Annotations 02/2014

The debtors were forced to shut down their chicken farm and file for Chapter 12 bankruptcy after their contract with a meat processor was terminated. After their plan was confirmed, the debtors received a grant from the USDA for $100,000 (due to the shutdown of their farming operation) and settlement proceeds from the meat processing company in the amount of $105,000. The debtors did not amend their bankruptcy Schedule B or seek a modification of the confirmation order. Instead, they spent both amounts. The trustee filed a motion to modify, alleging that the grant was a prepetition asset that should have been included in the “best interest of creditors” calculation. The trustee also requested that the debtors turn over the settlement proceeds pursuant to the confirmation order. The court granted the motion, recognizing that the debtors did incur certain expenses beyond their control, such as loss due to a former employee’s theft. The court found that the debtors were thus required to turn over $43,978 of the USDA grant and any additional restitution they received from the former employee. The court found that the debtors were required to turn over $75,000 of the settlement payment because they were required to pay the balance in taxes.  In re Hudson, No. 3:09-bk-07857-JAF, 2014 Bankr. LEXIS 820 (Bankr. M.D. Fla. Feb. 28, 2014).

(petitioners, married couple, owned an apartment adjacent to their home and, after selling it, attempted to exclude the gain realized on sale from income via I.R.C. Sec. 121; petitioners had leased the apartment to third parties and then to their son and his family; court upheld the determination of IRS that apartment did not satisfy I.R.C. Sec. 121 because petitioners did not live in it an treat it as their personal residence for at least two of the previous five years immediately preceding the sale; court rejected petitioners' claim that their son and his family were part of the "family unit" because petitioners charged son rent and claimed depreciation on apartment; petitioners' son also utilized separate telephone line and mailbox and paid all bills associated with the apartment). 

(taxpayer is an LLC treated for tax purposes as a partnership and is owned in-part by a disregarded entity for federal tax purposes; disregarded entity is wholly owned by LP and is partially owned by a management company that is a real estate investment trust (REIT) that is wholly owned by LP; LP is also affiliate of a trust - a publicly held statutory REIT;  taxpayer is related to LP for purposes of I.R.C. Sec. 1031; taxpayer owned retail building and wants to enter into sale agreement with unrelated third party; taxpayer to then enter into exchange agreement with qualified intermediary to which rights of transaction will be assigned; replacement property; replacement property is vacant urban office building which is subleased by ground lessee that is a wholly owned by LP; building to be demolished  then vacant land to be subleased to exchange accommodation party or sublease to exchange accommodation party which will then demolish building; sublease to have term of over 30 years and interests not to be disposed of within two years; transaction qualifies for like-kind exchange treatment).


 The plaintiffs owned a gravel road that served as an ingress/egress easement to their property that passed through the defendant's farm.  They claimed that the defendants had destroyed the road by driving heavy farm equipment across the road and allowing cattle to walk on it.  The defendants claimed that they had not violated any "generally accepted agricultural practices" or any statute or regulation with respect to the operation of their farm.  The trial court agreed with the defendants, determined that the state (TN) right-to-farm act barred the claims, and dismissed the case.  On appeal, the court held that the right-to-farm act only pertained to nuisance-type actions and did not apply claims involving unreasonable interference with the use of an ingress/egress easement which the plaintiffs had alleged.  The appellate court agreed with the trial court that the plaintiffs' had not stated a viable nuisance claim, but did make a viable claim for unreasonable interference with an access easement.  The plaintiffs' complaint sufficiently identified the elements of a claim of unreasonable interference with the use of an easement:  (1) it's existence; (2) unreasonable interference; and (3) actual damages.  The appellate court remanded the case.  Curtis v. Parchman, No. M2013-01489-COA-R3-CV, 2014 Tenn. App. LEXIS 112 (Feb. 27, 2014).    

(debtor claimed the first-time homebuyer tax credit under the original version which recaptured the credit by imposing a tax of 6.67 percent of the amount of the credit for 15 years beginning after the second year in which the credit was claimed; debtor then filed bankruptcy and asserted that credit was, in essence, a loan where the debtor's obligation to repay was discharged by the bankruptcy filing; court disagreed, noting that I.R.C. Sec. 36(f)(1) describes the repayment obligation as a "tax" of an additional 6.67 percent annually until credit repaid; hence, repayment obligation not discharged in bankruptcy). 

