Tag Archives: federal

Immigration

We Need Immigration Reform, Not Immigration Hype

SB 1070. It has been a few months since it passed, making Arizona the focus of so much national attention. As I have listened to Arizona, the entire country, and even some international Latina singers debate the issue, I have found ironies on both sides.

First, on the pro-SB 1070 side: Republicans (especially Arizona Republicans in state government) hate federal mandates being imposed on states. It’s a fundamental belief in conservative circles that we should have fewer unfunded mandates and more local control. Republican-sponsored SB 1070 flies in the face of these principles. Here’s one way to look at it. The Arizona Legislature was so frustrated that the federal government wasn’t stepping up and dealing with illegal immigration that it passed a law MANDATING that local jurisdictions had to do it. The state didn’t offer cities and counties any money to accomplish this, nor did the state step forward and offer its own resources, such as the National Guard. Local governing bodies were not just told that they could enforce immigration laws but also that they had to, or they could be sued. By any definition, this is an unfunded mandate that supersedes local control. Chalk it up to the ends justifying the means.

On the anti-SB 1070 side, I was surprised at how out of touch opponents were with the average Arizonan’s view on the issue. Polls started reporting that 70 percent of Arizonans supported the new law even in the face of national criticism and boycotts. Most opponents to SB 1070 chalked this up to bad polling and inaccurate data. Everybody must have gotten it wrong though, because those numbers have pretty much held up for the last few months. In fact, a number of other states report similar support, and we can expect more states passing this type of legislation. People are frustrated.

I have to admit, I wasn’t too fond of SB 1070 when it passed. But one morning while watching CNN, President Obama helped me to become frustrated. In light of his opposition to Arizona’s new law and the understanding that the federal government was negligent in dealing with the issue, he claimed that U.S. immigration policy was not a pressing current national priority. This was just after SB 1070 passed! What I heard him saying was, “Ask not what your country can do for you. And don’t ask what you can do for your country either!”

Then there is the question of why the federal government has never protested when other local jurisdictions in America have declared themselves “safe-harbor” areas for illegal immigrants. It seems they are establishing national immigration policy in the opposite direction, and yet, the federal government has failed to protest these policies or voice any public opposition.

I don’t believe that SB 1070 is really worth the national hype it has received. The courts have struck down the portion that local jurisdictions opposed most. If the courts hadn’t, would this really have been the solution to the illegal immigration problem in our country? It seems we need to establish a stronger, more practical border policy before much of any immigration policy reform is going to help.

Estate Tax Laws Are In Flux - AZ Business Magazine Sept/Oct 2010

Estate Tax Laws Are In Flux — Start Strategizing Now

Let’s begin with a reasonably well-founded observation: The official repeal this year of estate taxes has seriously flawed most testamentary plans and created mild chaos for estate practitioners. Traditionally, estate planning attorneys have employed “word formula” dispositions phrased in terms of tax concepts for their drafted wills and trusts. For example, for people with larger estates, dispositions are divided into two categories:

One portion equal to the unused estate tax exemption often called the unified credit or the credit shelter trust for the benefit of a surviving spouse and descendents.

The other portion is allocated to equal the “optimum” marital deduction amount, usually expressed as the minimum amount necessary to reduce a person’s federal estate tax to zero.

In other cases, testators will cause a portion of their estate to equal the unused generation skipping tax (GST) exemption to pass in favor of or for the benefit of grandchildren. The word formula is applied because, historically, it has resulted in the optimal division or disposition of a decedent’s property.

Unfortunately, none of the above has any meaning if the concepts used to define them are no longer represented by federal statute. Accordingly, decedents of 2010 and their beneficiaries are confronted with impossible circumstances. An unintended outcome is the possible disinheritance of a surviving spouse or children.

Another interesting issue relates to existing generation-skipping trusts that are normally subject to GST on taxable distributions to “skip persons.” In
2010, none of the taxable distributions or “taxable terminations” will be subject to the tax. Possibly, the optimum outcome has arrived for GST trusts.

Within the current environment, grandparents can literally transfer fortunes to grandchildren and be subject to a one-time 35 percent gift tax.

Caution is appropriate, however, because it is impossible to predict what Congress will do. From a constitutional perspective, retroactive legislation remains a risk. If Congress retroactively reinstated estate and GST tax law, which Sen. Max Baucus (D-Mont.) has formally pledged to accomplish, then the above identified actions would be problematic.

Reinstatement of the estate tax system, notwithstanding a valid constitutional argument, would represent a symbol of poor legislation, in this author’s opinion. Here’s why: Executors and trustees of estates created in 2010, as fiduciaries, must act on current law and distribute inherited assets in a timely fashion. Would it not be legally awkward for Congress to force executors and trustees to rescind those distributions and formally adjust all 2010 estate tax returns?

