MORE IRS LENIENCY REGARDING 60 DAY ROLLOVER RULE

The Internal Revenue Code says that amounts withdrawn from an IRA are not taxable as long as the entire amount is “rolled” back into the same or another IRA no later than 60 days after the distribution. Sometimes taxpayers don’t quite comply with the 60 day timeline for one reason or another, and the same Internal Revenue Code does enable IRS to allow more time in cases where failure to do so would be against equity or good conscience, including casualty, disaster, or other events beyond the reasonable control of the individual subject to such requirement.

In PLR 201523023, IRS did just that in a case where the taxpayer’s failure to accomplish a timely rollover was due to an IRA custodian’s administrative procedure of not accepting “starter checks.”

Is a “Negligent” Threat Really a Threat?

Federal law makes it a felony to transmit in interstate commerce “any communication containing any threat  . . . to injure” someone. Anyone who sends a message intending to make a threat, or knowing that the communication will come across as a threat, has the state of mind required for a conviction under 18 U.S.C. § 875(c).

But what about someone who sends a message and doesn’t—but should—know that the recipient will view it as a threat? Has the sender violated section 875(c)? That was the question before the U.S. Supreme Court in Elonis v. United States, decided on June 1. (575 U.S. ___ (2015).)

Self-Expression or Something More?

The defendant in Elonis posted on Facebook what the Supreme Court termed “self-styled ‘rap’ lyrics” containing “graphically violent language and imagery.” He posted them under a pseudonym or stage name, sort of in the way that Marshall Mathers performs as Eminem. The posts often appeared “with disclaimers that the lyrics were ‘fictitious,’ with no intentional ‘resemblance to real persons.’”

The violent posts began after the defendant’s wife left him and took the couple’s two children. They led the wife to seek a protection-from-abuse order, which a court granted. Other subjects of the postings included co-workers, an unspecified kindergarten class, and law enforcement.

Here’s an example of the posts, this one in response to the protective order and accompanied by a link to Wikipedia’s page on freedom of speech:

“Fold up your [protection-from-abuse order] and put it in your pocket

Is it thick enough to stop a bullet?

Try to enforce an Order that was improperly granted in the first place

Me thinks the Judge needs an education on true threat jurisprudence

And prison time’ll add zeros to my settlement . . .

And if worse comes to worse I’ve got enough explosives to take care of the State Police and the Sheriff ’s Department.”

Lyrics like these resulted in five counts of violating section 875(c).

“Reasonable Person”

At trial, the judge instructed the jury that that the defendant could be guilty even if he didn’t intend the posts to be threats: The issue for the jurors was whether a reasonable person in the defendant’s position would anticipate that the statements would be interpreted as “serious expression of an intention” to inflict harm.

The jury convicted the defendant on four of the five counts, landing him a prison sentence of almost four years.

“Guilty Mind”

Before overturning the convictions, the Supreme Court explained the principle that “wrongdoing must be conscious to be criminal.” With rare exception, proof of every crime must require evidence of a “guilty mind.”

Chief Justice Roberts, writing for the majority of the Court, noted that the “reasonable person” standard regularly applies in civil lawsuits. But this standard—which asks whether someone has behaved negligently—doesn’t have much of a place in the criminal law.

Because of the jury instruction, the verdict in Elonis turned not on whether the defendant actually did, but whether a reasonable person would, regard the words in question as threats. To Roberts and company, the instruction violated a core principle: that federal criminal liability generally depends on the defendant’s state of mind.

The Court’s decision means that, at least when it comes to alleged threats under section 875(c), negligence doesn’t suffice for a conviction.

As for whether recklessness is enough, we still don’t know. The Court decided to leave that one for another day.

Brillliant Legal Maneuver: Nonprofits Join Class Action Suing Over USCIS Delays

Technical ProblemThe gears of bureaucracy are grinding even more slowly than usual, as U.S. Citizenship and Immigration Services (USCIS) routinely takes weeks or months to approve non-citizens’ applications for employment authorization (a work permit).

Why should we care? Let me start by explaining why everyone in the U.S. is affected by these USCIS delays, and then circle back to the nonprofits bringing suit over it.

Numerous non-citizens have the right to be in the U.S. and to work here. In order to actually accept a job, however they need a plastic ID card called an Employment Authorization Document (EAD) or work permit. For instance, people who have been granted asylum or Temporary Protected Status (TPS), as well as people who’ve applied for a marriage- or family-based green card and are awaiting a USCIS interview can apply for work permits.

But, they can’t work until the card arrives — and they have to stop working if their card expires before they’ve successfully renewed it. Theoretically, they can walk straight into a USCIS office for an “interim” work permit if the mailed-in EAD application yields no reply, but the agency hasn’t been complying with the obligation to act on those requests, either.

