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  1. Like
    Tax_Counsel got a reaction from pg1067 in Grandparents wont stop filing my children on their taxes   
    She can't stop the grandparents from claiming anything on their returns. For the years 2018 through 2025, as the tax law stands today, the dependent exemption is zero and thus there is no tax benefit for claiming a dependent. There are the child tax credits, however, and those credits do depend in part on whether the taxpayer would qualify to claim the kids as their dependents. All she needs to do is claim the child related tax benefits on her return that she qualifies to take. If someone else claims the same tax benefit for the same child the IRS will catch that on computer matching about a year after the returns are filed and spit out letters to each of them to start the process of verifying which one was entitled to those benefits. The one not entitled to it will have to pay back the tax they saved from the benefit, as well as interest and possibly a penalty, too.
    Note that if both of you file electronically and claim the same benefit(s) for the same person the IRS will reject the second filed electronic return. All that means is that the person with the rejected return will need to file on paper instead and wait about 4 weeks or so longer to get any refund check. That short delay is the only disadvantage to filing second. So no need for her to get overly worked up in January simply to file first.
    I'll not get into the details here of what the requirements are to claim the dependent exemption or the child tax credit. She can read those rules in Publication 501 (dependents) and Publication 972 (child and dependent credit). If she's interested in amending prior year returns she'd need to look at the prior year versions of those forms as the rules change a bit from year to year, especially the changes from 2017 to 2018 that occurred with the Republican Tax Act passed in December 2017. Note that it may be that the grandparents were entitled to one or more of the dependent exemptions they claimed during the years everyone was living in their home, so she'd need to read the rules carefully for those years. She can only amend returns as old as 2016 now and get a refund. It's too late for years before 2016 unless she paid that tax within the last two years.
  2. Upvote
    Tax_Counsel got a reaction from FormerLegalSecy in In The News - Criminal Law vs. Religion   
    Religious practice trumps a statute (whether criminal or civil) when that practice is protected by the Constitution and the government lacks the compelling state interest needed to overcome that protection. For example, the Amish have a well established belief that goes against participation in Social Security programs. That belief is protected by the First Amendment and as a result the Amish legally do not have to pay FICA taxes nor do they claim Social Security or Medicare benefits. They are completely outside that system due to their religious beliefs.
    As to use of illegal drugs, religious belief and practice can overcome criminal drug laws. Some Native American tribes have the right to use peyote, which otherwise would be illegal, for their religious practice. Of course, the tribes had been using peyote in a religious context well before it was banned, making the case it was truly a religious matter easier to prove.
    It becomes harder when a new religion pops up that no one ever heard of before and that religion has as a major part of it the use of illegal drugs. The suspicion will be that the claimed religion is merely a sham designed primarily to get around the prohibition of the drug. That makes it more of a challenge to the persons claiming it is truly for religion to establish that to the courts.
  3. Upvote
    Tax_Counsel got a reaction from Ajleoso in Botched engine replacement   
    It's not really clear what caused the problems you had after you got the car back. But if the shop did not put in the replacement engine as promised or did a shoddy job of it then it breached the contract you had and you may sue for that. In a breach of contract case, the damages you may claim are known as expectancy damages. This means you are entitled to get the amount of money it would take to put you back into the position you would have been had the contract been performed properly. In Colorado you may sue for up to $7,500 in small claims court.. The Colorado courts have a small claims page to help you get started.
    Note that the shop cannot avoid liability here by claiming it knew nothing about it and that it must have been a side job by that now ex-employee. If that guy was an employee at the time and represented he was acting on behalf of the shop when he made the deal for the work then the shop is likely liable under the concept of apparent authority. You would want to sue both the shop and that employee to cover all your bases.
  4. Like
    Tax_Counsel reacted to pg1067 in Diving Accident   
    Sure it would have, but the question will be whether it was a reasonable option.  I think pretty much anyone would agree that making an indoor pond at a bar 8-feet deep would be an extreme and unexpected thing to do.  And, as I commented earlier in this thread, no reasonable person would behave so carelessly as to dive head-first into a two foot body of water.  Moreover, and possibly most importantly, what if a person who didn't know how to swim accidentally was pushed into the 8-foot deep indoor pool and drowned?  Making the darn thing 8-feet deep would be far more likely to result in injury or death.
    I'll bottom line it:  if you get any recovery beyond the no-fault medical payment coverage that the bar owner's liability policy presumably had, it will be a stark illustration of everything that is wrong with the tort system in the U.S.
  5. Like
    Tax_Counsel reacted to LegalwriterOne in Death of CHP officer by intoxicated driver   
    What he is booked for doesn't mean anything.  It's the DA's office that files charges, not the cops.
