Archive for the ‘Asset Protection’ Category

Eight Practices to Protect Your Corporate Cash

This week’s featured topic is provided courtesy of Wright Penning & Beamer client and friend Tom Buck. Thanks, Tom, for sharing this insightful piece.

Eight Practices to Protect Your Corporate Cash

by JT (Tom) Buck
an old entrepreneur

Eight Best Practices to Protect Corporate Cash from Being EmbezzledRecently, a very good friend had the unfortunate situation of an employee embezzling funds from his company. This was not sneaking an extra $20 onto an expense report. It was a concerted effort over a long period of time to steal and hide the misappropriation of large sums of money.

The employee had literally stolen several thousand dollars per month over several years. The embezzlement was hidden in legitimate looking, duplicate vendor invoices, checks which were signed by an authorized signer; which then were altered on the payee line. The volume of checks and invoices handled on a monthly basis obscured the false transactions. My friend was shocked at the behavior of this trusted employee. He was fortunate that insurance provided a partial recovery and that the company’s long-term prospects for success were not harmed once this was discovered. However, the loss, the effort for recovery, and the damage done to their culture of trust was extreme.

My friend is a very smart and trusting man. This led to the success of the thief for many years, yet, following this experience, several financial procedures in his company were changed to prevent a future occurrence of this type of theft. This story and the following practices were gathered from a review of best practices as recommended by two leading CPAs in Southeast Michigan and are shared for the benefit of other business owners. If implemented, these practices will greatly reduce the probability of your company having a similar experience.

Practice Number 1 – Disbursement Review
These best practices start with a complete review of all funds going out of the company. This particular practice would have, most likely, prevented the embezzlement at my friend’s company. An owner must review every disbursement item on the bank statement, comparing each item to the related invoices or originating transaction, every month.

Practice Number 2 – Review Endorsements on Checks
For every check written, read the endorsements on the back to ensure they are going where intended. Some banks do not return the paper checks in efforts to become more paperless. This may require viewing the backs of checks on-line.

Practice Number 3 – Review Cash Transfers
Some of your transactions may be through automatic transfers or pre-authorized withdrawals. This practice requires a specific review, every month, of all other transactions involving cash transfers including but not limited to: ACH, Tax, 401k transactions and other payments. Make sure these amounts match the expected payments and originating documents.

Eight Best Practices to Protect Corporate Cash from Being EmbezzledPractice Number 4 – Enter all Debits and Credits into the Accounting System
Many times smaller credits or debits can go unnoticed in the busy activity of a month. These can be in the form of a refund on a vendor invoice, or a discount for early payment, or perhaps even a small expense item paid for out of petty cash. These transactions are often not tracked well in the accounting system because they are small or seem unimportant. These debit memos and credit memos must be entered into the accounting system to have accurate accounting and to prevent the possibility of the funds they represent being misappropriated.

Practice Number 5 – Enter all Payables into Accounting
A bill, which arrives the first of the month and is due within the month, may be placed into the payments file and just entered into accounting as an expense opposite a cash payment. To track these fully, they should be entered as an expense opposite (increasing) the payable account, then cash opposite (decreasing) the payable account. Otherwise, payables records will be incomplete.

Practice Number 6 – Follow the Rules
Create a culture of following the financial rules. Contrary to a world where we want to see ‘out of the box’ thinking to improve our products, our services and our relationships with customers, the financial reporting and management arena is one where following the rules keeps bad things from happening. Any deviations from these particular rules should be well understood and documented.

Practice Number 7 – Background Investigations
Establishing the practice of performing background checks on employees who work with the accounting system, financial payments and financial receipts is a way to insure that the people handling these transactions do not have a history of malfeasance. As intrusive as this may feel, it is incumbent on owners, for the success of the enterprise to employ talent with the highest ethics for work in finance and accounting.

Practice Number 8 – Enforce Vacation Policy
The discovery of the malfeasance in my friend’s company occurred while the employee was on vacation and another employee was covering their responsibilities. This points out the wisdom of enforcing a minimum of a one-week vacation per year, with another employee stepping in, for those with financial responsibilities in the organization.

