Latest / Real Investor Radio Podcast / Ep29 | Tax Law with Douglas Stein - Unpacking the Corporate Transparency Act

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Ep29 | Tax Law with Douglas Stein - Unpacking the Corporate Transparency Act · Real Investor Radio Podcast

• craig fuhr (00:39.805) Hey, welcome everybody to Real Investor Radio. It is a new year, Jack. How are you? Jack BeVier (00:44.946) Doing great, man, doing great. Good to see you. craig fuhr (00:47.277) You as well, my friend. And it's episode 29 here, and we're starting off a new year 2024. Got a lot to talk about. We have some great guests coming up over the next few weeks and months that are already lined up in the can, ready to rock. Today I'm excited to have our guests, but first, Jack, how are your holidays? Jack BeVier (01:09.758) Everything was good. We holidays were spent at home hanging out with family and then got out of town, went down to St. Thomas for a week. And so I've been hanging out down here. I'm actually that's where I'm at still right now. But you know, can't miss the podcast and was super excited to have our guest on today. So I rigged up a little studio here in a bedroom and I'm ready to rock. craig fuhr (01:30.849) tell the truth, Jack, how much work versus how much recreation are you getting him be honest, because I know you approved at least three loans yesterday, at least three. Jack BeVier (01:36.741) Nuts. Now, yeah, we have some good systems and setups so that I can just check in and do emails for an hour or so and keep the trains rolling. So all's well, all's well. craig fuhr (01:51.113) The most efficient man in the business, ladies and gentlemen, Jack Bevere. All right, so we have a great guest today. Absolutely the most timely guest you can have in January, Mr. Doug Stein. Jack, I'll let you introduce him. And I think we have a really great and timely conversation around tax law, tax planning, a lot of things to think about this time of year for better real estate investors. And so go take it away. Jack BeVier (02:16.506) Yes, so very excited to have Doug Stein here with us today. Doug is a tax attorney that I met back in 2016, I think. We were looking to do some tax planning and at the time wasn't thrilled, frankly, with the advice that we were getting from a more strategic point of view. And that's really, I think, something that a lot of real estate investors. have that issue with particularly as they're growing, right? They've got their CPA that does their tax return. They do their tax return competently. They know what those files are and that runs fine. But as you're growing and hopefully making more income, more taxable income, you wanna make sure that you can avail yourself of whatever opportunities there are to be efficient about that. And so we kinda started that process in 2015. And I probably spent the whole year fumbling around getting lots of not so great advice from a number of different kinds of consultants and kind of in that journey of looking for, you know, looking for advice and looking for someone who I could really connect with on a strategic planning point of view. I was able to fortunately cross paths with Doug. So Doug is a tax attorney based out of based out of Atlanta in Georgia and he when I met Doug, the nature of the conversation was materially different than I had experienced before. I had lots and lots of conversations with tax guys, right? And women who could tell me, could tell me the code or could explain to me what the situations were. But it was I'd have to bring an idea to them and they'd say, well, let me go research that and I'll let you know if we can do that. And then they'd come back. and they'd be like, oh yeah, that doesn't work. And here's the bill. And, and so I was just fumbling in the dark because I don't know what I don't know, right? Like, you know, real estate, buying houses, fixing them up all day. But the codes, you know, I don't think it's meant, it's meant not even measured in pages. It's measured in inches or not feet. And so, uh, you know, I just don't know what I don't know there. And so different kind of corporate structuring ideas and, um, you know, how we run operations, uh, and how that impacts, craig fuhr (04:21.813) feet. Jack BeVier (04:34.034) how it, you know, the, what we, what we might be changing, little tweaks that we can make from an operational point of view to take advantage of tax efficiency. You know, that was what I was really looking for. And my, in my conversations with Doug, I had the, and the nature of the conversation was different. He was a, I, I consider Doug a, um, a business mind. He talks about risk. Uh, you know, he doesn't say you can do this. You can't do that. He talks about it on the spectrum of risk. Like, here's the safe Harbor. Here's the gray area. Here's the case law that you definitely can't cross. And then that was a much more, I think, productive set of conversations because then I can make business decisions, right? Because not tax law is not black and white. There's nothing about law and any, you know, any part of