TAX REFORM – WHAT ARE THE CHANGES IF IT’S ENACTED INTO LAW?

BY: Tim Williams

On Saturday, December 2, 2017, the Senate garnered 51 votes to pass its proposed Tax Reform Bill. It now goes to the Joint Committee on Taxation, a joint creature of the Senate and the House, for reconciliation to try to work out the differences in the two proposed versions of the Tax Bills.

The Senate Bill contains both tax and non-tax legislation. The following explains the basics of the tax and non-tax provisions of the Senate’s Bill. The House is also working on its own version of the Bill. The specifics of the House legislation are not settled at this time and could impact the way these provisions are worded in the final version of the legislation.

TAX PROVISIONS

Business Taxation

The most significant proposed tax change is the tax rate for large corporations, which would fall from 35 percent to 20 percent starting in 2019. This would presumably place the US on an equal footing with other western nations in terms of their business income tax structure.

The second most significant change is that the Bill would transform the tax system on business income from a worldwide approach to a territorial system. Currently, U.S. companies are taxed on all income earned throughout the world. The territorial system would change this, focusing taxation of businesses primarily on their earnings in the U.S., a change corporations have advocated for many years. Historically, the U.S. was the only nation to utilize the worldwide taxation approach to companies and individuals.

The Bill would also allow companies to bring back any money they have stored overseas at a tax rate of 14.5 percent.

Additionally, in an attempt to spur new investment by American businesses, companies would also be able to write off most of their cost for new buildings and other investments for the next five years. The usual method for companies to recover the cost of buildings and other investments is through a deduction for depreciation over many years.  This makes this particular change significant, especially for large corporations seeking to expand their operations.

The Bill also would lower the tax on non-professional service companies that are structured as pass-through entities. This includes S corporations, limited liability companies, and partnerships. The Bill allows owners of such entities to deduct 23 percent of their pass-through earnings. There is an exception for owners of professional service businesses. Owners of professional corporations would only be allowed to take the 23 percent deduction if their income is less than $500,000. If left unprotected, the Bill would create a very strong incentive for owners of pass-through entities to not pay themselves a salary because the salary would be taxable at one of the new tax bracket rates.  By not taking a salary, the business owner would utilize the overall lower effective rate on all income generated by the entity resulting from the 23% deduction of all pass through earnings. In addition, the incentive that exists today, which is to avoid the 15.3% Social Security Tax on Self-Employment income, would continue under the new law. The Bill does have some measures built into it to prevent this from happening.

Individual Income Taxation

The top tax rate for higher income taxpayers would fall under this plan from 39.6 percent to 38.5 percent. The other tax brackets would also be slightly lower than under current law. However, some of the deductions which save taxpayers taxes – particularly in the Midwest – would be limited, which would result in net higher taxes for some starting in 2018, rather than lower taxes.

At the moment, Americans are able to deduct $4,050 as a “personal exemption” for themselves, their spouse and each dependent. The Senate Bill eliminates the personal exemption entirely. Instead, the Bill expands the standard deduction so the first $24,000 of income for a married couple ($12,000 for an individual) would not be taxed. The Bill also would bump up the child tax credit from the current $1,000 to $2,000. The overall effect here is that most people are better off, but not everyone.

Taxpayers would still be able deduct their contributions to charity under the Bill. In addition, the deduction for mortgage interest would still be available. The deduction for state and local property taxes would be capped at $10,000.

The threshold for deducting medical expenses would be reduced from medical expenses exceeding 10 percent of adjusted gross income down to 7.5 percent.

Under the current law, if a taxpayer owns and has lived in their home for two out the past five years and they sell the home, they can exclude up to $500,000 of capital gain. Under the proposed Bill, a taxpayer would have to own and live in the home for five out of the last eight years. This change will discourage “house flippers” and home builders who typically build or rehab, live in the home for two years, and then sell it off at capital gains tax rates, repeating this process every two years. With respect to Michigan construction law in particular, this change may serve to further discourage the abuse of builders failing to obtain a residential builder’s license by “flipping” the house as an unlicensed Michigan builder.  Currently, the tax code is more favorable to unlicensed builders who may utilize the exemption to build houses under the veil of their own personal use and then sell them to unsuspecting buyers after living in the home for a short period.

The House Bill, unlike the Senate Bill, would eliminate the tax deduction for ex-spouses that pay alimony for divorces occurring on and after January 1, 2018.

The deductions for moving expenses, casualty losses, biking to work and tax preparation have all been eliminated in the proposed Bill.

Estate Taxation

Under present law, up to $5,490,000 can be excluded from the Estate Tax per individual. This number would be doubled under the Bill, but not eliminated as rumored.  

NON-TAX CHANGES

The Bill would eliminate the individual mandate under the Affordable Care Act. The Congressional Budget Office estimates this will result in 13,000,000 Americans losing health insurance.

The Bill would also allow for oil drilling in the Alaskan Arctic Wildlife Refuge.

