Saturday, November 08, 2003

Why We Do What We Do

I receive regular e-mails from a private mailing list run by an attorney in Los Angeles. (I won't identify the attorney because the list is, as I said, private.) The list generally focuses on issues in tax law of relevance to practitioners in partnership and real estate tax.

One of the frequent discussion topics is reform of the federal tax system. As part of that discussion, there is a thread that regularly appears, albeit in different guises. Specifically, comments by some of the participants indicate that they have a suspicion that what they do on a daily basis is of waste of their not insubstantial intellectual resources. Recently, I offered some observations on those comments.

I said that the thread and two other, seemingly unconnected developments, have only heightened the feeling that I think I share with others on the mailing list that what we do, day to day, is somewhat of a waste of our talents. (I noted that the talent, in my case, was rather moderate, but that is was rather significant for most other members of the group.)

The first "unrelated" development was the opinion in the Blakelee Realty case which I commented on here. That opinion upheld the publication requirement imposed on LLCs in that state.

Something has continued to bother me about the opinion which, as I said, in a narrow sense (i.e., courts should not step on leglislative perogatives), might be correct, but in a broad sense (can anybody really defend the underlying policy behind the requirement without a smirk) is totally unjustified. Yet, substantial intellectual capital was expended by the litigants and the court in determining the issue of whether or not the Emperor really had no clothes.

The second "unconnected event" was the appearance of a new organization called the Public Library of Science. This organization will publish on-line journals containing referred papers concerning various aspects of scientific research. Access to the journals will be free and open to the public. It is hoped that the effort will spawn a host of competing publications that will replace the subscription based system currently in place for the publication of scientific papers. The costs of those subscriptions significantly limits the access of researchers, particularly in poorer countries, to research material.

Now, as I said, these two events would seem to be totally unconnected. Yet, somehow they connected by being so different.

On the one hand, the Blaklee Realty case represented an expenditure of significant intellectual effort to determine whether the state could extract money from one group and give it, on the flimsiest of pretexts, to another. The intellectual capital expended, on all sides, including that of the members of the court, adds little to the sum of human knowledge and, except for the newspaper publishers and their families, happiness.

On the other, PLOS represents an expenditure of effort which will, over time, greatly increase the diffusion of real knowledge and, as a result, improve the human condition.

This brings me back to the tax code issue. I believe that taxes are necessary. Indeed, I would argue that a fair and equitable tax system contributes to the improvement of the human condition. And yet I still get the feeling that what we do on a daily basis is not all that socially beneficial.

Perhaps what I am missing is that, in a larger sense, lawyers, including tax lawyers, are really no different than plumbers. Plumbing is, after all, not a glamorous profession. However, indoor plumbing and modern waste management has contributed mightily to human health and, indeed, civilization. Our sanitation system would break down in no time if there were no plumbers.

Viewed in that light, maybe what we, as lawyers, are are the plumbers of the social contract, making certain that social order is maintained.

In any event, I invite comments.

Thursday, October 30, 2003

Don't Say I Didn't Warn Ya'

I've had this weblog for less than a year and I can already say "I warned ya'."

Specifically, in March I had a posting titled Hey, Let's Be Careful Out There! In the posting I discussed the theoretical possibility of a claim against a blogger for defamation and said:

Many, if not all, homeowner policies include within the definition of "personal injury," an injury caused by defamatory comments. Umbrella policies generally mirror that coverage. At the least, weblog authors should make certain that their homeowner's policies provide coverage. Additionally, since umbrella coverage is relatively cheap, they should consider acquiring an umbrella policy with significantly higher limits.

I added that if it could be argued that the blog were being used for business, there should also be appropriate coverage under a business insurance policy.

For those who don't follow the blogs that discuss politics, there is currently a furor on-going as a result of a threat of a slander lawsuit against well-know blogger Atrios by the lesser-know blogger Donald Luskin. Luskin blogs on the site of National Review Online. Mark Kleiman gives a thorough account of the dispute here.

The consensus opinion of bloggers who have commented on the affair seems to be that (i) Luskin is primarily attempting to publicly identify Atrios, who publishes under a nom de plume, (Luskin's attorney has written an e-mail to Atrios threatening to subpoena Blogger, which hosts the Atrios weblog, to force it to disclosed Atrios' identity) and (ii) that as a secondary goal, Luskin hopes to chill further commentary by Atrios and others by exposing them to burdensome defense costs.

If Atrios has a homeowner's policy, he can likely successfully frustrate the second goal. Moreover, if his insurance carrier comes to the rescue soon enough, Atrios may well even be able to block a subpoena directed to publicly identifying him. (Without going into the issue in any greater length, suffice it to say that Luskin's slander claim appears to be nothing more than a pretext to create a public ruckus with a widely-respected commentator in order to inflate his own pathetic public profile.)

Monday, October 27, 2003

Of Course I Trust You, But I Like to Cut the Cards

By and large, I attempt to provide commentary concerning developments in the law rather than merely link to other sites. However, I will make an exception today because there has been a valuable dialogue between two weblogs, By No Other and Corporate Law Blog concerning provisions that should be contained in contracts that are the product of back and forth drafting by each side. Both weblogs suggest provisions to assure each of the parties to the contract that no changes have been made by the other party(ies) without being highlighted by "redline." The postings are, in chronological order, here, here, and here. By No Other's nuanced discussion of the differences between, and the uses of, representations and warranties is particularly noteworthy.

I have never put a provision in a contract such as those suggested by the authors of the weblogs (D.C. Toedt in the case of By No Other and Mike O'Sullivan in the case of Corporate Law Blog). I suspect that I will now begin to do so. Of course, there is actually a better way to assure against surreptitious contractual provisions--become the scribe of the negotiation. It may cost your client a few bucks more, but by controlling the drafting process you provide fairly strong protection against someone slipping a fast one by you.

Sunday, October 26, 2003

The 21st Century Trumped by the 19th

Last week a New York appellate court sustained a ridiculous statute, but was arguably correct in reaching its conclusion. The decision was handed down by the Appellate Division of the New York Supreme Court in the case of Blaklee Realty Co. v. Pataki. The case had been closely watched by LLC practitioners around the country.

The facts are simple. In New York, in order to form an LLC, one must publish the LLC's articles of organization or substantially identical information for six successive weeks in two local newspapers in the county in which the principal office of the LLC is located. Thereafter, one must file an affidavit with the Secretary of State of New York attesting to the completion of the publication requirement. Failure to fulfill the publication requirement or the filing of the affidavit within 120 after formation of an LLC precludes an LLC from prosecuting or defending an action in a New York state court. An LLC that fails to comply with the publication requirement can still bring or defend a lawsuit providing that before it does so it complies with the requirement.

The cost of compliance runs about $1,600. As a consequence, it is considerably more expensive to form an LLC in New York than in any other state.

The ostensible purpose of the law is to "inform[] members of the public of specific important information regarding the newly organized company." No one actually believes that, nor was there any attempt to marshal facts in support of that proposition. New York and its economy are simply too large to allow the publication of a legal notice in a local newspayer to provide any real notice. And, in the age of the Internet, there are any number of cheap and more effective ways of providing such information (e.g., a public database available via the web, a listserve that distributes, for free, the requisite information concerning new LLCs, etc.).

But the ostensible purpose of informing the public is a mere pretense. There is a dirty secret behind the statute, a dirty secret that LLC practitioners around the country are all aware of--the purpose of the filing requirement is purely and simply to provide a subsidy to the newspapers around the state that rely on fees from legal notices for their support. Those newspapers form a powerful lobby in Albany. Their support of or opposition to a state legislator can spell the difference between success or failure in a close election. (And, the fact that, at the time the notice requirement found its way into the state, the son of the publisher of the largest of these newspapers was the leader of one of houses of the New York legislature probably did not impede the passage of the provision.) Furthermore, the provision itself provides little or no effective notice about "specific important information regarding the newly organized company." It would have worked, if at all, in an era when economies were essentially local and the various local papers provided most of the essential information needed for what we today refer to as "economic transparency." In fact, the history of the publication requirement was traced by the court to the 19th century when limited partnerships first appeared.

The plaintiffs brought a declaratory judgment action, seeking to have the publication requirement declared unconstitutional. The lower court agreed, holding that the requirement violated due process because it places a restriction on an LLC's access to the state's courts that is not reasonably related to the state's claimed purpose of informing citizens about the formation of LLCs with which they may have dealings; that, even if the required publication can be done after a lawsuit has been commenced, prejudice is still manifest since litigation commenced before publication will be delayed at least six weeks; and section 206 violates an LLC's right to equal protection by conditioning its access to the courts on a publication requirement that is not imposed on New York corporations.

