Why Privacy Matters in Asset Protection Strategies

High-net-worth individuals have a lot to consider when it comes to asset protection, but one important factor that not everyone thinks to take into account is how well your asset protection strategy protects your privacy. How does your attorney or financial advisor work to protect your privacy? If you’re not sure, you could be putting yourself at unnecessary risk.

Most Info Is Just a Click Away

The internet provides us with a lot of connectivity tools, and nowhere has it had more of an impact than on privacy. Sensitive information is easily available with just a few website clicks. In fact, people with high net worth might be at even higher risk for the exposure of personal information. This is because they are more likely to have transactions recorded that can be traced electronically through the internet than someone who has lower net worth and fewer assets (property ownership, public salary information, asset registrations, etc.). Even information you would prefer to keep private is more accessible than ever, which can make financial planning more difficult without the right strategies and tools.

Opportunistic Plaintiffs Can Make Life Harder

When financial information is readily available online, it can make you the target of an opportunistic plaintiff looking to make a quick buck from a frivolous lawsuit. With so much information available online about assets, properties, bank accounts, salaries, net worth and more, anyone who is wealthy could quickly find themselves embroiled in a lawsuit or on the receiving end of demands for money. Information that is readily available about your net worth or the extent of your assets could also come back to harm you in civil or personal cases—for example, a divorced spouse or an ex-business partner who decides to sue. You never know who might be keeping tabs on your overall net worth online, so the more privacy you can get, the better.

Commercial or Business Interests

The more public your financial information, the more likely you will be exposed to commercial sales calls, business propositions and other unwanted requests as well. While not as troublesome as lawsuits, it is certainly an inconvenience when you are constantly interrupted by phone calls, emails or even in-person solicitations for donations. For all these reasons, it’s important to work with an attorney and financial advisor who understands the tools available to protect your assets, and the importance of protecting your privacy in the process. Find out how Cantley Dietrich can help by contacting us about your asset protection and financial planning needs today.

Who Should Use Attorney Paymaster Services?

For some transactions, it’s important to protect yourself and others by engaging an attorney paymaster. These services are available for both domestic and foreign transactions, and while there are no set rules about what you can and cannot use attorney paymaster services for, there are a few transaction types or industries in which these services are more common.

Understanding Paymaster Services

Engaging an attorney for paymaster services is a pretty straightforward transaction:

• You hire the attorney to act as a paymaster.
• The attorney verifies both parties in the transaction for compliance with KYC, CDD/EDD, and AML requirements.
• The attorney holds funds in escrow and helps complete all necessary paperwork to satisfy legal requirements.
• The attorney paymaster releases the funds to the seller upon completion and verification of the information.

In order to offer paymaster services, an attorney must ensure that all aspects of the transaction are in full compliance with the U.S. Treasury, Department of Homeland Security and other agencies as required.

When Attorney Paymaster Services Make Sense

The use of attorney paymaster services can provide an added layer of security and protection in large transactions, particularly ones involving foreign buyers or sellers. The most common situations in which people utilize an attorney paymaster include:

• Real estate, particularly large transactions or international deals
• Oil or jet fuel transactions
• The purchase or sale of gold, diamonds or other precious metals
• Steel transactions
• Note transactions

Since the attorney paymaster is not part of the transaction, they have limited information about when it will occur and will only receive and disburse funds as directed. These services also help you avoid the hassle of Letters of Credit or the requirement to have an established history with a bank or financial institution to participate in a transaction. This can speed up large transactions significantly because the paymaster doesn’t check your credit or references.

Other Important Notes About Paymaster Services

Before you can participate in any attorney paymaster transaction, all parties in the transaction will need to verify their identity and provide additional information to the attorney. You will need:

• A valid driver’s license or passport
• IRS form W-9 (U.S. citizens only)
• IRS form W-8BEN (for non-U.S. citizens)
• Copy of payment agreement and other transaction documentation
• Other documentation or identity verification as requested by the attorney

While you can technically use someone besides an attorney to fill the same role of paymaster, there is an added layer of security when you work with an attorney. They use short-term escrow accounts called IOLTAs that are monitored by the state bar to prevent fraud or illegal activity. If they fail to handle your funds properly, they face disbarment and significant financial penalties. The attorney you select for paymaster services also cannot provide other legal services to you or the third party in your transaction. This would be considered a conflict of interest.

