January 20, 2012  

Treasury Issues Final Regulations Under 104(a)(2)
Physical Injury Damages Exclusion  

Internal Revenue Code Section 104(a)(2) is the foundation upon which structured settlements, which provide guaranteed future periodic payments on an income tax-free basis for personal, physical injury claimants, is built.

On January 20, 2012, Treasury issued its FINAL regulations under the code.

And while they didn’t actually use the words I’ve chosen for this newsletter’s headline above, their persistent refusal to act on the request reinforces the structured settlement industry’s long-standing consensus opinion on the topic:

Single Claimant Qualified Settlement Funds (QSFs) conflict
with the spirit of the original intent of the code.

What is a Qualified Settlement Fund? 

In non-legal terms, IRC Section 468B  is a section of the tax code that permits defendants to settle a claim when (typically) there are multiple defendants and/or claimants settling for an agreed sum but specific allocations are yet to be determined and/or defendant(s) need(s) to pay part of their obligation at some point in the future.

It addresses, among other things, timing of deductions.

When proper steps are followed (court order required, etc.), it permits the defendant to settle the case, pay the money owed (or give it time to arrange funds necessary to meet its obligation) and be done with the file.  A 468B Trust, or Qualified Settlement Fund (QSF), “stands in” for the settling defendant(s) and permits closure and certainty for the defendant.

Once this step is completed, the competing interests for the settlement dollars agreed to can proceed unencumbered by any defense intervention.

A QSF can be an excellent settlement tool for certain classes of cases.  Mass torts involving a large number of plaintiffs can be perfect candidates for QSFs.  In these instances, allocations can be arranged, plaintiffs have time to explore their post-settlement financial options, attorneys can be paid, liens can be resolved, etc. all in the time needed to accomplish these ends.

An exceptionally small minority of structured settlement practitioners believe the Code applies to single claimant transactions and asked, on more than one occasion, the Internal Revenue Service for clarity on the important doctrines of economic performance and constructive receipt.

The IRS has repeatedly chosen to pass on the request as they did again here citing that it was beyond the scope of the regulations.

Where We Stand

Our firm does NOT support the use of structured settlements flowing from a single claimant QSF for a variety of reasons.  Among them:

• Economic Benefit Most likely Triggered:  While this may be debated by some in our industry, we don’t care to expose our clients to unnecessary risk;  
• Limited Structured Settlement Options:  The vast majority of life markets offering structured settlements steadfastly refuse to accept a structured settlement funded by a single claimant QSF.  This seriously limits a plaintiff’s choice;
• We Don’t Push the Envelope with a Client’s Future:  We prefer to stick with the tried and true.  Properly crafted structured settlements, arranged in cooperation with all settling parties and their representatives, will normally achieve the best outcome;
• Time Value of Money:  Everything else being equal, funding a structured settlement annuity earlier rather than later puts more money in the client’s pocket;
• It’s Unnecessary:  Implementation of a QSF requires several court approval processes and usually involves trust management fees and other costs which can erode the plaintiff’s settlement.  All can be accomplished more easily and more cost effectively without the QSF.

Also 

Lest readers think we missed other important matters address in the regulations, there are two other areas upon which the IRS opined:

1. Treasury DID NOT ADOPT commentators’ requests to, among other things, define certain personal injuries as “physical” which would unequivocally qualify them for income tax-free treatment.  On this particular point, we are disappointed because it could have possibly clarified the tax-treatment of damages paid to exonerated prisoners among other classes of claimants; and,
2. Treasury DID NOT ADOPT one commentator’s request that elimination of the “tort like” test that has long been required in order for damages to flow tax-free to the plaintiff, would create confusion.  However, in this instance, not adopting was viewed as a plus since it broadens the scope of cases which may be eligible for special tax treatment.  The impact of this decision and its impact on the structured settlements remains to be seen.

If you have any questions on any of this or any other topic involving structured settlements, please don’t hesitate to call.  This was a long newsletter but we felt it was important enough to share with those who trust us to keep them abreast of important developments that impact their practices.

Thank you for the continued opportunity to be of service and best wishes for continued Struccess!

Seems people have a penchant for going “Back to the Future.”

“Old” ideas get a fresh coat of paint and are recycled for the next generation who embrace them as their own.

