Saturday, June 30, 2012
New IRS Program for U. S. Citizens Overseas: Dual Citizens/Those with Foreign Retirement Plans who haven't filed.
Allows people who owe little tax but failed to file FBARs and tax returns to avoid penalties by becoming compliant. Even late filed retirement elections can be fixed.
The catch? Must be a current nonresident.
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Saturday, April 28, 2012
Service providers will soon be required to disclose all of their fees and service charges to plan sponsors (employers).
Beware, as in addition to disclosure to plan sponsors, service providers will also be required to disclose fees and service charges to employees of the employer.
The law requires that fees be reasonable. Dissatisfied employees will be able to complain to the US Department of Labor. Many will be surprised at the amount of the fees.
As such, now is the time to have your plan reviewed by a qualified professional. Said professional should not only check the fee is reasonable, but also inquire as to whether the plan itself is compliant, and has made all the proper elections.
If problems are found, then attorneys and accountants can be brought in to file for governmental voluntary correction programs.
Remember, if employer is caught with significant plan violations by the IRS or the US Department of Labor, then these voluntary correction programs may be unavailable. Significant fines can be assessed for plan violations, and plans can even be disqualified. As such, it pays to be proactive and have your plans reviewed. Many companies rely on third-party administrators to administer their plans. However, the plan sponsor (employer) is still ultimately responsible for any violations.
On a final note, fees are an important factor in determining whether a service provider is appropriate. However, fees should not be the only consideration.
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Saturday, March 17, 2012
I recently saw on Daring Fireball this post, which lists every lie that Mike Daisey told. Worse, the show is actually continuing!:
I wrote this comment to that article:
His art lacks integrity. Shame of those venues for allowing this to continue.
It's not okay to lie this way. If truth is not a requirement, then what incentive do companies have to improve workering conditions? If, rather than doing the hard work of actually understanding the situation a person like Mike Daisey can just come along and make things up why bother to make real improvements? It will never be good enough.
Truth is very important. By utilizing truth we can appreciate and evaluate what progress has been made, and what else needs to be done. Otherwise we risk doing more harm than good by punishing those who are trying to effect positive change.
Stating that this is "dramatic license" rather than laziness and fraud is shameful. We should not tolerate deceit as a shortcut to frame, power and influence. Mike Daisey had no business being the de facto spokesperson for fair labor at Foxconn.
I hope these venues realize that their integrity isn't worth a few nights profit.
I also agree with this post I saw on Daring Fireball that Daisey's "work" distorts our view of China:
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Friday, March 16, 2012
Before I go on, I should mention that I met Mr. Daisy while I was at Colby College in Maine. We were both college students there. However, we took different paths in life: I pursued a career in law, Mr. Daisy pursued a career performing arts.
I do remember plays that Mr. Daisy was in at Colby. I was in fact quite impressed with his skills. Having watched some excerpts of his monologues I can see that his skill has done nothing but increase.
However, I often wondered about his attitude, his overall perspective. In watching these monologues and reading about Mr. Daisy I became more and more perplexed by his attitude and by what he has written and said. He may be a skillful performer, but what about being a truly educated and intellectually curious person?
But let's take a step back and look at China and what China has actually accomplished in the past few decades. The late 1950s was a time of great turmoil in China. So much turmoil that this resulted in mass starvation of the most horrible kind. There were even reports of cannibalism. China had no legal system speak of and was organized in a very anti-capitalist fashion.
However in the 1980s, and especially in the 1990s, things began to change. A much more capitalist society was allowed to exist. China has come very far since the time of the famine. When one looks at the context of a factory such as those operated by Foxconn in the context of was going on a few decades before one can see the incredible progress that has been made. Mr. Daisy seems intent on cheapening this accomplishment. The Chinese translator Mike Daisey used, Cathy, stated to "This American Life" in a recent retraction, "As a Chinese, I think it's better if he can tell the American people the truth. I hope people know the real China." This American Life
If one looks at the United States, it took quite a long time for industrialization to progress to the current level of worker safety and rights. I am from New Hampshire originally. In New Hampshire, there are still a few mill buildings that remain from the era of the great factories in New Hampshire. Many of these places were prototypical company towns, where there really was child labor and where there were serious safety problems and few workers rights. In fact, the factories often created situations that put the workers in so much debt to the factories that the workers were very much bound to them. However, New Hampshire, like the rest of the country, progressed, but this did not come over the course of a few years or even a few decades. Simply stating that we shouldn't use a certain country or that we can just suddenly and magically have exactly the same level of workers rights and safety as in the US without a progression of technology, society, and the legal system, is a completely wrong idea. For there to be workers rights, the technology must exist to be able to build safe factories. The technology must exist also to build quality products that people want to buy to be able to fund the building of the safe factories. Moreover, the workers themselves must be able to produce and have the skill and ability at the correct level so that they can justify those wages and that cost. Otherwise, no one will buy the products and there will be no money for any of this. If you try to force people to buy products that they don't want or try to force upon societies products that are vastly overpriced, then you will take away from other aspects of that society and everything will suffer. This is why for example forcing banks to make loans that are not financially sound is a bad idea even if you really want everyone to own a home. Similarly, forcing products to be artificially overpriced, or forcing people to buy products that are poor quality, will result in disaster for society. China does not need to return to famine.
