Jacksonville FL, St. Augustine, Orange Park, Jacksonville Beach, Ponte Vedra Beach
April 26, 2008

Florida Tax Lawyer

There are many times when one needs to discuss a the effects of a settlement or legal decision with a Florida Tax Lawyer, CPA, or Accountant prior to signing documents.

When possible a tax adviser should be involved early on in a case to make sure that efforts are spend on a tax friendly solution. Obtaining advise to consult with your tax adviser after a successful mediation or settlement often leads to unnecessary tax expenses.

If you are in the early states of litigation, be sure and discuss potential outcomes with your tax adviser to understand the effects on your or your business.

April 16, 2008

Tax Attorney Jacksonville

There are many times when one needs to discuss a the effects of a settlement or legal decision with a Florida Tax Attorney, CPA, or Accountant prior to signing documents.

When possible a tax adviser should be involved early on in a case to make sure that efforts are spend on a tax friendly solution. Obtaining advise to consult with your tax adviser after a successful mediation or settlement often leads to unnecessary tax expenses.

If you are in the early states of litigation, be sure and discuss potential outcomes with your tax adviser to understand the effects on your or your business.

April 14, 2008

IRA Deadline - how to put 9K in your IRA by April 15th

Unless you qualify for a higher limit based upon age, April 15th is the last day you can put up to 9K in your IRA. Many might be saying, I thought I could only put $4,000 in my IRA. While that is true, you can put 4,000 in for last year and $5,000 in for the next year.

So if you act today you can actually fund your retirement accounts with $9,000 today. Given that many of us invest for the long term, why wait until the last day you can invest when your investments can start earning today.

April 13, 2008

Blank Legal Documents: Lack of Legal Advise

I have written several articles on problems with using the "free legal documents" or low cost fill in the blank forms that might be available at your local Staples or office supply shop. Richard Shea of the Connecticut Estate Planning and Elder law Blog has another example of problems that can occur with these "free legal documents"
Richard says that when people use these free forms to create business entities they are not informed about local taxes and reporting requirements. One example is the "Business Entity Tax in Connecticut, The Department of Revenue Services is apparently sending out 23,000 letter to notify people of their failure to comply with the requirement.

In Florida, an online service will not inform you if you need to apply for an occupational license, nor how many your business will need for each location. Perhaps a bigger issue, is that these online services do not know you or your circumstances and cannot utilize or inform you of how to take advantage of certain options or techniques to protect you, your family, or your business partners from each others personal liability.

To discuss if you Florida Limited Liability Company or Florida Limited Liability Company was created properly and your are taking advantage of all of the protections you can, please Contact an attorney or Florida Business Formation Lawyer.

April 11, 2008

Can I Deduct my Long Term Car Insurance Premiums?

As we get older long term care insurance premiums can become expensive. To qualify for a deduction on the insurance costs the policy must be a "qualified policy" as defined by the IRS.

A qualified policy is one issued after January 1, 1997 that adheres to certain regulations established by the National Association of Insurance Commissioners. Policies purchased before January 1, 1997 may still be treated as "qualified" if they are approved by the insurance commissioner of the state where it was sold.

If you policy is qualified then premiums are treated as un-remibursed medical expenses for income tax purposes. To qualify for the deduction of the premiums these un-reimburesed medical expenses must exceed 7.5 percent of the adjusted gross income. In determininging whether you meet the threashold you can use the lesser of the premium paid or the value. If on 12/31/2008 you are:


- 40 or under, the maximum portion of your long term care insurance premium considered "health insurance premiums" is $310.
- Between 41 and 50, the maximum portion of your long term care insurance premium considered "health insurance premiums" is $580.
- Between 51 and 60, the maximum portion of your long term care insurance premium considered "health insurance premiums" is $1,150.
- Between 61 and 70, the maximum portion of your long term care insurance premium considered "health insurance premiums" is $3,080.
- Over 70, the maximum portion of your long term care insurance premium considered "health insurance premiums" is $3,850.

April 9, 2008

IRS Business Products for Free

The IRS Small Business Products Catalog has 5 publications and guides that all small businesses should own. You can order up to 5 copies of each for free. They can be viewed online.