  6. Like
    Tax_Counsel got a reaction from hr for me in Same name usage in logo   
    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.
  7. Upvote
    Tax_Counsel got a reaction from PayrollHRGuy in Blame the Hurricane   
    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.
  8. Like
    Tax_Counsel got a reaction from LawStudentFor911 in Whistleblower Retaliation from Agency Personnel   
    I disagree. First, what makes you think that only defamation by an employer in writing is actionable? Defamation can be oral, too (slander).
    Second, you misread the post. The OP does not want to sue the former employer. The former employer is out of business. He or she is instead concerned about an employee of the state is defaming him/her to potential employers, preventing him/her from getting employed. Thus, it is not an employment law attorney the OP needs but rather an attorney who handles defamation claims. As Jack points out the two sample statements given by the OP are statements of opinion and thus would not appear to be defamatory, but the OP ought to run all the facts by an attorney to see if he or she has something to pursue.
  9. Like
    Tax_Counsel got a reaction from JackWoods in Suing a Board Member Personally   
    Just based on what you have said here you could not successfully sue the board of directors personally over this. The board members have no individual duty to you nor are they acting in an individual capacity when rejecting you planned construction. It is the HOA as an entity that approves or denies those applications, and it would be the HOA that you would need to sue.
    A small claims lawsuit wouldn't be helpful to you in many states (and I did not see where you posted the state) because in many states you can only sue for money damages and so far you've not suffered any monetary loss here. e.g. the HOA hasn't fined you, hasn't taken action to prevent you from building, etc. It has just rejected your request and threatened to fine you at some point in the future.
    You of course don't want to build out a 2100 sq foot house if the HOA might prevail and insist that it has to be 2400 sq feet. One way to deal with that would be to sue the HOA for a declaratory judgment in which the court rules in advance whether the HOA can deny your application for the 2100 sq foot house. But that typically cannot be done in small claims court.  That also costs money, of course, to litigate that. Whether you might get the attorney's back if you win depends on what state you are in and what the covenants that govern your HOA say. Another other option is to rely on your attorney's assertion that if the HOA comes after you once the place is built that the HOA would fail. But if the lawyer does turn out be wrong, that might prove costly to you too. Finally, as you mentioned, you might just cut your losses, sell the lot, and move on.
    These kinds of issues are exactly why I avoid buying a home subject to a HOA. HOA boards can be (and seemingly often are) made up of unreasonable and controlling types who want to make everyone in the HOA have a home exactly they way the board members want and don't appreciate that not everyone wants the same thing.
  10. Like
    Tax_Counsel got a reaction from pg1067 in Can I create a life estate for my stepmother after my father's death   
    When your father died his estate took control of his probate assets. Since he had a will, that will determines who gets the various probate assets that he has. You are evidently going to get the house once probate is done, assuming it doesn't need to be sold to pay bills of the estate. Your step-mother is the only one who inherits anything, a bit of cash.
    Now, if  your step-mother did not like this outcome she could either (1) take the elective share of the estate that Tennessee law allows her to claim, which is 20% of the net estate for a five year marriage, or (2) she could contest the will (if she had any grounds for it) which, if successful, would mean the will gets tossed out and the intestate succession law would apply instead. Under intestacy, since your father had living descendants, she would get one-third of the estate and his descendants would split the other two-thirds.
    Assuming that she does not want to do either of those and the will is probated without a problem, then you end up with the house. You are also the executor of the estate. No one else other than your step-mother has an interest in the estate. So what you do with the house is up to you. While you could give her a life estate in it, that is really not necessary and may complicate things more than you'd like. Since it's your house, you may let her live there for as long as you want. No life estate is needed for that.  If you want to get her a place nearer her kids, you are free to sell the house and buy a new one closer and let her live there as long as you wish, too.
    While you could give her the sales proceeds so she can buy the new house or buy the new house and give that to her, both would result in gifts to her from you and that would have a federal gift tax impact for you.  It might also mean the house gets lost to Medicaid later should she need Medicaid assistance later for nursing care or gets lost to pay medical bills that weren't covered by medicare or other insurance.
    You could give her gifts of $15,000/year without any gift tax impact (note that the $15,000 is the total of ALL gifts during the year, including birthday and holiday gifts, etc. You'd need to ensure that the total of everything does not exceed the $15,000). But would she qualify for a mortgage on her own at decent rates? And again, the home would be vulnerable to any debts she has, like medical bills or medicaid reimbursement.
    Consulting an estate planning/elder law attorney might be a good idea.
  11. Like
    Tax_Counsel got a reaction from pg1067 in Private arbitration unconstitutional?   
