Thursday, November 26, 2020
This year, I am more thankful than ever to be a law professor. After sixteen years of teaching, I was facing long-term career uncertainty, having to choose between the un-alluring prospects of returning to practice or trying to eke out a living through a string of visiting appointments. Appropriately enough, I got my job offer on February 29th, a date that only comes around every four years.
So, this year I give thanks to my colleagues at OCU, who hired me and welcomed me to their community. Thanks to the amazing administration and staff that made it possible for me to teach face-to-face this semester in a classroom setting that was as close to ideal as circumstances and technology could get us. Above all, thanks to my students, with whom I was able to explore the joys on contracts law despite the most challenging first year of law school imaginable. Thank you for showing up, through the pandemic, an ice-storm, noisy elevator renovations, and election madness, and thank you for being smart and taking precautions so that very few of us got sick. I look forward to another semester with all of you.
Thanks to my co-bloggers, Nancy Kim, Sidney DeLong, and Mark Edwin Burge, to our wonderful guest bloggers, and to our readers, especially to those of you who comment or correspond. We appreciate hearing from you and learning from your experience and expertise.
And now it is on to a pescatarian Thanksgiving!
Tuesday, November 24, 2020
On Thursday, we blogged about a wrongful death claim filed against Tyson Foods. Plaintiff alleged, among other things, that managers at the plant established a betting pool to see who could come up with the best estimate of how many workers would get infected with COVID.
On Friday, according to this CNBC report, Tyson announced that it was suspending without pay the managers named in the complaint and that it had hired former U.S. Attorney General Eric Holder to investigate alleged misconduct at its facility in Waterloo, Iowa. The report makes no mention of the role the ContractsProf Blog's expose had in prompting Tyson's response, but the timing could not be coincidental.
Monday, November 23, 2020
A couple of weeks ago, the Wall Street Journal published an article (behind a pay wall) on unusual contingencies in recent real estate contracts. According to the article, the tight housing market has given sellers a bargaining advantage and made them feel more comfortable asking the buyer for more than just money. One seller, for example, made her acceptance contingent on the buyer agreeing to hang a fake skeleton outside the front door 365 days a year. The seller apparently liked to dress the skeleton up regularly, so that sometimes it sported a snazzy green body suit and other times a more respectable white blouse. Other sellers made their acceptances contingent upon the buyer agreeing to take their pets. One seller even asked the buyers to take care of feral cats on the property and left cans of cat food and paper plates so the cats wouldn’t cut their tongues on the cans. Another seller asked the buyer to keep her husband’s ashes in a safe behind a bedroom closet – and the buyer agreed!
Are these continuing obligations enforceable? I think that most of these would be considered against public policy and unenforceable. I’m a bit rusty on my property law, but generally the law likes a sale to be a transfer of interests (at least after it is fully paid) without any ongoing ownership claims. Yet, these types of clauses do raise some interesting questions about moral obligations created by promises even if they aren't legally enforceable.
November 23, 2020 | Permalink
Saturday, November 21, 2020
Friday, November 20, 2020
Now we are not your typical website that will believe whatever palaver the company serves up about its motivation for including the cake recipe. So we will not endorse the idea that the aim was to get consumers to more carefully scrutinize the ToS. If you want that fairy tale, you can read it here. But the real reason for the recipe is more obvious from stories you can read here and here. The rollout of NBC's streaming service was delayed. It had to do something to get people to notice the rollout and to distract from the ugliness that delayed it. So, some clever marketing person came up with the cake dealy, and they threw it into the ToS. Cute.
Make no mistake, the chocolate cake recipe may be original to "Grandma," but the ToS are pure, nasty, corporate boilerplate, including:
- terms that can be modified by updating the ToS online and that online modification counts as "notice";
- provision that a consumer's continued use of services after a modification will be treated as assent to modified terms;
- expansive claims to licenses to make use of uploaded user content, including an express renunciation of any expectation of privacy or confidentiality with respect to such content;
- warranty disclaimers;
- limitations of liability;
- an arbitration clause;
- a class action/class relief waiver;
- a provision that consumers will not disclose of facts relating to arbitration
Bake that for 30-40 minutes at 325 degrees, and Grandma will no doubt box your ears for bargaining away your legal rights so that you can stream Supernatural.
Thursday, November 19, 2020
Yesterday, we linked to and summarized some of the findings of a New Yorker article by Eyal Press, highlighting Eugene Scalia's Labor Department's laissez faire approach to regulation of health and safety violations during the COVID pandemic.
