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Changes To President Biden’s Build Back Better Package

President Biden presented his revised framework for the Build Back Better reconciliation package this morning, eliminating the previously proposed revisions to the Federal Estate Tax laws that were part of the previous versions of the package, including  (1) the accelerated drop in the Federal Estate Tax Exemption from $11.7 million to $6 million beginning as of January 1, 2022, (2) the elimination of Intentionally Defective Grantor Trusts, and (3) the elimination of discounts for lack of control and lack of marketability on certain business interests.

Instead, the new tax reform package focuses on revenue generation through:

  • 15% Corporate Minimum Tax on Large Corporations
  • 1% Surcharge on Corporate Buy-Backs
  • Global Minimum Tax
  • Penalty for Foreign Corporations
  • Surtax on Multi-Millionaires and Billionaires
  • Close Medicare Self-Employment Tax Loophole
  • Continue Limitation on Excess Business Losses
  • Investing in IRS Enforcement

It is unclear whether this revised framework will garner the votes necessary to get through Congress and whether the estate tax is revisited as a target for tax reform in the future.  At least for now, the President’s revised package provides welcome relief to many clients that were working to complete significant gifting transactions prior to the enactment of any new legislation.

The need for planning is still important as the Federal Estate Tax Exemption remains likely to “sunset” in the year 2026, based on current law. Therefore, we will continue to move forward with our strategic planning efforts, although the timing for completion has thankfully been extended.

Financial Exploitation of Susceptible Adults and Older Adults (Maryland SAFE Act)

  1. What is the Maryland SAFE Act?
    The SAFE Act, which was passed unanimously by Maryland legislature in 2021, goes into effect on October 1, 2021. It authorizes the Attorney General’s Office to take certain actions, including filing suit, on behalf of susceptible adults and older adults, and creates a new civil cause of action for susceptible or older adults, or their authorized representative to recover money lost through financial exploitation in Court.


  1. What does SAFE stand for?
    Stop Adult Financial Exploitation


  1. What issue did the Act seek to address?
    Prior to this Act, Maryland primarily had only criminal penalties specifically available to redress such issues, which caused difficulty for many susceptible or older adults who were financially exploited, and their families, to seek recovery. They were reliant upon the State’s Attorneys office in their county of residence, or other avenues such as reporting matters to the local Adult Protective Services. All too often these methods resulted in no action being taken. Families were often left with nothing to do unless they sought a guardianship over the susceptible or older adult to allow the guardian to file suit. Or they waited until the death of their loved one to file suit on behalf of the Estate seeking recovery.


  1. Who is protected under this new law?
    The law seeks to protect older adults, defined as anyone 68 years and older, as well as “susceptible adults.” Susceptible adults are defined as anyone unable to perform without help associated with daily living due to their advanced age, a disability or disease, or even habitual drunkenness or a drug addiction. Such help include using the phone, doing laundry and dressing, shopping, getting transportation, preparing meals, managing medication, and managing finances, amongst other day-to-day tasks.


  1. What is “financial exploitation”?
    “Financial exploitation” is defined in law as an act taken by a person in a position of trust and confidence with the older or susceptible adult, who knowingly obtains or uses the older or susceptible adult’s assets with the intent to deprive the adult of the use or possession of those assets. Financial exploitation is further defined as the use of deception or similar tactics or obtaining a consent when the exploiter knows or should know the adult lacks capacity to consent; to deprive the older or susceptible adult of their property.


  1. What rights does the new law give to susceptible and older adults?
    The Act allows them or their agents/family members to contact the Attorney General’s office or bring a civil cause of action (i.e., file a lawsuit) against the exploiter seeking recovery of misappropriated assets.


  1. Who can bring a lawsuit under the SAFE Act?
    Of course, the susceptible or older adult themselves may bring the suit against the exploiter, but so may the victim’s attorney. In fact, a guardian, trustee or other fiduciary; a spouse, parent or descendant of the victim; an heir or beneficiary of the victim; and even the victim’s personal representative, sometimes known as an executor of the Estate, if the susceptible or older adult has passed away may also bring the suit.


  1. When must a lawsuit be filed?
    The statute of limitations to bring a claim under the SAFE Act is five years from the date the exploitation occurred, or the potential plaintiff discovered, or should have discovered, the facts constituting the financial exploitation. This is significantly longer than the standard three-year limitation period in Maryland.


  1. If a plaintiff files suit and is successful, what damages can the Court award under the SAFE Act?
    The Court can award a maximum of three times the compensatory damages, or the amount the exploiter took or deceived from the victim. Unlike the traditional civil equitable claims limited to recovering what was taken improperly, the ability to obtain more than what was taken under the Act serves as punitive damages in a tort action to discourage such bad behavior. In addition, the Court may award any number of more traditional and equitable remedies including an injunction, recission of a contract, restitution, declaratory relief, and a constructive trust, amongst others.


The litigation team at Bagley & Rhody, P.C. focuses their practice on contested estates and trusts related matters, including representation of matters addressed by the SAFE Act. Click here for more information to specific types of litigation matters handled by the Firm and the members of the litigation team.

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