Annotations 04/2012

(plaintiff landowner owner brought action that easement over estate had been extinguished when parcels affected came under common ownership for short period of time; servient land was briefly transferred to common owner in 1976 before parcels severed again shortly thereafter; plaintiff’s title did not include easement; defendants purchased property with expectation of easement still listed on their deed; after clearing trees and preparing land for cranberry bog, plaintiff brought suit; court agreed registration system did not abrogate common-law doctrine of merger and easement was extinguished; court held parties expecting use of easement have duty to ensure privilege still exists).

(trusts and wills must indicate source of income from any amount taxpayer will use for charitable purpose, and source must have independent effect (i.e., income tax cannot be sole purpose for charitable contribution); if independent economic effect lacking, "income distributed for purpose specified in Section 642(c) will consist of the same proportion of each class of the items of income as the total of each class bears to total of all classes"; purpose of provision is to regulate charitable lead trusts).

(IRS inflation adjusted figures for HSAs for 2013; annual contribution limitation for persons with self-only coverage will be $3,250 and for family coverage it is $6,450; HDHP defined (for 2013) as having annual deductible of at least $1,250 for self-only coverage and $2,500 for family coverage and where annual out-of-pocket expenses do not exceed $6,250 for self-only coverage and $12,500 for family coverage). 

(coal ownership and oil, gas, and other mineral rights in property were separately conveyed in different deeds; coal bed methane (CBM) gas rights in property were not specifically enunciated in any conveyance; parties moved for summary judgment on stipulated facts that included deeds to determine ownership of CBM rights; district court held CBM was conveyed to gas owners who were entitled to royalties; coal owners appealed; appellate court held coal rights were narrowly granted in language of deed but rights conveyed to gas owners were broadly granted; appellate court held that minerals with no known commercial value at time of conveyance not factually relevant when language of deeds provided clear notice of grantor's intent; argument that mineral owners would destroy coal owners' rights to coal in effort to collect CBM was unpersuasive to defeat language of conveyance; gas owners had CBM rights; district court order affirmed).

(decedent's will gave executor (friend of decedent) option to buy decedent's farmland for $3,000/acre if notice to exercise option given within 30 days of appointment as executor and option exercised within 45 days after notice given; option to lapse if not timely exercised; specification given as to how option to be exercised; notice given and option exercised four days after will admitted to probate and executor appointed;  granddaughter opposed executor's intent to proceed with administration of estate on basis that executor failed to comply with option period in will which (she claimed) required real estate transaction to be completed within 45 days of notice; court disagreed, noting that will was silent as to time of closing of transaction, but plainly did not require transaction to be completed within 45 days; intent to complete occurred within reasonable time after death (8 months); court affirmed trial court order that estate proceed with administration and complete real estate transaction at issue). 

(child was severely injured when bitten by a “pit bull” dog; 89 year-old landlord was sued for the incident; trial court dismissed case because no proof under common law principles whether landlord knew of dog’s vicious propensities; intermediate appellate court reversed finding fact question generated; on further appeal, highest court held “pit bulls” and “mixed-breed pit bulls” are inherently dangerous and created strict liability standard for any person owning, harboring, or controlling such breed specific dogs in lieu of traditional common law liability; dissent filed, in which justice criticized court’s departure from common law and judicial notice of evidence outside the record; dissenter outlined difficulty in determining when dogs are “mixed-breed pit bulls” and differences in standards of liability for other breeds; UPDATE July 13, 2012: in response to this decision tenants have been receiving eviction notices and shelters are concerned about their liability for dealing with these types of dogs; a motion to reconsider has been filed with the court, delaying the effect of the decision according to the state attorney general; a task force is drafting proposed legislation to limit the scope of the ruling).

(debtor filed Chapter 12 and initial plan was denied confirmation as was first amended plan and second amended plan; debtor proposed third amended plan and proposed to sell 40 acres from Idaho property to pay creditors along with changing farming operations and drive truck to insure plan payments made; court determined that third amended plan was feasible, but that it was not equitable or in good faith to parse out the 40 acres from the balance of the land in the bankruptcy estate with hopes that unsecured creditors would receive a distribution; plan not confirmed because it failed to ensure that unsecured creditors would receive the same as if case were a Chapter 7 case (11 U.S.C. Sec. 1225(a)(4)). 

