Ten Things Tax-Exempt Organizations Need to Know About the Oct. 15 Due Date

[This is reprinted verbatim from the IRS Tax Tips of September 30, 2010 issued by the IRS.  No use in trying to re-phrase what is already short and sweet and right on point.]


A crucial filing deadline of Oct. 15 is looming for many tax-exempt organizations that are required by law to file their Form 990 with the Internal Revenue Service or risk having their federal tax-exempt status revoked.  Nonprofit organizations that are at risk can preserve their status by filing returns by Oct. 15, 2010, under a one-time relief program.

The Pension Protection Act of 2006 mandates that most tax-exempt organizations must file an annual return or submit an electronic notice, with the IRS and it also requires that any tax-exempt organization that fails to file for three consecutive years automatically loses its federal tax-exempt status.
Here are 10 facts to help nonprofit organizations maintain their tax-exempt status.

1. Small nonprofit organizations at risk of losing their tax-exempt status because they failed to file required returns for 2007, 2008 and 2009 can preserve their status by filing returns by Oct. 15, 2010.
2. Among the organizations that could lose their tax-exempt status are local sports associations and community support groups, volunteer fire and ambulance associations and their auxiliaries, social clubs, educational societies, veterans groups, church-affiliated groups, groups designed to assist those with special needs and a variety of others.
3. A list of the organizations that were at-risk as of the end of July is posted at IRS.gov along with instructions on how to comply with the new law.
4. Two types of relief are available for small exempt organizations — a filing extension for the smallest organizations required to file Form 990-N, Electronic Notice and a voluntary compliance program for small organizations eligible to file Form 990-EZ, Short Form Return of Organization Exempt From Income Tax.
5. Small tax-exempt organizations with annual receipts of $25,000 or less can file an electronic notice Form 990-N also known as the e-Postcard. To file the e-Postcard go to the IRS website and supply the eight information items called for on the form.
6. Under the voluntary compliance program, tax-exempt organizations eligible to file Form 990-EZ must file their delinquent annual information returns by Oct. 15 and pay a compliance fee.
7. The relief is not available to larger organizations required to file the Form 990 or to private foundations that file the Form 990-PF.
8. Organizations that have not filed the required information return by the extended Oct. 15 due date will have their tax-exempt status revoked.
9. If an organization loses its exemption, it will have to reapply with the IRS to regain its tax-exempt status and any income received between the revocation date and renewed exemption may be taxable.
10. Donors who contribute to at-risk organizations are protected until the final revocation list is published by the IRS. 

If you are involved with a Tax Exempt organization and have any questions, I welcome you to contact ...

Very truly yours!

Doug Humes

Doug Humes has been a practicing attorney in Pennsylvania since 1980.  He has experience in real estate, community, corporate and small business law, and estate planning.  In 2003, he opened his private general practice at an old Main Line mansion in Bryn Mawr, Millridge Manor House.  Doug is also a Pennsylvania notary public and offers that service as an accommodation to clients and Millridge residents.  You can contact him at Tel: 610-525-7150, or via email at humeslaw@verizon.net.

Rate Jacking - Fight Back

(first published 11-25-2009)

Tis the season … when we are all spending money on the holidays - gifts, entertaining, travel, perhaps year-end charitable donations, etc.  And when the outflow is going faster that the inflow, we have what businesses call a "liquidity crunch".   I don't know what all of you do when you are being crunched like that, but I will take advantage of the credit card offers that fill my mailbox - the ones with the promotional teaser rates - 0% through August, 2010; 1.99% through 12-31-10.  Yes, I have learned to read the fine print - and have noticed the "transaction fee" has climbed in recent years from a minimum dollar amount to between 2-4% per transaction.  But paying even 4% for the money for a year is better than paying whatever the "regular rate" is.  Right? 

Well, with online payments, with direct payments from banks, with paperless bills, there are times when I have simply lost track of my due date, and have not paid the minimum payment on time.  And of course part of the fine print in the original teaser promotion cautions you that if you have any late payments, then that wonderful deal that you signed up for, that promotional rate good through some time into the distant future, is no longer going to be honored.  If you don't keep your end of the bargain - by paying on time and not going over your credit limit - then the credit card company does not have to keep their end of the bargain.  In fact, they have already pointed out to you what happens in this event - in the smaller print at the bottom of the promotional letter, where it says: "However, all of your APR's (including this offer and any other promotional APR's) may increase as permitted by law up to the 29.99% variable default rate if you pay us late, go over the credit line, or make a payment to us that is not honored."  That's certainly not what you expected if you signed on for one of these rates.  But unfortunately, that is what you bargained for.  You made the deal with the Devil, and now he is knocking on your door for payment.  I have seen this practice referred to as "rate jacking", and it is a colorfully descriptive term for what has occurred.  Your credit card interest rate is jacked way up because you have made a simple mistake.  One day late, and your holiday goose is cooked. 

However, all is not lost.  Under the terms of the Credit Card Act of 2009 which took effect on Aug. 20, 2009, the credit card issuer must now give you 45 days advance notice that they are going to jack your rate up due to a delinquency or default or as a penalty.  Also, effective in February 2010, the issuer cannot apply a penalty rate until the consumer is more than 60 days delinquent on the account.  So, if you make that late payment just one time, they cannot then change the deal and jack the rate up.  They must send you that 45 day notice, with language in it disclosing the proposed changes; the "effective date, and, a notice that you have the right to reject the changes.  They must also disclose if they are will suspend or terminate any future use of your account as a result of your rejection of the change.  The notice will give instructions—and a toll-free number—for rejecting the change or rate increase.   Follow the instructions carefully, and if you are successful in jumping through their hoops, the telephone voice tells you that you were successful, and gives you a confirmation number.  Now get caught up on your delinquent payment.  And then go and sin no more. 

