Wealth Management Update - August 2019

Proskauer Rose LLP

August 2019 Interest Rates for GRATs, Sales to Defective Grantor Trusts, Intra-Family Loans and Split Interest Charitable Trusts AFRs

Important federal interest rates continued to drop for August 2019. The August applicable federal rate ("AFR") for use with a sale to a defective grantor trust, self-canceling installment note ("SCIN") or intra-family loan with a note having a duration of 3-9 years (the mid-term rate, compounded annually) is 1.87%, down from 2.08% in July.

The August Section 7520 rate for use with estate planning techniques such as CRTs, CLTs, QPRTs and GRATs is 2.2%, down from 2.6% in July.

The AFRs (based on annual compounding) used in connection with intra-family loans are 1.91% for loans with a term of 3 years or less, 1.87% for loans with a term between 3 and 9 years, and 2.33% for loans with a term of longer than 9 years. With the mid-term rate now less than the short-term rate, clients will likely prefer the mid-term rate in their estate planning transactions.

Thus, for example, if a 9-year loan is made to a child, and the child can invest the funds and obtain a return in excess of 1.87%, the child will be able to keep any returns over 1.87%. These same rates are used in connection with sales to defective grantor trusts.

Estate of Kollsman v. Commissioner of Internal Revenue, No. 18-70565 (June 21, 2019)

The U.S. Circuit Court of Appeals, Ninth Circuit has affirmed an estate tax deficiency with respect to the undervaluation of art by a qualified appraiser.

Eva Franzen Kollsman, a resident of New York, died testate and named Jeffrey Hyland, a family member, as Executor. In addition to acting as Executor, Mr. Hyland was also the beneficiary under Ms. Kollman's Will of two 17th century Old Master oil paintings. Mr. Hyland did not wish to retain the paintings, so he hired Sotheby's to sell them at auction.

An employee of Sotheby's had seen the paintings prior to Ms. Kollsman's death, and, based thereon, provided a written estimate of the predicted sales price: $600K-$800K for one painting ("Painting One") and $100K-$150K for the other painting ("Painting Two"). Thereafter, the same Sotheby's employee then inspected the paintings and provided a second letter that was to supersede the first letter (the "Second Letter"). The new sales predictions were $500K for Painting One and $100K for Painting Two. The second letter was eventually attached to Ms. Kollsman's estate tax return as evidence of the value of the paintings.

Mr. Hyland wanted frames for the paintings, so he hired a restoration company that frequently worked with Sotheby's. A representative of the restoration company said that the paintings were dirty with nicotine and heavy surface dirt but could safely and easily be cleaned. In fact, one of the paintings looked like it had already been cleaned.

Painting One eventually sold at auction for $2.4M, which triggered the IRS deficiency.

The Estate defended the Second Letter and the disparity between the appraised value and the purchase price by making several arguments against the imposition of the deficiency. First, the Estate emphasized the dirty quality of Painting One at the time that it was appraised. The Court responded that a hypothetical buyer of the level of sophistication that would buy a piece of art like Painting One would know that Painting One could be cleaned, which would result in a significant increase in value.

Second, the Estate argued that, after Ms. Wollman's date of death, there was an increase in demand for Old Master paintings. The Court pointed out that there was, in general, no increase in the sales prices of Old Master paintings at Sotheby's between Ms. Wollman's date of death and the sale of Painting One, which suggested that demand was not, in fact, greater. Also, Sotheby's documents filed with the SEC actually contradicted the Estate's contention.

The Court took issue with (i) the absence of comparables presented by the Estate's experts and (ii) the opinion of the Estate's experts that comparables were not important in valuing art.

Famiglio v. Famiglio, [TBD] So.3d [TBD] (May 10, 2019)

The Florida Court of Appeals held that a provision in a prenuptial agreement providing for a lump sum payment based on the date of the filing of a Petition for Dissolution of Marriage (a "Petition") could refer to a previously filed Petition that did not culminate in a divorce, provided that a Petition were eventually filed that did result in a divorce.

An engaged couple signed a prenuptial agreement before their 2006 wedding (the "Agreement"), which provided for a lump sum alimony payment depending on number of years of marriage. Specifically, Section 5.3 of the Agreement stated, "Mark shall pay to Jennie, within 90 days of the date either party files a Petition for Dissolution of Marriage the amount listed below next to the number of full years they have been married at the time a Petition for Dissolution of Marriage is filed." If Mark and Jennie were married for seven full years but less than ten full years, the amount was $2.7 million, and if they were married for ten full years, Jennie would receive $4.2 million.

In 2013, Jennie filed a Petition but never served it on Mark and eventually dismissed the Petition. However, in 2016, Jennie filed another Petition, at which point the parties had been married for ten full years. She did not dismiss the second Petition.