1.Tax Calendar for Small Businesses and Self-Employed - View Online
2. A Virtual Small Business Tax Workshop DVD - View Online
3. Small Business Resource Guide CD 2008 - Updates- 2007 View Online
4. Recognizing Illegal Tax Avoidance Schemes Brochure - View Online
5. Small Business Tax Responsibilities - View Online

For more information on these issues please Contact a Florida Business Lawyer or your tax adviser.

April 2, 2008

Marilyn Monroe's Estate Loses Ruling

Florida Estate Planning and LicensingA federal curt found that Marilyn Monroe was a New Yorker when she died in 1962. This means her estate which has earned more than 30 million dollars licensing her image can not control the licensing. Product makers may be free to use her image without paying licensing fees to her estate because of a difference between California and New York state laws.

Marilyn Monroe LLC plans to appeal the ruling. If you license your image, it may be important to look at the laws of your state to determine what rights your estate will have. If you have questions about licensing in your state you should Contact a Florida Estate Planning Lawyer to discuss the effects of your domicile on your future heirs.

March 31, 2008

MagicJack - Product Review - Everyone needs one of these

magicjack.jpgI am just finishing up a trip to Shanghai China, Osaka, and Tokyo. I brought a MagicJack phone adapter.

This gave me a US local number that rang to my computer or what ever computer I plugged it into. The voice qualify was great and it worked flawlessly on both a Mac and PC.

One really nice feature was that I could plug the USB key into any computer and I had a free telephone to use.

It costs $39 for the first year and $19 for each year after that. No long distance charges or monthly charges.

I think anyone who travels should have one of these. If you would like to try it out, Contact me and I would be happy to call you or have you call me on it.

March 30, 2008

Florida Upholds Homestead Against Legal Fees

Chames v. Demavo, 32 Fla. L. Weekly S820 CR. Sup. Ct. December 20, 2007

An attorney owed fees from his clients under a retainer agreement attempted to enforce a lien against the homestead of the clients. The retainer agreement had expressly waived the parties’ constitutional homestead protection against claims of creditors.

Asking the Court to recede from prior Florida precedent in Carter and Sherbill, the appellant argued the 1995 constitutional amendment removing "head of family" changed the purpose of the creditor protection, that the trend in other states was to permit waivers, and permitting the waiver was consistent with other precedent allowing waivers.

The Court rejected the arguments of the waiver and concluded "the waiver of the homestead exemption will become an everyday part of contract language for everything from hiring of counsel to purchasing cellular telephone services ... [which will inevitably result in whittling away this century old constitutional exemption until it becomes little more than a distant memory."

A waiver of your homestead rights in a contract is still not valid in Florida (except with regards to pre and post nuptial agreements).

March 22, 2008

Blogging from China

I am currently in Shanghai China for the next 5 days and then heading to Osaka and Tokyo for 3 nights each. I am planning to keep posting new issues to my blog while I am gone. In addition, I will be responding to emails and will be available over my VOIP number for calls or issues that need immediate attention. Feel free to continue to send in your questions. I wanted to apologize upfront for any additional delay in responses. Please be conscientious that it is 12 hours ahead of EST and this along with being on vacation means I will typically respond to any issues between 8AM - 12 PM EST or 8PM to -12AM my time.

February 27, 2008

IRS Attacks of FLPs and FLLCs

For a number of years the IRS has attacked FLPs and FLLCs on the basis that there is no valid business purpose for the entity.

Clients have argued that a key reason for using the LP form is so that capital can be concentrated or pooled and then invested for greater resulting returns. Credible evidence is cited to support the contention that money invested with a long term investment time-line and with a disciplined investment policy will yield greater returns than money invested in response to demands for quarterly or annual performance.

Many reported cases have problems because senior family members contribute assets to their LPs while keeping their current invested strategy. It is important for clients to know that the courts have repeatedly cited this lack of change in investment strategy as evidence that the creation of the LP was “only a change of title” or resulted in a “mere recycling of value.”

Best practice: After assets are transferred to the LP, it is important to work with the partnership to create an investment policy statement that outlines

• how the LP intends to invest,
• why it intends to invest in a certain way, and
• what results are expected to be achieved.
The LP should then implement the investment policy as soon as possible.

Not all assets need to be sold and reinvested immediately. Stock with built in gains or restrictions will typically have a slower exit in order to avoid or postpone capital gains taxes or to comply with SEC rules.

