Different Regulators for Different RIAs?

Unlike brokers, Registered Investment Advisers are held to a fiduciary standard. Generally, they're regulated by the SEC. Congressman Bachus of Alabama has a different idea, Investment News reports. He's added an amendment to a bill being marked up in the Financial Services Committee that would shift regulation of Registered Investment Advisers associated with broker-dealers to FINRA.

Is it a good idea to take regulation of some advisers away from the SEC? No, was my snap judgment. Then I remembered who was supposed to be regulating Madoff.

Trusts from The Times

On closer reading, trusts popped up in a couple of places in the NYT Wealth and Personal Finance section (see post below). Buried deep in Running Scared is this trust note:

Delaware asset protection trusts […] allow people to shield money from creditors after the assets have been in the trust for four years.

When these trusts were created in 1997, doctors, lawyers and accountants were drawn to them because they feared their liability insurance would not cover them fully. Today, people starting hedge funds and private equity firms are interested, said Dan Lindley, president of the Northern Trust Company of Delaware. “They say, ‘I want to put some of my assets into this trust and have that be my rainy day fund if the fund performs badly and investors turn on me,’ ” he said.

This may be hiding money from creditors, but Delaware law permits it so long as the person was unaware of any claims against him when he set up the trust.

A full-page ad from the US Trust brand at BofA offers a pdf of Not Your Grandfather's Trust. Behind the booklet's cryptic title lurks a brisk discussion of two-year GRATs and how multiple Grantor Retained Annuity Trusts may be designed, sequenced and invested.

“In Terrorem” in the Times

The Wealth and Personal Finance section in today's NYT includes Clauses Aimed at Keeping the Heirs Quiet.

Get Rich Dead?

Forbes estimates that Michael Jackson has made $90 million in gross earnings since his death.

Wanted: Performance!

What a difference a decade makes! In 1959 (see preceding post) investors faced the unfamiliar notion that stocks could yield less than bonds. Equities were to be viewed as … growth stocks!

By the mid-1960s the Dow had soared to 1000. Then the ride got bumpy. But by 1969 the Go-Go Years promised instant gratification, supplied by "gunslinger" fund managers who bought first, researched later.

The name of the game was performance. In this October, 1969 ad, Manny Hanny gamely tried to play along:

Wanted: Will Appointments

By the 1960s, staid old trust institutions were actively seeking immediate-fee business. In October, 1959, however, these two companies still thought their services as executor or trustee were worth advertising:

More on H.R. 3905

There's a press release today from the sponsors of the just-introduced estate tax reform bill, Tax Notes reports. I've read the bill, which is very short and to the point. It does not include portability of the estate tax exemption, but it does have one surprise.

In the last century, the feds and state government shared death tax revenue through a mechanism called "the credit for state death taxes." To mitigate the loss of federal revenue with the 2001 estate tax reform, the credit was phased out, replaced by a deduction for state death taxes. This had the effect, intended or not, of eliminating death taxes in those states with regimes keyed to the federal credit.

H.R. 3905 would complete this cycle by phasing out the deduction for state death taxes over ten years, as it reduces the tax rate to 35%.

If this passes, it will greatly increase the pressure on those states who have been hanging on to their estate or inheritance taxes. Their wealthy residents will have a fairly easy solution for avoiding the states' death tax designs.

Three e's for the Ways and Means Committee

Ron Aucutt reports in Leimberg Information Systems ($) that the Ways and Means Committee is poised to turn its attention to the economy, the extenders and the estate tax. Conventional wisdom has been that Congress might settle for an estate tax patch, extending the 2009 exemption and rates for one year only. But Aucutt says that there support for a permanent solution is emerging. He mentions a new bipartisan bill:

On the same day, Ways and Means Committee members Shelley Berkley (D-NV), Kevin Brady (R-TX), Artur Davis (D-AL), and Devin Nunes (R-CA) introduced H.R. 3905, called the “Estate Tax Relief Act of 2009.” Under H.R. 3905, in each of the ten years from 2010 through 2019, the estate tax applicable exclusion amount would increase by $150,000 and the top rate would decrease by 1 percent. Thus, by 2019 the exemption and rate would be $5 million and 35 percent.