ACTION STEP

We urge business and individual clients alike to review their own situation in light of the Senate Tax Bill, and to begin to consider what changes in their future plans may be necessary to take advantage of the positives in the Bill and avoid the negatives. For example, if you are thinking about constructing a building or making long-term capital expenditures, doing so in the next five years makes sense. Additionally, if you live in a home that has greatly increased in value, and you are thinking of selling, beware of the five of eight year “live-in” requirement for exclusion of capital gain that would be imposed by the Bill.

Please contact us if you have questions about the likely impact of the tax legislation on your business or personal situation.

TAX REFORM – WHAT WILL IT MEAN TO YOU?

By:  Tim Williams

The White House first released its proposed Tax Reform Plan in April, 2017. The initial release was one page and short on details. Following that, the Secretary of the Treasury released more details on the proposed “Trump Tax Plan.”

The Trump Tax Plan would have the most dramatic changes for wealthy individuals, as well as for corporations, both large and small. Individual tax rates for the super wealthy and high income families would drop dramatically. Corporate income tax rates would decrease by 57%.

The following highlights will allow you to roughly estimate the impact of the specific proposals on your personal tax situation if the proposed plan becomes law.

INCOME TAX

The Trump Tax Plan would replace the current seven personal income tax brackets with three tax rates – 12%, 25% and 33%. The 33% tax rate is lower than the highest marginal rate today – 39.6%. In addition, the 3.8% Affordable Care Act Investment Tax and the Pease 1.3% unlimited Medicare Tax on compensation would be repealed.

Income up to $24,000 would not be taxed. As such, the present standard deduction of $12,000 would double to $24,000. All itemized deductions would be eliminated except for mortgage interest, the charitable deduction, and child care expenses. This will negatively impact taxpayers who have higher itemized deductions in relation to their adjusted gross income.

Several credible organizations have modeled the income tax impact of the Trump Tax Plan at various income levels for married persons filing jointly. It is concluded that,  for the majority of the middle class, taxpayers would experience only a slight increase in net Federal Income Tax or no change at all.

Under present law, capital gains are most commonly taxed at 15%. Certain high income taxpayers pay these at a 20% tax rate. Capital gain taxes would be restructured and essentially return to the law as it was prior to Congress implementing a flat rate capital gain tax structure. The capital gain tax would be structured such that one-half of a capital gain would be taxable at the taxpayer’s regular tax rate. So, with the highest personal income tax rate at 33%, the highest capital gains tax rate would be 16.5%. The capital gain tax rate would apply to capital gains, interest and dividends.

The Alternative Minimum Tax would be repealed in its entirety. This is a tax that applies to individuals whose calculated income tax is considered to be below a theoretical “acceptable” composite income tax rate. This normally results from having a disproportionately high percentage of income coming from “passive sources” or from very high itemized deductions.

BUSINESS TAXES

The Trump Tax Plan would reduce the corporate income tax from 35% to 15% on C corporations. C corporation taxation status is typically chosen by companies that are larger, and thus can handle the income tax burden. These companies pay tax at the company level on their net taxable income in addition to their shareholders paying tax on dividend distributions. It is believed that this change will make America more competitive with respect to attracting and retaining corporations in relation to other western economies.

The Trump Tax Plan calls for S corporations, limited liability companies and partnerships to be taxed at a rate of 15% on flow through income to the shareholders, members or partners. This rate would be payable by the shareholders, members or partners, as opposed to the current rule which taxes S corporation, LLC, or partnership income at the individual taxpayer’s income tax rate. The new structure would create a strong bias towards not paying compensation to the shareholders, members or partners which would be taxed at one of the three new tax rates. If the net S corporation, LLC or partnership income is allowed to “flow through” to the individual shareholder’s Form 1040, as opposed to reporting it as compensation, it will be taxed at a flat 15% rate, as opposed to 12%, 25%, or 33%.  In addition, such a payment structure would avoid Social Security Tax of 15.3% to the extent it is not paid as wages.

With the restructuring of the C corporation and S corporation tax structure, there would be a strong incentive for C corporations to elect S corporation status to take advantage of the single 15% tax on net corporate income. Under present law, in order for a C corporation to elect to be treated as an S corporation for tax purposes, one of the key requirements is that the corporation can have no more than 100 shareholders. Thus, that avenue would not be open to large, publicly traded companies.

ESTATE TAX

The estate tax proposal is radical. First, the Trump Tax Plan would eliminate the estate tax. This is a tax imposed on individuals with over $5,490,000 in total assets (adjusted annually), or $10,980,000 for a married couple. Assets over this amount are taxed at 40%.

The Trump Tax Plan would replace the estate tax with a deemed capital gain tax.

Under current law, upon death, any assets owned by the deceased taxpayer are marked up to their fair market value on the date of death. Thus, death transfers do not incur any capital gain taxes if the appreciated asset is sold immediately following death. The Trump Tax Plan would tax the capital gain that is deemed to occur at death whether or not the deceased taxpayer’s beneficiaries have sold the assets. The decedent’s tax basis would be deducted from the fair market value of the appreciated asset, and the capital gain tax immediately payable on the difference.

