Dallas Bar Association
HEADNOTES August 2013 Volume 38 Number 8
Inspiring Women 2013
Focus Tax Law
DBA Dedicates 22nd Habitat House
On July 13, DBA dedicated its 22nd Habitat for Humanity home. DBA president Sally Crawford turned the keys over to the Thomas family, as volunteers celebrated the completion and dedication of the home. The DBA is the longest-running whole-house sponsor for the Dallas Area Habitat for Humanity. This year’s build was coordinated by DBA Home Project Co-Chairs KC Ashmore and Greg McAllister. To participate in the project for next year, contact Greg at gmcallister@ghjhlaw.com.
The DBA hosted the sixth annual “Inspiring Women” event on Friday, June 28. More than 550 members of the Dallas legal community came to hear inspiring stories from a panel of esteemed professional women who related humorous and honest insights into professionalism and how they have reached the pinnacles in their careers. Those participating in the panel included (left to right) Stephanie Zapata Moore, Luminant Energy; Hon. Stacey Jernigan, U.S. Bankruptcy Court; Chief Justice Carolyn Wright; Fifth District Court of Appeals; DBA President Sally Crawford, Jones Day; Emily Parker, Thompson & Knight LLP; Erin Nealy Cox, Stroz Friedberg LLC; and Karen Gren Scholer, Jones Day.
Focus
Tax Law
Five Things You Should Know About Tax Law by Jason B. Freeman
“Tax law”—the phrase is as likely to conjure images of pocket protectors and wire-rimmed glasses as to prompt a sudden burst of uncontrolled heart palpitations. Nonetheless, tax laws affect every lawyer’s practice. Here are a few tips for the less-tax-savvy counsel to help identify and diagnose some frequently faced tax issues: 1. Contingent Fees. When a lawyer works on a contingency-fee basis and the client recovers an award, the client generally must recognize and report the entire amount of the recovery as gross income, regardless of whether the lawyer’s contingency fee is paid directly by the client. For instance, if a jury awards a plaintiff $1 million and the lawyer keeps a 30-percent contingency fee, generally the plaintiff has $1 million of income, not $700,000—again, even if the client never touches the lawyer’s share. “So what?” you say, “can’t the client just deduct the fee?” Well, that depends. 2. Deducting Legal Fees. When it comes to deducting legal fees, not all fees are created equal. On one end of the spectrum, “ordinary and necessary” legal fees incurred in carrying on a trade or business are generally deductible. If a business is in
the start-up phase, expenditures on legal fees may not be immediately deductible because the taxpayer is not yet carrying on a trade or business. They may have to be “capitalized” instead. On the other end of the spectrum, legal fees incurred for purely personal purposes—for example, divorce—are generally non-deductible. The line between business and personal expenditures, however, is not always clear. Courts generally invoke the “origin of the claim” doctrine to determine their nature in the context of legal fees. Under that doctrine, even legal fees that may seem personal—for example, those incurred in defending a criminal bribery charge against an individual—may be deductible if the genesis of the claim is found in the taxpayer’s “trade or business.” Of course, the Internal Revenue Code also recognizes other categories of expenditures, some of which are accorded special treatment. For instance, legal fees for tax advice are deductible—even fees for nonbusiness, personal purposes are deductible to the extent they relate to tax advice. Thus, a lawyer can often minimize her after-tax cost to a client by distinguishing her fees continued on page 16
Inside 2
Law Jam 4: Rockin’ for Pro Bono!
9
The Civil Fraud Penalty
15 The New 3.8 Percent Medicare Contribution Tax 17 The Growing Crime of Tax Identity Theft
REMINDER: BELO CLOSED IN AUGUST The Belo Mansion will be closed during the month of August due to building renovations. No meetings or CLEs will be held during that time. The building will reopen Tuesday, September 3.
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GET YOUR TICKETS NOW FOR Saturday, August 17, 2013 Doors open at 5:30 p.m. Music starts at 6:00 p.m. The Granada Theater Lower Greenville Avenue
Listen to great music by lawyer bands: 6:00 p.m. – Black Dirt Tango 6:55 p.m. – Blue Collar Crime 7:50 p.m. – Big Wheel 9:00 p.m. – The Catdaddies 9:55 p.m. – Noah Snark 10:50 p.m. – Random Blue A night of great music, food and fun! Silent auction Proceeds benefit the Dallas Volunteer Attorney Program
Get Your Tickets Today at www.dbalawjam.org. Tickets: $25 in advance/$35 after August 2. Law Students Only $10! To become a Law Jam Sponsor contact Judi Smalling at jsmalling@dallasbar.org. A $100 sponsorship gets you in the door for free plus a free drink and publicity on the Law Jam website and during the event!!
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D al l as Bar A ssoci ati on l Headnotes 3
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Headnotes
President's Column
See you in September . . . at the Belo. By sally crawford
In case you have not heard, the Belo Mansion and Pavilion will be closed for the entire month of August for renovation. I know it is hard to believe but the Pavilion is celebrating its 10th anniversary this summer. It is time for a face lift for both the Pavilion and the Belo Mansion to ensure that the DBA continues to have outstanding meeting space for our members, as well as to serve as a leading event venue for the City of Dallas. In the process of raising funds for the renovation, it became clear that many of our members, especially the younger members, are unfamiliar with the history of the Belo Mansion and the Pavilion and its importance to the Dallas Bar. So I want to dedicate this President’s Column to the Mansion/Pavilion, the renovation and to those who have made both possible. Today everyone knows that the Dallas Bar headquarters is located at the Mansion/Pavilion. However, that has not always been the case. The DBA did not have an office separate from the office of its President until 1937. Between 1919 and 1922 CLE meetings took place in court rooms (usually the 14th and 44th) and in 1923 luncheon meetings (i.e., Saturday CLE’s) were inaugurated at the Oriental Hotel (later the Baker Hotel) located in downtown Dallas. The first administrative office of the DBA, a 15-foot cubicle, opened under the stairs of the Old Red Courthouse in 1937. Then in 1955 the Dallas Bar leased offices, dining and meeting facilities on the lobby level of the Adolphus Hotel. The DBA held its few CLE programs in a small room at the hotel and lunch was catered from across the street at the Metropolitan Club. In 1976 the offices moved to the Adolphus Tower but the demands of the DBA membership were fast outgrowing that space. In 1977, a group of Dallas Bar leaders discovered the A.H. Belo Mansion which was sitting vacant on Ross Avenue. The home was built for the A.H. Belo family in approximately 1900 and was occupied by them until 1922. In 1926 Loudermilk-Sparkman Funeral Home negotiated a 50-year lease with the Belo family and operated it as a funeral home until 1968. Even though the building was dilapidated when Dallas Bar leaders found it and in great need of maintenance and repair, the group envisioned how the old house could be transformed into a home for the DBA. Many of the DBA members, however, disagreed with this idea. In fact, some of the leadership thought it was a crazy idea to purchase the rundown, former funeral home on the other side of downtown adjacent to used car lots and warehouses. But the visionaries prevailed and on August 1, 1979 the DBA moved its offices to the Belo Mansion after spending $1.8 million to purchase and restore the building. While some of the members were excited about the 60 space parking lot behind the building and additional space to offer CLE programs to its growing membership, all DBA members were still not convinced that purchasing the Belo Mansion was the right thing to
do. Some even quit in protest. Of course now, with the Belo sitting squarely in the midst of the Dallas Arts District, those who championed the purchase of the Belo seem like geniuses! In 2001, to meet the ever increasing needs of its growing membership, the DBA embarked on a campaign to raise funds to build an addition to the Belo Mansion. The leadership raised over $14 million to build the Pavilion and the parking garage, which opened in 2003. Today the DBA has almost 11,000 members who enjoy the Mansion/Pavilion which can accommodate over 1,000 guests and features a 281 car parking garage. No other metropolitan bar association in the country has a facility anywhere near the size and quality enjoyed by our association. So what makes the Mansion/Pavilion so important to the DBA? Ownership of the Mansion/Pavilion, which is actually owned by the Dallas Bar Foundation, allows the DBA to keep our membership dues at a level lower than most major metropolitan bar associations in the country. Our highest dues level is $175 which compares to dues of $383 for the Philadelphia Bar Association, $275 for the Los Angeles County Bar and $420 for the Boston Bar Association, just to name a few. We have been able to keep our dues low because of the income received from the Mansion/Pavilion from community events. The fact that we do not have to pay high rental rates for the use of the facilities, not just for our staff but also for the members, allows us to offer over 400 CLE programs annually for free. Additionally, committee and section meetings are held at the Mansion/Pavilion throughout the year without charge. Most other bar associations charge their members $25 or more per credit hour for CLE programs and they must pay for meeting space. The monetary benefit of the Mansion/Pavilion to all of our membership is obvious, but is it necessary to renovate the Mansion/Pavilion now? The answer is “yes.” It is essential to maintain the Mansion/Pavilion as “Class A” space for our members and in order to generate income from its use by the community. The cost to maintain the Mansion/Pavilion, the garage and grounds is approximately $1 million per year. We are able to pay much of these costs from rental fees and royalties from Culinaire International, which provides catering and manages and coordinates some of the most extravagant functions in the City of Dallas at the Mansion/Pavilion. If our space is not competitive with other properties like the Ritz or the Crescent, it would not continue to be such a highly sought after venue. It should come as no surprise to DBA members to learn that the wear and tear on the building is enormous. The DBA alone has 29 sections and 38 committees, most of which meet monthly in the Mansion/Pavilion. Add to that meetings of other law-related groups, weddings and corporate functions, and it is projected that over a five-year period an estimated 375,000 people come through the Mansion/Pavilion. Due to this high volume of traffic, the facilities need to be renovated periodically. The renovation is not only important to maintain the facility as a leading event venue in the City, but also to preserve and protect the historic Belo Mansion and Belo Hall (built in 1936). In order to remain competitive in the market, the Mansion/Pavilion must be renovated every five years. Some of you may remember that the Mansion/Pavilion was closed for three weeks in August of 2008 for its first renovation. The 10-year renovation taking place this year will be far more extensive and, therefore, the Mansion/ Pavilion will be closed for approximately five weeks in August. This renovation will include replacing the carpet, replacing all wall coverings, painting, replacing the banquet chairs and upgrading the sound system that serves both the Mansion and the Pavilion. A competitive bidding process for the renovation began over a year ago and the total cost of the renovation is projected to be approximately $600,000. The renovation is being paid for primarily through the generosity of all of the sections of the Dallas Bar who contributed to the renovation. Every section, from the newest and smallest sections to the largest and oldest sections, contributed to the renovation. Additionally, Culinaire International, the Dallas Bar Foundation, the Dallas Association of Young Lawyers and the sister bars made generous contributions to the renovation. The remaining cost is being paid out of reserves established by the DBA to pay for extraordinary (not day-to-day) maintenance and repairs of the building. I would like to extend a huge “THANK YOU” to everyone who has contributed to the renovation project. You have helped to ensure that the DBA will continue to have the finest facilities of any bar association in the country available to its members for many years to come. Each of us benefits from the Mansion/Pavilion as a result of free CLE offered almost daily, low membership fees and the privilege of having a place to come together as a bar to share our professional experiences. Thank you to all who continue to make this possible. Even though the Mansion/Pavilion will be closed in August, do not forget that Law Jam 4 will be held at the Granada Theater on Lower Greenville on August 17. Law Jam will give you an opportunity to get together in August with your professional friends and family to enjoy the amazing talent of six lawyer bands—Black Dirt Tango, Blue Collar Crime, Big Wheel, The Catdaddies, Noah Snark and Random Blue. Not only will you be amazed by the talent in these groups, but it will give you an opportunity to come out and support my favorite group, the Dallas Volunteer Attorney Program. All proceeds from Law Jam go to support DVAP. Please check out the Law Jam 4 website at www.DBALawJam.org for more details. I hope to see you all on HN August 17th at Law Jam 4 at the Granada Theater.
