Asking for forgiveness from the IRS -- Form 843

Source: http://politicalhumor.about.com/od/taxes/ss/tax-cartoons.htm#step4

With tax season rolling around, we've received numerous questions regarding how to avoid paying penalties. Usually, we ask that clients come to us before the IRS wants to nail them, however, when you've made a boo-boo, or there is a mistake that needs correcting (or you just got caught cheating), sometimes the right answer can be found in form 843 -- Abatement of fees/costs/penalties. That's a fancy terms for waiving or lowering bad-boy penalties charged by the IRS.

Two criteria really make form 843 work well. First, if you filed to extend your tax paying deadline, and you let the IRS know there was an issue before you were late, you can almost always successfully ask for abatement (i.e. drop them penalties, b**ches...) Secondly, if the fault was not your own. For example, if you jointly filed, but your spouse didn't provide you with a W2, or an employer reported different numbers. Those would reasons. Additionally, we occasionally run into issue regarding pre-tax HSA spending (that's medical payments from your health savings account). If you don't file the correct forms, all the pre-paid tax credits are charged back to you, and any deductions from the account are not tax deductible. Oops! Correct the forms, and file and 843 to waive the penalty (if needed).

Be aware that in both instance above, timely filing of your taxes is critical. Although the IRS requires you to submit your estimated tax payment with the request for an extension, even if you do not, you have a good argument that you let them know what was going on. Communication is key. Finally, talk to a tax lawyer about form 843. No matter how good TurboTax or H&R Block is with tax processing, only a lawyer can give you legal advice about how to get out of an, "oops, I screwed up!" situation.

Finally, you MUST file a Form 864 if you intend to challenge your right to a refund or abatement in Court. Tax Court will NOT consider an abatement request that was not raised at an administrative hearing, or with an appeals officer. Giamelli v. Commissioner, 129 T.C. 107, 115 (2007). See also, Day v. Commissioner, T.C. Memo. 2014-215 (holding that an interest abatement claim was not properly raised in a CDP hearing where the taxpayer failed to follow advice to file Form 843 and provide other information in the CDP hearing). T.C. is an abbreviation for "tax court."

Do you have a tax question? We do taxes for business and individuals. We can help you find legal tax shelters, defend against audits, and even file 843's on your behalf! Never speak to the IRS without representation, and never respond to a proposed tax "correction" letter without consulting us first. Very important!. You may reach us at 1-800-579-9864 or Admin@HanoverLawPC.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq. Charlet Herr, Practice Manager
1-800-579-9864 admin@hanoverlawpc.com

Cats Paw theory of EEO liability (employment discrimination)

Source: Lean Business Club

I am in the middle of a case with the Department of Defense (DoD), and it's a rather interesting fact pattern that I thought I would share. In this instance, my client is alleging that a team lead, not his supervisor, was the individual who was discriminating against him. The Government has responded that my client's team lead was not a management official, and could not have caused a discriminatory environment (racial and national origin) because he was not in a position to oversee or make employment determinations regarding my client. Who's right?

To understand the issue, it is important to understand whether management listened to the team lead when it made decisions regarding my client. IF management based its decisions on the team lead's comments, independent of any research on their part, my client has a case. But, I get ahead of myself. All EEO cases start with a basic analysis of whether some action was taken against the client which violates equal employment laws. In this case, because it is federal, the law in question is 42 USC §2000e. Specific sections include:

Retaliation: 42 U.S.C. §2000e-3(a)
because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

Prohibition against government discrimination: 42 U.S.C. §2000e-16(a)
All personnel actions affecting employees or applicants for employment...shall be made free from any discrimination based on race, color, religion, sex, or national origin.

Once an analysis is done to determine if your client suffered some kind of adverse action based on one of the aforementioned classifications (note, there are others including failure to provide a reasonable accommodation, violation of the ADEA, etc. -- this is just a sample related to racial and national origin discrimination. Read the regs!), you need to determine who did the discriminatory actions. If management took adverse action, then you need to show it was based on an illegal premise. This "prima facia" showing (i.e. your client is protected, and some negative action was taken against them) is the initial launching point for discrimination lawsuits, and is explained in McDonald Douglas v. Green.

But what happens if your employer comes back and states that the decision maker never violated any rules or regulations, and the discriminatory conduct was done by an associate of your client? Is the employer still responsible? They are if the conduct was the basis for the employment action taken by the employer. By way of example: Suppose your client's supervisor sends your black client and a white co-worker on an assignment. While on the assignment, the co-worker tells your client that blacks can't do this job well, and usually the customers don't like blacks. Later, when your client and the co-worker return, the co-worker tells your client's supervisor that your client did a terrible job and was a bad fit for this type of work. The supervisor then fires your client.

