IRS Issues Final Regulations for ABLE Accounts

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On October 2, 2020, the Internal Revenue Service issued final regulations for Achieving A Better Life Experience (ABLE) accounts as set forth in Section 529A of the Internal Revenue Code. The final regulations were preceded by the proposed regulations of 2015 and 2019 issued in connection with the enactment of the ABLE Act (2014) and the Tax Cuts and Jobs Act (2017), respectively. The final regulations adopt many of the provisions of the 2015 and 2019 proposed regulations as well as substantively modify them. They provide, in part, guidance with regard to the requirements that a qualified ABLE program must satisfy, including recordkeeping and reporting; the requirements to establish an ABLE account and qualify as an eligible individual; the requirements for contributions to an ABLE account; the rules regarding changes in the designated beneficiary of an ABLE account, rollovers, and program-to-program transfers; the tax consequences associated with the regulations; and the post-death treatment of the accounts and payment of Medicaid claims.  The final regulations are generally effective January 1, 2021. Some of the key provisions and modifications are as follows: Who may establish an account. The final regulations expand the categories of persons permitted to establish an ABLE account as well as their ordering. An ABLE account may be established by: <ul> <li>An eligible individual or any other person selected by the eligible individual. §1.529A-2(c)(i)(A)(B); or</li> <li>The agent of an eligible individual who is unable to establish his or her own ABLE account, under a power of attorney or, if none, by a conservator or legal guardian, spouse, parent, sibling, grandparent, or representative payee appointed by the Social Security Administration, in that order. §1.529A-2(c)(i)(C).</li> <li>A qualified ABLE program may accept a certification by an individual that he or she is authorized to establish the ABLE account and that there is no other person with higher priority to do so. §1.529A-2(c)(ii).</li> </ul> Signature authority. The final regulations provide that the designated beneficiary has signature authority over the ABLE account unless another individual, pursuant to the above-referenced ordering rule, establishes the account in which case that individual will have signature authority. §1.529A-2(c)(2)(i). The designated beneficiary may replace any person with signature authority with any other person or designate a successor. If the designated beneficiary does not designate a successor, the designation (consistent with the ordering rule) may be made by the person with signature authority over the ABLE account. §1.529A-2(c)(2)(i)(A)(B). Co-signatories and sub-accounts. The final regulations permit co-signatories, as long as each would satisfy the ordering rule if the other had refused to serve, as well as sub-accounts for different purposes and with different signatories who can authorize expenditures from the sub-account. §§1.529A-2(c)(2)(ii)(iii), 1.529A-2(c)(3)(iii). However, all sub-accounts are part of the one ABLE account for all other purposes (i.e., contribution limits, etc.) and the signatory on the ABLE account retains sole authority over the investment of the ABLE account. Disability standard. The final regulations provide that the standard of disability is applied without regard to either the individual’s age or his or her engagement in substantial gainful activity. §1.529A-2(e)(2). Disability certifications. The person establishing the ABLE account is responsible for certifying satisfaction of the standard of medical disability. The final regulations are consistent with the proposed regulations in that they provide that a person signing a disability certification is certifying that the individual has a medically determinable physical or mental impairment that results in marked and severe functional limitations that can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months or is blind and the blindness or disability occurred before the age of 26. §1.529A-2(e)(1). However, the final regulations differ in that they also provide that the standard of disability is applied without regard to either the individual’s age or his/her engagement in substantial gainful activity. §1.529A-2(e)(2). Recertification. The final regulations allow the designated beneficiary to certify under penalties of perjury his or her continuing eligibility. §1.529A-2(d)(2)(i). Additional accounts. An important modification to the proposed regulations concerns the number of ABLE accounts a designated beneficiary may have: A designated beneficiary continues to be limited to one ABLE account. §1.529A-2(a)(2)(c)(3). However, in order to avoid the possibility of a loss of benefits, if an additional ABLE account is established (for example, in another state’s program), it will be treated as an ABLE account if: <ul> <li>the additional account is established for the purpose of receiving a rollover or a program-to-program transfer; or</li> <li>all contributions to the additional account are returned to contributors in accordance with the rules for the return of excess contributions and excess aggregate contributions; or</li> <li>all amounts in the additional account are transferred into the designated beneficiary’s preexisting ABLE account with excess contributions and aggregate contributions returned to the contributors.