Understanding the Kiddie Tax on Income

Many of us have minor children and a surprising number of those children have income from a variety of sources. It is no surprise that the IRS wants to capture this income and subject it to taxation, just as it does for our income as adults. A child’s earned income is subject to income and payroll taxes, just as an adult’s income would be, and the “kiddie tax” does not apply to such earned income.

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The income which is the focus of the “kiddie tax” is investment or unearned income received by children under the age of 19 and may include unearned income received by children over 18 who are full-time students.[i] Unearned income is broadly defined to include not only dividends, interest and capital gains but also would include distributions from inherited IRAs, Social Security survivor’s benefits, and other types of unearned income. The purpose of this tax is to prevent parents from reducing their tax obligations by shifting income to their children, who are typically subject to a much lower income tax bracket and rate, by placing investments in their children’s names.

When and how does this tax work? Where a child has unearned income in excess of the applicable threshold – $2,100 for 2017 – the unearned income above that amount will be taxed at the parent’s highest marginal income tax rate. With the highest income tax rate currently at 39.6 percent, you can see where the tax on a child’s unearned income could be burdensome and unwelcome. The child benefits from an exemption of the first $1,050 of income and the next $1,050 of the unearned income will be taxed at the child’s rate. These two items together comprise the $2,100 threshold noted above.

You may include a child’s income on your (the parent’s) tax return if a number of conditions are met, including where the only income for the child was unearned income[ii]. More commonly, a separate tax return is filed for the child as this will potentially result in lower overall tax than inclusion on the parent’s return will accomplish. Interestingly, the parent information required on the child’s tax return where the “kiddie tax” applies is that of the primary taxpayer (first listed for married couples), the custodial parent for divorced persons, or the parent with the highest income where the parents are married filing separately or have never been married. This may impact the rate charged on unearned income above the threshold where, for example, a custodial parent has a lower tax bracket than a divorced parent without custody.

Of course, not all investments generate significant income and so many investments or income sources owned by a child will not trigger the “kiddie tax” so long as items such as dividends and gains are low. Your financial adviser can assist with recommendation for investments that will help you avoid or minimize this tax by keeping unearned income below the threshold. Note in this connection that a section 529 plan established for a child’s education may have substantial unearned income but this type of holding will not be subject to the” kiddie tax” – or any income tax – where the parent is the owner and there are no distributions. Tax on distributions from a section 529 plan will occur only where those distributions are used for non-qualified expenses.

Where there is a capital loss in the child’s investment accounts for a particular year, the loss may be set off against current capital gains or carried forward just as is the case for adult taxpayers. However, that loss (if any) is attributable to the child and may not be used by the parent.

[i] Unearned income received by children between ages 19 and 23 who are full time students and have earned income less than half the cost of their support for the year will be subjected to the kiddie tax to the extent it exceeds the threshold.

[ii] Other requirements for including the child’s unearned income on your return include that there was no federal withholding or estimated tax payments for the child for the year, the child is not filing a joint return but is required to file a return, as well as the age limits mentioned above.

 

George Chamberlin & Mentor RIA Consulting © 2017

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Social Security and Working during Retirement

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A lot of us are not familiar with the rules governing how Social Security is affected when we continue working to some extent during retirement. Although the idea of working seemingly contradicts the concept of retirement, many of us may retire – or may be forced to retire – from a job but still find it necessary to work, at least on a part time basis. Furthermore, since retirement can happen at a wide range of ages, retirement will also find many of us receiving Social Security retirement benefits while still working on a regular basis.

Most workers are eligible to begin taking Social Security as early as age 62, and many do, particularly where they have left a career and even if they are still working. This is so even though most workers would be able to receive a substantially larger benefit if they defer taking their Social Security benefit until they reach their full retirement age or even later, up to age 70. The need for the benefit to supplement their earnings (or vice versa) is an important driver to choosing to receive Social Security early.

What is not as well known is that your Social Security benefit may be reduced if you are receiving Social Security, have not yet attained your full retirement age and your earnings from employment exceed the annual earnings limit, $16,920 in 2017. For example, if your full retirement age is 66 and your 66th birthday is in a future year, your Social Security benefits will be reduced by $1 for every $2 by which your earnings from employment exceed that annual earnings limit.