The appellate court reversed the lower court and upheld the constitutionality of the statute, finding that the statute had a rational basis because there was a "reasonably conceivable state of facts that could provide a rational basis for the classification." Moreover, the court noted that the state did not have an "obligation to produce evidence to sustain the rationality of a statutory classification. '[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.'" In other words, a statutory purpose need only have the most tenuous relationship to reality to have a rational basis.

As I said at the outset, the result here is ridiculous. It is, after all, widely known that the publication requirement is nothing more than a corrupt practice willingly engaged in by the state legislature and the various local newspapers. However, the actual holding is probably correct. After all, there was no evidence introduced concerning the fact that the publication fees are nothing more than a form of bakshish mandated by the legislature to ingratiate its members with the local newspapers. In order to overturn the statute on the record before it, the court would have had to have made an essentially legislative determination that newspaper publication was essentially expensive and ineffective, especially when compared to 21st century alternatives. In other words, a clearly "false" result is upheld, because to do otherwise would blur the division of labor between courts and legislatures.

Wednesday, October 22, 2003

Filing Fee Update

Steve Gevarter has informed me that a note on the SDAT website [here] makes it clear that the increase in the annual fee "is effective for any return, regardless of year, filed after 12/31/2003 . . . ." (Italicized emphasis mine, emphasis in bold by SDAT.)

Tuesday, October 21, 2003

File Those Delinquent Returns Now

Beginning January 1, 2004, the annual filing fee for a corporation in Maryland will be increased from $100 to $300. There is currently no filing fee for LLCs, LPs, LLPs, etc. Beginning January 1, 2004, there will be imposed on these entities the same $300 fee imposed upon corporations.

If an entity required to file a tangible personal property return fails to do so, it will ultimately have its charter revoked. In order to obtain reinstatement, it must file all delinquent returns and pay any tax due.

I belong to a private listserve for Maryland tax practitioners. Recently, I posted on the listserve the following question with respect to the filing of these returns:

I may be one of the only attorneys on this list who remembers when the annual filing fee in Maryland for a corporation was $40. It was subsequently increased to $100. (I assume that anyone older than me is so old that they can no longer remember such things.)

In any event, when the filing fee was increased, SDAT took the position that the filing of any tangible personal property tax return after the date of the increase would cost $100, even if the year for which the return was due was a year where the cost would have been only $40 had return had been timely filed.

Does anyone know whether a similar rule will apply after December 31, 2003? In other words, if a corporation has not filed required tangible personal tax returns in pre-2004 years, will filing them after December 31, 2003 cost $300 for each delinquent year rather than $100. (And, taking this to its logical conclusion, will filing returns for LLCs, LLP, etc., after December 31, 2003 for pre-2004 years will invoke a toll charge of $300 per year rather than being a freebie.)

Evelyn Pasquier and Karen Syrylo both responded that my assumption was correct. As Evelyn said:

The statute says that the new fees for annual reports are applicable to "all annual reports filed after December 31, 2003." I don't think there is any sustainable argument that reports for pre-2004 years carry the lower fee if they are filed on or after January 1, 2004. If one has a corporation or an LLC, LLP, etc., that has not filed its 2003 (or earlier) annual report, I think one would be well advised to get it filed before the end of the year. (By the way, I, too, remember the $40 fee.)

While I, of course, find it impossible to believe that Evelyn is old enough to remember the $40 annual fee, I believe that her and Karen's analysis is correct. I am currently in the process of filing articles of revival for a corporation that has failed to file its last seven annual reports. The cost for filing those reports now is $700. If we were to wait until January 2, the cost would skyrocket to $2,100. The moral: He who hesitates may not be lost, but he most certainly does lose.

Saturday, October 11, 2003

Isn't It Romantic?

I had digressed from my usual haunts to jump into the Novak/Place/Wilson controversy. I will now return to somewhat more familiar ground and discuss a case that caught my attention. Although not, strictly speaking, a tax or business case, it is worthy of some note.

In June, Judge Schneider of the Bankruptcy Court for the District of Maryland was presented with a case where the debtor had a diamond engagement ring. The Court ordered the ring returned to the ex-fiancé rather than sold, with the proceeds distributed to the debtor's creditors. In reaching his conclusion that the ring was a "conditional gift" to be returned upon the failure of the condition subsequent (i.e., the consumation of the marriage), Judge Schneider took judicial notice of the views of such scholars of etiquette and manners as Amy Vanderbilt, Judith Martin (a.k.a., "Miss Manners"), and Emily Post. The case can be found here.

Thursday, October 09, 2003

More On Consent

Eugene Volokh and my friend Mark Kleiman both express doubts whether a journalist who had received information from a confidential source would honor a waiver that had been obtained in the manner I had suggested. Their premise seems to be that the journalist would view such a waiver as illegitimate because it was "coerced." Let me make a somewhat finer distinction.

It appears to me that there are basically four types of confidential communications made to journalists by public officials. The case for honoring the product of a "mass waiver" in some of these cases is stronger than in others. I think that the Plame case involves the strongest case for arguing that the journalist should honor the waiver.

At one end of the spectrum, there is the "Deep Throat" disclosure. That is, a disclosure by a confidential source who is, in essence, blowing the whistle on wrongdoing inside of an administration or an agency or department thereof. I can understand why a journalist would not honor a "mass waiver" in this case, since it would be tantamount to allowing the fox to silence the squawking chicken. In the Watergate context, for instance, had there been a "mass waiver" and the waiver were honored, the truth may never have come out.

Closely related to the Deep Throat type of revelation is the "intramural" leak. That is, officials in one area of the administration (e.g.the State Department) releasing information in order to gain some advantage on a bureaucratic rival (e.g.the Defense Department). I'm not certain whether, as a general question of journalistic ethics, such a "mass waiver" should be honored. However, it is unlikely that an administration would likely ever seek such consents in these circumstances, since to do so would be to demand a public airing of its own dirty linen.

In a similar fashion, the third type of confidential disclosure will likely never be the object of a "mass waiver" directive. This disclosure is the "background" disclosure where officials, whose identities are actually known by all of the policy players, make disclosures either to float trial balloons or to give an "unofficial" warning of some kind that would be too harsh or pointed if the identity of the party making the disclosure was known. Such disclosures are common, and indeed accepted, in the foreign policy arena. It is unlikely that there would ever be an organized push by an administration to make the source public.

Finally, we come to the Plame case. Here, the confidential source(s) were presumably seeking to advance the policies of the administration that they served. However, the offense and the reason that disclosure is sought is that the nature of their disclosure was truly a "foul" (and, of course, may actually have been criminal), intended to harm Wilson and his wife. I think that a "mass consent" should be honored here because the consent is elicited by the organization, that is, the Bush Administration, that was the intended beneficiary of the leak in the first instance. By forcing the leaker to identify himself or herself, the Administration would be disclaiming any relationship to the leak, painting it as a true rogue operation. Under such circumstances, a consent, even though the product of some degree of coercion, should be honored, since the disclosure can no longer be seen as advancing the any legitimate policy interest. With the underlying rationale for the disclosure removed, the disclosure becomes a sort of bare personal assault against Wilson and Plame. Under such circumstances, the source cannot legitimately demand protection. In other words, once the disclosure has become delegitimatized as a tactic to advance some broader public policy goal, a journalist should feel no compulsion to honor the confidentiality pledge.

It is becoming painfully obvious that no consent along the lines that I have outlined will be sought by the Bush Administration because, at some level, the Plame disclosures are still viewed as legitimate tactics to be used in support of the Administration's policies.

Wednesday, October 08, 2003

Dying By The Sword

Even the big guys blow one now and then.

The Rouse Company, a nationally known developer with thousands of square feet of shopping malls to its credit, failed to renew the lease on its headquarters office on time. The lease had three 10 year renewal options at far, far below market rent. In order to exercise the initial option, Rouse had to give notice to renew by December 31, 2002 for an option period beginning April 1, 2004. The spread between the rent under the option and market is somewhere over $2M. The Baltimore Sun has the story here and here.

On one hand, the Baltimore metro area would suffer economically if Rouse, as it intimates it might, leaves town. On the other hand, there's a certain schadenfreude at the sight of a large commercial landlord being hoist by the same petard that it probably hurled at numerous small fry tenants over the years. I wonder how many times Rouse allowed its tenants to re-up at below market rents simply because someone neglected to send a timely notice of renewal. I'm betting none.

Sunday, October 05, 2003

Kol Nidre and Robert Novak

This evening, I will be going to the Kol Nidre service at my shul. The name of the service comes from the first two words of the first prayer which requests divine release from one's vows. Thinking about Kol Nidre, it occurred to me that Bob Novak, who will not be attending services on Sunday evening, should be relieved of some of his vows.

