Many of our immigration clients come to us with serious problems -- often with imminent threat of deportation looming over their heads. I thought I would take a moment to discuss how to re-open a case where a decision was made against you in absentia (you weren't at the hearing).
When a client has been found deportable in a prior removal hearing, an order of removal will be issued by the judge, and the immigrant should be deported. However, it happens frequently that immigrants who should be removed are left languishing in the United States. One reason this happens is failure of the ICE or DHS representative to properly serve the alien with a notice to appear, or if served, with a trial date he/she needs to be present at. This is especially true when the alien does not have an address to mail notice to, or the address given was not properly understood and no notice was ever received by the alien.
The take away from this: To be a valid form of service, the alien must have received notice of the trial. This requires the alien to provide ICE/DHS with a valid address.
If there is an outstanding order of removal on an alien, they will be arrested and detained by ICE, and deported usually within 30 days of being detained. No further trial is needed.
How can you stop this? The process is called "Motion to Re-Open a Removal Order Issued in Absentia". In years gone by, this was much easier to obtain. Usually, if the judgment was made without the alien present, there would be an automatic re-open if requested by the alien at a later date. This is no longer the case. Now, you must show that proper service was not had in order to re-open an in absentia hearing.
The filing of an in absentia re-opening motion includes the brief, proof of service on DHS, an EOIR-28, and usually a cover letter. There is no fee for this motion, as if judged valid, an in absentia order is considered a revocation of an improper trial, and that should not be at the expense of the alien (improper notice = bad trial = re-hearing).
Remember, a mere re-hearing does not a victory guarantee. Indeed, you will have to defeat the original cause of deportation that has now been re-opened, and you have to contend with any additional problems that have manifested since that time.
Do you need an immigration case re-opened? DO NOT WAIT! There is no need to require a trial BEFORE deportation if an outstanding removal order is place. Call us immediately and let us stop the clock and review the case before your loved one is shipped out-of-country!
S
Sean R. Hanover, Esq
HanoverLawPC.com
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703-402-2723
We are trial lawyers working in the VA, MD, DC region. This blog shares ideas and concepts related to the practice of law. Have a question? Ask us!
Sunday, August 26, 2012
Wednesday, July 25, 2012
I want my money! What do I do? (What to do when you are not paid)
This has been an interesting week for civil trials at Hanover Law. A common theme was - "I want my money, bitXX!" (ahem). Namely, how do you collect money owed to you for work done?
First, let me caution you that obtaining a lawyer to go after money that is owed to you is often not a good idea. We attorneys tend to charge a minimum of $1500 to go to trial, and unless you can expect to get at least double that, a civil suit to collect money is likely a bad choice. A good attorney will always discuss whether a suit makes sense for you -- and be sure to ask about fees and the likelihood of success. Oddly, hand-in-hand with this, we have had to turn down clients that absolutely wanted to sue, even if they would lose money doing it. Revenge and anger are poor motivators for legal action. NOT because they can't be legitimate and proper, but because they tend to cool llloonnnggg before trial is ever had. As such, the client wakes up 6 months into the battle, only to realize they are paying a lot of money for legal representation and will likely get nothing but some form of visceral satisfaction at the end (i.e. no money!).
So how can you collect? The proper procedure is (1) demand letter, and (2) small claims court. You are the creditor (the person owes you money). The person who owes you money is called the "debtor". Initially, you need to contact the person that owes you money. Ask them politely to pay you what they owe. Give them 5 business days. If that fails, send them a letter (demand) indicating the amount due, the reason for the amount, the conversation you had on the phone, and your intention to sue them if they fail to pay. Give the debtor 15 business days (three weeks) to pay. If that fails, pay $75 to the clerk of the district court, and file a small claims action against the debtor.
On the date of the trial, go to small claims court and present your case. Small claims is very informal -- you are not bound to any rules of evidence, and the judge is free to discuss the case openly with you and the other party. The judge will encourage you to try to settle with the debtor first. That might mean accepting less money, but getting paid immediately. Or perhaps you will need to finish what you started and the debtor will pay the court. When you complete, the court will pay you (called a bond). If you can't settle, the judge will hold an informal trial. Each side will be able to show why it should prevail. Be sure to bring your evidence!
Evidence includes things like bills, hours on the job, proof of work, or a contract.
If the other side does not show up -- then ask for a default judgment. This allows you to win automatically once you show sufficient evidence to prove a valid claim.
After you have a judgment, you write to the debtor again. You ask them to please pay the judgement, or you will place a lien on their property. A judgment lien may be placed against the debtor's house, car, or other real property. That last step is a little tricky, but a quick call to a local attorney can be helpful at this stage -- and since the trial is now over, the cost is significantly less.
If you have an outstanding amount that is owed to you -- contact Hanover Law. We can discuss ways you can help yourself in small claims court, or if the amount is sufficient, we can help win the case for you. We also specialize in collecting on judgments. While this service is not free, we have an excellent collection ratio!
S
Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
First, let me caution you that obtaining a lawyer to go after money that is owed to you is often not a good idea. We attorneys tend to charge a minimum of $1500 to go to trial, and unless you can expect to get at least double that, a civil suit to collect money is likely a bad choice. A good attorney will always discuss whether a suit makes sense for you -- and be sure to ask about fees and the likelihood of success. Oddly, hand-in-hand with this, we have had to turn down clients that absolutely wanted to sue, even if they would lose money doing it. Revenge and anger are poor motivators for legal action. NOT because they can't be legitimate and proper, but because they tend to cool llloonnnggg before trial is ever had. As such, the client wakes up 6 months into the battle, only to realize they are paying a lot of money for legal representation and will likely get nothing but some form of visceral satisfaction at the end (i.e. no money!).