Today, we noticed this related article from the Huffington Post by Sanjana Karanth(h/t Ben Davis). The article reports on a wrongful-death lawsuit filed by the family of a worker at a Tyson plant in Iowa who died from COVID, allegedly after exposure at work. The plaintiff was one of five workers from the same factory who died from COVID; about 1000 employees -- over a third of the workforce -- were infected. The complaint alleges that managers at the plant set up a betting pool in which managers would try to guess how many workers would become infected. The complaint also alleges that the plant manager called COVID "a glorified flu" and instructed workers to show up, even if they had symptoms.
And now the link to yesterday's post: here is the closing paragraph of the article:
The Occupational Safety and Health Administration and the Centers for Disease Control and Prevention issued guidance at the beginning of the pandemic recommending that meatpacking companies put up physical barriers, enforce social distancing and install more hand-sanitizing stations, among other steps. But the guidance is not mandatory and is mostly unenforceable.
Wednesday, November 18, 2020
We have posted in the past (as part of our virtual symposium) about the extent to which workers in essential positions have been left without legal recourse as their employers fail to take adequate precautions to protect them from COVID infection. Rachel Arnow-Richman covered the topic here and here. Jeff Sovern and Ben Davis posted about the possibility that third parties who patronize businesses can be without legal recourse if they contract COVID due to the business's lack of precaution.
One response to businesses failing to take reasonable precautions might be that individual suits seeking to hold employers liable for workplace infection are inefficient and are unlikely to succeed because the odds are stacked against lone employees who sue large corporations. The better response would be government regulation and sanction of negligent employers under the authority of the Occupational Safety and Health Administration (OSHA).
Unfortunately, according to this New Yorker article by Eyal Press, the Trump adminsitration's Labor Secretary, Eugene Scalia pictured), has no interest in investigating companies whose workers are exposed to COVID at work. According to the article, like many other Trump appointees, Mr. Scalia previously made a career of opposing the policies of the agency he now heads. Unlike some of the others, he is competent, experienced, and an expert in the legal issues that his agency addresses. His take on those legal issues is highly anti-regulatory. Some highlights:
- In response to over 10,000 complaints regarding OSHA violations since the pandemic began, the Department of Labor (the Department) has issued a grand total of two citations;
- On April 10th, the Department issued a memo relieving employers of the duty to keep records about "work-related" infections;
- That memo drew protests and so withdrawn, but it was replaced this Fall with one saying that employers do not have to report COVID-19 hospitalizations unless they occur within twenty-four hours of a workplace exposure (which almost never happens); and
- The Department now has the fewest inspectors it has had in 45 years, and 42% of its leadership positions are vacant.
The article is long but highly recommended.
Tuesday, November 17, 2020
No recounts are happening here, as we have full confidence in the reliability of OUR numbers! Welcome to this week's edition of the Tuesday Top Ten, with data courtesy of our vote-counting friends at SSRN.
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Riddle me this: what is the opposite of the Bermuda Triangle?
Answer: Corona Winter in Oklahoma City.
Because when you combine munchies-inducing medical marijuana joints on every corner, easy access to Trader Joe's, and obstacles to exercise indoors or out, unwelcome things that disappeared last summer (like my love handles) return.
Which is just our way of saying that we have neglected to plug the on Taboo Trades podcast, hosted by Kim Krawiec (pictured, right) , which is about things we maybe shouldn't be selling but do anyway . The latest episode, on Marijuana Legalization, is available. Kim interviews Pat Oglesby on pot taxes.
Sunday, November 15, 2020
From the sublime (Joni Mitchell) to the ridiculous.
Mitchill v. Lath is about a collateral oral agreement to remove an icehouse from a neighboring property as part of a real estate transaction. I make much of the fact that my students probably have no idea what an icehouse is. I knew there was a band called Icehouse. Actually, I knew of two bands called Icehouse. I play short excerpts from each band and invite the students to imagine how annoying it would be to have them on the neighboring property.
But I didn't know until now that one of the bands has a song called "No Promises." Enjoy, even though it does not seem that the promise at issue in contractual:
h/t Edward Swaine
Friday, November 13, 2020
We have it on good authority that Joni Mitchell's song "California" is about the parol evidence rule. When she says that Paris is "too old and cold and settled in its ways," she is really talking about New York. When she says "cold," she is referencing the icehouse in Mitchill v. Lath, when she says "old," she is noting that Mitchill is an old case, and the fact that her name is Joni Mitchell is a dead giveaway, even though she tried to fool us by varying the spelling. The lyric "Oh, but California . . ." clearly indicates her preference for Judge Traynor's approach to the parol evidence rule. Listen for yourself:
Thursday, November 12, 2020
Taxing the Transition from Status to Contract in Family Relations, Part IV
Sidney W. DeLong
This is the final installment of a four-part blog post. Part I introduced the relation of status and contract and introduces some basic income tax rules as they relate to intra-family wealth transfers. Part II hows how creating contracts with consideration between family members can convert non-taxable gifts into taxable income and capital gains into ordinary income. Part III analyzes the income tax effects of recovery under theories of promissory estoppel and restitution. Today's post shows how intrafamily contracts can lead to income splitting and double taxation, with both positive and negative tax effects. It also discusses the risk of converting non-taxable imputed income into taxable income.
