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Tax_Counsel

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Tax_Counsel last won the day on September 11

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  1. A wrongful termination is one that is in violation of the law. A termination that is a breach of contract is not a wrongful termination. It is simply a breach of contract. The distinction matters because the remedies and damages are different between wrongful termination claims and breach of contract claims. A lot of employees think a wrongful termination is any firing that was done without a good reason or where the reason given was false (e.g. the employer fired the employee for doing something that the employee says he did not do). But of course legally that's not the case since an employer doesn't need a good reason to fire an employee. Just a reason that is not prohibited by law.
  2. Internal Revenue Code (IRC) § 3402 requires the employer to withhold income tax from employees based on tables provided by the IRS. When the employer receives a Form W-4 from the employee that seems to be valid and the employer withholds based on that W-4 then the employer has met its responsibility. Otherwise, there is no W-4 submitted or the W-4 that is submitted is invalid then the employer is supposed to withhold using a filing status of single and using one exemption. There is nothing in the federal tax law, however, that penalizes an employer for withholding more than is required. It is only a problem if the employer withholds less than is required. The reason for this is that the whole goal of withholding is to ensure that the government gets at least the minimum amount of required tax withholding from the employer. In other words, if the government gets at least the minimum withholding that the law requires, it is happy. It has the money coming in. Here, if the W-4 claiming exempt was valid, it would relieve the employer of the responsibility to withhold tax entirely. If the employer withholds tax anyway, then the employer has not violated the tax law because the employer didn't have an obligation to withhold in the first place. The employer is doing more than it has to do. Sure, the employee might be a bit upset that she has less in her paycheck and has to wait until next year to file the return and get it back, but the IRS is not concerned about that problem.
  3. The employer didn't change the W-4. The employer ignored the exempt W-4 that the employee provided and instead withheld tax from the pay anyway. And there is nothing illegal about that. The tax law is concerned about ensuring that there is at least sufficient withholding to meet the employee's tax obligations. If more is withheld, that is not a problem for federal tax law. It just means the employee gets more of a refund when she files. In any event, no law prohibits an employer from firing an employee over this issue so there is no wrongful termination.
  4. It may not come to the point of going to court if they get a lawyer on board. I had a client who had a similar problem with her HOA. She and her husband built a small shed on their property that the HOA said violated the rules. I wrote a letter to the HOA board and copied its lawyer pointing out that a number of other homes in the HOA had sheds built that violated the rules and none of them had ever been told to tear down their sheds. I advised them that this kind of arbitrary enforcement of the rules was not permitted and if the HOA took action against my client to force tearing the shed we would take the matter to court and that, in our state, if we could prove the HOA enforced rules arbitrarily or selectively we may get the court to invalidate the enforcement powers of the HOA entirely, rendering the HOA essentially powerless. I wasn't surprised to see that the HOA quietly abandoned the shed issue. It wasn't prepared to enforce the rules against all the violators and it certainly didn't want to risk the possibility of losing its enforcement powers altogether. The bottom line is that my client got to keep the shed, and the HOA has given up on the shed issue going forward. Point is, a good lawyer might get the HOA to back down with a well drafted letter. No guarantees of that, of course, some HOA boards are more obstinate than others.
  5. I suspect there is more to this than you've stated. I cannot see an employer firing her solely for claiming exempt on the W-4. She's entitled to claim exempt on a Form W-4 per the W-4 instructions as follows: That said, her problem is that the rule for private (non government) employment is that an employer may fire an employee for any reason except for a relatively few reasons that are prohibited by law. There is no law that prohibits an employer from firing an employee for claiming exempt on the Form W-4. As a result, it was not illegal for the employer to fire her over it. It was stupid, to be sure, but not illegal. If the employer is that clueless, she's probably better off not working there anyway. In any event, all she can do now is look for another job.
  6. Most small informally organized groups like book clubs certainly don't give much thought to taxes, though they likely have no tax obligations anyway. HOAs, though, aren't like a book club. They tend to be formally organized, often as a corporation. And corporations are obligated under federal tax law to file an income tax return every year regardless of income. Organizations that are set up as formal business entities really do need to think about their tax obligations.
  7. I disagree. It matters because whether you are tax exempt or not affects what forms the organization may need to file with the IRS (and perhaps the state/local governments too) and whether the organization has income tax to pay. If the organization truly runs at no profit (i.e. the deductible expenses are always at least equal to or more then the income) then the organization does not have income tax but it still may need to file the appropriate forms and may be penalized for failing to do so. Now, not all HOAs qualify for tax exemption. Without more information, I cannot tell whether this one would qualify. But if the HOA board is at all unclear about the HOA tax responsibilities then it ought to see a tax professional for help, ideally one familiar with HOAs.
