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The discussion opened with an introduction of Ms. Walsh, highlighting the active role she played in the Uniform Fiduciary Access to Digital Assets Act (UFADAA) as chair of the Uniform Law Commission’s Committee on Fiduciary Powers and Access to Digital Assets. A copy of the final act is included in the materials accompanying the presentation, and is also available on www.unifromlaws.org. Ms. Walsh commented that although the UFADAA proved difficult to draft, there is no doubt about the necessity for such an act. Digital assets are growing exponentially; however, as of the date of the presentation, only nine states have enacted legislation dealing with fiduciary access to digital assets. Ms. Walsh went on to comment that although nine states have enacted this legislation, only Delaware’s legislation is similar to UFADAA. In comparison, Connecticut, Idaho, Indiana, Louisiana, Oklahoma, Rhode Island, Nevada, and Virginia enacted limited legislation. Ms. Walsh also noted that most state probate codes do not mention digital assets, which are difficult to define.
Ms. Walsh went on to provide some background information on the Uniform Law Commission, including that the drafting process involved commissioners, observers, and advisors. Notably, Ms. Walsh provided that observers for the enactment of the UFADAA involved input from third parties in the business of digital assets, including representatives from Google.
Following the format of the printed materials, Ms. Walsh discussed the challenges involved in providing fiduciary access to digital assets. Several challenges were outlined in the discussion, including encryption, which may be more difficult for fiduciaries to circumvent than passwords, and terms of service agreements. However, Ms. Walsh commented that federal laws are the biggest impediment to providing fiduciaries with access to digital assets.
More specifically, the fourth amendment provides a strong expectation of privacy in a person’s home, and although networks accessed are not located in the home, there is still the same expectation of privacy. In response, Congress enacted the Stored Communications Act, which includes an exception allowing public communications providers to voluntarily disclose communications with the lawful consent of the sender, recipient, or intended recipient. Ms. Walsh stated that this exception does not expressly include fiduciaries, although there is evidence that senate may have intended for fiduciaries to be included. A state law or court order for a fiduciary’s request for such information should expressly provide that the fiduciary has lawful consent. Although, legislation enacted in Virginia provides parents of minors post-mortem access to electronic accounts. Ms. Walsh further discussed that the disclosure of non-content information, such as sender information or a subject line, is not prohibited by the SCA.
The presentation then turned to the topic of the need for estate planning documents to address digital assets. Ms. Walsh mentioned the potential for prosecutors to impose criminal liability against fiduciaries accessing digital accounts. In addition to criminal prosecution, civil damages may result. Ms. Walsh provided an example of a disagreement between two business partners that resulted in the aggrieved partner being awarded $450,000 as a result of the other business partner accessing an email account with a previously shared password.
Although terms of service agreements control the account holder and the custodian, Ms. Walsh pointed out that most people do not read these agreements carefully. As an example, Ms. Walsh provided the results of a recent study where several people consented to giving their first-born child in exchange for free Internet under the terms of a service agreement. Although terms of service agreements may prohibit the transfer of content, Section 8 of UFADAA renders boilerplate provisions in terms of service agreements void against public policy. As such, an affirmative election to prohibit a fiduciary from the same authority as the account holder is required. Ms. Walsh also commented that a similar affirmative election must be made for choice of law clauses into a jurisdiction prohibiting access under state law.
As mentioned above, Ms. Walsh expressed that there was some difficulty in defining digital assets. Although the committee began with a laundry list of items for the definition, the definition as drafted is short and allinclusive. However, the definition does not include ownership of the underlying asset.
The discussion continued on with an overview of the provisions of UFADAA. Ms. Walsh began with Section 4, which grants a personal representative access to digital assets unless otherwise prohibited under the terms of service agreement, in a will, or by a court. Section 5 grants a conservator or guardian access after the opportunity for a hearing, and Section 6 provides for agents acting under a Power of Attorney to access digital assets and catalogue of electronic communications. However, Ms. Walsh pointed out that UFADAA requires express consent for an agent to access electronic communications content. Section 6 is noted as a point of contention for many attorneys due to the fact that, similar to gifting, authority to grant access to electronic communications content must be expressly included in the power of attorney, which will require clients to sign an updated power of attorney document.
Following the discussion of the Sections 4 through 6 of UFADAA, Ms. Walsh pointed out that UFADAA confirms the authority of a trustee accessing accounts opened by trustee. Although Ms. Walsh stated that the transfer of title should provide lawful consent, UFADAA distinguishes between electronic communications content and catalogues. In addition, Section 8 of UFADAA specifies the nature, extent and limitation of the fiduciary’s authority over digital assets, omitting any provisions on the mechanics of transferring digital assets to trusts. Ms.
Walsh described that this Section further authorizes fiduciaries to access digital assets on devices.
In addition to providing for access to digital assets, Ms. Walsh pointed out that UFADAA also requires that custodians comply with a request for access within a specified time period. Further, if a custodian complies, then the custodian is immune from liability. Despite the grant of custodian immunity, Ms. Walsh noted that custodians are arguing for indemnity as well.
Ms. Walsh closed the discussion mentioning the enactment of UFADAA in Delaware, and the expected eventual widespread enactment. Further, Ms. Walsh provided that anyone interested in enactment in their state may contact Ben Orzeske at NCCUSL who will assist in enactment, provide a kit and lend support.
Wednesday, January 14 9:00 -9:50 The Devil Is in the Details: Important Tax Administration and Procedural Rules for Estate Planners (Focus Series) M.
Read Moore Who would want to lose a tax matter for a client based on a technicality? This presentation will address important technical rules, from the obvious to the obscure, that frequently come up with estate planning clients with respect to tax returns and tax controversies. Among the topics addressed will be what is a tax return, where, when, and how to file tax returns, amended returns, the gift tax adequate disclosure rules, refund claims, statutes of limitation, and when reliance on the advice of an attorney or accountant is reasonable cause to avoid penalties.