(decedent owned mineral interests which were distributed equally to two brothers with one brother's share reduced to one-fourth after brother's ex-wife received 50 percent of his 50 percent share; the brother owning a one-fourth mineral interest failed to file federal income tax returns for 1997 and 1999-2005 and IRS filed notices of federal tax liens (NFTLs) in the spring of 2005 for tax years 1997-2002 and another NFTL for the same years in September of 2006; on Oct. 6, 2006, the brother with the 1/4 mineral interest transferred his mineral interest to a trust; IRS moved to foreclose its liens; court determined that IRS had priority over royalties from brother's mineral interest with respect to those royalties for which the IRS liens were perfected before the brother's transfer of his mineral interest to the trust; with respect to the IRS lien filed in 2008, lien did not attach to brother's mineral interest because it had been transferred to the trust and lien only attached to brother's 45 percent interest in the trust, but not the trust's share of mineral interest royalties; IRS did not allege that transfer to trust was a fraudulent transfer)

(appellee filed an action against appellant, seeking a declaration that a public road had been established over appellant’s property; after a jury trial, the trial court entered judgment in favor of appellee, finding that the road, which had been dedicated to the public in 1932, had not been abandoned; in affirming the trial court’s judgment, the court ruled that appellant could not collaterally attack the commissioner court’s establishment of a road in 1932; the court also found that the evidence was sufficient to establish that the road crossing appellant’s property was part of the public road established in 1932; finally, the court found that the jury’s finding that the road had not been abandoned was not against the great weight of the evidence; the gates across the road had not been continuously locked or closed).

(petitioner's equalization payment to former spouse not deductible as alimony; payment constituted property settlement and petitioner required to make payment even if former spouse died; requirements of I.R.C. Sec. 71 not satisfied). 

(House Ways and Means Committee Chair Camp (R-MI, released discussion draft of tax proposals; among provisions included in draft discussion document are single 25 percent corporate tax rate phased in over time; 15 percent research credit of qualified expenses exceeding 50 percent of average qualified research for prior three years; phase-out of the DPAD; MACRS rules repealed and replaced with depreciation lives matching useful life of particular asset; expense method depreciation set at $250,000; some advertising expenses would be subject to capitalization and amortization; cash method of accounting allowed for all businesses with annual gross receipts not exceeding $10 million).  

In this administrative ruling, the an LLC was owned by a state entity and a foreign entity.  An unknown person signed the signature line on Form 1065 as "Foreign Entity."  The individual taxpayer that acted on behalf of the foreign entity did not file the return and indicated that someone from the tax preparer's office signed the partnership signature line.  The IRS determined that the Form 1065 was not valid because it wasn't signed by a general partner of LLC member manager, citing Agri-Cal Venture Associates v. Comr., T.C. Memo. 2000-271.  But, the invalid return does start the running of the statute of limitations period at issue for purposes of the taxpayer whose liability is being assessed, but not the statute of limitations for the partnership of LLC whose return might also report the transaction giving rise to the liability.  C.C.A. 201425011 (Feb. 21, 2014).   

In one of several adversary proceedings stemming from the same bankruptcy action, a bank lender, a grain company, and the bankruptcy trustee all claimed an interest in the proceeds of the debtor’s 2010 crops, which were being held by the grain company. All parties filed motions for summary judgment, but the court denied the motions, finding that the parties failed to adequately address the effect of 810 ILCS 5/9-404 on the grain company’s right to set off the amount owed to the company by the debtor against the amount the company owed the debtor for his grain. The court found that 810 ILCS 5/9-404 did apply and framed the issue for the parties. Under the statute, the company was the account debtor, the debtor was the assignor, and the bank was the assignee. The court was not able to determine on summary judgment whether the bank’s notice of security interest to the company was sufficient to satisfy 810 ILCS 5/9-404(a)(2)’s requirement. If it is found sufficient, the company will not be allowed to offset the debtor’s liability.  In re Duckworth, No. 10-83603, 2014 Bankr. LEXIS 704 (Bankr. C.D. Ill. Feb. 21, 2014).


(farmers granted a security interest in their personal property, including their equipment, to a bank which financed the farmers’ operation; the FDIC shut down the bank, and the FDIC sold the associated notes and security interest to the plaintiff; the farmers then decided to go out of business and hired defendant, an auctioneer, to sell their assets; no one provided notice of the auction to the plaintiff, and the farmers’ assets were liquidated and distributed to another creditor, one of the farmers, and the defendant; plaintiff filed an action against defendant, alleging that its security interest was unlawfully converted; a magistrate judge denied defendant’s motion for judgment on the pleadings, and the district court adopted that recommendation; the action was governed by a five-year statute of limitations, pursuant to 735 ILSC 5/13-205 because it was an action for the conversion of personal property (security interest in the form of equipment); the court rejected defendant’s argument that Article 9 of the UCC did not apply, ruling that Article 9 governed the rights of a party holding a security interest, even after that interest was created).

(bankruptcy trustee seeks to recover from the defendant over $836,000 as a preferential transfer relating to cattle sales; defendant claims that transfers to defendant were transfers of funds held in bailment for defendant as proceeds of cattle that defendant owned but were fed at a feedlot that the debtor operated and that debtor sold the cattle on defendant's behalf to third parties; the court determined that the proceeds that were contained in the debtor's account were not traceable to the defendant because they were commingled in that account with other funds and were spent for debts other than those owed to the defendant in the weeks immediately preceeding the bankruptcy filing; court also determined that the defendant was merely one of multiple creditors that sought payment from a limited asset source and that imposing a constructive trust would be unfair to other creditors; bankruptcy trustee satisfied the requirements for establishing a preferential transfer under 11 U.S.C. Sec. 547).

