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April 30, 2010

EPA to Cut Mercury, Other Toxic Emissions from Boilers, Solid Waste Incinerators

CONTACTS:
Cathy Milbourn (News Media only)
milbourn.cathy@epa.gov
202-564-7849
202-564-4355

FOR IMMEDIATE RELEASE
April 30, 2010


EPA to Cut Mercury, Other Toxic Emissions from Boilers, Solid Waste Incinerators

Cost-effective proposals would reduce harmful air pollution in communities across the United States

WASHINGTON – The U.S. Environmental Protection Agency (EPA) is issuing proposals that would cut U.S. mercury emissions by more than half and would significantly cut other pollutants from boilers, process heaters and solid waste incinerators. These pollutants include several air toxics which are known or suspected to cause cancer or other serious health problems and environmental damage. The proposed rules are estimated to yield more than 5 dollars in public health benefits for every dollar spent.

“Strong cuts to mercury and other harmful emissions will have real benefits for our health and our environment, spur clean technology innovations and save American communities billions of dollars in avoided health costs,” said EPA  Administrator Lisa P. Jackson. “This is a cost-effective, commonsense way to protect our health and the health of our children, and get America moving into the clean economy of the future.”

Combined, these proposals would cut annual mercury emissions from about 200,000 industrial boilers process heaters and solid waste incinerators, slashing overall mercury emissions by more than 50 percent. Industrial boilers and process heaters are the second largest source of mercury emissions in the United States.

Mercury can damage children’s developing brains and nervous systems even before they are born. When emitted to the air, mercury eventually settles in water, where it can change into methylmercury, which builds up in ocean and freshwater fish and can be highly toxic to people who eat the fish. This sometimes leads to fish consumption advisories to protect public health.

When fully implemented, today’s proposal would yield combined health benefits estimated at $18 to $44 billion annually.
These benefits include preventing between 2,000 and 5,200 premature deaths, and about 36,000 asthma attacks a year. Estimated annual costs of installing and operating pollution controls required under these rules would be $3.6 billion.  

These actions cover emissions from two types of combustion units. The first type of unit, boilers and process heaters, burns fuel such as natural gas, coal, and oil to produce heat or electricity. These units can also burn non-hazardous secondary materials such as processed tires and used oil. Boilers are located at large industrial facilities and smaller facilities, including commercial buildings, hotels, and universities. The second type of unit, commercial and industrial solid waste incinerators, burns solid waste.

Large boilers and all incinerators would be required to meet emissions limits for mercury and other pollutants. Facilities with boilers would also be required to conduct energy audits to find cost effective ways to reduce fuel use and emissions. Smaller facilities, such as schools, with some of the smallest boilers, would not be included in these requirements, but they would be required to perform tune-ups every two years.

EPA is also proposing to identify which non-hazardous secondary materials would be considered solid waste and which would be considered fuel. This distinction would determine whether a material can be burned in a boiler or whether it must be burned in a solid waste incinerator. The agency is also soliciting comment on several other broader approaches that would identify additional non-hazardous secondary materials as solid waste when burned in combustion units.

EPA will take comment on these proposed rules for 45 days after they are published in the Federal Register.
EPA will hold a public hearing on these rules soon after they are published in the Federal Register. For more information on the proposals and details on the pubic hearings: http://www.epa.gov/airquality/combustion

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N.Y. Judge Rules Property Division Unaffected by Wife's Infidelity, Deception
New York Law Journal

The misconduct of a woman who misled her husband into believing that he was the father of a child she had had with another man was not so outrageous as to affect the division of their property, the New York Court of Appeals ruled Thursday. The court in a 6-1 ruling declined to find that the wife's adulterous behavior rose to "egregious" levels that would disturb the presumption in New York domestic relations law in favor of equitable distribution in marital actions.
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April 29, 2010

The Harris Company, REA/C Commercial Appraiser and Real Estate Consultant

The Harris Company, REA/C Commercial Appraiser and Real Estate Consultant

http://www.harriscompanyrec.com

 

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.S. 7th Circuit Court of Appeals, March 25, 2010
W. Bend Mut. Ins. Co. v. U.S. Fid. & Guar. Co., No. 09-2519
In an action for breach of contract arising from defendant's refusal to defend a mutual insured in a class action alleging that insured's gas station contaminated groundwater in a residential neighborhood, judgment that defendant's policy excluded this type of claim in granting summary judgment in favor of defendant is affirmed where: 1) the pollution exclusion in defendant's policy was sufficiently explicit to exclude gasoline contamination from coverage; and 2) the district court did not err in holding that neither the excess liability coverage nor the products-completed operations hazard coverage contained in the supplemental defendant's umbrella policy provide grounds for the relief that plaintiff seeks. Read more...

U.S. 10th Circuit Court of Appeals, March 26, 2010
Rio Grande Silvery Minnow v. Bureau of Reclamation, No. 05-2293
In a quiet title action regarding certain dam areas, the action is remanded where plaintiff's action was time-barred, because the district court did not clearly err in finding that plaintiff knew as far back as the early 1950s that the U.S. claimed title to the properties, and thus the district court did not have jurisdiction to decide the merits of the action. Read more...

U.S. D.C. Circuit Court of Appeals, March 22, 2010
National Mining Ass'n. v. Mine Safety & Health Admin., No. 08-1241
In a petition for review of the Mine Safety and Health Administration's (MSHA's) decision to enforce a final exposure limit standard addressing health risks presented by exposure of miners in metal and nonmetal underground mines to diesel particulate matter (DPM) in diesel exhaust, the petition is denied where: 1) there was no inconsistency between MSHA's earlier position that it could enforce the DPM standard of 160 TC and its statement in 2006 that to enforce the standard it needed "to validate a TC sample result, which cannot be done without an appropriate conversion factor for EC at that level"; 2) an agency did not enact a new rule when a transition rule expires or when the agency decided not to modify a rule, states that additional study is needed, or concludes that no new transition rule is needed; and 3) only Department of Labor entities could be proper respondents to a petition filed pursuant to the Mine Act. Read more...

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U.S. 9th Circuit Court of Appeals, April 20, 2010
US v. Bell, No. 05-16154
In an action by the U.S. against the Truckee-Carson Irrigation District (TCID) alleging a violation of the federal government's water rights, the district court's ruling that the government under the Settlement Act could pursue any claim for past excess diversions from the bodies of water at issue, and denying prejudgment interest, is affirmed in part where: 1) the U.S. properly brought the action under the Settlement Act; 2) the district court's order did not conflict with prior Nevada state court decrees; and 3) the district court did not err in finding TCID liable under the Settlement Act for its violations of operating criteria and procedures imposed by the Secretary of the Interior. However, the order is vacated in part where the district court needed to explain the basis in the record for its legal or equitable award of "water interest," that is, water over the amount wrongfully diverted each year. Read more...