If these eight practices are followed, the likelihood of an employee escaping with corporate funds is greatly reduced. Owners often find having a personal focus on sales and operations to be of the greatest satisfaction as they apply their time and energy in their organization. While delegation of financial responsibilities seems prudent, regular time allocated to these practices will improve the results and security of the company’s resources. The embezzler from my friend’s company is serving time in jail as of the timing of this writing. While this prospective consequence deters most employees from stealing, without the above practices it is possible they could escape.

Thanks to Jim Bauters of UHY Advisors, Inc. in Southfield, Michigan, and to Kevin McKervey of Clayton McKervey, P. C. also of Southfield, Michigan, for their suggestions and contributions to the creation of this article. Thanks also to my friend for being willing to share a terrible experience to help others avoid the problem.

Dirk A. Beamer

Move Quickly to Recharacterize IRA Contributions

Recharacterize IRA ContributionsA deadline is looming. Assuming you filed your 2010 income tax returns on time, you have until October 17, 2011, to recharacterize contributions to Roth IRAs as contributions to traditional IRAs. This deadline may be important to you if converted your traditional IRA to a Roth last year betting that the market would perform well and that you would, as a result, enjoy significant tax-free earnings in your retirement years, but are now having second thoughts.

Brief window to convert to Roth IRA
The October 17 deadline also applies to the recharacterization of contributions to traditional IRAs as contributions to Roth IRAs. If you are one of the fortunate few whose investments have done well and you are feeling confident about future market performance, you may want to take advantage of this brief window to convert your traditional IRA to a Roth.

Traditional IRAs and Roth IRAsRefund of taxes
If you do elect to switch from one type of IRA to the other, the IRS will treat both the recharacterized contributions and the income attributable to those contributions as though they were in other type of IRA all along. For example, if you previously paid income taxes upon converting to a Roth IRA, you would get a refund of those taxes upon reconversion to a traditional IRA.

Contributions that do not qualify
Most, but not all, types of contributions can be recharacterized. Regular contributions to both Roth IRAs and traditional IRAs qualify, as do Roth conversion contributions. An example of a contribution that does not qualify is a tax-free rollover from one traditional IRA to another.

If you think you want to recharacterize your Roth IRA as a traditional IRA or vice versa, be sure to talk with your tax or financial advisor right away as the process can take some time to complete.

Lee Flaherty

Parental Waivers: The Continuing Saga

Parental Waivers Do Not Count For Much
In June of last year, we informed you that the Michigan Supreme Court held that parental waivers were unenforceable. At the same time, we were optimistic that the Michigan Legislature would pass a law that would give effect to parental waivers. Well, the Legislature did give us a law - MCL 700.5109: “Release for injury of minor during recreational activity” - but many are questioning whether the law changes anything.

Statute carves out large exceptions
MCL 700.5109 states that a parent or guardian of a minor may “release a person from liability… for personal injury sustained by the minor during the specific recreational activity for which the release is provided.” So, mom or dad can release the YMCA from liability for Jimmy’s soccer injury if the release was specific to the soccer activity. That’s not a bad start, but the statute goes on to carve out large exceptions, whittling away the strength of the statute.

Statute only applies to non-governmental non-profit organizations
The first exception (and the most glaring problem) is that the statute only applies to non-governmental non-profit organizations. If you operate a for-profit business that provides recreational activity, this statute does not apply, and you are not protected from liability - period. Representative John Walsh, R-Livonia, sponsored the bill and said that private, for-profit organizations weren’t included in the statute because “they probably have a greater opportunity to buy insurance.”*