So how can you collect? The proper procedure is (1) demand letter, and (2) small claims court. You are the creditor (the person owes you money). The person who owes you money is called the "debtor". Initially, you need to contact the person that owes you money. Ask them politely to pay you what they owe. Give them 5 business days. If that fails, send them a letter (demand) indicating the amount due, the reason for the amount, the conversation you had on the phone, and your intention to sue them if they fail to pay. Give the debtor 15 business days (three weeks) to pay. If that fails, pay $75 to the clerk of the district court, and file a small claims action against the debtor.
On the date of the trial, go to small claims court and present your case. Small claims is very informal -- you are not bound to any rules of evidence, and the judge is free to discuss the case openly with you and the other party. The judge will encourage you to try to settle with the debtor first. That might mean accepting less money, but getting paid immediately. Or perhaps you will need to finish what you started and the debtor will pay the court. When you complete, the court will pay you (called a bond). If you can't settle, the judge will hold an informal trial. Each side will be able to show why it should prevail. Be sure to bring your evidence!
Evidence includes things like bills, hours on the job, proof of work, or a contract.
If the other side does not show up -- then ask for a default judgment. This allows you to win automatically once you show sufficient evidence to prove a valid claim.
After you have a judgment, you write to the debtor again. You ask them to please pay the judgement, or you will place a lien on their property. A judgment lien may be placed against the debtor's house, car, or other real property. That last step is a little tricky, but a quick call to a local attorney can be helpful at this stage -- and since the trial is now over, the cost is significantly less.
If you have an outstanding amount that is owed to you -- contact Hanover Law. We can discuss ways you can help yourself in small claims court, or if the amount is sufficient, we can help win the case for you. We also specialize in collecting on judgments. While this service is not free, we have an excellent collection ratio!
S
Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
Lost Entry Document (non-EWI proof!)
Occasionally we get an immigrant/alien in our office who was admitted to the United States legally, but is still considered EWI (entry without inspection) by the government. For those new to the immigration law arena, EWI is a criminal act. A double EWI can lead to a permanent bar from the US, and a single EWI can bar any change of status while in the US, and prevent entry (via visa) into the US for up to 10 years. Theses are serious consequences!
The burden on proving lawful entry into the US rests with the alien. He/She must show a valid I-94 stamp or document in his/her passport to rebut the presumption of illegal entry. What happens if you enter the US and don't get an I-94? Happens all the time. Most common example is Canada. Cars are frequently passed through the border crossing with only a cursory glance at ID or passports -- especially if one of the members in the vehicle is a US Citizen. Entry through a valid border -- even if just waived thru by the CBP (custom and border patrol officer) is a valid entry and not EWI.
To fix the problem, we use a form I-102. An expensive solution, but effective for obtaining an I-94 when you entered AT A VALID BORDER CROSSING, but did not receive an I-94. The processing fee is ~$350, and requires evidence that you were there. Usually an affidavit from other passengers in the care is sufficient to provide the evidence needed. Processing is roughly 90 days from submission (although, if can take significantly longer if USCIS loses your paperwork).
It is VERY important you contact a lawyer prior to submitting your I-102. You will want a G28 to accompany your paperwork to ensure nothing gets lost, and you will want an attorney to review your submission PRIOR to mailing, to ensure you aren't missing anything.
Hanover Law has been managing immigration matters for some time. We have extensive experience with just about every aspect of immigration practice -- including I-102 and lost I-94's. We can help! Contact us to setup and appointment, or to speak with one of our attorneys on the phone.
S
Sean R. Hanover, Esq
HanoverLawPC.com (Immigration page)
Contact Us
The burden on proving lawful entry into the US rests with the alien. He/She must show a valid I-94 stamp or document in his/her passport to rebut the presumption of illegal entry. What happens if you enter the US and don't get an I-94? Happens all the time. Most common example is Canada. Cars are frequently passed through the border crossing with only a cursory glance at ID or passports -- especially if one of the members in the vehicle is a US Citizen. Entry through a valid border -- even if just waived thru by the CBP (custom and border patrol officer) is a valid entry and not EWI.
To fix the problem, we use a form I-102. An expensive solution, but effective for obtaining an I-94 when you entered AT A VALID BORDER CROSSING, but did not receive an I-94. The processing fee is ~$350, and requires evidence that you were there. Usually an affidavit from other passengers in the care is sufficient to provide the evidence needed. Processing is roughly 90 days from submission (although, if can take significantly longer if USCIS loses your paperwork).
It is VERY important you contact a lawyer prior to submitting your I-102. You will want a G28 to accompany your paperwork to ensure nothing gets lost, and you will want an attorney to review your submission PRIOR to mailing, to ensure you aren't missing anything.
Hanover Law has been managing immigration matters for some time. We have extensive experience with just about every aspect of immigration practice -- including I-102 and lost I-94's. We can help! Contact us to setup and appointment, or to speak with one of our attorneys on the phone.
S
Sean R. Hanover, Esq
HanoverLawPC.com (Immigration page)
Contact Us
Wednesday, July 11, 2012
Stopping Deportation - Difference between CAT and ASYLUM type relief
Admittedly, this is an odd title for a blog post. However, the focus of this entry is tactics -- and it is not just limited to removal proceedings. Specifically, this post will cover the difference between ASYLUM and WITHOLDING relief/submissions and CAT/TPS claims.
