Family Matters: Actions Families and Closely-Held Businesses Can Take During COVID-19
April 20, 2020
We are all looking for ways to act and react as we address COVID-19 and its effect on our economy. In this webcast, EisnerAmper discussed the unique set of challenges families and closely-held businesses face.
Today we wanted to offer some things to think about that might provide a foundation for future stability. So we're going to be talking about three different things: We'll start off by discussing some important conversations that you might consider having with your family and perhaps even with your employees. Then we're going to talk about options for living your values through philanthropy. And finally, we'll talk about the aspects of estate planning that can support your long term plans.
So first of all, what are some of these important conversations that you should be having? So in aspects of the conversations and what's key, many people are trying to figure out what kind of planning they should be doing and who they should be talking to. We believe that one of the most important things about getting through these tough times is to feel as if you are grounded, that you've got some sort of a framework, some sort of a foundation. It helps you to have these conversations with your family, with people in your community, and with your employees, the people who are important to you.
So as you're thinking about this, some of you may have gone through an exercise where you have identified your family values. If you've worked with us, I'm sure that many of you know this. I was talking to a client just the other day, and he said the fact that he and his family had taken the time to write down what was key for them helped them to rethink about the things that they want to be doing today so that as they come through this, they feel as if they've been able to do things that are in alignment with all that they said was important.
One of the things that they did was hold a family meeting. Some people were there in person, some people were there virtually. And they remember that they had always discussed; that family and acting in a way that included people in their family philosophy had always been a foundation for them. So they decided to not only reach out to their immediate family members, but also to begin a process of reaching out to their extended family, finding out how people were, if they needed help, just checking in. And then they also talked about their employees. They had many employees that were furloughed, they had employees that had been laid off and they had a small skeleton team. So they decided to divide and conquer and to reach out to those people through text messages, emails and phone calls and let them know that no matter where they were or what they were doing, they were still important, they still really mattered. The clients said that taking the time to do that helped to remind them that they had values, they had a mission and those things were not going away, even though times were really tough and really confusing.
Another thing to think about is risk. For many of us what is happening today is a great riddle. It makes us think a little bit about our own mortality. It makes us think about things that are important to us and the people who are important to us. So if you haven't already, this might be a time to look at your own estate. Do you have things in place? Are you up to date with your insurances? Is your estate planning up to date? Do you have a will or a trust in order to protect you and your family? Also, if something should happen, if you became incapacitated and were not able to do the things that you would normally do on a day to day basis, is there a way that other people can step in? Do people know what your expectations are?
We have a practice in the Center for Family Business Excellence called Desk Planning. These are documents that we help our clients to put together that make sure that if anything should happen to them, somebody knows how to get into their computer, so they know what their passwords are. They know what the key financial information is that needs to be known. They know who to contact, they also know who you would want to have step in and take over, say, on a short term basis, the day to day operations of your family, or perhaps your family office, the enterprises that you have. Have you made those wishes known? Do you have those things written down and are they documented? And could other people find them? Desk plans are a really important tool to use to make sure that if anything should ever happen to you or a key employee, that we know how to keep the business or the enterprise running.
Finally, many of us are leaders in our roles. We have people who look up to us, people who are listening to what we have to say. So thinking about what we want those messages to be can be an important way to work through this crisis. For myself, I've been watching a lot of different leaders. I've been watching local business leaders, I've been watching governors and mayors, other political leaders, including those around the world. I have to say, I've been particularly interested in New Zealand's Prime Minister Jacinda Ardern. For those of you who don't know, I spent 20 years living in New Zealand. I've been fascinated by how she's been leading her country through this crisis. As I was watching her I took some time to write down, for myself, how do I, as a leader, want to come across? What are some of the things that I need my family to know? What are some of the things that I need my team members to know? My community to know? What are the messages that I want to share? And how do I want to be able to do that?
So for myself, I want to make sure that my messages demonstrate empathy and compassion. That the information that I share is clear, it's consistent, it's reliable and it's based on research. I want to be fair, I want to be honest, and I want to be calm and not dramatic. I also want to be thoughtful and not reactive, I want to be proactive. And with that, I want to be patient and I want to be prepared to learn. I want to think about how my messages are going to impact those around me. Do I instill confidence? Do I help people to work through their own issues, their own concerns and fears? Am I stable? Am I thoughtful?
