Category Archives: General

Navigating the Corporate Transparency Act: A Comprehensive Overview

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By Attorney Curtis A. Edwards

 

As we usher in a new year on January 1, 2024, the Federal government will also be ushering in the era of the Corporate Transparency Act (CTA), which creates new reporting obligations for businesses operating in the United States. Designed to combat money laundering, terrorist financing, corruption, tax fraud, and other illicit activities, the CTA mandates that most entities disclose their beneficial ownership information (BOI). This blog delves into the key aspects of the CTA, shedding light on its reporting requirements, compliance and implications for businesses.

Who Does the CTA Apply To?

The CTA applies to a broad spectrum of entities, including U.S. businesses formed by filing with a Secretary of State (Department of Financial Institution in Wisconsin), including most small family businesses, LLCs, corporations, and even entities designed to hold real estate and conduct no other business. Foreign entities registering to do business in the U.S., and certain excluded entities, such as highly regulated entities, public companies, and government authorities also fall under the purview of the CTA. While there are some exemptions, such as for churches, charities, and other nonprofit organizations, it’s crucial for business owners to assess their classification and compliance requirements.

Understanding Beneficial Ownership:

One of the core elements of the CTA is the obligation for reporting companies to disclose information about their beneficial owners. A beneficial owner, in this context, is an individual who owns or controls at least 25% of the reporting company or exercises substantial control over its operations (which might include any individual employed as an officer, director, manager, chief financial officer or investment trustee).

Reporting Requirements:

Reporting companies are required to furnish comprehensive information, including legal and trade names, corporate address, jurisdiction of formation, TIN or EIN, and details about beneficial owners and company applicants. Beneficial owners must be identified either through a FinCEN identifier or by providing their legal name, date of birth, address, and a unique identifying number and photograph from a current passport or a state or government issued document, such as a driver’s license.

Company Applicants:

Entities formed after January 1, 2024, must disclose information about their company applicants – individuals responsible for forming the entity or directing the filing process. If your entity is being formed by a law firm, this will generally be the paralegal or staff member that files the document and the attorney who is primarily responsible for directing or controlling the filing.

Compliance Deadlines:

Domestic reporting companies face varying deadlines depending on their formation date, with the initial reports due by January 1, 2025 for entities formed before January 1, 2024, or within 30 calendar days of formation for entities formed on or after January 1, 2024. Foreign reporting companies follow a similar timeline, aligning with the date of registration or public notice.

Updates and Corrections:

To ensure accuracy, reporting companies must promptly update any changes to previously reported information within 30 days. The CTA provides a safe harbor for filing corrected reports within 90 days of discovering inaccuracies.

Penalties for Non-Compliance:

The CTA imposes substantial penalties for reporting violations, including civil and criminal penalties of up to $500 per day for ongoing violations and fines of up to $10,000 with a maximum imprisonment of 2 years for willful non-compliance. Businesses are urged to understand and adhere to the new reporting requirements to avoid any negative legal consequences.

Seek Professional Guidance

In conclusion, compliance with the Corporate Transparency Act is complex and nuanced, with each businesses circumstances and ownership structure being unique and requiring a comprehensive analysis. Early awareness, proactive planning, and collaboration with a knowledgeable attorney can help businesses not only ensure compliance now but also establish the necessary protocols to stay in compliance in the future. If you have any questions or are interested in learning more about this topic, please contact Lin Law LLC at (920) 393-1190.

When Your Beneficiaries Could Receive An Inheritance – Which Distribution Method Is Best?

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The method in which you choose to distribute a beneficiary’s inheritance upon your passing is an important part of the estate planning process. There are a variety of ways to do this, and you should consider the method that best meets your estate planning goals.

Distributed Outright  After all bills and expenses are paid, assets are divided and distributed to your beneficiary(ies) directly. This distribution method is an option for parents who have financially responsible adult children.

