Annotations 01/2014

(petitioner's out-of-town work assignment in Missouri was for six months and was only temporary in nature; petitioner's "tax home" in Florida did not become Missouri location; petitioner entitled to deduct associated travel, lodging and meal expenses; petitioner clearly hired only for temporary work and was not merely indefinite; petitioner's apartment lease had expiration date tied to anticipated length of assignment; some claimed expenses reduced due to lack of substantiation). 


(plaintiff, real estate broker, had contract with ranch owner to sell 22,720-acre ranch; contract was exclusive sale listing agreement entitling plaintiff to 7 percent commission; defendants, agents for different real estate broker, contacted ranch owner about potential buyers; plaintiff’s listing agreement expired on June 27, 2009, and extension not signed; a defendant bought ranch on July 1, 2009 and then sold portion of it on August 18, 2009, for over $8.2 million at time when extension clause in plaintiff’s agreement valid and enforceable which entitled plaintiff to compensation for sale of ranch; trial court awarded plaintiff $437,649 based on 7 percent commission less commission due defendant; appellate court affirmed; present action involves plaintiff’s claim of tortious interference of contract by defendants; court had diversity jurisdiction and ruled that two-year statute of limitations barred action; present action filed on August 1, 2013, but plaintiff not only ascertained injury caused by owner’s breach it also ascertained injury caused by alleged tortious interference of ranch owner at same time, which was in 2009; plaintiff could have filed present action without knowing amount of damages it would be awarded in lawsuit against ranch owner).


(petitioner owned apartment building that school district acquired via eminent domain proceedings; petitioner did not replace property, thus gain not avoided under involuntary conversion rules; petitioner's purchase price of building $82,500, but IRS disagreed as to cost of improvements that petitioner made to building; petitioner failed to carry burden of prove as to cost of improvements, so petitioner's basis not as high as claimed by petition and taxable gain more than reported; petitioner bore burden of proof because of failure to substantiate basis and maintain required records).      

 


(a potato grower and a potato processing company entered into a joint venture under which the grower agreed to supply the company with potatoes for use in manufacturing frozen potato products; the agreement granted the company shared control over the grower’s operation, and the grower was entitled to share in the profits; after harvest and before transport, a broken light bulb was discovered in one of the grower’s potato cellars, and a number of potatoes from that cellar were destroyed; but a worker on the company’s potato processing line found a broken light bulb encased in a Tuff-Skin sack; the company conducted an investigation, alleged that the bulbs were intentionally broken by an employee of the grower who was throwing potatoes, and terminated the parties’ agreement, refusing to process any more of the grower’s potatoes; the company did not provide formal notice of nonrenewal , as required under the contract, and the grower filed a breach of contract action; the trial court entered summary judgment for the company, but, on appeal, the court reversed, finding that the grower was entitled to a finding that the company breached the notice-and-cure provision of the contract; a genuine issue of material fact existed, however, as to whether the asserted glass contamination breach was incurable, thereby excusing the company from providing to the grower notice and an opportunity to cure).


(decedent bequeathed his personal property to his wife, the stepmother of his son, “to be hers to use and enjoy for and during the term of her natural lifetime”; the will provided that at the death of the wife, “all that remains of my estate” was to be divided amongst his son’s children; the wife survived the decedent by 16 years; after the wife's death, the grandchildren sought to recover the value of a $100,800.79 bank account that existed at the time of the death of the decedent; the wife's argued that she was entitled to consume the personal property during her lifetime, and the trial court agreed; in reversing that portion of the order, the court found that in Illinois, a life estate in personal property did not grant the life tenant the right to consume the corpus of the property; rather, the wife was entitled only to receive income from the principal; to grant to a life tenant the right to invade and consume the principal, a testator had to grant such a right in explicit language).


(plaintiffs and defendants owned property separated by a vacated residential road that had been dedicated to the county by the parties’ common predecessor in interest; many years later, the dedication was vacated by the county, and defendants sought to sell their property, including the entire width of the vacated road; plaintiffs filed a quiet title action in response, arguing that they were the owners of their side of the road, up to the centerline; the trial court granted judgment for defendants, finding that because the parties’ predecessor had included only defendants’ portion of his property in the residential subdivision he created, he evinced an intent to grant the entire portion of the dedicated road for the use of the subdivision; in reversing the trial court’s judgment, the court found that ORS 93.310(4) established a strong presumption that each adjoining landowner held title to its half of the road, up to the center line; defendants presented no evidence of the grantor’s intent sufficient to overcome the statutory presumption; as such, plaintiffs were entitled to relief in their quiet title action).