The new 45 day notice does not apply to an APR increase upon the expiration of a specified period of time, as long as the creditor disclosed clearly and conspicuously in writing the length of the period and the APR that would apply after that period.  In other words, if the original offer said "good through August, 2010, with a rate increase in August, 2010", then your credit card company does not have to give you a new 45 day notice.  Similarly, if you have a variable rate that was disclosed at the outset, then you will not be receiving a new 45 day notice each time the index fluctuates.  In addition to the 45 day notice provision, there is another beneficial (to consumers!) new requirement:  the credit card issuer must adopt reasonable procedures designed to ensure that your statements are mailed or delivered at least 21 days before the payment due date.  That gives you plenty of time to make sure that next payment is on time. 

In summary - don't pay late; if you do, don't ever pay 60 days late if you can help it.  If you get the 45 day notice telling you that you are going to be rate-jacked, then don't make any new charges on that card until you have decided whether you want to reject the change.  Read on in the notice until you get to the part about rejecting the changes.  Follow the instructions for rejecting the changes, and note the confirmation number.  If you have any doubt about the consequences of rejecting the change, first call your credit card customer service number, speak to the rep and ask the question - "if I reject this change, and pay the delinquency, am I still allowed to use the card in the future?"   Write down the date of the phone call, the customer service rep's name, and the advice that you are given.  Then make an informed decision.  The rules are changing, and you as the credit card consumer have more rights as a result of the recent changes in the law.  Don’t be afraid to use them.  That will make for a happier holiday!

©2009  Douglas P. Humes

Doug Humes has been a practicing attorney in Pennsylvania since 1980.  He has experience in real estate, community, corporate and small business law, and estate planning.  In 2003, he opened his private general practice in an old Main Line mansion in Bryn Mawr.  Doug is also a Pennsylvania notary public and offers that service as an accommodation to clients.  You can contact him at Suite 210,  Tel: 610-525-7150, or via email at humeslaw@verizon.net).

Pennsylvania Home Improvement Consumer Protection Act

Over the weekend I overheard a conversation about home contractors:  “I found a way to get my contractor to call me back.  I told him I had his deposit check ready to pick up.”  That snatch of conversation highlights one of the complaints that people may have about some home contractors – they are not good at returning calls.  Personally, I have had that experience, but I have had many more positive experiences with good professional contractors who return their calls at the end of the day, and do the work that they say they are going to do, and meet me when they say they are going to meet me.  However, for the bad apples, the Pennsylvania legislature is trying to be proactive, and in 2008 passed a new law relating to home contractors.  The law took effect in 2009, and the state attorney general is beginning to enforce the law this year. 

The Pennsylvania Home Improvement Consumer Protection Act requires virtually all contractors who do “home improvements” (generally any work done at a person’s home with a contract price of more than $500) to register with the State Attorney General.  The registration seems fairly simple.  It requires some basic contact information on the contractor, but also asks them to report (among other things) on whether they have ever been convicted of a crime relating to home improvement fraud, whether they have been bankrupt, and whether in the last ten years they have had a judgment entered against them related to a home improvement transaction.  The act also requires them to show proof of insurance.  The contractor is issued a registration number, and then must use that number in all of its advertisements, contracts, estimates and proposals.  The law also provides certain minimum requirements for what must be in a contractor’s contract.  If any of the items are missing, then the contract is not enforceable.  The consumer is allowed to rescind the contract within three business days of signing it.  If the contract requires mandatory arbitration of disputes, the arbitration clause must meet certain requirements.  If the contract contains certain clauses (generally various waivers, hold harmless clauses and one sided clauses in favor of contractor), then the whole contract can be voided by the home owner.  If the contractor does not start work in a certain amount of time, you can cancel the contract.  The Act also defines certain actions as felonies or misdemeanors, and permits enforcement at the county level, and at the state level for those contractors working in more than one county.  A violation of this Act is also considered a violation of the state’s Unfair Trade Practices and Consumer Protection Law, which permits the consumer to sue the contractor for triple damages plus attorneys fees. 

So how does this affect you, as a home owner asking a contractor to do work at your home?  You should check to see if your particular contractor is registered by going to the AG’s website at:  http://www.attorneygeneral.gov/hicsearch/, or by calling the Home Improvement Registration Hotline at 1-888-520-6680.  You have a three day right of rescission if you change your mind.  If during the course of the work, you become unhappy with the work, the law has so many different requirements that a lawyer may be able to find deficiencies in the contract that may permit you to terminate it.  If there are clear violations of the law, you have a variety of civil and criminal remedies.  It is a very consumer oriented law.  

The website for the Attorney General states that they are starting to staff up to enforce the law, noting that lawsuits have recently been filed “against seven contractors accused of failing to start work, collecting excessive down-payments, not finishing projects, performing work in a shoddy manner, failing to pay refunds, not honoring warranties and other violations of the state's Home Improvement Consumer Protection Act.”  More information is available at their website.

