A Novel SECURE Design for a Tax-Deferred Retirement Accounts “Conduit” Trust

This post addresses a novel written irrevocable trust planning option under the current SECURE Act (effective beginning December 20, 2019). The SECURE Act eliminated the prior-law longer pay-out stretch option and, in general terms, allows only a 10-year payout period for non-spouse beneficiaries who inherit a retirement account from a deceased primary owner. [There are some other limited exceptions that allow a longer payout than this 10-year period that I do not address for purposes of this post.]

This planning centers on both Roth and non-Roth income tax-deferred retirement accounts, such as, but not limited to, corporate or self-employed (“Keogh”) pension, profit-sharing, defined-benefit, and stock bonus plans, SEPs, 403(b) plans, IRA and Roth IRA plans, 401(k) and Roth 401(k) plans, 457 plans. This trust design can work collectively for both Roth and non-Roth accounts.

An Example: You have decent sized non-Roth and Roth IRAs. You presently have four children, all different ages. The SECURE Act tax-law limitations generally now eliminate — after your death — the longer life-expectancy payout periods for beneficiaries for these retirement accounts; now limited in most cases to a 10-year maximum payout period. What is an effective planning option for your retirement accounts in this situation? For purposes of this blog post, I use both a Roth IRA and non-Roth IRA as examples.

For both these Roth and non-Roth IRA accounts, I recently designed a written tax-deferred retirement accounts trust that is a good SECURE option. [NOTE: this blog post is not a primer with fundamentals on how to set-up and use a trust for retirement accounts. It merely highlights key points to consider for this recent new trust design.]

The essence of this retirement account trust design is that:

(1) The trust agreement is a sprinkle trust that allows the trustee to make trust beneficiary distributions of periodic retirement account withdrawals to and among the named class of beneficiaries, depending on their needs, own marginal income tax rates, etc., in equal, unequal, or in no amount as to the class members;

(2) This is a key design point: The trust agreement must be drafted purposely so as to avoid each trust beneficiary from having substantially separate and independent trust shares. The reason is to enable trust distributions to carry out DNI only to those beneficiaries who, in a given year, actually receive distributions from the trust. Otherwise, for example, separate and independent shares can result in one beneficiary ending up with a trust distribution in excess of the trust’s total DNI, causing the trust to be taxed on such income at the trust’s substantially higher compressed marginal income tax rates. By contrast, the goal is for the trustee to sprinkle distributions from the trust to and among the class of trust beneficiaries depending on their needs, their own marginal income tax rates, etc.

As a relevant aside, creating separate and independent trust shares for retirement accounts trusts — now and prior to SECURE — requires that the retirement account beneficiary designation itself refer to separate trusts; e.g., 1/3 of my IRA at my death is payable to the Jane Doe Trust; 1/3 to the Susan Doe Trust; and 1/3 to the Sam Doe Trust, etc. My point here is that it is not easy under my proposed SECURE trust planning simply to fall inadvertently into an independent and separate share regime for this kind of retirement trust planning (see, e.g., IRS Private Letter Ruling 200317041). But, nonetheless, one optimally needs to understand these concepts in order to avoid a separate trust share situation for this SECURE trust design.

(3) In broad terms this SECURE retirement trust will be named as the retirement account beneficiary; and treated as a pass-through “conduit” trust. This means, again generally, that any periodic retirement account withdrawal the trustee obtains from a retirement account must — within that same taxable year — be sprinkled on out from the trust to and among one or more of the trust beneficiaries;

(4) One important point ideally is that this trust should not be used to accumulate withdrawals from non-Roth retirement accounts. Otherwise, a trust’s withdrawal from a non-Roth retirement account, if the trust thereafter holds and accumulates that withdrawal within the trust itself without distribution to a trust beneficiary, will cause the trust to be liable for income tax on that withdrawn amount at the trust’s own substantially higher, compressed income tax rates; than if taxed to a trust beneficiary at his or her lower marginal income tax rates.

As to the above income tax, generally a trust’s receipt of income is not taxable to the trust itself in situations where (under the tax law) that trust income is shifted out to a trust beneficiary by a distribution of that trust income as a trust distribution out to a recipient beneficiary. For 2021, a trust that pays its own income tax (when the trust itself holds undistributed taxable income) hits the top 37% marginal income tax rate beginning at $13,050 of trust taxable income; for a single individual, this 37% marginal rate kicks in when that individual’s taxable income is more than $523,600.