Published by: DALLAS BAR ASSOCIATION 2101 Ross Avenue Dallas, Texas 75201 Phone: (214) 220-7400 Fax: (214) 220-7465 Website: www.dallasbar.org Established 1873 The DBA’s purpose is to serve and support the legal profession in Dallas and to promote good relations among lawyers, the judiciary, and the community. OFFICERS President: Sally L. Crawford President-Elect: Scott M. McElhaney First Vice President: Brad C. Weber Second Vice President: Jerry C. Alexander Secretary-Treasurer: John A. Goren Immediate Past President: Paul K. Stafford Directors: A. Shonn Brown (At-Large), Rob Crain (Chair), Wm. Frank Carroll, Hon. King Fifer (Judicial At-Large), Laura Benitez Geisler, Hon. Martin Hoffman, Michael K. Hurst (Vice Chair), Michele Wong Krause, Angelina LaPenotiere (President, Dallas Hispanic Bar Association), Karen McCloud, Christina McCracken (At-Large), Mandy Price (President, J.L. Turner Legal Association), Sarah Rogers (President, Dallas Association of Young Lawyers), Mary Scott, Scott Stolley, Diane M. Sumoski, Robert L. Tobey, Aaron Tobin and Jennifer Wang (President, Dallas Asian American Bar Association). Advisory Directors: Tatiana Alexander (President-Elect, J.L. Turner Legal Association), Mey Ly (President-Elect, Dallas Association of Young Lawyers), Sakina Rasheed (PresidentElect, Dallas Asian American Bar Association) and Elisabeth A. Wilson (President-Elect, Dallas Hispanic Bar Association). Delegates, American Bar Association: Rhonda Hunter, Hon. Douglas S. Lang Directors, State Bar of Texas: Lawrence Boyd, Frank Carroll, Andy Payne, Tino Ramirez and Ike Vanden Eykel HEADNOTES Executive Director/Executive Editor: Catharine M. Maher Communications/Media Director & Headnotes Editor: Jessica D. Smith In the News: Judi Smalling Art Director: Thomas Phillips Display Advertising: Jessica Smith Classified Advertising: Judi Smalling PUBLICATIONS COMMITTEE Co-Chairs: Dawn Fowler and Lea Dearing Vice-Chair: Jared Slade Members: Timothy Ackermann, Kevin Afghani, Vincent Allen, Natalie Arbaugh, Favad Bajaria, Matthew Baker, Martha Beard-Duncan, Jody Bishop, Lisa Blackburn, Jason Bloom, Eric Blue, Bobby Braxton, Kandice Bridges, William Brown, Eliot Burriss, Stacie, Cargill, Lance Caughfield, Sally Crawford, James Crewse, Joel Crouch, G. Edel Cuadra, Walter Dean, David Dodds, Adam Dougherty, David Dummer, Paul Garrett, Megan George, Jenny Givens, Jennifer Gjesvold, Melanie Glover, James Gourley, Virginia Greenberg, Jerry Hall, Susan Halpern, William Hammel, Jeremy Hawpe, Zachary Hilton, Kelli Hinson, Zachary Hoard, Tyler Hokanson, James Holbrook III, Ezra Hood, Mary Louise Hopson, Dyan House, Michael Hurst, Michelle Jacobs, Jessica Janicek, Taylor Jerri, Soji John, Douglas Johnson, Yoon-Joo Jung, Adam Kielich, Robert Kisselburgh, Lissa Kivett, Michelle Koledi, Susan Kravik, Shruti Krishnan, Norman Lofgren, Mallory Loudenback, Sixuan Lu, Margaret Lyle, Andrew Mayo, Ashley Mayya, Jennifer McCollum, Scott McElhaney, Elizabeth McShan, John McShane, Paige Montgomery, Nick Nelson, Yvette Ostolaza, Seth Phillips, Kirk Pittard, Irina Plumlee, Laura Anne Pohli, Robert Ramage, Gabriel Reyes, Morgan Richards, Carl Roberts, Richard Salgado, Brendan Sansivero, Brooke Schultz, Isabel Segarra, Yon Sohn, Thad Spalding, Paul K. Stafford, Jacob Stasny, Jeanette Stecker, John Stevenson, Scott Stolley, Brian Stork, Michael Sukenik, Christine Tamer, Kristopher Tate, Robert Tobey, Pryce Tucker, David Urteago, Peter S. Vogel, Suzanne Westerheim and Andrew Wirmani DBA & DBF STAFF Executive Director: Catharine M. Maher Accounting Assistant: Shawna Bush Communications/Media Director: Jessica D. Smith Controller: Sherri Evans Director of Community Services: Alicia Hernandez Events Coordinator: Rhonda Thornton Executive Assistant: Mary Ellen Johnson Executive Director, DBF: Elizabeth Philipp LRS Program Assistant: Biridiana Avina LRS Interviewer: Marcela Mejia Law-Related Education & Programs Coordinator: Amy E. Smith Membership Coordinator: Kimberly Watson Projects Coordinator: Kathryn Zack Publications Coordinator: Judi Smalling Receptionist/Staff Assistant: Teddi Rivas DALLAS VOLUNTEER ATTORNEY PROGRAM Director: Alicia Hernandez Managing Attorney: Michelle Alden Volunteer Recruiter: Chris Reed-Brown Paralegals: Whitney Breheny, Miriam Caporal, Tina Douglas, Andrew Musquiz, Carmen Perales Program Assistant: Patsy Quinn Copyright Dallas Bar Association 2013. All rights reserved. No reproduction of any portion of this publication is allowed without written permission from publisher. Headnotes serves the membership of the DBA and, as such, editorial submissions from members are welcome. The Executive Editor, Editor, and Publications Committee reserve the right to select editorial content to be published. Please submit article text via e-mail to jsmith@dallasbar.org (Communications Director) at least 45 days in advance of publication. Feature articles should be no longer than 750 words. DISCLAIMER: All legal content appearing in Headnotes is for informational and educational purposes and is not intended as legal advice. Opinions expressed in articles are not necessarily those of the Dallas Bar Association. All advertising shall be placed in Dallas Bar Association Headnotes at the Dallas Bar Association’s sole discretion. Headnotes (ISSN 1057-0144) is published monthly by the Dallas Bar Association, 2101 Ross Ave., Dallas, TX 75201. Non-member subscription rate is $30 per year. Single copy price is $2.50, including handling. Periodicals postage paid at Dallas, Texas 75260. POSTMASTER: Send address changes to Headnotes, 2101 Ross Ave., Dallas, TX 75201.
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D al l as Bar A ssoci ati on l Headnotes 5
Tax Law
State Criminal Tax Prosecutions on the Rise by Sarah Q. Wirskye
Recent changes in the law have significantly broadened the conduct and increased the penalties for criminal state tax violations. Given these changes and the State Comptroller’s increased enforcement efforts in this area, businesses need to understand where they may have exposure and how to limit it. What used to be a routine civil sales tax audit may now lead to a criminal prosecution. These cases have generally resulted in felony convictions. Examples of some of the prosecutions can be found at the State Comptroller website at www.window.state. tx.us/about/cid.
Changes in the Law
Recordkeeping Requirements. Taxpayers now must keep their records open for inspection for at least four years. Taxpayers must now produce contemporaneous records and supporting documentation for transactions in question to enable verification. There is also a new crime for failing to produce records to the Comptroller documenting a taxable sale of beer, wine, malt liquor, cigarettes, cigars and tobacco products purchased using a resale certificate. These record keeping statutes have been used in many criminal cases. Reporting Requirements. The Alcoholic Beverage Code and the Tax Code requires distributors and wholesalers who sell alcohol and tobacco products to Texas retailers to report those sales monthly to the Comptroller’s office. The Comptroller’s office reports that this audit tool has helped identify more than $368 million due to the state since fiscal 2009 and has resulted in criminal referrals.