In this example, the supervisor did not say or do anything discriminatory, and the firing itself was compliant with at-will employment standards. Yet, if you can show that the supervisor relied on the discriminatory animus of the co-worker, the co-worker's discrimination will be imputed to the supervisor. Bingo -- you have a case.

Staub v. Proctor Hosp., 562 US 411 (2011) is the seminal case in this area. In this case, the authority that fired Staub was an HR Manager who relied on the reports from a supervisor working with Staub. The Court held that: "If a supervisor performs an act motivated by unmilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable." Id at 422.

Several federal courts of appeals have applied Staub to Title VII claims rather than requiring the plaintiff to show that the ultimate decision maker possessed discriminatory intent. See, Bryant v. District of Columbia, 102 A.3d 264,268 Footnote 3 (D.C. 2014).

The breadth of individuals who could influence decision making managers was expanded to include non-supervisors as well. Most recently, “[t]he Cat's Paw refers to the situation in which a biased employee, who lacks decision-making authority but has discriminatory animus, convinces a formal decision-maker to take an adverse action against a third-party for a seemingly non-discriminatory reason.” Everhart v. Bd. of Educ., 2016 U.S. Dist. LEXIS 168790, Footnote 5 (D. Md. Dec. 2, 2016)

However, there must be some evidence of reliance on the subordinate’s statements or action by the decision maker. Showing this is sufficient to raise the specter of Cat’s Paw. Lobato v. New Mexico Environment Dept., 733 F.3d 1283 (10th Cir. 2013). "An employer is not liable under a subordinate bias theory if the employer did not rely on any facts from the biased subordinate in ultimately deciding to take an adverse employment action – even if the biased subordinate first alerted the employer to the plaintiff’s misconduct." Id. at 1295

Proving a Cat's Paw theory is an excellent way to prevent a summary judgment and ensure you will get before the judge or jury. Never let the government or a private employer argue that you don't have a right to bring forth a claim because, "the manager didn't do it." Even more so in sexual harassment cases. Watch for this, and slam them with a Cat's Paw argument.

Do you have a question about employment law -- either as the wronged employee or the abused employer? We can help! 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq. Charlet Herr, Practice Manager
1-800-579-9864 admin@hanoverlawpc.com

When is a signature on a contract non-binding?

It is not often we get to deal with antiquity in law -- so this was a great question recently posted on a legal bulletin board.

I signed up for a loyalty program. I then switched to another product not in the program. The loyalty company sent a letter and bill for 30,000 to "complete my commitment with them" Under the line I signed it say "this is a non-binding signature". Do I have to pay them?

This is an interesting case. Without reading the contract, it is hard to say what the terms and conditions of the loyalty program are (were?). You need to call us to discuss the contract -- and then I can provide a legal answer as to the level of liability/exposure you face. That aside, the case is interesting for its historical context. You wrote "non-binding signature" (or was that pre-printed?). In days of yore, a seal indicated that the signature had been verified. This was especially important in the age of wax stamps and individuals who could not read or write. A "sealed" document had its statute of limitations increased from the typical three years to five or even twenty years, and prevented the "sealed" signature from being contested as false or forged. In Virginia, the code for this is 8.01-246, and a "seal" is not required, and the period to bring an action in a contract case is consistent whether there is a seal or not.

In modern contract law, wording such as "non-binding" (or "(seal)") really only opens you up for protracted litigation. Under commercial contract regulations, any intent to enter into a contract can be used to indicate acceptance of terms and conditions in return for some kind of benefit. Signatures may not be required, if consent can be presumed from your acceptance of some benefit (for example, placing an order on the phone, and receiving the goods would obligate you to pay for the items ordered, even if you didn't sign anything). Conversely, indicating you refused to be bound by terms would arguably act as a rejection to the terms of the agreement. So, it's murky.

Do you have a question about contract law? Call us! We handle trials and contract negotiations in DC, VA, and MD.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq. Charlet Herr, Practice Manager
1-800-579-9864 admin@hanoverlawpc.com

Matter of Avetisyan and Immigration Court Case Control

A seasoned immigration attorney, Ms. Alison Yew, started a discussion regarding tactics in immigration court. I responded to her question, and thought the answer could be useful to other practitioners and individuals working on immigration cases.