In Trust, Distributed Outright at a Certain Age, at Certain Ages, or Upon a Life Event  The assets that are held in trust for a beneficiary’s lifetime are distributed by a trustee in accordance with the trust’s provisions. Usually the provisions of a children’s trust or beneficiary’s trust provide that when the beneficiary attains a certain age (common age distribution choices are thirty (30) or thirty-five (35)), the trustee will distribute the assets of the trust outright to the beneficiary at the specified age, thus terminating the trust. Trust assets can also be distributed at multiple distribution ages. For example, the provisions of a trust can provide that the beneficiary shall receive one-third (1/3) of the trust assets at the age of twenty-five (25), one-third (1/3) at the age of thirty (30) and the residue of the trust outright at age thirty-five (35). A less common, but still useful option, would be to distribute the assets of a trust outright upon an event, such as graduating from college.

Asset Protection Trust  Another common distribution structure is an asset protection trust that is held and maintained for the lifetime of a beneficiary with no mandatory distributions of principal and income.  An asset protection trust can provide for the beneficiary to become co-trustee or sole trustee of his or her trust upon attaining a certain age. Upon the death of the beneficiary, unless the beneficiary exercises a valid power of appointment, the assets would continue to be held in trust for the benefit of the beneficiary’s issue by representation.  The benefit of this option is that the beneficiary of the trust, if he or she is also acting as the trustee, has control of the trust assets and can protect the trust assets in the event of creditors’ claims or divorce. The right method depends on your unique circumstances and goals. The best strategy to leave assets to your beneficiaries may change over time. To ensure that your estate plan meets your needs, be sure to review your estate plan on a regular basis.

If you should have questions regarding this topic, please contact Lin Law LLC at (920) 393-1190.

Taking Care of the Family Cottage

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As Wisconsin residents close up their family cottages for the winter, it may be a good time to consider a structure to conveniently allow your family to continue to enjoy the cottage for future generations.

In some cases, it may make sense to set up a limited liability company or trust to facilitate indirect ownership of the cottage and protect it from certain liabilities.  This would allow a current owner to provide a structure for transfer of cottage ownership, use and management of the cottage and payment of expenses.

Both a limited liability company (“LLC”) and trust can provide the owner some liability protection, but there are some differences between the two structures.  If an owner wants to leave some money or investments for future generations to utilize for cottage expenses, such funds could, in most instances, be protected within a trust.  However, structuring cottage ownership in a trust may provide less flexibility for future generations than an LLC would because a trust becomes irrevocable (and thus harder to modify its terms) upon an owner’s passing.  So, in the event of a dispute over, for example, maintenance and expenses, a trust can be more cumbersome than an LLC regarding settling or bypassing such disputes.

On the other hand, an LLC’s advantage is its flexibility.  LLC’s are governed by operating agreements, which can be modified by current members of the LLC.  Because an LLC is a flexible entity, it can be a particularly helpful vehicle when it comes to handling unforeseen circumstances, facilitating ownership transfers, particularly if a family member does not want to be involved with the cottage, and managing usage of the cottage.

Whichever route an owner may choose, there are certain fundamental considerations for inclusion into the operative language for trusts or LLC’s.  Those include provisions regarding maintenance, cost sharing and budgeting, dispute resolution and creditor protection and tax implications with respect to the cottage.

If you should have questions or concerns regarding these issues, please contact Lin Law LLC at (920) 393-1190.

 

 

Wisconsin Legislature Considers Online Notarization

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The next time you need to execute a document in the presence of a notary public, you may be able to find one online!

Assembly Bill 293 and Senate Bill 317 (introduced June 13 and July 10, 2019, respectively), if passed by the Wisconsin Legislature, would allow a Wisconsin notary public to become commissioned as an “online notary” who is authorized to notarize legal documents online.  Pursuant to the Bills, online notarial acts must be accomplished via communication technology, such as videoconferencing, which allows the notary to communicate in real time with the affiant.  Both Bills would permit online notaries in the State of Wisconsin to notarize the signatures of individuals present anywhere in the United States, not just within the State.