The rule is much more generous for employment earnings in the year you will reach your full retirement age as the reduction is only $1 for every $3 by which your earnings from employment exceed $44,800 during the months before you reach your 66th birthday in 2017. This limit, like the much lower annual earnings limit described above is subject to adjustment (generally upwards) each year.

Once you reach your full retirement age, there will be no further reduction of benefits for earnings from employment. However, all of these earnings during retirement, whether before or after your full retirement age will be subject to the Social Security tax on earned income. This income may have the effect of increasing your Social Security benefit over time.

Clearly, then, the danger years in terms of benefit reduction for those working and receiving Social Security are those years before the year in which you reach your full retirement age and then only when you have substantial earnings beyond the annual earnings limit.

The manner in which the reduction is applied by Social Security uses your expected earned income and the applicable earnings limit to determine the anticipated total reduction for the year. Then, depending on your full monthly Social Security benefit, one or more months of benefits, beginning with January of the calendar year under consideration, will be withheld until the full reduction for the year has been accomplished. The regular monthly benefit is then paid to you for the remaining months of the year. Any excess amount withheld would be repaid to you at the beginning of the following year. It is important to understand that this approach means you will not receive Social Security benefits for one or more months at the beginning of the year when there is a reduction – an important budgetary consideration.

However, there is a silver lining to the reduction in Social Security benefits under this rule. After you have reached full retirement age and where you have had benefits paid in earlier years reduced for income over the annual earnings limit, Social Security will recalculate the benefit amount so as to allow a credit to you for months in which your earnings caused you to receive a reduced or no benefit.

It is important to understand that all these rules are tied to your personal earnings record and Social Security benefit. If you are married, your spouse’s earnings do not come into the calculation of any benefit reduction to your benefits due to income – it is only your earnings that apply.

Finally, this discussion has focused only on how your Social Security benefits themselves may be affected by your earning income while receiving such benefits. The income tax implications of receiving Social Security benefits and the extent to which those benefits may be included in your taxable income is a separate discussion and involves a different set of rules.

 

George Chamberlin & Mentor RIA Consulting © 2017

How Restricted Stock Works in Your Plan

0_0_0_0_250_256_library_23174You or someone you know may have been offered participation in an employer’s restricted stock program and will want to know how such a program may affect your finances. An employer may utilize a restricted stock program both to compensate high level executives and professionals and to induce these persons to remain with the firm as it grows over time. The use of such a program often occurs in closely held private companies and is used to help ensure a firm’s progress towards both profitability and stability. As the name implies, restricted stock shares and restricted stock units are not liquid and the right to sell them is subject to strict limitations which are outlined in the program documents.[i]

Such a program may offer you restricted shares in the company or restricted stock units which may, at the appropriate time and under stated conditions, be converted to shares. Like stock options, an award of restricted shares (or units) often vests incrementally over months or years. This approach is an incentive to the recipient to stay with the company through the promise of receiving an increasing number of shares, as well as their potential to increase in value. The employee awarded such shares must remain in service with the employer in order to see the shares vest and receive the compensation. Vesting may be subject to a simple time requirement or also involve a performance requirement. [ii]

Effects of Vesting

Once awarded shares have vested, the holder typically is entitled to receive any dividends payable to the holders of shares in the company and to exercise any voting rights attributable to the shares. This is so even if the shares may not be sold at the time.

Before vesting, there is no income tax consequence for the employee since the right to receive the RS shares has not manifested.  At the time of vesting, in the absence of additional restrictions, income tax as well as payroll tax (assuming the shares are treated as compensation) will become due on the present fair market value of the shares received. This is the employee’s ultimate responsibility, though the employer may withhold some or all of the taxes due.

An important question here is what present value the employer has assigned to the value of either the shares of restricted stock or the share units awarded. This value will help us understand the likely income tax consequences as well as the potential impact on your plan.

One approach to the income tax due on vesting is the ability of the employee to make what is called a Section 83(b) election. Such an election would require the employee to prepay the income taxes based on the value at the time of the grant. This would establish a cost basis in the shares and preclude future taxation of that portion of the share value upon a future sale. The risk, of course, is that the stock drops in value since the taxes paid cannot be recovered.