The law cannot resolve all disputes among owners and contractors, and cannot force them to communicate well and return phone calls, but it may well scare away some of the worst past violators from registering, and it provides powerful remedies for consumers.  When considering a contractor, it is always a good practice to get quotes from several of them.  Check on their registration.  Ask to see their insurance coverages.  Request references and then check on them.  And as with any pitch, if something sounds too good to be true, it probably is.  Don’t get swindled by special offers and high pressure sales tactics.  Professional contractors want your business, but they want you to be happy with the work they do as well.  They want you to be a good reference for them.  The best way to have a good working relationship with your contractor is to hire a good one from the start. 

©2010  Douglas P. Humes

Doug Humes has been a practicing attorney in Pennsylvania since 1980.  He has experience in real estate, community, corporate and small business law, and estate planning.  You can contact him at  Tel: 610-525-7150, or via email at humeslaw@verizon.net.

UPDATE ON FEDERAL ESTATE TAX

Before the battle of the Little Big Horn, Crazy Horse reportedly said to his men, “It’s a good day to die”.  Estate tax pundits have been saying the same thing this year – it’s a good year to die.  Why?  Because the federal estate tax on the estate of a person who dies in 2010 has been repealed.  If a person dies this year, then there is no federal estate tax due on what he or she leaves to his heirs.  In an economy where the government is looking for every cent it can collect, this is an unusual situation.  If we look behind the curtain at how we got to this point, we find the answer:  Politics.  In 2001, the federal estate tax (the tax at death on what a person owned) levied a 55% maximum tax on estates above $1 million.  Estates below that amount did not pay a federal estate tax (though most states have some form of death tax).  In May of 2001, Congress passed sweeping legislation that among other things gradually reduced and then eliminated the estate tax.  By 2009, the highest rate had been reduced to 45%, and it applied only to estates over $3.5 million.  Under the same 2001 law, in 2010, the estate tax is entirely repealed.  But then in 2011, we wake up from this wonderful dream and find that the rates and exemptions have returned to the same levels that were in effect in 2001:  a 55% maximum rate and a tax that applies to any estate over $1 million.  That brings a lot of taxpayers back into the net. 

I believe the thought at the time was that after the 2008 election cycle, the new Congress and new President would deal in some way with the issue.  During the 2008 election, each candidate promoted a form of change that basically said “let’s leave things as they were in 2009” and “let’s move the exemption amount up a little higher”.  However, since the 2008 election there have been other legislative priorities, and a divided Congress, and so no meaningful legislation has been advanced in this area.  Because the 2001 law lapses, without any vote required, while the government forgoes the revenue that would have resulted from an estate tax in 2010, they then begin to collect higher revenues in 2011 and onward, because the rate is higher and applies to more estates.  It is effectively a tax increase that no Congressman needs to vote on and defend in the Fall election. 

So where does that leave us?  The lame duck Congress or the next Congress could enact a new estate tax law – and conceivably could make it retroactive to cover deaths in 2010.  Most commentators believe that at this date a retroactive law is unlikely.  The estates of George Steinbrenner and the other wealthy people who die this year will likely go untaxed (at the federal level).  A new law could implement the range of past proposals – adjusting the highest rate, and raising the dollar value of the exemption.  Or, in a down economy, with declining revenues, the Congress can simply leave the law alone, collect the higher revenues, and blame the politicians of the past.  No one thought we would get to this point, and so there is no certainty about what will happen next. 

One of the inadvertent results of the elimination of the estate tax in 2010 is that certain assets in the estates of people who died this year will generate increased capital gains taxes for the government.  Under previous law, if you had a highly appreciated asset – a stock that you bought for $10 and is now worth $100, if you sold it, you would pay tax on the gain – the difference between the sales price and the original purchase price (or “basis”).  But if you died owning that stock, then at death the basis would “step up” to its value at date of death, $100, and if the stock was then distributed to the heir, who immediately sold it, the heir would pay no capital gain – he sold it at the same price as his basis in the stock, and so there would be no “gain” for income tax purposes.  But with the elimination of the estate tax, there is no step up of basis, so the heir now acquires the asset at the previous $10 basis, and if he then sells it, he pays a capital gains tax on the $90 gain.  This is another result that benefits the government, as the taxes resulting from this result to some extent ameliorate the loss of income in 2010 from the estate tax.  Presumably when the estate tax goes back into effect in 2011, the step up basis rule is also restored, and so this is just a one year anomaly. 

So how do you plan in this environment?  It is very difficult to do so.  If you thought your estate was well under the $3.5 million exemption amount, then you did not need to pay too much attention to estate tax planning.  If the estate tax exemption falls to $1 million in 2011, then you may want to look at how this may affect you, and may want to consider some planning devices to minimize the federal estate taxes you may now have to pay. 

©2010  Douglas P. Humes

Doug Humes has been a practicing attorney in Pennsylvania since 1980.  He has experience in real estate, community, corporate and small business law, and estate planning.  In 2003, he opened his private general practice in Bryn Mawr, Pennsylvania.  You can contact him at Tel: 610-525-7150, or via email at humeslaw@verizon.net).

Those Evil Corporations

It is curious to me, as a lawyer who has worked for corporations, and formed corporations for clients, to see how much lightning they can attract in a down economy.  Who is to blame for our economy?  The Corporations!  Who should not be allowed to influence our public debate?  The Corporations!  Who is responsible for any harm done anywhere in the world - the Corporations!  If there is a mine explosion, who is responsible:  the Mine Safety Officer, the OSHA inspectors, the union safety representative, a co-worker who made a mistake that day, the inherent dangers of deep mining … or THE CORPORATION?  As I sit here in my office, I receive heat, light and water from corporations.  My furniture is largely made by corporations.  My office equipment - desk phone, cell phone, computer, internet access - is all manufactured, transported, marketed, sold and delivered by corporations.  I pay my rent to a management corporation, which then sends the check to the owner, a Pennsylvania non-profit corporation.  Clients come to me and ask me to form corporations for them.  Corporations are everywhere, and provide everything in our economy.  So what actually are these "corporations" and why do they have the capacity for such evil?