The capital gains tax would be payable even though the individual has no cash proceeds to pay the capital gain tax. This suggests that if this part of the Trump Tax Plan is enacted, it would make sense for individuals to purchase life insurance on the decedent’s life to pay the tax associated with the deemed capital gain tax. Otherwise, the requirement to pay the deemed capital gain tax would necessitate selling the appreciated asset to pay the tax. This would be particularly harmful if the asset is in a “value through”, such as stocks and securities were in 2007 - 2011.

SUMMARY

Congress and the Trump Administration have set December 31, 2017 as the deadline for enacting tax legislation. Please review your specific situation and let us know if there is any aspect you wish to address.

SHOULD YOU BE CONCERNED WITH THE IMPACT OF THE ALLARD DECISION ON PRENUPTIAL AGREEMENTS?

By:  Andrew Burrows

On January 31, 2017, the Michigan Court of Appeals issued an opinion in Allard v. Allard (Allard III) that seemed to have a dramatic impact on the status of prenuptial and postnuptial agreements under Michigan law. Despite the initial outcry, the actual impact of this decision on such agreements is fairly negligible, with prenuptial agreements remaining an important tool for couples contemplating marriage.

Above all, Michigan contract law protects the principle of freedom to contract by recognizing all contracts entered into upon the mutual agreement of the parties. As such, many legal provisions that provide specific rules or expectations can be modified, waived, or supplanted by contractual agreements. That being said, it is also well recognized that freedom of contract does not permit contracting parties to impose obligations or waive the rights of third parties without their permission to do so.

In its most simple form, Allard affirmed the power of a divorce court to invade the separate property of one spouse if the martial estate is insufficient to provide for the suitable support and maintenance of the spouse seeking additional support.  This accounts for the needs of any children in their care despite the presence of a contractual agreement to the contrary. In exercising this equitable power, the court is also limited, as it may only be exercised over property for which the spouse seeking additional support contributed to the acquisition, improvement or accumulation. Necessarily, this would likely include all property accumulated during the course of the marriage.

As such, where prenuptial agreements are concerned, this does not change the effectiveness of these agreements where property accumulated prior to marriage is concerned, nor does it affect provisions controlling any inheritance by a spouse. In addition, unless there is an equitable reason for the court to invade the individual property of a spouse, the terms of a prenuptial agreement will remain binding.

As the Court of Appeals stated in Allard III, however, a divorce proceeding is an equitable one that allows the court the freedom to afford whatever relief is necessary to accomplish its own directives. In the decision, the Court emphasized these equitable principles and pointed out that the couple’s children are third parties whose rights are impacted without their consent via a prenuptial agreement.

The broad impact of the decision is that the bounds of contractual freedom for creating a prenuptial agreement have been diminished, at least to the extent to which these agreements may be utilized to maintain economic inequity between spouses upon divorce. Practically speaking, most couples signing prenuptial agreements are doing so to protect property accumulated prior to marriage, and inherited during marriage, not to ensure that they will retain a disproportionate portion of property accumulated during the marriage.

In summary, here are the key highlights:

• Prenuptial agreements continue to be critical to protect the separate property of each spouse accumulated prior to marriage, as well as any property or assets inherited during marriage by a spouse.

•  A divorce court will only employ equitable principles to redistribute property – despite such property having been deemed as separate by a prenuptial agreement – when necessary to resolve an inequity of property between the spouses that makes support of one of the spouses impossible without such redistribution.

• Continued and future support of minor children is an extremely important factor in the court’s decision to judicially redistribute separate marital property.

If you are looking to have a prenuptial agreement drafted, please contact your attorney to address your individual concerns.

The Elimination of Dower Rights in Michigan

By:  Adrienne B. Knack

Michigan recently repealed widow’s dower rights going forward after a long history of granting dower to widows.

The concept of dower rights dates back centuries and was intended to protect a surviving widow following  her husband’s death.  The widow could elect to retain one-third of (her deceased husband’s real estate that her deceased husband had held during their marriage. This included all real estate brought into the marriage and acquired during the marriage, whether by purchase, gift or inheritance.  In Michigan, dower rights were recognized in common law, as well as in the Michigan Constitution, statutes, and land title standards. 

One of the consequences of dower rights in Michigan was the statutory provision that a real estate deed show the male seller’s marital status on the document, in order to identify the spouse as having a potential dower right in the property being sold.  Additionally, language needed to be included in deeds addressing the spouse’s dower rights in the property.  If this was not addressed on the deed, it became an issue when the husband attempted to sell the property and created a cloud on the title.  Because of this, although dower rights were considered inchoate (incomplete) until the husband’s death, the presence of dower rights prevented a husband from selling or transferring property without  his spouse’s permission and completely disinheriting his wife.  This was the case even if the wife was not an owner of the property.  It also created an issue when the husband attempted to mortgage the property.  Whether dower should be applied and how to handle it also became a unique issue in the case of same-sex marriages in Michigan. 