(5) But, contrary to the preceding point, note the following Roth account exception is important for this SECURE trust design: As stated above, the trust is a “conduit” trust for non-Roth tax-deferred retirement accounts. However, the trust also includes an express exception clause that allows the trustee to accumulate (thus disregard the conduit mandate) for any Roth account distributions the trustee receives. The trustee can accumulate and invest these Roth distributions for later distribution to the trust beneficiaries, well outside the 10-year SECURE distribution period;

(6) Back to broader comments. This SECURE trust design must still meet the requirement that all beneficiaries are qualified beneficiaries so as to avoid application of the five (5) year payout no-beneficiary distribution rule, rather than the 10-year rule;

(7) As to any mandated conduit distributions from the trustee to the beneficiaries, this trust design provides additional flexibility for the trustee to deal with minor-age or disabled trust beneficiaries, etc., using the following (or similar) trust provision:

“The Trustee may (without court approval) make distributions of any portion of a distribution required or permitted to be made to any person under this trust agreement in any of the following ways:  (i) to the person directly; (ii) by distribution in further trust in the manner provided under section 20.1; (iii) to the guardian of the person or the person’s property; (iv) as to such distribution by selecting and designating an individual or financial institution to serve as Custodian for such minor beneficiary under the Uniform Transfers/Gifts to Minors Act of any state; or (v) by reimbursing the individual who is actually taking care of such person (even though the individual is not the legal guardian) for expenditures made by the individual for the benefit of such person. Written receipts from the persons receiving such distributions (other than if held in continuing trust under section 20.1) shall fully and completely discharge the Trustee from any further responsibility for such expenditures. The Trustee shall not exercise any power under this section 17.7 in a manner that would cause any trust holding S corporation stock not to qualify as a permitted shareholder of that stock for federal income tax purposes.”; and

(8) Finally, under the SECURE Act’s 10-year distribution mandate, the trustee has the option to make no withdrawals from the retirement accounts until late in the 10th-year so as to let those accounts continue to be invested income-tax deferred within the retirement accounts until later withdrawn. In essence, this substantively allows for an accumulation of tax-deferred value continuing within the retirement accounts during the 10-year period, although this SECURE trust is ostensibly a conduit trust during that same 10-year period.

A Third 2021 Heckerling Estate Planning Take-Away: “Conduit Trusts”

This is my third 2021 Heckerling Institute take-away. It centers on Natalie Choate’s fine (as usual) presentation about the SECURE Act and its effect on 10-year conduit trust planning as part of one’s estate planning. A conduit trust is a “see-through” trust that receives a deceased participant’s periodic qualified retirement account distributions (such as from an IRA), with the conduit trust thereafter passing along that retirement account withdrawal from the trust to the trust beneficiaries.

The particular narrow focus of this blog post is how the retirement account distribution from the trust is thereafter taxed for income tax purposes to the recipient trust beneficiaries. This gets into the income tax DNI rules (distributable net income) and a goal of sprinkling these trust distributions to and among the trust beneficiaries so as to take advantage of their respective (in many cases lower) own personal income tax rates, etc.

In short, prior to the SECURE Act most conduit trust provisions were designed to include separate trust shares for each named beneficiary. However, in my view, the new SECURE Act 10-year limitation now points optimally to avoiding this separate trust result. In its place is a more desirable single conduit pot-trust from which — from the one trust — the periodic retirement account distributions can be sprinkled, as necessary, by the Trustee among a class of trust beneficiaries, such as a decedent participant’s children. This sprinkle element gets back to the above point about the potentially lower individual tax rates among the beneficiaries.

This blog post addresses how one might best be able to sprinkle out these periodic distributions so as to take advantage of the recipient beneficiaries’ lower income tax rates. This post also assumes the reader has some background experience with conduit trusts.

Specifically, a conduit trust now under the SECURE Act ideally needs to allow the Trustee to sprinkle the trust’s retirement account withdrawal to and among any one or more of the trust beneficiaries with each beneficiary’s share of DNI based on the distribution the beneficiary actually receives; not otherwise based on proportionate separate trust shares.