U.S. 10th Circuit Court of Appeals, April 19, 2010
Copar Pumice Co. v. Tidwell, No. 07-2211
In a petition for review of a Notice of Noncompliance that the United States Forest Service (FS) issued to petitioner concerning its pumice mining activities, the denial of the petition is affirmed where: 1) the expiration of petitioner's plan of operations completely and irrevocably eradicated the effects of the plan modification requirement set forth in the Notice of Noncompliance; 2) it was not plainly erroneous or inconsistent for the FS to conclude from its regulations that an "uncommon variety" mineral becomes a common variety mineral when it is no longer used in an application that emphasizes its distinct and special value; and 3) the administrative record simply did not support petitioner's assertion that it was unaware of the FS’s requests for verification. Read more...

U.S. 10th Circuit Court of Appeals, April 21, 2010
Rio Grande Silvery Minnow v. Bureau of Reclamation, No. 05-2399
In an action under the Endangered Species Act concerning whether the Bureau of Reclamation had discretion to reallocate water from agricultural and municipal contract users to maintain stream flows for the benefit of the Rio Grande Silvery Minnow, the appeal is dismissed and the case is remanded with instructions to dismiss the complaint where the Fish and Wildlife Service's issuance of a new biological opinion mooted plaintiffs' prayer for both injunctive and declaratory relief. Read more...

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CIVIL PROCEDURE, CONSTITUTIONAL LAW, GOVERNMENT LAW, PROPERTY LAW & REAL ESTATE, REMEDIES
Salazar v. Buono, No. 08–472
In an action involving an underlying Establishment Clause challenge to a Latin cross placed on federal land by members of the Veterans of Foreign Wars (VFW) to honor American soldiers who died in World War I, the Ninth Circuit's order precluding the government from transferring the cross and the land on which it stood to the VFW in order to comply with a prior injunction is reversed and the matter remanded where: 1) plaintiff had standing to maintain the instant action because a party that obtains a judgment in its favor acquires a "judicially cognizable" interest in ensuring compliance with that judgment; but 2) the district court erred in enjoining the government from implementing the land-transfer statute on the premise that the relief was necessary to protect plaintiff's rights under the 2002 injunction. Read more...

Related Resources:
Case Docket

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CONTACT:
Dave Ryan (News Media Only)
ryan.dave@epa.gov
202-564-7827
202-564-4355
FOR IMMEDIATE RELEASE
April 29, 2010

 

EPA Launches New Web Tools to Inform the Public About Clean Water Enforcement
Interactive Web tool allows the public to check water violations in their communities
WASHINGTONThe U.S. Environmental Protection Agency (EPA) is launching a new set of web tools, data, and interactive maps to inform the public about serious Clean Water Act violations in their communities.  Improving water quality is one of EPA Administrator Lisa P. Jackson’s priorities and in 2009, Administrator Jackson directed the agency to develop concrete steps to improve water quality, to better enforce the Clean Water Act and to use 21st Century technology to transform the collection, use and availability of EPA data. The web tools announced today is part of EPA’s Clean Water Act Action Plan to work with states in ensuring that facilities comply with standards that keep our water clean.
"EPA is taking another important step to increase transparency and keep Americans informed about the safety of their local waters," said Cynthia Giles, assistant administrator for EPA’s Office of Enforcement and Compliance Assurance. "Making this information more accessible and understandable empowers millions of people to press for better compliance and enforcement in their communities."
The new web page provides interactive information from EPA’s 2008 Annual Noncompliance Report, which pertains to about 40,000 permitted Clean Water Act dischargers across the country.  The report lists state-by-state summary data of violations and enforcement responses taken by the states for smaller facilities. The new web page also makes it easy to compare states by compliance rates and enforcement actions taken and provides access to updated State Review Framework (SRF) reports.  
Interactive Map for Clean Water Act Annual Noncompliance Report: 
http://www.epa-echo.gov/echo/ancr/us/
State Review Framework: http://www.epa.gov/compliance/state/srf/index.html
Enforcement and Compliance History Online: http://www.epa-echo.gov/echo
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Note: If a link above doesn't work, please copy and paste the URL into a browser.

 

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April 27, 2010

Latest Eminent Domain Ruling From The California Court of Appeal

Latest Eminent Domain Ruling From The California Court of Appeal

Posted: 26 Apr 2010 07:39 AM PDT

I'm on the road so haven't had the opportunity to digest this one in more detail.

In an unpublished opinion in Community Redevelopment Agency of the City of Los Angeles v. Kramer Metals, No. B208726 (Apr. 23, 2010, the California Court of Appeal (Second District) held:

Kramer Metals, a California partnership, Stanley J. Kramer, as its general partner, and Stanley J. Kramer and Susan M. Kramer, husband and wife, as joint tenants, (collectively, Kramer) appeal from the judgment in condemnation following: (1) a court trial determining Kramer's entitlement to just compensation from the Community Redevelopment Agency of the City of Los Angeles, California (CRA) for taking Kramer's property (Kramer Property or 1000 Property); (2) a jury trial resulting in an award of $4,830,000 as just compensation; and (3) a jury trial resulting in a verdict that Kramer "suffered no loss of goodwill as a result of the taking."

On appeal, Kramer contends that: (1) the trial court erred in failing to dismiss the condemnation action, because the Resolution of Necessity (RON) did not contain a determination that the public interest and necessity required the project, a jurisdictional defect; (2) the requisite owner participation process was a sham; (3) CRA violated the Ralph M. Brown Act (Gov. Code, § 54950, et seq.; Brown Act) in adopting the amended RON; (4) CRA's pre-determination to acquire the Kramer Property violated Kramer's due process right to notice and opportunity to be heard; (5) the amended RON lacked a renewed parcel-specific blight finding; (6) the court abused its discretion in excluding evidence of precondemnation damages and in admitting the testimony of CRA's goodwill expert; and (7) the judgment must be amended to include an award of interest on the probable compensation deposited. We affirm the judgment.

Slip op. at 2 (footnote omitted).

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Abbott & Kindermann Land Use Law Blog]

Abbott & Kindermann Land Use Law Blog] City's New General Plan is not Cleared for Take-off, Returns to Base and is Grounded: Court Sets Aside Watsonville General Plan for Non Compliance with State Aeronautical Act and CEQA Requirements
Tuesday, April 27, 2010 3:17 PM
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Summary:
An appellate court sets aside a newly adopted general plan on grounds of incompatibility with the State Aeronautics Act, and on the basis of failure to consider a lower growth alternative in the EIR.


It has long been said that the general plan is the constitution for development and growth. In reality, the general plan has, on a selected basis, been subverted to other special planning purposes such as coastal planning, preservation of San Francisco Bay and Lake Tahoe and, as in the subject to this article, airport planning.


