Author: National Law Forum

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How to Prepare for the Upcoming Filing Deadline Under the Corporate Transparency Act (CTA)

The January 1, 2025 filing deadline under the CTA for filing beneficial ownership information reports (BOI reports) for reporting companies formed prior to January 1, 2024 is rapidly approaching.

January 1, 2025 Filing Deadline

The CTA became effective on January 1, 2024. If you have filed a BOI report in the last 11 months, it may have been in connection with BOI reporting requirements for entities formed in 2024, because any reporting company formed on or after January 1, 2024 is required to submit its initial BOI report within 90 days of the filing of formation documents. However, the CTA’s BOI report requirements also apply to entities formed before 2024 (as well as to entities formed in 2025 and beyond), and the deadline for filing BOI reports for these entities is fast approaching. BOI reports for entities formed before 2024 must be filed by January 1, 2025, and as further discussed below, BOI reports for entities formed on or after January 1, 2025 must be filed within 30 days of the filing of formation documents.

Compliance with the Corporate Transparency Act

Below are several initial steps to take to prepare for this upcoming deadline:

1. Exemptions. Assuming your entity was formed by the filing of a document with a secretary of state or any similar office under the law of a State or Indian Tribe, your entity may be a reporting company subject to the CTA. If so, review the 23 exemptions to being a reporting company and confirm if any of these exemptions apply to any of your entities.

  • An entity formed as noted above that qualifies for any of these 23 exemptions is not required to submit a BOI report to the Financial Crimes Enforcement Network (FinCEN).
  • An entity formed as noted above that does not qualify for any exemption is referred to as a “reporting company” and will be required to submit a BOI report to FinCEN.

2. Entity Records. Review the entity records for each reporting company and confirm that these records reflect accurate, up to date information with respect to the ownership percentages, management, etc. of each entity within the structure.

3. Determine Beneficial Owners. There are two types of reporting company beneficial owners: (i) any individual (natural person) who directly or indirectly owns 25% or more of a reporting company, and (ii) any individual (including any individual who owns 25% or more of the reporting company) who directly or indirectly exercises substantial control over the reporting company. FinCEN expects that every reporting company will be substantially controlled by at least one individual, and therefore will have at least one beneficial owner. There is no maximum number of beneficial owners who must be reported.

4. FinCEN Identifiers. Once the individual(s) who qualify as beneficial owners of any of your reporting companies have been identified, you may obtain FinCEN identifiers for these individuals. Although this step is not required, obtaining a FinCEN identifier will allow you to report an individual’s FinCEN identifier number in lieu of his or her personal beneficial ownership information in the BOI report filed for the reporting company in which he or she has been determined to be a beneficial owner. If/when any beneficial ownership information changes for that individual, the individual will be required to update the beneficial ownership information associated with his or her FinCEN identifier, but each reporting company which this individual is a beneficial owner of will not be required to file a corresponding update (unless an update is required for a separate reason).

5. Prepare to File BOI Reports Sooner Rather than Later. With the January 1, 2025 filing deadline fast approaching and over 32 million entities expected to be impacted by the CTA, we recommend taking the steps to prepare and file BOI reports for your reporting companies as soon as possible. While awareness of the CTA and its requirements continues to grow, people still have questions and concerns regarding how their personal information will be handled, and it can take time to collect the necessary information. Accordingly, identifying any beneficial owners and requesting their beneficial ownership information as soon as possible will help to avoid any last-minute scrambles to prepare and file your reporting companies’ BOI reports. Some have questioned whether BOI reports are subject to disclosure under the Freedom of Information Act (FOIA). FinCEN has pointed out that these reports are exempt from disclosure under FOIA.

6. Reach Out With Questions. We have a team of attorneys, paralegals and support staff that would be happy to help guide you through this process.

The Corporate Transparency Act in 2025 and Beyond

In addition to reporting requirements for reporting companies formed before 2024 and during 2024 as outlined above, all entities formed in 2025 and beyond that qualify as reporting companies will be required to submit BOI reports within 30 days of the filing of formation documents. This is a significantly shorter filing window than what was imposed on entities formed before and during 2024. Accordingly, moving forward, for entities formed in 2025 and beyond, the CTA should be viewed as an additional step in the entity formation process.

The CTA also imposes requirements for updating BOI reports following any changes to the beneficial ownership information reported on a BOI report. Any changes to the beneficial ownership information must be reflected in an updated BOI reports filed with FinCEN no later than 30 days after the date on which the change occurred (note, the same 30-day timeline applies to changes in information submitted by an individual in order to obtain a FinCEN identifier).

© 2010-2024 Allen Matkins Leck Gamble Mallory & Natsis LLP
For more on the CTA, visit the NLR Corporate Business Organizations section.

AI Transcripts and Investment Advisers: Embracing Technology While Meeting SEC Requirements

AI Transcripts in Investment Advisory

There has been a boom recently regarding investment advisers’ use of artificial intelligence (“AI”) to transcribe client and internal meetings. Among other applications, AI features such as Zoom AI Companion, Microsoft Copilot, Jump, and Otter.ai (collectively, “AI Meeting Assistants”) can assist with drafting, transcribing, summarizing and prompting action items based on conversation content in the respective application. For instance, Zoom AI Companion and Microsoft Copilot can draft communications, generate transcriptions of conversations, identify points of agreement and disagreement of a discussion and summarize action items.

Overview of SEC Recordkeeping Requirements for AI Transcripts

As of now, there are no specific artificial intelligence regulations pertaining to the use of AI transcripts or the recordkeeping obligations that would follow. However, there are several SEC recordkeeping provisions that may be implicated by use of the AI capabilities offered by the AI Meeting Assistants. Rule 204-2 requires investment advisers to maintain certain records “relating to [their] investment advisory business” including “written communications sent by such investment adviser relating to” such enumerated subjects as: (i) any recommendation made or proposed to be made and any advice given or proposed to be given; (ii) any receipt, disbursement or delivery of funds or securities; (iii) the placing or execution of any order to purchase or sell any security; and (iv) predecessor performance and the performance or rate of return of any or all managed accounts, portfolios, or securities recommendations (subject to certain exceptions).