Is there time to get this done before Thanksgiving?

Could Suspending the Estate Tax Soak the Rich?

If the federal estate tax vanishes next year as scheduled, revenue from taxing capital gain could help take up the slack. Reason: the return of carry-over basis. But as a corrected WSJ article explains, only the heirs of high-net-worth decedents would suffer:

[T]he 2010 law as written gives each taxpayer $1.3 million worth of "free" step-up at death, but this is a far cry from the unlimited basis step-up under current law. Married couples get an additional $3 million at the death of the first spouse, heavily favoring them over individuals.

Congress is expected to extend the current estate tax for another year. What if Congress is too distracted to act until next year? That could get tricky:

Under Congressional bookkeeping, any extension of the current system into next year counts as raising revenue because the tax is currently slated to lapse in 2010.

In 2011, however, the exemption is supposed return to $1 million. So extending the $3.5 million exemption beyond 2010 will count a revenue loser at a time when deficit-cutting pressures will be intense.

Maybe it was a mistake to let the inmates run the asylum.

Photo from Wikimedia Commons

Ten Trillion Here, Ten Trillion There . . .

At Scripophily.com they're giving away these ten trillion dollar bills with orders over $200.

The Ultimate Halloween Costume?

With the passage of time, workaday necessities sometimes morph into expensive status symbols – blatantly ostentatious objects worn mainly for show. Wristwatches with five-figure price tags, for modern example.

In Japan in centuries past, Samurai guys appear to have made fashion statements with their armor. This suit from the 18th century would make a killer Halloween costume.

The New York Times offers a slide show here of items from The Metropolitan Museum of Art's current exhibition of Samurai armor. (Bet you didn't know Darth Vader was Japanese!)

From "Scoop of the 20th Century" to Abused Elder

Clare Hollingworth went to work for The Daily Telegraph in 1939. Her career took off almost instantly:

She had been in the business for only a week in 1939 when she noticed, travelling towards the Polish border from Germany, that huge screens of hessian had been erected along the roadside, concealing the valley behind from passing traffic.

As she looked, the wind caught a loose piece of tarpaulin, revealing large numbers of troops, hundreds of tanks, armoured cars and field guns, lined up, battle ready - and facing Poland. She had stumbled across the beginning of World War Two.

 Miss Hollingworth went on to cover wars in Algeria and Vietnam. Now 98 and living in Hong Kong. she has been unfortunate enough, the Telegraph reports, to attract one of those creatures who believe the elderly and their money should live apart:

Sadly Miss Hollingworth, whose hearing and eyesight are not what they once were, has been subject to a mercurial acquaintance, who separated her from her money and has failed to repay it, even following a court case at the end of which he agreed to do so.

Fun facts on the first-time homebuyer's tax credit

From NYTimes.com:

$10 billion -- gross value of credits claimed to date
1.4 million -- number of claimants
400,000 -- number of sales that would not have happened without the credit
1 million -- therefore, the number of buyers who simply got a windfall
107,000 -- IRS audits of questionable credit claims
167 -- criminal schemes to exploit the credit
4 -- age of the youngest credit claimant
60% -- percentage of claimants with income below $50,000 -- how could they afford to buy a house?

I wonder what other responsibilities we could have the Feds shoulder?

How Uncle Sam Rewards Savers

If artificially low interest rates encourage borrowing and spending, what do they discourage?

Saving.

The plight of retirees and other fixed-income investors receives surprisingly little coverage. This column from Allan Sloan is a happy exception.

Life Spans and Estate Plans

In Making the Most of Your Estate, Milo Watts, Earl MacNeill's typical salaried man of the Nifty Fifties, is 43; Mary, his wife, is 38. Mac tells us three of their four parents are dead. Only Milo's mom survives at age 68. That's how it was in those days. At least that's how it had been. Hard-driving businessmen were expected to keel over with fatal heart attacks in their fifties, and many did so.

Yet life spans were already lengthening, and estate planning began to adapt. Planning inheritances for minor children lost prominence. Planning trusts for the grandkids took over. Some years later, at Merrill Anderson, Mac urged men to review their old wills with this warning: Your Heirline is Receding!