The risk of double taxation and the benefit of income splitting.
To the extent that the taxable judgments obtained in both Pyeatte and Watts are paid out of funds that had already been subject to federal income taxation, they also illustrate the risk of double taxation. The risk of double taxation is related to the conversion of gifts into taxable income and arises primarily in family settings. In its simplest form, A earns taxable income and, after paying taxes on it, pays part of that income to B, who takes it as income on which B must also pay tax. Both A and B have paid income tax on the same dollars. If A had simply given the money to B, it would have been taxed only once. The total tax paid by A and B will be greater than the tax paid by A.
But splitting income between A and B may lower the total tax if the amount paid by B will be deducted from A’s income. A will not pay any tax on the dollars A receives that are paid to B. If B’s marginal tax rate is less than A’s, the total tax paid by A and B will be less than the tax would have been paid by A.
Thus, whether family taxpayers will suffer from double taxation (bad) or benefit from income splitting (good) turns on whether the payment to B is deductible as a business expense by A. Here, as always, substance will dominate form. A parent who pays a fake wage to a child will create double taxation because the payment will not be deductible. A parent who pays a real wage to a child for real work done in the business that earned the parent’s income will be able to deduct the wage and reduce the family’s overall tax burden.
Double taxation and income splitting are related to the concept of imputed income. Taxpayers are not taxed on the value of the unsold benefits of their own labor. The normal contributions of family members to each other in the form of labor and other services are not taxable as they would be if they were exchanged for like services with outsiders. The value of child-care, housekeeping, maintenance, vegetable gardening, and the like are not taxable income to the recipients. The tax treatment of imputed income extends to the taxation of family businesses, including subsistence farms and restaurants, which often employ children and spouses in an enterprise whose net income will be taxable. Although such family contributions to the enterprise is non-taxable imputed income, the family may choose instead to formalize the relationship by paying a wage to the family worker. Because such wages will be deductible to the family’s taxable income, payment of family members will lower overall taxes by splitting the income between two taxpayers (the child and the primary taxpayer).
Tax burdens usually attend the conversion of imputed into taxable income when divorce splits a family or family-like unit. Settling up may be a taxable event in which income is “recognized” by the IRS. Imputed income may be converted into ordinary income when a divorcing spouse receives compensation for housekeeping and other services as part of the settlement. Thus, in Watts and Pyeatte, the imputed income generated by years of unpaid household services was recognized and compensated in cash, but the award may have been diminished by tax liability to the recipient.
The movement from status to contract in family relationships is sometimes seen as empowering, as a liberation from patriarchal, tradition-bound ways of life and an emergence into the autonomy of the marketplace. But family status is currently encouraged, protected, and rewarded by American tax law, where informal sharing is tax-free. When family members renounce their family status and opt into contractual relations, they may simultaneously, if inadvertently, assume the new status of individual tax-payers with unintended tax liability.
Wednesday, November 11, 2020
Taxing the Transition from Status to Contract in Family Relations, Part III
Sidney W. DeLong
This is the third of a four-part blog post. Part I introduced the relation of status and contract and introduces some basic income tax rules as they relate to intra-family wealth transfers. Part II hows how creating contracts with consideration between family members can convert non-taxable gifts into taxable income and capital gains into ordinary income. Today's post analyzes the income tax effects of recovery under theories of promissory estoppel and restitution. Part IV shows how intrafamily contracts can lead to income splitting and double taxation, with both positive and negative tax effects. It also discusses the risk of converting non-taxable imputed income into taxable income.
If a family promise is not construed as a bargain contract and the promisee recovers under a theory of promissory estoppel, then whether the award is taxable will turn on whether it replaces income, such as lost wages or lost profits, that would have been taxable. This can be illustrated by two familiar, non-family cases. In Neiss v Ehlers 899 P.2d 700 (Or. App. 1995), an optometrist sought reliance damages for breach of an unenforceable agreement to form a business. She had given up a profitable practice in Portland and moved to Ashville, where the parties ultimately failed to agree to terms. Insofar as an award would have replaced her lost wages or fees forgone by closing her practice, it would have replaced taxable income. If it had compensated her for moving expenses and other out of pocket losses she incurred by moving from Portland to Ashville and back again, however, it should not have been taxable.