Every registered investment adviser is required to keep true, accurate and current books and records. The approach at this juncture would be to adopt these AI Meeting Assistant transcripts into the firm’s books and records. Once translated into written form, the SEC could consider the transcripts and summaries to be written communications regarding investment advice. Such transcripts and summaries should be kept in their original form, together with notes (if any) as to any corresponding inaccuracies produced by the AI content. Registered investment advisers are fiduciaries and should not utilize any information in conjunction with providing client services or communications that it does not reasonably believe is accurate. Thus, if the firm was to use the content of AI transcripts and/or summaries in conjunction with client services or communications that was incorrect, the onus would remain on the firm to demonstrate as to how it reasonably relied upon the content. It is inconsequential whether these transcripts and summaries make it into your CRM software or are maintained in the AI Meeting Assistants program. Regardless of whether the content is a meeting summary or list of action items, the transmission would likely constitute a communication for purposes of Rule 204-2 due to implicating an already established recordkeeping requirement.

Implementing Effective AI Strategies in Investment Advisory

  • A firm must eliminate or neutralize the effect of conflicts of interest associated with the firm’s use of artificial intelligence in investor interactions that place the firm’s or its associated person’s interest ahead of investors’ interests.
  • A firm that has any investor interaction using covered technology (AI) to have written policies and procedures reasonably designed to prevent violations of the proposed rules.
  • Adopt AI Meeting Assistant transcripts into books and records.
COPYRIGHT © 2024, STARK & STARK
For more on AI, visit the NLR Artificial Intelligence section

Trump Administration Tariffs: Considerations for U.S. and Global Companies

Donald Trump’s reelection as president of the United States raises considerations for both U.S. and non-U.S. companies importing goods into the country. Specifically, given Trump’s plan to impose “universal baseline tariffs on most foreign products” to “reward[] domestic production while taxing foreign companies,” what tariffs will be imposed, and what can importers do to protect themselves from the increased financial burden tariffs create? After Trump takes office on Jan. 20, 2025, supply chains most likely will be more expensive, with any additional tariffs likely impacting U.S. retailers, wholesalers, and manufacturers. During the campaign, Trump announced he would impose an additional 10-20% on global products and an additional 60% on products of China. Presidents have broad authority to impose tariffs and there are numerous legal authorities the Trump administration can rely on to impose them. In this GT Alert, we address those statutes and discuss strategies importers should consider to protect themselves from the increased financial burden. Statutory legal authority includes:

  • International Emergency Economic Powers Act of 1977 (IEEPA) provides the president with the authority to address unusual and extraordinary threats to national security through economic sanctions. According to the IEEPA, “Any authority granted to the President by section 1702 of this title may be exercised to deal with any unusual and extraordinary threat . . . if the President declares a national emergency with respect to such threat.” President Trump may use this act to address U.S. trade deficits.
  • Section 232 of the Trade Expansion Act of 1962 grants the president the power to impose restrictions on imports that pose a threat to national security, including through the imposition of tariffs. Previous legal challenges to the use of Section 232 have been unsuccessful.
  • Section 301 of the Trade Act of 1974 allows the president to respond to foreign trade practices that disadvantage the United States, authorizing the executive to (1) impose duties or other import restrictions, (2) withdraw or suspend trade agreement concessions, or (3) enter into binding agreements with foreign governments to eliminate the conduct in question or provide compensation. In his first term, President Trump used Section 301 beginning in July 2018 to impose additional tariffs of 25% or 7.5% on four lists of products from China. To date, the tariffs are still in place.
  • Section 338 of the Tariff Act of 1930 allows the president to impose additional tariffs of up to 50% on any country that discriminates against U.S. goods.
  • Section 122 of the Trade Act of 1974 provides the president with a “balance of payments” authority, allowing the imposition of an additional 15% tariff on imports for 150 days “[w]henever fundamental international payments problems require special import measures to restrict imports—(1) to deal with large and serious United States balance-of-payments deficits, (2) to prevent an imminent and significant depreciation of the dollar in foreign exchange markets.”

Prior to the implementation of additional tariffs, U.S. companies should consider increasing visibility into their supply chains. Importers may wish to review each imported product and confirm its country of origin. Specifically, if an additional 10% is added to products of the European Union and 60% is added to products of China, and a purchase agreement states the country of origin is the EU, U.S. companies should consider confirming the bill of materials and production steps to ensure that the product is in fact manufactured in the EU and not merely assembled there.

In addition, U.S. importers should consider reviewing incoterms (international commercial terms) on all purchase orders to determine which party is responsible for the tariffs. Note that tariffs are assessed based on the date of entry of goods into the United States and not the purchase order date. If a U.S. importer and non-U.S. supplier are currently negotiating a master purchase agreement that will take effect between now and the implementation of new tariffs under the Trump administration, importers may wish to add language so that the purchase price does not include the additional duties at whatever date the goods enter the United States.

Finally, there are numerous duty-mitigation strategies importers can consider to potentially blunt the impact of increased costs, including the use of “first sale” in a multi-tier transaction. Imported merchandise may have been the subject of more than one sale, with the middleman buyer adding an amount for profit and expenses to the price paid by the U.S. importer at entry. For example, merchandise may be manufactured in China, sold to a middleman in Hong Kong, and then sold to a buyer/importer in the United States. Under certain circumstances, importers can declare the value of the goods on the “first” or earlier sale, rather than on the last one, thereby reducing the declared value of the goods upon which duty payments are based. In addition, importers may consider taking legal deductions from the declared value, such as foreign inland and international freight.

The implementation of tariffs in the Trump administration seems likely, although the specifics have yet to be disclosed. In the meantime, companies should consider increasing transparency into their global supply chains and employing duty-mitigation strategies.

©2024 Greenberg Traurig, LLP. All rights reserved.
For more news on Trump Administration Tariffs,  visit the NLR Antitrust, Trade, & Regulation section.

Holy Hemp: New Jersey Court Partially Invalidates Hemp Law

On Oct. 10, 2024, a New Jersey Federal District Court made a big decision on hemp. The Court largely invalidated New Jersey’s recent attempt to tighten controls on “intoxicating hemp products” like Delta-8 and Delta-10, which were previously sold in gas stations, smoke shops, and convenience stores without much oversight. The state had put forward amendments aimed at restricting these products to those over 21 and regulating them like cannabis. New Jersey argued that it was time to clamp down on these sales, citing public health concerns and the rising number of minors getting their hands on these potent, unregulated products.

