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Trusts, Estates & Business Succession Blog

This blog is published by the attorneys in Capehart Scatchardโ€™s Wills, Trusts & Estates group. It addresses issues related to estate planning, wills, trusts, succession planning, tax and tax codes.

Who will you be when you retire?  Many of us identify ourselves through our career, but when we retire, that identity retires as well.  So, who do you want to be in retirement?  How do you want to enjoy yourself?  There is no magical age for retirement these days.  You hear of individuals retiring not only in their 60โ€™s or 70โ€™s, but in their 40โ€™s if they have been successful.  But, what is realistic for you?  In the meantime, you can always start planning (and in ways that are not entirely financially related).

Some things to think about in creating a new YOU:

  • Take some time and think about what you would like to use the time to enjoy โ€“ travel, spend more time with family, start a new career, become more active, volunteer, pursue a new or favorite hobby?ย  Make notes of your intentions and wishes.
  • Donโ€™t be afraid to dream.ย  After all, dreams can become realities.ย  Would you like to relocate to be in a warmer climate, closer to family, live in the mountains, live near water?ย  Is there a favorite travel spot you have visited where you think you might like to live?ย 
  • Consider ways to stay socially active (even in COVIDย times, you can have social interactions).ย  Would you like to meet existing friends for a specific purpose or would you like to meet new people by joining a new activity?ย  How can/will you accomplish this?
  • Donโ€™t ignore your health โ€“ stay healthy.ย  How will you accomplish this in retirement?ย  Plan time for staying active.
  • Look at your financial situation and get guidance as to the assets you have accumulated and how they will be impacted in creating the new You.

These tips are meant to start you thinking about what retirement would be like for you โ€“ regardless of whether you are retiring in the near future or whether you have several years before retirement.  Often times, people retire without having thought much about it other than โ€œI am ____ years old. It is time for me to retireโ€ or โ€œI have enough assets. I can retire from my careerโ€.  Donโ€™t allow yourself to be one of those people.  Allow yourself some time to dream, to think about what you will do.  It will make for happier times when retirement happens.

And finally, think about your estate planning.  Many times people have not completed their estate planning prior to retirement, thinking that there is no need to do so beforehand.  There could be no falser thoughts.  Estate planning addresses how to or who will handle situations during your lifetime, as well as planning for who will benefit from your estate.  Doing your estate planning is not just for post-death purposes, but living purposes as well.  Consider having your estate planning completed as a gift of love to your loved ones to help them avoid having to make decisions they otherwise would not have been faced with had you completed your estate planning. 

Happy Retirement Planning.

You see your parents aging and you begin to become concerned about their finances.  They may not have shared much with you about their finances or you may be fortunate that they have been open with regard to what they have accumulated.  Regardless of which scenario is true for you, talking about finances can be a delicate conversation.  If both of your parents are alive, this may be more appropriate guidance whereas if one parent is deceased, the survivor may have shared more of this type of information with you. 

How do you start the conversation?  The icebreaker could be to mention to your parent(s) that you are doing your estate planning or were talking to your financial advisor or accountant.  Do they have their affairs in order?  When was the last time their planning was updated? 

Many times, parents who are comfortable with their financial situation โ€“ they have income and assets to maintain the lifestyle to which they are accustomed โ€“ have their planning in order. You could engage in a conversation as to what their beliefs are for handling finances.   Asking for their advice can change whether they feel threatened with the conversation or whether they feel good to be giving parental advice. 

If your parents have been living from SS check to SS check and you suspect they might be in debt, they may be too embarrassed to tell you.  They may not want to burden you; they could be ashamed of their situation; they may have forgotten about having assets they donโ€™t access to on a regular basis.  Whatever the situation, it is not something to be ignored.  You donโ€™t want your parents to be bothered by collection agencies or creditors; you wouldnโ€™t want them to perhaps lose their residence; you want to see them enjoy their golden years with as little stress as possible.  If you think that they have credit issues, find a way to help them โ€“ could the children help with their bills? Should a credit counselor be engaged? Should an investigation be made to see where their assets have gone?  Reach out to your team of professionals to get guidance on what to do.  If your parents die with debts, their estate becomes obligated to pay before assets are distributed to the beneficiaries.  If there are fewer assets than debts, there may be insolvency proceedings required for the estate.  Do what you can to avoid this situation. 