The key difference between the two groups is focus. A CAT (Convention Against Torture) and TPS (Temporary Protective Status) claim focuses NOT on the client or alien, but rather on the state of the country from which he/she comes. What are the conditions of the home country? Would the alien likely be tortured or killed if they returned? Is the country listed on the TPS register (State Department)? Whether the fear or torture is reasonable or not, or whether this particular alien is well founded in his or her fear has much less weight.
A brief note about TPS and CAT: TPS is not so much a defense, as it is a request by an alien, already present in the US, to be allowed to stay while conditions in his home country are bad. Determination of which countries qualify for TPS classification is made by the State Department. CAT is a defense application. It is made in front of an immigration judge using form I-589. This requests the judge not deport the alien because, if returned to his home country, the alien would be subject to murder, torture, or other bad acts perpetrated by the government, as a result of his belonging to a protected group. No evidence of prior bad acts against this alien is required in either TPS or CAT (although it does help).
Asylum and withholding are a different kettle of fish. Asylum requests, made before or during the pendency of an immigration trial, require a well-founded fear on the part of the asylum seeker. This fear must have credible roots in the past experience of the alien; his/her fear must stem from prior events, or situations in which the alien was directly involved, or directly threatened. Asylum is "alien"-centric. Additionally, asylum is only available to individuals of good moral conduct. Those with certain types of criminal convictions (called aggravated felonies)are barred from asylum relief.
Withholding is only available during an immigration trial. It is a request to the judge to "withhold" deportation (removal) because of the alien's "reasonable fear" of returning to the alien's home country. This is a lesser standard than the asylum "well founded fear", and is designed to cover a much broader category in immigration defense. An immigrant who is granted "withholding" by a judge may apply for work authorization, but may not adjust status to LPR (green card holder), and may not bring family members with him/her (called derivative status) -- which makes withholding a much lesser step-child to asylum.
Hanover Law can help in determining which relief you qualify for -- before you are detained by ICE OR if you are already in removal proceedings. Do NOT sign any documents from ICE without consulting with us first! If detained, DO NOT agree to any plea until you speak with us. A poor choice of words, or the wrong signature, can cause horrible consequences, and prevent many of the types of rlief discussed herein from applying to you.
We at Hanover Law have been working with just these types of immigration cases for some time. We are sensitive to the frightening and often bewildering nature of the immigration process, and we can help you understand what is happening, and the best steps you need to take.
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
Contact Us
The key difference between the two groups is focus. A CAT (Convention Against Torture) and TPS (Temporary Protective Status) claim focuses NOT on the client or alien, but rather on the state of the country from which he/she comes. What are the conditions of the home country? Would the alien likely be tortured or killed if they returned? Is the country listed on the TPS register (State Department)? Whether the fear or torture is reasonable or not, or whether this particular alien is well founded in his or her fear has much less weight.
A brief note about TPS and CAT: TPS is not so much a defense, as it is a request by an alien, already present in the US, to be allowed to stay while conditions in his home country are bad. Determination of which countries qualify for TPS classification is made by the State Department. CAT is a defense application. It is made in front of an immigration judge using form I-589. This requests the judge not deport the alien because, if returned to his home country, the alien would be subject to murder, torture, or other bad acts perpetrated by the government, as a result of his belonging to a protected group. No evidence of prior bad acts against this alien is required in either TPS or CAT (although it does help).
Asylum and withholding are a different kettle of fish. Asylum requests, made before or during the pendency of an immigration trial, require a well-founded fear on the part of the asylum seeker. This fear must have credible roots in the past experience of the alien; his/her fear must stem from prior events, or situations in which the alien was directly involved, or directly threatened. Asylum is "alien"-centric. Additionally, asylum is only available to individuals of good moral conduct. Those with certain types of criminal convictions (called aggravated felonies)are barred from asylum relief.
Withholding is only available during an immigration trial. It is a request to the judge to "withhold" deportation (removal) because of the alien's "reasonable fear" of returning to the alien's home country. This is a lesser standard than the asylum "well founded fear", and is designed to cover a much broader category in immigration defense. An immigrant who is granted "withholding" by a judge may apply for work authorization, but may not adjust status to LPR (green card holder), and may not bring family members with him/her (called derivative status) -- which makes withholding a much lesser step-child to asylum.
Hanover Law can help in determining which relief you qualify for -- before you are detained by ICE OR if you are already in removal proceedings. Do NOT sign any documents from ICE without consulting with us first! If detained, DO NOT agree to any plea until you speak with us. A poor choice of words, or the wrong signature, can cause horrible consequences, and prevent many of the types of rlief discussed herein from applying to you.
We at Hanover Law have been working with just these types of immigration cases for some time. We are sensitive to the frightening and often bewildering nature of the immigration process, and we can help you understand what is happening, and the best steps you need to take.
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
Contact Us
Sunday, June 24, 2012
EWI -- Entry without Inspection
There was an interesting question on the AILA Boards recently (America Immigration Lawyers Association). The question dealt with an individual who had entered the U.S. twice via EWI (or just "EWI" which is pronounced "eee-weee"). The individual was married to a U.S. citizen, but in a nutshell, the question could be distilled to: What is the effect of double EWI on an I-130 application for change of status when the illegal is married to a U.S. citizen?
The problem is that a double EWI (plus one year of unlawful residence in the US) is an automatic permanent bar to U.S. citizenship -- or, in fact, any entry into the U.S. at all. That means no visa, no LPR, no spousal waiver -- nadda. See INA code section INA 212(a)(9)(C)(i)(I).
