Annotations 09/2011

(marital dissolution case; appellant ex-husband challenged district court’s division of marital property and award of child support, spousal maintenance, and attorney’s fees; appellate court affirmed in part, reversed in part, and remanded; trial court found husband’s share of family farm property was marital and found seven-acre parcel adjacent to family farm and deeded by parents was nonmarital property; appellate court held ex-husband failed to rebut presumption that farm acquired during marriage was not a gift and was marital property).


(marital dissolution case; ex-husband challenged trial court’s determination that parties’ farmland was marital property, court’s award of temporary spousal maintenance, court’s calculation of respondent’s income for child support purposes, court’s failure to order retroactive child support and court’s award of conduct-based attorney fees to respondent; appellate court affirmed in part, reversed in part, and remanded; court held trial court did not err in determining farmland marital property; real property acquired by parties at any time during marriage is presumed marital property unless party can show by preponderance of evidence that it is nonmarital). 


(action by beneficiaries of trust to remove defendant as successor trustee because bank went through series of mergers and did not maintain position for trust officer in local bank; trustee may be removed by court “for cause” when trustee’s “continuation in role would be detrimental to interests of beneficiaries” in Kentucky, including changes in place of trust administration; federal district court ordered removal of successor trustee and granted plaintiffs’ motion for summary judgment).


(trial court erred in finding landowners breached lease; agency relationship existed between tenant and agent throughout formation and execution of lease; agent had apparent authority to receive notice of proposed sale under first-refusal provision on tenant’s behalf; undisputed that landowners provided requisite notice to agent). 


(IRS provides guidance on treatment of cell phones (or similar equipment) that employers provide to employees primarily for non-compensatory business purposes; before 2010, log of cell phone usage required to substantiate business use for deduction purposes on employer-provided cell phones and separate out amount included as compensation to employee; 2010 legislation (eff. Jan. 1, 2010) removed cell phones from definition of "listed property" which require logs; in Notice, IRS states that value of employer-provided cell phone excludible from employee's income as working condition fringe to extent that, if employee personally paid for use of cell phone, the payment would be allowable as an I.R.C. Sec. 162 deduction for employee; employer considered to have provided cell phone to employee primarily for noncompensatory business purposes if substantial reasons exist relating to employer's business other than providing compensation to employee with cell phone; Notice is effective as applied to employer-provided cell phones occurring after December 31, 2009).


(while IRS conceded that petitioner's daughter was qualifying child for earned income tax credit purposes, petitioner not entitled to EITC because petitioner did not have same principal place of abode with daughter for more than half of the tax year due to being incarcerated; but petitioner still entitled to partial EITC due to low income). 


(Administration's plan continues application of $1.2 trillion in discretionary spending cuts that were already included in debt ceiling law previously enacted which is estimated to cut $350 billion from defense budget over next 10 years, and adds $1.1 trillion in defense cuts and unspecified spending reductions on benefits for military personnel; plan includes no structural reforms to existing major entitlement programs; no increase in age of eligibility for Medicare enrollment (remains at 65) instead of going to 67 which the President had supported during debt ceiling negotiations and which CBO estimates would save $124 billion from 2012 to 2021; proposal cuts Medicare spending by changing payments to rural providers and applying Medicaid rebate (i.e., price control system) for drug payments to Medicare Part D, among other things; proposal includes increase in Part B and Part D Medicare premiums for upper income retirees and increases from 5% to 25% the percentage of seniors paying such premiums; federal workers to contribute extra 1.2% of compensation toward their retirement; new fee on military retirees to participate in Tri-Care health program; no proposal to repeal any portion of the Patient Protection and Affordable Care Act of 2010 which CBO revised projections show an increase in deficit spending significantly in the out years; proposal includes $1.5 trillion tax increase, including a tax increase on families and businesses with AGI over $250,000 annually, and a 5.4 percent surcharge on families earning more than $1 million per year. (MFJ return); [Note: the proposal does not account for the fact that IRS data shows that, for all taxpayers, the current average tax rate is 11 percent (once credits and deductions are accounted for) and that the highest average tax rate paid by persons earning less than $100,000 annually is 8 percent and the average tax rate for persons between $1 million and $10 million is 25 percent with those earning more than $10 million paying an average of tax rate of 26 percent; no mention made of fact that top 0.1 percent of all income earners paid 16.4 percent of total tax burden and the bottom 80 percent of all income earners paid 10.9 percent of total tax burden; no mention made that top 0.1 percent of income earners paid more in total taxes than did the bottom 80 percent even though the bottom 80 percent made more than six times as much money as the top 0.1 percent.]; minimum 10-year term for grantor retained annuity trusts with such trusts having a remainder interest greater than zero; elimination of valuation discounts; reversion to 2009 estate and gift tax law; increased depreciation period for privately-owned jets; repeal of deduction for intangible drilling costs for five largest oil companies; repeal of I.R.C. §199 for domestic producers of oil and gas; President's extension of tax cuts to expire at end of 2012 on families earning more than $250,000; elimination of carried interest; no mention made of 1843 account established by U.S. government to accept gifts to the United States that is for general use by the federal government that can be made available for budget needs; many parts of proposal have bi-partisan opposition in the Congress and proposal likely dead on arrival).


