Alden Decision
This case stems from a dispute over the 1973 William C. Alden Trust (the Trust) benefiting grantor’s second wife Nancy Alden, his two children by Nancy Alden, and his three children from his first marriage. Todd Alden and Julia Alden Dee, two of grantor’s children by his first marriage, allege that Nancy Alden, who was [...]
Student Speech after Morse v. Frederick: An “Unwise and Unnecessary” Convolution
By Ronald Schildge, MA, and Michael A. Stahler, Esq.
(Originally published in the Fall 2009 edition of the VBA Journal)
In his affidavit eighteen-year-old Joseph Frederick testified that after Principal Deborah Morse of Juneau-Douglas High School confiscated his banner reading, “BONG HiTS 4 JESUS,” he asked, “What happened to the Bill of Rights? This is our right to do this. It’s a free speech exercise.” She responded, “not here it’s not.” He later asked his assistant principal, “What about the Bill of Rights? Doesn’t that still exist?”
Vermont’s Land Gains Tax, Part 2
By Matthew D. Getty, Esq.
(In the first part of this two-part series, published in the prior issue, the author explained how Vermont’s unique land gains tax works, including the exemptions to the tax (e.g., it only applies to land held less than six years). In this installment, he provides examples and discusses how to prepare for the possible need to pay the tax. Getty is an associate attorney with Kenlan Schwiebert Facey & Goss, P.C. in Rutland–Phone: 802-773-3300.)
U.S. Imposes Mark-to-Market Exit Tax
By John C. Newman, Esq.
A little history is helpful in understanding the imposition of an exit tax on US citizens and long-term residents who commit a taxable act of expatriation on or after June 17, 2008. Since 1966, the Internal Revenue Code has contained anti-abuse rules attempting to tax individuals who renounce their US citizenship for tax avoidance. These 1966 rules (codified in Code §877) were created when the international taxation rules of the Code were systematized in their current structure. The 1966 anti-abuse rule was difficult to enforce. When the US Congress created the HIPAA rules in 1996, it raised necessary revenue by replacing much-amended §877 rules with a provision imposing–for a ten-year period following expatriation–an “alternative tax regime” on a US citizen who relinquished citizenship to avoid the worldwide reach of US tax rules, but only if such expatriation was treated (in the words of the Code) as having a “tax avoidance purpose.”
Vermont’s Land Gains Tax, Part 1
By Matthew D. Getty, Esq.
(This article was first published in Vermont Property Owners Report, a Montpelier-based subscription newsletter about Vermont and Vermont real estate. Phone: 802.229.2433)
Owners of Pre-1978 Buildings, Take Notice
By Christopher W. Blanchard, Esq.
In 2008 the Vermont Legislature amended 18 V.S.A. Chapter 38 in an effort to better protect individuals from lead poisoning within the State. Owners of pre-1978 housing have a duty of reasonable care to prevent exposure to or creation of lead hazards.
Estate Planning Law Update
By Matthew D. Getty, Esq.
These are interesting times for individuals trying to plan their estates. State and federal laws continue to be in flux. We would like to highlight some of the most significant changes.
Nonprofit Organizations and Gambling
By Christopher W. Blanchard, Esq.
Question Presented
Are there any laws allowing or regulating a non-profit organizations’
ability to organize, conduct, administer or otherwise facilitate
gambling events or activities?
Church Property Tax Decision
Download the Church Property Tax Decision PDF.
Facing Legal Matters After the Death of a Spouse
By the Tax, Estate Planning, and Probate Department
Facing legal matters after the death of spouse is one of the more daunting and emotionally draining tasks a surviving spouse is required to address. During a time of mourning a surviving spouse is expected to answer repeated requests for documentation from various creditors, government agencies, and financial institutions. Not only are these requests usually presented during an inopportune time for the spouse, but they serve as a constant reminder of the loss of the one’s spouse.
“On the Record” Proceedings Before Municipal Panels: A Solution in Need of Fixing
By David R. Cooper, Esq.
In Vermont, hearings before a municipality’s planning commission, zoning board, or development review board historically have been relatively informal affairs. Whether participants appear before the panel to propose development, to respond to an alleged zoning violation, to object to a proposed project, etc., they frequently will appear without legal representation, and rarely will come armed with much more than a survey or building plans – sometimes only sketch drawings – of the property in question and/or of the work to be done. At the hearing, participants typically will present an unrehearsed narrative describing their reasons for being there. Otherwise, no formal presentation or exhibits are prepared for or submitted at the meeting.
Elder Law Ethics and Joint Representation
By John C. Newman. Esq., and Paula J. McCann, Esq.