If your parents are ill, you cannot take a soft approach.ย  You need to step in and make certain that their affairs are in order.ย  Do they have a living will or health care directive?ย  Do they have sufficient assets to cover nursing care in or out of a facility?ย  Might you need to consider making alternative arrangements for your parents to live with another family member?ย  Often times, we find that when a parent becomes ill, it is the first time that the family gets involved in looking at these matters.ย  And, it is not an option. It has to be done and NOW.ย  Avoid that situation.ย 

These conversations are best had in person, but that may not be possible.  Is it a conversation to be had with one child and parents or with all children present with parents?  That is a decision that only you can make.  You know your parents best, but whatever you do, donโ€™t approach the conversation in a threatening tone.  That could only put them on the defensive and make it more difficult. 

Information that is helpful for you to know is the identity of their attorney, their accountant, their financial advisor.  This is their team who can best piece together their financial situation and planning needs.  Working with one without the others can lead to gaps in the planning. If your parents are computer friendly, do they have passwords written down where you could locate the same?  Where do they keep their original documents? 

Some useful tips to make things easier for everyone is to analyze if financial accounts might be able to be consolidated.  Suggest that they create a โ€œ911โ€ or โ€œICEโ€ (in case of emergency) file to make locating important information easier. 

Good Luck.  This is not an easy conversation to have.

The IRS mails letters or notices to taxpayers for many different reasons.ย  Other than panicking, what should you do if you receive such a notice?ย  ย 

Here are some doโ€™s and donโ€™ts for taxpayers who receive one:

  • Donโ€™t ignore it. Most IRS letters and notices are about federal tax returns or tax accounts. Each notice deals with a specific issue and includes specific instructions on what to do.
  • Donโ€™t panic. The IRS and its authorized private collection agencies do send letters by mail. Most of the time, all the taxpayer needs to do is read the letter carefully and take the appropriate action.
  • Donโ€™t reply unless instructed to do so. There is usually no need for a taxpayer to reply to a notice unless specifically instructed to do so. On the other hand, taxpayers who owe should reply with a payment. IRS.gov has information about payment options.
  • Do take timely action. A notice may reference changes to a taxpayerโ€™s account, taxes owed, a payment request or a specific issue on a tax return. Acting timely could minimize additional interest and penalty charges.
  • Do review the information. If a letter is about a changed or corrected tax return, the taxpayer should review the information and compare it with the original return. If the taxpayer agrees, they should make notes about the corrections on their personal copy of the tax return and keep it for their records.
  • Do respond to a disputed notice. If a taxpayer doesnโ€™t agree with the IRS, they should mail a letter explaining why they dispute the notice. They should mail it to the address on the contact stub included with the notice. The taxpayer should include information and documents for the IRS to review when considering the dispute. People should allow at least 30 days for the IRS to respond.
  • Do remember there is usually no need to call the IRS. If a taxpayer must contact the IRS by phone, they should use the number in the upper right-hand corner of the notice. The taxpayer should have a copy of their tax return and letter when calling the agency.
  • Do avoid scams. The IRS will never contact a taxpayer using social media or text message. The first contact from the IRS usually comes in the mail. Taxpayers who are unsure if they owe money to the IRS can view their tax account information on IRS.gov.

If you had an overpayment on your 2019 federal income tax return, you may be receiving interest on the overpayment. 

Interest payments, averaging about $18, have been made to individual taxpayers who filed a 2019 return by this yearโ€™s July 15 deadline and either received a refund in the past three months or will receive a refund. Most interest payments will be issued separately from tax refunds.

In most cases, taxpayers who received their refund by direct deposit will have their interest payment direct deposited in the same account. If you received a check, look for the notation on the check โˆ’ saying โ€œINT Amountโ€ โ€“ which will identify it as a refund interest payment and indicate the interest amount.

By law, these interest payments are taxable and taxpayers who receive them must report the interest on the 2020 federal income tax return they file next year. In January 2021, the IRS will send a Form 1099-INT to anyone who receives interest totaling at least $10.