(overstatement of basis does not constitute an omission from gross income; six-year statute of limitations for assessment specified in I.R.C. Sec. 6501(e)(1)(A) not triggered; opinion follows court's prior holding in Burks v. United States, 633 F.3d 347 (5th Cir. 2011)). 


(taxpayer that provides telecommunication services derives gross receipts from services to customers, leasing or renting property and does not derive income from the manufacture, production, growth or extraction of qualified production property for purposes of the Sec. 199 deduction and does not constitute domestic production gross receipts). 


(petitioner appeals from a judgment canceling two deeds executed by respondent on grounds that deeds resulted from petitioner’s exercising undue influence over respondent; appellate court held trial court did not err in finding petitioner had become dominant party in relationship with respondent and affirmed trial court on undue influence claim). 


(decedent's will bequeathed tangible personal property and residuary estate to his "eight (8) children, per stirpes"; with respect to the distribution of tangible personal property, will gave executor sole discretion to dispose of such property in a reasonable manner; executor simply given discretion to dispose of residue of estate; executor, who was also an heir, distributed all of decedent's interest in annuity to executor; court determined that "per stirpes" language in will meant that members of class take per capita and discretion given to executor extends only to the equal division of non-fungible items). 


(decedent died intestate in 2006; children of decedent’s biological sister were only heirs; in 2009, administrator discovered that biological sister had been adopted in 1981 at age of 53 by decedent's aunt by marriage; trial court interpreted Virginia’s intestacy statutes to hold nieces and nephews were not decedent’s heirs at law because biological sister’s adult adoption severed legal ties to decedent and her estate; trial court also held intestacy statute does not distinguish between adoption of adult and adoption of minor; nieces and nephews appealed and appellate court affirmed, statute was clear and unambiguous that adopted person is child of adopting parent not of biological parents; result was that decedent's biological sibling was not decedent's heir under state intestacy law - the sister's adult adoption divested her and her descendants of inheritance rights running from her biological family).


(plaintiff, environmental advocacy, organization appealed EPA’s order overruling plaintiff’s objections to EPA’s risk assessments for dichlorvos pesticide and denying plaintiff’s requests for public evidentiary hearing; plaintiff claimed EPA failed to account for potential pre-and post-natal toxicity and completeness of data with respect to infant and children exposure to toxicity, and failed to comply with Food Quality Protection Act screening program; court held EPA failed to explain why it did not use risk assessments that relied on flawed study and acted in arbitrary and capricious manner; court partially vacated EPA’s order). 


(occupational tax enacted via Nebraska Law Bill 701 constitutional; tax constitutes an excise tax levied on irrigation activities rather than a property tax; legislation underlying tax arose out of Republican River Basis compact with states of Kansas and Colorado in attempt to provide cash fund to help state comply with compact, and initial version of tax enacted in 2007 as a property tax was declared unconstitutional; while case on appeal, state Natural Resource Districts adopted occupation tax under different provision of same legislation to provide funds to comply with compact; occupation tax provision determined to be excise tax on irrigation activity and applied to small portion of land that had been subject to property tax that had been declared unconstitutional and was not tied to land's value and could be avoided by landowner certifying that land not irrigated). 


(as a supplement to  IRS Publication 555, IRS provides additional information concerning common questions relating to registered domestic partners in CA, NE and WA and homosexual couples in CA that are subject to community property law). 


(plaintiff appealed from summary judgment dismissing action against defendant for breach of contract and violation of Unlawful Sales of Advertising Practices Act (N.D.C.C. ch. 51-15) and awarding defendant attorney fees; appellate court affirmed, concluding trial court did not err in dismissing plaintiff’s breach of contract claims, Unlawful Sales Act does not apply to, or create cause of action against, a purchaser, and trial court did not err in awarding defendant attorney fees). 