(the defendants built a fabric building adjacent to the plaintiffs' property for use as an indoor horse riding arena; plaintiffs filed a complaint against defendants, alleging that the building was a public and private nuisance; the trial court ordered defendants to remove the building, finding that defendants’ course of conduct unreasonably interfered with the plaintiffs’ enjoyment of their property and constituted a private nuisance; on appeal, the court vacated the trial court’s judgment and remanded for further proceedings; the court found that the trial court abused its discretion by requiring defendants to remove the building; an adjoining landowner did not have a right under nuisance law to prohibit the erection of structures on adjoining property that he or she considered not to be aesthetically pleasing; the lawfully constructed building did not, based on its size or proximity, constitute a nuisance; on remand, the trial court was to consider the allegations of noise, dust, lights, and odors, and fashion any reasonable restrictions necessary to limit interference with the plaintiffs’ enjoyment of their property based upon those factors; the trial court properly found that the state (ID) Right to Farm Act did not apply because the case did not involve a change in the character of the surroundings).    

(plaintiffs included a public interest food safety group and several individuals; plaintiffs sought injunctive relief requiring the Texas Department of State Health Services (the Agency) to enforce Tex. Health & Safety Code §821.003, which prescribed requirements for how caretakers were to treat “live birds,” including housing them in suitable cages and providing them with suitable food and clean water; plaintiffs alleged that Texas egg production facilities were violating this statute and that the Agency should step in and enforce the law; in affirming the trial court’s dismissal of the action, the appellate court found that it lacked subject matter jurisdiction to consider the matter; section 821.003 was intended to prevent cruelty to animals, not health risks associated with food production; the Agency did not have a mandatory, nondiscretionary duty to enforce the statute; rather, local law enforcement officers were tasked with enforcing §821.003; the legislature had granted the Agency extensive authority to address unsanitary conditions in egg production facilities through other means).     

(Chapter 12 case; debtors (married couple) farmed hay and raised horses since 1999; debtors purchased land securing bank’s claim in 2007 and decided to build home on tract in 2008; home construction loan executed in 2008 and bank approved debtors for 30-year adjustable rate permanent loan; home completed in 2009 and parties engaged in dispute over bank’s commitment to permanent financing ultimately resulting in foreclosure of construction mortgage and pending sale of home which precipitated debtors’ Chapter 12 filing; debtors’ office and farm headquarters located in newly constructed home; issue was whether debtors qualified for Chapter 12; if bank’s principal and interest claim included in debtors’ farm debts, 50 percent test satisfied; court determined that construction portion of bank loan included in debtor’s “farm” debt because house was integral part of farm operation due to farm’s books and records maintained in office in home and home’s proximity to farming operation which allowed debtors to care for livestock and maintain irrigation system; debtors’ treatment of bank’s claim also satisfies 11 U.S.C. §1225(a)(5) – U.S. Supreme Court decision in Till v. SCS Credit Corp., 541 U.S. 465 (2004), overrules In re Hardzog, 901 F.2d 858 (10th Cir. 1990) and formula approach to determining cramdown interest rate applicable to Chapter 12 reorganization plan to be utilized rather than market rate for similar loan approach of Hardzog; interest rate is prime rate plus 2 percent; amended Chapter 12 plan feasible and confirmable; on further review by 10th Circuit, court reversed on issue of whether principal residence debt arises out of a farming operation; 10th Circuit held that debt "arises out of farming operation" under 11 U.S.C. Sec. 101(18)(A) if it is directly and substantially connected to any of the activities constituting a farming operation as defined by 11 U.S.C. Sec. 101(21); when loan debt is involved, objective "direct use" test to be used in determining when "direct-and-substantial-connection standard is satisfied" - loan proceeds must be used directly for or in farming operation for debt to "arise out of" farming operation; bankruptcy court used incorrect standard and is reversed). 

(a Wisconsin grain producer entered into a number of contracts under which he sold grain to an Illinois-based grain buyer; after a nine-year relationship, the buyer alleged that the producer repudiated several oral agreements, entitling the buyer to $ 1 million in damages; when the producer refused to arbitrate the dispute, the buyer filed an action in Illinois state court, seeking an order compelling the producer to arbitrate; the trial court dismissed the action on the grounds that it lacked personal jurisdiction over the producer; on appeal, the court affirmed; the producer, who lived, worked, and purchased all equipment in Wisconsin, lacked sufficient minimum contacts with the State of Illinois such that the State could—consistent with the due-process clause of the Fourteenth Amendment—exercise personal jurisdiction over the producer; contracting with an out-of-state party could not alone establish sufficient minimum contacts; the buyer always traveled to Wisconsin to meet with the producer; indeed the producer had only set foot in Illinois once—to attend a seed corn meeting where he met the representative from the buyer, some nine years before the buyer filed its action; the producer did not purposefully avail himself of the privilege of conducting business in Illinois).

