.jpg)
529 and 530 exemptions
charsetndows-1252
Thanks for getting back to me with your thoughts, analysis (and ramblings).
This is planning. It looks like grandpa (donor) ought to set up his own separate 529 for grandkid (bennie), before dad (Debtor) files Chapter 7.
The existing 529 (Dad is fiduciary) was funded by contributions that are either excluded or not fraudulent transfers per your analyses.
Otherwise, there may be risk of the worst case scenario where grandpa funds the existing 529, and dad's trustee and creditors benefit, not the prospective college student/barista....
Jason
Jason Wallach
jwallach@gladstonemichel.com
On Dec 15, 2011, at 4:42 PM, Patrick T. Green wrote:
>
> I now mostly agree with Mark Jesse. 541 (b)(5) & (b)(6) are typical of the bad drafting of BAPCPA. I think they can be read in tandem with 548 only because they dont otherwise make any sense. The most reasonable way to read them (which may just be another way to say what Mark is saying) is that they limit 548 in its application to 529 plans and Educ IRAs. Thus only the dollar amounts listed are to be considered fraudulent transfers.
>
>
>
> The issue then becomes who is the debtor? I have usually run into debtors who have set up 529s for their children. As such, (b)(5) & (b)(6) apply to their contributions. Sometimes, a grandparent will put money into the accounts set up by the parents for the grandchildren. What is clear to me now is that (b)(5) & (b)(6) apply to the donor.
>
>
>
> But this leaves another issue. Under the IRC, the money transferred to a 529 plan (and I presume for a 530 IRA, but I have not read that section of the IRC) is a completed gift for tax purposes, but presumably it also a completed gift for other purposes, such as BK. So it belongs to the bennie, but may be taken back from the bennie by a trustee in BK if donated by a debtor in BK. Because is it a completed gift, I presume that it would be property of the BK estate if the bennie filed. (But because the bennie did not set it up, it would not be unlikely that a bennie may not know of the plan or honestly not think of it when doing their BK paperwork. E.g., 21 year old bennie cant figure out what to do with his life, drifts along without going to school, but runs up cc debt and gets car repossessed because Starbucks doesnt pay that well. In the meanwhile for tax reasons and because of their hope that sonny will someday go to school, mom and pop are pouring money into the 529 account.) But what happens if donors file BK, then bennie files BK. Can trustee in first BK claw it back from second BK estate or is it there for the benefit of the creditors in the second BK? Enquiring minds want to know!
>
>
>
> But enough of my ramblings. Jason, in your facts, is the debtor the bennie under the account or the account holder? In other words, did the debtor set up 529 for his kid and then grandpa contributed, or did debtor>
>
>
> Pat
>
>
>
> Patrick T. Green
>
> Attorney at Law
>
> 1010 E. Union St. Suite 206
>
> Pasadena, CA 91106
>
> Tel: 626-449-8433
>
> Fax: 626-449-0565
>
> Email: pat@fitzgreenlaw.com
>
>
>
>
>
>
>
Mark T. Jessee
> Sent: Thursday, December 15, 2011 12:51 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] 529 and 530 exemptions
>
>
>
> 529 and 530 accounts belong to the beneficiary, not the contributor. Monies withdrawn, not used for statutorily defined allowed education expenses are taxable to the beneficiary. Someone, be it a parent or grandparent is the fiduciary on the account managing it for the beneficiary. I think Section 541 of the banrkuptcy code should be read in tandem with Section 548 and it is aimed at limiting the debtor from transferring money to these accounts prepetition. The bankruptcy code can claw back assets tranferred away by a debtor, but it cannot sieze assets from a child or grandchild of the debtor that never belonged to the debtor in the first place. If grandpa funded all the money into the 529 or 530 account during the last two years and grandpa is the custodian of the account for the benefit of grandchild, how could father's bankruptcy estate have any interest in the 529 or 530 account? If mom and dad contributed to their child's 529/530 plan and grandpa, who never contributed anything to the account files a Chapter 7, how could the 529/530 plan possibly be an asset of grandpa's bankruptcy estate? >
>
>
>
> Mark T. Jessee
> Law Offices of Mark T. Jessee
> "A Debt Relief Agency"
> 50 W. Hillcrest Drive, Suite 200
> Thousand Oaks, CA 91360
> (805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
> On Thu, 15 Dec 2011 11:47:23 -0800, Jason Wallach wrote:
>
>
>
> So, Mark, you are saying that the grandparents' contribution within one year is property of the estate?
