Legislature(2001 - 2002)

02/07/2002 02:07 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                    ALASKA STATE LEGISLATURE                                                                                  
                         JOINT MEETING                                                                                        
               HOUSE JUDICIARY STANDING COMMITTEE                                                                             
              SENATE JUDICIARY STANDING COMMITTEE                                                                             
                        February 7, 2002                                                                                        
                           2:07 p.m.                                                                                            
                                                                                                                                
HOUSE MEMBERS PRESENT                                                                                                         
                                                                                                                                
Representative Norman Rokeberg, Chair                                                                                           
Representative John Coghill                                                                                                     
Representative Kevin Meyer                                                                                                      
                                                                                                                                
HOUSE MEMBERS ABSENT                                                                                                          
                                                                                                                                
Representative Scott Ogan, Vice Chair                                                                                           
Representative Jeannette James                                                                                                  
Representative Ethan Berkowitz                                                                                                  
Representative Albert Kookesh                                                                                                   
                                                                                                                                
SENATE MEMBERS PRESENT                                                                                                        
                                                                                                                                
Senator Robin Taylor, Chair                                                                                                     
Senator John Cowdery                                                                                                            
Senator Johnny Ellis                                                                                                            
                                                                                                                                
SENATE MEMBERS ABSENT                                                                                                         
                                                                                                                                
Senator Dave Donley, Vice Chair                                                                                                 
Senator Gene Therriault                                                                                                         
                                                                                                                                
OTHER LEGISLATORS PRESENT                                                                                                     
                                                                                                                                
Representative Lisa Murkowski                                                                                                   
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
OVERVIEW AND UPDATE OF ALASKA TRUST LAW                                                                                         
                                                                                                                                
PREVIOUS ACTION                                                                                                               
                                                                                                                                
No previous action to record                                                                                                    
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
DOUGLAS J. BLATTMACHR, President                                                                                                
Chief Executive Officer (CEO)                                                                                                   
Alaska Trust Company                                                                                                            
1029 West Third Avenue, Suite 601                                                                                               
Anchorage, Alaska  99501-1981                                                                                                   
POSITION  STATEMENT:   Presented  information regarding  Alaska's                                                               
trust laws.                                                                                                                     
                                                                                                                                
RICHARD S. THWAITES, JR., Attorney                                                                                              
733 West 4th Avenue, Suite 401                                                                                                  
Anchorage, Alaska  99501                                                                                                        
POSITION  STATEMENT:   Assisted with  the presentation  regarding                                                               
Alaska's trust laws.                                                                                                            
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 02-12, SIDE A [House JUD tape]                                                                                             
Number 00.01                                                                                                                    
                                                                                                                                
CHAIR ROBIN  TAYLOR called  the joint  meeting between  the House                                                               
Judiciary Standing  Committee and  the Senate  Judiciary Standing                                                               
Committee to  order at 2:07  p.m.  Present  at the call  to order                                                               
from  the  Senate  Judiciary  Standing  Committee  were  Senators                                                               
Taylor, Cowdery,  and Ellis.  Present  at the call to  order from                                                               
the  House  Judiciary  Standing  Committee  were  Representatives                                                               
Rokeberg  and  Coghill.   Representative  Meyer  arrived  as  the                                                               
meeting was  in progress.   Representative Murkowski was  also in                                                               
attendance.                                                                                                                     
                                                                                                                                
CHAIR  TAYLOR  announced  that   the  committees  would  hear  an                                                               
overview  and  update from  the  Alaska  Trust Company  regarding                                                               
Alaska's trust  laws.  He  remarked that Alaska,  via legislation                                                               
sponsored  by  various legislators  over  the  last five  or  six                                                               
years, has gone through a  transition of updating and modernizing                                                               
its  trust laws,  with  the  goal being  to  make  Alaska a  more                                                               
attractive  community  for securing  and  investing  assets.   He                                                               
noted that some of the issues  to be discussed will include:  the                                                               
effects  of  the  various  pieces  of  legislation,  whether  the                                                               
legislation  is  beneficial,  whether  it did  anything  for  the                                                               
state,  and "how  is it  going  today in  the real  world -  what                                                               
effect did we have."                                                                                                            
                                                                                                                                
Number 01.58                                                                                                                    
                                                                                                                                
DOUGLAS J. BLATTMACHR, President,  Chief Executive Officer (CEO),                                                               
Alaska Trust Company, thanked the  committees for the opportunity                                                               
to present information regarding Alaska's trust laws.  He said:                                                                 
                                                                                                                                
     Starting  in   1996,  we  first   tried  to   get  some                                                                    
     legislation  through, and  finally  were successful  in                                                                    
     1997  with   your  ...  support,  [which   we]  greatly                                                                    
     appreciate....   The two  pieces of  legislation really                                                                    
     revolutionized  the   trust  industry   throughout  the                                                                    
     country.   [A  lot  of states]  started realizing  that                                                                    
     [they]  needed to  modernize their  trust  laws, and  a                                                                    
     number  of  states  have tried  to  piggyback  on  what                                                                    
     Alaska   has  done.      Particularly  Delaware   [has]                                                                    
     copycatted  a number  of things  we did  ...; [as  did]                                                                    
     Rhode  Island ...;  [and] so  has Nevada.   So  there's                                                                    
     more states doing similar  things.  Fortunately, Alaska                                                                    
     still  is the  preeminent jurisdiction;  there's things                                                                    
     we can do that no  other state allows, [and] we've done                                                                    
     a number of pieces of legislation.  ...                                                                                    
                                                                                                                                
     Why did  we first  come to Alaska  to change  the rule?                                                                    
     Well, partly  [it] was  because [of]  personal reasons:                                                                    
     I'd lived in Alaska and  wanted to get back; my brother                                                                    
     -  who practiced  law in  Alaska [as]  a New  York City                                                                    
     estate-planning  attorney -  ...  loves  Alaska, so  we                                                                    
     really wanted to  do it.  We were  familiar with Alaska                                                                    
     statutes and  the professionals, and  the professionals                                                                    
     kept  indicating they  wanted institutions  to be  more                                                                    
     focused  on Alaska  and [were  asking],  "How could  we                                                                    
     modernize our  laws."   And also  because Alaska  had a                                                                    
     very  favorable environment:   it  had no  state income                                                                    
     tax on trusts or estates.  So that was also positive.                                                                      
                                                                                                                                
Number 03.32                                                                                                                    
                                                                                                                                
MR. BLATTMACHR continued:                                                                                                       
                                                                                                                                