As life spans kept stretching, estate planning expanded to include living trusts for financial protection in old age … durable powers of attorney … living wills. Not to mention "Medicaid planning."

Durable powers of attorney were seen as a growing necessity, but not without danger. Wish I could remember Mac's views. Certainly he made me aware that a traditional power of attorney relied on the supervision of the individual granting it. If Mr. Gotrocks gave me his power of attorney while he sailed around the world, I could be in big trouble if he didn't like what he found when he got home.

The exercise of durable powers usually cannot be supervised by the individuals who grant them. Since the Brooke Astor case, concern regarding that hazard seems to be growing.

Are Roth IRA conversions a tough sell?

Investment News reports that Advisers find Roth IRA conversion opportunity a tough sell.

SHH warned us about this--few people really want to accelerate their tax liabilities, especially when the benefit seems vague and in the future.

However, there are two more facets that I had not considered. First, the fact that asset values are down means the taxable cost of the conversion is at what could be a historic low. I thought that made the conversion attractive, but apparently it's having the opposite effect. Traditional IRA owners feel like they already lost a ton of money in their accounts, and they don't want to make it worse with an optional tax bill.

Second, they don't trust their government.

Some particularly conservative clients are so mistrustful of the government that they are worried that Congress might decide down the road that Roth IRA withdrawals are taxable and thus they will end up paying taxes twice, Mr. Neuschwander said.

This is what happened with Social Security, he said. “Some clients have asked me, ‘What happens if Congress changes the rules and we have to pay taxes again,’” he said. “To be completely honest, that’s an unknown.”

Wow. They have a point. An item in the NY Times six or so months ago mentioned the possibility of having something like an "excess accumulations" tax on overly large Roth IRAs. Or, perhaps less insidiously, they could start counting Roth distributions in figuring the tax on Social Security benefits.

Planning for the Fringes

Twelve years after Earl MacNeill's Making the Most of Your Estate, this 1969 ad from Chase still found it timely to focus on the salaried man's employee benefits:

"If you're a corporate executive, the sum total of your fringe benefits may actually constitute the bulk of your estate."

What should a 401(k) restatement cost?

Our new 401(k) recordkeeper is doing the required EGTRRA restatement of its prototype plan, which we adopted. With essentially no explanation, they have said that our share of this restatement cost will be $1,000. I think this is outrageous (do they even go to the trouble of putting our name on a form?), but then again, I haven't priced these services recently.

What is the normal fee out there for a restatement from a prototype plan?

Anne Melican Loses

Harvey Strother died in 2004, leaving an estate valued at $37 million. Was his mistress entitled to $7,900 a month for life, plus real estate, under amendments Strother made to his will in 2000 and 2003? No, rules the Georgia Supreme Court in a 7-0 decision.

Who’s Your Digital Executor?

Prepared for your digital afterlife? Don't forget your digital online will.

Estate Planning in the Nifty Fifties

The Greatest Generation went through hell in World War II. (On Iwo Jima alone, 6,800 American lives were lost, more than in the entire Iraq war to date.) After V-J Day, those who made it home craved security. Many went to work for major corporations, lured by good, steady income and generous benefits.

In the decade of the Nifty Fifties they prospered. That prosperity caught the attention of an aspiring author. Earl S. MacNeill was vice-president of Irving Trust and moonlighting writer for The Merrill Anderson Company, which he later headed. The book Mac wrote, published by Harper & Brothers in 1957, he titled Making the Most of Your Estate: A Guide for the Salaried Man.

[A] new class of wealth has arisen in this country …. This wealth has new ingredients or, more exactly, old ingredients in new forms. There are also new forces shaping this wealth, notably tax laws that [encourage] pension plans, profit-sharing plans, matched savings plans and stock options. Previously written books on estate planning have dealt generally with traditional forms of wealth. The present work is dedicated to the salaried man, the "rental" of whose brains is his fortune.

Over 50 years later, Making the Most of Your Estate reads surprisingly well. Taxes were a whole different ball game back then, but not the basics of wills, trusts and joint ownership. Much of the book's success was the result of its innovative structure. Mac consigned the required chapters on wills, trusts, joint tenancy, gifts and such to the back of the book. Tax details he kicked all the way to the Appendix. Up front are four case histories. "Any resemblance to real people is wholly intentional, but to any specific person or family – emphatically not!"