The promissory estoppel recovery should also be taxable if forgone lost profits are used as the measure of the “reliance” loss, as in Walters v Marathon Oil Co., 642 F.2d 1098 (7th Cir. 1981), where the court used that theory to award lost profits from repudiation of a contract to supply petroleum products to a service station. It reasoned that the plaintiff’s reliance caused it to lose the returns on “forgone investment elsewhere” with another supplier. Such commercial profits recovered as damages for promissory estoppel will be taxed as ordinary income.
Sometimes it is not so obvious whether a promissory estoppel award “to prevent injustice” is designed to replace taxable income. In Ricketts v Scothorn 17 N.W. 365 (Neb. 1898), Grandpa gave Granddaughter a promissory note for $2,000 with the expressed hope that she would quit her retail clerk job in reliance on the financial security afforded by the note. She did quit, but he failed to pay the note before his death and she sued his estate to enforce it. The court enforced her claim against his estate under a theory what would come to be known as promissory estoppel.
If Ricketts were litigated today, how should her recovery be taxed? Should it be a non-taxed gift because that was Grandpa’s clearly expressed motive and because it was not given to her in an exchange of any sort? It would have been non-taxable if he had just handed her the cash. Should it be construed as a non-taxable award of damages replacing out of pocket financial losses that she sustained from her detrimental reliance? That depends on what harm she shows. For example, if the award is calculated to replace the (otherwise taxable) wages she forwent when she left her job, it might be held to be taxable income. Granddaughter’s lawyer should endeavor to characterize her recovery as compensation for pecuniary or non-pecuniary losses rather than as replacement for lost wages at her job.
Conrad v Fields, Unpublished Opinion (Minn. App. 2007) presents an even closer case. A law student recovered the cost of law school from a philanthropist who had promised her he would pay her way through school, thereby inducing her to leave her job and enroll in law school. The award of her tuition does not appear to be taxable earned income because it is not the bargained for consideration for goods and services or otherwise “earned” by anything plaintiff did at the defendant’s request. Rather the damages replace for out of pocket expenses and debt incurred by the plaintiff because of the defendant’s tortious breach of a reliance-inducing promise. Thus described, the damages do not replace otherwise taxable income. The accretion to her wealth is large but not taxable because the transaction appears to have been a non-taxable gift.
However, if she calculated damages on the basis of her lost income from the work that she forwent in reliance on the promise, she risks having the award characterized as taxable income. The contract analysis might prove dispositive of the tax question here. Which was it?
Restitution to Prevent Unjust Enrichment.
As is the case with claims for promissory estoppel, family claims for restitution may or may not generate taxable income, depending on whether they result in compensation or reparation. In re Estate of Zent, 459 N.W.2d 795 (N.D. 1990) held that an aged caregiver stated a claim for restitution against the estate of an unrelated decedent for whom she had provided personal care-giving services. She performed the services without an explicit contract or other agreement for payment. She sought to recover the reasonable value of the services to the decedent, measured by the market value of the wages he saved by having her do the uncompensated care-giving work.
Under her litigation theory, the recovery of the value of her services will be ordinary income to the plaintiff even though it is characterized as a payment to prevent unjust enrichment. Of course, the tax liability is an unfortunate result of recontextualizing an equitable claim as a commercial one. If the decedent had left her a sum of money in his will in gratitude for her services, the bequest would not have been taxable to her because it would have been a non-taxable gift. Because he failed to do so, she will be taxed as if she had been a nurse earning wages in his employ.
In In re Marriage of Pyeatte, 661 P.2d 196 (Az. 1983), a divorcing spouse stated a claim for restitution but not for breach of an express contract to provide financial support during post-graduate education. Much of the tax result depends on what theory of plaintiff’s case prevails. Would recovery of these amounts constitute income to her? Or would it be equivalent to the repayment of a loan of funds, producing no income? If the parties had simply performed their promises, no income tax consequences would have resulted from their expenditures on each other’s behalf because no taxable event would have occurred. Does formal enforcement of the contract claim, transmute the financial support they provided and received from imputed income into taxable income?
In Watts v Watts, 405 N.W.2d. 303 (Wisc. 1987) the court recognized a non-marital cohabitant’s claims for value of services provided during relationship under both express contract and restitution theories. These services included childcare, “homemaking services,” and office work in defendant’s business.
Had she succeeded on her claim of an implied marriage, and if the property award would not have been taxed because division of marital property is not a taxable event: it does not convert imputed income into taxable income. But the court rejected her claim of implied marriage rights.
Plaintiff sought payment both as compensation for her labor and on a theory that she acquired a property interest in the couple’s wealth. If the recovery represented the value of her labor, it would be taxable to plaintiff as ordinary income. If the award represented the value of a business partnership between the parties, it would be taxed under partnership tax laws.