For example, assume there are five children named as the class of the conduit trust trust beneficiaries. Two children currently need distributions during 2021 to help with living expenses while at college. The younger three children do not yet need distributions. Assume in 2021 the Trustee withdraws $200,000 from the retirement account and, thereafter (as a conduit), distributes $75,000 from the conduit trust to Child One and $125,000 to Child Two.

The question arises as to how the $200,000 total DNI is allocated for 2021 for each of these two recipient children. The DNI answer is not simply that a trust beneficiary is allocated a portion of the trust DNI simply based on how much the beneficiary receives. Rather, the DNI allocation method must be a purposeful goal of the conduit trust design. In this instance, purposely avoiding separate trust treatment.

Keep in mind a conduit trust also must pass-along all withdrawn amounts from the qualified retirement accounts — during the same taxable year — on to the trust beneficiaries. In the above example, to Child One and Child Two who presently need the trust distributions. These retirement account distributions for a conduit trust also cannot accumulate in the trust itself. But keep in mind any continuing income-tax-free growth and accumulation continues to the extent the retirement account itself remains in place with no withdrawal by the Trustee (under the SECURE Act 10-year payout rule).

Back to the DNI element for a conduit trust. The ideal DNI treatment is for Child One in the above example to be treated as receiving (and taxed at her own income tax rate) $75,000 of the DNI, with Child Two receiving and taxed on $125,000 of the DNI. This DNI allocation goal is logical; but must be the result of the purposeful design of the conduit trust. Keep in mind DNI effectively shifts the income tax obligation to the recipient trust befeficiarues at their lower marginal income tax rates. The trust, in this example, does not pay any income tax on the $200,000 DNI at its otherwise higher, compressed income tax rates.

Without the above purposeful DNI design and result, there is a risk the above two children who actually received the $75,000 and $125,000 trust distributions are otherwise treated as having received and taxed each only on $40,000 DNI. This is based on 2/5 of the $200,000 trust income [as to two beneficiaries compared to the total five beneficiaries].

This would likely be a costly, inequitable result, if Child One is taxable for income tax purposes only on $40,000 of her $75,000 distribution; Child Two taxable only on $40,000 of her $125,000. Here is the costly result: the conduit trust itself would be taxable — at its higher compressed income tax rates — on the $120,000 DNI that is not deemed to have been distributed out to anyone in this example. The trustee also may likely have to withdraw additional taxable retirement account funds in order to pay this trust income tax liability. A circular challenge.

For my own benefit, and hopefully for the benefit of readers, I ask you to review my conduit trust provision below that, if included in a conduit trust (along with other necessary conduit trust provisions), may help avoid the above inequitable DNI result. Let me also just say that in this new SECURE Act environment this DNI question is a very important, new planning issue that we practitioners must now grapple with and address.

Below is the sample DNI trust provision:

” 7.11 There is no requirement under the preceding distribution provisions of this Article XXIV that the Trustee must make equal distributions to each member of the class of beneficiaries named in the preceding section 7.10.  As to any periodic conduit trust distribution to any one or more of the class of beneficiaries under this Article XXIV (whether equal, unequal, or in no amount as to any one or more of such beneficiaries), my intent is that each such beneficiary’s respective receipt of a distribution, if any, be treated as distributable net income (“DNI”) to that particular recipient beneficiary proportionate to the distribution amount he or she actually receives with the result that only the recipient beneficiaries as to periodic distributions hereunder are treated as receiving a proportionate share of DNI based on his or her actual pro-rata receipt of the total distributions.”

A Couple of 2021 Heckerling Institute Estate Planning Take-Aways

Last week I attended the first virtual, remote University of Miami 2021 Heckerling Institute on estate planning. As usual, there was a great deal of good, thought-provoking information. I am, however, greatly looking forward to the actual post-Covid on-site 2022 Heckerling Institute next year.

Here, very briefly, are two take-aways. I plan periodically to present more of these short take-aways in future blog posts:

One is that the inter-vivos QTIP marital trust (my long-running favorite estate planning tool) appears to be one of the best options for a married couple to take advantage of the current $11.7 million estate / gift exemption before possible federal legislation to reduce that large exemption arises ($23.4 million combined for a married couple). This QTIP option is akin to using a SLAT (spousal lifetime access trust), but better, in my view, as the QTIP election feature provides the unique ability to wait-and-see so as to make, or not make, the QTIP marital deduction election for the inter-vivos QTIP trust, until after the smoke clears on what, if any, changes Congress might make in reducing the gift / estate exemption.

