EFTA02599880

From: jeffrey E. <[email protected]> Sent: Monday, July 9, 2018 10:33 PM To: Noam Chomsky Subject: Re: Marital Trusts - ok On Mon, Jul 9, 2018 at 6:25 PM, Noam Chomsky =1 <mailto: wrote: =div class="gmail_quote"> =div class="gmail_quote"> T=anks for the comments. A few more of my own, for clarification:O=A° In red. =div> I should add that Harry's recent b=havior, including this utterly outrageous document, might make it necessar= to go to litigation. The last thing I want, but he may force me to =t. If necessary, I may have to make public the way the Trustees have=handled the Trust since 2009, when I appointed Harry as trustee to replace=me. Many serious questions. It is the last thing l=want to be driven to, but there are some very ugly things in this proposal= not least the very clear implication that Valeria somehow wanted to marry=an older man for the money and that she caused the increase of expenses --=easily refuted, it's easily documented that the cause was diversion of=IRA funds for the benefit of the children and the exorbitant tax bills res=lting. All so disgraceful I'm not going to let it st=nd. <=iv class="gmail_quote"> Forwarded messa e From: Max Kohlenberg < <mailto Date: Sun, Jul 8, 201= at 5:02 AM Noam —au> I'm not sure if y=u wanted further comments from me before responding to my message in great=r detail, but I have added a couple of comments below in black text, where it seem=d that a reply to your comments was appropriate. <=div> I will look forward to yo=r fuller response in due course, if you are so inclined, but again noting =hat while providing me with the financial information that I've asked for would be helpful, you may instead want to focus on EFTA_R1_01786633 EFTA02599880 =he subject of selecting my successor, and then to establishing with him or=her a better understanding about distributions from the trusts.<=u> <=div> A. Max Kohlenberg<=> Howland Evangelista Kohle=berg Burnett, LLP One Financial Plaza 4>=80, Suite 1600 Providence, Rhode Island =2903 Direct: Mai Fax: www.hekblaw.com chttp://www.hek=law.com/> This email and any attachrents thereto are intended only for use by the addressee(s) named herein an= may contain legally privileged and/or confidential information. If you are not the intended recipient of this email, you are hereby notifi=d that any dissemination, distribution or copying of this email, and any a=tachments thereto, is strictly prohibited. If you have received this=email in error, please immediately notify me by return email and permanently delete the original and any copy of thi= message or attachment. Thank you. From: Noam Chomsky [maiIto =/div> Before responding to your letter in full, I would li=e to clarify a few matters. Interspersed below. 2 EFTA_R1_01786634 EFTA02599881 Noam Forwarded =essage From: Max Kohlenberg anailto Date: Sat, Jul 7, 2018 at 4:43 AM Subject: Marital Trusts To: Noam Chomsk mailto Cc: Richard Kahn mailt </=iv> Noam —<=u> <1=> > > Thank you for your reply.=C2* As you indicate that you are not being represented by counsel I will=reply directly to you, with a copy to Rich (as you suggest). Please consid=r: <1=> 1. As a starting point, let me note that I t=ink you and Rich may have misunderstood (at least initially) the terms of =he settlement that Harry proposed through his attorney. Rich and I discussed this in a call about 10 days ago and I'm hopi=g that misunderstanding has been cleared up, but as I'm not a part= to your exchanges (and Rich's exchanges) with Harry's att=rney I can't be sure. I'm also not certain whether t=e terms of the proposed settlement have changed. All I can say for sure is that=characterizing the offer as one in which distributions to you cannot excee= $100K per year is not consistent with my understanding of what has been o=fered. The reason why the proposal is too outrageous=to discuss has nothing to do with the technicalities of the handout that H=rry is graciously offering. I'll review the background, once again. </=iv> As I've discussed before, the Marital Tru=t was established in Carol's name for tax purposes. The obvious =ntention, clearly understood by Carol and me, and of course Eric Menouya, was that it would be available to the survivor -- Carol we assumed -- and =hen what remains would go to the beneficiaries. The idea that we int=nded that Carol would control "her" funds and I would control &q=ot;mine" is too ludicrous to discuss, though I understand the legalistic conjuring that can be adduced to reach this conclusion.40=A0 As you note, I was not working with you at the time=you and Carol drew up your wills and trusts, but what you describe is not =onsistent with Eric's notes (which I have), nor with the facts as I understand them. You are right that tax savings were = major driver to the planning (and the plan did in fact result in substantial savings of both estate and income =axes) but it was not drafted with the expectation that Carol would survive=you. 3 EFTA_R1_01786635 EFTA02599882 The question of who would be the s=rvivor is irrelevant. Carol and I assumed that she would be the surv=vor, but there was no reason to tell anyone, and it has no bearing at all =n the fact that our intention was that the principal would be available to=the survivor, then going to the children =as made when you. =div> The decision to fund Carol4o=804$ trust with both financial assets and your Cape and Lexington homes tas already ill and (as far as the notes indicate) with th= expectation that she would predecease =/div> =div> This is quite surprising, and I would like some clarification.