Reporter Michael Sneeringer Esq.
Mr. Moore touched on all of the subjects that have a lot of little details that come up when estate planning practitioners are filing returns with the IRS for their clients.
Mr. Moore described tax procedure as a daily thing: there are many procedural issues that are constantly changing.
Mr. Moore’s outline of 118 pages discusses topics covered in the presentation and many other topics in great detail.
Mr. Moore began with the topic of what the return is and why it is important. He expounded upon the three requirements that explain when a document filed with the IRS is a return… it is a return if it is: (i) filed on the proper form; (ii) provides sufficient information for the IRS to compute the tax owed; and (iii) is signed under penalties of perjury.
Mr. Moore spent a generous amount of time during the beginning of his presentation on the adequate disclosure rules and the gift tax statutes of limitation. He highlighted page 9-32 for the beginning on the discussion of the adequate disclosure rules. His important takeaway point was that the adequate disclosure rules are a “safe harbor.” He highlighted the Brown case in his remarks. The question posed was: was there adequate disclosure and substantively, was there a gift?
Mr. Moore then spent time describing who could sign the return. He went through who could sign income tax returns versus estate tax returns versus gift tax returns. A fact that he noted as quirky is that a client’s agent can file the gift tax return on behalf of the taxpayer, subject to certain conditions enumerated in more detail in his materials.
Mr. Moore highlighted the fact that the estate tax and gift tax are cumulative; estate planning practitioners may have no duty to amend prior returns, but at least need to include the correct amount of exemption remaining.
Mr. Moore then discussed the effects of amending returns. He mentioned how the mechanics work if an amended return is filed timely, as well as if an amended return is filed following the due date. These due dates were in the materials on page 9-9. He also described the mechanics of extensions which are also cited in his materials. Some of the due dates discussed were the date for filing individual income tax returns, trust returns, FBAR and claims for refund. Mr. Moore spent extra time on claims for refund which are highlighted in his materials on page 9-45.
One of the takeaways from Mr. Moore’s presentation was his emphasis on foreign assets and income; estate planning practitioners whose clients have foreign income or foreign assets must be sure to report as there is a six year statute of limitations. He noted that the statute of limitations can be extended if an agreement with the government is made with the taxpayer.
Mr. Moore moved on to discussing filing the return. He went over when the return is deemed filed, including the mailbox rule, use of registered and certified mail, and which private delivery services were approved to deliver returns to the IRS. Mr. Moore noted the Grossman case and postal service processing.
Mr. Moore finished up his presentations by going through the various penalties that taxpayers could be subject to.
He noted page 9-55 of his materials for reference and more information on penalties.
9:50 - 10:40 Lloyd Leva Plaine Distinguished Lecture Series Crafting a 21st Century Estate and Gift Tax David Cay Johnston, Ronald D. Aucutt The estate and gift tax are porous, ineffective and lack intellectual coherence. A rewrite of the code would give the system integrity, encourage strivers, discourage dynasties and strengthen the 2,500-year-old principle of progressive taxation that is fundamental to democracy. The presentation is part of a broader project to devise a tax code for the 21st Century economy drawing on ancient principles of tax that the author teaches at Syracuse University College of Law.
Reporter:Bruce A. Tannahill Esq.
The Lloyd Leva Plaine Distinguished Lecture Series honors and remembers Lloyd Leva Plaine, a well-respected estate planning attorney and frequent presenter at Heckerling. In his introduction, Mr. Aucutt paid homage to Ms.
Plaine. He observed that it is very fitting that these lectures focus on the tax policy issues she loved so much.
Mr. Johnston won a Pulitzer Prize for his coverage of taxes in The New York Times in 2001 and was a finalist three other times. He is in his seventh year at Syracuse University College of Law, teaching the tax, property, and regulatory law of the ancient world.
This session featured a presentation by Mr. Johnston, followed by his responses to questions posed by Mr. Aucutt.
Mr. Aucutt noted that some of his questions may be contrarian to stimulate the discussion that Ms. Plaine would have loved.
Overview Mr. Johnston acknowledged his proposal is a work in progress and requested that the audience send him comments on it. During the discussion with Mr. Aucutt, he stated that the plan needs further thought and development. He sprinkled his presentation with quotations from Plutarch, Edmund Burke, and Teddy Roosevelt, among others.
Mr. Johnston began by observing that “the American transfer tax system is economically, intellectually, and legally incoherent. It double taxes, under taxes, and far too often fails to levy economic gains. It has become so porous that a gift worth $100 million can be passed through a $1.2 million tax-free hole.” He stated that our current tax system was well designed for the 20th century. Our current economy has progressed beyond the 20th century economy while our tax system has not. Our tax system needs to be updated to reflect our 21st century economy.
Mr. Johnston referred back to ancient principles of government and taxation. Those principles are that tax is the foundation of civilization. It is not our master or enemy, it is our servant. Without that foundation, there can be no liberty, no private wealth creation or government that sets rules, defines property rights and protects them. If tax is the foundation of everything we hold dear, he said we should oppose chipping away at its granite base until it turns to sand, making everything built on it unstable.
He traced the theory of progressive taxation back to Athens. It has been supported by people as diverse as Plato, Adam Smith, Karl Marx, John Maynard Keynes, Milton Friedman, and George W. Bush. He said we shouldn't ignore such classic, conservative virtues.
Founders of country wrote at length about what they feared would destroy America. Their focus was on inequality.
Plutarch said imbalance between rich and poor would cause the downfall of a democracy. Several founders feared that if most were wage workers or sharecroppers, wealth owners will convince the wage workers/sharecroppers of voting against their interests.