Case Summaries

 This case involved a family farm partnership that formed between two sisters and their spouses after the sisters' father retired from farming.   Bayer Crop Science (BCS) planted GMO rice in an area near the partnership's farming operation which spread into other rice operations and caused the price of rice to drop.  The plaintiff, one of the partners, did not want to participate in the class action lawsuit being brought against BCS, but one of the other partners did meet with one of the lawyers bringing suit against BCS who then hired the lawyer to represent the partnership in the suit against BCS.  The plaintiff was notified of the meeting, but did not attend.  Over the following several years these two partners did not speak with each other, but all correspondence concerning the BCS litigation was left on the partnership's office desk and the plaintiff would always go through the mail and none of the 19 letters received from BCS were ever hidden or not disclosed.  The plaintiff then decided to retire for health reasons and wanted to liquidate the partnership.  However, the other partners wanted to continue the business.  Consequently, the partners entered into a buy-sell agreement on December 17, 2010 whereby the plaintiff would convey his interest back to the partnership for $825,000 and some land.  The agreement did not mention the BCS pending litigation.  Three days after the buy-sell agreement was executed, BCS sent a letter to the partnership that it was settling the litigation and that the partnership would receive $310/acre.  The letter was placed in the open on the partnership office desk with the rest of the mail.  The plaintiff received $825,000 and some land for his partnership interest on Jan. 31, 2011, and he and his wife resigned that day.  In July of 2011, the plaintiff's wife learned of the settlement and sought a portion of the $177,000 payment the partnership received from BCS.  The partnership refused to pay any amount to the plaintiff or his wife.  The plaintiff sued for an accounting and winding up of partnership business, damages for breach of fiduciary duty, failure to disclose the BCS litigation, rescission of the buy-sell agreement based on mutual mistake and unilateral mistake and punitive damages.  The trial court ruled for the defendant on all points.  On appeal, the court affirmed.  The plaintiff was fully informed of the BCS litigation and chose not to participate in it, and lied about not knowing about it.  The court also held that the plaintiff was not entitled to an accounting because the plaintiff was a former partner who had sold his partnership interest.  The court noted that the buy-sell agreement specifically stated that any assets not mentioned in the agreement were transferred with the partnership interest, and the agreement contemplated that any unidentified assets would be transferred to the remaining partners.  Mick v. Mays, No. SD33149, 2015 Mo. App. LEXIS 505 (Mo. Ct. App. May 11, 2015).          


The plaintiff built a 60x128 foot pole barn on his property.  The property was zoned for agricultural use, but the plaintiff intended to use the barn to store equipment for his off-site construction business.  The county viewed the use of the pole barn as not permitted.  The plaintiff filed for a change in the zoning of the property, but was denied.  The plaintiff sought judicial review, but the court affirmed the denial by the county board.  On appeal, the court affirmed.  The court held that it lacked jurisdiction to determine whether the plaintiff's proposed use of the property was prohibited under the ordinance because the plaintiff failed to exhaust administrative remedies by seeking administrative review of the board's decision.  The court also held that the decision to deny his application for a zoning change was not manifestly against the weight of the evidence.  Tipton v. Madison County Board, et al., No. 5-14-0186, 2015 Ill. App. LEXIS 996 (Ill. Ct. App. May 11, 2015).


The plaintiff suffered hail damage to its crops on approximately 5,000 acres.  The crops were insured under the defendant’s policy.  The policy stated that the percentage loss would be determined using the crop-hail loss adjustment procedures published by the National Crop Insurance Services (NCIS) or, in the absence of such procedures, as determined by the defendant.  The defendant’s team of adjusters determined that over 4,000 acres had payable hail loss and, in accordance with the NCIS manuals, established the proof of loss.  The plaintiff refused to sign the proof of loss, and the defendant issued a net payment to the plaintiff of $233,058 for the crop hail losses.  The claim was reviewed to determine its accuracy and the defendant concluded that it had been properly adjusted based on average yields over a five-year period because a comparison of the 2012 yields of hailed and non-hailed acres would not work.  The plaintiff sued for breach of contract and bad faith, and the defendant moved for summary judgment.  The court determined that the plaintiff failed to point to any policy language imposing any obligations that the defendant breached.  The court stated, “Unfortunately, the Bruhn’s resistance brief is not helpful.  Incredibly, it does not contain a single cite to any case, statute or other legal authority.  The “Argument” portion of the brief is less than two pages.  If Bruhn has a good argument for resisting FFIC’s motion, it did not share that argument with the court.”  The court pointed out that the policy clearly provided for the NCIS procedures to be used to determine the insurable loss, which the defendant did utilize.  Thus, the court determined that the defendant did not breach the contract and that there were no issues of material fact on the breach of contract claim and that the plaintiff’s claim lacked merit and constituted “customer-service” complaints.  The court also held that the defendant had not acted in bad faith.  The court granted summary judgment for the defendant and canceled the trial that was scheduled in the future.  Bruhn Farms Joint Venture v. Fireman’s Fund Insurance Company, No. C13-4106-LTS, 2015 U.S. Dist. LEXIS 60320 (N.D. Iowa May 8, 2015).  


In the fall of 2011, the defendant sought an easement over the plaintiff's property.  When the plaintiff refused to grant the easement, the defendant initiated a condemnation action under K.S.A. Sec. 26-501, et seq.  The trial court determined that the defendant had the power of eminent domain and appointed appraisers to determined the amount of compensation to be paid to the plaintiff.  The appraisers filed their report and the plaintiff appealed, but later motioned to dismiss his appeal without prejudice (a dismissal that allows for refilling in the future).  About five months later, the plaintiff filed another notice of appeal of the appraisers' award citing the Kansas Savings Statute (K.S.A. Sec. 60-518) as the authority for allowing his appeal, which would otherwise be untimely.  The defendant moved to dismiss and the trial court dismissed the case.  On appeal, the court reversed.  The appellate court determined that the savings statute applied and that the appeal was a "new civil action" to be tried as any other civil action.  The legislature, the court held, had not specified that eminent domain cases were to be treated differently.  Neighbor v. Westar Energy, Inc., No. 111,972, 2015 Kan. LEXIS 238 (Kan. Sup. Ct. May 8, 2015).


In 2012, the Environmental Protection Agency (EPA) approved California's plan for the reduction of ozone and pesticide levels in the state, particularly the San Joaquin Valley.  The state had originally agreed to a 20 percent reduction of volatile organic compound (VOC) emissions by 2005, but the EPA allowed the state to reduce that goal to a 12 percent reduction.  A consortium of environmental groups challenged the EPA's approval.  The court noted that the state had submitted paperwork to the EPA setting the goal at a 12 percent reduction level and that 20 percent was merely a goal or target.  The court also pointed out that the plaintiffs had not established any proof of a current or ongoing violation of environmental rules.  The court deferred to the EPA that CA's plan was enforceable and that compliance would occur in years involving high fumigation of crops in the San Joaquin Valley.  El Comite Para El Bienestar De Earlimart, et al. v. United States Environmental Protection Agency, No. 12-74184, 2015 U.S. App. LEXIS 7631 (9th Cir. May 8, 2015).

