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Sunday, December 16, 2012

IRS -- Stopping Collections and the awesome 433A (or 433F) form

Ho Ho Ho! It's getting right around the end of the year now, and that means the dreaded specter of taxes! Everyone is ready, right!? Well, perhaps. But if you are like many of our clients, you're more worried about the past than the future. Past IRS tax debt can be a monster. In this article, I'll discuss one tool in the arsenal of tax attorneys -- the 433! IRS form 433 is a collections information form, and completing it, along with substantiating documentation, is the first step to getting things "right" with the IRS. So..what exactly is this IRS 433 form? Glad you asked!

In the days of yore, the IRS was little interested in whether you had money or not. If you did not pay your taxes, the Service would just "swoop" in and take everything. Furniture, cats, small children -- all your money, bank accounts, etc. There was extremely little they would not touch, and absolutely no mercy. If you did not pay your taxes, you were considered a fraud, and very little effort was given to relieving any of that outstanding tax burden.

Then beginning in the 1980's, and through recent times, the IRS began taking a different tactic. The idea was that if the IRS helped the taxpayer meet his/her obligations the Service would (a) look a lot nicer, (b) get a lot more money, (c) encourage folks to tell the truth. From this nascent set of ideas, came the wonderful form 433.

IRS Form 433 (see http://www.irs.gov/pub/irs-pdf/f433a.pdf) gives the IRS all the information about your income and assets, as well as your debts and obligations. Finding directions for completing this form is almost impossible. In point of fact, there are several different versions of the 433 abounding. Two of the most common for individual taxpayers are:
1. 433A -- the full enchilada. This unabridged document contains every conceivable income/asset/debt/obligation category the IRS can imagine. It is detailed, cumbersome, and rather depressing.

2. 433F -- this is the summary form of the 433A. Much easier to complete -- only two pages. Completing the 433F first makes completing the 433A much easier. In our firm, we have clients complete the summary form and then we complete the 433A, asking additional clarifying questions as needed.


The 433B is for businesses and is rarely used.

Once completed, the 433 is submitted to the auditor handling the case. If there is no auditor assigned, the attorney on the case contacts the local field office and arranges for an appointment. The taxpayer does NOT need to be there for this meeting.

It is critically important that you provide all substantiating documentation for income and expenses.

Typically, substantiating documentation includes copies of W-2 forms, pay stubs, bank records, lease agreements, titles to vehicles and property, copies of loans and investments paperwork, and any other entry on the 433 income/expense summary page.

THERE IS NO EXCEPTION TO THIS. IF YOU DO NOT HAVE THE DOCUMENTATION -- EITHER GET IT, OR YOU WILL NOT BE PERMITTED TO CLAIM THE EXPENSE, ETC.

At the meeting with the auditor, your attorney will review all the numbers and provide all supporting documentation. The idea is to figure out how much you will be able to afford to pay -- negotiate on monthly payment amounts. Note -- the withholding amount you claim on your paycheck is important here. The IRS WILL review this number when working with you at this auditor meeting. If the number is whacky wrong (i.e. you are withholding 10 and you are actually single without any reason to have anything more than 1), it will hurt you badly. Do NOT go to this meeting with a bogus withholding number.

If your income does not support paying any past taxes, you will be entitled to be placed in "uncollectable" status. This means that while liens may be placed against your property, the IRS will not garnish your wages or take anything from you. Note -- this is a two edged sword. It does not relieve you of tax liability. It does not remove your previous tax debt. It merely means the IRS will not seek to collect from you. Interest will continue to accrue. For some folks, however, the 433 and the audit represent the best method for not losing over 60% of their income to tax garnishments

Two points to remember here: 1. This is complicated form that has to be completed properly -- an attorney is best for this, and 2. The taxpayer meeting with the IRS is never a good thing (handling the audit him/herself) -- the IRS auditor cannot make the same negotiated deals he/she could with your attorney. You need a representative for this purpose.

If you have questions or need help addressing a tax law question, please do not hesitate to contact us! We are experienced immigration, tax, and bankruptcy attorneys who can help with questions from any state in the US. S

Sean R. Hanover, Esq
HanoverLawPC.com
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Wednesday, December 12, 2012

A Primer on Divorce -- the three key areas and samples

Folks -- we get a lot of phone calls on divorce. Most people come very angry and often confused as to what steps are required to get a divorce. That is not altogether a bad thing -- divorce should only be undertaken if there is no chance of reconciliation or there is danger to one or both parties. That having been said, I wanted to provide a brief overview on divorce, what you can expect to discuss with your attorney, and provide a sample separation agreement (this is from VA, but it is very similar for DC and MD, too).

