DealBook: Chief of Citigroup’s Banamex Unit in Mexico Steps Down

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Both Sides of California’s Health Rate Initiative Make Prop. 103 Comparison

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Opponents of Proposition 45 on the upcoming California ballot like to draw a comparison with Proposition 103, the state’s primary auto insurance law. So do its backers. Prop. 45 seems to have slipped in the polls. A Field Poll in …


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Wealth Matters: A Potential Game Changer for Estate Taxes on Art

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IN life, James A. Elkins Jr., a prominent Houston businessman and philanthropist, amassed a portfolio of art that was the envy of museums and collectors. He owned works by Pablo Picasso, Jackson Pollock, Jasper Johns, David Hockney, Willem de Kooning and other modern greats.


In death, that $35 million collection is the envy of the tax man.


After Mr. Elkins died in 2006, his estate paid millions of dollars in taxes on the art. But the Internal Revenue Service said it was not enough and asked for another $9 million. They have been battling in court ever since.


At issue is how to value fine art for tax purposes — and the estate’s recent victory in an appellate court may help reshape the rules.


The case centers on an increasingly common move among wealthy families with sizable art collections.


While they were still alive, Mr. Elkins and his wife, who died before him, had given their three children partial shares of two groups of paintings and kept a piece for themselves. The goal, in part, was to lower the estate tax bill by giving away shares of the paintings in his lifetime while also being able to keep the art on his walls.


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James A. Elkins Jr., left, and his father. Mr. Elkins’s estate successfully fought the I.R.S. in an appellate court over discounts on estate taxes for his art collection, earning a refund of $14 million plus interest. Credit Dmitri Kessel/The LIFE Picture Collection, via Getty Images

When he died, he still had a 50 percent interest in three works by Pollock, Picasso and the sculptor Henry Moore worth $10.6 million and a roughly 73 percent stake in another 61 pieces worth $24.58 million. His children owned the other shares equally.


The tactic — partial ownership of an asset or group of assets — is typical for passing on private businesses or real estate holdings. In such cases, the I.R.S. generally allows discounts on the assets when figuring out the estate taxes. For family-held businesses, the discount amounts to about 30 to 50 percent of the fair market value. On real estate, it is 20 to 50 percent, according to Carsten Hoffmann, managing director at FMV Opinions, a valuation firm.


The I.R.S. does so because it recognizes that those assets might be hard to sell to someone who is not a family member. And even if someone who was not a family member bought the stakes, the price would probably be lower than fair market value because the minority, nonfamily interest would most likely have little say in the transaction.


But art has been treated differently. Some portion of its value resides in the owner‘s being able to look at it. You can’t, after all, put a third of a Picasso on three people’s walls the way you can divide profits from a company. To comply with the rules of fractional ownership, the owners have to take possession of a painting for a period of time each year equal to their share.


Over the years, the I.R.S. has rarely given a discount for art that is split among heirs. That has been the case even though it would be difficult for the heirs to sell their shares independently — and even assuming it was possible, a price cut would be necessary.


Another reason for the I.R.S.’s reluctance is the museum factor. Many people donate percentages of a painting to a museum over several years so that the deduction matches their income. While the ultimate goal is to give 100 percent of the painting to the museum, people might be deterred from giving art gradually if the I.R.S. discounted the value for charitable gifts, said Ramsay Slugg, managing director at the financial firm U.S. Trust and author of “The Handbook of Practical Planning for Art Collectors and Their Advisers.”


In the Elkins case, the art is the only asset the I.R.S. is challenging. (Discounting race horses, which Mr. Elkins also owned, is apparently easier to do.) After presenting exhaustive data on the prices and rationale for discounting each piece, the estate settled on a discount of 44.75 percent for the entire collection.


But the I.R.S. said no discount should apply to the art. So the estate went to court. It initially got less than it wanted. While the Tax Court disagreed with the I.R.S.’s decision against a discount, it ruled that the discount used by the Elkins estate was too high. The court assigned a 10 percent markdown.


The estate escalated the fight, appealing the ruling to the United States Court of Appeals for the Fifth Circuit. Last month, that court reversed the ruling on the discount and chastised the I.R.S. for not providing any evidence to support its position. It also awarded the estate a refund of $14 million plus interest, based on discounts for pieces that ranged from 50 to 80 percent.


The ruling may have created a template for other wealthy families.


“I’ve had calls from estate planning attorneys that said they celebrated in the coffee room when this decision came out,” said Mr. Hoffman. “This is a deal changer.”


Mr. Hoffman was the appraiser in an earlier case involving discounted art, Stone v. U.S., which centered on half-interest in 19 paintings, including two by the impressionist master Hughes Claude Pissarro. In 2009, the Court of Appeals for the Ninth Circuit upheld a lower court’s 5 percent discount, citing the lack of supporting prices from the art world.


That does not mean it will be easy for other estates to get steep estate discounts on art past the I.R.S.