>
> (then have to consider if the grandparent can set up a separate 529 or education IRA, with a non-debtor trustee).
>
>
>
> Jason Wallach
>
> jwallach@gladstonemichel.com
>
>
>
>
>
>
>
> On Dec 15, 2011, at 11:43 AM, Mark J. Markus wrote:
>
>
>
>
>
>
> To my understanding, these accounts are set up with the debtor parents as trustees for the children as beneficiaries. Thus, it doesn't matter who contributed the money to the account; it's whether the money IN the account is property of the estate, and it is property of the estate unless contributed more than 2 years prepetition, or less than $5,850 within one year prepetition, etc.
>
>
> *************************
> Mark J. Markus
> Law Office of Mark J. Markus
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)509-1460 (fax)
> web: http://www.bklaw.com/
> This Firm is a Qualified Federal Debt Relief Agency (see what this means at http://bklaw.com/bankruptcy-blog/2008/0 ... efinition/)
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
>
>
> On 12/15/2011 11:20 AM, Jason Wallach wrote:
>
> Both 11 USC 541(b)(5) and (6) respectively relating to
> Education IRA's and 529 plans, have the same language, excluding certain "funds"
> but without distinguishing the source.
> Contributions within one year of the filing don't seem to be excluded, or funds
> over $5850 in the second year before filing either.
>
> If Debtor's father contributes to Debtor's son's 529 within the year before
> filing, is there anyone who thinks that is subject to bankruptcy Estate
> administration? It is "funds"....
>
> Jason
>
> CONFIDENTIAL COMMUNICATION
> ATTORNEY-CLIENT PRIVILEGE
>
>
>
>
>
>
>
charsetndows-1252
Thanks for getting back to me with your thoughts, analysis (and ramblings).This is planning. It looks like grandpa (donor) ought to set up his own separate 529 for grandkid (bennie), before dad (Debtor) files Chapter 7.The existing 529 (Dad is fiduciary) was funded by contributions that are either excluded or not fraudulent transfers per your analyses.Otherwise, there may be risk of the worst case scenario where grandpa funds the existing 529, and dad's trustee and creditors benefit, not the prospective college student/barista....Jason
Jason Wallach
The post was migrated from Yahoo.
charsetF-8;
format="flowed"
Pat:
I never grow tired of your ramblings!
"(In the meanwhile for tax reasons and because of their hope that
sonny will someday go to school, mom and pop are pouring money into the
529 account.)" The tax benefits of the 529/530 account is that the
gain on the money in the account is not subject to income tax, so long
as used for allowed eduction purposes. There is no federal income tax
deduction like for a regular IRA. Some states like Kansas provide a
deduction for contributions on state income tax returns for some
contributions. So for any substantive benefit sonny really better go
to college or allowed trade school!
"But what happens if donors file BK, then bennie files BK. Can
trustee in first BK claw it back from second BK estate or is it there
for the benefit of the creditors in the second BK? Enquiring minds
want to know!" I do not think it would it be any different than a pure
548 action brought against a transferee. If the bennie filed a chapter
7 after to donor, I think the automatic stay prevents the trustee in
donor's case from pursuing the contributions to bennie's 529/530 plan.
The donor's estate becomes a creditor of the bennie's estate and
529/530 account can be administered as part of bennie's estate subject
to bennie's asserted exemptions. If the bennie filed a chapter 7 prior
to the donor, and there is some portion of estate that is nonexempt
then that portion would be administered for benefit of the bennie's
creditors. Donor would not be one of those creditors. If donor filed
his own chapter 7 soon enough after bennie's chapter 7 for the donor's
chapter 7 trustee to file a proof of claim based upon a 548 theory incoordination with 541 (b)(5) & (b)(6), donor's estate would then
be able to participate as a creditor of the bennie's estate.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868 (805) 497-5864 (Facsimile)
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On Thu, 15 Dec 2011 16:42:35 -0800, "Patrick T. Green"
wrote:
I now mostly agree with Mark Jesse. 541 (b)(5) & (b)(6) are
typical of the bad drafting of BAPCPA. I think they can be read in
tandem with 548 only because they dont otherwise make any sense. The most reasonable way to read them (which may just be another way to
say what Mark is saying) is that they limit 548 in its application to
529 plans and Educ IRAs. Thus only the dollar amounts listed are to be
considered fraudulent transfers.