    Which amounts to the same thing: banning all private arbitration.
    Realistically, what would be the difference between state run arbitrations and the courts?
  12. Like
    Tax_Counsel got a reaction from pg1067 in Private arbitration unconstitutional?   
    Not rocket science, no. Which means it should be clear to you that the situation in the Tumey case is vastly different from the arbitration situation you present. It is (1) a criminal case in which (2) the judicial officer got compensated more for finding for against the defendant, making for a direct conflict of of interest and providing incentive to rule against defendants, denying them a fair trial.
    Arbitration is a civil proceeding and the problem about which you complain is not one in which the deal is that the arbiter gets paid more for ruling for the business instead of the consumer. The arbiter gets paid the same either way he or she rules in that case. The fear you raise is more indirect than in the Tumey case: the fear by the arbiter that if he or she rules too often against the arbiter that the business will look to someone else for future arbitration. While I agree that's a potential problem, it does not provide the same kind of incentive that was present in Tumey. And, of course, the considerations are quite different in a criminal versus civil setting. 
    While I agree that more should be done to deal with the problem you mention in the situation where a consumer is arbitrating with a large business who selects the arbitration firm, your solution of simply banning all arbitrations is tossing out the baby with the bath water. There are a lot of arbitrations that do not result in the problem that concerns you, and there is no reason to ban those just to fix the consumer vs big business situation. 
  13. Upvote
    Tax_Counsel got a reaction from adjusterjack in appeals and due process requirements in a business setting   
    Yes, it was about a government entity. In the case of the Colorado baker, the Colorado Civil Rights Division, (CCRD) a Colorado state agency, took enforcement action against the baker because the baker allegedly violated Colorado state law in refusing to bake a wedding cake for a gay couple. The baker then appealed the decision of the CCRD claiming that the CCRD violated the baker's Constitutional rights, a case that eventually was decided by the U.S. Supreme Court. So you see, the case was all about the government's alleged violation of the baker's constitutional rights, not about whether the baker had any constitutional obligation to serve the gay couple. Indeed, there was constitutional obligation on the part of the baker; the obligation to not discriminate against gay couples was imposed by Colorado statute, not the federal Constitution. 
    The lawyers responding here do know the law, and if you were willing to step back and realize that perhaps you don't know the law better than lawyers do you might learn something. 😁
  14. Upvote
    Tax_Counsel got a reaction from FormerLegalSecy in Relative Injured in a Hotel Shower While on a Job Interview   
    No. Reporting it right away would have been ideal, of course, but better late than never. She needs to get to a doctor right away both for treatment and to help provide good evidence of the damage that was done. Reporting it late will increase skepticism that the incident occurred at the hotel rather than someplace else, but that is not necessarily impossible to overcome. The hotel insurer might pay any way to avoid the costs of litigating it out. 
    The employer isn't going to care about a complaint to the hotel unless the employer happens to own the hotel. She can't get into any real trouble for not having health insurance now that the Congress a year ago repealed the individual mandate. Her risk is that she'll have a medical problem (like this one) that she cannot afford to pay to get treated while she lacks insurance. She has a  number of options to get subsidized or free health insurance if she has little or no income, including the state medicaid plan. Any health insurance would likely be better than having nothing. 
  15. Like
    Tax_Counsel got a reaction from hr for me in 5013-c and refusal to do business with   
    I'm guessing you mean the organization is tax exempt under Internal Revenue Code (IRC) section 501(c)(3), often called § 501(c)(3) organizations  for short. There is nothing in the federal tax code or treasury regulations that govern § 501(c)(3) organizations that prevent them from discriminating against a member using its resources to sell a product the organization does not approve of or that the organization may have concerns about the legality of selling. Nor does any other federal law make that illegal, either. And so far as I can see,  Arizona law does not prohibit that either. You are selling a product that is still controversial so you have to expect that you'll get resistance and push back from some people concerned about that product. 
  16. Upvote
    Tax_Counsel got a reaction from susanwilliams in Selling and reinvesting the proceeds   
    The answer to the literal question you asked is no. Once you sell the property and get the proceeds you realize the gain and reinvesting the proceeds into some other property will not allow you to defer the gain. However, there is a better way to approach this than deferral of the gain. The sale of that vacant lot (once you divide it from your principal residence) may still qualify to be included as part of the sale of your principal residence, allowing you to use the capital gain exclusion under Internal Revenue Code section 121 for both sales. Since it sounds like your total gain here would be less than the $250,000 limit for the gain exclusion, you may be able to cover the gain from both sales. To qualify, you must meet ALL of the following:

    Treas. Reg. § 1.121-1(b)(3)(i). While you have two separate sales, for the purposes of applying the gain exclusion rule under § 121 it is treated as though it was one sale — so the maximum gain you may exclude is $250,000 total for both sales. It sounds like your total gain here for both sales would be just $170k given the figures you provided, in which case you may be able to exclude the gain entirely, assuming you lived in that home for the entire 3.5 years you have owned it. 
