Tax_Counsel

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Tax_Counsel last won the day on March 12

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  1. As to the first question, he is mistaken in his belief that he must be present for all discussions in his case. Nor does he have a right to be present at all such discussions. There are a number of things that the prosecutor and defense attorney, with or without the judge, might discuss about the case that do not require that the defendant also be present. Indeed, that is part of the value of having an attorney represent him in such matters: the attorney can deal with a number of things for him without him having to be there. His attorney represents him and defends his interests, and since both the prosecutor and defense attorney were present when the judge discussed the matter the judge committed no error. Moreover, the judge is correct that the fact that a wife of a juror now wants to attend jury duty when initially she tried to get excused has no impact on his case. She isn't going to be deciding his case, and there is nothing to suggest that the juror in his case (the husband) had any improper discussions of the case with her. She may simply have heard from her husband that he found jury duty interesting and wanted to experience it, too. Nothing wrong with that and in any event it doesn't impact his case at all. Bottom line is that I see no good appeal out of this. For the second issue, again the defendant has no right to be present at all these conferences and nothing requires his attendance at the conferences that took place out of open court. So he won't have a good appeal out of the denial of his request to attend those conferences. His lawyer does have a duty to keep him informed of anything significant that occurs in the case, especially those things that would impact his ability to effectively participate in his defense. Without knowing what was discussed at the conferences and what impact it might have on his ability to participate in his defense it is not possible to say if the lawyer’s failure to disclose what was discussed would amount to ineffective representation. It’s not likely, but I cannot say for sure that it would not be an issue. But ineffective assistance of counsel claims involve a different process than simply appealing the conviction. There is no appeal issue in how the seating was arranged at the defense table. There is really nothing that the jury could be lead to assume regarding the defendant’s guilt from that even if the jury members noticed it.
  2. Let's clarify one thing here, because it is important. Put aside the fact that the creditor sends just one bill. That doesn’t matter here. If you had eight accounts with the same creditor then the creditor could send you eight separate bills to collect those accounts or the creditor could send you one bill each month to combine the payments for all the accounts together. Either way, it would not change the fact that you have eight separate accounts with the creditor and that the failure to pay the bill, whether it be failure to pay the eight separate bills or the one combined bill is still the failure to pay eight accounts (loans) and each may be reported separately. The flip side of that is that if you have just one account with the creditor, then if it sends you eight bills during the month to collect that one account and you fail to pay any of them the creditor could not report eight separate delinquencies because despite the number of bills they sent you for the month you were still only late paying one account. This is why the number of bills you get does not matter. It is instead the number of accounts (debts/loans) you have with the creditor that matters. The FCRA itself focuses on accounts, as indicated by the following section that requires the creditor to furnish the date of delinquency for delinquent debts reported to credit bureaus: “(5) Duty to Provide Notice of Delinquency of Accounts (A) In general A person who furnishes information to a consumer reporting agency regarding a delinquent account being placed for collection, charged to profit or loss, or subjected to any similar action shall, not later than 90 days after furnishing the information, notify the agency of the date of delinquency on the account, which shall be the month and year of the commencement of the delinquency on the account that immediately preceded the action.” 15 U.S.C. § 1681s-2(a)(5)(A)(italics added). So the question is, do you really have eight accounts or one? In order to determine that, answer the following questions: Did you take out eight separate student loans? Are there eight separate balances due? If the answer answer to each of these is yes, then you clearly have eight separate accounts with that one creditor, and the creditor may report each one separately to the credit bureaus. On the other hand, if you ever only took out one student loan or if you formally consolidated all your separate student loans into one big loan and thus have just one amount outstanding then you have just one account and the lender may report you as delinquent on just the one loan that you have. Which is it? Again, it does not matter whether they bill you separately for each account or send you a combined bill for all of them. It is not the number of bills they send you that matters. What matters is how many accounts you have, i.e. how many separate loans you took out. In general, with student loans you take out a new loan each semester, and each of those is a separate loan and a separate account even though they may all be with the same lender.
  3. The motion would be worthless to file, and that is why your attorney refuses to do it. The prosecutor controls what charges are filed. Your attorney cannot force the prosecutor to reduce the charges and neither can the court. What the court is allowed to do is dismiss charges that are not supported by probable cause. If the court dismissed the felony charge for lack of probable cause then the prosecutor might follow-up with misdemeanor charges. But so long as the prosecutor has probable cause to support the felony charges that he or she filed the prosecutor is entitled to prosecute that case and bring it to trial if a plea deal cannot be reached. The court cannot in that circumstance change the charges to misdemeanors. In that case, filing a motion to ask the court to do what it cannot do would be frivolous, which would subject your lawyer to sanctions. Obviously, the attorney cannot do that even though you tell the lawyer that is what you want. If you get convicted at trial and the evidence produced at trial does not support a felony conviction but would support conviction on a lesser included misdemeanor the court might then be able to reduce the conviction to the misdemeanor offense. If you file a motion with the court on your own while you are represented the court should reject your motion as all motions need to be filed by your lawyer.
