In this Live recording, Brent chats about the state of the tax bills in Washington, DC, an interesting fiduciary liability case involving foreign accounts, how to plan for an uncertain future, and what gifts volatile markets bring for private wealth transfers.

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[Transcript of Episode]

Good morning. This is the Wealth and Law podcast live. Basically, this is a little bit of an experiment because we haven’t done this before. So you have to forgive me if I have any sort of technical issues here. I’ll do my best.

But the intent is to record some of the podcast episodes that I’ll be doing in the future in a live format like this and then to uh hopefully put those up so you could you don’t have to catch them live so you can listen to them during the day or at your leisure whenever you want as separate episodes for the podcast but hopefully we’ll be able to have a little bit of a mix uh so there’s more ways to engage with and listen to the podcast and so this is this is round one of trying to figure out um some way of doing that and basically the podcast is me so if there’s any sort of technical issue or the sound isn’t right or it doesn’t get posted or something doesn’t happen, it’s all me.

This is how it gets done. And that also means that I have technological limitations. So if these sorts of things don’t work, it’s also on me. So, you have to hopefully forgive me for any issues that pop up. Just give you like the brief agenda here this morning, and then I’ll jump into it. I’m going to talk about current events, such as they are, current events that relate to sort of private wealth and tax and things like that, not all the current events.

We can talk about all the current events at a separate moment over drinks. That would be an appropriate time to do that. Then there’s an interesting case, I think, anyways, an interesting case right now out of the federal district court in Idaho about foreign accounts and particularly about the liability of a fiduciary for a deceased person’s foreign accounts and reporting. And then we’ll talk about some of the market volatility and what that means and some of the things that you could probably do to take advantage of some of the market volatility.

And then we’ll hopefully close out by just, I’ll just give you my thoughts on dealing generally with uncertainty, sort of market uncertainties and legal uncertainties. We know right now, for example, that in Congress, they are working on a spending bill to keep the federal government funded. Of course, this happens just periodically, so it’s not really anything new in every single Congress that goes through this same process. I don’t really think that It’s enormous news. They’re always threatening to not fund the government and then cause a shutdown and whichever party happens to be in power is the one trying to fund the government.

Whichever party is not in power is the one threatening to shut down the government. I am not seeing a whole lot of indication that they are going to shut down the government either because the Democrats don’t have enough votes to do it or because some of the Democrats will actually fall in line to keep funding the government because it might not be such a great idea for Democrats who are opposed to firing federal employees, for example, to then furlough a bunch of federal employees because they can’t agree to fund the coffers of the government to pay those employees to do their jobs.

I just don’t see that really happening. I think the really big ticket Item which has gone very silent in the last week or so is the reconciliation bill that may include both immigration reform and the tax bill. And I say may because there’s been some debate. I’m not a hundred percent certain that in Congress, they, as far as I can tell from the news that I’m reading that they are convinced that you’re going to have both things in one bill.

I know that there’s, there’s been some indication that that’s what they wanted to do, but I don’t know that we’ve gotten a final word on that, but let’s just assume that either of the two is going to be true. Okay.

They’re either going to, do the tax bill or they’re going to do immigration or both. I mean, both of these are going to be very big horse trading events because even members of the Republican Party are going to have things on their wish list that they want that are priorities for them that are maybe not priorities for other members of the Republican Party. And the Republicans have a very, very thin majority.

And so They really are going to have to have everybody in line, which means there probably is going to be a significant amount of negotiating. I’m already seeing the news reports come out of industry groups who are heavily lobbying Congress currently in this reconciliation process to make sure that they get the tax benefits they think they deserve. So all of the big ticket industries in the country, including tech and oil and gas, et cetera, are lobbying. And then I have seen some indication that there’s some negotiating going on as you would expect over like the state and local tax deduction, the SALT deduction.

So I think those things are really gonna dominate the news cycle once we get beyond the funding of the federal government, which again, I expect that’s just gonna happen. They’re gonna fund the federal government. There’s not gonna be a shutdown. I’m just not seeing enough of a collective voice advocating for a shutdown to indicate to me that that’s gonna happen, at least from my experience of watching these things play out. tax bill will be interesting and again the the news on the tax bill and the actual details of the tax bill has gone very very quiet in the last few weeks um I don’t think that means they’re doing nothing I think it just means that they’re not sharing there have been a couple of bills introduced to potentially get rid of the federal estate tax but I’m not I’m not convinced that’s a strong likelihood, although I’ve been wrong about these sorts of things in the past, but it doesn’t seem like there’s a huge appetite for that because of the price tag involved and all of the interests trying to get their share of the pot here. It’s a four and a half trillion dollar pot.

Do they really want to spend it on getting rid of the estate tax, which is going to be several hundreds of billions of dollars when they can take that money and spend it, so to speak, on something else by just extending the Trump tax changes from the Tax Cuts and Jobs Act in twenty seventeen? That feels like low hanging fruit. And then to negotiate on the edges of anything new, we know that it’s a priority for the White House to have things like no tax on tips. So they’re going to have to find room for that. Another priority of the White House, of course, is to have no tax on Social Security.

So they’re going to have to find room in that four and a half trillion for that. And just extending the current Tax Cuts and Jobs Act provisions is very expensive. So It doesn’t seem like there’s a lot of room for them to wiggle such that they would want to spend it on the estate tax with the estate tax exemption so high that it affects very few people. It just feels like a nominal issue, but we’ll see. We’ll see. Maybe they’ll surprise us.

My expectation is that the estate tax is going to be extended at the current levels, index for inflation, of course. And we’ll just sort of carry on with what we’re dealing with now, which is technically set to sunset at the end of this year. But I don’t think it will sunset. Okay. There is a, I think there’s a very interesting… case out of Idaho that it’s not necessarily interesting in its result. The result is what I would expect it to be, really.

But it’s an interesting illustration of some of the perils that both taxpayers and then their family and the administration of their estate can face when they are owners of foreign accounts so if you have a foreign account as most people know that that or foreign accounts in general it can just be it can be more than one that in the aggregate during the year have a balance of more than ten thousand dollars u.s then you have to report all those accounts on a foreign bank account report or FBAR. And then if you meet other thresholds, you may have to file other forms. There’s the form eight, eighty nine, thirty eight, which is the FATCA disclosure. And there can be a whole host of other things, depending on what’s in that account that you have to file every year. And if you fail to file, then you can be penalized both civilly and criminally.

The civil penalties can be quite high. And in some instances, the IRS is very aggressive in going after taxpayers for failing to disclose these accounts properly and timely. In this case, the decedent was in the CIA and of cours...