Asset Protection for Real Estate Investors

Mike: Welcome to the FlipNerd.com podcast. This is your host, Mike Hambright, and on this show, I will introduce you to VIP’s in the real estate investing industry, as well as other interesting entrepreneurs, whose stories and experiences can help you take your business ot eh next level.
We have three new shows each week, which are available in the iTunes Store, or by visiting FlipNerd.com. So without further ado, let’s get started.
Hey, it’s Mike Hambright. Welcome back for another exciting FlipNerd VIP show. Today I have with me Clint Coons, who is the founding partner of Anderson Law Firm. He focuses on asset protection and tax reduction, and he’s an active speaker, a noted author, and a lot of other things.
He has some great information to share with us today on tax strategies, and what are the right legal entities, and how to keep yourself out of trouble a little bit. Before we get started with today’s episode, let’s take a moment to recognize our featured sponsors.
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Hey, Clint, welcome to the show.
Clint: Hey, thanks for having me.
Mike: Yes, yes, glad you’re on. One of the things that we were talking about just before the show is, after I’ve been in this business, when you become a veteran in this business, after you’ve been doing it a few years and get a bunch of properties under your belt, you start to realize how important it is to have a good attorney and a good tax adviser on your team.
They are the types of people that folks told you from the very beginning, “Build your team. Make sure you have a good attorney.” And you didn’t really feel the immediate pain; you didn’t know you needed it until you needed it.
So I’m glad that we’ve got you on to shed some light on these critical areas today.
Clint: Perfect.
Mike: Awesome.
Clint: It’s funny that you mentioned that. A lot of times, you don’t really know how good your team is until you’re involved in an audit, or you’re being sued.
Mike: Yes.
Clint: Hopefully, by that time you’ve had the right advice.
Mike: Yes. It took me a while to learn that, you’re right. Then you get to a situation where you thought you had a good attorney, but then you get sued. And he’s like, “Well, I’m going to hand your case over to somebody else because I’m busy right now.” It’s like, “Wait, I thought you were my guy.”
Why don’t you tell us a little bit about yourself and your background? About how you got into the practice of law in the real estate space.
Clint: Sure. I like to refer to my background as “real estate”. When I was a kid, my dad was an avid real estate investor, and he basically brought my brother and me up as indentured servants to his investing. We’d go out there, pick up nails, whatever we could. Then I became a framer.
So there was a time, when I was going to college, that I actually contemplated becoming a contractor. But in ’92, with the economic downturn that year, I found myself doing a lot of pick-up work, cleaning up other people’s messes on homes.
I live in Washington state; it’s always raining. I thought to myself, “This is not what I could see myself doing for the next 20 to 30 years.” So I continued on to become an attorney. What I brought with that was this background in construction, in real estate investing.
I saw the challenges that people faced, especially my father, when it came to owning properties. His father was an attorney, but not one time did his father ever sit down with my dad and say, “You should really consider doing something a little different, from an asset-protection standpoint.”
My father was just flying naked. He would settle suits. That’s the most economical way to handle lawsuits for him, because he had such a high risk of loss. Everything was in his own name. In fact, when I graduated law school, that’s when he got his first asset-protection structure implemented, his first LLC.
Because, of course, when I get done with law school, I’m now a different type of indentured servant. I’m on permanent retainer for life, so we structured him then.
Mike: Did you go straight through from college to law school?
Clint: No, I took a year off. During that year off, like I said, I was framing for that time. I also worked — you’re going to love this — as a plumber, as well, so two jobs.
Mike: All right, yes, that’s cool. When you were going to law school, did you know you were going to focus on real estate law?
Clint: My focus was tax and business planning in law school. Law school is not like a trade school. You go there; they teach you the basics. Then it’s really up to the professors and what ideology they have, to discover what you’re going to learn, so you have to pick it up on your own.
Mike: Are you an active real estate investor, yourself?
Clint: Yes, I am. So that’s like what you mentioned at the beginning of the show. There are so many attorneys out there who talk about asset protection, business planning, tax planning. But when it comes to real estate investors, I’m sorry, but most of them just don’t get it.