One concern regarding these Bills is whether or not they should authorize the online notarization of estate planning documents such as wills, trusts, marital property agreements, durable powers of attorney, and health care powers of attorney, given that many of these documents must be signed by one or more witnesses, in addition to being notarized.  The Bills, as written, do not presently exclude estate planning documents from online notarization.

If you have any questions on this topic, please contact Lin Law LLC at (920) 393-1190.

To pay or not to pay… to what state does my Trust pay taxes?

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In a recent U.S. Supreme Court decision, North Carolina Department of Revenue v. Kimberly Rice Kaestner 1992 Family Trust (“Kaestner”), the Court held that a State may not tax the income earned by a trust based solely on the state of residence of the trust’s beneficiaries.

Kaestner concerned a trust established by Kimberly Rice Kaestner’s father, a New York resident, for the benefit of Kimberly and her three children, who were North Carolina residents during the tax years at issue.  North Carolina attempted to tax income earned by the trust for the 2005-2008 tax years based on a North Carolina law authorizing the State to tax any trust income “for the benefit of” a state resident.

However, the trust itself was subject to New York law, the trustee was a New York resident, and the trust’s assets were managed by a custodian in Massachusetts.  The fact that the trust’s beneficiaries were North Carolina residents was, therefore, the trust’s sole link to the state.  Finally, the language of the trust gave the trustee complete discretion over distributions of income and principal, and no income was distributed to Kimberly or her three children during the tax years in question.

The Court struck down the North Carolina statute, holding that it was an unconstitutional violation of the Due Process Clause of the Fourteenth Amendment.  The Due Process Clause limits the States’ authority to impose taxes to those that “bear a fiscal relation to protection, opportunities and benefits given by the state.”  In the context of a tax premised on the residency of a trust’s beneficiary, the beneficiary in question “must have a degree of possession, control, or enjoyment of the trust property or a right to receive that property.”  The Court held that, because Kimberly and her three children did not receive any income from the trust during the relevant tax years, nor did they have the right to demand any such distributions, the trust lacked the requisite minimum contacts with the state of North Carolina.

While the Court’s holding in Kaestner is undoubtedly a “win” for grantors, trustees and trust beneficiaries, the holding is very narrow and fact-specific, and therefore provides limited guidance with respect to other state income tax regimes.

If you have any questions on this topic, please contact Lin Law LLC at (920) 393-1190.

Fireside Chats During the Holiday Season

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As the holidays approach and families gather together, topics like long-term care and estate planning are likely to be the last thing on your mind.  However, the holidays are the perfect opportunity to discuss these difficult issues with your loved ones.  For older relatives, it is important to discuss whether he or she has planned for future incapacity and/or assisted living or nursing home care needs.

In addition, if you and your older family members already have existing advance health care directives and powers of attorney for finance in place, the holidays are a good opportunity to ensure that your health care agents understand your wishes with regard to end of life care, and that your attorneys-in-fact have a good understanding of your finances, or that they know where to find that information if and when they need it.

If you and your family will be gathering together for the holidays, remember that the most difficult conversations are often the most important, and that when it comes to long-term care and estate planning, the earlier you begin planning, the better.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Disclaimer: The information in this blog post is provided for general informational purposes only, and is not intended as legal advice from Lin Law LLC or the individual author.  Please consult an attorney licensed to practice law in your jurisdiction for information regarding your individual situation. 

Medicare vs. Medicaid: Do you know the difference?

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When speaking about public benefits, people often confuse Medicare and Medicaid.  After all, they do basically the same thing, right?  Not exactly…

Medicare is available to all individuals age 65 and older, in addition to chronically disabled individuals of any age, irrespective of resources (i.e., assets).  It is federally administered and beneficiaries are often responsible for co-pays and premium payments.  Medicare has four parts, each providing distinct benefits:

1.       Part A (Hospital Insurance) – provides coverage for hospital costs and related

          services (e.g., skilled nursing facility care, home health care, and hospice care).