 


The plaintiff, a C corporation, filed a return for the year ending Aug. 31, 2008, reflecting a tax liability of "0.00."  Based on the 2008 return, the plaintiff did not make any estimated tax payments for its 2009 tax year based on the exemption contained in I.R.C. Sec. 6655(d)(1)(B)(ii) which says that estimated tax penalty is 100 percent of the tax shown on the return for the preceding tax year (which would be zero).  However, in 2011, the IRS levied a penalty of $94,671.53 plus interest of $301.34 (which ultimately grew to $1,284.70) for failure to pay estimated tax for the plaintiff's 2009 tax year.  The matter ultimately went to an IRS appeals conference which did not resolve the matter.  The plaintiff paid the tax and sued for refund.  The IRS claimed that because the plaintiff did not file a tax return for tax year 2008 that showed a liability for tax, the plaintiff could not rely on the safe-harbor of I.R.C. Sec. 6655(d)(1)(B)(ii).  The statutory language immediately after the safe-harbor states as follows:  "Clause (ii) shall not apply if the...corporation did not file a return for such preceding taxable year showing a liability for tax."  The plaintiff claimed that its 2008 return was a return that showed a liability for tax and that liability was zero.  The IRS claimed that the return did not show any liability for tax which eliminated the safe-harbor.  The court, based on a plain reading of the statute, agreed with the IRS.  The court noted that S corporations and individuals need not file a return to take advantage of the safe-harbor, which indicated that the Congress intended to treat C corporations differently.  The court reached this conclusion even though I.R.C. Sec. 6655(g)'s definition of "tax" for this Code section could result in "zero" meeting the definition, and the regulations do not provide otherwise.  IRS has never issued any formal or informal guidance on the definition of "tax" for this purpose, but has taken this position with respect to C corporations in litigation.  Nevertheless, the court gave the IRS position deference.  As a result of the court's ruling, had the plaintiff's 2008 return showed a tax liability of one cent, the estimated tax penalty would have been zero.  Cal Pure Pistachios, Inc. v. United States, No. CV 14-5237-DMG (PLAx) (C.D. Cal. Apr. 10, 2015).   


The petitioners (a married couple) claimed a chartable deduction of $2.1 million resulting from the bargain sale of 63.39 acres of undeveloped land to a charitable foundation and their allocation and carryover of deductions from other years.  The issue in the case was the value of the contribution.  As is typical of cases like this, the result is fact-based with the outcome of which party had the better appraisal.  The court largely upheld the petitioner's claimed deduction, finding that the petitioners satisfied the contemporaneous written acknowledgment rule and had the better appraisal as to fair market value.  Davis v. Comr., T.C. Memo. 2015-88.


The parties owned adjacent residential tracts with a gravel path running between the properties.  After a survey, the defendants poured concrete on their portion of the gravel path and built a fence four inches inside their property line which prevented the plaintiffs from parking on the gravel path.  The plaintiff filed a quiet title action on the basis that they held an easement by prescription.  The trial court disagreed.  On appeal, the court affirmed.  The court noted that the plaintiffs had admitted that their usage of the grassy strip was pursuant to a mutual understanding with the defendants.  There was also no evidence that the plaintiffs had expended substantial amounts of money or labor in reliance based on the mutual understanding.  Bales v. Shepard, No. 14-0960, 2015 Iowa App. LEXIS 407 (Iowa Ct. App. May 6, 2015). 


A family S corporation was created in 1983 with family members holding the corporate stock.  A nephew of the founder, the plaintiff, bought a 25 percent interest in the corporation in 1993 and was being groomed as the founder's successor.  However, the founder ultimately decided that the succession plan wouldn't work with the plaintiff and the plaintiff's employment was terminated in 1995.  In 1996, more stock was sold to other family members on the same terms of the 1993 stock sale to the plaintiff and other shares were given to family members.  The plaintiff retained his shares and typically sent a representative to shareholder meetings.  In 1998, the founder gifted and sold more shares to other family member and then died in 1998 with management transition passing to other family members.  The plaintiff still owned 25 percent of the corporation at this time.  In 2008, the board sold the remaining share of treasury stock to key employees which had the effect of reduced the plaintiffs overall stock ownership percentage.  The plaintiff protested the sale of the treasury stock and bonuses paid to key employees and wanted dividends to be paid to him along with a portion of retained earnings, and wanted paid for two years of employment.  The plaintiff ultimately sold the bulk of his stock to pay his own debts.  The plaintiff then sued the corporation and the controlling shareholders for breach of fiduciary duty, oppression and unjust enrichment.  The trial court dismissed the case and assessed court costs to the plaintiff.  The appellate court affirmed.  The court noted that frustrated expectations is the plight of all minority shareholders and create no special duty on the part of the majority that could lead to a breach of a fiduciary duty, and the majority's actions were fair to the corporation, which is where fiduciary duties are owed.  On the oppression claim, the court cited the IA Supreme Court's Baur opinion which was, in essence, vacated by the trial court for the Supreme Court's incorrect recitation of the facts of the case (the trial court, on remand, held that the Supreme Court opinion was no longer the law of the case), where the court  adopted a reasonableness standard for handling oppression claims.  The court held that there was no oppressive conduct because the bonuses were reasonable and based on expert analysis, and that the plaintiff had no reasonable expectation for employment.  The court also rejected the plaintiff's claim of unjust enrichment because there was no breach of a fiduciary duty owned to the plaintiff.  Ahrens v. Ahrens Agricultural Industries Co., No. 14-0564, 2015 Iowa App. LEXIS 390 (Iowa Ct. App. May 6, 2015).     

 


The plaintiffs ordered samples of hardwood flooring from the defendant through the defendant's website.  They later followed up with a telephone where they bought over $8,000 of flooring from the defendant.  The defendant emailed a two-page written purchase contract to the plaintiffs which included a bullet point that said that the order was subject to the defendant's "terms of sale."  After installing the flooring, the plaintiffs had an infestation of wood-boring insects that so damaged their home that caused it to be subject to quarantine and possible destruction by the USDA.  The plaintiffs sued for fraud, breach of contract, negligence, trespass, breach of implied warranties of merchantability and fitness for a particular purpose, deceptive trade practices, products liability  and nuisance.  The defendant moved to compel arbitration as required by the terms of sale which were available on the defendant's website and that the terms of sale had been incorporated into the purchase contract by reference.  The court disagreed.  It was insufficient, the court reasoned, for the defendant to merely place quotation marks around the phrase "terms of sale."  The multitude of terms, the court noted, were contained in the four corners of the purchase contract.  A clear reference needed to be made to the terms of sale on the defendant's website.  Walker v. BuildDirect.com, Inc., No. 112075, 2015 Okla. LEXIS 41 (Okla. Sup. Ct. May 5, 2015).


Under the facts of this ruling, a parent corporation owned all of the stock of two foreign subsidiaries.  One of the subsidiaries was an operating company and the other a holding company.  The holding company owned all of the stock of three other operating companies that were also foreign companies.  The proposal was that all of the operating companies would be combined into a new subsidiary in the foreign country.  A new foreign corporation would be formed with the parent transferring all of the stock it held in the two subsidiaries in exchange for additional shares of voting common stock of the new corporation.  Then, the other operating subsidiaries will transfer all of their assets to the new corporation in exchange for additional shares of the new corporation's stock.  Then the subsidiaries and the operating company subsidiary will liquidate and distribute their stock to the holding company subsidiary.  Then the new corporation will continue to conduct the business that was formerly conducted by the operating subsidiary and the three subsidiaries that had been owned by the holding company subsidiary.  A gain recognition agreement will be entered into.  The IRS determined that the transaction would qualify for Sec. 1031 treatment as a Sec. 351 exchange followed by a type D reorganization.   Rev. Rul. 2015-9, 2015-21 I.R.B., revoking Rev. Rul. 78-130, 1978-1 C.B. 114.