Just think of all the successful TV shows that focus on a particular historical period in time but are produced a decade or more after the actual era:

• The Roy Rogers Show
• The Untouchables
• Happy Days
• That 70’s Show
• Mad Men

Whether drawn by nostalgia or simply a re-evaluation of something that once was taken for granted, our gravitation toward these and similar shows teaches us much about our values.

Not unlike the the young worker in post-Great Recession America when it comes to retirement security as it turns out.

According to Charles Wallace, writing for Daily Finance in his article “Why Young Workers Want a Good Old-Fashioned Pension,” a recent Towers Watson survey revealed that young workers value certainty more than was previously believed.

” . . . the percentage of young workers who cited their pension
plan as a reason for staying with their current employer
jumped from 28% two years ago to 43% now.”

Charles Wallace,
Daily Finance

Pensions, once a staple in corporate America that lured so many young people to a particular employer were shunned in recent years as employees sought self-directed riches in the pension-replacement retirement vehicle, the 401(k), which came to dominate the employer retirement landscape.

But the statistics on defined contribution plans like 401(k)s reveal that they have been an overall poor substitute for pensions. The average 401(k) balance is only about $60,000 according to the Center for Economic Policy and Research.

In addition, according to the Employee Benefit Research Institute (EBRI), the share of employees in a traditional defined benefit pension plan has fallen from 62% in 1979 to just 7% in 2009.

The Towers Watson survey suggests this trend may have bottomed out and may soon be on the rise again.

The world seems to have become far less certain these past few years. It’s little wonder then that people are again longing for some good old-fashioned security.

Speaking of which, we can help!

In addition to our core business of providing structured settlement products and services to a broad spectrum of clients across the country, our firm regularly assists clients looking for other types of highly secure, guaranteed cash flows. We can help you with:

• 401(k) and IRA conversions to annuities:
• “Pensionizing” your nest egg;
• Structuring Attorney Fees;
• Structuring Sales of Appreciated Assets;
• Structuring Realtor and Business Broker Commissions;
• Annuitizing Savings;
• Structuring Celebrity Endorsements

For additional information on all we offer relative to retirement security beyond structured settlements, please check out some of our archived blogs and newsletters on these topics.

Wishing you continued success, thank you for the opportunity to be of service. Please call anytime we can help.

Ernst & Young Analysis:  “Longevity Risk” Increasing

Finn Financial Group’s October, 2009 newsletter, Live Longer – Buy Annuities, featured research from a smattering of sources emphasizing the value and importance of annuities to one’s overall financial health.

As part of our commitment to helping clients achieve lifetime financial stability, we wanted to pass along some additional information to help you plan for your future and the futures of those whose lives you touch.

Americans for Secure Retirement asked Ernst & Young LLP to analyze the retirement vulnerability – the chance of outliving one’s financial assets – of Middle-Income Americans. First published in July of 2008, Retirement vulnerability of new retirees: The likelihood of outliving their assets, was last updated in 2009.

The study’s findings are consistent with others that emphasize the meaningful role annuities can play in addressing one of the greatest financial risks Americans face: Living too long!

Without additional guaranteed lifetime income streams,
such as income provided by an annuity,
middle-income Americans are at high risk of outliving
their financial assets and living their final years in poverty.

Ernst & Young LLP
for Americans for Secure Retirement

As you read, understand the “Middle-Income” net is a wide one that catches most of our readers – even those with substantial net worth – who can all benefit from having more “longevity insurance.”

To determine the Retirement Readiness for your state and to learn more about the retirement crisis, visit Americans for Secure Retirement. Also, the Finn Financial Group Facebook Page regularly features other helpful articles and links on this subject and MORE so be sure to check back there often.

While this edition of our newsletter focuses on retirement planning, we would be remiss if we failed to point out that those anticipating personal injury settlements have perhaps even greater cause for concern and would do well to educate themselves on the longevity risk all of us face as we age.

So call on us! We’re here to help. Whether you’re looking for structured settlements, structured attorney fees, Structured Sales, 401(k) and Pension Rollovers or simply want to purchase an annuity with savings, we can help you make the decision that’s right for YOU!