  17. Like
    Tax_Counsel got a reaction from tony's bowl in Can I apply for political asylum? Can I sue the Chinese government   
    Your situation would not meet the requirements for asylum in the United States. Whether it might in some other country I cannot say. You also could not sue China for the house demolition in the United States nor likely in any other country either. When it comes to property rights each country sets its own laws and for the most part that does not raise any issues of international law. China is not the first country to seize property of citizens (with or without compensation) to use for government purposes or to turn over to someone else and I dare say it won't be the last. A number of countries simply do not have the long history of respect for private property rights that nations with law based on British common law or Western European civil law have. The Communist Party is supreme in China and does get to do pretty much what it wants to do. Suing the government there often does not turn out well. I am sympathetic to your situation; from what I have seen it is not unusual for China to do these demolitions suddenly and without warning when owners resist signing the agreements. But this isn't something that other countries can help you with, unfortunately. 
  18. Like
    Tax_Counsel got a reaction from pg1067 in Hipaa violation   
    I can see how hearing that your mother has just six months to live would disturb you, and of course your mother as well. And the way the doctor communicated that (nonchalant and "horrible") of course makes that more jarring. I rather think those are the things that upset you more than the fact that some hospital roommate (who likely has no idea who you and your mother are and who likely doesn't have much interest in your affairs) may have overheard the conversation. But the fact that the doctor's attitude was not to your liking is not something for which you have any legal remedy. You could, of course, complain to the hospital administration about that, and about the fact that the discussion was held within ear shot of the roommate. 
    As far as HIPAA goes, discussions like this in a hospital setting have the chance of being overheard by others. It's just the nature of the way hospitals are set up. While the hospital has an obligation to keep protected health information (PHI) confidential under HIPAA except for the disclosures permitted by that Act and the related regulations, disclosures of this sort aren't typically going to amount to a violation. But in any event, HIPAA does not allow for lawsuits for HIPAA violations. Your only recourse for a HIPAA violation is to complain to the U.S. Department of Health and Human Services (HHS). It has the power to enforce HIPAA.
    I'm sorry for the bad news you and your mother received. Hearing that must have been a shock. But I would suggest to you that focusing on the fact that someone else might have overheard it isn't really important. Helping your mother get the care she needs for the time she has left is the most important thing. It really doesn't matter that some stranger might have overheard the conversation. That won't affect you and your mother at all going forward.
    I wish you both the best in the trying months ahead. 
  19. Like
    Tax_Counsel got a reaction from Rosa in Primary parent died   
    The father's girlfriend really has no good basis for claiming custody of the children. In the U.S. it is the parents of the children that have the right of custody of their children unless the state has terminated their parental rights due to being unfit. Not having lots of money does not make a parent unfit. If you are served with a court petition/complaint by the girlfriend seeking custody/visitation then you will need to respond to that and it would be a good idea to have an attorney for that. Your kids might benefit from counseling to help deal with the grief of losing their father and for help in making the transition to new the living arrangements. You might be able to find free or low cost legal help or counseling should you need either of those things but find you cant afford them. 
    Doesn't matter that the boys had lived with her. She is not their parent. The fact that she lived with the father and kids doesn't legally give her any more claim to custody than a stranger. She might have claim to some visitation, but that varies by state and not many states grant that. Be careful about how much visitation you decide to give as you may not want to set expectations too high at the outset. 
    The kids get to decide where they live when they turn 18.
  20. Like
    Tax_Counsel got a reaction from susanwilliams in POA   
    A power of attorney (POA) simply authorizes the person to act in your place as your agent. The problem is that in most circumstances other parties are not required to deal with your agent and may insist that you deal with them directly instead. If the HOA policy is that only persons on the title to property in the Association may attend meetings then the president of the HOA likely can refuse your fiancé entry to the meetings. 
  21. Upvote
    Tax_Counsel got a reaction from FormerLegalSecy in Rumors About My Health   
    From my own experience I would say they may notice something is wrong even if they don't notice everything you are doing to adjust to these symptoms. Many years ago I started having problems with a condition that turned out to be fairly serious as time went on. I didn't know what it was at first and it took a lot of testing to finally find it. I was losing weight though not really rapidly (maybe a pound a week or less) and had some other problems but thought that at least in the early months it wasn't noticeable that something was wrong. My work was still the same and for the most part I thought I acted and looked the same. Yet my co-workers did notice that something was amiss and asked me if I was ok. I was evidently just not the same as I was before, and even if they couldn't precisely indentify what the changes were, they still could sense a difference. It's easy to think we are doing a good job hiding things like this because from our own perception we think we are projecting the same image as before. The problem is that we don't see what others see in us, and as a result we don't catch the things they see.