Mark filed a construction proceeding, claiming that the first Petition in 2013 was the operative year with respect to the measurement for the alimony payment. Jennie argued that the 2016 Petition controlled the provision because that was the Petition that resulted in the dissolution of the marriage.

The trial court held for Jennie, saying that there was no ambiguity in the Agreement and that it was clear that Mark's obligations thereunder would only arise after an actual dissolution of marriage. The trial court further opined that no rights arose from the mere filing of a Petition and that the use of "a" vs. "the" in modifying the word "petition" was unpersuasive. According to the trial court, the word "a" is obviously different from the word "the"; however, the Agreement must be looked at as a whole, and, when read as a whole, must be interpreted to only take effect if the marriage is actually dissolved because anything else would lead to absurd results. For example, Mark could have just filed and immediately withdrawn a Petition right after the parties got married, just to reserve the smallest alimony payment possible in the event the parties ever divorced. Conversely, Jennie could file and withdraw a Petition every year and receive a separate lump sum payment after each Petition.

Mark appealed, and the trial court's decision was reviewed de novo. The District Court of Appeals of Florida emphasized that the choice of the word "a" was of paramount importance because "a" is an indefinite article and is intended to indicate that the noun it modifies (here, "Petition") is unidentified or unspecified. The Court recognized that the provision was drafted to refer to just one Petition and that the alimony would only be payable if the parties were to eventually divorce, but said that the language used in the Agreement did not identify which Petition should be used to determine the length of the marriage, which would subsequently determine the lump sum payment.

The Court opined that the use of the word "a" may have been intentional on Mark's part. Furthermore, the Court criticized the trial court's use of the concept of absurdity and the use of examples because it is always possible to devise absurd interpretations of plain language while using hypotheticals. The Court used a golf metaphor in its analysis, stating that predicating an event on an occurrence is normally understood to mean the first time that that thing occurs. Golf courses usually have a rule that when a thunderstorm approaches, you must end your golf game, and that rule is universally understood to refer to the first clap of thunder and not any clap of thunder of the golfer's choosing.

In Re Rensin, 600 B.R. 870 (May 3, 2019)

The Bankruptcy Court of the Southern District of Florida held that Florida law applied to and that creditors could reach all assets of a foreign, self-settled trust, and that a bankruptcy estate would include exempt assets that were purchased with non-exempt assets with the intent to hinder creditors.

Joseph Rensin formed the Joren Trust, an irrevocable, self-settled, spendthrift trust that was governed by the laws of the Cook Islands (the "Trust").

Rensin founded a company many years after the Trust was created. The Federal Trade Commission filed suit against the company for defrauding retail customers.

While the suit was pending, Rensin purchased and sold several residences in Maryland, his home state, in quick succession. Eventually, he used the proceeds from the sale of one of the Maryland homes to purchase a residence in Florida.

A judgment was eventually entered into against Rensin for almost $14 million. A few months later, Rensin, individually, filed for bankruptcy under Chapter 7 of the Code. His only listed asset in the bankruptcy schedules was a bank account holding the proceeds from a fixed annuity owned by the Trust. He did, however, disclose his beneficial interest in the Trust. At the time, the Trust's only assets were two annuities payable to Rensin, but one of the annuities had not yet started, which meant that the Trustee could cancel the annuity.

Rensin also wanted to exempt from the bankruptcy estate his home in Florida as his homestead. Rensin claimed that he used assets from other exempt assets (residences) to purchase the home, but the bankruptcy trustee successfully argued that the pattern of buying and selling homes constituted the use of non-exempt assets to purchase the home with intent to hinder creditors. Therefore, the Florida home formed part of the bankruptcy estate.

Under Florida law, choice of law in a contract (or trust) is upheld unless it offends Florida public policy. Florida public policy strongly disfavors asset protection trusts, and Florida law will not enforce a spendthrift trust designed to permit a person to place his assets beyond the reach of creditors. Therefore, Florida law applied to all provisions of trust, and, under Florida law, notwithstanding spendthrift a provision in a trust, creditors can reach maximum amount of trust assets that could be distributed to or for the Settlor's benefit. If distributions to the Settlor are fully discretionary, creditors have the same rights as if the trust were never created. Because this was a fully discretionary trust, the Trust formed part of the bankruptcy estate.

Nonetheless, only the remainder interest of the annuity, the start date of which had commenced, was includible in the bankruptcy estate because (i) annuity proceeds are exempt assets and (ii) the annuity that had not yet started could be cancelled by the Trustee of the Trust at any point prior to the start date. The bankruptcy trustee's claim that the annuities were purchased to hinder creditors was rejected because the Trustee of the Trust, and not Rensin, purchased the annuities.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Proskauer Rose LLP | Attorney Advertising

Written by:

Proskauer Rose LLP

Proskauer Rose LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.