I’ve looked at plans before, and I’ll tell my client, “Yes, you have a really good plan here, and it will protect you in a lawsuit. But the problem is, try to get financing with that plan.”
Because the way sometimes attorney will structure people, it looks good on paper, but in the practicality of using that structure in your everyday real estate investing, that’s where it falls apart. So you’ve got a closing that you thought might be within 45, 60 days, and now you’re looking at 90 to 120. You have to go back to the seller and keep asking for extensions.
Because underwriting just doesn’t understand what you’re putting in front of them. So that’s a key component when it comes to protecting people, understanding that side of the business.
Mike: What are some of the most common mistakes that you see real estate investors make? I guess from an asset-protection, or a legal-protection standpoint, that are fairly easy things to put in place?
Clint: Trying to do it on their own. I see a lot of people go to LegalZoom, try to set something up for $800, $900. They get a document and they don’t understand what’s in there. They don’t understand what should be in there, as well, that is not there.
As a result of that, people have these structures that they think are going to protect them. That’s why — we talked about this at the very beginning — you don’t know how good it is until it’s tested. So I see that as a problem, many times the documents are deficient.
The other issue is they don’t know how to run them. I have a client here in Washington, and this is a situation where I created the entire structure for this person. And no matter what you told her to do, she was her own worst enemy. Because she wanted to run it her way.
Her way did not comport with the law. As a result, when the plan got tested, it failed. It had nothing to do with the structuring, it had to do with the fact that she didn’t have bank accounts set up for each of her LLCs. She had six limited liability companies and she thought, because her CPA told her, she could run it all through her corporation, the management company.
From a tax standpoint, the IRS would be happy with that, because he could account for it, which they were. But from an asset-protection standpoint, the court was not happy with the way she had run it. They basically blew through everything.
Mike: So you’re saying that kind of pierced the corporate veil? As they say.
Clint: Yes, right.
Mike: Yes, it’s interesting in my case. I don’t talk about this a whole lot, but I’ve unfortunately been sued a couple of times in the last few years. Due to things that were no wrong-doing on our part. It’s just a litigious society, and we got sued for something that was, in some instances, very frivolous.
You don’t really realize; you hear this: anybody can sue anybody. But they’re suing us and all of our entities, and us individually. It gets kind of scary when you go to your attorney, or to your insurance company and say, “Here’s the lawsuit.” And they say, “You’re not covered for that.”
You were covered for fraud, for example. And it’s like, “I didn’t do anything fraudulent.” “Well, they can still sue you for it.” In some states, in the state where I am, Texas, apparently they always through fraud into the mix because you could get triple damages.
It’s a scary world. Like you said, you don’t really realize what you have until you’ve been through it. Then you tend to way over-protect yourself, probably, so you don’t have to deal with that again.
Clint: You mentioned lawsuits. A big source of litigation right now for attorneys is toxic mold. I have properties where this has been a concern of mine in the past. In fact, one of the properties we bought years ago was flooded by the prior owner, because it was a repo.
I couldn’t sell it. It actually made the local news in Las Vegas. Nobody wanted to buy it because they were concerned about mold at this property. The thing is, when it comes to mold, it’s not covered under your insurance, because it is environmental contamination. So you’re on your own for that.
What’s so scary about it, there’s a show on ABC — I don’t know if it’s still on — it’s called “The Lookout”. It started last year. I watched the very first episode of this show. They had these “mold remediation experts” called in.
They wired a house; they put little cameras, microphones everywhere. They had two microbiologists go through this property and they said, “There’s not a single mold spore on this property.”
Then they start calling these guys; they called in, I think, six of them, they asked them to come in. Now keep in mind, these are the same people that a plaintiff’s attorney is going to call as an expert witness in a trial, to determine whether or not there was mold in your property, your rental.
They called in six of these guys, and I think four out of the six stated there was mold in the property. And their techniques were laughable. One guy went up and sniffed the sheetrock, and said he could smell mold behind the sheetrock.
Mike: He was part bloodhound
Clint: And they wanted $20,000, or some ridiculous sum to remediate.
