Since December 2002, the IRS’ regulations allows an individual or couple to transfer their home into a disregarded entity (asset protection) while still be able sell their home and utilize the capital gain exclusion ($250,000 for an individual or $500,000 for a couple) and retain all other income tax benefits.
A person’s home is often the largest, if not one of the largest, single asset they own. A common concern or fear, if you are in the business world or an owner of rental property is an unexpected creditor having the ability to levy on your home. Although this fear can be great, the act of protecting the of the home by transferring it to an irrevocable trust that is located in another country or state is often inappropriate due to the lost of control over it.
Despite purchasing insurance to protect you either in the business world or the ownership of rental property, it is not uncommon, when a lawsuit begins to have an insurance company inform you, it will be happy to defend you but under a “reservation of rights”. What this generally means is the insurance company is claiming that there is an exclusion under their policy that allows them to not have to pay the claim. Simple examples for rental property exclusions are molds, asbestos, lead or intentional acts to harm someone.
I have been involved in many situations, in my practice, helping my clients find “coverage counsel” to make sure that the insurance company will provide them the insurance coverage they think they purchased. This has happen to my clients that were contractors, professional or involving accidents that did not happen on the rental property.
If a residence is held by a trust, a taxpayer is treated as the owner and the seller of the residence during the period that he or she is treated as the owner of the trust or the portion of the trust that includes the residence under Code Sec. 671 through Code Sec. 679. Thus, for example, a taxpayer who is the owner of a revocable trust may claim the home sale exclusion if he (through the trust) owned the home and used it as a principal residence for at least two of the five years preceding the sale (and otherwise satisfies the Code Sec. 121 requirements).
A similar rule applies if a residence is owned by an eligible entity (within the meaning of Reg. § 301.7701-3(a), namely a business entity that’s not specifically classified as a corporation in the regs) that has a single owner and is disregarded for federal tax purposes as an entity separate from its owner under Reg. § 301.7701-3. This includes a sole proprietorship and a single-member LLC. Here, the owner of the eligible entity is treated as owning the residence for purposes of satisfying the 2-year ownership requirement of Code Sec. 121, and the sale by the entity will be treated as if made by the owner. (Reg. § 1.121-1(c)(3)(ii))
Fraudulent Conveyance. The planning that I have recommended to my clients will afford them a certain degree of asset protection from creditors that they have not dealt with. The most obvious type of creditor that they would not be able to avoid would be the mortgage holder or any that has a lien on their family residence. This type of a creditor is often referred to as a “ inside creditor”.
The “outside creditor” is a creditor that they have not dealt with concerning their family residence and yet this creditor wants to attach or be able to sell the family residence to satisfy the creditor’s judgment. An example of an outside creditor a person who was injured in a car accident where a client was the driver and the injured persons receive an award either beyond the amount of the insurance policy and/or the insurance company failed to provide coverage he thought he had.
If a person is currently in litigation with an “outside creditor” or has reason to know that an “outside creditor” will be soon filing a lawsuit, the transfer of a family residence into a single member LLC (SMLLC) will not be successful against that particular creditor. The fraudulent conveyance laws in both state and federal courts will set a side this transfer. Therefore, this type of planning is only successful from an asset protection standpoint if there is currently no known “outside creditors” at the time you use this particular type of transfer.
The other obvious concern is what happens when the “outside creditor” is successful in court and has a judgment to levy on the home. How much protection does this really protect me? The outside creditor would more than likely try and have a “charging order” on the membership interest of a SMLLC. If he is successful in obtaining the charging order on the membership interest only and not the home, the “outside creditor” would have an economic interest but not the right to vote the membership interest.
In the litigation world this is what most good creditors attorneys claim that asset protection is all about. It is simply another layer of added protection. In other words, everyone is at a stalemate and this often leads the parties to have to work out a settlement that probably neither one will be happy with. However, it did accomplish what most attorneys advise their clients is the probable outcome when creating another layer installation to arrive at a settlement that you can live with.
Conclusion. The opportunity of protecting your home and still having the income tax benefits is a wonderful gift from the IRS. The are costs that need to be considered such as paying the annual LLC fee of $800 and California income tax return that need to be reviewed before making the final decision to move forward or not.