But, keep in mind the QTIP trust funding itself is locked-in in all events; only at play (a very important play) is whether the spouse who funds the QTIP trust ends up being able to use the current large exemption amount. As an important aside, some states (including Georgia) have a protective statute that prevents a creditor from reaching a secondary QTIP interest, by that creditor otherwise asserting the secondary interest is a self-settled interest back to the settlor spouse. This favorable statutory protection enables the inter-vivos QTIP trust, up front, to include a secondary QTIP interest for the settlor (funding) spouse in the event the other QTIP beneficiary spouse predeceases the settlor.

If use of the large gift exemption is thereafter thwarted — in part or in whole — for whatever reason (e.g., a Congressional retroactive reduction in the exemption amount), the amount of exemption applied to the QTIP gift can be effectively adjusted downward by the offsetting use of the QTIP marital deduction election. The QTIP election (including a partial election) does not have to be made until the due date of the gift tax return Form 709 for the 2021 QTIP trust gift. This gift tax deadline, if extended, is October 15, 2022. Thus, the binding exemption-effect of now using the excess gift exemption to fund the QTIP trust can be deferred with no fixed, rigid commitment until October 15, 2022.

Two is the importance of the separate trust share rules under Internal Revenue Code Section 663(c). This is very important when one’s estate planning set-up includes separate trust shares for each child, grandchild, etc. The separate trust share treatment under Section 663(c) insures that each child / grandchild, etc., is tagged only with the DNI arising from his or her trust share. [DNI is “distributable net income”.]

Otherwise, there can arise anomalies — without the separate trust share treatment — where one trust beneficiary receives a trust distribution that (undesirably) carries out excess taxable DNI to that recipient beneficiary, as a result of an inclusion in the DNI calculation of undistributed DNI as to the other trust beneficiaries. Adding separate share language to the trust instrument helps avoid this imbalance and makes clear the Code Section 663(c) separate trust share rule applies in these multiple-beneficiary trust situations. Below merely is a sample provision:

“8.9      Separate Trust Shares.  As to each trust share under section 8.4 above, I intend that each such trust share be treated as a separate economic interest (separate trust share) as to each beneficiary for whom the trust is created under this Article VIII with the result that each separate trust share is not affected by the economic interests accruing as to the interests of another beneficiary or class of beneficiaries.”

The Novel “Madame Bovary”; A 160-year Marvel by Gustave Flaubert

Just finished my first-time read of the novel “Madame Bovary” by Gustave Flaubert (the Marx-Aveling translation). Wow! Flaubert highlights what I believe is one of the most important universal questions we all repeatedly need to ask ourselves. For example, the question of the vastness and richness of life, and the potential experience and response to our lives well beyond merely: “Good little Daddy gets up and makes breakfast; “Good little Daddy goes to work”; “Good little Daddy comes home and reads the evening paper, and is a great family man”; repeat, repeat, repeat, etc.

Below is a related excerpt from The New Yorker magazine (11.5.17) from a Professor Roxana Robinson, on teaching Madame Bovary to her students each year at Hunter College:

“At the start, Flaubert encourages us to judge her [Madame Emma Bovary]. But by the end he asks us to consider what it means to sacrifice everything for a dream. He asks us to consider human dreams and their worth. He asks who among us are heroes. He asks us to consider the human body, which is such an intimate partner in our lives. How Emma’s body, so strong and vigorous in her pursuit of love, finally compels a dreadful reckoning over which she has no control.”

The 80% Rule to Avoid Letting Others Get Under Your Skin

Bottom line, we all can be happier if we disregard 80% of what anyone else tells us. If you stop and consider carefully the words that typically come your way from others, most of them consist merely of argument, bias, preferences, or ungrounded (often unsolicited) recommendations and conclusions that some other person feels compelled to send your way. Lawyers, in particular, have to listen to a lot of argumentative, biased blather from opposing parties, etc.

