Friday, April 20, 2018
Prince Rogers Nelson was found dead in an elevator in Paisley Park at the age of 57. A toxicology report revealed high concentrations of fentanyl in the singer’s blood, stomach, and liver. Though fentanyl is a legal prescription, it is often used to manufacture knock-off pills, like oxycodone and other painkillers, that are sold on the black market. Minnesota law enforcement announced Thursday that no one would be charged for Prince’s death as they could not determine who actually provided the drug that killed him. Mark Metz, a Carver county attorney, said that they “ have no direct evidence that a specific person provided the fentanyl to Prince.” He also noted that the investigation found “no sinister motive, intent or conspiracy to murder Prince.”
See Joe Coscarelli & Sheila M. Eldred, Prince’s Overdose Death Results in No Criminal Charges, The New York Times, April 19, 2018.
Article on Meeting the Nexus Requirement for the Taxation of Interstate E-Commerce – Sales and Use Tax Rules as Applied to Electronic Commerce in the United States.
Steve M. Windham published an Article entitled, Meeting the Nexus Requirement for the Taxation of Interstate E-Commerce – Sales and Use Tax Rules as Applied to Electronic Commerce in the United States., Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
The Commerce Clause and the Due Process Clause of the United States Constitution govern the taxation of interstate commerce. With evolving technology and the Internet in particular, the landscape of sales and use tax is evolving. E-Commerce is more than simply a new twist on an old idea. With the advent of the Internet and E-Commerce, technology is pushing the envelope of our current tax system. Since the United States has been a country, there has been interstate commerce. However, the Internet is unique in the nature of how it works, who uses it, compliance issues, as well as the overall framework of E-Commerce. The Internet connects somewhere between 817 million to one billion people worldwide, with some 31 million domain names registered.
E-Commerce utilizes cutting-edge technology which has caused lawmakers to reconsider the traditional rules of taxation. Consider that the internet has remote servers located throughout not only across the nation, but the world, and the rules governing taxation of E-Commerce suddenly lose clarity. There is no longer a clearly defined border. The Internet can be accessed nearly anywhere in the world, payments can be made using electronic cash as well as by every other form of electronic payment. The current US tax system is ill-equipped to accommodate the various administrative and compliance issues associated with the proliferation of E-Commerce, as there are currently over 7,500 sales and use tax jurisdictions in the United States.
Among the various concerns of E-Commerce is the issue of whether a company must collect sales tax for an out of state purchase that was transacted online. Conversely, when does a state have the right to collect use tax on an item that was purchased online from an out-of-state vendor? The particular focus of this paper is on the various requirements that must be met to collect the sales and use taxes on e-commerce transactions, as well as the ever-evolving legal landscape which governs interstate commerce.
The United States Supreme Court has held that a physical presence is required to establish the nexus requirement for the collection of state sales tax. Without this nexus requirement a state is not required to collect sales tax on that particular purchase. However, the state to where the item is being sent to for storage, usage or consumption may impose a use tax which is typically equal to what the sales tax would have been had the item been purchased in the destination state. Nexus is of paramount concern to online retailers and purchasers. The US Supreme Court has determined that in order to be Constitutional that the act of imposing the burden of collecting a state’s use tax must conform to the Due Process and Commerce Clause of the US Constitution. The case of Quill Corporation v. North Dakota is the crux of the current sales and use tax collection issue as it pertains to interstate commerce. Yet, while the US Supreme Court decision on Quill Corporation v. North Dakota is the basis for our current interstate sales and use tax laws, many feel that there must be a better way of dealing with this issue.
In order for a state to require a vendor to collect sales tax the state must abide by the Due Process and the Commerce Clauses of the US Constitution. Under the Due Process Clause there must be some minimum connection between the taxing state and the person, property, or transaction it seeks to tax. In order to satisfy the Commerce Clause of the US Constitution the US Supreme Court has devised a four-part test. Under this test, a tax affecting interstate commerce will survive a challenge based on the Commerce Clause if: 1) substantial nexus exists with the taxing state, 2) the tax is fairly apportioned, 3) the tax does not discriminate against interstate commerce and 4) the tax is fairly related to the services provided by the state. The first and fourth prongs are intended to ensure that a tax does not unduly burden commerce. The second and third prongs of the test relate to the goal of preventing discrimination against out-of-state businesses.9 The new Streamlined Sales Tax Program is taking form and has the potential to dramatically change the rules for collection of use taxes by out-of-state vendors. Something to consider is that even though the Streamlined Sales Tax Program has the official support of several states and several major retailers we do not yet know how it will stand up in the courts. It stands in defiance of the United States Constitution and two major United States Supreme Court Rulings.