One of the problems that investigators face in looking into the background behind the disclosures concerning Valerie Plame is that journalists, such as Novak, believe that there should be a journalist's privilege that allows them to maintain in confidence the identities of their informants. While there is no such legally cognizable privilege under federal law, a number of states have created such a privilege in one form or fashion by statute, generally referred to as "shield" laws. However, many journalists, and I assume Novak to be in this group, will maintain confidences even they face incarceration due to the absence of an applicable shield law.

While not recognizing that a privilege exists, the formal policies of the Justice Department recommend exercising caution in cases that might require information from journalists who obtained the information from confidential sources. The policy apparently directs that attempts be made to obtain information from alternative sources before seeking information from journalists. Thus, in the Plame case, the federal investigators are looking at a rather large pool of suspects, only two or three of whom are the actual leakers. This increases dramatically the time, energy, and resources that have to be expended in the course of the investigation.

The investigators' task would be incredibly simplified if only Novak (or Andrea Mitchell or any of the other five journalists who spoke to the confidential sources) were released from their vows to maintain confidentiality and could identify their sources. This feat is far easier to accomplish than it might first appear to be.

At the outset, it should be obvious that any "journalist's privilege," quite aside from questions concering whether it exists and its scope, does not belong to the journalist at all. It is a privilege that belongs to the confidential source. Thus, 30 years after the fact, we still don't know the identity of the legendary Deep Throat. Deep Throat's identity will be disclosed by Woodward and Bernstein, however, after his or her death, presumably because Deep Throat gave permission to make disclosure after that event. That is, he or she waived the privilege effective upon a subsequent event, releasing Woodward and Bernstein from their vow of confidentiality. In the present case, if one or both (or all?) of the confidential sources agree to waive their right to confidentiality and to allow disclosure of their identities and the information they shared with any or all of the journalists, the journalists would be free to disclose the identies of the confidential sources and the information they passed on. Hence the solution.

President Bush, through his counsel, prepares a form of waiver. In essence, the waiver would say: "I [Name of Administration Official] hereby waive any right that I might have to require Robert Novak or Andrea Mitchell to hold in confidence any communication that I might have had or any information that I might have transmitted to either of them concerning Robert Wilson or Valerie Plame. Mr. Novak and Ms. Mitchell are urged to give all law enforcement authorities full and complete details of any such communication or information, including the date(s), time(s), and manner in which such communication was made or information conveyed and the details of the communication or informtion. Nothing in this waiver should be deemed to be an admission that any communication between me and either Mr. Novak or Ms. Mitchell ever occurred with respect to Mr.Wilson or Ms. Plame." Watch how this works.

President Bush announces that all relevant White House, State Department, Defense Department, and Vice Presidential staff will be required to sign the waiver or face immediate discharge. Immediately following the announcement, the President, together with the Vice President, Secretary of State, and Secretary of Defense, publicly execute waivers for themselves. Within 48 hours, all possible sources will have either executed waivers or been terminated from their posts. At that point, we will know the source(s) of the leaks since either Novak will be relieved of any vow of confidentiality or the the investigation will focus on those individuals who refused to execute the waiver. The search can then focus on the question of whether there are more people involved then merely the individuals who actually made the disclosures.

Of course, I would only recommend this course to the President if he really wants to discover who was behind the disclosures.

Monday, September 29, 2003

Update on Mental Illness as a Disability

I have previously commented on two Tax Court Summary Opinions, Keeley and Mary L. Coleman-Stephens (my comments are here and here) that discuss when psychological depression constitutes a "disability" for purposes of obtaining relief from the 10% penalty on premature withdrawals from qualified plans. The two cases reach different conclusions on facts that are essentially not distinguishable. I had criticized the Service's position because it was bottomed on regulations that I believe exceed the rule-making authority under the statute.

There is now an excellent article on the topic by Sarah B. Lawsky of Cadwalder, Wickersham & Taft, LLP, entitled Redefining Mental Disability in the Treasury Regulations. Lawsky makes several points that I had missed.

First, she notes that the overly restrictive definition of psychological disability at issue in Keeley and Coleman-Stevens is incorporated by reference in many sections throughout the Internal Revenue Code. Thus, the definition's mischief is more significant than I had thought.

More significantly, however, she traces the definition back to a provision that was enacted in 1958. This provision was identical to a definition of mental disease found in the Social Security regulations at that time. However, the definition found in the Social Security regulations has been modified extensively to keep pace with changing concepts of mental illness and new treatment modalities. The Treasury Regulations, by contrast, have been essentially frozen in amber for over 40 years.

Lawsky makes a compelling case that not only can the Service revised the regulations, but that the regulations should be revised in order to better reflect legislative intent in the area.

Friday, September 26, 2003

We Are The Other People?

In CCM 200338012, the Service addessed the question of whether a single-member LLC was liable for the unpaid withholding taxes of a business under Code Section 3505. That section imposes liability upon an "other person" who pays the wages of the employees of a delinquent taxpayer. The memorandum is, to say the very least, confusing.

I think (but I'm not certain) that the facts are as follows: LLC, which is a disregarded entity, filed employee withholding tax returns in its own name and using its own EIN. The LLC then files for bankruptcy. Under the authority of IRC Sections 6325 and 6331, coupled with the concept articulated in Treas. Reg. Section 301.7701-2(a) that a disregarded entity is disregarded for all income tax purposes, the Service has the ability to assess all unpaid employee withholding taxes against the sole member. However, the memorandum seems to say that the Service can only go directly against the assets of the LLC if either (i) some form of piercing the "corporate" veil or nominee theory applies or (ii) the provisions of Section 3505(a) apply and the LLC is an "other person" within the meaning of that section.

The memorandum does not discuss the veil piercing or nominee questions on the facts before it, but (I think) it rejects the application of Section 3505(a) because it seems to conclude that the LLC was merely the agent of the individual taxpayer. Thus, it appears that the Service feels that it cannot attach the assets of the LLC directly.

Note the weasel words that I use: "seems to conclude," "it appears." The reason is that I cannot figure out what the Service is saying. Indeed, I'm even somewhat unclear as to the facts. The last sentence of the penultimate paragraph is particularly baffling: "Having disregarded the LLC for federal tax purposes and having treated it like the taxpayer/single member owner for purposes of assessment, we doubt the efficacy of now treating the LLC as an 'other person' for purposes of collection." Huh? Does Section 3505 apply or not? Or is the memorandum hedging on the point so that it can later take a litigation position that, on similar facts, Section 3505 applies. (Yes, I know, these CCM do not bind the Service, cannot be cited as authority, etc. But, of course, we do it all the time.)

Is the Service saying that (a) it need not rely upon Section 3505 because the LLC was, effectively, the taxpayer and an assessment may be made directly against the LLC, as well as the individual owner or (b) that it is somehow estopped from enforcing its assessment directly against the LLC's assets, absent a piercing or nominee situation. I had thought that the Service had previously taken the position that if a business used the LLC form (as a diregarded member, of course) and paid employee taxes under a separate EIN, both the LLC and the individual owner could be assessed. Do any readers disagree with this conclusion? Does the Service in CCM 200338012 disagree with this conclusion?

Any comments that could shed light on these questions are welcome.

Technology Hell Week

On or about 12:45 A.M. on Friday, the 19th, the electricity in my house went out due to a lady named Isabel. Showers, dinner, and laundry thereafter were at my aunt's condo. The electricity was not restored until about 8:00 P.M. on Wednesday the 24th.

On Tuesday, the 23rd, the electricity at my office went out early in the morning due to a construction error made by contractors attempting to beautify the sidewalk in front of my office building. It was restored at 5:00 A.M. on the 26th.

On the evening of the 23rd, I discovered that the dial-up modem on my laptop was defective.

On Thursday, the 25th, while preparing to leave for an extended Rosh Hashanna week-end, the telephone service at my house (but, surprisingly, not the DSL), went out.

I think that I survived, but check back in on Monday.

Wednesday, September 17, 2003

Administrative Catch-Up for Subscribers

On Monday, I had a lengthy posting concerning Notice 2003-60 that sets forth the Service's position on how the Craft decision will be applied. Apparently Bloglet, which operates the subscription service, did not pass on the posting. You can find the posting here.

Meeting of the Uncles

The IRS and various state tax administrators, including Steve Cordi of Maryland, announced that they have established a new nationwide partnership to combat abusive tax avoidance. Under agreements with individual states, the IRS will share information on abusive tax avoidance transactions and those taxpayers who participate in them.

Even though I represent taxpayers, I've long believed that state audit efforts have not been sufficient. (Of course, I also believe that federal audit efforts are insufficient to assure tax compliance.) Now, if they can only create a successful offer in compromise program at the state level.