“Divorce” of non-married cohabitants can be a tax disaster if it converts into taxable cash the non-taxable value of imputed income generated, shared, and consumed by the parties during the relationship. Whether payments made in such cases is taxable ultimately depends, of course, on IRS rules relating to the tax treatment of divorcing spouses and non-married cohabitants.
Tuesday, November 10, 2020
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Taxing the Transition from Status to Contract in Family Relations, Part II
Sidney W. DeLong
This is the second of a four-part blog post. Part I introduced the relation of status and contract and introduces some basic income tax rules as they relate to intra-family wealth transfers. Today's post shows how creating contracts with consideration between family members can convert non-taxable gifts into taxable income and capital gains into ordinary income. Part III analyzes the income tax effects of recovery under theories of promissory estoppel and restitution. Part IV shows how intrafamily contracts can lead to income splitting and double taxation, with both positive and negative tax effects. It also discusses the risk of converting non-taxable imputed income into taxable income.Consider some of the income tax implications of the following examples drawn from or inspired by classic first-year contracts cases.
Contracts for Consideration:
In Brackenbury v Hodgkin, 102 A. 106 (Me. 1917), Mother told daughter and son-in-law that she would leave them the family farm if they would move in with her, manage the farm, and care for her during her lifetime. If she had performed as promised, leaving them the farm by will, would the bequest have been taxable to them or not? If the court found that her requests were only conditions to Mother’s gift promise, daughter and son-in-law will owe no income tax on the value of the farm. Gifts are not taxable as income even if they are conditional gifts; bequests are not taxable as income either.
However, if Mother failed to do as promised and they sued her estate for breach of contract, daughter and son-in-law would be required to show that her promise was not a gift promise but was enforceable as a contract. Their services rendered in compliance with her requests constituted consideration for the promised bequest, regardless of their market value.
But recharacterizing the bequest from gift into payment for a contract performance changes the tax result. As payment for services rendered during her lifetime, the market value of the farm at Mother’s death might be fully taxable to the daughter and son-in-law as ordinary income.
The law of offer and acceptance suggests that a conditional bequest made in a will might also be construed as an offer for a unilateral contract. The following scenarios are suggested by the facts in Davis v Jacoby 34 P.2d 1026 (Cal. 1934). Suppose Uncle tells Niece, “In consideration of your caring for my wife and operating my business, I will leave you $100,000 in my will.” Whether it is construed as an offer for a unilateral or bilateral contract, and whether Niece is given the promised bequest or must recover it in a breach of contract action against Uncle’s estate, the $100,000 will not be taxed as a gift but as ordinary income. But what if the proposal appears for the first time in Uncle’s will? Does making the contract payment into a legacy make it a tax-free gift? Or does the will make an offer that Niece can accept by performing what was requested after the offeror’s death? By making the legacy into the performance of an exchange promise, Uncle might inadvertently have converted a tax-free legacy into taxable income to Niece.
If the legacy consists of appreciated capital assets, such a transaction also threatens the decedent with liability for capital gains that would otherwise have been avoided by retaining the property until death. Brackenbury and Davis each assume the form of a legacy but could easily be construed by the IRS as an inter-vivos sale of the property by the decedents to the “legatees.” The “sellers” might be liable for capital gains (measured by the value of the services received for the property) while the “buyers” will be taxed at ordinary income rates on the entire value of the farm, as compensation received for their services. This result would be avoided by simply leaving the appreciated property to the legatees as a gratuitous gift. The bad tax result stems from recasting a non-taxable gratuitous transfer as an arms’ length exchange.
But if the values are too far out of line, family promises supported by consideration may not transform a gift fully into taxable income. Consider some variations on the facts in Hamer v Sidway, 27 N.E. 256 (N.Y. 1891). Assume first that Uncle promised a “gift” of $5000 to Nephew on condition that he refrain from drinking, smoking, and playing cards for money until he was 21. If Uncle then paid $5000 to Nephew upon his fulfilling the conditions, the payment would not be taxable because it is a gift.
Now assume instead that Uncle promised Nephew that he would pay him $5000 in consideration for Nephew refraining from drinking, smoking, and playing cards for money until he was 21. If Nephew fulfilled the conditions and earned the money for his services, the payment would be taxable ordinary income to Nephew so long as the IRS construed it to be payment for services rendered by Nephew to the Uncle. Just as the services were the “price of the promise” under the doctrine of consideration, the promise was the price demanded for the services.