View the entire entry:
http://blog.aklandlaw.com/2010/04/articles/planning-zoning-development/citys-new-general-plan-is-not-cleared-for-takeoff-returns-to-base-and-is-grounded-court-sets-aside-watsonville-general-plan-for-non-compliance-with-state-aeronautical-act-and-ceqa-requirements/index.html

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April 24, 2010

Real Estate Mortgage Fraud Confrence sponsored by the Appraisal Institute

Real Estate Mortgage Fraud Confrence sponsored by the Appraisal Institute

Advanced Registration for the Predictive Methods Conference and advanced room rates at The Ritz-Carlton, Laguna Niguel end April 15

 Don’t miss out on the education provided by Fannie Mae, Standard & Poor’s, Capital One, Freddie Mac, Saxon, Comptroller of the Currency, GMAC, MISMO and Equifax – just to name a few!  And, don’t forget about our keynote speakers, Dylan Ratigan, Peter Navarro and Dr. Thomas Eppel.

A special thank-you to our sponsors and exhibitors:

 Platinum:  BrokerPriceOpinion.com, DataQuick, DSNews, HousingWire, Lender Processing Services and PCV Murcor

 Gold:  ACI, AppraisalWorld, Equifax, Kirchmeyer & Associates/real-info.com and Solidifi

 Silver:  AVMetrics, Clear Capital, CRN/AppraisalBuzz, DataVerify, FNC, Integrated Asset Services, Interthinx, Nasoft, Pro Teck, Rapid Reporting, Salford Systems, Standard & Poor’s

 CorporateAppraisal Institute, Fiserv, InsideValuation, IntelliReal, Live Valuation, Nations Valuation Services, ValueConnect and Live Valuation

Please visit www.PMC2010.com/sponsors for more information 

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Federal Government's Brief In Opposition In Erosion Case: Is A Littoral Owner Trespassing When The Shoreline Erodes?

Federal Government's Brief In Opposition In Erosion Case: Is A Littoral Owner Trespassing When The Shoreline Erodes?

Posted: 24 Apr 2010 12:01 AM PDT

The Solicitor General has filed the federal government's Brief in Opposition in Sharp v. United States, No. 09-820 (cert. petition filed Jan. 7, 2010) (Supreme Court docket entry here).

In that case, the property owners are asking the U.S. Supreme Court to review the Ninth Circuit's decision in United States v.  Milner, 583 F.3d 1174 (9th Cir. 2009), which held that a littoral owner was liable for trespass in waters held by the federal government for the benefit of the Lummi Nation, and for violation of the Rivers and Harbors Act for maintaining a "shore defense structure." The structure was built on private fast (dry) land, but the shoreline eventually eroded up to it.

In the opinion, detailed in this post, the Ninth Circuit held that "both the tideland owner and the upland owner have a right to an ambulatory boundary, and each has a vested right in the potential gains that accrue from the movement of the boundary line." Slip op. at 14477. The shoreline defense structure may have been legal when it was built, according to the court, but it became illegal when it impeded natural erosion.

Here are the petition, BIO of the Lummi Nation, and the amicus briefs:

Stay tuned as this case develops.

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April 23, 2010

Was Ban On Palmyra Commercial Fishing A Taking Of The Right To Operate Seafood Processing Facilities?

Was Ban On Palmyra Commercial Fishing A Taking Of The Right To Operate Seafood Processing Facilities?

Posted: 23 Apr 2010 02:08 AM PDT

At its upcoming April 30, 2010 conference, the U.S. Supreme Court is considering the cert petition in a case we've been following since it was decided by the Court of Federal Claims. In Palmyra Pacific Seafoods, L.L.C. v. United States, No. 09-766 (cert. petition filed Dec. 28, 2009), the Court is presented with the following Questions Presented:

1.  Are private contracts property protected by the Takings Clause of the Fifth Amendment to the Constitution?

2.  Assuming that private contracts are property protected by the Takings Clause, is the federal government liable for regulatory as well as appropriative takings of private contracts?

The CFC and the Federal Circuit both rejected the claim that the Secretary of the Interior's designation of the waters surrounding Palmyra and Kingman Reef as National Wildlife Refuges and attendant commercial fishing ban was a taking of Palmyra Pacific Seafood's exclusive licenses to operate commercial fish processing facilities on the atoll. Palmyra Pacific had licenses from the private owners of Palmyra to use the atoll's airstrip, dock, harbor, and base came for their commercial fishing enterprise. In reliance on the licenses, Palmyra Pacific invested several millions of dollars in on-island infrastructure, and actually began commercial fishing operations. The CFC dismissed the case for failure to state a claim because even though the commercial fishing ban virtually wiped out the value of the licenses, they were not "property" protected by the Takings Clause. The Federal Circuit affirmed.

The cert petition asserts that the circuits are split regarding whether contracts are property. See Pet. at 5-8. The petition also asserts a circuit split about whether contracts can be the subject of a regulatory taking (as opposed to a direct appropriation). Pet. at 8-14.

Here are the petition, the federal government's BIO, and reply:

We'll let you know what happens after the conference.

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April 22, 2010

Top Commercial Real Estate News
April 15, 2010 - April 21, 2010
Provided by Commercial Real Estate Direct

CMBS Defaults Hitting 11% This Year
The cumulative default rate for CMBS conduit loans is projected by Fitch Ratings to climb to 11% by the end of the year from 6.59% at the end of last year. Through the end of last year, $35.5B of loans in Fitch's universe of $539B of fixed-rate CMBS loans had
Read Full Story


FDIC to Launch $2B of Structured Offerings
The FDIC is close to formally launching its next two structured offerings, involving a total of $2.2B of commercial real estate and development loans. The agency, like in its 12 previous structured sales, will sell only an interest, of Read Full Story

Terms for Borrowers Ease as Lenders Return
Lenders are returning to the commercial mortgage market, dropping their requirements for borrowers and their targets for returns along the way. While trophy properties in major markets are seeing most of the increased lender interest Read Full Story

Younan Properties Eyes Recap Through IPO
Younan Properties Inc., a Woodland Hills, Calif., property owner that in recent years built a portfolio of 35 office buildings with 11M square feet primarily in Dallas, Chicago and Houston, hopes to recapitalize its operation by Read Full Story

REITs De-leveraged Sharply Last Year
The REIT sector, bolstered by a runup in stock prices, deleveraged substantially last year. The industry's 50 largest REITs, for instance, grew in total market capitalization to $501.6B at the end of last year from $433B a year earlier. And while the dollar amount of Read Full Story

Volcanic

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DON'T RISK YOUR ESTATE WITH A PROBATE REFEREE,

DON'T RISK YOUR ESTATE WITH A PROBATE REFEREE, CHOOSE A STATE CERTIFIED GENERAL APPRAISER:

http://www.harriscompanyrec.com/CaliforniaProbateAppraiser.html

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April 21, 2010

Treasury Department Circular No. 230 (Revised 7-94) 31 Code of Federal Regulations Subtitle A, Part 10

Treasury Department Circular No. 230 (Revised 7-94) 31 Code of Federal Regulations Subtitle A, Part 10

Regulations Governing the Practice of Attorneys, Certified Public Accountants, Enrolled Agents, Enrolled Actuaries and Appraisers before the Internal Revenue Service

NOTE: The entire table of contents is listed below. However, only excerpts of Circular 230 that are relevant to material covered in the textbook are included below.