There are three areas to divorce, and one special cavaet. The three areas are:
1. Separation Agreement: Covers property and marital assets obtained during the course of the marriage. This includes things purchased separately, but during the marriage (i.e. the car is only in husband's name, but it was purchased during the marriage -- it is still joint property in a joint property state (MD, VA, DC). Ditto on the house only in the wife's name...still joint). Things to remember here are retirement plans, stocks, and insurance plans. Be careful here...you only get one bite at the apple to get it right! Once entered, this cannot be easily changed. The separation agreement also covers spousal support. Spousal support is not automatic and is controlled by two factors: the length of the marriage, and the income of the respective spouses.

2. Custody: When there are children involved, an arrangement for where the child(-ren) will reside must be made. This includes primary custody, and physical custody. "Primary Custody" is called different things in different jurisdictions, but mainly applies to who is repsonsible for the child on an ongoing basis. Where does the child live for purposes of school determination, state care etc. Physical custody deals with the actual division of the which days are spent with which parent. The courts in all three VA, MD, DC jurisdictions seek a 50/50 split by default. The burden of modifying that custody arrangement rests with the party seeking the change, and is often the number one cause of litigation. Custody issues also determine payment of child support. Determination of child support is a matter of state posted payment schedules, and is based on (a) amount of custody each parent has, (b) the income of each parent, and (c) the best interest of the child.

3. Divorce Decree: The decree is actually the end of a multi-step process that begins with a motion for...you got it! Divorce. It is called a motion for divorce "mensa et thoro" -- this is the type of divorce that is predicated on a separation starting once the court filing is made. This divorce pleading prevents the spouse who is "leaving" the marital home from being blamed for abandonment. It also starts the "clock" on the divorce proceeding. If the "time apart" requirement is complete before this filing (i.e. filing after the separation period), or after the separation the filing is amended to a complaint for divorce "vinculo matrimonii" - or the final divorce. You can only file for this once the separation period is complete. Without children, the separation period is typically six months. With children, the separation period is one year.



I mentioned a cavaet -- where there is danger to one spouse or to children, the threatened spouse may file for a "protective order" -- this is often a hotly constested area of divorce litgation, as a protective order gives rise to a claim of bad acting on the part of one spouse, which in turn causes significant problems in the determination of separation, spousal support, custody and child support.

Most divorces these days are due to irreconcilable differences. When this form of divorce is pursued, both spouses are considered neutral, and neither is given any particular preference in the handling of property, support, etc. Each is equal. However, if one spouse is a bad actor -- for example, committed adultery, or stole money, had a gambling problem, was a habitual drunkard, etc. -- then the court will skew the property, support, and custody issues more in favor of the innocent spouse. This is another area of hotly contested divorce litigation (see last paragraph).

As you consider divorce and the steps involved, give consideration to the sample below. The sample is a separation agreement. There are plenty of self-help clinics and forms. But remember...one mistake here can really screw up your future for a very long time. The cost of an attorney at the early stages can save you untold thousands in years to come.

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SEPARATION AGREEMENT SAMPLE


Before continuing with this document, please read and acknowledge the following: _____/_____ (initial) This is an important legal document. By signing below, you agree that you have thoroughly and carefully reviewed the contents of this Agreement. Each party expressly acknowledges that he/she has had the opportunity to consult with consul of his/her choice. _____/_____(initial) Each party has three days from the time the document is signed to withdraw consent to this Agreement without penalty. If so withdrawn, the Separation Agreement becomes void and negotiations between the parties will begin anew.

This AGREEMENT is made between XXXXX and XXXXX, Husband and Wife, to determine all property rights, including property and debt distribution, between them.

The parties to this Agreement represent the following:

1. They were married on XXXX in Fairfax, Virginia.
2. Irreconcilable differences have arisen between the parties and they are now living separate and apart.
3. There are no minor children of the marriage, either by birth or adoption, and the Wife is not pregnant.

4. The parties intend this agreement to be a full and complete settlement of their rights, one to another, as to the duty of support to one another now or in the future, any rights of inheritance from one another, and any rights to any interest in or to any property of the other, whether acquired before, during, or after marriage, or other rights or benefits that may arise from the marital relationship.