Milo Watts, age 43 and a supervisory engineer at Westvania Electric, is the prototype salaried man: Wife, three kids, and an estate consisting mostly of jointly-owned assets and group life insurance. Milo needs more life insurance to capitalize his earning power. And he needs a revocable insurance trust to assure that the proceeds are wisely invested and flexibly distributed.

Chester Uplake. "Aged sixty-four, Chester is getting his affairs in shape for retirement from the presidency of Universal Plastic Appliances, a subsidiary of Universal Plastics International…. His business life has been spent in the Universal family, going back to the days when it was the Molded Woodpulp Panel Works, Inc., sturdily contributing its mite to the then fashionable overornamentation of the American home."

Chester is High Net Worth. Therefore he needs to learn the ins and outs of the estate-tax marital deduction, then limited to 50% and introduced to the Internal Revenue Code, along with the joint income tax return, in 1948. (If Congress had not reluctantly extended the tax benefits of community property nationwide, today the number of community-property states might be approximately 50.) Chester's old, 1946 will left his estate in a trust that would bypass estate tax at the later death of Harriet, his well-heeled wife. Now, to take optimum advantage of the marital deduction, he needs a more sophisticated plan.

Ralph Allen, 55-year-old sales manager, likes to keep things simple. So he has a simple, all-to-wife will. Not good! In the jargon of the day, Ralph has "overqualified" for the marital deduction. He needs a trust that will shelter the taxable portion of his estate from repeat taxation at the later death of Hazel, his wife.

Adrian H. Yates, president of General Diatonics, is a man with too much income. "It is difficult to imagine having too much income, but the phrase is relative, of course, and has reference to that kind of income which pushes the recipient up into income tax brackets so high that he has little of it left." Mac notes that Adrian has a favorite saying, one that Jim Gust will roundly applaud: " Incentive lags as its rewards approach the point of no return."

Income shifting got a lot of attention in the Nifty Fifties, a decade of punitively "progressive" income-tax rates. The object was to shift streams of investment income to members of the family in lower tax brackets. Adrian gets a crash course on how to do so using reversionary trusts. (If grandmother was a tax lawyer, ask her about Clifford Trusts.) Adrian also has a bunch of stock options to deal with.

•

Mac followed the case histories with discussions of estate planning, will, trusts, life insurance and so on. The most striking chapter is entitled, "Like a Cosmos Expanding: Pension and Profit-Sharing Plans:"

Fifteen years go it was a puffball on the horizon; slowly at first it rose, then suddenly it mushroomed; it has covered our world – the world that men on salary live in; it has become a world of wealth in itself: he world of pension, profit-sharing and similar deferred compensation plans. The conception had two parents – a not untypical origin. One was desire to obtain the best possible employee relations by providing incentive and security. The other was recognition of opportunity to build funds, for the later benefit of all concerned, in an area favored by the tax laws. One parent virtuous, the other raffish. It was a shotgun wedding, of a not reprehensible sort – the "gun" being a triple-barreled income tax advantage.

Wonder what Mac would have thought if he knew that cosmos would expand enough to include Ken Lewis' $64 million in pensions and deferred comp?

You can guess Mac's recommendation for serving as executor and trustee. You probably cannot better his sales pitch:

A sad legend is that corporations are soul-less, as if they were machines whereas they are, after all, made up of men and women; and in the case of corporate fiduciaries they are men and women with a variety of skills appropriate to their business, including skill in handling people. A trust administrator, over the years, serves people who range from morons to geniuses; from gay to morose; from thrifty to spendthrift; from unfailingly healthy to chronically ill; from grateful to hateful. Think of all the opposites you can, and all the in-betweens; all of them, at one time or another, have sat at the trust officer's desk, or he has visited them in their homes or the institutions wherein they are immured. He has, in short, observed humanity in every stage of psychic dress and undress; and he must love humanity, or he would long ago have turned in his desk plate reading "Trust Officer."

The dust jacket on Making the Most of Your Estate lists three other volumes in Harper's small but elite stable of financial books. One is The Intelligent Investor by Benjamin Graham. Mac was proud to travel in such good publishing company, and by and large he held his own.