  4. Even though you were billed one statement, if you had 8 separate loans and failed to pay them on time then you missed payments on 8 separate loans and the creditor may report that you were late on 8 separate loans. Since what the creditor is reporting is true, how is that “unfair”? Why should it make a difference that the creditor combined the billing for the 8 loans into one piece of mail rather than sending you 8 separate pieces of mail? The main thing that the federal Fair Credit Reporting Act (FCRA) requires of those furnishing information to credit bureaus is that the information they provide to the credit bureau must be accurate. “A person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate.” FCRA § 623(a)(1)(A), 5 U.S.C. § 1681s-2(a)(1)(A). Thus, so long as the information was accurate, the lender met its obligation under the law. So if it accurately reported that you had 8 loan accounts with it and you were late on all of them the lender has met what the law requires. It is then up the user of the credit report to analyze the reports and decide what impact that has on their decision to do business with you. If the loans have now been discharged and you no longer owe them, make sure that the discharge is reflected on the credit report. That should improve your credit. When you apply for a disability discharge on a student loan, you are still obligated to pay the loan up until the disability discharge is approved. So in not making those payments you took the risk that your credit would get damaged. You may explain why you didn’t make those late payments to future creditors and explain that all 8 loans with all with the same student lender and that may perhaps help improve their view of your credit.
  5. You did not read (a) carefully. Every beneficiary who was entitled to receive income from the trust or, if none, every beneficiary entitled to get the benefit of the income from the trust was due an accounting. It doesn’t appear to matter if there was actually any income in the trust. It simply matters who would get the income or benefit from the income (e.g. by having the income increase their distribution down the road) if there had been any. Moreover, you did not read (b). You distributed all the assets from the trust after 6 weeks according to your posts. That effectively terminated the trust. You needed to make an accounting to the beneficiaries at that time, which evidently you did not do. It is (b) that is likely to be the biggest problem for you. Again, I recommend you consult a trust attorney ASAP to review what you did and see if you screwed up anything here and if you did, see what you might be able to do now to fix it.
  6. Your understanding is not correct. Under Illinois statutes, the trustee must make an accounting to the beneficiaries at least annually and also at the time the final distribution and trust termination is to be made. See 760 ILCS 5/11(b) with respect to the requirements for an accounting at the final distribution and termination of the trust. This is required of all trusts, not just trusts in which the grantor is still living. That suggests to me that you did not follow the requirement to provide the necessary notice and accounting at the time you made that final distribution of the trust. That could create a problem for you if the disgruntled relative prevails and it turns out that you did the distribution incorrectly. I’m guessing that you did not consult an Illinois trust attorney prior to distributing all the trust assets. It would be a good idea to consult an attorney now to review what you did and see what, if anything, you ought to do to rectify any mistakes you made in handling the trust. If you violated your duties as trustee of the trust you might be personally liable for that to the persons who got short changed as a result of it.
  7. He should sue you before the trust is distributed and if he wins the result would simply be a different distribution of those assets. You would have no federal income tax deduction as a result of that. Has the trust and estate already been distributed?
  8. You cannot do that in the will. Very generally nursing homes will not take you for free. They expect to be paid for the care they provide unless the nursing home is run by a charitable institution. Charitable institutions help the poor. If you are sitting on a home that has substantial value, they are likely to say you are not poor enough for their help. Medicaid will also help those without sufficient funds pay for nursing home care, but Medicaid also generally requires that you be poor. While the home you live in won’t be counted against you for Medicaid qualification, the government will get a lien on that home in order to get paid after you die. A will does nothing to avoid that lien. What this means is that if you want to pass the home on your kids and qualify for Medicaid to pay for nursing home care, you need to arrange that before you need the nursing home. Transfers made within 5 years prior to your application for Medicaid count against you, so that means the transfer has to be arranged at least 5 year prior to when you need the nursing home care. There are several ways to do this, each with its own advantages and disadvantages. You will want to discuss it with an elder law attorney in your state so you can make the right choice for you. I would urge you to consider one other thing here. Medicaid does not pay a whole lot for nursing home care. The kind of care you get at facilities that accept Medicaid for the nursing home fees is often not very good. While it is nice to want to pass on your home to your kids, you might want instead to preserve the home yourself to use to pay for care at a better facility for as long as you can. Your husbands worked hard to help give you a decent life in your old age, and you should consider that living in a good facility for as long as you can afford to do will make your life more pleasant. Unless your kids are in real dire straits financially, they don’t really need the home.