So my question to you is, in the role that you have, how do you want to come across? What are the key messages that you want to convey? When you look back on this, did we bring out the best in each other? Did we bring out the best in ourselves? Or the worst? And again, this is a good time to sit, to settle, and to think about those things that keep us grounded and keep us working and living in alignment with the values that we have said that we hold dear. And in that vein, when it comes to living our values, one of the most powerful ways that we can do that is through charitable giving. And I would like to invite my colleague and the woman who is an expert in all things charitable, Marie Arrigo to share with us some of her ideas. So Marie-
Thank you, Lise. Good afternoon everyone. So suffice it to say COVID-19 has impacted every aspect of life. Many families have unfortunately been directly impacted by COVID-19, the economy has gone into a decline. Hopefully only temporarily. Many individuals who live paycheck to paycheck are finding themselves unemployed and numbers of employed are staggering. There's a need for food, for shelter, for protection, forced extended periods of isolation can be daunting to some. But as Mr. Rogers says that during times of need, we always look for the helpers. And we certainly have a long list of helpers to get us through this difficult time. The healthcare professionals, the law enforcement, transit workers, the grocers, the pharmacists, the truckers who get the groceries and the pharmaceuticals to the stores. And our many not for profits have risen to the challenge and have provided relief to the public, yet many of them are becoming too financially strapped to continue to give.
When you consider the time of year, the spring usually brings a whole host of fundraising events and galas. You probably have gone to many of those in your day and many of them are postponed or are canceled. Golf outings start during this period, that doesn't look too promising at the moment. Individual donors who would normally give may hold back a little bit because of the concerns of uncertainty as to where this situation will lead us. And if you also consider programming by many of these charities has been directly impacted. Many involved one on one meetings or group meetings, you look at the schools, for instance, everything's going on online teaching and that is what you see as a trend. Volunteers who actually run many of the programs for not for profits, many of them are older. They may, in fact, not come back. And the sad reality for all this is not all of the not for profits will survive.
But we have to look at this as we are all in this together. And to Lisë's point, what is the family's role in all of this? What can the family do to help the overall situation? And the questions that one should raise is really what is the family's philanthropic mission? Their objectives? Is there a passion for a particular cause that resonates with the family? What is the family's legacy? Does the family have charitable vehicles such as a private foundation or a donor advice fund? The reality is that it also feels good to give back. At times when we are all experiencing extraordinary stress, scientific research suggests that a simple, effective way to feel better is to help others, to have a purpose and to give support to others.
And so families can make a difference but you may be asking how do you help in the middle of a pandemic? And well, you know, you could give money. You could give time to a cause, simple phone call, a listening ear. Perhaps you have specific skills that could help, if you're an attorney, you're an accountant or a financial advisor, perhaps that's something you can offer. And also American Red Cross is actually looking for blood donors because those blood drives that were supposed to happen during this time period have not.
So certainly you can support the helpers, the first responders, following public policy, stay at home, social distancing, wearing of masks. You can simply say thank you to these folks, the 7:00PM clapping that's happening is really phenomenal. And of course, volunteerism. And again, your efforts and your support can be for very specific causes.
So I have here a little list of some of the splattering of different not for profits you could consider in terms of making contributions. This is not the only list here. There's so many worthy organizations out there and so if you wanted to focus on, for instance, helping the first responders, the UN and Swiss Philanthropy Foundation created the COVID-19 Solidarity Response Fund to support the World Health Organization. The CDC has a similar organization. Several New Jersey foundations have set up COVID-19 relief funds. New York Community Trust has created its own NYC COVID-19 response and impact fund to help nonprofit organizations and New Yorkers deal with COVID-19. If you wanted to support local food banks, there's the Food Bank of New York City but every community has a food bank. Just do a little research, it's easy to find them.