A brother and sister, residents of Arkansas, were battling each other over who was responsible for paying an estate tax liability exceeding $2 million of their mother's estate.  The plaintiff was executor of the estate and the defendant was the trustee of the decedent's trust and received life insurance proceeds as a trust asset.  The plaintiff asked the defendant to disburse trust funds such that the estate tax liability triggered by the insurance could be paid.  The defendant refused, and the plaintiff sued in federal court to force the defendant to disburse trust funds.  The court ruled for the defendant, holding that the Code does not create a claim for the decedent's estate until the taxes are paid.  I.R.C. Sec. 2206 specifies that unless the decedent directs otherwise by will, if any part of the gross estate on which tax has been paid consists of proceeds of policies of insurance on the decedent's life receivable by a beneficiary other than the executor, the executor can recover from the beneficiary the portion of the total tax paid as the proceeds of the policies bear to the taxable estate.  No other direction was provided in the decedent's will.  Thus, the court lacked jurisdiction until the federal estate tax is paid.  The matter belonged in state court.  Manley v. DeVazier, No. 2:15-cv-54-DPM, 2015 U.S. Dist. LEXIS 58782 (E.D. Ark. May 5, 2015).     


In this case, various environmental groups challenged the state of New York's general permit system which allowed smaller communities to develop stormwater-management programs and limit pollution before seeking approval from the state for the allowable discharge of runoff into rivers and streams.  The permit system allowed a general permit to be issued upon the filing of a "notice of intention" to discharge with the Department of Environmental Conservation.  The permit system involved a stormwater management plan that included 44 "mandatory best practices" which could be achieved with flexibility.  The plaintiffs claimed that such a process did not pressure the communities to reduce pollution to the "maximum extent practicable" as they claimed was required.  The court rejected the plaintiffs' argument and wouldn't engage in second-guessing the experience and expertise of the responsible state agencies, and determined it was permissible for the communities to determine for themselves the necessary pollution controls that satisfy federal standards.  In re NRDC, No. 48, 2015 N.Y. LEXIS 934 (N.Y. Ct. App. May 5, 2015).     


In 2006, the petitioners, a married couple, granted a land preservation easement to a county (under the county's Agricultural Land Preservation Program (AALP) in exchange for being entitled to sell to a developer the development rights on the tract - known as a "density exchange option."  As a result of the easement grant, the petitioners claimed a charitable deduction of $5.54 million which they carried over, in part, to 2007 and 2008 due to deduction limitations.  The IRS denied the deductions due to the petitioners' failure to satisfy the reporting requirement for this type of charitable contribution and because of the lack of donative intent because of a quid pro quo exchange.  As a result, the IRS asserted deficiencies of $1.3 million also levied accuracy-related penalties totaling almost $260,000.  The court sustained the IRS position.  The court determined that that the appraisal of the property was not a "qualified appraisal" as required by Treas. Reg. Sec. 1.170A-13(c)(3) because it lacked an accurate description of the property, the date of the contribution and the terms of the agreement.  The court also noted that the appraisal summary required by Treas. Reg. Sec. 1.170A-13(c)(2)(I)(B) that is submitted on Form 8283 did not have the donee's signature and did not disclose the consideration received.  Also, the court held that the petitioners were not entitled to substantial compliance.  The court also held that the transaction involved a quid pro quo and could not be re-characterized as a bargain-sale transaction.  As for computation of the gain from the sale of the development rights, the court held that it was not possible to determine the basis of the development right and, as such, the "equitable apportionment" doctrine did not apply.  The court upheld the imposition of the 20 percent accuracy-related penalty for a substantial valuation misstatement under I.R.C. Sec. 6662(b)(3) for which reasonable cause did not apply.  Costello v. Comr., T.C. Memo. 2015-87         


Various environmental groups challenged the defendant's resource management plan (RMP) on 1.3 acres of land in Southwestern Arizona.  The plaintiffs sought to reduce the amount of livestock grazing allowed by claiming that the RMP failed to account for the effects of current and future grazing and competing land uses.  However, the court upheld the RMP noting that, unlike a grazing permit, the RMP was concerned with balancing many competing land uses and that the RMP at issue property considered alternatives that reflected various priorities.  The Bureau of Land Management (BLM)m the court held, made sufficient analysis of the impacts of livestock grazing and properly used its expertise in developing the environmental impact statement.  Western Watersheds Project v. Kenna, No. 12-15110, 2015 U.S. App. LEXIS 7357 (9th Cir. May 4, 2015). 


The petitioner, a doctor, had various entities that he controlled that utilized certain items of equipment.  The petitioner acquired a CT scanner with a five-year life.  The scanner was leased by one of the petitioner's entities that provided that the lessee could buy the scanner at a below market price.  One of the entities deducted the rent amount received for the "lease" of the scanner and another entity deducted depreciation, with both deductions flowing through to the petitioner.  The IRS denied the deductions and the court agreed.  The court determined that the substance of the transaction was a conditional sale primarily based on the fact that the lessee had the option at the end of the lease term to buy the scanner at a nominal (below market) price.  The petitioner also formed, with two others, a limited liability company (LLC) that was taxed as a partnership.  The LLC managed the scanner.  The LLC, for the tax year at issue, had a large loss which petitioner claimed on his own return.  IRS denied the denied the deductible loss due to lack of basis in the LLC.  The petitioner claimed he had sufficient basis in the LLC via the scanner "lease".  The court disagreed, holding that the lease was not a partnership liability because the "lease" transaction was a conditional sale that was not transferred to the LLC.  The scanner transaction was specifically non-transferable and non-assignable.  Coastal Heart Medical Group, Inc., et al. v. Comr., T.C. Memo. 2015-84.

 


In a family dispute arising from a partition action, the plaintiffs sued some of their family members for trespass.  The court determined that the defendants had an easement by implication to the septic tank and that the plaintiffs had acquiesced in such usage.  The trial court also determined that the defendants had a prescriptive easement over the septic tank.  The appellate court affirmed, noting that the hostility and claim of right requirements are not applicable in situations such as this where the party claiming the easement has expended considerable sums of money or has put in a substantial amount of labor in reliance on the other party's consent.  Here, the septic system had been in place for over 50 years without complaint.  Woodroffe v. Woodroffe, 864 N.W.2d 553 (Iowa Ct. App. 2015).   


The plaintiff had been the decedent’s long-term farm tenant on land the decedent solely owned and on another tract that the decedent owned with the decedent’s sister as tenants in common.  In 2007, the plaintiff and the decedent entered into buyout agreement under which the plaintiff would buy both tracts upon the decedent’s death with proceeds from an insurance policy that the plaintiff obtained on the decedent’s life.  The plaintiff and the decedent were unrelated.  The agreement was signed by the plaintiff, the decedent and the decedent’s sister by the decedent under a power of attorney (which all parties agreed the decedent had no such authority).  The decedent died in 2012 after the plaintiff had paid $170,000 in insurance premiums.  The policy proceeds of $500,000 were paid to the plaintiff and he tendered that amount the decedent’s personal representative.  The personal representative refused to convey the farmland to the plaintiff on the grounds that the buyout agreement was void because the plaintiff lacked an insurable interest in the decedent’s life.  The trial court held that the buyout agreement could not be specifically performed because there was no way to apportion the purchase price between the decedent’s interest and his sister’s interest, and that the plaintiff’s damage claim was time barred.  The court ruled that the estate had no standing to raise the defense of lack of insurable interest.   On appeal, the court declared the buyout agreement void on public policy grounds for lack of an insurable interest.  The court also agreed that the damage claim was time-barred.  Johnson v. Nelson, 290 Neb. 703 (2015).