For one, the Elkins family had some pretty deep pockets to fund the effort. Mr. Elkins’s father founded a major law firm in Houston, and his wife‘s family helped start Exxon Mobil. He himself had a successful banking career until the bank he ran, First City Bancorp, crashed along with the oil companies it had lent to in the 1980s.


In the Stone case, the refund for the 5 percent discount amounted to $53,932.60. That is not chump change. But it is hardly a windfall given the associated legal bills.


“My genuine view is this is a great result for taxpayers, but I don’t think everything is clear,” said Diana Wierbicki, a partner and head of the global art practice at Withers Bergman, a law firm. “The I.R.S. dropped the ball. The I.R.S. pushed this idea that you should get zero.”


Eric Smith, an I.R.S. spokesman, declined to comment.


Mr. Slugg said there were practical ramifications of the ruling, namely that more families could start dividing up their art collections to get the estate tax break. But it is not necessarily practical to comply with the letter of the law. Such works have to be moved among the different owners so each had possession of it for a period of time commensurate with their ownership stake.


“The most common time when damage occurs is when a painting is moved,” he said. “There are all kinds of fractional interest considerations. It’s great for wealth transfers but not in the practical reality.”


He advised clients with collections to put the art — or their current fractional ownership stakes in the art — into a family limited partnership or a limited liability corporation that would then be the owner. One downside is the additional costs attached to setting up and administering these vehicles.


Another option to stay in compliance with the law is for the owner to give the art to the heirs and rent it back. The art can still hang on the wall, while the heirs receive a percentage of the value each year as its owners. Such arrangements are common in areas like real estate where a person might give a townhouse to his children and then rent it back for a certain number of years.


For art, it is a newer concept. Paul Provost, deputy chairman of Christie’s, said the auction house had been developing a methodology to charge rent for art. He said the starting point was the rental values for art valued at less than $20,000. Such art, he noted, often gets rented by home stagers.


Christie’s takes that and extrapolates the value upward; it then considers a qualitative assessment of the art. “A lot of clients have just been coming up with their own number,” he said.


Whichever strategy someone chooses, though, valuing art shares is not an exact science. Mark L. Mitchell, director of valuation services at Peterson Sullivan and one of the three expert appraisers in the Elkins case, said that the collectors’ passion was what made it so difficult.


“Art could be owned by someone who is not concerned about generating a return on investment but would still derive an enormous nonmonetary value,” Mr. Mitchell said. “A fractional interest so diminishes the nonmonetary part of it that people simply don’t want to do that.”


Or put another way, other assets are less emotional to carve up. “You really don’t get any nonmonetary return from owning a stock or a bond or a piece of commercial real estate,” he said.


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Your Money: Beware of Shifting Options Within Medicare Plans

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For millions of older Americans, it is time to sift through the mind-boggling array of Medicare plans.


There is an average of 29 drug plans to digest, and about 18 options for Medicare Advantage, the plans delivered through private insurers. Then there are the 10 supplemental plans that cover what traditional Medicare does not.


The choices can be paralyzing for anyone, and they can be even more challenging as you age. The Medicare open enrollment season, which runs from Oct. 15 through Dec. 7, gives individuals a chance to rethink it all and reassess whether their plan still fits their needs.


While no broad-based changes are expected, there could be meaningful shifts within individual plans. Maybe your Part D prescription plan will no longer pay for one of your drugs, or you started a new one. Or perhaps your Medicare Advantage plan has squeezed your favorite doctor (or worse, a cancer treatment center) out of its network.


“People treat this as a momentous decision but they get scared of it, and the thing that worries me is that they don’t make the changes that they should,” said Joe Baker, president of the Medicare Rights Center in New York. “Don’t stay in a plan because you’re overwhelmed with the choices.”


Elizabeth Cooper, a 68-year-old former elementary schoolteacher, weighs her options each year. She has already tried a couple of plans, including one through Medicare Advantage, which lured her in because it had no monthly premium. But the plan required her to shoulder a significant share of her medical costs.


She is healthy now, but she thought it could become a problem down the road given her history of skin cancer. “I didn’t feel that would give me a sense of ease because of the co-pays and the possible unexpected expenses that can crop up,” said Ms. Cooper, of Birmingham, Ala.


So she backed out of that plan during the trial period, and opted for peace of mind. She enrolled in original Medicare, and bought a supplemental policy for about $135 a month that covers items like deductibles and her share of each bill. After having a few diagnostic tests this year, her decision already paid off.


“Had I been on the Advantage plan, I would have had to come up with the money for each test,” she said. “It turned out to be a reasonable plan for me. And for that reason, I plan to stick with it.”


Here are some ideas on how to approach the decision-making process.


A REFRESHER COURSE Before delving into the details, here is a quick primer on original Medicare: Part A covers hospital and skilled nursing facility stays, as well as some home health visits and hospice care. Part B covers preventive care, doctor visits and outpatient services. Premiums, for most retirees, were $104.90 a month last year and are projected to be the same in 2015.


Deductibles, co-payments and coinsurance (that is when you pay for a percentage of medical services) can be burdensome since there is no out-of-pocket ceiling, experts said. That is one of the reasons most people buy supplemental coverage, known as Medigap, to cover out-of-pocket costs on Parts A and B. People lucky enough to have retiree employer coverage rely on that instead.