When an individual or organization initially released is open to a lawsuit
Next, if the statute does apply to your organization, the release can only apply to an injury or death that resulted “solely from the inherent risks of the recreational activity.” Therefore, if Jimmy trips on a little divot in the soccer field and injures himself, as long as no one knew about the divot, the release could block a lawsuit against the non-profit organization. This is because tripping on an uneven patch of grass while running on a soccer field is likely an inherent risk of the sport. But, if the organizer, sponsor, owner, lessee, employee, agent, or other person causes or contributes to the injury or death through negligence (for instance, if the employee knew about the divot and forgot to warn the kids or take corrective action), the release is ineffective, and the individual or the organization initially released is now open to a lawsuit. With regard to this carve-out, Rep. Walsh stated, “[W]e still preserve the right to sue if there’s negligence involved, improper equipment, poor coaching, things of that nature. We didn’t want to leave the parents without any recourse, but we wanted to protect volunteer coaches and non-profits[.]“*

Our recommendations
Unfortunately, it appears that we find ourselves in precisely the same situation as last year – parental waivers do not count for much. Accordingly, we continue to recommend that organizations and individuals act prudently, maintain adequate insurance, and continue use of pre-injury waivers (understanding the limits of those waivers). Additionally, contracts that provide for the parents themselves to “indemnify” (or reimburse) the organization for any losses that arise from a child’s injuries may still be a viable option. While parents cannot contract for their children, they can enter contractual commitments of their own and agree that, “If my child is injured while participating in your activity – and if that injury leads to a claim against you – I will reimburse you for the cost of that claim.” Again, this tool is not nearly as clean or risk free as a release, but it might be useful in defending an injury claim.

*Brian Frasier, Esq., New Law Allows Some Parental Waivers, 25 Michigan Lawyers Weekly, 1 (2011).

Julie P. Cotant

Michigan Poised to Recover Medicaid Benefits from Estates

For several years now, Michigan Medicaid recipients have been waiting apprehensively for the state to implement a program whereby Medicaid benefits paid out during a person’s lifetime will be recovered from that person’s estate after death. Generally called “estate recovery,” this program is required by federal law. Michigan submitted its proposed program to the federal government four years ago, but cannot implement it until the feds approve it. That approval is expected at any time.

In anticipation of the federal approval, on July 1, 2011, the Michigan Department of Human Services will publish new policy detailing how it proposes implementing estate recovery. According to the new policy, estate recovery will only affect people who began receiving Medicaid after September 30, 2007, Medicaid recipients over age 55, and recipients who are permanently institutionalized regardless of age.

When estate recovery takes place
Estate recovery will not take place until after the Medicaid recipient dies. If the Medicaid recipient is survived by a spouse, by a child who is under age 21, or by a child who is blind or permanently disabled, then there will be no estate recovery until after those persons die.

The state may decide not to pursue recovery at all if recovery will create an “undue hardship.” Undue hardship exists when the assets of the Medicaid recipient are the sole source of income for surviving family members, such as a family farm or business. It also exists when the home is of “modest value” or when a survivor would become eligible for Medicaid if estate recovery were to occur.

Asset preservation strategies
Importantly, the state will only seek recovery from a decedent’s assets which pass through probate court. This means that a number of asset preservation strategies are still available, such as joint ownership, ownership subject to a life estate, and beneficiary designations on accounts and life insurance policies.

Assets exempt from estate recovery
Finally, there are certain assets that are exempt from estate recovery. For example, the state will not pursue recovery if the cost of recovery is expected to exceed the value of the asset.

The Department of Human Service’s new policy answers a number of questions, but it does not contain a lot of detail. We will still have to wait for the program to be put into practice to see just how it will affect Medicaid planning.

Lee Flaherty

CCA Enacted to Provide Protections for American Consumers Against Unfair Credit Card Company Practices

In 2009, the Credit Card Act (”CCA”) was enacted to provide protections for American consumers against unfair credit card company practices. Since roughly 80% of American families have at least one credit card, and 44% of families carry balances on their credit cards, it is important for consumers to know their rights under the CCA.

