Issues herein are not addressed in any case or subject specific order.
U.S. Estate and Gift Tax. The U.S. imposes the estate/gift tax, a wealth transfer tax, based on three separate criteria/jursidictional basis: 1) citizenship; 2) domicile, and 3) situs (location) of the assets. IRC Sec. 2001. U.S. citizens, by virtue of that citizenship alone, are subject to the U.S. estate and gift tax even if they have never lived in nor own any assets within the United States. The U.S., in this regard, also recognizes those with dual citizenships, one of the U.S. and another in a non-U.S. jurisdiction to be U.S. citizens for purpose of the estate/gift tax. A person who is "domiciled" in the U.S., lived therein, even briefly, with an intention to remain indefinitely, eventhough he/she later changed his/her residence, is considered a U.S. domiciliary for purposes of this tax. This may be true even if all of his/her assets are located outside the United States. Location of the assets is the third jurisdictional basis to impose the tax. IRC Sec. 2103. "For the purpose of the tax imposed by Section 2101 (IRC), the value of the gross estate of every decedent nonresident not a citizen of the United States shall be that part of his gross estate (IRC 2031) which at the time of his death is situated in the United States. Thus, the Nonresident Alien (NRA) will only be subject to the U.S. estate/gift tax with regard to those assets located in the United States, as determined by the Internal Revenue Code (IRC). The amount that is exempt for estate tax for a NRA is much lower than that for a U.S. citizen or domiciliary. Hence, the U.S. estate tax is much more burdensome on the U.S. assets of a NRA than that of a U.S. Citizen. Certain assets, however, held in the U.S. by an NRA are not subject to estate tax, like U.S. Bank Deposits and U.S. Government and Corporate Bonds.
U.S. Income Tax Payor Status v. Federal Estate/Gift Tax Payor Status. Assuming a Non-U.S. Citizen status, for Federal income tax purposes, U.S. residency status is determined by two tests: 1) The alien may be a "Permanent Resident" (Green Card) and would, therefore, be subject to worldwide applicability of United States income tax, just like a U.S. Citizen and 2) If the person meets the "substantial presence" (in the U.S.) test, he/she will be considered to have U.S. residency status and be subject to the same income taxation as #1 example above. If the person has a "non-residency" status, U.S. income tax is only applicable on the basis of U.S. source income.
Important to note that a "bilateral tax treaty" may impact a person's residence status for either income or estate/gift tax. The United States has about 60 bilateral income tax treaties, but far fewer estate tax treaties. Under some U.S. bilateral estate tax treaties, the stock of a United States corporation will not be subject to U.S. estate tax if owned by a resident of, for example, a treaty partner nation in Europe.
Foreign Real Estate owned by U.S. Citizen. Many persons hold foreign income producing real estate in Foreign Corporations or Limited Liability Companies.
Use of Foreign (Offshore) Trusts coming under attack in U.S. Courts. Some U.S. Courts have held American debtors in "Contempt of Court" and ordered them jailed for failing to obey court orders to repatriate assets transferred to "Offshore Asset Protection Trusts". See In Re Stephen J. Lawrence, 279 F.3d 1294 (11th Cir. 2002), FTC v. Affordable Media, LLC., 179 F.3d 1228 (9th Cir. 1999), SEC v. Brennan, 230 F.3d 65 (2nd Cir. 2000), and U.S. v. AmeriDebt, Inc., 373 F. Supp. 2d 558 (D. Md. 2005).
Unlimited Marital Deduction as it applies to transfers of assets upon the death of one spouse Settlor of a Revocable Living Trust. An unlimited marital deduction applies to transfers from one spouse to the other. (IRC Sec. 2056(a)). The deduction applies only to property passing to a surviving spouse only when the decedent is survived by a husband or wife. There are three options for distribution of the marital deduction share: 1) a QTIP Trust(qualified terminable interest property); 2) a Marital Deduction Trust, and 3) Outright to the surviving spouse. All three choices uses the marital deduction so that no tax is recognized upon the death of the first spouse and the assets transferred will be included in the surviving spouse's estate, with the surviving spouse's estate tax credit used. The QTIP trust may be utilized to take advantage of the surviving spouse's martial deduction while providing the QTIP trust income to the surviving spouse, without giving the surviving spouse the right to change the dispositive provisions of principal of said trust upon his/her death. The unlimited marital deduction may eliminate all federal estate tax on the estate of the first spouse to die.
Marital Trust as Beneficiary of Retirement Plan. Regulations on required minimum distributions from qualified plans, individual retirement plans, deferred compensation plans per Sec. 457 and Sec. 403(b) annuity contracts, custodial accounts and retirement income accounts are in Treasury Decision 8987. Certain requirements must be met to allow the underlying beneficiaries of a trust, named as the beneficiary of a retirement plan or IRA, to be considered the designated beneficiaries: 1) The trust is valid under state law; 2) The trust is irrevocable or its terms will makethe trust irrevocable upon the death of the account holder; 3) The beneficiaries of the trust, who are beneficiaries with respect to the trust's interest in the retirement benefits, are identifiable from the trust, and 4) Proper documentation regarding the Trust is provided to the plan administrator. If these rules are complied with, the individual trust beneficiaries will be treated as if they were named as the beneficiaries of the plan. If the beneficiaries qualify as "designated beneficiaries", the required minimum distribution periods will be calculated over their lifetime(s) or the lifetime(s) of the oldest beneficiary if there are multiple designated beneficiaries.
