The Tom Brady decision: Quick hit opinions

Originally published by Ultimate Texans.

The NFL upheld its four-game suspension of Patriots quarterback Tom Brady for his role in the improperly inflated footballs for last season’s AFC playoff game vs. Indianapolis.

Our staff’s take on the ruling:

Backed into a corner by its mismanagement of the entire situation, it is little surprise that the NFL decided to “uphold” its ridiculous and heavy-handed four-game suspension of Tom Brady.
That Brady’s cell phone went the way of Luca Brasi didn’t help his case, but the offense – even if he were guilty, which has hardly been proven – was such a mild one that commissioner Roger Goodell should be embarrassed the league has allowed so-called Deflategate talk to dominate discussion for so long.
— Jerome Solomon

You’re a cheater, Tom Brady. You faked it on one of the world’s biggest sports stages. You lied in public view, hiding behind a podium as camera flashes popped. You’ll go down in history as someone who cheated at and manipulated the sport, just to win a game. Unless NFL Commissioner Roger Goodell is orchestrating the biggest conspiracy since Richard Nixon’s glory days, your name, the Patriots’ tarnished legacy and Bill Belichick’s already scarred image are forever stained. While New England truthers keep clinging to thin air, your intentionally destroyed cellphone deflated any faint hope you still had. Tom Brady: Four-time Super Bowl winner. Tom Brady: Suspended four games at the start of the 2015 season for cheating, then lying.
— Brian T. Smith

So Tom Brady had his cellphone destroyed by his assistant knowing that Ted Wells had requested it as part of his investigation. Brady said he always destroys his cellphone when he gets a new one. Makes sense. But do you believe it considering the timing? If you do, I have a condo in Alief I’d like to sell you. If Brady goes to federal court, the judge will have subpoena power. Maybe he’ll order James McNally and John Jastremski,  both indefinitely suspended by the Patriots, to turn over their cellphones. Of course, they probably had theirs destroyed, too, right?
— John McClain

There’s no longer reasonable doubt that Tom Brady messed with how some of the footballs he had flung through the air were inflated. And, no, he shouldn’t have done that. It’s cheating. It’s a fine-able offense — $25,000.
But Brady could have owned up to this misdemeanor at the outset and been, really, none the worse for it. Anybody who has ever thrown a football knows it’s easier to do when it’s squeezable. Common sense dictates more quarterbacks than not have at least contemplated trying to get away with what Brady did. Common sense also dictates that most quarterbacks, whatever their preferred PSI, couldn’t carry Brady’s jockstrap.
It’s Brady’s insulting arrogance since the accusations came down that made his rules transgression felonious and why he deserves to miss the first quarter of the coming season. From the get go, it was bad enough that he wouldn’t turn over his phone, or at least the contents, because damaging evidence was contained therein. But how could he possibly think destroying the phone would go down in the court of public opinion when people found out he’d done it, an inevitability once he filed an appeal with Roger Goodell?
Brady’s offense hardly equates to what Greg Hardy did to also get suspended four games. Domestic violence is a real crime and the punishments shouldn’t be equal. However, Brady’s uncooperative behavior gave the commissioner no choice but to rule as he did, as much we suspect he’d have personally preferred to have cut his favorite owner Robert Kraft’s franchise a little slack.
Goodell finally got one right the first time. Brady made it easy for him, too.
— Dale Robertson

And from around the country:

It wasn’t just that Tom Brady cheated. It wasn’t just that Tom Brady lied about cheating. It wasn’t just that Tom Brady covered up the fact that he cheated and lied. No, this goes even further, and explains why NFL Commissioner Roger Goodell properly upheld the four-game suspension he levied on Brady.
He destroyed his phone.
The same phone he has used since November.
Destroyed it right after he met with Ted Wells and his investigators.
Does he look or sound guilty yet, New England? Or are we going to continue this fiction that he’s the Golden Boy Who Can Do No Wrong, above the fray, above it all?
— Bob Kravitz, WTHR.com

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Moore II – District Court Approves Penalty But Admonishes the IRS and Imposes a Cost for Misleading Taxpayer (7/28/15)

Originally published by Jack Townsend.

I previously blogged on an earlier decision in Moore v. United States, 2015 U.S. Dist. LEXIS 43979 (W.D. WA 2015).  The blog is Court Approves FBAR NonWillful Penalty Merits But Wants Further Development of APA Issues (4/3/15), here.  The district court required more development of the record.  The district court’s final decision was recently released.  Moore v. United States, ____ U.S. Dist. LEXIS ___ (W.D. WA 2015) [citation to come], here.