(parties are neighboring ranchland owners with drainage ditch running from plaintiff’s property to defendant’s property; defendant allowed cattle to tromp in dirt such that ditch backed-up and flooded plaintiff’s hay meadow causing significant damages for plaintiff; state court found defendant in violation of state law which required defendant to clean out ditch on annual basis in accordance with grade at or below level of bottom of road culvert installed by county in 1988; in retaliation, defendant got USDA to investigate potential Swampbuster violations of plaintiff due to flooded meadow; U.S. Court of Appeals for Eighth Circuit ruled for plaintiffs holding that plaintiffs were entitled to use meadow as they did before effective date of Swampbuster provisions and that USDA to determine necessary dredging and cleaning of ditch to maintain land in pre-Swampbuster status; USDA established sawtooth gradeline which failed to adequately drain ditch to allow plaintiff pre-Swampbuster use of meadow, and defendant used USDA gradeline when annually cleaning ditch; present action involved plaintiff’s claim that defendant not following state law in terms of adequately cleaning-out ditch which caused meadow to flood; plaintiff’s expert testified that USDA errors in established sawtooth gradeline which would not allow meadow to drain to extent that plaintiff could have pre-Swampbuster use of meadow; trial court determined that state law (Neb. Rev. Stat. Sec. 31-224) did not require yearlong obligation to keep ditch clean, but only required necessary cleaning from March 1 to April 15 annually; trial court also determined that plaintiff failed to establish that defendant failed to perform statutory duty to clean ditch and that plaintiff had failed to prove damages; on appeal, court affirmed; required cleaning need only occur from March 1 to April 15; court held that clean-out of ditch in compliance with USDA’s erroneous gradeline satisfied state law and then stated that issue of USDA’s survey establishing sawtooth gradeline not before trial court).


(plaintiff’s predecessor in interest entered into an agreement for a right of first refusal (ROFR) to purchase or lease defendants’ property; the ROFR was binding upon the parties, their heirs, representatives, successors in interest, and assigns, and plaintiff’s predecessor paid $4,000 for this right; thirteen years later, defendant notified plaintiff that she was terminating the ROFR; the lower court granted summary judgment to the defendants, finding that the ROFR was contrary to public policy because it did not contain a definite term of years or months; in reversing the judgment, the court ruled that the ROFR was sufficiently definite because it did not place a restraint on alienation; rather, it provided a “possible buyer who was constantly available”).


(Treasury Department to begin pilot program in late 2014 with a few employers to allow saving of only slight amounts in IRA-type account; account can be opened with as little as $25 and $5 every payday via payroll deductions (with no employer match); no fees involved, but account funds only earn interest at rate set forth in Government Securities Investment Fund in federal employees' Thrift Savings Plan which earned approximately 1.5% to 3% over past five years; subject to Roth IRA income and contribution limits; when balance reaches $15,000 or after 30 years (whichever occurs first) funds must be rolled into regular Roth; account can be rolled over to regular Roth at any time and can be transferred to new employer upon job switch; proposal largely viewed as political stunt and is not viable long-term solution to retirement-savings issue insomuch as rate of return unlikely to keep up with inflation, but option may be worthwhile for persons nearing retirement; better options currently exist allowing for minimal investment with no charges or fees and provide for higher rate of return with minimal risk).


(the court ruled that the defendant (USDA) must release to the plaintiff (a newspaper in Sioux Falls, SD), pursuant to the Freedom of Information Act (FOIA), records showing how much money individual retailers received from taxpayers each year through the $72 billion (in 2012) Supplemental Nutrition Assistance Program (SNAP) (formerly known as “Food Stamps”);  the plaintiff had requested the information in 2011 as it investigated allegations of growing SNAP fraud amongst smaller retailers; the USDA argued that the information was exempt from FOIA disclosure under 7 U.S.C. § 2018(c), which shielded from public disclosure “income and sales tax filing documents” submitted by retailers in their applications to apply for participation in SNAP; on appeal, the court found that the district court, in denying the plaintiff’s request, had misread the statute; a plain reading of the exemption statute, the court ruled,  showed that it applied to information submitted by the retailer to the USDA, not information collected by the USDA from third-party payment processors).


(petitioner put 2009 return on extension until October 15, 2010; 2009 return prepared using TuboTax which instructed petitioner to mail return to Kansas City, MO, IRS office; petitioner claimed that return timely filed, but IRS did not receive return until March 12, 2012; only evidence was USPS receipt showing unspecified document delivered to Department of Treasury in Philadelphia on March 13, 2010; IRS claimed return filed late and petitioner claimed penalties should not apply because return timely filed; court agreed with IRS because evidence did not show that document delivered on March 13, 2010 was petitioner’s 2009 return and TurboTax instructed return be mailed to Kansas City, and petitioner requested extension on April 15, 2010, a time after petitioner allegedly filed 2009 return; penalty imposed).