The more the LP can distinguish its new investment strategy from senior family member’s prior strategy, the better it will be against possible attack.

Some cases where the courts have specifically called the tax payers to task for “merely recycling of value” include:

Estate of Harper v. Commissioner, T.C. Memo 2002-121 (U.S. Tax Court 2002).
Estate of Bigelow 89 T.C. M. 954 (2005).
Estate of Strangi v. Commissioner, 85 T.C. Memo 1331 (2003)
Estate of Concetta H. Rector v. Comm., T.C. Memo 2007-367

February 19, 2008

Family Limited Partnerships and Valuations

A common technique with large Florida Estate Planning is the use of FLP's or Family Limited Partnerships. Neil Hendershot of the PA Elder, Estate & Fiduciary Law Blog summarized the recent highlights of the Heckerling Institute where they discussed those issues in detail.

The most important issues dealt with making sure there was

(1) not a gift on formation of a family limited partnership. This can be done by making sure the partnership is property funded and the capital accounts are credited. The recommendation was that during the next tax year he or she transfer partnership interest. This helps to avoid the argument that the transfer was contemplated at the time of the capital contribution. See Senda, T.C. Memo 2004-160 (July 12, 2004). One must also take this into consideration with additional contributions because they are valued with the amount given instead of a discounted valuation.

(2) Avoiding Bad Facts based on formation and operation. You do not want to have these issues used to devalue the discount on the entity.

• Disproportionate Distributions to senior family members.
• Distributions that cover senior family member's expenses.
• Do not create the partnership by an agent acting under power of attorney.
• Do not use partnership funds to pay estate taxes after death. If this looks like it will be necessary consider using a life insurance policy or a hands length loan from the partnership to fund those expenses if it is necessary.

(3) Senior family member should have no control at death or within 3 years of death to avoid an inclusion look-back period under IRC § 2035. If the senior family member must serve as a general partners remove "sole and absolute" authority language and any overly protective clauses.

(4) FPL's should be created for legitimate non-tax business purposes to avoid inclusion arguments. It is likely that the drafting attorney will provide testimony of the non-tax reasons. It might be advisable to use a separate attorney to draft the agreement who has no knowledge of the discounting opportunities when creating a Family Limited Partnership for Florida Estate Planning

(5) Potential problems arise with using a martial trust for the benefit of a surviving spouse. These interests may not get the same discounted treatment which can cause problems.

(6) Be careful with the 100 Shareholder rule when using S corporations as it is possible to have more than 100 shareholders when you look at all family members who are lineal descendants up to six generations including current and former spouses.

(7) Nonresident aliens or other non-approved shareholders can create problems with S corporations.

(8) S corporations can only have a single class of stock and all must have equal rights. Look out for disproportionate distributions, buy-sell installments, and split-dollar arrangements

The article goes on to discuss other concerns and should be reviewed by anyone looking to create a Family Limited Partnership for Florida Estate Planning

For more information on how a FLP can be an effective tool in Florida Estate Planning Contact a Florida Estate Planning Lawyer

February 12, 2008

New Proposals for FMLA

The Department of Labor has released proposed revisions to the Family and Medical Leave Act regulations. If adopted, the changes would significantly alter the current FMLA procedures. The proposals were prompted by continued tension between employers and employees concerning intermittent leave and the Supreme Court's 2002 Ragsdale v. Wolverine Worldwide Inc. ruling, which invalidated a DOL regulation that penalized employers for failure to comply with the technical employee notice provisions of the FMLA regulations.

Coverage Issues

-Some Professional Employer Organizations (PEO's) Not Considered Joint Employers
-Count Employee Prior Service in Determining Eligibility for Leave
-Employees May Continue to "Grow" Into FMLA Leave
-Location of Work site Determined for Long-Term "Joint Employees"
-Common Ailments May be Serious Health Conditions
-Male Employees Protected When Attending Prenatal Appointments With Spouses
-Chronic Conditions Requiring "Self-Treatment" Remain Covered
-Physician Assistants Qualify as Health Care Providers