Legislation to abolish dower in Michigan had been presented to the legislature many times, but did not pass and until recently, Michigan was the only state to continue to recognize this archaic concept.  However, since the United States Supreme Court’s landmark decision in 2015 in Obergefell v. Hodges, holding that states must license same-sex marriages, Michigan’s dower was put in question again since it applied only to “wives” and not to “spouses.”  Rather than extend the protection to husbands, the Michigan Legislature voted to abolish dower rights.  On January 5, 2017, Governor Rick Snyder signed into law a package of bills that formally abolished dower rights in the State of Michigan.  The legislative package consisted of House Bill 5520, Senate Bills 558 and 560. They are now Public Acts 378, 489 and 490 of 2016.  The new law took effect April 6, 2017. 

This means that a widow will no longer have the option to elect the dower share when her husband dies, unless he died prior to April 6, 2017.  It also means that a wife should no longer have to join in the signing of a deed for property owned solely by her spouse. However, while Michigan works out the kinks with the new laws, it may make sense to still address dower rights in a deed, especially if the property was conveyed to the husband while the spouses were married and before the abolishment of dower. Additionally, the abolishment of dower does not affect or alter Michigan’s laws regarding “homestead”, and so a spouse may still be required to sign the mortgage for their homestead property, depending on whether the mortgage is granted to secure debt which was not incurred in the purchase of the property.

If you have any questions about dower rights, please contact us.

Protecting Yourself in Residential Real Estate Transactions

By: Ashley Prew

When selling or purchasing a new home, individuals often do not think to hire an attorney to assist with the transaction and review the key legal documents.  Generally, it seems that consumers tend to rely solely on real estate agents to assist with the transaction.  Although we absolutely recommend hiring a real estate agent when buying or selling a home, we also recommend using a trusted legal professional to review the documents prior to the execution of any agreements with the agent or the other parties to the transaction.

    

The sale of real property is a legal transaction that has very specific requirements.  All sales require a purchase agreement, which is a legally binding contract whereby the seller agrees (and becomes contractually bound) to sell the property to the purchaser under the particular terms of that purchase agreement.  Oftentimes, standard form purchase agreements fail to address key issues in the transaction as they do not contemplate the particular agreement between the parties.  For example, many standard form real estate purchase agreements fail to include what is known as a “risk of loss provision” which designates who is liable for any potential loss to the property during the period between the execution of the purchase agreement and the closing.  If, for example,  the property burns down the day before closing, there should be adequate provisions to address what would happen and how that unfortunate event would be handled.

Another example of a key provision that is often missing from a purchase agreement is a provision to address what happens if the property does not appraise for the purchase price or higher.  If the sale requires financing through a mortgage, this provision becomes particularly relevant.  Mortgage lenders typically will not lend for the purchase of property if the sale price is higher than the appraised value.  There are equitable ways to address this scenario, such as readjusting the purchase price or allowing the parties to rescind the contract.

 

As stated above, once the purchase agreement is signed, it is a legally binding contract and typically can only be amended by an additional signed writing between the parties.  Therefore, the time to negotiate the contractual provisions is before the agreement is signed.  In order to avoid disputes after the fact, we highly recommend having an attorney review the purchase agreement, explain the key provisions, and indicate whether any major provisions are missing. Given the magnitude of most real estate transactions, the failure to do so often creates catastrophic results for one party, or simply creates costly litigation between the parties.

Beyond the purchase agreement, the review of the closing documents by an attorney prior to closing is also an important step.  The closing documents – specifically the deed conveying the property to the buyer, closing statements, and title commitment – are what transfers and guarantees title to the property.  It is imperative that the deed is one hundred percent accurate in order to ensure there are no title discrepancies or disputes in the future. As a purchaser, it is also extremely important to have an adequate title insurance policy to ensure that if a title dispute  arises in the future, there  will be insurance to cover that issue.  Again, once the closing documents are signed, they are legally binding. The time to have them reviewed for accuracy by an attorney is prior to the closing.

Residential real estate transactions often reflect an individual’s biggest investment and can be an exciting and emotional time.  In order to ensure the transaction goes smoothly, it is important to protect this investment by hiring a qualified attorney, in addition to other chosen real estate professionals, to assist with the buying or selling process.

UTILIZING BUSINESS AGREEMENTS AS A DETERRENT TO LAWSUITS AND AS AN OFFENSIVE WEAPON

By:  Andrew Burrows

Despite the inherent usefulness of service agreements and/or purchase agreements in memorializing the terms of a transaction between businesses (“Business to Business” or “B2B”), or between businesses and their customers (“Business to Customer” or “B2C”), many entrepreneurs forego having these documents drafted. From our experience, the primary reason for delaying or altogether avoiding having a formal agreement drafted for their business dealings is one of cost. Unfortunately, clients who do not have effective agreements and who find themselves in a B2B or B2C dispute are at a drastic disadvantage once they find themselves in the negotiation or litigation.

One of the primary benefits of effective agreements is the impact they have on litigation, or a situation that may give rise to litigation. A well-drafted service agreement or purchase agreement will lay out all the material terms for a service based business, and will ideally leave no “grey area” for the parties to dispute. Although litigation sometimes arises because of outright wrongdoing by one party, lawsuits also often arise because of a misunderstanding of the terms of an agreement between the parties. This most often occurs where the agreement between the parties is never memorialized by a writing (an oral agreement), or where the parties use an agreement that is not specifically tailored to their business. The most common example of this is finding a service agreement from the Internet and modifying it in an attempt to tailor it to the needs of the business.