Related to the above point, as I was driving to my office today I thought about how far too many individuals (e.g., assume Person A) allow others (Person B) to hook them and get under their skin too easily, with a feeling that Person A, thereafter, has an obligation to respond to or convince Person B as to why Person B is wrong, etc. On the other hand, and under the 80% rule I stated above, my view is that Person A is wasting otherwise valuable time that does not need to be wasted on Person B, or on responding to about 80% of what Person B said. Just simply let about 80% of what you hear go in one ear and out the other.

I frequently remind my girls about the above 80% point. I also periodically suggest that they consider (i) not accepting others’ framing of a perspective for any situation; but, rather for them (my girls) to step back and first take a moment to consider their own framing of the situation; (ii) then, next, listen to what the other person says to determine whether to accept any part of what that other person is saying that might be accurate, instructive or helpful; or, in some cases, simply disregard entirely all of what the other person is saying. In all cases, I suggest one should be civil, kind, and empathic. Just don’t buy into all that someone else says.

And, finally, readers I hope you apply these same recommendations to this blog post. I understand fully that not everyone will, or has to, agree with my comments, or even 80% of my commentary.

My 7.9.20 Steve Leimberg Newsletter: Inter-Vivos QTIP Trusts; Now Even Better in Georgia

I continue to believe the inter-vivos QTIP marital trust is one of the best options for tax / asset protection trust planning. Click here for my July 9, 2020 newsletter. At a minimum, I ask that you at least read the section of my newsletter captioned “Preface – The Notion of Asset Protection Planning“. Please contact me at james@ktlawllc.com if you have any thoughts or questions about this QTIP trust planning.

Note:  You have my permission to print, copy, or forward copies of this newsletter to any other third-parties. 

The Misdirected Framing of a Defense Argument in the Arbery Case

The blog post points ultimately below to my continuing, strong criticism of Gregory McMichael, Travis McMichael, and William Bryan’s inevitable defensive attempts to turn the table on Ahmaud Arbery and make Arbery out as the aggressor, against whom Travis McMichael was the victim who had to defend himself by fatally shooting Arbery three times with a 12-gauge shotgun.

I am not going to repeat details of this McMichael / Bryan killing here that are more than abundantly available in the media and on the web. The point I wish to make is to urge readers not to allow themselves to get pulled into this “Arbery-aggressor” argument. In my opinion, it is a misdirected framing of an argument the defense attorneys hope they can spin as a winning theme for the McMichaels and Bryan.

In short, and based on my review of the recent Arbery probable cause court hearing videos, the McMichaels / Bryan attorneys are (not a surprise) beginning to advance their self-defense argument, as follows: That is, just moments before Arbery’s death, Arbery “squared up” in a fighting stance and attacked Travis McMichael, who was standing by the side of his pickup truck brandishing a 12-gauge shotgun. Travis McMichael felt he was in threat of bodily harm and shot Arbery in self-defense. Travis McMichael’s attorney refers specifically to this defensive argument in his Closing Arguments during the recent probable cause hearing. Click here for a YouTube video of the Closing Arguments (listen, in particular, to the first 60 seconds).

Don’t fall for this misdirected framing of a defense by the McMichaels / Bryan attorneys. This defense is deja vu of the argument that enabled George Zimmerman in 2012 to walk free from his killing of Trayvon Martin.

I strongly criticized the 2012 Zimmerman acquittal because, in my opinion, when Zimmerman moved forward in order to hunt for Martin as part of Zimmerman’s attempt to investigate and find Martin, etc., all bets should have ended at that point for any “self-defense” or “stand-your-ground” argument for Zimmerman. In my view, when Zimmerman took it upon himself to make a move toward Martin to find him, etc., Zimmerman became the aggressor with no basis thereafter for a self-defense or stand-your-ground argument. Below is a simple example in line with my argument that Zimmerman became the aggressor.

Assume my wife and I are walking down the sidewalk at night. Some guy walks past my wife and me and appears purposely to bump into me with such force that I fall down on the ground. The guy keeps walking away from us. But, I reverse my direction, brandish my handgun, and chase down the guy; he “squares up” and moves in my direction aggressively to hit me; I shoot and kill him with my gun.

Now, in this example, one might argue this guy was the aggressor when he bumped into me, or when he “squared up” toward me, etc. However, I am the first aggressor relevant to my use of the gun. I am, therefore, the aggressor with the gun. My killing of the guy, in this example, likely would not have occurred (i) as he was walking away from my wife and me in the opposite direction, and (ii) I intentionally changed my direction and went after the guy while brandishing (and ultimately using) my gun.