To analyze this problem, we first must discuss what the heck an EWI is. EWI means you entered the U.S. without going through a custom's "portal", such as an airport, border crossing, etc. In some instances, such as Canada/U.S. border, where the citizen is Canadian or U.S., this is really rarely a problem, as our open borders largely allow for effortless travel back and forth (although, in reality, every person coming into the U.S. should obtain at least an electronic visa waiver submission). This becomes a very large problem for folks coming from south of the border (Mexico, Central and South Americas). Sneaking across the border, being smuggled or just finding oneself in the U.S. are all examples of EWI situations.
But to trigger the really vile form of permanent barring discussed in the second paragraph above, the immigrant must enter the U.S. EWI once, then return to his/her country (or just outside the U.S.) -- and then re-enter AGAIN EWI.
How does the government determine EWI status? This is tricky. If you snuck in, and have never filed for benefits, paid taxes, or otherwise "appeared on the radar", it is unlikely the government even knows you are here. In such case the entire concept of EWI is meaningless...you simply don't exist as far as the government is concerned.
99% of ALL EWI "detections" come because an immigrant admits to ICE or a custom patrol officer that he/she has entered and exited the U.S. multiple times. It often seems much easier to just tell the officer everything. Without encouraging any form of misrepresentation, I strongly advise you consult an attorney before saying ANYTHING to ANYONE about your immigration status. You need to know the effect of indicating you are EWI -- and what it means if you tell the government you have entered/exited/and re-entered (double EWI). You could be barred from the U.S. forever.
What happens if you do find yourself with a double EWI and facing deportation? It is possible to file an I-212 (usually requires a 10 year waiting period before a waiver can be granted for a double EWI violation) in conjunction with an I-601 (spousal hardship) and hope for the best. Additionally, Asylum/Withholding/CAT may be available as alternative affirmative alternative (admitting deportability while offering alternative justification to jam the removal). It is critical you speak to an attorney about this immediately.
We at Hanover Law have been working with just these types of immigration cases for some time. We are sensitive to the frightening and often bewildering nature of the immigration process, and we can help you understand what is happening, and the best steps you need to take.
A good attorney will plot out a strategy that offers the highest possibility of success. It should be noted that frequently, there is little that is guaranteed in a double EWI case. Many clients like to know the "odds" of success -- a common, and perfectly acceptable question. In double EWI cases, the odds are not great, and often rely more on the disposition of the immigration judge and prosecutor then anything else. However, a good lawyer can develop a compelling narrative and ensure every possible opportunity to stay is developed.
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
Contact Us
The problem is that a double EWI (plus one year of unlawful residence in the US) is an automatic permanent bar to U.S. citizenship -- or, in fact, any entry into the U.S. at all. That means no visa, no LPR, no spousal waiver -- nadda. See INA code section INA 212(a)(9)(C)(i)(I).
To analyze this problem, we first must discuss what the heck an EWI is. EWI means you entered the U.S. without going through a custom's "portal", such as an airport, border crossing, etc. In some instances, such as Canada/U.S. border, where the citizen is Canadian or U.S., this is really rarely a problem, as our open borders largely allow for effortless travel back and forth (although, in reality, every person coming into the U.S. should obtain at least an electronic visa waiver submission). This becomes a very large problem for folks coming from south of the border (Mexico, Central and South Americas). Sneaking across the border, being smuggled or just finding oneself in the U.S. are all examples of EWI situations.
But to trigger the really vile form of permanent barring discussed in the second paragraph above, the immigrant must enter the U.S. EWI once, then return to his/her country (or just outside the U.S.) -- and then re-enter AGAIN EWI.
How does the government determine EWI status? This is tricky. If you snuck in, and have never filed for benefits, paid taxes, or otherwise "appeared on the radar", it is unlikely the government even knows you are here. In such case the entire concept of EWI is meaningless...you simply don't exist as far as the government is concerned.
99% of ALL EWI "detections" come because an immigrant admits to ICE or a custom patrol officer that he/she has entered and exited the U.S. multiple times. It often seems much easier to just tell the officer everything. Without encouraging any form of misrepresentation, I strongly advise you consult an attorney before saying ANYTHING to ANYONE about your immigration status. You need to know the effect of indicating you are EWI -- and what it means if you tell the government you have entered/exited/and re-entered (double EWI). You could be barred from the U.S. forever.
What happens if you do find yourself with a double EWI and facing deportation? It is possible to file an I-212 (usually requires a 10 year waiting period before a waiver can be granted for a double EWI violation) in conjunction with an I-601 (spousal hardship) and hope for the best. Additionally, Asylum/Withholding/CAT may be available as alternative affirmative alternative (admitting deportability while offering alternative justification to jam the removal). It is critical you speak to an attorney about this immediately.
We at Hanover Law have been working with just these types of immigration cases for some time. We are sensitive to the frightening and often bewildering nature of the immigration process, and we can help you understand what is happening, and the best steps you need to take.
A good attorney will plot out a strategy that offers the highest possibility of success. It should be noted that frequently, there is little that is guaranteed in a double EWI case. Many clients like to know the "odds" of success -- a common, and perfectly acceptable question. In double EWI cases, the odds are not great, and often rely more on the disposition of the immigration judge and prosecutor then anything else. However, a good lawyer can develop a compelling narrative and ensure every possible opportunity to stay is developed.