Despite the  perceived initial cost savings, these patchwork agreements fail to address key areas that give rise to disputes. Although it may be difficult to rationalize shouldering the cost of a formal agreement as a business owner, the cost of preparing an agreement to protect your business is small in comparison to having your business involved in disadvantageous litigation.

Beyond the protective aspects of these agreements, a service agreement or purchase agreement is often a business’ best weapon in taking action to collect a receivable or right a wrong. A well-drafted agreement will specifically define the terms of the agreement between the parties. This is of utmost importance. First, the mere existence of a well drafted agreement will almost always cause customers and suppliers to live by it without a lawsuit. If there has to be lawsuit, the chances of good result are much better with a soundly written agreement. In these situations, litigation may be avoidable, allowing the parties to negotiate a resolution without the expensive legal fees associated with business litigation.

MICHIGAN ADOPTS DOMESTIC ASSET PROTECTION TRUSTS

By:  Tim Williams

On December 8, 2016, Michigan signed into law two bills that allow the creation of  Domestic Asset Protection Trusts (DAPT). The law goes into effect on March 8, 2017. Michigan is now the seventeenth state to allow such trusts.

The Basics

A DAPT is an irrevocable trust that protects the assets of the person who sets up the trust from the usual claims that apply to trusts. The person who creates the trust, called the "Grantor", transfers a portion of his or her assets into the trust. The Grantor is typically a lifetime beneficiary of the trust. The Grantor can also retain decision-making authority over the administration of the trust. The assets in the DAPT are not subject to the Grantor’s creditors, even though the Grantor is a beneficiary. Moreover, under recent IRS rulings, if drafted properly, the assets in a DAPT are not included in the Grantor’s Gross Estate for Federal Estate Tax purposes.

The creditor protection aspect of the law with respect to DAPTs is quite lenient. The law provides that the Grantor’s creditors may not attack assets transferred to the DAPT upon expiration of a two-year period, which begins with the date the assets are transferred to the Trust. There are only a few exceptions to this protection, including instances of fraudulent transfers and bankruptcy.

Practical Uses for a DAPT

Adult Child Needing Protection

The first situation where a DAPT is useful is one in which a person’s adult child needs to be financially supported but it is not desirable to make out-right gifts to the child annually. Circumstances that could make out-right gifts undesirable include if the child is involved in bankruptcy, insolvency, divorce, child support issues, judgments against the child, student loan default, or an IRS Federal Tax Lien.

The DAPT can be set up so that funds are available to support the child, enable the purchase of a house for the child’s use, etc., but not subject the assets or income to risk of loss if placed directly in the hands and ownership of the child.

Reducing Federal Estate Tax

A second situation where a DAPT will be useful is where the Grantor needs to reduce the size of his or her estate for Federal Estate Tax Purposes. The use of a DAPT will allow the Grantor to shift an amount of assets into the DAPT to reduce his or her Federal Estate Tax below the Federal Estate Tax dollar exclusion, thus eliminating any Federal Estate Tax at his or her passing.

Despite the benefits of the DAPT to persons in situations such as those described above, care should be taken to consider the Capital Gain Tax consequences when planning a Federal Estate Tax Reduction DAPT. The IRS may take the position that the Grantor has “gifted” the capital gain tax to the beneficiaries. This is known as carryover tax basis. If assets are transferred at death, the Capital Gain Tax is forgiven.

Overall, the Michigan DAPT can be a powerful tool in both estate planning and asset protection planning. Considering whether a DAPT is appropriate involves many considerations. Therefore, an attorney that specializes in estate planning and estate tax issues should be consulted to ensure a DAPT is appropriate for your situation.

Purchasing Intellectual Property

By: Ashley Prew

A sometimes overlooked part of a business transaction is the sale of intellectual property rights.  Specifically, any trademarks, service-marks, patents, and copyrights that a business owns need to be handled properly in the sale of the business. Unfortunately, some of our clients have purchased trademark and service-marks in the course of acquiring another business, but failed to receive legal title via proper transfer to the new business owner at or immediately after the closing.

If a business owns and then sells a federal trademark or service-mark, the required transfer of title document is an Assignment of Interest that is filed with the United States Patent and Trademark Office (“USPTO”).  The assignment can be compared to a deed for real estate.  If the assignment is never recorded or filed with the Trademark Office, then ownership remains with the previous owner.  If this occurs, additional expense will be incurred later when the discovery is made and the mistake has to be corrected. In addition, if there is a dispute over ownership, costly litigation may result to resolve the ownership dispute. 

Properly addressing the intellectual property rights of a company in the Asset Purchase Agreement or Buy/Sell Agreement is only the first step in ensuring the trademark or service-mark is properly sold in the transaction.  Beyond these agreements, it is up to the parties to ensure that the Assignment of Interest is both executed prior to or at the closing, and then properly filed with the United States Patent and Trademark Office. After the ownership transfer is properly recorded with the USPTO, it becomes the new owner’s responsibility to ensure it adequately protects the intellectual property interest. Some of these protective acts include continuously using the mark, filing the required renewals with the USPTO, and taking steps to ensure competitors do not infringe on the registered mark. 