Social Services, they're really very important. If you looked at the Center for Urban Community Services, for instance, they provide integrated programs that link housing, health and social services for New York City's most vulnerable people. There are many organizations like that out there. With schools closing, children need mentorship more than ever. You could consider the local chapter of the Big Brothers Big Sisters or Asphalt Green, which provides athletic after school programming. Those are organizations that are hurting at the moment. And keep in mind, if your interest is really in the arts and cultural institutions, they also need help. Many of these organizations are closed. The museums may not get funding from some of the state and local governments. So for example, Storm King Art Center which is up in Hudson Valley and Open Door Museum, New York City Ballet, Broadway Cares, Equity Fights AIDS, all examples.
No way is this an advertisement for any of these specifically but just to give you some ideas of the various organizations that you can consider and there are so many out there that would need your assistance.
So the Coronavirus Aid, Relief and Economic Securities Act, otherwise known as the CARES Act, actually provides a couple of incentives for non-itemizers and for itemizers. Basically it's for individuals to donate. So I'd like to spend a few minutes now just describing these various incentives. So the first is for non-itemizers. So by way of background, normally when you file your tax return, you get to take the standard deduction. And for 2020 the standard deduction is $12,400 for individuals and $24,800 for those who file married filing jointly. And if you have other deductions that you can itemize, you can elect to itemize.
So the tax cuts and jobs act had increased the standard deductions significantly. So in general, few individuals are now electing to itemize deductions. They're just doing a standard deduction. So for 2020, individuals who elect not to itemize deductions on their personal income tax returns can take an above the line deduction for qualified contributions, not to exceed $300. So this $300 would serve to reduce adjusted gross income. So what is qualified contributions? That is a defined term in the new law and that is cash donations made to public charities and certain private foundations such as a private operating foundation, that's a foundation that conducts much of its activities providing direct charitable activities, doing programming themselves, or a conduit foundation which provides that by the 15th day of the third month after the year end, they basically distribute out of corpus, all of the contributions that they receive in the year.
It does not include gifts made to donor advised funds, supporting organizations or grant making private foundations. So it's important to understand what a qualified contribution versus everything else is. So the CARES Act also provides an incentive for individuals who itemize their deductions. And just to give a little history lesson before I discuss the new law, individuals who itemize their deductions can deduct charitable contributions to the extent of a certain percentage of adjusted gross income. The applicable percentage depends upon the type of property donated and the exempt status of the charity. Prior to TCJA, the percentage limitation for cash donations to public charities was 50% of AGI and then for tax years beginning after December 31, 2017, TCJA increased the percentage limitation for cash, gifts to public charities to 60%. It also included private operating foundations, donor advised funds and supporting organizations.
Donations of appreciated long term capital gain property, such as appreciated securities to public charities is limited to 30% of the adjusted gross income. The percentage limitation for cash contributions to grant making foundations is 30% of adjusted gross income and the percentage drops to 20% for gifts of appreciated long term capital gain property. And in all of this, contributions in excess of these limitations are carried forward for five years, you can deduct contributions to the extent of the situation on that year's returns as well as limitation percentages.
So the CARES Act provides an incentive for individuals who itemize deductions. The CARES Act limits qualified contributions to 100% of the individual's adjusted gross income, effectively suspending any limitation. This rule is in place for 2020 only. The ordering rules that normally are followed, there's a tiering system as to which deductions are computed first, have been suspended. Instead, the individual make take a charitable deduction for amounts that are not a qualified contribution, subject to its applicable limitations first and then take a corresponding reduction to the allowable deduction for the qualified contribution would be allowed. So you first compute the non-qualified contribution amounts under the current law and then you reduce what would normally be allowed for the qualified contributions by those deductions you're taking and that's what you can take as a deduction in that year. We'll have an example in a moment.
Any excess contribution over this threshold is carried forward for five years, again, subject to the general applicable charitable contribution carry forward limitations. And the tax payer must elect to have the percentage limitation suspension applied to her qualified contributions and if it's a partnership or S-Corporations that this contribution is flowing through, it is actually the individual partner or shareholder that makes the selection.
So I know that sometimes it's best to go through an example in order to see how the law is working. And so in this case we have an example. For 2020, Deidre expects her AGI to be $1 million. Now, she's already made a donation of appreciated long term securities to her family private foundation in the amount of $300,000. So the question is what is the maximum amount of cash contributions that she can make to public charities in order to get the maximum deduction. In order to arrive at the answer, you first have to look at the donation of $300,000 securities to a private grant making foundation because that donation is not a qualified contribution.