The decedent died, survived by her three children and a grandchild.  Her daughter was appointed by the will as the estate’s personal representative.  Under the will, the residuary of the estate passed to her children.  The residuary estate included a quarter section of farmland and a farmstead.  At the time of death, the land was leased to a son under a one-year lease.  After death, the daughter entered into a lease contract with an option to buy with the tenant-son.  The lease provided for an annual rent payment of $9,350 and an option to buy the farmland at its appraised value of $248,222.  The other son claimed ownership of land under a contract for deed with the decedent.  The trial court dismissed the son’s action for specific performance, and the land was ultimately sold to the tenant-son for market value.  The daughter moved to dismiss her brother’s appeal on the basis that it was moot.  On appeal, the court determined that the daughter had the authority to lease and subsequently sell the farmland to the tenant-son if she was acting reasonably of the benefit of interested persons.  On that issue, the court held that the trial court had not provided supporting evidence to back its determination that the daughter was acting reasonably.  Thus, the court reversed and remanded the case for further proceedings as to whether the daughter was acting reasonably for the benefit of interested persons.  In re Estate of Johnson, No. 20140173, 2015 N.D. LEXIS 109 (N.D. Sup. Ct. May 1, 2015).   


In this case, a veterinarian noticed that the plaintiff's horse and dogs were not being cared for properly and were living in deplorable conditions.  The veterinarian notified the state police who searched the plaintiff's premises and took a horse and three dogs with the assistance of the local Society for the Prevention of Cruelty to Animals (SPCA).  The veterinarian fostered one of the dogs, which later died, and also adopted the horse.  Other parties adopted the remaining dogs.  The plaintiff brought a replevin action and some of the defendants asserted counterclaims based on Lien Law Sec. 183.  The city court granted the plaintiff's motion for replevin and dismissed the counterclaims.  On appeal, the court reversed finding triable issues.  On further appeal, the court held that the plaintiff had established the inapplicability of the lien law because there was no agreement for services rendered before the animals were seized.  On the plaintiff's claim that the SPCA was required to bring a forfeiture action to obtain possession of the animals, the court disagreed.  The animals were seized pursuant to a search warrant due to improper care and plaintiff then had five days to redeem before SPCA could make them available for adoption.  The court held that the plaintiff failed to redeem the animals or establish that she had not abandoned them, and had not established that she was entitled to possession of the animals.  Gonzalez v. Royalton Equine Veterinary Services, P.C., et al., No. 266 CA 14-01289, 2015 N.Y. App. Div. LEXIS 3600 (N.Y. Sup. Ct. May 1, 2015).


The Texas Court of Appeals held that the enactment and implementation of the Edwards Aquifer Act substantially advanced a legitimate governmental interest and did not deprive the defendants of all economically viable use of their property.  However, the Act did unreasonably impede the defendant's use of the farm as a pecan orchard because the irrigation permit approved withdrawal of water for irrigation at less than a sufficient amount which constituted a regulatory taking, and outright denial of second permit on separate tract also constituted a regulatory taking.  The trial court had awarded compensation on the tract where the permit was denied (tract 1) in the amount of $134,918.40 based on the difference in value of a dry land farm in the county and a comparable irrigated farm.  The compensation for a regulatory taking on the tract where a permit was authorized for water withdrawals in an insufficient quantity (tract 2) was determined to be $597,575 based on the market value per acre-foot of water denied.   On appeal, the appellate court affirmed the trial court finding that implementation of the Act resulted in a regulatory taking, but reversed the trial court on the computation of compensation owed the defendants.  The appellate court determined that compensation on tract 1 was to be computed as the difference between the value of the land as a commercial-grade pecan orchard with unlimited access to the Edwards Aquifer water immediately before implementation of the Act and the value of the land as a commercial-grade pecan orchard without access to Edwards Aquifer water immediately after implementation of the Act.   Compensation for tract 2 was to be determined as the difference between the value of the land as a commercial-grade pecan orchard with unlimited access to Edwards Aquifer water immediately before implementation of the Act and the value of the land as a commercial-grade pecan orchard with access to Edwards Aquifer water limited to 120.2 acre-feet of water immediately after the Act was implemented.  The Texas Supreme Court declined to review the case.  The Edwards Aquifer Authority v. Bragg, 421 S.W.3d 118 (Tex. Ct. App. 2013), pet. for rev. den., No. 13-023, 2015 Tex. LEXIS 400 (Tex. Sup. Ct. May 1, 2015).


The decedent, shortly before death, executed a will that revoked his prior will.  The last will completely changed  the disposition of the decedent’s estate by leaving the decedent’s farm to his daughter in contrast the prior wills that had benefitted the decedent’s son that had worked on the farm for his entire life.  The daughter offered the last will for probate.  The probate court determined that, based on the evidence, the daughter had unduly influenced the will and had not offered it for probate in good faith.  On appeal, the court affirmed.  The court found it persuasive that the last will deviated from the disposition pattern of prior will that had benefitted the son, that testimony showed that the decedent’s state of mind and physical and mental condition was poor and that the circumstances surrounding the drafting and execution of the will compelled a conclusion of undue influence.  As a result the, the trial court’s determination was upheld.  In re Estate of Hanson, No. 11-13-00113-CV, 2015 Tex. App. LEXIS 4400 (Tex. Ct. App. Apr. 30, 2015).


Effective August 28, 2011, Mo. Rev. Stat. Ch. 537.296 replaced the common law of private nuisance to bar recovery for non-economic damages caused by an alleged ag nuisance.  A contract hog production operation was sued on a nuisance theory for odors and other "hazardous emissions" that allegedly substantially impaired the plaintiffs' use and enjoyment of their property.  The plaintiffs made no claims that the odors, etc., caused any reduction in the value of their properties.  Instead, the plaintiffs challenged the constitutionality of the law.  The court rejected the multiple constitutional claims because the law was tied to the legitimate state interest of promoting the agricultural economy and protecting it from frivolous lawsuits.  Labrayere, et al. v. Bohr Farms, et al., 458 S.W.2d 319 (Mo. 2015). 


This case involves the defendant's cow that escaped from its pen and was hit by a cattle truck on a state highway in western Kansas.  The case was initially filed in Federal District Court in Colorado, but that court (Sage v. Bird City Dairy, LLC, No. 12-cv-02985-RBJ, 2013 U.S. Dist. LEXIS 51056 (D. Colo. Apr. 8, 2013)) determined that Colorado lacked personal jurisdiction over the defendant due to lack of contact with Colorado.  However, the court transferred the case to Kansas rather than dismissing it because the statute of limitations would have run if the plaintiff had to refile, and the plaintiff's claims were colorable, and there was an absence of bad faith in choosing to file suit in Colorado.  The Kansas court denied the defendant's motion for summary judgment because the plaintiff raised genuine issues of material fact as to how the cow escaped based on circumstantial evidence and that the evidence supported an inference that workers on the defendant's premises that day were the defendant's agents.  While the cows in the enclosure had never been seen on the roadway before, there was evidence that they had escaped the enclosure in the past.  In addition, there was evidence to support a finding that a third party's employees that hauled manure from the defendant's premises, and were the last parties to enter and exit the cows' enclosure, were the defendant's agents insomuch as the defendant's operating manager directed and supervised them.  Sage v. Bird City Dairy, LLC, No. 13-4039-KHV, 2015 U.S. Dist. LEXIS 55785 (D. Kan. Apr. 29, 2015).     


The petitioners are a married couple.  The husband was the sole beneficiary of his father's IRA.  He elected a lump sum option upon his father's death, and issued checks to both of his siblings totaling $37,000 based on what he thought his father wanted.  The payment was made out of the distribution that the husband had received in the previous months.  The petitioners filed a return for the year at issue but did not report the IRA distributions in income.  The IRS issued a deficiency notice for over $27,000 plus a penalty in excess of $5,000.  The court upheld the IRS position.  Morris v. Comr., T.C. Memo. 2015-82. 

