Structured settlement

A structured settlement is a financial or insurance arrangement whereby a claimant agrees to resolve a personal injury tort claim by receiving periodic payments on an agreed schedule rather than as a lump sum. Structured settlements were first utilized in Canada after a settlement for children affected by Thalidomide.[1] Structured settlements are widely used in product liability or injury cases (such as the birth defects from Thalidomide). A structured settlement can be implemented to reduce legal and other costs by avoiding trial.[2] Structured settlement cases became more popular in the United States during the 1970s as an alternative to lump sum settlements.[3] The increased popularity was due to several rulings by the IRS, an increase in personal injury awards, and higher interest rates. The IRS rulings changed policies such that if certain requirements were met then claimants could have federal income tax waived.[4] Higher interest rates result in lower present values, hence annuity premiums, for deferred payments versus a lump sum.

Structured settlements have become part of the statutory tort law of several common law countries including Australia, Canada, England and the United States. Structured settlements may include income tax and spendthrift requirements as well as benefits and are considered to be an asset-backed security.[5] Often the periodic payment will be created through the purchase of one or more annuities, which guarantee the future payments. Structured settlement payments are sometimes called periodic payments and when incorporated into a trial judgment is called a “periodic payment judgment."

In the United States

The United States has enacted structured settlement laws and regulations at both the federal and state levels. Federal structured settlement laws include sections of the (federal) Internal Revenue Code.[6] State structured settlement laws include structured settlement protection statutes and periodic payment of judgment statutes. Forty-seven of the states have structured settlement protection acts created using a model promulgated by the National Conference of Insurance Legislators ("NCOIL"). Of the 47 states, 37 are based in whole or in part on the NCOIL model act. Medicaid and Medicare laws and regulations affect structured settlements. To preserve a claimant’s Medicare and Medicaid benefits, structured settlement payments may be incorporated into “Medicare Set Aside Arrangements” “Special Needs Trusts."

Structured settlements have been endorsed by many of the nation's largest disability rights organizations, including the American Association of People with Disabilities [7] and the National Organization on Disability.[8]

Definitions

Congress adopted special tax rules in Public Law 97-473, the Periodic Payment Settlement Tax Act of 1982 to encourage the use of structured settlements to provide long-term financial security to seriously injured victims and their families.[9] These structured settlement rules, as codified in sections 104(a)(2) and 130 of the Internal Revenue Code of 1986, 26 U.S.C. 104(a)(2) and 130, have been in place working effectively since then. In the Taxpayer Relief Act of 1997, Congress extended the structured settlements to worker’s compensation to cover physical injuries suffered in the workplace. A “structured settlement” under the tax code's terms is an "arrangement" that meets the following requirements:

The structured settlement tax rules enacted by Congress lay down a bright line path for a structured settlement. Once the plaintiff and defense have settled the tort claim in exchange for periodic payments to be made by the defendant, the full amount of the periodic payments constitutes tax-free damages to the victim. The defendant then may assign its periodic payment obligation to a structured settlement assignment company (typically a single purpose affiliate of a life insurer) that funds its assumed obligation with an annuity purchased from its affiliated life insurer. The rules also permit the assignee to fund its periodic payment obligation under the structured settlement via U.S. Treasury obligations. However, this U.S. Treasury obligation approach is used much less frequently because of lower returns and the relative inflexibility of payment schedules available under Treasury obligations. In this way, the defense can close its books on the liability, and the claimant can receive the long-term financial security of an annuity issued by a financially strong life insurance company.

To qualify for special tax treatment, a structured settlement must meet the following requirements:

Legal structure

The typical structured settlement arises and is structured as follows: An injured party (the claimant) settles a tort suit with the defendant (or its insurance carrier) pursuant to a settlement agreement that provides that, in exchange for the claimant's securing the dismissal of the lawsuit, the defendant (or, more commonly, its insurer) agrees to make a series of periodic payments over time.[10] The defendant, or the property/casualty insurance company, thus finds itself with a long-term payment obligation to the claimant. To fund this obligation, the property/casualty insurer generally takes one of two typical approaches: It either purchases an annuity from a life insurance company (an arrangement called a "buy and hold" case) or it assigns (or, more properly, delegates) its periodic payment obligation to a third party ("assigned case") which in turn purchases a "qualified funding asset" to finance the assigned periodic payment obligation. Pursuant to IRC 130(d) a "qualified funding asset" may be an annuity or an obligation of the United States government.

In an unassigned case, the defendant or property/casualty insurer retains the periodic payment obligation and funds it by purchasing an annuity from a life insurance company, thereby offsetting its obligation with a matching asset. The payment stream purchased under the annuity matches exactly, in timing and amounts, the periodic payments agreed to in the settlement agreement. The defendant or property/casualty company owns the annuity and names the claimant as the payee under the annuity, thereby directing the annuity issuer to send payments directly to the claimant. If any of the periodic payments are life-contingent (i.e., the obligation to make a payment is contingent on someone continuing to be alive), then the claimant (or whoever is determined to be the measuring life) is named as the annuitant or measuring life under the annuity. In some instances the purchasing company may purchase a life insurance policy as a hedge in case of death in a settlement transfer.