Medicare Part D, which is offered only through private insurers, covers drugs. The average monthly premium for such plans is estimated to be $32 in 2015, according to the Centers for Medicare and Medicaid Services.


Alternatively, you can just buy a Medicare Advantage plan from a private insurer, also referred to as Part C. It can serve as a one-stop shop because it covers Parts A, B and often a drug plan — and sometimes throws in extras like dental and vision coverage. Monthly premiums for Advantage plans are estimated to rise to $33.90, a $2.94 increase, in 2015, according to the Centers for Medicare and Medicaid Services. You pay that in addition to the Part B premium).


ORIGINAL OR ADVANTAGE? Some consumer advocates favor using traditional Medicare with a supplemental plan, largely because it is more predictable and you are free to see any doctor who accepts Medicare.


That is what Mr. Baker said he would recommend for his own grandmother. “I would say enroll in original Medicare and let’s get you the Medigap plan you might need when you are older or sicker,” he said. “If you are in original Medicare and you have a Medigap plan, you are pretty much set for life if you are happy with those things.”


Medigap, with 10 plan levels that are labeled with letters from A to N, is federally standardized coverage, which means coverage must be exactly the same across insurers. For instance, the option known as Plan F will pay for your Part A and Part B deductibles. “This is one area, once you decide on the level of coverage you want, where you can go for the lowest price because you know Plan F will be exactly like any other Plan F,” said Jocelyne Watrous, advocate at the for the Center for Medicare Advocacy.


Depending on the plan, the total cost of your premiums could come close to your final out-of-pocket cost for the year. In Connecticut, for instance, one of the most comprehensive Medigap policies is called Plan F. It costs an individual about $218 a month, or $2,622 annually. “But that’s it,” Ms. Watrous said. “You will pay that premium and it will cover all of your co-payments and deductibles.”


If you are contemplating switching from Medicare Advantage back to original Medicare — and you want to buy a supplemental policy — that is something you may want to do while you are younger and healthier. Later on, coverage may become more expensive or you can be denied altogether. With some exceptions, individuals are guaranteed coverage only if they buy it during a special period six months after their 65th birthday. During that time, insurers cannot refuse to sell you a policy because of a pre-existing condition or other medical issue, nor can they charge you more.


Outside of that safe period, you aren’t guaranteed coverage under federal law, though many states, including New York, extend greater protections. It is important to ask your local State Health Insurance Assistance Program, or SHIP agency, for more details. After you buy a Medigap policy, it generally cannot be canceled because you are old or sick.


ADVANTAGE Nearly 16 million people, or 30 percent of all Medicare beneficiaries, enroll in a Medicare Advantage plan. Most people are attracted by the plans’ enticingly low and sometimes zero premiums and, for certain services, low co-payments. Some even offer limited dental or vision coverage, advocates said.


The drawback of Advantage plans are their limited networks of providers. Doctors can drop out midyear. And consumers are responsible for all cost-sharing, which can be unpredictable. Those are capped at an out-of-pocket limit for in-network services of $6,700 in 2015, although the Center for Medicare and Medicaid Services recommends a limit of $3,400, according to Kaiser.


But it is difficult to calculate how fast you might reach those ceilings. “The cost-sharing requirements are often harder to compare because it requires consumers to anticipate what their health care needs might be,” said Tricia Neuman, director of the Medicare policy program at Kaiser. “Some advisers suggest considering what services you would need if you were sick and take a careful look at potential costs under various plans.”


People who travel frequently or who spend a significant chunk of time in another state also need to ensure that they will be covered. “Snowbirds need to consider whether the networks and coverage extends to two places,” said Nicole Duritz, vice president for health, education and outreach at AARP.


If you are already enrolled, the “annual of notice of change” sent to plan enrollees will detail changes in coverage, costs and networks. But if you are dissatisfied with your Advantage plan for any reason, you can unenroll from Jan. 1 to Feb. 14 and switch to original Medicare.


DRUGS Even if you are happy with your Part D coverage, don’t assume it will remain exactly the same. Lists of covered drugs often change or the company may insert new restrictions, limiting quantities or requiring you to try another drug first.


Go to the Medicare website’s Plan Finder, where you can enter your drugs, the dosage and frequency, as well as where you like to buy them. It will then show you what the plans cover and your total estimated costs for the year. “The plans are so complicated and there is so much variation and the only way to really compare is to use the Plan Finder,” Ms. Watrous said.


Don’t shop on just price alone. “The best and cheapest plan for you is the one that covers your drugs the best,” said Mr. Baker, who advised calling the plan itself, or even your doctor or pharmacist, who has a lot of interaction with the different plans.


RESOURCES Besides local SHIP agencies, advocates suggest that people check out the latest Medicare & You booklet, which all 54 million enrollees should have received in the mail by now. It’s remarkably clear. To talk to someone live, call 1-800-Medicare. Whatever you do, Mr. Baker advised, “Don’t renew blindly.”


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