Hratch J Karakachian, CPA, ESQ, is a senior adjunct faculty member at California Lutheran University School of Management.  He has been teaching in the MBA in Financial Planning Program since 2013.  He has taught Principles of Estate Planning, Income Tax and Strategy, Managerial Accounting, and Foundations of Accounting and Finance courses.

Hratch earned a Bachelor of Science in Accounting and Bachelor of Science in Business Administration with an emphasis in real property development management as well as a Master of Business Taxation degree all from the University of Southern California.  He subsequently earned a Juris Doctor from the University of West Los Angeles.  He is a licensed Certified Public Accountant and an Attorney at Law by the State of California.

Hratch began his accounting career in the tax division of Arthur Andersen in Los Angeles.  He quickly rose through to ranks to the level of Tax Manager.  He moved on to Deloitte Tax also in Los Angeles where we was promoted to Senior Manager.  Following a ten year career in the Big Four accounting firm environment, Hratch joined a large local firm.  Since 2008, he has been a private practitioner providing a broad range of tax planning, compliance, and advisory services to owner-operated enterprises and their owners as well as families.  Since 2012, he has been providing legal services with an emphasis on taxation, estate planning, real estate, and business advisory services.

 What is Section 1202?

The Qualified Small Business Stock (“QSBS”) gains exclusion is known as Internal Revenue Code Section 1202. Section 1202 allows a portion or 100% eligible capital gains from QSBS to be excluded from federal income tax. The exclusion applies only to QSBS held for more than five years, and the percentage of eligible gain excluded by Section 1202 depends on when the shareholder acquired the QSB stock. If a taxpayer acquired QSBS after September 27, 2010, he or she might exclude the 100% eligible gain on the sale of the QSBS.

What is a Qualified Small Business?

In 2018, the Tax Cuts and Jobs Act (TCJA) added section 199A of the Code for the benefit on the Qualified Business Income from a Qualified Trade or Business. For section 199A purposes, Qualified Businesses under section 1202 are also Qualified Trade or Businesses under Section 199A. According to the definition of Qualified Trade or Business, most businesses involving services performed in the fields of health, law, engineering, architecture, accounting, actuarial science, performing arts, consulting, athletics, financial services, or brokerage services are not Qualified Business for Section 1202. A business such as banking, insurance, investing, also does not qualify (Lee, 2019; IRS, 2020).

While the tax benefits for Section 1202 are very generous, a QSBS must meet all of the following tests:

• It must be original issuance stocks in a C corporation (that is, not S corporation stock).
• It must have been originally issued after August 10, 1993.
• As of the date the stock was issued, the corporation was a domestic C corporation with total gross assets of $50 million or less (a) at all times after August 9, 1993, and before the stock was issued, and (b) immediately after the stock was issued.
• You must have acquired the stock at its original issue (either directly or through an underwriter), either in exchange for money or other property (other than stock) or as pay for services (other than as an underwriter) to the corporation.
• During substantially all the time you held the stock: The corporation was a C corporation; At least 80% of the value of the corporation’s assets were used in the active conduct of one or more qualified businesses; and the corporation wasn’t a foreign corporation (IRS, 2020).

The Benefits of Section 1202

Although Section 1202 requires the QSBS to be C corporation’s stocks, companies currently operating other types such as partnerships might benefit from Section 1202 by converting under state law, being a C corporation, or transferring their assets to a newly organized corporation. The eligible gain is calculated on the date the assets contributed to the C corporation. Besides, Section 1202 permits taxpayers to hold QSBS through any partnership, S corporation, RIC, or common trust fund.

It is worth noting that the gross assets test is based on an adjusted basis rather than the fair market value of the assets. That cost-basis rule is more favorable to the business owners or investors who contribute high appreciated but low adjusted basis assets to a C corporation. However, if a taxpayer contributes property (other than money or stock) to a qualified small business corporation in exchange for stock in the corporation, the stock’s basis will be no less than the fair market value of the contributed property. As a result, taxpayers have the opportunity to increase tenfold the amount of gain subject to partial or complete exclusion by contributing appreciated property (Lee, 2019). 

Furthermore, Internal Revenue Code Section 1045 allows a taxpayer to roll over the gain on a QSBS disposition into another QSBS of a different issuer. The QSBS must be held for more than six months prior to disposition, and the rollover must occur within 60 days. That might provide a planning opportunity for those investors who wish to delay the capital gain from Section 1202.

To learn more about the Financial Planning Program at California Lutheran University contact Graduate Admission at clugrad@CalLutheran.edu or visit us at https://www.callutheran.edu/fp​.