Here are a few notable reforms:

The CCA bans retroactive interest rate hikes on existing balances. Credit card companies cannot increase the interest rate due to “any time, any reason” and retroactive rate increases due to late payments are restricted. Some exceptions that permit card companies to increase the interest rate include:

  • The end of an introductory or “teaser” period;
  • The interest rate is tied to an index and is variable;
  • The consumer completes the terms of a workout plan for debt repayment or fails to comply with terms of a workout plan;
  • The consumer is more than 60 days late making a monthly payment. The card company must provide the reason for the increase and restore the interest rate to the previous, lower level after six months if the consumer proceeds to make on-time payments during that six-month period;
  • Military service members end active duty. As long as service members are on active duty, their card APR cannot exceed 6%. The Federal Reserve Board added a provision that allows card companies to increase interest rates on cards owned by service members to restore APRs to previous levels after they return from active duty.
  • “Universal default,” the practice of increasing interest rates based on their payment history on unrelated accounts, is banned under the CCA for existing card balances.Significant first year protections are imposed by the CCA. Contract terms must be clearly spelled out and stable for the entire first year on new accounts, and interest rates cannot increase except under the above exceptions. Promotional rates must be clearly disclosed and last for at least six months.

Unfair late fee traps are no longer permissible. Card companies have to give consumers a reasonable time to pay the monthly bill – at least 21 days from the time of mailing. Weekend deadlines, due dates that change each month, and middle-of-the-day deadlines are also impermissible.

Card companies must obtain a consumer’s permission to impose over-limit fees. Without this permission, purchases that would exceed credit limits will be rejected. If a consumer chooses over-limit fees, the consumer must be informed of the amount of the fees and must have the right to revoke permission at any time.

College students and young adults also receive additional protections under the CCA. For example, card companies and universities must disclose agreements with respect to the marketing or distribution of credit cards to students.

Card companies must disclose card terms in plain sight and in plain language so that consumers can see and understand the terms and plan accordingly to avoid unnecessary costs and manage their finances.

Julie Pfitzenmaier

Ongoing Bias in Favor of OEMs and Larger Tier Suppliers in Auto Sector

A recent update from the State Bar Business Law Section addresses a recent decision out of the Oakland County Circuit Court, where Judge Colleen O’Brien granted a preliminary injunction requiring an auto supplier to keep shipping parts even though the customer was delinquent in payments and, as a result, in breach of the purchase order. To the extent you work in the auto sector, be aware of what could be an ongoing bias in favor of OEMs and larger tier suppliers. The hopes were this would lessen with the shake-up in the industry, but this case suggests otherwise.

Appended below is an Opinion and Order from Judge Colleen O’Brien in Oakland County Circuit Court in Metavation LLC v. Grede LLC, Case No. 11-116105-CK granting a preliminary injunction in a supplier dispute, provided by Adam Kochenderfer of Wolfson Bolton PLLC.

In the Metavation action, the Court granted Plaintiff’s motion for a preliminary injunction after Defendant refused to produce component parts under supply contracts between the parties. Among other things, Defendant claimed that alleged late payments entitled Defendant to unilaterally terminate the contracts. Defendant further argued that the shutdown of Plaintiff’s assembly operations, and consequent employment losses, would not constitute “irreparable harm” under Michigan law. The Court disagreed, holding that

  1. the terms of the parties’ contracts control and “[d]e minimus delays in payment do not permit a party to unilaterally terminate a contract;”
  2. the factor regarding irreparable harm weighs in favor of Plaintiff because Plaintiff relied on frequent shipments of parts from Defendant, and, if Defendant ceased shipments, “Plaintiff’s manufacturing business would come to a halt;” and
  3. “the prevention of job losses serves the public interest.”

Therefore, the Court issued a preliminary injunction ordering Defendant to continue producing and shipping the component parts to Plaintiff in accordance with the parties’ contracts.

Dirk A. Beamer

Limited Liability Company Act Amended by Michigan Legislature

While the changes are mainly technical in nature, some are substantive and worth noting. Changes to the Michigan Limited Liability Company Act (”LLCA”) took effect on December 16, 2010.

