Your father, at 87, should have given up his license and stopped driving a few years ago. So while you were sad to learn that he’d gotten into a car accident, you weren’t surprised. What did surprise you and your mom was that their auto insurance limits of $50,000 were not nearly enough to pay for the damage. Now your mom and dad are faced with losing their home. Is there anything they can do? Not safely. Once the accident has occurred, it’s too late to increase insurance limits and its too late to protect assets. “Fradulent Transfer” law is the federal law that protects creditors from debtors giving away their assets when the creditor comes to get paid.
But what about you? Your teenaged son is driving your car and you know he’s inexperienced. He hasn’t been in an accident, but some of his friends have and you suspect he drives too fast. What can you do? A lot. When you plan before a disaster occurs, you can legally take effective protective steps.
A recent 9th Circuit case, United States v. Townley, has attorneys all over the country commenting. The court held that the asset protection planning the Townley’s did to avoid potential creditors was not legitimate and was a fraudulent transfer. This goes against the general principal that you can protect against potential claims.
However, if we look closer, we see some good reasons for the court’s holding — reasons that families would do well to keep in mind. It is not enough to rely on general principals such as “you can do asset protection to avoid potential creditors.” Always remember the court’s power to rip through planning it considers abusive.
The Townleys claimed, as many before them have also done unsuccessfully, that there is a constitutional prohibition on income tax. Eventually the I.R.S. caught up with them and claimed the assets they had transferred. The Townleys argued that their transfer was to avoid any claims that might arise out of Mr. Townley’s work with troubled boys rather than to defraud the I.R.S. This is a difficult argument to believe since at the time they made the transfer, they were already refusing to pay income taxes.
Mr. & Mrs. Townley failed the straight-face test. But what if you are doing everything a reasonable person would?
Where is the line? Most courts have held that when a claim is “reasonably forseeable” and “in the immediate future,” you cannot shield your assets from it. What is the “immediate future”? Well, a cap of sorts has been provided by the Bankruptcy and Consumer Protection Act of 2005. That act allows creditors to target fraudulent transfers undertaken within the 10 years previous to the bankruptcy.
“Conservative Asset Protection” is not an oxymoron. You can take steps to protect your assets without becoming the target of fraudulent transfer claims. Here are a few keys:
- Increase insurance limits, including umbrella policy limits.
- Do not transfer everything. Make sure that excluding the protected assets, your net worth is still positive.
- “Carve out” access to the protected assets for any current creditors.
- Maintain your asset protection vehicle carefully and respectfully as a separate entity.
- Don’t play games with the I.R.S.