(petitioners, married couple, had several IRAs and moved funds in and out of the accounts, claiming that all fund movements were rollovers allowed under 60-day rule on a once-a-year basis; court determined that statute at issue, I.R.C. §408(d)(3), does not apply on calendar year basis but begins on date on which taxpayer withdraws funds; accuracy-related penalty imposed).


(IRS provides automatic extension of time through December 31, 2014, for decedents' estates without filing requirement to elect portability of deceased spouse's unused exclusion amount for benefit of surviving spouse; relief applicable to estates of decedents dying from January 1, 2011 through December 31, 2013; relief applicable to same-gender "marriages" in states where such unions recognized legally or are allowed; extension is applicable to estate that has already filed a timely estate tax return irrespective of whether portability election made; no application to deadline for filing refund claim for gift or estate taxes paid by surviving spouse or executor because portability election not made; no provision made for non-executor surviving spouse to make election - choice remains with executor; to make election, return for year of death should be used with notation in red made at top as follows:  "Portability Election Based on Rev. Proc. 2014-18").


(petitioner, alleged S corporation, petitioner had ESOP as shareholder and other non-ESOP shareholder who was petitioner's only employee; court noted that I.R.C. Sec. 409(p) limits tax benefits of ESOP that owns S-corporate stock unless ESOP provides meaningful benefits to employees; if I.R.C. Sec. 409(p) is violated excise tax of 50 percent of prohibited allocation applies and ESOP no longer qualifies as ESOP; violation of I.R.C. Sec. 409(p) occurs when "disqualified persons" (any ESOP participant owning 10 percent or more of ESOP's stock) do not own 50 percent or more of S corporate stock; in present case, ESOP owner held 100 percent of shares, triggering I.R.C. Sec. 409(p); while corporation had two classes of stock which would disqualify it for S corporate status and, therefore, would not result in I.R.C. Sec. 409(p) violation, statute of limitations had run on IRS from adjusting petitioner's tax liability based on status; thus, petitioner treated as S corporation and petitioner liable for additional $161,200 in taxes and penalties of approximately $76,000). Annotation


(petitioner acquired 34-unit apartment building at auction in late 1980s, financing purchase through HUD which later repeatedly cited petitioner for housing violations and initiated foreclosure action; petitioner paid-off mortgage and operated building another 8 years and then quitclaimed building to charity for nominal amount; charity provided written acknowledgment of gift stating that petitioner received nothing in return; petitioner, however, did not attach acknowledgment to return, and appraisal summary submitted with Form 8283 did not identify appraiser that supported petitioner's claimed value of gift of almost $500,000; charity ultimately sold property to third party for $60,000; earlier appraisal conducted for non-tax purposes and later appraisal deemed deficient as it was based on repairs that didn't occur; IRS also challenged petitioner's ownership of building with court determining that any deduction would pass-through from petitioner's S corporation; court determined that appraisal inadequate insomuch as appraiser not qualified and basis overstated and condition of building misrepresented; appraiser also deemed not qualified; substantial compliance inapplicable and deduction denied).


(plaintiff filed an action against the defendants, alleging that their operation of hot air balloons interfered with the plaintiff’s farming operating, created a nuisance, and diminished the value of plaintiff’s property; plaintiff sought injunctive and declaratory relief; two years later, after many discovery and motion proceedings, the plaintiff voluntarily dismissed the action, without prejudice; defendants filed a motion to recover $337,301.30 in attorney fees, arguing that their efforts to obtain the dismissal resulted in the enforcement of an important public right, the right to exercise sovereignty of the airspace; the trial court denied the motion, and the appellate court affirmed; the court agreed that the action did not vindicate an important public right of using airspace as contemplated by Cal. Code Civ. P. 1021.5, so as to allow the defendants to recover attorney fees).


(plaintiff, a bank, made 10 loans to defendant farming company  to support its dairy operation; the bank properly filed its financing statement and obtained a perfected security interest in the defendant farming company's dairy cows; defendant producers sold commodities, on credit, to the farming company and filed lien notices with the Secretary of State;  the farming company defaulted on its loans to the bank, and the bank took possession of the cows, selling them at auction; the producers claimed an interest in proceeds, arguing that the cows had consumed the liened agricultural products sold by the producers; the trial court granted relief to the producers, finding that their lien extended to the livestock; in reversing the trial court’s judgment, the Idaho Supreme court ruled that statutory liens on agricultural products created under I.C. § 45-1802 did not continue in the livestock that consumed the liened products; had the legislature sought to include livestock in the definition of “agricultural product” it could have done so).