CONTENTS

Section

10.0 Scope of part.

Subpart A - Rules Governing Authority to Practice

10.1 Director of Practice.

10.2 Definitions.

10.3 Who may practice.

10.4 Eligibility for enrollment.

10.5 Application for enrollment.

10.6 Enrollment.

10.7 Representing oneself; participating in rulemaking; limited practice; special appearances; and return preparation.

10.8 Customhouse brokers.

Subpart B - Duties and Restrictions Relating to Practice Before the Internal Revenue Service

10.20 Information to be furnished.

10.21 Knowledge of client's omission.

10.22 Diligence as to accuracy.

10.23 Prompt disposition of pending matters.

10.24 Assistance from disbarred or suspended persons and former Internal Revenue Service employees.

10.25 Practice by partners of Government employees.

10.26 Practice by former Government employees, their partners and their associates.

10.27 Notaries.

10.28 Fees.

10.29 Conflicting interests.

10.30 Solicitation.

10.31 Negotiation of taxpayer refund checks.

10.32 Practice of law.

10.33 Tax shelter opinions.

10.34 Standards for advising with respect to tax return positions and for preparing or signing returns.

Subpart C - Rules Applicable to Disciplinary Proceedings

10.50 Authority to disbar or suspend.

10.51 Disreputable conduct.

10.52 Violation of regulations.

10.53 Receipt of information concerning attorneys, certified public accountants, enrolled agents, or enrolled actuaries.

10.54 Institution of proceeding.

10.55 Conferences.

10.56 Contents of complaint.

10.57 Service of complaint and other papers.

10.58 Answer.

10.59 Supplemental charges.

10.60 Reply to answer.

10.61 Proof; variance; amendment of pleadings.

10.62 Motions and requests.

10.63 Representation.

10.64 Administrative Law Judge.

10.65 Hearings.

10.66 Evidence.

10.67 Depositions.

10.68 Transcript.

10.69 Proposed findings and conclusions.

10.70 Decision of the Administrative Law Judge.

10.71 Appeal to the Secretary.

10.72 Decision of the Secretary.

10.73 Effect of disbarment or suspension; surrender of card.

10.74 Notice of disbarment or suspension.

10.75 Petition for reinstatement.

10.76 Expedited suspension upon criminal conviction or loss of license for cause.

Subpart D - Rules Applicable to Disqualification of Appraisers

10.77 Authority to disqualify; effect of disqualification.

10.78 Institution of proceeding.

10.79 Contents of complaint.

10.80 Service of complaint and other papers.

10.81 Answer.

10.82 Supplemental charges.

10.83 Reply to answer.

10.84 Proof, variance, amendment of pleadings.

10.85 Motions and requests.

10.86 Representation.

10.87 Administrative Law Judge.

10.88 Hearings.

10.89 Evidence.

10.90 Depositions.

10.91 Transcript.

10.92 Proposed findings and conclusions.

10.93 Decision of the Administrative Law Judge.

10.94 Appeal to the Secretary.

10.95 Decision of the Secretary.

10.96 Final order.

10.97 Petition for reinstatement.

Subpart E - General Provisions

10.98 Records.

10.100 Saving clause.

10.101 Special orders.


Sec. 10.0 Scope of part.

This part contains rules governing the recognition of attorneys, certified public accountants, enrolled agents, and other persons representing clients before the Internal Revenue Service. Subpart A of this part sets forth rules relating to authority to practice before the Internal Revenue Service; subpart B of this part prescribes the duties and restrictions relating to such practice; subpart C of this part contains rules relating to disciplinary proceedings; subpart D of this part contains rules applicable to disqualification of appraisers; and Subpart E of this part contains general provisions, including provisions relating to the availability of official records.

 

Subpart A - Rules Governing Authority to Practice

Sec. 10.1 Director of practice.

(a) Establishment of office. There is established in the Office of the Secretary of the Treasury the Office of Director of Practice. The Director of Practice shall be appointed by the Secretary of the Treasury.

(b) Duties. The Director of Practice shall act upon applications for enrollment to practice before the Internal Revenue Service; institute and provide for the conduct of disciplinary proceedings relating to attorneys, certified public accountants, enrolled agents, enrolled actuaries and appraisers; make inquiries with respect to matters under his jurisdiction; and perform such other duties as are necessary or appropriate to carry out his functions under this part or as are prescribed by the Secretary of the Treasury.

(c) Acting director. The Secretary of the Treasury will designate an officer or employee of the Treasury Department to act as Director of Practice in the event of the absence of the director or of a vacancy in that office.

Sec. 10.2 Definitions.

As used in this part, except where the context clearly indicates otherwise:

(a) "Attorney" means any person who is a member in good standing of the bar of the highest court of any State, possession, territory, Commonwealth, or the District of Columbia.

(b) "Certified public accountant" means any person who is duly qualified to practice as a certified public accountant in any State, possession, territory, Commonwealth, or the District of Columbia.

(c) "Commissioner" refers to the Commissioner of Internal Revenue.

(d) "Director" refers to the Director of Practice.

(e) "Practice before the Internal Revenue Service" comprehends all matters connected with a presentation to the Internal Revenue Service or any of its officers or employees relating to a client's rights, privileges, or liabilities under laws or regulations administered by the Internal Revenue Service. Such presentations include preparing and filing necessary documents, corresponding and communicating with the Internal Revenue Service, and representing a client at conferences, hearings, and meetings.

(f) "Practitioner" means any individual described in section 10.3(a), (b), (c), or (d) of this part.

(g) A "return" includes an amended return and a claim for refund.

(h) "Service" means the Internal Revenue Service.

Sec. 10.3 Who may practice.

(a) Attorneys. Any attorney who is not currently under suspension or disbarment from practice before the Internal Revenue Service may practice before the Service upon filing with the Service a written declaration that he or she is currently qualified as an attorney and is authorized to represent the particular party on whose behalf he or she acts.

(b) Certified public accountants. Any certified public accountant who is not currently under suspension or disbarment from practice before the Internal Revenue Service may practice before the Service upon filing with the Service a written declaration that he or she is currently qualified as a certified public accountant and is authorized to represent the particular party on whose behalf he or she acts.

(c) Enrolled agents. Any person enrolled as an agent pursuant to this part may practice before the Internal Revenue Service.

(d) Enrolled actuaries.

(1) Any individual who is enrolled as an actuary by the Joint Board for the Enrollment of Actuaries pursuant to 29 U.S.C. 1242 may practice before the Internal Revenue Service upon filing with the Service a written declaration that he/she is currently qualified as an enrolled actuary and is authorized to represent the particular party on whose behalf he/she acts. Practice as an enrolled actuary is limited to representation with respect to issues involving the following statutory provisions.

