Annotations 10/2009

(case involves question of whether group of waterfront homeowners are liable for trespass and violation of Rivers and Harbors Appropriation Act of 1899 and the Clean Water Act because the ambulatory tideland property boundary intersects shore defense structures that homeowners erected; trial court ruled against homeowners and ordered removal of certain structures and payment of civil fine; trial court judgment affirmed in part and reversed in part).


(for purposes of the $40,000 non-farm income limitation to be eligible to claim the tax exemption for a farm residence, homeowner may defer W-2 income in an amount which lowers the off-farm income to less than $40,000, can offset W-2 non-farm income with Schedule C or D non-farm losses to reduce the net non-farm income, and can offset Schedule C income so that the resulting total net of non-farm income is less than $40,000).


(plaintiff claimed that defendant violated state law by making impermissible deferral of impact review and failing to mitigate impacts, and conducting on-site meeting to measure noise from aerogenerators without public notice; court determining that on-site meeting was not a “meeting” requiring public notice under state law, and town clerk to reasonable steps to provide public notice in limited timeframe; no violation of state law concerning impact review). 


(out-of-state photographer providing services in Iowa must collect and remit use tax on purchase price of a disc mailed to a customer in Iowa because the photographer distributed tangible personal property).


(defendant cannot impose state estate tax on beneficiaries of life insurance proceeds that are not included in the decedent's probate estate; beneficiaries entitled to refund of tax, penalties and interest).


(farm pickup-truck which was shared between father and son covered under son's automobile insurance policy; policy language excluding coverage for "any vehicle...which is furnished or available for your regular use" inapplicable - son's use only periodic).


(plaintiffs (married couple) liable for fatal injuries sustained by teenage friend of plaintiffs while riding son's ATV; jury determination that plaintiffs 70 percent at fault upheld; plaintiffs disregarded warning label and manual made consequences of such disregard foreseeable).


(decedent’s father sued landowner for liability arising from decedent’s death while riding ATV on landowner’s property and was thrown from ATV upon striking cable across dirt road that ran across landowner’s farm; landowner not grossly negligent under facts presented and, therefore, had immunity from liability under state statute).  


(tax-exempt farmers' cooperative does not qualify for small ethanol producer credit because it was not an eligible small ethanol producer under I.R.C. Sec. 40(g) for a portion of the tax year at issue). 


(defendant, a private party, may not oppose confirmation of partition sale by enforcing provisions of state law which restrict a corporation's right to acquire and own agricultural land; only state attorney general may enforce such provision).


(plaintiff, based on evidence, entitled to rebuttable presumption that land at issue was not wild or unoccupied; thus, presumption of permissive use of road and surrounding land not applicable; case remanded to trial court with defendant having opportunity to present rebuttal evidence).


(defendant has authority to fine indirect sources of pollution under defendant's "indirect source review" rules; fact that housing development does not emit pollutants is what causes the development to be an indirect source of pollution).


(plaintiff's claim that EPA illegally took private land (mining site near Redding, CA) by cleaning up Superfund site in 1980s dismissed; plaintiff claimed that clean-up efforts diminished value of plaintiff's property; claim filed late and court without subject matter jurisdiction; in any event plaintiff could not claim Fifth Amendment taking unless EPA action was legal in the first place - plaintiff's allegation that EPA's action was not legal undermined Fifth Amendment claim).


(reliance by IRS on I.R.C. Sec. 469(h)(2) to treat members of LLCs as automatically limited partners for passive loss purposes misplaced; general tests for material participation apply and petitioners (married couple) determined to have materially participated in charter fishing activity for tax year at issue - petitioners participated more than 100 hours and their participation was not less than the participation of any other individual during tax year; follows prior opinions in Garnett and Thompson).


(residence of plaintiff's janitor owned by plaintiff not tax-exempt; state statute only provides tax exemption for property that is used as an integral function of the church; church custodian not integral to function of church).


(petitioner liable for tax deficiency resulting from sale of family-owned almond business; sale transaction involved exchange of shares through foreign corporations and trusts for private non-taxable annuities which resulted in recognition of gain; accuracy-related penalty applied).


(petitioner, a lawyer who worked as a contract attorney during the tax year at issue, cannot deduct certain business expenses under I.R.C. Sec. 162(a); petitioner's activity not regular and continuous).


(creditor failed to prove that claim against debtor (husband of couple engaged in farming) should  be excepted from discharge; creditor failed to prove that debtor made fraudulent financial representations).


(case involves challenge to Louisville's animal-control ordinance; portion of law allowing city to keep dog that has been seized because of inhumane treatment, even if owner is ultimately found to be innocent of the charge, is unconstitutional; likewise, provision allowing city to take away dog license for any state or federal crime (even if unrelated to animal) is unconstitutional).


(plaintiff, same-sex partner of decedent who was named as agent under medical power of attorney for decedent, failed to state claim under Florida law for negligence, intentional infliction of emotional distress or breach of fiduciary relationship for alleged damages arising from hospital staff's failure to provide updates on decedent's medical situation; evidence showed that hospital staff consulted with plaintiff about critical emergency medical decisions for decedent and that further information or visitation within discretion of hospital staff).


(decedent's 95% limited partner interest in FLP discounted 32.5% for lack of marketability and 11.1% for minority interest; valuation discount allowed for various items of artwork; deduction allowed under I.R.C. Sec. 2053 for interest expense on two loans incurred during administration of estate; FLP created for legitimate business reasons and decedent received FLP interests proportionate to value of property contributed to FLP - bona fide sale exception applicable).


(compensatory and punitive damages awarded to plaintiff for defendant's non-permissive use of plaintiff's property to transport construction materials onto defendant's property; defendant cut down plaintiff's trees, planted non-native trees and enlarged a pond; treble damages not awarded because plaintiff did not present sufficient evidence concerning stumpage value).


(plaintiff's allegation that when USDA's Risk Management Agency declined to approve proposed sale of certain crop insurance assets to Rain and Hail LLC it rendered the assets valueless resulting in a categorical taking in violation of the Fifth Amendment dismissed; plaintiff did not have a recognizable property interest for Fifth Amendment purposes; district court decision affirmed).


(IRS challenge to disposition of estate that was put in trust to divert assets away from family member who was liable for unpaid taxes dismissed; IRS had no claim to assets that were not inherited; IRS did not raise state statute which allows for annulment of state court judgment).


(taxpayer not liable for accuracy-related penalties for engaging in Son-of-Boss tax shelter (involving transfer to a partnership of assets with significant liabilities) because taxpayer reasonable relied on tax opinion of law firm).


(petitioner liable for tax deficiency from underreporting of gambling income which increased amount of petitioner's social security benefits included in petitioner's income; no accuracy-related penalty imposed because petitioner acted in good faith).


(taxpayer did not have cancellation of debt income in 2006 as a result of foreclosure of taxpayer's home in 2000; IRS failed to meet burden of production under I.R.C. Sec. 6201(d) of showing that debt actually discharged in 2006). 


(grain payments made to member of farmers' cooperative and eligible non-member patrons are PURPIMs and for purposes of computing cooperative's Sec. 199 deduction, cooperative's QPAI and taxable income are to be computed without regard to any deduction for grain payments to members and eligible non-member patrons).


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