“With a friend at hand you will see the light
If your friends are there then everything’s all right”

                                            – Elton John, Bernie Taupin –

Way back in the dark ages of communication, prior to 2004, people kept in touch in all sorts of ways that seem almost quaint by today’s standards.

They wrote letters, made phone calls, even sent emails.

But as you might have noticed, much of what we grew up thinking we knew about keeping in touch has changed. In case you have been in a cave these past few years, much of the change has been driven by this little guy:

In 2004, Facebook was launched. To say it has changed the way people keep in touch is more than a slight understatement. As the automobile did to the horse and buggy before it, iPhones, texting and social media seem poised to replace many of the more traditional ways of keeping in touch.

And for a traditional guy like me who once said of the Internet, “This thing’s a joke! It’ll never work,” I’ve decided to not take the same chance with this particular technological advance.

Thus, I’m writing to make sure I let you know about our newest method of keeping our clients informed. Not surprisingly, it’s called:

The Finn Financial Group Facebook Page

While we will still maintain our current e-newsletter to keep you abreast of topics of interest in your personal and professional lives, you will find our Facebook posts to be more succinct, yet more wide ranging, enabling you to focus easily on those topics of particular interest to you.

So please take a moment to visit our Facebook page and, to ensure you receive the regular updates, let us know you “Like” us by clicking the “Like” button on our firm’s home page. And please let us know if you have a page also that we may reciprocate!

I hope you like our Facebook page as much as we like providing you with valuable content you’ll find interesting and helpful. I look forward to your feedback since we exist only to serve our customers.

“Make Your Money Last a Lifetime.”

That’s the title of a December 1, 2010 article by personal finance expert Jane Bryant Quinn in her most recent AARP Bulletin column “Financially Speaking.”

On a personal and professional level, I’m always drawn to articles about retirement planning in hopes of gleaning some new nugget of wisdom I can use for myself and our clients. But, frankly, I’m usually disappointed.

After all, how many times do we need to read about the basics of saving more, spending less, diversifying investments and cutting up credit cards? If it was only that easy, right?

But the last few paragraphs of this particular article caught my eye because the author describes the Income Floor Strategy as one of three popular methods of creating a lifelong stream of income.

According to Ms. Quinn, the Income Floor Strategy allows you to:

” . . . provide for your basic income needs by buying an annuity with lifetime payments that start at the date you expect to retire.”

She goes on to identify a 2010 study by Gallant Distribution Consulting Research which:

” . . . found that more than half of financial planners now prefer the bucket (another method she describes in the article) or income approach.”

Since I was unable to turn up a copy of the study she referenced after a cursory search of the Internet I cannot speak to any methodology used or even its authenticity; however, this conclusion tracks with a number of other studies we’ve written about in the past.

NOTE: For further reading, you may also like some of our archived newsletter posts:

• Live Longer . . . Buy Annuities
• Too Old for Financial Security?
• Annuities Are The New Black

One thing that cannot be denied: People crave financial security!

Our firm was founded with a commitment to helping people achieve long-term financial stability in their lives. We’re proud that the structured settlements and related specialty annuity products and services we offer have played a vital role in helping translate that goal into a reality for many.

Please call anytime we can help YOU secure YOUR future! Wishing you the happiest of holidays and best wishes for a prosperous year ahead.

IRS Confirms: Wrongfully Imprisoned Exonerees Can Receive Tax-Free Structured Settlements

Affirming what’s generally been accepted as true for many wrongfully convicted individuals upon earning their freedom, the Internal Revenue Service published a Written Determination this past Friday (Number: 201045023) that removes any ambiguity surrounding the tax-treatment of compensation exonerees receive on account of personal, physical injuries suffered while incarcerated.

Click HERE to view IRS Memorandum 201045023

In its analysis, the Service noted:

“Compensatory damages for physical injuries and physical sickness (including damages received for economic losses flowing from the physical injury or physical sickness) that an individual receives from a state for wrongful conviction and incarceration are excluded from gross income under § 104(a)(2).”

Punitive damages and interest, however, are NOT excluded from gross income and are thus taxable. This position is consistent with the most recent history of this particular section of the tax code.

According to the Innocence Project, there have been 261 post-conviction DNA exonerations in the United States. And that number is expected to grow.