Tuesday, September 16, 2003

Gone Fishin'

I do not typically post to my weblog during working hours. However, I just came across an opinion that's so newsworthy that it's clearly an exception to the general rule.

In Townsend Industries, Inc. v. U.S., the Eighth Circuit overruled a District Court judgment for the government and held that the amounts paid by an employer for an annual fishing trip for its employees were ordinary and necessary business expenses and not additional compensation for the employees.

The employer was the manufacturer of a product that allows offset printers to produce two-color documents in a single pass through the printing press. For the last forty years, the manufacturer, Townsend Industries, had gathered its personnel for an annual, two-day meeting at its headquarters involving its corporate staff and some factory workers. Following that meeting, the company has sponsored a four day expense-paid fishing trip to a resort in Ontario, Canada.

While there was only one specific organized business function during the four day period, business discussions were conducted on an on-going basis during the trip. While employees were not compelled to attend, nearly all of the company's employees who testified stated that they felt obligated to attend and that they viewed the trip as part of their employment duties for the company. And, there was substantial evidence of specific business discussions that took place over the course of the trip. (Time and space do not allow me, for instance, to detail at length the discussion concerning the importance of the factory workers removing burrs on metal parts or the discussion of the relative merits of molleton and aqua-flowparts. I found the latter particularly fascinating. You'll just have to take my word for it or read the opinion yourself.)

Given the detail provided, the Court concluded "that Townsend had a realistic expectation to gain concrete future benefits from the trip based on its knowledge of its own small company, its knowledge of the utility of interpersonal interactions that probably would not occur but for the trip, and its knowledge of its own past experience. As such, the trips and their expenses qualified as working condition fringe benefits under Section 132 and a bona fide business expense under Sections 162 and 274 of the Internal Revenue Code."

Despite my somewhat humorous treatment of the opinion, I think that it's actually fairly significant. The number of hours that Americans work has been sliding steadily upward over the last 20--25 years. And, with both spouses typically working full time, the centrality of the workplace in peoples' lives has grown apace. Quasi-social events paid for by employers, whether as extensive as those offered by Townsend or only an occasional company barbeque, will become increasingly necessary to build in the business world what is referred to in the military as "unit cohesion." There is no reason that the Internal Revenue Code cannot take cognizance of this changing social reality.

Monday, September 15, 2003

Crafting Advice

Well, it's been over a month. Moving to a new office was far more complicated and difficult than I anticipated, but I'm back. And just in time to comment on a new development with respect to any lien asserted against tenancy by the entirety property when the tax liability is that of only one spouse.

In Notice 2003-60, the IRS has just issued its first post-Craft detailed guidance on collection from property held in tenancy by the entirety where only one spouse is liable for outstanding taxes. The guidance first articulates six general principles and then discusses them in nine questions and answers.

The principles are as follows:

Same As It Ever Was The federal tax lien has always attached to all property held by a taxpayer. This was the case even before Craft and Craft does not represent new law. By way of example, the Service cannot rescind an accepted offer in compromise or terminate an accepted installment agreement, since the Service presumably entered into the arrangements with knowledge of what the law was. But a pre-Craft lien that is in effect post-Craft will be as effective as a lien that went into place after the opinion was handed down.

The Rules Don't Change in the Middle of the Game Notwithstanding the "same as it ever was" principle, the Service will not act to enforce any pre-Craft liens if third parties, prior to Craft, reasonably relied upon the belief that state law precluded the attachment of a lien against only one spouse. This rule would apply only in "full bar" states (such as Maryland) in which creditors of only one spouse have no claim whatsoever against tenancy by the entirety property.

A Repo Man Is Practical The administrative sale of entireties property presents practical problems that limit the usefulness of seizure and sale procedures. Those practical problems are not presented when the entireties property is cash and cash equivalents, thus the fact that cash or cash equivalents are held in a tenancy by the entirety will not deter a levy. And, the entire property can be foreclosed upon with the Service only obtaining the equity of the delinquent spouse.

Share and Share Alike Generally, the value of each party's interest in tenancy by the entirety property will be deemed to be one-half of the total value of the property.

Whither Thou Goest, So I Will Go If tenancy by the entirety property is encumbered by a lien, the lien will be deemed to attach a one-half interest in the property taken by any transferee unless the transaction that effected the transfer extinguished the lien.

Of the nine q & a's, two deal with liens that arose prior to Craft, with the remainder dealing with liens that arise post-Craft.

Initially, the Service states that, as a matter of administrative grace, in so-called "full bar" states (states where property titled as a tenancy by the entirety cannot be attached by any creditor of only one spouse) it will not assert its lien rights against the class of creditors protected under I.R.C. Section 6323(a)--essentially, bona fide transferees for value who took their interest without knowledge of the lien. However, the Notice also makes it clear that in so-called "partial bar" states, transferors will not be so graced.

In cases of divorce, the Service will generally treat a spouse who received full title to formerly tenancy by the entirety property as having obtained the interest of the other spouse as an exchange for value. Of course, this would not extend to a transaction that the Service concludes is fraudulent. And, as is seen below, this rule only applies to pre-Craft transfers.

The Service's position with respect to property received via gift is somewhat unclear. It appears that it will only honor a transfer to a related party when there is some overriding equity on the side of the donee. Generally, no such overriding equity need be present if the donee is an arm's length third party, such as a charity.

The second question deals with deals the Service entered into with taxpayers pre-Craft. Here, the Notice takes the common sense approach that a deal is a deal and what is done is done. However, the Notice states that decisions as to uncollectibility can revisited in light of Craft.

The next four q & a's deal with the continued attachment of the lien in the case of subsequent events. Thus, notwithstanding a subsequent transfer to a third party in an arm's length transaction, the lien will continue to attach to one-half of the property. Similarly, neither a transfer incident to a divorce nor a subsequent mortgage will terminate a lien.

However, in all of these cases, the Notice sets up the possibility of some hard-nosed planning. Specifically, the Notice recognizes that death terminates the deceased spouse's interest in tenancy by the entirety property. The Notice states that if the deceased spouse is the spouse against whom the lien is filed, the property will no longer be encumbered by the lien. Of course, the converse is also true. That is, if the non-delinquent spouse dies, the entire property becomes subject to the lien. This brings new meaning to the phrase "Till death do us part."

A lien will continue to attach to property that is transferred in a transaction that "breaks the unity" of ownership if the deliquent taxpayer dies after the transfer. Thus, a lien will follow property conveyed pursuant to a divorce, because the divorce breaks up the unity of ownership. The lien will continue in effect even if the delinquent spouse dies after the divorce. Similarly, the lien follows property that is foreclosed upon, unless the delinquent spouse dies before the foreclosure. (Thinking about those planning possibilities?).

The final three q & a's deal with the ways in which the Service can turn its lien into cash. Interestingly, the Notice states that an adminstrative sale is "not a preferable method" of dealing with property, such as realty, that is not easily divisible, since it might be difficult to realize anything from the sale of a one-half tenant by the entirety interest. (For instance, how would a prospective purchaser value the likelihood of succeeding to the entire property if the delinquent spouse dies second versus losing the entire property if the delinquent spouse is the first to die.) Cash and cash equivalents, of course, do not pose this problem and the Service will just go in and take its share of these assets.

However, the Service believes that foreclosure, as opposed to an administrative sale, can be used to convert the delinquent spouse's interest into cash. The difference between an administrative sale and a foreclosure is that in the latter proceeding the entire property is sold and the proceeds divided. Thus, the Service does not face the problem of a sale at a depressed price due to the fact that the buyer is purchasing a somewhat speculative commodity.

Finally, the Notice discusses issues pertinent to discharge and subordination. In essence, the Service takes the position that the value of the lien is one-half of the equity to which it attaches. Thus, in the event of an insolvency proceeding, the Service gets one-half of the value of the property after payment of any senior encumbrances.

This post is somewhat longer than most of my postings, but I thought that it would be helpful to set forth the position taken in the Notice in some detail. Over the next week or two, I hope to offer some additional commentary on the Notice.

Sunday, July 27, 2003


The law firm that I had been with since this before weblog unveiled will be dissolving at the end of the month. Thereafter, I will be at Fisher & Winner, LLP just a block up the street.

Monday, July 21, 2003

Spy v. Spy

In Robinson v. U.S., the United States Court of Appeals for the Federal Circuit allowed the employer a substantial deduction for the "bargain element" inherent in stock distributed to an employee, even though the employee had filed a Section 83(b) election that valued the bargain element at zero. The opinion has been praised by Janell Grenier at Benefitsblog (see here). Regardless of the merits of the decision as a matter of tax law, the facts are vaguely reminiscent of an installment of Spy v. Spy.