In an assigned case, the defendant or property/casualty company does not wish to retain the long-term periodic payment obligation on its books. Accordingly, the defendant or property/casualty insurer transfers the obligation, through a legal device called a qualified assignment, to a third party. The third party, called an assignment company, will require the defendant or property/casualty company to pay it an amount sufficient to enable it to buy an annuity that will fund its newly accepted periodic payment obligation. If the claimant consents to the transfer of the periodic payment obligation (either in the settlement agreement or, failing that, in a special form of qualified assignment known as a qualified assignment and release), the defendant and/or its property/casualty company has no further liability to make the periodic payments. This method of substituting the obligor is desirable for defendants or property/casualty companies that do not want to retain the periodic payment obligation on their books. A qualified assignment is also advantageous for the claimant as it will not have to rely on the continued credit of the defendant or property/casualty company as a general creditor. Typically, an assignment company is an affiliate of the life insurance company from which the annuity is purchased.

An assignment is said to be "qualified" if it satisfies the criteria set forth in Internal Revenue Code Section 130.[11] Qualification of the assignment is important to assignment companies because without it the amount they receive to induce them to accept periodic payment obligations would be considered income for federal income tax purposes. If an assignment qualifies under Section 130, however, the amount received is excluded from the income of the assignment company. This provision of the tax code was enacted to encourage assigned cases; without it, assignment companies would owe federal income taxes but would typically have no source from which to make the payments.

Financing

The nature of structured settlements requires personal injury claimants to receive part of their settlement money at the time of settlement, and part of their settlement money in the future through periodic payments that are "fixed and determinable as to amount and time of payment." At the time of settlement, the claimant decides exactly when they want to receive the future periodic payments. The life insurance companies who underwrite these periodic payment obligations must comply with the Internal Revenue Code, and are therefore not allowed to cash out or give a cash advance for one's structured settlement. Unfortunately, these transactions have low rates of return and can be a bad deal for personal injury claimants. Various legal financing companies offer to buy part or all of one's structured settlement (or other fixed annuity payments) in return for a lump sum cash upfront. Basically, such companies allow one to switch, for example, a structured settlement payment of over 20 years to one (lesser-valued) payment now. Such financing can be used to pay for a house, send a child to college, or pay off one's debts. Such financing will need the approval of a judge and the insurance company.[12] In 2012, a Tennessee Chancery Court issued an order denying a payee's transfer of workers' compensation settlement payments under a structured settlement agreement. Judge William E. Lantrip held that (i) workers' compensation payments are not within the definition of "structured settlement " under the Tennessee Structured Settlement Protection Act, Tenn. Code. Ann. §47-18-2601 [13]

A purchaser of a structured settlement is an individual or company who buys a pre-existing structured settlement. Such settlements might include payouts for lottery winnings or annuities. For example, a court ordered structured settlement pays $5,000 a year for twenty years. The recipient doesn't want to wait for twenty years to receive their money so they approach a purchaser. The purchaser offers them $50,000 cash. In this example, the person trades a total of $100,000 for $50,000 cash now. The seller receives less money than they would if they waited twenty years, but they receive the money immediately.[14]

In popular culture

In April 2009, financial writer and TV personality Suze Orman wrote that structured settlements "provide ongoing income and reduce the risk of blowing a lump sum through poor financial choices." She added that financial security can be improved "if you use the structured payouts wisely."[15]

J.G. Wentworth is the largest buyer of structured settlements in the US. The company is best known for the "Opera" and "Opera on a Bus" commercials that appeared in early 2010 on most cable channels in the continental United States.[16] J.G. Wentworth's commercials are often considered to be over the top and many parodies have been born from it ever since. The company's CEO appeared on Fox News to discuss the effectiveness of the campaign.[17]

See also

References

  1. ↑ Hindert, Daniel (1986). Structured Settlements and Periodic Payment Judgements. New York, NY: Law Journal Press. pp. 1–36. ISBN 1-58852-037-4.
  2. ↑ Edwards, J. Stanley (2009). Tort Law for Legal Assistants. Clifton Park, NY: Cengage Learning. pp. 197–8. ISBN 1-4283-1849-6.
  3. ↑ Structured settlement: Definition from Answers.com
  4. ↑ Bendian, Marc (September 2005). Structured Settlement Payments and Periodic Judgements. Law Journal Press.
  5. ↑ Cherubini, Umberto (2007). Structured Finance: The Object Oriented Approach. Sussex, England: John Wiley & Sons. p. 77. ISBN 978-0-470-02638-0.
  6. ↑ § 5891. Structured settlement factoring transactions
  7. ↑ The American Association of People With Disabilities
  8. ↑ National Organization on Disability
  9. ↑ "JCX-58-82". The Joint Committee on Taxation. 22 December 1982. Retrieved 20 May 2015.
  10. ↑ Structured Settlement financial definition of Structured Settlement. Structured Settlement finance term by the Free Online Dictionary
  11. ↑ "26 U.S. Code § 130 - Certain personal injury liability assignments". Legal Information Institute. Retrieved 20 May 2015.
  12. ↑ "What Is A Structured Settlement and How To Buy/Sell?". Max Wealthy. 7 February 2015. Retrieved 20 May 2015.
  13. ↑ "Tennessee Court Denies Transfer of Workers’ Compensation Payments". The National Law Review. Drinker Biddle & Reath LLP. 2012-07-05. Retrieved 2012-07-12.
  14. ↑ Stammers, Robert. "The Foundation Of Structured Settlements". Investopedia. Retrieved 20 May 2015.
  15. ↑ Orman, Suze (May 2009). "The Smart Way to Pay Off Debt". Oprah. Retrieved 14 March 2015.
  16. ↑ http://www.bradenton.com/2011/06/15/3276792/jg-wentworth-completes-265-million.html
  17. ↑ "J.G. Wentworth CEO on success of the ‘Get Cash Now’ campaign". Fox Business. 14 November 2013. Retrieved 14 March 2015.

Further reading

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