Annotations 11/2012

(plaintiff claimed that defendant had adopted zoning rules that barred mining of sand and gravel on plaintiff's property for which it had a permit to mine 110 acres and wanted to mine the remaining 311 acres; plaintiff's neighbors objected to mining and defendant adopted regulations to bar further mining; defendant classified area as rural residential in spite of fact that five gravel pits in area; court determined that gravel pits were nonconforming uses permitted under state law; growth policy allowed existing gravel pits, but not in area plaintiff wished to mine; court, however, determined that denial of plaintiff's permit could constitute regulatory taking requiring compensation; court affirmed as to zoning part of case, but reversed and remanded on taking issue). 

(defendant took out insurance policy with plaintiff covering defendant's cotton stripper for maximum value of $90,000; cotton stripper caught fire and was completely destroyed; trial court jury determined that plaintiff knowingly engaged in unfair or deceptive act or practice that damaged defendant and determined that damages were $75,000, lost profits were $60,000 and attorney's fees were $30,000; trial court entered judgment consistent with jury verdict; on appeal, court determined that no evidence of market value of cotton stripper immediately after fire presented at trial and that defendant failed to establish salvage value; appellate court also determined that because defendant sought recovery of market value, defendant not entitled to also recover loss of use or lost profits; appellate court also held that evidence factually and legally insufficient to support award of attorney's fees, and defendant not entitled to attorney's fees because defendant received nothing of value and is not a prevailing party; take-nothing judgment entered).

(mobile billboards constitute tangible personal property that qualify for I.R.C. Sec. 199 deduction, but traditional and modern billboards are real property (inherently permanent structure) not qualified for I.R.C. Sec. 199; under facts of CCA, taxpayer installed traditional and modern billboards on leased land with leases ranging from 30 days to 20 years and leases continued until billboards no longer profitable; mobile billboards relocated on frequent basis; mobile billboard attached to truck that is moved to various locations; traditional billboard attached to wooden pole; modern billboard attached to steel frame attached to steel poles; mobile billboard not attached to real property and not intended to remain stationary indefinitely; traditional billboard an inherently permanent structure; modern billboard inherently permanent structure). 

(special rule for government contracts contained in I.R.C. Sec. 199(c)(4)(C) eliminates requirement that DPGR must be attributable to disposition of QPP that taxpayer produces; consequently, taxpayer had DPGR from contracts to extent attributable to QPP, but not to extent attributable to services or non-qualified property). 

(IRS specifies situations where filing Form 8275 and disclosing position on return is adequate for reducing penalties under I.R.C. Sec. 6662(d) or I.R.C. 6694(a)). 

(petitioner sold partnership interest on installment basis; under installment contract, petitioner entitled to receive $7 million in 2004, but actually received $1 million of it in 2003 and $6 million in 2004; petitioner reported no gain in 2003 attributable to contract on basis that $1 million constituted loan; court determined that no evidence of loan present and $1 million was part of installment sale with result that capital gain produced in 2003 under contract).

(IRS anticipates issuing final regulations in 2013 on the deduction and capitalization of expenses related to tangible property; final regulations will differ from temporary regulations in certain ways including the de minimis rule, dispositions and the safe harbor for routine maintenance; final regulations will apply to tax years beginning on or after Jan. 1, 2014, and can, at a taxpayer's option, be applied to tax years beginning on or after Jan. 1, 2012). 

(USDA licensed rights in patents of three grapevines that produce table grapes; patents issued under the Plant Variety Protection Act to CA Table Grape Commission; licenses gave Commission right to sublicense patents and retain 60% royalties from sublicensing efforts; plaintiff grape growers purchased grapevines covered by patents, signed licenses and paid fee; plaintiffs brought action challenging validity and enforceability of patents and inequitable conduct of USDA and Commission; federal court held district court correctly held USDA was a necessary party to plaintiff's declaratory judgment claim based on Patent Act; Section 702 of Administrative Procedure Act waives sovereign immunity for non-monetary claims against federal agencies and waiver broad enough to allow plaintiffs' to pursue equitable relief against USDA on patent claims; court upheld district court ruling dismissing antitrust claims and ruling allowing plaintiffs to pursue inequitable conduct claim).