Internal Revenue Code (Title 26 U.S.C.) sections: 401 (qualification of employee plans), 403(a) (relating to whether an annuity plan meets the requirements of section 404(a)(2)), 404 (deductibility of employer contributions), 405 (qualification of bond purchase plans), 412 (funding requirements for certain employee plans), 413 (application of qualification requirements to collectively bargained plans and to plans maintained by more than one employer), 414 (containing definitions and special rules relating to employee plan area), 4971 (relating to excise taxes payable as a result of an accumulated funding deficiency under section 412), 6057 (annual registration of plans), 6058 (information required in connection with certain plans of deferred compensation), 6059 (periodic report of actuary), 6652(e) (failure to file annual registration and other notifications by pension plan), 6652(f) (failure to file information required in connection with certain plans of deferred compensation), 6692 (failure to file actuarial report), 7805(b) (relating to the extent, if any, to which an Internal Revenue Service ruling or determination letter coming under the herein listed statutory provisions shall be applied without retroactive effect), and 29 U.S.C. 1083 (relating to waiver of funding for nonqualified plans).

(2) An individual who practices before the Internal Revenue Service pursuant to this subsection shall be subject to the provisions of this part in the same manner as attorneys, certified public accountants and enrolled agents.

(e) Others. Any individual qualifying under section 10.5(c) or section 10.7 is eligible to practice before the Internal Revenue Service to the extent provided in those sections.

(f) Government officers and employees, and others. An individual, including an officer or employee of the executive, legislative, or judicial branch of the United States Government; officer or employee of the District of Columbia; Member of Congress; or Resident Commissioner, may not practice before the Service if such practice would violate 18 U.S.C. 203 or 205.

(g) State officers and employees. No officer or employee of any State, or subdivision thereof, whose duties require him to pass upon, investigate, or deal with tax matters of such State or subdivision, may practice before the Service, if such State employment may disclose facts or information applicable to Federal tax matters.

Sec. 10.4 Eligibility for enrollment.

(a) Enrollment upon examination. The Director of Practice may grant enrollment to an applicant who demonstrates special competence in tax matters by written examination administered by the Internal Revenue Service and who has not engaged in any conduct which would justify the suspension or disbarment of any attorney, certified public accountant, or enrolled agent under the provisions of this part.

(b) Enrollment of former Internal Revenue Service Employees. The Director of Practice may grant enrollment to an applicant who has not engaged in any conduct which would justify the suspension or disbarment of any attorney, certified public accountant, or enrolled agent under the provisions of this part and who, by virtue of his past service and technical experience in the Internal Revenue Service has qualified for such enrollment, as follows:

(1) Application for enrollment on account of former employment in the Internal Revenue Service shall be made to the Director of Practice. Each applicant will be supplied a form by the Director of Practice, which shall indicate the information required respecting the applicant's qualifications. In addition to the applicant's name, address, educational experience, etc., such information shall specifically include a detailed account of the applicant's employment in the Internal Revenue Service, which account shall show (i) positions held, (ii) date of each appointment and termination thereof, (iii) nature of services rendered in each position, with particular reference to the degree of technical experience involved, and (iv) name of supervisor in such positions, together with such other information regarding the experience and training of the applicant as may be relevant.

(2) Upon receipt of each such application, it shall be transmitted to the appropriate officer of the Internal Revenue Service with the request that a detailed report of the nature and rating of the applicant's services in the Internal Revenue Service, accompanied by the recommendation of the superior officer in the particular unit or division of the Internal Revenue Service that such employment does or does not qualify the applicant technically or otherwise for the desired authorization, be furnished to the Director of Practice.

(3) In examining the qualification of an applicant for enrollment on account of employment in the Internal Revenue Service, the Director of Practice will be governed by the following policies:

(i) Enrollment on account of such employment may be of unlimited scope or may be limited to permit the presentation of matters only of the particular class or only before the particular unit or division of the Internal Revenue Service for which his former employment in the Internal Revenue Service has qualified the applicant.

(ii) Application for enrollment on account of employment in the Internal Revenue Service must be made within 3 years from the date of separation from such employment.

(iii) It shall be requisite for enrollment on account of such employment that the applicant shall have had a minimum of 5 years continuous employment in the Service during which he shall have been regularly engaged in applying and interpreting the provisions of the Internal Revenue Code and the regulations thereunder relating to income, estate, gift, employment, or excise taxes.

(iv) For the purposes of paragraph (b)(3)(iii) of this section an aggregate of 10 or more years of employment, at least 3 of which occurred within the 5 years preceding the date of application, shall be deemed the equivalent of 5 years continuous employment.

(c) Natural persons. Enrollment to practice may be granted only to natural persons.

Sec. 10.5 Application for enrollment.

(a) Form; fee. An applicant for enrollment shall file with the Director of Practice an application on Form 23, properly executed under oath or affirmation. Such application shall be accompanied by a check or money order in the amount set forth on Form 23, payable to the Internal Revenue Service, which amount shall constitute a fee which shall be charged to each applicant for enrollment. The fee shall be retained by the United States whether or not the applicant is granted enrollment.

(b) Additional information; examination. The Director of Practice, as a condition to consideration of an application for enrollment, may require the applicant to file additional information and to submit to any written or oral examination under oath or otherwise. The Director of Practice shall, upon written request, afford an applicant the opportunity to be heard with respect to his application for enrollment.

(c) Temporary recognition. Upon receipt of a properly executed application, the Director of Practice may grant the applicant temporary recognition to practice pending a determination as to whether enrollment to practice should be granted. Such temporary recognition shall not be granted if the application is not regular on its face; if the information stated therein, if true, is not sufficient to warrant enrollment to practice; if there is any information before the Director of Practice which indicates that the statements in the application are untrue; or which indicates that the applicant would not otherwise qualify for enrollment. Issuance of temporary recognition shall not constitute enrollment to practice or a finding of eligibility for enrollment, and the temporary recognition may be withdrawn at any time by the Director of Practice.

(d) Appeal from denial of application. The Director of Practice, in denying an application for enrollment, shall inform the applicant as to the reason(s) therefor. The applicant may, within 30 days after receipt of the notice of denial, file a written appeal therefrom, together with his/her reasons in support thereof, to the Secretary of the Treasury. A decision on the appeal will be rendered by the Secretary of the Treasury as soon as practicable.

Sec. 10.6 Enrollment.

(a) Roster. The Director of Practice shall maintain rosters of all individuals:

(1) Who have been granted active enrollment to practice before the Internal Revenue Service;

(2) Whose enrollment has been placed in an inactive status for failure to meet the requirements for renewal of enrollment:

(3) Whose enrollment has been placed in an inactive retirement status;

(4) Who have been disbarred or suspended from practice before the Internal Revenue Service;

(5) Whose offer of consent to resignation from enrollment to practice before the Internal Revenue Service has been accepted by the Director of Practice under section 10.55 of this part; and

(6) Whose application for enrollment has been denied.