                       


The petitioner had amounts garnished from his paycheck in order to satisfy a separation agreement with his ex-wife to pay child support that he had defaulted on to the extent of approximately $64,000.  In the Colorado proceeding utilizing Colorado law, the payments were not terminated upon death of either the payor or the payee.  The ex-wife sued in a Texas court to enforce the separation agreement where the court ordered garnishment.  Accordingly, the petitioner paid in excess of $50,000 in spousal support and child support, and claimed about a $39,000 alimony deduction.  The ex-wife also claimed about $13,000 in alimony income.  The court disallowed the deduction for failure to satisfy the conditions for deductible alimony contained in I.R.C. Sec. 71(b)(1), one of which is that the payments terminate upon death of the ex-wife.  Under CO law, spousal support payments that are in arrears are treated as money judgments, and are not affected by the payor or payee's death.  Iglicki v. Comr., T.C. Memo. 2015-80.


The petitioner was a CEO of a computer company with no knowledge or expertise in oil and gas.  In the 1970s, the petitioner acquired working interests in several oil and gas ventures of about 2-3 percent each.  The ventures were not part of any business organization, but were established by a purchase and operating agreement with the actual operator of the interests.  The operator managed the interests and allocated to the petitioner the income and expense from the petitioner's interests.  The petitioner had no right to be involved in the daily management or operation of the ventures.  Under the agreement, the parties elected to be excluded from sub-chapter K.  For the year at issue, the petitioner's interests generated almost $11,000 of revenue and $4,000 of expenses.  The operator classified the revenues as non-employee compensation and issued the petitioner a Form 1099-Misc.  No Schedule K-1 was issued and no Form 1065 was filed.  The petitioner reported the net income as "other income" on line 21 of Form 1040 where it was not subject to self-employment tax.  The petitioner believed that his working interests were investments and that he was no involved in the investment activity to an extent that the income from the activity constituted a trade or business income.  The IRS claimed that the income was partnership income that was subject to self-employment tax.  The court agreed with the IRS because a joint venture had been created with the working interest owners (of which the petitioner was one) and the operator.  Thus, the petitioner's income was partnership income under the broad definition of a partnership in I.R.C. Sec. 7701(a)(2).  The trade or business was conducted, the court determined, by agents of the petitioner, and simply electing out of sub-chapter K did not change the nature of the entity from a partnership.  Also, the fact that IRS had conceded the issue in prior years did not bar IRS from changing its mind and prevailing on the issue for the year at issue.  Methvin v. Comr., T.C. Memo. 2015-81.


In 2014, the Vermont legislature passed a genetically modified organism (GMO) labeling law.  It was signed into law with an effective date of July 1, 2016.  Under the law, retailers can only sell food with an appropriate label if the food (whether raw or processed) has had its genetic material altered.  The labeling requirement is placed on manufacturers of packaged foods and on retailers for food that is not separately packaged.  With respect to bulk food, the label must conspicuously appear on the shelf or bin where the raw food is sold.  Manufacturers are also barred from labeling GMO food as “natural.”  The law’s purported purpose is to provide consumer information and prevent consumer confusion and deception.  Various food manufacturers and their lobby groups sued, seeking to have the law declared unconstitutional under the First Amendment and as unduly burdening interstate commerce.  They also claimed that federal labeling laws preempted the provision. The plaintiffs also claimed that it is virtually impossible to manufacture many foods with non-GE sources, and that the availability of non-GE products did not meet demand. As such, the plaintiffs claimed that they will be forced to relabel the “vast majority” of their products at significant expense.  As a result, the plaintiffs claimed that smaller manufacturers would not be able to bear the additional costs, would go out of business, and market competition in Vermont would suffer.

The defendants motioned to dismiss the case, and the plaintiffs asked the court for a preliminary injunction, specifically asking the court to enjoin enforcement of the law.  The court granted in part and denied in part the defendants’ motion to dismiss. The court dismissed the plaintiffs’ claims asserting a violation of the dormant commerce clause. The court ruled that the plaintiffs had failed to assert a plausible claim that the law clearly discriminates against interstate commerce. The burden imposed on interstate commerce, the court found, was no different than the burden placed on intrastate commerce. The court also dismissed several of the plaintiffs’ preemption claims, but allowed several others, namely those alleging preemption by Federal Meat Inspection Act and the Poultry Products Inspection Act, to continue. The court also allowed the First Amendment claims to continue, although the court seemed inclined to dismiss the claim that challenged the law’s disclosure requirements.  Specifically, the court stated that the law bore a reasonable relationship to the harm it sought to prevent - the deception of customers. The question to be resolved later will be whether a “substantial governmental” interest is required to be established. The court also found that the plaintiffs had stated a plausible claim that the “natural” restriction violated their members’ First Amendment rights.

The court also rejected the plaintiffs’ request for a preliminary injunction, finding that they had not shown persuasive evidence that their members would prevail on the merits and that they would suffer irreparable harm absent enjoinment of the enforcement of the law.  Grocery Manufacturers Assoc. v. Sorrell, No. 5:14-cv-117, 2015 U.S. Dist. LEXIS 56147 (D. Vt. Apr. 27, 2015).

 


The plaintiffs were lesbians that were married under Massachusetts law.  They later moved to Florida, a state that, based on the health, safety and welfare of its citizens, enacted a statutory provision barring homosexuals from marrying each other.  Florida also does not recognize as valid homosexual marriages entered into in any other state or other jurisdiction.  One of the couple sought a divorce and the trial court refused to grant it because Florida did not recognize homosexual marriage.  On appeal, the court reversed.  The court specifically noted that granting the divorce would further Florida’s public policy to “prevent, eliminate, discourage or otherwise preclude” homosexual marriage in Florida by reducing the number of such marriages in Florida.  Refusing to grant the divorce, the court noted, would not further Florida’s legitimate public policy of not recognizing homosexual marriage.  Brandon-Thomas v. Brandon-Thomas, No. 2D14-761, 2015 Fla. App. LEXIS 6051 (Fla. Ct. App. Apr. 24, 2015).


In an earlier action, the First Circuit upheld the Tax Court's partial summary judgment for the IRS which was then affirmed on reconsideration that the taxpayer's  contribution of a facade easement did not comply with the enforceability-in-perpetuity requirements of Treas. Reg. Sec. 1.170A-14(g)(6).  The cash payments to the charity that accepted the facade easement remained conditional at end of 2003 and, thus, were not deductible.  However, cash payments made in 2004 were deductible.  The facade easement was not protected in perpetuity because the donee organization was not guaranteed a proportionate share of the proceeds in the event of casualty or condemnation as required by Treas. Reg. Sec. 1.170A-14(g)(6)(ii).  An accuracy-related penalty was applicable for the deduction of cash payments in 2003.  On appeal, the appellate court vacated the lower court's opinion on the basis that the interpretation of the regulation at issue by the IRS and the Tax Court was unreasonable and inconsistent with Congressional intent.  While the lender retained priority to the insurance proceeds, the petitioner had no power to make the lender give up such protections.  The tax liens could potentially trump the donee's right to the funds upon extinguishment of the easement and, thus, the regulation's reference to "entitled" cannot be reasonable construed to give the donor an absolute right to any proceeds.  The court's opinion, thus called into question Tax Court opinions in Wall v. Comr., T.C. Memo. 2012-169 and 1982 East, LLC v. Comr., T.C. Memo. 2011-84).  On further review, the First Circuit held that the Tax Court correctly upheld the IRS imposition of a substantial valuation misstatement penalty for an underpayment of tax as a result of the donated easement.  The easement had no value because the façade was already subject to similar restrictions by reason of being in an historic district.  Kaufman v. Comr., No. 14-1863, 2015 U.S. App. LEXIS 6830 (1st Cir. Apr. 24, 2015), aff'g., T.C. Memo. 2014-52.