This has been a highly controversial methodology because sales tax liability is being calculated based upon records from a third party, which may or may not be accurate. Moreover, these records do not consider case specific issues such as spillage, theft or other matters. Finally, sometimes tax payers have not been allowed access to the records until later in the process, making it difficult to rebut the allegations. Investigations. The Comptroller now has broader investigatory powers: The subject matter jurisdiction of the Comptroller’s investigators now includes investigation of any criminal offense under any law if the offense relates directly or indirectly to a tax, fee, penalty or charge administered, collected or enforced by the Comptroller. The Comptroller or Attorney General can also now use confidential tax information to enforce the criminal laws of Texas or the United States. Litigation. Certain procedural changes also have been beneficial to the Comptroller. The state may request a judge make affirmative findings of tax fraud if the elements are proved by clear and convincing evidence during the proceedings. The statute of limitations may be tolled during the pendency of an indictment for a taxrelated felony. Finally, statutory amendments make clear that there are no double jeopardy concerns from a civil penalty being pursued in an administrative action versus being pursued criminally. Specific Crimes. Penal Code amendments have broadened criminal statutes affecting criminal tax violations. Tax Code felonies were added to the list of crimes that may be prosecuted as Engaging in Organized Crime, resulting in a one degree punishment enhancement when groups of three or more collaborate together for the
purpose of committing a tax felony. The definition of “Proceeds” in the criminal money laundering statute was amended to include proceeds acquired or derived from conduct that constitutes an offense under § 151.7032 of the Tax Code, a first degree felony. Finally, the Tax Code was amended to make Criminal Conspiracy under the Penal Code applicable to Tax Code offenses. Increased Penalties. One of the most significant amendments regarding criminal sales tax is the change in the penalty ladder. The Tax Code was amended to bring tax crime penalties up to par with theft statutes. It is now a Class A or B misdemeanor, punishable by county jail time up to 180 days or 1 year, to collect and fail to remit sales tax between $50 and $1,500. Felony penalties, including prison time, will now begin at $1,500, just as they do in the Penal Code. Amounts over $200,000 will be classified as 1st degree felonies, punishable by 5-99 years or life in prison. Also, tax collected and not paid pursuant to one continuous scheme or course of conduct may be aggregated when determining the grade of the offense. Therefore, any sizable business with a criminal sales tax issue will likely be charged with a first degree felony.
Critical Audits and Limiting a Client’s Exposure
Generally, two main factors will determine whether a criminal referral will be made in a civil audit. First, if there are taxes collected and not remitted, that is a red flag for the Comptroller’s office. Second, if there is a sizeable amount of tax due, the government may also refer the case criminally. However, most business will likely reach the unofficial monetary threshold because the Comptroller will usually be examining several years. Finally, any business that sells alcohol or tobacco should be on guard because of the emphasis on Comptroller audits and resulting criminal referrals. If your client is in this situation, the audit must be handled with the understanding that a criminal referral may be made. Therefore, all statements by your client or documentary evidence given to the auditor must be monitored because they may be used in a criminal case. Also, if the client has the ability to pay the taxes, while that is not a pass on a criminal prosecution, the client should HN attempt do so.
Sarah Q. Wirskye is a partner with Dallas law firm Meadows, Collier, et. al. She can be reached at swirskye@meadowscollier.com.
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DBA Recognized by State Bar by Jessica d. Smith
At the State Bar of Texas Annual Meeting on June 20, the Dallas Bar Association accepted several awards for its programs and services. This year, the State Bar’s Local Bar Services Committee selected the DBA as the recipient of four awards. The DBA was the recipient of the Award of Merit for best overall programs, which included the successful DBA Diversity Summit and a record-breaking total of $834,000 for the DVAP Campaign for Equal Access to Justice, the Diversity Summit and the Trial Academy. In addition, Headnotes received three awards including: • Best Feature Story: “Professionalism: Not Just Honesty and Civility,” by Al Ellis, of Sommerman & Quesada, L.L.P., published April 2013 • Best Human Interest Article (twoparts): “30 Years of DVAP: The Inky Blue Water,” by Will Pryor, and “30 Years of DVAP: DVAP Through the Years” by Michelle Alden, DVAP Managing Attorney, published October 2012 • Best Series of Substantive Legal Articles: Family Law and Probate, Trust & Estate Law articles, published April 2013: “Families With Children With Disabilities” by George Shake, of Geary, Porter & Donovan, P.C.; “Family Building—Doing It The Legal Way” by Jenny L. Womack, of Jenny L. Womack, P.C.; and “How to Answer Ten Family Law Questions” by Kelly McClure and Chris Meuse, of McClure Law Group. Various DBA members received indi-
vidual awards at the annual meeting, including: • Beverly Godbey, of Gardere Wynne Sewell LLP; Vincent Perini, of Vincent Walker Perini, P.C.; Frank E. Stevenson, of Locke Lord LLP; and Robert Witte, of Strasburger & Price, LLP; received Presidential Citations • Stephen R. Akers, of Haynes and Boone, LLP, received the Distinguished Texas Probate Attorney Lifetime Achievement Award • George W. Bramblett, Jr., of Haynes and Boone, LLP, received the Luther H. Soules Award for Excellence in Litigation • John G. Browning, of Lewis Brisbois Bisgaard & Smith LLP, received the Dan Rugeley Price Award, presented by the Texas Bar Foundation • Brittany K. Byrd, of Winstead PC, received the TYLA Outstanding Young Lawyer of Texas Award • George C. Chapman, of Thompson & Knight LLP, and Alan D. Feld, of Akin, Gump, Strauss, Hauer & Feld, L.L.P., received the Outstanding 50-Year Lawyer Award, presented by the Texas Bar Foundation • Nina Cortell, of Haynes and Boone, LLP, received the Chief Justice Jack Pope Award, presented by the Teas Center for Legal Ethics • Cecelia R. Cox, of Resource Center of Dallas, received the LGBT Judge Norman W. Black Award • Josiah M. Daniel, III, of Vinson & Elkins LLP, received the award for Outstanding Law Review Article, presented
2013 FAMILY LAW NUTS & BOLTS LIVE CLE SEPTEMBER 17 & 18 • 5:00 to 8:00 p.m. at Belo
MCLE 3.00 | 1.00 Ethics each evening • Sponsored by the DBA Family Law Section and DVAP Online Registration at www.dallasbar.org. For more information, contact Alicia Perkins at perkinsa@lanwt.org.
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The DBA received several awards at the State Bar of Texas Annual Meeting in June, including the Award of Merit for best overall programs, and Headnotes was recognized for three awards, including Best Feature Story, Best Human Interest Story and Best Series of Substantive Legal Articles. (Left to right) DBA Executive Director Cathy Maher, SBOT President Buck Files, DBA President Sally Crawford and DBA Immediate Past President Paul K. Stafford.
by the Texas Bar Foundation • Lacy L. Durham, of Deloitte Tax LLP, received a TYLA President’s Award of Merit • Curtis L. Frisbie, Jr., of Gardere Wynne Sewell LLP, received the Distinguish Counselor Award, presented by the Antitrust & Business Litigation Section • Hon. Harlin D. “Cooter” Hale, of the U.S. Bankruptcy Court, received the TYLA Outstanding Mentor Award • Hon. James M. “Jay” Patterson received the Judge Merrill Hartman Pro Bono Judge Award • Michelle Reed, of Akin, Gump, Strauss, Hauer & Feld, L.L.P., received a Presidential Citation • Charles W. “Charlie” Spencer, of Spencer & Associations PLLC, received the
Distinguished Texas Real Estate Attorney Lifetime Achievement Award • Peter S. Vogel, of Gardere Wynne Sewell LLP, received the Gene Cavin Award At the annual meeting, Lisa M. Tatum, of San Antonio, assumed the role as president of the State Bar. In addition, DBA members Wm. Frank Carroll, of Cox Smith Matthews Inc., and Tino A. Ramirez, of Ramirez & Associates, P.C., were elected to the State Bar Board of Directors, and Rebekah Steely Brooker, of Passman & Jones, assumed the role of President-elect of Texas Young Lawyers HN Association. Jessica D. Smith is the DBA’s Communications/Media Director. She can be reached at jsmith@dallasbar.org.
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D al l as Bar A ssoci ati on l Headnotes 7
2013 DBA 100 CLUB – CONGRATULATIONS! We are proud to recognize the following Firms, Corporate Legal departments and Government agencies for their 100% support of the Dallas Bar Association as members of the 2013 DBA 100 Club! The DBA 100 Club is a distinguished membership recognition category that reflects a commitment to the advancement of the legal profession and the betterment of the community. The DBA 100 Club consists of Firms and Government agencies with two or more attorneys as well as corporate legal departments that have 100% membership in the DBA. Recognition for 100% support is given to the 2013 DBA 100 Club members in our Headnotes publication, at our Annual meeting in November and in the 2014 DBA Membership Directory. It is not too late to become a member of the 2013 DBA 100 Club! Please submit your request via email including a list of all lawyers in your Dallas office/corporate legal department to Kim Watson, kwatson@dallasbar.org. We will verify your list with our membership records and once approved, your name will be added to the 2013 DBA 100 Club!
THANK YOU FOR YOUR SUPPORT OF THE DALLAS BAR ASSOCIATION! DBA 100 Club Members as of July 15, 2013 Law Firms with 2 to 5 Attorneys 123 Divorce Company A. William Arnold III & Associates, P.C. Ackerman & Savage, L.L.P. Adair, Morris & Osborn, P.C. Aldous Law Firm Alexander Dubose & Townsend LLP Anderson & Brocious P.C. Anderson Beakley, PLLC Andrews & Barth, PC Armstrong Kellett Bartholow P.C. Ashcraft Law Firm Ashley & Laird Atkins, O’Toole & Briner, L.L.C. Barnett • McNair • Hall, L.L.P. Blackwell & Duncan, PLLC Blankenship, Wiland & O’Connor, P.C. Blume, Faulkner, Skeen & Northam, PLLC Bragalone Conroy PC Broden & Mickelsen Brown Fox Kizzia & Johnson PLLC Buchanan & Bellan, L.L.P. Busch Ruotolo Simpson LLP Calabrese Huff, P.C. Calhoun Pilgrim LLP Campbell & Chadwick, P.C. Carlock-Gormley-Hight Clark Law Firm Coffin & Driver, PLLC Collins Law Group PC Crain Lewis, L.L.P. Curtis | Castillo PC Dallas Baptist University Daniel Sheehan & Associates, LLP Dement, Roach & Stern, PLLC Edwards & de la Cerda, L.L.C. ELROD, PLLC Fair & Watts, P.C. Fisher & Welch, P.C. Grau Law Group, PLLC Grogan & Brawner P.C. Gunnstaks Law Office Hamilton & Squibb, LLP Hance | Wickham, P.C. Harper | Washam LLP Hicks Thomas LLP Hollingsworth Walker Holmes Firm PC Horton & Archibald, P.C. Hunt | Ham, PLLC John R. Vermillion & Associates, LLC Johnson & Silver, LLP Johnson | Broome, P.C. Johnston u Tobey, P.C. Kabani & Kabani, PLLC Kapioltas & Forni, PLLC Karel & Hicks, P.C. Keane, Fowler & Donohue Kelly, Durham & Pittard, LLP Kim L. Lawrence, PC Kinser & Bates, L.L.P. Kish & Manktelow, P.C. Kleiman, Lawrence, Baskind & Fitzgerald, L.L.P. Koning Rubarts LLP Law Office of Aubyn K. Shettle Jr. Law Offices of Maduforo & Osimiri Law Offices of Richard A. Gump, Jr., P.C. Law Offices of Terrence G. Turzinski, P.C. Lidji Dorey & Hooper Lillard Wise Szygenda PLLC Little Pedersen Fankhauser LLP Lori A. Leu & Associates Maris & Lanier, P.C. Marshall & Kellow, LLP McShane & Davis, L.L.P.
