DANGER – How Doing A Favor For An Employee Can Put Your Whole Business (and Your Family) at Risk.

September 20th, 2010

You have worked for 20 years to build your business, you have 100 employees and one of them comes to you for help. Joe is a supervisor and one of your better workers. He’s hardworking, always on time – someone you can depend on. He’s gotten into some financial problems and he asks you if you could just take him off payroll and pay him cash (under the table.)

You are a nice person. You want to help. It’s such a little thing. DON’T!

DANGER, WILL ROBINSON! DANGER!

10 years later Joe who is still working off book is injured on the job. It’s a serious injury and he won’t be coming back to work. He gets a lawyer and files a Workers Comp claim, but Joe is off book so he is not on your Worker Comp Insurance.

You could potentially have to pay Joe out of your pocket.  The protections on the amount an employee can recover is gone and juries can be very generous.

But Joe’s an employee, even though you didn’t treat or pay him like one and you paid him quite a bit over 10 years, but you didn’t withhold or pay any payroll taxes on Joe.

The amount not paid to the IRS or the FTB is quite substantial, but that amount actually pales in comparison to the penalties and interest that has built up. That’s a civil matter, but there is potentially a criminal tax fraud issue here as well as the Department of Labor, who is responsible for protecting employees could well get involved and audit your payroll.

When an employee asks for a small favor, be very careful to judge the favor in light of the risk that it may expose you as the business owner too. There are other ways to help out employees.

Death and Taxes; Together Again in 2011?

August 9th, 2010

Death and taxes have for a long time been a matched pair and known as “the only two things in life that are certain,” and they were until 2010 also joined together under the US transfer tax system. Death in general brought more taxes in the form of the estate tax for estates greater than $3,500,000. The pair suffered a trial separation in 2010 as the estate tax was allowed to expire for a year (2010), and their future has been anything but certain for the last 7 months.

Predictions of new estate tax legislation over this last year have proved to be little more than guesses.  As we sit here in August of 2010, nothing has changed really.  We still don’t know if there will be a new law in 2010, if there is, we don’t know what it will look like and we don’t even know when it might be made effective or whether it will be retroactive, but we do know one thing with a fair degree of certaintyWe will have an estate tax in 2011 even if Congress is unable to pass new legislation.

Returning to the Past-(Who Says You Can Never Go Back). If Congress does nothing before January 1, 2011, then the estate tax law we had in 2000 will automatically become the law in 2011. That will mean a 55% tax rate for estates larger than $1,000,000.

Now it is still possible there will be new legislation.  If there is then it will most likely look pretty similar to the law that applied in 2009.  There will almost certainly be a $3,500,000 exemption (possibly as high as $5,000,000) and a 45% tax rate, at least for the smaller estates.  It is possible that as the size of the estate increases that the rate will increase. That would be consistent with the Obama administrations vow to tax the richest of Americans more. For example estates over $10,000,000 might be charged at a 50% or 55% rate.

Politics, Not Governing. How likely is such legislation?  That is an interesting question.  Governing seems to have become entirely political, or maybe politics has replaced governing. So the question is not whether Congress will act so that Americans can plan their lives and business affairs, but whether there is a political advantage for either party in taking up the estate tax issues at this time.  Frankly, estate taxes have become small potatoes in today’s politically charged climate.  In other words there are a lot of bigger fish to fry with jobs creation, the economy, the expiration of the Bush tax cuts (which could include the estate tax), aid to small business, adding to the stimulus, the implementation of the health care legislation, not to mention immigration reform.

If I had to guess (and it would certainly be a guess), I would say we are not going to see estate tax legislation passed this year, at least not before the November elections, unless it gets pulled into the attempt to extend the Bush tax cuts for another couple of years.

Lame Duck. There is one additional interesting possibility. At this time it seems quite probable that there will be a change in control in one or both houses of Congress. That could mean there will be an interesting lame duck session after the November elections and estate tax legislation might be pushed by the administration while it still has a majority in both houses, that assumes of course that the majority can come together and act in a short session before the end of the year Holidays.

California Has One of the Worst Climates in the Country – Do You Have a Good Umbrella

July 27th, 2010

Not the weather but the business climate.  California is a great place to live and enjoy the outdoors, but it turns out it is a difficult climate within which to run a business.

California ranks 47 out of 50 in the risk of litigation, one of the worst states in the nation. (OC Register, Jan Norman) (Ron Trujillo, Los Angeles Business from bizjournals).  To get some idea of the scope of the problem let’s look at some statistics.  Based on numbers gathered in 2004

  • 94 percent of all lawsuits in the world are filed in the United States
  • 70 percent of all the lawyers in the world are in the United States
  • 41,000 lawsuits are filed in this country every day
  • Over 15,000,000 lawsuits are each filed nationwide each year, and
  • California accounts for 28 percent of the national total of lawsuits filed each year, that is around 1,400,000 lawsuits.