So given the testamentary chaos resulting from the political process, what can we expect? Many practitioners believe legislation will occur that will reinstate the 45 percent tax rate for estate and GST applications with a $3.5 million unified exemption for each spouse. But, if Congress fails to act this year, then beginning in 2011, we will face the imposition of a 55 percent tax rate and a $1 million unified exemption. Given the current federal budget crisis, inaction will produce higher tax revenue.

This uncertain environment may provide compelling reasons for proactive folks to act. Seek qualified help with your own estate planning issues now — not later.

Philanthropic causes are becoming more meaningful to us
Everyone has been affected in some way by the deep recession. As a result, nonprofit service demand is up, but contributions are down. However, more people are contributing their time and efforts to help others. Due to a strong philanthropic lobby and the generous nature of American values, Congress has not tinkered with key charitable planning techniques. Many creative planning options exist that can help one accomplish their nonprofit objectives and enjoy enormous tax and estate benefits.

Source: Coyote Financial

Trends in Estate Planning:
More families are seeking qualified help with their financial lives

Interestingly, the revolution in technology and communication has not changed the desire or need for a personal advisory (coaching) relationship with someone deemed competent and trustworthy. Technology may help you find the right person, but no substitute is yet available for a caring, personal relationship.

Opportunities in Estate Planning

  • A grantor retained annuity trust (GRAT) is an estate planning technique that allows one to utilize the currently low federal discount rate to transfer assets to the next generation in exchange for a note. All appreciation, above the interest payment, inures in favor of the next generation. Short-term, zeroed out GRATs have been popular, resulting in significant estate tax savings for many wealthy families. The House Ways and Means Committee has passed a bill designed to eliminate short-term GRATs and zeroed out techniques. President Obama has proposed (endorsed) similar legislation that would require a 10-year term and no zero out gifting for GRATs. The opportunity for short-term, zeroed out GRATs could disappear in the next several months.
  • Congress has pending legislation to limit fractional discounts for lack of control and marketability applicable to intra-family transfers. Historically, when assets are placed into properly drafted limited liability companies (LLCs) and family limited partnerships (FLPs), discounts on the transfers to children of financial units or limited units, respectively, apply. For the present, case law and court verdicts honor the integrity of fractional discounts. As in the proposed GRAT legislation, the new rules will not apply retroactively and will only take effect coincidental to formal enactment. Keep in mind that the Treasury Department is desperately seeking methods to raise revenue. The opportunity to sell, transfer or gift assets inclusive of a fractional discount, especially among family members, may disappear in the next several months.
  • In 1995, the federal discount rate represented 9.5 percent. Today, the rate ranges between 3.4 percent and 3.6 percent. The discount rate is indirectly associated with the applicable federal rate (AFR), which can be utilized on an “arms-length basis” to make loans to children. For example, the current mid-term intermediate rate equals 2.85 percent, whereas demand-note interest rates are currently less than 1 percent. The opportunity to initiate intra-family personal or business loans at de minimis interest rates could disappear in the next several years.
  • Since generation skipping taxes have been repealed for the 2010 tax year, and the federal gift tax rate has been reduced from 45 percent to 35 percent, the opportunity to transfer/gift assets to grandchildren is economically advantageous, as noted previously. The opportunity to transfer assets to grandchildren without the imposition of estate and generation skipping tax may disappear under new legislative regulations in the next several months.
  • Because of recent market conditions, the valuation of business and real estate assets has potentially decreased. Accordingly, the cost to sell or gift assets to the next generation is lower than it may have been in 2007. The opportunity to transfer assets to family members using low valuations may disappear in the next several years.
  • Source: Coyote Financial

    Arizona Business Magazine Sept/Oct 2010

    working to revive customer trust

    Arizona Banks Work To Revive Consumer Confidence After Market Upheavals

    Bank failures are in the headlines and that has raised questions for Arizona consumers.  As a result, many of the state’s banks have drawn up their own plans of action to keep customers informed and confident.

    “In a period of financial distress and instability, the more banks do to indicate the strength of their portfolios — the fact that they are not tainted by a lot of very risky debt, that the balance sheet does not have a lot of assets that are suspect — the better off they are going to appear,” says Herbert M. Kaufman, professor of finance at the W.P. Cary School of Business at Arizona State University. “It makes some sense for banks that are strong to emphasize that.”

    In addition to other bank failures around the country, federal regulators closed First National Bank of Arizona in July, and Nevada-based Silver State Bank in early September. First National is now owned by Mutual of Omaha, and Silver State offices in Arizona reopened as National Bank of Arizona branches. In late September, federal regulators seized Seattle-based Washington Mutual and struck a deal to sell the savings and loan’s operations to J.P. Morgan Chase & Co. WaMu and Chase have branches in Arizona.