When purchasing, selling, applying for, or maintaining a federal trademark or service- mark, it is important to ensure you have an attorney who can advise you on the required steps to protect this intellectual property. If you have questions regarding trademarks, service-marks, or copyrights, please do not hesitate to contact us directly.

What is a board of directors all about?

By:  Adrienne B. Knack

In Michigan, corporations (including non-profits) are required to have a board of directors.  The board is responsible for overseeing the affairs and activities of the company or organization.  The board of directors is elected by the shareholders of a corporation, including the chairperson of the board of directors.  The company’s bylaws will dictate how the board operates.  The bylaws will also indicate how many directors need to be on the board.  This can be as few as one director, which is very common for a single shareholder corporation. 

One of the more important things that the board of directors is responsible for is selecting the company’s officers – president, secretary, and treasurer.  The officers are responsible for the day-to-day affairs of the company and running the business.  Michigan requires an annual meeting of directors to select each year’s officers.  This is usually done on the first Tuesday in March each year.  Michigan also requires there to be an annual meeting of shareholders whereby the directors are elected each year. 

The bylaws of the company will also dictate how often the board will meet.  The bylaws can be set up so that consent documents can be prepared and signed every year in place of having actual, physical meetings of the directors and the shareholders.  This is typical for companies that have a single officer, shareholder, and director.  On the other hand, some organizations have ongoing affairs that need to be addressed by the board of directors, so monthly or bi-monthly meetings are necessary.  For other organizations, annual meetings are all that is needed.

For a company that requires an actual, physical board meeting, the protocol for the meeting varies based on the organization.  Typically, an agenda for the board meeting will be sent out to the board members in advance of the meeting.  Often, this will constitute notice of the meeting to the board of directors pursuant to the bylaws.  The agenda will include reports of the officers and committees, new business that the board needs to discuss, and old business from a prior meeting.  The secretary will take notes (minutes) of the meeting to report back to the shareholders what the board discussed and decided.  The minutes also memorialize the board meeting and should be kept with all important company records.  The minutes will include all motions brought in front of the board, notes on the discussion, who seconded a motion, and whether or not the motion passed.  Motions are required to be made, seconded, discussed, and voted on to adopt (or deny) significant proposals before the shareholders and directors, such as the organization borrowing funds, potential mergers or sale, adding a new line of business, etc.  Typically, the “significant” events are outlined in the company’s bylaws.

These formalities are imperative to maintain proper legal standing for a corporation and keep separation between the entity and its shareholders, officers, and directors as individuals. If these formalities are not complied with, the personal assets of shareholders, officer and directors may be at risk despite the purported protection of the corporate form.  The company should also be sure that its business insurance policy includes officer and director coverage.

TAX ISSUES WHEN SELLING OR TRANSFERRING REAL ESTATE

By:  Tim Williams

Michigan has some unique tax provisions which can negatively impact the sale, transfer, and/or purchase of real estate. Being aware of these rules is important when making decisions with regard to selling, purchasing, and gifting real estate in Michigan.

In addition, there are several Federal and Michigan tax provisions to be aware of when selling or transferring real estate.

“UNCAPPING’ FOR PROPERTY TAX PURPOSES

Under Michigan law, the increase in a property’s value for property tax purposes cannot exceed the rate of inflation. This value, known as the “Taxable Value”, is used for property tax calculation and assessment. After the economic reverie following the Great Recession, it is quite common for real estate in Michigan to have a lower Taxable Value upon which property taxes are determined, as compared to the Assessed Value, which is not limited by the rate of inflation.

If property is sold or transferred in Michigan, the purchaser will pay property taxes on the assessed value of the property, as opposed to the taxable value. This sale or transfer permits the municipal taxing authorities to mark-up the value of the property for tax purposes, causing the purchaser to pay much higher property taxes than the seller had been paying. This is known as “uncapping” and it can be quite expensive. On investment and rental real estate, uncapping can factor heavily into the annual carrying cost of the real estate.

There are some exceptions to uncapping, many of which are quite complex. The most common exceptions include transfers between husband and wife, transfers from one family generation to the next, corporate real estate involved in a transaction which is a tax-free merger or consolidation, transfers pursuant to a court order, and transfers out of a probate estate to the decedent’s heirs and beneficiaries.

A transfer out of a living trust to a beneficiary will result in uncapping unless the beneficiary is the person who set up the trust or that person’s spouse.

MICHIGAN REAL ESTATE TRANSFER TAXES

Michigan has a State Real Estate Transfer Tax and a County Real Estate Transfer Tax. The taxes are levied upon the sale of real estate. Together, these taxes are levied at the rate of $8.60 for every $1,000 of value or sale price or fraction thereof. Therefore, the sale of a home for $300,000 will trigger a tax on the seller of $2,580.

There are some exceptions to these taxes as well. One exception that is particularly prevalent is a transfer where no money changes hands. This can occur when real estate is gifted, when it is transferred in satisfaction of a judgment of divorce, and when a spouse transfers the real estate to himself or herself and his or her spouse. Another common exception is transfers made by U.S. Federal agencies as sellers, such as the Department of Housing and Urban Development and the Department of the Interior.