Just like trying to explain what an "American" is, there is no one simple answer.  A corporation is a legal entity, like a trust or a partnership, that is permitted to be created under state law, and given a legal life subject to the duties and responsibilities of the applicable state law.  Corporations can be owned by thousands of people or one person.  They can be for profit or non-profit.  They can be stock or non-stock.  If they issue stock, if may be publicly traded or privately held.  There are C Corporations, and S Corporations, and limited liability corporations.  Some are taxed one way, some taxed in a different way.  Some are managed by a board of directors and a slate of officers, while others are managed like a partnership or sole proprietorship.  Some are registered with the federal Securities and Exchange Commission, others with the Pennsylvania Securities Commission, and others are registered only with the state office that tracks the birth and death of its state corporations.  The Pennsylvania Corporations Bureau notes on its website that is the records repository for more than 2.4 million companies that do business in Pennsylvania.  Upwards of 26 million companies do business and file tax returns in the United States. 

One of the more common fallacies I have heard is that many corporations pay no income tax.  That is a statement that has some truth to it - there are corporations that routinely pay no income tax - but the statement needs context before you can come to judgment on whether that is a good thing or a bad thing.  A corporation is treated as a separate person for filing tax returns, and so files local, state and federal income tax returns.  Originally, each dollar of income that came in to a corporation was taxed at a corporate rate (at both state and federal levels), and then if what remained was passed out to the owner, in the form of dividends, the owner paid tax on that income as well.  The same income was taxed twice.  The inherent unfairness of this result led to the authorization of Subchapter S corporations - where certain smaller corporations who elected this treatment would be treated the same as if they were partnerships or sole proprietorships - the income would "pass through" the corporate entity - and then would only be taxed to the owner who ultimately received the income.  The relatively new entity, the limited liability company, shares this characteristic as well - the income passes through and is taxed to the owner.  Non-profit corporations, formed for a charitable purpose, as a rule do not pay income tax on the income they receive.  They are doing work that might otherwise fall to the government to perform, and so as a matter of legislative grace, their income is not taxed.  Each of these corporations pay no income tax.  Is that a good thing or a bad thing?  

With the organizational and management paperwork, the multiple filings, the double taxation, the bad press of being a "corporation" in a politically correct society, why would anyone choose to do business this way?  The main benefits of the corporate form have always been (1) the ability to pool resources of many people in order to undertake a particular venture or business, combined with (2) the limitation of the liability of the owners to the money they put at risk.  If the owners put money into the corporation, if they dot their i's and cross their t's and run the business professionally, and if ultimately the business is a failure, then the owners lose their investment in that business, but they do not lose everything else that they own.  Creditors can pick over the carcass of the failed corporation, but generally they can not come after the owners of the business (with some exceptions as always for the people who abused the privilege).  If you owned 100 shares of General Motors when it went bankrupt, then you would have lost your investment, but you would not be forced to liquidate your bank accounts and sell your home in order to pay the creditors of the company for any shortfall that they can not collect from the assets of the company.  As an owner of that business, you have limited liability. 

The corporation, with its ability to pool resources, spread risk, and limit liability, is the engine of our economic system, here and in the world at large.  The only other economic system that has tried to improve upon this system is communism, where the government owns all of the property, and so provides resource pooling, risk spreading and limited liability for its owners - the entire population.  That experiment lasted for most of the 20th century, but the result is largely on the ash heap of history.  It did not take into account what motivates people to work hard and take risks - the promise of some commensurate reward. 

The corporations I have been involved are all run by people, and employ people, and their officers and directors are people, their accountants and engineers and management and secretaries are all people, and with so many people in the process, they come with the baggage of the human condition.  When there is excess - greed, stupidity, foolishness, negligence - then it is because of the people involved, not the legal entity they chose to conduct their business.  Blame the people involved, not the "corporations".

©2010  Douglas P. Humes

Anatomical Gifts - the gifts that keep giving …

(originally published May 22, 2009)

News Item:  "Natalie Cole, singer and daughter of Nat King Cole, received a kidney transplant on May 19, 2009 at Cedars-Sinai Medical Center in Los Angeles, California.  The kidney came from an anonymous donor who recently died.  Her family directed that her kidney be given to Natalie." 

I saw this headline and was reminded of a former client and friend, I'll call him Theodore (1), going through divorce and an early mid-life crisis, who adopted a New Age name and went off to live in various group communities.  While living in Boston, he heard about people who voluntary donate one of their kidneys to strangers in need, took inventory of his kidneys, found he had one to spare, and so agreed to donate one.  Not when he died.  While he was still living.  And so he signed up with a particular hospital, they found a compatible match from their waiting list of people who needed a kidney, and then performed the simultaneous surgery, removing one of my friend's healthy kidneys, and then inserting it in place of a failed kidney in the woman recipient.  To my knowledge, the surgery was a success, and both patients are living happily ever after.  In both cases, the donor made an "anatomical gift" of their body parts to a willing recipient. 