The Robinsons owned all of the stock of a related group of corporations known as Morgan Creek. In 1995, they granted the COO, Gary Barber, 10% of the stock in the enterprise. Barber paid $2 million for the stock and filed a Section 83(b) election stating that the bargain element in the transaction, that is the fair market value of the stock in excess of what he had paid for it, was zero. As required by the regulations under Section 83, he sent a copy of the election to the corporation, namely himself acting as the COO.

In 1998, the Robinsons and Barber had a falling out. To resolve the dispute, in June of 1998, Morgan Creek redeemed Barber's stock for $13.2 million. Morgan Creek (presumably after the closing on the purchase of Barber's stock) issued him a revised W-2 for 1995 reflecting additional compensation of $26,759,800 (i.e., a stock valuation of $28,759,800, less the $2 million paid for the stock by Barber) as a result of the bargain element inherent in the 10% of the company's stock he received in that year. And, of course, Morgan Creek claimed an ordinary deduction for compensation paid to Barber in 1995 of the $26,759,800 bargain element.

The Service argued that Morgan Creek was barred from taking the deduction since the corporation's deduction was limited to the amount included in Barber's income. Since Barber had included nothing in his income, the Service's position was that Morgan Creek was not entitled to any deduction. The Court of Appeals, reversing the Claims Court, disagreed, holding that the term "included" means not the amount actually shown on the employee's return, but also the amount that, as a matter of law, should have been included on the return.

I will leave the analysis of the legal questions involved in the decision to commentators like Grenier. Instead, I will focus on the human factors behind the case.

I don't know whether in 1995 the parties addressed the Section 83 issues inherent in the stock grant to Barber. I'm willing to bet that they did not and that Barber, finding a vacuum, seized upon it to structure the transaction to confer some tax benefits on himself. Later, however, in the course of what must have been acrimonious negotiations over Barber's departure from the company, the company (read: the Robinsons) realized that it could settle its dispute with Barber and, as soon as the ink was dry on the contract, amend the 1995 returns to obtain tax benefits that would substantially fund the settlement. Thus, Morgan Creek paid Barber $13.2 million, but its amendment of the 1995 income tax returns resulted in federal income tax benefits of over $8.85 million, plus interest from 1995. Of course, Morgan Creek will likely enjoy additional state income tax benefits as well. Assuming the state tax benefits to be about $2 million, the company virtually broke even on the deal, since Barber had paid $2 million for the stock. (The arithmetic: $8.85 million, plus $2 million, plus $2 million, plus interest, comes pretty damn close to $13.2 million.) Barber, on the other hand, could end up with additional tax on $26,759,800, plus substantial penalties and interest from 1995, and a long term capital loss in 1998, that he may or may not be able to use, of about $15 million. Not a pretty picture.

The case illustrates the virtue of having both sides (i) recognize that there are Section 83(b) issues inherent in any grant of an equity interest to an employee, and (ii) agree to a consistent (and reasonable) position with respect to the manner in which the "bargain element" is to be reported.

Accepting an Invitiation

The SW Virginia Law Blog on the 20th noted two articles in the Virginian-Pilot (here and here) that reported that "[i]nsurance companies licensed to do business in Virginia can only underwrite group policies to cover family members defined as spouses or dependent children," thus excluding gay or lesbian partners and children of such a partner that the non-biological partner nevertheless considers as his or her progeny.

SW Virginia Law Blog then suggests that the problem was not one of state law, but rather of federal law, more particularly federal tax law, and it put out a request to other blogs that focus on business and tax issues, including yours truly, to offer their view of the locus of the issue. Well, here goes.

There is obviously a federal tax slant to this issue. As the SWVa Law Blog correctly noted, medical insurance benefits paid by an employer that provides insurance to a non-family member of the employee (meaning non-married "significant others" and children of such individuals) is taxable to the employee, unless the significant other or his/her child is (are) dependents of the employee. However, the authority cited by SWVa Law Blog, CCA 200117038 makes it clear that a plan may provide benefits to such individuals, even though the benefits are taxable.

I am not admitted to practice in Virginia, but I suspect that the concept that is at the core of the problem the news articles focus on is that of "an insurable interest." This is a well-known concept in insurance law. In essence, one can only be the owner of a policy of insurance that insures against some hazard occuring to some other individual if the owner has an "insurable interest" in the person insured. Thus, I cannot obtain a policy of insurance on the authors of the SWVa Law Blog because, even though I like reading their publication, I do not have an insurable interest in their lives. Going one step further, insurance companies have been found to be liable for damages for the tort of "insuring" when they enter into contracts of insurance with an individual with no insurable interest in the named insured party. (The damages are usually derived from the premature death of the named insured due to the active intervention of the policy owner. In simple English, someone buys a life insurance policy on someone else's life and then knocks them off to obtain the proceeds. I am willing to bet, however, that for every lawsuit for the tort of insuring, there have been fifty murder mysteries based on the practice.)

The question originally posed by the SWVa Law Blog was whether this was an instance of state law creating a due process or equal protection issue. To the extent that my hypothesis as to the derivation of the rule discussed in the newspaper articles is correct, I believe that the application of the state law does create a Constitutional issue. There would seem to be no question but that an individual has a strong interest in seeing to it that the medical needs of the others in his/her household are met. A state law that attempt to stretch the concept of "insurable interest" to bar the issuance of such coverage is nothing more than an attempt to limit the free association of individuals based upon their marital status or sexual orientation by making it difficult or more expensive for them to obtain medical insurance for everyone in their household.

Friday, July 18, 2003

Manic's Better Than Depressed

I previously commented on the case of Keeley v. Commissioner, a Tax Court summary decision that denied relief from the 10% penalty imposed on a premature withdrawal from a qualified plan. The relief had been sought because the taxpayer suffered from clinical depression and contended that he was entitled to relief because he was disabled. The Court denied relief because the taxpayer's condition did not require that he be institutionalized or have constant supervision.

I criticized the opinion, noting that it relied on a regulation that was more restrictive than the Code required and that was inconsistent with current treatment modalities.

Tuesday, in the case of Mary L. Coleman-Stephens v. Commissioner, the Tax Court reached an entirely different conclusion based on essentially identical facts. Because Keely was a summary disposition and could not be relied upon as precedent, the Court in Coleman-Stephens did not seek to harmonize its conclusion with that of the prior opinion.

Since Coleman-Stephens, like Keely, is a summary disposition, taxpayers cannot rely upon it for authority. Given the relative small amounts involved in these cases (Coleman-Stephens involved only $510 in taxes), they are unlikely to get appealed to the circuit court level. The Tax Court ought to step in and issue a formal opinion, even if it's only a memorandum decision, addressing the issue. Better yet, the Service might issue a ruling stating that it now concludes that the regulation is overly broad and, to the extent that it requires institutionalization or some other type of custodial care before the penalty can be avoided, it will be disregarded.

Monday, July 14, 2003

One Tough Veil

With the possible exception of claims for intentional infliction of emotional distress, I doubt that there is no action that is bruited around more often and results in fewer successful prosecutions than attempts to pierce the corporate veil. The recent opinion in the case of Iceland Telecom, Ltd. v. Information Systems & Network Corp. illustrates the rather restrictive limits placed on this doctrine, particularly in Maryland.

Iceland Telecom brought the action against Information Systems & Networks Corp. ("ISN"), ISN Global Communications, Inc. ("Global"), and an individual, Arvin Malkani ("Malkani") for breach of contract and unjust enrichment. Neither ISN nor Malkani were parties to the disputed contract. Iceland Telecom sought to hold them liable for the obligations of Global via the application of the piercing the corporate veil doctrine, seeking to apply either the "instrumentality" theory or the "alter ego" theory, or because Global allegedly acted as the agent for ISN and Malkani.

To say the least, Global was operated on a fairly informal basis. It never held stockholder or director meetings. Two of the three individuals who the extant corporate documents indicated were directors (Malkani's mother and sister) apparently did not know that they were directors. ISN picked up most of Global's expenses and Malkani, Global's president, had his salary paid directly by Global. Global shared ISN's office space, with the rent being paid by ISN without any contribution from Global. Indeed, Global used ISN's phone numers, office furniture, and some of its office staff.

Significantly, in the negotiations leading up to the execution of the contract, it often appeared that Iceland Telecom was dealing with ISN. For instance, Malkani, negotiating on behalf of Global frequently referred to that company as ISN. In fact, the court specficially stated that Iceland Telecom "thought it was dealing with ISN." However, the written contract executed by Iceland Telecom identified Global as the other contracting party.