(purported securities loan (securities purchased with fixed rate of return and paid for at price derived from variable interest rate) with fixed term of 250-450 days entered into for purpose of avoiding taxable income to the lender rather than provided borrower with access to loaned securities does not qualify for nonrecognition treatment as a securities loan under I.R.C. Sec. 1058; under facts of case, taxpayers relinquished all control over securities for all except two days in 450-day period and during those two days could not have taken advantage of spike in securities market value due to lack of ability to call securities back and sell them at increased price as a normal borrower would have been able to; interest deduction of $7.8 million attributable to fee payment denied).


(overstatement of basis constitutes omission from gross income that triggers six-year statute of limitations specified in I.R.C. Sec. 6501(e)(1)(A)). 


(sale of state (MA) tax credit triggers capital gain to seller; upon use of credit, buyer has gain recognition if credit purchased for less than face value).


(petitioners seek review of final USDA decision concluding that they violated provisions of Horse Protection Act (HPA) by entering and showing sore horse (chemicals used on front feet to cause horse to high-step) in horse show; court denied petition for review holding petitioners unable to rebut presumption of soreness arising from findings of veterinarians). 


(appellees (trustee, nonprofit group, and lake-front property owners) filed complaint against appellants (ODNR) for determination of boundary of property adjacent to Lake Erie; territory of Lake Erie held in trust by state extended to “natural shoreline” which was line at which water usually stands when free from disturbing causes). 


(appellees (trustee, nonprofit group, and lake-front property owners) filed complaint against appellants (ODNR) for determination of boundary of property adjacent to Lake Erie; territory of Lake Erie held in trust by state extended to “natural shoreline” which was line at which water usually stands when free from disturbing causes).


(on government's motion to dismiss, court holds that mandate provision contained in Patient Protection and Affordable Care Act (codified at 26 U.S.C. Sec. 5000A) which requires persons to buy insurance as a condition of lawful citizenship or residency violates the Commerce Clause of the U.S. Constitution; court stated that "the power of the Congress to regulate interstate commerce does not subsume the power to dictate a lifetime financial commitment to health insurance coverage"; the Congress cannot exercise police power under the Commerce Clause; mandate provision, along with guaranteed issue provision and pre-existing conditions health insurance reform provisions stricken from the Act).


(defendant's claim for prescriptive easement on road to gain access to defendant's property upheld; easement greatly limited in scope and defendant does not have an easement by necessity).


(Giaever, former professor with Rensselaer Polytechnic Institute and winner of the Nobel prize in physics in 1973, resigned from the APS due to the stated policy of the APS that "global warming is occurring"; APS has taken the position that "the evidence is incontrovertible" that global warming is occurring, but Giaever noted that global temperature has increased only 0.8 degrees Kelvin over the past 150 years with the result that "human health and happiness have definitely improved in this 'warming period'"; Giaver noted that the use of the word "incontrovertible" by APS is contrary to the very nature of scientific inquiry).


(proposed class action; plaintiff alleged claims for breach of contract and breach of fiduciary duty against defendant; plaintiff borrowed money from defendant through loans secured by cash value of life insurance policies subject to variable interest rate with 8% ceiling; plaintiff alleged defendant consistently charged 8% despite sustained drop in interest rates; federal district court granted defendant’s motion for failure to state a claim because relationship between parties was adversarial, not fiduciary, and loan interest amendment not akin to lengthy underwritten insurance contract and reasonable offeree would have read operative language of single page document).


(IRS solicits public comment on a proposed affordability safe harbor for employers under the shared responsibility provisions of the Patient Protection and Affordable Care Act (Act); under Act, employers with 50 or more full-time employees that don't offer government-determined "affordable" health care are subject to a penalty (deceptively termed a "shared responsibility payment"); under Act, coverage is deemed unaffordable if the employee's required plan contribution for self-only coverage exceeds 9.5 percent "of the applicable taxpayer's household income"; how employers are to legally obtain household income is unknown, and IRS, in the Notice, says that Treasury expects to propose a safe harbor that would determine affordability of an employer's coverage by referring to an employee's wages from the employer reported on Box 1 of Form W-2).


(taxpayer's receipt of income in real estate investment trust from mining company operating under surface use agreement were not mineral royalty payments, but rather were rents from real property via I.R.C. Sec. 856(c)(2)(C) and (c)(3)(A)).