The issue then becomes who is the debtor? I have usually run into
debtors who have set up 529s for their children. As such, (b)(5) &
(b)(6) apply to their contributions. Sometimes, a grandparent will put
money into the accounts set up by the parents for the grandchildren.
What is clear to me now is that (b)(5) & (b)(6) apply to the donor.
But this leaves another issue. Under the IRC, the money transferred
to a 529 plan (and I presume for a 530 IRA, but I have not read that
section of the IRC) is a completed gift for tax purposes, but
presumably it also a completed gift for other purposes, such as BK. So
it belongs to the bennie, but may be taken back from the bennie by a
trustee in BK if donated by a debtor in BK. Because is it a completed
gift, I presume that it would be property of the BK estate if the
bennie filed. (But because the bennie did not set it up, it would not
be unlikely that a bennie may not know of the plan or honestly not
think of it when doing their BK paperwork. E.g., 21 year old bennie
cant figure out what to do with his life, drifts along without going
to school, but runs up cc debt and gets car repossessed because
Starbucks doesnt pay that well. In the meanwhile for tax reasonsand because of their hope that sonny will someday go to school, mom and
pop are pouring money into the 529 account.) But what happens if
donors file BK, then bennie files BK. Can trustee in first BK claw it
back from second BK estate or is it there for the benefit of the
creditors in the second BK? Enquiring minds want to know!
But enough of my ramblings. Jason, in your facts, is the debtor the
bennie under the account or the account holder? In other words,
did the debtor set up 529 for his kid and then grandpa contributed, or
did debtors dad set up account with debtor as bennie? I have hadboth situations.
Pat
Patrick T. Green
Attorney at Law
1010 E. Union St. Suite 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
Email: pat@fitzgreenlaw.com
Behalf Of Mark T. Jessee
Sent: Thursday, December 15, 2011 12:51 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] 529 and 530 exemptions
529 and 530 accounts belong to the beneficiary, not the contributor.
Monies withdrawn, not used for statutorily defined allowed education
expenses are taxable to the beneficiary. Someone, be it a parent or
grandparent is the fiduciary on the account managing it for the
beneficiary. I think Section 541 of the banrkuptcy code should be read
in tandem with Section 548 and it is aimed at limiting the debtor from
transferring money to these accounts prepetition. The bankruptcy code
can claw back assets tranferred away by a debtor, but it cannot sieze
assets from a child or grandchild of the debtor that never belonged to
the debtor in the first place. If grandpa funded all the money into
the 529 or 530 account during the last two years and grandpa is the
custodian of the account for the benefit of grandchild, how could
father's bankruptcy estate have any interest in the 529 or 530 account?
If mom and dad contributed to their child's 529/530 plan and
grandpa, who never contributed anything to the account files a Chapter
7, how could the 529/530 plan possibly be an asset of grandpa's
bankruptcy estate?
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868 (805) 497-5864 (Facsimile)
On Thu, 15 Dec 2011 11:47:23 -0800, Jason Wallach wrote:
So, Mark, you are saying that the grandparents' contribution
within one year is property of the estate?
(then have to consider if the grandparent can set up a separate 529
or education IRA, with a non-debtor trustee).
Jason Wallach
jwallach@gladstonemichel.com
On Dec 15, 2011, at 11:43 AM, Mark J. Markus wrote:
To my understanding, these accounts are set up with the debtor
parents as trustees for the children as beneficiaries. Thus, it
doesn't matter who contributed the money to the account; it's whether
the money IN the account is property of the estate, and it is property
of the estate unless contributed more than 2 years prepetition, or less
than $5,850 within one year prepetition, etc.
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at
The post was migrated from Yahoo.
I now mostly agree with Mark Jesse. 541 (b)(5) & (b)(6) are typical of the bad drafting of BAPCPA. I think they can be read in tandem with 548 only because they dont otherwise make any sense. The most reasonable way to read them (which may just be another way to say what Mark is saying) is that they limit 548 in its application to 529 plans and Educ IRAs. Thus only the dollar amounts listed are to be considered fraudulent transfers.