(dispute regarding 1/4 interest in mineral rights to property acquired through series of deeds; trial court held Duhig v. Peavy-Moore Lumber Co., Inc., 144 S.W.2d 878 (Tex. 1940) doctrine applied, which requires that when there is a reservation in deed to one person and title is granted to another both the reservation and title grant cannot both be given effect; instead, the reservation fails; therefore 1/4 reserved interest ineffective, so interest failed to pass to plaintiff as subsequent owner; appellate court affirmed on appeal but for different reasons; held Duhig doctrine inapplicable; intent of parties clearly conveyed thorough all contracts relating to transfers which clearly made transfer subject to previous reservations and conveyances; further plaintiff’s deed clearly referenced reservation, so plaintiff had notice and could not procure greater interest than for which bargained and paid). 

(decedent formed FLP and moved into assisted living facility simultaneously; two years later, decedent funded partnership with personal assets and trust subsequently dissolved; while decedent sole owner of FLP, two children listed as general partners even though contributing nothing to FLP; FLP loaned funds to decedent's children with such loans documented but with no terms except to establish interest payments; some assets kept out of FLP for decedent's care; upon decedent's death, 40% discount claimed on FLP assets; court held that no discounts allowable because decedent owned 100 percent of FLP interests and FLP agreement said that FLP would dissolve upon one partner acquiring interests of all others; decedent owned all assets individually and assets includible in decedent's estate at full FMV). 

(plaintiff, environmental group, sued defendant for alleged breach of CWA permit by not depositing dredged material properly; court holds the CWA does not all citizen suits to enforce the conditions of a permit issued under 33 U.S.C. Sec. 1344).

(personal injury suit brought after plaintiff fell off horse while participating in trail ride; jury verdict entered for defendant finding injuries were result of inherent risk of horseback riding as defined by state recreational use statute; plaintiff appealed regarding jury verdict form and instructions given and court’s award of costs to defendant; plaintiff sought to impose liability for failure to provide skilled guides as “promised” in the acknowledgment of risk form she signed, which would have waived the benefit of the recreational use statute; plaintiff sought jury verdict form with question regarding provision of skilled guides and other instructions regarding duties imposed by this theory; district court refused requested verdict form with question regarding provision of skilled guides and related jury instructions; appellate court upheld district court’s refusal as theory sought by plaintiff was not related to jury question of whether injuries were caused by inherent risk of activity and verdict rendered found no negligence of defendant, so instructions would not have affected verdict; appellate court also affirmed trial court’s award of costs to defendant as prevailing party).

(debtor was 52 years old and had student loan debt of between $260,000 and $320,000; debtor did not have any dependents or any physical problem that would negatively impact debtor's ability to earn a living as a licensed psychologist; evidence also showed that income had somewhat increased over time; debtor not entitled to "undue hardship" exception to non-discharge of student loan debt under 11 U.S.C. Sec. 523(a)(8)). 

(three-year statute of limitations under I.R.C. Sec. 6501(e)(1)(A) (instead of 6-year statute under I.R.C. Sec. 6501(e)(1)(A)) applies to omission of income exceeding 25 percent of gross income as a result of overstated basis; Fourth Circuit decision affirmed, which is consistent with opinions of Ninth Circuit and Federal Circuit).

(state (IL) “Amazon” tax law enacted in 2011 ruled unconstitutional). 

(petitioners owned 23-acre tract with one acre used to raise asparagus, 18 acres for horse pasture, one acre for hay storage, 2 acres for farm buildings and enclosed areas for horses and one acre for home and garage; property held to satisfy requirements for ag land classification for ad valorem property tax purposes under MN Stat. Sec. 273.13, sub. 23(e); tract devoted primarily to agricultural use). 

(property owner located near land acquired by U.S. government on behalf of Indian tribe for location of casino brought suit to challenge government action; government and tribe argued Quiet Title Act (QTA) expressly excluded claim to quiet title to lands involving Indian tribes; Supreme Court disagreed and held because property owner did not make claim to disputed land, his claim was not quiet title action; QTA does not foreclose action when there is no quiet title claim, so lawsuit falls within general waiver of sovereign immunity; D.C. Circuit affirmed and case remanded for further proceedings; dissent stated QTA should be bar to suit as opinion allows property owners to circumvent statute by recruiting others to make claims to reach result landowner foreclosed to make under QTA, allows for plaintiffs to circumvent expeditious resolution of challenges by bringing claims under other statutes, and brings uncertainty to Administrative Procedure Act in conflict with previous jurisprudence). 