The first instance was a case of "directed donation":  the donor selects the person to receive the anatomical gift.  This is more common among family members - who are likely to be compatible for donations of this type.  It is rare that you see directed donations to strangers.  You see examples of directed donation with blood donations, such as parents to children, and among family members.  Because family members have shared genes, they typically are more compatible for other procedures such as bone marrow transplants used in treating certain cancers.  They also have that common bond of family and love, and so are more motivated to help their own child, brother or sister.  But as the example of Natalie Cole indicates, you can direct your donation to a particular stranger, if you are so inclined, and you are a compatible match to the person in need. 

The second example, my friend Theodore, was what is called an "altruistic donor":  the person who is willing to give up a piece of his anatomy, a spare organ, for the good it will do for others.  The sale of organs is prohibited, and so the motivation to take this step comes from deeper within the donor.  Those of us who regularly donate blood to the Red Cross are motivated in that sense.  This is altruistic donation:  we don't know where our blood is going, but we do so hoping that it does some good for someone in need.  My son, following my college tradition at Penn State, regularly donates his plasma:  the plasma center withdraws a pint of blood, centrifuges it to separate the red cells from the white, keeps the white, returns the red cells to the donor, and repeats the process one more time.  However, there is a mixed motivation here:  the plasma centers pay college students to do this; and the pay is pretty good for an hour of their time.  But it feels good to know that your plasma is going to someone in need.  I have signed up for the national marrow donor registry.  I did so after learning about Alexandra "Alex" Scott and her famous lemonade stand.  Alex, from Wynnewood, Pennsylvania, was diagnosed with neuroblastoma, a type of childhood cancer, before she had turned one.  At age four, she decided to take matters into her own hands, and opened up a lemonade stand on her front lawn, to raise money for cancer research.  Alex passed away at age 8 in 2004, but her lemonade stand has raised over $25 million to fight pediatric cancer.  On her website, I read about the National Marrow Donor Registry, and followed through, receiving a kit in the mail and sending off swabs of cheek tissue to be tested and added to the registry.  If this little girl could endure what she endured, and make such a significant contribution in her eight short years, then the least I could do would be to volunteer to try to be a match for some other little boy or girl in need.  

Blood regenerates.  Plasma regenerates.  Marrow regenerates.  There are other bodily parts that regenerate, and that are now being transplanted from living donors, including the lung, liver and pancreas.  A living donor is able to donate a portion of their liver to someone in need of a liver transplant.  The liver is the only organ that can regenerate and will grow back to nearly 100 % of its size in a short amount of time.  Then you can do it again!

And the latest idea in this field:  paired donors.  One altruistic donor is needed to start the ball rolling:  he or she gives the gift of life to a compatible stranger, who has lined up their spouse or other loved one to "match" the gift; that gift is given to another compatible stranger who is willing to again "match" the gift.  And on it goes.  According to the March 12 issue of the New England Journal of Medicine, to date the longest paired-donor kidney transplantation chain has involved 10 organ transplants.  Talk about a matching gift.  Ten lives saved as a result of one altruistic donor.

According to the national registry maintained by the Department of Health and Human Services, as of May 15, 2009, there are 102,118 people registered to receive an organ of some kind when a donor is found:  80% of those are for kidneys; 15% for livers; and then pancreas, hearts, lungs, intestines rounding out the list of need.  We all may need blood from time to time.  We or our loved ones, all may need plasma, or marrow.  We are relying on the generosity of altruistic donors in each of these cases.  We have a population of over 300 million in this country.  It makes the number of people who need an organ transplant, 102,118, look small by comparison.  No matter how altruistic we may be, we can't actually give our hearts to these people; but we can certainly use the motivation that comes from that part of us to consider what we can do for those in need, whether while living, or upon our death.  When reviewing your estate plan, think about that issue.  It might not be for everyone, but it might be for you.  And for the people who would benefit for such a generous gift. 

1.  Theodore:  gift of God

©2009  Douglas P. Humes

A BRIEF SUMMARY OF THE NEW HEALTH CARE LAW

As mentioned in an earlier post, I went to my gym earlier in the week and found out that they were discontinuing offering the tanning bed to members, starting in May.  This was the first ripple from the new health care law - there will be a 10% tax on indoor tanning services, and so my gym is simply dropping the service rather than dealing with the administrative headaches of collecting and reporting the tax.  So, I have been digging around to try to separate the wheat from the chaff in the debate, and find out what else we can expect, and when we can expect it.  Obviously, I cannot capture the entire law and its ramifications in this article - the sea is so large and my boat is so small - but I have tried to distill out the essence.  So here goes:

2010     -No denial of coverage to children based on preexisting conditions. 

             -Children allowed to stay on their parent's insurance plans until age 26.

             -$250 rebate for Medicare beneficiaries who hit “donut hole" ($2,830 annual prescription drug limit)

            - Adults with pre-existing conditions eligible for temporary high-risk pool (superseded in 2014 by health care exchange program)

             -Insurers prohibited from charging co-pays or deductibles for preventive care and medical screenings on NEW insurance plans (existing plans grandfathered till 2018).

             -Insurers are prohibited from dropping policyholders when they get sick

             -New website at Dept. Health and Human Services will provide consumer insurance information for individuals and small businesses in all states

2011     Seniors in “donut hole" ($2,830 annual prescription drug limit) will receive a 50 percent discount on brand name drugs. 

2013      3.8% Medicare Payroll Tax on investment income (interest, dividends, annuities, royalties, capital gains and rents) for individuals who earn more than $200,000 annually and joint filers reporting more than $250,000.

