Monday, July 31, 2017

Yale Study Finds One-Third of FDA-Approved Drugs Have Safety Issues

Originally published by robertslawfirm.

>On May 9, 2017, a new study by Yale researchers in the Journal of the American Medical Association(JAMA) revealed that approximately one-third of new drugs approved by the U.S. Food and Drug Administration (FDA) had safety issues…

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Tax Court Holds Foreign Partner’s Gain on U.S. Partnership Interest Redemption is Not Subject to U.S. Taxation

Originally published by Thompson & Knight LLP.

Posted by John Cohn, Todd Keator, and Kathleen Gerber

      John_Cohn      Todd Keator      Katie Gerber

In a recent case, Grecian Magnesite Mining, Industrial & Shipping Co., S.A., v. Commissioner, 149 T.C. No. 3 (July 13, 2017), the Tax Court declined to apply the principles of Rev. Rul. 91-32 when determining whether gain realized by a foreign partner upon the redemption of its interest in a U.S. partnership was effectively connected income with a U.S. trade or business (“ECI”) and, thus, subject to U.S. taxation.

Code Section 741 provides that gain from the sale or exchange of a partnership interest generally results in capital gain. However, any portion of the gain that is attributable to inventory or unrealized receivables of the partnership (“Hot Assets”) is treated as ordinary income under Code Section 751.  U.S. source capital gains realized by a foreign person generally are not subject to U.S. taxation unless they are ECI. Under Code Section 897, enacted under the Foreign Investment in Real Property Act (“FIRPTA”), U.S. source capital gains attributable to U.S. real property interests (“USRPIs”) are treated as ECI and, thus, are subject to U.S. taxation. When a foreign partner disposes of an interest in a partnership that owns USRPIs, FIRPTA applies a look-through rule such that any portion of the gain attributable to the partnership’s USRPIs is treated as ECI. Thus, the rules of Code Section 751 with respect to Hot Assets and Code Section 897(g) with respect to USRPIs apply an “aggregate theory” rather than an “entity theory” to determine the character and source of the gain realized upon a disposition of a partnership interest.

Under the source rules, Code Section 865(a) generally provides that income from sales of personal property are sourced based on the seller’s residency. Code Section 865(e) provides an exception to this rule pursuant to which income from sales of personal property that are attributable to an office or other fixed place of business in the United States is treated as U.S. source. Further, under Code Section 864(c), U.S. source gain from the sale or exchange of a capital asset that is ECI property is treated as ECI. The IRS position, as articulated in Rev. Rul. 91-32, is that when a foreign partner sells an interest in a partnership engaged in a U.S. trade or business, for purposes of applying these rules and determining the source and ECI character of the income, it is appropriate to treat a foreign partner’s disposition of its interest as a disposition of an aggregate interest in the partnership’s underlying property.

Background. The taxpayer in the Grecian Magnesite Mining, Industrial & Shipping Co., S.A., v. Commissioner was a foreign corporation that had no offices, employees or business operations in the United States other than through its ownership interest in a Delaware LLC taxed as a partnership. The partnership was engaged in the business of extracting, producing, and distributing magnesite in the United States. The taxpayer realized gain in both the 2008 and 2009 tax years as a result of the partnership’s redemption of its partnership interest. The taxpayer did not report any of the gain that it realized as a result of the redemption on its U.S. federal income tax return for 2008 and did not file a U.S. federal income tax return for 2009. The IRS determined that the taxpayer was subject to U.S. taxation on the full amount of the gain and issued a notice of deficiency.  The taxpayer conceded that the portion of the gain that was attributable to the partnership’s USRPIs was subject to U.S. taxation under Code Section 897(g), but disputed the IRS’s determination that the remainder of the gain was also subject to U.S. taxation as ECI.

Decision. The Tax Court declined to apply the principles of Rev. Rul. 91-32 and held that the portion of the gain that was not attributable to the partnership’s USRPIs was capital gain that was not subject to U.S. taxation. The Tax Court noted that a two prong test must be met for gains to be treated as attributable to a U.S. office and, thus, treated as ECI under Code Section 865(e): (i) the U.S. office must be a material factor in the production of the disputed gain; and (ii) the disputed gain must be realized in the ordinary course of the U.S. business. The Tax Court rejected the Commissioner’s argument that the test should be applied to a hypothetical sale of the partnership’s assets, stating that the Commissioner’s argument missed the mark. The Tax Court noted that if the Commissioner’s view was correct it would yield an “aggregate theory” general rule that would render “superfluous” the aggregate theory rules of Code Section 751 with respect to Hot Assets and Code Section 897(g) with respect to USRPIs. Both of these provisions presume an “entity theory” general rule for purposes of determining the character of the taxable gain realized upon a disposition of a partnership interest, to which the Section 751 and Section 897(g) “aggregate theory” rules are exceptions. Accordingly, the Tax Court applied the test to the actual redemption transaction, and determined that neither prong was met.

Implications. The IRS has not yet filed an appeal, or indicated if it intends to do so. If an appeal is filed, it likely would be filed in the Tenth Circuit. If the decision is not appealed or is sustained on appeal, the effect of the case will be significant for foreign partners in partnerships engaged in a U.S. trade or business. For example, some foreign partners that otherwise may have structured ownership of a U.S. partnership interest (generating ECI) through a U.S. blocker corporation may instead decide to forego use of the blocker where the exit may be structured as a sale of the partnership interest, as opposed to a sale of the underlying assets. Although earnings allocable to the foreign partner during the operations years may be ECI under this structure, under Grecian Magnesite, assuming there are no underlying USRPIs, the gain on exit may escape U.S. taxation entirely. Rev. Rul. 91-32 has long been criticized by practitioners as overreaching. The Green Book for fiscal year 2013 (i.e., the publication released by the Treasury Department each year to explain the Presidential Administration’s revenue proposals for the coming fiscal year) included a proposal to codify the IRS position articulated in Rev. Rul. 91-32 and impose a 10% withholding requirement on purchasers of partnership interests (similar to the withholding requirement imposed under FIRPTA, which was increased to 15% under the recent PATH Act of 2015) unless the seller provides a certification that it is not a foreign person or a withholding certificate from the IRS indicating that no or a reduced rate of withholding is required.[1] The proposal has appeared in each subsequent Green Book through fiscal year 2017. The Trump Administration has not yet included codification of Rev. Rul. 91-32 in its publicly available revenue proposals.

If you have any questions about the implications of this recent case or other ECI issues, please contact one of us or any of the other Tax lawyers at Thompson & Knight.

[1] Dept. of the Treasury, General Explanations of the Administration’s Fiscal Year 2013 Revenue Proposals.

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Texas Offers a ‘Second Chance” to First-Time DWI Offenders

Originally published by [email protected].

Texas is not known for being lenient on people charged with driving while intoxicated (DWI).  Even first time offenders are often hit with heavy sentences not to mention ongoing payments under the Driver Responsibility Program.

A new ‘second chance’ law for DWI offenders is a welcome measure that will help offenders get their lives back together, though.

The measure was signed by Governor Greg Abbot in June, reported KLTV.

It will benefit certain DWI drivers by allowing them to seal their record from public view.

The law is aimed at first-time DWI offenders only. If you qualify, you will be able to keep your drunk driving conviction concealed from potential employers or academic institutions.

Drivers who are heavily drunk won’t benefit from the ‘second chance’ law even if they are first-time offenders. It applies to offenders who recorded a blood alcohol content below 0.15.

Another important caveat is you will not be able to get your record sealed if you were involved in a wreck or you injured someone due to your drunk driving.

Defendants will lose the advantages afforded by the law if they fail to follow through with court orders.

Despite these restrictions, this legislation represents a breakthrough because DWI offenders could not previously seal their records.