The parties therefore agree as follows:

ARTICLE ONE
Separation

Each party shall hereafter live separate and apart from the other, and neither shall annoy, molest, interfere with or harass the other in any way or manner, either directly or indirectly.

ARTICLE TWO
Spousal Support

/_____(initial) Neither party shall pay to the other any amount, either in installments or in a lump-sum, for spousal support. This provision may not be modified.

ARTICLE THREE
Division of Property and Debts

  A. Real Estate
The parties own one rental property located at XXXXX , Herndon, VA 20170. The property was purchased during the course of the marriage. The deed and the mortgage are in the name of the Wife. Husband renounces any and all claims, for himself, his heirs, his estate, and his agents, now and forever, on said property. He relinquishes any rights or entitlements to said property now and forever, agreeing to sole and complete possession by the wife of the same. This includes but is not limited to any right to ownership, lease, rents, or any form of utilization, control or direction. Husband shall not be entitled to any payments from said properties, nor any debts accrued thereon, either in the past, the present, or the future. Wife agrees to assume any and all outstanding liabilities and indemnify Husband from any future costs associated with the property.

B. Household Goods, Furnishings and Personal Property
Each party shall keep any households goods, furnishings, and personal property now in that party's possession, free of any claim of the other.
C. Motor Vehicles
Each party shall retain title to and possession of all motor vehicles, boats, campers and other titled or registered conveyances, now titled or registered in that party's name. The party retaining the vehicle shall be solely responsible for any debt on or expenses regarding that vehicle and indemnify and hold harmless the other party from any and all liability associated with the motor craft.
D. Bank Accounts and Employee Benefits
Each party shall retain any bank or investment accounts in that party's name as well as any employee benefits, including pension, retirement, stock ownership, 401(k) or other employer plans, free and clear of any claim of the other. There are no joint accounts to be closed and/or divided.
E. Life Insurance Policies
Each party shall retain any life insurance policies owned by that party, and the parties give up any interest in being named beneficiaries of the other policies.
F. Debts
Each party shall pay those debts in the parties name, and neither party shall incur any debts in the name of or on the credit of the other party. There are no joint debts.

ARTICLE 4
Court Costs

The Court costs will be paid by Husband. Any legal fees will be paid by the party incurring the fees without recourse to the other spouse.

ARTICLE 5
Complete Settlement<

______/______ (initial) This agreement is a full and complete settlement of all spousal rights and property claims, inheritance, descent and distribution, allowance for support and maintenance, exemption from administration, all rights as surviving spouse, heir, legatee, and next-of-kin in the estate of the other, and all rights to administer estate of the other, and in all property rights that each now has, or may acquire in the future, except as specifically agreed to in this Separation Agreement. This Agreement shall be binding on other parties heirs, administrators, executors, and assigns.

ARTICLE 6
Incorporation Into Decree

It is agreed and understood that this agreement shall not constitute consent by either party to a divorce or dissolution of marriage; however, in this event that either party files for divorce action or dissolution proceeding is begun, the parties agree that this entire Agreement shall be disclosed and presented to the Court in that proceeding or in any such proceeding now pending, with the request that it shall be determined to be fair, just, and proper, and that this Agreement and all its terms and provisions be adopted by that Court, and made part of the order of that Court in its final decree of divorce or dissolution.

ARTICLE 7
Implementation of Agreement

Except as otherwise provided in this Agreement, each party shall upon the signing of this Agreement, deliver to the other party, or permit the other party to take possession of, all items of property to which each is entitled. Within 14 days after the filing of the decree of divorce or dissolution that incorporates this Agreement, whether modified or amended, each party shall execute or sign and shall deliver any and all deeds, titles, certificates, or other documents necessary to carry out execution of this Agreement. Auditor, county record, clerk of courts, and any other public/private officials are hereby authorized and directed to accept this Agreement, or a properly certified copy of it, in lieu of the document regularly required for such conveyance or transfer.

  ARTICLE 8
Full Knowledge and Disclosure

____/____ (initials) Each party acknowledges that he/she has read all the terms and conditions of this Agreement and understands all the terms.
Each party further represents that he/she has made a full and honest disclosure of all assets and liabilities, earnings and beliefs, so that the other party could take such representations into account while negotiating this Agreement. Each party further represents that he/she is satisfied with the disclosure made by the other party.