     The   question  has   been   [asked],   "Has  it   been                                                                    
     successful," and  we feel it has  been very successful,                                                                    
     particularly since we've been  doing this for less than                                                                    
     five years.   And what we're going to give  you is just                                                                    
     information [that]  our small  company knows  about; we                                                                    
     know  the other  institutions have  benefited directly,                                                                    
     but we  really can't  say exactly  how much....   We're                                                                    
     just really talking  about ours, [but] I  think you can                                                                    
     [infer]  that there's  been a  lot  greater breadth  of                                                                    
     [the] positive.  One of  the positive developments that                                                                    
     Alaska  has really  seen [is  that it  is viewed]  as a                                                                    
     very innovative  and progressive state  [regarding] its                                                                    
     [trust and estate]  laws, and it is  considered by most                                                                    
     estate   planning   professionals    as   the   leading                                                                    
     jurisdiction  [in which]  to consider  setting up  your                                                                    
     trusts or estates.                                                                                                         
                                                                                                                                
     Some of  the positive  have been  that we  have created                                                                    
     seven fulltime  positions - five of  them are born-and-                                                                    
     raised Alaskans; we pay a  corporate income tax; we put                                                                    
     hundreds  of  thousands  of   dollars  into  the  local                                                                    
     economy each year ...; and  we have on deposit in local                                                                    
     institutions tens of millions  of dollars that has come                                                                    
     from  outside   of  Alaska  that  wouldn't   have  been                                                                    
     deposited   [otherwise].      So   local   banks   have                                                                    
     participated, and we have had  over 700 clients come to                                                                    
     Alaska  to use  Alaska services....   That's  just what                                                                    
     we've  done; we  know other  trust companies  and banks                                                                    
     have  also got  some [business],  and some  people have                                                                    
     gone to individuals instead of  professionals.  So it's                                                                    
     been, we think, successful.                                                                                                
                                                                                                                                
     The  professionals in  Alaska have  benefited, both  in                                                                    
     getting  increased business  from working  with clients                                                                    
     from  outside   of  Alaska  but  also   bringing  these                                                                    
     benefits  to  Alaskans.    And I  think  it  should  be                                                                    
     important to realize  that all the things  that can get                                                                    
     done can benefit Alaskans also;  they probably have the                                                                    
     biggest   benefit.       Although   unfortunately   our                                                                    
     population  is small,  ... on  a  practical basis  they                                                                    
     really benefit as  much as anybody who  comes here from                                                                    
     California,  New York,  or  Texas.   [Certified  public                                                                    
     accountants (CPAs)] have  increased business; insurance                                                                    
     agents  have; stockbrokers  -  they've gotten  accounts                                                                    
     moved here  from individuals who  want to have  some of                                                                    
     their  assets here  to take  advantage  of these  great                                                                    
     trust laws.                                                                                                                
                                                                                                                                
Number 05.27                                                                                                                    
                                                                                                                                
MR. BLATTMACHR:                                                                                                                 
                                                                                                                                
     As I said, Alaskans  have benefited quite directly from                                                                    
     this  legislation,  and  one   of  my  colleagues,  Mr.                                                                    
     Thwaites, will talk  about some of the  examples he has                                                                    
     [regarding]  some  of  his clients  [who]  have  really                                                                    
     benefited  directly from  this.   With  the changes  we                                                                    
     made in the trust  legislation, and combining that with                                                                    
     some modifications  to the state  premium tax,  ... the                                                                    
     state  [has]  received ...  at  least  $700,000 of  the                                                                    
     traditional state  premium tax  on life  insurance that                                                                    
     it wouldn't have  received without these modifications.                                                                    
     So there's  been an increase  in corporate  income tax;                                                                    
     there's  been an  increased revenue  from people  using                                                                    
     our   LLCs  [limited   liability  companies]   and  LPs                                                                    
     [limited  partnerships]  -  so there's  been  increased                                                                    
     filing;  and  some  of the  insurance  companies  we've                                                                    
     dealt with  are seriously looking  at Alaska to  set up                                                                    
     subsidiaries.  We think all of these are positives.                                                                        
                                                                                                                                
     We  think  it important  that  this  has really  [just]                                                                    
     happened within  five years,  with no  financial outlay                                                                    
     from  the state,  ... except  for your  support and  we                                                                    
     greatly do appreciate it.   ... One of the questions we                                                                    
     hear  sometimes   is,  "Gosh,  we've  passed   so  much                                                                    
     legislation and you guys are  coming back again, why do                                                                    
     you need  to come  back?"   ... Part  of the  reason is                                                                    
     that a  number of these  things we're doing  are geared                                                                    
     towards  [Internal  Revenue  Service (IRS)]  rules  and                                                                    
     regulations.   So  if [the]  IRS makes  a change,  many                                                                    
     times  we need  to  change the  current legislation  to                                                                    
     make sure that [it's] still effective.                                                                                     
                                                                                                                                
     Other states  now are starting to  realize that they've                                                                    
     got to modernize  their rules and come  into ... modern                                                                    
     society, and so they're  changing rules.  And sometimes                                                                    
     they come up with better  ideas, so we're saying, "Gee,                                                                    
     if  they've   got  a  better  idea,   maybe  we  should                                                                    
     incorporate   it  to   continue  to   have  Alaska   be                                                                    
     competitive  if not  the  leading  jurisdiction."   And                                                                    
     then  just   sometimes  fine-tuning   the  legislation;                                                                    
     sometimes  we've  done things  and  some  of the  other                                                                    
     lawyers will  look and  say, "Well,  you know,  I'm not                                                                    
     exactly  sure if  you've really  accomplished what  you                                                                    
     set out to do," or "It's  not clear enough for me."  So                                                                    
     many times  we're coming back [saying],  "Let's clarify                                                                    
     that this  is what it  was meant  to do, so  there's no                                                                    
     ambiguity  about what  the purpose  of the  legislation                                                                    
     was.                                                                                                                       
                                                                                                                                
Number 07.19                                                                                                                    
                                                                                                                                
MR. BLATTMACHR went on to say:                                                                                                  
                                                                                                                                
     We  think  that  the  future is  extremely  bright  for                                                                    
     Alaska;  we  think  it's  just   a  beginning  for  [a]                                                                    
     fledgling financial-services  industry to  attract more                                                                    
     and  more business,  and we  think  we're getting  more                                                                    
     every  year.    We're  getting more  and  more  clients                                                                    
     coming here, [and] more and  more attorneys [are] using                                                                    
     us  throughout  the country,  because  ...  one of  the                                                                    
     advantages  Alaska  has [is  that]  it  has no  current                                                                    
     state  income tax  on  trusts  in the  state.   So  our                                                                    
     (indisc.--coughing)  strongly  recommend  ...,  if  the                                                                    
     state decides to  do an income tax,  that you seriously                                                                    
     consider   not   taxing   trusts   and   estates   [of]                                                                    
     nonresidents, because  what will happen is  [that] they                                                                    
     will  go to  another jurisdiction  that doesn't  have a                                                                    
     tax on  foreign trusts, such  as New York,  New Jersey,                                                                    
     Delaware, [or] South Dakota.                                                                                               
                                                                                                                                