So under the normal limitation rules, this type of deduction or contribution is limited to 20% of adjusted gross income. So 20% of $1 million is $200,000. And so that is a deduction she can take on the private grant making foundation for 2020. The remaining $100,000 is going to get carried forward to 2021. Deidre can then make a qualified contribution of up to $800,000 in 2020. So you would take her AGI, 100% of AGI is $1 million, subtract out the $200,000, which is the contribution of the prior foundation, which is not a qualified contribution. And she can donate up to $800,000 in order to get a deduction in 2020. She could donate more but then she would get a carry forward. So under this situation, her total 2020 charitable donation is $1 million.
Other incentives to consider for a C-corporation, again for qualified contributions, that's cash to public charities and some private foundations, made in 2020, the current percentage limitation of 10% of the corporation's taxable income is increased to 25%. For contributions of food inventory, again for 2020 only, the percentage limitation is increased from 15% to 25% of taxable income for C-corporations. And for other tax payers, the aggregate net income from all trades or businesses from which such contributions were made. So in conclusion, the family can make a difference during this difficult time and help those in need. And with that I'd like to turn the program over to my colleague, Karen Goldberg, who will be speaking on estate planning.
Thank you, Marie. So this afternoon I'm going to take a few minutes and talk about estate planning. While we're all home with our families during these uncertain times, we're likely anticipating our own mortality. And what comes to the forefront of our mind, is do we have an up-to- date will? And if we don't have one, maybe it takes on a new urgency. You may think, well there's nothing I can do about a will now. We are in the middle of this crisis. I'll have to wait until it's over. But that may not necessarily be the case. For those in New York, Governor Cuomo has issued an Executive Order authorizing the virtual execution of wills and other estate planning documents. The governors in other states may have issued similar orders.
In addition, because property values and interest rates have dropped, it's an ideal time to implement estate planning strategies. And again, you can still execute trusts and other documents that you may need to implement these estate planning strategies, at least in New York, because you can execute them virtually.
So let's start off with a simple estate planning idea, simply having an individual use their $15,000 annual gift tax exclusion and $11.58 million estate, gift tax exclusion to make tax-free gifts of depressed property that's anticipated to appreciate in value. Maybe when I say appreciate in value I'm just talking about returning to pre-COVID-19 values. In addition, another simple planning idea is for a parent to make a loan to their child. Interest rates are really low. The federal mid-term rate right now in April of 2020 is a little bit less than 1%. In May, it drops to a little bit more than half of 1%. Parent could make a loan to his child at these low rates. Child could go out and invest those funds and if they get a rate of return greater than the note interest rate, that upside is essentially a tax free gift from the parent because all they have to return to the parent is the principal and this very low interest rate.
Now, there are some other estate planning ideas that are more sophisticated and become more attractive now that interest rates are low. They are the grantor retained annuity trust and the sale to a defective grantor trust. So let's start off by talking about the grantor retained annuity trust or the GRAT. What is this? Well, a parent transfers property to a trust and in exchange receives an annuity for term of years, the present value of which is equal to the value of the property transferred to the trust. After the term of years, what's ever left in the trust goes to children. Because the present value of the annuity retained by parent is essentially equal to the value of the property what they transferred to the trust, the gift is zero. So whatever is left in the trust after the GRAT reaches children at no gift tax cost and without using any of the parent's gift tax exclusion. This strategy is ideal for assets that are expected to “pop”, or in other words, substantially appreciate.
And so, let's see how this works in the next slide. Let’s say parent has stock currently valued at $5 million; that's the depressed value because the market's gone down. It could be a bucket of securities that was worth maybe $10 million before the market went down, now it's only worth $5 million. Parent transfers this stock to a GRAT for two years and takes back an annuity, which has to be $2,545,000, for the gift to be zero. The parent would take that back over two years. Any increase in value over $5 million would stay in the trust for children. It's a tax free gift. The value of the gift in my example is one because the value of that annuity payment over two years is $5 million short of one. So it's $4,999,999 whereby the gift is essentially zero.