I believe the example above with my wife and me is sufficient to convey my point contrary to the McMichaels / Bryan defensive framing of the issue. The McMichaels / Bryan were the first (and only) aggressors with the guns. It is entirely unreasonable to try and cast Arbery as the aggressor for purposes of the underpinning of the defense lawyers’ self-defense argument.

Finally, as a broader notion, assume you have a 25-year old son. Your son has been chased for approximately four minutes by three grown men using two vehicles. Your son becomes essentially trapped by the three men, and is likely so exhausted he can no longer run. One of the men is out of the truck brandishing a shotgun at your son.

As yourself these two questions: (i) what in that moment do you believe your son would have done?, and (ii) what in that moment should your son have done? In answering the second question, and now that we know Arbery is dead, can you realistically — with full conviction not affected by hindsight — state that in that moment your son should have simply put his hands up and surrendered?

As an aside, I certainly believe your son should put up his hands in any situation where the police are the pursuers. But, key to the Arbery case is that the McMichaels and Bryan were not police, were not dressed in law enforcement uniforms, were chasing Arbery in pick-up trucks; and were brandishing weapons; they, likely from Arbery’s perspective, appearing to be taking no survivors in their aggressive, exhaustive, two-vehicle corralling of him. Click here for my previous Arbery post about this vehicle corralling.

My ending point: Your framework for how you view this Arbery case should start at a point well before the defense lawyers’ efforts to have you too narrowly see this case only as a self-defense “squaring up” moment before Arbery’s death.

Ahmaud Arbery’s Death: The Tragic Four-Minute “Citizens Arrest” Chase (revised 5.26.20)

This post centers on Gregory McMichael, Travis McMichael, and William Bryan’s apparent four-minute vehicle chase in Georgia that ended in the tragic death of Ahmaud Arbery; and, in my opinion, that fails to any extent to fall within Georgia’s “citizens arrest” statute. I will soon write a second blog post with more details about the inapplicability of this citizens arrest statute.

My underpinning for today’s blog post is a recent May 16, 2020 video in the web version of the New York Times, captioned “Ahmaud Arbery’s Final Minutes: What Videos and 911 Calls Show”. Click here for a link to this NYT video. This video is a reconstruction of the 12 minutes prior to Arbery’s death, based on the construction site security camera, cell phone information, and 911 call data.

Below are the points I wish to make with this blog post.

One. This NYT video shows, quite shockingly and extremely painfully, how Ahmaud Arbery apparently was chased by one vehicle driven by Gregory and Travis McMichael, and by a second vehicle driven by William Bryan, before being trapped by all three men and ending with Arbery’s tragic death.

More specifically, the McMichaels and Bryan appear — in this NYT video reconstruction for a period of approximately four minutes — to have used their two vehicles to chase and trap Arbery. Arbery — running on foot from the two vehicles — apparently changed his direction twice in unsuccessfully avoiding getting overtaken and trapped. This apparent four-minute vehicle chase is not information I was aware of until seeing this NYT video.

What also jumped out to me powerfully from this video is that the McMichaels and Bryan appear to have twice turned their vehicles around along the roadway in their ongoing four-minute trapping of Arbery. The first of two reversals by the McMichaels is when Gregory McMichael apparently jumped from his truck cab into the bed of his truck and began wielding a .357 handgun as the chase for Arbery continued. In this NYT video William Bryan was apparently the first in this chase to reverse the direction of his vehicle as he continued to pursue Arbery, followed with a similar reversal by the McMichaels.

Two. My second point here is my own subjective perspective. It stems from my having lived in Atlanta my entire life. And, my observation in Georgia of the still-present deep level of racial prejudice, especially by many in the age 60+ range. And, no better than the overt racial views I observed in Georgia as a child during the 1960s is what I perceive at present to be a quiet, unspoken, “wink-wink”, still-deeply-seeded racial prejudice in Georgia. These are individuals who either are too cowardly to be candid and forthright in acknowledging their racial prejudice, or who have no interest in facing squarely a need to stop and challenge themselves about why and whether they are willing to contemplate a more-evolved perspective.