(boundary dispute between adjacent landowners; trial court determined that “slightly crooked horse fence” separating parcels and line extending north from fence established boundary by practical location through express agreement, and that appellant's chopping down and moving fence was conversion and trespass; trial court awarded compensatory and punitive damages and prejudgment interest).


(plaintiff filed personal injury action for severe burns caused by hot mineral water in cave at Hot Springs State Park; trial court held state immune from suit pursuant to Wyoming Governmental Claims Act; appellate court reversed and held state’s activities in park fall within statutory waiver of immunity for operation and maintenance of public park; dissenting judge would have held state immune because safety of cave was not part of operation or maintenance of park).


(announcement details the tax increases contained in the "American Jobs Act of 2011" designed to pay for nearly $500 billion in additional spending; most provisions are simply re-proposals of tax increases that have been previously rejected by legislators in both parties and are likely "dead on arrival" in the Congress; taxation of partnership carried interests (i.e., earnings by hedge fund managers and various types of partnerships) as ordinary income (which has been previously rejected by Charles Schumer (D-NY); 28 percent limitation deduction phase-out (which accelerates other rate increases on taxpayers subjected to the phase-out) on itemized deductions for individuals with adjusted gross income exceeding $200,000 in a year ($250,000 for families) (similar provision rejected as part of the Patient Protection and Affordable Care Act when Democrats had control of both bodies in Congress and a super-majority in the Senate); elimination of bonus depreciation on private jets; tax increase on the U.S. oil and gas industry by eliminating the domestic production deduction (which is presently allowed to all taxpayers that manufacture, grow, produce or extract products in the United States (but is allowed at a lower rate to domestic producers of oil and gas); proposal also includes provision extending 100 percent bonus depreciation through 2012, and other temporary tax provisions including a "returning heroes" tax credit of up to $5,600, up to a $9,600 credit for business that hire an unemployed or injured veteran, and up to a $4,000 tax credit for hiring a worker unemployed longer than six months; proposal finances tax hikes by providing "stimulus" via temporary payroll tax cuts including cut in employee Social Security payroll tax from 6.2 percent to 3.1 percent, and temporary elimination of payroll taxes for companies that increase their payroll by up to $50 million).


(430-page scientific report authored by climate science researchers (editor of CO2 Science Journal, Ph.D. marine geologist and research professor, and distinguished atmospheric physicist and past director of U.S. Weather Satellite Service) concludes that anthropogenic greenhouse gases do not play a substantial role in warming, rising temperatures and atmospheric CO2 concentrations will lead to higher crop yields and will play a major role in averting hunger in the future, will more likely than not improve human health and that mankind will be much better off in 2100 than presently; Medieval Warm Period of approximately 1,000 years ago was both global and warmer than today's world (at time when there was approximately 28 percent less CO2 in the atmosphere).


(Food and Drug Administration (FDA) Amendment to Animal Drug Regulations, effective Sept. 13, 2011; final rule based on veterinary medicine and science, FDA updates existing regulations governing allowable tolerances for progesterone residues above concentrations naturally occurring in untreated animals to specify the following acceptable levels in cattle and sheep:  muscle - 5 parts per billion (ppb) [increase from 3ppb]; liver - 15 ppb [up from 6ppb in cattle and no increase in sheep; kidney - 30 ppb [up from 9 in cattle and 15 in sheep; fat - 30 ppb [up from 12 in cattle and 15 in sheep; updated regulation based on 1994 revised daily consumption values and is taken to improve the accuracy of the regulation; regulation to be codified at 21 C.F.R. Pt. 556). 


(plaintiffs filed action to quiet title to farmland claiming ownership by adverse possession; trial court held plaintiffs did not present sufficient evidence to establish right to title under Kansas law; appellate court affirmed on basis that plaintiffs failed to prove adverse possession for requisite 15 year period; plaintiffs cut, baled, and planted grass, disked and turned soil, cleared certain areas, constructed fences to block access, gave people permission to hunt disputed property; however, period of continuous possession was only 12 years at which time legal title owner cut plaintiffs off and demanded they stop trespassing).


(state of VA lacks standing to challenge individual mandate provision in Patient Protection and Affordable Health Care Act (Act) of 2010; Liberty University cannot challenge Act before mandate provision becomes effective in 2014; no dissenting opinions filed; VA had argued that it had standing due to the Act conflicting with state law that protects VA citizens from the Act's individual mandate provision, but court disagreed and stated, "When a state brings suit seeking to protect individuals from a federal statute, it usurps this sovereign prerogative of the federal government and threatens the 'general supremacy of federal law'"; court did not address question of constitutionality of individual mandate). 