2.      Part B (Supplementary Medical Insurance) – provides coverage for physician services

          and certain outpatient services that are not covered by Part A.

3.      Part C (now known as Medicare Advantage) – provides expanded coverage beyond

         Parts A and B.

4.      Part D (Voluntary Prescription Drug Benefit) – provides prescription drug coverage

          through private insurance companies.

Medicaid, commonly referred to as Medical Assistance (MA), receives federal funding but is administered by the individual states.  Unlike Medicare, Medicaid is a needs-based program, and beneficiaries are subject to strict financial eligibility requirements.  Medicaid covers a broad range of health services, but is primarily known for providing long-term care (i.e., nursing home) coverage.  Individuals may be eligible for both Medicare and Medicaid, and receive benefits from both programs at the same time.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Disclaimer: The information in this blog post is provided for general informational purposes only, and is not intended as legal advice from Lin Law LLC or the individual author.  Please consult an attorney licensed to practice law in your jurisdiction for information regarding your individual situation. 

Is your child turning 18? Consider suggesting that he or she execute a durable power of attorney and advance healthcare directives.

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As your child prepares to begin college or enter the workforce, estate planning is likely the last thing on his or her mind—or yours.  However, there are numerous situations in which young adults can benefit from executing basic estate plan documents.  For example, should a child be in an accident and become disabled or incapacitated, even temporarily, his or her parents may not be able to act on the child’s behalf without court approval.  Alternatively, the child may be out of the country (or simply out of town) and require his or her parents to do something as simple as signing a lease or sending money to the child from his or her bank account.

A Durable Power of Attorney for financial matters, if activated, allows a parent or other individual designated by the child to act on the child’s behalf with respect to most financial and/or business matters.  Similarly, a Power of Attorney for Health Care authorizes the child’s agent to make medical decisions on his or her behalf, including decisions regarding medical consent and life support issues.  Further, a HIPAA Authorization provides the child’s parent or other designated individual access to the child’s healthcare and treatment information.

For these reasons, we strongly recommend that all adults, even those who have just turned 18, execute a Durable Power of Attorney, Power of Attorney for Health Care, and HIPAA Authorization for Release of Protected Health Information.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Someday, Even Your Estate Plan Will Be Electronic

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In today’s day and age, most transactions may be accomplished electronically.  However, there is still one field where old-fashioned pen and paper is typically still required: Trusts and Estates.  Given the sensitivity of estate planning documents, difficulties in authentication, and the potential for data loss or hacking, many people would be (rightfully) hesitant to create or store such documents electronically.  Despite these obstacles, interest in electronic wills and other estate planning documents has increased in recent years.

The Uniform Electronic Transactions Act (UETA) of 1999, setting forth nationwide rules for electronic transactions, has been adopted in 47 states (including Wisconsin) and the District of Columbia.  The Electronic Signatures in Global and National Commerce Act, passed by Congress in 2000, allows the use of electronic records and signatures in interstate commerce.  However, both Acts specifically exclude application to the creation and execution of wills, codicils, and testamentary trusts.

Currently, Nevada and Indiana are the only states to have enacted legislation explicitly authorizing electronic wills (although, electronic wills have been successfully admitted to probate in other jurisdictions under the harmless error doctrine).  Efforts to pass similar legislation in Florida, Arizona, New Hampshire, and Virginia have been unsuccessful.

In late 2017, the National Conference of Commissioners on Uniform State Laws (NCCUSL) formed a Committee for Electronic Wills.  According to the NCCUSL website, the Committee will “draft a uniform act or model law addressing the formation, validity and recognition of electronic wills.”  See http://www.uniformlaws.org/Committee.aspx?title=Electronic%20Wills.  In addition, the Committee will consider expanding its mission to address other estate planning documents, including advance medical directives and powers of attorney for health care and finance.

It will be years, or even decades, before electronic wills and other estate planning documents become commonplace, but the trend is clear: someday, even your estate plan will be electronic.