(b) Enrollment card. The Director of Practice will issue an enrollment card to each individual whose application for enrollment to practice before the Internal Revenue Service is approved after the effective date of this regulation. Each such enrollment card will be valid for the period stated thereon. Enrollment cards issued individuals before February 1, 1987 shall become invalid after March 31, 1987. An individual having an invalid enrollment card is not eligible to practice before the Internal Revenue Service.

(c) Term of enrollment. Active enrollment to practice before the Internal Revenue Service is accorded each individual enrolled, so long as renewal of enrollment is effected as provided in this part.

(d) Renewal of enrollment. To maintain active enrollment to practice before the Internal Revenue Service, each individual enrolled is required to have his/her enrollment renewed as set forth herein. Failure by an individual to receive notification from the Director of Practice of the renewal requirement will not be justification for circumvention of such requirement.

(1) All individuals enrolled to practice before the Internal Revenue Service before November 1, 1986 shall apply for renewal of enrollment during the period between November 1, 1986 and January 31, 1987. Those who receive initial enrollment between November 1, 1986 and January 31, 1987 shall apply for renewal of enrollment by March 1, 1987. The first effective date of renewal will be April 1, 1987.

(2) Thereafter, applications for renewal will be required between November 1, 1989 and January 31, 1990, and between November 1 and January 31 of every third year subsequent thereto. Those who receive initial enrollment during the renewal application period shall apply for renewal of enrollment by March 1 of the renewal year. The effective date of renewed enrollment will be April 1, 1990, and April 1 of every third year subsequent thereto.

(3) The Director of Practice will notify the individual of renewal of enrollment and will issue a card evidencing such renewal.

(4) A reasonable nonrefundable fee may be charged for each application for renewal of enrollment filed with the Director of Practice.

(5) Forms required for renewal may be obtained from the Director of Practice, Internal Revenue Service, Washington, DC 20224.

(e) Condition for renewal: Continuing Professional Education. In order to qualify for renewal of enrollment, an individual enrolled to practice before the Internal Revenue Service must certify, on the application for renewal form prescribed by the Director of Practice, that he/she has satisfied the following continuing professional education requirements.

(1) For renewed enrollment effective April 1, 1987.

(i) A minimum of 24 hours of continuing education credit must be completed between January 1, 1986 and January 31, 1987.

(ii) An individual who receives initial enrollment between January 1, 1986 and January 31, 1987 is exempt from the continuing education requirement for the renewal of enrollment effective April 1, 1987, but is required to file a timely application for renewal of enrollment.

(2) For renewed enrollment effective April 1, 1990 and every third year thereafter.

(i) A minimum of 72 hours of continuing education credit must be completed between February 1, 1987 and January 31, 1990, and during each three year period subsequent thereto. Each such three year period is known as an enrollment cycle.

(ii) A minimum of 16 hours of continuing education credit must be completed in each year of an enrollment cycle.

(iii) An individual who receives initial enrollment during an enrollment cycle must complete two (2) hours of qualifying continuing education credit for each month enrolled during such enrollment cycle. Enrollment for any part of a month is considered enrollment for the entire month.

(f) Qualifying continuing education.

(1) In general. To qualify for continuing education credit, a course of learning must:

(i) Be a qualifying program designed to enhance the professional knowledge of an individual in Federal taxation or Federal tax related matters, i.e. programs comprised of current subject matter in Federal taxation or Federal tax related matters to include accounting, financial management, business computer science and taxation; and

(ii) Be conducted by a qualifying sponsor.

(2) Qualifying programs.

(i) Formal programs. Formal programs qualify as continuing education programs if they:

(A) Require attendance;

(B) Require that the program be conducted by a qualified instructor, discussion leader or speaker, i.e. a person whose background, training, education and/or experience is appropriate for instructing or leading a discussion on the subject matter of the particular program; and

(C) Require a written outline and/or textbook and certificate of attendance provided by the sponsor, all of which must be retained by the attendee for a three year period following renewal of enrollment.

(ii) Correspondence or individual study programs (including taped programs).Qualifying continuing education programs include correspondence or individual study programs completed on an individual basis by the enrolled individual and conducted by qualifying sponsors. The allowable credit hours for such programs will be measured on a basis comparable to the measurement of a seminar or course for credit in an accredited educational institution. Such programs qualify as continuing education programs if they:

(A) Require registration of the participants by the sponsor;

(B) Provide a means for measuring completion by the participants (e.g., written examination); and

(C) Require a written outline and/or textbook and certificate of completion provided by the sponsor which must be retained by the participant for a three year period following renewal of enrollment.

(iii) Serving as an instructor, discussion leader or speaker.

(A) One hour of continuing education credit will be awarded for each contact hour completed as an instructor, discussion leader or speaker at an educational program which meets the continuing education requirements of this part.

(B) Two hours of continuing education credit will be awarded for actual subject preparation time for each contact hour completed as an instructor, discussion leader or speaker at such programs. It will be the responsibility of the individual claiming such credit to maintain records to verify preparation time.

(C) The maximum credit for instruction and preparation may not exceed 50% of the continuing education requirement for an enrollment cycle.

(D) Presentation of the same subject matter in an instructor, discussion leader or speaker capacity more than one time during an enrollment cycle will not qualify for continuing education credit.

(iv) Credit for published articles, books, etc.

(A) Continuing education credit will be awarded for publications on Federal taxation or Federal tax related matters to include accounting, financial management, business computer science, and taxation, provided the content of such publications is current and designed for the enhancement of the professional knowledge of an individual enrolled to practice before the Internal Revenue Service.

(B) The credit allowed will be on the basis of one hour credit for each hour of preparation time for the material. It will be the responsibility of the person claiming the credit to maintain records to verify preparation time.

(C) The maximum credit for publications may not exceed 25% of the continuing education requirement of any enrollment cycle.

(3) Periodic examination. Individuals may establish eligibility for renewal of enrollment for any enrollment cycle by:

(i) Achieving a passing score on each part of the Special Enrollment Examination administered under this part during the three year period prior to renewal; and

(ii) Completing a minimum of 16 hours of qualifying continuing education during the last year of an enrollment cycle.

(g) Sponsors.

(1) Sponsors are those responsible for presenting programs.

(2) To qualify as a sponsor, a program presenter must:

(i) Be an accredited educational institution;

(ii) Be recognized for continuing education purposes by the licensing body of any State, possession, territory, Commonwealth, or the District of Columbia responsible for the issuance of a license in the field of accounting or law;

(iii) Be recognized by the Director of Practice as a professional organization or society whose programs include offering continuing professional education opportunities in subject matter within the scope of this part; or

(iv) File a sponsor agreement with the Director of Practice to obtain approval of the program as a qualified continuing education program.