(plaintiff sought declaratory judgment and injunctive relief against USDA under Federal Meat Inspection Act, Poultry Products Inspection Act and Administrative Procedure Act for “substantial harm” suffered from USDA’s approval of labels allowing competitors to sell meat and poultry products bearing label “natural” even though those products contain sodium or potassium lactate; plaintiff, relying on USDA criteria, developed high-pressure pasteurization process designed to inactivate micro-organisms without use of sodium or potassium lactate; USDA subsequently amended criteria for “natural” products and allowed use of these chemical preservatives; plaintiffs claimed use of preservatives significantly less costly for competitors; federal court dismissed plaintiff’s suit because challenged agency action  was not final and agency had not yet determined plaintiff’s legal rights).


(plaintiff recovered $12 million under insurance policy with defendant for damages incurred as a result of FDA issuing an "alert" in September of 2006 that consumers not eat bagged fresh spinach due to E. coli outbreak; FDA advisory reported 50 "cases of illness" and "one death"; FDA advisory withdrawn two weeks after source of outbreak identified; plaintiff no source of E. coli outbreak, but suffered market losses and filed claim under insurance policy; trial court award reversed on appeal; damages awarded for losses that did not come within policy coverage which were required to be a direct result of an insured event of accidental contamination as defined by policy). 


(plaintiffs, Idaho farmers, tried to collect damages from the defendant resulting from spraying by the Bureau of Land Management of Dupont herbicide Oust on approximately 70,000 acres of public land to eliminate cheatgrass in an attempt to minimize wildfires; soil contaminated with Oust blew onto adjacent private farmland damaging various types of crops of 134 farmers; trial court ruled that BLM 40 percent responsible and Dupont 60 percent responsible and awarded damages of almost $17 million; on appeal, court determined that farmers had filed their lawsuit one day after six-month deadline after BLM had denied appeal and were, thus, barred by statute of limitations; plaintiffs claimed that BLM had not used certified mail and that plaintiffs were, as a result, exempt from six-month deadline; but, BLM mailing had barcode characteristic of certified mail and BLM had paid proper postage; case dismissed, and plaintiffs' claims forever barred; farmers were represented by Holland and Hart, LLP out of Denver, CO and Boise, ID). 


(taxpayer entitled to deduct losses without limitation set forth in I.R.C. Sec. 469 on real estate under real estate professional exception for two out of six properties because taxpayer spent at least 750 hours on the two properties combined and spent more time on those properties than he did in his day job as harbor pilot in San Francisco Bay; no election to aggregate activities made and court did not require taxpayer to work at least 750 hours in any particular rental activity for purposes of counting hours worked on rental activities toward the 750-hour test; taxpayer did not put 750 hours into any particular rental activity; court rejects (without saying so) holding of Bahas v. Comr., T.C. Sum. Op. 2010-115 where court said that taxpayer had to meet 750-hour test with respect to each activity where an election to not aggregate activities is not made; thus, only two requirements must be satisfied to be a real estate professional under I.R.C. Sec. 469 - participation of more than 750 hours in a real estate trade or business, and real estate activities comprise most of the taxpayer's activities).


(plaintiff sued state of Oklahoma for right to sell 200,000 acre-feet of water to city of Irving, Texas; OK law required legislative approval before plaintiff could sell water to out-of-state interests; 10th Circuit dismissed case for lack of federal jurisdiction; U.S. Supreme Court declined to hear case). 


(plaintiff sued state of Oklahoma for right to sell 200,000 acre-feet of water to city of Irving, Texas; OK law required legislative approval before plaintiff could sell water to out-of-state interests; 10th Circuit dismissed case for lack of federal jurisdiction; U.S. Supreme Court declined to hear case). 


(plaintiff sued defendant land title company for negligence and breach of contract over handling of deed and money received from sale of farm property; trial court found in favor of defendant; plaintiff asserted, on appeal, that trial court erred in finding general warranty deed executed by defendant, defendant’s wife and defendant’s brother was effective to transfer title to purchasers of farm property and, because general warranty deed not delivered into escrow to title company, relation-back doctrine not applicable; plaintiff further argued even if contract controlling as escrow agreement, terms of contract not fulfilled; appellate court affirmed; general beneficiary deed executed by two grantors that conveyed title in one grantor’s one-half interest to trust was terminated when grantors and others transferred title by general warranty deed held in escrow; escrow of deed occurred before one grantor’s death and terminated beneficiary deed under Mo. Rev. Stat. §461.033.5). 