Other exceptions include the entering into of a land contract, a transfer from a parent to a child, transfers to a limited liability company if the ownership percentages in the company are equal to the ownership percentages before the transfer, and a transfer from an owner to a new joint tenant where the owner remains a joint tenant.

FEDERAL AND MICHIGAN CAPITAL GAINS AND ORDINARY GAIN TAXES

For Federal income tax purposes, gain on the sale of real estate is taxed at either a flat 15% or 20% rate. High income taxpayers pay capital gains tax at the 20% rate.

For Michigan tax purposes, gain on the sale of real estate is taxed at the rate of 4.25%. Thus, the combined Federal and Michigan tax rate on gain on the sale of real estate is either 19.25% or 24.25%.

There are some exceptions to the imposition of the capital gains taxes. Married taxpayers can exclude up to the first $500,000 in gain on the sale of their principal home. Single taxpayers can exclude up to $250,000 in capital gain.  The principal residence exemption can be used on the principal residence as long as the owner occupies the home for at least two years within the five year time period immediately before you sell it.

Other exceptions include “like-kind exchanges” and transfers of real estate to a company owned by the person transferring the real estate.

Certain situations give rise to ordinary gain as opposed to capital gain. This includes gain from the sale of business or rental real estate, upon which the depreciation deduction was taken. Gain from the sale of business and rental property will be partially taxed as ordinary gain and not at capital gains rates. This places the rate on the ordinary gain portion as high as 39.6%.

ACTION STEP

In order to avoid the pitfalls of selling or buying real estate, seek the advice of a qualified attorney. A real estate attorney can often structure the transaction so as to avoid, or at least minimize, the negative impact of the Michigan and Federal tax rules impacting real estate transactions.

PROTECTING YOUR PERSONAL ASSETS AS A BUSINESS OWNER: IS FORMING A CORPORATION OR LIMITED LIABILITY COMPANY ENOUGH?

By: Andrew Burrows

Many business owners seek to form a formal business entity for the primary purpose of protecting their personal assets from any future legal claims there may be against their business. Although forming a corporation or a limited liability company (“LLC”) is surely a step in the right direction, this protection can be lost if the business owner does not comply with other formalities required by Michigan law. These formalities must be complied with in order to ensure that a potential lawsuit or creditor’s claim against the business does not reach the business owner’s personal assets.

HOW MAY MY PERSONAL ASSETS BE AT RISK?

In a civil lawsuit, a business defending a lawsuit may lack sufficient funds to pay the entire judgment that is awarded to the plaintiff. In order to ensure recovery for the full amount, plaintiffs will often argue a legal theory called “piercing the corporate veil” in order to allow the plaintiff to move beyond the assets of the business and recover directly from the personal assets of the business owner. This is not to say all businesses are at risk from this. Piercing the veil is only proper where the court perceives there is abuse of the corporate form, which is simply another way of saying that corporate formalities are not being followed by the business owner. It is also important to note that under Michigan law, piercing the veil is applied to LLC’s by courts in the same manner as corporations.

In addition, a plaintiff may name the individual directors and officers of a corporation (or members and manager of an LLC) as defendants in a lawsuit in order to have additional pockets to reach and to intimidate the directors and officers into settling the case. The best means to protect against this is for the business owner to add directors and officers liability coverage to the general liability insurance policy maintained by the company. This coverage will protect directors and officers (to the same extent as the business) for the types of claims and lawsuits the general liability policy covers.

WHAT FACTORS ARE CONSIDERED BY THE COURT WHEN DETERMINING WHETHER FORMALITIES HAVE BEEN COMPLIED WITH?

Outside of engaging in illegal acts such as fraud, here are a few of the most common reasons Michigan courts may permit a plaintiff to pierce the corporate veil:

1.   Absence of Corporate (or LLC) Formalities: 

This is most commonly a problem for businesses that have attempted to create an entity, but have not retained an attorney who specializes in assisting business owners and entrepreneurs. In starting their business, many entrepreneurs will pay an attorney a one-time fee to prepare the necessary documents to form a corporation or LLC. Sometimes business owners who have attempted to set up a corporation or an LLC on their own only use inception documents consisting of only a short document called the Articles of Incorporation (for corporations) or Articles of Organization (for LLCs).   There are several other documents, however, that must be prepared beyond these Articles to ensure all formalities are met.  Additionally, there are documents required to fulfill these formalities every year the company is in existence.  An experienced business attorney will prepare all of the required documents for the business.

2.  Commingling Personal and Business Funds:

    If you operate your business under a corporation or LLC, it is imperative that you open a separate bank account under the name of your business entity. It is equally important that all transactions of the business flow through the business’s bank account and none of the business transactions flow though the owner’s personal bank account. It is equally important that none of the owner’s personal expenses and transactions flow though the corporate bank account. Although personal funds may be contributed to the business as a capital contribution, for all intents and purposes, the contribution must be treated as a formal transaction (ex: shareholder exchanges cash for stock in the corporation).