     New York, New Jersey, and  Delaware have an income tax,                                                                    
     but they  exempt trusts from nonresidents  because they                                                                    
     realize nobody's going  to come to their state.   So we                                                                    
     strongly  recommend  this  because  what  will  happen,                                                                    
     unfortunately, is  that all this business  - 99 percent                                                                    
     of all  the business we've  attracted - will  leave the                                                                    
     state  within one  year because  they're just  going to                                                                    
     say, "We're not going to  pay a state income tax; there                                                                    
     are  other states  that have  many of  the things  that                                                                    
     Alaska  has and  [so]  why  should we  do  that."   So,                                                                    
     that's  just part  of our  concern, because  we're just                                                                    
     starting  ... to  see all  the fruits  of all  the hard                                                                    
     work.  It  has really been [within] the  last two years                                                                    
     that we've really seen this  influx and people starting                                                                    
     to use  Alaska - and giving  increased revenue directly                                                                    
     to the state  and indirectly to residents  of the state                                                                    
     and businesses.                                                                                                            
                                                                                                                                
Number 08.57                                                                                                                    
                                                                                                                                
MR. BLATTMACHR concluded:                                                                                                       
                                                                                                                                
     And, again,  we greatly appreciate your  support in the                                                                    
     past and  hope we can count  on it in the  future.  For                                                                    
     information [purposes], in  [members' packets there is]                                                                    
     a little  pamphlet that  we put  together that  gives a                                                                    
     brief  explanation of  each  piece  of legislation  and                                                                    
     what it  does, kind of  as a  summary.  And  then we've                                                                    
     put together  three articles  that have  been published                                                                    
     nationally  that   ...  talk  about  the   three  major                                                                    
     functions  of  what legislation  has  been  done.   The                                                                    
     first one talks about the  ... [Alaska Trust Act], then                                                                    
     we ... have  one that talks about how  the changes with                                                                    
     the  limited  partnership  and LLC  statute  integrates                                                                    
     [with] this trust legislation, and then [there is] an                                                                      
     article about how the Alaska Community Property Trust                                                                      
       works and the advantages for both Alaskans and non-                                                                      
     Alaskans.                                                                                                                  
                                                                                                                                
SENATOR  COWDERY noted  that Mr.  Blattmachr  had mentioned  with                                                               
regard to  the income tax that  [it] would have an  effect on the                                                               
attraction to  Alaska and had explained  why.  He asked  how much                                                               
revenue  these  trusts  put  into state  coffers,  and  how  much                                                               
revenue might be  generated for state coffers over  the next five                                                               
to ten  years assuming that the  state remains free of  an income                                                               
tax.                                                                                                                            
                                                                                                                                
MR. BLATTMACHR  said that just from  his company, he is  aware of                                                               
at least $700,000 generated from  life insurance premiums, but is                                                               
not sure  how much  revenue the state  has gotten  from increased                                                               
filing of  limited partnerships and  LLCs.  He ventured  a guess,                                                               
however,  that  the  state  has probably  gotten  $1  million  of                                                               
additional revenue.   He cited  the fact  that his company  has a                                                               
lot  of deposits  in banks,  which has  probably increased  their                                                               
profits  and are  thus  they are  paying  higher state  corporate                                                               
taxes, and noted  again that his company  also generates business                                                               
for other businesses  in the state.  He posited  that his company                                                               
probably puts  $700,000 a year  into the local economy,  and that                                                               
[this amount]  will continue  to grow.   He  opined that  in five                                                               
years,  there  should  be  "a  number  of  millions  of  dollars"                                                               
generated at minimal, if any, cost to the state.                                                                                
                                                                                                                                
Number 10.50                                                                                                                    
                                                                                                                                
MR. BLATTMACHR, in  response to a question  regarding states that                                                               
exempt nonresidents from  income tax on trusts,  said that "South                                                               
Dakota  is one  of our  competitors for  some of  this, and  they                                                               
don't have a state  income tax at all."  But  a number of states,                                                               
such as  Delaware and New  York, do have  a state income  tax but                                                               
don't tax nonresident trusts or  estates, he added.  He mentioned                                                               
that because it had the biggest  trust industry, New York used to                                                               
get the  majority of business  in the  '50s, '60s, and  '70s, but                                                               
because it didn't modernize its  trust laws, very little business                                                               
from nonresidents is now coming its  way.  He also mentioned that                                                               
now residents  of New  York are  realizing that  they can  set up                                                               
trusts  in New  Jersey, Delaware,  or Alaska  and avoid  paying a                                                               
state income tax;  as a result New York  is seriously considering                                                               
exempting its residents from income tax on trusts.                                                                              
                                                                                                                                
SENATOR  COWDERY  asked what  would  happen  to trusts  that  had                                                               
already been established by residents  should Alaska begin to tax                                                               
trusts.                                                                                                                         
                                                                                                                                
MR.  BLATTMACHR said  that  it  would be  hard  to  predict.   He                                                               
surmised,  however, that  some people  might decide  to move  the                                                               
situs of their trusts in order to  avoid an income tax.  He noted                                                               
that those with bigger trusts would  have more of an incentive to                                                               
move  their trusts  and would  probably be  advised to  do so  by                                                               
their attorneys.                                                                                                                
                                                                                                                                
Number 13.48                                                                                                                    
                                                                                                                                
RICHARD S.  THWAITES, JR., Attorney,  noting that  he specializes                                                               
in  estate and  gift  tax law,  said that  after  passage of  the                                                               
Community  Property   Act,  he   drafted  a   community  property                                                               
agreement for  one of his  clients.  He  also noted that  this is                                                               
not a  complicated agreement for  Alaskan residents -  merely one                                                               
page  -  though  it  can  result in  a  40-50-page  document  for                                                               
nonresidents.    In  an  effort to  illustrate  how  a  community                                                               
property agreement works, he recounted the following example:                                                                   
                                                                                                                                
     We  had a  family that  was in  the Palmer  area, [and]                                                                    
     they had  a lot  of property  acquired -  originally as                                                                    
     homesteaders  - [and]  the value  of that  property has                                                                    
     increased over ... time.   In this situation, [the] mom                                                                    
     developed an illness and passed  away last year, and as                                                                    
     a  result   of  having  done  the   community  property                                                                    
     agreement,   there  was   probably  somewhere   in  the                                                                    
     vicinity of $3  [million] to $4 million of  gain in the                                                                    
     two  estates  -   between  the  two  of   them  -  that                                                                    
     disappeared,  and  they got  a  stepped  up income  tax                                                                    
     basis -  [the] dad did  - for  the whole amount  of the                                                                    
     property,  thus eliminating  the  gain  entirely.   ...                                                                    
     That enabled him to liquidate  ... some of the property                                                                    
     and [pass]  it on  to [his children  and] grandchildren                                                                    
     ... for education [and] other  purposes, and still left                                                                    
     him  with  the  other  assets pretty  much  intact  and                                                                    
     [with]  the flexibility  to ...  deal  with his  estate                                                                    
     plan as he felt appropriate.                                                                                               
                                                                                                                                