  8. Then your HOA is subject to income tax on any profits it earns. Paying for landscaping expenses of what I assume are common areas in the HOA would likely be a capital expense which would increase basis in the common areas and may allow for some depreciation deduction for a period of years depending on the details of what is done. How is the HOA organized? As a corporation? Whether the HOA is permitted to make the expenditure in this way depends on what the HOA organizing documents say.
  9. What do you mean "offset" the 2020 dues? Who would get the money? And is the HOA actually recognized as tax exempt by the IRS? (Nonprofit is not the same thing as tax exempt.)
  10. Scribbles — Bear in mind that the terms "sole practitioner" and "general practitioner" are different terms. A sole practitioner is one who practices by himself/herself. A general practitioner is one who practices in a wide variety of areas rather than concentrating in just a single or a couple areas of law. So RetiredinVA was apparently both a sole practitioner and a general practitioner as he evidently did a wide variety of legal work. But other sole practitioners may concentrate their practice in just a single area of law, and perhaps they'll have some days that are indeed "typical". While in solo practice myself I did (and still do) primarily tax law and other areas of federal law. You'll find that there are a lot of different practice arrangements for lawyers, and even among sole practitioners a lot varies from one lawyer to another. Likewise, you may find general practitioners in partnership with other lawyers.
  11. Yes, that's quite common. The vast majority of law firms have 5 or fewer attorneys. Only a few firms are the really big firms like those you see on TV and movies. I am associated with a fairly small law firm myself. In large law firms most of the lawyers are employees and don't have the control over their work and practice that solo practitioners and partners in small firms have. A big part of the attraction of law practice is having that control to do your own thing.
  12. An arrest only requires probable cause to believe the person being arrested committed some offense. A prosecutor has to convince a jury the defendant is guilty beyond a reasonable doubt, a much higher standard. So the prosecutor might decline to file charges if he or she believes the evidence is not yet strong enough for it. It might also take some time to get the charges filed, especially if an indictment is required. In short, the arrest can still be good even if no charges are ever filed. You cannot sue over the bond money. As long as he makes all his required court appearances you'll get that back (less any fee for the bondsperson). Your financé can see a civil rights litigation attorney to find out if he has any case for civil rights violations if no charges are filed by the next court date. The state has until the statute of limitations expires to charge him, so if the bail is exonerated at the next court hearing, you'll get the bond back but that does not mean he's out of danger from being charged and prosecuted for the offense.
  13. It wasn't your sister that created this problem. It was your father who did that. Where the house went was totally under his control. Breaking up the relationship with your sister merely over the fact that he gave her the house instead of you doesn't make a lot of sense. Look, it was disappointing not to get what was promised to you. But the fact is that there was no obligation on anyone's part to give you anything. You are responsible for your own financial situation. I get that the house would have helped you out with your money bind, but breaking relationships because others don't give you the money or property that you want is frankly petty. Your life is your responsibility, not anyone else's. Take ownership of your own life and situation and figure out what you can do to improve it. Don't rely on others to give you something. You'll be much happier when you can rely on yourself to solve your problems.
  14. No way to tell based on the information you provided. You need to specify in what state this is taking place, what you mean by RFO, what the terms of your agreement were with your old attorney (in particular what the scope of the work to be done was — did you retain him to deal with the modification), what the old attorney knew of your situation, whether you were behind in payments to your lawyer, and when the order was entered that was prior to when you became disabled. I suggest you take the info you have to an attorney who litigates legal malpractice cases in your state to see if there is anything worthwhile to pursue.
  15. I understand you're disappointed. But the reason for it is that your father told you he'd give you the home, setting up your expectation of that, but never followed through to ensure that the house would go to you. There are a variety of ways he could have done that — changing the will, changing the deed to the house so that you co-owned it with him as joint tenants with a right of survivorship, putting the house in trust with you as the trust beneficiary, etc. He surely knew that he'd given it to her in his will. So if he never did anything to ensure that the house would go to you as he promised, that's on him. He's the one to blame for your "ugly sore" because he's the one who set up your expectation that you would get the house. But he's dead now, so harboring that ill feeling towards him isn't going to do anything productive for you. It'll only hold you back from finding happiness. Look to yourself to find that happiness; don't hope or expect it to come from others or you'll often be let down. Your sister could have disclaimed her interest in the house. Where the house would go if she did that would depend on what else the will said. It is possible it still would not have gone to you. In any event, she had no obligation to disclaim her interest even if it would have gone to you if she did. You might be bitter that she didn't help you out by doing that, but did you ever ask her to do that?
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