(petitioner founded an S corporation that provided janitorial services; petitioner and employees along with petitioner’s girlfriend vacationed at exotic location where girlfriend died of cocaine overdose; decedent’s mother sued petitioner and employees on basis that they provided drugs that caused death; S corporation paid approximately $2.3 million (including $250,000 paid by petitioner for which he is reimbursed by S corporation; S corporation claims $180,000 deduction for legal fees associated with settling claims; amount not deductible because it did not arise out of business operations of S corporation; merely naming S corporation as defendant does not make legal fees or settlement costs deductible business expenses; petitioner stipulated that trip was not a business trip; evidence did not support constructive dividend treatment of $250,000 reimbursement to petitioner). 

(estate's attorney failed to file Form 8939 to make I.R.C. Sec. 1022 election for estate for death in 2010; extension of time granted to file Form 8939 because requirements of Sec. 301.9100-3 of Procedure and Administration Regulations satisfied). 

(petitioner received income from settlement related to employment discrimination lawsuit and did not report it on basis that it was excluded under I.R.C. Sec. 104(a)(2) as compensation for physical injury or sickness; plaintiff claimed that harassment incurred during employment caused heart attack; Tax Court held that settlement agreement made no allocation for compensation for petitioner's physical injuries  and employer didn't intend to compensate petitioner for physical sickness; Tax Court decision upheld - settlement agreement specified that payment was in return for dismissal of discrimination lawsuit).

(plaintiff, raisin grower, is a "handler" who "acquired" raisins and is, thus, subject to Ag Marketing Agreement Act of 1937 and the order regulating the "Handling of Raisins Produced from Raising Variety Grapes Grown in California"; penalties imposed by judicial officer did not violate the Excessive Fines Clause of the Eighth Amendment; Marketing Order's reserve requirement that a certain percentage of annual raisin crop be contributed to government-controlled reserve pool does not violate Due Process Clause of Fifth Amendment as a physical taking of plaintiff's private property without just compensation; judicial officer's decision to dismiss plaintiff's administrative petition not arbitrary, capricious, abuse of discretion or contrary to law; penalties imposed for plaintiff's "self-help" noncompliance with Marketing Order not violative of Excessive Fines Clause of Eighth Amendment; summary judgment for defendant upheld).

(petitioner claimed he was a minister of a tax-exempt church, and used ministry's bank accounts to pay personal expenses; upon filing no returns for several years, IRS reconstructed income and asserted deficiencies and asserted penalties; court held that petitioner not exempt from tax as minister and that ministry was not a tax-exempt church; petitioner taxable on gain from sale of real estate and had self-employment tax; fraud penalty imposed). 

(court issues order granting plaintiffs' renewed motion for class certification; case involves antitrust action brought on behalf of dairy farmers against milk cooperatives and processors that alleges monopolization and conspiracy to fix milk prices; court discusses extent to which intra-class conflicts of interest bar class certification and whether creation of subclasses remedy such conflicts; court also discusses how defendant avoids class certification by attacking plaintiff's expert). Note: On Jan. 22, it was reported that the defendant agreed to pay $158.6 million to settle the plaintiffs' claims.

(petitioners, married couple, claimed first-time homebuyer tax credit on marital home purchased by husband on March 31, 2009; IRS denied credit because husband had owned home in prior three years; while wife did not own home in prior three years, husband could not claim qualification as long-term homeowner because purchase of marital home occurred before effective date of long-term homeowner provision in I.R.C. Sec. 36(c)(6) which applied only to purchases after November 6, 2009; thus, both spouses had to qualify as first-time homeowners under I.R.C. Sec. 36(c)(1) because statute includes parenthetical phrase "and if married, such individual's spouse" in the definition of the term "first-time homebuyer").

(petitioner filed a "Notice of Affidavit Statement in Rebuttal to Internal Revenue Code Section 6011 For Year Period Ending December 31, 2003"; petitioner later filed Form 1040 for 2003; IRS filed statutory notice of deficiency; petitioner's affidavit not a valid return, but did file a late proper return; petitioner subject to late-filing and late-paying additions to tax, but not subject to penalty under I.R.C. Sec. 6673 for filing frivolous return because affidavit is not a "return").

