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Everything posted by Tax_Counsel

  1. Ok, let's say that Amy steals something from a store on 3/5/2014. She is caught, charged with shoplifting, and convicted. She gets probation and a fine. She completes her probation and pays her fine. Then on 5/7/2018 she steals an item from another store. She is caught, charged again with shoplifting and convicted. While the charge is the same as before, it is not the same crime. It is a separate crime because it was a separate criminal act that she committed. The court takes into account her earlier 2014 conviction and this time sentences her to 30 days in jail and probation after. All of that is legal. The laws of pretty much every state allow for taking into account prior crimes when determining sentencing on the current conviction. It makes sense because those who commit a crime again obviously didn't learn from the first conviction and a more serious punishment is therefore needed to drive the point home and hopefully ensure that the person doesn't go out and commit more crimes. If this doesn't answer your question you'll need to be more clear about the facts and what it is you want to know.
  2. Yes, the agency can tell you that. And under federal and state law really the only defense you have is to establish that your fear of flying is a disability and ask for a reasonable accommodation for it. I recall your state (but I won't mention it here) and every state agency has (or at least should have) a written policy on reasonable accommodation for disability. You'd need to read that policy and follow the required steps if you want to go down that road. But even if you invoke your right to reasonable accommodation under the ADA and your state's version of it there is no guarantee you will get it. The state agency may say that the accommodation imposes an undue hardship, perhaps because your train ticket or whatever will cost more or because your extra days off work would be a problem. If they do that then you may have to fight it out whether it really is an undue hardship for the state. Other than that, if you refuse to go by plane the agency may take whatever action against you that your civil service rules and union contract (if your union still has one) would allow, including perhaps termination, for the refusal. If you are going to have to travel distances where air travel comes into play for your job you might want to look into treatment for the fear. It is possible to overcome it for a lot of people. Obviously that doesn't help you with this immediate trip, but it may help you avoid continuing conflicts at work over it. Or perhaps you can find some other way to make air travel bearable.
  3. The Awad case does not represent an exception allowing tort claims in Claims Court. It does not address that circumstance. It addresses the opposite issue, whether a contract case that the plaintiff brought also had tort claims that could be litigated in district court. The problem the courts face is determining what the real cause of action is: a contract claim, a tort claim, or whether there are both independent tort and contract claims. As the Awad case points out, if the duty that gives rise to the claim is a contractual one, then the case is really a contract case not withstanding that the reason the defendant breached the contract is because he or she did the performance called for in the contract negligently. And if it is a contract claim against the government then it has to go to the Court of Claims. The rule in the case law is clear and reinforces the statute: tort cases cannot be brought in the Court of Claims. "The limited statutory jurisdiction of the court cannot be expended beyond the bounds established by Congress. Soriano v. United States, 352 U.S. 270, 273, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957); Carney v. United States, 462 F.2d 1142, 1144, 199 Ct.Cl. 160, 162 (1972). The court specifically lacks jurisdiction in cases sounding in tort. Somali Development Bank v. United States, 508 F.2d 817, 205 Ct.Cl. 741 (1974)." Tree Farm Dev. Corp. v. United States, 585 F.2d 493, 498 (Ct. Cl. 1978). Consider the case of King v. United States, That case is a curious one in that the Court of Claims decided that it had the power to hear declaratory judgments involving contract claims. On the face of it, that seemed reasonable since all a declaratory judgment involves is basically an advance determination of whether a particular situation would breach the contract, and the Claims Court has jurisdiction over contract claims. But on appeal, the U.S. Supreme Court rejected that expansion of the Claims Court jurisdiction, saying that for the Claims Court to have jurisdiction, that jurisdiction must be expressly stated in the statute: United States v. King, 395 U.S. 1, 4–5, 89 S. Ct. 1501, 1502–03, 23 L. Ed. 2d 52 (1969). Based on the holding there, in order for the Claims Court to hear a tort case, the statute must expressly provide for that. It doesn't, and thus exceptions allowing tort claims to be brought would not be allowed. The Supreme Court did not reverse another part of the King case, however, that speaks to a common rule regarding jurisdiction in that court — one cannot get into Claims Court by refashioning the claim as one that is permitted in the Claims Court: "Claimants with tort claims against the Government, or other causes of actions over which we have no power, cannot evade the subject-matter limitations on our jurisdiction by refashioning their actions in the terms of a declaratory proceeding." King v. United States, 390 F.2d 894, 909 (Ct. Cl. 1968), rev'd on other grounds, 395 U.S. 1, 89 S. Ct. 1501, 23 L. Ed. 2d 52 (1969). Remember, at the time the court made this statement it had held it had jurisdiction to hear declaratory relief cases. So the statement can be understand to mean more generally that one cannot get into the Court of Claims by refashioning a tort claim to be a claim that the court could hear, like a contract case. So it is not about an exception to the tort rule. It is about looking under the claims as plead to determine what the real cause of action is. If it's a tort claim, it cannot be brought in the Court of Claims. If it is a contract claim against the federal government, it cannot be brought in district court.