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
Contact Us
Friday, June 8, 2012
TAX: Failed to file proper Sub-S Election? IRS Proc. 2003-43
So...you are frustrated! Your sub-s company receives an IRS Notice and an IRS Letter from your accountant apologizing for an odd problem -- it appears that your IRS form 2553 (Election by a Small Business Corporation) was not received in time for this years taxes. Despite having filed the taxes timely, and sent appropriate K-1's, the IRS is now considering the company as a standard "C" corporation. This has devastating consequences for taxes and the treatment of corporate income.
You are not alone. Misfiled, lost, or not-filed elections are quite common in small business. If the IRS processes your company as a "C" corporation instead of an "S" corporation, the most obvious result is that pass-thru income is no longer a valid tool in your corporate tax tool-box. The firm itself will now owe taxes on the net income earned by the company. Individuals who received distributions from the company will still owe taxes on the amount earned. This is the cursed "double taxation" in corporate America, and the key reason for "S" corporation (and LLC's which were developed later, and receive the same tax benefits).
So what is the remedy? The IRS has several regulation that govern an "oops, I missed the filing of my election" situation. If you have a valid excuse (hard to imagine, but they do exist), then Revenue Procedure (Notice) 97-48 allows you to correct this without a direct ruling by the local district manager. If the error was inadvertent only (i.e. no excusable cause), file under Revenue Procedure 2003-43 which allows for a mistake in filing if you correct the error timely (24 months from the date the original election was due), and you are not behind on any of your corporate taxes. You will need to complete the form 2553, write across the top of form 2553 "FILED PURSUANT TO REV.PROC. 2003-43" and include (1) a statement that the filing is late because of an inadvertent filing error, (2) the principal of the business needs to sign a letter indicating that to the best of his/her knowledge, the corrected filing is accurate, (3) and each shareholder must sign that they understand and agree to the election of the Sub-S status dating back to the first taxable instance where such a status is desired.
What happens if your 2553 is rejected (after filing under REV.PROC. 2003-43)? You may always petition for a letter from the IRS director granting you an exception. These are generally granted, but unlike the 2553 avenue, you have to pay (I believe it is currently $180) for this letter ruling.
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
Contact Us ------------- SUMMARY OF THE CODE: In part, Rev.Proc 2003-43 reads: SECTION 1. PURPOSE This revenue procedure provides a simplified method for taxpayers to request relief for late S corporation elections, Electing Small Business Trust (ESBT) elections, Qualified Subchapter S Trust (QSST) elections and Qualified Subchapter S Subsidiary (QSub) elections. Generally, this revenue procedure provides that certain eligible entities may be granted relief for failing to file these elections in a timely manner if the request for relief is filed within 24 months of the due date of the election. Accompanying this document is a flowchart designed to aid taxpayers in applying this revenue procedure. . . . .02 Eligibility for Relief. Relief is available under section 4.04 of this revenue procedure if the following requirements are met: (1) The entity fails to qualify for its intended status as an S corporation, ESBT, QSST, or QSub on the first day that status was desired solely because of the failure to file the appropriate Election Under Subchapter S timely with the applicable service center; (2) Less than 24 months have passed since the original Due Date of the Election Under Subchapter S; (3) Either, (a) the entity is seeking relief for a late S corporation or QSub election and the entity has reasonable cause for its failure to make the timely Election Under Subchapter S, or (b) the S corporation and the entity are seeking relief for an inadvertent invalid S corporation election or an inadvertent termination of an S corporation election due to the failure to make the timely ESBT or QSST election and the failure to file the timely Election Under Subchapter S was inadvertent; and (4) Either, (a) all of the following requirements are met: (i) the entity seeking to make the election has not filed a tax return (in the case of QSubs, the parent has not filed a tax return) for the first year in which the election was intended, (ii) the application for relief is filed under this revenue procedure no later than 6 months after the due date of the tax return (excluding extensions) of the entity seeking to make the election (in the case of QSubs, the due date of the tax return of the parent) for the first year in which the election was intended, and, (iii) no taxpayer whose tax liability or tax return would be affected by the Election Under Subchapter S (including all shareholders of the S corporation) has reported inconsistently with the S corporation election (as well as any ESBT, QSST or QSub elections), on any affected return for the year the Election Under Subchapter S was intended; or (b) all of the following requirements are met: (i) the entity seeking to make the election has filed a tax return (in the case of QSubs, the parent has filed a tax return) for the first year in which the election was intended within 6 months of the due date of the tax return (excluding extensions), and (ii) all taxpayers whose tax liability or tax returns would be affected by the Election Under Subchapter S (including all shareholders of the S corporation) have reported consistently with the S corporation election (as well as any ESBT, QSST or QSub elections), on all affected returns for the year the Election Under Subchapter S was intended, as well as for any subsequent years. .03 Procedural Requirements for Relief. (1) Procedural Requirements When a Tax Return Has Not Been Filed for the First Year of the Intended Election Under Subchapter S. If the entity seeking the election has not filed a tax return for the first taxable year of the intended Election Under Subchapter S, the entity may request relief for the late Election Under Subchapter S by filing with the applicable service center the properly completed election form(s). The election form(s) must be filed within 18 months of the original Due Date of the intended Election Under Subchapter S (but in no event later than 6 months after the due date of the tax return (excluding extensions) of the entity (in the case of QSubs, the due date of the tax return of the parent) for the first year in which the election was intended) and must state at the top of the document "FILED PURSUANT TO REV. PROC. 2003-XX." Attached to the election form must be a statement establishing either reasonable cause for the failure to file the Election Under Subchapter S timely (in the case of S corporation or QSub elections), or a statement establishing