</li> </ul> §1.529A-2(c)(3)(ii).    Taxation of contributions. With regard to contributions, the final regulations clarify that contributions to an ABLE account may include after-tax payroll deductions. §1.529A-2(g)(1). Further, the federal tax treatment of contributions to an ABLE account apply only for purposes of the application of section 529A. For example, a contribution made by an employer to the ABLE account of an employee or an employee’s family member is subject to the rules governing the federal taxation of compensation. §1.529A-3(g). Contribution limits. The final regulations state that, under the safe harbor provision (which provides that a qualified ABLE program satisfies the aggregate contribution limit requirement if it refuses to accept contributions in excess of the limit), when an account balances falls below the aggregate contribution limit, contributions can again be accepted subject to the annual and aggregate contribution limits. §1.529A-2(g)(v)(B)(3)(ii). Compensation contributions. In connection with compensation contributions, the final regulations clarify that such contributions need not come from the designated beneficiary’s earned income. §1.529A-2(g)((2)(ii). The final regulations further provide that the poverty line should be determined by using the poverty guidelines updated in the Federal Register and that the guideline used should be the one applicable to the state of the designated beneficiary’s residence. §1.529A-2(g)(2)(iii)(B). Moving funds within the account. The final regulations clarify that moving funds from an investment fund into a cash fund within the ABLE account in order to process a distribution is not the kind of change in investment direction that is statutorily limited to two times in any calendar year. Similarly, the automatic rebalancing of assets in an ABLE account to maintain an asset allocation is not an investment direction subject to the statutory limitation. §1.529A-2(l).   Directed investments by successor beneficiaries. The final regulations also provide that a successor designated beneficiary is allowed to direct the investment of contributions and earnings in an ABLE account up to two times in the calendar year in which he or she becomes the designated beneficiary of the ABLE account, even if the former designated beneficiary did so in the same calendar year. §1.529A-2(k)(3).   Housing expenses. Unlike the proposed regulations, the final regulations do not require a qualified ABLE program to identify or record whether distributions were made for housing expenses. The final regulations also do not require, for any federal income tax purpose, a qualified ABLE program to establish safeguards to distinguish between distributions used for the payment of qualified disability expenses and other distributions. Improvement in beneficiary’s condition. The final regulations modify the proposed regulations to the extent that no expense will constitute a qualified disability expense after the designated beneficiary ceases to be an individual with a disability or blind, even if his or her eligibility status is preserved through the end of the tax year. §1.529A-2(d)(3). Qualified disability expenses (QDEs). The final regulations retain the proposed regulations’ broad definition of a qualified disability expense. §1.529A-1(b)(5) and §1.529A-2(h) QDEs and taxes. The designated beneficiary is not required to report his or her qualified disability expenses to the qualified ABLE program or to the IRS when filing a tax return. §1.529A-6(a)(b). However, the designated beneficiary needs to categorize distributions from the ABLE account to determine his or her federal income tax obligations. §1.529A-3(a)(1). The final regulations clarify that the payment of administrative or investment fees charged by a qualified ABLE program is not a distribution. §1.529A-1(b)(5). Post-death payments. The final regulations provide that a qualified ABLE program may satisfy a state’s Medicaid reimbursement claim only after paying the outstanding qualified disability expenses of the deceased designated beneficiary, including funeral and burial expenses. Further, the payment of any Medicaid claim is limited to the amount of total medical assistance paid for the designated beneficiary (net of premiums paid) after the establishment of the ABLE account. §1.529A-2(o). The final regulations also clarify that the term “distribution” does not include a payment in satisfaction of a Medicaid reimbursement claim. §1.529A-1(b)(5). To read the final regulations in the Federal Register, <a href="https://www.govinfo.gov/content/pkg/FR-2020-11-19/pdf/2020-22144.pdf" target="_blank">click here</a>. For an analysis of the regulations by the National Law Review, <a href="https://www.natlawreview.com/article/final-section-529a-able-plan-regulations-are-well-intended-will-require-further" target="_blank">click here</a>.   Questions? Call us: (866) 296-5509