MR. THWAITES also recounted another example:                                                                                    
                                                                                                                                
     [This was]  a much smaller situation  where [a] husband                                                                    
     and wife  had some  property -  and we're  only talking                                                                    
     about $35,000  to $40,000 worth of  eliminated tax, but                                                                    
     that's still  a significant number  - and it was  a ...                                                                    
     smaller estate in  the $600,000 range, but  yet, by the                                                                    
     time  we got  the large  gains  that they  had in  that                                                                    
     little  estate, [the]  mom was  able to  liquidate only                                                                    
     the  assets  that  she  needed  to,  ...  to  make  the                                                                    
     transition into  being sort of  a single parent  at the                                                                    
     age  of 70.   ...  It was  a smooth  transition, and  I                                                                    
     think  it helped  her  a lot  knowing  that she  wasn't                                                                    
     going to have  a large, $40,000 tax bill at  the end of                                                                    
     the year,  thus requiring  liquidation of  other assets                                                                    
     that she didn't really need to liquidate at that time.                                                                     
                                                                                                                                
SENATOR COWDERY  posited that liquidation  of those  assets would                                                               
probably have created another tax liability.                                                                                    
                                                                                                                                
Number 16.37                                                                                                                    
                                                                                                                                
MR. THWAITES  clarified that  in that  example, "that  would have                                                               
been  the  additional  liability;   that  was  taking  that  into                                                               
consideration, but  it just was  a smooth transition  that helped                                                               
quite a  bit."   He said  that what he  has experienced  over the                                                               
past  couple of  years is  that in  Alaska, there  is a  cadre of                                                               
estate-planning professionals  who work in the  area of financial                                                               
planning,  such  as  accountants  and attorneys,  and  they  have                                                               
formed  an  organization  consisting  of  about  200  individuals                                                               
statewide.   They are all  starting to have more  involvement, he                                                               
noted,  with   this  more  fluid  estate-planning   statute,  and                                                               
everybody recognizes  now that Alaska is  probably the preeminent                                                               
jurisdiction.    He  explained that  even  though  the  marketing                                                               
budget  has  not been  very  extensive,  "we're still  making  an                                                               
impact ...  because we're ...  still a  couple of steps  ahead of                                                               
everybody else."   [Alaska] has maintained  that position because                                                               
of the  legislature's continued cooperation.   "You've  helped us                                                               
put these  things into place,  [and] other people  throughout the                                                               
country are recognizing that," he said.                                                                                         
                                                                                                                                
MR. THWAITES  noted that he is  a fellow of the  American College                                                               
of Trust  and Estates Counsel (ACTEC),  which is a group  made up                                                               
exclusively of estate  planning attorneys.  He said  that when he                                                               
attends  ACTEC's meetings,  other fellows  have come  to him  and                                                               
inquired, "How  are the Alaska  trusts going," and every  year he                                                               
gets several  referrals from these fellows  asking for assistance                                                               
in developing Alaska trusts for  their clients who live in Texas,                                                               
Hawaii, North Carolina, and all over  the country.  He views this                                                               
as evidence that  "we're getting the word out,"  it's just taking                                                               
a little longer.   The first couple of years,  there were perhaps                                                               
10  or  12 attorneys  throughout  the  country that  were  really                                                               
"talking to  us seriously," he  remarked, whereas just  this last                                                               
year, there  were probably 50  to 60 attorneys  that consistently                                                               
provided information on behalf of  out-of-state clients.  He also                                                               
mentioned that there  is now a website that  is readily available                                                               
to anyone  wishing for  information or access  to forms,  "and we                                                               
just try to get as much exposure  out there as we can for Alaska;                                                               
we encourage  them to come up,  we encourage them to  bring their                                                               
dollars up here and leave them  in our local banks, because we've                                                               
found the local banks like that too.                                                                                            
                                                                                                                                
MR. THWAITES said:                                                                                                              
                                                                                                                                
     The tradition  of the  trust industry  is that  as your                                                                    
     trust grows  and you  develop that  basis and  it keeps                                                                    
     growing, you  will then have the  insurance trusts when                                                                    
     somebody  passes away.   The  typical  thing is  [that]                                                                    
     that money stays in that  trust for administration, and                                                                    
     [so]  instead of  getting a  flat annual  fee for  just                                                                    
     doing  the  maintenance  of  the  insurance  trust,  it                                                                    
     converts  into   a  much  larger  fee   for  doing  the                                                                    
     administration  and taking  care  of the  beneficiaries                                                                    
     and so forth.                                                                                                              
                                                                                                                                
Number 19.58                                                                                                                    
                                                                                                                                
MR.  BLATTMACHR  added that  of  the  insurance trusts  that  his                                                               
company  has set  up just  this year,  about $1.4  billion is  in                                                               
death  benefits,  which, in  theory,  will  ultimately come  into                                                               
Alaska.  So  it's been quite successful from  his company's point                                                               
of view, he said, particularly since  his company is just a small                                                               
organization   and  these   transactions  have   only  transpired                                                               
recently.  He  opined that the outlook of the  industry in Alaska                                                               
is  very  good  and  should  continue  to  attract  business  and                                                               
continue to grow.                                                                                                               
                                                                                                                                
MR.  THWAITES posited  that  when Mr.  Blattmachr  spoke of  "the                                                               
$700,000 additional  premium tax,"  he was  referring to  the tax                                                               
just in 2001.                                                                                                                   
                                                                                                                                
MR. BLATTMACHR said, "Yes."                                                                                                     
                                                                                                                                
MR. THWAITES noted  that "this" didn't come  into existence until                                                               
1999, and then it took a while  to get [the information] out.  So                                                               
for a  while no  one thought  much about  it, but  then all  of a                                                               
sudden people  started to  recognize that  some of  their clients                                                               
could be saving several tens of  thousands of dollars per year by                                                               
doing business  in Alaska.   That's  why now,  in 2001,  there is                                                               
growth in that area, he explained.                                                                                              
                                                                                                                                
MR. THWAITES  said that as  a lifelong  Alaskan, he wants  to see                                                               
the state flourish,  but he is worried that when  he goes down to                                                               
the next  ACTEC meeting in  March he is  going to be  asked about                                                               
the possibility of  an income tax being imposed in  Alaska.  What                                                               
raises  concerns,  he  explained,   is  the  fact  that  Alaska's                                                               
legislature is  now having discussions  regarding adoption  of an                                                               
income tax.   He indicated that although 50  states are currently                                                               
having  discussions  regarding  revenue  shortfalls,  should  the                                                               
statement, "Yes, we're discussing  revenue options in Alaska," be                                                               
coupled  with a  statement to  the effect  that, "This  fledgling                                                               
industry in the  finance and trust area is not  something that we                                                               
want to  impact or kill because  of that," then it  wouldn't have                                                               
quite the same chilling effect.                                                                                                 
                                                                                                                                