Mike: What are some of the things that folks can do that are real easy? Obviously, aligning yourself with somebody who knows what they’re doing. I know a lot of folks don’t set up a legal entity, at all.
You talked about your father being the same way. The property is in your personal name. Obviously, that’s not the best thing to do from a tax standpoint either. Talk about some of the basic things like that that folk should avoid, I guess.
Clint: For my real estate investor clients, if they’re buying whole, what I’ll typically start them with is a land trust. And then flip that land trust into a limited liability company. The reason we use the land trust is to avoid the due-on-sale clause in the mortgage.
When you buy a piece of property, if it’s encumbered by a mortgage, you want to get it directly in the LLC for asset protection. But the problem is, if the lender discovers that transfer, then they can accelerate the note.
And let’s face it, interest rates are going to go up. The Fed has already stated their intention to raise rates. So there’s a strong incentive for lenders to look for people who have transferred title, just to take advantage of that clause and get a higher interest rate out of you.
So the way you avoid that is set up a land trust, which is a grantor trust, move it in. It avoids the due-on-sale clause issue, and you assign that interest to an LLC for asset protection. It does work; it does protect you in that manner.
Mike: Is that something universal? You could do it across the country? Or is that a state-by-state issue?
Clint: If you go to your local attorney and you bring up the term “land trust”, if you don’t live in on of those handful of states that has actually adopted it by statute, he’s probably going to tell you you can’t do it, or he doesn’t know what you’re talking about.
But you can, in fact, do it in any state. You can set these things up. They are either recognized by case law, or they’re recognized by statute. There are some differences in how you set them up, depending on the state. You need to be aware of that when you create a land trust, to ensure the protection is there. But generally speaking, they are available everywhere.
Mike: Okay. In terms of your practice, are you practicing coast-to-coast? Are you across the country?
Clint: Yes, we actually practice coast-to-coast. We teach a lot of workshops to real estate investors on asset protection. I was just recently in LA; before that I was in South Carolina, teaching an event. We bounce around the country, bringing this information to people.
Mike: What percentage of your business would you say is single-family type of investors, versus commercial?
Clint: I would say it’s probably about 75%.
Mike: Is single family?
Clint: Yes.
Mike: Okay, good.
Clint: We have a wide range. We have people who like to flip properties; we have wholesalers, commercial, and then residential, even private lenders. You find that sometimes you have people who are dabbling in all three, and it takes a different entity for different types of strategies.
Mike: Right. Speaking of legal entities, one of the questions that I’m commonly asked is what type of entity someone should set up? If they’re getting started? Or maybe they’ve been flipping houses, or wholesaling houses for a while, but they want to start keeping some properties as rentals.
I often start off my answer with, “You need to ask your attorney this, but here’s what I know.” What do you typically advise? I know it’s going to be different, based on their individual situation, but what’s the general advice that you give people, in terms of what to consider? Whether it’s an LLC, versus and S-corp. Not a lot of folks doing C-corps.
Clint: You hit on a couple of points there. If you’re going to flip properties, I’m going to recommend you do it through an entity taxed as a corporation. C or and S really depends on your individual tax situation, where we’re going to go with that. The idea there is to avoid dealer’s debt. I want to get that activity out of your name and not flowing down onto your 1040.
Then for those who buy properties and hold them long-term, it’s going to be a limited liability company.
Mike: Let me ask you. You said to get it out of your personal name. So an S-corp is typically going to flow through, so you’re saying you would typically recommend a C-corp then, if folks are going to flip properties?
Clint: No, it’s how it flows through onto your return that’s so important. Because we talked about it earlier, part of our practice is legal, but the other side is tax. So when we’re preparing returns, we want those returns to look a specific way, so that they don’t give rise to audit.
In 2011, the Treasury General came out and told the IRS to begin auditing real estate investors, and they’ve gone after them with gusto in the last couple of years.
Mike: Yes, I know. Okay, so go ahead and continue with rental properties. What is your general advice then?
Clint: With rentals, I would tell people to set up an LLC. And the question often comes up, “When do you set up the limited liability company?” If you don’t own the property yet, you need to set up an LLC. That depends on how you’re going to take title.