(3) A qualifying sponsor must ensure the program complies with the following requirements:

(i) Programs must be developed by individual(s) qualified in the subject matter;

(ii) Program subject matter must be current;

(iii) Instructors, discussion leaders, and speakers must be qualified with respect to program content;

(iv) Programs must include some means for evaluation of technical content and presentation;

(v) Certificates of completion must be provided those who have successfully completed the program; and

(vi) Records must be maintained by the sponsor to verify completion of the program and attendance by each participant. Such records must be retained for a period of three years following completion of the program. In the case of continuous conferences, conventions, and the like, records must be maintained to verify completion of the program and attendance by each participant at each segment of the program.

(4) Professional organizations or societies wishing to be considered as qualified sponsors shall request such status of the Director of Practice and furnish information in support of the request together with any further information deemed necessary by the Director of Practice.

(5) Sponsor agreements and qualified professional organization or society sponsors approved by the Director of Practice shall remain in effect for one enrollment cycle. The names of such sponsors will be published on a periodic basis.

(h) Measurement of continuing education coursework.

(1) All continuing education programs will be measured in terms of contact hours. The shortest recognized program will be one contact hour.

(2) A contact hour is 50 minutes of continuous participation in a program. Credit is granted only for a full contact hour, i.e. 50 minutes or multiples thereof. For example, a program lasting more than 50 minutes but less than 100 minutes will count as one contact hour.

(3) Individual segments at continuous conferences, conventions and the like will be considered one total program. For example, two 90-minute segments (180 minutes) at a continuous conference will count as three contact hours.

(4) For university or college courses, each semester hour credit will equal 15 contact hours and a quarter hour credit will equal 10 contact hours.

(i) Recordkeeping requirements.

(1) Each individual applying for renewal shall retain for a period of three years following the date of renewal of enrollment the information required with regard to qualifying continuing professional education credit hours. Such information shall include:

(i) The name of the sponsoring organization:

(ii) The location of the program;

(iii) The title of the program and description of its content, e.g., course syllabi and/or textbook;

(iv) The dates attended;

(v) The credit hours claimed;

(vi) The name(s) of the instructor(s), discussion leader(s), or speaker(s), if appropriate; and

(vii) The certificate of completion and/or signed statement of the hours of attendance obtained from the sponsor.

(2) To receive continuing education credit for service completed as an instructor, discussion leader, or speaker, the following information must be maintained for a period of three years following the date of renewal of enrollment:

(i) The name of the sponsoring organization;

(ii) The location of the program;

(iii) The title of the program and description of its content;

(iv) The dates of the program; and

(v) The credit hours claimed.

(3) To receive continuing education credit for publications, the following information must be maintained for a period of three years following the date of renewal of enrollment:

(i) The publisher;

(ii) The title of the publication;

(iii) A copy of the publication; and

(iv) The date of publication.

(j) Waivers.

(1) Waiver from the continuing education requirements for a given period may be granted by the Director of Practice for the following reasons:

(i) Health, which prevented compliance with the continuing education requirements;

(ii) Extended active military duty;

(iii) Absence from the United States for an extended period of time due to employment or other reasons, provided the individual does not practice before the Internal Revenue Service during such absence; and

(iv) Other compelling reasons, which will be considered on a case-by-case basis.

(2) A request for waiver must be accompanied by appropriate documentation. The individual will be required to furnish any additional documentation or explanation deemed necessary by the Director of Practice. Examples of appropriate documentation could be a medical certificate, military orders, etc.

(3) A request for waiver must be filed no later than the last day of the renewal application period.

(4) If a request for waiver is not approved, the individual will be so notified by the Director of Practice and placed on a roster of inactive enrolled individuals.

(5) If a request for waiver is approved, the individual will be so notified and issued a card evidencing such renewal.

(6) Those who are granted waivers are required to file timely applications for renewal of enrollment.

(k) Failure to comply.

(1) Compliance by an individual with the requirements of this part shall be determined by the Director of Practice. An individual who fails to meet the requirements of eligibility for renewal of enrollment will be notified by the Director of Practice at his/her last known address by first class mail. The notice will state the basis for the non-compliance and will provide the individual an opportunity to furnish in writing information relating to the matter within 60 days of the date of the notice. Such information will be considered by the Director of Practice in making a final determination as to eligibility for renewal of enrollment.

(2) The Director of Practice may require any individual, by first class mail to his/her last known mailing address, to provide copies of any records required to be maintained under this part. The Director of Practice may disallow any continuing professional education hours claimed if the individual concerned fails to comply with such requirement.

(3) An individual who has not filed a timely application for renewal of enrollment, who has not made a timely response to the notice of non-compliance with the renewal requirements, or who has not satisfied the requirements of eligibility for renewal will be placed on a roster of inactive enrolled individuals for a period of three years. During this time, the individual will be ineligible to practice before the Internal Revenue Service.

(4) During inactive enrollment status or at any other time an individual is ineligible to practice before the Internal Revenue Service, such individual shall not in any manner, directly or indirectly, indicate he or she is enrolled to practice before the Internal Revenue Service, or use the term "enrolled agent," the designation "E.A.," or other form of reference to eligibility to practice before the Internal Revenue Service.

(5) An individual placed in an inactive status may satisfy the requirements for renewal of enrollment during his/her period of inactive enrollment. If such satisfaction includes completing the continuing education requirement, a minimum of 16 hours of qualifying continuing education hours must be completed in the 12 month period preceding the date on which the renewal application is filed. Continuing education credit under this subsection may not be used to satisfy the requirements of the enrollment cycle in which the individual has been placed back on the active roster.

(6) An individual placed in an inactive status must file an application for renewal of enrollment and satisfy the requirements for renewal as set forth in this section within three years of being placed in an inactive status. The name of such individual otherwise will be removed from the inactive enrollment roster and his/her enrollment will terminate. Eligibility for enrollment must then be reestablished by the individual as provided in this part.

(7) Inactive enrollment status is not available to an individual who is the subject of a discipline matter in the Office of Director of Practice.

(l) Inactive retirement status. An individual who no longer practices before the Internal Revenue Service may request being placed in an inactive status at any time and such individual will be placed in an inactive retirement status. The individual will be ineligible to practice before the Internal Revenue Service. Such individual must file a timely application for renewal of enrollment at each applicable renewal of enrollment as provided in this part. An individual who is placed in an inactive retirement status may be reinstated to an active enrollment status upon filing an application for renewal of enrollment and providing evidence of the completion of the required continuing professional education hours for the enrollment cycle. Inactive retirement status is not available to an individual who is the subject of a discipline matter in the Office of Director of Practice.

(m) Renewal while under suspension or disbarment. An individual who is ineligible to practice before the Internal Revenue Service by virtue of disciplinary action is required to meet the requirements for renewal of enrollment during the period of ineligibility.