This yearโ€™s COVID-19-related July 15 due date is considered a disaster-related postponement of the filing deadline. Where a disaster-related postponement exists, the IRS is required, by law, to pay interest, calculated from the original April 15 filing deadline, as long as an individual files a 2019 federal income tax return by the postponed deadline โˆ’ July 15, 2020, in this instance. This refund interest requirement only applies to individual income tax filers โˆ’ businesses are not eligible.

Death taxes are commonly referred to as INHERITANCE tax or ESTATE tax.  Some states have both, some states have neither and some states have one or the other.  For Federal purposes, there is only estate taxes to be concerned with. 

If you become subject to Federal Estate Tax, that means that you have a gross estate (which includes probate and non-probate assets as well as jointly-owned assets) in excess of approximately $11.5 million (indexed each year for inflation and scheduled to sunset in 2025 with the current legislation). 

More individuals are concerned with their state death tax laws and what would apply to their estates.  To provide a simple distinction between the two types of death taxes โ€“ Inheritance and Estate โ€“ generally an Inheritance Tax is based upon the relationship of the beneficiary to the decedent while Estate Tax is based upon the value. 

If you live in New Jersey, your estate could be subject to Inheritance Tax.   Estate Tax in New Jersey was abolished a few years ago.  If your estate passes to lineal heirs or charities, there is no Inheritance Tax.  However, any assets passing to non-lineal (collateral) heirs โ€“ siblings, aunts, uncles, non-relatives โ€“ would be subject to New Jersey Inheritance Tax at rates up to 16 percent.  (Life insurance payable to a designated beneficiary is not subject to New Jersey Inheritance Tax regardless of the relationship.) 

However, if you live across the River in Pennsylvania, your estate becomes subject to Pennsylvania Inheritance Tax for all assets passing to a non-spouse or charity.  Yes, even children will pay Inheritance Tax on what they inherit from their parents at the rate of 4,5 percent.  The top Inheritance Tax rate in Pennsylvania is 15 percent.  There is no Estate Tax in Pennsylvania. 

Our neighbor to the north, New York, imposes an Estate Tax of 3.06 to 16 percent on estates valued over $5.9 million. 

Looking at a couple of New England states, Connecticut has an Estate Tax of 10 to 12 percent on estates above $5.1 million; Maine has an Estate Tax of 8 to 12 percent on estates over $5.7 million; Estate Tax in Massachusetts ranges from 0.8 to 16 percent on estates above $1 million; Rhode Island has an Estate Tax ranging from 0.8 to 16 percent on estates above $1.6 million; and Vermontโ€™s Estate Tax is 16 percent on estates above $2.8 million.ย 

Southern states such as the District of Columbia have an Estate Tax of 12 to 16 percent on estates above $5.8 million while Maryland has an Estate Tax of 0,8 to 16 percent on estates above $5 million as well as Inheritance Tax of up to 10 percent.  If you live in Kentucky, there is an Inheritance Tax of up to 15 percent.

There are other states which have Inheritance Taxes of up to 18 percent and Estate Taxes of up to 20 percent on estates above $2.2 million. 

As long as I have lived in New Jersey, I have consistently heard that we are a heavily-taxed state, but I recently saw a comparison of taxes imposed in each of the 50 states and DC, which included Sales Taxes, Income Taxes, Personal Property Taxes, Estate Taxes, Inheritance Taxes, Wage Taxes, Real Estate Taxes. I was quite surprised that, in the end, most states have approximately the same aggregate tax rates but they are just identified differently.  As the saying goes โ€œThere are only two things for certain in life โ€“ death and taxesโ€. 

Fake Payments with Repayment Demands: Criminals are always finding new ways to trick taxpayers into believing their scam including putting a bogus refund into the taxpayer’s actual bank account. Hereโ€™s how the scam works:

A con artist steals or obtains a taxpayerโ€™s personal data including Social Security number or Individual Taxpayer Identification Number (ITIN) and bank account information. The scammer files a bogus tax return and has the refund deposited into the taxpayerโ€™s checking or savings account. Once the direct deposit hits the taxpayerโ€™s bank account, the fraudster places a call to them, posing as an IRS employee. The taxpayer is told that thereโ€™s been an error and that the IRS needs the money returned immediately or penalties and interest will result. The taxpayer is told to buy specific gift cards for the amount of the refund.