A DWI conviction can be a major stain on your record. Prospective employers may think you have an alcohol or drugs problem and will be reluctant to take you on. Even a pending conviction can impact your job prospects.

Allowing first-time DWI offenders to seal their conviction can help them rebuild their lives.

The new law gives DWI offenders an additional incentive to comply with the terms of their court orders. Their records could be sealed more quickly if they agree to fit an ignition interlock device on their vehicles.

The new law allows a first-time DWI offender to apply for a non-disclosure, two years after their probation is over if they have an ignition interlock fitted for 6 months during that time period.

Without an ignition interlock that requires offenders to pass a breath test before their vehicle operates, they have to wait five years after probation to apply for a non-disclosure.

The new law won’t wipe a defendant’s record completely clear of their DWI conviction. Police officers will still be able to pull it up and it remains a felony if you are convicted of a third DWI.

See our DWI resources here, or talk to an experienced Dallas criminal defense lawyer if you have been charged with drunk driving.

 

The post Texas Offers a ‘Second Chance” to First-Time DWI Offenders appeared first on Dallas Criminal Defense Attorneys |State & Federal Lawyers.

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I’ll Sleep When I’m Dead: The Ignored Epidemic in the Legal Profession

Top Insights About Your Baby’s Rights After He or She is Born

Originally published by Bob Kraft.

Parents may not realize that newborn infants also have rights and protections afforded to them under the law. While these rights are not as clearly defined as those for older children and adults, they still afford even the youngest children protection from abuse and neglect. As part of caring for a new child, parents should understand these rights and their responsibilities as well as the actions they may take if their child’s rights are violated.

The Convention on the Rights of Children

The United Nations has published what many regard as the overarching authority on the rights of children that member states are held responsible for. While many of these protections will not come up in the day-to-day affairs of caring for children, they provide both a foundation and a framework from which all other children’s rights are established by various government authorities.

The Convention on the Rights of Children is especially important in terms of international law and how various countries may treat children born overseas or child refugees moving from country to country. These rights may come into play if a child is born outside of the country, to parent who is not a citizen or when legal disputes or matters of custody cross international boundaries.

The Importance of Name and Identity

Foremost among the protections and rights afforded to young children is the right to a name and identity. One of the first responsibilities of parents is to name their child and establish their identity. Parents may not always take this simple task as seriously as they should, but research has shown the importance of this act on a child’s lifelong mental health and well-being. Choice of a name and establishment an infant’s identity is not something to take lightly.

Injuries in the Hospital Setting

The most common setting for the abuse or neglect of infants and newborns is the hospital setting. Many hospitals and medical organizations make very clear the standards and expectations regarding the treatment of newborns. Even so, mistakes can occur. Injuries to newborns often arise due to birth complications or improper care in the delicate hours and days immediately after birth.

Birth complications can be serious medical emergencies and endanger the lives of both mother and child. While medical technology has come a long way in making human birth safe, it remains a laborious and sometimes life-threatening process. A birth complication may arise naturally, or it may be due to improper treatment or preparation of the mother by attending physicians. It is also possible that an overseeing physician makes a complication worse through negligence, inattention or misdiagnosis. Serious problems often occur within moments and may result in lifelong injuries to the child. When a serious complication does injure a child, parents may pursue a personal injury or medical malpractice lawsuit against the attending physician or hospital.

Rights to Privacy

Just like other patients, infants have the right to privacy with their medical records and personal information. Violation of a child’s privacy rights may be actionable under the law if the violation led to serious harm or damages of some kind. The ability to file a lawsuit for such a violation depends on state laws.

The rights of newborn children are just as real and important as those for any other human being. These rights protect the most vulnerable new members of the human population, and they are worth understanding and defending.

Author Info: Hannah Whittenly is a freelance writer and mother of two from Sacramento, CA. She enjoys kayaking and reading books by the lake. You can find her on Twitter.

The post Top Insights About Your Baby’s Rights After He or She is Born appeared first on pissd.com.

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New Report Criticizes TCEQ Enforcement Policies

Originally published by John McFarland.

A recent report by the Environmental Integrity Project and Environment Texas, reviewing results of state records reporting illegal air releases from oil and gas facilities between 2011 through 2016, finds that the Texas Commission on Environmental Quality imposed fines for less than three percent of 24,839 “upset” events, even though more than 500 million pounds of pollutants were released. EIP has also sued the Environmental Protection Administration for EPA’s alleged failure to prevent the TCEQ from issuing air permits that don’t comply with the Clean Air Act. EIP claims the TCEQ issues “unenforceable permits with illegal loopholes that render useless some of the most basic pollution control requirements of federal and state law.”

EIP and TCEQ debated EIP’s report, “Breakdowns in Enforcement,” in an article in the Midland Reporter Telegram.  EIP found that the Midland area had 2,000 upset incidents in the study period, releasing 34 million pounds of pollution, more than the Houston area. EIP’s report recommended that TCEQ should determine whether an upset event was preventable before deciding whether to pursue enforcement actions, and should consider repeat violators in determining enforcement actions. TCEQ agreed with both recommendations.

The three largest violators, according to the report, were Hess, ConocoPhillips, and DCP Midstream. Spokesmen for those companies told the Midland Reporter Telegram that they take pollution concerns seriously and were working to reduce emissions.

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Friday, July 28, 2017

Top 10 from Texas Bar Today: Disruption, Ducks, and Diesel

Originally published by Joanna Herzik.

To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.

10. New Texas Law to Allow Open Carry of Swords and MachetesSampson & BovĂ©, LLC @SampsonBove in Houston

9. Spotify in Hot Water Over Alleged Willful Copyright Infringement – Peggy Keene of Klemchuk LLP @K_LLP in Dallas

8. “Sovereign Immunity” Makes Texas Schools Virtually BulletproofChandler, Mathis & Zivley, PC @ChandlerLawTX in Lufkin and Houston

7. E-Commerce Disruption – Tenant’s TizzyCleve Clinton of Gray Reed & McGraw @GrayReedLaw in Dallas

6. Learning by Rote: Non-Competes for Insurance AgenciesZach Wolfe @zachwolfelaw of Fleckman & McGlynn, PLLC in The Woodlands

5. Lottery Liability LitigationDavid Coale of Lynn Pinker Cox & Hurst, LLP @600camp in Dallas

4. BBQ Season Brings Coverage ConundrumAnne-Marie Abarado of Hanna & Plaut, L.L.P. in Austin

3. Ducks Don’t Walk, Talk or Sign Partnership AgreementsLadd Hirsch of Diamond McCarthy LLP in Dallas

2. The Jury Demand Strikes Back (Opinions)Matthew A. Knox of Laura Dale & Associates, P.C. @DaleFamilyLaw in Houston

1. Dieselgate — Antitrust EditionBarry Barnett of Susman Godfrey L.L.P. @contingencyblog in Houston

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How Texas Gun Laws Play a Role in this Wrongful Death Case

Originally published by Austin Car Accident Lawyer.

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A wrongful death lawsuit involving an Austin detective could change the rulebooks for gun owners in Texas.

It’s now up to a Texas jury to determine if the detective was negligent by leaving her gun locked up, but within reach, of an “at-risk” youth.

One case that we are following involves the tragic suicide of a young woman. While visiting an aunt, the young woman used her partner’s gun to kill herself. The family of the young woman claims that the partner should have taken better care to stow the gun away from the teen’s reach – a negligent act that caused the death of their young daughter.

What makes this case interesting from a legal framework is that this wrongful death case could change the responsibility of gun owners in Texas if the Austin detective is found to have been negligent in storage of a weapon she uses for work.

Before her death, 16-year-old Breanna Lance had been living with her aunt, Molly Lance, and aunt’s partner Brenda Bermudez. On the night of her death, Breanna’s aunt called Bastrop police to report her missing. She said that her niece, an “at risk” youth was missing from her home.