About the Speaker:

Hratch J Karakachian, CPA, ESQ, is a senior adjunct faculty member in California Lutheran University School of Management.  He has been teaching in the MBA in Financial Planning Program since 2013.  He has taught Principles of Estate Planning, Income Tax and Strategy, Managerial Accounting and Foundations of Accounting and Finance courses.

About the Host:

Dr. Chia-Li Chien is a succession program director at Value Growth Institute, a succession consulting practice dedicated to helping business owners increase the equity value of their firms. Before her private consulting practice, she held several senior management positions in Fortune 500 companies. Dr. Chien is a director of the financial planning program in the School of Management at California Lutheran University. Dr. Chien is a frequent speaker about succession and retirement planning at national conferences and has published three books, including her most recent publication, “Enhancing Retirement Success Rates in the United States.” Dr. Chien serves on the boards of various national financial service associations. She holds a doctorate in financial planning and is a Certified Financial Planner (CFP®) as well as Project Management Professional (PMP®). 

About the Author:

Jade Zhang is a graduate student at California Lutheran University expecting to graduate in July 2020. She is studying for a Master of Science in Financial Planning. 

References:

IRS. (2020). 2019 Instructions for Schedule D (Rev. January 2020): Exclusion of Gain on Qualified Small Business (QSB) Stock. Retrieved from https://www.irs.gov/instructions/i1040sd.

Lee, Paul. (2019 ). QSBS: The Quest for Quantum Exclusions. 8th Annual Institute on Tax, Estate Planning and The world Economy. Retrieved from https://drive.google.com/file/d/1-EDhRK6w5RRUdSoLAq7qHQZFBZQfVdRc/view

A Domestic Assets Protection Trust (“DAPT”) is an irrevocable trust which is generally formed as a defective grantor trust to benefit the trustor. A properly-structured DAPT shields trust assets from the claims of creditors of the trustor, making it a particularly attractive estate planning tool for business owners or professionals in high-risk occupations, such as executives and medical professionals.

DAPT is a self-settled trust that the trustor is the beneficiary of the trust. In a DAPT, the trustor is responsible for paying taxes on the income the trust generates, and trust assets are excluded from the trustor’s estate. The trust doesn’t allow the beneficiary to assign their interest in the trust to someone else. In other words, it includes a “spendthrift” clause, which allows for asset protection. 

What is noteworthy is that the creditor of a DAPT should not be pre-existing and that DAPT needs to be set up at the right time, or it may not be able to provide assets protection. According to Fraudulent Conveyance Law, a transfer will be fraudulent if made with actual intent to hinder, delay, or defraud any creditor who was indebted (Cornell Law School, 2020). For example, an individual establishes a DAPT after he or she has gone into a car crash, to protect assets from potential lawsuits; The transfer may be subject to Fraudulent Conveyance Laws. Many types of assets can be transferred to a DAPT, including cash, securities, real estate, and business interests. However, attorneys generally suggest clients do not put their entire assets into a DAPT.   

At present, seventeen states allow for self-settled Domestic Asset Protection Trusts. Those states are Alaska, Delaware, Hawaii, Michigan, Mississippi, Missouri, Nevada, New Hampshire, Ohio, Oklahoma, Rhode Island, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming (Oshins, 2020). If you are not a resident of one of those seventeen States and you would like to set up a DAPT, a hybrid DAPT is an appropriate consideration. A hybrid DAPT is initially set up as a third-party trust, that is, the beneficiaries of a hybrid DAPT are the trustor’s spouse or children instead of the trustor. In a hybrid DAPT, the trustee or trust protector has the authority to add additional beneficiaries, including the trustor, as a beneficiary in extreme circumstances. Keep in mind that the statute does not require DAPT’s trustor to be a resident of these seventeen States, but the DAPT must have a resident trustee of that State.

To learn more about the Financial Planning Program at California Lutheran University contact Graduate Admission at clugrad@CalLutheran.edu or visit us at https://www.callutheran.edu/academics/graduate/financial-planning/​. 

About the Speaker:

Hratch J Karakachian, CPA, ESQ, is a senior adjunct faculty member in California Lutheran University School of Management.  He has been teaching in the MBA in Financial Planning Program since 2013.  He has taught Principles of Estate Planning, Income Tax and Strategy, Managerial Accounting and Foundations of Accounting and Finance courses.