  4. The employer must pay you for all the time you work. Under California law, the employer must reimburse you for all expenses you incur in doing your work. Apart from that, I see nothing in your post that is illegal. What the employer is asking for may be annoying, frustrating, and pointless for you to do, and seems to me to be poor management. Unfortunately for you though, poor management is not illegal.
  5. Title 2 of what? What decision is it exactly that you want to appeal and what agency/organization made that decision? In what state are you located? A little explanation of what happened and what you want to appeal would help people to give you some useful information.
  6. I don't have the details as to why you are getting paid a share of the sale proceeds when you weren't on the title, and that might make a difference here. But assuming that you were an equitable owner of the property and inherited your interest in the property 20 years ago that is clearly a long term capital gain. For a single person with total income (including the $7,500 from the sale) of less than $38,600 your tax rate on the long term capital gain is indeed zero percent. Your gain is probably less than $7,500 because you subtract from what you got in the sale your share of the basis in the land. That basis would be your share of what the property was worth when your parent died 20 years ago. You may have some tax to pay to Mississippi though.
  7. Yes. Being on a property owned or controlled by the federal government does not exempt you from all state laws. For example, if Fred shoots and kills Barney on the steps of a federal courthouse the state may certainly prosecute Fred for that homicide. Of course the exact charges matter. In any event, the state would need sufficient evidence to bring the case. If it is literally true that there is no evidence against you then the state would not bring charges either. However, if the issue is that there is evidence but that the feds just didn't feel it was enough to go forward or the act you committed was not a federal crime then it is possible that the state might take a different view of the evidence and charge you if what you are alleged to have done is a state crime.
  8. You will need to report the gain (or loss) on returns in both Tennessee and California for this. But you will get a credit on your California return for the tax paid to Tennessee.
  9. Actually, the U.S. Polo Association lost several cases of trademark infringement brought by PRL. The result of that litigation was that the Association either had to license its marks from PRL or change them as directed by the Court. The Court, in the sale of clothing, stated that the the Association could use its full name on its merchandise, i.e. U.S. Polo Association or USPA, without emphasizing the term POLO. The Association logo had to be redesigned to be more distinct from the PRL logo, too. So if you look at the merchandise sold today, you see it with either the full name of the association or USPA. It does not use the name POLO alone nor does it make the word POLO stand out from the rest of the words in its name. The USPA had the benefit of being associated with the sport of polo and a recognized name in the sport that allows the public to readily distinguish it from PRL. That may have been a factor in the court allowing the USPA to use the word polo at all with clothing merchandise. Before you try using the word POLO in your marketing, I would strongly recommend you consult a trademark attorney. PRL has shown it is willing to litigate to protect its trademark, even against organizations with some significant resources. Should you market clothing with the word polo in it, you may well find yourself in PRL's sights. The litigation, even if you could win, would be very expensive. And, just like the USPA, you might well lose the case with the result that you would owe damages for infringement and have an injunction against you prohibiting further use of the mark. That would force you to adopt a different mark. Why not develop a completely different mark that does not use the word polo? That would be a stronger mark for you and would eliminate the problem of potential trademark infringement claims by PRL. The only reason I can see you wanting to use the word polo is to trade off the reputation PRL has built, and that's the very thing that gets you into trademark infringement problems. If your clothing is good, it will sell without having to piggyback off the Polo name.
  10. That is what the rule says. For most motions the reply is due 10 days after the moving party has served it on the responding party but the court may by order shorten or extend the time for reply. You linked this question with the timing question and I'm not seeing what the timing has to do with this issue. However, generally the reply to the supplemental brief is limited to the issues raised in the supplemental brief that was filed. If the responding party exceeds the scope of the supplemental brief the moving party may file a motion to strike the parts of the reply that exceed the scope. As an example, see this footnote from a case in the 3rd Circuit: Sharp v. Johnson, 669 F.3d 144, 153 FN 13 (3d Cir. 2012). As it is the court setting the deadlines it what that order says that matters. If the court gives specific dates for filing the brief and reply, then no matter when the moving party files his brief (so long as it is timely, of course) the responding party still has until the date the court specified to file his reply. So in your example if the order literally says "appellee's response brief is due to be filed in this court by June 8, 2019" then the appellee has until that date to file, even if the appellant filed his brief early. If instead the court specifies number of days, then the result is different. For example, if the order says "appellee's response brief is due to be filed in this court 30 day after appellee is served with appellants brief" then the date that the appellant files his brief starts the 30 days that appellee has to respond. In short, the precise language of the order matters in how the deadlines play out.