(appeal of claims dismissed against landlord defendants arising from automobile versus horse incident decided under state Equine Activity Liability Act (EALA); decedent was killed when she struck a horse that had escaped from a local stable; court upheld dismissal of plaintiff’s claim against defendants under EALA because no private right of action created by statute; court also upheld dismissal of negligence claims against landlords because horse was under control of tenant, so no duty existed; court did, however, remand the case for determination of a nuisance claim; plaintiff presented evidence of at least 30 incidents in which animals escaped from the property and about which defendants were aware).

 (the plaintiff claimed that the IRS wrongfully disclosed its tax information to the Japanese National Tax Administration, and brought a wrongful disclosure action in accordance with I.R.C. Sec. 7431(d) more than two years after it discovered the alleged wrongful disclosure; the court held that the statute required that the action be brought within two years of the date of discovery of the improper disclosure (i.e., the date the plaintiff knew or should have reasonably known of the unauthorized disclosure - inquiry notice) rather than two years from the date that the plaintiff realized the disclosure was unauthorized; some claims were time-barred, but others were not). 

(petitioner reported negative adjusted gross income and NOL carryforward on 1040X; IRS claimed that petitioner failed to substantiate NOL and court agreed, determined that petitioner had failed to present sufficient evidence to put burden of proof on IRS; NOL disallowed).

(partnership provided services to clients trying to accomplish I.R.C. Sec. 1031 exchange; partnership provided in-house developed software to clients so they could track and manage their exchanges; partnership not disqualified person).

(property damage action filed against contractors who built manure basin after concrete foundation cracked and groundwater was contaminated; three separate insurance policies were in place at time of construction and insurance companies were brought into suit; insurance companies sought summary judgment on coverage issue; contractors’ policies had expired by time of occurrence; policy covering engineer had exclusion for “professional services”, which court held to include engineering work rather than plaintiff’s interpretation of “nonprofessional” supervisory services; district court granted summary judgment and dismissed insurance companies from suit; plaintiff appealed; appellate court affirmed on all issues).

(plaintiff, chairman of bank and real estate agent failed to qualify as real estate professional for purposes of exception to passive loss rules as applied to rental real estate activities; failure to meet 750-hour test due to lack of proof; burden of proof not shifted to IRS). 

(petitioner participated in medical study and was compensated in amount of $5,500; petitioner received 1099-Misc, but failed to report income on return; during audit, petitioner reported $5,500 amount on amended return; IRS did not process return and petitioner argued that $5,500 amount was either excludible under I.R.C. Sec. 104 as compensation for personal or sickness or constituted a gift; court disagreed and noted that because Form 1099 issued indicated that payment not a gift; amount fully taxable).

(irrespective of whether LLC treated as partnership or disregarded entity, guarantor of LLC debt can be at risk for purposes of I.R.C. Sec. 465(loss deductibility) even if guarantor does not waive rights of subrogation and right to be reimbursed from LLC; but, to extent debt is co-guaranteed, guarantor not at risk; IRS views guaranteeing debt as being "at risk" and personally liable for the debt; IRS following approach of 2d, 8th and 11th Circuits - taxpayer ultimately liable as payor of last resort and taxpayer not protected against loss; where loan co-guaranteed, taxpayer protected against loss and not at risk).

(civil action brought by natural gas company to condemn property owned by defendant; court previously granted injunction permitting gas company to survey property and begin construction with trial on damages decided in this opinion; court determined the value of the permanent and temporary servitudes across two of defendant’s fields as a takings; court held state law determined issue of mitigation and held that leasing affected fields to another to plant corn crop instead of sweet potatoes was not unreasonable due to drainage and irrigation issues caused by plaintiff’s activities, but for portions of the fields not affected by the construction activities, defendant failed to reasonably mitigate its damages, so no recovery is available for those portions; court made award for value of crops on applicable fields, reduced by  costs of production, and lease payments received; court also awarded damages for land leveling, drainage cleaning, and soil restoration).

(self-rental rule of Treas. Reg. 1.469-2(f)(6) held inapplicable to income petitioner received from wholly-owned S corporation for use of telecommunication towers and land leased to S corporation(which, in turn, leased towers to phone companies) because corporation's use of property constituted rental activity rather than trade or business; income from leases was income from passive activity and petitioner can offset losses against gains).