NJ Gov. Phil Murphy had signed off on these amendments despite admitting the law wasn’t perfect. For him, protecting minors was the priority. And today, the Court shared that sentiment—partially. It kept in place only the part that prevents the sale of these products to minors.

As for the rest of the amendment? The Court struck it down. The reason? It found that New Jersey’s approach violated federal law, essentially treating hemp products from out-of-state differently from those produced locally under the New Jersey Cannabis Regulatory Commission’s new process. This selective control crossed the line, according to the Dormant Commerce Clause of the Constitution and provisions in the Federal Farm Act, which stops states from blocking the transport of hemp products.

The Court’s decision made it clear that New Jersey does have the power to regulate these sales, but the amendments need legislative fine-tuning to meet federal standards. So, while New Jersey’s push to regulate intoxicating hemp is on pause, this is far from over.

Here’s where the decision makes things complicated for sellers: By Oct. 12, shops were supposed to pull these hemp products from the shelves, including Delta-8 drinks and THC-A gummies. That means, until New Jersey’s Cannabis Regulatory Commission issues new rules, those products are off-limits.

For anyone in the hemp or cannabis business in New Jersey, it’s a loud reminder—stay compliant, stay updated, and be ready to adapt quickly to changes.

by: Benjamin Sheppard of Norris McLaughlin P.A.
©2024 Norris McLaughlin P.A., All Rights Reserved

For more news on Hemp Legality, visit the NLR Biotech, Food, & Drug section.

The Rise of Annuities – A Riddle Wrapped in a Mystery Inside an Enigma? [Podcast]

“A riddle wrapped in a mystery inside an enigma.” That’s Winston Churchill describing Russia in 1939. The words puzzle and paradox have long been associated with annuities, marking them as one of the most difficult financial products to demystify. Recently, there has been a significant increase in annuity sales, which has added to the enigma. Why are they suddenly becoming so popular? Estate planning attorneys should know at least some basics.

The Original Annuity Riddle

The original annuity puzzle (the annuity market participation puzzle) refers to the economic paradox where retirees rarely choose to annuitize their wealth despite theoretical models suggesting this would be optimal for lifetime consumption smoothing and longevity risk protection. Classical economic theory, particularly as developed by Yaari (1965) (1), suggests that risk-averse individuals without strong bequest motives should convert a substantial portion of their wealth into lifetime annuities to hedge against outliving their assets; this optimizes their economic utility. They benefit from the insurance aspect of an annuity. Payouts are generally guaranteed for a lifetime, but the contract is priced according to average life expectancies.

However, in practice, voluntary annuity participation rates remain remarkably low across most developed countries. This discrepancy between theoretical predictions and observed behavior has sparked extensive research into potential explanations, including behavioral biases, bequest motives, concerns about healthcare costs, mistrust of insurance companies, desire for liquidity, existing annuities through Social Security and pensions, and the role of family risk-sharing.

The disinterest in annuities seems to be changing. Figure 1 shows a very recent trend of significantly increased annuity sales.

Growth in Annuity Sales Volume since 2004. Data from LIMRA

Figure 1: Growth in Annuity Sales Volume since 2004. Data from LIMRA. © wealthcarelawyer.com

The New Annuity Mystery – Why are Annuities Suddenly so Attractive?

There is no definitive answer. However, it is interesting that growth is driven almost exclusively by fixed annuities. A fixed annuity provides a guaranteed interest rate and principal protection since the insurance company bears the investment risk, but it typically offers lower potential returns with simpler features and lower fees. This maximizes the insurance aspect of an annuity.

In contrast, the returns of a variable annuity are tied to the performance of an investment portfolio chosen by the owner who bears the investment risk. These annuities offer higher potential returns and associated downside risk but with more complex features, higher management fees, and optional features like guaranteed income riders.

The most recent record federal deficit increase (red) seems to precede the increase in annuity sales. In contrast, good stock market performance should reduce the interest in annuities.

Figure 2: The most recent record federal deficit increase (red) seems to precede the increase in annuity sales. In contrast, good stock market performance should reduce the interest in annuities.

© wealthcarelawyer.com

Annuities are priced by calculating the present value of future payment obligations, adjusted for mortality risk, expenses, and profit margins. Insurance companies start with the principal investment and determine what payment stream they can provide based on current interest rates, actuarial tables (which predict how long they will need to make payments), their operating costs, and their desired profit margin. Higher interest rates generally allow for larger payments. In contrast, longer life expectancies, additional guarantee features, and higher expenses reduce the payment amounts the insurer can offer for a given principal investment.

In the first quarter of 2024, annuity sales reached a record $113.5 billion, marking the highest first-quarter sales figure in the 40-year history of Limra’s data tracking. While it is unclear what caused the sudden increase in the popularity of annuities, we believe that concern for the viability of Social Security because of the ballooning deficit may have contributed to it. LIMRA offers an alternative evaluation:

“Favorable economic conditions and demographic shifts have driven demand for investment protection and guaranteed lifetime income solutions that are unique to annuity products. During their discussion, Hodgens focused on the economic factors, such as higher interest rates and prolonged market volatility, which have enhanced the value and appeal of fixed annuity products, particularly fixed-rate deferred (FRD) and fixed indexed annuities (FIA).” (2).

It is also possible that current affluent baby boomers, as the sandwich generation, see value in diversifying with annuities: The annuity is considered spending money to help assure a certain standard of living, while investments are invaded only sparingly to allow for a growing legacy for the next generation. A guaranteed income stream from an annuity can provide psychological permission for retirees to spend more freely on themselves. Without an annuity, many retirees tend to be overly conservative with spending, worried about depleting their savings too quickly or not having enough for longevity and emergencies.

The Annuity Product Enigma

In an effort to make annuities more attractive, the industry has developed numerous products that address various concerns and preferences clients may have. As a general rule, many of the special flavors partially defeat the economic purpose of an annuity, which is utility maximization for persons without a strong bequest motive.

Some of the major annuity families and species

Figure 3: Some of the major annuity families and species. © wealthcarelawyer.com

Annuity contracts have evolved from basic guaranteed income instruments into complex financial products, each structured to address specific risk-transfer and income objectives. This evolution has produced three distinct primary classifications: Fixed, Variable, and Indexed annuities.