Nevertheless, the court concluded that neither the piercing the veil doctrine nor the agency doctrine applied to this case. The court emphasized that the Maryland courts had set the bar high with respect to the ability to pierce the corporate veil (quoting Dixon v. Process Corp., 38 Md.App. 644, 645 (1978) to the effect that it is a "herculean task" for a creditor to attempt to "rip away the corporate facade.") The court rejected the approach outlined in the well-known 4th Circuit case of DeWitt Truck Brokers v. W. Ray Fleming Fruit Co., 540 F.2d 681 (1976) where the court, applying South Carolina law, allowed the corporate veil to be pierced because of such factors as the lack of corporate formalities, gross undercapitalization, and the non-functioning of officers or directors other than the sole shareholder. Instead, the court concluded that, under Maryland law, nothing short of actual fraud would suffice to sustain a veil piercing effort.

Iceland Telecom's attempts to rely on an agency or an agency by estoppel theory to impose liability were similarly unavailing. Iceland Telecom had, after all, entered into a written contract that had clearly identified the other party as being Global. There was no evidence that it believed that Global was acting as ISN's agent nor that it entered into the contract upon reliance upon a belief that Global was acting as ISN's agent. Thus, neither of these two "agency" theories could apply.

Even though I've used it as authority, I've always thought that DeWitt Truck Brokers was problematic. After all, most, if not all, closely-held corporations have significant gaps in their adherence to corporate formalities. The rationale behind veil piercing should be anchored in the rational expectancies of the various actors. A plaintiff should not be able to look beyond the limited liability shield of a limited liability entity if it entered into a contract with full knowledge that there were limited liability walls in place. Only if the plaintiff suffers loss that is unexpected (e.g., being told that the entity was solvent, when, in fact, the owners were draining it of assets) should it be able to avoid the limitations in collectability that it tacitly acknowledged when it entered into the deal.

Sunday, July 06, 2003

Seeing Double?

Subscribers may have noticed that they have been getting two copies of each posting. The reason is that for several months I have attempted to use a subscription service called Bloglet. While subscription requests found their way to Bloglet (via the subscription box on the right), for some reason the postings were never circulated. In response, I created a mailing list and copied all of the addresses in Bloglet to that list. Each posting was directed to circulate to the list.

This weekend, Bloglet suddenly began working again. Of course, subscribers began getting each posting twice, once from Bloglet and once from my mailing list. I will cure the problem tomorrow and subscribers will be back to getting only one copy of each posting. One other housekeeping note.

I have finally figured out how to syndicate this weblog via RSS coding. By the end of the week there should be a way to click and get the RSS syndication information.

Saturday, July 05, 2003

More on Verne

David Giacalone at ethicalEsq has offered some comments on my posting Putting Strains on My Friends about the Verne opinion. Although I agree with most of what he has to say (he does a good job, for instance in detailing most of the salient facts that were not presented in the opinion), I have one area of disagreement.

Specifically, Dave states that "[i]f Verne never held himself out as being an attorney and he reminded his clients that they might want to consider getting legal advice or having additional documents drafted for their business, he may have been giving them just what they wanted and needed -- and chose -- given their situation and their willingness to risk future problems." (Emphasis is Dave's.) I'm not at all certain that this clears Verne under the circumstances.

One of the lessons I learned in law school is that it is less important to know the answer to a question than it is to know the correct questions to ask. Theoretically at least, lawyers are by training supposed to be able to ask the right questions. Accountants, as to the majority of issues that go into operating agreements, for instance, simply do not have this training.

I think that Dave is on the right track when he suggests various elements of cost benefit analysis that should go into the decision as to whether Verne should be penalized for his actions or omissions. However, in many cases, even highly skilled and experienced counsel do not have the knowledge to make the appropriate cost benefit analysis. By way of example, assume that most small businesses, such as Verne's clients, typically rely on a form LLC operating agreement that does little more than restate the default provisions in the state's LLC act. Is the lawyer who prepares such a document (i) underlawyering, (ii) overlawyering, or (iii) getting it just right. As I suggested in my first post, I really don't know the answer to this question.

Friday, July 04, 2003

Government Undercover Uncovered

I don't ordinarily use my postings to announce links to specific websites, but I'll make an exception today.

MIT just opened its Open Government Information Awareness site. The site offers a remarkable amount of information about all three branches of the federal government. The amount of information now at your fingertips is simply daunting. By way of example (and certainly not in limitation), the site gives a list of contributors to the campaigns of members of Congress, a detailed listing of the expenditures of those members, and their financial disclosure filings.

Well designed sites such as this raise any number of questions. For instance, given the proliferation of bloggers of all stripes (both in topic choice and political viewpoint) and the ready accessibility of information, the market for commercial alternatives, newspapers for instance, would seem to be seriously eroding. The implications are huge.

In Baltimore, I grew up with three daily newspapers, The Sun (often known to residents as The Morning Sun), The Evening Sun, and The News American. We're now down to just The Sun. Since you can get The Washington Post, The New York Times, and The Wall Street Journal delivered to your home or office, The Sun becomes a secondary (or, given the web, a tertiary) source of national and international news. It is thus limited to being a primary source only of local news. And, even here, is challenged by The Washinton Post with respect to statewide coverage. Give The Sun the competition of a few good local bloggers and it's out of business. I suspect that the knowledge of its tenuous position by its reporters was one of the reasons they made significant concessions in their most recent contract negotiations with the paper.

2003 State Tax Update

The Spring issue of Tax Talk, the newsletter of the Section of Taxation of the Maryland State Bar Association has two summaries of tax legislation passed in the recent session of the Maryland General Assembly. One is by Evelyn Pasquier, the other by the Comptroller's Office.

H.B. 438 is worthy of note because it imposes upon various officers and owners of corporations and LLCs personal liability for unpaid vessel excise that the business entity is required to collect and pay over. The language is identical to a similar provision with respect to sales tax that I argued, to no avail, constituted a violation of due process. It’s significant because previously the sales tax provision stood alone in its sweeping imposition of personal liability. (OK, I'm a sore loser.)

Now that this broad imposition of liability has been extended with respect to another tax, there is a possibility that it might be further extended. For instance, the failure to collect and pay over withholding taxes might create personal liability by virtue of an individual's status rather than, as is currently the case, the individual's dereliction of duty.

Thursday, July 03, 2003

Putting Strains On My Friends

While some of my best friends are accountants, I may be straining our friendship with this posting.

The Ohio Supreme Court, in the case of Columbus Bar Assn. v. Verne, recently enjoined an accountant from "preparing legal documents that constitute the unauthorized practice of law." Verne, the accountant in question, had formed an LLC on behalf of two of his clients by drafting and filing articles of organization with the Secretary of State. The articles used, as a baseline, forms that were available in the secretary of state's office.

In the real world, the practice of law by accountants, insurance agents, stock brokerage houses, and banks is rampant. A few good lawsuits resulting in liability might encourage a reduction in the unlicensed practice of law.

The opinion correctly focuses on the types of advice that clients need that are particularly within the province of attorneys, namely those issues that ought to be reflected in an operating agreement. However, in its conclusion, the Court focuses on the one area in which Verne’s transgression was relatively benign: the drafting of the articles of organization. Thus, the order merely enjoins him from "preparing legal documents."

In fact, as the opinion reveals, Verne's sins that caused his clients serious harm were not found in the simple document that he drafted, but in the complex document that he didn't even think about. Verne failed as a lawyer because he apparently did not even attempt to explain to his clients the importance of addressing and memorializing the various elements of their deal. The order does not focus on this problem. And, perhaps, it cannot. After all, it would come dangerously close to an infringement on free speech rights to block Verne from opining, to clients or prospective clients, as to the relative merits of different types of entities and the issues that should be addressed in organizing a business.

Going one step further, however, a more difficult issue underlies this case. What should it cost to form a relatively simple business deal? In this sense, law faces the same economic problem that medicine faces. In medicine, doctors often order or perform too many tests in order to reduce their exposure to malpractice claims. In forming a business, lawyers face the problem of how detailed an operating agreement (or shareholders' agreement or partnership agreement or lease or etc.) needs to be in order to meet the needs of the client and, to cover all of their bases, there is a tendency to "overlawyer" a deal.

Of course, "overlawyering" is in the eyes of the beholder.

Although no facts as to this are set forth in the opinion, I'm willing to bet that Verne's clients' business involved little initial capital and they were operating on a shoestring. How much upfront capital should they be willing to spend to draft the "appropriate" documents addressing all of the "pertinent" issues? Appropriateness and pertinency are, after all, fluid concepts. Maybe the default provisions in the Ohio LLC statute were sufficient for their purposes. Of course, Verne probably lacked the training (and certainly lacked the appropriate license) to give his clients the requisite information that would have allowed them to make a knowing choice with respect to these matters. Thus, his real crime was not the document he drafted, but the document he didn't draft.

Two other points about the opinion.

First, I had not previously been to the Ohio Supreme Court's website. The opinions give not only the "book" official citation (that is, a citation to the hard bound volumes of published opinions) but an official "cyber" citation as well. All courts should emulate this practice.