I have personally had the honor of helping secure, via structured settlements, the financial futures of several men who spent more than a decade in prison for crimes they did not commit. This welcome memorandum from the IRS helps advance the cause of justice by ensuring the system will not mistreat these victims a second time.

For additional information on the topic of wrongful convictions, please visit the websites of these innocence-based organizations we proudly support:

The Innocence Institute of Point Park University
Pittsburgh, PA
Bill Moushey, Director

Innocence Matters
Torrance, CA
Deirdre O’Connor, Executive Director

The Finn Financial Group remains committed to helping those who have been wrongfully imprisoned. We welcome the opportunity to partner with attorneys who are working to achieve justice for those affected. Please call anytime we can help you help them.

For more than 20 years, Kathryn Arnold has been involved in the entertainment industry. Her professional experience has run the gamut from production and development to financing and fund-raising on everything from major motion pictures and television to the Los Angeles Olympic Organizing Committee. Several productions she’s been involved with have gone on to win awards at respected Film Festivals around the globe.

“EBA,” she jokes referring to her wide-ranging experience. “Everything but acting!”

With such an in-depth understanding of the interworkings of Hollywood, it was only a matter of time of time before she became sought out as an expert witness and consultant for entertainment-related litigation and similar matters.

Kathryn provides litigation support and expert witness testimony on a host of relevant subjects in the entertainment world. She counts a number of high profile entertainment law firms as her clients.

But until recently, she had never heard about structured settlements. As one who now routinely helps clients quantify economic damages, she immediately saw the advantages. Kathryn and I recently chatted about structured settlements and she couldn’t agree more that the entertainment community has not yet embraced the concept nearly as much as it could. Or should.

“The entertainment field is a highly volatile industry filled with boom and bust stories. And the stakes can be quite high. One year, you’re hot and make a decent living. The next year, and possibly for the rest of your life, you’re just trying to get by,” she explains about the grim realities of Hollywood for many. “Structured settlements can help even things out for a settling plaintiff.”

Here’s a link to her recent article she wrote on her website that introduces the concept of structured settlement to her followers:

Click HERE to read theentertainmentexpert.com’s blog.

At the Finn Financial Group, we welcome any inquiries you have on cases involving entertainment-related disputes. Whether it’s a copyright infringement case, wrongful termination or similar tort, structured settlements can likely help!

Little Known Trivia: While Kathryn Arnold may never be able to lay claim to any acting experience, such cannot be said of yours truly. In a former life, I worked as an amateur and professional actor for stage, screen, print and film. With over 25 stage productions to my credit and very brief stints on popular soap operas including “The Young and The Restless,” (don’t blink or you’d have missed me!), the acting bug has long passed. The experience does, however, give me some insight into “the bizz” which I can apply when helping entertainment professionals make sound choices about their settlement options.

Safety of Principal + Modest Return = The New Normal

Fresh on the heels of last week’s newsletter which featured the insights of Laura Tarbox, one of the nation’s most respected and honored Certified Financial Planners and principal of the wealth management firm The Tarbox Group in Newport Beach (CA), I thought it helpful to share with you another article from the April, 2009 edition of Financial Advisor magazine that suggests other CFPs around the country recognize the value of fixed annuities as well.

In his article “Steady Eddy Annuity Bets,” author Eric Rassmussen identifies a number of CFPs who have come full circle in their views of the annuities they once shunned. Among the comments and observations of the author and the financial planners interviewed:

• According to Beacon Research, sales of fixed annuities increased 60% over 2008;
• ” . . . annuities have become the new black as people try to keep their kitties safe;”
• People are “no longer seeking outsized returns” but instead “have gotten religion and decided that a certain righteous austerity is in order – safety of principal with modest return;”
• One financial planner has increased clients’ positions in fixed annuities and then uses the income streams to dollar-cost average back into the market (NOTE: This is an excellent strategy to employ with a structured settlement BTW!);
• One planner believes fixed annuities help clients achieve their number one goal: To not lose money!

While this particular article also discusses indexed annuities, a product our firm has yet to embrace for a variety of reasons, the comments specific to fixed annuities are ones we enthusiastically agree with. Since most of our clients are making decisions about funds stemming from the settlement of a personal, physical or nonphysical injury claim, safety and security are of prime importance. They cannot risk losing money.