But Nephew might argue that the greater part of the payment was a gift, despite his having given consideration for it. Uncle characterized the payment as a “gift,” and $5000 is clearly excessive as the reasonable or arm’s length price of his abstinence. Nephew would emphasize the substance of the transaction over its form. If that argument succeeds, Nephew might owe income tax only on the “real” consideration and not on the balance. It does not matter that the law of consideration ignores the value of the consideration so long as a bargain is present. The substance-over-form argument that fails in the law of consideration succeeds in a tax law that is driven by different policies.
Brackenbury, Davis,, and Hamer illustrate one tax risk of changing status relationships into contract relationships. Non-taxable gifts can be converted into taxable income to the recipients when gift transactions are recharacterized as contracts with consideration. In other cases, if appreciated property is used to pay intrafamilial debt, what would otherwise have been taxed as capital gains is converted into ordinary income, taxed at higher rates. This risk also arises in divorce proceedings where appreciated property is divided pursuant to agreement. Family lawyers are aware of tax law and the ways to avoid these outcomes.
Performance of an unenforceable promise to pay may be considered to be “gratuitous” and a “gift” under contract law and yet not constitute a “gift” under income tax law. For example, a promise to pay a benefactor for services previously performed by the promisee is unenforceable in the absence of unjust enrichment. Restatement (Second) of the Law: Contracts § 86 (2). But if the promisor performs the promise, would the payment constitute a non-taxable gift to the promisee or would it be instead taxable compensation received by the promisee in exchange for the earlier service? In all likelihood, tax liability will not depend on whether the promise was not legally enforceable when made. Otherwise parties could evade tax liability for by recharacterizing taxable ordinary income as voluntary non-taxable gifts. Parties could avoid taxes on sales by making reciprocal gifts. The substance-over-form argument that fails in the law of consideration succeeds in tax law that is driven by different policies.
Monday, November 9, 2020
Taxing the Transition from Status to Contract in Family Relations
Sidney W. DeLong
This is the first of a four-part blog post. Part I introduces the relation of status and contract and introduces some basic income tax rules as they relate to intra-family wealth transfers. Part II shows how creating contracts with consideration between family members can convert non-taxable gifts into taxable income and capital gains into ordinary income. Part III analyzes the income tax effects of recovery under theories of promissory estoppel and restitution. Part IV shows how intrafamily contracts can lead to income splitting and double taxation, with both positive and negative tax effects. It also discusses the risk of converting non-taxable imputed income into taxable income.
Transformation of informal family relationships and transactions into formalized, contractual relationships and transactions can jeopardize the favorable treatment enjoyed by families under the Internal Revenue Code. Many of the cases appearing in contracts casebooks in which family members enter into contracts with each other may inadvertently incur income tax liabilities. Even first year law students should be warned that tax advice is always wise when they're contemplating intrafamilial wealth transfer's and similar contracts.
In the Nineteenth Century, legal historian Henry Maine famously observed that the progress of modern societies was from status to contract. Maine had in mind the replacement of feudal relationships with contractual employment relationships. But the modern world recognizes status primarily in the law relating to family relationships. As Maine might have foreseen, the Twentieth Century has seen a continuous progress from status to contract in the legal relationships between spouses and between parents and children. Viewed cynically, family law has become only a set of default rules that can be displaced by different agreements that reflect the relative bargaining power of spouses and other family members.
These agreements usually affect property ownership or wealth transfers. Contract cases demonstrate that, e.g., caregiving may be secured by promises by which wealthy relatives procure the services of younger ones, family property may be transferred by contract rather than by inheritance, and spousal obligations of support may be formalized in pre- and post-nuptial agreements. These formalized family arrangements remain largely invisible to the courts, however, until the underlying relationships come apart, the promises are breached, and a legal dispute arises. Cases in the Contracts canon show that death or divorce will often occasion a day of reckoning in which unfulfilled promises made in informal settings become the basis of legal claims against decedents’ estates and separating spouses.
Oddly, the legal domain in which “status” continues to have the most material significance in the lives of family members is tax law. Many features of tax law are designed to preserve the intact family from the vicissitudes of the marketplace. Tax law sharply divides activities into non-taxable status behavior and taxable contractual exchanges. Wealth transfers that would be taxable under the Tax Code are often tax free if they are between parties to filial and spousal relationships, as intra-familial gifts are shielded from the taxes that would be assessed against market transactions. However, this status-based protection may be inadvertently lost as a result of intra-family contract litigation based on the consideration doctrine, promissory estoppel, or restitution.
Moving from status to contract by creating intra-familial contracts can subject the parties to several income tax risks: the conversion of non-taxable gifts into taxable income; the double-taxation of income that has already been taxed; the conversion of non-taxable “imputed income” into taxable income; and the conversion of capital gains into ordinary income taxable at higher rates.