If allowed under the program agreement, the withholding required for income tax attributable to the vesting of units or settlement of shares may be satisfied by a sale of sufficient stock from the vested shares or by the employee making payment to the employer of the required amount. In the latter case, the employee would need to fund such payment from other resources.

What about a sale of the shares?

In the usual case, there will be no significant opportunities to sell restricted stock shares during the early years following the award. One exception is the occurrence of a sale or an IPO for the employer. In such case, the sale event accelerates the time for vesting, though the continued employment requirement would remain in effect. In the event of an IPO, there likely will be a period of time – a lock-up – during which the employee may not dispose of the shares.

In a sale situation, the employee may be required to sell, transfer and deliver the employees shares to the buyer (termed a drag along provision). One potential result of a sale may be that rights to shares or units that remain unvested will be forfeited in the event of a sale unless (a) there is accelerated vesting due to the sales event or (b) the successor/purchaser undertakes to continue them. This is one of many reasons it is important to carefully review the terms of the program agreement.

Although not usually the focus of the discussion, an employee should be aware of the rights of their family/heirs under the program agreement in the event of untimely death or disability. Most often, there is a right to transfer vested restricted shares for some level of compensation as opposed to an outright forfeiting of those shares. Alternatively, the shares and rights may vest in a family member, subject of course to the original restrictions on transfer or sale. Again, this is an important part of the agreement to review and understand.

Your Financial Plan

Understanding the impact the restricted shares or stock units may have on your financial plan will be an important point of discussion with your adviser. Central to this understanding will be a careful review of the program agreement and all its terms and conditions. An updated plan developed by and with your adviser, including what if scenarios based on different timing and values, will be very helpful in weighing the possibilities. In such modeling and analysis, care must be taken to incorporate all relevant factors, including not only our timing and value estimates, but also any assumptions concerning continued employment, tax rates and burden based on the client’s income and other related factors, the potential impact of the restrictions and more. Such an analysis is no more than an illustration of possibilities and no guarantee of what will transpire.

 
[i] Restrictions on shares generally prevent nearly any transfer other than a transfer to a family member where the recipient remains subject to the restrictions and the agreement.
[ii] Typically, upon the termination of employment for any reason, any shares or units that have NOT yet met the vesting requirements are forfeited.

George Chamberlin & Mentor RIA Consulting © 2017

Considering Asset Protection Planning in Your Financial Plan

0_0_0_0_192_256_library_26353 Business planning and estate planning[i] are two major areas in which the question of asset protection is raised by investors and will often be incorporated in the financial plan and accompanying advice. The primary goal of asset protection planning is to protect one’s wealth from the reach of potential future creditors, whether your creditors or creditors of your heirs and beneficiaries. Such planning is typically engaged in as a part of the creation of one’s broader overall financial strategies, including the operation and succession of business, tax planning, retirement cash flows and ultimately leaving an estate.

Very generally, asset protection planning is the process of analyzing one’s financial situation to determine the best course of action to ensure that your various financial goals are served first and that all legitimate means for protecting your assets are taken. This ranges from transfer of assets to trusts to the purchase of insurance to the creation of limited liability entities to hold and manage assets. It is an area that can be very complex and which is extremely important to wealthier investors and business people, though almost anyone may take advantage of asset protection planning in the larger context of financial advising.

Why Do You Need to Consider Asset Protection?

The potential sources of liability, which in turn likely reduce that portion of your assets and resources expended in covering those liabilities, are numerous and may apply to almost anyone, regardless of a particular level of wealth. Consider, for example, the following partial list of areas of liability that may apply to clients: accidents involving vehicles, your home or business which result in personal injury and/or property damage; contract disputes and claims; divorce; environmental liability and many more.

Given the many potential sources of liability, it seems clear that being able to limit the amount of potential liability for any or all of these items should be helpful to people with regard to meeting their financial goals and objectives. In the best case, one should address these issues long before any liability actually arises, limiting the amounts that are within reach of creditors and maximizing amounts devoted to our goals. Where there is an existing lawsuit or formal claim, the potential for planning is greatly reduced but not eliminated.

What should you know about asset protection planning? Probably the most important thing to know is whether you could benefit from such planning and then work with an attorney well versed in the area and your financial advisor. That is how we will know the asset protection planning that takes place is both appropriate and coordinated with our overall financial goals and objectives.