During our seminar at the March 2008 Bar Meeting, we had a lively exchange on the potential ethical pitfalls of joint representation . To further this discussion, we would like to offer some language that you might consider for your estate planning joint engagement letters. As always, this is not intended as legal advice, but rather the starting point for your own reflections.
Top Pitfalls in Preparing Lady Bird Johnson Deeds
By John A. Facey, III, Esq., John C. Newman,Esq., and Heather Z. Cooper, Esq.
The following handout on the pitfalls of preparing LBJ deeds was presented at the 2008 Winter VBA Program in Burlington. It has been updated with information from the Vermont Department of Taxes on the PTR tax imposed on certain of such transfers. We have also added model language for joint representation, an issue raised during the two-hour program.
Tax and Medicaid Planning Aspects of the Standard Vermont Estate Plan—2007 Update
By John C. Newman, Esq., and Ron R. Morgan, Esq.
Need for a 2007 Update
Judging from the interest generated by our 2004 CLE offering and by telephone calls and emails we have received since then, our article on the tax and Medicaid planning aspects of what we tongue-in-cheek termed the “standard Vermont estate plan” has led attorneys to explore alternatives to the rather common recommendation of a joint tenancy with a family member to pass a Vermont elder’s home to the next generation. Since the article was published (VBA Bar Journal, Summer 2003), the US Congress passed legislation that radically changes the Medicaid planning aspects of our article. In addition, the Vermont Supreme Court has issued three recent decisions that also must be considered in using the survivorship or remainder features in deeds to pass a home to surviving children.
For this reason, we decide to republish our prior article with updated information on current Medicaid and Vermont Supreme Court implications impinging on the planning rules we explained in summer 2003.
S-Corporation Accounting of Open Account Debt
By Matthew D. Getty, Esq.
It is a common practice in Vermont for small businesses to incorporate and make an “S-election,” which allows the corporation to be given pass-through income tax treatment. The use of an S-corporation may be cumbersome, however, for federal income tax purposes. Unlike an LLC (which generally will be treated as a partnership for federal income tax purposes if it has more than one member), debt of the S-corporation does not get allocated pro rata to its shareholders for basis purposes. A shareholder must have basis in his or her S-corporation stock to be able to use otherwise available losses, and a reduction in tax basis can result in phantom income to the shareholder if he or she used the basis to use prior year’s losses. An S-corporation shareholder receives basis credit in stock for contributions to capital and loans made by the shareholder to the corporation.
The Importance of Maintaining a Complete Project File and Understanding What Other Documents May Be Available From Other Project Participants
By Hans G. Huessy, Esq.
The project is complete and you have boxes and boxes of project documents cluttering up your office. How do you decide what documents to keep? As you may expect, no one answer is going to address all situations. You would be surprised by how often seemingly mundane materials can be of significant value if and when a dispute arises on a project. If you wind up in arbitration, it is important to understand that more often than not, the outcome of the dispute will turn on the project documents. Both you and your opponent will present witnesses, witnesses who will paint diametrically opposite pictures of what transpired. In an effort to resolve the differences between the two different versions of what happened, the arbitrator will usually look to the project documents. Accordingly, maintaining a complete and organized project file can be extremely important. It is also important to understand the type of documents and information that may be found in files maintained by other project participants that you may never have received. What follows is a case study of an actual project dispute in which a wide array of project documents were used by the parties to advance their position. The purpose of this narrative is to demonstrate that there are a wide array of documents that may be useful in supporting or defending a claim, many of which may appear to be of little or no consequence at the time you receive them.
Know Your Rights Before You Reserve Them
By Matthew D. Getty, Esq.
Situation: You are engaged in a good faith dispute over how much money someone owes you. That person writes you a check, and writes across it some words indicating that the payment is made in full satisfaction of the claim. If you intend to continue to dispute the claim, do not cash the check. An attempt to reserve rights and cash a check offered in satisfaction of a claim will not be effective.
The $75,000 Question
By Matthew D. Getty, Esq.
The Supreme Court’s 2005 decision in Estate of Mainolfi, 178 Vt. 588, illustrates the antiquated nature of Vermont’s probate laws and the need for reform efforts to instill certainty in the results of modern estate planning methods. Specifically, Mainolfi deals with the transfer of a home for estate planning purposes and the resulting implications of the statutory homestead interest for the surviving spouse. Neither the facts nor the law of the case are very clear from this 2-page decision, but the ruling casts uncertainty over any conceivable estate plan that involves the transfer of a home.
Killington Music Festival: Sponsoring a Local Tradition
By John C. Newman, Esq.
