IMPROPER MONEY TRANSFERS COULD BECOME CRIMINAL

Author

Advocates in Aging| Law Office of Wiesner Smith

Posted on

Mar 24, 2021

share-this
Share This
Beginning next year, it could become a criminal offense to evade the rules on transferring money to family or friends in order to qualify for government-financed nursing home care.
Tucked away in the fraud and abuse section of a health insurance reform bill that President Clinton signed in August is a provision that makes it a felony for a person to transfer assets less than three years before applying for long-term care benefits under Medicaid. Medicaid, the health care program for the poor, is jointly financed by state and federal governments. The program pays more than half of all the nursing home bills in this country and is one of the fastest growing segments of state budgets.
Medicare, the fully federal health care program for those 65 and older, generally does not cover nursing home bills. Nor do private medigap policies. That leaves only private funds, long-term care insurance or Medicaid to pay for nursing home care.
With nursing home bills averaging $40,000 year, many elderly people simply cannot afford to pay them and must immediately turn to Medicaid for help. Other people enter nursing homes as paying patients, but turn to Medicaid once they use up their savings.
But the concern is over the increasing number of middle- and upper-income people who, with the help of attorneys, arrange their finances so as to preserve the bulk of their assets for their heirs while becoming poor enough - at least on paper - to qualify for government nursing home payments.
Under current law, anyone who transfers assets within three years of applying for Medicaid can be denied benefits for a period of time. The new law, which takes effect next year, will make that kind of asset shifting a criminal offense, punishable by up to five years in jail and or a $25,000 fine.
There are differing opinions as to how the new law will actually affect the elderly, their families and their legal advisors.

"The intent is not to put Grand-ma in jail but to have a chilling effect on the Medicaid estate planning bar," said Stephen Moses, research director of LTC Inc., a private firm that designs and markets long-term care insurance.
"I don't expect anybody to be prosecuted under it," Moses added. But he hopes the mere threat of criminal prosecution will refocus the national debate on how to finance long-term care.
Ira Wiesner, president of the National Academy of Elder Law Attorneys (NAELA), whose members specialize in Medicaid estate planning, called the new law "unprecedented" and said it was decidedly the wrong approach to long-term care problems.
"Out of an inability or unwillingness to deal with the fundamental issue of society's need to take care of its citizens who suffer long-term chronic illness, the best solution they can come up with is putting seniors in jail," Wiesner said. "They are hurting the wrong people and they are not addressing the problem."
Moses of LTC Inc. believes the way to address the problem of long-term care is for people with money to take personal responsibility for their future. That means using their private savings or purchasing long-term care insurance (which his firm sells) to pay for their own nursing home bills, preserving Medicaid's scarce resources for the truly needy.
"It is very sad that it has come to the point that Congress concluded that it has to criminalize Medicaid estate planning," said Moses. "But I understand the anger and frustration of public policy makers who have been unable, despite 15 years of attempts, to constrain the flow of these funds to middle- and upper-middle-class seniors."
James Felman, a criminal attorney in Tampa, Fla., who analyzed the new law for NAELA at Wiesner's request, said he doesn't expect the government will ever get the chance to flex its muscle on this issue.
"I cannot imagine the federal government would have much interest in prosecuting a helpless old person," Felman said. The more likely targets, he said, would be the beneficiaries of an egregious case of asset transfer - for example, adult children who would inherit a nursing home patient's money, or the lawyers or financial advisors who set up the plan.
But Felman says the law is so poorly worded that he doubts it would survive a court challenge.
Felman explained that the law only applies criminal sanctions when someone is denied Medicaid benefits.

Submitted By: Advocates in Aging| Law Office of Wiesner Smith- click for more information*
Written By: Mary Beth Franklin, Maturity News Service

