Archive for the ‘legal updates’ Category

White v. Marks

April 19th, 2021 by Charles Rubin

By Jenna G. Rubin This decision involves a strange set of facts under which a purported heir attempted to assert rights as a beneficiary and child of the decedent, even though she was neither the biological child of the decedent nor adopted by him. The decedent’s will specifically provided that the decedent “intentionally made no […]

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No “All Going to Charity” Exception for Chenoweth/Ahmanson Funding Issue

March 21st, 2021 by Charles Rubin

Taxpayers and planners love to use valuation reductions for partial interests in entities as a method for reducing transfer taxes. Such reductions and discounts can be a two-edged sword, however. The Ahmanson and Chenoweth cases point out that when a majority interest in an entity is included in a taxpayer’s gross estate, the valuation discounts will typically be substantially […]

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Cryptocurrency and the IRS – Some Important Updates

March 16th, 2021 by Charles Rubin

Cryptocurrency is treated like any other investment asset for federal income tax purposes and not “money.” Therefore, taxpayers that sell cryptocurrency for a gain incur taxable capital gains for income tax purposes. It is likely that a fair amount of cryptocurrency has been sold for gain by U.S. taxpayers without that being reported – either […]

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FBAR Penalties Survive Death

November 8th, 2020 by Charles Rubin

The IRS may assess penalties for a person’s failure to file a required FBAR. If the person’s failure to file was willful, the IRS can impose a penalty equal to 50% of the account balance or $100,000, whichever is greater. If an individual dies, can the IRS assess and collect an FBAR penalty for failing […]

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A Co-Maker of a Promissory Note Is Not Always Liable to the Co-Signer [Florida]

October 31st, 2020 by Charles Rubin

In an interesting case, two doctors co-signed a promissory note with others of an LLC where they were members, and that was their employer, payable to a bank. They later left the practice, and the LLC sought to collect from them their share of the liability to the bank. An interesting aspect of suretyship law […]

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Recent News

15 May 2023

Jenna Rubin presents at ABA National Symposium

On May 12, 2023, Jenna Rubin presented at the 35th Annual Real Property Trust and Estate Law Section of the American Bar Association’s National CLE Conference in Washington DC. She took part in a panel discussion on “Black Tie Optional: The Eroding Formalities to Creating a Valid Will.”

24 Feb 2022

Article by Charles and Jenna Rubin featured on cover of Florida Bar Journal

An article written by Charles Rubin and Jenna Rubin is featured on the cover of this month’s Florida Bar Journal and can be found here.

27 Dec 2021

Jenna Rubin appointed to ACTEC Fiduciary Litigation Committee

Gutter Chaves is pleased to announce that Jenna G. Rubin has been appointed to the Fiduciary Litigation Committee of the American College of Trust and Estate Counsel (ACTEC) for the 2022-2023 year.

14 Dec 2021

FBAR Case Reversed – Nonwillful Filing Penalties Based on Number of Accounts Not Reported

Back in 2000, I wrote here about a case where a taxpayer did not report multiple foreign accounts on an FBAR. The question for the court was whether the $10,000 penalty for a nonwillful failure to file meant $10,000 per return not filed, or $10,000 per account not reported on the return. For . . .

22 Nov 2021

Of Spousal Gifts and the Substance Over Form Doctrine

U.S. spouses each have a unified credit that allows for substantial gifting to third parties without requiring the payment of gift tax. What happens if one spouse has assets to be gifted away, but that spouse does not have sufficient remaining unified credit exemption to cover the gift and wants to use the exemption of the other spouse?

At times, the spouses can agree to split the gift for gift tax purposes, which treats 1/2 the gift as coming from each spouse. This allows the unified credit of the spouse not making the gift to be used to avoid gift tax on the 1/2 that such spouse is treated as making. However, it can be an imperfect solution if the spouse with the assets does not have enough unified credit to offset his or her 1/2 of the gift.

Oftentimes, the parties may contemplate having the party with the assets transfer them by gift to the other spouse (a tax-free gift under the gift tax marital deduction), and then the receiving spouse makes a gift to the third party applying his or her own unified credit. The question in these circumstances is whether the IRS will respect the transaction and allow the receiving spouse’s unified credit to be applied to the gift to the third party, or whether it would seek to apply the “substance over form” doctrine to treat the gift as coming from the spouse who transferred the assets to the other spouse and does not have enough unified credit to fully cover the gift.

This is not a black and white issue. On one end of the spectrum. . .

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