Employee Leave Entitlements

-Count Holidays When FMLA is Taken in Full-Week Increments
-Employees Seeking Intermittent Leave Must Make "Reasonable Efforts" Not to Disrupt Unduly the Employer's Operations
-No Change to Minimum Increment of Intermittent Leave Rule
-Inability to Work Overtime Protected by FMLA
-Numerous Aspects of "Substitution Rules" Clarified

-Employers may run paid leave concurrently with unpaid FMLA
-Employers must notify employees of paid leave requirements at time of leave
-Employers and employees may mutually agree to supplement disability benefits through use of paid leave
-Employers need not accept less than the FMLA required certifications even when paid leave is substituted
-Employees may continue to decline offers of light duty

-Public Employers May Substitute Compensatory Time for Unpaid FMLA time
-Employers May Consider Attendance Goals in Determining Bonuses and Other Incentive Rewards
-Employers May be Liable for Actual Monetary Losses and other Equitable Relief For Harm -Caused by Interference with FMLA Rights
-Time Spent Performing Light Duty Does Not Count Towards FMLA Entitlement
-Employees May Voluntarily Agree to Settle Past FMLA Claims Without First Obtaining Approval from the DOL or a Court

Employers and employees now have 60 days, until April 11, 2008, to consider and comment on the proposed changes. For a more detailed analysis of this issue please see this article.

February 5, 2008

Business owners and Florida Estate Planning

If you own a Florida Limited Liability Company or Corporation there are unique Florida Estate Planning challenges. Often Florida Business owners fail to plan properly if they plan at all. Greg Herman-Giddens of the North Carolina Estate Planning Blog has an article where he gives a list of 32 Questions to ask if you own a business.

If you own a Florida Business and are concerned about Florida Estate Planning you should Contact a Florida Estate Planning Lawyer and discuss your circumstances.


February 2, 2008

Florida Asset Protection for Your Business

Besides using multiple entities for asset protection, two common methods include the use of UCC liens or lease backs.

UCC filing is the equivalent of equity stripping. The UCC filing is a lien on your business asset from typically from a finance company. You can form a Florida Limited Liability Company and exercise a note from the company to your other Florida Business Entity. Along with the not a properly recorded UCC security document can be filed with the State of Florida. This will encumber the assets of the entity and protect those assets from an attempt to attach them to a lien. In effect the finance company would be first in line to collect any proceeds from the sale of the assets.

Another method is to create a lease back situation where one company owns the asset and leases the asset to another company. Since the operating company does not own the asset, it is not available to satisfy the debt.

It is important to create these techniques prior to valid claims to avoid a fraudulent transfer. To learn more about these and other asset protection techniques, Contact a Florida Asset Protection Lawyer.

January 30, 2008

New Blog Florida Child Injury Legal Blog

Jacksonville Child Injury LawyerOne of the Lawyers in my office, David Wolf, has followed my lead and started to create a legal blog dealing with Florida Child Injury issues. David's blog is the Florida Child Injury Lawyer Blog. David covers everything from Florida Automobile Accidents, Florida Child Safety, Florida Crimes Against Children, Florida Dog Bites, Florida Homeowner Claims, Florida Home injuries, Florida Playground injuries, Florida wrongful death ....

Often when there are injuries to children I am involved in setting up Florida Guardianships. In Florida when a child receives more than $15,000 in settlement of a claim, most courts will require the creation of a Florida Guardianship.

January 29, 2008

Non Compete Agreements and Bankruptcy

I was recently asked about violations of a Florida non-compete agreement and the effect of a personal bankruptcy filing. I found a case which seems to address this issue on point. The case law is that as long as the debtor does not prove that the contract damages are tortuous and that he debtor caused willful and malicious injury the claims are discharged under the bankruptcy code as any other claim is.

This issue was raised by a company who failed to present evidence in a ex-employee's bankruptcy case that was sufficient to show both that the conduct was tortious and that the acts were both willful and caused a malicious injury to the company.

It would seem to reason that an ex-employer who failed to raise these issues during the bankruptcy would also denied a claim against the ex-employee.

If you are a company who has a cause of action against an ex-employee or an ex-employee who has filed bankruptcy and involved in a suit over a non-compete or Florida non-solicitation issue you should contact a Florida employment Lawyer who deals with Florida Non-Compete law.

January 22, 2008

Florida Firearm Legislation Has Been Filed

Below is some information I on proposed Florida gun legislation.