ARTICLE 9
Modification of Agreement

This Agreement may only be modified in writing. Any modifications must be signed by both parties. No waiver or breach of any one term shall be considered a waiver of any other duty or right under this Agreement, including and subsequent breach or default of a similar nature.

ARTICLE 10
Integration

This document is fully integrated and supersedes any other Agreement on the same topic. Further, there are no other considerations or modifications of this Agreement outside the bounds of this document; the Separation Agreement is fully integrated.

  IN WITNESS WHEREOF, the parties have signed this Agreement before the witnesses and on the date set forth below:

Signed in the presence of:

Signature of witness to Husband Signature of Husband

Signature of witness to Husband Printed Name of Husband

Date Signed

Signature of witness to Wife Signature of Wife

Signature of witness to Wife Printed Name of Wife

Date Signed

------------------- Divorce is a very serious matter. You need an experienced litigation firm to ensure your rights are protected. We always try to work witht he other side -- however, if a vigorous engagement is required, Hanover Law is up to the task. CALL US before you agree to anything.

S

Sean R. Hanover, Esq
HanoverLawPC.com
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A Curious Trial: U Visas, Rape, M-A-M hearing, and CAT relief

I was recently faced with a very difficult trial. A client of mine was suffering from torture and rape in prison, and the trial to have him released had been 10 months in the making. Additionally, I was barred from seeking Federal relief because the agency that held him was neither the state, nor even a prison -- rather it was a Federal Agency: ICE. Getting reports from that agency on anything is like pulling teeth.

After a grueling 5 hour trial, I managed to secure CAT relief for my client. In a different discussion forum, I mentioned different avenues for presenting the prison rape problem. Investigations were still underway when we went to trial on the 10th of December, 2012.

I decided to write up a motion with attendant supporting documentation showing the abuse, the investigation, and various responses from state and federal agencies. Instead of serving it in open court, I discussed it with the DHS attorney before court. To say the DHS attorney was surprised would be an understatement! She scurried off upstairs, as DHS did not know what was going on with the client and ICE had put nothing into the file. Nice.

When the judge came in, I explained the situation to him. He then took the motion packet and a stack of law books and reviewed it all in his office.

The tactic I decided on was not presentation on the record, per se – rather a soft demonstration prior to commencing operations. Gave everyone time to review and help come up with a solution. Very collaborative. I got one hell of a payback for that at the beginning of the trial, but at least at this point, my “sandbagging” the court and DHS was received with only a modest amount of grumbling. I will tell you, though, that I came prepared. The motion was properly formatted, and even hole-punched at the top! (I forget that all the time on emergency motions). I digress.

The awesome aspect of this was the ability to discuss with the judge and DHS counsel the prison conditions and rape (including medical problems, and document theft/protection money payments being required from my client) prior to any hearing on my CAT claim.

The judge proceeded with the trial, but it was obvious that he wanted to find some relief for my client just to get the guy out of prison (he had been detained by ICE for 10 months).

DHS had it’s own unexpected whammy. After the trial started, we immediately went into a M-A-M hearing – which I was entirely unprepared for. I was not even clear if I should be arguing my client was competent to stand trial (he had a couple of “not-guilty” findings due to insanity defense) or if I should try to ditch the case on grounds he could never comprehend the criminal nature of his conduct. That was a tad awkward. As a foot note – for those of you who have not done M-A-M hearings, these are generally fairly straight forward question/answer sessions based on medical reports and other corroborating evidence that speaks to your clients mental capacity. As a rule of thumb, a client represented by an attorney, and who can answer questions about the nature of the NTA, allegations, and why he/she is present at the trial, will be found competent to move forward. If the client is not found competent, the court has leave to suspend the hearing until competency can be established, appoint a guardian, or even remove the case and terminate proceedings. In the instant case, it was strange because I did not know how to argue it – especially given the prison rape, the psych background, and the need to get my client out ASAP. I hate not being prepared. For those who take the class on 18 Dec – you will have that hammered into you quite well.

Regardless, the judge found the client competent to stand trial and we had very interesting trial for many hours on homosexuals and transgenders in Venezuela.

It was a great hearing – but the take away is the tactic for handling prison situations prior to an IC wholly unrelated to the matter.

Call us today to discuss your case. WE CAN HELP. However, the longer you wait, the riskier it becomes when you are finally brought before an immigration judge.

S

Sean R. Hanover, Esq
HanoverLawPC.com
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