MR. THWAITES  said that "when  we first  did this trust  work, we                                                               
were"  a little  shocked that  the offshore  jurisdictions -  the                                                               
Cayman  Islands,  the Cook  Islands,  for  example -  mounted  an                                                               
advertising campaign  against the Alaska trusts.   Basically what                                                               
these  advertisements were  saying  is that  Alaska trusts  don't                                                               
work because the  IRS will find out about the  revenue.  He noted                                                               
that there was  never any intention to shelter  anything from the                                                               
IRS; "we  always said we  would report whatever  was appropriate,                                                               
but there are enough estate  planning benefits, in all this stuff                                                               
that  we've drawn  up, to  encourage people  to come  here."   He                                                               
pointed out  the federal  government now  has huge  penalties for                                                               
people who went offshore and didn't report income.                                                                              
                                                                                                                                
Number 22.50                                                                                                                    
                                                                                                                                
MR.  BLATTMACHR  added that  his  company  has  had a  number  of                                                               
individuals  bring  their  offshore  trusts back  to  the  United                                                               
States -  to Alaska - because  they now realize that  they can do                                                               
the  same  thing they  were  doing  offshore  but be  under  U.S.                                                               
jurisdiction.                                                                                                                   
                                                                                                                                
CHAIR TAYLOR remarked that at one  point the IRS had been talking                                                               
about federal legislation that would  allow those offshore monies                                                               
to "come home for  free," but then once the money  is back in the                                                               
U.S.,  it would  have to  stay.   He  asked whether  any of  that                                                               
federal legislation has been adopted.                                                                                           
                                                                                                                                
MR. THWAITES  said not  that he  is aware  of.   He acknowledged,                                                               
however, that "there  is quite an effort by  [the U.S. Department                                                               
of the  Treasury] to do  that."  Notwithstanding this,  [the IRS]                                                               
does  impose a  $7,500 penalty  on people  who fail  to state  on                                                               
their tax return  that they have an offshore trust.   He observed                                                               
that the IRS  and the [U.S. Department of the  Treasury] have not                                                               
resolved, in  their own minds, what  they want to do;  on the one                                                               
hand, they want  to bring the money back, but  on the other hand,                                                               
they are  not willing to say,  "Yes, all this stuff  works."  Mr.                                                               
Thwaites pointed  out that there  is a  treatise that is  put out                                                               
nationally that is  called the "Restatement of  Trusts" in which,                                                               
every so often,  the college professors and  the professionals in                                                               
the industry redraw  a summary of what the law  of the land ought                                                               
to be  with regard  to trusts.   In the  most recent  version, he                                                               
noted, it  is acknowledged that  there is a  place in the  law of                                                               
the land for  the Alaska and Delaware trusts, although  it is not                                                               
recommended that  all states follow  suit, because  not everybody                                                               
is going  to want an asset-protection  trust and it would  not be                                                               
competitive for the states that do offer it.                                                                                    
                                                                                                                                
MR. THWAITES said:                                                                                                              
                                                                                                                                
     We're  not  trying  to   focus  exclusively  on  asset-                                                                    
     protection  trusts.    We're  talking  about  community                                                                    
     property   trusts,   asset-protection   trusts;   we're                                                                    
     talking about irrevocable insurance  trusts, and all of                                                                    
     those kinds of  vehicles.  It is  a comprehensive plan;                                                                    
     it  is probably  the best  estate-planning jurisdiction                                                                    
     in the entire  United States, maybe even  in the world,                                                                    
     other  than  perhaps having  your  own  island and  not                                                                    
     having  any jurisdiction  [under] anybody  else.   So I                                                                    
     think we're  on the right track.   ... We don't  have a                                                                    
     lot of  marketing money to  do this yet,  [though] that                                                                    
     would certainly enhance [efforts];  we're having to pay                                                                    
     for that  out of  the revenues  gained from  the trusts                                                                    
     that we have right now.   I'm very, very positive about                                                                    
     the future,  I really  am.  The  federal estate  tax is                                                                    
     probably going  to impact it  somewhat if it  stays the                                                                    
     way it's  currently rendered, but we're  trying to deal                                                                    
     with those issues as well.                                                                                                 
                                                                                                                                
Number 26.02                                                                                                                    
                                                                                                                                
REPRESENTATIVE  LISA   MURKOWSKI,  referring  to   the  marketing                                                               
issues, said that  she would be glad to discuss  how to assist in                                                               
getting  the  word  out  to  other  trust  attorneys  across  the                                                               
country.   After  noting that  earlier  testimony indicated  that                                                               
banks are benefiting from this  industry, she asked whether there                                                               
is  any way  to "piggyback  with the  marketing efforts  that the                                                               
banking institutions have,"  or whether the trust  industry is at                                                               
odds with the banking industry.                                                                                                 
                                                                                                                                
MR. BLATTMACHR indicated  that he would not  characterize the two                                                               
industries as  being at  odds with one  another, since  the trust                                                               
industry does not  provide any banking services.   Perhaps rather                                                               
it  is  just  that  the  banking industry  has  not  seen  enough                                                               
benefits; some  institutions, he noted,  haven't gone into  it as                                                               
aggressively  as  others.   National  Bank  of Alaska  (NBA)  has                                                               
started to  take advantage  of the  possible benefits,  but Wells                                                               
Fargo has not.   Key Bank did  some in the beginning  but has not                                                               
done any  recently, and  so perhaps  the other  institutions have                                                               
taken a wait-and-see-how-it-works kind of  attitude.  He remarked                                                               
that his company  feels that the more people there  are that know                                                               
about the various options provided  by this Alaskan industry, the                                                               
better.   He noted  that banks in  other states,  particularly in                                                               
Delaware, are  attracting more business  because they  are saying                                                               
that their states can do what  Alaska does, only better, and that                                                               
it  would be  difficult to  simply go  to those  institutions and                                                               
confront  them  with  counter  arguments.    At  estate  planning                                                               
conventions,  however, he  said that  he  is able  to explain  to                                                               
people that  Alaska can do  all of  the things that  other states                                                               
can do plus some things that can't be done elsewhere.                                                                           
                                                                                                                                