Breanna Lance’s body was later found in Cedar Creek Park nearby, where her death was ruled a suicide. Reports say that Breanna took the gun out of Bermudez’s purse when she fell asleep. No criminal charges were filed in the city of Bastrop and the case was closed.

Now the mother of Breanna Lance, Audrey Grace Cervantes, filed a lawsuit in late July  charging that Brenda Bermudez acted negligently by leaving her duty pistol in a place that would be accessible by “at risk” Breanna.

The Lawsuit seeks $1 million for pain and suffering.

The question now is – was Bermudez acting negligently? It’s up to a jury to determine if Bermudez was acting negligently. Court documents say that Bermudez left her loaded semi-automatic weapon in her purse by the couch, then fell asleep. Bermudez claims that she placed the weapon in her purse, then locked it in a secure safe by her bed.

How does this affect gun ownership rights in Texas? This suit brings into question where individuals can safely secure their weapons. In the event of an emergency, would a licensed gun owner be able to defend their home if their weapon is locked away in a safe. There’s a competing interest in this case to protect children from gun accidents, and people’s ability to defend themselves in their homes.

“No Texas court has ever recognized a general duty to secure firearms or ammunition, so for Plaintiff to prevail, this court must, for the first time in Texas, determine that a citizen has a duty to secure firearms as to prevent their unauthorized use by a resident of the household.”

This is certainly negligence if the plaintiff’s counsel can provve that Bermudez violated Section 46.13 of the Texas Penal Code which states that “a person commits an offense if a child gains access to a readily dischargeable firearm.”

Photo by Austin American Statesman

Brenda Bermudez is a longtime detective in the Austin Police Department. In the past Bermudez was one of the faces of an Austin police department campaign to raise community awareness about preventing child abuse. As part of the campaign, Bermudez discussed sexual abuse she endured as a child and a teenager.

Today, Bermudez continues to investigate financial crimes. Her attorney maintains that Bermudez has not been placed on administrative leave at any time throughout the investigation of the death of Breanna Lance.

Previous litigation history: In 2014, Bermudez filed a suit against the city of Austin saying that she faced retaliation after reporting sexual harassment from male detectives in the human trafficking unit. She claims that the detectives harassed her because she would prevent “unnecessary encounters” between them and nude female human trfficking victims or suspects during undercover operations.

The case is set to be heard in Travis County district court on Oct. 9.

The post How Texas Gun Laws Play a Role in this Wrongful Death Case appeared first on McMinn Law Firm Austin.

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New Texas Law to Allow Open Carry of Swords and Machetes

Originally published by sampsonbove.


Many people are left wondering how a new law regrading swords, Bowie knives, and machetes in Texas will affect public places in Texas. As of September, along with a slew of other laws going into effect, adults in Texas will be legally allowed to openly carry knives with blades longer than 5.5 inches.
House Bill 1935, a bill lobbied for by national organization Knife Rights, repealed what many collectors considered vague wording in the law and will allow people older than 18 to carry blades longer than 5 ½ inches in public, including knives, swords and spears of any size.
“Carrying a sword down the street, carrying a Bowie knife down the street… completely legal. Machetes if you want to,” said general manager at the House of Blades in Fort Worth, Ahnna Escobedo (according to CBS news).
“I think it was more to give people more rights and to make sure they felt like they were free to carry what they wanted,” Escobedo said. “Texas move right there, sure.”
HB 1935 was originally shelved after police in Austin said a man killed a student at UT and injured three others with a large, hunting knife.
There are some places where the new law won’t apply — including schools, prisons, hospitals, amusement parks or places of worship. Long blades are still banned at sports events. And you can’t bring your sword into a bar, either.
“The idea that someone is walking down the street with a sharp object maybe larger than your toddler, that could be pretty alarming for people,” said Escobedo.
Some people feel the law will not change much for the public, finding it to be similar to the recently pass law regrading open carry guns.
Escobedo agrees, and said she is often more concerned about the smaller blades. “Just to be honest, the time and effort it takes to unsheathe something this large versus taking something like this out of your pocket, this is going to be a lot faster,” said Escobedo.
*Sources used in this article were curated from CBS News.

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“Sovereign Immunity” Makes Texas Schools Virtually Bulletproof

Originally published by Texas Personal Injury News.

Q: Is a Texas public school liable for personal injuries to students?

When you put your precious cargo on the school bus each day, you probably rest assured that the driver –and then later the teachers and staff –will keep your child safe from harm until they’re returned to your loving care.

You might assume that if your child suffered a personal injury due to the negligence of the school personnel, that you would be entitled to compensation for any damages and injuries from the school and its district through a personal injury lawsuit.

You might also figure that the doctrine of premises liability would protect your child if they were injured due to dangerous conditions or lack of proper maintenance on school property, just like it would if they or you were harmed on virtually anyone else’s premises.

But if you are in Texas, you’re living under a false sense of security.

The doctrine of sovereign immunity protects Texas public schools from lawsuits. “The only way a school and its district (including charter schools) can be successfully sued is if the injury occurred ‘out of the operation or use of a motor vehicle'”. And even then, rulings in several lawsuits demonstrate the courts’ tendency to practically bend over backwards in favor of the school district when interpreting what that phrase really means.

This immunity prohibits victims from recovering the type of compensatory damages typically awarded in personal injury lawsuits, including medical expenses, anticipated future medical expenses, lost income, mental anguish, and more.

In addition, this kind of blanket immunity could arguably increase incidence of unauthorized force with children, particularly special needs children who may not be able to verbalize what happened to them.

Such was the case for one frustrated special-needs parent whose five-year-old son suffered a broken jaw and had to have two teeth removed after reportedly “being carried through a hallway from the cafeteria to the principal’s office, while being held upside down by three adults, all employees of the school”. The school district has reportedly fought all of the father’s efforts to find out exactly what happened, including allegedly “accidentally” recording over video footage of the incident.

For members of a protected class, such as people with a disability, a federal lawsuit may be a way around the sovereign immunity obstacle. Clearly, it would take a skilled personal injury law firm to potentially overcome the obstacles that sovereign immunity places on the ability of injury victims to sue the school and school district.

If you or a loved one has been injured in any kind of accident as a result of the negligence of another person or entity, the attorneys at Chandler, Mathis, and Zivley, PC can help you obtain the compensation you are entitled to. Call us for a free consultation in Houston at 877-739-7744 or in Lufkin at 800-657-2230. We have been serving Texans and those injured while visiting Texas for over 40 years.

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E-Commerce Disruption – Tenant’s Tizzy

Originally published by Cleve Clinton.

For over a decade On the Skware Toy Soldiers and its owners, Boo & Woo, the Skware brothers, have enjoyed the shopping traffic brought to their retail store that’s located in the same shopping center as Athletics Authoritiez, a popular sporting goods retailer. However, over the last couple of years the Skware brothers have seen their overall numbers of shoppers go down and, with slowing traffic, their gross sales revenue has dropped by over 15% – straight off the bottom line. Now, blaming E-Commerce woes, the news media (supported by local scuttlebutt) is suggesting that Authoritiez is on the ropes and may close its store. Can Boo & Woo do anything to save On the Skware?

Maybe. It’s time to pull out your lease with the landlord, and to get creative with your store.

The retail bubble is bursting.   Forty-three large retail chains with 10 or more locations filed for bankruptcy since January 2015.  Projections are that 8,640 stores could close this year – higher than the 2008 peak of 6,200 – requiring more than 10% of U.S. Retail space, or nearly 1 billion square feet to be closed, converted to other uses or renegotiated for lower rent.