Fixed Annuities represent the foundational form. The Single Premium Immediate Annuity (SPIA) facilitates direct risk transfer through immediate income guarantees, leveraging mortality credits to enhance returns. Deferred Income Annuities (DIAs) modify this framework by introducing a time delay element, optimizing for future income maximization. Qualified Longevity Annuity Contracts (QLACs) emerged as a specialized adaptation to retirement account regulations, permitting Required Minimum Distribution deferral to age 85, subject to statutory limitations ($200,000). Multi-Year Guaranteed Annuities (MYGAs) provide fixed-rate guarantees over specified periods, offering liquidity features absent in traditional fixed annuities.

Variable Annuities evolved to incorporate market exposure through separate account structures. The basic Investment-Only variant provides tax-deferred market participation, while Living Benefit riders introduced protective features:

  • Guaranteed Lifetime Withdrawal Benefits (GLWB) ensure sustained withdrawal rates
  • Guaranteed Minimum Income Benefits (GMIB) protect future income bases
  • Guaranteed Minimum Accumulation Benefits (GMAB) provide principal protection parameters

Indexed Annuities represent a hybrid development, linking returns to market indices while maintaining principal protection. Structured/Buffered variants modify this framework by accepting defined downside exposure in exchange for enhanced participation rates.

Tax treatment bifurcates between:

  • Qualified: Pre-tax funding, full distribution taxation
  • Non-Qualified: After-tax funding, exclusion ratio calculations

Contract modifications across all variants may include:

  • Mortality benefit enhancements
  • Inflation adjustment mechanisms
  • Long-term care provisions
  • Premium return options
  • Distribution structure alternatives

This taxonomic framework provides the foundation for analyzing suitability, tax implications, and regulatory considerations across various client objectives and constraints.

Client Self Help

More information about annuities is not necessarily more helpful to consumers: “More complete, and therefore more complex information about annuity products leads to reduced attention and produces worse consumer choices. In an eye-tracking experiment comparing consumer response to a real, relatively brief annuity brochure and an edited and shortened version of the same brochure, we find that the more complex the materials, the faster attention declines.” (3).

This underscores the need for a learned intermediary to digest the information and to tailor it to the individual’s needs, preferences, and financial situation, who can ask clarifying questions to ascertain understanding.

Given a certain contract amount and their ages, many clients want to know what monthly or annual income they can expect given the current rate structures. The Annuity Calculator by annuity.org promises to do that. Others, such as Schwab, have similar annuity calculators, and results may differ.

How to Help Your Estate Planning Clients

The increasing complexity and popularity of annuity products present both opportunities and challenges for estate planning attorneys. Given the recent surge in annuity sales and evolving product complexity, attorneys must establish clear parameters for client discussions regarding these financial instruments.

Estate planning attorneys can appropriately address annuities by maintaining strict professional boundaries while providing valuable guidance. The fundamental framework involves three key components: permissible discussion parameters, professional referral protocols, and risk management considerations.

Permissible Discussion Parameters: Estate planning attorneys may appropriately discuss the theoretical foundations of annuities, including their role in consumption smoothing and longevity risk protection as established in classical economic theory. Discussions may encompass general tax implications, basic product classifications (fixed, variable, and indexed), and integration with estate planning objectives.

Professional Referral Protocols: Given the product complexity illustrated in the annuity taxonomy, specific product recommendations should be deferred to qualified specialists. Appropriate referral channels include:

  • Independent Annuity Brokers
  • Independent Insurance Advisors
  • Certified Financial Planners (CFPs)
  • Chartered Life Underwriters (CLUs)

Risk Management Considerations Documentation protocols should include:

  • Contemporaneous recording of annuity-related discussions
  • Specific referral documentation
  • Clear delineation of scope limitations regarding product recommendations

The attorney’s role should focus on identifying how annuity contracts may integrate with broader estate planning objectives while ensuring clients receive specialized guidance for product selection. This approach aligns with the current market dynamics where product complexity demands specialized expertise beyond the scope of general estate planning practice.

Professional network development should emphasize relationships with independent advisors who maintain appropriate licensing and demonstrate expertise in the evolving annuity marketplace. This network enables appropriate delegation of product-specific guidance while maintaining the attorney’s role in the overall estate planning strategy.

This framework enables estate planning attorneys to address the increasing relevance of annuity products while maintaining appropriate professional boundaries and ensuring clients receive comprehensive guidance from qualified specialists regarding specific product selection and implementation.

Podcast

References

  1. Yaari, M.E., 1965. Uncertain lifetime, life insurance, and the theory of the consumer. The Review of Economic Studies, 32(2), pp.137-150.
  2. LIMRA, Building on the Record Annuity Sales Momentum, LIMRA (May 22, 2024), https://www.limra.com/en/newsroom/industry-trends/2024/building-on-the-record-annuity-sales-momentum/.
  3. Harvey, Joseph, John G. Lynch, Philip Fernbach, and Ji Hoon Jhang. “Information Overload in Consumer Response to Annuities: Eye-Tracking and Behavioral Evidence.” Consumer Financial Protection Bureau Office of Research Working Paper 23-01 (2023).

https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=4394792

Further reading focused on Income Annuities

  1. LIMRA. (2024, May 22). First Quarter U.S. Annuity Sales Mark 14th Consecutive Quarter of Growth. Retrieved from https://www.limra.com/en/newsroom/news-releases/2024/limra-first-quarter-u.s.-annuity-sales-mark-14th-consecutive-quarter-of-growth/
  2. Fidelity Investments. (2023, June 5). Understanding Annuities. Retrieved from https://www.fidelity.com/learning-center/personal-finance/retirement/what-is-an-annuity
  3. Williams, R. (2023, April 12). The Case for Income Annuities When Rates Are Up. Retrieved from https://www.schwab.com/learn/story/case-income-annuities-when-rates-are-up
  4. Institute of Business and Finance. (2023, January). Certified Annuity Specialist Course Materials.
  5. Financial Industry Regulatory Authority. (2022, July 15). Deferred Income Annuities: Plan Now for Payout Later. Retrieved from https://www.finra.org/investors/insights/deferred-income-annuities
  6. Pfau, W. (2020, May 5). Income Annuities: The Guaranteed Stream Of Income In Retirement. Retrieved from https://www.forbes.com/sites/wadepfau/2020/05/05/income-annuities-the-guaranteed-stream-of-income-in-retirement/?sh=1f05b93e5143
  7. Kitces, M. (2015, April 1). Understanding The Role Of Mortality Credits – Why Immediate Annuities Beat Bond Ladders For Retirement Income. Retrieved from https://www.kitces.com/blog/understanding-the-role-of-mortality-credits-why-immediate-annuities-beat-bond-ladders-for-retirement-income/
  8. Cruz, H. (2005, July 24). Lifetime Income Benefit Rider vs. Annuitization. Retrieved from https://www.chicagotribune.com/news/ct-xpm-2005-07-24-0507240025-story.html
  9. Pfau, W. (n.d.). What Is a Safety-First Retirement Plan? Retrieved from https://retirementresearcher.com/what-is-a-safety-first-retirement-plan/
© 2024 wealthcarelawyer.com. All rights reserved.
For more on Annuities, visit the NLR Estates Trusts section

