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Articulos sobre AP

Protecting Assets
Daniel Fisher with Steven Bertoni and Devon Pendleton, 04.22.09, 06:00 PM EDT
Forbes Magazine dated May 11, 2009

The basis on which good repute in any highly organized industrial community ultimately rests is pecuniary strength; and the means of showing pecuniary strength, and so of gaining or retaining a good name, are leisure and a conspicuous consumption of goods. –Thorstein Veblen

The time to safeguard your good name and your goods is before your creditors start circling. “The people that should have gotten vaccinated before [and didn’t] now have the flu,” says Jay Adkisson, a Newport Beach, Calif. lawyer who specializes in asset protection. “Real estate developers, industrialists are trying to find ways to take chips off the table.”

The best ways are the old ways, Adkisson says. Trusts for children are nearly impossible to crack, as long as the assets weren’t derived from criminal conduct and the trust was established long enough before the grantor went broke (there’s no specified time; what’s key is that you set up the trust before incurring the liabilities you’re trying to avoid). If you’re nice to your kids, they might even lend you some of the money you gave them.

Some states, including Alaska, Nevada and Delaware, allow “self-settled” trusts for the benefit of the person who sets them up (read: you), instead of for a child or charity. Creditors have four years to challenge such trusts, although a 2005 federal law extended the period to ten years for creditors in a bankruptcy proceeding. Other catches: You have to be a resident of the state in which the trust is set up, and you generally can’t hide behind it to avoid paying alimony, child support or a tort claim that was pending when the money went in.

Florida and Texas also have generous homestead exemptions that let debtors keep their mansions even after bankruptcy, as long as they moved in at least 40 months before filing. This deadline may have snared Ruth Madoff, who declared her Palm Beach mansion her primary residence after Bernie’s fraud came to light. She put up no fight when the feds seized it in April.

Offshore trusts used to be popular but are becoming a waste of legal fees. The Internal Revenue Service has tightened its scrutiny of foreign banks at the same time that traditional havens like Switzerland are either relaxing their secrecy rules or being ratted out by whistle-blowers. Unless you want to add the risk of a felony charge to your other problems, you must report (on TD F 90-22.1) the dollar amount of foreign accounts if the total exceeds $10,000 at any point during the year. If somebody has a foreign account now, “I can assure you it’s to hide money,” says Edward M. Robbins, a white-collar defense lawyer in Los Angeles with 30 clients who were outed by ubs. “They commit two felonies a year to do it, and I get paid to unravel it.” Judges have jailed debtors in order to persuade them to cough up information about their foreign trusts.

If your worry is creditors, not tax collectors, buy a flat in London and go there if things get too hot. “As long as it’s not criminal, you won’t get extradited,” says Adkisson. The expense of attaching foreign assets will encourage most creditors to negotiate.

But don’t renounce your U.S. citizenship. A 2008 law snags most citizens and permanent residents worth more than $2 million by requiring them to pay an “exit tax”–at 40%, the highest marginal rate–on paper gains on assets above $600,000 when they leave. Set foot on U.S. soil for 30-plus days a year after that and Uncle Sam considers you a citizen again for tax purposes

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