law that is black and white. But talking about it on a risk spectrum, I felt I found to be much more productive. So anyway, long winded introduction, but craig fuhr (05:28.925) Mm. Jack BeVier (05:31.694) been working with Doug now for, I guess, seven years plus. And he joins us in our Real Investor Roundtable Mastermind on at least an annual basis. And you know, hope you know, sometimes he makes it two or three times a year, which is great. It's always very productive. And also consider him a friend at this point, we've worked together and done so much together. So really excited that Doug, thank you so much for joining us today. And I think we wanted to given the timeliness in the year, talk about the changes between 22 and 23 as you know, our listeners are getting ready to talk to their tax folks make sure that they're not tripping on themselves based off of the changes it's there are some things that have changed between 22 and the 23 prep. Talk about some differences in operations from a 24 forward that are different than 23. I think we're going to cover a little bit about just kind of like the state of the IRS right now. And definitely and some new stuff that's just hit the street and some new stuff that's in the pipe right now that we should all be aware of as it relates to tax. craig fuhr (06:37.545) Doug, welcome to the show. Douglas Stein (06:37.662) Got it. And thank you for having me. I really appreciate it, guys. Jack, I think that's the nicest thing I've ever heard anybody ever say about me, ever. Like, ever. Jack BeVier (06:47.757) Good deal. Douglas Stein (06:50.598) So you've introduced me just fine. I don't think I need to add anything to that, but I, I would want to start today's conversation with what I think is the latest and greatest stuff, which really has real implications for people. And my, my expectation is that most people fall flat over the course of the year or two. Um, and eventually, you know, enforcement get picked up and I'm talking specifically about the corporate transparency act, the CTA, the CTA. It's a new act, actually it's an old act. It was enacted back in 2017 as part of funding the US military. It really comes down to breaking down the transparency that currently exists within the US entities. And you form an LLC, nobody knows who that LLC is owned by. Often you have an LLC owned by an LLC, owned by another LLC, owned by a trust and on and on and on. Under the CTA, all of that goes away. So people who want to hide, you know, who could hide who the ownership is, that's more or less dead for all extensive purposes. The CTA now requires you to report who the beneficial owners are. And there's a whole long definition of that. So 20% of more equity, um, voting control, effective, or deemed to be ownership control through family members, uh, being a manager of an LLC, uh, and on and on and on. So all of that has to now be reported. And the new rule is anything formed from. You know, three days ago, four days ago, beginning of the year, that has to be reported within 90 days. Originally, it was 30 days that got extended to 60 days. And then that just got extended late last year to 90 days. So now you have 90 days to report. And if it's a preexisting entity, you have until 2025 to report. But I'm not sure it's wise to wait until 2025. Jack BeVier (08:34.982) So let's break that down just so everyone understands. So right now, like I can go on my, you know, Department of Assessments and Taxation website for the state and look up to see who, you know, I can look up and I can generally see the either formation documents, articles of organization, and the original operating agreement often. I can see who the resident agent is for, you know, lawsuits, you know, serving lawsuits, for example. But this is something and that so that information is already currently public. But as you mentioned, often when we'll go on there, we'll see a resident agent and it'll be an attorney or it'll be an attorney. And if you see the original operating agreement, by the way, you know, it's originally set up by the attorney. Right. So you don't get much, if any information about that. Maybe you do some skip tracing, you find out it's owned by another LLC and there's another attorney. So, you know, it's still there's ways to. obfuscate who the owners are under the current under the current, I guess, rules, some of the current rules. Now, this is going to chain, you're going to have to actually now report and how to how to you're going to report who the beneficial owners are of any particular LLC and right and you're gonna have to ride that up like the entire chain of LLCs, right? If you have an LLC that owns an L, you know, a trust that owns an LLC that owns an LLC, you're gonna have to actually trace back the beneficial ownership up to. you know, whoever those humans are, right? And that's a change here. We're gonna get some transparency. Well, and let's draw the distinction here. The government's gonna get some transparency with respect to that. Now, so we're gonna be required to report those beneficial owners, but