CA Tax Preparer Standard to go National

Tax season is one of the most stressful times of the year and filing our taxes is definitely one of the most important financial transactions we'll do. So, in who's hands do we entrust our most delicate and important personal information? Well, that the question the IRS Commissioner wants answered. Except in the state of CA, anyone, anywhere, regardless of training and expertise can charge you to complete your tax return. Doesn't make much sense, so Doug Shulman, IRS Commissioner, has called for a comprehensive review of the paid tax return preparer industry. The general requirements to prepare federal tax returns and get paid will look much like the regulatory laws that CA has had in place since 1996 in order to prepare a California state tax return.


Those requirements include significant training and the passing of a basic competency test; as well as 10-15 hours of continuing education annually. Then you will register with a national database where people can lodge complaints and also check your record. Additionally, all preparers will be subject to compliance checks to ensure that the preparer is following the rules. Of course, CPA's, attorneys, and enrolled IRS agents will still be exempt and are considered competent by way of their profession and prior training.


I find it interesting that attorneys are exempt, mainly because, while I've personally prepared taxes in law school, a majority of attorneys never had that experience. And most probably will never even prepare their own taxes. However, I guess if we can be trusted to research the rules, laws, and procedure in every other area of law, taxes should be no different. Just make sure your malpractice insurance is paid up!


And no worries paid tax preparers who don't live in CA; until your state catches up with the times, you can still prepare state tax returns. 

Can you say Res Judicata?

The 11th Circuit District Court of Appeals heard arguments on Tuesday about whether or not a finding by the Florida Supreme Court was applicable in their own federal trial. The case is Brown v. R.J. Reynolds Tobacco Co.; the litigation is something we've seen quite a bit over the past 20 years: a widow is seeking damages for the death of her husband due to smoking and lung cancer. The causal effect of smoking to lung cancer and other such diseases has been proven in a court room many times. More specifically, the Florida Supreme Court ruled that the misrepresentations of the tobacco companies and the effects of cigarette smoke no longer need to be proven; since these things have already been so well established in prior litigation. After several class actions in Florida, the FL Supreme Court held that prior jury decisions in two instances can no longer be denied by the tobacco companies. Therefore, the tobacco companies cannot say that they "never made a false statement"; nor can they deny that smoking causes aortic aneurysm, bladder cancer, coronary heart disease, and lung cancer in a Florida Court.


In the Brown case, the plaintiffs are arguing that the decision by the Florida Supreme Court should be applicable to their federal civil trial in the 11th Circuit. The defendants argue that it's two different jurisdictions and that the decision is not specific enough to establish negligence without additional proof.


I'm forced to retreat to the federal civil procedure definition of res judicata learned in law school. The three elements of res judicata are: (1) a final judgment on the merits; (2) a second suit involving the same cause of action; and (3) identical parties or parties in privity. It would appear that since the defendants are the same, the action is the same, and that it was determined by a final judgment on the merits, the defendants might be out of luck. The idea of res judicata is to speed up the process of judgment and to prevent the same cause of action from being re-litigated over and over, tying up our judicial system. However, just because it has been proven in court that the tobacco companies have made false statements and that their product has negligently caused such horrific diseases leading to the deaths of individuals, does it stand that ALL smokers should get a free pass to damages?


The compromise that the judges seem to be leading toward with all their questions and hypos during oral arguments is that while the tobacco companies cannot argue they were never negligent; they certainly should have the right to argue that they were not negligent with regard to a specific plaintiff with specific factual differences from the plaintiffs in the other suits. Since no two scenarios are the same and since causation is a MAJOR element of negligence; the companies should certainly be allowed to convince a jury that while they may have been negligent with respect to some individuals; they've not been negligent towards ALL individuals.

