Gee, It Really Was Educational

When I was much younger, I would often read science fiction. This met with a good deal of hostility from my parents who contended that the stuff was trash. My riposte was that it was really quite educational. I'm not at all certain that, at the time, I actually believed my argument, but the Court of Appeals just bought it in the case of Baltimore Science Fiction Society, Inc., v. Dept. of Assessments & Taxation.

BSFS owns a two-story building in Baltimore City. In 2001, it applied for an exemption from real property taxes on the basis that the property was "necessary for and actually used exclusively for a charitable or educational purpose to promote the general welfare of the people of the State" and was owned by "a nonprofit charitable, fraternal, educational, or literary organization." All of the parties conceded that BSFS qualifies as a literary organization. The question before the Court was whether the property was "necessary for and actually used [primarily] for . . . an educational purpose."

The Tax Court found, as a matter of fact, that:

1. BSFS, among other things, participates in a regional Baltimore Science Fiction Fantasy Conference, organizes writing contests, provides writing workshops and seminars, raises funds, and maintains a lending library.


2. The property is used for all of the BSFS activities. None of it is used for any other activity. About 20-25% of the building space is used for the storage of supplies and other items necessary for BSFS activities. The lending library takes up another 20-25% of the space. More than 30% is used for group functions, such as workshops and meetings. The building is open only on Saturday, Sunday, and Wednesday evenings, but during those times the public can visit the library or participate in other BSFS activities.


3. The organization is run entirely by volunteers, who donate time and money. Members of BSFS pay annual dues. Non-members are allowed to use the library and attend all BSFS activities, but they do not usually visit the library or attend meetings.

The SDAT contended that:

[T]he property did not qualify for the tax exemption because it was used primarily as a social or hobby club – that the building is open only on Saturday, Sunday, and Wednesday evening, that some of the organization’s major activities are held off-site or occur only infrequently, that the library is mostly for the members, that the "function" space is for business and social meetings, and that the existence of BSFS and its activities are not well-known to the public. Its witness contended that, because the property was not being used for "systematic instruction," it was not being used for an educational purpose.

The Tax Court agreed with BSFS, rejecting SDAT's suggested definition as being too narrow and limiting and, basically, "unworkable." The Tax Court concluded that requirement that property be principally used for educational purposes did not require that the property be frequently used for educational purposes since "the property, when open, is exclusively used to promote BSFS's educational purpose." The Circuit Court, however, adopted my parents' view that "promoting science fiction is [not] what is deemed to be the operations of an educational institution."

Before the Court of Appeals, SDAT argued that "property is not used for an 'educational purpose' unless it is used for 'systematic instruction' in a 'branch of learning.'" The Court of Appeals rejected this argument and said:

[T]he adjective "educational" cannot be limited in the way posited by SDAT and decreed by the Circuit Court. Formal instruction may be the heart of education, but it is not the entire body. Webster's defines the verb "educate" as "to give knowledge or training to; train or develop the knowledge, skill, mind, or character of, especially by formal schooling or study; teach; instruct." Webster's New Universal Unabridged Dictionary 576 (2nd ed. 1983). That allows for other methods of imparting knowledge and training. Courts have found that a museum may constitute an educational purpose. See Georgia O'Keeffe Museum v. County of Santa Fe, 62 P.3d 754 (N.M. 2002); In re Everson's Will, 52 N.Y.S.2d 395 (N.Y. App. Div. 1944). See also State Tax Comm. v. Whitehall, 214 Md. 316, 323, 135 A.2d 298, 301 (1957) (use of property by Foundation to conduct experiments in breeding of dairy cattle was for charitable and educational purpose; experiments "are comparable to research carried on under grants at universities and add to the dissemination and general store of scientific knowledge"); Oregon Writer's Colony v. Dep't of Revenue, 1996 WL 706994 (Or. Tax), 14 Or. Tax 69 (1996).

See Mom and Dad, whaddid I tell ya'.

Is That Reasonable, Part II

I previously commented on a reasonable compensation/disguised dividend case out of the First Circuit. I have also commented previously (here and here) on the issue of the underpayment of or attempts to recharacterize compensation in order to reduce FICA taxes. A new Fifth Circuit case, Brewer Quality Homes, Inc. v. Commissioner, shows that neither taxpayers nor the Service have determined which side their bread should be buttered on. The Fifth Ciruit's unpublished opinion throws little light on the tension inherent in the positions variously taken by taxpayers and the IRS with respect to these two issues.