The Skware brothers and their Toy Soldiers should get ahead of the approaching storm by dusting off their lease and carefully reading it to note the provisions affecting:

  1. The lease term
  2. Renewal
  3. Who has liability – only their company or them personally as well
  4. Any limits on use of the premises
  5. Constraints on subleases and assignments
  6. Going out of business sales, among others

If their lease is renewing in the near term and they think they still want to make a go of it, they should carefully consider and negotiate to add lease terms that allow them to address the possibility that Authoritiez closes. That might include language that expressly permits them to terminate if the Authoritiez store closes (not very likely) or a reduction in their rent or other accommodation. They might also consider reducing their overall store size and adding E-Commerce to their own shopping offering. The successful brick-and-mortar stores which seem to be growing are focusing upon improving the customer experience to make it fun and engaging, witness the Apple stores.

Tilting the Scales in Your Favor

If you have a lease in a retail shopping center, pull out your agreement and consider calling at least your tenant leasing representative, if not your lawyer. Those lease terms that seemed so unnecessary and irrelevant years ago when you signed your lease are now important. At the very least, consider what might happen and understand what your landlord may be able to do about it. Heck, maybe you had a great lawyer and tenant rep when you signed the lease and they already anticipated that this might happen. You will then know that you can sleep well at night. If not, forewarned is forearmed.

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Some Quick Thoughts on Opening Statements, Closing Arguments and Jury Deliberations

Originally published by Drew York.

This will likely be the last piece I write on last month’s trial.  We are scheduled to start another trial in January 2018, with additional trials in April and May, and they may gin up some additional insights that I think are useful to pass along.  Today I have some quick thoughts about opening statements and closing arguments, as well as jury deliberations.

Common Points for Openings and Closings

  • Remember that this is your first and last chance to make an impression on the jury about your case. It also means your credibility is on the line.  What do I mean?  If you tell the jury in opening that certain evidence is going to come in at trial, and then it does not, your opponent is going to remind the jury that they never saw that evidence.  Similarly, if you stretch the evidence during your closing argument, the other side may remind the jury that you weren’t accurate.  Or even worse, the jurors may independently recall that your arguments weren’t accurate while they deliberate.
  • Visual aids are great for openings and closings, so use them. Depending on the expected length of trial, openings and closings could last an hour or longer.  Jurors can pay attention to a lawyer standing in front of them just talking for only so long.  Like inserting exhibits into videotaped depositions, using exhibits and other visual aids during openings and closings will help keep the jurors’ attention.  Just make sure you use them judiciously so that you don’t distract the jury away from your argument.

Opening Statements

  • I think defendants are better off following their prepared opening statement and ignoring what the plaintiff’s lawyer says in opening statement. Most likely your prepared opening statement will already address the soft spots in your case.  Trying to rebut specific statements the plaintiff’s lawyer made during opening could cause you to lose focus and run out of time.

Closing Arguments

  • Always weave in the questions and instructions the Court is giving to the jury for deliberations into your closing argument. Give the jurors a roadmap for their verdict.
  • One potential caveat to that last point: if you are a defendant in a case where the plaintiff is asking for punitive damages, and you think you have a good case to win on liability, should you address the punitive damages issue? There’s probably no correct answer to this question, and lawyers could and probably will debate it until the end of time.  If you are going to address punitive damages in your closing argument, however, make sure you do so in a way that does not compromise your other arguments on why your client is not liable at all.

Jury Deliberations

  • Just like the Wizard of Oz, everyone wants to know what goes on behind the curtain. The truth is that no one but the jurors in the jury room actually know what happened during deliberations.  And, in many instances it’s not worth speculating because it will drive you crazy.  This is especially true when the jury has a question for the judge during deliberations.  For example, if the jurors ask for a calculator, a plaintiff is probably thrilled because they think that means the jury has found the defendant liable and is on the damages question.  But then the jury came back and found the defendant was not liable.  So why did the jury need the calculator?  They were using it to confirm some measurements that were taken around the accident scene to confirm the parties’ stories.  The lesson: never assume anything!

Tilting the Scales in Your Favor

Jury trials are like a good rollercoaster: they get you high, they take you low, and they get your adrenaline pumping.  I hope you’ve enjoyed these insights and best of luck in your next trial!

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Does Maritime Law Apply to Lakes and Rivers?

Originally published by Christopher Johns.

Maritime law is unfamiliar territory for the average individual to talk about. Even the majority of practicing attorneys are unfamiliar with this area of the law if they are simply general practitioners. Unlike the “rules of the road” that all drivers should be familiar with, the rules while driving a boat on a body of water can be a little fuzzier. Due to this, each case must be handled differently. In a general sense, cases dealing with larger bodies of water, such as the ocean, may be a little easier to predict liability. However, the predictive outcome can get even murkier when talking about rivers and lakes within a country’s land. It is important to know whether maritime law applies to a particular case because it might affect travel on certain lakes and rivers.

Distinctions of Lakes

To determine if maritime law applies to lakes, it is easiest to consider one simple question: Can it support trade? Supporting trade, in this case, refers to either interstate or foreign commerce. With lakes, usually it comes down to if it crosses borders between states, or countries. For example, the five great lakes in the United States (Erie, Huron, Superior, Michigan, Ontario) could technically fall under maritime laws, as they can be used to “support trade” between states and some being countries. This is due to some of the lakes connecting Canada and the United States, while others connect states within the U.S. This would allow them to be used for interstate and foreign trade. Foreign trade is considered to be with any country outside of the USA.

Distinctions of Rivers

Similar to lakes, a river will fall under maritime law when it can support interstate and foreign trade. Usually, it can be classified directly under the lakes distinction, since a large percentage of rivers run directly to a body of water that is considered a lake. Rivers have a bit more leeway when it comes to applying maritime law, though. A river can sometimes fall under maritime law even if they are not directly crossing state lines or country borders. They just need to be attached to a body of water that does cross state lines or country borders and also can be used for interstate and foreign trade.

After the distinction is made, it then falls to each court individually to determine if the distinction holds. As with some bodies of water, it’s a grey area where the state lines are drawn and hammered out. In other cases, it can be a clear distinction, so the state or country can easily make a decision.

If you are embroiled in such a case, it is always best to contact a maritime lawyer, as they will be able to clear the distinction up for you. Sometimes, the bodies of water may not be so obvious as to be able to make a clear distinction, but a specialized lawyer can help you wade through the murkiness.

Reach out to our experienced, maritime lawyers today for a consultation appointment!

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What sets a Texas Family Law case apart from other civil cases?

Originally published by Evan Hochschild.

For those of you who are not experienced with legal cases you may be wondering what sets family law cases apart from other areas of law.

Having worked with clients across Southeast Texas in courts from Chambers County to Waller County and all points in between, the attorneys with the Law Office of Bryan Fagan would like to share their perspective on this question.

One piece of advice I will always give to a potential client is that family law cases are not like contract disputes, or personal injury cases or bankruptcies.

The fact that the subject matter is based on facts and events that you would ordinarily only share with your best friend or your pastor makes the family courts extremely unique. Let’s go over some hallmarks of family law cases and how they cause this area of the law to differ from almost any other.

The Pleadings

In most civil cases (i.e. non criminal cases) a party must be very specific in their initial filings with the court in order to maintain a case.

The injury or harm that the person has suffered must be laid out in plain terms for the judge to see. Family law is different. The initial pleading in a divorce case– the Original Petition for Divorce- is a very general document that spells out the names of children, but lacks much specificity otherwise.

The Final Decree of Divorce is the concluding document to any divorce case. This document is extremely specific in nature and takes into consideration the finer points that the Original Petition lacks.

A specific visitation schedule for parents, terms of child support payments and the division of the marital estate are detailed to a great extent.

In depth analysis of family life

Family law cases allow a court to have a front row seat to the inner-most workings of your family life. If it alleged that you are a drug user, you can rest assured that the court is going to order you to take a drug test (or two) during your case.