Supreme Court Reviews 20 Year Old Case Due to Inappropriate "Gifts"

A man convicted of rape and murder a little over 20 years ago might possibly get another trial. And not for the typical reasons that a new trial is granted, like new DNA evidence or innocence; but because of improper conduct of the judge, bailiff, and the jurors. What conduct could be so egregious as to warrant the Supreme Court further delaying this man's execution? Apparently, the jurors decided to give out chocolates, either during the penalty phase or directly thereafter, of a questionable nature to both the judge and bailiff. The judge received delightful penis shaped chocolates while the bailiff received breast shaped chocolates. What was behind these unusual gifts is the center of the Defendant's argument for a new trial or at least an evidentiary hearing on the matter. Possibly, there was not only inappropriate gift-giving, but also ex-parte meetings and other such non-sense. And the Defendant wants to get to the bottom of it. 

While it would be a true disservice to the community where this man committed his crimes to release him or even re-hear his case; we certainly cannot tolerate this type of conduct in our judicial system. Moreover, the Defendant has been trying for quite some time to get an evidentiary hearing to determine exactly what occurred and what was kept from him during his trial.

The true bulk of the Supreme Court decision is not to grant a new trial, however, but merely to send it back to the Eleventh Circuit to determine whether an evidentiary hearing is warranted based on information the Defendant discovered post-trial. If that hearing is granted and the Defendant can produce enough evidence to show that the actions of the judge and jury during the trial were inappropriate; only then will he get the opportunity to have a new trial. Of course, a new trial also does not mean that he won't be convicted again. However, the waste in judicial resources could have easily been avoided had this behavior just not occurred in the first place.  Do we really need to give people more reasons to distrust the legal system? 

Is Sexting Free Speech?

The freedom to send sext? This one really creates a challenge to the application of Constitutional Law. I am reminded of my Constitutional Law class where my professor attempted to challenge our newly budding legal minds with crazy scenarios; not yet challenged in the Supreme Court to see if we could analyze how the Court might come down on the issue. I have to say; none of us came up with the scenario of teenagers' right to sext. In all fairness, most of us were over the age of 25 and therefore did not get the opportunity to sext prior to the age of 18.  And for those of you still confused; sexting is generally defined as the act of sending sexually explicit messages or photos electronically, primarily between mobile phones. Thankfully, it's not yet in the dictionary. However, its definition and place on the list of inalienable rights is being challenged in a Federal Pennsylvania Court today.

It's important to note that up and until this point; sexting was labeled as a crime; as violating the child pornography statutes on both the federal and state level. We're talking jail time, monetary penalties, and a lifetime as a registered sex offender. Sounds pretty extreme for the actions of a bunch of horny teenagers; misguided as they may be about the ability of their "private" messages getting to the general public. However, is it really a constitutional right to send naked pictures of yourself to another when you cannot even vote, drink, or in some cases drive?

Essentially, the ACLU (the party representing the teens) will likely argue that sexting does not meet the Supreme Court's definition of child pornography. Under the US Constitution, child pornography, unlike regular pornography, is not protected under the right to free speech, because it involves child endangerment. However, in New York v. Ferber the Supreme Court held that computer generated child pornography was protected under the First Amendment. Therefore, if the children are creating the explicit photos and text themselves, are they also endangered?

Perhaps there could be a middle ground. I think most parents would argue that they do not wish naked or half naked photos of their children circulating the internet or phone messages, regardless of how they were obtained. On the other hand, should those same children be prosecuted for distributing child pornography and therefore become lifetime registered sex offenders? Perhaps now is the time for the legislators to take note and pass laws to protect teens from the distribution of their photos without completely ruining their lives.

Below is an interesting, non-legal, discussion of sexting as it applies to child pornography US Supreme Court decisions:

"Sexting" - A Legal Analysis of Supreme Court Cases

California State Court Closures

A note to all those looking to file next week. The San Diego County Superior Courts; as well as the other Courts in the State will be closed Monday AND Wednesday next week. The State started closing the Court, as well as all administrative offices, on the third Wednesday of each month back in September. Now there will be an extra day taken out of this third week due to the observance of Martin Luther King, Jr. day. Given the shortened work week, lines will likely be long and patience short. So, try to get your filing done by this Friday or if you can; wait until next Friday. Tuesday next week will likely be swarming with people trying to make filing deadlines between the two closures.

The public is urged to visit the court’s Web site at sdcourt.ca.gov to handle traffic tickets or obtain court information.