McTaggart & Beasley, PLLC Milby, PLLC Mincey-Carter, PC Mitchell, Goff & Mitchell, LLP Mosaic Family Services Inc. Prager & Miller, P.C. Pratt & Yungblut, P.C. Quaid & Quaid, L.L.C. Raggio & Raggio, P.L.L.C. Ramirez & Associates, P.C. Rasansky Law Firm Ray & Thatcher, Attorneys at Law PC Reed & Riordan, PLLC Richardson Koudelka, LLP Rochelle & Rankin LLP Sawicki & Lauten, LLP Schubert & Evans, P.C. Schuerenberg & Grimes, P.C. Secore & Waller, L.L.P. Sheils Winnubst, PC Sherman & Yaquinto, L.L.P. Smith, Stern, Friedman & Nelms, P.C. Spencer Law, P.C. Stuber Cooper Voge, PLLC Sullivan & Holston The Collie Firm, PLLC The DeLoney Law Group, PLLC The Elliott Law Firm, P.C. The Korn Diaz Firm, LLP The Law Offices of Shanna Nugent, P.C. The Law Offices of Tim O’Hare The McFarlin Firm, PLLC Thomas, Cinclair & Beuttenmuller, PC Tillman Betanzos LLP Tobolowsky & Burk, P.C. Walker & Long Whaley, Letteer & Mock, P.C. Winn, Beaudry & Winn, L.L.P. Wisener Nunnally Gold LLP Withers & Withers, P.C. Wolfish & Newman, P.C. Woodward & Shaw Woolley <> Wilson, LLP. Yarbrough & Elliott, P.C. Zaby & Associates Law Firms with 6 or More Attorneys Ackels & Ackels, L.L.P. Addison Law Firm P.C. Allmand Law Firm PLLC Anderson Tobin, PLLC Asiatico & Associates Baker & McKenzie LLP Baker Botts, L.L.P. Beirne, Maynard & Parsons, L.L.P. Bell Nunnally & Martin LLP Ben Abbott, P.C. Blanscet Hooper & Hale, LLP Boyle & Lowry, L.L.P. Brousseau Graham & Massingill Brown & Hofmeister, L.L.P. Burford & Ryburn, L.L.P. Calloway, Norris, Burdette & Weber, PLLC Canterbury, Elder, Gooch, Surratt, Shapiro & Stein, P.C. Cantey Hanger LLP Carrington, Coleman, Sloman & Blumenthal, L.L.P. Carstens & Cahoon, LLP Carter Stafford Arnett Hamada & Mockler, PLLC Condon Thornton Sladek Harrell LLP Cooper & Scully, P.C. Cowles & Thompson, P.C. Cox Smith David, Goodman & Madole, P.C. Deans & Lyons, LLP Estes Okon Thorne & Carr PLLC Fee, Smith, Sharp & Vitullo, L.L.P. Figari & Davenport, L.L.P
Fletcher, Farley, Shipman & Salinas, LLP Ford, Nassen & Baldwin, P.C. Godwin Lewis PC Goranson Bain, PLLC Gordon & Rees, LLP Gruber Hurst Johansen Hail Shank LLP Guida, Slavich & Flores, P.C. Hankinson LLP Hermes Sargent Bates, LLP Hiersche, Hayward, Drakeley & Urbach, P.C. Higier Allen Lautin, P.C. Husch Blackwell LLP Johnson Jordan Cresswell Monk, PC Kessler Collins, P.C. Key Harrington Barnes PC Klemchuk Kubasta LLP Koons Real Estate Law KoonsFuller Kroney Morse Lan, PC Langley Weinstein LLP Locke Lord LLP Loewinsohn Flegle Deary L.L.P. Lynn Tillotson Pinker & Cox, L.L.P. Malouf Lynch Jackson & Swinson, P.C. Matthews, Stein, Shiels, Pearce, Knott, Eden & Davis, L.L.P. McCurley, Orsinger, McCurley, Nelson & Downing, L.L.P. McElree | Smith McGuire, Craddock & Strother, P.C. McKool Smith P.C. Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P. Mullin Hoard & Brown, L.L.P. Munsch Hardt Kopf & Harr, P.C. Norton Rose Fulbright LLP Passman & Jones, P.C. Reese Gordon Marketos, LLP Rochelle McCullough LLP Rose Walker, L.L.P. Sayles Werbner, P.C. SettlePou Shackelford, Melton & McKinley, LLP Sorrels, Udashen & Anton Staubus & Randall, L.L.P. Steed Flagg Lamberth LLP Stinnett Thiebaud & Remington L.L.P. Susman Godfrey L.L.P. The Bassett Firm, P.C. The Blum Firm, P.C. The Hartnett Law Firm The Law Offices of Frank L. Branson, P.C. Thomas, Feldman & Wilshusen, L.L.P. Thompson & Knight LLP VernerBrumley Vinson & Elkins LLP White & Wiggins L.L.P. Winstead PC Wright Ginsberg Brusilow P.C. Corporate Legal Departments Alon USA Energy Inc. Austin Industries, Inc. Baptist Foundation of Texas Belo Corp. Contran Corporation Front Burner Restaurants, LP Genesco Sports Enterprises MetroPCS Communications, Inc. Morgan Management Corporation Neuberger Berman ORIX USA Corporation Tenaska Power Services Co. The North American Coal Corporation Government Agencies City of Irving
8 He a d n o t e s l D a l l a s B a r A s s o ciation
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Pitfalls of Departing Employees by Mark A. Shank
Departing employees present special problems, as seen from three typical points of view: former employer, new employer and departing/new employee. Interests of new employers and their new employees are often, but not always, aligned. Typically, claims involve noncompetition agreements, duty of loyalty, confidentiality agreements, trade secrets and preservation of electronic information. Noncompetition Covenants The Texas law governing noncompetition covenants has changed dramatically and is now governed by Texas Business & Commerce Code, Chapter 15(E). Courts typically require adherence to Chapter 15(E) to enforce noncompetition agreements. Recent cases changed the focus in most cases from enforceability to breadth and scope. Almost invariably, the controlling issue is whether an employer seeks to protect a business interest that justifies a covenant’s scope. Typically, noncompetition covenants come in two flavors: (1) noncompetition agreements prohibiting competition in a particular geography and for a certain time, and (2) nonsolicitation covenants focusing on clients and prospects. When hiring employees that previously signed a noncompetition
covenant, new employers undertake responsibility and risk. Texas law allows a cause of action for interference with valid noncompetition covenants. To avoid risk, new employers should take steps to determine whether new employees can honor a former employer’s covenants and prevent new employees from competing with former employers. In any event, prudent employers discuss parameters with new employees and procure a written understanding regarding boundaries. Employees should consider—when signing covenants and when departing—the importance of their mobility and a covenant’s time or geographical restrictions. Again, post-signing, employees need to determine what risk they are willing to take if a proposed business activity breaches a covenant.
Confidentiality/Non-Disclosure Agreements (NDA)
Most employers require employees to sign NDAs that define, label and protect trade secrets and confidential information. If no NDA exists, then an employer’s information is still protected to the extent it constitutes trade secrets. Typically, NDAs broaden protected information’s scope and evidences an employer’s attempt to protect this information. NDAs should provide a reasonably
precise “confidential information” definition. In 2013, a National Labor Relations Board’s administrative law judge held that two covenants (confidentiality and non-disparagement) violated non-unionized employees’ rights under the National Labor Relations Act. Also, employers should take reasonable steps to preserve confidential information, in hard copy and electronic medium. Employers should make certain that there is neither intentional nor inadvertent disclosure of an employee’s former employer’s confidential information. And employers should obtain certification (1) from new employees that they have not and will not cause confidential information to migrate from former employers to a new employer and (2) from new employees’ former employers that all confidential information was returned. Typically, prudent employees view minimizing risk of controversy as their best bet. Thus, departing employees should consider what access to trade secrets or confidential information they received and how to return any confidential information.
Duty of Loyalty
Texas maintains a vibrant duty of loyalty cause of action. Employers should reinforce this duty through contract and be vigilant by reinforcing this duty. Contracts that reinforce this duty include requirements that employees avoid conflicts of interest, remain loyal to the employer, and will not knowingly compete or engage in conduct harmful to their employer’s business interests. The greater an employee’s responsibility, the greater
JRFRIM_Ad2012.indd 1
his duty of loyalty. New employers should ensure that they do not entice new employees to breach duties of loyalty—and employees must consider their duties and responsibilities to former employers.
Trade Secrets
Texas recently passed the Uniform Trade Secrets Act, which is effective September 1, 2013. Generally, trade secrets are property known in the industry, commercially valuable and maintained as confidential. Trade secrets are also protected by common law. Employees and their new employers should ensure that trade secrets are not taken from former employers.
Preservation of Electronic Information
Once litigation or the threat of litigation occurs, the preservation duty attaches. A careful approach should be used with regard to social media content. A New Jersey court recently ordered spoliation sanctions (adverse inference) against a litigant whose Facebook account was deleted during litigation.
Conclusion
Departing employees raise many issues. Hopefully, this article provides at least a checklist for dealing with HN them.
Mark A. Shank, of Gruber Hurst Johansen Hail Shank, is writing a book for Texas Lawyer Publishing entitled “Departing Employees,” which will be available at the end of this year. He thanks Greg McAllister for his assistance writing this article. He can be reached at mshank@ghjhlaw.com.