2014     -Everyone must purchase health insurance or face a $695 annual fine; exemptions for financial hardship or religious beliefs

             -Subsidies to purchase insurance for individuals with income up to 400% of the poverty line.

             -Tax penalty ($2000 per employee) on employers (over 50 employees) who do not offer health insurance to their workers. 

             -Medicare Payroll withholding increases from 2.9% to 3.8% on earned income.

             -Qualifying medical expenses income tax deduction increases from 7.5% to 10%

             -No lifetime and annual limits on coverage 

             -No denial of coverage to anyone with preexisting conditions.

             -Exchanges created for small businesses to purchase coverage

             -States expand Medicaid to include childless adults.  Federal Government pays 100 percent of costs for covering newly eligible individuals through 2016. 

2018     -Insurance companies will pay a 40% excise tax on "Cadillac" high-end insurance plans worth over $27,500 for families ($10,200 for individuals). 

             -All insurance plans will provide coverage for preventive care and checkups without co-payment.

The official name of the Act is the "Patient Protection and Affordable Care Act of 2010" in the event you want to google it and look for particular provisions.  Certain provisions of the Act have already been challenged in court - the focus is the "individual mandate" - can the federal government order you to buy health insurance and fine you if you do not?  No legal scholars on either side suggest that the government cannot accomplish virtually all of what this new law proposes - the further regulation of health care and insurance - by passing the law and then raising taxes to pay for it.  However, the new law, while it raises certain taxes, avoids raising income taxes on "the middle class" to pay for the expanded coverage by instead requiring each individual to buy insurance.  The result is that this is not a "tax", but an "individual mandate".  That explanation is sufficient for some, and deficient for others.  The Supreme Court will eventually sort it all out.  

©2010  Douglas P. Humes 

The first ripples in the health care pool ...

I went to my gym this morning to swim.  There is a tanning bed there - but not for long.  It is being discontinued as of May 15th.  The new health care law puts a 10% tax on individuals receiving indoor tanning services.  The tax has to be explained, collected, reported, and the cost of the tax flows directly to the user - the price paid for the service must be increased.  Much easier for a gym like mine, offering it simply as an additional service, to discontinue it.   But what about a business set up solely for tanning?  Will all tanners continue to pay the higher price?  Basic economics principles say no - elasticity of demand as a function of price - and so use will decline, and the businesses on the margin will close.  The tax primarily affects female business owners, who own about two-thirds of tanning salons in the U.S.  Fewer businesses in the industry mean fewer suppliers and manufacturers.  A net loss of jobs at both the retail and wholesale level.  This provision is a tiny little piece of the entire bill - one sentence in the  thousands of pages, but already it has a ripple effect.  It is easy to see the loss here.  What is gained?  And that is the real question that is overlooked in the loud and angry debate - what will the actual effects of the bill be when the laws of economics and individual behavior kick in?  The only thing certain is that no one knows.  

Florida AG and 12 other states file suit against new health care law

"Attorney General Bill McCollum today filed a lawsuit against the U.S. Department of Health and Human Services, U.S. Department of Treasury and the U.S. Department of Labor alleging the Health Care Reform bill signed into law by President Obama this morning is unconstitutional.  The bipartisan lawsuit was joined by 12 Attorneys General and is the first challenge of the new law.  ...The Attorneys General from South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Michigan, Pennsylvania, Washington, Idaho, and South Dakota joined Florida’s lawsuit, filed today in the United States District Court for the Northern District of Florida."  [source:  http://www.myfloridalegal.com/newsrel.nsf/newsreleases/2426DBDB65C843D7852576EF005DB3A4 ]

Here's a link to the actual complaint that was filed, for those few people who still like to read about the issues before taking sides:  

 http://www.scag.gov/newsroom/pdf/2010/healthcare.pdf

The interesting part will come after the answer has been filed and both sides file briefs, exploring the fault line between the rights of the States under the 10th amendment and the use of the Commerce Clause to justify the individual mandate.  

The 10th amendment:  "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The Commerce Clause:  The United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". 

In first year law school, we spent about half of the year in our Constitutional Law class looking at the evolution of the Commerce Clause, from its modest beginnings to basic interstate trade issues, to the New Deal and Franklin Roosevelt's Court Packing plan, and the "switch in time that saved nine," where two justices who had voted with the conservative court switched their votes and created a new majority which became more deferential to Acts of Congress.  The reach of the Commerce Clause broadened in the 1960's for use in attacking segregation in the South - and reached its peak when the Court found that the federal Civil Rights laws reached all the way in to the kitchen at Ollie's Barbecue, a family owned restaurant in Birmingham, Alabama, specializing in barbecued meats and homemade pies, because of "meat that it bought from a local supplier who had procured it from outside the State".  That was the commerce that was being regulated:  hot dogs and buns that "moved in commerce" and arrived at Ollie's Barbecue.  

It certainly led to the right result - seating and service for blacks in all restaurants in the South, but through the back door.  For those who are result driven, and don't care about the path traveled to get there, that is all that matters.  For those who view the Constitution as an agreement between the states and the federal government as to what rights they each have, and a check on government power, the use of the Commerce Clause as a trump card, to be played any time the Federal government wishes to legislate, seems to be a usurpation of rights reserved to the States.  Thoughtful people can hold either view.

Reading the pleadings, the briefs, the opinions, is interesting perhaps for lawyers.  We were trained to think that issues like these should be resolved based on reason and the rule of law.  But the loud and angry mob on both sides of this debate will insist that the only correct result is the one they have emotionally invested in ... and no matter which way the case is decided, there will be a mob to launch personal attacks on the judges who make the decision.   And I know many lawyers who are more comfortable in the mob than in the legal arguments.  A sad commentary on the tenor of our public debate, where we have largely lost the capacity for civil discourse, and respect for our government and its institutions.  We are poorer as a result.  