MR. THWAITES noted that many  financial institutions do not focus                                                               
on the  things that the  trust industry specializes  in, although                                                               
some, such as "First of  Alaska," now have trust departments that                                                               
offer  services   to  their  clients.     But   [these  financial                                                               
institutions] are  relatively conservative in their  approach and                                                               
are not marketing  that service as a way of  bringing in profits.                                                               
For the most  part, financial institutions like  Wells Fargo, for                                                               
example, look  to their  general banking services  as the  way to                                                               
make  money, "not  this new  niche/trust stuff,"  he added.   Key                                                               
Bank  started  out  providing  trust   services  but  then  moved                                                               
everything to  Cleveland, he  said, "and  that doesn't  match the                                                               
Alaska law,"  and so that  institution might now be  doing trusts                                                               
out of Rhode Island or Delaware.                                                                                                
                                                                                                                                
Number 29.35                                                                                                                    
                                                                                                                                
MR. THWAITES said:                                                                                                              
                                                                                                                                
     We  have an  education program  - the  529 plans  - and                                                                    
     [recently] the state  put those out for  bid for people                                                                    
     putting  money aside  for  their children's  education,                                                                    
     and T. Rowe Price is the  operator of that.  And I just                                                                    
     saw  an  article   in  Kiplinger's  [Personal  Finance]                                                                  
     magazine,   a  full-page   ad,   that  advertises   [a]                                                                    
     University  of  Alaska Fairbanks  school-savings  plan,                                                                    
     because you can  put money into that and still  go to a                                                                    
     different college or university....                                                                                        
                                                                                                                                
     The  advantage of  Alaska's [program]  is that  you can                                                                    
     put  up  to  $250,000  into  this  plan,  with  a  very                                                                    
     favorable  estate-planning result.    In other  states,                                                                    
     you can only  put $100,000 in - per child  - so they're                                                                    
     promoting Alaska  as having a larger  ceiling for doing                                                                    
     this.   But  I noticed  in their  article, and  I'm not                                                                    
     quite sure what  it means, but it says, "We  can do the                                                                    
     529 plans,"  and then  it has two  words, "and,  oh, by                                                                    
     the way,  'Alaska Trust,'" and  I don't know  what that                                                                    
     means  in the  ad, because  I'm not  sure that  they're                                                                    
     doing Alaska trusts.  So  I thought maybe I should call                                                                    
     them up and find out exactly what that refers to.                                                                          
                                                                                                                                
MR. BLATTMACHR posited  that, to some extent, the  reason some of                                                               
the other  institutions aren't marketing  trust services  as much                                                               
as  companies  like his  do  is  because  "it's  just kind  of  a                                                               
department in their  bank."  Trust companies, on  the other hand,                                                               
can  focus all  of their  marketing dollars  on attracting  trust                                                               
business and investment management business.                                                                                    
                                                                                                                                
Number 31.03                                                                                                                    
                                                                                                                                
MR.   THWAITES  explained   that  historically,   the  investment                                                               
management business  is one that  builds cumulatively  over time,                                                               
which New  York and  similar other  jurisdictions have  done, and                                                               
his  hope is  that given  the time,  and given  the strength  and                                                               
fortitude of proceeding  with this on a  fairly determined basis,                                                               
Alaska can become one of  those jurisdictions.  "Certainly on the                                                               
west coast we're having  a lot of interest," he added.   A lot of                                                               
the [financial]  planning going on  right now won't  show results                                                               
until people are  deceased; so as a planner, he  doesn't tell his                                                               
clients,  "You better  get this  done this  Wednesday because  on                                                               
Friday you're  not going  to be  here any  longer."   "That would                                                               
certainly make our  estate planning easy if we  knew exactly when                                                               
they were  going to die, but  for many of these  things, ... five                                                               
years is  just way  too soon,"  he said, adding  that it  is more                                                               
likely that  the impact will be  [felt] "twenty years out  as far                                                               
the  volume goes."   So  it's  more of  a long-term  plan than  a                                                               
short-term  plan; "we're  sort  of in  there  for that  long-term                                                               
goal, and we  think that the state of Alaska  could realize a lot                                                               
of additional  revenues as  a result of  the spin-off  from these                                                               
planning goals."                                                                                                                
                                                                                                                                
REPRESENTATIVE MURKOWSKI commented:  "You know you've finally                                                                   
arrived when they start advertising against you, so you must be                                                                 
doing a great job."                                                                                                             
                                                                                                                                
CHAIR TAYLOR thanked Mr. Blattmachr and Mr. Thwaites for their                                                                  
presentation.  He said:                                                                                                         
                                                                                                                                
     Some of  us have  long waited to  see what  the results                                                                    
     might be; John  was there with me when  we started this                                                                    
     whole process,  and the  questions we  constantly heard                                                                    
     on each  of these  bills going  through is,  "What does                                                                    
     this thing  do?"   And we  would try  our best  in [the                                                                    
     Senate Judiciary  Standing Committee] and  other places                                                                    
     to explain some of  these rather sophisticated concepts                                                                    
     and  tax ramifications  and so  on.   I don't  think we                                                                    
     educated very  many people, but  there was  a wonderful                                                                    
     trusting attitude  throughout the  legislative process,                                                                    
     both on  the House side and  the Senate.  [And]  we all                                                                    
     hoped that  by making some of  these modifications, ...                                                                    
     it would result in  some additional benefits flowing to                                                                    
     the state  of Alaska,  to our banking  institutions and                                                                    
     others, and to  Alaskans in general as  they would have                                                                    
     more flexibility in the way  they [could] ... establish                                                                    
     their estates.                                                                                                             
                                                                                                                                
Number 33.75                                                                                                                    
                                                                                                                                
     And  so it's  very fulfilling  today ...  to have  this                                                                    
     wonderful report  come in.   I still  dream of  the day                                                                    
     when our [U.S.  Department of the Treasury]  is able to                                                                    
     get  together  with   the  IRS  and  ...   cut  a  deal                                                                    
     [regarding] ...  what is  estimated to  be well  over a                                                                    
     trillion  dollars  of  U.S.   income  that  is  sitting                                                                    
     offshore  in   banks  right  now,  because   when  that                                                                    
     happens,  there will  be  a flood  to  return to  home.                                                                    
     They want to  be under our laws,  not some dictatorship                                                                    
     [on] some  Cayman Island,  ... and  they would  like to                                                                    
     come home  and be able  to set  up a very  stable trust                                                                    
     that their family - for  future generations - can count                                                                    
     upon.  And  when that happens, Alaska should  be in the                                                                    
     catbird  seat to  take  advantage of  at  least a  good                                                                    
     percentage of that.                                                                                                        
                                                                                                                                
CHAIR TAYLOR continued:                                                                                                         
                                                                                                                                
