Annotations 11/2011

(apportionment method applies to graduated retained interests in property irrespective of whether such property held in trust; to extent trust corpus included in decedent's estate under I.R.C. Sec. 2036 due to the retention of the annuity, payments to the estate that are payable post-death are not subject to inclusion in the estate by virtue of I.R.C. Sec. 2033). 


(case involves challenge to defendant's approval of ski area project without taking into account impact on water resources and endangered fish and other natural resources in alleged violation of National Environmental Policy Act (NEPA); court held that plaintiffs had not exhausted administrative remedies other that on issue involving water depletion; court held that water depletion issue not properly preserved at trial court level; summary judgment for defendant affirmed). 


(petitioner claimed grandfather orally conveyed 2.2 acres; Georgia statute (OCGA §23-2-132) provided two conditions required (meritorious consideration and valuable improvements); meritorious consideration defined as natural love/affection between father and his son; plaintiff moved mobile home onto property; mobile home not considered an improvement to land, can easily be removed; grandfather installed and paid for septic system; court stated living on property several years did not satisfy the requirement for a parol gift of land; summary judgment properly granted). 


(caveators appeal summary judgment to father's will; daughters filed a caveat and court rejected; daughters claimed undue influence of son, executor of father's last will; verbal intentions of father before execution of will not enough for undue influence claim; court acknowledged the power of attorney executed on the same day as the final will not substantial enough evidence to influence will; court affirmed summary judgment to the propounder of the will). 


(case involves plaintiffs motion for default judgment against defendant farming operation for patent infringement, conversion, unjust enrichment and breach of contract; all claims based on allegation that defendant saved and replanted plaintiff's GMO Roundup Ready cotton seed in violation of licensing agreement which also constituted willful infringement; plaintiff seeks royalty damages of $371,956, treble statutory damages for willful infringement under 35 U.S.C Sec. 284, a permanent injunction enjoining defendant's future infringement, prejudgment interest, attorney fees and costs; court finds for plaintiff on all claims except conversion claim - copying patented product not enough to support claim of conversion under state (MO) law); royalty damages computed at  $368,367.50; enhanced statutory damages computed at $736,751.00; prejudgment interest computed at 9% from date on which defendant should have made royalty payments). 


(plaintiffs, farmers, sued public officials claiming violation of their due process rights when state officials ordered them to stop withdrawing water from the Niobrara Watershed without providing the farmers a pre-deprivation hearing; trial court determined there was no deprivation of a property right and granted summary judgment for defendants; appellate court affirmed on basis that issuance of closing notices does not impact the property right bestowed by the permit to use the surface water when water supply is inadequate).  


(petitioners, married couple, were determined to have unreported income by virtue of use of bank deposit analysis; automobile expenses denied due to failure to substantiate).


(amount petitioner received in settlement from former employer included in income; amount did not represent payment for physical injury or physical sickness).


(plaintiffs, farmers, sued public officials claiming violation of their due process rights when state officials ordered them to stop withdrawing water from the Niobrara Watershed without providing the farmers a pre-deprivation hearing; trial court determined there was no deprivation of a property right and granted summary judgment for defendants; appellate court affirmed on basis that issuance of closing notices does not impact the property right bestowed by the permit to use the surface water when water supply is inadequate).  


(plaintiff's claim of fraudulent inducement in transfer of land from one trust to another barred by four-year statute of limitations; plaintiff on notice of problem with land transfer in 1999 and didn't bring claim until 2007). 


(plaintiff sought permission of state Division of Water Resources (DWR) to change certain aspects of water right; DWR approved requested changes, but put limitation on quantity of water under plaintiff's water rights; plaintiff challenged limitation and court held that DWR properly limited plaintiff's consumptive use of water in accordance with Kansas Water Appropriation Act, but did not have authority to order abandonment of portion of water right). 


($19 million tax liability of CPA not discharged in bankruptcy; debtor willfully attempted to evade or defeat tax liability).


(plaintiff sought permission of state Division of Water Resources (DWR) to change certain aspects of water right; DWR approved requested changes, but put limitation on quantity of water under plaintiff's water rights; plaintiff challenged limitation and court held that DWR properly limited plaintiff's consumptive use of water in accordance with Kansas Water Appropriation Act, but did not have authority to order abandonment of portion of water right). 


(dispute arising out of bankruptcy of peanut broker regarding competing claims to proceeds from sale of ’08 peanut crops; peanut warehouser and processor sued Farm Credit which loaned money to broker; other creditors of broker claimed superior interest; court cited U.C.C. Art. §9-110 concluding Farm Credit had perfected security interest in proceeds because they had “constructive possession” over peanuts; growers had unperfected interest; warehouser and processor had no interest in proceeds- though they may have had independent right to be paid; court remanded on issue of whether Farm Credit acted in bad faith by exercising dominion over peanuts). 


(dog owners can recover for intrinsic or sentimental value for wrongful death of dog that was mistakenly euthanized at animal shelter; sentimental damages allowed for all types of personal property, including dogs not having any market value; court distinguished Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (Tex. 1891)). 