Estate Planning: Having the Conversation

When I was first practicing law in the 1980's, the term "estate planning" conjured up visions of lawyers in expensive suits and large offices sitting down with the DuPonts and the Pews and figuring out ways to keep their fortunes intact through the next ten generations. Estate planning meant avoiding taxes through intricate schemes and legal gymnastics that most of the people I knew didn't need. Today [now 2020 - ed.], the federal estate tax only applies to estates over $11.58 million per person. Only the wealthiest 2% of the population needs to be concerned with planning for federal taxes. But I have lived more life since then, I have seen loved ones become ill and pass away, and I have gone to their homes and sorted through their things, and discovered more about what estate planning really means. It is about planning, about organizing, about confronting your own mortality, and most of all about having "the Conversation".

People shy away from thinking and talking about the various events of life that can change their day to day routine so quickly: about accidents, illness and disease, aging and death. They are events that we cannot control, but they are events that we can plan for. Having the conversation starts with talking to yourself: what is your contingency plan if you are hospitalized, if you have a lingering illness, if you cannot make your wishes known to your doctors and loved ones. Who do you want to make those decisions when you can't?

The law is its infinite wisdom provides the method for all of the people who do not plan for these events. If you cannot take care of yourself, the law permits a guardian to be appointed, in a process involving lawyers, a judge, hearings, time and expense. If you have not made your wishes known through a living will, then the law provides the same process: lawyers, a judge, hearings, perhaps Congressional hearings and political battles as well, all to determine what you might have decided if you had been competent to decide the issue of your own life and death. A little thoughtful planning, a discussion with your family, a little expense, and you can provide for these situations, you can decide the issues that only you should really decide, you can document them, and then you have done all you can. You have bought a relatively inexpensive form of insurance for the situation. But most important, you have had the conversation, first with yourself, and then with your loved ones. You have made a plan.

Estate planning today means having a durable financial power of attorney that designates one or more trusted loved ones to take charge of your financial affairs when you are unable to do so. It means having a living will - also called a medical directive - that expresses what you would want done if you are in an end-stage medical condition, and selecting the person or people who you want making those decisions when you can't. It means having a will that provides for your loved ones and appoints the person you want to handle your affairs. It means considering making gifts while you can enjoy the giving; checking to make sure your insurance beneficiary designations are up to date; putting your records together in one safe place, writing notes to explain your affairs, and even attending to your genealogy, and putting the names of the people on the back of the old family pictures. It means telling your loved ones that you love them, writing them letters to be opened when you are gone, and showing them how much you love them by the thoughtful way in which you have prepared for that day.

By having the conversation, first with yourself, and then with your loved ones, and then putting an estate plan in place, you do not ward off the events of life, but you have done everything in your power to prepare for them. So start today, in the morning over coffee or tea, and have the conversation.

first published: (2-21-08)  *  last revised 5-1-2020  *  ©2008 Douglas P. Humes

Doug Humes has been a practicing attorney in Pennsylvania since 1980.  He has experience in real estate, community, corporate and small business law, and estate planning.  In 2003, he opened his private general practice at the Millridge Manor House in Bryn Mawr, Pennsylvania.  You can contact him at Tel: 610-525-7150, or via email at humeslaw@verizon.net).

On the Shoulders of Giants: Direct Debit of HOA/Condo Assessments - Can it be done; should it be done; how is it done?

[I belong to various mailing lists, where other lawyers from different specialties gather to discuss issues and how they handle them in their practices.  I have made a habit of copying the particularly useful suggestions, comments, and forms that are submitted in these lists into my personal collection of forms and commentary that constitutes my electronic law library.  Now that I have started blogging, I am going to pass along items that I believe may be helpful to clients and other practitioners in these areas.  I don't claim any originality in these postings - they are basically a compilation of the good ideas of others - using my language and editing.  I am therefore standing on the "Shoulders of Giants" when I do so.]

I have had landlords who have negotiated into their leases the concept of having direct debit from the tenant's account for monthly rent.  Creditors love this idea - the money comes on time, without float, without excuses.  Most of us are over the fear of some horrible Big Brother type assault on our finances when it is done by computer rather than by check.  We (most of us) are comfortable with online banking.  We pay some of our bills and utilities this way.  So why not extend the idea to HOA and Condominium assessments? 

Can a Board require this, to the exclusion of any other payment method?  Probably not right now.  There are people who don't have computers, don't have the software, don't bank online, or don't have the confidence in electronic payments.  They will always need to have an alternative available for them.  However, in light of the convenience and time saving of the electronic debit, could a board offer a discount to those who would agree to electronic debit payments?  Yes, I think so.  Just as sending out paper bills, with stamps, which someone must create, stuff, lick, and post, is labor intensive, so is opening the envelope, stamping the check, doing the math, putting them together with a deposit slip, and making the deposit to the bank.   With a pre-authorized monthly or quarterly debit, the transaction happens while we are going about our other business.  It saves effort, and so should result in some savings that justifies giving a discount.  Who can complain?  If you have been to a public meeting, in these situations everyone can and often does complain.  However, if they have the same right as everyone else to pay electronically, like cash or credit at the pump, then your objectors should be few, particularly if you can show actual savings to the Association. 