  11. You're right, it is not a matter of federal law. In Florida, it is Chapter 743 of the Florida Statutes that covers emancipation (though that word does not explictly appear in the statutes). As you will see, nothing in those statutes provides that enlistment in the military automatically results in emancipation.
  12. The details count. What do you mean by "shared"? Do they both own the residence, or does he own the residence by himself but they both live there? Why is he the only beneficiary of the trust? Has she agreed to the transfer? In general if she has some legal interest in the residence and he uses his power of attorney to effectively transfer that interest to himself without her knowledge and consent then that self-dealing will create a presumption of a conflict of interest and expose him to possible breach of fiduciary claims. This is something he'd really want to get advice from a Colorado attorney before he does it.
  13. Your argument would be that Colorado issued the last license and thus triggers the 5 year period. Read literally that section would allow the state to issue the license, but does not require the state to issue the license. If the the state law prohibits the department from issuing a license if a person has those convictions then it cannot issue the license. You have the further problem that you are not a resident of Michigan and it will not issue you a license unless you are a resident of that state. So unless you are resident of that state trying to get the state to issue you a license will do you no good. What you need to do is get the suspension or revocation cleared.
  14. PRL Holdings has registered the stand alone mark "Polo" along with "Ralph Lauren Polo" in a number of areas that relate to fashion, not just clothes, but all kinds of accessories, watches, software related to fashion, and more. While there are firms that have registered the name "Polo" alone or with other words in very different industries totally unrelated to fashion, you are very likely to trigger a very expensive trademark fight with the company if you use that word connected to anything having to do with fashion, and particularly with selling clothes, and you may well lose that fight. I think there is a very good chance the company could show the public would be confused and think your product was related to theirs. Before you start selling your stuff with that name, I strongly suggest you consult a trademark lawyer first. You could find yourself liable for huge damages if you are found to be infringing on their mark.
  15. You didn't say in what state the house is located. But since they are month-to-month, all you need to do is serve them with the notice that state law requires, making sure it is done to give them the minimum number of days state law requires and is delivered in the manner state law requires. Then if they are not out by the day after that period expires, go to court to start eviction proceedings. The estate personal representative should see an attorney in the state where the home is located who handles eviction actions for landlords. The sooner you get started the sooner you get them out. And if they stop paying rent on time, serve the shorter notice period, in many states just 3 days, that the law provides when tenants are not paying rent. I'd have laughed in their face if they made the request to me for $50,000. That's just ludicrous.
  16. There are two federal laws that impact credit card loans and billing, the Truth-in-Lending Act (TILA) and the federal CARD Act. Those laws and the related regulations issued by the Federal Trade Commission (FTC) and Consumer Financial Protection Board (CFPB) require that when several different rates apply to your credit card balance (say one rate for purchases and another for cash advances) that the payments apply first to the highest rate balances. Under those rules there also needs to be a disclosure on the billing statement about when any deferred interest rate period ends. So the billing statements should have told you when the deferred interest on this purchase was going to end. See the CFPB page on interest free period  purchases. The way the JCP deferred interest programs typically work is spelled out in the card agreement, a copy of which you would have been sent upon opening the account. What happens is the purchase is interest free so long as you fully pay the entire balance off before the interest free period ends — in your case, that was 2 years. If you don't pay off the balance before that period ends, the bank then charges you all the interest that accrued on the purchase during that two years. Currently the rate of interest they use is 27.99%, very high, so it's critical you keep track of when that two years is coming up and ensure it is completely paid off before that date. Note that if you make other purchases to the account, payments you make during the two years are going to go to those other purchases first since during those two years they are generating more interest. So if you start buying stuff that you aren't paying off in full every month you pay a ton in interest and your payments never go to the interest free purchase either. With card accounts like this, you want to pay the bill for other purchases in full each month and make sure that the interest free period purchase is paid for well before that period ends. Otherwise you end up paying a lot in interest, likely far more than you'd pay on other credit arrangements. It's up to you to protect yourself so you don't overpay. Jewelry bought at most retail places, and especially department stores, tends to be hugely marked up and sold for a lot more than it is worth. If you tried to sell them now, you're likely to find that you'd only a get a fraction of what you paid for them. Buy them if you like them and will wear them, and can afford them, but don't think they are any kind of investment.
  17. Assuming that the statute of limitations to prosecute you for the offense has not expired you certainly could be arrested and charged with the crime. That's true whether you make the admission in your book or not, but of course that admission in your book could be used against you in the prosecution. Consult a lawyer to review the book and any admissions in it prior to distributing it. I would advise my clients to never admit to any crime in a book whether or not the statute of limitations is closed. The admissions might still be used in civil proceedings or might be used against you in some other manner either now or in the future.