Learn More About Paymaster Services at Cantley Dietrich

To find out more about the attorney paymaster services available at Cantley Dietrich and get your questions answered, contact us today.

IRS Audit Priorities After COVID-19 Break (Part 2)

In part one of this blog post, we covered two things that the IRS is focusing on now that they are back after a break during the COVID-19 pandemic. Between April 1 and July 15, they announced the People First Initiative, which would halt many of their normal audit, investigation and enforcement activities in an effort to protect their employees and help those affected by COVID-19. Once the break ended in mid-July, the IRS stepped up their efforts in these areas once again.

Focus: Abusive Tax Preparers and Promoters

The IRS hired a new coordinator to oversee investigations of promoters pushing aggressive (and unlawful) tax arrangements. They plan to monitor a wide variety of civil investigations with the goal of ensuring that tax promoters known to engage in questionable tactics remain in compliance with injunctions and other enforcement. What it means for taxpayers: You hire a tax attorney or advisor for their expertise, and most taxpayers—including businesses and high-net-worth individuals — don’t have a deep knowledge of which tax strategies are illegal. It’s important to vet a tax advisor before you hire them, checking for a history of abusive or illegal activity. Fortunately, there are still many effective tax strategies you can employ to protect your earnings, and working with a reputable advisor or firm will help you avoid the negative legal consequences.

Focus: Syndicated Conservative Easements

Earlier this year, the IRS extended an offer to settle cases involving syndicated conservative easements after announcing in 2016 that it would be looking more closely at these transactions. The IRS discovered that taxpayers were using conservative easement donations to claim deductions for more than the actual value of donated property. What it means for taxpayers: After several years of auditing and litigating, the IRS has extended a settlement offer to conservative easement cases pending litigation. They are strongly encouraging taxpayers to accept the settlement terms, and have committed to pursue further litigation (including a trial) for those who do not. If you’ve invested in a syndicated conservative easement, talk to your tax attorney about next steps.

Focus: Fraudulent Micro-Captive Insurance Tax Shelters

The IRS has included micro-captive insurance companies on the Dirty Dozen list of tax scams for several years in a row, and will continue to pursue them aggressively in 2020 and beyond. They announced the creation of 12 new investigative teams to pursue audits and litigation when they deem a captive insurance company (CIC) to be an abusive tax vehicle. What it means for taxpayers: If you have an 831(b) CIC as part of your investment strategy, it’s important to talk to a knowledgeable and trustworthy tax attorney. CICs can be useful for risk management and mitigation when used appropriately, so it’s best to have yours reviewed before the IRS contacts you for an audit.

Find a Trusted Tax Advisor

The IRS remains committed to identifying, auditing and litigating abusive tax shelters or unethical tax practices. High-net-worth individuals and businesses should find a trustworthy tax attorney to help them identify appropriate, legal and ethical tax strategies. Talk to Cantley Dietrich today to learn more.

IRS Audit Priorities After COVID-19 Break (Part 1)

As with many different jobs and industries, COVID-19 caused significant closures at the Internal Revenue Service (IRS), with service centers and offices nationwide shutting down operations and sending employees home to work. A March 25 announcement released by the IRS outlined the steps they were planning to take as part of the “People First Initiative” to help those facing challenges as a result of COVID-19. It included:

• Extending tax-filing deadlines
• Postponing payments for Installment Agreements and Offers in Compromise
• Limiting enforcement actions
• Suspending field collection activities
• Suspending new systemic liens and levies
• Stopping new delinquent accounts from being forwarded to private collection agencies
• Postponing any new field, office or correspondence audits

The announcement specified that IRS activities would be limited or suspended through July 15, 2020. Now the IRS has reopened in some capacities and will resume some normal activities. For taxpayers and corporations, it’s important to understand what that means for audits, collections, investigations and more, as well as what the focus and priorities will be in the coming months.