(Medicaid case in which plaintiffs claimed that state Medicaid agency improperly determined that institutionalized spouse ineligible for Medicaid under state law which treated community spouse's annuity income as countable resource; state law not only treated annuity income as available to institutionalized spouse, but also specified that combined income of spouses could not exceed 150 percent of federal monthly allowed limitation; state law more restrictive of federal requirements and invalid as such).

(action brought to enforce settlement agreement reached before trial that included transfer of real property; adverse party sought to void agreement under Statute of Frauds; court held Statute of Frauds applies to settlement agreements involving any transfer of interest in real property; electronic writings between parties analyzed under state electronic communications statute and were deemed signed writings sufficient to satisfy Statute of Frauds; settlement agreement enforced).

(debtor started Keogh retirement plan in 1992 and plan fell out of compliance with tax rules; about 10 years later, debtor filed bankruptcy under claimed funds in retirement account were exempt under Utah law even if plan not qualified for beneficial tax treatment; Utah Supreme Court, on certified question, said state law exempts funds in Keogh account if plan substantially complies with tax code; court holds that account substantially complies and funds exempt; but, contributions within one year of petition date not exempt, along with earnings on such contributed amounts). 

(IRS proposed regulations concerning the deductibility of expenses incurred for lodging when not traveling away from home and when such lodging is for the employer and constitutes a working condition fringe; effective on or after date published as final regulations in the Federal Register). 

(plaintiff entered into farm cash lease agreement with landlord; plaintiff planted fall wheat for harvest next spring/summer; tenant failed to pay rent and landlord hired defendant to harvest crop; crop sold to elevator for $3,293.74; plaintiff sued landlord for breach of contract and quantum meruit and sued defendant for conversion, and trial court awarded plaintiff $3,950 (amount received on sale of crop plus value of straw, less $2,000 for rent owed); trial court rejected conversion claim and did not award plaintiff amount of crop insurance allegedly owed; court affirmed on all points - no "total loss" of crop pursuant to crop insurance policy and no evidence provided of amount of partial loss; conversion claim fails because no proof of knowing or intentional exertion of unauthorized control over tenant's wheat crop - mens rea not proven). 

(farmer allegedly entered into oral agreement to sell cotton crop, but failed to deliver to plaintiff; plaintiff sued and farmer argued oral contract unenforceable under Statute of Frauds; plaintiff filed summary judgment motion to resolve issue that farmer was merchant for purposes of exception to Statute of Frauds under UCC; trial court granted motion determining farmer was merchant; farmer appealed and argued statute did not include farmers within definition of merchants; appellate court held that experienced commercial farmers in state could fall within definition of merchant for purposes of exception; appellate court, however, reversed trial court order and remanded for trial because fact question presented regarding whether farmer was merchant, which was incapable of resolution by summary judgment).  

(I.R.C. §1031 case; petitioners, married couple, established investment intent with respect to replacement property; time interval between acquisition of replacement property and sale of principal residence critical, along with petitioners' attempt to rent replacement property before establishing occupancy; petitioners acquired house with intent to rent out, but inability to satisfactorily do so resulted in taxpayers selling present home and moving into house they acquired with intent to rent out). 

(plaintiffs brought personal injury lawsuit against farmer after plaintiffs were in motorcycle accident caused by slick substance on highway; firefighters called to field-fire at accident scene next day and believed farmer used fuel as accelerant, which was slick substance plaintiffs encountered; jury returned verdict in defendant’s favor; plaintiffs appeal alleging prejudicial error in defendant’s closing arguments when counsel stated the “prospect of financial ruin” had affected defendant for two years; after statement, plaintiffs requested permission to admit evidence of defendant’s insurance, but judge gave admonishment to jury instead; appellate court agreed argument was improper, but held not so prejudicial that admonishment could not cure it; additional evidence presented that other causes for slick substance were plausible; one judge dissented because he believed statement was too inflammatory for admonition to cure).