(plaintiff, a farm company, and defendant, a cooperative, entered into 10 contracts for the sale of grain; each contract contained a provision requiring dispute resolution through arbitration by defendant, the National Grain and Feed Association (NGFA); when a dispute arose regarding the contracts, the cooperative obtained a default judgment in the amount of $2.5 million against the plaintiff through arbitration; the plaintiff filed a motion to set aside the judgment with the NGFA and signed three arbitration service contracts to reopen the dispute; the NGFA reopened the arbitration and it was pending when plaintiff filed its complaint against defendants asking the trial court to stop arbitration, arguing that the NGFA did not have jurisdiction to arbitrate the dispute; the trial court dismissed the action and the appellate court affirmed, also allowing NGFA’s motion for sanctions against the plaintiff; the court found that the plaintiff agreed to arbitrate any disputes arising under the contracts and that its action against the NGFA was frivolous since the NGFA was immune from suit).


(plaintiff was the personal representative of the estates of a deceased father and son who were both killed when their truck collided with a train at a private railroad crossing; plaintiff filed a negligence action against the railway company, alleging that it failed to inspect and maintain the crossing and that it negligently operated the train, despite knowing that traffic crossed its tracks; the railway company filed counterclaims alleging negligence by the decedents; the railway company then sought summary judgment, arguing that the duty it owed to the decedents, as trespassers on a private crossing was to refrain from wilfully injuring them; in granting summary judgment for the railway company, the court found that the railway company owed the decedents only a duty to refrain from willful or wanton conduct because this was a private crossing; there was no evidence of willful or wanton conduct by the railway company; the court went on to find that even if the railway company owed a duty of reasonable care to the decedents, the plaintiff failed to show, as a matter of law, a breach of that duty; the train was traveling 41.2 miles per hour and sounded its horn; no earlier horn blowing was required).


(in an antitrust class action brought on behalf of dairy farmers against milk cooperatives and processors, plaintiffs asked the court to exclude certain opinions and testimony of defendants’ expert witness; plaintiffs alleged that the opinions were unreliable, irrelevant, and did not satisfy the admissibility standards of Daubert v. Merrell Dow Pharm., Inc. 509 U.S. 579 (1993) and its progeny; plaintiffs also alleged that the expert did not have the qualifications necessary to provide expert testimony regarding “cooperative governance”; in granting in part and denying in part plaintiffs’ motion, the court found that the expert could testify as to the relevant geographic market and his univariate analysis, but could not testify as to “prices paid” when using USDA survey data; the survey was based upon prices that had not been verified as having actually been paid; the court also found that defendants had not shown that the expert was qualified to opine regarding true cooperative governance).    


(Chapter 12 case where creditor claimed that debtor paid their attorney out of tobacco proceeds check which debtor claimed was cash collateral subject to debtor's lien; creditor objected to  confirmation of debtor's reorganization plan and sought dismissal of case  for cause under 11 U.S.C. Sec. 1208(c) on basis that debtor did not comply with Operating Order; at hearing, court noted that debtor's operating reports contained errors, inconsistencies and omissions and debtor was unable to account for cattle and had converted tobacco proceeds check; case dismissed for cause).  


(farm purchasers sought to oust tenants who were farming the property under a three-year written lease; the purchasers filed a complaint for forcible entry and detainer (FED) against the tenants and sought an order enjoining them from possession; the tenants denied the allegations and asserted that they were in lawful possession of the farm under the lease; nearly two months after filing the complaint, the purchasers delivered a notice of termination of tenancy to the tenants, listing instances in which the tenants had defaulted under the lease; the trial court issued an order preliminarily enjoining the tenants from possessing the farmland, pending the outcome of the trial; the tenants filed an interlocutory appeal, and the appellate court vacated the preliminary injunction; the court found that the FED action was prematurely filed and the tenants’ rights to due process were violated because the purchasers failed to serve the tenants with proper written notice of termination 10 days before filing their action; the cause was dismissed without prejudice).

 


(a decedent and his wife signed a trust, which was named “revocable” less than one year before his death; the trust named his wife, the stepmother of his daughters, as the successor trustee; his daughters were named as beneficiaries after his wife’s death; after the decedent passed away, the stepmother amended the trust to eliminate the decedent’s daughters as beneficiaries; one daughter filed an action against the stepmother, seeking to have the trust declared irrevocable; the trial court heard much testimony regarding the capacity of the decedent and his intentions; the trial court denied the daughter’s request, ruling that the decedent did not suffer from diminished capacity and that the trust could not be declared irrevocable due to scrivener’s error, misunderstanding, overreaching, or undue influence; the appellate court affirmed, finding that the daughter had failed to meet the high standard of showing that the trial court’s findings were “clearly erroneous”).