    Consumer confidence in the country’s financial system has weakened, but Capitol Bancorp has not seen a strong response to Arizona bank failures, says John S. Lewis, the company’s president of bank performance. Capitol Bancorp has 10 community banks in Glendale, Mesa, Phoenix, Scottsdale, Tucson and Yuma.

    “There is an underlying concern out there, but we’ve not seen any panic,” says Lewis, who is located in Phoenix.

    Concerning the tumultuous first three weeks of September, Wells Fargo Bank’s Gerrit van Huisstede says some customers went to branches with questions about financial industry news.

    “The recent news and developments have sparked considerable interest and concern from our customers. Some have asked about their investments, others about FDIC insurance and the safety of their deposits,” says Huisstede, regional president for Wells Fargo’s Desert Mountain Region encompassing Arizona, New Mexico and Nevada. “We’re working with each customer to provide the information that meets their individual needs.”

    Banks have options to provide as much federal deposit insurance as possible, including the Certificate of Deposit Account Registry Service operated by Promontory Interfinancial Network in Arlington, Va. CDARS disperses deposits at participating banks into different individual CDs of up to $100,000 each, up to a maximum covered amount of $50 million.

    Capitol Bancorp is educating its line employees on FDIC insurance and the status of their individual banks.

    “The worst thing bank employees can do when asked if a customer’s deposits are insured is say, ‘I don’t know,’ ” Lewis says.

    Wells Fargo builds confidence by “really getting to know our customers, then providing them with the right advice and financial products,” Huisstede says. The bank is reaching out to customers to tell them “they are working with one of the best capitalized large U.S. bank holding companies in the country.”

    Education and information are the key to consumer confidence, says Tanya Wheeless, president and chief executive officer of the Arizona Bankers Association.

    “Most of the community bankers are being proactive with their customers,” she adds. “Some send letters to customers providing information. For others, maybe it’s statement stuffers providing information. And they’re being available to answer questions. We’ve also seen all our banks put time into training their employees to answer customer questions.”

    Meanwhile, Kaufman at ASU emphasizes that American banks are safe.

    “The banking system is, right now, one of the stronger positions in the economy, especially the larger banks,” he says. “If anything, consumers are feeling positive about banks as compared to other alternatives.”

    As it has responded to crisis situations in the nation’s financial system, the federal government has taken on a role of lender of last resort, and that should be comforting to bank customers, says Marshall Vest, an economist at the University of Arizona’s Eller College of Management.

    “Not only does it insure your accounts at banks, the government also has stepped in to provide a backstop for money market mutual funds and it has taken extraordinary and unprecedented measures to fight off the freezing of credit markets,” Vest says. “That offers a great deal of comfort, knowing that the Federal Reserve and the Treasury are there doing their jobs. If they were doing nothing, then we would all be scrambling to pull money out of the bank. There’s no need for that.”

    Tanya Wheeler is president and CEO of the Arizona Bankers Association.

    Arizona Bankers Association Continues To Advocate For The Banking Industry

    One thing that hasn’t changed at the Arizona Bankers Association since it was founded 105 years ago is its dedication as an advocate for the banking industry. The cornerstone of the association has always been advocacy of bank-related issues with elected officials, state legislators, members of Congress and regulators at the state and federal levels.

    “It’s the most significant service we offer,” says Tanya Wheeless, president and CEO of the ABA. “We serve as a clearinghouse when those decision-makers are considering new legislation or regulations. We can weigh in on behalf of the industry on anything that might have an impact on banking. And we do it with a single voice. That’s why we started and that’s what we still believe in.”

    The association’s Grassroots Advocacy Resource Center focuses on communicating with state and federal lawmakers and arranging meetings between bankers and local legislators and in Washington with members of the Arizona congressional delegation.

    “When we need to communicate on a bill,” Wheeless says, “we provide our members with contact information. Nearly 1,000 letters from Arizona bankers were sent to our congressional delegation opposing a farm credit bill earlier this year, and we were successful. It didn’t pass.”

    But the association doesn’t overdo its use of the grassroots program.

    “We only pull the trigger when we need to, when it’s really an important issue,” she says.

    Wheeless characterizes banking as being different from other businesses.

    “They compete viciously in the market, but they all offer basically the same products and services,” she says. “Where banks set themselves apart is in customer service and convenience. Even though they are great competitors, they recognize that when it comes to laws and regulations, we’re all in it together. A law that’s bad for one bank is bad for the bank next door.”

    By the same token, a good law helps all banks. For example, the Arizona Legislature passed a bill this year that requires loan officers to be licensed and to undergo continuing education. Sponsored by Sen. Jay Tibshraeny, a Chandler Republican, the measure was supported by the Bankers Association and the Arizona Mortgage Brokers Association.