that the failure to file the Election Under Subchapter S timely was inadvertent (in the case of ESBT or QSST elections.) (2) Procedural Requirements When a Tax Return Has Been Filed for the First Year of the Intended Election Under Subchapter S. If the entity seeking the election has filed a tax return for the first taxable year of the intended Election Under Subchapter S within 6 months of the due date of that tax return (excluding extensions), then the entity may request relief for the late Election Under Subchapter S by filing with the applicable service center the properly completed election form(s) and the supporting documents described below. The election form(s) must be filed within 24 months of the original Due Date for the Election Under Subchapter S and must state at the top of the document "FILED PURSUANT TO REV. PROC. 2003-XX." Attached to the election form must be a statement establishing either reasonable cause for the failure to file the Election Under Subchapter S timely (in the case of S corporation or QSub elections), or a statement establishing that the failure to file the Election Under Subchapter S timely was inadvertent (in the case of ESBT or QSST elections.) The following additional documents must be attached to the election form (if applicable): (a) S Corporations. An entity seeking relief for a late S corporation election must file a completed Form 2553, signed by an officer of the corporation authorized to sign and all persons who were shareholders at any time during the period that began on the first day of the taxable year for which the election is to be effective and ends on the day the election is made. The completed election form must include the following material: (i) Statements from all shareholders during the period between the date the S corporation election was to have become effective and the date the completed election was filed that they have reported their income (on all affected returns) consistent with the S corporation election for the year the election should have been made and for all subsequent years; and (ii) A dated declaration signed by an officer of the corporation authorized to sign which states: "Under penalties of perjury, I declare that, to the best of my knowledge and belief, the facts presented in support of this election are true, correct, and complete."
You are not alone. Misfiled, lost, or not-filed elections are quite common in small business. If the IRS processes your company as a "C" corporation instead of an "S" corporation, the most obvious result is that pass-thru income is no longer a valid tool in your corporate tax tool-box. The firm itself will now owe taxes on the net income earned by the company. Individuals who received distributions from the company will still owe taxes on the amount earned. This is the cursed "double taxation" in corporate America, and the key reason for "S" corporation (and LLC's which were developed later, and receive the same tax benefits).
So what is the remedy? The IRS has several regulation that govern an "oops, I missed the filing of my election" situation. If you have a valid excuse (hard to imagine, but they do exist), then Revenue Procedure (Notice) 97-48 allows you to correct this without a direct ruling by the local district manager. If the error was inadvertent only (i.e. no excusable cause), file under Revenue Procedure 2003-43 which allows for a mistake in filing if you correct the error timely (24 months from the date the original election was due), and you are not behind on any of your corporate taxes. You will need to complete the form 2553, write across the top of form 2553 "FILED PURSUANT TO REV.PROC. 2003-43" and include (1) a statement that the filing is late because of an inadvertent filing error, (2) the principal of the business needs to sign a letter indicating that to the best of his/her knowledge, the corrected filing is accurate, (3) and each shareholder must sign that they understand and agree to the election of the Sub-S status dating back to the first taxable instance where such a status is desired.
What happens if your 2553 is rejected (after filing under REV.PROC. 2003-43)? You may always petition for a letter from the IRS director granting you an exception. These are generally granted, but unlike the 2553 avenue, you have to pay (I believe it is currently $180) for this letter ruling.
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
Contact Us ------------- SUMMARY OF THE CODE: In part, Rev.Proc 2003-43 reads: SECTION 1. PURPOSE This revenue procedure provides a simplified method for taxpayers to request relief for late S corporation elections, Electing Small Business Trust (ESBT) elections, Qualified Subchapter S Trust (QSST) elections and Qualified Subchapter S Subsidiary (QSub) elections. Generally, this revenue procedure provides that certain eligible entities may be granted relief for failing to file these elections in a timely manner if the request for relief is filed within 24 months of the due date of the election. Accompanying this document is a flowchart designed to aid taxpayers in applying this revenue procedure. . . . .02 Eligibility for Relief. Relief is available under section 4.04 of this revenue procedure if the following requirements are met: (1) The entity fails to qualify for its intended status as an S corporation, ESBT, QSST, or QSub on the first day that status was desired solely because of the failure to file the appropriate Election Under Subchapter S timely with the applicable service center; (2) Less than 24 months have passed since the original Due Date of the Election Under Subchapter S; (3) Either, (a) the entity is seeking relief for a late S corporation or QSub election and the entity has reasonable cause for its failure to make the timely Election Under Subchapter S, or (b) the S corporation and the entity are seeking relief for an inadvertent invalid S corporation election or an inadvertent termination of an S corporation election due to the failure to make the timely ESBT or QSST election and the failure to file the timely Election Under Subchapter S was inadvertent; and (4) Either, (a) all of the following requirements are met: (i) the entity seeking to make the election has not filed a tax return (in the case of QSubs, the parent has not filed a tax return) for the first year in which the election was intended, (ii) the application for relief is filed under this revenue procedure no later than 6 months after the due date of the tax return (excluding extensions) of the entity seeking to make the election (in the case of QSubs, the due date of the tax return of the parent) for the first year in which the election was intended, and, (iii) no taxpayer whose tax liability or tax return would be affected by the Election Under Subchapter S (including all shareholders of the S corporation) has reported inconsistently with the S corporation election (as well as any ESBT, QSST or QSub elections), on any affected return for the year the Election Under Subchapter S was intended; or (b) all of the following requirements are met: (i) the entity seeking to make the