Matter of Avetisyan is a case relating to the judge's discretion to admin close a matter over DHS's objections. The case states that "neither an Immigration Judge nor the Board may abdicate the responsibility to exercise independent judgment and discretion in a case by permitting a party’s opposition to act as an absolute bar to administrative closure of that case when circumstances otherwise warrant such action."

I've requested DHS's stipulation to _TERMINATE_ (as opposed to admin closure) on the grounds the respondent (my client) has basis to adjust status (married to US citizen, whose I-130 petition has been approved, and client entered the US on a visa which he has now overstayed). In my motion to terminate I want to use the Matter of Avetisyan, but this is an admin close case. Has any one successfully argued that Avetisyan applies to termination?

Great question, and sure, we've used this before. That case actually stands for the fact that an IJ can't relinquish his/her duty to decide a motion (or case!) to the DHS attorney. Although this was couched in the argument of admin closure, it is not strictly tied to that. The judge must weigh the merits his/herself. As such, it applies to any application or motion where you would like the judge to rule on an action over the objection of DHS. The exception, of course, is when a statute or CFR requires DHS concurrence in order to move forward.

"In deciding individual cases, an Immigration Judge must exercise his or her independent judgment and discretion and may take any action consistent with the Act and regulations that is appropriate and necessary for the disposition of such cases. 8 C.F.R. §1003.10(b)." - Matter of Avetisyan

If you have a question regarding immigration court, or tactics for handling (or closing!) your case, give us a ring! We'd be glad to help.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

How to file a 212H waiver in immigration court

Alright, this is a short and dirty posting today. I was doing research online, and noticed that there is a dearth of "how to" guides on 212(h) waivers. The 212(h) waiver is valid for LPR's who originally adjusted their status while in the US. Although 212(h) was designed for first time applicants, it is most often used (in the immigration court context) by LPR's who are returning from overseas, are stopped at the border by CBP (Custom and Border Protection).

Section 212(h) of the Immigration and Nationality Act provides that the Attorney General may, in his/her discretion, waive the application of subparagraph 212(a)(2)(A)(I) (crimes involving moral turpitude), 212(a)(2)(B) (multiple criminal convictions), 212(a)(2)(D) (prostitution and commercial vice), 212(a)(2)(E) (certain aliens who have asserted immunity from prosecution), and 212(a)(2)(A)(i)(II) (an offense of simple possession of 30 grams or less of marijuana). See, EOIR Judge's Benchbook regarding 212(h) relief. Additionally, In Matter of J-H-J-, 26 I.&N. Dec. 563 (BIA 2015), the waiver was extended to individuals who are convicted of aggravated felonies.

There are two types of 212(h) defenses:

1. If your client has been in the US for 15 years or more, BEFORE the filing of the 212(h). Note, this is NOT before the commission of the crime (or conviction thereof), rather before the 212(h) is filed.

2. If your client has NOT been in the US for 15 years, then he/she can file for a 212(h) on a showing of extreme hardship to a US Citizen of LPR family member. This is the same standard as the I-601.

To request type (2) relief above in immigration court, the attorney must file an I-601 with USCIS including paying the appropriate filing fees. Proof of payment of the fees, along with proof of mailing, is sufficient to initiate a 212(h) defense in the Court. You need to submit the filed I-601 and proof of payment (copy of the check and proof of mailing is usually sufficient), to request this relief.

No filing with USCIS is required when requesting 212(h) relief of type (1) above, as no hardship must be shown. This is merely an alternative to LPR cancellation.

Given that the LPR is likely detained (arriving aliens cannot get bond), make sure you have a 212(h)/601 application ready at the first hearing. This will allow you to request the earliest possible trial (merit's hearing) date.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

How to resolve an outstanding arrest warrant

Today's post is rather short. A question that we often run into in criminal law deals with warrants. This recent question on a law bulletin board we participate on is typical:

I have a parole violation warrant an would like to know how I should turn myself in. How do I do this?

Great question! There are generally three methods for resolving an outstanding warrant.

• (1) you are picked up by the police
• (2) you turn yourself in to the local police stations
• (3) you hire an attorney to make a motion on the docket of the local court, and ask that the arrest warrant be withdrawn (recalled, vacated, or dismissed) and a return date be given.

As you might imagine, option 1 is not desirable, as that almost always results in jail. In DC, I would always get an attorney to file on the docket (option 3). You don't want to sit in jail awaiting a hearing date on your parole violation. This is especially true if you believe they may revoke parole. In that case, you'll sit in jail until the actual parole violation hearing, likely you will not get another bond pending the trial on your parole violation (although, you can).