The issue then becomes who is the debtor? I have usually run into debtors who have set up 529s for their children. As such, (b)(5) & (b)(6) apply to their contributions. Sometimes, a grandparent will put money into the accounts set up by the parents for the grandchildren. What is clear to me now is that (b)(5) & (b)(6) apply to the donor.
But this leaves another issue. Under the IRC, the money transferred to a 529 plan (and I presume for a 530 IRA, but I have not read that section of the IRC) is a completed gift for tax purposes, but presumably it also a completed gift for other purposes, such as BK. So it belongs to the bennie, but may be taken back from the bennie by a trustee in BK if donated by a debtor in BK. Because is it a completed gift, I presume that it would be property of the BK estate if the bennie filed. (But because the bennie did not set it up, it would not be unlikely that a bennie may not know of the plan or honestly not think of it when doing their BK paperwork. E.g., 21 year old bennie cant figure out what to do with his life, drifts along without going to school, but runs up cc debt and gets car repossessed because Starbucks doesnt pay that well. In the meanwhile for tax reasons and because of their hope that sonny will someday go to school, mom and pop are pouring money into the 529 account.) But what happens if donors file BK, then bennie files BK. Can trustee in first BK claw it back from second BK estate or is it there for the benefit of the creditors in the second BK? Enquiring minds want to know!
But enough of my ramblings. Jason, in your facts, is the debtor the bennie under the account or the account holder? In other words, did the debtor set up 529 for his kid and then grandpa contributed, or did debtors dad set up account with debtor as bennie? I have had both situations.
Pat
Patrick T. Green
Attorney at Law
1010 E. Union St. Suite 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
Email: pat@fitzgreenlaw.com
The post was migrated from Yahoo.
Mark:
I disagree, but cannot cite chapter and verse as I run out the door for my lunch (or maybe not at all). The accounts have owners and bennies. The situation Jason describes will depend on who the owner of the account is. If GPs set it up and contributed, but son is debtor, then no issue. What I often see is parent puts account in their name and then GPs contribute. I think it is a completed gift and belongs to the now debtor in BK.
So now, Jason can do the research to tell us who is right and wrong.
If you have any questions or concerns please contact me.
Pat
Patrick T. Green
Attorney at Law
1010 E. Union St. Suite 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
Email: pat@fitzgreenlaw.com
The post was migrated from Yahoo.
charsetF-8;
format="flowed"
529 and 530 accounts belong to the beneficiary, not the contributor.
Monies withdrawn, not used for statutorily defined allowed education
expenses are taxable to the beneficiary. Someone, be it a parent or
grandparent is the fiduciary on the account managing it for the
beneficiary. I think Section 541 of the banrkuptcy code should be read
in tandem with Section 548 and it is aimed at limiting the debtor from
transferring money to these accounts prepetition. The bankruptcy code
can claw back assets tranferred away by a debtor, but it cannot sieze
assets from a child or grandchild of the debtor that never belonged to
the debtor in the first place. If grandpa funded all the money into
the 529 or 530 account during the last two years and grandpa is the
custodian of the account for the benefit of grandchild, how could
father's bankruptcy estate have any interest in the 529 or 530 account?
If mom and dad contributed to their child's 529/530 plan and
grandpa, who never contributed anything to the account files a Chapter
7, how could the 529/530 plan possibly be an asset of grandpa's
bankruptcy estate?
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868 (805) 497-5864 (Facsimile)
On Thu, 15 Dec 2011 11:47:23 -0800, Jason Wallach wrote:
So, Mark, you are saying that the grandparents'
contribution within one year is property of the estate? (then have to
consider if the grandparent can set up a separate 529 or education IRA,
with a non-debtor trustee).
Jason Wallach
jwallach@gladstonemichel.com
On Dec 15, 2011, at 11:43 AM, Mark J. Markus wrote:
To my understanding, these accounts are set up with the debtor parents
as trustees for the children as beneficiaries. Thus, it doesn't matter
who contributed the money to the account; it's whether the money IN the
account is property of the estate, and it is property of the estate
unless contributed more than 2 years prepetition, or less than $5,850
within one year prepetition, etc.
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at
The post was migrated from Yahoo.
Yes. To the best of my understanding the issue is not how the money
got into the account, it's whether what is in there is property of
the estate.