The Internet has effectively eliminated not only state, but national borders on the information superhighway. As a result, many transactions are at risk of being subjected to tax in more than one jurisdiction — sometimes even in more than one country!
Because of the complexities of the Internet and the fact that technology has outpaced the current tax code, taxation of e-commerce is rarely as simple as it may seem. Additionally, there are a host of other taxes that may or may not be imposed on companies doing business on the Internet.
These in turn affect the overall price structure of e-commerce transactions, which in turn further affect the taxation of e-commerce. The World Wide Web is a tangled a web of legal jurisdictions and tax compliance and enforcement issues.
Thursday, April 19, 2018
Stephen Gardbaum published an Article entitled, Due Process of Lawmaking Revisited, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
Due to the role of ultra-wealthy party donors in its enactment, the recent Republican tax law can be seen as a case study in the systemic corruption of Congress that has concerned many commentators. For the most part, the solutions they have offered have been political in nature. In the short-term, the unpopularity of measures that so disproportionately benefit the very few will likely impose electoral costs that no party can continue to bear. In the longer term, congressional action or constitutional amendment is required to radically reform the current system of campaign finance. Regardless of the prospects of such future political responses, is there a legal solution in the here and now that might be able to deal with any part of the problem the critics have identified? This Article suggests there is. Beyond the very limited scope and deterrent value of the criminal law of bribery, it proposes an independent constitutional response in the form of the Due Process Clause of the Fifth Amendment. Federal statutes that are enacted by means of illegitimate procedures, including the paying or withholding of donations for votes, violate the constitutional requirement of due process in lawmaking and should be invalidated by the courts, whether or not such conduct is, or could be, the subject of a successful criminal prosecution.
Joseph “Tony” Bennett, who passed away last summer, left almost $200,000 to a local animal shelter in his will. The money will help fund the Bennett Saves Initiative, which will collaborate with local veterinarians to spay and neuter animals coming into the shelters. Prior to Bennett’s generous donation, the shelter did not have the resources to spay and neuter all of its animals. The best they could do was to provide new owners with a $75 voucher to help mitigate the cost. Madison County Judge Executive Reagan Taylor said of the donation: “Obviously we were ecstatic. Through his gift in the county, we're going to try and increase our spay and neuter program with these funds.”
See Madeline Farber, Kentucky Man Leaves $190G in Will for Local Animal Shelter: ‘We Were Ecstatic’, Fox News, April 11, 2018.
Updated Statutory Supplement on Uniform Trust and Estate Statutes (Selected Statutes) 2017-2018 Edition
Thomas P. Gallanis has recently published his new statutory supplement entitled Uniform Trust and Estate Statutes (Selected Statutes) 2017-2018 Edition.
This statutory supplement is ideal for use in basic and advanced courses in wills and trusts and for practitioner reference. The 2017-2018 edition includes the updated text and official comments of the Uniform Probate Code, Uniform Trust Code, and more than a dozen other acts relating to the field of trusts and estates, including the Uniform Trust Decanting Act, Revised Uniform Fiduciary Access to Digital Assets Act, Uniform Powers of Appointment Act, Uniform Principal and Income Act, Uniform Prudent Investor Act, Uniform Custodial Trust Act, Revised Uniform Anatomical Gift Act, Uniform Prudent Management of Institutional Funds Act, Uniform Parentage Act, Uniform Premarital and Marital Agreements Act, Uniform Health-Care Decisions Act, Uniform Simultaneous Death Act, Uniform Transfers to Minors Act, Model Marital Property Act, Model Protection of Charitable Assets Act, and the amendments to the Uniform Fraudulent Transfer Act which is now renamed the Uniform Voidable Transactions Act. The book includes relevant provisions of the Restatement Third of Trusts and Restatement Third of Property, as well as selected prior versions of sections of the Uniform Probate Code and Uniform Principal and Income Act. The book is ideal for teaching basic and advanced courses in wills and trusts. It is also ideal for practitioner reference.