The term "return date" is legal jargon. It means a new date when you appear in Court for the judge to rule on the arrest warrant, and then to set the appropriate term of your continuing parole and/or violation hearing. Be cautious of the Bail Reform Act that can cause serious problems if you violate a return to court order. If you think that may have happened, you need to contact counsel immediately, as such a violation could result in up to 5 years in jail.

If you need help with getting your parole violation and arrest warrant resolved, give us a call! 703-402-2723.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com

What the HECK!? A story of co-worker harassment gone wild

Sometimes, conflicts spin out of control, and can get disruptive and even dangerous. Image from http://quotesgram.com/img/avoid-conflict-quotes-funny/3303875/

What happens when you work with a person that goes off the rails? Do you have to put up with it? Listen to this recent story posted on a law bulletin board we monitor:

I have learned that several people in my office are extremely concerned about the erratic behavior of a colleague and no one is sure how to handle the situation. This colleague has a unique personality and in the 2-3 years he has been employed everyone has been sensitive to this and generally people do not discuss it; however, on a few occasions we have speculated that he may be on the autism spectrum. This seems important now because we are not sure whether his escalating behavior is benign or if it may be extreme even for him. A couple of months ago, a new person who has a supervisory role over him was hired, and they immediately had poor chemistry. She claims only to interact with him on a business level, disregarding his behavior, and he plainly is disrespectful to her and speaks to her in a condescending tone. On one occasion approximately six weeks ago, she told him he needs to behave in a professional manner and that she wouldn't allow him to speak disrespectfully any longer. He went to his desk and sent her an email telling her to be more professional and respectful and then told a colleague to handle a meeting he was supposed to staff because he was enraged and had to go home. Shortly thereafter he did not go to an annual out of town meeting that all staff are required to attend; the reasons behind this were handled confidentially and staff only have vague rumors as an explanation. Since returning there has been no discussion of it. Upon returning, the supervisor discussed above and another colleague received emailed "reprimands" from this man that told both to behave more professionally and respectfully. The other colleague had not been involved in the personal dispute prior and she has kept her distance from this man since she received the reprimand. (Both women are organizationally senior to the young man who "reprimanded" them.) Prior to the 2016 presidential election, the young man taped photos of one of the presidential candidates and Adolf Hitler to his office window facing out toward employees, which disturbed several people who previously had chosen to ignore his disruptive behavior. Following the election, he replaced the photos with five posters that illustrate the four horsemen of the apocalypse and satan in the center. He has reduced his socialization with staff overall but has escalated his aggression toward the two women discussed above during this period. The vice president in charge of his department evidently did ask him to take down the apocalyptic images after two weeks. She has privately disclosed to the CEO that she feels this employee could be a potential threat to her safety and to others', but she said she is concerned about retribution if she disciplines him because she is worried his mental health and his sexuality may be used as the basis for a discrimination claim should she dismiss him. I am seeking professional advice about the appropriate measures. Despite the bad blood between the two individuals involved, everyone's concern is this young man's erratic behavior, which feels vaguely threatening and which has at least four women feeling fearful and "walking on eggshells" to avoid triggering potential violence.

This is more a narrative than an actual question. You need to tell your employer to contact an employment attorney immediately. Hanover Law both defends and prosecutes civil cases related to EEO and reasonable accommodation issues. Have your manager contact us now. I should note that the person who is acting erratically can sue both the employer and the manager herself. Delicate situations like this require ironclad processes and response. The law does NOT require that you tolerate abusive or disruptive behavior. However, it DOES require that you ensure all procedural safeguards have been met before taking action. The EEO defines harassment as follows:

Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.

Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.

Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including, but not limited to, the following:

• The harasser can be the victim's supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
• The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
• Unlawful harassment may occur without economic injury to, or discharge of, the victim.

See: EEO Harassment Guidelines

I would also refrain from any public comment of your employment issue (such as the outline you provided). If anything, that could be found later and used against you (to show your "true" feelings about the person). The important step here is to get counsel and discuss this privately. Your employer and the manager (supervisor) in question should do this without delay.

I should also note that by NOT taking action, the employer may be creating a hostile working environment for the remaining employees -- especially the other employees that he is accusing of being rude, and otherwise making them feel very uncomfortable. You cannot ignore this type of conduct.

Give us a ring at 703-402-2723 or 1-800-579-9864. You can also email us at admin@hanoverlawpc.com.