Beware of Your CPA's Advice on Asset Protection

When we take on a new physician client, we often find that they have received little advice or direction from their CPAs in the area of asset protection. As a CPA with more than 20 years of experience and an attorney lecturer to CPA groups nationwide, we are surprised by how little attention this area of financial planning is given. Ask yourself: Has your CPA helped you shield your assets from unnecessary exposure? The answer is usually “no.”

Unfortunately, even when a doctor does get asset protection advice from his/her accountant, the advice is often wrong. Common mistaken advice ranges from “you don't need to worry about asset protection, you have insurance” to “why create a professional corporation for protection… it's not worth the expense” to “just put the assets in your spouse's name—it'll protect you.”

Let's take each of these common myths and review them separately:

1. “YOUR INSURANCE PROTECTS YOU”

We strongly advocate including property and casualty (P&C) insurance as part of your asset protection plan, but an insurance policy is 50 pages long for a reason. There are a variety of exclusions that most dermatologists never take the time to read, let alone understand. This is true for personal policies, like homeowner's, car, and even umbrella insurance; as well as business policies, the most important of which for physicians is medical malpractice.

Even if your policy does cover the risk in question, there are still risks of the claim going beyond coverage limits (malpractice judgments do periodically exceed traditional $1/3 million coverage), strict liability, and bankruptcy of the insurance company. In any of these cases, you could be left with the sole responsibility for the loss. Lastly, even if all of your losses are covered within coverage limits, you may see your future premiums skyrocket.

For these reasons, it is unwise to rely solely on insurance for your protection, especially when many asset protection techniques will generally save you on taxes and help you build retirement wealth.

2. “YOU DON'T NEED A PROFESSIONAL CORPORATION (PC)”

We have talked to more than 100 physicians, including a number of very successful dermatologists, over the years who have followed this advice from their accountant. The main justification seems to be the expense ($1,000 or so to create, a few hundred dollars per year) and the additional paperwork (tax return, minutes, etc). What is so troubling here is that physicians seem to follow this incorrect advice, while almost no other sophisticated businessperson would follow it. In our experience, no other owner of a significant business ($100,000 or more in annual revenues, with employees, etc.) would allow that business to operate in his/her own name.

When you fail to use a PC or other similar entity (PA, PLLC) to run your practice, you expose all of your personal wealth to any claim from the practice. While CPAs are quick to point out that the PC will not protect your assets from malpractice anyway (and that is correct), this advice ignores all liability risks created by employees that you might have nothing do with. For example, consider car accidents employees might get in when driving for the business (receptionist going to pick up lunch for the office) or a slip and fall in the office, or car accident in the parking lot, among many others. If implemented correctly, the PC would protect your personal wealth against all of these potential liabilities and more…but, without one, all of your personal wealth could be vulnerable.

For this kind of protection, the small cost and paperwork seems to us well worth it. In fact, most CPAs themselves have such an entity in place…and nearly 100 percent of solo attorneys use one. Why is it not good enough then for small medical practices? We have no idea!

3. “USE A ‘DISREGARDED ENTITY' FOR TAX PURPOSES”

Related to the mistaken advice that a physician should avoid using a PC is this more-common misguidance for solo physicians; to have a professional entity, but to choose to have the entity taxed as a “disregarded entity” by the IRS. Essentially, a sole-owned LLC can elect not to be treated as a separate entity but, instead, to be treated as a “disregarded entity” where the profits or losses simply flow to Schedule C of the tax return of the sole owner (physician). While CPAs recommend this as a cost saving measure—saving the whopping cost of a simple tax return, perhaps $1,000 per year. By following this advice and using this form, the physician now endures the same risk as having no entity at all, that a lawsuit against the practice could “pierce the corporate veil” and attack all of the doctor's personal assets, even if s/he was totally uninvolved in the activity that created liability.

While subjecting all of the physician's personal assets to these types of risks in order to save $1,000 per year is bad enough, this is advice is also detrimental from a pure tax perspective. This is because by choosing a “disregarded” status for a sole owned LLC, the doctor may also pay more taxes on his/ her income every year than if he chose a different tax status… typically the “S” tax status would be superior here.

Thus, this advice is wrong on two levels: both asset protection and tax. Nevertheless, just in the last six months, we have worked with two extremely successful solo physicians who had been following the CPA advice to have disregarded entities. These are physicians with more than $1 million of annual income and both having significant net worth. If they can get this “advice” from their advisors, anyone can.

4. “JUST PUT YOUR ASSETS IN YOUR SPOUSE'S NAME”

Another common CPA mistaken advice about asset protection is that assets in your spouse's name cannot be touched. We cannot tell you how many physicians have come to us with their assets in the name of the non-physician spouse and assumed those assets were protected from lawsuits against the physician. To see how this legal interpretation is wrong, ask yourself:

• Whose income was used to purchase the asset?
• Has the doctor used the asset at any time?
• Does the doctor have any control over the asset?
• Has the doctor benefited from “the spouse's assets” in any way?

If the answer is “yes” to any of these questions, most courts find that at least half of the value will be exposed to the claims against the doctor. In community property states, it may be 100 percent of the value, as a community asset.

Another good litmus test is to ask the CPA what s/he thinks will happen in a divorce if you follow his/her advice and put all the assets in your spouse's name. We bet that s/he will say that the court will treat these assets as joint because you are still treating them as joint (living in the house, spending the accounts, paying the taxes). In other words, the court knows that you haven't really “given the asset away” to the spouse. Most likely, this is exactly the way the court will treat the assets for creditor purposes as well.

PROTECT YOUR ASSETS

In today's litigious environment, asset protection should clearly be part of any dermatologist's financial plan. It is unfortunate that so many doctors are often tripped up by poor advice from accountants. On our end, we try to educate CPAs in CPE lectures around the country. On your end, you should watch out for poor advice and meet with an advisor well-versed in these matters to be part of your team and work with your CPA.

To receive a free hardcopy of For Doctors Only: A Guide to Working Less & Building More, please call 877-656-4362. Visit www.ojmbookstore.com and enter promotional code PDERMAG for a free ebook download of For Doctors Only or the shorter For Doctors Only Highlights for your Kindle or iPad.

David B. Mandell, JD, MBA, is an attorney and author of five national books for doctors, including For Doctors Only: A Guide to Working Less & Building More, as well a number of state books. He is a principal of the financial consulting firm OJM Group www.ojmgroup.com. where Carole C. Foos, CPA works as a tax consultant. They can be reached at 877-656-4362 or mandell@ojmgroup.com.

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This article contains general information that is not suitable for everyone. The information contained herein should not be construed as personalized legal or tax advice. There is no guarantee that the views and opinions expressed in this article will be appropriate for your particular circumstances. Tax law changes frequently, accordingly information presented herein is subject to change without notice. You should seek professional tax and legal advice before implementing any strategy discussed herein.