The Firm is sponsoring one of the six summer concerts of the Killington Music Festival. The Music Festival has been organizing high-quality chamber music events for the Killington area for the past 25 years.
Equal Employment Opportunity: Investigating Discriminatory Hiring Practices
By Heather Z. Cooper, Esq.
Kenlan, Schwiebert, Facey & Goss recently responded on behalf of a client (the “Company”) to an inquiry by the State of Vermont Office of the Attorney General, Civil Rights Division, regarding allegations of discriminatory hiring practices. The recent inquiry involved
allegations that the Company discriminated against an applicant during the hiring process based upon her gender.
Don’t Be Afraid of Big Bad HIPAA: The Rights of Guardians and Agents of a Health Care Power of Attorney
By Sidney L. Hamilton, Esq.
The Health Insurance Portability and Accountability Act of 1996, better known as HIPAA, has become ingrained in the American psyche over the last few years. No other five-letter combination besides, possibly, JELLO is as widely known by Americans. But, do guardians and agents appointed in a health care power of attorney really understand what HIPPA means?
Taking Title in Vermont: Exploring the Differences Between Various Forms of Ownership
By John A. Facey, III, Esq.
There are have always been three methods of taking title to real estate in Vermont, “tenants in common,” “tenancy by the entirety” and “joint tenancy with the right of survivorship.” Recently the Legislature passed legislation allowing “civil unions” which, essentially, created a fourth type of title, “partners to a civil union.”
Are Your Clients Ready for ICE?
By John C. Newman, Esq.
Granted, in this strangest of winters we’re all more than ready for the arrival of a little snow and ice. But attorneys in Vermont may also want to think about preparing their clients for the arrival of ICE of a different sort – the federal agency of Immigration & Customs Enforcement, also known as ICE.
Rental Housing in Vermont
By John A. Facey, III, Esq.
Many people owning Vermont real estate today are not aware that
the Vermont Department of Public Safety, Division of Fire Prevention
(hereinafter, “DFP” and formerly known as “Labor and Industry”) has
jurisdiction over their homes.
Creditor Beware: The Notice of A Bankruptcy Filing
By Heather Z. Cooper, Esq.
Sooner or later, it is bound to happen. Your company receives a notice that one of your vendors has filed for bankruptcy. This vendor owes you money. What do you do? First, don’t despair.
KSF&G’s Litigation Group Obtains Ruling for Client Before the Second Circuit Court of Appeals in NYC
By Shannon A. Bertrand, Esq.
Because of this ruling, Mr. Baechle can pursue his original assertion that the Town of Mendon failed to take efforts to notify him of the tax sale.
Reaffirmation Agreements
By Heather Z. Cooper, Esq.
Although the reaffirmation process can be somewhat technical, debtors and their secured creditors have much to gain by going through the process.
‘Of Counsel’ Is Loose Term Allowing Lawyers and Law Firms to Craft Symbiotic Relationships
By Guy C. Denechaud
Attorney Guy C. Denechaud explains the loose term "Of Counsel" and how it can be used to help lawyers and law firms to craft symbiotic relationships.
Medicare: Do You Know Your Rights?
By Paula J. McCann, Esq.
Attorney Paula McCann outlines a few basic rights that all Medicare beneficiaries have, starting with the most basic right of all—being treated with respect.
Congress Reforms Medicaid Asset Planning Rules
By Paula J. McCann, Esq., and Ron R. Morgan, Esq.
Attorneys Paula McCann and Ron Morgan detail the proposed changes to the Vermont Medicaid Manual, potentially affecting whether and to what extent Vermont pays for an individual’s long-term
care.
Storm Water Permitting Requirements and Issues–Specifically Multi-Sector General Permit
By Edward V. Schwiebert, Esq.
In this article, Partner Edward V. Schwiebert shines a light into the murky area of storm water permitting law.
Download the entire article (20pp).
Tax & Estate FAQs
By John C. Newman, Esq.
Attorney John Newman gives insight into common questions people have about simple wills, probate disbutes and estate planning.
International Real Estate Transactions
By John C. Newman, Esq., John A. Facey, III, Esq., and Ron R. Morgan, Esq.
Attorneys John Newman, Jack Facey and Ron Morgan discuss various tax implications on U.S. real property owned by a non-resident, non-US citizen.
Common International Legal Issues in Vermont Will and Trust Practice
By John C. Newman, Esq.
Attorney John Newman highlights some legal issues when preparing Wills and Trusts for non-US citizens.
Buying Real Estate in Vermont
By John A. Facey, III, Esq.
Buying a home in Vermont has never been more challenging. But with the right guidance, you can still come out ahead.