Brewer Homes was a retail seller of mobile homes. It was a C corporation owned by a married couple, Jack and Mary Brewer. From the early '70's to the mid-90's, the company provided its owners with a comfortable living. However, in the mid-90's its business really took off. It had upwards of 22 employees and was able to pay Jack Brewer $762,186 in salary and bonuses 1995 and $863,559 in 1996. After an audit (and apparently some negotiation), the IRS determined that reasonable compensation for Mr. Brewer was $604,117 for 1995 and $485,966 for 1996. The remainder of the compensation in those years was deemed to not be a deductible expense, but, instead, a dividend to the Brewers.

The Court applied analysed the case using the following nine factors:

1. The shareholder/taxpayer's qualifications;
2. The nature, extent, and scope of the shareholder/taxpayer's work;
3. The size and complexity of the corporation;
4. The comparison of the shareholder/taxpayer's salary with the gross and net income of the corporation;
5. Prevailing economic conditions;
6. A comparison of the purported salary paid with other distributions to shareholders;
7. Compensation for comparable positions in comparable concerns;
8. The salary policy of the corporation with respect to other employees; and
9. The amount paid to the shareholder/taxpayer in previous years.

To some degree, this case will give succor to those attempting to minimize compensation in order to maximize FICA avoidance. After all, tax advisors of an ah, certain age, are comfortable with the various tests applied in reasonable compensation cases. However, a review of the cases recasting dividends as wage income for FICA purposes share certain other characteristics that one should pay attention to:

1. Is the shareholder the principal provider of compensable labor? Thus, if we are dealing with a professional practice where the income of the business is virtually exclusively driven by the professional services rendered by shareholder/owner, there is likely to be a finding that virtually all of the income is subject to FICA. That might not be the case, for example, if the service business is pyramidal, such as in an accounting firm with a large number of junior accountants who generate profit.


2. Is there a significant capital component to the business? For instance, a veterinary surgeon may have far less capital invested in equipment than, say, a radiologist. It might be relatively simple to carve out some income of the business as being a return on capital and thus free from recharacterization as compensation subject to FICA. It is worthy of some note that in the First Circuit reasonable compensation case that I commented on previously, that Court rejected the use of a "return on capital" analysis.
   

Sooner or later, some court or the Service should attempt to harmonize the treatment of what is, to a greater or lesser extent, two sides of the same coin.

All the News That's Fit to Link

I received an email from a friend who asked whether I could find a copy of the lawsuit that The Baltimore Sun filed in federal court against Governor Robert Ehrlich. The lawsuit has attracted national attention (since Ehrlich's action is a local example of the national trend of Republican Party elected officials using the power of their offices to attempt to cow the press), but for some reason the complaint itself was not freely available on the web.

I downloaded a copy of The Sun's complaint via PACER (a service of the federal courts that charges a relatively small fee) and you can see the complaint, together with Exhibit 1 (Governor Ehrlich's memo that set off the dispute) here. I will, as the case progresses, post and link to other documents that seem to me to be of general interest.

One question: Why didn't The Sun post the complaint? Certainly, the story is newsworthy. And, the Sun could hardly be accused of bias if, as I intend to do, it posted and linked to all important filings in the case. Going one step further, why don't all media outlets that publish on the web provide links to all available source documents pertinent to stories that they're covering?

Performance Enhancing Drug Update I

Via ContractsProf Blog we learn that the Yankees are assembling "an elite team of outside lawyers" to attempt to free the team from the contract with Jason Giambi due to his apparent admitted use of performance enhancing drugs. The posting links to a story in the New York Daily News picked up at philly.com here. The best quote:

"It's ridiculous," said one senior major league scout visiting the Dominican winter league. "Nobody looked at (Giambi) and didn't know he was on something?"

Now where have I heard that before?

Not Snarky

I had intended to write a snarky posting about the baseball steroid scandal. Tenatively called "Baseball's Claude Raines Moment" it would have shown early career and current pictures of Barry Bonds and Jason Giambi. The point, of course, would have been that no sentient human being could be surprised that they were using steroids and other performance enhancing drugs.

However, before I posted I came across Phillip Carter's piece in Intel Dump. Carter takes the high road and, after reading it, I just couldn't summon the energy to smirk online.

No Infinite Arm

Due to the press of other business, this will be a short post.

Today, Judge Andre M. Davis of the U.S. District Court for the District of Maryland issued a careful and well-reasoned opinion in a case that raised issues concerning whether long-arm jurisdiction could be exercised over a defendant simply because it maintained a web site that sold goods to Maryland residents. The case, Shamsuddin v. Vitamin Research Products, dealt with a claim for patent infringement.