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at
The post was migrated from Yahoo.
charsetndows-1252
So, Mark, you are saying that the grandparents' contribution within one year is property of the estate?
(then have to consider if the grandparent can set up a separate 529 or education IRA, with a non-debtor trustee).
Jason Wallach
jwallach@gladstonemichel.com
On Dec 15, 2011, at 11:43 AM, Mark J. Markus wrote:
> To my understanding, these accounts are set up with the debtor parents as trustees for the children as beneficiaries. Thus, it doesn't matter who contributed the money to the account; it's whether the money IN the account is property of the estate, and it is property of the estate unless contributed more than 2 years prepetition, or less than $5,850 within one year prepetition, etc.
>
> *************************
> Mark J. Markus
> Law Office of Mark J. Markus
> 11684 Ventura Blvd. PMB #403
> Studio City, CA 91604-2652
> (818)509-1173 (818)509-1460 (fax)
> web: http://www.bklaw.com/
> This Firm is a Qualified Federal Debt Relief Agency (see what this means at http://bklaw.com/bankruptcy-blog/2008/0 ... efinition/)
> ________________________________________________
> NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
> IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
>
> On 12/15/2011 11:20 AM, Jason Wallach wrote:
>>
>> Both 11 USC 541(b)(5) and (6) respectively relating to Education IRA's and 529 plans, have the same language, excluding certain "funds" but without distinguishing the source.
>> Contributions within one year of the filing don't seem to be excluded, or funds over $5850 in the second year before filing either.
>>
>> If Debtor's father contributes to Debtor's son's 529 within the year before filing, is there anyone who thinks that is subject to bankruptcy Estate administration? It is "funds"....
>>
>> Jason
>>
>> CONFIDENTIAL COMMUNICATION
>> ATTORNEY-CLIENT PRIVILEGE
>>
>
>
charsetndows-1252
So, Mark, you are saying that the grandparents' contribution within one year is property of the estate?(then have to consider if the grandparent can set up a separate 529 or education IRA, with a non-debtor trustee).
Jason Wallach
The post was migrated from Yahoo.
To my understanding, these accounts are set up with the debtor
parents as trustees for the children as beneficiaries. Thus, it
doesn't matter who contributed the money to the account; it's
whether the money IN the account is property of the estate, and it
is property of the estate unless contributed more than 2 years
prepetition, or less than $5,850 within one year prepetition, etc.
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this
means at
The post was migrated from Yahoo.
charsetndows-1252
I agree with Steve on a conceptual level; but assume that Debtor is named in the 529 documentation, and it is "funds", so a Trustee might make an inquiry. Any experience with this issue or more detailed statutory analysis?
Jason Wallach
jwallach@gladstonemichel.com
On Dec 15, 2011, at 11:21 AM, Steven B. Lever wrote:
>
> In that scenario, how is it related to the Debtor at all? It is not his funds.
>
>
>
> Steve Lever
>
>
>
Jason Wallach
> Sent: Thursday, December 15, 2011 11:21 AM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] 529 and 530 exemptions
>
>
>
>
>
> Both 11 USC 541(b)(5) and (6) respectively relating to Education IRA's and 529 plans, have the same language, excluding certain "funds" but without distinguishing the source.
> Contributions within one year of the filing don't seem to be excluded, or funds over $5850 in the second year before filing either.
>
> If Debtor's father contributes to Debtor's son's 529 within the year before filing, is there anyone who thinks that is subject to bankruptcy Estate administration? It is "funds"....
>
> Jason
>
> CONFIDENTIAL COMMUNICATION
> ATTORNEY-CLIENT PRIVILEGE
>
> --
> JASON WALLACH, ESQ.
> Gladstone Michel Weisberg Willner & Sloane, ALC
> 4551 Glencoe Avenue, Suite 300
> Marina del Rey CA 90292-7925
> Tel: (310) 821-9000
> Direct: (310) 775-8725
> Fax: (310) 775-8775
> Email: jwallach@gladstonemichel.com
> www. gladstonemichel.com
>
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charsetndows-1252
I agree with Steve on a conceptual level; but assume that Debtor is named in the 529 documentation, and it is "funds", so a Trustee might make an inquiry. Any experience with this issue or more detailed statutory analysis?
Jason Wallach
The post was migrated from Yahoo.