The LLCA now:

  • Enables corporations to easily convert into limited liability companies (”LLCs”) and vice versa. This represents one of the most important changes to the LLCA. Prior to the amendment, it was necessary to go through a formal merger of a corporation and an LLC to make the conversion. There are several reasons, such as tax implications and corporate governance, that may make it desirable to change the form of an existing business entity, and this process will make such a change much simpler.
  • Clarifies how a person is admitted to an LLC as a member. Previously, the LLCA indicated that a person could only become a member of an LLC at the time of formation if the person signed the initial operating agreement, but LLCs are not required to have operating agreements. Now, a person will be admitted as a member if he or she signs an operating agreement, or if the person’s status as a member is reflected in the LLC’s records. Additionally, a person can be admitted by the other members in any other writing.
  • Provides processes and guidelines for the approval of transactions with interested managers or agents (i.e., the transaction was fair, material facts of transaction were disclosed, and disinterested managers/members approved the transaction);
  • Explicitly authorizes LLCs to provide broad indemnification of members, managers, and others, subject to some exceptions. The former LLCA seemed to some to only permit indemnification of managers, not members and agents.
  • Explicitly authorizes LLCs to purchase errors and omissions (D&O) insurance for members, managers, and others. Like indemnification matters discussed above, the former LLCA was interpreted to prohibit LLCs from purchasing errors and omissions insurance on behalf of any person other than a manager.
  • Limits the rights of an LLC member’s creditor. As a result of the amendments, a creditor cannot take the member’s membership interest in the LLC and either sell it or become a member itself; creditors receive only a charging order and the right to distributions that would be payable to the member. Under the prior version of the LLCA, creditors were attempting to go beyond attaching the economic rights of their debtors and attempting to participate in management of the LLC or sell the membership interest.
  • Clarifies that members and managers of LLCs may be entities rather than natural persons.

For additional information regarding changes to the LLCA and how they affect your business, please contact an attorney at Wright Penning & Beamer.

Julie Pfitzenmaier

Michigan’s Military Personnel Wireless Contract Act

While cell phones and smart phones are a tremendous convenience, and, in some cases, a necessity, they come with an ever widening array of devices, capabilities, charges and service contracts. Ever try canceling a service contract early in order to take advantage of the latest-greatest plan offered by a competitor? While possible, the early termination fees are substantial. What happens, then, when members of our military are transferred or deployed overseas, to areas where their cell phones and smart phones are worthless? While most of us have probably never even thought of this, those who serve in our military have. Until now, their only choice was to continue to pay for service they couldn’t use for the unexpired term of the service contract, or pay the high, early termination fees charged by the service provider. At a minimum, service members facing transfer or deployment often found themselves having to deal with this trivial detail at a time when far more important matters needed to be attended to, and often from remote and obscure locations.

Early Christmas present from the Michigan legislature
This past December 9, 2010, the brave men and women of Michigan who serve in our nation’s armed forces received an early Christmas present from the Michigan legislature in the form of the “Military Personnel Wireless Contract Act.” The Act allows service members who are transferred or deployed overseas to terminate their wireless telecommunications service contracts without incurring early termination fees and penalties.

Key provisions of the Act are as follows:

  1. The Act applies to active duty members of the US armed forces, the reserve, or the Michigan National Guard.
  2. The Act applies in situations where the service member is transferred or deployed overseas, on active duty, for a period of 179 days or more, to an area where the service member’s existing wireless service provider does not offer facilities-based wireless service.
  3. The Act allows the service member, or his or her spouse, to terminate the service contract, if: (i.) the service member is a party to the contract; (ii.) the contract was entered into on or after December 9, 2010; (iii.) the contract was entered into before the service member was transferred or deployed overseas; and (iv.) the contract does not involve service to a wireless telecommunications device installed in a motor vehicle.
  4. Termination of the contract is effective upon the service member, or his or her spouse, providing the service provider with: (i.) written notice, sent by certified mail, stating the service member’s intention to terminate the contract; (ii.) a copy of the service member’s orders transferring or deploying him or her overseas; and (iii.) the service member returning to the service provider any equipment acquired from the service provider and not owned by the service member, within thirty (30) days of the notice.
  5. The service member remains responsible for all fees up to the date of termination and the Act does not apply to prepaid wireless telecommunications services.
  6. Upon the service member’s compliance with the Act, the service provider may not impose an early termination charge.
  7. Service providers who disregard the Act face civil action by the state attorney general and fines up to $2,000 per violation. Money recovered by way of fines will go to the Michigan, Military Family Relief Fund.

