Memorial Day

ABC's Of Litigation

ABC's of Litigation

A:  Appeals, Answer and Agreement.  Appeal: 

Almost any outcome in one court can be appealed to the next higher court.  Some decisions of the Justice Court, for example, can be appealed to the District Court, and likewise, a decision of the District Court can be appealed to either the Nevada Court of Appeals or the Nevada Supreme Court. In 2014, the voters of Nevada approved the creation of a court of appeals, and the categories and rules governing which cases will be heard by that court are evolving. Thus, almost no matter what outcome is obtained by one party, an appeal might still be possible the non-prevailing party.  This can cause litigation to drag on for much longer than parties expect when the first initiate their lawsuit. 

Answer: After a Plaintiff files a Complaint, the Defendant is required to file a response, which is usually, but not always an Answer. The Answer will contain a response to each and every allegation contained in the Plaintiff's Complaint.  An alternative to an Answer might be a Motion to Dismiss if the Defendant believes the Plaintiff's Complaint is not properly drafted.  

Agreement:  Oftentimes, a contract (agreement) will have a provision in it that sets forth in which state (jurisdiction), and even which city (venue) a case will be tried.  This is sometimes referred to as a "choice of law" provision.

B: Bankruptcy" might seem like a strange category to consider when thinking about litigation, but it should actually be a very important part of the analysis undertaken when considering undertaking litigation.  If one's potential opponent does not have a good deal of assets, it might prove an effective strategy for them to simply file for protection under the Bankruptcy laws, which might very likely result in a plaintiff receiving nothing for the expenses incurred in undertaking litigation.

C:  Complaint, Candor, Collection. 

As alluded to above, the most typical way a lawsuit is initiated is by one party (the Plaintiff) filing a Complaint with the court.  There are requirements that cover when, and in which court this can be done.  At the most base level, the amount in dispute between the parties will be the primary consideration.  Amounts in controversy in excess of $15,000, for example will mean the Complaint will be filed in the District Court for Nevada. Lesser amounts in controversy will be properly filed in either Small Claims or the Justice Courts.

Candor:  If you choose to have an attorney represent you, he or she has a duty of candor with the court.  This means the attorney cannot lie to the judge, but it does not mean he or she has to simply tell the judge everything, or anything you tell them.  Between an attorney and their client there exists a seal of confidentiality which allows for openness between them, which allows the attorney to assist the client within the law.  An attorney's candor with the court means that they cannot intentionally lie to the court or hide a fact that would cause the court to make an improper ruling. Oftentimes a judge will hear things that, although harmful to one party, will, nonetheless, not be part of the basis for the court's ultimate ruling.  

Collection:  It is useful to keep in mind that just because one party obtains a judgment against the other, does not always, or necessarily mean that the winning party will be able to collect any money.  As discussed above under "Bankruptcy", there are ways for a Defendant to no have to pay a judgment.  In addition to filing for bankruptcy, a defendant might simply not have enough assets, or might have lost their job, or be protected by the law against collection.  One example of this is if the defendant is receiving a pension that might be protected and/or they have filed a homestead on their home, meaning a prevailing Plaintiff cannot force them to sell the home to collect the judgment. If a Plaintiff can get a garnishment order against the Defendant's pay, the law only allows a small percentage to be collected at one time, meaning it could take years to collect all the money due on a judgment.  

Copyright Hans Baldau  

IRS Tipping Payouts

Business is good right now for anybody willing to turn tax cheats in to the IRS. Last year, the Service awarded more than $312 million to tipsters, according to a report released in February. This is exponentially greater than the then-record year of $125 million in 2012. Why? Because the 2018 tax collection results from whistleblowers was revenue of $1.4 billion, compared to $191 million netted from the same efforts in 2017. Last year, one tipster was awarded $100 million for turning in a multi-national corporation.

2019 is not looking to slow down, either. So far this year, the Service has paid out $115 million to whistleblowers.

This surge in payouts reveals that the expansion of the IRS’s whistleblower program is gaining traction. The change was approved by Congress in 2006 and allows the IRS to pay up to 30% of the revenue collected to the tipster. The large percentage is usually applied in cases of over $2 million, while smaller percentages are applied in smaller cases.

Last year, the IRS paid out only 186 small-program awards totaling about $12 million, an average of $64,500 per payout. The larger cases received payouts of $300 million on 91 cases (up from just 15 cases in 2015).

Notably, the whistleblower need not be an employee or in any significant way connected to the taxpayer they are turning in. A tip may be as simple as a neighbor turning in someone they notice with a new car or lavish vacations, but no employment.

It is also important to note that the whistleblower does not have to be completely clean, either. While helpful, the law doesn’t prohibit them from receiving a benefit unless they were architects of the cheating. The most notorious example of this was Bradley Birkenfeld, who blew the whistle on UBS and received a $104 million payout after serving his term of 30 months in prison for his role in the scheme.

However, as simple as qualifying may seem, there remains the hurdle that the IRS rejects about 75% of claims right away. This can be for a lack of supporting evidence, plausible alternate explanations, or simple the size and effort required to pursue the tip.

Another caution for any would-be tipsters: a payout can take a very long time. The February report states that payouts take at least seven years, while five years is considered “fast.”

Most whistleblowers seeking awards us specialized tax attorneys to prepare their submissions. Those attorneys may charge an up-front retainer or up to 40% of the resulting payout to the tipster. Using an attorney can ensure that the tip and materials are packaged in a manner that is more likely for the IRS to pursue the case. The packaging can include account statements or other evidence that the attorney knows the IRS would want to see.

And of course, those who receive these payouts … must pay income tax!

Communication in the Work Place

Communication is the core to a productive and successful work environment.  Communicating is vital between co-workers; it prevents misunderstandings and conflict and creates a healthy ,peaceful environment. Communication gives you the tools to understand your co-workers and their needs to build a successful business.  It is also vital for client relations.  It is very important to communicate with clients, to understand their needs, and to resolve conflict.  Presenting new information and discussing with clients different options can be the difference between a satisfied client and an unhappy one. Good communication will keep everyone connected to the mission and vision of the projects for a successful future for the business. 

Are you Ready for Retirement?

When Social Security was created, it was meant to supplement a person’s other retirement savings.  Too many Americans today, however, do not have other retirement savings and do depend on Social Security as their only income in retirement.  Many of those who had retirement savings were forced to tap into those accounts during the recession in the early 2000s and have not been able to rebuild their retirement accounts.  It’s not too late; take steps now to save something for your retirement.  There are a number of options available for retirement savings.  For those whose employers offer a 401(k) or similar program at work, participation in those programs offer great tax advantages.  There are traditional Individual Retirement Accounts (IRA) that offer tax savings now or Roth IRAs which offer tax savings later.  If you own your own business there additional opportunities and programs available to you.  Depending on your income level, you may even qualify for a small tax credit called the “Savings Credit”.