, 7, 8, 9, and 11, it is also reasonable to conclude that inherited IRAs are protected in all U.S. bankruptcy courts, even though the issue has not yet been officially addressed in Circuits 4 (WV, VA, NC, SC) and 10 (WY, UT, CO, KS, OK, NM). Indeed, the Seeling court noted, "Those cases which have decided otherwise [i.e., in favor of creditors] have not survived appellate review." Inherited IRA beneficiaries would therefore be well advised to limit their withdrawals as best they can.

However, it must be remembered that success in the bankruptcy courts does not translate to success in state courts, where far more lawsuits are filed each year. Thus, except for beneficiaries residing in Florida, Texas, Arizona, and any other state that has amended its laws to explicitly exempt inherited IRAs, "creditor-risk" at the beneficiary level is still a strong concern. To eliminate that risk, as well as "cash-out risk" and "stranger-risk" (the risk that some unintended party eventually inherits), stretch-out trusts are still highly advisable, as our redesigned brochure explains. To read it click here.

JUNE 2012 AFRs



Compounding Period
AnnualSemiannualQuarterlyMonthly
Short Term AFRs
(Term 3 Years or Less)
0.23% 0.23% 0.23% 0.23%
Mid Term AFRs
(Term More Than 3 Years
and Not More Than 9 Years)
1.07% 1.07% 1.07% 1.07%
Long Term AFRs
(Term More Than 9 Years)
2.64% 2.62% 2.61% 2.61%
Section 7520 Rate 1.2%

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