The following discussion is designedly non-technical and is intended only to be suggestive. It does not constitute tax advice and should not be relied upon for any purpose. Caveat lector.
Some tax basics. As a general rule . . . .
Money received in exchange for services or for the sale of most property is taxable to the recipient as ordinary income. If the recipient receives property other than money, it is taxable as ordinary income at its fair market value. Money that a taxpayer expends in order to earn such ordinary income is usually deductible from income, so that the recipient is taxed only on net income received. A business that expended $125,000 in order to generate $100,000 in receipts has no taxable income for that year.
Accessions to wealth that do not arise from transactions with other persons but that are generated by the taxpayer’s own labor do not constitute taxable income. However, if the products of one’s labor are sold or exchanged, the proceeds will be taxable. Examples of imputed income are given below.
Money or property received in exchange for property that has been held for a long time is usually taxable to the recipient at the lower tax rates applied to capital gains and even then, only to the extent that the value of the receipts exceeds the recipient’s cost. If I buy an acre of land for $10,000 and sell it for $15,000 after holding it for six years, I will owe capital gains tax of 15% on $5,000 worth of capital gains, not on the full $15,000.
Money or property received as a gift or a bequest is not taxable to the recipient. (The donor or estate may owe a tax on the value of the property transferred, but this post does not concern gift or estate tax liability.) In determining whether money is received as income or as a gift, tax liability will depend on the substance rather than the form of the transaction. A purported bequest that is actually payment for services may be taxable to the recipient as ordinary income and may be deductible by the payer. Conversely, a purported payment for services that is actually a gift may not be taxable to the recipient and may not be deductible as a business expense by the donor.
Property that has increased in value and that is sold during the lifetime of the owner subjects the seller to capital gains tax on increase in value (sales price minus seller’s “basis”). The buyer of appreciated property is not taxed but takes a basis in the property equal to what it paid, for purposes of computing its own capital gains on later resale.
By contrast, appreciated property that is given away during the lifetime of the owner is not taxable to either party at the time of the gift. However, the donee takes the donor’s basis for purposes of computing its own capital gains on later resale.
Finally, and most importantly, appreciated property that is held at the death of the owner and inherited by a legatee is taxed to neither the estate nor the transferee. It escapes capital gains tax altogether. The legatee takes a “stepped-up” basis in the property equal to its value at the time of the inheritance.
To illustrate these principles, consider this example. Owner buys a farm for $50,000. During owner’s lifetime, the farm appreciates to the value of $750,000. Owner then dies, leaving the farm by to Legatee, who immediately sells the property for $750,000. Legatee owes no income tax on the $750,000 of the farm upon its receipt. Neither Owner’s estate nor Legatee owes capital gains tax on the $700,000 appreciation.
By contrast, if Owner had given the farm to Legatee during Owner’s lifetime and Legatee had then sold the farm, Legatee would owe no income tax on the gift, but would owe capital gains tax on the $700,000 because it would have taken the donor’s basis.
Finally, in the worst case scenario, if during Owner’s lifetime, Owner exchanged the farm for money, goods, or services provided by the Legatee, Owner would owe capital gains on the amount by which value of the consideration received exceeded the Owner’s cost basis in the farm. Legatee would owe ordinary income tax on $750,000, less any deductions it can show.
Wednesday, November 4, 2020
One of the things that the current pandemic emphasizes is the importance of prevention. As Benjamin Franklin remarked a long time ago, “an ounce of prevention is worth a pound of cure.” While Franklin had fire prevention in mind, and while the pandemic brings to mind the context of health, this maxim is true in many other walks of life.
We all teach our contract law students the core principles of ‘meeting of minds’ and ‘assent.’ We explain that contracts reflect the preferences and desires of the contracting parties. At the same time, we acknowledge that consumer contracting realities misalign with these fundamental assumptions (here’s a humorous take on that). We realize that consumers cannot be expected to read these lengthy and unreadable contracts. We are aware that they in fact don’t. We also know that these contracts often contain one-sided, if not plainly illegal and unenforceable, contract terms. Yet, we pretend that contract law can somehow efficiently deal with consumer form contracts.
The American approach to consumer form contracts is a bit puzzling. In many other countries and jurisdictions – including the UK, the EU, Australia, New Zealand and Israel – there are specific, detailed laws and regulations pertaining to unfair terms in consumer contracts. But not so much in the U.S. As a result, a great deal of the burden of disciplining unscrupulous firms falls on consumers and courts.