(subject to review by U.S. Tax Court, IRS determined that some estate assets not part of closely-held business where I.R.C. §6166 election made and resulting amount eligible of tax eligible to be deferred accordingly reduced; estate’s eligibility to make I.R.C. §6166 election subject to ruling by U.S. Tax Court on deficiency; no refund of excess estate taxes paid until total estate tax bill paid where some payment made in installments, but an overpayment of an installment amount would be allowed). 

(USFWS proposal to amend regulations at 50 C.F.R. part 17, which implement the Endangered Species Act (ESA), to create special rule providing for the conservation of the polar bear; interestingly, while initial reason polar bears added to list of threatened and endangered species was loss of habitat due to "global warming", none of four alternative means examined for protecting polar bears included control of "greenhouse gas" emissions; rather focus is on regulating impact of direct human contact with polar bears). 

(petitioner made movie and deducted production expenses; IRS disallowed deduction under hobby loss rules, but court found requisite profit intent present under I.R.C. Sec. 183; petitioner also made Sec. 181 election to expense production costs and established substantial compliance with statutory requirements for election; IRS post-trial brief detailing petitioner's lack of conformity with requirements of regulations not admissible evidence and too lengthy). 

(farmer and wife purchased 200-acre property in 1950s which was dedicated as homestead in 1980s; farmer signed promissory notes on behalf of farms but none secured by homestead; farmer defaulted on notes; in March 2003, farmer and wife transferred homestead to irrevocable trust; in December 2006, creditor brought suit for breach of promissory notes; in February 2008, correction warranty deed filed expressly reserving life estate in homestead to couple; in March 2008, farmer died; creditor brought suit alleging fraudulent transfer; wife died shortly thereafter; motion for summary judgment filed by some, but not all parties to creditor’s suit; district court granted motion and dismissed all claims; creditor appealed; appellate court held dismissal of claims against parties not filing motion was error; court held summary judgment proper for moving parties, because homestead is exempt property, homestead passed to wife free of creditor’s claim upon farmer’s death, and homestead lost status as community property liable for debts when farmer died; because wife was not personally liable for debt, homestead not subject to farmer’s guarantee).

(fish farm brought breach of warranty suit against supplier for providing feed not meeting guarantees of fat and protein ratio causing decline in fish growth; competing experts testified regarding causal link between food and fish growth; defendant filed motion for directed verdict, which was deferred; jury returned verdict of $770,229.30 in lost profits for fish farm; defendant renewed motion, which was denied; defendant appealed two issues: trial court’s admission of expert’s testimony because theories were unscientific and unreliable and impermissible damages awarded; appellate court held expert’s testimony did not create substantial prejudice to defendant and no specificity of deficiencies in expert’s scientific analysis provided; award sufficiently proved through evidence that plaintiff’s expenses remained stable but profits lost in amount jury awarded; appellate court affirmed on both issues).

(portion of unused NOL generated while taxpayer taxed as U.S. resident that would have been allocated and apportioned to gross income of taxpayer's wholly-owned LLC business activity had taxpayer been taxed on the income as a nonresident alien may be used to offset gross income that is effectively connected to LLC's business activity in the U.S.; taxpayer can carry over an unused NOL from the business activity to apply against business gross income after reacquiring U.S. residency; any remaining amount can offset taxpayer's gross income). 

(federal law and not state law controls the determination of whether property involved in a like-kind exchange satisfies the definition of "like-kind"; while state law property classifications are relevant for determining whether property is real or personal, federal law determines whether the properties are of the same nature or character; natural gas pipeline, while real property in one state and personal property in another state, are of the same nature and character and are like-kind for purposes of I.R.C. Sec. 1031 and will be treated as real property land improvements; but, associated steam turbines are not to be treated as real property and are not part of the exchange group under I.R.C. Sec. 1031).

(estate granted extension of time to file Form 8939 to make timely election under I.R.C. Sec. 1022 for decedent that died in 2010; condition for exception to general rule of no extensions of time to be granted satisfied as set forth in Notice 2011-66).

(when an S corporation makes its subsidiary a QSSS before the year in issue, the subsidiary is treated as a disregarded entity whose items get reported on the parent's return; the presence of a disregarded entity as a partner removes the partnership from the exception for small partnerships that could have been used to avoid late filing penalties applicable to partnership tax returns (10 or fewer partners; all items of income, deductions, credits, etc., from the partnership are properly reported on timely basis on partners' individual returns; partnership allocation percentages are identical for all partnership tax attributes).