How to Choose a Fiduciary

From Making the Most of Your Estate, by Earl S. MacNeill, published by Harper & Brothers, 1957:

Trusteeship is one of the most diversified jobs on earth. No one with less diversified talents than can be found within the walls of a trust institution should be appointed as trustee – or as executor.

Another Unintended Consequence

Back in the 1970s, Uncle Sam learned to love inflation. Holders of Treasury bonds and other creditors could be paid off on the cheap, with depreciated dollars. Remarkably, Congress decided to stop stiffing retirees in the same fashion. Social Security benefits were indexed to inflation. As a result, those who retired 10 or 15 years ago receive roughly the same real benefit – with the same spending power – now as they did then.

Guess what? Most retirees don't care a fig about such notions as "real benefits" and "maintaining purchasing power." They believe their benefits increase every year. And they like it that way.

Result, an unexpected new political crisis. No inflation (as measured by the Consumer Price Index) means no dollar increase for 2010. Or, as The Washington Post puts it, Stagnant Consumer Prices Prevent Social Security Benefit Increases.

Uncle Sam is expected to apologize for those stagnant consumer prices by sending each retiree $250.

(Many retirees, including this one, feel the actual cost of retirement living has kept climbing over the last 12 months, but that's an argument for another day.)

Lesson for wealth managers: You may need to explain the declining purchasing power of the dollar and its consequences to more clients and prospects than you realize.

Unintended consequences

Writing in Tax Notes Today ($) Martin Sullivan discusses one of the best examples I've seen of Congressional good intentions gone awry. It's yet another cautionary tale before we transfer health care management to the feds. The background:

On May 22, 2008, Congress overrode the president's veto and enacted the long-debated farm bill. Among the goodies in the legislation was an increase in the tax credit for cellulosic ethanol to $1.01 per gallon, paid for with a reduction in corn ethanol's subsidy from 51 cents to 45 cents a gallon. The intended beneficiaries of the $1.01-per-gallon credit were companies that use expensive, cutting-edge technologies to produce ethanol from cellulosic plant materials instead of corn.

Congress tilted tax credits to cellulosic from corn ethanol because the explosion of production of ethanol distilled from corn was driving up food prices and because greenhouse gas emissions from cellulosic ethanol were considerably less than those from corn ethanol.

Seems like a good idea. And cheap--the original credit for cellulosic ethanol was projected to cost a scant $100 million per year.

But it turns out that the paper industry has been running its factories in part with recovered pulping byproducts, something they call "black liquor." This product meets the tax definitions, making the companies eligible for the tax credit for a practice they've had in place since World War II, according to an IRS analysis! So the projected cost of the credit has now ballooned to $25 billion—and that's without stimulating the targeted industry or substituting any domestic fuel for imported oil!

If that isn't enough "Alice Through the Looking Glass" for you, now that we know about the loophole that was inadvertently created, it counts in the budget process (though it never did before). Sullivan reports that closing the loophole will count as $25 billion toward deficit reduction—even though nothing has changed.

Wall Street Smarts

Calvin Trillin's explanation of why Wall Street almost self-destructed sounds spot on to me. But I'm not too smart.

Can Madoff's victims sue the SEC?

Two of them are trying--Couple sues SEC for $2.4M in Madoff losses reports Crain's New York Business.

Obviously, the SEC screwed up big time--even they admit that. Just as obviously, I don't believe that there is a cause of action here, unless the government consents to the lawsuit, which they won't. This sort of problem will also come up from the management of the car companies, now that the government is the majority owner.

Remind me please, why do we want the government to run health care also?

Roth IRA conversions

Not all trust prospects have income over $100,000, especially when you move away from the coasts. But many, many people who have incomes over that amount are trust prospects, and they are about to have a chance to convert their traditional IRAs to Roth IRAs for the first time, come January 1.

Should they do it? There are pros and cons, no easy answers. But about three quarters of the high earners plan to the question to their financial advisors, according to a new survey from Schwab.

What's more, reports Bank Investment Consultant magazine:

Respondents cite a lack of certainty about the benefits of a Roth IRA and confusion over the pending conversion rule as reasons for consulting a financial advisor. Of the 400 Americans with incomes of $100,000 or more surveyed, only 14% say they are extremely confident in understanding the Roth IRA conversion rule changes in 2010. Another 49% indicate that they are going to consult a tax planner.