Other Articles You May Like

Downsizing or Selling Your Home in Retirement: Tax Implications to Kno

Downsizing or Selling Your Home in Retirement: Tax Implications to KnowSelling the family home is one of the biggest financial decisions many people make in retirement whether you're downsizing something smaller, moving closer to family, or relocating somewhere warmer. Before you list the house, it's worth understanding how the sale could affect your taxes.The Good News: Most Home Sellers Owe Little or No TaxUnder federal tax law, homeowners can exclude a significant amount of profit from capital gains tax when they sell a primary residence: Up to $250,000 in gain excluded for single filers Up to $500,000 in gain excluded for married couples filing jointly These limits have stayed the same since 1997 they aren't adjusted for inflation but for most sellers, especially those who haven't owned an especially high-value home for decades, they're enough to eliminate the tax bill entirely.Do You Qualify for the Full Exclusion?To claim the exclusion, you generally need to pass two tests: Ownership test: You owned the home for at least 2 years during the 5-year period before the sale. Use test: You lived in the home as your primary residence for at least 2 years during that same 5-year period. For married couples claiming the full $500,000 exclusion, both spouses need to meet the use test, though only one spouse needs to meet the ownership test. If only one spouse meets the use test, the exclusion drops to $250,000.If you don't fully meet the two-year requirements but had to sell due to a job change, health issue, divorce, or similar unforeseen circumstance, you may still qualify for a partial exclusion.How Your Gain Is Actually CalculatedThis is where record-keeping pays off. Your taxable gain isn't your sale price it's your sale price minus your cost basis, which includes: What you originally paid for the home The cost of qualifying capital improvements over the years (a new roof, an addition, major renovations not routine repairs or maintenance) Selling costs, such as agent commissions Every dollar documented improvement raises your basis and lowers your taxable gain. If you've owned your home for decades, digging up old receipts and records for major projects can make a meaningful difference sometimes the difference between owing tax and owing nothing at all.What Happens If Your Gain Exceeds the ExclusionIf your profit is larger than your exclusion amount, the excess is taxed as a long-term capital gain (assuming you owned the home more than a year), generally at 0%, 15%, or 20% depending on your overall taxable income. For higher-income sellers, an additional 3.8% Net Investment Income Tax may also apply above certain income thresholds. This is more common than it used to be for retirees who've owned a home for many years in an area where property values have risen substantially.A Few Other Situations Worth Knowing Home office deductions: If you claimed depreciation on a home office in past years, that portion is generally "recaptured" and taxed differently when you sell, separate from the main exclusion. Selling a second home or rental property: The primary residence exclusion generally doesn't apply to vacation homes or rental properties. Different rules, including possible depreciation recapture, come into play. Inherited homes: If you're selling a home you inherited, the property typically receives a stepped-up basis to its fair market value at the time of the original owner's death which can significantly reduce or eliminate taxable gain compared to using the original purchase price. Using the exclusion more than once: The exclusion isn't a one-time benefit. You can generally use it again for a future home sale, as long as you meet the ownership and use tests again and haven't claimed it on another sale within the prior two years. Why Planning Ahead MattersThe tax side of selling a home is often simpler than people expect, especially with the exclusion in play but assumptions can be costly in either direction. Some retirees overestimate their tax exposure and hesitate to sell when they'd actually owe little or nothing. Others underestimate it, especially with a long-held, appreciated home, and are surprised by a gain above the exclusion. Reviewing your specific numbers before you list the home, rather than after the sale closes, gives you room to plan.Thinking about downsizing or selling a home in retirement? Contact Zunic Advisory Services to walk through what the sale could mean for your taxes.

Required Minimum Distributions Explained: What Seniors Need to Know

Required Minimum Distributions Explained: What Seniors Need to Know Each YearIf you have a traditional IRA, 401(k), or similar tax-deferred retirement account, the IRS eventually requires you to start withdrawing money from it whether you need the cash or not. These withdrawals are called Required Minimum Distributions, or RMDs, and getting them wrong can be costly. Here's what to know.What Is an RMD?An RMD is the minimum amount you're required to withdraw each year from certain retirement accounts once you reach a specific age. The rule exists because these accounts let your money grow tax-deferred for decades the IRS eventually wants its share, so it requires withdrawals (which are taxed as ordinary income) to begin at a set point.RMDs generally apply to: Traditional IRAs SEP and SIMPLE IRAs 401(k), 403(b), and most other employer-sponsored retirement plans RMDs do not apply to Roth IRAs during the original owner's lifetime, and as of 2024, Roth 401(k) and Roth 403(b) accounts no longer require RMDs either.What Age Do RMDs Start?The starting age has changed more than once in recent years under the SECURE Act and SECURE 2.0, so its worth checking which rule applies to you based on your birth year: Born 1950 or earlier: RMD age is 73 Born 19511959: RMD age is 73 Born 1960 or later: RMD age is 75 Because the rules phased in over several years, it's easy to be working from outdated information especially if you read something a few years ago. When in doubt, confirm your specific required beginning age rather than assuming.The First-Year Deadline Is a Little DifferentYour very first RMD comes with a special option: you can delay it until April 1 of the year after you reach your RMD age, rather than taking it by December 31 of the year you turn that age.The catch: if you delay that first withdrawal, you'll need to take two RMDs in that same calendar year the delayed one and the current year's which can push you into a higher tax bracket. For many people, taking the first RMD by December 31 of the year they reach RMD age, rather than waiting, actually results in a smoother tax picture.After your first RMD, all future ones are due by December 31 each year.How Is Your RMD Calculated?Your RMD is based on your account balance as of December 31 of the prior year, divided by a life expectancy factor from an IRS table (most people use the Uniform Lifetime Table). The result is your required withdrawal for the year. If you have multiple IRAs, you calculate the RMD for each one separately but can withdraw the total from any single IRA or combination of them. 401(k) accounts generally don't allow that same flexibility each 401(k) typically requires its own withdrawal.What Happens If You Miss One?Missing an RMD, or withdrawing less than required, comes with a real penalty: a 25% excise tax on the amount you should have withdrawn but didn't. That penalty can be reduced to 10% if the mistake is corrected within two years. Given how steep the penalty is, it's worth building a reliable system or working with someone who tracks it for you rather than relying on memory alone.A Strategy Worth Knowing: Qualified Charitable DistributionsIf you're charitably inclined, a Qualified Charitable Distribution (QCD) lets you transfer funds directly from your IRA to a qualifying charity. That amount can satisfy some or all of your RMD for the year without counting as taxable income which can help keep your adjusted gross income lower, potentially reducing how much of your Social Security is taxed and help avoid higher Medicare premium brackets. This is generally available starting at age 70, even though it's tied to satisfying RMDs that begin later.Why This Deserves Yearly AttentionRMDs aren't a "set it and forget it" task. Your required amount changes every year as your balance and life expectancy factors change, and a distribution can ripple into other parts of your tax return affecting how much of your Social Security is taxable, your Medicare premium bracket, and your overall tax bill. Reviewing your RMD strategy annually, rather than treating it as a single calculation, often uncovers opportunities to plan more efficiently.Want help calculating your RMD or building it into your broader tax strategy? Contact Zunic Advisory Services we're happy to walk through where you stand.