About the Host:

Dr. Chia-Li Chien is a succession program director at Value Growth Institute, a succession consulting practice dedicated to helping business owners increase the equity value of their firms. Before her private consulting practice, she held several senior management positions in Fortune 500 companies. Dr. Chien is a director of the financial planning program in the School of Management at California Lutheran University. Dr. Chien is a frequent speaker about succession and retirement planning at national conferences and has published three books, including her most recent publication, “Enhancing Retirement Success Rates in the United States.” Dr. Chien serves on the boards of various national financial service associations. She holds a doctorate in financial planning and is a Certified Financial Planner (CFP®) as well as Project Management Professional (PMP®). 

About the Author:

Jade Zhang is a graduate student at California Lutheran University expecting to graduate in July 2020. She is studying for a Master of Science in Financial Planning. 

References:

Cornell Law School. (2020). 11 U.S. Code § 548.Fraudulent transfers and obligations. Legal Information Institute. Received from:  https://www.law.cornell.edu/uscode/text/11/548.

Oshins.com. (2020). States Rankings Charts. Retrieved from: https://www.oshins.com/state-rankings-charts.

The generation-skipping transfer could be subject to two potential taxes, the gift tax and the generation-skipping transfer tax (“GST tax”). And therefore, a generation-skipping transfer is very expensive. In many cases, the total cost of making a generation-skipping transfer can equal or exceed the value of the gift. In 2020, each person has an estate and gift tax exemption of $11.58 million, and a GST tax exemption of $11.58 million (IRS, 2020). Assume a grandfather gives $2 million except the annual gift exclusion to his grandson, and that the gift tax and the GST tax are triggered immediately. Assume he has used both of his gift tax and GST tax exemption. The GST tax is $800,000 ($2million times 40%); the taxable gift is $2.8 million ($2million plus $800,000 GST tax) because of the GST tax that the grandfather pays is treated as a gift. Therefore, the total tax is around $1.87 million, which almost equals the value of the gift.

Given the severity of the GST tax, how to allocate the GST exemption to avoid GST tax is very important. Setting up a generation-skipping trust (“GST” trust) is an efficient strategy in GST planning. Generally, the GST trust receives the transferor’s property for the benefit of the transferor’s child and grandchild. The child of the transferer will receive the income of the trust, and the grandchild will receive the remainder interest of the trust. The GST tax is not paid until the child’s interest ends, and the property is transferred to the grandchild. When a grantor allocates a GST exemption that matches the amount initially transferred into the trust, then no GST tax is due when the property is transferred to the grandchild. Keep in mind that the GST tax exemption will be automatically allocated when a property is transferred to a GST trust unless the donor elects otherwise. 

For those who have used their GST tax exemptions, paying compensations to the generations through a private foundation rather than gifting the property to them would be an alternative strategy to avoid triggering both gift and GST tax. 

To learn more about the Financial Planning Program at California Lutheran University contact Graduate Admission at clugrad@CalLutheran.edu or visit us at https://www.callutheran.edu/academics/graduate/financial-planning/​. 

About the Speaker:

Hratch J Karakachian, CPA, ESQ, is a senior adjunct faculty member in California Lutheran University School of Management.  He has been teaching in the MBA in Financial Planning Program since 2013.  He has taught Principles of Estate Planning, Income Tax and Strategy, Managerial Accounting and Foundations of Accounting and Finance courses.

About the Host:

Dr. Chia-Li Chien is a succession program director at Value Growth Institute, a succession consulting practice dedicated to helping business owners increase the equity value of their firms. Before her private consulting practice, she held several senior management positions in Fortune 500 companies. Dr. Chien is a director of the financial planning program in the School of Management at California Lutheran University. Dr. Chien is a frequent speaker about succession and retirement planning at national conferences and has published three books, including her most recent publication, “Enhancing Retirement Success Rates in the United States.” Dr. Chien serves on the boards of various national financial service associations. She holds a doctorate in financial planning and is a Certified Financial Planner (CFP®) as well as Project Management Professional (PMP®). 

About the Author:

Jade Zhang is a graduate student at California Lutheran University expecting to graduate in July 2020. She is studying for a Master of Science in Financial Planning. 

References:

IRS. (2019). Instructions for Form 709 (2019); United States Gift (and Generation-Skipping Transfer) Tax Return. Received from: https://www.irs.gov/instructions/i709

IRS. (2019). Instructions for Form 706-GS(T) (11/2019); Generation-Skipping Transfer Tax Return for Terminations. Received from:https://www.irs.gov/instructions/i706gst

IRS. (2020). Estate tax. Received from: https://www.irs.gov/businesses/small-businesses-self-employed/estate-tax.