This is not to say that there should be no oversight. Nor is this to say that there should be no protests (there were massive protests for workers rights in New Hampshire) nor is this an argument against progress. Again, there was progress in US, but it was over time and as the legal and economic system developed. Even then, there were setbacks in New Hampshire, as a large mill there, one of the largest manufacturing centers in the world, collapsed in 1935 after a worker's strike (and after much of the money had been bled out of the company), and never reopened. However, the legal system there was able to evolve to protect workers, and the economic structure in the US is far stronger today, even with recent setbacks.
Apple should be commended for being at the forefront of pushing for safe factories. Apple should be commended for having as much transparency as it does. I don't see how Apple has not been a very positive force in the development of processes and procedures for safety in China.
However, I saw something fascinating today in Daring Fireball, one of my favorite blogs: The New York Times had the following regard Mike Daisey:
He admits that he once fabricated a story because it “connected” with the audience. After telling this lie over and over again, it became so integrated into the architecture of his piece that it became impossible to remove or, perhaps, to distinguish from what really happened. Mr. Daisey seems embarrassed by this confession, but he also pursues the issue further. Is lying acceptable when in service of a greater truth? What does truth mean in the context of art?
New York Times--Jason Zinomen
But isn't this the problem? When art becomes a lie? When a lie becomes the greater truth?
Wasn't that the problem with the sea of people waiving their little red books in China during the cultural revolution? Wasn't the problem that Chairman Mao was not delivering the promised progress and development, and instead masking it in a greater lie?
Isn't the truth of economic progress in China better than the lies of Mike Daisey? Shouldn't we expect better?
If there is no truth than a person like Mike Daisey can escape all the hard work that it really takes to understand complex issues like Chinese history. For him to go to China with no understanding of language and culture and expect to truly be understood by his translator is preposterous. I have lived amongst Asian culture for many years. The way that I am able to sometimes avoid being misunderstood is to always understand I am being misunderstood. Even then, I am often misunderstood. Chinese language is constructed very differently from English. Chinese cultures are different than Western cultures. So to assume that with no study whatsoever you can understand the rich, complex, and often quite intellectual culture of China enough to correctly analyze a complex situation is silly. My wife is Thai (well, 75% Thai and a quarter Chinese) but has lived in the US since the 1990s. However, there are still cultural differences between us that took me a long time to understand. For example, if I ask her "You don't want to go with me, do you?" she might answer "No, I don't". However, what she means by that may be "no I don't have a problem with coming". You have to know to follow up to get the correct meaning (and have the patience not to get upset until you do understand).
However, in this case it appears to be worse than that and have actually crossed the line into fabrication, in addition to the cultural misunderstandings.
If people like Mike Daisey are allowed to get away with this then there can never be progress since there can never be truth. What motivation will Apple ever have to push for change if it's not only never going to be good enough but worse never recognized at all? All of their hard work can then easily be shot down by a person who made no effort whatsoever to study the situation, who made no effort to become educated.
I will end with two of my favorite quotes of all time, from John Adams:
It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, "whether I do good or whether I do evil is immaterial, for innocence itself is no protection," and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.
― John Adams
Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.
― John Adams
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Sunday, January 15, 2012
Shelter your home, auto, savings, and everything else you own from creditors!
Divorce-proof your assets!
Block the IRS from levying your wages or seizing your property!
Gain total financial privacy!
Open a bank or brokerage account without providing your Social Security number!
The litigation explosion, Why you should have a corporation - even if you don't own a business!