If you’re going to finance the property, it doesn’t matter. You can wait until after the property is acquired before you structure yourself. If you are going to pay cash, or if it’s an REO, you better have that LLC in effect prior to going in and putting in your offer.
What I’ve found in my own investing is that the banks have changed on this. They won’t allow you to take title in an entity different than where your earnest money check comes from or how you sign the PSA. The same with getting title on that; it’s a problem. So you want to have that entity in place if you’re going to be buying for cash.
What’s key here when talking about the entities is that so many people on the Internet, or marketers, talk about Wyoming, Delaware, Nevada. We do a fair amount of business in Nevada entities, given that we have an office in that state. But there is a lot of misconception.
Real estate investors think that they can set up an entity in Nevada, and then go and buy property in, let’s say, Georgia. Sometimes they won’t even register the entity there, which is a huge problem. Because if you want to get a tenant, you’re not going to be able to do it because you’re not licensed to do business. But you do register there.
The assumption that people operate under is that now I have a Nevada corporation, so that all the Nevada benefits trail into Georgia. In fact, they don’t. It’s a huge mistake for investors to set up these entities in other states and then register them to do business in the state in which they’re working. Because all they’re doing is benefiting the incorporator, that is the person who is charging them these annual fees to maintain your entity.
So there is an art to putting these structures together. I tell real estate investors, “Set up your entities in the state where the properties are located.” We’ll set up LLCs, let’s say in Georgia, Florida, South Carolina.
Then we’ll create a holding company, an LLC, in a state such as Nevada, that will own all of your out-of-state LLCs. So that Nevada LLC is never going to conduct business in any of those states that I just mentioned. It’s solely going to stay in Nevada. It’s going to own your separate LLCs.
That does two things for you. Number one, if you don’t live in a community-property state, all of those LLCs you set up for your real estate will not have to file Federal tax returns if you do it this way. Because it will be disregarded single member entities.
The second thing is does for you is you have the asset protection of that Nevada LLC. So if you, yourself, are sued personally, they can’t take your LLCs that are in Georgia, and Florida, South Carolina. They are completely protected. They can’t bust that Nevada LLC, because the charging order statutes in Nevada are so strongly in your favor, they’re not even worth going after.
The last thing you need to consider here, is that when you create that entity, I strongly encourage my investor clients to set it up as a partnership for tax purposes, to avoid producing Schedule Es, that have multiple properties on them.
This is what the IRS is looking at right now. Real estate investors with long-form Schedule Es, who have a lot of expenses there. When you have an LLC treated as a partnership, and all of those properties flow into one return, a 1065, that produces a K-1 to you, you’re able to massage it. Then it doesn’t create any red flags that are glaring, that stand out on your individual 1040.
So you get quite a few benefits from going down and setting yourself up in this manner.
Mike: Yes, it’s crazy. I talk to my wife about this all the time, because she is, unfortunately from her standpoint, our CFO, our tax person. She is our in-house attorney, all of those things. Although she is technically none of those, but plays that role.
It just gets to a point where sometimes you feel, as a real estate investor, or probably any small business owner, that you’re spending half of your life trying to figure out how much you own the IRS. How to minimize it. And how to stay out of trouble legally, even if you’re not doing anything wrong.
Clint: Absolutely. You know the next shoe to drop is going to be those self-directed IRA investors. The IRS this year has targeted real estate investments inside of IRAs, and corporations or LLCs that are owned by IRAs, by forcing the IRA custodian to start reporting on their IRA account-holders. What type of investments, if they fall in certain categories, which I just mentioned.
That’s just a part of the overall announcement by the IRS several years ago that they are going to focus on real estate investors and how they hold their investments. Unfortunately, most investors whom I run into, who have set up a self-directed IRA, have done something wrong. It’s just a matter of time before they get audited on it.
Mike: There are some pretty big, well-known companies that are structuring those people. Would you say it is people who are not working with those folks? Most people would assume, “I’m working with one of the big guys here, so I should be safe.” Is it even some of those guys maybe doing it wrong?