(by 51-49 vote (60 votes needed to move forward) 0.7 percent surtax on MAGI in excess of $1 million for individuals and married couples filing jointly ($500,000 for married couple filing separately) fails in the Senate; bill designed to raise tax revenue to allow $60 billion to be spent on "infrastructure-related" spending, but where only 10 percent would be authorized to be spent in 2012 and 50 percent to be spent in 2015 or later; bill represents third failed attempt to enact a "millionaire's surtax" (other two bills were S. 1660 and S.1723); Democrats rejected Republican alternative (S.1786) that would have provided a two-year extension for federal highway and safety programs and trust fund authority by using $40 billion in unobligated federal funds rather than raising taxes).


(taxpayer, an LLC is in the midst of developing wind power facility and sought to not be limited in "placed in service" treatment for each aerogenerator as for purposes of I.R.C. Secs. 45 ("renewable energy production credit), 167 and 168 (depreciation provisions) by reason of temporary limited capacity of a transmission line in the event a transmitter failed to complete upgrades by specified date; IRS agreed  - no limitation on placed in service date due to problems with transmission including congestion).


(assets of family limited partnership (FLP) included in decedent's gross estate at death by virtue of I.R.C. Sec. 2036; no partnership return filed for first two years after creation, virtually all personal assets of decedent contributed to FLP and, as a result, FLP assets used to pay decedent's living expenses; one meeting of FLP members from 1997 to 2004; FLP structure not respected by members who withdrew cash and failed to document withdrawals or enter into loan transactions with FLP; decedent never changed relationship with personal assets after contribution to FLP and retained economic benefit of transferred assets; desire to protect property from partition and provide succession vehicle testamentary in nature).


(bill would impose European-style "financial transaction" tax of three basis points ($.03 on $100 of value) that sponsors claim would be limited to market transactions such as stock, currency and commodity transaction; however, language of bill sufficiently vague to allow imposition of tax on any transaction between financial institutions, including interbank transactions such as direct deposited checks, credit card and debit card transactions; upon announcement of bill, NYX dropped largest amount since Aug. 18, 2011 and CME had largest drop since Aug. 10, 2011; effective date would be Jan. 1, 2013, and essentially amounts to a tax on investors; proposal believed to be dead on arrival in House).


(unemployment rate dropped to 8.6 percent, which is 7.5 percent higher than what Obama Administration promised it would peak at if 2009 "stimulus" bill passed; rate is 43.0 percent higher than what Obama Administration projected unemployment would be in November of 2011 if "stimulus" bill passed, and 22.9 percent higher than what Obama Administration projected unemployment would be in October of 2011 if "stimulus" bill notpassed; 278,000 jobs created; labor force participation rate declined to 64.0 percent and had it remained unchanged, unemployment rate would have remained at 9.0 percent; report continues to show lack of job creation; average rate of unemployment rose to new high of 40.9 weeks). 


(case involves attempt of decedent's son to invalidate decedent's partial revocation of revocable trust that removed son as beneficiary (she had already provided for him and was not disinheriting him); trust language specified that "interests of beneficiaries are presently vested interests subject to divestment which shall continue until this Trust is revoked or terminated other than by death"; trial court held that son's interest not terminated because decedent had not completely revoked trust; on appeal, trust amendment upheld because Uniform Trust Code (UTC) overruled prior state Supreme Court opinion requiring complete revocation to divest beneficiary's interest; UTC provides trust settlors with wide discretion to revoke, amend or modify revocable trusts). 


(plaintiff, egg producer, charged with antitrust violation under Sec. 1 of Sherman Act for engaging in conspiracy to fix price of eggs; defendants, liability insurers, refused to provide defense and plaintiff sued; trial court granted summary judgment for insurer and appellate court affirmed; plaintiff claimed that antitrust complaint sought damages for "personal and advertising injury"; appellate court determined that antitrust liability is a major business risk for a large company in a major market (such as plaintiff) and it is unlikely that the parties sought to cover such a risk indirectly through an "advertising injury" (which is aimed at misappropriation and other intellectual-property torts); policy did not apply to deliberate injury or injury arising from criminal act which, thus, bars coverage when allegation is an antitrust violation). 


(taxpayer may use any reasonable method, including exact method, to determine amount deductible as qualified residence interest when debt exceeds acquisition and/or home equity debt limitations; if exact method used, taxpayer need not make election under Treas. Reg. 1.163-10T(o)(5) in order to allocate interest on part of debt that exceeds qualified residence interest limitations; if simplified method used, taxpayer may allocate excess interest under interest tracing rules without making election). 


Pages

CALT does not provide legal advice. Any information provided on this website is not intended to be a substitute for legal services from a competent professional. CALT's work is supported by fee-based seminars and generous private gifts. Any opinions, findings, conclusions or recommendations expressed in the material contained on this website do not necessarily reflect the views of Iowa State University.

RSS​ Facebook Twitter