The IRS will never demand payment by a specific method. There are many payment options available to taxpayers and thereโ€™s also a process through which taxpayers have the right to question the amount of tax we say they owe. Anytime a taxpayer receives an unexpected refund and a call from us out of the blue demanding a refund repayment, they should reach out to their banking institution and to the IRS.

Payroll and HR Scams: Tax professionals, employers and taxpayers need to be on guard against phishing designed to steal Form W-2s and other tax information. These are Business Email Compromise (BEC) or Business Email Spoofing (BES). This is particularly true with many businesses closed and their employees working from home due to COVID-19.  Currently, two of the most common types of these scams are the gift card scam and the direct deposit scam.

In the gift card scam, a compromised email account is often used to send a request to purchase gift cards in various denominations. In the direct deposit scheme, the fraudster may have access to the victimโ€™s email account (also known as an email account compromise or โ€œEACโ€). They may also impersonate the potential victim to have the organization change the employeeโ€™s direct deposit information to reroute their deposit to an account the fraudster controls.

BEC/BES scams have used a variety of ploys to include requests for wire transfers, payment of fake invoices as well as others. In recent years, the IRS has observed variations of these scams where fake IRS documents are used in to lend legitimacy to the bogus request. For example, a fraudster may attempt a fake invoice scheme and use what appears to be a legitimate IRS document to help convince the victim.

Ransomware: This is a growing cybercrime. Ransomware is malware targeting human and technical weaknesses to infect a potential victim’s computer, network or server. Malware is a form of invasive software that is often frequently inadvertently downloaded by the user. Once downloaded, it tracks keystrokes and other computer activity. Once infected, ransomware looks for and locks critical or sensitive data with its own encryption. In some cases, entire computer networks can be adversely impacted.

Victims generally aren’t aware of the attack until they try to access their data, or they receive a ransom request in the form of a pop-up window. These criminals don’t want to be traced so they frequently use anonymous messaging platforms and demand payment in virtual currency such as Bitcoin.

Cybercriminals might use a phishing email to trick a potential victim into opening a link or attachment containing the ransomware. These may include email solicitations to support a fake COVID-19 charity. Cybercriminals also look for system vulnerabilities where human error is not needed to deliver their malware.

The IRS and its Security Summit partners have advised tax professionals and taxpayers to use the free, multi-factor authentication feature being offered on tax preparation software products. Use of the multi-factor authentication feature is a free and easy way to protect clients and practitioners’ offices from data thefts. Tax software providers also offer free multi-factor authentication protections on their Do-It-Yourself products for taxpayers.

If you have read each of the four blogs on protecting yourself from the โ€œDirty Dozenโ€, you will hopefully be aware of what to watch out for, how not to be vulnerable and how to best protect yourself from scammers.

Scams targeting non-English speakers: IRS impersonators and other scammers also target groups with limited English proficiency. These scams are often threatening in nature. Some scams also target those potentially receiving an Economic Impact Payment and request personal or financial information from the taxpayer.

Phone scams pose a major threat to people with limited access to information, including individuals not entirely comfortable with the English language.  These calls frequently take the form of a โ€œrobocallโ€ (a text-to-speech recorded message with instructions for returning the call), but in some cases may be made by a real person. These con artists may have some of the taxpayerโ€™s information, including their address, the last four digits of their Social Security number or other personal details โ€“ making the phone calls seem more legitimate.

A common one remains the IRS impersonation scam where a taxpayer receives a telephone call threatening jail time, deportation or revocation of a driverโ€™s license from someone claiming to be with the IRS. Taxpayers who are recent immigrants often are the most vulnerable and should ignore these threats and not engage the scammers.

Unscrupulous Return Preparers: Selecting the right return preparer is important. They are entrusted with a taxpayer’s sensitive personal data. Most tax professionals provide honest, high-quality service, but dishonest preparers pop up every filing season committing fraud, harming innocent taxpayers or talking taxpayers into doing illegal things they regret later.

Taxpayers should avoid so-called “ghost” preparers who expose their clients to potentially serious filing mistakes as well as possible tax fraud and risk of losing their refunds. With many tax professionals impacted by COVID-19 and their offices potentially closed, taxpayers should take particular care in selecting a credible tax preparer.