The plaintiffs, an assortment of environmental activist groups, petitioned the Environmental Protection Agency (EPA) to "use its power" to control nitrogen and phosphorous pollution" in the Mississippi River Basis and the Northern Gulf Of Mexico.  The EPA chose not to do so, noting that federal rulemaking was not the most effective or practical means of addressing such concerns and that the EPA's policy (consistent with the Clean Water Act (CWA)) was to allow the states to develop and adopt their own standards.  The plaintiffs sued, claiming that the EPA had violated the Administrative Procedure Act and the CWA by declining to make a "necessity determination."  The EPA moved to dismiss the case on the basis that the agency had the discretion to decline to make a necessity determination that wasn't reviewable by the court.  The trial court ruled that it had jurisdiction to review the EPA's decision and ordered the EPA to make a necessity determination.  On further review, the appellate court vacated the trial court's decision.  The appellate court determined that the courts have jurisdiction to review a denial of a rulemaking petition.  The court also determined that the EPA had discretion to decide not to make a necessity determination due to the broad language in 33 U.S.C. Sec. 1313(c)(4)(B).  The court remanded the case to the trial court to decide in the first instance whether the EPA's explanation for why it declined to make a necessity determination was legally sufficient.  The court also informed the trial court that in doing so the court was to give great deference to the EPA and use a rational basis review standard.  Gulf Restoration Network, et al. v. McCarthy, No. 13-31214, 2015 U.S. App. LEXIS 5602 (5th Cir. Apr. 7, 2015).


The defendant, a crop farmer owned land adjacent to the plaintiff's 5.5 acre parcel that contained brush, scrub trees and overgrown volunteer trees.  The defendant hired a contractor to clean the fence line because the plaintiff's trees and brush were shading his crops.  The defendant incorrectly assumed that a creek bed on the neighbor's side of the fence served as the border between the properties, but the actual border was the crop line.  The contractor removed trees from the creek bed and the plaintiff sued claiming over $30,000 in damages for the removal of 50 small trees and six mature trees.  The trial court awarded the damages based on replacement cost of the trees and the defendant appealed.  On appeal, the court noted the theories of recovery for tree loss:  (1) for trees serving a special purpose, the damages are the difference between the value of the real estate before and after the destruction of the trees; (2) for trees not serving any special purpose, the damages are the commercial market value of the trees as lumber or other wood products; and (3) for trees that can be replaced (or when they have special value to the owner), the replacement cost of the trees.  In addition, the court noted that Iowa Code Sec. 658.4 allows for treble damages for the willful injury to trees or shrubs.  The appellate court used the replacement cost approach for the small trees because the plaintiff's were tree lovers, but did not award damages for the mature trees because the evidence did not show that they needed to be replaced.  Treble damages were not allowed because the defendant made an honest mistake about the property boundary.  Survey costs were also disallowed along with attorney's fees.  Lackman v. Muff, No. 14-1150, 2015 Iowa App. LEXIS 373 (Iowa Ct. App. Apr. 22, 2015).


The defendant operated a dairy farm and had invited a local kindergarten class to the dairy for a field day every year for over the past 20 years.  On the field trip at issue, a mother of one of the students, acting as a chaperone, fell through a floor in a barn and injured herself.  The mother sued the defendant and the defendant asserted the state (IA) recreational use statute as a defense.  The court of appeals agreed, but the Iowa Supreme Court reversed and remanded the case to the trial court (827 N.W.2d 128 (Iowa 2013).  The Iowa legislature quickly vacated the Iowa Supreme Court opinion (unanimously in both the House and the Senate) by amending the statute to specifically include educational activities and related chaperoning activities as covered activities.  On remand, the trial court jury found in favor of the defendant.  On appeal, the Iowa Court of Appeals affirmed based on the evidence.  Sallee v. Stewart, No. 14-0734, 2015 Iowa App. LEXIS 361 (Iowa Ct. App. Apr. 22, 2015).


The petitioner managed construction projects and claimed employee business travel-related deductions.  He kept a calendar that detailed the trips and also recorded his business miles.  The IRS disallowed the deductions, but the court allowed the deductions because the calendar contained weekly mileage and detailed where petitioner was working and the dates he worked at various locations on a contemporaneous basis.  The court noted that the petitioner also recorded the beginning and ending mileage.  The court views the petitioner's testimony as credible and his records as adequate.  Ressen v. Comr., T.C. Sum. Op. 2015-32


The petitioner was a doctor that was recruited to work for a hospital in a rural area and was offered a $260,000 loan to work for the hospital with the loan forgiven upon the satisfaction of certain goals.  The goals were met and the loan was forgiven over a four-year timespan.  The petitioner didn't report any income from the forgiveness and the IRS asserted a tax deficiency.  The court agreed with the IRS.  The petitioner argued that because the loan was non-recourse that he wasn't personally liable for repayment and, thus, didn't have income upon forgiveness.  The court noted that the loan terms made him liable and also rejected the petitioner's argument that the nature of the loan meant that he couldn't have cancelled debt income.  While the hospital issued the petitioner a Form 1099-Misc. rather than a Form 1099-C, the court held that was merely a bookkeeping error that had no bearing on the tax effect of the forgiveness.  Wyatt v. Comr., T.C. Sum. Op. 2015-31.


The petitioner retired from the L.A. police force, but didn't report as gross income payment that he received on retirement for cashing out his unused vacation and sick leave time.  He claimed that at least some of the portions of the payments accrued when the petitioner was on temporary disability leave.  Under state law (CA), a temporarily disabled cop gets temporary disability equal to the employee's base pay.  Thus, the petitioner argued, some of the leave payments were excludible under I.R.C. Sec. 104(a)(1) as amounts received under a workmen's compensation act as compensation for personal injury or sickness.  The court disagreed.  None of the payments were excludible from income.  Speer v. Comr., T.C. Memo. 144 T.C. No. 14 (2015).


The petitioners, a married couple, owned an S corporation that held real estate and a medical C corporation.  The husband worked full-time for the C corporation and materially participated in its business activity.  The couple did not, however, materially participate in the S corporation and they were not engaged in a real estate trade or business.  For the years at issue, the S corporation lease commercial real estate to the C corporation.  The S corporation had rental income of about $50,000 in each of the two years at issue, which the petitioners reported as passive income, not subject to self-employment tax.  They also offset the rental income with passive losses from other S flow-through entities they owned as well as losses from other rental properties that they owned.  The IRS viewed the rental income as non-passive under Treas. Reg. Sec. 1.469-2(f)(6) (the "self-rental" rule) and disallowed passive losses that exceeded adjusted passive income for the years at issue.  The petitioners, however, argued that I.R.C. Sec. 469 did not apply to S corporations and was invalid.  The court disagreed even though I.R.C. Sec. 469, on its face, does not say that it applies to S corporations because it need not identify S corporation due to the S corporation shareholders are the taxpayers to whom I.R.C. Sec. 469 actually applies.  In addition, the court ruled that Treas. Reg. Sec. 1.469-4(a) validly interpreted "activity" as used in I.R.C. Sec. 469.  Thus, the rental activity was subject to I.R.C. Sec. 469.  The court also held that the self-rental rule applied and rejected the petitioners' argument that the self-rental rule didn't apply because the S corporation, as lessor, didn't participate in the C corporation's trade or business.  As such, the rental income was properly recharacterized as non-passive and couldn't be used with passive losses.  Williams v. Comr., T.C. Memo. 2015-76.      