Focus: High-Net-Worth Taxpayer Audits

The IRS said they would resume audits for high-net-worth individuals starting July 15, with the intent of auditing hundreds of returns by the end of the third quarter. While their examination and audit methods may be slightly different — with limited in-person and face-to-face interactions — they still intend to thoroughly examine entities such as partnerships, pass-through entities, S corporations, trusts and international financial activities. This follows the June announcement that the Large Business and International (LB&I) Division would make high-net-worth individuals a focus this year for “Wealth Squad” investigations. What it means for taxpayers: If you fall into the category of a high-net-worth individual for tax purposes, you need to recognize that the IRS has a stated goal of uncovering sophisticated planning tools and aggressive tax vehicles used for purposes of reducing tax liability. The audits are conducted by a team with specialized knowledge of foreign and domestic financial structures and are comprehensive, even if you have not filed a tax return yet for the year. It’s important to understand and utilize effective (and legal) tax-planning tools that won’t put you at risk.

Focus: Fraud Enforcement

In mid-March, the IRS formed a new Fraud Enforcement Office, appointing an experienced criminal investigator to lead the team and strengthen the link between criminal and civil IRS agents. While much of their work was likely halted in the wake of COVID-19, there is an expectation that the new office will provide a boost for fraud detection and deterrent efforts. What it means for taxpayers: There will likely be an increase in the number of fraud referrals, as well as more coordination between civil and criminal divisions, which may result in more civil penalties along with the potential for criminal charges.

Get the Tax Help You Need

As with any situation involving the IRS, the most important preventive action you can take is to have knowledgeable tax advisors to sort through complex financial and legal tax issues. In part two of this blog post, we’ll cover a few more areas the IRS intends to focus on in the coming months. In the meantime, contact Cantley Dietrich for help if you think you might be the target of increased IRS enforcement, audits or investigations.

Do Elections Cause Market Volatility? What You Need to Know as November 2020 Gets Closer

Even those who don’t follow politics closely know that there’s a consequential election coming near the end of 2020. With only a few weeks left to go before the nation casts a vote on who will lead the country for the next four years, now is a good time to look at how elections affect markets in general, and some specifics to understand about what is unique about this year.

Historical Effects of Presidential Elections on the Markets

If you look at the last 60 years of data related to presidential elections and stock market activity, most of the volatility occurs before the election takes place. September tends to be the worst month for market volatility, with stocks losing an average of 0.51% historically (although that trend has reversed somewhat in the last 25 years). In fact, most election years have less volatility in the markets leading up to an election than non-election years. On the whole, market trends are positive for election years. In 19 of 23 presidential election years (going back to 1928), only four years have negative returns. But the election itself is not the only factor that can influence market performance. In 2008, a recession dramatically changed the “normal” cycles of the market. In 2020, a combination of many factors brought on by the global pandemic are once again influencing the markets far more than the presidential election.

What Experts Predict for 2020 and the Markets

This year’s election is likely to be consequential for many reasons. From a tax perspective, the policies of the two nominees are very different. In the 2016 election between Donald Trump and Hillary Clinton, the markets focused heavily on tax policies, primarily because that is one of the most direct ways lawmakers can impact corporations and individuals. The same is true in 2020, with investors expecting that a Trump second term would continue a similar tax-cutting trend, while a Biden victory would potentially lead to an increase in taxes for high-income earners and a full or partial reversal of the corporate tax reduction from the Tax Cuts and Jobs Act. COVID-19 has also dramatically altered the market landscape for 2020. After hitting a record high of 29,551.42 on Feb. 12, the Dow Jones Industrial Average was down 35% just a few weeks later on March 20. Two of the top five largest single-day drops in history occurred on March 16 and March 12 when the Dow lost 12.93% and 9.99%, respectively. Since that time, it has regained most of the losses, but remains volatile as the election approaches. Recent events such as the death of Supreme Court Justice Ruth Bader Ginsberg have further amplified Wall Street’s worries ahead of what was already promising to be a volatile election season.

What Does This Mean for Investors?

If you are worried about your own portfolio or what potential election results could mean for your company and personal financial situation, now is the time to talk to an experienced tax advisor. Cantley Dietrich can help you identify personal estate and planning opportunities, even during a pandemic and presidential election.