    “It passed in the final hours,” Wheeless says. “Mortgage brokers were largely unregulated. They had to have a license, but little could be done to revoke a license and communicate problems to others — like don’t hire this person. This law provides that they have the same oversight and training that banks have to provide. There was a time when you had people doing mortgages in Starbucks. They had passed a test, and that was all they knew about the mortgage industry.”

    The bill was a good way to provide some uniformity in education and licensing requirements, regardless of who the employer is, Wheeless says.

    In collaboration with the governor’s office this year, the association produced 50,000 cards containing resource information for people feeling financial pressures, Wheeless says. Printed in English and Spanish, the cards were distributed through grocery stores, nonprofits and social service agencies.

    Proxies

    The SEC Catches Up On New Technology In Proxy Solicitations

    A quick tutorial: Proxies are the means by which public shareholders vote. The Securities Exchange Act of 1934 governs the solicitation of those proxies. The act and the regulations adopted by the Securities and Exchange Commission under the act are designed to ensure a fair process with adequate disclosure to shareholders so they may make an informed voting decision in a timely manner.

    In the past year, the SEC has adopted significant rules intended to simplify, clarify and modernize proxy solicitations by use of the Internet.

    In July 2007, the SEC adopted amendments that modernize the proxy rules by requiring issuers and other soliciting persons to follow the “notice and access” model for proxy materials. Soliciting persons are now required to post a complete set of their proxy materials on an Internet site and furnish notice to shareholders of their electronic availability. The Internet site must be a site other than the EDGAR (Electronic Data Gathering, Analysis and Retrieval system) maintained by the SEC. The site must be publicly accessible, free of charge and maintain user confidentiality. In addition, the materials posted must be in a format convenient for printing and for reading online. Companies must provide paper or e-mail copies, as specified by the shareholder, within three business days of a shareholder’s request.

    Notice to shareholders can be provided in one of two ways: the “notice-only” option, which is simply notice of electronic availability; or the “full-set delivery” option, which is a full set of paper proxy materials along with a notice of Internet availability. Under the “notice only” option, a notice must be sent at least 40 calendar days before the date that votes are counted. Under the “full-set delivery” option, notice need not be made separate and the 40-day period is not applicable, so the notice can be incorporated directly into the proxy materials.

    Under both options, the notice must include certain specific information and must be filed with the SEC. The options are not mutually exclusive, so one option can be used to send notice to a particular class of shareholders, while the other option can be used to send notice to others. Intermediaries and other soliciting persons must also follow the “notice and access” model, with some exceptions. Specifically, intermediaries must tailor notice to beneficial owners, and soliciting persons other than the issuer need not solicit every shareholder. Most large public companies were required to follow the “notice and access” model for proxy materials as of Jan. 1, 2008. All others, including registered investment companies and soliciting persons other than an issuer, can voluntarily comply at any time, but must fully comply by Jan. 1, 2009.

    Effective Feb. 25 of this year, the SEC adopted further amendments that encourage use of the Internet in the proxy solicitation process by facilitating the use of electronic shareholder forums. These amendments are intended to remove some of the legal ambiguity resulting from the use of electronic shareholder forums by clarifying that participation in an electronic shareholder forum is exempt from most of the proxy rules if specific conditions are met. The new rules also establish that shareholders, companies and other parties that establish, maintain or operate an electronic forum will not be liable under the federal securities laws for any statement or information provided by another person participating in the forum.

    Specifically, any participant in an electronic shareholder forum is exempt from the proxy rules if the communication is made more than 60 days before the announced date of the company’s annual or special shareholder meeting, or if the meeting date was announced less than 60 days before it was scheduled to occur, within two days of the announcement, provided that the communicating party does not solicit proxy authority while relying on the exemption. Solicitations that fall outside these relevant dates continue to be subject to the proxy rules.

    Further, if a solicitation was made within the relevant dates but remains electronically accessible thereafter, the solicitation could then become subject to the proxy rules. In this regard, the SEC suggests that forum operators give posting users a means of deleting their postings or having their postings “go dark” as of the applicable 60 day or two day cut off.

    While the amendments exempt solicitations from the proxy rules, they do not exempt posting persons from liability for the content of their postings under traditional liability theories, including anti-fraud provisions that may require a participant to identify himself and which prohibit misstatements and omissions of material facts. Further, the amendments extend liability protection only to shareholders, companies and third parties who create, operate or maintain an electronic shareholder forum on behalf of a shareholder or company. These persons receive protection against liability for statements made or information provided by participants in the forum, so long as the forum complies with federal securities laws, relevant state law and the company’s charter and bylaws.

    Karen C. McConnell is partner-in-charge of the mergers and acquisitions/private equity group; Adrienne W. Wilhoit is a partner; and Brooke T. Mickelson is an associate at Ballard Spahr Andrews & Ingersoll, www.ballardspahr.com.