Thursday, January 28, 2016

Proposed VA Rules to Impact VA Aid and Attendance Benefits

Important changes are coming that will impact Veterans and their families who apply for the Aid and Attendance (AA) pension.  Although the public comment period has expired, it is not yet known when these changes will take effect.  Some of the changes involve significant departures from prior regulations and will require advanced planning before applying for benefits.  If you or a loved one are considering applying, it is best to do so now before these new changes commence.    

One of the proposed changes involves new asset and income limits in order to qualify for AA benefits.  The proposed net worth limits will track that of Medicaid, which is $119,220.00 for 2016.  Both income AND assets will be added together when determining whether an applicant qualifies for benefits.  An important excluded asset is a claimant’s home, provided it is a primary residence in a residential lot not to exceed 2 acres.  If the primary residence is more than 2 acres, unless the additional acreage is not marketable, the additional acreage could cause a claimant to be over assets and disqualify him/her for benefits.  In addition, annuities and trusts are deemed “covered” assets, meaning the value of them can be included in the asset/income calculation to disqualify a veteran or spouse. Likely the most notable change involves the addition of a look back period, similar to Medicaid.  However, the look back for the VA is three years (36 months), versus five years for Medicaid.  If there are improper transfers during that period of time, the VA may impose up to a 10 year penalty period.  Here, like with Medicaid planning, careful attention must be paid to asset transfers within the 36 month look-back period because the VA has proposed a short window to remedy an issue if a penalty is imposed. 
In another proposed regulation that is similar to Medicaid, provided a claimant meets all of the requirements to qualify for AA benefits, the VA has proposed that all pension beneficiaries complete annual Eligibility Verification Reports (EVR) to verify their income.  This means that the VA will monitor recipients of the pension benefit to ensure ongoing qualification

Lastly, the VA has proposed regulations that seek to define covered medical expenses.  To receive reimbursement for custodial care the claimant must require either regular assistance with two or more activities of daily living (ADL’s) or custodial care and assistance because a mental disorder makes it unsafe for the veteran or surviving spouse to be left alone.  ADL’s include bathing, showering, dressing, eating, toileting and transferring.  Payments to facilities will only be paid if the primary reason for the veteran or surviving spouse to be in the facility is to receive health care services or custodial care that the facility provides.  If the care is not for health or custodial care related services, it will not be considered an allowable medical expense.    

The above list is not exhaustive and only highlights some of the proposed changes that the VA intends to implement.  If you are thinking of applying for these benefits or have questions, you should contact an experienced attorney to assist you before these new regulations take effect.

If you have any questions about this or any Aid and Attendance pension matter, contact the attorneys at Brown, Paindiris & Scott at 860-659-0700 or klenda@bpslawyers.com

Tuesday, January 26, 2016

Short Sale Deficiency Forgiveness Extended through 2016

During the subprime mortgage crisis, beginning in 2007, short sales became a common way for homeowners to dispose of their property.  In a short sale, the bank allows you to sell your property for less than what is owed.  The difference between the amount owed and the sale price, also known as the deficiency, would normally be considered taxable income under 26 U.S.C. 61(a)(12).  For example, if a homeowner owes $200,000 on a home, and the bank receives $150,000 from the short sale, the difference of $50,000 would be considered taxable income to the homeowner, because it is money owed to the bank that the homeowner does not have to pay. This creates a large tax burden and is extremely problematic for people who are in the position of needing to short sale their property.

In response, Congress passed the Mortgage Forgiveness Debt Relief Act (MFDRA) in 2007.  The MFDRA amends the IRS code to essentially exclude any short sale deficiency from counting toward an individual’s taxable income.  In other words, that $50,000 owed to the bank that the homeowner does not have to pay will no longer be taxable as income to the homeowner.  There are of course, exceptions, and it generally only applies to the short sale of principal residences where the deficiency is $2 million or less.

The MFDRA originally applied to short sales completed through December 31, 2014.  Pursuant to the Protecting Americans from Tax Hikes Act of 2015 (PATH), it has now been updated to retroactively apply to short sales made in 2015 and to short sales made in 2016.  Further, PATH allows the MFDRA to apply to short sales “subject to an arrangement that is entered into and evidenced in writing before January 1, 2017.”  This means that taxpayers will not be taxed on the discharge of indebtedness related to a short sale completed in 2015 or 2016, or on a short sale agreed to in writing in 2016 but which doesn’t close until 2017.   

If you have any questions about this or any other real estate matter, contact the real estate attorneys at Brown, Paindiris & Scott at 860-659-0700 or rvongootkin@bpslawyers.com.

Mortgage Forgiveness Debt Relief Act of 2007, 110 P.L. 142, 121 Stat. 1803: https://www.congress.gov/110/plaws/publ142/PLAW-110publ142.pdf

Protecting Americans from Tax Hikes Act of 2015, 161 Cong Rec E 1821, Sec. 151: http://docs.house.gov/billsthisweek/20151214/121515.250_xml.pdf