Clint: It’s not that I think they’re doing it wrong. It’s that they basically set you up and send you on your way. Then they will just stand back and say, “I set up the self-directed IRA. I didn’t tell you what you could or could not do. You’re on your own now.”
If you don’t know the rules, then you’re going to run into problems. There was a recent case, a tax court case, with a self-directed IRA. The individual had a LLC set up, owned by their IRA. They had rental real estate in it, and they were doing their own accounting for their rents, on a monthly basis. The IRS said, “Nope, sorry, that’s a prohibited transaction. You actually added value to your IRA, so we’re going to ding you on it.”
You see people who are borrowing money, using non-recourse loans on their IRA, and they’re not paying taxes on that income that is generated from that. Because they don’t know that they have to pay taxes. Their IRA custodian doesn’t tell them this. So they’re basically hanging them out to dry.
What’s sad is that you can solve all of these problems. Don’t set up a self-directed IRA; roll your money out and put it into a self-directed pension, like a profit-sharing or sole 401k. You take your scrutiny down from ultra-high, down to really low, because the nature of the plans and how they’re looked at by the Service and DOL.
Mike: Okay. I know that you spend a lot of time educating the investor community about some of the things we talked about here. I know you have an event coming up in Las Vegas, as well. Tell us a little bit more about how people typically tend to work with you and your firm. then a little bit more about how they could find out more.
Clint: What’s unique about our firm is that we look at each person, of course, as an individual. It’s not a one-size-fits-all approach. The way we structure out clients is that it’s a flat fee. So we approach everything not on an hourly basis.
I worked for an attorney like that in law school. I’d lick envelopes for one day out of the month, and we’d send these out to clients. They were never happy with the bill that they received.
So our role is to take both the tax, the asset-protection side, and put a plan together for somebody that is maximizing both benefits. We give you free consultation. You can come to our website at AndersonAdvisors.com, or give us a call at our phone number, 800-706-4741. Just ask to set up a free consult.
Our firm has several attorneys who will talk to you about asset protection and explain to you what you should be doing. Like I said, there is no charge. If you want to become a client, we’re happy to bring on more clients.
One of the things we offer that’s unique is that for our clients, you have on-going support at $35 a month. That is what we charge for what we call our “Platinum Service”. All our real estate investor clients have to do is call us; they can spend three or four hours a month with an attorney, and that’s all they ever have to pay. It’s worked out quite well.
Mike: So you have kind of a subscription program, where you pay $35 a month and you have access to advice.
Clint: You have access to advice by attorneys.
Mike: Yes, well, I know you have at least one new customer right now.
Clint: We reserve the right to cut you off at any time.
Mike: Okay, okay. Even if you get a few minutes for that, it’s probably well worth it. Awesome. And I know you wrote a book, so I want to learn a little bit more about the book. But I’d like to hear also about the experience of writing a book.
Have you written any other books? Or is it just the one, so far?
Clint: I’m in the process right now, with two books that I’m working on. I’m going back and forth. One is on general asset protection, because people kept asking me, “Clint, do you have something that’s just not so real estate-centric?” So I decided to bust one out when I was halfway through my second book on the real estate side. I hope to have both of them out this year.
What does it take to write a book? A lot of patience. I’m one of those, I can’t type when it comes to writing. I have to write everything out on legal paper, because that’s just the way I think. The thoughts flow.
The first book I wrote, it took me two and a half years. Finally, my wife just looked at me and said, “You’ve just got to quit. Put that thing down; it’s good enough as it is. Get it out there so people can absorb that knowledge.”
Mike: That book is called “Asset Protection for Real Estate Investors”, right?
Clint: Yes, it’s on Amazon.
Mike: Okay, so Amazon, I know you sell it on your site. We’ll add link to all the sites you mentioned for Anderson Advisors. Then you sell it on your website, as well, right?
Clint: ClintCoons.com, correct.
Mike: Tell us a little bit about why you write the books. I actually started writing a book about two years ago. It’s about a quarter baked, and it’s sitting in my DropBox file somewhere. Somebody recently told me that I need to finish that up.
Do you do it to help, obviously, acquire, or network with more prospective clients, and things like that? Is it something that you feel you have great information to share — of course you feel that way — and that you need to get it out there?