Sounds great, right? Google "bullet proof asset protection" (in quotes) and almost 14 thousand websites show up.
Here's the problem: bullet proof asset protection is a lie. Oh, and that "ad" above? It's from Bill Reed, and according to Webwire, "A federal judge in St. Louis has permanently barred William S.Reed, the founder of a so-called “asset protection” business, from preparing fraudulent liens for customers and helping customers conceal their funds by having shell corporations own their bank accounts, the Justice Department announced today."
Certainly, there are legitimate things one can do to better protect assets. However, 1) nothing is 100% effective, 2) nothing will allow you to completely avoid your tax obligations, 3) nothing will allow you to commit fraud and crime unimpeded.
I am writing this article because from time to time I see high-pressure "planners" pitch expensive "trusts" to unsuspecting people here in Cobb County, Georgia. They claim that the trusts will avoid creditors, taxes, and medicaid recovery. Typically, these are just revocable trusts. Since they are revocable, they don't protect against anything and are really just for avoiding the probate process. In Georgia, revocable trusts are subject to the creditors of one's estate at death if there are insufficient assets in the probate estate. As such, they are NOT asset protection tools. Moreover, these trusts tend to be written by attorneys in other states. What a terrible situation to have to deal with: a trust or a Will that has a different state's law apply for no legitimate reason. Remember: attorneys make a lot more money from bad Wills and trusts going to court then they do from planning. Probate litigation can easily cost tens of thousands of dollars. It is important therefore to make sure that the attorney you hire is very experienced, even if you have a small estate. The process here in Georgia to probate is generally the same regardless of the size of the estate, and I have seen plenty of $20,000 estates end up having $20,000 of attorneys fees due to poorly drafted documents. I have pretty much never seen a non-attorney completely and properly draft their own Will (but again just going to some random attorney won't fix the problem....attorneys need to be licensed in your state and experienced at drafting Wills. Even better if they have probate court experience defending their documents).
Now, back to the problems with "bullet proof asset protection".
Problem #1: Judges: Judges dislike defendants telling them they can't do something. Many of the asset protection planners have no courtroom experience. A judge isn't going to listen to the idea that a defendant cannot bring back assets that they embezzled because of some fancy Cook Island trust. As has been shown in some famous cases, such as the Lawrence case, the judge will simply incarcerate the defendant standing right in front of them for contempt, until such time as the assets are repatriated. The worst part about this is that this defendant may very well be unable to bring the assets back, yet the judge won't care. Why? Because the defendant is responsible for the problem, as the defendant put the assets in the trust.
I had a law professor once tell me, "If you cannot explain something to a judge on a 4th grade level, then you are going to lose." Although this may be a bit of an exaggeration, it is not much of one. Judges like short and simple explanations (and explanations that respect the judges power). Therefore, weaving a complex web of corporations, trusts, secret bank accounts, etc. will simply look like deception to a judge.
Silly arguments don't go over too well. Several years ago snake oil salesmen pitched Nevada corporations as "bullet proof asset protection" due to this made up idea of "bearer shares". The idea was that you set up a Nevada corporation, and had shares which state that whoever holds the shares owns the corporation. You then give the shares away to a person, who gives them away to another person. Then, if called into court, you could "truthfully" state that you do not know who actually owns the corporation. The problem with this? Each transfer of the corporation would be a taxable event, and would be reportable on tax returns. Failure to so report could mean either 1) this whole bearer share thing is a sham that should be ignored by the court, or 2) that the parties are committing tax fraud. If tax returns are filed, then they can easily be obtained by a Plaintiff. Nevada has since amended their laws to specifically disallow bearer shares, since this scam was giving Nevada a bad reputation.
Problem #2: Divorce, particularly with minor children: Judges have taken a dim view of the use of asset protection trusts to avoid child support obligations, and have not hesitated to incarcerate those who defy repatriation orders (even when it truly has been impossible to bring back assets).
Problem #3: Fraudulent transfers: Court can look back several years and undo transfers of assets that were for less than full value.
Problem #4: Bankruptcy: Bankruptcy judges have a great deal of power to bring assets back into the bankruptcy estate. Moreover, failure to list assets can be a reason to deny a discharge and dismiss a bankruptcy (which would make a debtor continue to be liable to creditors). Don't forget, these bankruptcy courts can use the same fraudulent laws to undo transfers for less than value. I saw this happen to investors who bought distressed real estate a few years ago from desperate people who then declared bankruptcy. The bankruptcy trustees argued that the real estate was bought for less than reasonably equivalent value and that therefore the sales of the property should be undone (and notice that there does not actually have to be any bad intent, just that it was for less than reasonably equivalent value).