The result of these USCIS delays affects more than just the noncitizen:

  • U.S. businesses of all sizes may lose employees on short notice when their work permits aren’t renewed — or else face legal sanctions for continuing to hire that person.
  • The cost of that business’s goods may rise, or its efficiency levels fall, because of this staffing shortage.
  • The non-citizens (who are in many cases low income, if they haven’t been able to legally work for a while), may go to nonprofit organizations, in search of low-cost help in inquiring after their seemingly long-lost work permit application.
  • The nonprofits may spend valuable hours writing and calling in search of answers, then following up when they don’t get those answers. In my experience, getting USCIS to take action can be enough to put a lawyer on high blood pressure meds. And indeed, the recently filed complaint states that USCIS “provide[s] incorrect and conflicting information to applicants who call the agency’s 1-800 customer service number or visit USCIS offices for Infopass appointments.”
  • Donors to these nonprofits have to spend more to support even the most basic services.

That’s why we should all care, in theory. But the brilliant action recently taken by two U.S. nonprofits — Northwest Immigrant Rights Project (NWIRP) in Washington State and The Advocates for Human Rights in Minnesota — was to say (in essence), to heck with mere caring, the U.S. government owes them money over the losses they’re sustaining. They joined a class action lawsuit, adding their names to those of individual immigrants (who are directly damaged by being unable to work) filing suit against USCIS.

It’s not an immediately obvious strategy. As any first-year law student can tell you, before someone can join in on a class action lawsuit (in which a group of people or entities collectively sues the same defendant), they need to have been directly injured by the defendant’s actions. They can’t add their names in sheer protest.

Here’s how the organizations explained their ability to join in the suit within the complaint filed in late May of 2015: “Defendants’ policies and practices have caused [NWIRP and The Advocates] to divert scarce resources to assisting and advising clients whose EAD applications have been delayed, and who have not received interim employment authorization.”

Make no mistake, nonprofits serving immigrants really do have scarce resources. Funding comes almost all from private sources, not governmental ones. At one immigration nonprofit where I worked, the computers still ran on MS-DOS (remember that?) while the rest of world was using MS Office and email. I had to go home just to print out a document. Any extra time spent on one task means staying at work even later to deal with the hundreds of other waiting tasks — while the line of people awaiting services grows longer and longer.

Let’s stay tuned to see how this lawsuit goes.

INTENT DICTATES CHARACTER OF REAL ESTATE GAIN

Check out the decision in Fargo and King (TC Memo 2015-96) for a refresher on the rules regarding whether real estate gains are capital versus ordinary, depending on whether the property was “held” for development, as opposed to an investment purpose.

The courts typically analyze various factors when this issue arises, in evaluating whether a taxpayer “held” property primarily for sale to customers in the ordinary course of business, including:

~The purpose for which the property was originally acquired
~The purpose for which the property was subsequently held
~The extent to which improvements, if any, were made to
the property by the taxpayer
~The frequency, number and continuity of sales
~The extent and nature of the transactions involved
~The ordinary business of the taxpayer
~The extent of advertising, promotion, or other active
efforts used in soliciting buyers for the sale of the
property
~The listing of property with brokers
~The purpose for which the property was held at the
time of sale

Will Johnny Depp Face Prison for Bringing His Dogs Into Australia?

travelwithpets_456pxI have no idea, not being an Australian lawyer, whether actor Johnny Depp will really be locked up and away from his screaming fans for smuggling his two Yorkshire terriers into the country on his private jet. (But at least I didn’t put any bad puns into the headline, like the Guardian’s caption about the “Ruff time” he may be facing.)

No, the reason I clicked on the related headlines (the only reason, honest) is that it serves as a reminder that international quarantine laws are real, and that those fuzzy, feathered, or scaly creatures that we might think of as little family members are viewed as carriers of disease and other dangers by those who enforce these laws. (Why else would importation of cats and dogs to the U.S. be under the control of the U.S. Centers for Disease Control and Prevention (CDC)?)

In order to bring a dog into the U.S., you will need to be sure that it is healthy and has received a rabies vaccine if it’s from a country where rabies is present. If traveling to Hawaii or Guam, the dog may need to be quarantined.

What if you pull a Johnny Depp, and don’t comply? That qualifies as a federal crime under 18 U.S. Code Section 545. It may get you fined and punished with up to 20, count ’em, 20 years in prison. (The maximum penalties are no doubt reserved for the most severe smuggling cases, but still . . . .)

And don’t even try bringing in an African rodent or a monkey.

See “Bringing Your Pets When You Immigrate to the U.S.” for more information.