The plaintiff who holds the patent is a professor at the University of Maryland School of Medical. The principal defendant is a Nevada corporation that manufactured and sold the allegedly infringing product. The defendant has no assets in Maryland and sells its products via the Internet and through a toll-free telephone number.

The court discussed the so-called "sliding scale" approach first articulated in the case of Zippo Manufacturing Company v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997). In a nutshell, the touchstone of that test is that "the likelihood that personal jurisdiction can be Constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet."

Judge Davis went beyond the sort of facile application of Zippo that other courts have used. Instead, he focused on whether the defendant had purposely directed its activities toward Maryland and its residents. Because there was no evidence of any focus on sales to Maryland residents (the only sales to Maryland residents were to the plaintiff and his agents), the Court concluded that a Maryland court could not exercise personal jurisdiction over the defendant. The case is important because it stands for the proposition that so long as a commercial website does not target residents of a particular state, sales to those residents will not, of themselves, subject the seller to process in that state.

No Conflict In Their Interest

The case of Stup v. UNUM Life Insurance Co. illustrates that (i) insurance companies are as susceptible to the lures of conflict of interest as anyone else, (ii) insurers apparently have no problem buying "expert" opinions that are tailored to fit the conclusions they desire, and (iii) insurers will often go to great length to deny benefits, putting costly roadblocks in the path of insureds who are entitled to coverage.

Wanda Stup suffers from lupus, fibromyalgia, Graves disease, or hyperthyroidism, degenerative disc disease, and eye problems. Without going into detail here, her various maladies are serious, painful, chronic, and have been well-documented for a substantial period of time. The Board Certified rheumatologist who had been her treating physician for several years wrote a detailed opinion letter that concluded that she could not perform even sedentary work.

Stup had a long-term disability insurance policy through her employer. Under the terms of the policy, her benefits were limited to two years if she could not "perform each of the material duties of any gainful occupation for which [s]he is reasonably fitted by training, education or experience." After two years, UNUM, the insurer, denied Stup further benefits declaring that "[s]ince the definition of disability now applies to ‘any occupation’ we feel you could return to work in a sedentary occupation."

Stup challenged the denial of benefits. As part of the appeal process she was required to undergo a "Functional Capacity Evaluation" or FCE. Again without going into details, the description of her efforts during the FCE make for painful reading. They must have been equally painful to watch, since the physical therapist conducting the FCE halted the exam after only 2 1/2 hours due to Stup's physical exhaustion. The physical therapist concluded that "it would not be prudent to make recommendations regarding specific job duties that [Stup] can or cannot perform due to a lack of consistent and true information [from the FCE]."

Based on the FCE, UNUM continued to deny Stup benefits. She filed suit in the U.S. District Court for the District of Maryland. UNUM opposed her claim, contending that its denial of benefits was based upon "substantial evidence." Neither the District Court nor the Fourth Circuit had any great difficulty concluding that not only was there no substantial evidence for the claim, but that its denial of the claim was not "the product of a principled reasoning process." The Fourth Circuit (a notoriously pro-business court) essentially smashed UNUM's defenses into pieces.

This case demonstrates a theme that I've already touched on in different ways in previous posts and which I intend to come back to regularly. The relationship between employor and employee (actually, in this case, insurer and insured) is asymetrical, with the employer holding a good deal of leverage in any dispute or negotiation. In this case, for instance, Stup was out of work due to her disability, a disability so severe that she could not even due all of her own housework. For four years, she was without income. She faced an insurance company with a strong incentive to deny benefits (every claim denied discourages other potential claimants from making claims in the first instance) and which had created an institutional machine designed to achieve that goal. The opinion doesn't reveal whether UNUM had ever made an offer to settle the claim, but such an offer, even a niggardly one, if it were made, would have been tempting to Stup given the financial straits she was in. And, of course, UNUM had a small platoon of medical professionals willing to issue an opinion favorable to UNUM despite a mountain of facts to the contrary. (If you don't believe me, read the Court's comments in footnote 7 on page 14 of the slip opinion.)

The lesson of this case should, but probably won't, be instructive to the public in the current dispute over so-called tort reform. Insurance companies win when they don't pay claims. While some modifications of the tort system may be justified (so that, for instance, in cases such as presented by Stup, her attorneys' fees are paid and she receives recompense for the time value of the benefits that were denied her), but that's not what proponents of tort reform want. They simply want to rig the game in their favor, systemically limiting or prohibiting claims. If you don't believe me, re-read the Stup opinion.