  18. Because no law requires the police department investigate and make arrests in every complaint made to it, even if the complaint might have merit. There are lots of factors that could lead the police and/or prosecutor to refuse the case. The evidence may not be strong. They may not have the resources to pursue it given the other cases they have. They may conclude that criminal prosecution is simply not justified given the facts; they may see a civil remedy as most appropriate. And these are just some of the reasons that the police and prosecutor may have for not pursuing something.
  19. You did not indicate the state, and that will matter here. The problem is that in at least most states (and probably all states) she'd have very little in damages for which she could sue. The employee owed the tax to the federal government (and state, if the withholding problem affected state withholding) the same amount of tax either way. The only thing that the employer's actions did was not deduct as much of that tax from the employee's wages as the employee wanted. Thus, the employee got that extra money in her pay check. As a result, she wasn't shorted any money out this. It just amounts to a timing issue. Without a financial loss, there is nothing for which to sue. The one possibility I could see is that the employee might have a claim to get back any penalty she had to pay for underwithholding. However, that penalty is likely to be pretty small in absolute dollar terms. Would it be worth it to her to sue her employer over what might be a few hundred dollars in penalty at the risk of ticking off that employer and getting fired? There is also the issue that the court may well say the underwithholding penalty is on the employee since the employee should look at what is actually being withheld and determine if that will be enough to cover her tax liability. She should not rely on the employer getting the W-4 change input. She should look at the amount withheld afterwards to ensure that the tax withheld will be enough. Too many employees never really look at the deductions from their pay and it costs them when they fail to detect problems early.
  20. The victims do not have that right under federal law, including FERPA. Any such right would have to be provided by state law. It is important to understand what FERPA is about. It is a law that prohibits schools from disclosing student information to others without the student's consent (or if the student is a minor, without the consent of the student's parents). There are some exceptions that allow a school to release the records of student without consent. One of those exceptions allows a school to disclose certain records of discipline taken against a student. Where that student committed an act of violence against another student, the law allows the school to inform the victim of what discipline was taken. The key point is that it allows the school to make the disclosure. FERPA does not require the disclosure. What this means is that the school may release that information without violating FERPA if it chooses to do that. But if it chooses not to do that, there is nothing in FERPA that will force the school to do it. For the school to be forced to do it there must be a state law that requires the school to make that disclosure. As you did not mention the state I cannot tell you if there if there is any kind of requirement for that in your state.
  21. Simply the fact that he had a mental illness does NOT make a will invalid. Lots of people have various degrees of mental illness and can make valid wills. Only if his mental state was such that he truly lacked the capacity to make a will would the will be invalid. If the state of probate is Nevada, then the standard for capacity is this: Matter of Blanchard, No. 67099, 2016 WL 3584702, at *4 (Nev. App. June 16, 2016). That's a standard that a lot of states use. Put in more plain English, he had the capacity to make a will if at the time he signed it he could do the following: 1. Tell you that the document he was signing was a will that will distribute his property to others after he dies; 2. Tell you generally what kind of property he owned; and 3. Tell you who his close relatives are. If he could do those 3 basic things when he signed the will then you won't get the will invalidated because of his mental state.
  22. The fact that he died in Mexico does not make his will invalid. Contesting a will on the grounds of mental illness is not a proper grounds for a contest. A contest can be done on the grounds that the person lacked the capacity to make a will. The capacity to make a will does not require a whole lot. A person can have a mental illness and still be competent to make a will. So I think you'll need more than just those e-mails to prove that he was incompetent. As pg1067 suggested you should see a probate attorney in the state where he resided at the time of his death (that he died while visiting Mexico does not make Mexico his place of residence). Also, will contests can get expensive. How much money is in those bank accounts?
  23. Not just interest. There is also a late payment penalty that is also added, though if the installment agreement is entered into before the statutory final notice is sent the installment agreement will reduce the amount of the penalty. It works as follows. The basic late payment penalty is 0.5% per month of the unpaid tax. If the tax remains unpaid at the time the statutory final notice goes out and there is no installment agreement, the late payment penalty becomes 1% per month. But if the taxpayer enters into an installment agreement before that final notice, the rate drops to 0.25% per month. So if you cannot pay it all when you file the return or get the first bill, promptly get on an installment agreement. It will save you you money by reducing the amount of the late payment penalty that accrues.
  24. It really is better for people with unrelated questions to start their own thread. It keeps the conversations better organized and prevents others from reading all the posts that came before the unrelated one, which then wastes their time. I realize you just wanted to reply to provide an expedient answer, but you've been around long enough to know that tacking onto an unrelated thread is not favored in most message board forums. So I suggest you not encourage it. 😉
  25. A small company (one employing less than 50 people) can fire everyone at any time with no advance notice required.
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