election has filed a tax return (in the case of QSubs, the parent has filed a tax return) for the first year in which the election was intended within 6 months of the due date of the tax return (excluding extensions), and (ii) all taxpayers whose tax liability or tax returns would be affected by the Election Under Subchapter S (including all shareholders of the S corporation) have reported consistently with the S corporation election (as well as any ESBT, QSST or QSub elections), on all affected returns for the year the Election Under Subchapter S was intended, as well as for any subsequent years. .03 Procedural Requirements for Relief. (1) Procedural Requirements When a Tax Return Has Not Been Filed for the First Year of the Intended Election Under Subchapter S. If the entity seeking the election has not filed a tax return for the first taxable year of the intended Election Under Subchapter S, the entity may request relief for the late Election Under Subchapter S by filing with the applicable service center the properly completed election form(s). The election form(s) must be filed within 18 months of the original Due Date of the intended Election Under Subchapter S (but in no event later than 6 months after the due date of the tax return (excluding extensions) of the entity (in the case of QSubs, the due date of the tax return of the parent) for the first year in which the election was intended) and must state at the top of the document "FILED PURSUANT TO REV. PROC. 2003-XX." Attached to the election form must be a statement establishing either reasonable cause for the failure to file the Election Under Subchapter S timely (in the case of S corporation or QSub elections), or a statement establishing that the failure to file the Election Under Subchapter S timely was inadvertent (in the case of ESBT or QSST elections.) (2) Procedural Requirements When a Tax Return Has Been Filed for the First Year of the Intended Election Under Subchapter S. If the entity seeking the election has filed a tax return for the first taxable year of the intended Election Under Subchapter S within 6 months of the due date of that tax return (excluding extensions), then the entity may request relief for the late Election Under Subchapter S by filing with the applicable service center the properly completed election form(s) and the supporting documents described below. The election form(s) must be filed within 24 months of the original Due Date for the Election Under Subchapter S and must state at the top of the document "FILED PURSUANT TO REV. PROC. 2003-XX." Attached to the election form must be a statement establishing either reasonable cause for the failure to file the Election Under Subchapter S timely (in the case of S corporation or QSub elections), or a statement establishing that the failure to file the Election Under Subchapter S timely was inadvertent (in the case of ESBT or QSST elections.) The following additional documents must be attached to the election form (if applicable): (a) S Corporations. An entity seeking relief for a late S corporation election must file a completed Form 2553, signed by an officer of the corporation authorized to sign and all persons who were shareholders at any time during the period that began on the first day of the taxable year for which the election is to be effective and ends on the day the election is made. The completed election form must include the following material: (i) Statements from all shareholders during the period between the date the S corporation election was to have become effective and the date the completed election was filed that they have reported their income (on all affected returns) consistent with the S corporation election for the year the election should have been made and for all subsequent years; and (ii) A dated declaration signed by an officer of the corporation authorized to sign which states: "Under penalties of perjury, I declare that, to the best of my knowledge and belief, the facts presented in support of this election are true, correct, and complete."
Friday, May 18, 2012
Defamation and Slander
Everybody has experienced this -- someone has spread rumors or nasty comments about you or your activities to others. When does this conduct rise to the level of defamation?
Defamation is defined (Blacks Law Dictionary) as: "intentional, unprivileged, false communication, either published or publically spoken, that injures another’s reputation or good name". Generally, defamation is a general heading for for the two specific torts of libel (written defamation) and slander (spoken defamation). For the purposes of this general overview, both the tort of libel and the tort of slander follow the same requirements as general defamation.
To prove a case of defamation, the plaintiff must show:
For #4, the amount of lose required to be proven varies on the individual making the claim, and the type of damages sought. Generally, a business suing under a defamation cause of action is not required to prove damages -- it is understood that economic damages result in any untrue statements to could reasonably cause another person to do business elsewhere.
Key aspects of defamation to remember:
The first step in a defamation case is the "cease and desist" letter -- or a "notice" letter. This letter, drafted by an attorney, puts the offending party on notice that they are either in danger of, or have already committed, some form of defamation. The letter should be specific, and it should indicate the action that gave rise to the complaint. After the offending party receives the "notice", any further defamatory acts on his/her/their part constitutes intentional conduct, per se, as they have been notified of their conduct regarding the plaintiff. It should be noted that, if the offending party, upon receipt of the plaintiff's notice, retracts their statement, or contacts to the plaintiff to explain their action in such a way as to remove "intentional defamation" from their conduct, the ability to show intent, and therefore a valid cause of action under defamation, decreases significantly. The law encourages this. The purposes of defamation lawsuits is to punish those that either intentionally defame others or refuse to stop egregious conduct. When a party is notified they have wronged the plaintiff, and after notification, stops and attempts to correct the malfeasance, a finding under defamation is much harder (although when the offending party's conduct is truly abhorrent, and slanderous or libelous, a finding may still be had...just for less damages).
Can punitive damages be had in a defamation case? Yes. Called an "intentional tort", defamation, and it's children torts, permit suing for punitive damages (called "special damages" in some jurisdictions), when the plaintiff can show direct, economic loss stemming from the defamation, no remedial action on the part of the offending party when put on "notice", or the conduct continued after being put on "notice", and the plaintiff is not in a special category that limits or removes the right to sue for punitive damages (public figures, for example).