Is Marriage a State or Federal Issue?

As the trial for gay marriage gets underway in San Francisco, many are concerned and questioning whether this is the best path to the end goal of legalizing gay marriage. It doesn't matter whether you are for or against gay marriage, taking the issue to the federal court system means that it will ultimately end up before the US Supreme Court and the opinion of 9 people will effect every state in the nation for a very long time. US Supreme Court decisions are not easily overturned, especially as long as the same justices are presiding over the Court. On the other hand, if each State has its own rules and legislation on the issue, there is not much uniformity throughout the US, making it difficult for same-sex couples to move about the Country. 

The issue of the right to marry has been brought up many times through our nation's history; most notably in the US Supreme Court decision of Loving v. Virginia; where a white man and a black woman were forbidden the right to marry in the State of Virginia due to legislation called The Racial Integrity Act. While many will argue that the substance of the case is very different from what we're facing today, many of the legal issues are identical. That issue is Equal Protection. Equal Protection works on two different levels. The passing of the 14th Amendment not only provides that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws"; but it also extends the protections under the "Bill of Rights" to the States. Meaning that the first 10 Amendments not only apply to the Federal Government, but also apply to the State Governments. 

Therefore, the resolution of many issues that cross state lines end up being determined by the US Supreme Court instead of the State Supreme Courts. It's a remarkable concept that local actions by individual states can be overseen and overruled by a federal entity. On the other hand, when the issue affects the civil rights of Americans differently depending on the state that they currently reside, who else should make that determination but a single universal entity? And even more challenging is the thought that in this global market and advancement of technology, is there ever going to be an issue that is fully resolvable by just the states? As someone who has moved across the Country from PA to CA; I can say that almost all the distinctions between the laws of the two states weighs heavily on my decision to stay here or move somewhere else. So where do we draw the line? 


Of course, I'm being dramatic and there will always be issues that only the states can govern, because they do not affect fundamental constitutional rights. But how we determine which rights are fundamental and which are not will shape much of the debate in this ongoing trial.

And since facts often determine whether legal precedents are followed or dismissed. The plaintiffs must convince the judge that the issues and the facts are similar to Loving v. Virginia, allowing the judge to follow the US Supreme Court precedent. However, if the facts of the two cases are too different then the precedent can be distinguished and dismissed.

Transition

I am starting a new blog space to give me some more options and hopefully to expand your reading experience. I have added the final blog I wrote at Merchant Circle and the link from the title is to all my prior blogs, should you choose to read them. Welcome to our new space and please feel free to comment and help us improve!

What will They Label Next?

Many thought that when New York City started putting the calorie and fat content labels on all chain restaurants that the government was stepping over the boundary of consumer choice and capitalism. However, in my recent travels, I've noticed many restaurants across the US following suit and providing the nutritional content for their entrees. 
Now, Mayor Newsom, from San Francisco, is pushing new legislation that will force cell phone companies to label the amount of radiation that their cell phones produce. Sounds reasonable, and he feels that it will probably even catch on throughout the country. But how much information is too much and will people even care or understand what the labels mean?

Right now, the FCC requires that cell phone manufacturers ensure their phones are at or below a Specific Absorption Rate level of 1.6 watts per kilogram of body tissue to be legally sold in this country. Some are well below that level; and the FCC ensures that those levels are extremely safe for consumer usage. So, with that type of legislation in place to protect us, do we really need the extra labeling? After all, how many people still read labels on their food or the warning labels on our favorite consumer products? Generally we get books and books of information with our electronic devices, but, at least speaking for myself, we just toss those to the side to start playing with all the buttons.

The Environmental Working Group, who is supporting this legislation says that there is only limited research available on the health hazards of cell phone radiation and that more public information can only be positive. All good points, but if we don't know for sure what levels are safe, according to their research, and the public is already inundated with too much information, then maybe the new label isn't positive. 

Until we know more than the FCC already does about the level of safe radiation, then I cannot imagine that forcing companies to label their cell phones would do any good. If the experts cannot agree on safe levels of radiation, then consumers certainly won't be able to make an educated choice based on the numbers.


For more discussion:


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