What Doesn’t Work to Protect Your Assets?

First, there are some common misconceptions about asset protection and you should be aware of them so that your expectations are reasonable and able to be met. A lifetime revocable trust, as a practical matter, provides no protection from creditors since they can look through the trust to you. Although many types of creditor claims may be dischargeable in bankruptcy, thus protecting some assets from those creditors, a variety of other claims are not dischargeable, leaving your assets open to claims for taxes, for child support and alimony, for most criminal acts and intentional torts (civil wrongs) and the like. Note that many of these types of claims may overcome other asset protection strategies, such as spendthrift trusts, as well. However, certain types of assets generally provide some protection against creditors, including qualified retirement plans such as the IRA, 401(k) and 403(b), while even life insurance cash values or proceeds and annuities may be unreachable by creditors in many cases.

Second, doing nothing about asset protection may be far worse than making the attempt to incorporate some level of asset protection in your financial planning.  Acting before there is a need to engage in asset protection planning is a part of a sensible approach to financial strategies generally and also allows greater flexibility in planning.

Third, using only an asset protection trust in your plan may be insufficient. These trusts may not provide the levels of protection claimed by many of those offering them and great care should be exercised in working with these entities. A client should be encouraged not to place all of their assets in this basket. This is because domestic asset protection trusts – largely self-settled spendthrift trusts – although permitted in an increasing number of few states, offer protections which vary and which may not be fully recognized or enforced by other states. Foreign asset protection trusts have also come under high scrutiny and may not provide the expected protection, particularly where the requirements are not fully met.

A final, related consideration is that each client situation is different and the level and type of asset protection necessary will vary. This is where it is important to involve at least one expert besides your financial adviser in the advice process, usually one experienced in asset protection planning as well as debtor-creditor law. Such a team approach helps to keep the advice process focused on you and your needs.

How May You Protect Your Assets?

One basic asset protection planning technique is the acquisition of insurance against the risks associated with your personal or business activities. These activities may range from simply operating a business to owning real property to operating vehicles or machinery and so on. Although legitimate claims may never arise out of these activities, it is important to have insurance protection for the risk of an occurrence where liability may attach.  When a person owns reasonably adequate coverage (a topic not in scope for this article) then creditors and their attorneys are likely to settle their claims within the limits of the insurance policy, and the courts tend to follow this approach, though sometimes juries fail to act reasonably in entering their awards. Of course, insurance will not provide for all cases but does provide a reasonable starting point for many types of potential liability.

The limited liability company – or partnership – is currently in vogue as a method of asset protection planning, in addition to its other virtues. Typically, where a limited liability company (LLC) has multiple members, creditors of one of the members are limited to a charging order as their sole remedy with respect to the LLC. A charging order is basically the right of a creditor to reach the interest in the LLC held by the debtor (partner or member). This right is limited to the right to take distributions to which the debtor would otherwise be entitled and no more. It is a limited right, akin to an assignment, and may not be particularly attractive to creditors, hence the desirability of the LLC as an asset protection device. The underlying concept of the charging order is intended to protect the members of the LLC from being forced to accept a creditor of one of them as a partner or member of the LLC in lieu of the debtor partner or member. It is intended to protect the other members of the LLC in their operation of the entity.

The domestic asset protection trust is a popular vehicle offering asset protection. If you reside in a state that encourages and allows self-settled spendthrift trusts and your assets and even the trustee are all located within the state, then the likelihood of the trust being enforced in the state’s courts is reasonably high. This is limited protection however, and great care should be given to ensuring that your activities are confined to states recognizing and enforcing such trusts. It might help to consider using such a trust as only one part of an asset protection plan to ensure that not all assets are at risk. It might be useful to note that the validity and effect of these trusts has not been thoroughly litigated in the courts so that one does not really know the extent of the protections available.

Other types of asset protection planning that may prove useful include a broad variety of trusts in which you as the grantor retain no interest or only a limited interest that is outside your control. To the extent you have retained an interest in the trust, however, creditors generally can reach your right to distributions from the trust or other similar interests. These trusts generally are implemented as a part of a comprehensive estate plan or business plan that also includes asset protection planning. Note that these trusts should not be confused with asset protection trusts (foreign or domestic) or with the self-settled spendthrift trusts allowed in some states.