SEC Enforcement Director Highlights Increased Penalties for Violations of Whistleblower Rule

Recently, the U.S. Securities and Exchange Commission (SEC) has increased enforcement efforts around the whistleblower protection rule Rule 21F-17(a) which prohibits companies from impeding the ability of individuals to blow the whistle on potential securities law violations to the Commission. Most notably, the rule prohibits overly broad non-disclosure agreements and other employment agreements which restrict whistleblowing.

In remarks delivered November 6 at Securities Enforcement Forum D.C. 2024, Sanjay Wadhwa, the SEC’s Acting Director of the Division of Enforcement noted the importance of these enforcement efforts and highlighted the increased penalties levied by the Commission in Rule 21F-17(a) cases.

“The SEC’s whistleblower program plays a critical role in our ability to effectively detect wrongdoing, protect investors and the marketplace, and hold violators accountable.” Wadhwa said. “But that program only works if whistleblowers have unfettered ability to share with the SEC information about possible securities law violations. However, all too often we have seen, for example, confidentiality agreements and employment agreements by various advisory firms and public companies that impede that ability, including by limiting customers’ ability to voluntarily contact the SEC or by requiring employees to waive the right to a monetary award for participating in a government investigation. So this past fiscal year, and the year prior, the Commission brought a series of enforcement actions to address widespread violations.”

“There was a similar series of actions addressing this issue some years back,” Wadhwa continued. “And I think for a while there was better compliance, but then things slipped and we’re back here. So, this time around the Commission authorized what I view to be fittingly robust remedies, including the largest penalty on record for a standalone violation of the whistleblower protection rule. It is my hope that these enforcement actions will have a significant deterrent effect and will lead to greater and sustained proactive compliance.”

The record penalty referenced by Wadhwa was an $18 million penalty levied against J.P. Morgan in January. According to the SEC, J.P. Morgan regularly had retail clients sign confidential release agreements which did not permit clients to voluntarily contact the SEC.

In enforcing Rule 21F-17(a), the SEC has found illegal language in severance or separation agreements, employee contracts, settlement agreements and compliance manuals. Language in the various types of contracts found to violate Rule 21F-17(a) has included requiring the prior consent of the company before disclosing confidential information to regulators, preventing the employee from initiating contact with regulators, requiring the employee to waive their right to awards from whistleblowing award programs, including a “non-disparagement clause” that specifically included the SEC as a party the employee could not “disparage” the company to, and requiring the employee to inform the company soon after reporting information to the SEC.

Copyright Kohn, Kohn & Colapinto, LLP 2024. All Rights Reserved.
For more on Whistleblowers, visit the NLR Criminal Law Business Crimes section.

November 2024 Legal News: Law Firm News and Industry Expansion, Industry Awards and Recognition, DEI and Women in Law

Thank you for reading the National Law Review’s legal news roundup, highlighting the latest law firm news! As the country enters the penultimate month of 2024, legal industry news continues to be a hot topic. Please read below for the latest in law firm news and industry expansion, legal industry awards and recognition, and DEI and women in the legal field.

Law Firm News and Industry Expansion

Ward and Smith, P.A. announced the addition of Hunter Morris and Mark Wigley to the firm’s Raleigh office. Bringing dedication to the firm’s core practice areas, they will help to strengthen the commitment to exceptional client service.

Mr. Morris, a trust and estates attorney, will help guide clients through the planning and administration process including wills, various trusts and powers of attorney. He also offers support in probate document preparation and succession planning.

Mr. Wigley’s practice encompasses litigation matters, such as drafting and filing motions as well as conducting thorough research. Skilled in drafting trial and appellate briefs and managing evidence, he has represented clients in matters filed in the U.S.

“We are excited to welcome Hunter and Mark to the firm,” said Brad Evans, co-managing director of Ward and Smith. “Their commitment to high-quality legal service aligns with our mission to provide our clients with the guidance and expertise needed to navigate complex legal issues.”

Andrew M. Kaufman joined Blank Rome LLP as a Corporate Litigation group associate in the firm’s New York office. Mr. Kaufman is involved in all stages of litigation, representing clients from various industries in a broad range of matters.

Having received his J.D., magna cum laude and Order of the Coif, from New York University School of Law and his B.A., summa cum laude, from Binghamton University, Mr. Kaufman’s practice areas include consumer fraud, securities, products liability, bankruptcy litigation and commercial real estate.

In addition, he has extensive experience preparing fact and expert witnesses for deposition and trial testimony as well as managing discovery in complex litigation.

Norton Rose Fulbright announced the addition of Jim Arnold and Phil Hodgkins as senior counsel to the firm’s global cybersecurity and privacy group in in St. Louis and New York, respectively.

Mr. Arnold, a cybersecurity lawyer, has over 18 years of experience advising Fortune 500 clients on proactive cybersecurity program development. He has led comprehensive investigations, remediations and recovery efforts.

Privacy lawyer Mr. Hodgkins navigates clients through complex data challenges such as regulatory compliance, investigations and litigation. His practice includes many areas of privacy law, such as cross-border data transfers, use and storage, data collection and data privacy regulation readiness analysis.

“Jim and Phil are skilled cybersecurity and privacy professionals with innovative practices that complement our global team. Their backgrounds and focus on helping build programs before there is an issue is a perfect complement to the life-cycle of services we provide our clients,” said Chris Cwalina, head of cybersecurity and privacy at Norton Rose Fulbright. “Our practice is focused on improving oversight and governance for our clients and we are thrilled to have the experience Jim and Phil bring to assist with the wide range of risks in the increasingly complex cybersecurity and privacy landscape.”