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On October 2, 2020, the Internal Revenue Service issued final regulations for Achieving A Better Life Experience (ABLE) accounts as set forth in Section 529A of the Internal Revenue Code. The final regulations were preceded by the proposed regulations of 2015 and 2019 issued in connection with the enactment of the ABLE Act (2014) and the Tax Cuts and Jobs Act (2017), respectively.

The final regulations adopt many of the provisions of the 2015 and 2019 proposed regulations as well as substantively modify them. They provide, in part, guidance with regard to the requirements that a qualified ABLE program must satisfy, including recordkeeping and reporting; the requirements to establish an ABLE account and qualify as an eligible individual; the requirements for contributions to an ABLE account; the rules regarding changes in the designated beneficiary of an ABLE account, rollovers, and program-to-program transfers; the tax consequences associated with the regulations; and the post-death treatment of the accounts and payment of Medicaid claims. The final regulations are generally effective January 1, 2021.

Some of the key provisions and modifications are as follows:

Who may establish an account. The final regulations expand the categories of persons permitted to establish an ABLE account as well as their ordering. An ABLE account may be established by:

An eligible individual or any other person selected by the eligible individual. §1.529A-2(c)(i)(A)(B); or
The agent of an eligible individual who is unable to establish his or her own ABLE account, under a power of attorney or, if none, by a conservator or legal guardian, spouse, parent, sibling, grandparent, or representative payee appointed by the Social Security Administration, in that order. §1.529A-2(c)(i)(C).
A qualified ABLE program may accept a certification by an individual that he or she is authorized to establish the ABLE account and that there is no other person with higher priority to do so. §1.529A-2(c)(ii).

Signature authority. The final regulations provide that the designated beneficiary has signature authority over the ABLE account unless another individual, pursuant to the above-referenced ordering rule, establishes the account in which case that individual will have signature authority. §1.529A-2(c)(2)(i). The designated beneficiary may replace any person with signature authority with any other person or designate a successor. If the designated beneficiary does not designate a successor, the designation (consistent with the ordering rule) may be made by the person with signature authority over the ABLE account. §1.529A-2(c)(2)(i)(A)(B).

Co-signatories and sub-accounts. The final regulations permit co-signatories, as long as each would satisfy the ordering rule if the other had refused to serve, as well as sub-accounts for different purposes and with different signatories who can authorize expenditures from the sub-account. §§1.529A-2(c)(2)(ii)(iii), 1.529A-2(c)(3)(iii). However, all sub-accounts are part of the one ABLE account for all other purposes (i.e., contribution limits, etc.) and the signatory on the ABLE account retains sole authority over the investment of the ABLE account.

Disability standard. The final regulations provide that the standard of disability is applied without regard to either the individual’s age or his or her engagement in substantial gainful activity. §1.529A-2(e)(2).

Disability certifications. The person establishing the ABLE account is responsible for certifying satisfaction of the standard of medical disability. The final regulations are consistent with the proposed regulations in that they provide that a person signing a disability certification is certifying that the individual has a medically determinable physical or mental impairment that results in marked and severe functional limitations that can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months or is blind and the blindness or disability occurred before the age of 26. §1.529A-2(e)(1). However, the final regulations differ in that they also provide that the standard of disability is applied without regard to either the individual’s age or his/her engagement in substantial gainful activity. §1.529A-2(e)(2).

Recertification. The final regulations allow the designated beneficiary to certify under penalties of perjury his or her continuing eligibility. §1.529A-2(d)(2)(i).

Additional accounts. An important modification to the proposed regulations concerns the number of ABLE accounts a designated beneficiary may have: A designated beneficiary continues to be limited to one ABLE account. §1.529A-2(a)(2)(c)(3). However, in order to avoid the possibility of a loss of benefits, if an additional ABLE account is established (for example, in another state’s program), it will be treated as an ABLE account if:

the additional account is established for the purpose of receiving a rollover or a program-to-program transfer; or
all contributions to the additional account are returned to contributors in accordance with the rules for the return of excess contributions and excess aggregate contributions; or
all amounts in the additional account are transferred into the designated beneficiary’s preexisting ABLE account with excess contributions and aggregate contributions returned to the contributors.

§1.529A-2(c)(3)(ii).

Taxation of contributions. With regard to contributions, the final regulations clarify that contributions to an ABLE account may include after-tax payroll deductions. §1.529A-2(g)(1). Further, the federal tax treatment of contributions to an ABLE account apply only for purposes of the application of section 529A. For example, a contribution made by an employer to the ABLE account of an employee or an employee’s family member is subject to the rules governing the federal taxation of compensation. §1.529A-3(g).