    Yes, that is an odd explanation. But having worked in government myself, that kind of explanation is what I expect to hear when there has been some politics involved in deciding who gets the job. Even in government, despite the civil service rules that are in place, there are still hirings and promotions made based on office politics — who is the favorite of the person doing the hiring, who fits the particular agenda of the day, or whatever. That doesn't mean that rumors of your health didn't play a part; there is just no way to know absent an admission by someone who did the hiring. But it is quite possible that your health had nothing to do with it and that some kind of politics did. 
  22. Like
    Tax_Counsel got a reaction from lindzzz in Patient Dismissal   
    That would depend on the applicable state law and state medical practice rules, and you did not mention the state. In every state I've practiced a doctor may terminate the relationship at any time, even in the middle of treatment, but does have to ensure that the patient has prescriptions necessary to last 30 days so as to give the patient time to transition to a new doctor. 
  23. Upvote
    Tax_Counsel got a reaction from FormerLegalSecy in Rumors About My Health   
    Has anyone mentioned MS specifically? If not, is there some reason you believe that is what you may have (other than perhaps your own fear that MS may be at issue)? You want to be careful not to assume more than what is actually occuring here. Hopefully it will turn out that whatever issue you have is less serious than that.
    In any event, it is not illegal for the employees to tell HR of their concerns about your health or to discuss it among themselves. Nor is it illegal for the employer, though HR, to alert you to the fact that employees have raised that concern. The manner in which the HR person described it is apparently vague enough that it may only be one or two people that have noticed anything rather than being a topic  of general discussion. Keeping it vague is a classic way for HR to help avoid the issue of disclosing exactly who raised the concern. 
    You work for the state. So the ADA would apply if it turns out you have a disability (or the employer perceives that you do). That means the employer cannot discriminate against you because of the disability and must offer reasonable accommodation when requested to help you overcome the limitations created by the disability. The employer does not have to excuse poor work performance, however, with or without a disability. The employer must keep medical records of the disabled employee confidential and should not disclose the disability to other employees except as needed to implement an accommodation.
    You might have other protections under your state's laws and civil service rules. I also recall you are a member of a union, so the union might also offer some protection/help.
    You do not know yet whether you have any disability and thus presumably do not know what accommodations you might need. So long as that remains the case telling the employer about this might not do you a lot of good, at least as long as your work performance remains satisfactory. But at any point where you see yourself starting to struggle with work you probably want to start getting any needed accommodations in place. One mistake disabled employees sometimes make is waiting too long to inform their employer of the disability and seek accommodation. The employee might want to try to prove to himself/herself that he/she can overcome the problem on his/her own, may not wish to disclose the disability, or maybe not even readily acknowledge the disability himself/herself, all of which is understandable. But you want accommodations in place to help you continue to perform well before performance suffers. The ADA does not require an employer to overlook poor performance, so waiting until after your peformance suffers before raising the disability can lead to problems.
    Whatever is going on healthwise, I hope you have a good outcome. 
  24. Like
    Tax_Counsel got a reaction from Darlene in Failure to accommodate disability   
    CCD is a college that receives federal funds and thus is subject to the Rehabilitation Act of 1973, a federal law that among other things prohibits colleges/universities that accept federal funds from discriminating against students with disabilites and that requires the colleges/universities to provide reasonable accommodations for disabilities to put them on an equal footing with other students. The key word here is reasonable. The college does not have to make accommodations for you that are too expensive or burdensome for the college. CCD would have a difficult time relocating an entire program just to accommodate you, and thus I don't see that happening. The school can offer other alternatives to deal with the problem. You can also offer some suggestions that might work other than relocating one of the two programs. Try to see if you can negotiate something that both sides can live with.
    If you can't come to an agreement then you can consult an attorney who litigates cases under the Rehabilitation Act to see if you might have a claim to pursue. But it may also end up that you need to change your education plans in some way. Sometimes you just have to accept that your allergy will get in the way of things that you want to do. You'll not always get to force others to keep their animals away from some place you want to do. Those pet owners have some rights too, after all, and there needs to be a balancing between your rights and theirs.
  25. Like
    Tax_Counsel got a reaction from Mariam Makhsoyan in marriage   
    Yes, that's what I meant.
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