How do you value the annuity? Well the annuity is valued using a very low rate. Right now it's the 75/20 rate for April, which is 1.2%. In May of 2020 it drops to an historical low of eight tenth of 1%. So what this means is that to the extent the property in the trust grows at a rate of greater than 1.2% in April or if you set a GRAT up in May, the property grows at a rate greater than eight tenth of 1%, that appreciation goes to children at no gift tax cost. In my example, I said with a 10% annual rate of return, at the end of a two year period, children would receive around $705,000 in value, with a 12% annual return, a little bit more than $876,000 in value and finally, with a 15% return, a little more than $1.1 million in value. If the stock goes down in value, parent is out nothing. If it goes up in value, the appreciation ends up in the hands of the children or a trust for their children without using any of the parent’s gift tax exemption. And if you're sitting out there and saying I don't have any gift tax exemption, this is perfect. This is how you can continue to do estate planning without any available gift and estate tax exclusion.
So just to emphasize, what a GRAT will do is, it'll move the appreciation over the 7520 rate to children. This is the rate that is used to compute the annuity that the parent must take back from the trust in order for the gift to be almost zero. So in April it's 1.2% and again in May, it’s a historical low of, 0.8%. The disadvantage of a GRAT is if the grantor dies during the GRAT term, all the property returns to his estate and it's as if he did nothing.
So another great technique is a sale to a defective grantor trust and just like a GRAT it attempts to get future appreciation to the next generation. These are essentially both freeze techniques, the parent takes back what they transferred plus some interest rate. So with a sale to a defective grantor trust, a parent or grandparent sells property to a trust for their children or grandchildren in exchange for a balloon note, interest only for a period of years and then principal paid off at the end. Usually these are set up for nine years because the mid-term interest rate is applicable up to that length of time and it's usually lower than the long term rate, which may not necessarily be the case today.
The sale is not a taxable event because the trust is set up as a grantor trust. It's deemed to be owned by the grantor for income tax purposes. So there's no gain or loss on the sale of the property to the trust. The interest paid on the note is not taxable to the grantor, nor deductible by the trust. However, the grantor or parent can't sell property to an empty trust so they have to seed it if they don't already have an existing trust with funds in it. They have to seed it with at least 10% of the value of the property. That's the rule of thumb. You wouldn't sell property to an indigent person so why would you sell property to a trust that has nothing? There has to be some equity in the trust to make it look like a real transaction. At the end of the day, any appreciation in excess of the note interest rate stays in trust for children or grandchildren.
So let's see how this technique works. Parent or grandparent sells $5 million worth of property to a trust that they have seeded with $500,000 of cash. They take back a $5 million balloon note. And guess what? Interest rates are really low. The interest rate if you were to do something like this in April, 2020 is a hair short of 1%. If you do it next month, it's even less. So with this $5 million balloon note, the trust would be required to pay to the parent $49,500 of interest every year for eight years. The ninth year, they would pay back the principal with interest. So if the property appreciated at 10%, 12% and 15%, look at these numbers, guys. Look at what would be in the hands of the trust, this is a very powerful tool. At a 10% rate of return, $6 million will be transferred to children/grandchildren without using any gift tax exclusion other than to fund the trust. At 12%, there'd be a little over $8 million remaining in the trust. At 15%, almost $12 million would be left in the trust. Very powerful.
Now how about all of you out there who are sitting there and saying we already have one of these in place? When you set this up and you had a note with an interest rate of 3%, you thought that was great. How about refinancing the note for a little bit less than 1% or next month when the interest rate is a hair over half of one percent? What about that?
So I described the sale to a defective grantor trust and the grantor retained annuity trust, both very powerful tools, but I wanted to compare them because I said they're both freezing techniques. You saw that with the sale to a defective grantor trust, there was in fact more property transferred. There are reasons for that and we'll talk about that. With a sale to a defective grantor trust, more property reaches children or grandchildren because a lower interest rate is applied to the note than the 7520 rate applied to GRAT. The 7520 rate is always more than the midterm interest rate because it's 120% of the midterm rate. And with the sale to a defective grantor trust you pay interest only to the parent. With a GRAT, you're essentially back both interest and principal every year. Also, a GRAT is for a shorter period of time to ensure the grantor survives the trust term catch the upside.