3. “Undercapitalization”, a/k/a Siphoning Funds to a Shareholder (Corporation) or Member Interest Holder (LLC):

A business must maintain enough capital to sustain itself as a separate entity and not operate as a mere façade for the personal operations of a shareholder. Some small business owners, especially those who operate a single-shareholder corporation or single-member LLC, may distribute all annual profits of the business to themselves as dividends, leaving their business’ bank account barren. It is a violation of Michigan law for a business entity to pay all or almost all of its cash to its owner(s) if doing so leaves the business unable to pay its creditors in the normal course of business.

In this situation, courts are reluctant to allow business owners to shield their personal assets, and may reach the personal assets of the business owner to satisfy a judgment. The simple solution here is to keep the appropriate amount of capital in the business to support its operations and run such operations independent of the personal needs of the business owner(s).

ACTION STEP: PREVENTING A PLAINTIFF FROM REACHING YOUR PERSONAL ASSETS

The first step is to engage an attorney who specializes in assisting business owners and entrepreneurs and direct them to do a review of your business documents and operating procedures. By putting a plan in place to create or update these documents to comply with current law, a savvy business owner can ensure their business complies with all requisite formalities, as well as ensure that the business is being run and managed in a way that does not abuse the corporate (or LLC) form under Michigan law. 

Funding Your Revocable Living Trust

By: Ashley J. Prew

Some of the most common questions we receive from estate planning clients are regarding which assets should be owned by or payable to their Revocable Living Trust.  The process of transferring assets into a Revocable Living Trust during life or upon death is known as “funding” the Trust.  The Revocable Living Trust funding process is a crucial, yet often overlooked, step in the estate planning process. Properly titling and setting up beneficiary designations on your bank accounts, investments, and other assets ensures that if you become incapacitated during life, or pass away, your relatives are able to handle your affairs without initiating a probate court proceeding.  Since every estate planning situation is different, if you have specific questions about whether or not your assets are properly held in order to avoid probate, you should consult with your estate planning attorney.  With that being said, the following are some general considerations to make when determining ownership and beneficiary designations if your estate plan is complete and includes a Revocable Living Trust Agreement.

How do I fund the Trust?

Funding your Revocable Living Trust is the last step in the estate planning process and it is done after your Revocable Living Trust is executed and in existence.   This includes making sure that all of your assets are properly designated so that they will either pass to your Revocable Living Trust or a living beneficiary when you pass away.  The key item to remember is that if an asset is owned by an individual and not by their Revocable Living Trust, or their Revocable Living Trust is not the named beneficiary of the asset, that asset will require probate when the individual dies, even if they have a Will and a Trust.

Therefore, it is important that when you meet with your estate planning attorney, you disclose all of your real estate ownership interests, business ownership interests, and the types of accounts in which you hold your liquid and investment assets.  At the end of the estate planning process, Williams & Knack, P.C. provides you with a letter detailing the necessary steps to fund your Revocable Living Trust that are tailored to your specific situation, and follows your wishes in terms of how property is to be distributed to your beneficiaries upon your death. 

When should I fund the Trust?

The answer is right away, but many people have questions about whether assets need to be owned by their Revocable Living Trust while they are still living.  Generally, the answer is typically no, unless your situation includes special circumstances.  Remember that properly funding your Revocable Living Trust requires proper beneficiary designations and that does not necessarily mean that there will be any change in account ownership.  The instructions our firm provides in the letter referenced above will properly accomplish funding the Trust, but only if they are followed completely and accurately.

Are there any assets that should not be put into the Trust when I die?

The answer to this question depends on your financial and family situation, but generally we do not recommend naming a Revocable Living Trust as a beneficiary of any IRA, 401(k), or other “qualified” retirement funds and annuities. The reason for this recommendation is there are significant income tax advantages to naming your spouse, your adult children, or other persons as the beneficiaries of these types of accounts.  A living beneficiary can continue to defer the distribution and withdraw the balance of these accounts slowly over a period of years.  The amount they will be required to withdraw is based on certain factors including your age when you die and the beneficiary’s current age, life expectancy, and the beneficiary’s relationship to you as the account owner.  Alternatively, if you name your Revocable Living Trust as the beneficiary of this account, when you die, the Trustee will likely be required to liquidate and distribute the funds in the account within five years from the date of your death.  The assets in the account will then be taxed all at once, and as a consequence, will be subject to the higher taxation rates for Trusts. Furthermore, the assets will not be able to earn interest, dividends and capital gains, compounding tax free.       

Something to keep in mind, however, is that if your situation includes minor children or a special Trust for amenities for a beneficiary with a disability or if it is not your intention to have your beneficiary have complete access to the funds immediately upon your death, this recommendation would not apply to you.

Conclusion

As indicated, funding your Revocable Living Trust is specific to your own personal, family, and financial situation.   In addition, if you obtain a new account or a new piece of property, you need to take the steps to fund your Revocable Living Trust (or designate a beneficiary) with those accounts and assets as well.  We recommend that you confirm your beneficiary designations at least every few years to make sure that none of your assets will fall to probate.  If you have questions regarding funding your Revocable Living Trust and designating beneficiaries, please do not hesitate to contact our office directly.