Summary

Asset protection planning is a legitimate concern for many of us. The techniques available range broadly from conservative and established approaches to “cutting edge” concepts. Some are more effective than others and an awareness of the status of particular methods, as well as the nature of potential claims, will be important for you and your advisor. Consider involving an attorney or other professional who specializes in asset protection planning where there are substantial assets and a potentially high exposure to liability.
[i] The discussion of asset protection within the scope of estate planning is addressed in a separate article.

 

George Chamberlin & Mentor RIA Consulting © 2003-2017

Addressing Family Conflicts in Estate Planning

0_0_0_0_495_327_library_55356 Although it is not always the case, many families experience disagreements or even outright conflict among the heirs when the eldest generation first plan their estates and then pass them on to their children and succeeding generations. Even in the most amicable family groups there may arise conflicts over particular assets, differing bequests, and, more often, control over the family assets or family members. Often, these conflicts do not manifest until after a parent’s death, and may come as a complete surprise to some family members. The outcomes of these conflicts generally are not satisfying to some or most of the family and can cost a great deal of time and money, in addition to the emotional damage of such conflicts.

In some cases, intra-family conflict may be addressed through arbitration, counseling and other tools and techniques which may allow the family to come to a positive resolution of their issues. This approach necessarily only occurs following the death of the parent or other family member whose estate plan is at issue and generally occurs where conflict was likely not anticipated or addressed in the planning, even if there was an awareness of some disagreement or conflict within the family group. A positive aspect of this approach to problem solving is its tendency to reduce the intensity of conflicts while avoiding the intervention of the courts and costly litigation.

Estate planning can allow a person to put into place a variety of tools and methods which may do much to reduce or eliminate potential conflicts among the heirs, at least insofar as the assets of the estate are handled. For example, a will can make it prohibitively expensive for a dissatisfied heir to contest the will by including a will contest provision, reducing or eliminating altogether a bequest to an heir who challenges the will. A will also may disinherit specific persons entirely, without reference to any contest, at the behest of the testator creating the will.[i] And not to be overlooked is a person’s use of their will to explain their intent and the reasons for the terms of the will and other parts of the estate plan. These types of provisions may go far to reduce conflict.

Quite apart from the will, trusts may be very useful in establishing an estate plan and by their terms may likewise reduce conflict within the family. A lifetime revocable trust allows one to make provision for how assets will be handled at the death of the person funding the trust while keeping open the ability of that person to change the terms of the trust as well as the assets during life. Similarly, a testamentary trust – one created by will – only takes effect at death and allows the estate plan to meet changing circumstances for the owner of the assets and the rest of the family. An irrevocable trust, however, cannot be changed once established and the terms of such trust must be thought through in advance.

How would these trusts reduce conflict? First, the trusts allow the owner of the property funding the trusts to specify when and how the beneficiaries of those trusts (generally family members) will be able to have access to the assets in the trust. Trust provisions may limit a beneficiary to receiving only income from the trust, preserving the underlying assets for future generations and protecting those assets from creditors of the beneficiaries. Other trust provisions may require a beneficiary to attain specified ages before receiving principal from a trust or to engage in favored behaviors (education, employment, marriage) while abstaining from disfavored behaviors (drug or alcohol abuse, gambling, unemployment). These requirements may not be appealing to some beneficiaries but when laid out in black and white make it more difficult to challenge or complain effectively.

Whether planning with a will or a trust or a combination of tools, the choice of the executor, trustee or other fiduciary is another powerful tool for one to use to prevent and address potential conflict among heirs. For example, an independent trustee who understands the goals and intentions of the person who is planning their estate will be (theoretically) able to act objectively and from outside the various family emotional entanglements. This can be contrasted with the selection of a family member who may not be accepted or trusted by other family members for whatever reason. Such a choice could easily lead to conflict with those not entrusted with handling the estate or trust who may feel their interests are not protected. What is important here is having in place a trusted person who is not going to be a lightning rod for any family conflict or unacceptable because of family history.