Contribution limits. The final regulations state that, under the safe harbor provision (which provides that a qualified ABLE program satisfies the aggregate contribution limit requirement if it refuses to accept contributions in excess of the limit), when an account balances falls below the aggregate contribution limit, contributions can again be accepted subject to the annual and aggregate contribution limits. §1.529A-2(g)(v)(B)(3)(ii).

Compensation contributions. In connection with compensation contributions, the final regulations clarify that such contributions need not come from the designated beneficiary’s earned income. §1.529A-2(g)((2)(ii). The final regulations further provide that the poverty line should be determined by using the poverty guidelines updated in the Federal Register and that the guideline used should be the one applicable to the state of the designated beneficiary’s residence. §1.529A-2(g)(2)(iii)(B).

Moving funds within the account. The final regulations clarify that moving funds from an investment fund into a cash fund within the ABLE account in order to process a distribution is not the kind of change in investment direction that is statutorily limited to two times in any calendar year. Similarly, the automatic rebalancing of assets in an ABLE account to maintain an asset allocation is not an investment direction subject to the statutory limitation. §1.529A-2(l).

Directed investments by successor beneficiaries. The final regulations also provide that a successor designated beneficiary is allowed to direct the investment of contributions and earnings in an ABLE account up to two times in the calendar year in which he or she becomes the designated beneficiary of the ABLE account, even if the former designated beneficiary did so in the same calendar year. §1.529A-2(k)(3).

Housing expenses. Unlike the proposed regulations, the final regulations do not require a qualified ABLE program to identify or record whether distributions were made for housing expenses. The final regulations also do not require, for any federal income tax purpose, a qualified ABLE program to establish safeguards to distinguish between distributions used for the payment of qualified disability expenses and other distributions.

Improvement in beneficiary’s condition. The final regulations modify the proposed regulations to the extent that no expense will constitute a qualified disability expense after the designated beneficiary ceases to be an individual with a disability or blind, even if his or her eligibility status is preserved through the end of the tax year. §1.529A-2(d)(3).

Qualified disability expenses (QDEs). The final regulations retain the proposed regulations’ broad definition of a qualified disability expense. §1.529A-1(b)(5) and §1.529A-2(h)

QDEs and taxes. The designated beneficiary is not required to report his or her qualified disability expenses to the qualified ABLE program or to the IRS when filing a tax return. §1.529A-6(a)(b). However, the designated beneficiary needs to categorize distributions from the ABLE account to determine his or her federal income tax obligations. §1.529A-3(a)(1). The final regulations clarify that the payment of administrative or investment fees charged by a qualified ABLE program is not a distribution. §1.529A-1(b)(5).

Post-death payments. The final regulations provide that a qualified ABLE program may satisfy a state’s Medicaid reimbursement claim only after paying the outstanding qualified disability expenses of the deceased designated beneficiary, including funeral and burial expenses. Further, the payment of any Medicaid claim is limited to the amount of total medical assistance paid for the designated beneficiary (net of premiums paid) after the establishment of the ABLE account. §1.529A-2(o). The final regulations also clarify that the term “distribution” does not include a payment in satisfaction of a Medicaid reimbursement claim. §1.529A-1(b)(5).

To read the final regulations in the Federal Register, click here.

For an analysis of the regulations by the National Law Review, click here.