The petitioners, a married couple, owned several rental properties approximately 26 miles from where they lived.  The wife managed the properties, which produced an approximate $70,000 loss for the year at issue.  The IRS claimed that the loss was passive and, thus, could not offset the petitioners' active income from other sources.  The wife claimed that she qualified as a real estate professional.  The IRS did not challenge that she put more than half of her time in the activity, but claimed that she didn't commit at least 750 hours to the rental activity.  The wife's log did not initially include commuting time to and from the rental properties (approximately 42-55 minutes each way), but a revised log did.  The revised log resulted in the wife putting in more than 750 hours into the activity.  The IRS challenged the revised log, but the court upheld its legitimacy due to the wife's testimony and the detailed nature of the log.  The revised log was within the guidelines of Treas. Reg. Sec. 1.469-5T(f)(4) and the loss from the activity was fully deductible.  O'Neill v. Comr., T.C. Sum. Op. 2015-27.


The petitioner started a photography business by creating a business plan and obtaining a sales tax permit.  However, the business did not show a profit for more than 10 years.  Thus, the state (IA) Department of Revenue (IDOR) could not grant the petitioner the presumption in accordance with I.R.C. Sec. 183 that the activity was engaged in with a profit intent.  Thus, in accordance with the nine-factor test set forth in Treas. Reg. Sec. 1.183-2(b), the activity would be evaluated.  The IDOR determined that none of the factors favored the petitioner other than the fact that the petitioner had expertise in photography.  Thus, deductions associated with the activity were disallowed.  In re Groesbeck, Doc. Ref. No. 15201018 (IA Dept. of Rev. Apr. 8, 2015).


The plaintiff was the driver of a tractor-trailer hauling large round hay bales to various farms.  After delivering a load at one farm, the plaintiff attempted to deliver the remainder of the load at another farm.  While entering the driveway entrance to the farm, the right rear wheels of the trailer missed the driveway and slipped into a four-foot deep drainage ditch.  As a result, the entire tractor-trailer tipped over causing the plaintiff's injuries.  The plaintiff sued the landowner and a tenant for his injuries and damages.  The court, based on the evidence granted summary judgment for the defendants determining that the plaintiff's careless driving was the sole cause of the accident.  The court based it's conclusion on eyewitness testimony and photographs of the accident scene along with an accident reconstruction expert.  It was determined that the driver simply turned the corner to the entrance too tight, and there were no intervening causes that contributed to the accident.  Cox v. McCormick Farms, et al., No. 44722, 2015 N.Y. Misc. LEXIS 1171 (N.Y. Sup. Ct. Apr. 14, 2015).


The defendant, an egg producing company, was linked to an egg salmonella outbreak in 2010 that caused illnesses to almost 2,000 people.  The defendant was ordered to pay a $6.8 million fine as part of a plea agreement  Two of the defendant's executives were also fined $100,000 each and ordered to pay $83,000 in restitution.  The court, on the sentencing phase of the case, sentenced the executives to three months of prison time each plus a year of supervised release.  The executives claimed that they had no knowledge of the unclean conditions at the defendant's facility and were not directly involved.  The court pointed out that the defendant's workers knowingly shipped eggs with false processing and expiration dates, and bribed USDA regulators to secure approval of sales of poor quality eggs.  The executives are free pending appeal of the sentence.  United States v. Quality Egg, LLC, et al., No. C 14-3024-MWB, 2015 U.S. Dist. LEXIS 50660 (N.D. Iowa Apr. 14, 2015).


The plaintiff, a peat moss mining company, sought the approval of the Corps of Engineer (COE) to harvest a swamp (wetland) for peat moss to use in landscaping projects.  The COE issued a jurisdictional determination that the swamp was a wetland subject to the permit requirements of the Clean Water Act (CWA).  The plaintiff sought to challenge the COE determination, but the trial court, in a highly disingenuous opinion in light of the unanimous U.S. Supreme Court opinion in Sackett v. Environmental Protection Agency, 132 S. Ct. 1367 (2012), ruled for the COE, holding that the plaintiff had three options:  (1) abandon the project; (2) seek a federal permit costing over $270,000; or (3) proceed with the project and risk fines of up to $75,000 daily and/or criminal sanctions including imprisonment.  On appeal, the court unanimously reversed, strongly criticizing the trial court's opinion.  Based on Sackett, the court held that COE Jurisdictional Determinations constitute final agency actions that are immediately appealable in court.  The court noted that to hold elsewise would allow the COE to effectively kill the project without any determination of whether it's position as to jurisdiction over the wetland at issue was correct in light of Rapanos v. United States, 547 U.S. 715 (U.S. 2006).  The court noted that the COE had deliberately left vague the "definitions used to make jurisdictional determinations" so as to expand its regulatory reach.  While the COE claimed that the jurisdictional determination was merely advisory and that the plaintiff had adequate ways to contest the determination, the court determined that such alternatives were cost prohibitive and futile.  The court stated that the COE's assertion that the jurisdictional determination (and the trial court's opinion) was merely advisory ignored reality and had a powerful coercive effect.  The court held that the Fifth Circuit, which reached the opposition conclusion with respect to a COE Jurisdictional Determination in Belle Co., LLC v. United States Army Corps. of Engineers, 761 F.3d 383 (5th cir. 2014), cert. den., 83 U.S.L.W. 3291 (U.S. Mar. 23, 2015), misapplied the Supreme Court's decision in SackettHawkes Co., Inc., et al. v. United States Army Corps of Engineers, No. 13-3067, 2015 U.S. App. LEXIS 5810 (8th Cir. Apr. 10, 2015), rev'g., 963 F. Supp. 2d 868 (D. Minn. 2013).


The petitioner donated property (primarily clothing and household items) to various charitable organizations.  He attempted to keep many of the property gifts individually less than $250 on the belief that he didn't need a contemporaneous written acknowledgement from the charity.  For the contributions exceeding $500, the petitioner did not maintain written records and did not get an appraisal for gifts exceeding $5,000.  The IRS denied all of the claimed charitable deduction of $37,000 due to lack of substantiation and the court agreed.  The court, while not doubting that the gifts were made, held that the record was lacking to support the petitioners' statements and the petitioner maintained no written records and failed to have appraisals for the property gifts exceeding $5,000.  The petitioner didn't even maintain receipts for the under $250 gifts and had no evidence that the clothing gifted was "in good used condition or better."  The court upheld an accuracy-related penalty of 20 percent of the underpayment.  Kunkel v. Comr., T.C. Memo. 2015-71.


The petitioners, a married couple, established an irrevocable family trust and transferred property worth $3.262 million to the trust.  The trust named 60 beneficiaries, primarily family members.  The trust language required the trustees to notify all beneficiaries of their right to demand withdrawal of trust funds within 30 days o receiving notice and directed the trustee to make distributions upon receipt of a timely exercised demand notice.  In addition, the trust allowed the trustee to make distributions for the health, education, maintenance or general support of any beneficiary or family member.  The trust also specified that a beneficiary would forfeit trust rights upon opposing distribution decisions of the trustees.  On separate gift tax returns for 2007 the petitioners each claimed annual gift tax exclusion of $12,000 (the maximums per done for 2007) for each of the 60 beneficiaries - $720,000 per spouse.  The IRS denied the exclusions on the basis that the gifts were not present interests because the trustees might refuse to honor a withdrawal demand and have the demand submitted to an arbitration panel (as established in the trust), and the beneficiaries would not seek to enforce their rights in court due to the trust language causing forfeiture if they challenged trustee decisions.  As such, the IRS held that the withdrawal rights of the beneficiaries was illusory and the gifts were not of present interests.  The Court disagreed with the IRS noting that merely seeking arbitration when a trustee breached fiduciary duties by refusing a demand notice did not make the gifts of future interests.  The court also held that the trust forfeiture language only applied to discretionary distributions and did not apply to mandatory withdrawal distributions.  Mikel v. Comr., T.C. Memo. 2015-64.