The Financial Benefits of an Experienced Tax Compliance Attorney

There are a few things in life that you should leave to the professionals, and tax compliance is one of them. According to a 2012 report to Congress from the Taxpayer Advocate Service (TAS), individuals and businesses spend 6.1 billion hours every year complying with tax code regulations, and that calculation doesn’t even take audits or investigations into account. Beyond just the time you can save working with a tax compliance attorney, you must consider the potential costs of not working with one. Companies and high-net-worth individuals who try the DIY approach to tax compliance issues may find out the hard way that it can be expensive to make a mistake in this arena.

Audits, Fines and Fees

In 2019, the IRS assessed over $40 billion in civil penalties. The category with the highest penalties ($14.2 billion) was individual and estate and trust income tax returns. Close behind that were employment tax penalties at around $13.7 billion, with business income tax penalties over $5 billion. Those fines were the result of more than 73,000 cases that the IRS closed in 2019, some of which began more than a year prior. The IRS has a virtually unlimited capacity to assess fines and fees if they find anything wrong in your tax returns, even if it was an unintentional error or omission. They audit millions of individuals and corporations each year, and pursue criminal and civil charges to collect.

Time and Effort to Respond

In addition to the financial risks of getting hit with fines and fees, companies and high-net-worth individuals also need to consider how much it costs to respond to and participate in an audit. The sheer volume of information that the IRS requests can leave you or your staff buried in financial documents for weeks, months or years in some cases. Once the IRS opens an audit or investigation, they will spend as much time as it takes to see it through.

Hiring a Tax Attorney is the Better Way

As Benjamin Franklin is quoted saying in a 1789 letter to Jean-Baptiste Leroy, “… In this world nothing can be said to be certain, except death and taxes.” Though there is not any way to avoid taxes entirely, with the help of a tax compliance attorney, you can feel confident that you are not unintentionally violating any of the myriad tax laws and regulations. That doesn’t mean the IRS will never bother you, but it does significantly diminish the risk that you will be the subject of an investigation for noncompliance. Contact Cantley Dietrich to discuss your tax compliance needs with our experts.

Preparing to Hire a Firm for Attorney Paymaster Services

Attorney paymaster services are an important part of transactions in certain industries. When you are looking for an attorney who offers these services, it’s important to be prepared for what you will encounter prior to and during your relationship with a firm. Attorney paymasters must follow strict and specific rules to participate in these transactions, so you will need to be ready to comply with requests related to your business activities.

Preparing to Work with an Attorney Paymaster

The most important thing that an attorney will need to do in advance of any transaction is learn more about you, your business and your transaction(s). In the industry, it’s referred to as “Know Your Customer (KYC)” and “Customer Due Diligence” (CDD). Both these activities are required to comply with anti-money laundering (AML) laws and regulations and will be part of the process no matter what industry you work in or what type of transaction you are planning.

Know Your Customer

These processes generally consist of identification and compliance checks. Your attorney paymaster will do some preliminary screening with various government watchlists and databases. During KYC, you will need to provide a variety of personal and/or business documents, including:

• Government-issued personal identification
• Articles of incorporation
• Business licenses
• Organizational charts
• Activity profile for your business
• Size, frequency and types of transactions
• Additional information for KYC on individual corporate officers
• Documents and information about any other corporations or entities that your business owns (including overseas entities)

The specific item(s) your attorney needs will vary, depending on your business. Not every KYC will involve each of these items, but it’s important to be prepared to keep the process moving.

Customer Due Diligence

The next step is due diligence, which includes a risk assessment and “scoring” related to your occupation, industry or entity type. The attorney paymaster will use this information to identify your expected transaction size, frequency, geographies, products and other relevant information. Ultimately, this is used to create a “risk matrix” and activity profile, which allows the attorney paymaster to monitor and flag suspicious activity in the future.

Compliance with KYC and CDD Protocols

Your attorney paymaster is required to comply with federal and international laws and regulations related to financial transactions, and courts have upheld that responsibility for attorneys who failed to perform adequate checks and ultimately were party to internet scams or other money-laundering activities. While the process may seem frustrating, it’s important to understand why it’s necessary. Being prepared with the right paperwork can help speed the process, especially for large or complex organizations. Contact us to find out more about the attorney paymaster services available at Cantley Dietrich.