(case involves I.R.C. Sec. 36B credit which is designed to offset some of increase in health insurance premium costs caused by Obamacare; I.R.C. Sec. 36B(b)(2)(A) defines the "premium assistance amount" by referring to "the monthly premiums for...qualified health plans offered in the individual market...which were enrolled in through an Exchange established by the state under 1311 of the Patient Protection and Affordable Care Act..."; implementing regulation states that credit is available to enrollees in federally-facilitated Exchanges rather than just state Exchanges; plaintiffs were not eligible for government or employer-sponsored health insurance coverage and without the credit health insurance would not have been affordable to them and, hence, no penalty would apply for failing to obey the government dictate to buy health insurance; plaintiffs lived in state that had a federally-facilitated Exchange, thus the regulation now results in plaintiffs being penalized for failing to obey the government command to buy health insurance; court determined that plaintiffs case did not involve tax refund action (i.e., plaintiffs needed to buy insurance and waive their claims or don't buy insurance, get penalized and then file refund suit and recover only upon prevailing); court upheld regulation under Chevron (467 U.S. 837 (U.S. 1984)) deference standard). 

(petitioner borrowed against his life insurance policy and did not repay loans; upon termination of policy, loans satisfied by policy proceeds; petitioner didn't report income associated with satisfaction of the loans; IRS asserted that petitioner realized income to extent of policy loan principal and capitalized interest on policy loan; court upheld IRS determination; accuracy-related penalty imposed). 

(IRS claimed that petitioners' trusts for benefit of their children were shams; IRS failed to carry burden of proof; IRS bore burden of proof due to sham trust theory not being consistent with statutory notice of deficiency provided to petitioners; IRS failed to establish some of the factors required by Markosian v. Comr., 73 T.C. 1235 (1980)).

(plaintiffs and defendants were neighboring landowners; their predecessors in interest had purchased their respective properties from a common owner; defendants had recorded the deed to their property in 1941, and plaintiffs had recorded the deed to their adjacent property in 1953; plaintiffs’ deed failed to except a 10-acre tract of land specifically described in the defendants’ deed; in 2011, the plaintiffs filed a quiet title action, claiming ownership to the 10-acre tract; in affirming the lower court’s judgment in favor of the defendants, the court ruled that neither the plaintiffs’ deed nor the testimony of their surveyor had established the property line between the two properties; as such, the plaintiffs did not have “record title” to the property; the plaintiffs’ deed failed to mention the disputed tract, whereas the defendants’ deed specifically established the boundaries; plaintiffs failed to establish a claim by adverse possession because their possession of the land (to cut timber) was not open and notorious and was not hostile and under a claim of right).

(decedent was firefighter who died in line of duty and trial court determined that decedent's surviving "spouse" was not legal beneficiary of decedent's estate because "spouse" was born a male and, therefore, was not legally married to decedent under state law at time of decedent's death; surviving "spouse" had male genitalia and was diagnosed at age 18 with "gender dysphoria" and placed on feminizing hormone therapy and continued living as a female; surviving "spouse" change name to female name at age 21 and was issued amended birth certificate and obtained KS driver's license which was used to obtain TX driver's license which was then used to obtain TX marriage license at age 33; after wedding, surviving "spouse" underwent "genital reassignment" surgery which reassembled male genitalia into female; two years later, decedent died; decedent's mother  and ex-wife sued seeking declaration that marriage was void; trial court granted summary judgment for mother and ex-wife; on appeal, court reversed on basis that genuine issue of material fact remained regarding surviving "spouse's" gender which requires expert testimony to resolve). 

(plaintiff was the assignee of a bank which had loaned money to debtors in exchange for receiving three mortgages; defendants were judgment creditors of the debtors; the judgment creditors had executed on their $727,495 judgment, and the sheriff held a sale at which the bank bid $495,000 and received a certificate of sale for the property;  the bank did not pay $495,000 to the sheriff, and the sheriff returned the execution unsatisfied; the bank paid $5,097.50 in commission and fees for the sale; the bank and judgment creditors later signed an agreement under which they agreed that the bank would not seek fees from the judgment creditors, that the judgment creditors’ debt was subordinated to the banks’ mortgages, and that the bank’s foreclosure of its mortgages would extinguish the judgment creditors’ judgment lien; when the bank’s assignee filed its foreclosure action, the judgment creditors argued that they were entitled to a $210,977.93 surplus from the sheriff's sale on the grounds of conversion, fraud, and specific performance; in affirming the trial court’s grant of summary judgment to the assignee, the court ruled that the judgment creditors failed to prove fraud or constructive fraud; the agreement clearly spelled out that the judgment creditors’ lien would be subordinated to the bank’s mortgages, and the bank’s agreement to forbear collecting a portion of the fees from the judgment creditors constituted sufficient consideration).    