(in 1979, appellants’ predecessor in interest sold two tracts of land to appellees’ predecessor in interest; the deed granted appellees’ predecessor an express easement for egress and ingress across the neighboring property still owned by the grantor; shortly after the conveyance, the grantor erected a fence on his property to keep in his goats and sheep; in 1993, the grantor conveyed the neighboring property to his children (appellants), and they erected a high fence on the property; appellees purchased their 800-acre tract in 2010, and a dispute arose over the continuing validity of the easement; the trial court found that the easement did not violate the statute of frauds because a person familiar with the area could locate the easement with reasonable certainty; on appeal, the court affirmed, also finding that appellants failed to prove adverse possession; the high fence was not a “designed enclosure,” but was built to prevent deer from leaving the property; there was no evidence that the appellants had established a hostile “claim of right” to the property).


(court rejected plaintiff's challenge to defendant's "no hazard" determination for offshore aerogenerator complex; in 2010, court had determined that defendant's "no hazard" determination not adequately supported; in present case, court noted that local airfield had installed digital processor to avoid interference by aerogenerators; defendant properly addressed main reasons for its decision and considered most important objections; defendant entitled to Chevron deference; National Environmental Policy Act does not provide means for review of defendant's decisions). 


(in split decision, court reversed trial court’s decision and upheld California’s low carbon fuel standard (LCFS) as constitutional (lower court had found violation of interstate commerce clause); LCFS caps average carbon intensity of transportation fuels in CA market and fuel blenders required to meet either specified annual carbon intensity in fuels or use credits to comply with standard if intensity too high; for fuels less carbon intensive than mandated, credits available to sell to companies that need to comply with mandated standard (cap and trade system); CA used “life cycle analysis” that takes into account all carbon emissions generated in the production and refining of fuel and transportation of such fuel to market, and such analysis challenged as facially discriminating against out-of-state producers; court disagreed on basis that carbon intensity measurement based on scientific data and state not imposing its regulations on other jurisdictions; case remanded on question of whether CA fuel standard discriminated in purpose or effect; again in split decision, court denied petition for review).


(plaintiffs were homeowners in a tiny village in southwestern Illinois; the plaintiffs alleged that they were injured because a nearby refinery leaked benzene and other contaminants into the groundwater under their homes; the plaintiffs filed a class action against the former and present owners of the refinery, and the district court certified the class; the defendants appealed the class certification, and the Seventh Circuit Court of Appeals, in a decision authored by Judge Posner, reversed; the court found that the district court improperly treated predominance as a pleading requirement; the trial court judge did not properly consider evidence countering the plaintiffs’ assertion that issues common to the entire class predominated over issues that varied among the members of the class; the district court was instructed to reexamine the issue of certification)


(decedent owned general partnership interest with son that made up in excess of 50 percent of decedent's estate and estate's executor had elected installment payment of federal estate tax for estate; partnership assets consisted entirely of commercial real estate parcels titled in decedent's and son's names as tenants-in-common as nominee for partnership; executor proposed to distribute undivided interests in each parcel to partner's on pro-rata basis and then recontribute such interests to newly formed limited liability companies with each new LLC to hold a separate parcel; no other money or property involved in transaction; based on Rev. Rul. 66-62, IRS determined that transaction was mere change in form with no acceleration of installment payment of estate tax triggered; no mention of whether election itself was valid).


(applicants owned a sand and gravel quarry that had been in operation for 50 years; when applicants purchased the property in 1997, the local environmental commission ruled that a land-use permit was required; applicants appealed to the Environmental Division (ED), and also applied for an Act 250 permit; the ED granted the permit, with conditions, and the applicants appealed that decision as well; in the consolidated appeal, the applicants filed a motion to adopt a settlement agreement; neighbors who owned property across the road from the quarry objected, arguing that the change in location of the access point to the quarry in the settlement agreement was a material change that required remand; the trial court disagreed, finding that the changes were not substantial enough to change the character of the project; the trial court also found that a permit should issue, and the neighbors appealed; on appeal, the court affirmed, remanding only for a clarification of the condition prohibiting vaguely-defined noise levels; given the undisputed evidence that significant traffic already existed near the quarry, the trial court did not abuse its discretion in finding that the added traffic would not be adverse; it was in keeping with the existing character of the area; similarly, the trial court did not err in finding that there was no evidence of an adverse impact on any historic site).

(IRS Small Business/Self-Employed (SB/SE) examination unit can disclose to Office of Professional Responsibility (OPR) an audit report and unagreed case package of practitioner engaging in practice before IRS before case is resolved at Appeals or via statutory notice of deficiency when OPR referred practitioner to SB/SE exam unit for examination; thus, for practitioners referred to IRS for examination of practitioner's own return as result of Circular 230 investigation, OPR can obtain copy of revenue agent's report before Appeals completes review of case).

In a Chief Counsel's Advice, the IRS has said that gift taxes can be refunded when a local court correctly applies state law to rescind the gift.  But, the IRS noted that no refund will occur until the taxpayer recovers the original gift.  In addition, the IRS said that the statute of limitations should be extended to allow the taxpayer to apply for a refund when the taxpayer gets the gift back.  C.C.A. 201412015 (Jan 15, 2014). 


