Washington Report 022004

Date Published: 
Original Author: 
Robert M. Fells
Original Publication: 
ICCFA Magazine

FTC Consumer Complaints: Low Volume, Many Funeral Rule Related

by Robert M. Fells, Esq., general counsel
The ICFA has concluded its investigation of funeral-related complaints filed by consumers with the Federal Trade Commission from January 2001 through May 2003. The FTC reportedly receives approximately 60,000 total consumer complaints annually through its e-mail and toll-free telephone system, but only a few hundred are funeral-related.
There are approximately 2.3 million deaths each year in the United States, which extrapolates into nearly the same number of funerals/burials, or over 190,000 per month. For the 29 months under review, consumers filed 549 complaints against funeral homes, cemeteries and third-party retailers, or an average of about 19 complaints per month on a national basis. Approximately 4 percent of the complaints filed either contained no information or were requests for information rather than complaints per se.
Seventy-one percent of the total, or 391 complaints, involved funeral homes, which on average generated about 13 complaints per month. Of that number, 55 percent or 216 complaints related to alleged violations of the FTC Funeral Rule. The most common rule violations alleged were a lack of written price disclosures and the imposition of casket handling fees or the refusal to provide services if the casket was not purchased from the funeral home in question.
Eleven percent of the total, or 62 complaints, involved cemeteries. Of that number, eight related to alleged violations of the Funeral Rule. On average, there were two complaints per month about cemeteries.
Another 11 percent of the total, or 58 complaints (an average of two per month), involved third-party retailers such as casket stores and monument sellers. Of that number, six complaints related to alleged violations of the Funeral Rule.
Three percent of the total, or 16 complaints (one every other month), involved combined cemetery-mortuary operations. Of that number, three complaints related to alleged violations of the Funeral Rule.
Consistent with a 1999 investigation by the U.S. General Accounting Office, the investigative arm of Congress, overall complaint levels remain low for all segments of the funeral services profession. However, the new tabulation confirms the ICFA's long-held position that consumers experience only isolated incidents of potential Funeral Rule violations by sellers such as cemeteries that are not covered under the rule.
The ICFA investigation also provides an important perspective that was absent from the recent GAO investigation, published in September 2003, which omitted any effort to review consumer complaints.
Finally, the complaint tabulation establishes that consumers will file complaints when they believe they have been treated unfairly by industry members, contrary to assertions by industry critics that "consumers don't complain." The ICFA will be forwarding its analysis to the FTC staff.

US Tax Court: Preneed Funds Not Taxable Until Contract Is Performed

Recently, the U.S. Tax Court published its decision in Perry Funeral Home Inc. v. Commissioner of Internal Revenue, T.C. Memo.2003-340. The court held, based on the facts involved, that preneed funds are not taxable as income until the contract is performed.
The IRS argued that the funds are taxable when received by the funeral home because, under a previous U.S. Supreme Court ruling, where the seller has "dominion and control" over the funds, the proceeds are taxable when received. The accrual basis funeral home recognized the preneed funds it received from purchasers only when the contracts were performed.
An important fact that influenced the Tax Court's decision involved the requirement under state law that all preneed funeral contracts are cancellable by the purchaser at any time prior to performance, and the purchaser must receive a full refund. The funeral home did not deposit the funds into a trust but placed them into investment plans instead.
The court ruled that the lack of a trust did not alter its conclusion that the purchaser, and not the seller, had "dominion and control" over the funds because it was the purchaser who ultimately determined whether the funeral home would keep the funds.
Therefore, the court rejected the IRS arguments and held that the funds received by the funeral home are taxable only when the funeral home has performed its obligations under the contract and was entitled to keep the funds.
It is important to note that Tax Court decisions apply only to the taxpayer involved and cannot be cited as precedent for other parties. In addition, the IRS may appeal this decision. Tax Court decisions are useful for highlighting the thinking of the court and for use in other cases with similar fact patterns.