Legal Industry Awards and Recognition

The 2025 edition of Best Lawyers recognized multiple National Law Review clients. The rankings include 75 national practice areas and 127 metropolitan areas based on client evaluations as well as leading attorney peer reviews. NLR clients included in the 2025 edition include:

Hunton Andrews Kurth LLP partner Roland M. Juarez was honored by the Los Angeles Business Journal (LABJ) in its annual Leaders of Influence: Labor & Employment Attorneys list. The list honors attorneys recognized as outstanding professionals in the industry by the LABJ based on their professional achievements, community leadership, milestones and notable accomplishments throughout the last 12-18 months.

Mr. Juarez has  been recognized on numerous lists for litigation and labor and employment by Daily Journal, LABJ and The Los Angeles Times, as well as being ranked by legal directories including Benchmark Litigation and Legal 500. He handles high-stakes labor and employment cases including class action and collective actions, PAGA, non-compete, non-solicitation and employee raiding cases, discrimination, harassment, disability, and wage and hour cases.

Jenner & Block Partner Angela Allen was honored at the 2024 Night of Shining Stars on October 30. The event, hosted by Hilco Global and the TMA, benefited the All Stars Project of Chicago, a nonprofit organization that connects youth in underserved communities to opportunities within the city.

Angela was recognized for her contributions in the turnaround and restructuring community and for her commitment to Chicago’s youth. Ms. Allen is actively involved with Turnaround Management Association (TMA) and served as the President of the Chicago/Midwest Chapter in 2020.

DEI and Women in Law

The Leadership Council on Legal Diversity (LCLD) has named Bradley a recipient of its 2024 Compass Award for its involvement in LCLD programs and promotion of the organization’s mission. LCLD is comprised of over 400 corporate chief legal officers and law firm managing partners who are committed to building a more equitable and diverse legal profession. Bradley partner Kristina Allen Reliford was chosen as a Fellow of the LCLD this year, with Bradley associates Trenton K. Patterson and Sabah Petrov being chosen as LCLD Pathfinders.

“We are very appreciative of LCLD’s recognition as one of its 2024 Compass Award winners,” said Bradley Chairman of the Board and Managing Partner Jonathan M. Skeeters. “Bradley is proud of its leadership and commitment to fostering an inclusive legal profession.”

Leigha Beckman, an associate at Morgan Lewis, was awarded the “2024 Antitrust and Unfair Competition Lawyers to Watch Award” by the California Lawyers Association. Ms. Beckman was recognized with four other nominees who have exhibited outstanding achievements in their first eight years of practicing antitrust and unfair competition law.

Ms. Beckham has extensive experience in multidistrict litigation, focusing her practice on counseling, government investigations and litigation. This includes cases brought under California’s Cartwright Act and Unfair Competition Law, as well as the Sherman Act and antitrust class actions.

Copyright ©2024 National Law Forum, LLC
For more Law News, visit the NLR Law Office Management section.

New York City Mayor Signs Hotel Safety and Licensing Law Imposing New Compliance Requirements on Hotel Operators

On November 4, 2024, New York City Mayor Eric Adams signed legislation to ensure hotel safety that will mandate a comprehensive licensing system for hotels to operate in New York City, implement several consumer safety protections, and require hotels to maintain continuous front-desk coverage, directly employ certain “core” employees, and provide human trafficking recognition training.

Quick Hits
New York City enacted a new hotel safety law that will require hotels to obtain a license to operate in the city and impose certain staffing requirements.
The law will require hotels to directly employ core employees, mainly housekeepers and front desk staff, avoiding the use of third-party staffing agencies.
The law is set to take effect 180 days after signing, or May 3, 2025.
The Safe Hotels Act, Int. No. 0991-2024, represents a significant shift in the regulatory landscape for New York City hotel operators, imposing several new employment and consumer compliance requirements as the city’s tourism industry rebounds from the pandemic.

“Our top priority from day one has been to keep people safe, and that includes protecting workers and tourists at our city’s hotels,” Mayor Adams said in a statement announcing the signing of the law. “That’s why we are expanding protections for the working-class New Yorkers who run our hotels and the guests who use them.”

Here is a breakdown of the key aspects of the new law.

Licensing
Under the new law, all hotel operators must obtain a license to operate within New York City. The license, valid for two years, requires a fee of $350. Hotel operators must submit detailed applications demonstrating their compliance with various staffing, safety, and operational standards. Violations of the new licensing requirements can result in significant civil penalties, ranging from $500 for a first offense to $5,000 for repeated offenses.

Staffing
The law will require hotel operators to provide continuous front desk coverage, either through front desk staff or, during overnight shifts, a security guard trained in human trafficking recognition. Large hotels (those with more than 400 rooms) must also maintain continuous security guard coverage on the premises.

Further, the law will require large hotels to directly employ certain “core employees,” aiming to eliminate the use of third-party contractors for core staffing needs. The law defines “core employees” as “any employee whose job classification is related to housekeeping, front desk, or front service at a hotel.” The law exempts small hotels, defined as those with fewer than 100 rooms.

The law will also prohibit hotel operators from retaliating against employees who report violations, participate in investigations, or refuse to engage in practices they believe to be illegal or unsafe.

Consumer Protections
Hotels will be required to maintain the cleanliness of guest rooms and common areas. Daily cleaning and trash removal are mandatory unless explicitly declined by the guest. Hotels will not be allowed to charge fees for daily room cleaning or offer incentives to guests to forgo this service.

Safety
The law will require hotels to provide panic buttons to employees whose duties involve entering occupied guest rooms. Additionally, all core employees must receive human trafficking recognition training within sixty days of employment.

Key Takeaways
Hotel operators may want to consider reviewing and updating policies to align with the new requirements, including updating staff training programs, security protocols, and cleaning schedules. They may also want to assess their staffing arrangements to ensure that core employees are directly employed.

The law is set to take effect 180 days after signing, or May 3, 2025.

© 2024, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
by: Simone R.D. Francis , Zachary V. Zagger of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more news on New York City’s Hotel Regulations ,visit the NLR Consumer Protection section.

Post Election – Expect Tax Legislation

I. Introduction

With clear Republican victories in the White House and the Senate, and a very slim majority for either side in the House of Representatives, we can expect tax legislation in the coming year. It is expected that the President elect will likely seek to enact his economic agenda as quickly as possible. While Congress may work for bipartisan support of any such legislation, Congressional Republicans and the Administration have the ability to utilize the filibuster-proof budget reconciliation rules (that eliminate the need for 60 votes in the Senate) to pass such tax legislation. We understand that the advance preparation and work for a 2025 reconciliation bill began in Republican Leadership offices over the summer and will continue through the end of the year.