(a nonprofit citizen’s group filed an action alleging that the public was entitled to access to the lands adjacent to three county bridges, so as to allow them recreational access to the Ruby River; the owners of the property over which the bridge easements ran had erected fences blocking public access to the river; the trial court granted summary judgment for the nonprofit group as to two of the bridges, finding that the public was entitled to use the entire 60-foot right of way (granting river access) for these bridges because they were granted to the county by statutory petition and dedication, respectively; the lower court had found, however, that the third right-of-way did not include public access to the property adjacent to the bridge because the right-of-way had been established by prescriptive use;  the lower court found that the county had a secondary, non-public easement to access the property to maintain the bridge, but that the public did not have access to this same property; in reversing the lower court’s ruling, the Supreme Court of Montana declared that the trial court erred in finding a secondary easement independent and separate from the public’s easement; the court held that the areas reasonably necessary to support and maintain the bridge and to ensure convenient use of it were included in the public road right-of-way and could be used by the public to access the river; one justice issued a strongly worded dissent arguing that the court had granted a public prescriptive easement where the Legislature had determined that none should exist ).


(petitioner's vehicle involved in accident and determined unsalvageable by insurance company; insurance company paid petitioner $49,950 for loss; petitioner claimed $12,020 casualty loss attributable to vehicle by taking original cost of vehicle of $60,020 and subtracting $48,000; petitioner miscalculated casualty loss; petitioner must first compute difference in value of vehicle before casualty and immediately after the casualty, and from that result subtract the insurance recovery (unless cost of repairs used - not at issue in case); petitioner did not provide evidence of before and after values; court would not assume that value immediately before accident was equal to value of vehicle as new; casualty loss deduction denied).


(an adopted daughter contested the application to probate her father's will on the ground that a nephew had unduly influenced him; the trial court granted a partial no-evidence summary judgment motion in favor of the nephew, and the daughter filed an accelerated permissive appeal from the order pursuant to Tex. Civ. Prac. & Rem. Code § 51.014(d); in dismissing the appeal, the court found that it lacked jurisdiction because the requirements of § 51.014(d) were not met; whether undue influence was exerted was an ultimate question of fact for the fact-finder; no controlling question of law was at issue).


(defendant, a feed company, entered into a contract with plaintiff, a global dairy supplier, for the purchase and delivery of whey protein concentrate (WPC); the parties continued their arrangement for several years until they attempted to negotiate a new contract; plaintiff sent an email to defendant, attaching a proposed sales confirmation, requesting a signature and stamp for acceptance; the proposal included a term requiring defendant to pay for the pallets upon which the WPC would be delivered; defendant did not sign or stamp the proposal, but objected via email to the pallet charge; plaintiff then emailed defendant a revised confirmation, which also included the pallet charge provision; defendant again objected  to the provision and did not sign or stamp the confirmation; defendant did not purchase any more WPC from plaintiff, and plaintiff sued defendant for breach of contract; the court granted summary judgment to defendant, finding that defendant had properly objected to the written confirmation’s contents within 10 days of receipt, as was required by Massachusetts’ version of UCC § 2-201(2)(applicable to merchants); defendant was not required in its objection to deny the existence of a contract, as argued by plaintiff; rather, it was sufficient that defendant gave some written objection to the confirmation’s terms).


(a widow lived on an 83-acre tract of land from 1960, when she married her husband, until the 1990s, when she moved a short distance away; her husband died intestate in 1970, and she believed she owned the property, but under state intestacy law she would only receive one-third of the property if she exercised her dower right, which she did not, and property ultimately passed entirely to great nephew; widow paid the property taxes, provided all maintenance on the property, and granted her great nephew permission to hunt the property; only when she attempted to sell the property in 2009 or 2010 did the widow realize that title to the property was in her husband’s name only; she filed an action seeking a declaration of the true owner, and the trial court found that the widow had acquired title through adverse possession; on appeal, the great nephew argued that the widow was occupying the property only by permission; in affirming the trial court’s judgment, the court ruled that the widow had not occupied the property permissively; it was not necessary that the widow know she did not have title to the property for her possession to be “adverse”; her possession was exclusive, actual, adverse, continuous, open, and notorious for more than 20 years).