that doesn't mean that information's gonna be made public, right? Douglas Stein (10:24.386) So there's two different issues here. You are correct. It all gets reported with FinCEN, which is the US government who is then sharing that information with the internal revenue, with DOJ, with the FBI, Department of Homeland Defense, all those things. All those entities are all getting shared that information. Technically, it's not out in the open public, so I, Doug Stein, don't have the right to file for a FOIA request and get that. The catch to it, I'm sorry, Freedom of Information Act. Jack BeVier (10:49.278) Mm-hmm. Oh, it's Freedom of Information Act request. Yeah. Douglas Stein (10:53.73) So that's not available. That was actually specifically in the act that FOIA Freedom of Information Act is inapplicable to the CTA. But here's the catch. Someone sues you in the yellow city. No normal request for an attorney would be to request their filings and show me their filings you filed to the secretary of state to show you've actually done the things you're supposed to do. Sometimes I'll ask for your tax return, but now I'll ask for your CTA filing. Oh yeah. Jack BeVier (11:19.054) Really? And that's a, that's a, that's like a depositionable, you know, a requestable, a document that can be requested and must be produced. Douglas Stein (11:28.278) It's a business record, right? So, you know, your tax, yeah, it's something people haven't thought about. Historically, we say no one could get your tax returns, but in a deposition, if it's relevant to the case, I can get that information because it's a business filing that you filed, it's not privileged. There's an attorney-client privilege, there's an accountant privilege. The CTA is no different. I can request it and I should get it. And if I don't get it, I can always know how the court and try to get the court order to get it. So... Jack BeVier (11:29.806) Wow. That's really interesting. Douglas Stein (11:56.126) It is correct in the sense that the general public doesn't have easy access to it. But if someone sues you, it's a different story. Jack BeVier (12:03.706) Really interesting though from in the implications, you know, just kind of going up to 300,000 feet here, the implications with respect to if the government's got all of that information and with technology going the way that it is, they'll now like within five, maybe 10 years, right, like probably much less than that be able to based off of these filings produce a pretty succinct map, right of like. of who owns what, right? Like how did the you know, which people traced all these different things. Now, the public won't be able to do that. Because as you just mentioned, they can't get access to it unless they've got a kind of a need to know based, you know, because of a lawsuit for you know, as the classic example, but the government won't have that doesn't have that doesn't have that, that bar, right? Like, they'll just have access to that information and the various government agencies will be will be able to use that as they please, frankly, right, you know, in the in under the auspices of whatever, you know, under their mandate, right to enforce the laws of the United States. So it's a it's kind of a game chain. It's not a game changer with respect to like, the average American can figure out who owns what, but it is a game changer from the government's point of view, right? Douglas Stein (13:17.122) Yeah, I'm expecting the IRS to come in now with audits. It'll take them a couple of years, because let's give them three, five years. We'll already know all the ownership interests and who owns what. So that sometimes when they ask questions, never really ask the questions right. And we go through a lot of audits, we deal with a lot of those things on behalf of our clients. The questions are historically not hard for. They ask the wrong question, or they ask the right question the wrong way. So I can comply just to the point of compliance, but not actually giving you what you want. Now it's going to be different. They'll say, here's the CTA. It says you own all these assets. Give me all the information about all those assets. That's that's harder, harder to avoid. Jack BeVier (13:55.342) Yeah, this will help them ask the right questions in that context. So it's very interesting. craig fuhr (14:04.149) So CTA was, I guess brought about under the guise of security and sort of transparency. Yes. Yeah. Douglas Stein (14:10.274) Correct. That's why they say it came about. It's not really true, but it's what they say. Jack BeVier (14:14.99) Wait, what's CTA stand for? Corporate Transparency Act, got it. Douglas Stein (14:16.878) Corporate Transparency Act. So the Corporate Transparency Act has been in the works for a long, long time. It actually goes back to when Europe changed, right? And they became part of the EU and they had their own corporate transparency acts that existed because the concepts that we have in the US don't really apply in Europe. European banks didn't want to lend to Americans because they couldn't