     And if  I remember  correctly, it's  actually something                                                                    
     that  Governor  Steve Cowper  at  one  time had  talked                                                                    
     seriously  about,  and  that  was  that  Alaska  -  and                                                                    
     Anchorage,  because of  its location,  in particular  -                                                                    
     could  become somewhat  of  a  financial trade  center.                                                                    
     You  can't become  that financial  trade center  if you                                                                    
     don't have  a bank where  somebody can put  their money                                                                    
     and  ... rely  on it  being there,  rely on  that trust                                                                    
     being properly  handled, and rely  on it  being stable.                                                                    
     And  probably stability  is most  important thing,  but                                                                    
     it's  been  with the  help  of  a wonderful  group  [of                                                                    
     people] within this legislature,  over a lengthy period                                                                    
     of time,  that [we] have created  this opportunity now.                                                                    
     And  I'm just  so pleased  to hear  your report,  and I                                                                    
     thank you for  taking your time and money  to come down                                                                    
     here and provide us with this.                                                                                             
                                                                                                                                
Number 35.56                                                                                                                    
                                                                                                                                
     I  know  we have  another  piece  of legislation  going                                                                    
     through this  year on the  regulation.  We  haven't got                                                                    
     down  to how  we're going  to regulate  trust companies                                                                    
     yet; none  of those laws  have been changed for  a long                                                                    
     time.   I  had the  privilege of  meeting with  a young                                                                    
     lawyer here in  town that used to work [for]  me ... on                                                                    
     the [Senate  Judiciary Standing Committee]; he  now has                                                                    
     a  fine  practice  and  a  couple  [of]  partners,  and                                                                    
     they're  doing significant  amounts of  work in  estate                                                                    
     planning.                                                                                                                  
                                                                                                                                
     Normally, [with  regard to]  estate planning  among the                                                                    
     bar here in  Southeast, no one could  maintain that ...                                                                    
     level of  expertise because  there wasn't  a lot  of it                                                                    
     going on.   It  was being  done in  Seattle and  it was                                                                    
     being  done in  Portland and  San Francisco,  and so  a                                                                    
     client that  needed estate help  was often  referred to                                                                    
     one  of  the  larger  firms down  there.    That's  not                                                                    
     occurring  now; that  work is  staying here  in Alaska,                                                                    
     and I'm just so pleased  to see that happening and it's                                                                    
     literally because this legislature  took the time to go                                                                    
     through some  rather complex things  and to  trust that                                                                    
     it would work out.                                                                                                         
                                                                                                                                
REPRESENTATIVE   ROKEBERG,   Chair,  House   Judiciary   Standing                                                               
Committee, referring  to states that exempt  nonresidents but tax                                                               
residents for their  trust income, asked whether this  was due to                                                               
concerns that residents only establish  trusts as a subterfuge to                                                               
avoid paying state taxes.                                                                                                       
                                                                                                                                
MR.  BLATTMACHR opined  that it  has  more to  do with  political                                                               
reasons; "I think the perception is  that if you ... use the word                                                               
'trust,' it has to  be a lot of money and  it's for the wealthy."                                                               
New York, he reiterated, is  seriously considering not taxing its                                                               
resident trusts  because of the  realization that  "residents are                                                               
leaving the  state."   Up until  15 years  ago, he  noted, people                                                               
were  pretty  much staying  within  their  states, but  as  other                                                               
states started  to do certain  things, people realized  that some                                                               
states,  like  South Dakota,  allowed  people  to have  perpetual                                                               
trusts  and to  take advantage  of  having a  trust that  doesn't                                                               
terminate  within a  fixed number  of  years.   South Dakota  was                                                               
seeing hundreds  and hundreds of trusts  being transferred there,                                                               
each year, by  people from all over the country  who did not want                                                               
to set up a trust that terminates within 80 years.                                                                              
                                                                                                                                
MR. BLATTMACHR said that at  the same time, people were realizing                                                               
that they  did not  want to  subject such  perpetual trusts  to a                                                               
state income tax  if it wasn't absolutely  necessary.  Therefore,                                                               
although  states  felt that  they  wouldn't  be able  to  attract                                                               
business if they  taxed nonresident trusts, they  had not thought                                                               
that residents would move their  trusts to other jurisdictions to                                                               
avoid  that same  tax.   This  has  not proven  to  be the  case,                                                               
however, and  now practitioners are  feeling obligated  to inform                                                               
their clients that there are  other alternatives than just "doing                                                               
something within their borders."                                                                                                
                                                                                                                                
Number 38.48                                                                                                                    
                                                                                                                                
MR.  THWAITES  added  that  one  of  the  common  estate-planning                                                               
vehicles  is the  "idea  of  a living  trust,"  and  the IRS  has                                                               
created  a special  category  for that  called  a grantor  trust,                                                               
where everything is taxed to  the individual on his/her own "1040                                                               
return."   That's the  one area,  he opined,  that most  of those                                                               
states are worried about:  that  that grantor trust would be such                                                               
that people  could just  put the name  "trust" on  their checking                                                               
account and  then anything that  went into that  checking account                                                               
would avoid the tax.  But the  IRS has taken the position that it                                                               
is a grantor trust, as opposed  to a simple or complex trust, and                                                               
as such,  it really is  money that  belongs to that  individual -                                                               
that that  individual has  earned - and  therefore is  subject to                                                               
his/her  income tax.   That's  a pretty  common probate-avoidance                                                               
device,  he  noted, that  is  not  significantly used  in  Alaska                                                               
because  its probate  system is  pretty streamlined,  whereas New                                                               
York and,  especially, California  "would be  extremely concerned                                                               
about that  because that is  the main planning device"  for those                                                               
states.                                                                                                                         
                                                                                                                                
REPRESENTATIVE ROKEBERG  sought confirmation that it  is atypical                                                               
for a  trust to be  "set up to avoid  current income."   He asked                                                               
whether there is a way,  under current Alaska statutes, to "avoid                                                               
current income taxation."                                                                                                       
                                                                                                                                
MR. BLATTMACHR said, "Not federal income  tax."  It would be very                                                               
difficult, he added,  for somebody to set up a  trust that avoids                                                               
income  tax,  particularly Alaskan  residents.    For one  thing,                                                               
trusts are  taxed at the highest  rate:  after about  $8,000 they                                                               
go to the  39.9-percent [tax] bracket.  So one  would really have                                                               
to have a large  trust for it to be worthwhile to  try to avoid a                                                               
state income tax, because the  income would instead be subject to                                                               
the 39.9-percent tax bracket.  He  said that most trusts that are                                                               
set  up "as  a  beneficiary," are  considered by  the  IRS to  be                                                               
grantor trusts  and are thus  disregarded for tax  purposes, "and                                                               
all that  income is put on  their tax returns, so  there would be                                                               
no way for them to avoid it ... from an individual perspective."                                                                
                                                                                                                                
REPRESENTATIVE   ROKEBERG,  referring   to  the   possibility  of                                                               
offering  a   state  income-tax  exemption  on   trusts  to  both                                                               
nonresidents and residents, asked, "What  would the harm be if we                                                               
did, in fact, exempt residents from that."                                                                                      
                                                                                                                                