10/9/12 10:39 AM
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D al l as Bar A ssoci ati on l Headnotes 9
Tax Law
The Civil Fraud Penalty by Kyle Coleman and Amber Haque
The Treasury Inspector General for Tax Administration (TIGTA) issued a press release on April 17, 2013 urging IRS examiners to thoroughly investigate fraud indicators during all field and office audits. The reason for the increased scrutiny is twofold: to encourage voluntary compliance and enhance revenue. The report indicated that only 96 out of 127,100 office audits during fiscal years 2008 through 2011 resulted in civil penalty assessments. Per the press release, identifying and asserting the Civil Fraud Penalty is an enhanced point of interest for the IRS in every audit. Attorneys and their clients should be aware of the fraud indicators in order to avoid an assessment during an audit. IRC §6663(a) provides that if any underpayment of tax is due to fraud, a penalty is imposed equal to 75 percent of the portion of the underpayment that is due to fraud. For purposes of IRC §6663, a portion of the underpayment will be considered to be due to fraud where it is the result of an intent to evade tax. IRC §6663 does not define “fraud;” however, Courts have long recognized the essence of the fraud penalty is the taxpayer’s state of mind. The req-
uisite state of mind requires an “intent to evade tax” and is distinguished from negligence or carelessness. In the Fifth Circuit, longstanding precedent identifies certain factors to consider in determining whether fraud exists. The seminal case, Loftin & Woodward, Inc v. U.S, identifies ten key factors. The Fifth Circuit also notes that one factor, an understatement of income, will be present in any IRS audit. Thus, a mere understatement of income alone is not sufficient to support a finding of fraud. The Fifth Circuit’s ten factors are: 1. Intentional understatement of income, substantial in amount; 2. Intentional overstatement of deductions, substantial in amount; 3. Recurrence of the understatement of income or overstatement of deductions for more than one tax year; 4. Secret bank deposits for income; 5. Undisclosed income from a source other than taxpayer’s regular business; 6. Undisclosed income derived from illegal business; 7. Lack of adequate books and records which one would expect of the particular taxpayer, based on his business experience, education, knowledge of books and
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The St. Thomas More Society invites you to join us for our annual Red Mass on Sunday, August 25, at 9:00 a.m., at the Cathedral Shrine of the Virgin of Guadalupe, followed by a brunch reception at the Marriott City Center (Plaza of the Americas) Plaza Ballroom. Children are encouraged to attend this family event. For more details, and to register for this event, visit www.stmsdallas.org.
records, etc.; 8. False entries and other falsifications in books; 9. No reasonably acceptable explanation made by the taxpayer (as to why the falsity appears in the return); 10. Conviction of the taxpayer on criminal tax evasion. It is important to note that avoidance of tax is not a criminal offense. Taxpayers have the right to reduce, avoid or minimize their taxes by legitimate means. Per the Internal Revenue Manual, the IRS’ internal guidelines for practice, “one who avoids tax does not conceal or misrepresent, but shapes and preplans events to reduce or eliminate tax liability within the perimeters of the law.” See I.R.M. § 25.1.1.2.4. Conversely, evasion requires an affirmative act to evade or defeat a tax or payment of tax. I.R.M §25.1.1.3 defines affirmative acts as “those actions that establish that a particular action was deliberately done for the purpose of deceit, subterfuge, camouflage, concealment, some attempt to color or obscure events, or make things seem other than what they are.” Examples of common evasion schemes include concealment of assets, improper credits or exemptions, and claiming fictitious or improper
deductions. As is true with most all penalties asserted by the IRS, no fraud penalty will be imposed if it can be shown that there was reasonable cause for the underpayment and that the taxpayer acted in good faith. Reliance on a competent tax professional is an absolute defense. Therefore, even if some of the fraud indicators are present, it is important to analyze the reason for their existence. In conclusion, tax practitioners and business owners should be aware of the fraud indicators an IRS agent evaluates during an audit. TIGTA has put in place procedures requiring the auditor in every case to consider a civil fraud penalty and whether there are indicators that suggest the taxpayer is engaged in civil or criminal fraud. As such, it is best to take a proactive approach and refute the fraud indicators early in the audit. Remember that not one factor is determinative; thus be sure to consider all factors and any behavior of the taxpayer that may appear to be an affirmative HN act to conceal or evade tax. Kyle Coleman is a shareholder and Amber Haque is an associate at The Roberts Law Firm. They can be reached at (972) 661-1040 or at info@therobertslawfirm.com
Professionalism Tip
In this profession, you are offering your knowledge, time and reputation. The easiest way to waste all of these is to be unprepared. The most likely attempt to hide being unprepared is to be unprofessional, discourteous and inappropriate, which usually never serves the intended purpose. Our adversarial system is built on the principle that the better argument will rule the day, not the most obnoxious, uncooperative or ill-willed. In short, do not get louder; do the required work and make a better argument. Provided by the DBA Professionalism Committee
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10 H e a d n o t e s l D a l l a s B a r A s s o ciation
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The Belo is Closed in August, but CLEs Resume in September Don’t miss out on outstanding CLEs this fall and be sure to come by and see the newly renovated Pavilion. Find out more at www.dallasbar.org.
The Judiciary Committee hosted a CLE on Effective Evidence with (left to right) Judge David Lopez, Judge Tonya Parker, Justice David Evans, Committee Co-Chair Diane Sumoski and Associate Judge John Peyton. The DBA Sports & Entertainment Law Section sponsors an annual free CLE as part of the 35 Denton Music Festival. 2013 panelists: (left to right) Tamera H. Bennett, Evan Stone, Kevin Harrison and Catherine Hough.
In observance of the Magna Carta’s 800th anniversary, the DBA’s Discussion Forum was formed. Their first CLE was presented by Chief Judge Sidney Fitzwater (right), shown with Forum Chair Shane Tucker.
13th Annual Freedom Run 5K Run Thursday, September 12, at 6:30 p.m. at Dallas City Hall Plaza Benefitting the Assist The Officer Foundation Paying tribute to the victims and heroes of 9/11. Register Online at www.freedomrun.com Organized by the Dallas Association of Young Lawyers.
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The Family Law Section donated $500 to Operation Kindness. (left to right) Hunter Lewis; Section Chair Jeff Coen; and Julie Goff, Operation Kindness.
The Alternative Dispute Resolution Section presented a CLE on New CPR Arbitration Rules with speaker Olivier P. André (left), shown with Chair Ray Green.
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Focus
Dal l as Bar A ssoci ati on l Headnotes 11
Tax Law
Offers in Compromise Under IRS Fresh Start Program by N. Dean Hawkins
The recent economic downturn significantly increased the number and amounts of outstanding tax liabilities. As a result, many taxpayers are interested in submitting an offer in compromise, particularly if they know about the IRS Fresh Start program. Major changes have been made to the manner in which the amount of an offer in compromise is determined under this program, thereby making submission of an offer in compromise a viable option for more taxpayers. Before submitting an offer in compromise, taxpayers and their counsel need to understand its effect, how it compares to an installment payment agreement, and when its use is appropriate. Unlike an installment payment agreement, which still requires the taxpayer to pay the full amount of the outstanding tax liability (albeit over a period of time), an offer in compromise is a settlement of the taxpayer’s tax debt for less than the amount of the currently outstanding liability. Contrary to many radio and TV ads, this procedure is not new and has been statutorily authorized for many years. Determining whether to submit an offer in compromise or enter into an installment payment agreement is a logical process. After all, the taxpayer is attempting to settle his or her tax debt for less than the actual amount of the debt. Thus, it is logical that an offer in compromise would be appropriate only when the taxpayer’s “reasonable collection potential” (i.e., the taxpayer’s resources) is less than the actual amount of the taxpayer’s outstanding tax liability. The taxpayer
does not qualify to submit an offer in compromise if his or her resources exceed the amount of the debt. However, many taxpayers who previously would not have qualified to submit an offer in compromise now qualify due to the Fresh Start program. In general, the taxpayer’s resources are the taxpayer’s net equity plus the amount that the taxpayer can afford to pay to the IRS over a future period of time. The taxpayer’s total resources are computed on Form 433-A (OIC). There are, however, special rules that must be followed in computing the taxpayer’s resources and, ultimately, the amount of the offer in compromise. The taxpayer’s net equity is generally computed by valuing assets other than cash at a liquidation value of 80 percent of estimated fair market value, valuing retirement assets (such as 401k accounts and IRA’s) at 70 percent, and only taking into account loans against the asset accounts (e.g., investment accounts) and secured debt in computing the taxpayer’s net equity. Unsecured debt (e.g., credit card debt) is not considered in computing the taxpayer’s net worth. The second element of the taxpayer’s resources is the monthly amount that the taxpayer can afford to pay to the IRS over a future period of time. This available monthly amount is determined using the IRS Collection Financial Standards, which are available at www.irs.gov. While the Fresh Start program made changes that are beneficial to the taxpayer to the expense limitation rules, the major changes of the Fresh Start program are the substantial reductions
in the number of months taken into account for purposes of calculating the amount of the offer. Those changes substantially reduce the required offer amounts. These changes were announced in IR-2012-53 on May 21, 2012. In determining the amount of an offer: 1. If the offer will be paid in 5 or fewer months, the IRS will consider 1 year of income, rather than 4 years of income; and 2. If the offer will be paid in 6 to 24 months, the IRS will consider 2 years of income, rather than 5 years of income. As illustrated by the following example, the effect of these changes can be quite dramatic. Assume the following: 1. The taxpayer has an outstanding liability of $225,000; 2. Under the IRS rules, the taxpay-
er’s net worth is $90,000 and the taxpayer has monthly income of $3,000 to apply towards the debt; and 3. The taxpayer is considering submitting an offer in compromise pursuant to which the taxpayer will make payments over a period of 5 months (using borrowed funds). Prior to the issuance of IR-201253, the taxpayer would not qualify to submit an offer in compromise because the taxpayer’s total resources would be $234,000 ((48 months x $3,000 income/month) + $90,000 net worth = $234,000), more than the hypothetical outstanding liability. Under the Fresh Start rules, the taxpayer qualifies to submit an offer in compromise in the amount of $126,000 ((12 x $3,000) + HN $90,000 = $126,000). N. Dean Hawkins is a sole practitioner in Dallas. He can be reached at ndh@ndeanhawkins.com.
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12 H e a d n o t e s l D a l l a s B a r A s s o ciationâ&#x20AC;
A ugust 2013
Augu st 2 0 1 3
Senior Lawyer’s Appreciation Dinner More than 100 lawyers, judges and guests attended the annual Senior Lawyer’s Appreciation Dinner, with Talmage Boston, of Winstead PC, as the keynote speaker. Thank you to these attorneys who helped build the foundation of the Dallas Bar Association.