Second, the Court's opinion cited as authority Henning & McQuown, Ohio Limited Liability Company: Forms and Practice Manual (December 2001). A disclaimer: I have a slight (very slight) financial interest in that publication, but (and?) I was happy to see it relied upon as authority.

Wednesday, June 11, 2003

An Act of Faith

One of the best things about participating in Bar activities is that you get exposed to a group of people who have a high degree of pride in their profession. That is, for them, being a lawyer is not merely a job, but a calling as well.

Now most of those who populate these meetings are what I call "average smart guys." That is, they're people who are well-educated and very bright, but not necessarily on the intellectual level of a Brandeis or Holmes. (By the way, on my best days, I rate myself at the lower rungs of the "average smart guy" scale.) Occasionally, however, you get the opportunity to meet people who go to the top of the scale and then beyond.

Once of the people who I've had the opportunity to meet and who is beyond the category of "average smart guy" is Susan Pace Hamill. (Ok, she's not a guy, but you get the idea.)

Susan was with the I.R.S. when LLCs were in their infancy and, I suspect, did a great deal to advance their acceptance within the Service. Subsequently, she became a professor at the University of Alabama School of Law. More recently, she has caused a bit of stir by publishing an article in the University of Alabama Law Review entitled An Argument for Tax Reform Based on Judeo-Christian Ethics. (Susan also has a Masters in Theology from the Beeson Divinity School.)

The article focuses on Alabama's tax system, labeling it unfair to the poor. It is easy to see, however, that a similar analysis would apply to most state and local tax regimes in this country, since, to a great degree, they all rely on regressive taxes. And the President's welfare bill for the wealthy? Although not a theologian, I think that to ask the question is to answer it.

In an editorial piece in the New York Times on Tuesday, Adam Cohen outlined the impact that Susan's article has had on tax policy in Alabama, moving even an arch-conservative governor to back tax reform. But don't hold your breath waiting for the alleged conservatives in the White House to get religion.

Hatchett Link

You can link to the opinion in Hatchett v. U.S. by clicking the title.

Sunday, June 08, 2003

A Hatchett Job

The Sixth Circuit just issued an opinion applying U.S. v. Craft. It is certain to send shivers down the spines of title insurance companies.

The case, Hatchett v. U.S., arose out of an assessment that grew from the tax fraud of Mr. Hatchett, formerly a prominent Detroit trial attorney. While the Craft case was wending its way to the Supreme Court, the Hatchetts had been contesting the government's attempt to enforce its lien against Mr. Hatchett by attaching their tenancy by the entirety property.

The Sixth Circuit admitted that the Supreme Court in Craft had enunciated "a new rule of federal law" since, prior to that decision, "several federal and state courts, including [the Sixth Circuit], as well as the IRS, had assumed that entireties property was excluded from the definition of 'all property and rights to property' as defined by the tax code." However, the Court applied the rule found in Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 752 (1995), that: "[W]hen (1) the Court decides a case and applies the (new) legal rule of that case to the parties before it, then (2) it and other courts must treat that same (new) legal rule as 'retroactive,' applying it, for example, to all pending cases, whether or not those cases involve predecision events."

The problem with Sixth Circuit's application of the rule is that it assumes that the litigation contesting the lien is the applicable "case" for purposes of the Reynoldsville Casket rule. The problem this raises is not obvious, but is extremely troublesome.

Assume that a tax lien was filed prior to the date the Craft decision was handed down. The parties subsequently (either before or after Craft, I don't think that it matters) sold tenancy by the entirety property to a third party bona fide purchaser for value. The third party's title insurer issued title insurance because, after all, the IRS's administrative practice in the state in which the property was located was not to attempt to levy against tenancy by the entirety property to enforce a lien against one spouse and the title insurer, correctly it seems to me, assumed that the lien did not attach to the property.

Now, the IRS attempts to assert its lien against the property. After all, Craft holds that the lien was good when it was initially filed and when the third party purchased the property. Presumably, the third party (or its title insurer) will attempt to judicially challenge the lien. However, by applying the Reynoldsville Casket rule to the "case," that is, the filing of the challenge to the lien, the third party loses because the case was instituted subsequent to Craft.

If the foregoing analysis holds, there are numerous tax liens that title insurers thought were dead, at least as to tenancy by the entirety property that had been conveyed, but which can presumably spring back to life. Thus, if the hypothetical third party in my illustration attempts to subsequently convey the property, should (or will) a title insurer issue a policy without a specific exception? And, if an exception is noted, will a lender participate in the purchase?

The Sixth Circuit's website is down this evening. When it comes back up, I will post a link to the Hatchett opinion.

Saturday, May 31, 2003

On-Line EIN/TIN--It's Baaaaaack!

Thanks to Andy Sandler who brought to my attention that the IRS EIN/TIN website was back in operation.

One aspect of the site that appears to be different is its treatment of LLCs. When applying for an EIN/TIN for an LLC, for question 8.a., one needs to check the box for the tax classification of the LLC (sole proprietorshp, partnership, or corporation) and then, on the spot in the question 8.a. area marked "Other," state whether the LLC is a single member or multi-member LLC. However, you should not check the box marked "Other."

Got that? Now go there.

Wednesday, May 21, 2003

A Depressing Opinion

I think that the general public believes that the answers to questions of law, in general, and tax law, in particular, are found by investigating arcane points of case law and statutory construction. Of course, that is often the case. However, just as often, answers turn on facts and knowledge that is outside of the hermetic world of cases and statutes. Oliver Wendell Holmes was right: "the path of law is experience, not logic." This basic precept was ignored by the U.S. Tax Court in the case of Keeley v. Commissioner.

In 1996, Mr. Keeley left a well-paying job because in each of the previous 3 to 4 years at the job his compensation had been cut. He attempted to become a commissioned life insurance agent without success. As a consequence, in 1997 he had a mental breakdown. He suffered from and was treated for moderate to severe depression. His income from employment suffered as a result.

In 1997 and 1998, as a result of this diminution in income, he and his wife had to make premature withdrawals from their qualified retirement plans. In order to avoid the imposition of the 10% penalty on these premature withdrawals, they attempted to invoke the provisions of I.R.C. Section 72(t)(2)(A)(iii). That section provides that a premature withdrawal of funds from a qualified plan is not subject to the penalty if the taxpayer is disabled within the meaning of Code Section 72(m)(7) which provides that "an individual shall be considered to be disabled if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration. An individual shall not be considered to be disabled unless he furnishes proof of the existence thereof in such form and manner as the Secretary may require."

Section 1.72-17A(f)((2)(vi) of the Treasury Regulations gives, as an example of a disability, "Mental diseases (e.g., psychosis or severe psychoneurosis) requiring continued institutionalization or constant supervision of the individual." The Regulations also provide that an impairment that is remediable does not constitute a disability. Specifically, Treas. Reg. Section 1.72-17A(f)(4) provides that: "An individual will not be deemed disabled if, with reasonable effort and safety to himself, the impairment can be diminished to the extent that the individual will not be prevented by the impairment from engaging in his customary or any comparable substantial gainful activity."

The Court concluded that Keeley did not suffer from a mental disease because he did not require continued institutionalization or constant supervision. Additionally, the Court concluded, without any real discussion, that Keeley's condition was not irremediable.

The first part of the Court's conclusion is based on precedent (i.e., logic) not real world experience. Anyone who has walked through the District of Columbia or any other major city should be aware of the mentally impaired homeless who populate the streets. They're there because we have medications available that allow us to dump them there and we thus avoid the expense of "continued institutionalization or constant supervision" of these individuals. Nevertheless, no one would argue that they suffer from mental illness. To pretend otherwise is simply to ignore reality. And, in this case, it was clear from the evidence presented that Keeley actually suffered from mental illness. However, the court applied the restrictive definition of the concept found in the regulations (but absent from the statute).

The court may have reached the conclusion that Keeley's condition was not irremediable based on the fact that, by 1998, he had been able to obtain gainful employment. However, the test of whether the disability is reasonably expected to be of long-continued and indefinite duration should be made based upon the condition of the taxpayer when the withdrawal from the qualified plan is made. In this case, at least in 1997, it seemed clear that Keeley's depression met this standard and there was no evidence to the contrary.

The case is also troubling because the court ties the overly restrictive test for disability set forth in the regulations to the statutory provision in Section 72 that requires the taxpayer to provide "proof of the existence [of a disabling mental illness] in such form and manner as the Secretary may require." Here, the court mistakes the grant of authority to set forth the manner in which the disability must be reported with a grant of authority to the Treasury define what constitutes a long-term disability for purposes of the statute.