A lot of our listeners are very entrepreneurial. A lot of people with great information themselves. A lot of folks who really like the show the most are guests, or prospective guests of the show, as well. And a lot of folks I know have written books, or are thinking about it, or are in the process of it.
So I would love to hear your thoughts on why you do it? Or did I answer the question for you already?
Clint: Absolutely. You’re right, it’s a great tool to bring in clients. You know, one of the things that I’ve found with clients is that, the more education I can give them, the better they are to work with. Because it’s so difficult to work with somebody who does not understand the topics we’re discussing.
They invariably end up screwing it up. By having my book, if they purchased it, and they read it and they start to understand the strategies, then what I tell them sinks in. For me, besides that, I just enjoy writing.
I write a blog, and many times, the chapters in my book starts as a blog article. I start writing them thinking, “You know what, I just want to keep going.” And it just flows from there.
Mike: Expand on that, yes. Great. Well, we’re going to add links for your firm, and you, and how to get access to your book, all those things down below.
Clint: Great.
Mike: Any parting words on folks who are, let’s say, just getting started in real estate investing? Some of the things that they should think about as they get started?
Clint: The thing about it, when you get started in real estate investing, asset protection is really important. Many people, CPAs and attorneys will tell you to wait until you’ve got a bunch of assets before you go out there and put things together.
But you can just never predict when a lawsuit is going to hit you. You don’t know if you’re going to be audited. So taking simple steps now, you don’t have to be complicated, but if you take simple steps now, you ensure that if anything does happen down the road, you’re protected from Day One of your investing.
You see a lot of investors who make that fatal error. They go out and print business cards in their own name. They start going out there and trying to put deals together. A lawsuit can develop six years later, and they can be held liable for what happened before that had that entity in place. Then all of their personal assets are at risk.
So it’s just not worth it, especially like we talked about earlier, in this litigious environment today. Where you have so many attorneys out there, looking to make a quick buck. I wouldn’t do it.
Mike: Right. And I even know from personal experience. We were consolidating some legal entities to try to make our lives simpler this year, and we were really handicapped by some of the things we could do. Because if we moved it into certain entity types, it would be considered a sale and be a huge, taxable event for us.
We were limited by the fact of decisions that we made years ago. So I think it’s important to make sure you get those things done right up front.
Clint: yes, and thing about too, I often tell people to spend the money the first time. Get it set up right. Then after that, do you need the attorney to set up the rest of your structures? They are all the same.
I tell this to my clients. Once I’ve got the first LLC done for you, if you’re buying seven properties in Georgia and you want seven LLCs, you don’t need me any more. You have my docs; you can see what I’ve done, and you know each LLC that I create after that is going to be exactly the same as the first one.
If you know how to use a word processor, you can protect yourself. but that first document is so key to doing this.
Mike: Yes, great. Then do you want to tell us a little bit, really fast, about the event you have coming up in Vegas?
Clint: Yes, this is called our “INC U”. It’s a three-day event and is taught by our attorneys and our CPAs in our firm. We go into subject matters such as real estate investing, land trusts. We get into the taxation of these entities, and things you should be doing on your tax return to make sure that you’re not raising any red flags, deductions that are often missed.
It’s more of a higher-level class for people, so there is so base-level knowledge we expect that people are going to have when they come there. That they understand what an LLC is, because we’re not going to spend a lot of time on that. Basically, we want to take people and make sure that what they have is being fully optimized. Or if they are missing some components, what they should put into place to make sure they’re going to protected in 2014, going forward.
Mike: Awesome. Hey, thanks for joining us today, Clint. We really appreciate your insights and information.
Clint: Great!
Mike, Again, for anybody who wants to learn more, we’re going to have access to how to get hold of Clint many different ways, down below the video here.
Clint, have a great day. I appreciate your time.
Clint: You, too. Take care.
Mike: Thanks for joining us on today’s FlipNerd.com podcast. To listen to more of our shows and hear from incredible guests, please access all of our podcasts in the iTunes store. You can also watch the video versions of our shows by visiting us at FlipNerd.com.