The district court summarizes its already short opinion as follows

1) The United States has demonstrated that the IRS’s decision to assess Mr. Moore FBAR penalties of $10,000 for each year from 2005 through 2008 was not arbitrary, not capricious, and not an abuse of its discretion.

2) The IRS’s conduct in assessing those FBAR penalties, by contrast, was in several respects arbitrary and capricious. In particular, the IRS disclosed no adequate basis for its decision to assess the penalties until this litigation forced its hand. Even after this litigation began, the IRS refused to disclose the evidence on which it now relies to demonstrate the basis for its decision to impose those penalties. With respect to the 2005 penalty, the IRS broke its own promise not to impose a penalty until Mr. Moore had an opportunity to respond to its “proposed” assessment.

3) In light of these rulings, the Government is entitled to judgment for $40,000, although that amount will be offset by the more than $10,000 that Mr. Moore has already paid. In light of the arbitrary and capricious conduct described above, the court rules that any interest, late fee, or other supplemental assessment that the IRS or another agency of the United States has attempted to tack on to Mr. Moore’s FBAR penalties is void. The United States shall treat the FBAR penalties as if they were first assessed on the date of this order.

I find the most interesting part of the short explanation of the conclusions the following which relates to the IRS assessment of the 2005 penalty after indicating to Mr. Moore that he could appeal first.  Here is what the court said:

As to its bizarre conduct in assessing the 2005 penalty, the IRS explains that it has an internal policy to assess FBAR penalties at least 180 days before the expiration of the statute of limitations for doing so. That policy is well within its discretion. What is not within its discretion is its decision to offer Mr. Moore the opportunity to contest the 2005 FBAR penalty before its assessment, and then to impose the penalty before the deadline the IRS imposed. The IRS offers no explanation for why it allowed rote application of its internal policies to trump the individual assurances it made to Mr. Moore.

In light of the court’s conclusion that the amount of the penalty the IRS imposed was appropriate, there are two apparent harms arising from its arbitrary and capricious conduct in imposing that penalty. First, Mr. Moore was given the unappealing choice to either accept the IRS’s unexplained imposition of a $40,000 penalty or to file suit. The court assumes that Mr. Moore’s choice to sue cost him a substantial sum. Second, the IRS has assessed interest and other penalties on top of the FBAR penalties. The court expresses no opinion at this time on whether the first harm can be remedied. The court remedies the second harm by preventing the IRS from profiting by imposing penalties without explaining them. The court voids the IRS’s assessment of interest and other charges on top of its previously unexplained penalties.

In regular Title 26 cases which go to appeals, the IRS usually requires substantial time on the statute, but it has been my experience that that is always explained to the taxpayer so that he understands that there will be an assessment.  The way the taxpayer avoids the assessment before the appeal is to give a sufficient extension on the statute to permit the appeal to not interfere with the right to assess.  Apparently, that was not explained to the taxpayer or his representative.

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Rights and Duties of Custodial and Noncustodial Parents in Texas

Originally published by Varghese Summersett, PLLC.

by Fort Worth Divorce Attorney Susan Smith

Caring for one’s children is one of the most important roles in our society. Whether you are a parent facing a custody battle, or a non-custodial parent seeking greater involvement in your child’s life, knowing the rights and duties of parents is extremely important. If you are a non-custodial parent, knowing which rights you may or may not have will allow you to remain involved in your child’s life without running afoul of your divorce decree or other final order.

When you first became a parent, you intuitively knew that your world had changed. Then there was another person that you had to protect, care for, play with, love on, and support. These intuitive feelings are sometimes the subject of a fight if you ever find yourself facing divorce or separation. Because these rights and duties can cause disputes, the Family Code does its best to specifically enumerate these rights and duties and break them down to standard language. The rights and duties of parents can be modified by the court or by agreement. A parent who fails to meet his or her duties could face severe consequences, including loss of custody.

What are the duties of parents?

Under Chapter 151.001 of the Texas Family Code, a parent can perform the following duties:

Care for, control, protect, and reasonably discipline the child (in Texas, reasonable discipline of a child is not only a right, but an obligation).
Support the child, including food, clothing, shelter, medical and dental care, and education;
Manage the child’s estate (with certain exceptions).

What are the rights of parents?