(judicial review of bankruptcy court determination regarding two Perishable Agricultural Commodities Act (PACA) trust claims; first PACA creditor’s claim was disallowed because invoices were sent after delivery of produce and offered a term of “Net 30” which allowed defendant payment term of more than 30 days and extended term was not in writing; court upheld bankruptcy court’s denial of second creditor’s claim for attorney fees and collection costs for failing to satisfy a judgment because PACA does not support these costs). 

(married couple gifted membership units in LLC to children and grandchildren; transfers made in accordance with dollar value of gifts and were determined by a fraction (numerator was state dollar amount and denominator was value of entire company as determined by IRS or court); IRS claimed gifts were of fixed fractional interests in LLC and, as a result, LLC unit value understated; court determined that defined value clause reallocated LLC membership units among parties in conformance with formula in which unit value as of transfer date was "unknown constant"; Proctor (142 F.2d 824 (4th Cir. 1944) not controlling; McCord (5th Cir.), Christiansen (8th Cir.) and Petter (9th Cir.) controlling, each of which involved use of a defined value clause providing that any amount later determined to exceed the stated gift value passed to charity; case appealable to 10th Cir. and notice of appeal filed in the Tax Court on August 29, 2012). Further note - On November 9, 2012, the IRS issued a non-acquiescence in the case. AOD 2012-46 IRB.

(Bureau of Land Management filed motion to deem admitted 97 requests for admission; requests for admission were generated from various components of previous litigation concerning Bureau’s use of chemical that damages crops and verdict finding Bureau 40% at fault and chemical company 60% at fault; plaintiffs objected to the request for admission on several grounds; court denied motion to deem admitted the 97 requests, but granted the motion as to requiring plaintiffs to supplement their responses within 30 days).

(dog owners sought review of a denial of their motion to dismiss and the magistrate court’s order requiring their dog to be euthanized under state statute; lawsuit arose out of a child’s injuries from dog; child’s parents filed civil suit seeking destruction of dog pursuant to state statute; appellate court held statute did not contain a private cause of action and suit should have been dismissed; dissent argued that facts of case were too horrific and that private individuals should not have to acquire criminal judicial determination that dog at issue is vicious or dangerous before dog could be ordered euthanized).

(decedent allegedly owed debt to predeceased husband based on agreement that couple would keep their estates balanced; decedent's estate claimed deduction for such debt; court upheld IRS denial of deduction due to lack of evidence supporting debt; agreement was merely "friendly agreement between spouses" based on desire to minimize estate tax; agreement not entered into as result of business relationship; fact that debt recorded on both decedent's and spouse's estates' returns relatively minor fact compared to other evidence). 

(Chapter 13 bankruptcy; question before court was whether debtor had reasonable period of time to sell farm and equipment; record did not include employment of realtor despite testimony that farm was listed for sale and listing price; court denied confirmation of debtors’ plan, but debtor could amend within 14 days to provide application to employ a realtor as required by 11 U.S.C. §327).

(estate not entitled to refund of penalty where heirs needed additional time to determine extent of decedent's business affairs involving complex entities in multiple states but, in reliance on advice of estate's attorney, failed to file for extension of time to pay estate taxes).

(decedent, real estate tycoon, died with pourover will that put assets not necessary for payment of debts and taxes into trust created by pre-deceased spouse for benefit of grandchildren; estate made bequest of $100,000 to named beneficiary that assisted trustee; named beneficiary produces second will leaving him one-half of decedent's assets with other half passing to incarcerated grandson; in battle of wills, trustee wins at trial court, but state (CA) Supreme Court reverses and remands on undue influence and elder abuse claims; trustee pays beneficiary $300,000 in settlement with additional $275,000 to be paid if beneficiary agrees not to sue trustee and her brother; trustee claims deduction for amount paid; court upheld IRS denial of deduction on basis that beneficiary had legitimate claim against estate as beneficiary of estate rather than as a creditor; payment made in satisfaction of claim of beneficiary's interest in estate and is non-deductible).  

(appellate review of agency decision; plaintiff held crop insurance policy for potatoes; policy covered potato rot if it reached compensable levels; adjuster did zig-zag sampling of stored potatoes which showed some rot, but not enough for insurance coverage; some potato juice was under piles and plaintiff requested adjuster revise sampling method, but he refused; plaintiff appealed denial of claim and hearing officer determined sampling was incorrect and ruled for plaintiff; deputy director overturned hearing officer finding there was insufficient evidence of sampling error; trial court upheld agency decision as did court of appeals; dissent stated director’s review was based on improper standard of review and matter should have been remanded for proper review).