(in an adversary proceeding in a Chapter 7 bankruptcy case, a question arose as to whether water shares belonged to the debtor’s bankruptcy estate or whether a creditor trust that had loaned money to the debtor’s family trust had a security interest in the water shares that superseded the Chapter 7 trustee’s interest; the trustee argued that the debtor had never transferred the water shares to his family trust and that, therefore, he could not have pledged them as security for a loan by the creditor trust to the family trust; the court found that because the shares had not been transferred to the family trust, they could not be considered part of the family trust; however, the court found that a genuine issue of material fact existed as to whether the water shares were appurtenant to the property that was transferred to the family trust and, therefore, transferred with the property to the family trust; the court also ruled that under Utah water law, the water shares remained real property and a security interest in them could be perfected by the shares’ inclusion in a recorded deed of trust; because a question remained as to whether the water shares were properly conveyed to the family trust and offered as collateral, the court could not make a finding as to whether the creditor trust had properly perfected its security interest in the water shares that had been included in a recorded deed of trust).


(plaintiffs hired defendant, a septic pumping service, to spread septage on their farm as fertilizer; defendant obtained permission from the Wisconsin Department of Natural Resources, and applied the septage; several years later, the plaintiffs discovered that their well water contained elevated levels of nitrates, which led to the deaths of many of their cattle; plaintiffs sued defendant, alleging, inter alia, that defendant was negligent in spreading and storing the septage;  the plaintiffs then added numerous insurers as defendants; all of the insurance policies at issue contained an exclusion for ”pollutants,” which included “waste” as an example; in affirming the trial court’s finding that the policies excluded coverage for the septage damage, the court ruled that the policies unambiguously excluded the septage; any reasonable insured, stated the court, would view septage as “waste” or a “pollutant”; this was not a case where an everyday activity went slightly and surprisingly awry; reasonable insureds hauling septage should know of its danger).


(plaintiffs filed a putative class action against defendant, arguing that defendant’s use of the term “organic evaporated cane juice” (ECJ) as an ingredient in its yogurt was deceptive because the ingredient was actually sugar or “dried cane syrup”; plaintiffs also alleged that defendant’s “natural” label was deceptive;  plaintiffs contended that defendant violated various federal and state laws regulating food labeling and advertising; the court denied defendant’s motion to dismiss on the ground of preemption, finding that the Federal Food, Drug, and Cosmetic Act, which did not include a private right of action, did not preempt plaintiffs’ state law claims based upon food labeling violations because there was no conflict between the federal and state requirements; the court also denied the motion to dismiss the ECJ claims on primary jurisdiction grounds, except for those claims based upon the standard of identify for yogurt; the court did dismiss the “natural” claims on standing grounds, finding that the plaintiffs did not show that they relied on the label when purchasing the product).


(a mother leased different tracts of farmland to her two sons;  after son one could not pay to farm his tract in 2010, the mother signed an agreement leasing that tract to son two from 2010 through 2015; In 2011, son one told his mother that he wanted to farm the land again, and the son and his mother re-signed their original lease, purportedly extending the lease from 2011 through 2013; son one gave his mother a check for $28,522, but the written lease did not list the consideration; when son two learned of the new lease between son one and his mother, he reminded his mother that he had a written lease for the same property through 2015; the mother returned son one’s check and agreed that son two should farm the land; son one filed a breach of contract action against his mother and brother, and the district court dismissed his claims; on appeal, the North Dakota Supreme Court affirmed, finding that son one’s contract was invalid under the statute of frauds , N.D.C.C. § 9-06-04 because it did not contain the essential term of express consideration; the court ruled that the parol evidence rule could not be used to supply a missing essential term; the court also found that son one was not entitled to equitable relief because son one did not demonstrate part performance that removed the contract from the statute of frauds).


(petitioners, married couple, not entitled to deduct expenses related to planning development of real estate that petitioners did not sell; petitioners had not fully abandoned development plan; accuracy-related penalty imposed). 


(appellants were five farmers who planted corn on newly broken, non-irrigated acreage in Colorado in the spring of 2008; before planting the corn, each appellant obtained Group Risk Income Protection (GRIP) policies, which provided (as required by the Federal Crop Insurance Act) that the insurer would not insure any acreage where the insured had failed to follow “good farming practices” (GFP); in 2009, the insurer for three appellants determined that their acreage was ineligible for insurance coverage for 2008 because they failed to follow GFP; the insurer for the other two appellants determined that it could not make a GFP determination; the Risk Management Agency (RMA) subsequently determined that all five appellants had failed to follow GFP, and the appellants received premium refunds; the district court affirmed the RMA’s findings, and on appeal, the court agreed; the record did not support appellants’ contentions that the RMA’s GFP determination was predetermined or influenced by personal bias; the RMA examined scientific evidence and determined that planting on newly broken, non-irrigated ground—without a fallow period—was not a GFP).