In addition to parental duties, a parent also has rights regarding his or her child. Many of these so-called “rights” are also duties that overlap with the list above. Generally, a parent has the right to:

Decide where the child lives (if the parent has “primary” custody).
Direct the moral and religious training of the child.
Receive the services of and earnings of the child. Among other benefits, a parent can sue if a child becomes injured and can no longer earn money or render services.
Consent to the child’s marriage or enlistment in the military. For example, a child cannot marry unless he or she obtained the written consent of the parent);
Consent to medical, dental, and surgical treatment. Subject to certain legal limitations, a parent can withhold consent to surgery and other medical treatments. This has been a topic of great debate in cases where religious beliefs clash with doctors’ recommendations.
Represent the child in a lawsuit and make legal decisions for the child. A parent can sue for herself, or can sue on her child’s behalf. For example, in the event a child suffers personal injury, a parent has the right to bring a lawsuit for their child. The parent may also sue for the same series of events if the parent suffered emotional distress or loss of services.
Give and receive money on behalf of the child. It is both a duty and a right of the parent to manage a child’s money unless that child is under separate guardianship.
Inherit from and through the child. Everyone knows that children inherit from their parents. However, if a child passes away with money or property, a parent may be entitled to inherit from their child.
Attend school activities and receive information concerning the child’s education.
Make decisions about the child’s education. This right is not unlimited; if parents live apart, the non-custodial parent has a right to give input in making educational decisions.

Although this list is very specific, it is not exclusive. Texas also has a “catch all” statute which says that a parent is also subject to “any other right or duty existing between a parent and child by virtue of law.” (TX Family Code Sec. 151.001). In other words, there may be special duties a parent must fulfill that are imposed by other statutes or by Texas courts. If you are seeking custody of a child, there are many factors not listed above which may demonstrate that the parent in custody is not fulfilling his or her parental duties.

What are the rights of a non-custodial parent?

A non-custodial parent is one who does not have primary custody of a child, but who may be considered a “joint conservator” of the child. A non-custodial parent has many of the same rights and duties as a custodial parent.

Unfortunately, it’s very common for non-custodial parents to be denied these rights. This may be because the non-custodial parent doesn’t know he is entitled to have a say. The legal rights below are considered fundamental rights of ANY parent, regardless of custody.

Even if you are not seeking custody of your child, you may wish to become more involved in his or her life. If the custodial parent denies these rights, the non-custodial parent can take legal action to ensure that he or she gets a “say” in the upbringing of his or her child.

Unless restricted by a court order, a non-custodial parent generally has the right to:

Receive information from the custodial parent about the child’s health, welfare, and education. Every parent has the right to know the state of the child’s health and welfare, regardless of custody.
Confer with the other parent when making a decision about the health, education, and welfare of the child. The custodial parent is legally obligated to confer with the non-custodial parent. The goal is to foster an atmosphere where both parents are involved in the decision-making process.
Access the child’s medical and educational records and consult with the child’s doctors and school officials. Every parent has the right to know about the child’s medical condition and educational status.
Attend school activities. A custodial parent cannot bar a non-custodial parent from attending a parent-teacher conference, a sports game, or another school-related event. It is a parent’s right to be involved with the child’s day-to-day school activities.
Be designated as an “emergency contact” for the child.
Consent to medical, dental, and surgical treatment during an emergency. Suppose your child has a medical emergency. You are not the primary custodial parent. However, as a parent, you have the right to make emergency medical decisions when the child is under your care.

(Texas Family Code Sec. 153.073.)

Of course, there are exceptions to all of the general rules discussed above. Rights or duties may be increased or limited by a court. These rights and duties become even more complex when parents are living apart, when a child is under guardianship, or when a step-parent or grandparent seeks legal rights regarding a child. When in doubt, an attorney can assist in clarifying and advocating for your rights as a parent.

To hire an attorney for child custody issues, contact us at (817) 203-2220.

The post Rights and Duties of Custodial and Noncustodial Parents in Texas appeared first on Fort Worth Criminal Defense Attorneys | Federal Criminal Defense Attorneys | DWI Lawyers | Divorce Attorneys | Family Lawyers | Asset Forfeiture.

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End-of-Year Bonuses? Possible Tax Pitfalls!

Originally published by Drew York.