figure out who owned what. And it's not that we don't trust your disclosures, but they don't trust your disclosures. So the US was put in this really weird position where they couldn't do a lot of international business. And part of it was brought on by the US, you know, the whole UBS issue and all of the FATCA filings and all of those things were part of it. The EU basically said, absent something like this, we can't open up our markets to you. So the US had to do it. And the easiest way for them to get it through Congress was really through a funding mandate, which is the military, who wants to vote against them. So they went through the military and lo and behold, here you are. We've got this, it's clearly, literally part of a, part of a procurement act for the military. Yeah. Get a lot of great stuff buried in those wheels. Jack BeVier (15:20.526) defense bill. Interesting. craig fuhr (15:26.245) I'm interested, Jack and Fred and the folks that are members of the Real Investor Roundtable, I think are a step above in terms of operational abilities and the size of their businesses. But for the average investor, we're talking real estate investor here, who does multiple transactions a year, has been in business for several years. know, they're not they're not they're not hobbyists. This is what they do for a living. What is something like this going to do in due to that person in terms of cost in you know, if they have to form a new LLC? And what are the ramifications of not complying with this and reporting? Jack BeVier (16:16.952) And how do you register? craig fuhr (16:18.621) Yeah, I'm interested. That was my next question. But those first two Douglas Stein (16:22.158) Okay, so I think structures are going to start changing. I don't think anyone has a choice anymore. The classic structure was holding company, LLC for every property, or maybe a series of LLCs to hold properties in this area and that area, then underneath that a new LLC. Each one of those LLCs now needs to file. Each one of those entities needs to go through the whole process. It's a major undertaking going forward. I just did my CTA this morning for my law firm. It took me about five minutes. I got one entity, right? Um, you add on some of my clients have a hundred entities, 150 entities, 200 entities. You're doing that same task over and over and over again. And then if someone dies during the year, which happens now these, you need to file again for the estate and then if the estate pays out, you have to file again. So every single time there's a change, you've got to go through this process. Um, if you bring in new investors, you know, then every time a new investor comes in that meets the criteria, you have to do it again, it's going to be a major. Jack BeVier (17:20.506) hits that 20% threshold. craig fuhr (17:22.377) Yeah, I was. And yeah, the criteria in case the folks didn't hear Jack is it's anyone with more than a 20% ownership in the LLC or company, correct? Jack BeVier (17:34.274) or control or who has control. Yeah. Douglas Stein (17:34.382) Correct. Or control. Effective or actual. craig fuhr (17:36.999) Understood. Jack BeVier (17:40.07) Which is a bar that that's a TBD bar, right? Like, yeah. Douglas Stein (17:44.45) That's right. So let's say you've got six owners. So nobody actually has 20%. They're all equal owners. Then who files? And the answer is who's got effective control? Do you have a consortium of three people that have effective control? You can get into a lot of these questions. The manager is always going to file. Right, they have no incentive not to file. Our position is we've got a situation that's we have six owners, nobody's got more power than the other. We report them all. Jack BeVier (17:58.011) Mm-hmm. Douglas Stein (18:14.674) My risk is either a penalty or criminal prosecution. Let's take the criminal prosecution off the table for a second, because hopefully we don't meet that. I'm not paying the penalty. These aren't cheap penalties. craig fuhr (18:28.049) I'm curious, just curious, what is the penalty? Jack BeVier (18:28.21) So how do you do it? Douglas Stein (18:30.834) I think the penalty is up to $10,000 per year, per report that was due. craig fuhr (18:37.553) Interesting. And then we were speaking right before we pressed the record button about there is something that actually went into place today, I think you said. Or that, yeah. And so if you're going to try to do it today, we'll hope that the IRS servers or whatever servers are handling this are robust. Because it appears there may be a rush of folks getting ready to file. So talk about that. Jack BeVier (18:37.766) Gotcha. Douglas Stein (19:02.742) Yeah, so historically, let's say historically, if you go back to ACCA, right? The healthcare act that came about, and everyone had to go online and try to sign up for health insurance. That was a failure, right? I mean, the systems kept crashing, nothing really worked, it lost your data, it didn't do all the things it was supposed to do. It was just bad. The hope is that FinCENSE got their stuff together a