If you have any questions on this topic, please contact Attorney Emily E. Ames at eames@llattorneys.com or (920) 393-1190.

Dying to Help, and Helping to Die?

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In June, a bill was introduced in the Wisconsin State Senate called the “Compassionate Choices” bill. The bill proposes to create a new chapter 156 in the state statutes that would, essentially, allow for physician assisted suicide under certain conditions. The bill is modeled after laws in Oregon, Washington and Vermont (and similar bills have been passed or proposed in 23 other states, plus Washington D.C.). Advocates for these bills feel that people who are suffering should be able to choose for themselves whether they live or die. Opponents feel life is precious and should be preserved at all costs.

The bill creates a statutory form called: “Request for Medication Authorization to End My Life In a Dignified Manner”, which people use to make the request for their physician to prescribe them medication to end their life. The bill requires the patient to follow several steps in order to have the medication administered. 1) the patient must be of sound mind, be 18 or older, and have a terminal disease (defined as incurable and will cause death within 6 months); 2) the individual must orally ask their doctor; 3) Within 15 days of the oral request, must make a request in writing (by filling out a form similar to the statutory form mentioned above), however it cannot be done until a consulting doctor (someone other than the attending physician) examines the patient to confirm that the patient has a terminal disease, is not incapacitated and is making a voluntary and informed decision; 4) After the written request, the patient must again orally request the medication. The request can be revoked at any time.

The bill defines the responsibilities and immunities for physicians when a patient makes this request. The doctor must 1) determine if there is a terminal disease, the patient is not incapacitated and is making the request voluntarily; 2) inform the patient of the diagnosis, risks/results of taking the medication, and alternatives; 3) refer the patient to counseling if the doctor believes the patient may be suffering from a psychiatric/psychological disorder including depression; 4) Ask that the patient notify his or her next of kin (it is not required that the patient do it, but the doctor must ask them to); 5) Inform the patient that the request can be revoked; 6) prior to filling the prescription must ensure the patient followed the steps required by the patient, that more than 48 hours have passed since the 2nd oral request, and that the decision is an informed one; 7) The physician must document the requests, the determinations made in (1), the determinations of the consulting physician, certify that the patient was informed the request could be revoked and a certification that all steps were properly taken; 8) The doctor may refuse to fulfill the request but must make a good faith attempt to transfer the patient to another physician to fulfill the request.

A doctor cannot be charged with criminal, civil or unprofessional conduct for: 1) failing to fulfill a request (except it is unprofessional to not refer the patients care), 2) filling a request, 3) failing to act on a revocation unless they have actual knowledge.

Finally, the bill states that requesting the medication does not constitute attempted suicide and taking the medication does not constitute suicide.

This is a truly fascinating piece of proposed legislation, and one that I presume will either die quietly without a vote, or be subjected to a great amount of protest and scrutiny. Any time someone’s life or death is involved, politics becomes emotionally (and often religiously) charged, even though the reasons for outrage aren’t always clear cut. In addition, the bill was proposed by democratic senators in a republican controlled legislature, with a conservative governor. The likelihood of success seems small.

Aside from the politics, the bill creates many hoops that someone would need to jump through (which makes sense), and creates several potential timing issues that would limit a patient from doing everything correctly in order to be prescribed the medication. Other problems I see with the bill being utilized is the requirement that the patient be competent. I’m not a medical professional, but in the vast majority of cases where someone has a terminal illness, the person is not competent, which would automatically remove the ability to do this. Obviously, an incompetent person should not be making important decisions, but I do think an extension to this bill would involve added terminology to Health Care Powers of Attorney or Declaration to Physicians that would invoke this right. I would also think that most people in this situation, even if competent, would be suffering from some form of depression, which would apparently prevent their wishes from being granted. Due to the nature of the bill, I do think the writers did a pretty good job of trying to cover all of their bases. The decision to take one’s life is not something that should necessarily be easily or quickly done. Whether the bill accomplishes what it seeks to, or if it becomes law, is something we will have to wait to see.