Three. This last point goes to the appearance of recent Facebook posts and web references in which individuals are placing the criticism and blame of this tragic killing on Ahmaud Arbery. To the contrary, I consider blame directed at Arbery to be nothing more than a premature, knee-jerk attempt to support a preconceived, racially-biased conclusion against Arbery.

So, please take a moment to ponder what your innermost race-factor reactions are to this Arbery killing, especially the apparent four-minute chase factor in the above NYT video. Ask yourself if you are jumping immediately to conclusions against Arbery, such as “Arbery had tattoos and looked like someone who is a criminal”; “Arbery had an afro [or dreads, etc.]”; “Why was Arbery running if he didn’t do anything wrong?”; “Arbery should not have walked into that house construction site”; or, “Why did Arbery resist if he was not doing anything wrong?”, etc. Or, is your reaction a passive acceptance simply that “This is what happens when a black man tries to run. Arbery should not have run.”

My forthcoming blog post will show, quite persuasively from my view as a lawyer, zero support for the McMichaels and Bryan being able to rely on the Georgia “citizens arrest” statute as a winning defense for their actions. These three men possibly may have thought they were properly making a citizens arrest, but whatever they thought likely was powerfully, and tragically, motivated by their own preconceived and prejudicial attitudes and beliefs about blacks, especially a black man running.

Revision today 5.26.20 — This NYC Central Park incident just in today illustrates very well the embedded racial bias we as a society collectively need to acknowledge and address, directly and with a receptive spirit. Click here for the update.

Here is the 5.12.20 Trump tax returns U.S. Supreme Court oral argument link

I listened yesterday to the lawyers ‘ recent May 12, 2020 oral argument before the U.S. Supreme Court in the Congressional House’s subpoena attempts to obtain Trump’s tax returns and various other business records. The subpoenas were not served directly on Trump himself. The subpoenas are for tax returns and business records held by certain other third-parties for time periods prior to Trump’s election as president.  This subpoena question is an extremely novel, and complex, separation of powers question.

Click here for the link to the U.S. Supreme Court webpage that includes the audio of the oral argument, as well as a pdf transcript of the argument.

I certainly have some thoughts from my lawyer perspective that touch on both sides of this subpoena issue.  But, more important than my own view, is this opportunity for you to listen to the oral arguments yourself.  Let me just say that the issue is not merely a simple, conclusory “What’s the problem? Just force them to turn over the records”.  In my view, whatever conclusion the Supreme Court makes in response to this case will be constitutionally monumental.  Your grandchildren will, no doubt, seriously study this case in their law school constitutional law classes.

It’s Good to Play Wrong Notes (this is about music)

It is Tuesday evening.  About to leave my office.  I gave some thought to preparing a legal / tax topic for another blog post. But, then decided to veer off purposely to share a couple of YouTube music jazz videos.  My blog post next week can get back more directly to lawyering, etc.

In my spare time, I am trying my best to inch my way along each week to becoming a better jazz guitarist.  The other night I stumbled across the following two YouTube videos that feature one of the top bass guitar players Victor Wooten.  These two videos really need no further comment from me, other than my following non-crucial brief points.

That is, my reaction to music is to enjoy and comprehend what elements make the music better than other music.  I am not talking just about the style of music, e.g., rock, hip-hop, jazz, classical.  But rather, why do we enjoy hearing one performance better than another?  What creates within us this difference in how we respond to the music?

I know the answer conceptually.  It is the rhythm, e.g., the beat, feel, energy, tension, release, and pulse of the music.  It is not (at least for me) merely that someone plays his or her music in a nice, safe, pleasant, ordered manner.

The following two Victor Wooten videos are great examples for how Wooten powerfully demonstrates some key factors that go to how we respond when we hear music (for example, when the player purposely, or accidentally, plays wrong notes).  One of the videos also illustrates how, for example, Wooten on bass can play intentionally in a manner that can make the other soloist actually sound better. Click here for the first Victor Wooten video;  click here for the second video. [NOTE: the first video has a short intro by a younger guitarist who is not Wooten.]

I urge you to take the time to view these two videos, even if Wooten might not be talking about your particular type of music.  His take-away points are, in my view, universal to all music.  I also would greatly enjoy hearing from any of you if either or both these videos strike you as powerfully as I was struck.  I hope you enjoy them.