Number 42.16                                                                                                                    
                                                                                                                                
MR. BLATTMACHR  said that the only  time it would have  an impact                                                               
would be when  someone sets up a trust for  somebody else and the                                                               
trust does  not mandate  payment of income,  and that's  called a                                                               
complex trust.   A simple trust is where the  document says, "All                                                               
income earned  has to be  paid out  to the beneficiary";  in that                                                               
case, if  an Alaskan is the  beneficiary, that trust is  going to                                                               
distribute that income to that  beneficiary, and that beneficiary                                                               
is  going to  report that  income on  his/her federal  income tax                                                               
return.   The  only time  there would  be nonpayment  of a  state                                                               
income tax,  he explained,  would be  if the  trust kept  all the                                                               
income.                                                                                                                         
                                                                                                                                
MR. BLATTMACHR said  that what happens then is that  the trust is                                                               
considered a taxable entity and  would therefore pay federal tax,                                                               
and if  the state did tax  it, it would  be on the income  of the                                                               
trust.   "But  again, when  the trust  makes a  distribution, the                                                               
trust  gets a  deduction and  the  beneficiary picks  it up,"  he                                                               
reiterated.   Most of the  time, some or  all of the  income, and                                                               
sometimes part  of the principal,  is distributed even  though it                                                               
is not required.   The only time  that it could be  said that the                                                               
state might  lose a little  bit of  revenue, he posited,  is when                                                               
the trust didn't pay out any of the income.                                                                                     
                                                                                                                                
MR. THWAITES  added that most  of the individuals that  one would                                                               
deal with in  the area of estate planning are  the kind of people                                                               
who want  to hang on to  their money until they're  done with it,                                                               
so it's  rare for  complex trusts to  be set up.   He  noted that                                                               
lately he is  often setting up special-needs  trusts for disabled                                                               
parents or  disabled children,  but these  are not  usually large                                                               
trusts.      In   those  instances,   there   are   discretionary                                                               
distributions and so  they do become complex trusts.   He pointed                                                               
out  that  with complex  trusts,  the  income  is subject  to  an                                                               
immediate  increase  with  regard   to  the  federal  income  tax                                                               
bracket, and so for most people,  it doesn't make any sense to go                                                               
that  route until  a trust  is producing  upwards of  $200,000 in                                                               
income.                                                                                                                         
                                                                                                                                
Number 45.07                                                                                                                    
                                                                                                                                
REPRESENTATIVE ROKEBERG  sought confirmation that there  would be                                                               
no  real  harm  done  to  Alaska's  income  stream  by  exempting                                                               
residents from income taxes on their trusts.                                                                                    
                                                                                                                                
MR. BLATTMACHR said no, the  [number of] exemptions would be very                                                               
minimal.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  ROKEBERG, referring  to the  special-needs trusts                                                               
that  Mr. Thwaites  mentioned, asked  whether there  was anything                                                               
specific that  the legislature  could do to  help with  regard to                                                               
the mental health trust.                                                                                                        
                                                                                                                                
MR.  THWAITES mentioned  that the  Omnibus Reconciliation  Act of                                                               
1993  -  referred to  as  OBRA  '93  - established  four  federal                                                               
special-needs   trusts  and   two   other  types   of  trusts   -                                                               
testamentary special-needs  trusts and  third-party special-needs                                                               
trusts.     The  federal  government  basically   exempted  these                                                               
specialized  trusts   from  consideration   as  a   resource  for                                                               
determining eligibility for  Medicaid, as did some  of the Social                                                               
Security  Supplemental Security  Income  (SSI) rules.   He  added                                                               
that  the  federal  government   has  recognized  that  the  more                                                               
Medicaid eligibility  criteria is restricted, the  more often co-                                                               
payments,  dental  and  vision  services,  and  a  lot  of  other                                                               
services  are  not  covered.    Therefore, a  parent  who  has  a                                                               
disabled child,  for example, might  be better served  by setting                                                               
up  a testamentary  or third-party  special-needs trust  for that                                                               
child if that property and  money will be available to supplement                                                               
the child's care  and needs after the parents are  deceased.  The                                                               
other choice  for parents, he noted,  would be to give  the money                                                               
to the  other kids and  leave the  disabled child in  the Welfare                                                               
system, otherwise  the money  "just goes  away quickly  and isn't                                                               
available if it is counted as a resource."                                                                                      
                                                                                                                                
TAPE 02-12, SIDE B [House JUD tape]                                                                                             
Number 46.42                                                                                                                    
                                                                                                                                
MR.  THWAITES mentioned  that it  was  in 1993  that the  federal                                                               
government  provided   more  definitions  for  "those   types  of                                                               
trusts," and encouraged their use  as estate-planning devices for                                                               
the  elderly and  the disabled,  and as  supplements to  Medicare                                                               
benefits.   He noted  that "most  of that  stuff" is  found under                                                               
Title 42 of the U.S. Code, which is very strict.  He said:                                                                      
                                                                                                                                
     Once  you see  one  of those  and  recognize that  it's                                                                    
     under  that criteria,  basically  everybody just  says,                                                                    
     "Okay, we know what that  is, it's sacrosanct under the                                                                    
     federal rules, we're  not going to mess with  it."  And                                                                    
     that's what it  is:  it's a  personal injury settlement                                                                    
     for  a disabled  person  that enables  them  to have  a                                                                    
     home, to  have a car,  and to have payments  for things                                                                    
     that are not  going to be covered  by Medicaid, without                                                                    
     disqualifying them.                                                                                                        
                                                                                                                                
REPRESENTATIVE   ROKEBERG  asked   whether  Mr.   Thwaites  could                                                               
administer those types of trusts  and still make a profit without                                                               
it being too burdensome.                                                                                                        
                                                                                                                                
MR. THWAITES said,  "We could do that."  He  mentioned that he is                                                               
currently  having  discussions  with   the  Mental  Health  Trust                                                               
Authority  regarding administering  some  of  the "pooled  income                                                               
trust  monies."   In  this way,  he noted,  the  corpus of  those                                                               
pooled  income trusts  could be  paid back  to the  Mental Health                                                               
Trust Authority when the beneficiary dies.                                                                                      
                                                                                                                                
CHAIR TAYLOR,  after noting  that there  were no  more questions,                                                               
again  thanked   Mr.  Blattmachr  and  Mr.   Thwaites  for  their                                                               
presentation.                                                                                                                   
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
Number 43.49                                                                                                                    
                                                                                                                                
There being no further business  before the committees, the joint                                                               
meeting between  the Senate Judiciary Standing  Committee and the                                                               
House Judiciary Standing Committee was adjourned at 2:59 p.m.                                                                   

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