Here we are in late January, and we find ourselves between year-end tax planning and the actual filing period for most individuals. CPAs and wealth planners are working together to design an ideal strategy for their clients, and there is a crucial change in 2010 that will have a significant impact on the year: the temporary repeal of the federal estate tax.

Yes, the one-year disappearing act of the federal estate tax has come to pass. Some believe that quick action will be taken to reinstate the taxes at 2009 levels (see below bullets for details). Others believe Congress will proceed cautiously in an attempt to enact more sweeping reforms. In either case, any reinstated tax may or may not be made retroactive to January 1, 2010.

Needless to say, planning under these circumstances is challenging. Indeed, the failure of Congress to either extend the 2009 estate tax rules into 2010 or enact a permanent estate tax law has created a slew of unfortunate consequences. Some important pieces of the puzzle are:

- Both the federal estate tax and the federal generation-skipping transfer tax (a separate tax on property given to grandchildren, great-grandchildren, etc.) are repealed for 2010 unless Congress enacts legislation to reinstate them, retroactive to January 1, 2010 or otherwise.

- Both taxes are scheduled to return in 2011 at levels that applied prior to 2001. That means a $1 million exemption and a top tax rate of 55% (in 2009, the exemption was $3.5 million and the top rate was 45%).

- The federal gift tax remains in effect with a $1 million lifetime exemption, and the top tax rate has dropped to 35% in 2010 (versus 45% in 2009).  However, at this point in time the maximum gift tax rate is scheduled to jump to 55% in 2011.

Along with the repeal of the federal estate tax come new rules for determining the federal income tax basis of inherited assets which, if not changed, could mean heirs will pay more capital gains tax.  (more…)

A recent fraud case caught my attention as it brought to life the concern I expressed in a November post (Small companies may get SOX audit relief). I wrote that “internal controls will always be a crucial piece of the business that streamlines financials and paves the way for airtight fraud prevention, regardless of audit requirements.”

Here we are less than two months later, and CFO Magazine is reporting on the fallout from a fraud case that could have been avoided with a better check on internal controls. The article cites the case of Koss Corporation, a small public company that was not subject to an internal controls audit and  which appears on the surface to have lacked sufficient segregation of duties — they paid dearly for it. A company Vice President is accused of skimming more than $4.5 million for personal expenditures over a two year period — a loss that a thorough audit of internal controls may well have uncovered or prevented.  As James D. Ratley, President of the Association of Certified Fraud Examiners indicated in the article, the fraud may have been prevented with the knowledge that auditors would be coming in to specifically audit internal controls.

This example will weigh heavily for those arguing against the permanent elimination of the audit requirement for non-accelerated public companies.

One of the most significant tasks introduced in 2009 was presented by new guidelines under the Massachusetts Privacy Law, which requires a slew of changes to administrative and security processes.  Compliance calls for a significant overhaul for many companies, and the deadline is just around the corner: March 1, 2010.  The marketplace has demonstrated an urgent need for a new standard of  information protection, so we do not expect a great deal of leniency for those that fall behind.  Companies need to take the new law seriously, gear up, and put appropriate defenses in place around the personal information of their employees and customers.

This is without question a daunting call to action, however the need for the law remains unquestioned.  In fact, a report published by the Office of Consumer Affairs and Business Regulation [PDF] notes that since 2007, over 1 million Massachusetts residents have been impacted by security breaches.  The report states that 495 incidents were criminal in nature, while 312 “generally demonstrated poor employee handling of residents’ personal information, including transporting sensitive data, either in disregard of company policies, or in an environment without sufficient policies in place to secure such information.”

A few additional findings from the report include:

- The OCABR received 807 notifications of security breaches

- Most breaches (76 percent) were electronic in nature

- It may have been expected that financial services breaches impacted the highest number of individuals (707,305), but it is perhaps a bit surprising to find that the second greatest impact was felt from incidents involving the education sector (130,161)

The law takes aim at improving defenses against the criminal element while shoring up process to reduce risk of negligent handling of data.  And most importantly, it applies to — by the letter of the law — all persons that “own or license” personal information from a resident of the Commonwealth, specifically any individual or company that “Receives, stores, maintains, processes, or otherwise is permitted access to personal information through its provision of goods or services directly to a person that is subject to this regulation.”

That means pretty much everyone.

The most important step to compliance might be the WISP - a Written Information Security Program (WISP) that ensures the security and confidentiality of personal information in both physical and electronic format. The actual scope and complexity of a WISP will vary depending on an organization’s size and scope of business, availability of resources, nature and quantity of data stored, and the need for security and confidentiality of both consumer and employee information.

There is of course much more to understand before diving in. We encourage you to take a look at this 2009 Perspectives article for more detail, including specific action items and consequences for failing to comply.