If you are not eligible for punitive damages, what relief can you get? In a defamation case, the primary relief is equitable -- it's called an injunction. An injunction is a court order telling a person, group, or organization to "do" something. In this case, the court would order the offending party to stop their conduct, and possibly publish a retraction. Additionally, if the plaintiff suffered economic loss, including attorney fees, the offending party could be made to pay that amount back to the plaintiff (not punitive..strictly reimbursement for documented loses).
When is a false statement more than an opinion? Opinions do not give rise to defamation suits. No matter how insulting or frustrating an opinion may be -- when an offending party states a private opinion, they are protected under the 1st amendment. But how far can a statement go, and still be considered an opinion?
Generally, the court looks at these factors:
Remember, because much of defamation law is controlled by common-law (meaning, the scope, reach, and interpretation is created by cases heard and decided in court, not statutes passed by an elected assembly), application of defamation laws vary widely from jurisdiction to jurisdiction and state to state.
Do you need assistance with a cease and desist letter? Have you received a notice from another attorney? A phone discussion is free, and a thorough analysis of your case is only $150 -- and we credit that towards full representation if you opt to go with Hanover Law!
Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
Defamation is defined (Blacks Law Dictionary) as: "intentional, unprivileged, false communication, either published or publically spoken, that injures another’s reputation or good name". Generally, defamation is a general heading for for the two specific torts of libel (written defamation) and slander (spoken defamation). For the purposes of this general overview, both the tort of libel and the tort of slander follow the same requirements as general defamation.
To prove a case of defamation, the plaintiff must show:
- 1. The offending party acted intentionally, and
- 2. The offending party's statement was publicly uttered (i.e. it was published or spoken), and
- 3. The offending party's statement was false, and
- 4. The offending party's statement caused some economic loss
For #4, the amount of lose required to be proven varies on the individual making the claim, and the type of damages sought. Generally, a business suing under a defamation cause of action is not required to prove damages -- it is understood that economic damages result in any untrue statements to could reasonably cause another person to do business elsewhere.
Key aspects of defamation to remember:
- The statement must be false.
- The statement must be public.
- The action must be intentional.
Merely because you don't like what the other party said, or you feel it was unfair, does not give rise to a defamation cause of action. The statement made must be false, and it must be more than a mere opinion.
All types of defamation require the offending party to utter their defamatory words to another. Just emailing, calling or writing to you is not enough. It must be documented and it must be to someone else.
The offending party had to make his/her/their statement knowing it was false and intending to harm the plaintiff. Misquoting or inadvertently slandering another by omission or mistake does not give a cause of action under defamation statutes or common law.
The first step in a defamation case is the "cease and desist" letter -- or a "notice" letter. This letter, drafted by an attorney, puts the offending party on notice that they are either in danger of, or have already committed, some form of defamation. The letter should be specific, and it should indicate the action that gave rise to the complaint. After the offending party receives the "notice", any further defamatory acts on his/her/their part constitutes intentional conduct, per se, as they have been notified of their conduct regarding the plaintiff. It should be noted that, if the offending party, upon receipt of the plaintiff's notice, retracts their statement, or contacts to the plaintiff to explain their action in such a way as to remove "intentional defamation" from their conduct, the ability to show intent, and therefore a valid cause of action under defamation, decreases significantly. The law encourages this. The purposes of defamation lawsuits is to punish those that either intentionally defame others or refuse to stop egregious conduct. When a party is notified they have wronged the plaintiff, and after notification, stops and attempts to correct the malfeasance, a finding under defamation is much harder (although when the offending party's conduct is truly abhorrent, and slanderous or libelous, a finding may still be had...just for less damages).
Can punitive damages be had in a defamation case? Yes. Called an "intentional tort", defamation, and it's children torts, permit suing for punitive damages (called "special damages" in some jurisdictions), when the plaintiff can show direct, economic loss stemming from the defamation, no remedial action on the part of the offending party when put on "notice", or the conduct continued after being put on "notice", and the plaintiff is not in a special category that limits or removes the right to sue for punitive damages (public figures, for example).
If you are not eligible for punitive damages, what relief can you get? In a defamation case, the primary relief is equitable -- it's called an injunction. An injunction is a court order telling a person, group, or organization to "do" something. In this case, the court would order the offending party to stop their conduct, and possibly publish a retraction. Additionally, if the plaintiff suffered economic loss, including attorney fees, the offending party could be made to pay that amount back to the plaintiff (not punitive..strictly reimbursement for documented loses).
When is a false statement more than an opinion? Opinions do not give rise to defamation suits. No matter how insulting or frustrating an opinion may be -- when an offending party states a private opinion, they are protected under the 1st amendment. But how far can a statement go, and still be considered an opinion?
Generally, the court looks at these factors:
- 1. Is the statement an overt fact? (i.e. Sam broke into my store and stole my shovel.)
- 2. Would a reasonable person believe the statement to be fact? (i.e. I used the placement agency before, and have years of experience in consulting work. The placement firm is dishonest and mistreats its applicants.)
Remember, because much of defamation law is controlled by common-law (meaning, the scope, reach, and interpretation is created by cases heard and decided in court, not statutes passed by an elected assembly), application of defamation laws vary widely from jurisdiction to jurisdiction and state to state.
Do you need assistance with a cease and desist letter? Have you received a notice from another attorney? A phone discussion is free, and a thorough analysis of your case is only $150 -- and we credit that towards full representation if you opt to go with Hanover Law!
Sean R. Hanover, Esq
HanoverLawPC.com
Contact Us
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