D al l as Bar A ssoci ati on l Headnotes 13
14 H e a d n o t e s l D a l l a s B a r A s s o ciation
A ugust 2013
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Dal l as Bar A ssoci ati on l Headnotes 15
Tax Law
The New 3.8 Percent Medicare Contribution Tax by Jerri Hammer and Lu Liu
The new Medicare contribution tax contained in Internal Revenue Code (IRC) §1411 was enacted as part of the Health Care and Education Reconciliation Act of 2010. Also known as the net investment “surtax,” it was intended to pay some of the costs of the Patient Protection and Affordable Care Act of 2010, which had been enacted a few days earlier. This new tax applies to the net investment income of high-income individuals and most estates and trusts. Generally, joint filers having adjusted gross income (AGI) over $250,000 and single filers over $200,000 become subject to this new tax. It applies to the lesser of (1) net investment income, or, (2) the excess of a taxpayer’s modified AGI over the threshold amount applicable to that taxpayer. Note that a child’s investment income included on the parent’s return for “kiddie tax” purposes is included in calculating net investment income. Estates and trusts will be subject to the tax if they have investment income and taxable income above the dollar amount at which the highest tax bracket for an estate or trust begins for such taxable year (for 2013, $11,950). Note that this amount is much less than what you would think of as “high-income” for an individual taxpayer! Trusts not subject to the new tax include tax-exempt trusts under IRC §501 and §664, grantor trusts under §§671–679, charitable trusts under §170(c)(2)(B) and entities not classified as trusts for federal income tax purposes (REITs and common trust funds). Net investment income is gross investment income less deductions allocable to such income (§1411(c)). Investment
income includes the following: 1. Portfolio income such as interest, dividends, rents, royalties and annuities, other than such income derived in the ordinary course of a trade or business not described in number two below; 2. Trade or business income from passive investments within the meaning of §469 and income from businesses that trade financial instruments or commodities; and 3. Net gains from the disposition of property including gains from the sale of portfolio investments, trade or business property used in passive activities and from the sale of a primary residence that is not excluded from taxable income under IRC §121. Investment income is reduced by allocable deductions such as early withdrawal penalties, investment interest expense, brokerage fees, directly related rental and royalty deductions, and allocable state and local income taxes. Importantly, losses from one category of income do not reduce income from a different category. Also, loss or deduction limitations in other IRC provisions may impact deductions against investment income. Wages, self-employment income, active trade or business income, taxexempt interest, unemployment compensation, Social Security benefits, qualified retirement plan or IRA distributions, and the excludable portion of gain on a primary residence are excluded from the definition of net investment income. Also, rents derived by a qualifying real estate professional are not subject to the tax. Planning for individuals may include maximizing contributions to retirement plans to reduce adjusted gross income and defer tax, Roth conversions, using
tax deferred vehicles like 529 plans, cash value life insurance, or Health Savings Accounts, investing in tax-exempt investments or establishing charitable trusts if charitably inclined. Earnings from pass-through entities such as partnerships, LLCs and S corporations reported on Schedule K-1 may include both business and investment income. This provides for planning opportunities such as the following: 1. Increasing participation in a passthrough activity so that there is material participation in a trade or business, which income would not be subject to the tax; 2. Reviewing/reclassifying current activity groupings in order to take advantage of the “fresh start” regrouping allowed by the Internal Revenue Service; or, 3. Using an S corporation or electing S status versus the partnership or LLC form in situations where the shareholder materially participates in the underlying trade or business. Fiduciaries should consider planning
options such as these: 1. Making “distribute or retain” decisions to reduce the tax impact overall between trusts/estates and beneficiaries, including distributing capital gains from pass-through entities or investment portfolios traditionally taxed at the trust level; 2. Increasing trustee participation or adding a special trustee for business operations to achieve material participation or qualified real estate professional status for real estate activities; 3. Allocating distributions from qualified plan or IRA assets between income distributed to beneficiaries and income not distributed, in order to reduce the tax burden overall. In conclusion, taxpayers may be able to mitigate the new tax’s impact through timely planning strategies such as these HN and many others. Jerri Hammer is a partner and Lu Liu is a senior tax accountant at Travis Wolff, L.L.P. and can be reached at jhammer@traviswolff. com or lliu@traviswolff.com, respectively.
Ethics CLE at North Dallas Clinic Friday, August 9, Noon At Two Lincoln Centre (5420 LBJ Freeway, Ste. 240) Speaker: Randy Johnston | Ethics 1.00 Topic: The Ever Changing Landscape of Legal Ethics and Malpractice RSVP to kzack@dallasbar.org
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16 H e a d n o t e s l D a l l a s B a r A s s o ciation
A ugust 2013
DBA Celebrates 800th Anniversary of the Magna Carta By Shane Tucker
On June 15, 1215 in the 17th year of King John’s reign he acquiesced to the demands of his unruly barons that certain of their liberties and particular laws be confirmed by charter. That charter came to be known as the Magna Carta. The Dallas Bar Association’s 800th Anniversary of Magna Carta Discussion Forum and Legal History Discussion Group are celebrating 800 years of rule by law and freedom under law through a series of CLEs intended to investigate the legal and professional duties of attorneys toward one another, toward their clients, and toward the courts. Eight hundred years of rule by law may sound hyperbolic. After all, there is the Decalogue. And in the Odyssey Homer is critical of the lawless, aggressive Cyclopes who “have no council meetings, no code of law . . . and each man lays down the law to his wives and children, and disregards his neighbors.” Similarly Aristotle, in Book I of the Politics, noted: “For man, when perfected, is the best of animals, but, when separated from law and justice, he is the worst of all.” So civilized men have recognized for millennia that rule by the arbitrary will of a sovereign, be he one or many, is problematic. Further, an objection could be made that while Magna Carta is itself a very practical document, it is not a document purporting to describe the philosophical and
theological roots of individual rights. In fact, Alexander Hamilton’s objection to a constitutional bill of rights in The Federalist No. 84, in part, contrasted the American understanding of rights to liberties acknowledged in documents like Magna Carta. “[B] ills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Carta, obtained by the barons, sword in hand, from King John.” Our Constitution, on the other hand, is “professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations.” Nevertheless, in its application of concrete solutions to practical problems faced by thirteenth century Englishmen, Magna Carta set forth limited parameters of rule by law rather than the will of the King. The remedies proposed by the barons as necessary for King John to retain their allegiance can be, and have been, universalized to describe a framework appropriate for the administration of justice and protection of basic human liberties. Magna Carta is today organized, for convenience of reference, into 63 different chapters. Only four of those original chapters (which have been condensed into three) are current law in the United Kingdom. But
in its original form Magna Carta addressed numerous issues pertaining to liberty and natural and procedural justice. These included: (1) Freedom of the Church; (2) Taxation, including what aids could be provided to the King and the requirement that such amounts be reasonable; (3) Courts, to be fixed in location rather than to follow the King; (4) Local trials for local issues (those involving land); (5) Punishment in accordance with the gravity of the crime; and (6) Takings to be justly compensated. Perhaps the most famous provisions of Magna Carta (chapters 39 and 40) can be fairly characterized in American nomenclature as describing substantive and procedural due process. King John declared: “No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land. To no one will We sell, to none will We deny or delay, right or justice.” Unwittingly, perhaps, a group of English barons took advantage of the political weakness of their King beset by quarrels with France, with the Pope, with local Bishops, and with the city of London and extracted his seal on Magna Carta to procure for themselves and their fellow citizens particular rights rooted in universal liberties. During the next two years, the Dallas Bar Association’s 800th Anniversary of Magna Carta Discussion Forum and Legal History Discussion Group will provide a
series of CLEs celebrating Magna Carta and its influence on the American understanding of liberty and rule of law. We will discuss the importance to a constitutional republic of attorneys as ethical legal professionals and dedicated citizens. These talks will culminate in a trip to London where we intend to gather on July 5 and 6, 2015, to visit historic sites relevant to the Anglo-American tradition of law and attend several presentations regarding Magna Carta and the rule of law. We hope you will join us at the Belo Mansion and in London. Your next opportunity will be on September 25, 2013. Dr. David Upham, Director of Legal Studies at the University of Dallas will present “Magna Carta: The Promise of the Great Charter and Its Dependence on Ethical Lawyers.” Dr. Upham will discuss the promise of the Magna Carta regarding individual rights and the difficulty in fulfilling that promise without attorneys who are sufficiently ethical and numerous to manage the complexity of the law that might menace or protect the person and property of their fellow citizens. The talk will begin at noon at the Belo Mansion. It is free of charge. Lunch is available, for a fee, beginning at 11:30. MCLE ethics credit approval is pending. Advanced registration is appreciated. To register, please email Shane Tucker HN at stucker@velaw.com. Shane Tucker is a partner at Vinson & Elkins LLP. He can be reached at stucker@velaw.com.
Five Things You Should Know About Tax Law continued from page 1
between those that are deductible and those that are not, because some representations will inevitably involve different categories of legal fees—e.g., a divorce involving tax advice. 3. Statute of Limitations. The Internal Revenue Code establishes an intricate and, for the most part, selfcontained statute-of-limitations frame-
work for the assessment and collection of taxes. Generally, the IRS has only three years to assess additional tax liability after a tax return is filed or deemed filed. However, under the so-called “substantial omission” exception—the most common, though not only, exception— the general three-year period is extended to six years if the tax return reflects a substantial omission from gross income (defined as an amount exceeding 25 per-
cent of the gross income stated on the return). Exceptions related to failures to report foreign accounts and income are also becoming increasingly important. Finally, if the tax return is determined to be fraudulent, the IRS can assess additional tax at any time in the future—in other words, there is no statute of limitations. 4. IOLTAs. Lawyers are often curious about how IOLTA trust accounts are treated for federal tax purposes. Interest earned on IOLTA trust accounts and paid to the Texas Access to Justice Foundation is not includible in the income of either the client or the lawyer. Moreover, the lawyer is not required to report the interest paid to the Foundation; thus, there is no need to issue a 1099-INT. 5. The Collection of Taxes. Finally, let us address a few important facts about the collection of taxes. To put it mildly, the IRS is not your average creditor. When the IRS demands payment and a tax is not paid, a lien automatically arises by statute. The lien is expansive, attaching to “all property and rights to property” belonging to the taxpayer— and it is effective regardless of whether
the IRS has actually filed a Notice of Federal Tax Lien or not. Thus, it is often referred to as a “silent lien.” Attorneys should pay particular care (especially where a tax lien has been filed) when representing an executor, trustee, or other person functioning in a representative capacity. Under the federal priority statute, such a person can be held personally liable for distributions or disbursements from an estate or trust made while federal taxes are owed. How is that for a trap for the unwary? And finally, one last pointer that is a common source of confusion: State homestead protection laws do not prevent the federal government from foreclosing on a taxpayer’s home when it has a tax lien on the home. While state law creates legal interests in property, federal law governs what is and is not exempt from levy and foreclosure in this context. Even if property is exempt from foreclosure under state law, the supremacy clause allows the federal government to sweep aside state-created exemptions HN and foreclose. Jason B. Freeman, J.D., C.P.A. is an associate at Meadows Collier. He can be reached at jfreeman@meadowscollier.com.