Stan Lee, one of the inspirational founts that gave birth to the modern Marvel Universe and characters such as Blank Panther, Spider Man, and the X-Men, has always lived in a world populated by all-power villains and valiant heroes. But, these characters are imaginary. Today though, Lee is rumored to have attracted a following of real-life villains set on siphoning his wealth while keeping him a prisoner in his own home. After the death of his wife, Joan Lee, suspicions arose concerning Lee’s dwindling bank accounts and there were even some reports that a former associate stole his blood to sell to fans. The Hollywood Reporter recently released an investigative report claiming Lee’s daughter was subjecting him to elder abuse. Despite these allegations, a recent interview found Lee in good spirits and with him saying that he is “the luckiest guy in the world. Nobody has more freedom.”
See Ben Widdicombe, Is Stan Lee Being Held Prisoner by Real-life Villains?, The New York Times, April 13, 2018.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Wednesday, April 18, 2018
Hatim Hussain published an Article entitled, Reinventing Regulation: The Curious Case of Taxation of Cryptocurrencies in India, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article:
Nearly twenty-five years ago, the internet disrupted the world and started a new era of technological supremacy. Today, with the rise of cryptocurrencies and its underlying technology, we stand at the helm of another such revolution. Cryptocurrencies like bitcoin are decentralised, digital currencies relying on a peer-to-peer network which operates without the need for a third-party intermediary like the Reserve Bank of India. Coupled with lack of regulatory guidance, its unique technical aspects create huge complications in its taxation. While much ignorance still prevails in respect of cryptocurrencies, countries around the world have finally started taking notice and acting upon it. This paper focuses on what cryptocurrencies are, why they are important, and the prevailing regulatory structure concerning them. It overviews the complete landscape for taxation of cryptocurrencies like bitcoin, analysing the indirect and direct tax structure, particularly after the implementation of Central Goods and Services Tax Act, 2017, while also addressing the issues concerning the evasionary practices. The findings help in assessing the regulatory aspects in light of the technological, economic, social and financial forces, and establishing a set framework for taxation of cryptocurrencies.
According to a recent report released by UBS Global Wealth Management, 56% of married women leave the financial planning and investment decisions to their husbands. This trend carries through to millennials as well, with 61% of younger women abstaining from serious involvement in household finances. While this hand-off approach may work well in marriage, many women find themselves woefully unprepared to handle their own finances subsequent to a divorce or the death of their spouse. Some discover previously unknown debts, secret spending by their spouse, and hidden accounts. Most women who have suffered through such an event encourage other women to get involved and break the cycle of financial abdication. These women practice what they preach, as eight in ten women who have been widowed or divorced take a much more active role in the financial decisions in their current relationships.
See Suzanne Woolley, Rise of ‘Grey’ Divorce Forces Financial Reckoning After Age 50, Bloomberg, April 13, 2018.
Eldest Children of ‘French Elvis’ Johnny Hallyday Win Legal Battle to Freeze His Assets in Bitter Family Feud over His £100 Million Fortune
Johnny Hallyday, called the “French Elvis,” passed away last December after struggling with lung cancer. Though Hallyday died with a will, it was drafted and executed in the United States, which means it does not apply in France. His two eldest children, Laura Smet and David Hallyday, have been involved in a dispute over the estate, which includes a £100 million fortune, with Hallyday’s widow, Laeticia Hallyday. Laura and David recently gained a legal victory when a French court placed a temporary freeze on several of Hallyday’s French estates. The most important question for the beneficiaries is whether France’s law or US law applies. Under French laws, Laeticia and her two adopted children are entitled to the whole of the estate.
See Charlotte Dean, Eldest Children of ‘French Elvis’ Johnny Hallyday Win Legal Battle to Freeze His Assets in Bitter Family Feud over His £100 Million Fortune, Daily Mail.com, April 14, 2018.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
The Texas Bar, along with Real Estate, Probate and Trust Law Section of the State Bar of Texas, is holding a conference entitled, Advanced Estate Planning and Probate 2018, which will take place Wednesday - Friday, June 13 - 15, 2018 at the Sheraton Dallas Hotel in Dallas, TX. Provided below is a description of the event:
MCLE Credit: 24 hrs (includes 4.75 hrs ethics)
MCLE No: 174004882