What’s that you say? You weren’t aware that children molested by teachers, priests and others are not universally provided tax free payments if they settle a personal injury claim?

You didn’t realize that a man or woman sent to prison under false testimony or a mistake in the prosecution, who is deprived of liberty and subjected to the horror of prison life does not get get tax free payments if they get a settlement from the state?

Or, that civil rights cases fought and won are in many cases fully taxable to the person who fights for years or decades for justice, only to see legal fees and taxes take most of the monetary compensation?

You aren’t alone in your lack of knowledge or confusion about the tax status of these types of claims, largely because they are currently governed by unclear federal tax statues, conflicting or ambiguous revenue rulings or private letter rulings or that many lawyers simply instruct their clients to take the cash and take their chances with the IRS to come looking for it later.

The fact is that Congress, the courts and the US Treasury have left these areas either untouched, partially explained or so ambiguous that it is hard if not impossible to provide definitive tax or settlement planning advice to those who have been molested, abused, wrongfully imprisoned or had their civil rights violated. I understand Congress not getting around to this as this is a small and powerless group of people who receive these types of cases and they aren’t a big lobbying arm in DC. Small children, emotionally damaged teen agers or young adults, prisoners and those whose civil rights have been violated don’t write big checks or deliver a lot of votes so I understand Congress letting this slide to the bottom of their radar screen.

What I don’t understand is the lack of action and attention to this issue by the settlement trade associations, NSSTA and SSP, when this is so clearly a fight worth picking with Congress and the courts to correct an obvious wrong.

It is not because there has been a failure by some of our brightest minds to bring the issue up and even ask for hearings in front of Treasury to discuss the issue and see what avenues we have to correct these wrongs. No, the reason we have not taken this on is largely due to distraction on other matters and a general fear of bringing up the issue of tax free benefits; terrified that we might get noticed by Congress and lose that which we already have.

In my conversations with various members and leaders of our industry and trade association it has become painfully clear that we are afflicted with the same mentality of trench warfare where you don’t advance, you don’t retreat, instead you sit in the mud, keeping your head down and happy your not being shot. Instead of taking advantage of our strong lobbying group, the 30 year track record of our product to deliver safe, predictable, tax free returns and its ability to improve the quality of life of the vast majority of annuitants, we choose instead to sit in our trench, scared to death that if we talk to Congress about expanding section 104 and 130 treatment to these deserving areas, that they might take away our existing tax treatment.

Ladies and Gentleman of the settlement profession, if we are so unsure of the value of our product and our ability to explain why molested children, wrongfully imprisoned and those who have suffered civil rights abuses need to be covered by the same tax free benefit afforded physical injury victims, then we need to retire or consider representing another product. The fact is we should be arguing to correct something that should have been fixed when the code was amended back in the 1990s and to provide similar benefits to some of the most traumatized, victimized and abused people in our society. That’s a noble and intellectually honest stance to take and one that we should be proud to take to Congress as an association and as individuals.

It is a fight we can win and one that we should make a priority of the association going forward.

However in closing, I fear that the looming freight train of Executive Life of New York is only going to make us more timid than we have been on this issue, afraid again to lift our heads out of the trench and attacking the problem. I would argue we need to go on the offensive and start promoting what is good and obvious about our core product instead of sitting under cover hoping we don’t get noticed by the bad guys. What we offer protects the financially and socially vulnerable and provides a secure, tax free income to those who are least able to afford the loss of their funds to market swings and riskier investments. We can’t be afraid of a debating our critics or educating our Congress for if we are and we fail to act, that which we seek to protect will eventually be taken from us with out a fight from us at all.

Tomorrows position statement: The looming issue of the Executive Life of New York structured settlement contracts. If liquidation is inevitable, how can the settlement profession best handle the fall out.