The full text of the Act can be found in Michigan Compiled Laws, Sections 484.1901 to 1907

Duane L. Reynolds

A Change to the Michigan Construction Lien Landscape

The Michigan Construction Lien Recovery Fund, in effect for nearly 30 years, was recently dissolved by the Michigan Legislature. The Fund was initially established to protect homeowners who pay a residential building contractor and are left holding the bag when that contractor fails to pay the subcontractors and suppliers who provide labor or material on a project. Before the Fund was established, if the contractor was uncollectible the subcontractors and suppliers had no recourse but to go after the homeowner for payment. The end result was that unlucky homeowners sometimes ended up paying twice for the same work.

Large number of claims
The Fund was intended to remedy that problem, providing a resource from which subcontractors’ and suppliers’ claims could be settled in those cases where they were unable to collect from the contractor. Sadly, the Fund has been exhausted due to the large number of claims made against it in recent years.

Homeowners at increased risk
The elimination of the Fund leaves subcontractors and suppliers at increased risk of not getting paid for their labor or materials, which in turn places homeowners at increased risk of being drawn into litigation with subcontractors and suppliers. Homeowners will be able to avoid paying twice if they can prove that they paid the contractor in full, but subcontractors and suppliers will no longer have an alternative source of payment available to them (particularly if the contractor has absconded or is otherwise uncollectible).

8 Protection recommendations
In light of the dissolution of the Fund, we recommend that homeowners, subcontractors and suppliers consider taking the following steps to protect themselves:

  1. carefully assess the financial strength of the general contractor;
  2. insist on a written contract, either prepared or reviewed by your attorney;
  3. maintain receipts for all materials provided;
  4. preserve proof of all payments made;
  5. if you are a subcontractor, exchange a waiver of lien directly for a check;
  6. if you are a homeowner, obtain waivers of lien from the general contractor and all subcontractors at the time of payment;
  7. require that checks be joint; and
  8. insist on a construction escrow fund to be held by a third party.

Lee Flaherty

Dealing with Powers of Attorney and Personal Information

Recently, a business client contacted our office because he received a request from someone claiming to have Power of Attorney over one of his customers (let’s call her Jane). This individual was looking for copies of Jane’s personal records and prior purchase information. Jane is an elderly woman, who had been a long-time customer of the Business. To the best of the Business Owner’s knowledge, Jane did not have any close family or friends in the area.

Requests for personal information
The individual, a male, who contacted the Business “on Jane’s behalf” was forceful, discourteous, and seemed to suggest that the Business had sold goods to Jane for an amount greater than the actual value. This raised red flags for the Business, so we were contacted for advice on whether the Business should comply with the request for Jane’s personal information.

Use caution
These requests are not unusual, and many of you may receive similar requests at some point. If you are contacted by someone seeking another individual’s personal information, use caution. Always request a copy of the Power of Attorney document and ensure that the person to whom you are talking is the person nominated as Power of Attorney in the document. The following steps would also be prudent:

  • Request a copy of the person’s driver’s license or other identification. Don’t assume that the person requesting information is who they say they are.
  • Ask an attorney to review the Power of Attorney to ensure that the person claiming to have power of attorney is authorized under the document to accomplish the task he or she is attempting.
  • Ask an attorney to prepare a short affidavit for the individual to sign, certifying that:
    • The person is who they say they are;
    • The person has personal knowledge that the other individual is not deceased (powers of attorney are only valid if the individual is alive);
    • The Power of Attorney is effective;
    • The person has no knowledge that the Power of Attorney has been revoked or is otherwise invalid.

Protecting yourself
While you might not be in a position to contest the validity of the Power of Attorney, you can protect yourself in the event someone later questions your decision to provide confidential information to a third party. Taking the above actions, and keeping a record of those actions, will show that you acted prudently before disclosing the confidential information.

Julie Pfitzenmaier