Finally, the value of a family meeting in which a person shares with the heirs and beneficiaries his or her intentions, goals and reasoning behind the estate plan cannot be underestimated. Setting expectations is huge for family members since the last thing any of them want is an unpleasant surprise or a feeling of being overlooked or ignored in the process. As we all know in today’s society, hurt feelings are right at the surface and can become an enormous problem for managing a person’s estate among other things. The family meeting also provides a means for educating the prospective heirs about what they will need to know and do to handle that inheritance wisely for themselves and their own heirs.

An important part of addressing potential conflict, once the possibility is understood, is consulting with the right professionals to help ensure that your estate plan is not derailed by conflict. Your estate planning attorney, financial adviser and other professionals may be helpful in planning for and avoiding such conflicts.


[i] As a general rule, a spouse will have statutory rights to their deceased spouse’s estate that may overcome a provision disinheriting a spouse. However, an agreement such as a pre-nuptial agreement may made sufficient provision separately from a will.


George Chamberlin & Mentor RIA Consulting © 2017

 

Working with Your Adviser: More than Just Investments

0_0_0_0_250_250_library_989Thinking about finances and reading what is current in the financial industry, most of us could be excused for thinking that advisers are pretty much all about recommending investments for you. Whether it is talking about the DOL fiduciary rule proposal, active versus passive investing, alternative investments, or even generating income with your portfolio, everything seems pretty much focused on what your money is going to be invested in pursuant to the advice you get.

Yes, there is some mention of holistic or goals based planning, usually on websites for wealth planners and the like, but that doesn’t appear to be what’s hot and definitely doesn’t have the attention of many investors and most advisers. In fact, many advisers say that their defining ability and characteristic is picking the right investments for their clients. Why, then, aren’t we all just rolling in it? And what is it that we should expect from our adviser and why?

There is no doubt about it, an investment which produces a good return is an important aspect of your finances. After all, most of us want to grow what we have so that we can do something with that money later. This brings us to our first point – what happens when you need or want to access some part of that wonderful investment? Some investments may produce terrific growth but may not make it easy to get at the money when you want it. Think of closely held company stock, which may be subject to restrictions on realizing the money. Or your qualified retirement plan with its ten percent early withdrawal penalty on top of the regular income taxes on distributions. Even that publicly traded stock you bought years ago and which has grown dramatically in value carries with it a heavy tax burden when you sell, due to your low cost basis.

What this tells you is that it is not just about a “good investment” but more than that – an investment that fits. Which is our second point, the benefit you can derive from your adviser helping you to understand what you own and how to make sure that the mix of assets allows you some flexibility to address needs that may arise at a bad time for some types of investments. As we have seen, investments made solely on the basis of how they might perform can leave you in a bind even when they are wildly successful. So a good investment recommendation should be based on knowledge of what assets you already have and what you might intend to do with them and when.

This approach requires your adviser to know much more than how to pick a successful investment. The adviser will need to know a great deal about you and your personal situation, including your goals, family, other assets and more. The adviser will need to understand the rules and laws that apply to you and to the investments you and your adviser may be considering, as well as social security, Medicare, tax impacts and more. Only an adviser with this comprehensive type of knowledge may provide you with the confidence that a recommended investment is likely to work for you.

 

George Chamberlin & Mentor RIA Consulting © 2017

 

 

Succession Planning Down on the Farm

0_0_0_0_496_327_library_57856Although the issues in connection with succession planning that face farmers and ranchers mirror for the most part those questions and problems encountered by other types of businesses, there are some specific concerns which resonate for farmers and ranchers. We will take a brief look at both so you will be better prepared to meet with your advisors and make the right decision for you and your family.

First, a short list of some of the questions you will need to ask yourself and which are addressed more fully below:

  • Who might be interested in acquiring or continuing the business?
  • What is the value of the business, how determined, and may it be fully realized?
  • When would the owner wish to transition out of the business (and to what extent)?
  • Where is the business located and how may that affect your options?
  • How important to you is the deferral, reduction or avoidance of taxes?

Looking first at the “who” question, family is normally the starting point, particularly where there is someone already involved and likely interested in continuing the business. The short answer here leads us to the next questions and makes the whole process simpler. However, when the farm or ranch owner is already aware that there is no next generation to pass the business to, it makes little sense to leave the disposition of the business to the owner’s heirs. Where the owner enters into planning for the transfer of the business, the owner retains control over the planning process and saves the heirs from the need to handle that transition themselves. This amounts to a win on both counts and may lead to a better result than a hurried sale of unwanted assets upon the owner’s death.