That sounds like a trust marketing opportunity to me, an excellent reason to talk to rich people who are willing to talk to you. Merrill Anderson is preparing relevant marketing material for you right now.

Delaware Trusts

RBC on the importance of Delaware trusts:

[M]illions of Americans have set up Delaware Trusts, including many of the nation’s wealthiest people. For example, while less than one-half of a percent of the total U.S. population lives in Delaware, more than 10 percent of those listed in the Forbes 400 have established trusts in Delaware.

Brooke Astor's Son Guilty

You be the judge: What punishment fits these crimes, committed by a man now 85 years old?

Do marginal tax rates matter?

I've always thought that the most important lesson from the Reagan years was that lower marginal tax rates do, in fact, foster economic growth. Not just lower taxes, which are obviously helpful, but lower rates on the last dollar earned.

Did I blog awhile back about the Swedish doctors who took the rest of the year off once they reached the 103% marginal tax rate? I think that finally got changed, even the government bureaucrats understood the futility of the 103% rate.

That's why our government has worked so hard to conceal the true marginal tax rate, through a variety of phase-outs and other nonsense in the name of "fairness."

It could get a lot worse, according to TaxProf Blog, who writes: 80% Marginal Tax Rates After Health Care Reform?

Note that these high rates are not on the rich under health care reform. This results from the phasing out of subsidies for the lowest income taxpayers, and strikes middle income workers hardest. Taxes on "gold-plated" plans are a different question.

But won't these tax increases and rate increases violate Obama's pledge not to raise taxes on those who earn less than $250,000? Don't worry, they'll have a spin for that, just as they did when the tobacco tax (which falls mainly on the poor) was raised the first week of the Obama presidency.

Will Banks Miss Their Brokers?

Citigroup's decision to convert their in-branch brokers to fee-based advisers (see preceding post) draws approval from Reuters' Matthew Goldstein.

Will other banks bow to threats of legislative or regulatory action and follow suit? To borrow a phrase from one commentator, are "guys who are transactional" an endangered species?

Such a change could impact bank earnings. As mentioned here last year, bank brokerages have been highly profitable. That's partly because the mass affluent tend to be less sophisticated, less cost-conscious. As Robert Frank notes in The Wealth Report, millionaires get the better deals.

Citigroup Brokers: A Vanishing Breed

Seems like only yesterday that Citigroup had thousands of brokers, thanks to Smith Barney. Citi still has plenty of investment salespeople in its branches. But not for long, according to The Financial Times:

Citi will begin referring some wealthy customers who deal with 550 brokers based in some of its 1,000-plus branches to independent financial advisers.

Under the new strategy, Citi will receive a referral fee for each customer they direct to an independent adviser.

Citi will also retrain some of its brokers to be part of internal teams of fee-based financial consultants as well as helping customers to choose between internal and external advisers.

* * *

Citi plans to eliminate all commission-based compensation by 2011.

Water Lures the Wealthy

Data on the summer's local real estate sales arrived the other day. A couple of dozen homes changed hands in our coastal village, most at modest prices. Only two houses fetched seven figures. Both are oceanfront properties.

Even in recessionary times, water attracts the wealthy. Over the generations ads for trust and investment services have reflected that fact. Here are two examples, the first from 1954, the second from just a decade later.

Wealth Transfer Opportunities

The times are propitious for loans and gifts to younger generations, writes Jason Zweig in Wealth Transfer Via Bank of Mom & Dad. The column includes plugs for GRATs and IDGTs (Intentionally Defective Grantor Trusts).

"IDGTs (sometimes pronounced 'idjits') are often smarter than GRATs," writes Zweig, "because IDGTs move an asset out of your estate immediately."

You'll Never Guess What's Sexy

"It seems that the sexiest webcast topic we've ever hit upon at InvestmentNews is estate taxes," writes Evan Cooper. The webcast drew a record number of viewers.

Useful takeaway from panelist Sanford Schlesinger: Beneficiary review (IRAs, insurance, etc.) may be more important than will review.