(court holds that proposed initiative 2011-2012 No. 45, its title, its ballot title and submission clause contains a single subject as constitutionally required; title involves placing limits on water diversions with intent of protecting public's interest in water, and allows for prohibition of diversions that would irreparably harm the public ownership interest in water).

(court holds that proposed initiative 2011-2012 No. 3, its title, its ballot title and submission clause contains a single subject as constitutionally required; title involves the public's rights in the waters of natural streams; if sufficient signatures can be gathered, initiative will be included on ballot in November of 2012; if approved, "Public Trust" doctrine would be applied to water in the state and would declare that unappropriated water in natural streams is dedicated to the use of the people of Colorado and that the state has superior authority over water in areas of property and contract law). 

(court recognized recovery of attorney fees for extraordinary services rendered because of litigation concerning attorney fee request under Iowa Code § 633.19; attorneys’ request must comply with Iowa Rule of Probate7.2(3) and include itemized bill, written statement regarding necessity of expenses or services, responsibilities assumed, extra work involve and importance of matter to estate).

(city charged grain elevator with violating local ordinance prohibiting excessive noise and nuisances; elevator challenged ordinance as void for vagueness in proscribing conduct; court agreed ordinance failed to provide defined and objective standard for prohibited conduct and held ordinance unconstitutional).

(plaintiff filed personal injury claim based on negligence and strict liability after losing a finger in bizarre accident; defendant, plaintiff’s neighbor, owned two horses that were inseparable; one horse died and defendant began digging grave for horse; after little progress had been made, plaintiff came to the property and finished digging the grave; plaintiff put his hand on halter of distressed horse when defendant returned to area with lead line, which spooked horse and caused horse to move head and sever plaintiff’s finger; defendant moved for summary judgment and trial court granted motion; appellate court affirmed on both counts; negligence claim dismissed because state no longer recognizes common law negligence claim for injuries caused by domestic animals; horse’s demeanor on the day was not atypical or a dangerous propensity nor was normal activity of walking away from lead line cause of plaintiff’s injury, so claim dismissed).

(city charged grain elevator with violating local ordinance prohibiting excessive noise and nuisances; elevator challenged ordinance as void for vagueness in proscribing conduct; court agreed ordinance failed to provide defined and objective standard for prohibited conduct and held ordinance unconstitutional).

(petitioner's postnuptial agreement specified that, in the event of divorce, ex-spouse entitled to retain ownership of petitioner's MLB proceeds and $50,000 annual payments and specified that agreement inured to benefit of parties and was binding on heirs, executors, legal representatives and assigns; after divorce, petitioner claimed payments under agreement as alimony; deduction denied because payments survived death of ex-spouse; court agreed with IRS resulting in no alimony deduction for payor spouse and no taxable income for ex-spouse). 

(petitioner, lawyer, incurred $72,000 in horse-related expenses in purported attempt to stimulate horse-law related practice; petitioner showed only $2,000 in horse-related income for year in question with balance of income from non-horse related clients or former clients; horse activity and law activity not combinable pursuant to Treas. Reg. Sec. 1.183-1(d)(1) due to lack of sufficient interconnection; court rejected petitioner's argument that combined horse activity and law practice was "capital asset" that might increase in value; petitioner's lack of records, lack of profit motive, lack of participating in any equestrian events resulted in lack of profit motive; burden of proof not shifted to government).

(S corporation made disproportionate distributions over several years; corporation realized error and sought permission to make corrective (disproportionate) distributions; based on underlying stock agreements, IRS determined that S corporation did not have second class of stock that would terminate its S election because shareholders had equal rights to distributions and liquidation proceeds).

(court issues preliminary injunction against portion of state law that attempted to override local zoning laws related to fracking; local rules remain effective until legally challenged and invalidated; state law effective date delayed for 120 days).