On October 2, 2020, the Internal Revenue Service issued final regulations for Achieving A Better Life Experience (ABLE) accounts as set forth in Section 529A of the Internal Revenue Code. The final regulations were preceded by the proposed regulations of 2015 and 2019 issued in connection with the enactment of the ABLE Act (2014) and the Tax Cuts and Jobs Act (2017), respectively. The final regulations adopt many of the provisions of the 2015 and 2019 proposed regulations as well as substantively modify them. They provide, in part, guidance with regard to the requirements that a qualified ABLE program must satisfy, including recordkeeping and reporting; the requirements to establish an ABLE account and qualify as an eligible individual; the requirements for contributions to an ABLE account; the rules regarding changes in the designated beneficiary of an ABLE account, rollovers, and program-to-program transfers; the tax consequences associated with the regulations; and the post-death treatment of the accounts and payment of Medicaid claims.  The final regulations are generally effective January 1, 2021. Some of the key provisions and modifications are as follows: Who may establish an account. The final regulations expand the categories of persons permitted to establish an ABLE account as well as their ordering. An ABLE account may be established by: <ul> <li>An eligible individual or any other person selected by the eligible individual. §1.529A-2(c)(i)(A)(B); or</li> <li>The agent of an eligible individual who is unable to establish his or her own ABLE account, under a power of attorney or, if none, by a conservator or legal guardian, spouse, parent, sibling, grandparent, or representative payee appointed by the Social Security Administration, in that order. §1.529A-2(c)(i)(C).</li> <li>A qualified ABLE program may accept a certification by an individual that he or she is authorized to establish the ABLE account and that there is no other person with higher priority to do so. §1.529A-2(c)(ii).</li> </ul> Signature authority. The final regulations provide that the designated beneficiary has signature authority over the ABLE account unless another individual, pursuant to the above-referenced ordering rule, establishes the account in which case that individual will have signature authority. §1.529A-2(c)(2)(i). The designated beneficiary may replace any person with signature authority with any other person or designate a successor. If the designated beneficiary does not designate a successor, the designation (consistent with the ordering rule) may be made by the person with signature authority over the ABLE account. §1.529A-2(c)(2)(i)(A)(B). Co-signatories and sub-accounts. The final regulations permit co-signatories, as long as each would satisfy the ordering rule if the other had refused to serve, as well as sub-accounts for different purposes and with different signatories who can authorize expenditures from the sub-account. §§1.529A-2(c)(2)(ii)(iii), 1.529A-2(c)(3)(iii). However, all sub-accounts are part of the one ABLE account for all other purposes (i.e., contribution limits, etc.) and the signatory on the ABLE account retains sole authority over the investment of the ABLE account. Disability standard. The final regulations provide that the standard of disability is applied without regard to either the individual’s age or his or her engagement in substantial gainful activity. §1.529A-2(e)(2). Disability certifications. The person establishing the ABLE account is responsible for certifying satisfaction of the standard of medical disability. The final regulations are consistent with the proposed regulations in that they provide that a person signing a disability certification is certifying that the individual has a medically determinable physical or mental impairment that results in marked and severe functional limitations that can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months or is blind and the blindness or disability occurred before the age of 26. §1.529A-2(e)(1). However, the final regulations differ in that they also provide that the standard of disability is applied without regard to either the individual’s age or his/her engagement in substantial gainful activity. §1.529A-2(e)(2). Recertification. The final regulations allow the designated beneficiary to certify under penalties of perjury his or her continuing eligibility. §1.529A-2(d)(2)(i). Additional accounts. An important modification to the proposed regulations concerns the number of ABLE accounts a designated beneficiary may have: A designated beneficiary continues to be limited to one ABLE account. §1.529A-2(a)(2)(c)(3). However, in order to avoid the possibility of a loss of benefits, if an additional ABLE account is established (for example, in another state’s program), it will be treated as an ABLE account if: <ul> <li>the additional account is established for the purpose of receiving a rollover or a program-to-program transfer; or</li> <li>all contributions to the additional account are returned to contributors in accordance with the rules for the return of excess contributions and excess aggregate contributions; or</li> <li>all amounts in the additional account are transferred into the designated beneficiary’s preexisting ABLE account with excess contributions and aggregate contributions returned to the contributors.</li> </ul> §1.529A-2(c)(3)(ii).    Taxation of contributions. With regard to contributions, the final regulations clarify that contributions to an ABLE account may include after-tax payroll deductions. §1.529A-2(g)(1). Further, the federal tax treatment of contributions to an ABLE account apply only for purposes of the application of section 529A. For example, a contribution made by an employer to the ABLE account of an employee or an employee’s family member is subject to the rules governing the federal taxation of compensation. §1.529A-3(g). Contribution limits. The final regulations state that, under the safe harbor provision (which provides that a qualified ABLE program satisfies the aggregate contribution limit requirement if it refuses to accept contributions in excess of the limit), when an account balances falls below the aggregate contribution limit, contributions can again be accepted subject to the annual and aggregate contribution limits. §1.529A-2(g)(v)(B)(3)(ii). Compensation contributions. In connection with compensation contributions, the final regulations clarify that such contributions need not come from the designated beneficiary’s earned income. §1.529A-2(g)((2)(ii). The final regulations further provide that the poverty line should be determined by using the poverty guidelines updated in the Federal Register and that the guideline used should be the one applicable to the state of the designated beneficiary’s residence. §1.529A-2(g)(2)(iii)(B). Moving funds within the account. The final regulations clarify that moving funds from an investment fund into a cash fund within the ABLE account in order to process a distribution is not the kind of change in investment direction that is statutorily limited to two times in any calendar year. Similarly, the automatic rebalancing of assets in an ABLE account to maintain an asset allocation is not an investment direction subject to the statutory limitation. §1.529A-2(l).   Directed investments by successor beneficiaries. The final regulations also provide that a successor designated beneficiary is allowed to direct the investment of contributions and earnings in an ABLE account up to two times in the calendar year in which he or she becomes the designated beneficiary of the ABLE account, even if the former designated beneficiary did so in the same calendar year. §1.529A-2(k)(3).   Housing expenses. Unlike the proposed regulations, the final regulations do not require a qualified ABLE program to identify or record whether distributions were made for housing expenses. The final regulations also do not require, for any federal income tax purpose, a qualified ABLE program to establish safeguards to distinguish between distributions used for the payment of qualified disability expenses and other distributions. Improvement in beneficiary’s condition. The final regulations modify the proposed regulations to the extent that no expense will constitute a qualified disability expense after the designated beneficiary ceases to be an individual with a disability or blind, even if his or her eligibility status is preserved through the end of the tax year. §1.529A-2(d)(3). Qualified disability expenses (QDEs). The final regulations retain the proposed regulations’ broad definition of a qualified disability expense. §1.529A-1(b)(5) and §1.529A-2(h) QDEs and taxes. The designated beneficiary is not required to report his or her qualified disability expenses to the qualified ABLE program or to the IRS when filing a tax return. §1.529A-6(a)(b). However, the designated beneficiary needs to categorize distributions from the ABLE account to determine his or her federal income tax obligations. §1.529A-3(a)(1). The final regulations clarify that the payment of administrative or investment fees charged by a qualified ABLE program is not a distribution. §1.529A-1(b)(5). Post-death payments. The final regulations provide that a qualified ABLE program may satisfy a state’s Medicaid reimbursement claim only after paying the outstanding qualified disability expenses of the deceased designated beneficiary, including funeral and burial expenses. Further, the payment of any Medicaid claim is limited to the amount of total medical assistance paid for the designated beneficiary (net of premiums paid) after the establishment of the ABLE account. §1.529A-2(o). The final regulations also clarify that the term “distribution” does not include a payment in satisfaction of a Medicaid reimbursement claim. §1.529A-1(b)(5). To read the final regulations in the Federal Register, <a href="https://www.govinfo.gov/content/pkg/FR-2020-11-19/pdf/2020-22144.pdf" target="_blank">click here</a>. For an analysis of the regulations by the National Law Review, <a href="https://www.natlawreview.com/article/final-section-529a-able-plan-regulations-are-well-intended-will-require-further" target="_blank">click here</a>.

