Swept Away? How to Avoid an Asset Protection “Perfect Storm”!

When it comes to asset protection, a lot can go right…but a lot can also go wrong. And often, what goes the most drastically wrong involves getting tripped up by details that can seem insignificant, even trivial — until they trigger the painful reality of being blown off course. Fortunately, these storms don’t have to sink you; they can be dealt with safely. But sometimes avoidance tactics seem to be more trouble than they’re worth, and you can wonder if all that detail is really necessary. Shortcuts are great if you know what they can (and can’t) do for you in the long run. But not knowing can get you in trouble — expensive trouble.

Simplify, Simplify, Simplify (Maybe)!

It’s only human nature to try to make things as simple as possible. And, in many cases, simplifying a process is the best thing you can do for yourself.  Why spend the time and effort working through Steps 1 thru 4 to reach Step 5 if an alternative approach allows you skip those intermittent steps and still arrive at Step 5 none the worse for wear?  There’s no reason not to take the shortcut, right?

Maybe. But the problem comes in when Steps 2 through 4 cover contingencies and provisions that may not be readily apparent to an untrained eye.  Specifically, the case I’m talking about today involves the difference in perspective between your CPA and your asset protection attorney.

Susan’s Situation

One of my clients, Susan, had me set up multiple single member Limited Liability Companies to protect a collection of rental properties for her.  In the process of doing this, a separate corporation was set up to manage these LLCs, with their secondary purposes of buying, rehabbing, and reselling the property. With the structure complete, and the rental properties deeded to appropriate LLCs, Susan’s corporation became a manager: its role was to manage all the holdings of the various LLCs. This included paying bills, collecting rents, and all those other myriad details.

Part of this structure included setting up a bank account for each LLC. That way, each could deposit rental income and pay bills associated with the properties held therein. One of these fees, in turn, is a management fee paid to the corporation for its monthly service, an amount determined in separate property management agreements with each LLC.

It Was Plenty Simple…

Under the structure, then, each LLC collected its own rent, paid its own bills, and distributed profits to Susan as sole owner. All my client then had to do was deposit monies into appropriate accounts and write a few checks each month.

….Or So I Thought.

For reasons I’m still not clear about, this simple structure became a hassle for Susan. When it did, her CPA stepped in and convinced her to close the individual LLC accounts. He told her that running everything through the management corporation would simplify and streamline the process. She could allocate her taxes through QuickBooks, merely by making ledger entries that indicated which LLC made income or sustained loss. She could run her business out of just one checkbook!

Susan was thrilled. She’d cut right through those pesky Steps 2 through 4, and her life was much simpler. And the system worked, for three good years…

Until someone sued Susan’s corporation.

Susan fought the lawsuit, but she lost, and a judgment was entered against her corporation. But, still, she thought — no problem. She could simply dissolve the corporation and walk away; after all, her assets were all held in separate LLCs, so her properties were protected from corporation debt. Right?

Unfortunately, Susan was wrong.

The plaintiff, confronted with her proposed action, sought to attach the assets of each LLC — and was successful.

“Why Didn’t You Protect Me?”

Understandably, Susan was upset by all this, and she came to me demanding to know why the plan I had created for her hadn’t protected her assets. This resulted in one of those difficult conversations, the kind we as asset protection pros hate to have: the one where you tell a client, as tactfully as possible, that your plan would have protected her, had she stuck to it. But she hadn’t.

That “running her business through one checkbook” became the “loophole” whereby her LLCs were no longer regarded as separate entities anymore. That, in fact, is why the court ruled the way it did: it cited that by failing to have separate bank accounts for each LLC, she had failed to treat them as separate businesses; the assets all became part of her corporation and were no longer “untouchable.”

Don’t Try This At Home! (Or Anywhere Else!)

The lesson learned? For asset protection, each of your businesses must be able to stand on its own. Don’t let a CPA or other professional convince you that you don’t have to bother with separate accounts, that you can sidestep important details, and still reach the same end. From a tax standpoint, the CPA might well be one hundred percent right; however, in terms of asset protection, he’s not. Trying to take “shortcuts” in this area can result in your “shorting out” your own plan…as it did for Susan.

Fortunately, you can avoid being swamped by an unexpected legal storm — but even the best CPA or tax specialist may not know about all the “life preservers” you’ll need to save yourself. That’s why it pays to consult professionals who deal with asset protection regulations every day. Call us, and we’ll gladly take you through all the steps you need to be sure…not sorry!

 

2 comments On Swept Away? How to Avoid an Asset Protection “Perfect Storm”!

  • In your example, Susan had a bank account for each LLC. Was each LLC a disregarded entity? If so, it does not require to get an EIN from the IRS. So how does each LLC able to open a bank account if it doesn’t have an EIN? If they do get an EIN from the IRS, then should each LLC file a tax return? Please clarify. Thanks

    • Correct, a disregarded entity does not need an EIN but if you want to open a bank account you will need to obtain one. The IRS issues EIN #s for disregarded LLCs. We obtain several thousand every year for our clients.

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