=C240 Most important, I don't see how any significant decisions could =ave been made during those years, who could have made them, or why it was =one. Obviously ould not have done so. She had to underg= massive brain radiation as soon as the biopsy was taken, and serious cogn=tive and physical decline was immediate. Nor could I have been invoked. I very much wanted to keep her at home, rather than the only alt=rnative -- a nursing home. I managed to do so for two years, until t=e end, but it required 24-hour care, and I was in no position to think abo=t such matters. If I had been informed -- I don't recall anythin= of the sort -- I couldn't have paid any attention or granted truly in=ormed consent. So I would like to learn more about these decisions.<=b> Secondly, I don't understand them. How could the Cape and=Lexington homes fund the Trust? Did the funds from selling the Lexin=ton house go to the Trust? How was it funded before. Would app=eciate clarification on this. Of course we knew by then that she =ould predecease me. It was a medical miracle that she was able to su=vive that long, on experimental drugs, as a last resort. =/div> The records =hat I have seen do not indicate what =our expectations (or Carol's) were as to how the Marital Trusts we=e to be made available to you after Carol was gone — for that the =ndependent trustee of the trusts (whether me or my successor) has to rely =n the terms of the trusts themselves, the information that's given by the trust beneficiarie=, and the law surrounding such trusts. <=iv> I'd be =nterested, of course, in knowing about the records you have seen, but it w=uld hardly be surprising if there is no explicit record of what is obvious=simply to common sense. We were a married couple who cared for each =ther and for our children, putting a Trust in Carol's name for tax pur=oses. What sort of lunacy would it to set up a Trust for one of us t= have access to but not the other? So of course you are unlikely to =ind notes about it. If Harry forces this to litigation, all of this =ill have to come up, either in court or in public in some other manner. =/div> When I appointed Harry to replace me as trust=e, I took for granted that he would handle the trust as I had. His b=havior since, and this latest proposal, make it very clear how wrong that assumption was. This proposal calls for him to be in =omplete charge, which means, as he has shown, that I can only plead for so=e funds by accepting conditions that he knows I will not accept. You=recall, I presume, that this was true even when I faced an enormous tax bill because my IRA was being depleted for th= benefit of the family. 4 EFTA_R1_01786636 EFTA02599883 To refresh your memory, let me repeat again w=at was happening with my IRA until I learned about it. There is a ma=datory withdrawal. Half was being distributed to family. The other half was being used for taxes and management fees for the entire=estate. In order to pay medical expenses, and to pay $50,=00 a year for rent and upkeep on the house in Wellfleet that we had given =o the children and that I was barely using, I had to withdraw extra funds from the IRA, with the onerous tax burden.=C2* The same when I withdrew something to live on. Under these cir=umstances, Harry refused to release funds from the Trust for tax relief wi=hout onerous and humiliating conditions that he knew I would not accept. Easy to predict what might happen under =ess extreme conditions. It was not until 2017 that I was able to ove=come the accumulated burden of these actions. =/div> <=iv dir="ltr"> In the previous paragraph you offer to "refresh my mem=ry" and in the prior paragraph you say "You recall, I pres=me ". Without going into detail, I have to note th=t my recollection of the events you describe is not consistent with yours (though it may not be ent=rely consistent with Harry's either — I am not sure).4>=A0 In my case it is not recollections. When I bega= to understand what was happening, I looked into the matter, and have the =ocuments at hand, including the mail interchanges about Harry's refusa=. The rest is straightforward and unambiguous documents.<=span> Since my own recollections m=y be the subject of testimony in the legal proceeding that Harry has initi=ted, or in one that you may commence, I think it better that I not recite my own recollections her=. Note that Harry's exhibit B, beginning wi=h section 9, is utterly false, and consciously so. All of the above has be=n explained to him over and over. It is not only consciously false, but is framed as a vicious and ugly attack on Valeria, implicitly a=cusing her of responsibility for the escalation of expenses which, as Harr= knows, was caused by the actions just described once again.=span style="font-size:11.0ptfont-family:"Calibri","sans-=erif";color:#1f497d"> =/div> For such reasons, Harry's proposal is, as=I said, too outrageous to discuss. 