This is usually done in divorces where the parties are also parents. Even after these drug tests are complete a court may order you to be drug tested after the divorce is finalized.

Each county in Texas works with local drug rehabilitation and testing facilities that will administer the tests and report the results back to the judge.

If the custody of your child is at issue, a Court may very well order that a social study be done of your home. A social study is performed by a licensed therapist and/or family counselor who will observe you and your interactions with your children as well as that of your spouse.

This is done in order so that a recommendation may be made as to where the children should spend more time and which parent is better equipped to care for the child.

Although the judge will listen to his or her own judgment and not base their decision entirely on the social study, the evaluation is important and does weigh heavily on the judge.

Division of property into separate vs. community

Many people, even those who have not gone through a divorce, understand that Texas is a community property state.

This means that most property accumulated by spouses during the course of their marriage is presumed to be community property and must be split between the parties- either by agreement or by order of the judge.

Property that was owned by either party prior to the marriage as well as certain property accumulated during the marriage like an inheritance is considered the separate property of either the husband or the wife.

If it comes down to it, either party may hire expert witnesses to testify to whether or not a particular piece of property is separate or community property, and to which spouse the property belongs.

The value of particular property is crucial to know and expert witnesses can be retained to discuss this subject with the judge as well. These witnesses are part accountant and part detective and can be critical pieces of the puzzle for a client and their attorney.

Your Child

The most important part of any family law case is the child. Divorces with no children tend to wrap up long before divorces with children because people are more likely to fight over kids than they are money.

Family law cases need to determine which parent will have the child during the school week, which parent will have weekend visitation with the child (not to mention how frequently), and which parent will pay child support (and in what amount). This is just the tip of the iceberg on the subject.

A judge must not only evaluate the object facts in a family law case but must take it upon themselves to make a determination as to what is in the child’s best interests. That is about as vague and general a standard to make an evaluation by as can be in my opinion.

Nevertheless, judges in family law cases in Texas make determinations all the time using this criteria. Understanding ahead of time that a Court makes rulings based not only on what is in black and white but also what their perceptions and biases lead them towards is incredibly helpful to a potential family law litigant.

Family Law attorneys serving our client’s interests: The Law Office of Bryan Fagan

While family law cases are heard before judges at the same courthouse as any other civil case in Texas, it is worth noting that family cases have characteristics that set them apart from these other areas of law.

In order to be best prepared for any court appearance hiring the right attorney is essential. Fortunately, the family law attorneys with the Law Office of Bryan Fagan have worked with attorneys and in courts across the Houston metropolitan area.

In order to learn more about our office and the services we provide please contact us today in order to set up a free of charge consultation.

Book an appointment with Law Office of Bryan Fagan using SetMore

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If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

Other Articles you may be interested in:

  1. Getting Ready for Divorce in 2017 in Texas: Part One of a Two Part Series
  2. Dividing Property in a Texas Divorce – The Just and Right Division
  3. Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?
  4. What Wikipedia Can’t Tell you About Texas Divorce and Marital Property Division
  5. Texas Divorce Property Division Enforcement
  6. Separate Property in a Texas Divorce?
  7. Does it Matter Whose Name is on Title or Deed of Property in a Divorce in Texas?
  8. Is Social Security Considered Separate Property in a Texas Divorce
  9. Business Owners and Business Assets in a Texas Divorce
  10. What to do when your divorce decree does not include a marital asset?

Law Office of Bryan Fagan | Spring Divorce Lawyers

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it’s important to speak with one of our Spring, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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Pursuing Third Parties in Texas Workplace Injury Cases

Originally published by Sawicki Law Firm Blog.

Q: Who is responsible for workplace injuries in Texas?

Skilled workplace injury attorneys have specialized knowledge of the state and federal rules that apply to the industries involved in each particular claim and access to relevant experts in workplace safety. Post-accident investigations to determine which parties may be liable for the injuries and consultations with various experts to assess and calculate the lifetime physical, emotional, and financial impact of the accident on the victim’s life are just part of what makes litigating these actions complex.

In general, an employee injured on the job in Texas is unable to sue their employer for personal injury if the employer carried some form of Worker’s Compensation insurance. However, an investigation into the workplace accident may reveal that a third-party lawsuit—one that’s brought against anyone other than the victim’s employer–is appropriate.

If the victim’s personal injury or wrongful death was a result of the negligent, reckless, or intentional actions or inactions of another person or company, that third-party may be held liable for the workplace injuries–especially if the injury was due to unsafe work conditions or faulty equipment.

If a victim can establish the third-party’s liability, compensatory damages may be awarded for losses including the cost of physical and psychological injuries, anticipated future medical costs, lost income, anticipated lost or diminished earning capacity, and more, depending on the unique circumstances of each case. If more than one person or entity is found liable for causing the victim’s injuries, the amount of the award by the jury will be apportioned according to the percentage each liable party was deemed to have been contributorily negligent.

Recently, a worker at a plant was seriously injured when he fell 30 feet through scaffolding constructed by a different company. The victim–who was not an employee of the plant or of the company that constructed the scaffolding–was awarded $200,000 in a personal injury action against both companies after evidence indicated that the scaffolding failed to meet both federal and the plant’s own safety standards. The scaffolding company was found to be 80% liable while the plant was deemed 20% liable.

If you or a loved one has been injured in the workplace– or a loved one has been killed– due to someone else’s negligence, the workplace injury attorneys at Sawicki Law can help. Call us at 888-468-8844 for a free consultation. From our offices in Dallas, we represent clients throughout Texas as well as those injured while visiting.

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Thursday, July 27, 2017

Legal Marketing: Top Ethical Techniques to Help Law Firms Reach the Masses

Originally published by Bob Kraft.

There is no doubt that marketing can help grow your legal practice, but it is critical that your marketing program follow ethical guidelines. While other industries can advertise in almost any way they choose, law firms in particular may be scrutinized for their techniques and the ethics that they use. However, that does not mean that your law firm needs to stray away from marketing entirely. These tips can help you build your client base while keeping within the requirements for ethical advertising in the legal industry.

Professionally Train Your Staff

Your staff knows your law firm the best, which is why you rely on them to help you develop marketing strategies. What they may not know, however, are the legal requirements for advertising a law firm. Consider hiring a professional agency to train your staff in the legalities of law advertising. Many companies offer in-house training, bringing the information to your staff at your site. You may also consider sending your marketing staff to a training session, like those with The Rainmaker Institute, so they are not distracted by day-to-day duties. By training your staff about ethical requirements in legal advertising, you will avoid making mistakes that could lead to fines, sanctions or even disbarment if the violation is severe enough.

Disclaimers and Privacy Policies

Many states require that you include a disclaimer on the home page of your website and in any advertising. Although the requirement for the language of the disclaimer varies in each state, it often requires the attorney’s name who is responsible for the website or advertising and the states where the law firm practices. Be sure that the disclaimer includes all states where you practice. Privacy policies are often required if your site provides information to third parties. If your site is an e-commerce site, you should include a privacy policy.

Avoid Certain Language

There is certain language that law firm advertising must avoid. Lawyers should never claim to be specialists in a certain field of law unless they are certified to call themselves specialists. It is best to avoid the word “specialist” or “specialize” in all advertising. You also must avoid unverifiable claims. For example, you should not use the phrase “best criminal lawyer in the area,” even if you have an outstanding track record for acquittals. Being the “best” at something is difficult to prove and you could be sanctioned for providing false or misleading information. When you do include information about your record, be sure to include a disclaimer. If your website says you won billions in accident settlements, include a statement that says every case is different and prior results do not indicate such success in all case.

