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Maximizing Settlement Benefits: The Power of Qualified Settlement Funds for Litigators

Maximizing Settlement Benefits: The Power of Qualified Settlement Funds for Litigators

As a litigator, one of the most critical aspects of your responsibilities is ensuring that your clients receive the maximum and most flexible settlement benefits possible. One powerful tool that can help you achieve this goal is Qualified Settlement Funds (QSFs). This paper explains QSFs, their advantages, the legal framework governing them, and how they can maximize settlement benefits. We shall also discuss common misconceptions about QSFs and how to choose a QSF administrator.

Understanding QSF and Its Benefits for Litigators

What Is a Qualified Settlement Fund (QSF)?
A Qualified Settlement Fund (QSF) is a tax arrangement created under IRC §1.148B-1 et seq. that allows litigants to set aside settlement funds in a trust. This arrangement enables the parties involved to resolve legal disputes without distributing the settlement funds immediately. Instead, the QSF’s funds are held, tax-deferred, within the QSF until disbursed to the intended recipients.

A welcome benefit of a QSF is that you, as the attorney, never receive client funds. As such, a QSF is not an IOLTA and is not reportable to your state Bar. The QSF administrator manages the funds, eliminating the burden and risks that would ordinarily be associated with funds in your firm’s IOLTA.

Advantages of Using a QSF for Settlement Funds
There are several additional advantages to using a QSF for settlement funds. First and foremost, a QSF allows the parties involved to settle a case without immediately disbursing the settlement funds to the plaintiffs. This flexibility and tax defer treatment can be particularly beneficial in cases where there are multiple plaintiffs or uncertainty about the final amount of the settlement due to liens or other issues. Also, by using a QSF, the parties involved can avoid negotiating separate settlement agreements and instead focus on resolving the underlying legal dispute.

Another advantage of using a QSF is that it can help to simplify the settlement process. Instead of having to negotiate separate agreements with each plaintiff, the parties involved can negotiate a single settlement agreement outlining the method of allocation and distribution from the QSF. This advantage helps to streamline the settlement process and reduce the administrative burden on all parties involved.

468B: The Legal Framework of a Qualified Settlement Fund
The legal framework governing QSFs is in IRC §1.468B-1 et seq. of the Internal Revenue Code. This section provides the requirements for a QSF to be established, qualified and maintained. These requirements include:

Additionally, a QSF can be invested (usually in a FDIC insured money market account). However, any interest income generated by the QSF (less allowable deductible expenses) is subject to income tax.

How QSF Works in Settlement Negotiations

Maximizing Settlement Benefits Through a QSF
Another of the key benefits of using a QSF is that it allows litigators to offer settlement flexibility to their clients. When utilizing a QSF, litigators empower the plaintiff with the flexibility to choose their payment options (i.e., lump sum, third-party assignment, structured settlement annuity, or any combination thereof) and payment timing.1

A QSF also allows the plaintiff to choose their financial advisor(s) and removes the limitations associated with a defense-provided annuity.

QSFs also provide similar benefits for you as the lawyer by providing you and your firm the flexibility to choose fee payment options (i.e., lump sum, third-party assignment, fee structure, or any combination thereof) and payment timing.

Common Misconceptions About QSF
Despite the many advantages of using a QSF, some common misconceptions exist about this legal arrangement. One of the most common misconceptions is that a QSF is only available in cases with multiple plaintiffs. In reality, a QSF can be beneficial, even with a single plaintiff.

Another common misconception is that a QSF is too complex and expensive to set up. While it is true that a QSF requires some upfront costs (as low as $500), these costs are typically offset by the long-term benefits that a QSF can provide. Additionally, some QSF administrators specialize in setting up and managing QSFs, which can help simplify the process for litigators. For example, online platforms like QSF360 offered by Eastern Point Trust Company are low-cost and allow you to create a QSF and receive the necessary governmental approval in as little as one business day.

Choosing the Right QSF Administrator

One of the most important decisions litigators must make when setting up a QSF is choosing the right QSF administrator. The QSF administrator is responsible for managing the funds in the QSF and ensuring that all legal and tax requirements are fulfilled. When choosing a QSF administrator, litigators should consider the administrator’s experience, whether they are licensed fiduciaries, speed of distributions, and fees.

The QSF administrator should have the necessary trust accounting systems, experience in managing QSFs, and be familiar with the legal and tax requirements governing these arrangements. Additionally, the administrator should have experience working with litigators and be able to provide references from other clients.

The QSF administrator’s licensing is also essential. Litigators should research the administrator’s status as a licensed fiduciary (preferably a Trust Company). The administrator should also be able to provide information about the FDIC insurance that applies to the account. Some platforms, such as QSF 360, provide up to $150 million in FDIC coverage; however, these amounts are expandable with the correct structure.

Administration Fees
Finally, litigators should consider the fees that the QSF administrator charges. While choosing an administrator with the experience, systems, and licenses needed to manage the QSF effectively is essential, litigators should also ensure that the fees are reasonable and transparent.


Why QSF Is the Best Option for Litigators and Settlement Funds
In conclusion, Qualified Settlement Funds (QSFs) are a powerful tool that can help litigators to maximize settlement benefits for their clients and themselves. By using a QSF, litigators can provide your clients (and your firm) with the flexibility that includes a structured, third-party assignment, or a lump-sum payment. Additionally, a QSF can help to simplify the settlement process and reduce the administrative burden on all parties involved.

Despite some common misconceptions, QSFs are not complex or expensive to set up. With the help of a qualified QSF administrator, litigators can establish and manage a QSF that meets all legal and tax requirements in as little as one business day. In summary, when choosing a QSF administrator, litigators should consider the administrator’s experience, systems, licensing, fiduciary services and fees.

If you are a litigator interested in using a QSF, do your research and speak with a qualified QSF administrator (preferably a Trust Company.) Using a QSF can help ensure your clients, and your firm, receive the flexibility to maximize settlement benefits, fee and financial planning options.

1 While QSF’s can last for years with no statutory limit, if there is no secondary or outstanding matter, such as a lien resolution, allocation processing, fee disputes, secondary litigation, or other contingency, then best practice is to have QSF funds disbursed within 12 months from receipt of the funds.
Disclosure: This paper is an overview. It is not a detailed analysis and offers no legal or tax opinion on which you should solely rely. Always seek the advice of competent legal and tax advisors to review your specific facts and circumstances before making any decisions or relying on the content herein.
About the author Glen Armand: Glen is the founder and non-executive chairman of Eastern Point Trust Company, a non-depositary trust company with clients across the globe. He has almost 50 years of financial industry experience and specializes in Qualified Settlement Funds, trusts, tax, fiduciary subjects, and the trust and financial industry. As a widely respected expert, he is a consultant, frequent presenter to industry groups, and author of numerous articles and technical papers related to Qualified Settlement Funds, trusts, tax, fiduciary subjects, and the trust industry. Mr. Armand serves on several corporate boards and the boards of not-for-profit organizations.

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