(creditors sought summary judgment on their claim that the debtor’s obligation to them should not be discharged in his Chapter 7 bankruptcy proceeding; the court granted the creditors’ motion, finding that the $135,000 debt was excepted from discharge under 11 U.S.C. § 523(a)(2)(A); the court had already ruled in a December 17, 2013, decision, that the debtor’s bankruptcy should be converted from a Chapter 12 to a Chapter 7 case on the grounds of fraud; the court had then found that the debtor did  not tell the creditors he had filed bankruptcy when he contracted with them for the sale of hay; the law of the case applied to establish § 523(a)(2)(A)’s required elements: (1) fraudulent omission by the debtor; (2) knowledge of the deceptiveness of his conduct; (3) an intent to deceive; (4) justifiable reliance by the creditor; and (5) damage to the creditor).


(issue was whether bonus depreciation available for various building projects at hotel/casino/restaurant complex; property was being renovated and consisted of four separate construction projects over several years; bonus depreciation not available because taxpayer didn't separately identify property associated with project so that qualified property could be identified - petitioner only utilized cost segregation study and didn't satisfy burden of proof to show that properties qualified). 


(IRS Chief Counsel Memo involving co-op advertising allowance (amount retailer receives from vendor for placement of advertisement of vendor's products in retailer's advertising flyer) and whether it is domestic production gross receipts for purposes of I.R.C. Sec. 199 deduction; IRS noted that determination is fact-dependent and determined on basis of whether allowance is advertising income from retailer's performance of advertising services for vendor and whether flyers qualify for advertising income exception of Treas. Reg. Sec. 1.199-(3)(I)(5)(ii)).


(in a boundary dispute between neighboring landowners, appellees sought to quiet title to their farm as described in their deed; appellees sought summary judgment, based upon their deed and a survey establishing their ownership to the disputed property; appellants responded by arguing that their deed conflicted with that of appellees and that they had a survey to support their position; appellants failed to name the surveyor, present a copy of the survey to the court, or submit an affidavit in support of their position; finding that appellants had failed to produce “affirmative evidence” to oppose the motion, the district court granted summary judgment to appellees, awarding them costs and attorney fees; on appeal, the court reversed on the portion of the order granting attorney fees; absent statutory authority, attorney fees were not allowable as costs).


(a late physician’s father was named as the beneficiary of his daughter’s $300,000 life insurance policy, even though that policy was also pledged as collateral for a business loan; after the daughter’s death, the father failed in his effort to force the bank to recover its lien from other pledged assets; the father then filed a claim against the estate to impose a claim on the estate assets as a claim in subrogation of the banks’ rights; the father settled his claim with the estate through an agreed judgment making him an unsecured creditor of the estate; years later, when the estate was insolvent and he had collected nothing, the father filed an action against the estate’s executrix, alleging that she breached fiduciary, statutory, and common law duties owed to him; in granting summary judgment to the executrix, the court ruled that she did not, under Texas law, owe a duty of care to the father, who was merely an unsecured creditor; any fiduciary duty was owed to the heirs and legatees, not to the creditors of the estate).


(petitioners, married couple, received loan from husband's parents to buy principal residence; home equity loan agreement and home equity deed of trust signed in favor of parents; terms were $130,000 loan with interest at 3.5 percent plus prime rate not to exceed 12 percent annual rate; court termed agreement a credit line mortgage and not a purchase money mortgage; petitioners did not record or perfect agreement; under I.R.C. Sec. 163, lender's security interest must be perfected under local law as a prerequisite to claiming mortgage-related deductions; net result was savings of $2,665 in recording tax, about $1,000 in legal fees, but loss of approximately $30,000 of deductible interest).


(gain from sale of LLC (taxed as a partnership) real estate characterized by petitioner as long-term capital gain; court upheld IRS determination that proceeds of sale should have been reported as ordinary income because real property held for sale to customers in ordinary course of business; evidence showed that property acquired for development and sale and petitioner couldn't show that sales not frequent and substantial; over 80 purchasers sought after by petitioner). 


(plaintiffs, several environmental groups, sued the defendant in 2008, seeking to compel the defendant to adopt new standards for Florida’s water quality under the Clean Water Act; specifically, the plaintiffs claimed that Florida’s narrative standards were insufficient and that the defendant was required to issue numeric standards for the state; in 2009, the defendant ordered Florida to issue numeric standards and determined that if Florida failed to do so, the defendant would set those standards; the court then issued a consent decree approving an agreement among the parties stating that the defendant would be required to impose numeric standards only if Florida failed to do so; in 2012, Florida submitted to the defendant for approval a set of nutrient criteria, including numeric criteria for some waters and narrative criteria for others; the defendant approved the proposal and then amended its 2009 determination to conform to the new standards; the defendant then filed a motion to modify the consent order to conform with these amendments; the plaintiffs protested, arguing that the decree could not be modified; in granting the EPA’s motion, the court ruled that underRufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367 (1992), the consent decree could be modified because there had been a “significant change in the factual conditions and law”; studies showed that appropriate numeric criteria for streams had proven elusive).  

 


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