Other noteworthy statistics about the market in this article that highlight how quickly fortunes can change. And how hard it can be to recover from the loss:

FACT: In 1930, the DJIA declined 51% (sounds a lot like 2008-2009 doesn’t it?). It didn’t rebound to its previous high until 1954 (24 years);

FACT: In 2000, the NASDAQ dropped from about 5,100 to 1,750 in a year’s time. Today it’s in the 2,400s and many believe it may never eclipse 5,100 for generations, if ever.

The long and the short of it is this: Great potential reward is not possible in the market without great risk. A careful analysis of risk tolerance is essential in designing any financial plan, including those using proceeds from a personal injury settlement. The Finn Financial Group is eager to assist those for whom safety and long term financial security are of utmost importance.

CLHIGA Limits for Structured Settlements Increased to $250,000

In a move long overdue in the eyes of many, Gov. Arnold Schwarzenegger signed Senate Bill No. 1408 into California Law last weekend. The bill was sent to the Secretary of State on Monday, September 27, 2010.

This is welcome news for recipients of structured settlement benefits and those contemplating annuity purchases!

The move, an effort by the legislature to modernize existing insurance law to more closely align with the National Association of Insurance Commissioners (NAIC) Model Law, was introduced last February and has been moving through the legislative process since then without a lot of fanfare and with overwhelming support of elected officials from both parties.

Among the highlights, this bill:

• Increases the coverage limit for annuities and structured settlements from $100,000 to $250,000;
• Clarifies and extends the coverage of structured settlements for California residents, even if the owner of the structured settlement annuity is resident of another state.

In its background summary, the bill’s authors observed that:

“In the current economic environment, the relative importance of annuities for those who own them has increased in importance.”

“Annuities are the only financial instruments available today, other than Social Security and pensions, that offer a guaranteed lifetime stream of income during retirement. Along with giving retirees the peace of mind that comes from knowing that they will not outlive their assets, annuities provide another important benefit, a way to increase current income.”

“This ability of annuities to provide a guaranteed stream of income makes their strength, and reliability, highly important in this period when many other investments have suffered serious declines in value and other setbacks.”

A copy of the Legislative Counsel’s Digest can be found HERE.

This move by California is similar to efforts by other states to bring their Guarantee Funds up to date.

The Finn Financial Group, whose mission is to help people achieve financial stability in their lives, is pleased to be able to report this positive development to you. The life insurers we represent average 119 years in business and we believe that’s a pretty good track record. But just to give people added comfort, we view this move by the California legislature as good for consumers and commend its authors and sponsors for their efforts.

A Conversation with: Laura Tarbox, CFP
Top American Financial Planner Discusses Her Views on Structured Settlements and Fixed Annuities

For more than 30 years, Laura Tarbox has distinguished herself as the kind of financial planner many other financial planners aspire to be like. Regularly ranked among the “Best Financial Advisors” in the country by Worth magazine and earning similar plaudits from other respected publications, Laura heads The Tarbox Group, a prominent wealth management firm in Newport Beach, California.

Highly regarded for her client-centric practice which purposely limits the number of clients it services and employing a holistic, personalized team approach to client advising, she and her team of fee-only financial advisors commit themselves to helping their clients achieve optimum financial success.

We sat down with Laura recently to discuss her views on fixed annuities in general and structured settlements in particular.

DAN FINN: Many financial planning professionals fail within just a few years of starting in business. What’s been the key to your tremendous longevity and success?

LAURA TARBOX: From the very start, I made a commitment to focus 100% of my energy on servicing the clients I had, not spending time soliciting clients I didn’t have. This, along with the addition of some highly talented team members who share this focus, has resulted in an amazingly high client retention level.

DAN FINN: I’m assuming your clients run the gamut in terms of risk tolerance. Where do fixed term annuities fit into your practice?

LAURA TARBOX: Besides the obvious situation where a client simply prefers guaranteed lifetime income from a highly secure life insurance company, we serve as trustees for some fairly substantial estates. Some of those clients develop estate plans calling for children, grandchildren, spouses, partners, nieces, nephews, etc. to receive a fixed cash flow each year upon the death of the grantor. In these instances, it’s generally more cost-effective to the client to arrange for the purchase of an annuity to meet this goal. Plus it’s pretty easy! Absent the annuity, we’d need to constantly monitor and manage assets in a smaller sub-account or trust, which can be very inefficient.