  9. The rule in federal court is that two different claims against the same defendant can be joined together but if the two claims are unrelated then the federal court must have federal jurisdiction over each claim separately in order to hear each of them. See Federal Rule of Civil Procedure (FRCP) 18 and Hurn v. Oursler, 289 U.S. 238, 53 S. Ct. 586, 77 L. Ed. 1148 (1933). Your slander claim is a state law claim that is not related to the Title VII federal discrimination claim. That means that in order to join the state law claim to the Title VII case you must meet the requirements for diversity jurisdiction. The requirements for federal diversity jurisdiction are set out in 28 U.S.C. § 1332 as follows: “(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between-- (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.” As you are suing a union, you and the union must be citizens of different states for you to meet diversity jurisdiction. Most unions are organized as corporations. The rule for a Corporation is that it is considered a citizen of every state in which it is organized and in the state where it has its principal offices. 28 U.S.C. § 1332(c)(1). So even though the union has no offices within the state, if it is incorporated in NJ then you would not meet the requirements for diversity jurisdiction because you and the union would be citizens of the same state. The other main requirement for diversity jurisdiction is that you must be able to state that the damages in your slander claim exceed $75,000. You have not indicated that you have suffered any amount of financial loss from the alleged defamation, let alone that it exceeds $75,000. From the description of your slander claim, I do not think you could plausibly claim that it is worth more than $75,000. Unless you can point to real damages from the slander that total more than $75,000, you will not meet diversity jurisdiction and in that case you would have to bring the slander claim in a separate state court lawsuit.
  10. That’s true. Most lenders would insist that the property tax liens get paid off before or at closing as a condition of funding the loan. But that is a decision by the lender, not a legal impediment to the transfer. The OP is not in Texas. But if a property in Texas that was encumbered by a real property tax lien was sold to an elderly or disabled person as defined in the Texas statute and that person used that home as his/her homestead he or she might well be able to defer any sale of the home to pay that tax. All that means is that the tax would be collected from the home after the person dies or ceases using it as a homestead.
  11. The original location is the location that the records were kept prior to the FOIA or other request being made. That will vary of course depending on the agency and the particular record involved. As for your question (2), that seems to be irrelevant given the statement by the National Archives that no agency actually removed and refiled these records, assuming that the statement is true. In other words, why would you need to know what process an agency would have needed to use to refile these records if, in fact, no agency ever used that process in the first place?
  12. Yes, he could transfer it to you without first paying the taxes on it. The lien on the property from the property taxes would remain after the transfer so if you fail to get the taxes paid after the property is transferred to you then you could still lose it because the government unit that imposed the tax (city, county, school district, etc) may take the property and sell it to satisfy the tax. Did you have any written agreement with your father regarding the deal on this house? If not, why not? You should never enter into any deal to buy real estate with out getting all the details in a written contract that both you and the other party sign.
  13. That depends on the terms of the account agreement you have with the bank. Read it and see when various fees will be added to your account. Nothing in federal or Texas law would prohibit the bank from imposing such a charge.
  14. No, you should not ignore the Form 1099-S. The sale of the property is a taxable event for income tax purposes. There will be a gain or loss on that sale. The gain or loss is determined by the following formula: Gross sales proceeds - minus allowable expenses of sale - adjusted basis. The property would have started with a basis of the fair market value of it on the date your father-in-law died. It would be increased by the cost of any major improvements that were made to it after his death and decreased by any depreciation that was taken or could have been taken on the property. If the sales proceeds are split among several owners then each owner takes into account his/her share of the gain/loss on his/her return. So if the property has gone up at all in value in the three years since he died there is likely some gain you must include on your tax return (assuming that the trust that evidently sold the property isn't the proper entity to pay the income tax on it). Whether you had a gain or loss, you need to report the sale on your return. Given that you were sent a Form 1099-S, the IRS will definitely expect to that reported on your return. See IRS Publication 544 on the sale of property and Publication 551 on basis for the details of how the gain is computed. Returns for 2016 must be postmarked no later than April 18, 2017 unless you send in a valid extension to file your return. That extension must also be postmarked no later than April 18, 2017 to be good
  15. Where is all of this taking place?