Augu st 2 0 1 3
Focus
Dal l as Bar A ssoci ati on l Headnotes 17
Tax Law
The Growing Crime of Tax Identity Theft by Maxine Aaronson
Tax identity theft is exploding. In fiscal 2012 alone, the IRS estimates receipt of over one million fraudulent tax returns. While some were caught before processing—the IRS reported intercepting over 260,000 false tax returns, claiming refunds of almost $1.3 billion in the 2011 filing season—it is clear that the majority of fraudulent returns are not caught before the refunds go out. The Taxpayer Advocate Service (TAS) reports that its tax ID theft case inventory grew by over 650 percent between 2008 and 2012. Tax ID theft cases now constitute one quarter of all of open cases at the Taxpayer Advocate Service. The typical individual identity theft case is uncovered when a taxpayer’s return is rejected because a fraudulent return has already been filed and refund sent for that social security number. Victims of this crime should go to the IRS’s identity fraud web page (www.irs.gov/uac/Identity-Protection), retrieve IRS Form 14039 (Identity Fraud Affidavit), and complete and file that form as instructed. Victims can also contact the local TAS office at 1114 Commerce Street, MC1005DAL, Dal-
las, TX 75242 or by calling TAS at (214) 413-6500. When a report is made, the IRS issues the victim a special PIN that must be used when filing their tax returns to differentiate the real taxpayer from the imposter. Because of the PIN requirement, victims cannot file returns electronically—all subsequent returns will have to be paper returns. Upon receipt of Form 14039 or a TAS contact, the IRS will begin its investigation into the matter. Based on anecdotal evidence from across the country, victimized taxpayers can expect the investigative process to take 6-12 months to fully resolve. Notably, taxpayers will not get their tax refund until the matter is resolved. Unfortunately, this can create hardships for lower income taxpayers who often rely on tax refunds to pay for big ticket items. Business tax identity theft is more insidious and more difficult to address. While there are cases of false business tax returns claiming refunds, Employer Identification Number (EIN) theft is more often a component of another crime. For example, a criminal who files a false individual tax return often fabricates a fake Form W-2, using a real company and its real EIN as the
DVAP’s Finest Michael Hurst
Michael Hurst is a Partner at Gruber Hurst Johansen Hail Shank. He has been a DVAP volunteer for several years, accepting divorce, real property, contract and consumer cases, as well as mentoring other DVAP attorneys on their pro bono consumer matters. Last year, Michael served as the Chair of DVAP’s Equal Access to Justice Campaign and helped to raise a record amount of funds for DVAP. Michael and his family have also delivered Thanksgiving dinners to needy DVAP clients for the past few years. Thank you for all you do, Michael!
employer, showing tax allegedly withheld. Because the IRS does not receive W-2 information from Social Security until many months after information returns are filed, they cannot check the fake W-2 against the real information filed by the employer in real time. About two years later, the IRS Combined Annual Wage Reporting (CAWR) program will compare the total of all the employer’s W-2s that were submitted with Forms 1040 to the totals on the employer’s payroll tax returns. If the amounts do not match, the IRS sends a notice to the employer seeking an explanation and proposing additional tax and penalties. These CAWR notices contain only aggregate amounts and do not include an itemized list of the W-2s that were purportedly matched. As a practical matter, this makes it almost impossible for most employers to determine what the error is. Most companies simply pay the IRS bill using a cost to benefit rationale. When that happens, the business becomes a fraud victim because they suffer the loss. Another EIN scam involves the hijacking of defaulted entities. A criminal reinstates the company at the Secretary of State, changing the registered agent and mailing addresses. Often the entity’s EIN number
is readily available from public sources. If not, an Internet black market for stolen tax ID numbers exists. Once the credit reporting agencies pick up the address change, the criminal is able to take out loans and open credit lines in the entity’s name using its prior credit history. They may also open merchant credit card processing accounts in the hijacked business’ name. The scale can be enormous. Over a four year period, one group of criminals established over 100 credit card processing accounts, ran over 1.3 million small transactions on stolen credit card numbers and netted $9.5 million of illicit gain before being caught and prosecuted. Interestingly, only about six percent of the charges had been disputed by the card holders. Lawyers should advise clients to watch out for these problems. If possible, entities should be formally dissolved, not just forfeited at the Secretary of State. Colorado’s Secretary of State has an excellent guide to preventing business ID theft on its website, and www.businessidtheft.org is another eye-opening resource. Both are recommended reading for lawyers and cli HN ents alike. Maxine Aaronson, a solo practitioner, is Board Certified in Tax Law. She can be reached at maxine@federaltaxplanning.com.
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18 H e a d n o t e s l D a l l a s B a r A s s o ciation
In the News
A ugust 2013
August
FROM THE DAIS
Anne Turner Beletic spoke at The National Council of Juvenile and Family Court Judges. Suzanne Mann Duvall, of Burdin Mediations, participated in the ethics panel discussion at the 2013 Annual Meeting of the State Bar of Texas held in Dallas. Barry Barnett, of Susman Godfrey L.L.P., spoke at the Antitrust and Business Litigation Section’s program during the Annual Meeting of the State Bar of Texas. William R. Cousins, of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., spoke at Texas Bank and Trust and for the 22nd Annual Institute on Estate Planning. Joel N. Crouch spoke at Texas Bank and Trust, the Dallas CPA Society at Convergence 2013, the North American Petroleum Accounting Conference, Wichita Falls Chapter of the Texas Society of CPAs and the Central Texas Chapter of the Texas Society of CPAs. Josh O. Ungerman spoke at the Dallas CPA Society at Convergence 2013 and the Central Texas Chapter of the Texas Society of CPAs. Alan K. Davis spoke at the 2013 Estate Planning. David Colmenero spoke at Convergence 2013 for the Dallas CPA Society and for the Wichita Falls Chapter of the Texas Society of CPAs. Sarah Q. Wirskye was a panelist on the Accounting Continuing Professional Education Network Healthcare Industry Update. Eric D. Marchand spoke at the Southeast Texas Chapter of the Texas Society of CPAs. Anthony P. Daddino spoke at the Wichita Falls Chapter of the Texas Society of CPAs. Michael A. Villa, Jr. spoke at the ABA Section of Taxation 2013 Meeting. Mary E. Wood and Matthew S. Beard spoke at Texas Bank and Trust.
KUDOS
Nina Cortell, of Haynes and Boone, LLP, received the 2013 Jack Pope Professionalism Award from The Texas Center for Legal Ethics. Frank Finn, of Thompson & Knight LLP, has been named the recipient of the 2013 William Roper Award from the St. Thomas More Society, the Diocese of Dallas Catholic Lawyers’ Guild. Elizabeth A. Schartz, of the firm, has been named as Secretary of the Board of Directors for the Girl Scouts of Northeast Texas. Beverly B. Godbey, of Gardere Wynne Sewell LLP, has been appointed a trustee for the Texas Center for Legal Ethics Board of Trustees. Dustin J. O’Quinn, of the firm, has been appointed to the Board of Directors for the Human Rights Initiative. Darin Klemchuk, of Klemchuk Kubasta LLP, led a team in the 2013 Carry the Load, a 20-hour Walkathon. Jenny Smith, of Carrington, Coleman, Sloman & Blumenthal, L.L.P., has been elected to the position of ABA Young Lawyers Division District Representative for District 26 and will also serve on the board of the Texas Young Lawyers Association. Angelina LaPenotiere, of the firm, received the 2013 Women of ALPFA Latina Achievement Award as Best Attorney. Rhonda Hunter, of Farrow-Gillespie & Heath LLP, has been appointed to the American Bar Association Center for Racial and Ethnic Diversity for a one-year term. Honorable Jim Jordan, of the 160th District Court, received a Certificate in Judicial Development: General Jurisdiction Trial Skills from The National Judicial College in Reno, Nevada.
Fred Arias, of Fletcher, Farley, Shipman & Salinas, LLP, has been promoted to Partner. Jane C. Taber, of Estes Okon Thorne & Carr, has been elected to the Educational First Steps’ Board of Directors. Sonya D. Hoskins, of Robinson & Hoskins, L.L.P., was elected to membership in the Fellows of the Texas Bar Foundation. Maxine Aronson has been named to Legal Tax Advisory Board for Wolters Kluwer Law & Business. Richard A. Anderson, of Burleson, Pate & Gibson, L.L.P., was inducted into the Texas Criminal Defense Lawyers Hall of Fame. Suzanne Mann Duvall, of Burdin Mediations, has been appointed Vice-Chair of the Professionalism Committee of the State Bar. Charles M. Meadows, Jr., of Meadows, Collier, Reed, Cousins, Crouch & Ungerman, L.L.P., has been elected as a Fellow of the American College of Tax Counsel. Matthew S. Beard, of the firm has been elected to membership in the Fellows of the Texas Bar Foundation.
Laura M. Fontaine has joined Gruber Hurst Johansen Hail Shank LLP as Associate. Kathleen M. Kilanowski and Robert A. McNiel have joined Deans & Lyons, LLP as Associate and Partner, respectively. Clayton E. Bailey and Alexander M. Brauer have established Bailey Brauer PLLC, located at Campbell Centre I, 8350 N. Central Expressway, Suite 935, Dallas, Texas 75206. Frank Tupper Smith, Jr. has joined Smith
Dallas County Bench Book
D. Steven Henry joined Austin Industries as Senior Vice President and Chief Legal Officer. Lindsay E. Goodner has joined Russell & Wright, PLLC as Associate. Aaron S. Turner has joined Weil, Gotshal & Manges LLP as Associate. Randall White has joined Conner & Winters LLP as Partner. Greta E. Cowart, Preston “Trip” Dyer Jr., Seth W. Eaton and Elizabeth A. Franko have joined Winstead PC as Shareholder and Associates, respectively. Merissa Kogutt has joined Hunt Ham PLLC as Associate. The firm has relocated to 1445 Ross Avenue, Suite 5454, Dallas, Texas 75202. Paul M. McDermott has formed McDermott Law Firm, PLLC, located at 3131 McKinney Ave. Suite 600, Dallas, TX 75204. Roy E. Mathews has joined Patton Law Group, PLLC as Associate.