Sell Responsiveness and Ability

When someone hires an attorney, they want to know that the lawyer will be accessible, will return phone calls and has handled similar cases in the past. There are ways you can ethically let potential clients know the answer to these questions. Statements like “A paralegal does not handle your case. I do” shows clients that you work directly with them. Provide after-hours numbers for clients to reach you to demonstrate accessibility. You can mention that phone calls are returned within 24 hours. You can state that you have handled hundreds of cases just like theirs without getting into specifics in order to put potential clients at ease.

These simple tips can help you avoid ethics violations in your website and advertising. By using selective wording, disclaimers and privacy statements, your clients can feel more at ease and you are more likely to see your client base grow.

Author Info: Hannah Whittenly is a freelance writer and mother of two from Sacramento, CA. She enjoys kayaking and reading books by the lake. You can find her on Twitter.

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Networking Novice? Try Some of These 19 Networking Questions

Originally published by Cordell Parvin.

You’ve likely read that President Clinton has an amazing ability to make a person feel like he or she is the most important person in the room. He also has an amazing memory of names and faces.

Anne Marie O’Brien is a Lamson Dugan and Murray partner I coached back in 2011. She has the same talent and people skills, and I wish I could be with her once a day just to get the energy boast.

Every quarter I met with her group in Omaha and we ate dinner together. Each time, Anne Marie asked her colleagues and me great questions that got the conversation going.

One time she asked:

What made you decide to become a lawyer?

Another time  she asked:

What was your best trial experience? What was your worst trial experience?

Screen Shot 2014-04-30 at 8.18.04 PM

She then listened as each of her colleagues (all men) answered.

Anne Marie has a gift and is able to engage people by asking questions. I wish I had her gift. Her interest and curiosity are just a part of who she is. I’m positive I would have developed more relationships with potential clients.

I always felt awkward at events, unless I had made a presentation. Because I never enjoyed networking, I decided several times in my career to simply practice. I read books and articles by networking experts and came up with some networking questions for events attended by business men and women. Here are my questions:

Networking Questions

  1. Network Question.jpgHow did you get started in_______?
  2. What made you decide to go into the ___business?
  3. What do you love/enjoy most about what you do?
  4. Tell me about your company.
  5. What separates your company from the competition?
  6. What changes are happening in your industry?
  7. How is the current economy impacting your business?
  8. Depending on the answer: Do you see things turning around for you?
  9. What do you see happening in your industry over the next few years?
  10. What are some of the projects you are currently working on?
  11. What ways does your company promote/market its products/services?
  12. Does your company use social media in its marketing efforts?
  13. What do you like to do in your spare time?
  14. Tell me about your family.
  15. What do your children enjoy doing?
  16. Where are you from originally?
  17. How long have you lived here?
  18. What do you enjoy the most about living in ___________?
  19. What can I do to help you? What can I do to help your business?

What questions would you add to this list?

If you are like me and need more help on networking, here are some books on my reading list:

How to Work a Room, Revised Edition: Your Essential Guide to Savvy Socializing by Susan RoAne

How to Talk to Anyone: 92 Little Tricks for Big Success in Relationships by Leil Lowndes

How to Connect in Business in 90 Seconds or Less by Nicholas Boothman

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Robins Cloud Files First Lawsuit in Salmonella Papaya Outbreak

Originally published by Candess Zona-Mendola, Unsafe Foods Editor.

By: James Peacock

Today, the lawyers of Robins Cloud LLP filed the first lawsuit for the Salmonella outbreak that has sickened 47 people in 12 different states. The lawsuit names Grande Produce, the company that distributed the potentially contaminated yellow Maradol papayas, as defendant. The plaintiff alleges that the papaya they consumed led to a bout of Salmonella poisoning. This lawsuit, with the help of the Burnett Law Firm, was filed in the United States District Court of New Jersey and seeks compensatory damages. Although this is the first lawsuit filed, it is anticipated that more lawsuits are to come. The lawsuit filed today alleges, “Defendant owed a duty to all persons who purchased and consumed its products, including Plaintiff, to prepare, and sell food products that were safe to eat, that were not adulterated with deadly pathogens, like Salmonella, and that were not in violation of the standard of care in proper food handling and preparation. Defendant breached this duty.”

The outbreak, which is currently being investigated by the CDC, has sickened 47 people so far. The 12 different states affected by the outbreak include: New York with 13 cases, Virginia with 6 cases, Maryland with 5 cases, Pennsylvania with 4 cases, Iowa with 1 case, Kentucky with 1 case, Massachusetts with 1 case, Minnesota with 1 case, Texas with 1 case, and Utah with 1 case. One person has died in the state of New York. Twelve people have needed to be hospitalized because of their illness. Food poisoning lawyer Jory D. Lange Jr. has said, “Salmonella is a dangerous foodborne pathogen, and can be deadly. As this investigation continues, we will learn how the papayas became contaminated with Salmonella bacteria and the supply chain related to these products. By learning what went wrong in this outbreak, we hope to prevent future food poisoning outbreaks.”

The FDA recently announced that consumers should avoid eating Grande Produce-distributed papayas and a small, limited recall has been made by the company. Consumers are advised to ask retailers and restaurants where the stores got their papayas in order to make sure that they are not from Mexico. Most individual papaya will have a sticker label on them that states what company is selling the papaya. A visit to that company’s website will reveal where their papaya is grown. If there is no sticker or the sticker does not convey the correct information, retailers and restaurants will be able to tell consumers where the papaya came from. The papayas are sent to these establishments in boxes that clearly state what company is selling them. If an establishment does not currently have a box of papaya to look for the company on, then the papaya distributor will be listed in the supplier logs. There should be no reason, under any circumstances, for a retailer or restaurant to have no idea where their products came from.

Salmonella

Salmonella infections, commonly referred to as Salmonellosis, make up one of the most common forms of foodborne illness in the United States. The CDC estimates that up to 1.2 million cases of Salmonella poisoning occur each year. This estimate includes the fact that many Salmonella cases go unreported and undiagnosed. The tracking of Salmonellosis first took place in 1962, but scientists have been aware of the bacterium for at least 125 years. The work of Dr. Salmon and his assistant, Theobald Smith, allowed for the isolation of Salmonella bacteria just 30 years after the acceptance of germ theory. Since that time, the bacteria that make up the Salmonella genus have been found to have a variety of strains, or serotypes. These serotypes are based on the antigens found on the surface and flagella of the bacteria. At the first usage of this method of categorization, 44 different serotypes had been identified. Today there are more than 2000 known serotypes of Salmonella bacteria, though not all are commonly the source of foodborne illness outbreaks. Salmonella infections are most commonly caused by Salmonella Enteritidis, Typhimurium, Newport, javiana, Heidelberg, I 4,[5], 12:i:-, Muenchen, Montevideo, and Saintpaul.

Out of the CDC estimated 1.2 million annual cases of illness, about 19,000 of them require hospitalization, and about 450 lead to death. While there are actually two distinct types of illness caused by Salmonella bacteria, nontyphoidal salmonellosis and typhoid fever, nontyphoidal salmonellosis is by far the more common type. In fact, there has not been an outbreak connected to typhoid fever caused by Salmonella since 1999.

Salmonellosis will generally produce symptoms within a 6 to 72 hour window after exposure to the bacteria. The symptoms produced by salmonellosis will usually include headache, fever, diarrhea, abdominal cramps, nausea, and vomiting. Recovery from a case of Salmonella poisoning will typically start after about a day, but symptoms can last for up to a week. There is a chance that the infection will worsen and cause one of several complications. The most common of these complications is dehydration. Severe dehydration can be very serious, and will often cause hospitalization to be required. Other complications include reactive arthritis and blood poisoning, which are both very serious but much less common. Those with certain risk factors, including the elderly, children, those with HIV/AIDS, and others with suppressed immune systems are at an increased risk of developing a more serious case of Salmonellosis. These risk factors also heighten the chance that one of the complications associated with Salmonella poisoning will occur. Salmonella bacteria can be found in a wide variety of foods and drinks, so it is important to practice proper food safety techniques in order to reduce the chance of infection. Salmonella bacteria have been known to cause outbreaks through meats, poultry, eggs, fish, shrimp, milk, dairy products, yeast, spices, coconut, raw egg, peanut butter, fruits, vegetables, and chocolate. If you or a loved one begins to show the symptoms of Salmonella poisoning, contact a medical professional.