Tax Breaks Seniors in Pennsylvania Often Miss

Tax rules shift as you move into retirement, and not always in ways that are obvious. Between federal provisions aimed at older taxpayers and Pennsylvania-specific programs, there are a number of tax breaks seniors qualify for but don't always claim sometimes simply because they don't know they exist. Here's a rundown worth reviewing.1. The Additional Standard Deduction for Age 65+If you or your spouse are 65 or older, you're entitled to a higher standard deduction than younger taxpayers. This is automatic if you claim it correctly when filing, but it's easy to miss if you're using outdated software, an old return as a template, or filing without noting your age.2. Pennsylvania's Retirement Income ExclusionOne of the most overlooked advantages of retiring in Pennsylvania: the state generally does not tax retirement income, including distributions from 401(k)s, IRAs, pensions, and Social Security, provided you meet the retirement age and eligibility requirements for the plan. Many retirees moving from other states are surprised by how favorable this treatment is but it only helps if your return reflects it correctly.3. Property Tax/Rent Rebate ProgramPennsylvania offers a Property Tax/Rent Rebate Program for eligible older adults and residents with disabilities, providing rebates on property taxes or rent paid during the year. Eligibility is based on income and age, and the application is separate from your standard tax return meaning it's easy to file your taxes and never realize you also qualified for this rebate.4. Medical and Dental Expense DeductionsHealthcare costs often rise in retirement, and medical expenses above a certain percentage of your adjusted gross income can be deducted if you itemize. This can include: Long-term care insurance premiums (subject to age-based limits) Certain home modifications for medical needs Mileage to and from medical appointments Portions of Medicare premiums Many seniors don't itemize because they assume the standard deduction is automatically better but for those with significant medical costs, it's worth running the numbers both ways.5. Credit for the Elderly or DisabledThis federal credit is aimed at taxpayers 65 or older (or those who are retired on permanent disability) who fall under certain income thresholds. It's a narrower credit with specific income limits, which is likely why it's frequently overlooked but for those who qualify, it can meaningfully reduce a tax bill.6. Charitable Contributions from an IRA (Qualified Charitable Distributions)For those 70 or older, a Qualified Charitable Distribution allows you to transfer funds directly from an IRA to a qualifying charity. This can satisfy some or all of a Required Minimum Distribution without the amount counting as taxable income a strategy that's often more advantageous than donating cash and claiming a deduction, especially for those who no longer itemize.Why These Get MissedMany of these breaks live in different places some are automatic line items, some require a separate application, and some depend on choices like itemizing versus taking the standard deduction. It's easy for a return prepared quickly or based on last year's template to miss one or more of them, especially as personal circumstances change year to year.A Second Look Can Be Worth ItIf you're not confident your recent returns captured everything you were eligible for, it may be worth a review sometimes amended returns can recover missed savings from prior years, depending on filing deadlines.Not sure whether you're getting the full benefit of these programs? Schedule a tax consultation with Zunic Advisory Services, proudly serving south central Pennsylvania since 2004.