(plaintiff, a builder, allowed to defer payment of tax on home sales until point in time at which sales of homes in huge development project reached 95 percent in the aggregate; IRS claimed that tax obligation triggered when each individual home sold; in so holding, court affirmed plaintiff's use of completed-contract method of accounting; similar case on same issue remains pending with Tax Court).

When an improper payment has been made to an FSA, the IRS, in this Chief Counsel Advice, says that debit card collection procedures can be used.  Also, then the improper payment is treated as a business debt, the amount is to be reported as wages on Form W-2 for the year.  C.C.A. 201413006 (Feb. 12, 2014).

(Chapter 7 case in which debtor disclaimed his interest in his deceased father's estate five months before filing bankruptcy; court determined that such disclaimer was a "transfer" as defined by 11 U.S.C. Sec. 727(a)(2)(A), but that trial needed to determine whether debtor filed disclaimer with intent to hinder, delay or defraud creditors).


(petitioner, a waitress, received payments in settlement of civil rights claims against employer and excluded them from income as received on account of physical injury or sickness; IRS claimed payments not excludible under I.R.C. Sec. 104(a)(2) because they were labeled as wages and emotional distress rather than as being related to any physical injury or sickness; also, settlement did not indicate that petitioner incurred any non reimbursed medical expenses).

(petitioner, neurosurgeon, entered into agreement with medical center designed to induce petitioner to establish practice in return for payment of student loans; for year in issue, petitioner earned income from third party educational institution and incurred certain expenses that petitioner deducted on Schedule C; court agreed with IRS that petitioner incurred expenses as employee and, as such, expenses deductible as miscellaneous itemized deductions on Schedule A to extent in excess of 2 percent of petitioner's AGI)

(IRS claimed that petitioner had unreported business income and sought petitioner's books and records pertaining to business records; petitioner couldn't provide sufficient documentation and IRS sought deposit records to prepare bank deposits to reconstruct petitioner's income; IRS then reduced total deposits by reported income; court determined that IRS introduced enough evidence to establish extent of petitioner's unreported income to satisfy burden of production; petitioner claimed that unreported amounts were nontaxable advances, but petitioner failed to document that claim).

(plaintiff family formed trusts that came to own stock in S corporation that owned C corporation stock; trust made QSub election so as to be able to disregard existence of C corporation (Treasury Regulations treat a QSub election as a deemed liquidation of the subsidiary, and under I.R.C. Secs. 332 and 337, the liquidation of a 100 percent subsidiary is not taxable - neither subsidiary nor parent has gain) and treat as division; appreciation in S corporation assets was $226 million and shareholders increased income tax basis in S corporation stock by like amount; taxpayer's argued that unrecognized gain be treated as tax-exempt income that subsidiary earned that passed through to shareholders resulting in basis increase; S corporate stock then sold for $230 million and shareholder reported loss on returns for year in issue; IRS determined that no basis increase should have occurred on QSub election - I.R.C. Sec. 337 does not result in exemption from income, but simply non-recognition because S corporation continued investment in subsidiary by holding assets directly rather than via stock ownership; court agreed with IRS and noted that situation not analogous to discharge of indebtedness recognized by S corporation which results in basis increase; no accession to wealth when subsidiary liquidated; no basis increase in shareholders from $15 million to $241 million upon QSub election - non-recognition of $226 million gain under I.R.C. Sec. 337 did not involve tax-exempt income so no related basis increase under I.R.C. Sec. 1367(a)(1) result was cumulative gain of $215 million on stock sale and not $11 million loss).

(decedent owned a 23.44 percent interest in a C corporation that functioned as a family personal holding company that was founded by her father; corporation held publicly-traded, dividend-producing stock and distributed all dividends, but sold nothing; stock had substantial built-in capital gain (BIG), and liquidation of corporation would trigger 39 percent capital gains tax rate (combined state and federal); issue before court was whether decedent's stock to be valued based on potential income stream derived from current investment strategy or via net asset value of stocks; either valuation approach to be combined with valuation discounts to reflect minority interest, lack of marketability and BIG tax; CPA valued decedent's interest via capitalization-of-dividends method, and produced draft report; report never finalized and decedent's interest reported on Form 706 at value of $3.15 million; IRS claims correct value is almost twice as much as reported value; after getting deficiency notice from IRS, estate hires expert appraiser; estate did not act with reasonable cause and in good faith in using unsigned draft report prepared by estate's CPA as basis for 706 value; CPA not a certified appraiser; estate later pushed for $5 million value at trial)   

(plaintiffs filed an action in state court against defendant, a railroad company, seeking a prescriptive easement for a roadway the plaintiffs used to access their property; the roadway crossed the railroad company’s property; the railroad company sought to remove the action to federal court, but the district court granted the plaintiffs’ motion for remand; the railroad company failed to establish an amount of controversy exceeding $75,000 so as to establish diversity jurisdiction; the railroad company failed to establish that the value of the property at issue was more than $75,000 or that its cost of compliance with any resulting injunction would be greater than $75,000; the court denied the plaintiffs’ request for attorney fees).