About Robins Cloud LLP

Robins Cloud LLP is a national law firm dedicated to helping families who have been harmed by large corporations. For over 25 years, we have helped families who have been harmed by defective products and foodborne illnesses. Robins Cloud LLP is currently investigating the details of the Salmonella food poisoning outbreak linked to papayas.

UnsafeFoods will continue to track the outbreak as the investigation progresses and will post updates as they come.

The post Robins Cloud Files First Lawsuit in Salmonella Papaya Outbreak appeared first on Unsafe Foods.

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IRS Form 8938 Filing Requirements

Originally published by Houston Tax Attorney.

The “FATCA” (Foreign Account Tax Compliance Act) provisions require specified individuals to report ownership of specified foreign financial assets if the total value exceeds the applicable reporting threshold. The IRS created Form 8938, Statement of Specified Foreign Financial Assets, for this purpose. Form 8938 must be included with the individual’s tax return. Failure to include the Form 8938, if required, could lead to significant penalties. Note that the Form 8938 is also referred to as “FATCA” which can cause confusion since that term also refers to the regulations themselves.

Who is a Specified Individual?

Specified individuals who own specified foreign financial assets, the value of which exceed the applicable reporting threshold, are required to complete Form 8938 as part of their income tax returns. Specified individuals include U.S. citizens, U.S. resident aliens for any part of the year, nonresident aliens who make an election to be treated as residents for joint filing purposes, and nonresident aliens who are bona fide residents of American Samoa or Puerto Rico. Individuals who qualify as U.S. resident aliens but elect to be treated as nonresidents pursuant to the residency tie-breaker provisions of a treaty are not subject to the foreign financial asset reporting requirements for the non-residency period provided a return is timely filed with a Form 8833, Treaty-Based Return Position Disclosure Under Section 6114 or 7701(b).

What is the Form 8938 Threshold?

The applicable reporting threshold is determined based on the taxpayer’s filing status and where he or she lives.

The reporting thresholds are:

Filing status Living in: Meets reporting threshold if value of specified foreign financial assets is greater than …
Unmarried/ Married Filing Separately United States $50,000 on last day of tax year; or $75,000 at any time during tax year
Married Filing Jointly United States $100,000 on last day of tax year; or $150,000 at any time during tax year
Unmarried / Married Filing Separately Foreign Country $200,000 on last day of tax year; or $300,000 at any time during tax year
Married Filing Jointly Foreign Country $400,000 on last day of tax year; or $600,000 at any time during tax year

What is a Specified Foreign Financial Asset?

The term “specified foreign financial asset” includes any depository, custodial, or other financial account maintained by a foreign financial institution as well as, (a) any stock or security issued by foreign persons, (b) any financial instrument or contract held for investment that is issued by or has a counterparty that is not a U.S. person, and (c) any interest in a foreign entity. U.S. persons holding an equity interest in a foreign investment vehicle, such as a foreign mutual fund, foreign hedge fund, or foreign private equity fund must report such foreign financial assets on Form 8938. However, reporting is also required with respect to foreign trusts, foreign deferred compensation plans, and foreign pension plans.

What are the Form 8938 Penalties for Not Filing?

Non-compliance with the reporting requirements can result in substantial penalties. Failure to properly report foreign financial assets can result in a penalty of $10,000 with additional penalties of up to $50,000 for continued failure to disclose after receiving a request from the IRS. Additional penalties can be assessed if there is unpaid tax on unreported income. A six-year statute of limitations could apply to assess unpaid tax and applicable penalties if more than $5,000 of income is omitted from the taxpayer’s return and such income is attributable to assets reportable on Form 8938 (without regard to the dollar thresholds for reporting).

FBAR vs Form 8938

Form 8938 does not replace filing the FinCEN Form 114, Report of Foreign Bank and Financial Accounts. If an individual meets the filing requirements for both forms, each must be filed, even though some information may be duplicate.

Form 8938, Statement of Specified Foreign Financial Assets FinCEN Form 114, Report of Foreign Bank and Financial Accounts (FBAR)
Who Must File? Specified individuals and specified domestic entities that have an interest in specified foreign financial assets and meet the reporting threshold
Specified individuals include U.S citizens, resident aliens, and certain non-resident aliens
Specified domestic entities include certain domestic corporations, partnerships, and trusts
U.S. persons, which include U.S. citizens, resident aliens, trusts, estates, and domestic entities that have an interest in foreign financial accounts and meet the reporting threshold
Does the United States include U.S. territories? No Yes, resident aliens of U.S territories and U.S. territory entities are subject to FBAR reporting
Reporting Threshold (Total Value of Assets) Specified individuals living in the US:
Unmarried individual (or married filing separately): Total value of assets was more than $50,000 on the last day of the tax year, or more than $75,000 at any time during the year.
Married individual filing jointly: Total value of assets was more than $100,000 on the last day of the tax year, or more than $150,000 at any time during the year.

Specified individuals living outside the US:
Unmarried individual (or married filing separately): Total value of assets was more than $200,000 on the last day of the tax year, or more than $300,000 at any time during the year.
Married individual filing jointly: Total value of assets was more than $400,000 on the last day of the tax year, or more than $600,000 at any time during the year.
Specified domestic entities:
Total value of assets was more than $50,000 on the last day of the tax year, or more than $50,000 at any time during the tax year.

Aggregate value of financial accounts exceeds $10,000 at any time during the calendar year. This is a cumulative balance, meaning if you have 2 accounts with a combined account balance greater than $10,000 at any one time, both accounts would have to be reported.
When do you have an interest in an account or asset? If any income, gains, losses, deductions, credits, gross proceeds, or distributions from holding or disposing of the account or asset are or would be required to be reported, included, or otherwise reflected on your income tax return Financial interest: you are the owner of record or holder of legal title; the owner of record or holder of legal title is your agent or representative; you have a sufficient interest in the entity that is the owner of record or holder of legal title.
Signature authority: you have authority to control the disposition of the assets in the account by direct communication with the financial institution maintaining the account.
See instructions for further details.
What is Reported? Maximum value of specified foreign financial assets, which include financial accounts with foreign financial institutions and certain other foreign non-account investment assets Maximum value of financial accounts maintained by a financial institution physically located in a foreign country
How are maximum account or asset values determined and reported? Fair market value in U.S. dollars in accord with the Form 8938 instructions for each account and asset reported
Convert to U.S. dollars using the end of the taxable year exchange rate and report in U.S. dollars.
Use periodic account statements to determine the maximum value in the currency of the account.
Convert to U.S. dollars using the end of the calendar year exchange rate and report in U.S. dollars.
When Due? Form is attached to your annual return and due on the date of that return, including any applicable extensions Received by April 15 (6-month automatic extension to Oct 15)
Where to File? File with income tax return pursuant to instructions for filing the return. File electronically through FinCENs BSA E-Filing System. The FBAR is not filed with a federal tax return.
Penalties Up to $10,000 for failure to disclose and an additional $10,000 for each 30 days of non-filing after IRS notice of a failure to disclose, for a potential maximum penalty of $60,000; criminal penalties may also apply Civil monetary penalties are adjusted annually for inflation. For civil penalty assessment prior to Aug 1, 2016, if non-willful, up to $10,000; if willful, up to the greater of $100,000 or 50 percent of account balances; criminal penalties may also apply

Sources:

IRS.gov, Comparison of Form 8938 and FBAR Requirements, link.