But those institutions cannot do so effectively, because consumers are not sufficiently motivated to litigate unfair contract terms. The small money typically involved in consumer transactions, the costs of litigation, the fear of unequal bargaining power, and the common belief in the validity and enforceability of consumer contracts, all suggest that most consumers will not successfully challenge exploitative boilerplate. In the current environment, even if consumers wanted to litigate, they would probably be prevented from doing so by an arbitration clause that would block their access to the judicial system and by a class action waiver that would deprive them of the ability to sue as a class.
Furthermore, even if consumers do litigate unfair terms, courts are not well-positioned to police such terms using the unconscionability doctrine. The doctrine requires terms to be so biased as to “shock the conscience of the court,” thus excluding many one-sided terms that might not reach this threshold. Furthermore, the doctrine can generally be used only as a shield, not as a sword. Since unconscionability is a vague legal norm (rather than a well-defined rule) with no clear legislative guiding principles, courts have very little guidance in designing its boundaries. All in all, and as Arthur Leff noted decades ago: “One cannot think of a more expensive way and frustrating course than to seek to regulate…‘contract’ quality through repeated lawsuits against inventive ‘wrongdoers.’”
Against this somewhat gloomy reality, we suggest taking prevention more seriously. According to the model we envisage, administrative agencies will be empowered to oversee the content of consumer form contracts and tackle any kind of exploitation – be it in the form of unfair, unconscionable, or illegal terms. The agencies (at the federal and state levels) will focus on the markets or contracts where contractual exploitation is most frequent and severe. They will be authorized to negotiate suspect terms with the relevant firms, ensure any exploitation is removed at the macro level, and enforce their decisions using either consent orders or administrative (or judicial) orders.
We believe that the time is right to consider a supplementary tool in the form of ex ante administrative enforcement. To be sure, implementing such a mechanism entails serious practical and political challenges. These may pertain to institutional capacity, budgeting, legitimacy, regulatory capture and the need to analyze complex markets and contracts. But while not a panacea, such a regime has the promise of shifting the burden of confronting exploitation in consumer contracts from a feeble and ineffective system of private enforcement to a sophisticated and robust system of public oversight.
This post is based on our working paper, Taking Boilerplate Seriously: Tackling Exploitation in Consumer Contracts, available here. Any comments or suggestions are most welcome.
Tuesday, November 3, 2020
Forgive the clickbait headline, but ContractsProf Blog hated to let news outlets get all of the hype on U.S. Election Day (and potentially for the next several days). On the other hand, the results below DO show the highly reliable and duly elected Top Ten SSRN downloads in our favorite subject areas. Enjoy!
Top Downloads For:Contracts & Commercial Law eJournal
Recent Top Papers (60 days)As of: 04 Sep 2020 - 03 Nov 2020
Top Downloads For:Law & Society: Private Law - Contracts eJournal
Recent Top Papers (60 days)As of: 04 Sep 2020 - 03 Nov 2020
As followers of this blog already know from posts here and here, small businesses making COVID-related claims on their service interruption insurance policies have had their claims denied because their businesses have suffered no physical damage.
The Freakonomics podcast does a deep dive into this topic in this episode.
h/t Stefan Padfield
Monday, November 2, 2020
Just in time for the part of the first-year course dedicated to remedies (if you teach a one-semester contracts course) and with ample time to read it over the break (if, like me, you have the luxury of a year-long contracts course), Felipe Jiménez (pictured) has published a new article on remedies. His paper continues a discussion that has been going on for years, featuring contributions from Shira Shiffrin, about which we blogged a bit here and from Daniel Markovits and Alan Schwartz.
Here is the Professor Jiménez's abstract, which can be found, along with a link to the full article on SSRN:
This Article offers a theoretical framework for thinking about contract remedies. The argument starts from the distinction between rights and remedies in contract law. The distinction is consistent with the doctrinal structure of contract law in Western legal systems, and with the available empirical evidence regarding contractual parties’ expectations. Because they tend to downplay this distinction, recent theoretical analyses of the American law of contract remedies, such as Shiffrin’s analysis of the divergence between contract and promise, and Markovits and Schwartz’s defense of expectation damages, go astray. An adequate theory of contract remedies must start by taking the distinctiveness of remedies seriously. The theory offered here argues that the function of contract remedies consists of two central roles: they protect the integrity of the practice of contracting and the individuals who engage in it. Because of these considerations, there is a pro tanto reason for a certain resemblance or proportionality between remedies and the primary contractual rights they enforce. But this reason is only one of the relevant considerations in the design and evaluation of contract remedies. Once we bear in mind the distinction between rights and remedies, remedial analysis can also incorporate other morally relevant considerations beyond the central function of remedies. In order to show this, this Article offers a defense of money damages which incorporates those additional considerations. The Article, thus, offers an integrated framework for remedial analysis, and therefore for illuminating some of the debates that have perplexed contract theorists writing about contract remedies.