The best part of the decision is that it is a summary disposition and cannot be treated as precedent for any other case. Thus, the Court is not bound by the opinion and free to ignore the holding in the future.

Monday, May 19, 2003

Update on IRS Web EIN/TIN Applications

Apparently, the on-line TIN process has, at least temporarily, been suspended. No explanation has been offered by the Service.

If anyone has additional information on this, could you please pass it along through the posting of a comment. Thanks.

Sunday, May 18, 2003

Humpty Dumpty On a Roll

Humpty Dumpty articulated a principle that remains the lodestone of contract interpretation: "When I use a word . . .it means just what I choose it to mean-neither more nor less." The problem that gives rise to most contract litigation is HD’s admonition that: "The question is . . . which is to be master-that's all." (For the complete quote, go here.) A recent LLC case out of Connecticut, brought to my attention by Professor Gary Rosin, illustrates the hazards of not exercising the power of the master.

In Radding v. Freedom Choice Mortgage, LLC, Radding was an at-will employee of Freedom Choice, a mortgage broker. In late 1995, Freedom Mortgage instituted an incentive profit sharing plan for certain of its employees wherein the employees became members of the LLC. The LLC's operating agreement had a provision that no member of the company would be eligible to receive income from the production bonus or profit sharing programs until he or she had been a member for one full calendar year.

The admission of Radding and several other employees as members to the company was memorialized in an amendment to Freedom Choice's operating agreement that was dated December 12, 1995. That amendment stated that Radding and the other employees had become members of the LLC as of that date.

While Radding did not sign the operating agreement until December 28, 1995, he did execute a waiver of workers' compensation benefits on December 22, 1995, asserting that the company did not have to provide workers' compensation insurance coverage on him because he was a member of the LLC.

Radding and the principal owner of the company got into a dispute in late 1996. As a result, Radding was discharged as an employee on December 13,1996.

As a threshold matter, the company argued that Radding was not entitled to any benefits for the 1996 year since he had not been a member of the LLC for a full year. However, the court reviewed the terms of the operating agreement which provided that the date a person becomes a member "shall be stated on Schedule A [to the operating agreement]." The minutes to the meeting of the owners of the LLC, held on December 12, 1995, adopting the revised Schedule, stated that Schedule A was "hereby" amended to include Radding and the others as members. The court's conclusion was fortified by the fact that Radding was holding himself out as a member of the LLC at least by December 22, prior to the December 28, 1995, date that he executed the operating agreement.

What no doubt came as even a greater surprise to the principal owners of the company was the conclusion that Radding was still a member of the company even after he was discharged as an employee. The reason was that while the majority owners of the LLC could remove an individual as a member, they hadn’t bothered to formally do so. Thus, the court concluded that Radding remained a member of the LLC through at least 1998.

The lesson of Humpty Dumpty is not merely that one who drafts a contract can be the master of its terms. Humpty Dumpty also teaches that, because one is the master of the terms of a written document, one is bound by the common sense meaning of the words unless a "special meaning" (that is, a meaning defined by the master) is intended.

Thursday, May 08, 2003

Look Before You Leap

A short opinion recently handed down by Judge Nickerson of the United States District Court for the District of Maryland illustrates the potential dangers inherent in entering into a settlement agreement without complete assurance that the terms of the agreement can be fully consummated.

Under the facts of the case, Columbia Gas Transmission Corp. had brought an action in federal court based upon a federal, as opposed to state, claims. The parties had entered into a settlement agreement that called for the action to be dismissed without prejudice, subject to the right of either party to move to reopen the case within thirty days. If neither party moved to reopen within the thirty day time period, the dismissal became a dismissal with prejudice.

After the thirty day period had expired, Columbia Gas moved to enforce the settlement agreement. The Court rejected the request holding that the settlement agreement was a state law contract that replaced the original claims. Since the settlement agreement was a state law contract and there were no longer any federal claims upon which the court's jurisdiction could be invoked, Columbia Gas's motion was dismissed.

As a consequence, Columbia Gas, which has now lost its previous (presumably greater) claims, must bring a totally new action in Maryland state court to enforce or obtain damages under the settlement agreement. While the state court action will likely be limited (i.e., what were the terms of the agreement, have they been breached, and, if so, what are the damages), Columbia Gas is still exposed to greater costs and will lack the advantage of having the matter heard by the judge who was presumably familiar with the settlement agreement and the underlying dispute. As a practical matter, Columbia Gas might have to make further concessions to the defendant since its upside is likely limited. Not a happy result.

Tuesday, May 06, 2003

Update on LLCs & EINs

The IRS website setting forth the directions for obtaining EINs over the web now has been modified to provide additional instructions for LLCs. These instructions make it clear that LLCs can apply for EINs over the web and direct how to do so. The revised web page can be reached by clicking here.

Saturday, May 03, 2003

God Bless The Child Who's Got His Own

Delauter v. Shafer, decided by the Court of Appeals on May 2, is a little outside of my normal haunts, but the facts are somewhat interesting. Going beyond the specific holding of the case, it gives an insight into the dynamics of dispute resolution through the courts.

In 1944, Shafer married one of the daughters of Mr. and Mrs. Deibert. Shafer and his wife lived with his parents until 1968 when then moved to the Deibert family farm. Mr. and Mrs. Deibert had previously moved their personal residence to a parcel across the road that they had purchased, but, even after the Shafers moved in, they were on the farm virtually every working day.

The Shafers paid virtually nothing to the Deiberts over the years. In fact, they had borrowed money from the Deiberts from time to time. The Deiberts paid all of the property taxes on the farm, and, except for certain improvements that the Shafers had made, the Deiberts paid all of the insurance premiums on the farm and its improvements.

Mr. Shafer declared bankruptcy in 1996. He did not list the farm as an asset in his bankruptcy estate.

Mr. Diebert died in 1990 and Mrs. Diebert died in November, 1998. In May of 1998, Mrs. Shafer died. In Mrs. Diebert's will she made a provision with regard to the farm, declaring it to be an "advancement" on the bequest to Mrs. Shafer under the will, with the amount of the advancement being $125.00 times the number of months that the Shafers had lived on the farm from March 1, 1969. Subject to the advancement and some other advancements noted in the will, Mrs. Diebert bequeathed her estate in equal shares to her children.

Trouble had begun brewing even before Mrs. Diebert's death. Shortly before she died, Mrs. Diebert's two other daughters, acting under a power of attorney from their mother, entered into a contract to sell the farm for a little less than $600,000.00 and attempted to get Mr. Shafer to vacate the farm. Mr. Shafer refused to vacate the premises. After Mrs. Diebert's death, these same two daughters, acting as the personal representatives of her estate, brought an ejectment action against Mr. Shafer.

Shafer responded with a counterclaim that a lease had existed for over 20 years, but that no rent had been paid or demanded. Thus, under the provisions of Section 8-107 of the Real Property Article of the Maryland Annotated Code, he argued that the estate could not seek rent or any right of reversion with respect to the property.

The matter was tried before a jury. The jury returned a special verdict in favor of Shafer, finding that a lease existed and that no rent had been paid or demanded for more than twenty years. Consequently, the trial court entered a judgment declaring that Shafer had title to the property.

The Court of Appeals rejected Shafer's position, resting its conclusion on two principles.

First, one of the pivotal issues was whether Shafer's possession of the farm was pursuant to a license from his in-laws or pursuant to a lease. The Court concluded that, because there was no dispute as to the underlying facts, the question of whether the arrangement was a lease or a license was a question of law for the court to determine and should not have been submitted to the jury.

Second, the Court outlined the distinction between a license and a lease. In particular, two elements that would argue that Shafer had leased the farm, the right to exclusive possession and the obligation to pay rent, were not present. Shafer lacked the right of exclusive possession to the farm, since the Dieberts had both been present at the farm virtually every working day, ceasing that activity only when physical infirmity overtook them. Additionally, it was clear that there was never a request or demand that either of the Shafers pay rent. Thus, the Court concluded that the arrangement was a license, not a lease. Consequently, the Court held that the provisions of Section 8-107 were not applicable and it reversed the circuit court.

What are the lessons with respect to dispute resolution?

First, it is likely that, as a practical matter, the case could not be settled since Shafer lacked the financial resources to make a reasonable settlement. After all, for the first 24 years of his marriage he lived at home with his parents. Thereafter, he lived rent free on his in-laws' property. Even then, he had to declare bankruptcy.

Second, the circuit court had abdicated its role when it allowed a jury to make the legal conclusion that the property was held by Shafer pursuant to a lease. To the extent that trial judges allow basic legal questions (as opposed to factual questions) to be resolved by a jury, litigation becomes a crap shoot. Litigants such as Shafer, who feel that they have nothing to lose, thus have an incentive to go to the legal gaming table.