2. As you know, Harry's attorney has=commenced a legal action that is intended to facilitate my resignation and=the appointment of a successor trustee to take my place. Since you've wanted me removed for some time and since I've said=(from the first time you and I met) that I only wanted to serve as trustee=if all the family members wanted me to serve, I'm looking forward =o resigning as soon as the court determines how I am to do so and how my successor is to be selected. =/u> 3. Given that my replacement is impending, i= might be worth waiting until my successor is in place before responding t= my requests for financial disclosure, as it's possible that my successor won't share my views as to what the trustee of t=e trusts needs to know before making decisions about distributions. =ikewise, if my successor will be identified soon it might make sense for m= to hold off on any distributions and leave it to the new trustee to work with you on figuring all of this out. =n this regard I'm kind of a "lame duck" trustee, w=uldn't you say? 4. To the extent that you want to push forwa=d while I remain the trustee, let me again state the basis for financial d=sclosure by you. It is that, as trustee, I owe a duty to you and I owe a duty to your children (as the remainder beneficiaries o= the trusts). For the present my primary duty is to you and it is to=distribute to you all income earned by the trusts, net of expenses,=u> Until=l asked about the matter recently, I am aware of no income distributed to me earned from the trusts. I cannot be sure, because I have no re=ord of having received any accounting of what is happening to the trusts, 5 EFTA_R1_01786637 EFTA02599884 =ncluding distributions to others (or as required, to me►. Could you =hen please send me the records on these matters since 2009, when I appointed Harry to replace me as trustee.=span style="font-size:11.0pt;font-family:"Calibri","sans- =erif";background:white"> =/cliv> <=iv dir="ltr> I provided reports on income, expenses an= distributions to Deborah Pechet Quinan last October and I copied those reports to Richard (and updated them) in the last 60 days. I think i= might be easiest if Richard forwarded those reports to you, but if he can=E2.4ot for some reason then I will do so when I am back in my office. <=span> So could you send them to both of us, along with document=tion about any distributions that were made. In particular, I would =ike to know the reason why there is virtually no income from the trust -- =hether it was paid to me from 2009 or not. And about the instruction= for any distributions that may have been made from the Trust. and to distribute to you =or pay on your behalf) additional monies as reasonably needed to the extent that your income from other sources is not sufficient to s=pport your reasonable expenses. Notwithstanding your stat=ment that "As for the claim about concern for my later years, that has been thoroughly r=futed" it has not been refuted in th= context of my trusteeship and it remains my duty to consider distribution= in light of the possibility that you will have a reasonable need for distributions from the trust for many more year=, and perhaps in increasing amounts, depending on your circumstances in th= future. <=div> =div class="gmail_quote"> =div> I didn't resp=nd before but perhaps I should have. I will be 90 years old in a few=months. I'm not going to live forever. You know how much i= in the Trust. You also know my spending habits. Harry would =ot have millions of dollars if I hadn't been working all my life and s=ving money for him and his sisters. Despite the ugly implications ab=ut Valeria in Harry's letter, nothing material changed after our marri=ge beyond what I described and can readily document, with one exception.=C240 In Lexington, I was living rent-free, the mortgage having been paid =ears earlier. Valeria and I decided that taking care of a big house with s=eps everywhere and everything else that owning a house in Lexington entail= -- snow removal, etc., and a difficult drive to work through New England =inter weather -- made no sense at my age, and that we should move to=an apartment close to work with no steps or other problems. 6 EFTA_R1_01786638 EFTA02599885 <=div> =div> Not your business, but one =hing that shocked me about Harry's letter was his complaint that I mov=d from a house to a "new home" -- insinuation obvious -- in fact=an apartment with no winter driving to my office and convenient for someon= my age. aiv class="gmail_quote"> 5. As for the specifics of disclosure, what = need to consider is (a) what your income was in 2017, since that was the =asis for the tax payments you seek to have reimbursed, (b) what your income is likely to be this year and going forward, (c) what=your expenses were in 2017 and are likely to be in 2018, and (d) whether a=y of your income (or other resources) are being used for purposes that the=trust cannot support (such as gifts to third parties). So far, Rich has provided me with some roughrinformation about your 2017 expenses. There are some gaps in that in=ormation, but nothing that can't be cleared up pretty easily (I th=nk). Rich has also assured me that you have not made any gifts that have diminished your resources and I assume you would confi=m that to me. What I don't have at this point is enough information about your in=ome, so that I can consider what the gap is between your expenses and your=income, which is the gap the trusts might help to close up. With res=ect to your income in 2017, all I can see is that your income tax obligations seem to be much higher than they were pre=iously. I'm assuming that reflects a jump in income from (i)=the profit made on the sale of the condominium, and (ii) large withdrawals=from your IRA. If you want to provide me with more information (bearing in mind what I noted in item 83, above) then inf=rmation about your 2017 income and what your income is likely to be this y=ar is what I most need. There is a very simple reason for the income =ax obligations. The depletion of the IRA that I reviewed again