(trust not a grantor trust where it contained a "distribution committee" that barred grantor from retaining sufficient powers to cause trust to be treated as grantor trust under I.R.C. Sec. 677; it might be possible that sufficient power to cause trust to be treated as grantor trust existed under I.R.C. Sec. 675, but determination only possible after returns filed; trust contributions not completed gifts until time of distribution from trust).

(plaintiffs co-own 37-acre tract on north edge of defendant city, a popular tourist destination, and entered into conditional sale agreement with Wal-Mart under which Wal-Mart would buy 23.5 acres of the tract for $2,943,750; seven months later, conditional sale agreement amended to provide that Wal-Mart was purchasing entire tract for $4 million; after agreement entered into, defendant enacted ordinance restricting size of any new buildings on tract to maximum of 65,000 square feet; Wal-Mart subsequently terminated conditional sale agreement; plaintiffs sued for damages on basis that ordinance unconstitutionally violated Equal Protection Clause; trial court jury ruled for plaintiffs and awarded damages of $3.6 million; on appeal, court determined that genuine issue of material fact remained as to whether similarly situated properties in city were treated differently under same zoning ordinance and as to whether ordinance lacked rational basis; thus, trial court correct in denying defendant's motion for judgment as a matter of law or new trial or remittur on these issues; court also determined that no evidence existed showing that ordinance enacted due to animosity against plaintiffs; consequently, trial court should have granted defendant's motion for judgment as a matter of law on animus liability theory; trial court judgment vacated and case remanded for new trial).

(appeal from an action for partition of property between four tenants in common; commissioners, after assessing property and building upon the property, apportioned tracts by equitable values rather than in equal tracts; court approved commissioner’s report and parties appealed; appellate court held that court review constrained by statute stating that the question of fact to determine whether the division by commissioners was fair and equitable is decided by the lower court and its decision will be upheld if there is any evidence in the record to support it; on review, the court held evidence supported values of structures assigned by commission and affirmed).

(wife who had started divorce proceedings against decedent prior to his death tried to renounce will in which she was given the dogs and some money to transport them to her home out of state; her motion to renounce the will was denied and she appealed; she argued under state law she was not required to affirmatively renounce the will when not provided for in a will; court held that bequest of dogs made her a beneficiary and she was required to affirmatively renounce within the statutory period; court held she missed the deadline; denial affirmed).

(motion to correct sentence after defendant pled guilty to fraud; defendant operated business that backgrounded cattle; he contracted with several cattle business to receive cattle through interstate commerce; defendant assured businesses cattle were doing well when he knew many had died and many others were dying; defendant continued to bill for dead cattle; losses to companies were more than $500,000; court denied defendant’s motion and held no ineffective assistance of counsel claims had merit and refused to issue certificate of appealability).

(petitioner received distribution from IRA before reaching age 59.5 and asserted that he was not subject to additional 10 percent tax because, in accordance with I.R.C. Sec. 72(t)(2), the distribution was taken to comply with qualified domestic relations order (QDRO) in divorce case; court ruled that to come within exception for QDRO, distribution must be made by plan administrator to alternate payee (spouse, former spouse, child or other dependent) in response to QDRO that recognizes such person as having the right to receive all or a portion of the benefits payable under a plan with respect to the participant; QDRO not created in connection with petitioner's retirement plan and distributions actually made to petitioner rather than alternate payee; exception to 10 percent penalty inapplicable). 

(petitioner and wife married in late 2008 and purchased marital home in late 2009; before purchase, wife had owned principal residence and resided in it for more than five consecutive years as required by I.R.C. Sec. 36(b)(1)(D) to qualify as long-term homeowner, and petitioner had not owned a home during the prior three-year period to qualify as first-time homeowner; on joint tax return for 2009, couple claimed $6,500 long-term homeowner tax credit; IRS denied credit in full on basis that spouses did not both qualify for long-term homeowner credit; IRS conceded that petitioner would qualify for first-time homeowner credit in own right and that wife would qualify for long-term homeowner credit in her own right, but read statute to require both spouses to satisfy either long-term homeowner requirement or first-time homeowner requirement on joint return; court reasoned that such statutory construction "absurd"; both spouses qualify and credit limited to $6,500).