little bit better than that, and it won't crash. craig fuhr (19:12.177) Yes, right. Douglas Stein (19:28.614) I personally lack that confidence. It is the government, you know, they have a tendency to do all sorts of things and they may not have enough bandwidth to make it all happen, but it is open today. It was working this morning. So I was very excited about that. And we're, you know, my bet is people who, so only entities that are formed this year forward have to report within the next 90 days, right? Anybody have them to the end of the year, have them until January 1st of next year to do. Jack BeVier (19:51.442) the rest of us have until the end of the year. Douglas Stein (19:59.206) Why wait? Because if you're like me, you get to December, you forget you did everything, you have to figure it all out. We've already started scrubbing our clients to know who's got LLCs. We're going to have to do that. And it gets even worse if you have a trustee, because you may have a corporate trustee, right? And we ignore the corporate trustees. You have to go to the individuals who own it. And that's also very unclear on who actually gets reported. Is it the grantor, the person who created the trust? Is it the beneficiaries? is that some beneficiaries, not other beneficiaries. There's a lot of things we don't know about. Jack BeVier (20:31.59) When I so do I have to do a filing for every operating entity or every entity, right? Like if I've got a non operating entity that doesn't have employees doesn't have any, he doesn't even have an EIN doesn't have, you know, doesn't file a tax return, it's owned by another LLC. Do I have to file for that child LLC and disclose the parent the whole way up to the humans? Or do I just or can I just start at the operating entity level and disclose the humans above that? Douglas Stein (20:58.734) At this point, it's every single entity, even if it has been liquidated. Jack BeVier (21:03.114) even if it has been liquidated during that year. Douglas Stein (21:05.122) Yeah, yes. So it's a weird rule. If I form an entity, let's say this year and it terminates, or I formed an entity last year and I liquidated this year, technically as it's currently written, we're supposed to file for that. So even dead entities. Jack BeVier (21:20.358) So a lot of folks who are really concerned about this idea, right? Like they're seeking, you know, they're looking for anonymity. They don't want, you know, they don't want to, you know, they're, they don't want their business to be put out in the public sphere. A lot of them have gone a step beyond just LLCs and involve trusts, right? Because you can then have a trustee who's in Nevada and you know, there's no connect, you know, there's no obvious connection to the people who are the beneficiaries and absent. a court order, no obligation to disclose the trust documents and the rules behind that trust and who the beneficiaries are. So that's become a very popular structure for asset protection and anonymity for a lot of folks. How does this new law impact those trusts? Douglas Stein (22:05.39) So as it pertains to the government, the trusts are ignored and we go into the human beings. Jack BeVier (22:11.982) So those trusts are going to have, that'll be part of the disclosure. You're going to have to disclose that like, if someone's a beneficiary of a trust, that beneficial, that beneficial interest is going to be part of, is going to be part of this filing requirement. Douglas Stein (22:27.618) Correct. That's right. Yeah, it's the only thing... Jack BeVier (22:29.03) That's super interesting. And so what if you, what if you got a, what if you got a, yeah, I, and I'm not, you know, I know there's no case law or anything on this side, right? Like none of, nothing's been tested yet, but say you got a trust for your kids and you got four kids or you got six kids. So no one's above, no one's nest definitely above that 20% threshold. Are we disclosing that? Is the trust, you know, is the, is the trustee disclosing that because they're the one in control and they're also disclosing that there are these kids who may receive a benefit from this trust? How does that work? Douglas Stein (23:03.971) So that's about as clear as mud right now. The regs don't really deal with that in a meaningful way. In fact, the regs don't even seem to require the trustee to tell me who the beneficiaries are. I may have someone who has the power to change the beneficiaries. I don't think it makes it any better. I think it makes it worse, because I've got a report. So if I don't know who it is, I'm gonna throw everybody down that I could possibly think would be in that mix. Jack BeVier (23:06.032) Okay. Jack BeVier (23:25.858) Yeah. And if like, and is there any guidance on, you know, because someone like, do you might have the beneficiary because I received a benefit and the, and you know, and there was a hundred grand dis, you know, dispersed to beneficiaries and 50 of that went to, went to Joey is Joey now hit that threshold because he's above 20% and the other ones aren't because they didn't receive