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3. not to use the Website or the Web Page for any illegal purposes;

4. not to interfere with the Website, the Company's other subscribers and their web pages on the Website, and any other services the Company may provide, directly or indirectly, to the public or its subscribers; and

5. to keep the Information current and updated on at least a monthly basis during the term of this Agreement, and to correct any errors and omissions therein within twenty-four (24) hours of becoming aware or being notified of them.

Terms and Conditions

In addition to any other rights and remedies at law or in equity, the Company reserves the right to terminate this Agreement and remove the Web Page without prior notice (a) if payment of the Listing Fee is Past Due; (b) if the Firm breaches any term or condition of this Agreement, provided, the Company shall use commercially reasonable efforts to notify the Firm of such removal and termination and in the case of a breach under clause (b), the Firm shall have fifteen (15) days from the date of such notice to cure the breach; and (c) if the Company determines based on feedback from consumers that the Firm or any of its listed attorneys does not meet the standard of practice desired of subscribers of the Website. "Past Due" means the annual Listing Fee (paid once a year or in 12 equal installments, once a month) is not received by the Company on or before the 30th day from which the payment is due. If a breach is cured to the satisfaction of the Company, in its sole discretion, the Company shall re list the Web Page and restore any suspended service in accordance with the terms of this Agreement. In case of a permanent removal of the Web Page and cancellation of this Agreement, the Company shall reimburse the Firm for any Listing Fees theretofore paid for the remainder of the current Term on a prorated basis. Other than as stated in the immediately preceding sentence, the Company does not give any refunds.

