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Already Burned, Madoff Victims Now Face "Clawbacks"

Posted Jul 10, 2009 11:01am EDT by Peter Gorenstein in Investing, Recession

Last week U.S. District Judge Denny Chin guaranteed scammer Bernard Madoff would spend the rest of his life in prison – sentencing him to 150 years behind bars.  But as Tech Ticker learned first hand at last week's sentencing hearing, the financial woes are just beginning for many of his victims'.

Court-appointed trustee Irving Picard has recovered about $1.2 billion of $13.2 billion in estimated net losses so far, The Wall Street Journal reports. He is now looking to victims who pulled out their money in previous years for the rest.  To this end, he has filed so-called "clawback" suits.

Picard wants "to get all of these assets back so he can now give them to all of Madoff victims rather than have them only benefit a few," says Ken Rubinstein,  senior partner at Rubinstein & Rubinstein, and a specialist in areas of estate and tax planning.

What's a victim in this situation to do?  Rubinstein, who represents a number of Madoff clients, is telling them to engage in pre-bankruptcy planning.  "You're allowed under the law to convert non-exempt assets… into exempt assets."  In plain English, that means put your money where the government (or Irving Picard) can't touch it.  Such exempt assets include life insurance policies, retirement accounts and annuities.

On the bright side, there is a chance some of these same victims can get back money from the IRS.  In what may be a rare moment of positive PR for the tax authority, they are allowing victims to get refunds on phantom profits by filing an amended return.  Rubinstein says, "The IRS is cooperating and helpful in this regard."  A phrase not often uttered in America.

161 Comments

- Friday July 10, 2009 11:14AM EDT

The author should learn how to spell..."your" should be "you're". I hope he is less careless with his facts...

- Friday July 10, 2009 11:15AM EDT

Well... even with the 'have's' there are those who will steal. Pity...

- Friday July 10, 2009 11:28AM EDT

Hey Dick, Did the Bank pay taxes on that fraudualant check? I think not. The Madoff victims paid taxes on the fraudualant gains. The IRS is helping the victims get there own money back. Not 1 penny of goverment aid. SIPC funds are insurance monies. Again not 1 penny of goverment aid. My guess is your bank received plenty of goverment aid. Why should I pay for that??

- Friday July 10, 2009 11:35AM EDT

Sounds complicated..."exempt and non-exempt assets"

Yahoo! Finance User
Yahoo! Finance User - Friday July 10, 2009 11:35AM EDT

All Madoffs clients were greedy like him. It was stupid of them to invest all their money with one man who was getting unbelievable returns.

- Friday July 10, 2009 11:36AM EDT

Its weird I never saw a Bernie Madoff commercial. So how did the victims get involved with Madoff? Did they see the unrealistic returns and want in due to greed? Did they not understand that they made investments in the stock market? Did they not understand that the stock market does not only go up? Madoff committed a crime and was duly punished but there are many people that are victims of fraud from other scammers and never get any money back.

- Friday July 10, 2009 11:37AM EDT

Sounds complicated..."exempt and non-exempt assets"

- Friday July 10, 2009 11:38AM EDT

Dick - the IRS is not changing the law. The provision for amending back tax returns to adjust for phantom profits has been in existence for at least 10 years. This has nothing to do with favoring one religious group or ethnic group over another. It is the one silver lining that any net gainer from a Ponzi scheme facing a clawback can count on, regardless of their race, sex, creed or national origin.

- Friday July 10, 2009 11:38AM EDT

I don't understand. If these people thought it was a scam but could not get the SEC to investigate, what were they supposed to do? This really seems like the people who were smart and figured out the scam are being punished for doing their due diligence.

- Friday July 10, 2009 11:38AM EDT

As I understand, you have always been able to report fraudulent losses on your tax returns and get a deduction so there is no change in IRS policy. The IRS is allowing the return of taxes paid on ficticious gains. They are not fully reiimbursing the victims, they're just returning the taxes since clearly the income previously reported was false.

- Friday July 10, 2009 11:38AM EDT

these investors felt so privileged to be part of the exclusive hedge fund club while the little investors were left out. Greedy SOBS

Yahoo! Finance User
Yahoo! Finance User - Friday July 10, 2009 11:39AM EDT

Johhny Ike, it doesn't look like things are turning around...DOW @ 10,000 by October?

Yahoo! Finance User
Yahoo! Finance User - Friday July 10, 2009 11:41AM EDT

Thanks to everyone who put money into the stock market since March and allowed me to sell high. Now that you are getting scared again, I'll be able to buy low soon. See ya at the bottom.

Yahoo! Finance User
Yahoo! Finance User - Friday July 10, 2009 11:42AM EDT

I would like to be in charge of selling life insurance and annuities to all of these "victims" who will be "bankruptcy planning.

Yahoo! Finance User
Yahoo! Finance User - Friday July 10, 2009 11:43AM EDT

We should all know that thew biggest Ponzi scheme is still out there running. This one will dwarf the Madoff scam. It is running out of new investors and time. You guessed it, Social Security. There is no cash and no trades are being made. Worst of all we continue to vote in the con artists who were there when the SS trust was disolved.

Yahoo! Finance User
Yahoo! Finance User - Friday July 10, 2009 11:44AM EDT

Gee Johnny Ike, learn how to construct a proper sentence. You look like the fool you are.

- Friday July 10, 2009 11:45AM EDT

We are a country of Laws and precedents, now let's back the concept, or system into the Stock Market, want examples? If an Investor loses money on "False Fundamentals" provided to the S&P500, and our advisor says Buy, can we re-coup the loses?

Yahoo! Finance User
Yahoo! Finance User - Friday July 10, 2009 11:46AM EDT

dick b should take the time to Google the WSJ list of Madoff victims. He would find hundreds (if not thousands) of names in the 162 page list which are clearly Christian (non-Jewish). The anti-discriminatory SEC screwed people of ALL persuasions. I wish they were as transparent as you are. The IRS is facilitating their recovery of taxes they paid on non existing profits. In other words letting them get their money back.

- Friday July 10, 2009 11:46AM EDT

I wish the Modern Pop Culture would respect people with assets and not people with a debit credit lines! Something for nothing; always will have a price to pay, in the future! Jazz over Rock'n'Roll; life sucks because there is no jazz on commerical radio! It is a pot head cult that loves rock music! It is a mature & sober adult that loves jazz! Ask why has society gotten so screwed up, that is the answer!

- Friday July 10, 2009 11:48AM EDT

I know the outcome. The lawyers will get a large amount of that claw back money and maybe the "victims" will see less the 5%. I lost a large amount of my savings do to the greed on Wall Street, but nothing compares to a loss of a job. People are suffering as Wall Street dictates to the corporations to become lean and mean. Unemployment is at an all time high and Wall Street executives are talking about bonuses. Greenspan went from a hero to a goat as to Caesar. Wall Street should be helping in the creation of jobs instead of lining their pockets with more money. My daughter’s school is losing their assist principle do to budget cuts. Hospitals are losing staff members. Do I have to say anymore? What do they pray for when they are speaking to God? Do they not believe that someday they too will die?

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