(plaintiff, environmental challenged defendant’s general permit on poultry waste accumulation by animal feeding operations as not in compliance with state law; administrative law judge ruled for defendant and trial court affirmed; on further review appellate court affirmed because defendant had reasonable basis for general permit and permit not contrary to state law because it regulated aspect of agricultural operations that had been unregulated; permit did not violate federal law even though new dischargers could discharge into impaired waters because net effect was still reduced pollution; sufficient state overview of permit process present and permit not less stringent than federal law). 


(in appeal arising from Ch. 11 bankruptcy, debtor challenged bankruptcy court ruling that UCC financing statement filed by lender sufficiently identified lender’s interest in portion of debtor’s road construction equipment inventory; lender’s failure to clearly describe extent of security interest not “seriously misleading” and would not have stopped future creditors from making further inquiries to identify inventory). 


(case involves claim of intentional trespass by one landowner against adjacent landowner who didn't determine property line between parcels and had tree service company remove trees and plantings on plaintiff's property; trial court awarded $150,000 to plaintiff for loss of value of property; state (CT) law does not eliminate common-law remedies for timber trespass and is not exclusive remedy; three year statute of limitations for tort actions applicable; equitable estoppel not proven; intentional tort proven; plaintiff's real estate appraiser qualified; trial court judgment affirmed).


(new proposed Treasury Regulation codifies U.S. Supreme Court opinion in Knight v. Comr., 552 U.S. 181 (2008) to specify the type of costs an estate or non-grantor trust incurs that are subject to the two percent floor for miscellaneous itemized deductions under I.R.C. Sec. 67(a); to make the decision, the issue is whether the expenses are ones that would normally be incurred by a hypothetical person owning the property; thus, the type of the product or service rendered to the estate is determinative and not the cost or the description of the service; costs not tied to identify of payor are deductible; commonly incurred investment advice fees are subject to 2 percent floor, but incremental investment costs beyond amounts normally charged are not; bundled fees must be allocated and such fees not calculated on hourly basis are not subject to 2 percent limit unless it is for investment advice; ownership costs subject to two percent floor; tax return preparation fees for estate, and GSST returns, along with fiduciary income tax returns and decedent's final tax return not subject to two percent floor; but, fees associated with commonly prepared returns are subject to floor; comments on proposed regulation must be submitted by Dec. 6, 2011, and outline of topics to be discussed at Dec. 19, 2011, hearing by Dec. 7, 2011; regulations to apply to tax years beginning on or after date regulations published as final in Federal Register).


(farm partnership comprised of two couples, and one couple assigned their interest to the other couple who then defaulted on partnership debts; couple that assigned their interest then filed involuntary petition against partnership; bankruptcy court determined that cause existed to have trustee appointed because of assertions of fraud and defaulting couple had farmed the partnership land rent-free, and partnership was leasing land for less than fair market value; interests of creditors merited trustee's appointment under 11 U.S.C. Sec. 1104(a)(1)).


(lease and easement agreements entered into by the parties concerning operation of water wells on plaintiff’s property; trial court judgment for defendant reversed because of improper jury question).


(Solyndra Corp., Freemont, CA, solar panel manufacturer that had received $535 million in loan guarantees from federal government as a result of the 2009 "stimulus" legislation (and was the first company selected under the new program), announced on Aug. 31, 2011, that it was filing for bankruptcy and eliminating 1,100 jobs; company officials cited "regulatory and policy uncertainties" in making its decision; in 2009, U.S. Energy Department analysis of Solyndra's business model predicted that firm would run out of money in September of 2011, and Energy Department's credit department unanimously decided not to fund Solyndra in early January of 2010; funding decision changed by new Administration, and in May 2010, President Obama made a speech at the company in which he stated, "Companies like Solyndra are leading the way toward a brighter and more prosperous future"; presently, 20 percent of U.S. solar manufacturing capacity have or will be filing bankruptcy; U.S. share of solar panel manufacturing has fallen from 43 percent in 1995 to 7 percent in 2010; congressional subpoena issued to obtain key governmental documents in matter).


(two creditors filed objections to confirmation of debtors Chapter 12 modified plan proposed by debtors-in-possession (DIPs); court considered DIP's eligibility to proceed in Chapter 12; court held DIP's operations of three LLC’s, including Christmas tree operation, did not constitute farming operation; gross income from two other LLC’s, which did qualify as farming operations, only totaled 31.5% of DIP's gross income for year, thus, entire operation ineligible; DIP's value too low to be confirmable). 


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