Beyond Structured Settlements

NSSTA and NASP 2010 Educational Conferences - 4

The National Association of Settlement Purchasers (NASP) just raised the standard for structured settlement strategic discussion and analysis during its 2010 educational conference in Las Vegas.

Previous standards: the 2008 Structured Settlement Thought Leadership Conference and NASP's 2009 Annual Meeting.

NASP 2010 strategic anlaysis participants: Earl Nesbitt (NASP Executive Director and moderator); Peter Vodola (Co-Chairman of the NSSTA Legal Committee); Matthew Bracy (President of NASP); Craig Lessner (General Counsel of Peachtree); John Darer and Patrick Hindert (NSSTA members and industry bloggers); Richard Risk (SSP member); and Jeremy Babener and Tim Morbach (industry analysts).

Strategic Questions: Nesbitt challenged the NASP panel and launched the industry discussion with these strategic structured settlement questions:

• What has caused the decline in the primary structured settlement market?
• What steps has the primary market taken to improve its product and sales?
• Is the structured settlement market transitioning to a settlement planning model?
• If yes, what impact will this transition have for the primary and secondary market?
• What issues and problems does the primary market see with the secondary market:
  • Operating and administering their current portfolio?
  • Originating new business?
  • Administrative costs?
  • Complying with transfer orders?
  • Potential liabilities?
  • Beneficiary issues?
• How can the secondary market help improve and grow the primary market?
• How can the primary market improve the secondary market?
• What are the risks of a continuing adversarial relationship between the primary and secondary markets?
• How does the primary market view the positive secondary market recovery from the 2008 financial market collapse?
• What are the primary market annuity provider concerns with the secondary markets?
• How can the secondary markets help improve and grow the primary market?
• How can the primary market improve the secondary market?
• What are the risks if the relationship between the primary and secondary markets remains adversarial?
• How did the 2008 collapse of the capital markets impact the primary structured settlement market?

This S2KM blog post continues S2KM's reporting and analysis of the NSSTA and NASP 2010 educational conferences.

SSP and NSSTA 2010 Annual Meetings - 7

Tax laws and tax policy are critically important for structured settlements. Based upon interviews he conducted with structured settlement industry leaders, Jeremy Babener states in his recently published article about "Structured Settlements and Single-Claimant Qualified Settlement Funds":

"It seems roundly agreed that the ......structured settlement market owes its existence almost entirely to the tax subsidy."

With major tax reform predicted for 2011, both the SSP and NSSTA tax panels provided valuable and generally positive news and information plus new tax ideas for growing the structured settlement market. For a list of the SSP and NSSTA tax panel participants, see SSP and NSSTA - 6.

The most positive tax information was the declaration of support for structured settlements during the NSSTA meeting by key Congressmen including Max Baucus, Chairman of the Senate Finance Committee; Sander Levin, Chairman of the House Ways and Means Committee; and David Camp, ranking Republican on the House Ways and Means Committee.

Congressman Camp provided the most concise tax-oriented legislative endorsement of structured settlements. Camp stated: "With tax reform, everything is on the table. But structured settlements are not on the table. Congress has a long history of support for structured settlements on a bi-partisan basis. Don't expect much debate over structured settlements."

The new tax ideas for growing the structured settlement market were highlighted by Babener in his precursor presentation to the SSP tax panel titled: "Justifying and Expanding the Structured Settlement Tax Subsidy". Among Babener's ideas for improving and growing the structured settlement market, he recommends changing the current tax subsidy into a tax credit. According to Babener, who outlines his proposal in an article published in Tax Notes titled "Expanding the Structured Settlement Tax Exclusion", the current tax subsidy provides no benefit for structured settlement recipients unless they pay taxes - which many of whom do not. Babener's article is available on his Tax Structuring website.

Both the SSP and NSSTA 2010 tax panels featured Michael Montemurro, Branch Chief, Office of Associate General Counsel of the IRS. SSP has featured Montemurro on two prior tax panels.

Both the SSP and NSSTA tax panels addressed many of the same issues:

• Single claimant 468B settlement funds;
• Physical vs. non-physical personal injuries;
• Non-qualified assignments - including structured attorney fees;

NSSTA's tax panel also discussed tax issues related to confidentiality agreements and factoring by assignment companies.

By contrast with NSSTA, SSP allotted more than two hours (compared with NSSTA's one hour) for its tax panel. In addition, SSP offered Babener's introductory public policy discussion plus 40 minutes of follow-up discussion. The added time allowed SSP to incorporate Michael Montemurro into a broader discussion which included practical advice (Dan Hindert discussing 468B QSFs), criticism of current tax laws (Professors Gregg Polsky and Brant Hellwig attacking tax deferrals for non-physical injuries and plaintiff attorneys fees) plus extended public policy discussions including secondary market issues.

Both SSP and NSSTA deserve congratulations for their 2010 structured settlement tax panels. SSP's tax panel (organized and moderated by Richard Risk) has become the new industry standard - surpassing what NSSTA formerly and regularly featured as its "Tax Posse". NSSTA's 2010 tax panel (organized and moderated by Michael Miller) re-established NSSTA as an important educational resource for structured settlement tax issues.

For prior S2KM reporting about SSP and NSSTA, see S2KM's structured settlement wiki.

SSP and NSSTA 2010 Annual Meetings - 6

This S2KM blog post is the first of two S2KM blog posts about the SSP and NSSTA 2010 tax panels and is also part of S2KM's blog series about the SSP and NSSTA 2010 annual meetings.

The SSP and NSSTA tax panels offered the industry's best-ever discussions about structured settlement tax issues. This S2KM post introduces the SSP and NSSTA tax panel participants. Subsequent S2KM blog posts will summarize the tax panel discussions and provide additional S2KM commentary. For prior S2KM reporting about the SSP and NSSTA, see S2KM's structured settlement wiki.

SSP's tax panel

• Richard Risk as organizer and moderator. One of the plaintiff attorneys in the Spencer v. Hartford class action and honored as an SSP "Life Member" during the SSP 2010 meeting.
• Michael Montemurro - Branch Chief, Office of Associate General Counsel of the IRS.
• Daniel Hindert - Trial attorney based in Salt Lake City. Co-author of "Structured Settlements and Periodic Payment Judgments" with Joseph Dehner and S2KM's Managing Director, Patrick Hindert. Co-author with Craig Ulman of a 2005 American Bar Association article for judges about structured settlement factoring. Author of a 2010 article about Section 468B Settlement Funds for the Utah Association for Justice.
• Gregg Polsky - Law professor formerly at Florida State University and now teaching at the University of North Carolina. Co-author with Brant Hellwig of a 2010 law review article titled "Taxing Structured Settlements" published in the January 2010 edition of the Boston College Law Review.
• Brant Hellwig - Law professor at the University of South Carolina
• Jeremy Babener - author during 2010 of several public policy articles about structured settlements. Babener's articles are available on his website Tax Structuring. S2KM's reviews of Babener's writing and interviews with Babener are featured on S2KM's structured settlement public policy wiki. In addition to participating on the SSP tax panel, Babener spoke separately at the SSP meeting about "Justifying and Expanding the Structured Settlement Tax Subsidy".

NSSTA's tax panel

• Michael Miller as organizer and moderator. Former co-chairman of NSSTA's legal committee. Also summarized the Spencer v. Hartford settlement at the NSSTA meeting.
• Michael Montemurro - Branch Chief, Office of Associate General Counsel of the IRS.
• Kirk Van Brunt - a member of the NSSTA legal committee and a structured settlement taxation subject matter expert.