After stepping down from running the family oil business (see last month’s article), Jed Clampett runs Mama’s Fried Pies, his late wife Rose Ellen’s fried pie business. With business booming, Jed decides to hire Elly May as the Vice President of Marketing so he can spend more time in the kitchen rather than sales. If Elly May remains with the company for a full five years, she will receive a base salary plus a $50,000 bonus, payable in $10,000 increments over five years with each increment vesting at the end of the calendar year (e.g., the first $10,000 vests on December 31, 2015) but not payable until the following June 1^st. Does this retention bonus structure risk additional taxes to Elly May and Mama’s Fried Pies?

Internal Revenue Code Section 409A

Yes. Mama’s Fried Pies’ bonus agreement with Elly May does not comply with IRS Section 409A because the payment is not made by March 15, 2016. The vesting 2015 bonus must be included in Elly May’s 2015 taxable income when it vests. Worse yet, Elly May owes regular taxes plus a 20% excise tax ($2,000) on the bonus amount, plus interest at the underpayment rate plus one percent. Under the Internal Revenue Code Section 409A, Mama’s should have paid the vested retention bonus (a) on a predetermined date; (b) pursuant to a fixed schedule of payments; or (c) no later than March 15^th of the calendar year following the year of vesting.

Tilting the Scales in Your Favor

To ensure that your bonus plan – either as an employee or paid by you as the employer – complies with the Internal Revenue Code, confer with your tax attorney or accountant to avoid the penalties of an IRS illegal bonus plan. Executives and employees receiving a retention bonus should confirm the legality of the arrangement before agreeing, and then consult with their employer. Likewise, employers must conform their bonus plans with the Internal Revenue Code to avoid conflicts, and possible litigation with their key employees. Now is the best time to review these bonus plans. Recently, the Internal Revenue Service ruled that if a bonus plan does not meet Section 409A’s requirements, but the company corrects the bonus plan no later than the year before the bonus first vests, the plan will be compliant.

Kudos to Jason Luter, ERISA and deferred compensation expert at Gray Reed, who just authored a client alert on this issue and assisted in editing this article.

The post End-of-Year Bonuses? Possible Tax Pitfalls! appeared first on Tilting the Scales.

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Packing Heat in Texas – What employers can do.

Originally published by Rob Radcliff.

 

This past legislative seesion Texas joined other states in passing open carry legislation for gun owners.  In short, as of January 1, 2016, qualified individual will be permitted to openly carry firearms.  The qualifications of gun owners and other frequently asked questions are addressed here.  Just like for concealed carry, businesses/employers can restrict individuals from bringing guns into their place of business.  Texas Penal Code Chapter 30.06 provides the “how” for concealed-carry.  The new provisions for open carry will follow the same requirements, which contains very specific notice requirements.  An article in the Dallas Morning News forecasts a new debate over open carry signs in the future.  For now, the sign requirements:

— Must appear in contrasting colors with block letters at least one inch in height.

— Must be in both English and Spanish.

— Must be displayed in a “conspicuous manner” at the property’s entrance.

— Must say: “Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly.”

Employers that want to restrict access should follow the statute

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“Insured v. Insured” exclusion inapplicable

Originally published by David Coale.

H&E Equipment sued Advanced Services after a fire at a plywood plant.  Advanced brought a third-party claim against Georgia-Pacific for indemnity, who in turn sought coverage from Kinsale Insurance.  Kinsale denied coverage on the ground that Advanced was also insured under the relevant policy, triggering this “insured v. insured” exclusion:  “This insurance does not apply to claims or ‘suits’ for ‘bodily injury,’ ‘property damage’ or ‘personal and advertising injury’ brought by one insured against any other insured.”  The Fifth Circuit reversed summary judgment for the insurer, reasoning: “Advanced did not, in turn, seek damages from Georgia-Pacific due to a property loss; it sought indemnity based on general tort principles for the property damage that occurred to another party. Advanced had no property damage, but it seeks protection from a potential duty to pay for someone else’s property damages.”  Kinsale Ins. Co. v. Georgia-Pacific, LLC, No. 14-60770 (July 27, 2015) (distinguishing Fidelity & Deposit Co. of Maryland v. Conner, 973 F.2d 1236 (5th Cir. 1992).

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Can’t Substitute an MOU for an Exacted Conservation Easement

Originally published by Jessica Owley.

A typical rather lengthy land use dispute in New Jersey highlights some of the issues that arise with exacted conservation easements. Asbury Farms, a landowner in Washington Township, New Jersey, sought to develop a chunk (chunk being the technical term…

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