What You Should Know About CDD & AML for Attorney Paymaster Services

Working with an attorney paymaster is a good idea for businesses engaging in large transactions including real estate, jet fuel, gold or diamonds, and note transactions. These often involve significant amounts of money and have several federal regulations that you must satisfy to avoid legal trouble. As paymaster, the attorney acts as a neutral third-party to receive funds from a buyer, hold them in escrow as all the paperwork and legal requirements are settled, then release the funds to the seller. Anyone looking to hire an attorney in these capacities should be aware that they must comply with certain regulatory requirements around KYC, CDD, and AML.

Breaking Down KYC, CDD, and AML

Regulatory landscapes around financial transactions have a lot of abbreviations and acronyms, but perhaps none more important than:

• KYC — Know Your Customer/Client
• CDD — Customer Due Diligence
• EDD — Enhanced Due Diligence (sometimes required)
• AML — Anti-Money Laundering

These are requirements that attorney paymasters must satisfy in order to represent clients in a financial transaction.

Know Your Customer/Client

KYC is a critical part of financial transactions, particularly large or international transactions. These activities are intended to provide more information about the person or company behind the transaction to ensure the funding source is legitimate and not tied to nefarious organizations, such as terrorism or organized crime.

Customer Due Diligence

In order to manage risk effectively and protect themselves from potential involvement in financial crimes or similar activities, attorneys perform CDD. This process, along with the KYC activities, provides in-depth information about the location and identity of a client and a client’s activities to properly assess potential risks. It’s critical that clients work with attorneys to complete the CDD process to avoid delays in the transaction.

Enhanced Due Diligence

Some high-risk customers may need to go through an enhanced due diligence process to get a better understanding of their financial activities. The initial CDD will usually determine whether a more in-depth review is necessary. What may trigger EDD? High transaction amounts or volume, ties to high-risk countries, or evidence of current or past high-risk activities.

Anti-Money Laundering

AML activities ensure that an attorney paymaster will not participate in transactions for purposes of money laundering or with laundered money. The purpose is to make it more difficult for someone involved in criminal activities to get away with the money, and to prevent corruption, tax evasion, theft or fraud. AML usually involves an initial review, then continual monitoring of financial transactions to spot potential red flags. If you are interested in working with Cantley Dietrich for attorney paymaster services, contact us today to learn more about our KYC, CDD and AML processes and important details about how these services can benefit you in certain financial transactions.

Beckett G. Cantley, Senior Partner at Cantley Dietrich Named to Top Ten Downloads on SSRN

Beckett Cantley, senior partner of Cantley Dietrich, was named to the top ten most downloaded papers published on the research site SSRN under the Consumer Protection & Enforcement and the Life Insurance topic headings. The paper, Summary of Articles on Abusive Captive Insurance Companies, was published by the Utah chapter of the American Institute for CPAs (AICPA) on September 15, 2013.

About the Paper

Author Beckett G. Cantley, JD, LLM, analyzed the current IRS enforcement actions in light of the multiple publications Prof. Cantley had previously published in scholarly journals dissecting the tax promoters and life insurance agents who advised unsuspecting business owners to use Internal Revenue Code (IRC) Section 831(b) to form a captive insurance company (CIC) for reasons not in keeping with the intent and substance of the statute. The provision was rarely used until the late 2000s, and promoters advised clients that since the IRS rarely audited these vehicles, a CIC was compliant as a tax planning, estate planning, or wealth transfer entity. As CICs gained in popularity, the IRS took note and started updating statutes and regulations to go after individuals or companies abusing the purposes of Section 831(b) CICs.

The IRS Targets CICs

The IRS identified five areas of Section 831(b) non-compliance:

• Life insurance on the owners of CICs as a core “investment”
• Offshore jurisdictions posing as unassailable managers
• Premiums in excess of risk and inappropriate coverages
• Estate planning ownership
• Loan-back structures