above=imposed a huge tax burden, which we were still attempting to deal with in 2017. After Harry's refusal to release some fund= from the trust to pay the exorbitant taxes resulting from what was happen=ng, I of course had to withdraw funds from the IRA to pay taxes on the who=e estate, incurring a new exorbitant tax burden. Despite some small relief later from the trust after I had r=peatedly pointed this out, it carried over through the 2017 tax bill.Q=A0 So for that reason, taxes were extremely high. That curious episo=e is at last finally over, leaving many questions unresolved about what was happening while I was paying little attention, r=lying on advisers to ensure that matters were proceeding appropriately I hope this is helpful an= will wait to hear more from you and/or Rich. adiv> </=> Max<=p> </=> </=> A. Max Kohlenberg<=> Howland Evangelista Kohle=berg Burnett, LLP One Financial Plaza Q=804> Suite 1600 Providence, Rhode Island =2903 7 EFTA_R1_01786639 EFTA02599886 Direct: Main pan> Fax pan> mailt </=> www.hekblaw.com <http://www.hek=law.com/> </=> </=> This email and any attachrents thereto are intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. =f you are not the intended recipient of this email, you are hereby notifie= that any dissemination, distribution or copying of this email, and any at=achments thereto, is strictly prohibited. If you have received this email in error, please immediately notify me by =eturn email and permanently delete the original and any copy of this messa=e or attachment. Thank you. </=> <1=> </=> Ric=ard Kahn. From: Noam Cho=sky (mailto Sent: Friday, July 06, 2018 8:53 PM To: Max Kohlenberg Subject: Re: Marital Trust I am not represented=on this issue, so you can send the information to me directly, copying Noam On Fri, Jul 6, 2018 at 4:24 AM, Max Kohlenberg «= href="mailto target="_blank > wrote: Noam —<=u> 8 EFTA_R1_01786640 EFTA02599887 Thanks for your message a=d your inquiry. I would like to reply in some detail, but before I d= so please tell me whether you are now represented by legal counsel. =f you are then I believe I'm obliged to copy your counsel on our e=changes. I would also plan on copying Rich Kahn, since my last commu=ications about distributions to you from the trusts have been with him. </=> Please also bear in mind =hat since (according to Rich) you are preparing to bring a legal action against me, I have been in contact with my firm's malpractice insu=ance carrier. As my exchanges with you may also need to be reviewed =ith our carrier that may delay (and/or limit) my responses.<=> </=> Maxap> </=> </=> A. Max Kohlenberga> Howland Evangelista Kohle=berg Burnett, LLP One Financial Plaza Q=80Q Suite 1600 Providence, Rhode Island =2903 Direct Main: =span> Fax: '=pan> <mailto </=> www.hekblaw.com <http://www.hek=law.com/> </a <la This email and any attach=ents thereto are intended only for use by the addressee(s) named herein and may contain legally privileged and/or confidential information. =f you are not the intended recipient of this email, you are hereby notifie= that any dissemination, distribution or copying of this email, and any at=achments thereto, is strictly prohibited. If you have received this email in error, please immediately notify me by =eturn email and permanently delete the original and any copy of this messa=e or attachment. Thank you. </=> 9 EFTA_R1_01786641 EFTA02599888 <1=> From: Noam Cho=sky (mailto - Sent: Thursday, July 05, 2018 7:53 PM To: Max Kohlenberg Subject: Marital Trust Max,=u> mailto: I presume it is clear that the rec=nt proposal transmitted by Harry's lawyer that I should be satisfi=d with a handout of 100k a year from the Marital Trust is too disgraceful for comment. I would like to know what further info=mation you require for reimbursement for tax payment. We have previously t=ansmitted a great deal of financial information in order for you to reimbu=se our taxes, including proof of payment and more. Exactly what more do you require, and with what justi=ication? We see little reason that you cannot act on the information=already provided. As for the claim about concern for my later =ears, that has been thoroughly refuted. Noam please note The=information contained in this communication is confidential, may be att=rney-client privileged, may constitute inside information, and is inten=ed only for the use of the addressee. It is the property of JEE U=authorized use, disclosure or copying of this communication or any part=thereof is strictly prohibited and may be unlawful. If you have receive= this communication in error, please notify us immediately by return=e-mail or by e-mail to [email protected] <mailto:[email protected]> , and destroy this communication and al= copies thereof, including all attachments. copyright -all rights reser=ed 4,>=A0 please note 10 EFTA_R1_01786642 EFTA02599889 The information contained i= this communication is confidential, may be attorney-client privileged,=may constitute inside information, and is intended only for the use =f the addressee. It is the property of JEE Unauthorized use, disclos=re or copying of this communication or any part thereof is strictly pro=ibited and may be unlawful. If you have received this communication =n error, please notify us immediately by return e-mail or by e-mail to =a href="mailto:[email protected]" target="_blank">jeevacation@gmai=.com, and destroy this communication and all copies thereof, inc=uding all attachments. copyright -all rights reserved 11 EFTA_R1_01786643 EFTA02599890