Provision of Services

The Company intends, but does not guarantee, that the Web Page will be operational 24 hours per day, 7 days per week, 365 days per year. The Website and Web Page may not be hosted on the Company's own servers, and the Company depends on a hosting service provider to keep the Website and Web Page operational. Notwithstanding anything to the contrary in this Agreement, the Company's obligation to keep the Website and Web Page operational is subject to the delivery and limited by the scope of hosting services provided to the Company by its hosting service. Interruptions in service demonstrably due to a failure of the Company's or its hosting service provider's web servers ("Interruptions") that last twenty-four (24) continuous hours or less will not be compensated. Interruptions that last more than twenty-four (24) continuous hours will result in an extension of the Term of this Agreement equal to the duration of the Interruption (the "Extension of Service") not to exceed 30 (thirty) days. AN EXTENSION OF SERVICE IS THE FIRM'S SOLE REMEDY FOR AN INTERRUPTION IN SERVICE, AT LAW AND IN EQUITY.

User Information

Any and all information provided by or collected from visitors of the Website and the Web Page (the "User Information") shall be owned solely by the Company, except that the User Information which is part of the text of an e-mail communication initiated on the Website or the Web Page, shall be treated as confidential and as protected by the attorney-client privilege between the user who initiated the e-mail and the Firm or attorney to whom it is addressed (the "Confidential Information"). User Information that would otherwise be deemed to be Confidential Information shall not qualify as Confidential Information if it is also provided to or collected by the Company in a manner other than as indicated above. The Company will neither collect, track nor store Confidential Information.

No Warranties

THE COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND AS TO ANY ASPECT OF THE WEBSITE, THE WEB PAGE, THE INFORMATION THEREIN AND ANY SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE COMPANY DOES NOT WARRANT THAT THE WEBSITE AND THE WEB PAGE WILL BE ONLINE UNINTERRUPTED, ERROR FREE OR COMPLETELY SECURE, AND WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS, ERRORS OR BREACHES IN SECURITY. IN ADDITION, THE COMPANY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS AND WARRANTIES WITH RESPECT TO ANY SERVICES OR PRODUCTS OFFERED OR SOLD THROUGH THE WEBSITE.

Limitation Of Liability

IN NO EVENT WILL THE COMPANY BE LIABLE TO THE FIRM FOR LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF USE, LOSS OR CORRUPTION OF CONTENT, DATA OR INFORMATION OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER UNDER TORT, CONTRACT OR OTHER THEORIES OF RECOVERY. IN NO EVENT WILL THE COMPANY'S TOTAL LIABILITY ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THIS AGREEMENT EXCEED THE AMOUNT PAID BY THE FIRM TO THE COMPANY UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OF LIABILITY.

Indemnification

Each party will indemnify, defend and hold the other party harmless from and against any and all costs, liabilities, losses, damages and expenses, including reasonable attorney's fees, and amounts paid in settlement, resulting from or arising out of any claim, suit, action or proceeding brought against the other party as a consequence of the indemnifying party's infringement of any intellectual property right of a third party, including without limitation, any third party patent, copyright, trademark or trade secret. This indemnification is subject to the parties' limitation of liability under this Agreement.

Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey and shall be deemed to have been executed in Jersey City, New Jersey. Any legal action arising from or related to this Agreement shall be brought in any state or federal court located in the State of New Jersey, County of Hudson, and the parties hereby consent to the jurisdiction of such courts.

Entire Agreement

This Agreement is the entire Agreement between the parties with respect to the subject matter hereof.

Arbitration

Any disputes that arise between the parties with respect to the performance of this Agreement shall be submitted to binding arbitration in the State of New Jersey, County of Hudson by the American Arbitration Association, to be determined and resolved by said Association under its rules and procedures in effect at the time of submission and the judgment upon the award be entered in any court having jurisdiction thereof. The parties hereby agree to share equally in the costs of said arbitration except that in the discretion of the arbitrator, any award may include the cost of the party's counsel if the arbitrator expressly determines that the party against whom the award is entered has caused the dispute, controversy or claim to be submitted to arbitration as a frivolous or dilatory action.

Severability

Should any term, warrant, covenant, condition, or provision of this Agreement be held to be invalid or unenforceable, the balance of this Agreement shall remain in full force and shall stand as if the unenforceable part did not exist.

Validity

This Agreement is valid and enforceable against the Firm. Payment by the Firm to the Company, by check or electronic transaction, constitutes the Firm's execution and delivery of this Agreement.

I have read and agree with the terms of the End User License Agreement (EULA).

IRS Issues Final Regulations for ABLE Accounts

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