Must the Board undertake this change by the more laborious amendment of the bylaws, or can this be done by adoption of a rule?  Most list mates seem to think that it can be done by rule adopted by the Board.  Your mileage may vary - depending upon your state, your association's articles or bylaws.  Always check your state law, and then your governing documents, to make sure there is nothing that can trip you up.  And if you want to propose doing this, do your homework, quantify the savings, check with your bank on any other fees, so that when you present the idea, you have fully considered the pros and cons.  If you have already done the math and double checked it, it should sell itself.  

Small Claims Court in Pennsylvania

Most religions are in agreement that we should all love our neighbor, but occasionally we find that in the midst of conflict, the only way to resolve a dispute is to sue our neighbor.  There are times when people feel they cannot walk away from a dispute and must take a principled stand.  The court system since time immemorial, serves as the place to go to settle issues that cannot be resolved by the parties themselves.  That is one part of the lawyer's industry - conflict resolution.  But if for every dispute you had to each hire a lawyer and go through a lengthy procedure - the full blown trial process in the county common pleas court, then for smaller matters (smaller in dollar value, not emotional value), there would be no effective method to bring it to a head and resolve it once and for all.  The parties might be tempted to take the matter into their own hands.  Chaos ensues.  The small claims process was created for that situation. 

In Pennsylvania (outside of Philadelphia, where a slightly different system exists), claims of $8,000 or less may be resolved by the lowest level of the court system, a single district justice in a township office.  The District Justice has limited jurisdiction:  he or she can hear summary offenses (like traffic tickets), landlord-tenant claims, contract and certain other civil claims that don't exceed $8000, as well as handling a variety of criminal matters.  You must file your claim with the District Justice office where either the claim occurred, or where the defendant lives.  The paperwork is simple:  a one page form, available from the District Justice's office or online, where the plaintiff is asked to briefly describe his or her claim.  The filing fee is about $56 at last check.  Once the complaint is filed with the court, it sets a hearing 30-60 days out, and then serves the defendant with a copy of the complaint and asks them to file a written answer.  If the defendant responds and shows up at the hearing, then the matter continues.  If the defendant is served but does not show up, then he or she loses by default and a judgment is entered.  If the defendant is not served, the hearing is delayed until the defendant can be served. 

At the hearing, the procedure is simplified:  the claimant is asked to tell his or her case; and let any witnesses testify to what they saw or heard.  When the plaintiff is done, then the defendant presents witnesses and can choose to testify as to why he or she should not be found liable to pay the claimant.  Each side can cross examine the witnesses from the other side.  Typically the District Justice may ask questions as well, to try to narrow the focus to just the legal issues that he or she must decide.    When each party has had their say, the District Justice will thank the parties and send them on their way with the promise of a decision within several days.  The District Justice decides the case, based on the evidence presented at the hearing, and puts the decision (but not the reasons)  on a one page form that shows who won, and how much.  A winning claimant also is entitled to the filing fees and service fees they have paid out.  This decision is promptly mailed out within a few days of the hearing.  A small claim can therefore be filed, heard and decided within a 60 day period.  That is one of its main virtues - the parties have aired their differences and an independent third party had heard both sides and made a binding decision. 

Each party is entitled to bring an attorney; but at the low end of these types of claims, unless your cousin Vinnie is a lawyer and owes you a favor, it may not be cost effective to hire a lawyer and pay them to prepare the case and attend the hearing and do any necessary follow up.  That's another one of the virtues of the small claims process - you do not need a lawyer.  One or both of you can show up without a lawyer (though if one party is a corporation, then they must be represented either by their officers or a lawyer). 

The end game:  if you win, you get a judgment - a legally enforceable order to pay a specific amount.  If the defendant does not voluntarily pay, then the claimant must have the sheriff go out to the defendant's home and levy on personal property in order to sell it and pay the judgment.  Also, the defendant can appeal the decision within thirty days of entry of the judgment, but that typically requires hiring an attorney to file the necessary paperwork and begin to navigate through the much more complex procedure of a trial court.  If an appeal is timely made, then the next trial is "de novo" - nothing that happened at the District Justice office matters.  There is simply a new trial.  

Having attended an arbitration hearing today, and seen parties representing themselves, here are some recommendations if you will go to small claims court without an attorney: 

            1.  Prepare in advance.  If you find yourself involved in any dispute, it is a good idea to begin making your record - keep track of each conversation, and what each party said - buy a small notebook to keep it organized in one place.  Make a paper trail:  either dated notes, or a follow up letter saying "as we discussed on January 29, 2010, you said you would pay me the $50 you owe me by next week."  A year later, your testimony as to exact dates and times and conversation and specific letters that went unanswered will be more persuasive.

            2.  Arrive on time:  if you are not there when the case is called, you lose. 

            3.  Look your best, and present your case in an organized way.  Usually, a chronological account of what happened is best for most claims.  Have copies of each document you want to present - a copy for the judge, one for the other party and one for you.  Have the original document with you to be able to show to the judge. 

            4.  For each item of damages you claim, you need to prove it:  a witness, a written receipt, a phone record or other writing.  Written proof is more persuasive than a year old hazy memory. 

            5.  Be polite and civil.  To the judge, to your witnesses, to the other party and their witnesses.  It's simply good manners.

When you are in conflict with another, you may always choose to turn the other cheek, but if you find that you must stand on principle, or must right a wrong done to you, then for those claims below the dollar threshold, the doors of justice are open to you to quickly and inexpensively have your day in court.

©2010  Douglas P. Humes