(petitioner indicted for and plead guilty to tax evasion, but testified before trial that petitioner's 2000 income offset in full by NOL carryforward; petitioner's tax preparer testified to making an error during the petitioner's criminal investigation that he failed to carry the NOL forward to offset the unreported income in full which would have exonerated petitioner; evidence did not support petitioner's arguments). 

(petitioner formed corporation to perform engineering consulting work and steel fabrication; steel fabrication business ultimately transferred into LLC and businesses separated; corporation used advanced funds from LLC and bank loans to continue operations; LLC claimed bad debt deduction on Form 1065 for 2006 and 2007 for amounts not repaid by corporation; IRS disallowed deductions on basis that they weren't bona fide debt; court agreed with IRS - advances not bona fide debt because no use of promissory note, lack of definitive maturity date, lack of repayment schedule, no collateral pledged and no interest paid or accrued).

(the appellee claimed that a roadway across the appellant’s land gave him access to his tract and that the other party had obstructed the access by installing a gate; other party sued for damages and a permanent injunction to bar interference with alleged easement; at the time appellee bought his tract, he was told that the roadway was his access to the property and that was no other roadway to the land; appellee also obtained a warranty deed to the property that included a “perpetual road easement” for the purpose of ingress and egress to the property; appellee never requested permission to use the roadway because he thought he had acquired use of the roadway when he bought the property; evidence also showed that appellee and his invitees used the roadway and that the appellee had tried to maintain the roadway on one occasion; other parties had also used the roadway for many years up to the present time; trial court ruled for appellee; on appeal, court reversed noting that testimony of parties showed that persons other than appellee used roadway, even before appellee bought property; lack of exclusive use of the property was decisive; appellee could not acquire a prescriptive easement without establishing exclusive use; trial court’s judgment reversed).  

(defendant appealed misdemeanor cruelty to animals conviction; evidence at trial showed emaciated dogs found running loose near property formerly owned by defendant; jury instruction allowed jury to convict for recklessness when the statute at the time did not permit conviction for anything less than knowing and intentional conduct; defendant did not object to instruction at the time of trial, but court held allowing argument and instruction on recklessness was egregious harm and reversed conviction; dissent argued that defendant did not argue that her conduct was reckless rather than intentional or knowing because she denied charges altogether, so erroneous inclusion of reckless in instruction was not reversible error).

(order on defendant’s motion for severance of trial on charges for defrauding Farm Services Agency (FSA) by converting property pledged as collateral; court denied motion; co-defendant’s statement did not implicate defendant and the Confrontation Clause was not violated; defendant failed to show “spillover” effect was prejudicial when charges were for conspiracy).

(IRS takes the position that casualty loss in preceding tax year must be made on tax return, an amended return or refund claim; IRS notes that in some situations, an election made on a document that satisfies requirements  of informal refund claim may also be effective to satisfy election deadline if followed-up with subsequently filed formal refund claim). 

(appeal of grant of summary judgment to defendants on plaintiff’s claim of adverse possession; court affirmed on basis that plaintiff failed to establish exclusive possession of disputed property; plaintiff claimed he and his predecessors-in-interest had exclusive use of property from 1964; county held title to property beginning in 1958 and granted a perpetual easement to defendants in 1998; under previous statute plaintiff required to have exclusive possession for a minimum of 40 years to acquire land from county; in 1980 statute was changed to require only 20 years of possession, but plaintiff did not have exclusive possession until 2000; appellate court agreed defendants’ use was more than casual and defeated plaintiff’s claim because he was unable to meet the 20 year requirement).

(plaintiffs appeal dismissal of their damage claims for harm to their herd allegedly caused by milking equipment manufactured and installed by defendants; case had been dismissed as a sanction for spoliation of evidence and lower court also held claims failed on their merits; court affirmed dismissal based on spoliation of evidence; plaintiffs reconstructed allegedly defective milking parlor and discarded the original wiring; plaintiffs had tested equipment prior to reconstruction, but did not notify defendants until filing suit; court upheld dismissal for spoliation because plaintiffs knew the equipment would be the subject of litigation as they had already hired counsel and had experts test equipment prior to altering milking equipment but failed to provide defendants an opportunity to test; court also granted defendants’ motion for attorney fees because appeal of dismissal was frivolous in its entirety).