The debtors, a married couple, filed Chapter 12 bankruptcy on August 7, 2010 and submitted their reorganization plan on February 8, 2011.  The plan was approved with some modifications on March 18, 2011.  The confirmed plan contained a provision treating federal and state tax obligations attributable to the sale of farm assets occurring post-petition in 2010 and 2011 to be "classified, treated and discharged" as unsecured claims in accordance with 11 U.S.C. Sec. 1222(a)(2)(A) with the liability computed under the "marginal" method.  The debtors received a tax refund for the 2010 tax year, and asserted a refund of almost $6,000 for the 2011 tax year attributable to the sale of farm property.  The IRS claimed that the debtors owed over $66,000 of tax.  For the 2012 tax year, the IRS did not issue a $5,706 refund, but rather applied it to the tax liability that IRS was asserting for the 2011 tax year.  In May of 2013, the IRS demanded that the debtors pay the outstanding tax liability (including interest) of over $67,000.  The debtors did not pay the tax claim, but then filed a 2013 return claiming a refund of almost $7,000.  The IRS applied the amount of the refund to the outstanding tax liability and demanded payment in full of the outstanding tax liability of $65,431.85.  The debtors sought to have the IRS held in contempt for violation of the debtors' reorganization plan on the basis that 11 U.S.C. Sec. 1222(a)(2)(A) made the IRS claim an unsecured claim not entitled to priority and subject to discharge.  The court, after determining that it had jurisdiction, determined that the reorganization plan could not bind the IRS as to the post-petition tax claims.  While the law in the Eighth Circuit at the time the tax was incurred was that taxes attributable to the sale of farm assets (and IRS did not challenge that the taxes at issue were attributable to farm assets) were unsecured, non-priority claims subject to discharge, the court held that a U.S. Supreme Court opinion decided in May of 2012 had abrogated the Eighth Circuit opinion.  While the Eighth Circuit opinion was still applicable law at the time of plan confirmation and when the taxes at issue were incurred, the Court held that the U.S. Supreme Court opinion controlled. The court reached this conclusion by reasoning that the U.S. Supreme Court merely clarified what 11 U.S.C. Sec. 1222(a)(2)(A) had meant all along and, thus, had retroactive application.  The court said this was the case "regardless of when the Plan was confirmed."  In re Legassick, No. 10-02202, 2015 Bankr. LEXIS 1260 (Bankr. N.D. Iowa Apr. 13, 2015).   


The decedent was diagnosed with terminal cancer on May 19, 2011 and began hospice care on June 3, 2011.  On June 1, the decedent executed a health care power of attorney and a power of attorney for his property.  He executed a will on June 13.  He died on June 24, 2011.  The will’s validity was contested on the bases of undue influence and lack of testamentary capacity.  The jury heard testimony from the decedent’s friends, business associates, the lawyer that drafted the will and others, and returned a verdict that invalidated the will on lack of testamentary capacity grounds.  The attorney testified that he had no concerns about the decedent’s soundness of mind.  The decedent’s friends, however, contradicted the lawyer’s testimony.  The jury found the testimony of the friends more credible.  A judgment notwithstanding the verdict was sought or, in the alternative, a new trial, but the trial court denied the motion.  On appeal, the court affirmed.  In re Estate of Schutzbach, No. 4-14-0600, 2015 Ill. App. Unpub. LEXIS 801 (Ill. Ct. App. Apr. 10, 2015). 


The decedent hired the defendant to draft an amendment to the decedent's revocable living trust.  The amendment named the decedent's wife and children as beneficiaries.  However, after the decedent's death, two of the children as successor trustees petitioned the probate court to modify the trust amendment on the basis that it didn't carry out the decedent's wishes that the wife not be named as a beneficiary to the decedent's brokerage accounts as well as real and personal property.  The defendant admitted that the amendment did not conform to the decedent's wishes.  The trustees settled the probate court action with the decedent's wife, and sought to amend their complaint to add an allegation that the defendant owed the children a duty.  The trial court did not allow the complaint to be amended because the children lacked privity with the defendant as merely trust beneficiaries.  On appeal, the court reversed.  The court held that the defendant did owe a duty to beneficiaries such as the children at issue in the case that are all named beneficiaries in the trust amendment.  The court reasoned that doing so posed not risk that a random unnamed beneficiary would be making a claim against the defendant.  Paul v. Patton, No. H040646, 2015 Cal. App. LEXIS 304 (Cal. Ct. App. Apr. 9, 2015).


Before death, the decedent hired the defendant to draft a revocable trust and will as part of the decedent's estate plan.  Over time, the decedent had the defendant make several amendments to the documents to effectuate the decedent's intent.  One such amendment changed the trust to leave the decedent's residuary estate to his nieces and nephews rather than charity.  This trust amendment, however, was not signed into effect before the decedent's death.  The nieces and nephews sued the defendant for breach of contract with the decedent.  The trial court granted the defendant summary judgment on the basis that the heirs lack standing.  On review, the court reversed  on the basis that the heirs may have standing to pursue a breach of contract malpractice action against the defendant if they can show that they were intended beneficiaries.  The case was remanded.  Agnew v. Ross, No. 2195 EDA 2014, 2015 Pa. Super. LEXIS 33 (Feb 2, 2015), rev. den., Estate of Agnew, 2015 Pa. Super. LEXIS 158 (Pa. Super. Ct. Apr. 7, 2015).


A Nebraska C corporation sold all of its assets.  The sale triggered a substantial gain.  The shareholders sold their shares to a third party upon the third party's agreement to pay the corporation's tax liability triggered by the asset sale.  However, the third party did not pay the tax liability.  The IRS sought to recover the unpaid tax liability from the shareholders.  The court allowed the IRS to recover the tax liability from the shareholders by virtue of transferee liability via the NE Uniform Fraudulent Conveyance Act (UFCA).  The court determined that the transfer was fraud as to the IRS and was for the benefit of the shareholders.  Unmatured tax liabilities constituted "claims" under the NE UFCA and that the shareholders were "transferees" under the NE UFTA.  Stuart, et al. v. Comr., 144 T.C. No. 12 (2015).


The petitioners claimed additional flow-through losses from an LLC that was taxed as a partnership for tax purposes.  To be able to do so, the LLC could not be subject to the procedural rules of the Tax Equity and Fiscal Responsibility Act (TEFRA) of 1982.  The petitioners argued that the LLC was not a partnership subject to TEFRA because it had 10 or fewer partners and, therefore, qualified for the "small partnership exception" of I.R.C. Sec. 6231(a)(1)(B)(i).  The LLC was owned 99.98 percent by two individuals and .02 percent by a partnership.  In addition, the LLC had previously filed a partnership return. The petitioners knew that the LLC could not qualify as a "small partnership" and use the "small partnership exception" because the LLC had a partnership as a partner, so they argued that they qualified for the "small partnership exception" because the partnership member held such a small ownership interest that it should be disregarded.  The court disregarded that argument and denied qualification for the "small partnership exception" on the basis that the LLC had a partner as a member.  The petitioners were not entitled to additional flow-through losses.  The court's opinion also stands for the proposition that simply having 10 or fewer partners does not mean that the entity is not a partnership for tax purposes.  Brumbaugh, et al. v. Comr., T.C. Memo. 2015-65.


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