Key to the current discussions of tax policy are provisions from the 2017 Tax Cuts and Jobs Act (the “TCJA”), a large overhaul of the Internal Revenue Code during President Trump’s first term. The TCJA instituted many significant changes to U.S. tax laws, including cutting the corporate rate, lowering individual income tax rates, and introducing a new deduction for passthrough income. However, due to various reasons, including the arcana of procedural rules of Congress associated with the “reconciliation” procedures, many of these provisions were temporary and scheduled to expire at the end of 2025. Exactly which provisions are to be extended, which to be modified, which to be abandoned and how to budget for each of these provisions, is expected to be a part of the legislative agenda next year. It is important to note that, among certain other items, the reduced corporate tax rate enacted in the TCJA is not scheduled to expire.

The most significant expiring provisions of the TCJA are set forth below.

II. Expiring Provisions

A. Changes to non-corporate tax rates, credits, deductions, exemptions and exclusions

The most significant expiring provisions, at least from a political perspective, are the provisions providing significant adjustments to the various tax rates, credits, deductions and similar provisions mostly applicable to individuals, resulting in a broad-scale reversion to the pre-2017 regime for individual taxpayers. The key changes are the following, generally coming into effect in 2026, if not extended or modified:

  • The lower individual income tax rates in the TCJA will expire, and the top marginal rate will go from 37% to 39.6%;
  • The estate and gift tax exclusion amount will be cut in half to $5 million and then adjusted for inflation, so the estate tax exemption will go from approximately $14 million in 2025 to approximately $7 million in 2026;
  • The standard deduction will revert to pre-TCJA levels (almost half the current standard deduction), although the personal exemption amount (which was set to zero under the TCJA) will return to pre-TCJA levels as well;
  • The deduction for miscellaneous itemized expenses, including unreimbursed employee expenses and tax preparation fees will return, and taxpayers will be able to deduct miscellaneous itemized expenses above 2% of adjusted gross income (“AGI”);
  • The phasing-out of itemized deductions for high income taxpayers will return;
  • The TCJA’s cap on the deductibility of state and local tax will expire, so taxpayers will be able to deduct all state and local income taxes (or sales taxes, if selected by the taxpayer) and property taxes—this may be celebrated by higher-income taxpayers in high tax states, but much of the benefit could be tempered by the return of broader scope of the alternative minimum tax discussed immediately below;
  • The alternative minimum tax (the “AMT”), which under the TCJA was limited to a small number of taxpayers, will return to its pre-TCJA form (which applied to a much larger group of individual taxpayers);
  • The deduction limit for cash charitable deductions will revert to 50% of AGI (as compared the current limit of 60% of AGI);
  • The child tax credit will be cut in half so that the maximum credit is $1,000 per child, the refundable portion of the credit will decline from $1,400 to $1,000, and other various adjustments will apply; and
  • The broader mortgage interest exemption available under the pre-TCJA regime will return.

B. Employment-related provisions

Certain employment-related provisions will also expire, and many pre-TCJA rules will return, generally in 2026, if not extended or modified. The most significant changes are the following:

  • The Work Opportunity Tax Credit, which provides a credit to employers who hire members of certain groups, such as veterans, recipients of various federal welfare benefit programs, and residents of empowerment zones, would expire;
  • Employers who pay wages to employees on family and medical leave are generally eligible currently for a credit for a percentage of 12 weeks of paid leave wages—this credit would expire;
  • The deductibility of employer-provided meal expenses, currently limited to 50 percent of the meal expense, will be eliminated; and
  • The suspension of the exclusion for employer reimbursements for moving expenses for persons other than certain members of the armed services, will be lifted, at which point taxpayers will be able once again to exclude from income qualifying moving expense reimbursements received from an employer.

C. Various business provisions

Multiple provisions designed to create tax benefits or tax reductions for certain business operations or activities are also amongst the set of expiring or changing provisions. Among the key provisions that will change, generally in 2026, if not extended or modified are the following:

  • The TCJA introduced the qualified business income deduction for 20% of qualified passthrough income, excluding specified service trade or business income, and ordinary REIT dividends—this deduction would expire, so passthrough income and ordinary REIT dividends will be taxed at ordinary income rates with no deduction;
  • The TCJA’s bonus depreciation allowance will continue to decline over the next few years: only a 40% immediate deduction in 2025, 20% in 2026, and no bonus depreciation after 2026 (with some exceptions);
  • The special “opportunity zone” rules—whereby taxpayers could defer capital gains if the gains are reinvested in such an opportunity zone and exclude capital gains income after a 10-year holding period—will expire. Similarly, the empowerment zone program’s tax benefits and the New Markets Tax Credit will also expire.

D. International tax provisions

The TCJA also made some significant revisions to the international and cross-border tax rules, many of which will have changes that will automatically trigger in 2025 or 2026. The most material are:

  • The “base erosion and anti-abuse tax” (the “BEAT”) minimum tax rate will increase to 12.5% (from 10%) and the calculation of the modified income tax (on which the BEAT minimum tax rate applies) will be adjusted to eliminate the taxpayer’s ability to benefit from certain tax credits;
  • The deductions applicable to global intangible low-taxed income (“GILTI”) inclusions for corporations will be reduced (resulting in an increase in the amount of tax imposed on such inclusions)—the deductions for most income will drop from 50% to 37.5%;
  • The deduction on “foreign derived intangible income” (“FDII”) will drop from 37.5% to 21.875%; and
  • The oft extended “look through” rule (which did not originate in the TCJA) for dividends, interest, rents and royalties received by a controlled foreign corporation from another related controlled foreign corporation is set to expire.

As one can imagine on reading this long list of expiring tax provisions (and not even taking account the many more minor provisions also set to expire or change which are not included above), the likelihood of a new tax bill to address these provisions is high. Given the nature of the Congressional rules around reconciliation and the nature of budget and tax negotiations, attempts to extend many of these provisions would likely involve the addition of new revenue-raising provisions. As such, the prospects of tax reform in 2025 are high. Proskauer closely monitors legislative developments, and additional tax blog posts will be made as specific tax proposals are moved through Congress.

