Real asset protection: True safeguard must have economic substance

April 1, 2010

Too many physicians over the past decade have sought cookie-cutter asset protection plans to give them some piece of mind that if they ever endure an outrageous malpractice case, they won’t lose everything.

Too many physicians over the past decade have sought cookie-cutter asset protection plans to give them some piece of mind that if they ever endure an outrageous malpractice case, they won’t lose everything.

While we admire these doctors’ commitment to proactively managing their risk, we have to remind doctors we speak with that all “asset protection plans” are not created equal. In fact, many will not even work if they ever are relied upon.

Why? Essentially, it is because of a basic tenet of asset protection: Any asset protection plan that will truly stand up if challenged must have economic substance. Taken a step further, superior asset protection planning would involve tools that are primarily used by people for non-asset protection purposes. In this way, the best asset protection plan involves tools typically not thought of as asset protection tools. In other words, the best asset protection is not asset protection at all.

Just like tax planning

While few physicians realize this crucial fact of asset protection planning, all of the leading attorneys in the field know it quite well. In fact, we are not alone, as tax attorneys and CPAs know this adage is also true when it comes to tax planning.

Simply put, when determining whether or not a particular transaction with significant tax benefits was an illegitimate tax shelter or not, the IRS or tax court typically uses a simple test: “Would a taxpayer have done this deal if not for the tax benefit?” In other words, they are asking whether or not this transaction was done to save taxes, or if it had another economic purpose. If there was such a purpose, the transaction stands. If it was only tax-motivated, it fails.

This same test applies when evaluating whether or not a creditor protection tactic will be upheld if ever challenged down the road. Here, the question is, “Did this transaction have an economic purpose, or was it simply done for asset protection purposes?” If you are using tools that millions of Americans use daily for non-asset protection purposes, you can convincingly answer, “Yes.”

Asset protection as a sliding scale

In the three books either of this column’s authors has written for doctors, we use a sliding-scale approach to evaluate asset protection techniques, with the lowest (-5) being an asset that is completely vulnerable and the highest (+5) being an asset that cannot be taken by a creditor, even in bankruptcy. This is important to understand here because every (+5) asset protection technique, whether in a personal or practice implementation, has significant economic benefits to the client, irrespective of asset protection.

Asset protection that isn’t

Which asset protection tools are not asset protection tools? Let’s examine a few of them briefly:

A. Qualified retirement plans. The term “qualified” retirement plan means that the retirement plan complies with certain Department of Labor and Internal Revenue Service rules. You might know such plans by their specific type, including pension plans, profit sharing plans, money purchase plans, 401(k)s or 403(b)s. Properly structured plans offer a variety of real economic benefits: you can fully deduct contributions to these plans, and funds within them grow tax deferred. In fact, this is likely why most medical practices sponsor such a plan.

What you may not know is that under federal bankruptcy law - and under nearly every state law - these plans are protected against lawsuits and creditor claims, enjoying (+5) protection status. IRAs are also (+5) protected in bankruptcy (with some limits), although their state protection depends on the state. For both, the overwhelming majority of Americans who use qualified plans and IRAs are not using them for asset protection purposes. This, then, is a great example of attractive economic tools that just happen to have tremendous asset protection benefits as well.

B. “Hybrid” Qualified/Nonqualified retirement plans. Nonqualified plans are relatively unknown to physicians, despite the fact that they are right in the tax code. These types of plans should be very attractive to physicians, as they can be terrific hedges against future tax increases and they can be used in addition to qualified plans. Once again, hybrid plans are generally not used for asset protection purposes, but they may have such benefits, depending on how they are structured.

C. Captive insurance companies (CICs). CICs are used by many of the Fortune 1000 for a host of strategic reasons. In this technique, owners of a medical practice actually create their own properly licensed insurance company in order to insure various types of risks of the practice. These can be economic risks (that reimbursements drop), business risks (that electronic medical records are destroyed), litigation risks (coverage for defense of harassment claims or HCFA audits) and even medical malpractice (keeping some risk in the captive and reinsuring the rest). If it is created and maintained properly, the CIC is like any insurance company: it is established in a real economic arrangement with its insureds. Additionally, CICs can enjoy tremendous creditor protection (+4/+5) - although they are almost never created for this purpose.

D. Cash value life insurance (CVLI). CVLI policies are purchased by millions of Americans each year for their tax benefits (generally, tax-free growth, and they pay income tax free to heirs). People also use these policies for family protection and for estate planning purposes. Nonetheless, in many states, the cash value can enjoy the top (+5) protections. In this way, a physician can purchase a product that is widely recognized as part of a financial plan and enjoy top-level protections.

Too many physicians who have implemented generic asset protection plans may be disappointed if they are ever attacked, as these plans may be ignored by courts that see no economic substance. On the other hand, those who implement techniques such as those described above may be pleased - not only will their protection be upheld, but they may build significant wealth along the way.