Hindert Gushes Over Risk's "Watershed Moment" But Argument Hits Rocks

by John Darer CLU ChFC CSSC RSP

In an otherwise generally informative review of the recent Academy of Special Needs Planners annual meeting Patrick Hindert goes over the top in a barrel to laud a historical model of self restraint Richard B. Risk as, to S2KM's knowledge, the first conference speaker (other than Hindert) to link IRC 468B (the "qualified settlement fund statute") and IRC 5891 (the "structured settlement factoring excise tax statute") which S2KM views as a strategic Special Needs Settlement Planning construct.

As is clearly stated in IRC 5891 (c)(1) the definition of "structured settlement appears in a subsection dealing with the imposition of an excises tax "for purposes of this section". To wit...

IRC 5891(c) Definitions For purposes of this section—

(1) Structured settlement

The term “structured settlement” means an arrangement—

(A) which is established by—

(i) suit or agreement for the periodic payment of damages excludable from the gross income of the recipient under section 104 (a)(2), or

(ii) agreement for the periodic payment of compensation under any workers’ compensation law excludable from the gross income of the recipient under section 104 (a)(1), and

(B) under which the periodic payments are—

(i) of the character described in subparagraphs (A) and (B) of section 130 (c)(2), and

(ii) payable by a person who is a party to the suit or agreement or to the workers’ compensation claim or by a person who has assumed the liability for such periodic payments under a qualified assignment in accordance with section 130.

The watershed moment that Hindert describes concerning Richard B. Risk's linkage between IRC 468B and IRC 5891 exposes their selective logic.

If the gravamen of the argument concerning single claimant 468B qualified settlement funds is that the "one or more claims" literally means "one or more" and not more than one, THEN logically when the Internal Revenue Code says the definition is "for the purposes of this section" doesn't it literally mean solely for the purposes of this section? That is to say this limited section of the Internal Revenue Code  entitled structured settlement factoring transactions", which begins at IRC 5891(a) with "There is hereby imposed on any person who acquires directly or indirectly structured settlement payment rights in a structured settlement factoring transaction a tax equal to 40 percent of the factoring discount as determined under subsection (c)(4) with respect to such factoring transaction." (i.e. the section simply imposes an excise tax and describes conditions for exceptions to the tax)

Are settlement planners supposed to be "selectively logical"?  So much gum flapping has been done on this subject that it could be an alternative energy source.