(31 U.S.C. Sec. 330 does not authorize IRS to authorize regulation of tax return preparers; during first 127 years of statute, executive branch never interpreted statute to allow such regulation; trial court held that statute and context "unambiguously foreclose the IRS's interpretation" of the statute; tax return preparer is not a "representative" of persons before Treasury Department; tax return preparer does not "practice" before the IRS; history of legislation illustrates total inapplicability to tax-return preparation which did not exist at time of enactment; Congress has already enacted a separate set of statutes applicable to tax-return preparers and if statute at issue construed as IRS desires those other statutes would be gutted; nothing in statute or legislative history indicates vast expansion of IRS's authority over hundreds of thousands of individuals in huge industry; IRS never in the past interpreted statute in such fashion or even suggest it had such authority; IRS's interpretation of statute so arbitrary and capricious that IRS position not entitled to deference). 

(taxpayer, employee of a closely held C Corporation, requested guidance on grouping activities under IRC §469, to determine whether grouping can be used to determine material participation in taxpayer's personal activities;  IRS determined that taxpayer must have an ownership interest in each separate activity to be grouped as one activity per Treas. Reg. §1.469-4; additionally, for the measurement of gain or loss for the purpose of IRC §469,  the combined activities of the corporation and the taxpayer's personal business activities would not constitute an “appropriate economic unit”;  the purpose of Treas. Reg §1.469-4(d)(5)(ii)  was not to give a special advantage to non-owner employees of closely held corporations, and this is further supported by Treas. Reg. 1.469-5(f)(1);  IRS noted that if the employee performs work “in connection” with his or her other activities, that work may be counted towards material participation;  taxpayer bears the burden of proof to show that the work was “in connection” with an activity in which the taxpayer owns an interest).

(petitioner and respondent were the two children of the decedent; respondent was the executor of the decedent’s estate; both respondent and petitioner were granted a life estate in the decedent’s property, with the remainder to their children; at the time of decedent’s death, petitioner had three children, and respondent had none; the decedent owned a 78-acre farm at her death, but she owned few non-real estate resources to maintain the farming operation; pursuant to a clause in the will granting him permission to sell the decedent’s property without a court order, the respondent sold the farm for $561,600; the petitioner asked the court to remove the respondent as executor, arguing that he sold the farm “to get cash” and that he lacked such authority; in affirming the lower court’s order denying relief to the petitioner, the court found that the trial court did not commit manifest error; the debts and the farm expenses of the estate exceeded the value of the non-real estate property; the will granted the executor the power to sell property without a court order; the executor had received the advice of counsel that he did not need to obtain the consent of the legatees; there was no allegation that the respondent misappropriated funds for personal use).

(a father and mother executed revocable living trusts under which they each left their estates to the survivor, for life,  with the remainder to the following: 70 percent to their son, 20 percent to their daughter, and 10 percent to their granddaughter; the mother survived the father, and she modified her trust to leave 70 percent of the residuary to the daughter, 20 percent to the son, and 10 percent to the granddaughter;  the son filed a petition to have the mother removed as trustee of the father’s trust, and, while the action was pending, the mother died, leaving the son as the successor trustee of both trusts; the son filed a second petition alleging that he had reached a settlement agreement with his mother before her death in which she revoked the amended trust and reinstated the original one; the trial court rejected the son’s petition, finding that the settlement agreement was not enforceable because it was not signed; on appeal, the court affirmed, ruling that the modified trust was not revoked; the court also ruled that the mother clearly intended her beneficiaries to take outright and free of a lifetime trust, even though “for lifetime” language was used).    

(debtors were a married couple that had entered into a joint venture and borrowed money in the name of the joint venture from a bank; the bank obtained a perfected security interest in rice grain and equipment of the debtors; when the debtors filed a Chapter 7 bankruptcy, the trustee sought to sell the rice and equipment, but the bank argued that it was entitled to liquidate the property because it was owned by a separate entity, the joint venture; the bankruptcy court and the district court ruled in favor of the trustee, and the appellate court affirmed; the court found that the lower court did not clearly err in finding that the joint venture created by the debtors was not a general partnership or other separate legal entity; thus, the rice and equipment listed in the name of the joint venture was owned by the debtors individually and should be included in the bankruptcy estate; the joint venture agreement had specifically stated that it did not create a partnership).    