ON THE MOVE
2013
& Oliai, P.L.L.C., as Of Counsel.
Jonathan Bull has re-joined Gardere Wynne Sewell LLP as Senior Attorney. Paul W. Simon and Dustin A. Paschal have opened an office, Simon | Paschal PLLC, 2633 McKinney Ave., Suite 130439, Dallas, Texas 75204. News items regarding current members of the Dallas Bar Association are included in Headnotes as space permits. Please send your announcements to Judi Smalling at jsmalling@dallasbar.org.
Top 5 reasons to purchase the new 2013 Dallas County Bench Book: 1. Real insight of the courtroom straight from the judge 2. Includes new and updated questionnaires 3. Contains procedures for local, state and federal courts 4. Four surrounding counties in addition to Dallas County are included 5. A portion of the proceeds benefits the Dallas Bar Association
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Augu st 2 0 1 3
Classifieds
Dal l as Bar A ssoci ati on l Headnotes 19
August
EXPERT WITNESS
Drug/Alcohol Expert - Pharmacy Professor; 33 years’ experience consulting, teaching, researching prescription, illegal, overthe-counter drugs, alcohol, drug testing. Trial and deposition experience specializing in drug-related domestic, civil, criminal cases. Reviews, summaries, depositions, discovery, trials. Allison Welder, Ph.D. (361) 542-5636; allisonannewelder@yahoo.com; www.welderconsulting.com. Economic Damages Experts - Thomas Roney has more than twenty five years’ experience providing economic consulting services, expert reports and expert testimony in court, deposition and arbitration. His firm specializes in the calculation of economic damages in personal injury, wrongful death, employment, commercial litigation, IP, valuation and divorce matters. Mr. Roney and his experienced team of economic, accounting and finance experts can help you with a variety of litigation services. Thomas Roney LLC serves attorneys across Texas with offices in Dallas, Fort Worth and Houston. Contact Thomas Roney in Dallas/Fort Worth (214) 665-9458 or Houston (713) 513-7113. troney@thomasroneyllc.com. “We Count.” Mexican Law Expert - Attorney, former law professor testifying since 1997 in U.S. lawsuits involving Mexican law issues: FNC motions, Mexican claims/defenses, personal injury, moral damages, contract law, corporations. Co-author, leading treatise in field. J.D., Harvard Law. David Lopez, (210) 2229494. dlopez@pulmanlaw.com
OFFICE SPACE
North Dallas Tollway (Galleria area) office space. Hardwood floors and ornate mahogany paneled walls in common areas. Several offices available in different sizes, all with accompanying mahogany secretarial carrel. All have access to three conference rooms, copier, postage meter, high speed Internet, phones and two kitchens. Receptionist services also available. Please call Brittanie at (972) 934-4100. Campbell Center I: AV rated law firm has a window office (15x15) for sublease in Class A Bldg. Space has exceptional finish out and elevator exposure. All amenities included. Call Joy (214) 361-1262. Park Cities/Central Expwy – Law firm has up to 3 window offices in Class A building for lease. Great location at 8080 Central Expwy. at Caruth. Spectacular views of downtown and Park Cities. Elevator exposure and expensive finish out. Large conf. room and kitchen. Secretarial space, high speed scanner/copier, broadband, extra storage and other amenities available. Call John/(214) 546-6337 or (214) 292-4202. Office Space - Nicely decorated in North Dallas has 2 window attorney offices available to share with a Board Certified Fam-
Do You Want to Refresh Your Spanish? Spanish for Lawyers is the Answer! 10-Week Course Fall 2013 Classes begin September 3 September 3 – November 5, 2013
Class cost: $180 For more information, contact Teddi Rivas at TRivas@dallasbar.org or (214) 220-7447.
ily Law specialist. Great location and easy access from either LBJ or Central Expressway. Attractive reception area, free covered parking, large conference room, copier, high-speed Internet, phones, kitchen and free health club. (214) 5808000 or email kim@buholzlaw.com. North Dallas. Law firm located at Lincoln Centre has one partner size office, one small office and two cubicles available. Located at Tollway and LBJ; two conference rooms; break room/kitchen; copiers; postage machine. Email: dallasipfirm@gmail.com for more information. Downtown AV preeminent law firm has one window office available for lease with secretarial station (if needed), reception area, conference room, elevator exposure and kitchen. Please call Mark or Vicki at (214) 752-0400. Available Immediately - Uptown Dallas Office Space Law office seeks to sublease to attorney or non-attorney businesses. Shared amenities, free visitor parking and convenient to DART rail. Contact dallasuptownoffice47@gmail.com. Downtown Dallas – Office available, located in the historic KATY Building directly across from the Dallas County Courthouses. Receptionist, phone system, conference room, Wi-Fi, fax and copier available for tenants use. No lease required. Please inquire at (214) 748-1948. North Dallas/ Addison/ Carrollton/ Farmers Branch. Business, Real Estate, Employment, Litigation Law Firm has lease space for one or two attorneys, or for one attorney and staff member. Available immediately. Seeking compatible persons with similar or augmenting practices, preferably in an “of Counsel” role. Contact Anne at (214) 764-7978, or email asmith@metrocrestlaw.com.
POSITION AVAILABLE
AV- Rated, well-established midsize law firm seeks lateral partners with portable business for its downtown Dallas office. Successful candidates will be equipped with drive, energy, leadership potential and high professional standards. The firm, which has been a distinguished part of the North Texas law community for over 30 years, offers the opportunity for a practice in virtually any area. The firm will consider flexible financial arrangements for individuals seeking support to expand their current book of business. The firm features an excellent reputation, great benefits and strong colleague support in a friendly and professional atmosphere. Send resume to: Dallas Bar Association, Box 13–08, 2101 Ross Avenue, Dallas, Texas 75201. Corporate and Securities Attorneys. Exall & Wood PLLC seeks attorneys with 6-12 years of corporate and securities experience in a large law firm and/or
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sophisticated corporate law department. Candidates will work independently on various aspects of corporate and securities transactional work including M&A transactions, business formations, and debt and equity offerings. Qualified candidates should send their resumes to hexall@exallwood.com. Health Law Attorney Needed. Experience in healthcare regulatory and payment matters - Medicare, Medicaid, licensing, transactional or criminal law services to healthcare providers. We prefer a problem solver with a disciplined work ethic, excellent writing skills, good attitude who is self-motivated and will participate in marketing & seminar presentations. Please email resume to markskennedylaw@msn.com. Experienced Real Estate Attorney. Condon Thornton Sladek Harrell PLLC, a Commercial Real Estate and Finance boutique law firm, located in Dallas is seeking an associate with 3-6 years’ experience in commercial real estate. The ideal candidate will have significant leasing and development experience. Must have strong academic credentials to be considered for this position. Please forward your resume and transcripts to dnoss@ctshlaw.com Real Estate Attorney. Condon Thornton Sladek Harrell PLLC, a Commercial Real Estate and Finance boutique law firm, located in Dallas is seeking an associate with 1-3 years’ experience in commercial real estate. Leasing experience is a plus. Must have strong academic credentials to be considered for this position. Please forward your resume and transcripts to dnoss@ctshlaw.com. IP Patent and Prosecution Associate Needed. Law firm and great place to work, seeking intellectual property associate with a minimum of 3 years patent and prosecution experience for its downtown Dallas office. The candidate should have a Bachelor’s degree in electrical engineering. Fluency in Mandarin Chinese is a bonus. Admission before the USPTO is required. The preferred candidate will also be experienced in drafting discovery requests, legal memoranda and briefs, researching legal issues, document production and deposition outline preparation for patent cases. The successful candidate must also have a good work ethic, ability to meet deadlines, and the desire to develop their own personal client base. Interested candidates please forward a resume and writing sample to resumes@solidcounsel.com. Real Estate Attorney: Preston Center law firm seeks commercial real estate associate. The ideal candidate should have 3-6 years of experience in leasing, sales and acquisitions of commercial real estate. Candidate should have excellent drafting, negotiating and client communication skills, and be experienced in working in Microsoft Word and Out-
look. Candidate must be a member of the State Bar of Texas. Submit resumes to jobs@andrews-barth.com. Commercial Real Estate Assistant: Preston Center law firm seeks an experienced commercial real estate assistant for a temporary position with the possibility of it becoming permanent. Requires at least 2 years legal administrative experience with at least 1 year in commercial real estate. Available August 15 - December 31, Monday–Friday, 8:30 a.m. – 5:30 p.m. Submit resumes to jobs@andrews-barth.com. Palmer & Manuel, LLP, a fourteen attorney firm in Campbell Centre, seeks to add two to three attorneys with established practices in the areas of commercial litigation, business transactions or family law. Attractive offices and a collegial atmosphere make P&M, LLP a great place to practice law. The Firm’s formulabased compensation system allows attorneys to keep a substantial portion of their collected fees. For more information, email spalmer@pamlaw.com or call (214) 242-6444.
POSITION WANTED
Contract Attorney Experienced, AVrated commercial litigation attorney available on an hourly basis for research, writing, drafting motions, pleadings and briefs, discovery, and trial preparation. High quality work product for your firm with no commitment and no overhead. Excellent references. attorney3503-7615@yahoo.com.
SERVICES
Oil and Gas Buyer. Buying royalty interests, overriding royalty interests and non-operating working interests. Send descriptive information to royalty@coromandelenergy.com for a prompt and fair evaluation. Owner is SBOT and DBA member. Diamond and Gold Buyer. Buying all types of Diamonds, Immediate Cash Paid. Consignment terms available @ 10 -20% over CASH. For consultation and offers please call (214) 739-0089. Foreign Legal Consultant. Nodgar E.V. Piranian. Admitted to the practice of law in Argentina. 4925 Greenville Avenue, 2nd Floor, Dallas, Texas 75206. Email: nodgarnp@gmail.com. phone: (214) 5077025. To place an affordable classified ad here, contact Judi Smalling at (214) 220-7452 or email jsmalling@dallasbar.org.
Connect jobseekers with employers in the legal field. Run your ad in the DBA’s online Career Center. www.dallasbar.org/career-center.
20 H e a d n o t e s l D a l l a s B a r A s s o ciationâ&#x20AC;
A ugust 2013
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