According to a press release published by the office of U.S. Rep. Kendrick B. Meek (D-FL), he has "introduced legislation amending the Internal Revenue Code to provide tax relief to individuals harmed by Ponzi schemes who have paid taxes on 'phantom' earned income. The legislation, H.R. 1159, was referred to the Ways and Means Committee." Thanks to Bruce Givner for the tip.
—These two items come from Bruce Givner: The U.S. Court of Appeals for the Ninth Circuit, in a Feb. 24 unpublished opinion, agreed with the U.S. Tax Court that Marcia Green was required to pay income tax on statutory attorney's fees awarded under the California Fair Employment and Housing Act (Green v. Commissioner, 9th Cir., No. 07-73111, 2/24/09). —And the Treasury Inspector General for Tax Administration released a report finding that the Internal Revenue Service's Office of Professional Responsibility (OPR) was unaware of a significant number of licensed tax practitioners who promoted tax shelters and were still eligible to represent taxpayers before the IRS. The report (No. 2009-10-039) is available here.
In the January 27, 2003, issue of the Planned Giving Design Center, LLC, newsletter, the authors of the study issued an updated report confirming that estimate. It has now been 6 years since their update, and the market has gone up and down since then.
Currently, in February 2009, four factors have come together to make this a once-in-a-generation opportunity to do estate tax planning, whether that $41 trillion estimate is high or low. The window on this opportunity will close sometime in the next year or two. Here are the four factors:
(1) The lowest interest rates since the IRS started requiring interest rates for transfers among family members;
(2) Low asset values, whether for closely held businesses, investment real estate, or publicly traded securities;
(3) High valuation discounts (the discounts for lack of control and lack of marketability are inversely related to the stock market); and
(4) Introduction of a bill—H.R. 436—on January 9, 2009, that would eliminate valuation discounts on transfers of passive assets among family members and eliminate the lack of control discount for transfers of interests in closely held entities among family members.
Advisers should put on their Elmer Gantry hats and preach the true religion to their clients to take advantage of this opportunity to transfer wealth now, and recognize that the same structures used to reduce the value of assets for estate tax purposes also have creditor protection benefits.
—The Tenth Circuit has upheld the insider trading conviction former Qwest CEO Joseph Nacchio. WSJ, 10th Cir. —Where is your god now, Corky Ra? The U.S. Supreme court has ruled against Summum, a religious group that sought to have its Seven Aphorisms placed on a monument in a public park. Althouse, PrawfsBlawg.
A large number of middle-class litigants find the cost of legal representation prohibitive. Clients have resorted to self-representation out of economic necessity. Many litigants opt for partial self-representation because they have no financial alternative. A litigant has decided to handle the case but needs some guidance on procedure or an attorney to handle the specific tasks that he or she cannot handle. In this situation, how can an attorney handle some aspects of a civil case and protect against exposure in this frigid economy? Unbundling has become a practice in family law. Do any attorneys unbundle legal services in civil non-family law matters? If they do, how do they do it? Read more here.
Two recent appellate decisions (Volkswagen and TS Tech) have significantly changed the legal landscape regarding motions to transfer patent cases in the U.S. District Court for the Eastern District of Texas. The district's initial opinions following these appellate decisions suggest that more cases will be transferred from the Eastern District, but that some types of cases—particularly multidefendant cases with parties that are distributed across the country—may remain. Since the Eastern District has become one of the leading venues for patent litigation, the impact of these rulings could have a major influence on the distribution of patent cases throughout the country.
In Ball v. FleetBoston Financial Corp., 164 Cal.App.4th 794 (2008) the plaintiff filed a declaratory relief cause of action (CCP §1060) challenging the arbitration clause in a credit card contract on grounds of unconscionability. The Consumer Legal Remedies Act (CC §1770) statutorily provides grounds to file a complaint alleging a consumer contract containing an unconscionable arbitration clause. The court held the CRLA does not apply to credit card transactions, nor can the plaintiff obtain a remedy under the declaratory relief statute. The California Supreme Court has agreed, and in Meyer v. Sprint Spectrum L.P., 2009 WL 197560 held that in the absence of a dispute resulting in damage to the plaintiff, a declaratory relief cause of action is not viable to challenge an arbitration clause on grounds the remedies are unconscionable. In California a party files a petition to compel arbitration whether litigation is on file or not (CCP §§1280 et seq.). In federal court, when litigation is on file, a party files declaratory relief seeking an order to arbitrate. If no litigation is on file in federal court the moving party must first establish jurisdiction, usually by diversity of the parties, then file an action for declaratory relief or summary judgment.
—The 2008 election saw a number of issues involving copyright. On Thursday the 19th, from 7 to 8:30 p.m. at the Luxe Hotel Bel Air, the Association's Intellectual Property Section will present a panel discussion on this topic. Lincoln Bandlow, Elena Muravina, and Ben Sheffner will cover:
The use of copyrighted material in campaign ads and videos, and the fair use issues it raises.
The use (and abuse) of the DMCA takedown process, and the McCain campaign's response to improper takedowns.
Analysis of complaints by musicians about their songs being used at McCain rallies. Is getting an ASCAP/BMI license enough? Do musicians have a right of publicity or Lanham Act claim if a song they perform is used without their permission?
Right of publicity issues. Could Paris Hilton and Britney Spears have sued John McCain for putting them in ads?
Artist Shepard Fairey's lawsuit against the Associated Press regarding the "Obama Hope" poster.
The Jackson Browne v. McCain lawsuit arising from the use of "Running On Empty" in a video by the Ohio Republican Party, which involves anti-SLAPP and 12(b)(6) fair use motions that Lincoln recently filed.