It can be argued that the system is broken and that one of the first steps to fixing it is better laws and a more balanced approach and tort reform.  But in California “State legislators have done nothing to fix the problem. . .As a result, California businesses are easy targets for personal injury lawyers, costing jobs in the process.”  (OC Register, Jan Norman).

Business owners can’t afford to ignore the problem or wait for a legislative solution and they don’t have to. Every business owner should consider whether asset protection planning makes sense for their situation. Asset protection planning is about leveling the playing field and building defenses for your business and personal wealth, defenses to protect and secure your future against unscrupulous plaintiffs and meritless lawsuits.  It is not about evading creditors and has nothing to do with evading taxes, but it is about pushing back against the litigation assault businesses face in California.

Security Comes At the Cost of Vigilance If At All – A Business Owner’s Guide

July 23rd, 2010

7:53 am: The first wave of 184 planes commences a vicious attack on the US Fleet in Pearl Harbor.

9:45 am: The attack breaks off.

1 hr 52 min. 2,335 servicemen, 68 civilians lose their lives

________________

8:45 am: A passenger jet crashes into the north tower of the World Trade Center, exploding and tearing a gaping hole.

9:03 am: A second passenger jet crashes into the south tower of the World Trade Center exploding into flames.

10:05 am: The south tower collapses sending out a massive cloud of dust and debris.

10:28 am: The north tower collapses from the top down.

1 hr 20 min. 2,752 civilians lose their lives.

_________________

December 7th, 1941 taught us a hard lesson.  Some 60 years later on September 11th, 2001, the lesson was no less painful but very similar to its predecessor: security comes at the cost of constant vigilance, and sometimes not even then.

Vigilance. It wasn’t that as a nation we were not monitoring possible threats or that our security systems didn’t pick up chatter and other evidence of imminent attacks in either example.  In hindsight it certainly seemed clear that something was wrong but at the time of each event our guard was somewhat down; our vigilance somewhat lax.  Security is hard work; it takes and lot of effort and it takes constant attention, what we might call vigilance.

Complacency. The longer we go without something bad happening, the more complacent we become and the more fantastic or unreal such a possibility seems.  We let our guard down. We become less vigilant. We may go through the motions but even when evidence starts to mount that something might happen, we discount that information. The possibility of a negative event happening seems much less real than our recent experiences and the result is we don’t act or we don’t act quickly enough.

The Difficulty of Remaining Vigilant. As time passes without something happening, we become desensitized; we are no longer vigilant. In fact, the feared event is no less likely to happen today as it was last year. The probability of the risk materializing is not really changed by the passage of time.  If you take out a coin and decide to flip it to see what side it lands on, the likelihood of heads appearing on that flip is 50 percent.  What if you flip the coin 3 times and it turns up tails all 3 times?  Is it more likely that tails will turn up the fourth time?  Actually not; the likelihood of heads turning up remains 50 percent.

While our attitude about what will happen next may change with time, the underlying risk or likelihood of the event happening remains the same.  Time tends to decrease our vigilance not our risk of suffering from an event.

Businesses need to remain vigilant as well, and business risk is no different than other risks. The fact that something did not happen last year does not mean it is any less likely to happen this year.  So how does a business remain vigilant and avoid becoming complacent about risk?

A Business Owner’s Guide to Remaining Vigilant

First, a business needs to understand what risks it faces.  This is not always as obvious as it seems and a careful business risk audit should be initiated.

Second, once risks are identified, each risk should be viewed from a standpoint of how damaging it would be to the business and how hard it would be to overcome and remain viable.  A serious risk with a low probability is often more of a concern than a nominal risk with a high probability. Many of us have never experienced a fire of our home, yet almost all of us carry fire insurance. Why?  While the probability may be low, the consequences could be catastrophic, and the cost of carrying insurance is relatively low.

Third, once a risk is identified and its consequences understood, it is important to take into account how likely the event is to occur. A serious risk that is likely to occur is much more of a concern than a serious risk that is less likely to occur.  An example might be in the construction industry.  Condominium projects built in California have an extremely high incidence of construction defect litigation, when compared to similar single family residential projects.  Adequately addressing the condominium project risk should be a priority for a business that builds both types of projects.

Fourth, take a fresh look at your risk landscape on a periodic basis. A once a year review (at a minimum) is a good habit to get into.