(the mother of a little girl bitten by a dog at daycare challenged a summary judgment granted by the district court in favor of the daycare provider’s insurer; the district court held that a business exclusion in the daycare provider’s insurance policy precluded coverage for the dog bite; on appeal, the court affirmed, finding that the business exclusion applied as a matter of law because the child's injury flowed from her presence at the insured’s daycare center; the injury was thus associated with that center and the child’s injuries arose out of the business activity).

(the insureds purchased yearly policies from the insurer to cover their dairy operation; their 2009-2010 policy included a provision requiring the insureds to bring any action against the insurer within one year; the 2010-2011 policy (effective in November of 2010) gave the insureds two years to pursue litigation against the insurer; in January of 2010, the roof of the insureds’ barn collapsed, and the insurer denied coverage; nearly two years after the collapse, the insureds filed an action against the insurer for breach of contract and negligence; the district court granted summary judgment to the insurer on the grounds that the one-year contractual limitation in the 2009-2010 policy barred the action; on appeal, the court affirmed, ruling that the language of the policy was clear and susceptible to only one reasonable interpretation; the court also ruled that the provision was not unconscionable; the insureds had a reasonable period of time to file their action).

(plaintiff brought a putative class action on behalf of similarly situated Minnesota counties seeking a declaratory judgment that Fannie Mae and Freddie Mac had violated state law by failing to pay transfer tax on transfers of deeds to real property; the County sought recovery for unjust enrichment and injunctive relief; the district court granted the defendants’ motion to dismiss for failure to state a claim, the County appealed, and the appellate court affirmed; the court ruled that the federal agencies’ charters stated that the agencies  "shall be exempt from all taxation . . . imposed by any State," and identified their real property as the sole exception to the general rule; the agencies were governmental instrumentalities which Congress had the authority to protect by exempting them from taxation imposed by the states; because the federal entities were not obliged to pay the tax, no unjust enrichment claim was stated).

(Chapter 12 case in which debtor's confirmed plan in which part of creditor's secured claim to be paid from proceeds obtained by avoiding landlord's lien on 2010 corn crop; debtor sought avoidance of lien under 11 U.S.C. Sec. 543(3) (statutory landlord's lien) and 11 U.S.C. Sec. 544(a)(1) (consensual lien); court noted that SEc. 543(3) allows debtor to avoid "fixing" of statutory lien to extent lien is for rent, and that lien was "fixed" to 2010 corn crop from time it was raised until seven months prepetition (which was after crop had been harvested, sold and rent paid) when it was extinguished in full by payment under the lease; thus, no statutory lien that could be "fixed" on anything as of date petition filed and, therefore, lien could not be avoided; rent amount paid in full before lease expired; thus, consensual lien not avoidable).

(plaintiff was medical student that had contractual agreement with University that University would pay plaintiff's tuition, fees and reasonable expenses associated with attendance; upon graduation and completion or residency, plaintiff required to repay amounts by either working in medically underserved community or by paying back twice the amount of all payments received; University paid plaintiff $73,000 and plaintiff did not work in underserved community but paid back $121,440.22 which was twice the principal plaintiff received plus interest; on amended return, plaintiff claimed full amount paid as Schedule C deduction and IRS disallowed amount; trial court judge upheld IRS on basis that amounts for personal expenses and were not deductible under I.R.C. Sec. 265(a)(1) because amounts related to tax-free income; appellate court upheld trial court determination on basis that origin and character of amounts received were personal in nature).

(safe harbor provided concerning I.R.C. Sec. 108(a)(1)(D) which allows taxpayers (other than C corporations) to avoid debt discharge income on forgiveness of real property business debt where real property is used in taxpayer's trade or business and debt is secured by the real property; Rev. Proc. addresses issue of whether direct mortgage on such real property is considered to be "secured by the real property" for purposes of I.R.C. Sec. 108(a)(1)(D); safe harbor provides that where debt is secured by pledge of taxpayer's ownership interest in disregarded entity that holds the real property, security requirement is satisfied; security interest must be first priority security and at least 90 percent of fair market value of assets of disregarded entity must be real property used in taxpayer's trade or business and remaining assets must be incidental to acquisition and operation of such real property; safe harbor not sole method of satisfying requirements of I.R.C. Sec. 108(a)(1)(D) when security arrangement not accompanied by mortgage).   