Problem #5: The very determined creditor: Many of the asset protection plans are more like deterrents to litigation than they are "bullet proof". A determined creditor could sue anywhere, and could even utilize tools such as involuntary bankruptcies (which may expand the types of assets that could be available to creditors, in addition to being able to utilize the powers of the bankruptcy trustee). Contrary to much of what is written on the internet, it is often much cheaper to initiate litigation than it is to conduct extensive background checks, and then to develop what assets and entities there are through the discovery process.
Problem #6: The IRS: Don't cheat them. Bad idea. There is extensive reporting now for US citizens and tax residents (see some of my other blog posts). The consequences for failure to file can be dire, including criminal penalties. A department at the Treasury Department that looks into failure to file foreign bank account reports is titled "Global Financial Crimes".
Problem #7: Scams: I had clients be pitched by Stanford Group before Stanford Group was seized by the government (the clients fortunately did not invest with them). Part of their pitch was that by holding your money offshore it was asset protected. The problem? The government claims the entire operation was a Ponzi scheme. Don't forget, you can get judgments against wrongdoers, but that doesn't bring the money back if it has already been spent, and the con artist is insolvent.
Problem #8: Loss of control over assets: This problem exists even in legitimate plans. If you have complete control over an asset so can your creditors generally. Most of the assets protection structures will have at least some restrictions over your control of an asset, which may be unattractive.
Problem #9: Medicaid Recovery: Like fraudulent transfers, medicaid has a lookback period for transfer that are for less than equivilent value. Also, if you continue to use an asset, such as a house, it may not be considered transferred.
The solution?: Make sure that you do your planning before there are any lawsuits and while you are solvent. Be especially careful if you are thinking you will need nursing home medicaid in the next few years (and use a good elder care planner). Obviously, don't commit fraud and crimes. Have legitimate non-asset protection reasons for whatever structure you set up. Don't try to just hide assets as you could be forced to answer discovery questions anyway, and committing perjury is not a wise asset protection plan. Use counsel that is experienced in asset protection and is familiar with the court process, possible IRS challenges, etc. There aren't too many solutions to the loss of control problem mentioned above, and there will simply have to be cost/benefit/risk analysis done of any proposed structure.
Sunday, January 1, 2012
United States persons are required to file an FBAR if:
- The United States person had a financial interest in or signature authority over at least one financial account located outside of the United States; and
- The aggregate value of all foreign financial accounts exceeded $10,000 at any time during the calendar year to be reported.
- You are a US Citizen or Tax resident; and
- You have "[a]ny financial account maintained by a foreign financial institution," "[s]tock or securities issued by someone other than a U.S. person," "[a]ny interest in a foreign entity," and/or "[a]ny financial instrument or contract that has as an issuer or counterparty that is other than a U.S. person." The types of assets that may be ensnared by this provison is quite broad, so it is strongly recommended to consult a tax professional; and
- "The aggregate value of your specified foreign financial assets is more than the reporting thresholds that applies to you: Unmarried taxpayers living in the US: The total value of your specified foreign financial assets is more than $50,000 on the last day of the tax year or more than $75,000 at any time during the tax year. Married taxpayers filing a joint income tax return and living in the US: The total value of your specified foreign financial assets is more than $100,000 on the last day of the tax year or more than $150,000 at any time during the tax year. Married taxpayers filing separate income tax returns and living in the US: The total value of your specified foreign financial assets is more than $50,000 on the last day of the tax year or more than $75,000 at any time during the tax year."
- "For Taxpayers living abroad (You are a U.S. citizen whose tax home is in a foreign country and you are either a bona fide resident of a foreign country or countries for an uninterrupted period that includes the entire tax year, or [y]ou are a US citizen or resident, who during a period of 12 consecutive months ending in the tax year is physically present in a foreign country or countries at least 330 days.) If you are a taxpayer living abroad you must file if . . . [y]ou are filing a return other than a joint return and the total value of your specified foreign assets is more than $200,000 on the last day of the tax year or more than $300,000 at any time during the year; or [y]ou are filing a joint return and the value of your specified foreign asset is more than $400,000 on the last day of the tax year or more than $600,000 at any time during the year."
Monday, November 7, 2011
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