Outside the family, the “who” will likely involve another person in the farming or ranching business, whether a large or small business, a local or distant business or even a newcomer to the business who may either be an employee of another farm or ranch or simply someone starting a new career. There are several organizations to be found online that are focused on getting buyers and sellers of farms and ranches together as well as other industry groups and associations. However, it is important not to overlook the potential for a non-farm interest, such as a developer, to show interest in the farm or ranch real property. Your intent as to the property and business may keep you from choosing such a successor and should be a consideration. In this connection, you may consider imposing restrictions on transfer of the business entity[i], including realty, so as to limit use or development or the persons who may inherit the business.

The next issue – the “what” or valuation discussion – is perhaps the most important to the owner considering a sale of the farm or ranch business. Understanding the real value of the business is important to obtaining a quality sale as well as essential to funding the retirement and perhaps estate goals of the owner. The services of a professional appraiser are well worth the time and cost to an owner since the results will permit setting a reasonable and attainable price on the property as well as informing the owner’s expectations for their future finances based on the sale price.

The approach to financing the sale is an important aspect of how best to realize the valuation of the farm or ranch. A lump sum payment is a good way to terminate your interest in the property but may be more burdensome in terms of taxes on that sale while a series of installment payments may not only spread out the taxes but will provide a stream of retirement income which may include interest on those installments. Extending financing to a potential buyer keeps the seller involved – which may or may not be a good thing – and may also allow a broader selection of buyers.

Although important to a lesser extent, the “when” question often provides great flexibility to the owner, particularly when it is not easy to let go and the owner does not feel pressure to hurry. This is a point where the owner usually has the most control unless circumstances are such that the owner needs to exit quickly, as where there is a disability or other need for immediate liquidity. The more flexibility we have on timing, the easier it is to negotiate a favorable transition that fits our schedule and goals.

There may be a lot more to the “when” factor than you might think since you will want to consider not only retirement timing but also your health, your financial resources apart from the business, the nature or identity of the buyer and how that might mean potentially having some participation in the continuing business, and the goals of your immediate family such as your spouse and children, if any. All of these factors, and more, affect the decision as to when a transition will be appropriate for you.

The location – the “where” – of the farm or ranch business is also an important factor since not every such business is located near a number of similar businesses. This may reduce the opportunities for a sale of an ongoing business and increase the desirability of working with a non-farm purchaser. However, in most cases there will be other local farm and ranch businesses which will help facilitate the sale of the farm or ranch as an ongoing business. Furthermore, if a family member or other individual interested in the business is presently residing at some distance from the farm or ranch, that factor may affect their ability or interest in acquiring the business.

In planning for the succession of the business, we sure do not want to overlook the impact of taxes on the decisions we make. Of course, just “how” important those taxes are to us is a useful starting point in evaluating how we might want to proceed. The large lifetime exemptions for estate and gift taxes will mean that those taxes hold less importance for many of us, particularly where the total value of the farm or ranch business is less than $11 million or so, which is the amount a married couple can pass to future generations without federal estate or gift tax. Of course, the “where” question comes back in play at this point since state taxation of estates and gifts varies greatly and depending on where you live and operate your farm or ranch business may affect your approach.

Income taxes on the transfer of the farm or ranch are another burden entirely, also varying from state to state but consistent on the federal level. Installment sales permit spreading out that tax burden and may allow lower brackets and rates to save some money. Interestingly, gifts of business interests may also save on income tax relative to the interests gifted away. One development in the area of taxes and succession planning for farms and ranches involves the use of a charitable giving tool – the conservation easement. This approach can protect the land used for farming from future development or non-sustainable uses while at the same time providing the present owner with some control as well as tax breaks.

At this point in the discussion, you can see that whatever your goals for the farm or ranch you will want to involve not only your financial planner but also your accountant and estate planning attorney in this process to make sure you achieve your goals with the plan you put into place. The questions above should help start the conversation and may open up a variety of options for you to consider in making the most effective succession plan for your farm or ranch business.

[i] This would apply where the business was established as a limited liability company or corporation as opposed to a sole proprietorship and the entity was made subject to the desired restrictions.

 

George Chamberlin & Mentor RIA Consulting © 2017