With a sale to a defective grantor trust, if the parent who sold the property to the trust dies, the property in the trust isn't includible in their estate, only the note. So the appreciation is out. But there is a downside with the sale to a defective grantor trust, if the parent dies while the note is outstanding, there's some question whether that would be trigger a taxable event for income tax purposes; the previously unrecognized taxable gain on the sale.
So the other valuable point with respect to a sale to defective grantor trust is that it can be used to transfer wealth to grandchildren as well as children. With a GRAT, you really can't do that just because of the way the generation skipping transfer tax rules work. But there is an additional benefit to the GRAT, if the value of the property transferred to the GRAT is challenged by the IRS and the Service assets that the value of what you transferred to the GRAT is actually more, there's no unintended gift. The payment, the annuity required to be paid to the parent is actually just increased. However, if property is sold to a trust and the value of that property is upwardly adjusted by the IRS, a taxable gift could be triggered.
With a GRAT, there's no upfront taxable gift, like with a sale to a defective grantor trust; however, you have to use some gift tax exclusion to seed the trust for the sale, if you don't already have an already existing trust. . Also what I should mention is if you transfer a difficult-to-value asset to a GRAT, every time the property is paid back as part of the annuity payment, you have to pay for a new appraisal. If the GRAT is funded with a marketable security it's no big deal. With a sale to a defective grantor trust, if you sell a difficult-to- value asset, there's an appraisal that's done when the property is sold. Presumably the annual interest payment isn't going to be paid back with property but with cash so the client wouldn’t need to obtain a new appraisal every year for the property that was sold to the trust.
That's all I have for you this afternoon and if there are any questions, let us know.
So this is Marie, I saw a couple questions come through with respect to the charitable organizations. Someone had asked what is the proactive election that has to be made? If you recall, I had said that for the deduction for itemized deduction, so for that 100% of AGI amount for qualified contributions, that there's an election that the individual has to make. If it's a C-corp, an S-corp corporation, excuse me, or a partnership, the individual partner or shareholder would need to make that election. I did not see any explanation or guidance as to how that election will be made. I presume it's going to be somewhere on the 2020 1040 series but we'll have to see what that is. So I don't have a real answer at this point.
And then someone asked also, would this include contributions to nonprofits? This provision, the CARES Act, is only for those contributions made to charitable organizations as defined under 170 and 501C3 of the codes. That's for charitable organizations, for scientific organizations, religious, there's a whole host of qualifications. That would be normally your charitable entities and not for any of the other not for profits. If you ever wanted to see all the nonprofits that exist, there are business leagues and social clubs and the list goes on and on, that does not apply in this case. So those are the two questions that I saw on the charitable contributions.
And this is Karen, I see some questions for me. One question says how does this sale to defective grantor trust work with a self-canceling installment note? Well I'm going to be upfront with that. I don't really like self-canceling installment notes because you're betting that your client dies. They win if they die. So with a self-canceling installment note, the interest would be more or the principal would be more because you have to make up for the fact that it could be canceled upon the death of the person holding the note. If the parent dies, the note is canceled. Again, I'm not a big fan. You could definitely do it. I have to be honest, in my career I have only seen this done once with a self-canceling note.
I see another question regarding a two- year GRAT. Assume that you put cash in it to pay back the annuity. Well that's a good idea except for if you increase the value of what you transfer to the GRAT, you also increase the annuity amount. You may not be able to satisfy the GRAT payment with all of that cash, depending on how much cash you are putting in the GRAT because it will increase the amount that has to be paid back in order for there to be a zero taxable gift.
Any other questions?
I think, is that it? It looks like that's it, Karen. And there was a question there about our email group. We can talk about how to get [inaudible 00:48:02] are also available online. So we can share. It looks like that's all the questions coming in. I think that we are getting close to the end of our time. So I wanted to thank everybody for taking the time to jump on this call. The last slide that we have here is a quote from Admiral Jim Stockdale. It's a quote that I really love and part of it is because we know that someday this is going to pass and our lives and our prospects are going to improve and we will heal as individuals, as families, as communities and as a nation. And we will emerge changed from all of this and perhaps we will come through this stronger and more resilient. So we hope that the information that we shared today will help you. We are here for you at any time. So again, stay safe, be healthy and thank you, Karen and Marie and to all of our team behind the scenes that make this happen.