IRS.gov, Do I need to file Form 8938, “Statement of Specified Foreign Financial Assets?”, link.

IRS.gov Instructions for Form 8938 (2016), link.

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Attorney General Extends the Use of Civil Asset Forfeiture

Originally published by [email protected].

Civil asset forfeiture is a controversial tool that was restricted under the Obama administration. It allows police to seize property from defendants before they have been convicted.

Under the Trump administration it’s coming back with a vengeance. On July 17, Attorney General Jeff Sessions announced a new directive on civil asset forfeiture.

The directive means police officers will now have more incentive to take goods like cars, furniture or electronics if they believe any of it was bought with illegally-earned money. They can also seize cash.

Sessions said in a speech in Minnesota:

“With care and professionalism, we plan to develop policies to increase forfeitures. No criminal should be allowed to keep the proceeds of their crime. Adoptive forfeitures are appropriate as is sharing with our partners.”

Civil asset forfeiture is extremely controversial. Not only can property be taken prior to a conviction but it can be seized without criminal charges even being filed.

If the authorities seize property that is not linked to a crime, the property owner is forced to go through a long and costly administrative process to get it back. Many property owners just give up and allow law enforcement to keep their goods.

The federal policy provides an incentive to states to ramp up their civil asset forfeiture operations. The fact civil asset forfeiture is governed by state law may provide little comfort in Texas.

Recently, the Texas Observer noted the lack of rights Texas citizens have in relation to civil asset forfeiture.

The report revealed how some Texas police forces use civil asset forfeiture as a means of balancing their books.

The report listed what it described as “sophisticated shakedown operations.” Police have been seizing automobiles, money, jewelry and other property from citizens who were never convicted or even charged of a crime in some cases.

A report entitled “Highway Robbery” noted how African Americans and Hispanics were targeted in asset forfeiture operations.

It said some police departments and law enforcement agencies derive almost 40 percent of their total revenue from civil asset forfeiture. There are virtually no checks or oversight, the report stated.

The report noted a major operation in the East Texas town of Tenaha. Cops here were accused of stopping out-of-town drivers on the most dubious of contexts to search for items of value like cell phones, DVD players and cash.

The District Attorney in Tenaha was accused of threatening these hapless drivers with criminal charges. The Observer reported he even threatened to get state authorities to remove kids from their parents unless they waived rights to the property.

How Can You Avoid Civil Asset Forfeiture?

Given the wide nature of the statutes that allow police officers to seize your property, it can be difficult to avoid this measure.

You can take some steps like avoiding driving around with large sums of cash which are often associated with drug activity and can be easily seized without an arrest.

A police officer has a wide latitude in establishing probable cause to seize your property. If this happens, carefully document the reasons given and all the circumstances which should help you in a later recovery action.

List the goods seized and their value as soon as possible after an asset forfeiture.

If you are able to recover cash, court decisions suggest you are entitled to interest.

The new directive on civil asset forfeiture is concerning but Texans have faced the unfair loss of their property at the hands of police departments for many years. Our experienced Dallas criminal defense attorneys can help you if you have been charged with a crime and believe you have been treated unfairly.

 

The post Attorney General Extends the Use of Civil Asset Forfeiture appeared first on Dallas Criminal Defense Attorneys |State & Federal Lawyers.

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Wednesday, July 26, 2017

First Lawsuit in Chipotle Norovirus Outbreak Comes as Chipotle Admits Outbreak Caused by Sick Employee

Originally published by Tony Coveny.

Another Chipotle Location Closes

First Lawsuit in Chipotle Norovirus Outbreak as Chipotle Identifies Sick Worker as Source of Illness Outbreak

Chipotle Mexican Grill is reeling in the aftermath of yet another Norovirus outbreak – reminiscent of the series of high profile outbreaks of 2015.  As in the Simi-Valley Outbreak, once again Chipotle has identified a sick employee as the source, this according to reports in the New York Times.  The sick employee has not been named, but the report fits the facts.  As many as 150 patrons of Chipotle Mexican Grill in Virginia, at the Tripleseven location, became ill between July 14th and 15th following exposure to food prepared in the kitchen.  Chief Executive Steve Ells stated only:

We believe someone was working while sick

According to the New York Times, some employees told CNBC they were compelled to work while ill. Now, Chipotle is not only losing clients, but has dropped another 13 percent in stock value since the outbreak became public. Two years ago the stock was trending at about $750, but today it hovers around $350. Chipotle Mexican Grill also dropped from number one spot to the number nine spot in the Brand Keys’ annual loyalty index.

For more about the First Lawsuit in Chipotle Norovirus Outbreak, or to file a Chipotle lawsuit, call the salmonella lawyers at 1-888-335-4901.

The post First Lawsuit in Chipotle Norovirus Outbreak Comes as Chipotle Admits Outbreak Caused by Sick Employee appeared first on Food Poisoning News.

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Does a 15-Minute Delay Render a Traffic Violation Stale? | U.S. v. Zuniga

Originally published by Brandon Barnett.

How Long Can an Officer Wait to Pull a Vehicle Over After Observing a Traffic Violation? United States v. Zuniga (US Court of Appeals, 5th Cir. 2017) In this case,…

The post Does a 15-Minute Delay Render a Traffic Violation Stale? | U.S. v. Zuniga appeared first on Fort Worth Criminal Defense Attorney, DWI Lawyer, Sexual Assault Defense.

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Northern District Strikes Bias Expert

Originally published by Thomas J. Crane.

The Americans with Disabilities Act was passed in 1992 during the administration of the first George H.W. Bush. It was later amended in 2009. Yet, many persons with disabilities still face obstacles to employment. In EEOC v. S&B Industries, Inc., No. 15-CV-641, 2017 LEXIS 9259 (N.D. Tex. 2017), two women with hearing impairment applied for a job with S&B Industries. S&B repairs cell phones. There was a group interview of several applicants. Katelyn Baker and Tia Rice communicate only with benefit of an ASL interpreter or by writing notes. The employer did not hire either woman. The parties agreed the two women were not qualified for the technician job. They lacked experience and training. But, contended the EEOC, there were several other jobs the two women could have performed. The women were referred by a staffing agency, which was aware of their impairment. Yet, no one provided them an ASL interpreter for the group interview.

The EEOC sought to provide an expert at trial, who would describe the ASL language, and discuss the barriers faced by hearing impaired persons when seeking employment. The employer moved to exclude testimony from the expert, arguing she would simply present stereotypes about society. It argued that none of these stereotypes have been attributed to S&B. The court noted that an expert can serve as a “teaching” expert if she can distill complicated subject matter into language a jury can understand. The expert had planned to testify that “audism and phonocentric” views may have prevented accommodations from being offered by  S&B. The court rejected that testimony, saying there was no evidence that such views may be attributed to S&B. There was no evidence, circumstantial or direct, that any employee of S&B held such views.

The court also rejected the expert’s planned testimony regarding how many people in the U.S. suffer from hearing impairment and regarding how few are employed. The court opined that such evidence would not help show that discriminatory motive animated the decision not to hire Ms. Baker and Ms. Rice. Such evidence might help show why the two plaintiffs could not mitigate their damages. But, that was not the topic for which the expert was identified.

Experts are not used often in employment cases. The problem, as shown here, is tying such polemics to actual alleged transgressors. Just because many people hold bias against deaf persons do snot mean these particular managers held those views.

It is rare for persons with severe disabilities to come forward and file a complaint. The parties entered into a Consent Decree soon after the court’s ruling on the motion to exclude and regarding summary judgment. The court denied the motion for summary judgment in part. The EEOC then settled the case for $110,000 and with the requirement that the employer conduct training on accommodations in the workplace. See EEOC press release here. See the decision here.

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