(twenty-nine beachfront property owners filed an action against a town and others, seeking to quiet title to their beachfront properties up to the mean low-water mark, subject only to the public rights of usage in the intertidal property; the trial court determined that the town, the backlot owners (who had intervened), and the public enjoyed a public prescriptive easement as well as an easement by custom to engage in general recreational activities on both the wet and dry sand portions of the entire beach; the trial court also found that the State of Maine (which had intervened) had established, pursuant to the public trust doctrine, that the public's right to fish, fowl, and navigate included the right to cross the intertidal zone of the Beach to engage in all "ocean-based" activities; on appeal, the court vacated the order, ruling first that the backlot owners were not proper parties to the lawsuit because they had no interest in the property beyond that of general members of the public; the town had failed, as a matter of law, to rebut the presumption of permission in favor of the property owners that would negate a finding of adversity necessary to establish a prescriptive public easement; noting that it had never recognized an easement by custom as a viable cause of action in Maine, the court also vacated the lower court’s granting of the easement by custom; finally, the court found that the trial court’s determination that the public had a right to engage in ocean-based activities under the public trust doctrine was premature).

(a client engaged an attorney to draft a security agreement for loans she made to her son; although the attorney drafted the agreement, the client did not provide him with an equipment list, and he did not file a financing statement; after the son declared bankruptcy, the client sued the attorney for malpractice for failing to file the financing statement; the circuit court granted summary judgment to the attorney, finding that he owed no duty to the client to file the statement; on appeal, the court disagreed that the duty question could be decided on summary judgment; nonetheless, the court affirmed the judgment on the grounds that the client suffered no damage and that she filed her claim outside of the three-year limitations period for a legal malpractice claim; the client succeeded in recovering from the son’s bankruptcy estate more than the appraised value of the collateral she claimed was jeopardized by the attorney’s alleged negligence). 

(decedent was survived by her husband and four children, two of whom were also the children of her ex-husband; the decedent’s ex-husband’s business partner and significant other was appointed as the personal representative (PR) of the decedent’s estate; her holographic will, which split her property evenly amongst her husband and four children, was probated; the PR sold some of the decedent’s real property in a private sale to the decedent’s ex-husband; she also paid the ex-husband $22,448 to repair, clean, and transport personal property that was auctioned for $28,016.50; the husband filed a petition to surcharge the PR for committing fraud and damaging the estate; the trial court found that the PR did not breach her fiduciary duty in disposing of the estate’s property;  on appeal, the court ruled that sufficient evidence supported the trial court’s decision that the PR did not breach her fiduciary duties with respect to selling the estate's personal property and paying the ex-husband’s bill; testimony established that the personal property was in poor condition; there was no testimony to support the allegation that the amount paid to the ex-husband was excessive, given the amount of work required).

(plaintiff, the husband of the decedent, sought to renounce the will of his deceased spouse; defendant, the decedent’s son and the executor of her estate, filed a petition to disallow the renunciation on the grounds that it was untimely;  the circuit court ruled in favor of the defendant; on appeal, the plaintiff argued that the circuit court should have applied equitable estoppel and equitable tolling to excuse the late filing; in affirming the circuit court’s judgment, the court found that no facts warranted the application of equitable estoppel or equitable tolling; the plaintiff and decedent had agreed that their assets would pass to their respective children; the plaintiff knew in advance that he was not a beneficiary of his wife’s estate or family trust; there was no evidence that the defendant had misled the plaintiff or that he had prevented the plaintiff from filing his petition in a timely manner; one judge dissented, arguing that the estate’s lawyer, who had lulled the plaintiff into inaction, was working under an undisclosed conflict of interest).

(environmental activist groups filed citizen suit action under Clean Air Act (CAA) against state of Washington in attempt to force state to establish limits on "greenhouse gas" emissions from oil refineries; plaintiffs claimed that state didn't apply "reasonably available control technology" (RACT) standards to refineries which violated state's implementation plan; trial court ordered state to impose RACT on refineries by May of 2014, but appellate court reversed for lack of standing and remanded for dismissal; in present action, rehearing denied; court refused to allow standing based on wild assertions from plaintiff activist groups that their members suffered from the inapplicability of RACT due to decreased wildland recreational activities, melting glaciers for hikers and decreased snowpack for skiers, property damage, ill health, rising sea levels, coastal flooding, etc., etc., etc.). 

(plaintiff, MO Attorney General, has filed suit against defendant, CA Attorney General, seeking declaratory and injunctive relief, costs and fees, associated with blocking enforcement of CA's Proposition 2 and A.B. 1437 which will increase size of egg-laying hen enclosures and decrease flock densities for CA egg producers and egg producers in other states desiring to sell eggs in CA; suit notes that CA consumers bought one-third of all eggs produced in MO in 2013 and CA requirement will substantially increase cost of MO egg production if egg producers continue to sell eggs in CA, which will also make eggs too expensive to sell in other states; suit notes that if MO producers choose to not participate in CA market, other markets will have surplus eggs and egg prices will fall which could force some producers out of business; suit claims that CA provision violates Commerce Clause by "conditioning the flow of goods across its state lines on the method of their production"; in the alternative, suit alleges federal preemption via 21 U.S.C. Sec. 1052(b); suit filed after the the Farm Bill conferees rejected House Farm Bill provision that would have barred the conduct that CA has engaged in).  

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

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