(IRS has acquiesced in result only in Alan Baer Revocable Trust Dated February 9, 1996 v. United States, No. 8:06CV774, 2010 WL 1233917 (D. Neb. Mar. 23, 2010) where the court allowed a marital deduction for stock that was subject to a contingent bequest; the decedent, owner of stock in a private, closely held, telecommunications company, died in 2002 leaving his shares to 23 beneficiaries through a trust; bequests contingent on trustee selling stock at profit (in excess of decedent's cost basis); balance of shares passed to qualified residual interest trust (QTIP trust) for surviving spouse; marital deduction claimed for QTIP and for which the estate claimed a marital deduction; IRS moved for summary judgment, but court denied motion allowing estate to show that contingency would never occur in accordance with I.R.C. Sec. 2056(b)(7)(b)(ii)(II) and assuming that taxpayer properly elected QTIP treatment on estate's return; IRS acquiesced in result only because the stock was of negligible value and the court’s decision was, thus, irrelevant; but, IRS position remains that test for QTIP treatment is a bright-line test and not the "so remote as to be negligible standard" of the court).

(plaintiff established irrevocable discretionary trust and funded it with tangible personal property; plaintiff applied for Medicaid benefits and was denied on basis that trust assets were available resources which caused plaintiff to exceed $1,500 resource eligibility limitation; court agreed that trust resources were available for Medicaid eligibility purposes on basis that trust was self-settled trust that was not fully discretionary).

(medical service corporation made contributions to I.R.C. Sec. 419 multi-employer benefit plan; contributions not deductible as ordinary and necessary business expenses under I.R.C. Sec. 162 because facts indicated that contributions made on behalf of owner of corporation and owner's wife to fund personal investment in whole life insurance policies that largely accumulated cash value just for them; petitioner had full control over policies). 

(petitioner purchased life insurance policy for undisclosed face amount through employer in 1992 and paid approximately $22,000 via payroll withholding; petitioner thought he had abandoned the policy upon ending employment and taking different job with different employer, but policy remained in force; life insurance company issued petitioner Form 1099-R for difference between gross distribution and petitioner's investment in policy - $3,089.92; insurance company, upon petitioner's request, explained that policy had lapsed with an outstanding loan that exceeded basis in policy and that distribution code 7 in box 7 of 1099-R was a "normal distribution" not subject to early withdrawal penalties; second letter sent to petitioner that policy issued with "automatic premium loan provision" meaning that any premium payment not paid would be treated as loan against cash value of policy if sufficient value present (with interest accruing), and that when insufficient value present to support loan to cover premium, policy would lapse and outstanding loan would trigger income reportable on Form 1099-R; petitioner claimed that he didn't owe tax on funds he never received; court disagreed on basis that petitioner benefitted from loan against value of policy even though petitioner had the insurance coverage under the policy that he did not know about; amount received not received as an annuity as required under I.R.C. Sec. 72(e)(1)(A)). 

(married couple established joint revocable trust; trust terms specified that income to be distributed to grantors during their lives for their support and then upon the last of them to die, trustee to make specified distributions to children and grandchildren; wife became incapacitated and husband amended trust on numerous occasions, but trust terms required changes to be in writing with both grantors signing and then providing changes to trustee; such procedure not followed, but trustee attempted to carry out changes upon discovering them; amendments significantly reduced amount ultimately received by children and grandchildren; court determined that amendments invalid – trust terms control). 

(petitioners purchased solar panels from vendor under a "buy one get two free" promotion; promotion also allowed petitioner to find another customer ("ratepayer") or let vendor hook petitioner up with ratepayer; petitioner purchased installations on installments and any associated ratepayer would pay utility bill to vendor-provided entity with any profit after payment of taxes and debt service remitted to petitioner; petitioner claimed Sec. 179 deduction for installation cost and also claimed Sec. 48 energy credit; several petitioners admitted to not doing anything except claiming tax deductions; while one petitioner claimed to have sold five other units for vendor, nothing else done with respect to the units; one petitioner claimed to have visited his ratepayer's residence monthly to inspect equipment and consult with ratepayer concerning solar service; court holds that none of petitioners satisfy any of the material participation tests under Sec. 469; no business records maintained; Sec. 179 deduction not allowed for lack of trade or business).

(petitioner was a real estate professional as a full-time real estate broker (worked at least 750 hours in real estate trades or businesses as an owner and worked more in real estate than in all of petitioner's other jobs), but did not satisfy the material participation test in either of petitioner's rental real estate activities; petitioner did not keep daily log of time spent on rental activities; accuracy-related penalties not imposed).