Ghost preparers don’t sign the tax returns they prepare. They may print the tax return and tell the taxpayer to sign and mail it to the IRS. For e-filed returns, the ghost preparer will prepare but not digitally sign as the paid preparer. By law, anyone who is paid to prepare or assists in preparing federal tax returns must have a Preparer Tax Identification Number (PTIN). Paid preparers must sign and include their PTIN on returns.

Taxpayers are ultimately responsible for the accuracy of their tax return, regardless of who prepares it. Taxpayers can go to a special page on IRS.gov for tips on choosing a preparer.

Offer in Compromise Mills: Taxpayers need to wary of misleading tax debt resolution companies that can exaggerate chances to settle tax debts for โ€œpennies on the dollarโ€ through an Offer in Compromise (OIC). These offers are available for taxpayers who meet very specific criteria under law to qualify for reducing their tax bill. But unscrupulous companies oversell the program to unqualified candidates so they can collect a hefty fee from taxpayers already struggling with debt.

These scams are commonly called OIC โ€œmills,โ€ which cast a wide net for taxpayers, charge them pricey fees and churn out applications for a program theyโ€™re unlikely to qualify for. Although the OIC program helps thousands of taxpayers each year reduce their tax debt, not everyone qualifies for an OIC. In Fiscal Year 2019, there were 54,000 OICs submitted to the IRS. The agency accepted 18,000 of them.

Individual taxpayers can use the free online Offer in Compromise Pre-Qualifier tool to see if they qualify. The simple tool allows taxpayers to confirm eligibility and provides an estimated offer amount. Taxpayers can apply for an OIC without third-party representation; but the IRS reminds taxpayers that if they need help, they should be cautious about whom they hire.

Be sure to look for the final segment next week.

This week we continue our IRS Dirty Dozen list of tax scams.

Social Media Scams: Taxpayers need to protect themselves against social media scams, which frequently use events like COVID-19 to try tricking people. Social media enables anyone to share information with anyone else on the Internet. Scammers use that information as ammunition for a wide variety of scams. These include emails where scammers impersonate someoneโ€™s family, friends or co-workers.

Social media scams have also led to tax-related identity theft. The basic element of social media scams is convincing a potential victim that he or she is dealing with a person close to them that they trust via email, text or social media messaging.

Using personal information, a scammer may email a potential victim and include a link to something of interest to the recipient which contains malware intended to commit more crimes. Scammers also infiltrate their victim’s emails and cell phones to go after their friends and family with fake emails that appear to be real and text messages soliciting, for example, small donations to fake charities that are appealing to the victims.

EIP or Refund Theft: The IRS has made great strides against refund fraud and theft in recent years, but they remain an ongoing threat. Criminals this year also turned their attention to stealing Economic Impact Payments as provided by the Coronavirus Aid, Relief, and Economic Security (CARES) Act.

Much of this stems from identity theft whereby criminals file false tax returns or supply other bogus information to the IRS to divert refunds to wrong addresses or bank accounts.

The IRS recently warned nursing homes and other care facilities that Economic Impact Payments generally belong to the recipients, not the organizations providing the care. This came following concerns that people and businesses may be taking advantage of vulnerable populations who received the payments. These payments do not count as a resource for determining eligibility for Medicaid and other federal programs They also do not count as income in determining eligibility for these programs.

Taxpayers can consult the Coronavirus Tax Relief page of IRS.gov for assistance in getting their EIPs. Anyone who believes they may be a victim of identity theft should consult the Taxpayer Guide to Identity Theft on IRS.gov.

Senior Fraud: Senior citizens and those who care about them need to be on alert for tax scams targeting older Americans. The IRS recognizes the pervasiveness of fraud targeting older Americans, along with the Department of Justice and FBI, the Federal Trade Commission, the Consumer Financial Protection Bureau (CFPB), among others.

Seniors are more likely to be targeted and victimized by scammers than other segments of society. Financial abuse of seniors is a problem among personal and professional relationships. Anecdotal evidence across professional services indicates that elder fraud goes down substantially when the service provider knows a trusted friend or family member is taking an interest in the senior’s affairs.