In 2016, the IRS released Notice 2016-66, announcing its disapproval of the use of CICs involved in investing “capital in illiquid or speculative assets usually not held by insurance companies.” For example, startup companies sometimes purchased large life insurance policies on their principals as a way to generate commission for life insurance promoters, and not as a sound business decision by a startup. Unscrupulous promoters were still persuading investors to create Captives, even as the IRS warned in their annual “Dirty Dozen” tax scams list (as early as 2015) that they were potentially abusive tax shelters. Starting in 2017, they backed up these warnings with policy underwriting that created requirements for CICs to meet the threshold of a legitimate financial vehicle. Congress has passed laws and clarified specific provisions or tests to determine whether a CIC is being used for a legitimate business purpose. There were also enhanced reporting requirements after CICs were designated as a “Transaction of Interest” (TOI), including financial tax shelter disclosure, list maintenance and registration regulations. The IRS’ ability to prosecute abuses related to Section 831(b) was reinforced in the Tax Court decision Avrahami v. Commissioner (2017) and followed by several other key wins, and highlights the arguments they are likely to use in future enforcement, including anti-abuse and judicial anti-avoidance doctrines:

• Circular cash flows
• Lack of bona fide debt
• Step transaction doctrine
• Sham transaction doctrine
• Business purpose doctrine
• Substance over form doctrine
• Economic substance doctrine

Lessons Learned

Historically, once something is designated as a new TOI, the IRS will target and audit it. Promoters may reassure clients, but this often leads to significant proposed adjustments to taxpayer returns and substantial penalties. While CICs can provide a useful risk management and mitigation tool for business owners, it’s important to work with advisors who won’t blur the legal lines of when they are appropriate.

About SSRN

The SSRN eLibrary has 948,360 research papers from over 500,000 researchers that cover more than 50 disciplines. It provides a platform to disseminate early-stage research or communicate important findings prior to publication in academic journals. The Cantley Dietrich article was also published in the Utah AICPA September 2013 Journal. You can access an electronic version at https://ssrn.com/abstract=3226652

IRS Conducting More Audits on High-Net-Worth Taxpayers

The IRS recently told taxpayers it is now auditing more high-net-worth individuals. It’s important to prepare, in case you find yourself the subject of one of these audits. The IRS originally formed a team of tax collectors in 2010 to look for high-net-worth individuals who may have taken advantage of loopholes or been overly aggressive on their tax filings. The group was officially named the Global High-Wealth Industry Group (GHW) in the Large Business and International Division (LB&I), but colloquially called The Wealth Squad. Now, they have now resurrected this group to resume the task they were charged with.

What Does the Wealth Squad Do?

The Wealth Squad, made up of auditors specifically trained to look at high-wealth individuals, examines their income sources and any potential tax-evasion strategies they might employ, including:

• Complex domestic financial affairs
• Businesses or entities they control, including pass-through entities
• Offshore accounts
• Trust accounts, including foreign trusts
• Foundations

It’s no secret that the IRS has limited auditing resources; the GHW team was formed to conduct audits most likely to yield the biggest results. IRS investigations require a lot of time and money, so deploying those resources to collect a couple hundred dollars from an average taxpayer is not efficient when those same resources could be put toward uncovering tens of thousands in unpaid taxes from higher-net-worth individuals. In addition, there are far more high-net-worth individuals today than ever before. In the 1980s, it was extraordinarily rare to be a billionaire, with only a few in the entire country. In 2019, the combined net worth of the Forbes 400 was $2.96 trillion, and you need a net worth of at least $2 billion just to make the list.

How to Protect Yourself

Low-income Americans have little risk of audits, with fewer than 1 percent targeted each year. If your income or net worth is over $10 million, however, you have about a 1 in 3 chance. Those with complex and sophisticated financial, business and other tax arrangements also stand a higher chance of being audited. Although these arrangements can be perfectly legal and valid, it’s still important to engage knowledgeable tax advisors—attorneys, accountants, and wealth managers—who can take a close look at your finances and legal structures to ensure that everything is in order before the IRS discovers a problem. This is especially true if you have foreign bank accounts or trusts, or business interests overseas. Any filing, position, or statement to the IRS can be amended, refiled, or withdrawn until you receive the dreaded audit letter. Once you are under audit, do not make changes.

Talk to Cantley Dietrich

If you are concerned about your financial situation or think you may be at higher risk with the increased scrutiny on high-net-worth individuals, talk to an advisor at Cantley Dietrich today and learn more about how you can be prepared in case of an audit.