IRS 2009 "Dirty Dozen" Tax Scams. Anyone who suspects tax fraud may report the incident to the IRS on their form 3949-A. The 2009 list of the 12 most common and egregious tax scams are: 1) Phishing; 2) Hiding Income Offshore; 3) Filing False or misleading forms; 4) Abuse of charitable organizations and deductions; 5) Return preparer fraud; 6) Frivolous Agreements; 7) False claims for refund and requests for abatement; 8) Abusive retirement plans; 9) Disguised corporate ownership; 10) Zero Wages; 11) Misuse of Trusts, and 12) Fuel tax credit scams.
FINRA. The Financial Industry Regulatory Authority handles a significant number of Dispute Resolutions between Securities Professionals and their clients.
Common Mistakes Business Make Which May Result in Litigation. 1) Doing Business as a Sole Proprietorship; 2) Doing Business as a General Partnership; 3) Having a corporation but failing to act like it. Otherwise known as "failure to observe corporate formalities; 4) Individual corporate principals signing Personal Guarantees; 5) Inadequate insurance coverage for the business; 6) Allowing Sexual Harrassment in the work enviroment; 7) Hiring potentially negligent contract employees/independent contractors; 8) Inadequate written contracts with business associates, customers, vendors, and employees; 9) Inadequate asset protection plan for business; 10) Failure to pay payroll taxes; 11) Copyright, Patent, or Trademark Infringement; 12) Breach of Non-Compete, Non-Solicitation, and Proprietary Rights Agreements; 13) Breach of Lease Agreements; 14) Creating own employee manuals, contracts, legal forms, without aid of legal counsel; 15) Discrimination in the workplace---Gender, Sex, Race, Color, Age.
Arizona's "Anti-Deficiency Statute", concerning residential real estate trust deeds and trustee's sales related thereto is found at Arizona Revised Statutes Section 33-814.
After a Trustee's Sale, the original borrower may receive a 1099 from the lender. See United States Internal Revenue Website at www.irs.gov and search for "The Mortgage Forgiveness Debt Relief Act of 1997". One can file a special form---"982" and ask the IRS to ignore the income represented on the 1099.
Arizona has enacted a new "Trust Code", which can be found at A.R.S. 14-10101, et.seq.
Arizona's Fraudulent Transfer Statutes are found at A.R.S. 44-1001, et.seq.
Cases about Arizona's Notice of Claim Statute at A.R.S. 12-820.01 are Jones v. Cochise County, 218 Ariz. 372 (Ariz. App. Div. 2, 2008), Haab v. County of Maricopa, 219 Ariz. 9 (Ariz. app. Div. 1, 2008), Havasupai Tribe v. Arizona Board of Regents, 220 Ariz. 214 (Ariz. App. Div. 1, 2008), Lee v. State, 218 Ariz. 235 (2008), Vasquez v. State, 220 Ariz. 304 (Ariz. App. Div. 2, 2008), Yollin v. City of Glendale, 219 Ariz. 24 (Ariz. App. Div. 1, 2008), Backus v. State, 220 Ariz. 141 (Ariz. App. Div. 1, 2008), Hernandez v. State, 201 Ariz. 336 (Ariz. App. Div. 1, 2001).
Civil Rights: See current Federal 9th Circuit Court of Appeals case of Stein v. Ryan (State of Arizona), 10-16527, on appeal from U.S. District Court of Arizona.
Standards for granting a Zoning Variance in Arizona are:
Per A.R.S. 9-462.06 a local board of adjustment shall decide whether a variance from the terms of a local zoning ordinance should be granted if, due to special circumstances about the property in question, like its size and shape, topography, location and surroundings, the strict application of the zoning ordinance would deprive the property of the privileges had by other property in the same area. If those "special circumstances" about teh property were created or self imposed by the property owner, the variance will not be granted. If, due to peculiar property conditions, a strict interpretation of the zoning ordinances would work an "unnecessary hardship" and if the general intent and purposes of the ordinance would be preserved, a variance may, in fact, be granted. The four standards that must be met before a local board will grant a variance are: 1) Special Circumstances apply to the subject property; 2) Teh hardship, the basis for the variance request must relate to the land and not its owner; 3) The owner's need for a financial return on the property is an illegimate basis for a variance, and 4) The "hardship" must not be willfully or intentionally created by the landowner.
Discussion of Liability for, among other things, Breach of Implied Warranty, especially in regard to Latent Defects in the construction context are at Maycock v. Asilomar Development, 207 Ariz. 495 (Ariz. App. Div. 1, 2004), Lofts at Fillmorev. Reliance Commercial, 218 Ariz. 574 (2008), S Development Company v. Pima Capital Management Co., 201 Ariz. 10 (Ariz. App. Div. 1, 2001), Richards v. Powercraft Homes, Inc., 139 Ariz. 242 (1984), Dryden v. Bell, 158 Ariz. 164 (Ariz. App. Div. 2, 1988), Dillig v. Fisher, 142 Ariz. 47 (Ariz. App. Div. 2, 1984), Columbia Western Corp. v. Vela, 122 Ariz. 28 (App. 1979).
For those American companies wanting to do business "offshore", a careful reading of U.S. Federal Laws called the Foreign Corrupt Practices Act of 1977, revised in 1988 is in order. Thereunder, it is illegal to bribe a Foreign Official to gain any type of benefit from him/her. This, most often, comes into play when American companies try to set up operations in foreign countries and secure a government tender or license to engage in a particular type of business therein. See 15 U.S.C. 78dd-1, et. seq.
"Money Laundering" is a serious federal crime. 18 U.S.C. 1956-7.
See also the Bulk Cash Smuggling Statute ---31 U.S.C 5332.
"Structuring Financial Transactions" is a federal crime (Structuring Financial Transactions to Evade Monetary Reporting Requirements) 31 U.S.C. 5354.
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