The following bills have been filed to protect your constitutional and statutory right to have a firearm stored in your vehicle in a parking lot for self-defense and other lawful purposes.

House Bill 503 by Greg Evers (R) (CO-SPONSORS) Mitch Needelman (R)
Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008:
Creates "Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008"; prohibits public or private entity from prohibiting customer, employee, or invitee from possessing any legally owned firearm that is lawfully possessed & locked inside or locked to private motor vehicle in parking lot; prohibits such entities from violating specified privacy rights by verbal or written inquiry or by search to ascertain presence of firearm within motor vehicle; prohibits certain actions by public or private entity against customer, employee, or invitee; prohibits employer from conditioning employment upon agreement by prospective employee that prohibits employees from keeping legal firearm locked inside motor vehicle; prohibits employer from attempting to prevent or prohibiting any customer, employee, or invitee from entering parking lot of employer's place of business when customer's, employee's, or invitee's motor vehicle contains legal firearm; prohibits employers from terminating employment of or otherwise discriminating against employee, or expelling customer or invitee, for exercising specified constitutional rights; provides specified immunity from liability; provides for enforcement of act; provides for award of costs & attorney's fees.

Senate Bill 1130 by Durell Peaden (R) Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008: Creates "Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008"; prohibits public or private entity from prohibiting customer, employee, or invitee from possessing any legally owned firearm that is lawfully possessed & locked inside or locked to private motor vehicle in parking lot; prohibits such entities from violating specified privacy rights by verbal or written inquiry or by search to ascertain presence of firearm within motor vehicle; prohibits certain actions by public or private entity against customer, employee, or invitee; prohibits employer from conditioning employment upon agreement by prospective employee that prohibits employees from keeping legal firearm locked inside motor vehicle; prohibits employer from attempting to prevent or prohibiting any customer, employee, or invitee from entering parking lot of employer's place of business when customer's, employee's, or invitee's motor vehicle contains legal firearm; prohibits employers from terminating employment of or otherwise discriminating against employee, or expelling customer or invitee, for exercising specified constitutional rights; provides specified immunity from liability; provides for enforcement of act; provides for award of costs & attorney's fees.

WHY THESE BILLS ARE NEEDED

These bills will stop business entities from searching private vehicles and violating the constitutional rights of customers and employees.

Your Second Amendment rights are at the very heart of this issue. In addition to prohibiting searches of private vehicles in parking lots, these bills also prevent businesses from asking customers or employees to disclose what personal private property is stored in private vehicles and prevents action against customers and employees who refuse to divulge that private information. Furthermore, it prohibits action against a customer or employee based on information provided by a third party.

Some Florida businesses are trying to ban firearms in cars in parking lots used by customers and employees. They are discriminating against people who exercise their constitutional rights – they are violating the constitutional rights of gun owners and Florida law.

Corporate giants have been trampling constitutional rights. Some are even attempting to coerce and intimidate gun owners into giving up their constitutional rights as a condition of employment.

Your Rights are in Danger!

Carrying firearms in a vehicle for hunting, target shooting or protection of yourself and your family obviously means you can leave that firearm locked in the vehicle in a parking lot when you go grocery shopping, to the doctor's office, to a movie theater, to visit a sick friend in the hospital, to rent a movie, to the shoe store or anywhere else normal people travel to conduct business.

Florida law, the U.S. Constitution, and the Florida Constitution clearly and unequivocally give law- abiding citizens the right to have firearms in their vehicles for lawful purposes.

How can anyone justify telling a woman who is being stalked that she can't have a firearm for protection? In many cases police tell these women to get a gun for protection because police can't be there to protect them -- and calling 911 is nothing more than government sponsored dial-a-prayer.

A business owner or manager has no more right to say you can't have a firearm in your private vehicle than they have a right to say you can't have a pair of sunglasses, an umbrella, a Bible or a baby seat.

Such an anti-gun political exercise is not good business sense. They want your money, but don't respect your rights.

Businesses are not allowed to discriminate against employees and customers because of race, religion, political party, color of eyes, hair or weight. And they certainly can't discriminate because of the exercise of lawful self-defense. And, make no mistake, these gun ban policies are blatant discrimination against people who chose to exercise a constitutional right and take responsibility for their own safety.

To find contact information for your State Senator and State Representative, please click here.