DAN FINN: But couldn’t you make more money if you did manage the sub-account?

LAURA TARBOX: Perhaps. But if the annuity is a better choice, then it’s a better choice. It’s all about doing what’s right for the client and helping them accomplish their financial goals.

DAN FINN: This speaks volumes since, as a fee-only financial planner, you might recommend annuities even though you don’t make any money when annuities are purchased?

LAURA TARBOX: That’s correct! We are paid by our clients and ONLY by our clients to provide objective financial advice. When we recommend annuities, it’s because the annuity makes the most sense in that particular situation.

DAN FINN: Switching to Structured Settlement annuities for a moment, what would you say to anyone presented with an opportunity to enter into one of these arrangements?

LAURA TARBOX: Naturally it would depend on the situation and the unique goals of each person but generally speaking, structured settlements are an excellent opportunity for those who qualify. It’s hard to beat guaranteed income that is 100% income tax-free. Especially when coupled with the security of a highly-rated life insurance company the Risk/Reward Ratio is very attractive.

DAN FINN: We hear this less frequently since the “Great Recession” began but historically people might reject a structured settlement offer because they viewed themselves as being “very sophisticated about money” and felt they “could do better” on their own. What’s your reaction to comments like these?

LAURA TARBOX: Regardless of one’s level of financial sophistication, it’s extremely rare to find anyone who can’t benefit from some form of guaranteed income. Even if for no other reason than diversification. At our firm, we manage accounts for some very high net worth clients who view themselves as extremely sophisticated about money. Yet most would jump at the chance to receive guaranteed tax-free cash flow with tax equivalent yields on par with historical stock market yields. For people in the highest possible tax bracket every year, tax-free income becomes even more desirable. These clients likely wouldn’t structure all of their recovery. But for the secure portion of their portfolio, a structured settlement would seem a very sensible choice for most.

DAN FINN: So, depending on the client and the circumstances, you think structured settlements make sense?

LAURA TARBOX: They definitely make sense! I don’t think anybody wants to suffer a personal, physical injury just to qualify for tax-free income but for those who have been injured and are offered a structured settlement, they should think long and hard before passing on the opportunity.

DAN FINN: You’ve been an outspoken critic of variable annuities throughout your career. Do you still feel the same way?

LAURA TARBOX: I do. The merging of investment vehicles with an insurance product seems, in theory, like a sensible idea. But when you analyze most variable annuities, it becomes apparent there are better ways to accomplish the goals they purport to help clients achieve.

DAN FINN: How so?

LAURA TARBOX: Well, for starters they’re loaded with fees that seem to never end. Fees on fees on more fees! But to what end? That’s the question no one has ever been able to answer to my satisfaction. If one needs insurance, they should buy insurance. If one chooses to invest in the market, they should invest in the market.

DAN FINN: You’re not alone in your thinking among your peers on this subject apparently.

LAURA TARBOX: No. In fact, SmartMoney.com just published an article on this very subject entitled “What’s Wrong With Variable Annuities” that reinforces my position.

DAN FINN: So you’re not anti-annuity per se? Just anti-annuity that tries to be something more than a traditional annuity?

LAURA TARBOX: That’s right. Unfortunately, the bias against variable annuities has clouded people’s judgment about the fixed annuities we’re talking about.

DAN FINN: Any final thoughts?

LAURA TARBOX: Fixed annuities are an appropriate choice for many situations. Fixed Structured Settlement annuities are particularly attractive for a whole host of reasons. The tax advantage is good. They’re simple to understand. They’re secure. And because they contain no hidden management fees or expenses, they’re a good deal.

DAN FINN: A good note to end on. Thank you for your time, Laura. Best wishes for continued success!

LAURA TARBOX: Thanks, Dan. It’s been a pleasure.

For More Information:
To learn more about Laura and The Tarbox Group, visit her website at TarboxGroup.com. For additional information or for help with a structured settlement or fixed term annuity, please call to let me know how we can help.