© 2024 Proskauer Rose LLP.
For more on Tax Legislation, visit the NLR Tax section

The CTA Filing Deadline is Approaching. Is Your BOIR Filed Yet?

The clock is ticking—just 49 days remain until the one-year filing deadline for the Corporate Transparency Act (CTA)! Entities established before January 1, 2024, must submit a beneficial owner information report (BOIR) by December 31, 2024.

The CTA is a new reporting requirement that came into effect on January 1, 2024. The CTA requires any entity created by or registered to do business by the filing of a document with a secretary of state, or another similar office, to report its information and its beneficial owners to the Financial Crimes Enforcement Network (FinCEN), which is a bureau of the United States Treasury. The goal is to decrease money laundering and fraud.

We previously published advisories on the general application of the CTA and its specific application to entities created for estate planning purposes. The rules and guidelines about which we previously reported are largely unchanged. A reporting company still needs to report its legal name, all trades and d/b/a names, address, and beneficial owners. Beneficial owners are those with substantial control or who own or control 25% or more of the reporting company, directly or indirectly. The reporting company needs to report each beneficial owner’s name, date of birth, residential address, and an identifying number and image from one of four acceptable identification documents.

Although the CTA was declared unconstitutional by a federal district court in Alabama, the ruling only prevents the CTA’s enforcement on the parties directly involved in the case. The court did not issue a nationwide ruling to prevent the law from being enforced. Thus, other companies are expected to continue filing BOIRs. The Alabama case is currently on appeal and oral arguments were held at the end of September 2024.

FinCEN has been periodically updating its Frequently Asked Questions to provide some clarification since the CTA became effective. We outline the most relevant guidance below:

General Updates:

  1. Entities that are created before January 1, 2024, even if dissolved sometime in 2024 before the December 31, 2024, deadline, must still report their information and beneficial owners by December 31, 2024.
  2. Entities that are created in 2024 have 90 days to file the BOIR. Entities created on or after January 1, 2025, will have 30 days to file the BOIR. Entities that are created in 2024 but are wound up, dissolved, or otherwise cease to exist must still file the BOIR with FinCEN.
  3. Beneficial ownership is determined in the aggregate. This means that companies need to analyze each beneficial owner to determine if he or she indirectly/directly substantially controls or owns 25% or more of a reporting company. For example, Individual X owns 10% of Company Y. Individual X is also trustee of a trust that owns 20% of Company Y. Individual X needs to be reported as a beneficial owner because he owns an aggregate 30% of the company.
  4. Beneficial owners may now apply for a FinCEN Identifier here. This allows the beneficial owners to report their information to FinCEN directly, obtain an Identifier number, and simply provide the Identifier to those reporting companies of which he or she is a beneficial owner. This prevents a beneficial owner from having to share personal and sensitive information with a company. This also streamlines the process for any change in the beneficial owner’s information. Each beneficial owner can log into FinCEN and simply update the information within 30 days of the change rather than first providing it to the reporting company and then the company filing a new BOIR to update the information.

a. In order to create a FinCEN Identifier, an individual will have to create a login.gov account. This is the account that the federal government is using to streamline many of its services, such as, global entry and applying for federal jobs.

5. Reporting companies may complete and submit a BOIR online here. A company could also submit a PDF of the report at the same link if it chose to complete a paper copy. There is no fee to submit online. There are also many vendors offering a service to assist with the process and submit the report for a fee.

Real Estate/Corporate Updates:

6.FinCEN clarified that the subsidiary exemption applies when a subsidiary’s ownership interests are entirely controlled or wholly owned, directly, or indirectly, by any of the following types of exempt entities: (1) Securities reporting issuer; (2) Governmental authority; (3) Bank; (4) Credit union; (5) Depository institution holding company; (6) Broker or dealer in securities; (7) Other Exchange Act registered entity; (8) Investment company or investment adviser; (9) Venture capital fund adviser; (10) Insurance company; (11) State-licensed insurance producer; (12) Commodity Exchange Act registered entity; (13) Accounting firm; (14) Public utility; (15) Financial market utility; (16) Tax-exempt entity; or (17) Large operating company. Further, if a reporting company’s ownership interests are controlled or wholly owned by more than one exempt entity, the reporting company may still qualify for the subsidiary exemption if the entities are unaffiliated; however, every controlling or owning entity must itself be an exempt entity in order for the reporting company to qualify for the subsidiary exemption.

Trusts and Estates Updates:

7.If there is a corporate trustee, the reporting company will be reporting those individual beneficial owners that indirectly own or control at least 25% of the ownership interests of the reporting company through the ownership in the corporate trustee. This will be determined by multiplying the percentage of ownership of the corporate trustee with the trust’s ownership/control of the reporting company. For example, if Individual A owns 70% of the corporate trustee of a trust, and that trust holds 30% of the reporting company, Individual A holds or controls 21% of the reporting company (70% x 30 = 21). If Individual A owned 90% of the corporate trustee, then it would own/control 27% of the reporting company (90% x 30 = 27) and the company must report Individual A as a beneficial owner. There may be other beneficial owners if someone else at the corporate trustee exercises substantial control over the reporting company.

A reporting company may submit the corporate trustee’s information in lieu of each beneficial owner’s information only if all of these conditions are met:

a. The corporate entity is an exempt entity from the reporting requirements.

b. The individual owns or controls 25% of the reporting company only through the corporate trustee.

c. The individual does not exercise substantial control over the reporting company.

A company can obtain its own FinCEN Identifier when it submits an initial BOIR for its beneficial owner(s). This way, such company may be reported as a beneficial owner, such as a corporate trustee that meets the above requirements. For example, when LLC A reports Individual A as its beneficial owner, LLC A has the option of clicking a button to obtain its own FinCEN Identifier.

8. An individual who has the power to remove a trustee, remove and replace a trustee, and/or appoint an additional trustee is deemed to have substantial control through the power to change the person who makes decisions for the trust, and thereby, the reporting company. While this is not explicit in the Frequently Asked Questions, it is consistent with FinCEN’s position that someone who has the power to remove a senior officer of a reporting company is a beneficial owner.

While this is an extensive list, it is by no means an exhaustive list, and various circumstances not discussed above may change how the CTA applies in a particular case.

Copyright 2024 Goulston & Storrs PC.
For more on the CTA, visit the NLR Corporate Business Organizations section