Older Americans are becoming more comfortable with evolving technologies, such as social media. Unfortunately, that gives scammers another means of taking advantage. Phishing scams linked to Covid-19 have been a major threat this filing season. Seniors need to be alert for a continuing surge of fake emails, text messages, websites and social media attempts to steal personal information.

Stay tuned for the next segment of the IRS Dirty Dozen.

Each year, the Internal Revenue Service releases its annual “Dirty Dozen” list of tax scams.   This year, there is a special emphasis on aggressive and evolving schemes related to coronavirus tax relief, including Economic Impact Payments.  I will be sharing this yearโ€™s โ€œDirty Dozenโ€ over the course of the next four blogs.

“Tax scams tend to rise during tax season or during times of crisis, and scam artists are using the pandemic to try stealing money and information from honest taxpayers,โ€ said IRS Commissioner Chuck Rettig. โ€œThe IRS provides the Dirty Dozen list to help raise awareness about common scams that fraudsters use to target people. We urge people to watch out for these scams. The IRS is doing its part to protect Americans. We will relentlessly pursue criminals trying to steal your money or sensitive personal financial information.”

Phishing: Taxpayers should be alert to potential fake emails or websites looking to steal personal information. The IRS will never initiate contact with taxpayers via email about a tax bill, refund or Economic Impact Payments. Donโ€™t click on links claiming to be from the IRS. Be wary of emails and websites โˆ’ they may be nothing more than scams to steal personal information.

IRS Criminal Investigation has seen a tremendous increase in phishing schemes utilizing emails, letters, texts and links. These phishing schemes are using keywords such as โ€œcoronavirus,โ€ โ€œCOVID-19โ€ and โ€œStimulusโ€ in various ways.

Fake Charities: Criminals frequently exploit natural disasters and other situations such as the current COVID-19 pandemic by setting up fake charities to steal from well-intentioned people trying to help in times of need. Fake charity scams generally rise during times like these.

Fraudulent schemes normally start with unsolicited contact by telephone, text, social media, e-mail or in-person using a variety of tactics. Bogus websites use names similar to legitimate charities to trick people to send money or provide personal financial information. They may even claim to be working for or on behalf of the IRS to help victims file casualty loss claims and get tax refunds.

Taxpayers should be particularly wary of charities with names like nationally known organizations. Legitimate charities will provide their Employer Identification Number (EIN), if requested, which can be used to verify their legitimacy. Taxpayers can find legitimate and qualified charities with the search tool on IRS.gov.

Threatening Impersonator Phone Calls: IRS impersonation scams come in many forms. A common one remains bogus threatening phone calls from a criminal claiming to be with the IRS. The scammer attempts to instill fear and urgency in the potential victim. In fact, the IRS will never threaten a taxpayer or surprise him or her with a demand for immediate payment. 

Phone scams or โ€œvishingโ€ (voice phishing) pose a major threat. Scam phone calls, including those threatening arrest, deportation or license revocation if the victim doesnโ€™t pay a bogus tax bill, are reported year-round. These calls often take the form of a โ€œrobocallโ€ (a text-to-speech recorded message with instructions for returning the call).

The IRS will never demand immediate payment, threaten, ask for financial information over the phone, or call about an unexpected refund or Economic Impact Payment. Taxpayers should contact the real IRS if they worry about having a tax problem.

Next week we will reveal the next three alerts of the Dirty Dozen.

If you received an Economic Impact Payment, you would have received Notice 1444, Your Economic Impact Payment.  This Notice should be kept with your tax records for tax year 2020. This notice provides information about the amount of the payment, how the payment was made and how to report any payment that wasnโ€™t received.

For security reasons, the IRS will mail this notice to each recipientโ€™s last known address within 15 days after the payment goes out. Itโ€™s especially important for people to keep this notice if they think their payment amount is wrong. When filing the 2020 tax return, taxpayers can refer to Notice 1444 and claim additional credits, if the taxpayer is eligible for them.

This Notice should be kept with a copy of your tax returns and all other important tax records.ย  The IRS recommends keeping these documents for at least three years.ย  A prior return can contain information needed to prepare a subsequent return.ย