a benefit in that year or is it, or is the, the disclosure requirement based off of the potential to be, to receive a benefit? you know, is it actually is it actual benefit or potential benefit? Douglas Stein (23:56.331) at this year. Yeah, at this point, it's just the potential for benefit. And the question becomes, how far do I have to go? Almost every trust says, if everyone dies, who takes? So do I now need to report all those takers of last resort? Right. Or even upstream. It could be your parents. It really depends on the structure. It is not clear. They did not do a good job on explaining what happens with trusts at all. Yeah. Jack BeVier (24:02.661) Mm. Jack BeVier (24:11.11) downstream, right? Jack BeVier (24:22.738) Shaka. craig fuhr (24:24.601) Can we talk about quickly like the mechanism for reporting? It looks like this is a FinCEN is a part of the Treasury. And so I'm a guy, I've got an LLC or three, got a bunch of houses, thinking about buying some more. I don't want to go hire an attorney or an accountant to do all this for me. I think I can do it myself. Should I do that, Doug? And how would I, what is the mechanism for doing that? Douglas Stein (24:31.544) Mm-hmm. Douglas Stein (24:54.91) That's a harder question to answer. Um, I think it's one entity or two entities. The typical person can do it. You're going to have to go into the system. They'll have to register with the system. They'll have to get the UIN numbers. They'll have to upload their passport or their driver's license. And they'll have to report the one or two entities that they own. And they're going to have to do it. You can't do just one entity at a time. I'm sorry. You can't do two entities or four entities. It's one entity at a time. Um, we got a number from FinCEN so we can file as many as we want using the same number, but we have to. all the relevant data. I think once you get beyond, let's say, five, you're talking real time, and you're talking real risk, it's probably better to hire people. I have no doubt that someone's going to create something out there to make it easier. Yeah, consultancy, an app, or something that someone's going to create. But until then, this is going to be ugly. And if you read, I mean, reading the comments are fascinating to me, because we read through the comments as they were coming through. Jack BeVier (25:39.418) Some consultancy, yeah. Douglas Stein (25:54.674) And people were saying, well, it's about time we know who owns the real estate. Literally they would say in New York, the Chinese are buying up the real estate in New York, we need to know who owns it. Right. Which is just, first of all, why you'd ever put this stuff in writing is shocking to me. But it's, you know, it's clear that people want to know who owns stuff, right? It's just a different form of voyeurism. And that's where it's going to head. craig fuhr (26:18.757) You know, I could see both sides of that coin, even though I'm a much more on the side of privacy. But I'm just concerned for the average guy who is trying to traverse all of this while still maintaining a business and trying to grow it, how tough this is going to be to sort of get through. Douglas Stein (26:46.466) So I've always believed if your structure is based upon anonymity, you will fail. I always assume in the end, everything's going to be known. Any decent attorney will get that information anyway. I'm always worried about the unanticipated consequences. Every law has got these, has a consequence and no one anticipated. And they just, they bite people. That's why they're there. They're made specifically to bite you. This one's got me concerned. It has me concerned just because I think the typical person doesn't know their obligation. I was talking to an attorney last week. They said, well, it doesn't apply to LLCs. And I said, well, show me that. I mean, that'd be awesome, man. They went back and they said, well, OK, we're wrong. It applies to all LLCs. I'm like, OK. How about LPs, limited partnerships? It applies to limited partnerships. Basically, anything you form is now subject to it. Even a general partnership. craig fuhr (27:18.463) Right. Douglas Stein (27:41.654) technically is subject to these rules. And from a tax perspective, GP could be as simple as we just both agree we're gonna share in the lottery ticket. Now I've got a general partnership and I don't have to report that. So I think I'm hopeful that the government is gonna be reasonable. We all know how likely that is to be the case. I think from the typical person, the government probably isn't gonna pursue them historically. They like to go after bigger cases and make a bigger splash. Jack BeVier (27:52.815) Mm-hmm. Douglas Stein (28:10.614) that make people look bad. But give them time. Know I'm confident it's just gonna be another thing they'll throw onto the list. craig fuhr (28:43.805) All right, folks. Well, we have Doug Stein coming back for one more episode. I hope you enjoyed this one. This is Craig Fuhr and Jack BeVier with attorney Doug Stein, we'll come back for the next episode tune in.