Tomin, C., & Carcone, C. (2018). Principles of Estate Planning (3rd,ed.).  P335. Erlanger, KY: The National Underwriter Company.

Designating Trusts as Beneficiaries of IRAs

Financial planning practitioners can help clients plan for intended IRA’s transfer in the events of the IRA owner’s death. The IRAs are transferred by contract, which avoids probate that are payable to the named beneficiary(ies). Reviewing a client’s beneficiary designations of their IRAs could help a client meet estate planning objectives.

On December 20, 2019, the Setting Every Community Up for Retirement Enhancement (SECURE) Act was signed into law as part of the Further Consolidated Appropriations Act, 2020. One of the SECURE Act’s is eliminating the so-called stretch IRA by requiring non-spouse beneficiaries of inherited IRAs to distribute the entire balance from inherited accounts within ten years. The new rule applies to the owners of retirement accounts who die after December 31, 2019 (IRS, 2020). Before the SECURE Act, non-spouse individuals who inherited an IRA could defer the distribution of the inherited accounts over their life expectancy. The SECURE Act stipulates that non-spouse beneficiaries of an inherited IRA must receive the full balance of the retirement funds at the end of the ten years after the owner’s death.

However, there are several exceptions to this 10-year distribution rule for non-spouse beneficiaries of the inherited IRAs. Exemptions include the following:

• a surviving spouse
• a child who has not reached the age of majority
• a disabled or chronically ill person or a person not more than ten years younger than the employee or IRA account owner (IRS, 2020).

Therefore, in certain circumstances, the clients may benefit from designating a trust as a beneficiary of the IRA, even if the assets in the account have to be distributed to the trust within ten years. For example, the beneficiary is spendthrift or addicted to drugs or alcohol, or the beneficiary is a qualified beneficiary of disability or chronic illness; If the trust is properly drafted, these beneficiaries will be able to take the distribution over their life expectancy.

Holding Community Property Assets in a Trust

Community property laws generally provide that all property acquired by a married person during a marriage is communal in nature. Currently, there are ten states that recognize community property laws in the United States, including Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin (Tomin & Carcone, 2018). By holding appreciated community property assets in a trust that may, in some cases,  provide tax advantages to meet a client’s objectives than titling the community property by Joint Tenancy of the Right of Survivorship (JTWROS).

When a husband or wife inherits a community property which is titled by JTWROS from a deceased spouse, he or she could only get a step-up basis of the fair market value (FMV) on his or her half share of the property. If a community property asset is held in trust, the inherited basis would be the entire FMV of the property, which would provide more step-up basis advantages than the JTWROS, especially for the highly appreciated community property assets.

To learn more about the Financial Planning Program at California Lutheran University, please contact Graduate Admission at clugrad@CalLutheran.edu or visit us at https://www.callutheran.edu/academics/graduate/financial-planning/

About the Speaker:

Hratch J Karakachian, CPA, ESQ, is a senior adjunct faculty member in California Lutheran University School of Management.  He has been teaching in the MBA in Financial Planning Program since 2013. He has taught Principles of Estate Planning, Income Tax and Strategy, Managerial Accounting and Foundations of Accounting and Finance courses.

About the Host:

Dr. Chia-Li Chien is a succession program director at Value Growth Institute, a succession consulting practice dedicated to helping business owners increase the equity value of their firms. Before her private consulting practice, she held several senior management positions in Fortune 500 companies. Dr. Chien is a director of the financial planning program in the School of Management at California Lutheran University. Dr. Chien is a frequent speaker about succession and retirement planning at national conferences and has published three books, including her most recent publication, “Enhancing Retirement Success Rates in the United States.” Dr. Chien serves on the boards of various national financial service associations. She holds a doctorate in financial planning and is a Certified Financial Planner (CFP®) as well as Project Management Professional (PMP®).

About the Author:

Jade Zhang is a graduate student at California Lutheran University expecting to graduate in July 2020. She is studying for a Master of Science in Financial Planning.

References:

IRS. (2020). Estate tax. Received from: https://www.irs.gov/businesses/small-businesses-self-employed/estate-tax.

IRS. (2020). Retirement Plan and IRA Required Minimum Distributions FAQs. Received from: https://www.irs.gov/retirement-plans/retirement-plans-faqs-regarding-required-minimum-distributions.

Tomin, C., & Carcone, C. (2018). Community Property Overview. Principles of Estate Planning (3rd,ed.).  P41. Erlanger, KY: The National Underwriter Company.