(n) Verification. The Director of Practice may review the continuing education records of an enrolled individual and/or qualified sponsor in a manner deemed appropriate to determine compliance with the requirements and standards for renewal of enrollment as provided in this part. (Approved by the Office of Management and Budget under control no. 1545-0946)

(31 U.S.C. 483a)

Sec. 10.7 Representing oneself; participating in rulemaking; limited practice; special appearances; and return preparation.

(a) Representing oneself. Individuals may appear on their own behalf before the Internal Revenue Service provided they present satisfactory identification.

(b) Participating in rulemaking. Individuals may participate in rulemaking as provided by the Administrative Procedure Act. See 5 U.S.C. 553.

(c) Limited practice.

(1) In general. Subject to the limitations in paragraph (c)(2) of this section, an individual who is not a practitioner may represent a taxpayer before the Internal Revenue Service in the circumstances described in this paragraph (c)(1), even if the taxpayer is not present, provided the individual presents satisfactory identification and proof of his or her authority to represent the taxpayer. The circumstances described in this paragraph (c)(1) are as follows:

(i) An individual may represent a member of his or her immediate family.

(ii) A regular full-time employee of an individual employer may represent the employer.

(iii) A general partner or a regular full-time employee of a partnership may represent the partnership.

(iv) A bona fide officer or a regular full-time employee of a corporation (including a parent, subsidiary, or other affiliated corporation), association, or organized group may represent the corporation, association, or organized group.

(v) A trustee, receiver, guardian, personal representative, administrator, executor, or regular full-time employee of a trust, receivership, guardianship, or estate may represent the trust, receivership, guardianship, or estate.

(vi) An officer or a regular employee of a governmental unit, agency, or authority may represent the governmental unit, agency, or authority in the course of his or her official duties.

(vii) An individual may represent any individual or entity before personnel of the Internal Revenue Service who are outside of the United States.

(viii) An individual who prepares and signs a taxpayer's return as the preparer, or who prepares a return but is not required (by the instructions to the return or regulations) to sign the return, may represent the taxpayer before officers and employees of the Examination Division of the Internal Revenue Service with respect to the tax liability of the taxpayer for the taxable year or period covered by that return.

(2) Limitations.

(i) An individual who is under suspension or disbarment from practice before the Internal Revenue Service may not engage in limited practice before the Service under section 10.7(c)(1).

(ii) The Director, after notice and opportunity for a conference, may deny eligibility to engage in limited practice before the Internal Revenue Service under section 10.7(c)(1) to any individual who has engaged in conduct that would justify suspending or disbarring a practitioner from practice before the Service.

(iii) An individual who represents a taxpayer under the authority of section 10.7(c)(1)(viii) is subject to such rules of general applicability regarding standards of conduct, the extent of his or her authority, and other matters as the Director prescribes.

(d) Special appearances. The Director, subject to such conditions as he or she deems appropriate, may authorize an individual who is not otherwise eligible to practice before the Service to represent another person in a particular matter.

(e) Preparing tax returns and furnishing information. Any individual may prepare a tax return, appear as a witness for the taxpayer before the Internal Revenue Service, or furnish information at the request of the Service or any of its officers or employees.

Sec. 10.8 Customhouse brokers.

Nothing contained in the regulations in this part shall be deemed to affect or limit the right of a customhouse broker, licensed as such by the Commissioner of Customs in accordance with the regulations prescribed therefor, in any customs district in which he is so licensed, at the office of the District Director of Internal Revenue or before the National Office of the Internal Revenue Service, to act as a representative in respect to any matters relating specifically to the importation or exportation of merchandise under the customs or internal revenue laws, for any person for whom he has acted as a customhouse broker.

 

Subpart B - Duties and Restrictions Relating to Practice Before the Internal Revenue Service

Sec. 10.20 Information to be furnished.

(a) To the Internal Revenue Service. No attorney, certified public accountant, enrolled agent, or enrolled actuary shall neglect or refuse promptly to submit records or information in any matter before the Internal Revenue Service, upon proper and lawful request by a duly authorized officer or employee of the Internal Revenue Service, or shall interfere, or attempt to interfere, with any proper and lawful effort by the Internal Revenue Service or its officers or employees to obtain any such record or information, unless he believes in good faith and on reasonable grounds that such record or information is privileged or that the request for, or effort to obtain, such record or information is of doubtful legality.

(b) To the director of practice. It shall be the duty of an attorney or certified public accountant, who practices before the Internal Revenue Service, or enrolled agent, when requested by the Director of Practice, to provide the Director with any information he may have concerning violation of the regulations in this part by any person, and to testify thereto in any proceeding instituted under this part for the disbarment or suspension of an attorney, certified public accountant, enrolled agent, or enrolled actuary, unless he believes in good faith and on reasonable grounds that such information is privileged or that the request therefor is of doubtful legality.

Sec. 10.21 Knowledge of client's omission.

Each attorney, certified public accountant, enrolled agent, or enrolled actuary who, having been retained by a client with respect to a matter administered by the Internal Revenue Service, knows that the client has not complied with the revenue laws of the United States or has made an error in or omission from any return, document, affidavit, or other paper which the client is required by the revenue laws of the United States to execute, shall advise the client promptly of the fact of such noncompliance, error, or omission.

Sec. 10.22 Diligence as to accuracy.

Each attorney, certified public accountant, enrolled agent, or enrolled actuary shall exercise due diligence:

(a) In preparing or assisting in the preparation of, approving, and filing returns, documents, affidavits, and other papers relating to Internal Revenue Service matters;

(b) In determining the correctness of oral or written representations made by him to the Department of the Treasury; and

(c) In determining the correctness of oral or written representations made by him to clients with reference to any matter administered by the Internal Revenue Service.

Sec. 10.23 Prompt disposition of pending matters.

No attorney, certified public accountant, enrolled agent, or enrolled actuary shall unreasonably delay the prompt disposition of any matter before the Internal Revenue Service.

Sec. 10.24 Assistance from disbarred or suspended persons and former Internal Revenue Service employees.

No attorney, certified public accountant, enrolled agent, or enrolled actuary shall, in practice before the Internal Revenue Service, knowingly and directly or indirectly:

(a) Employ or accept assistance from any person who is under disbarment or suspension from practice before the Internal Revenue Service.

(b) Accept employment as associate, correspondent, or subagent from, or share fees with, any such person.

(c) Accept assistance from any former government employee where the provisions of section 10.26 of these regulations or any Federal law would be violated.

Sec. 10.25 Practice by partners of government employees.

No partner of an officer or employee of the executive branch of the U.S. Government, of any independent agency of the United States, or of the District of Columbia, shall represent anyone in any matter administered by the Internal Revenue Service in which such officer or employee of the Government participates or has participated personally and substantially as a Government employee or which is the subject of his official responsibility.

Sec. 10.26 Practice by former government employees, their partners and their associates.

(a) Definitions. For purposes of section 10.26:

(1) "Assist" means to act in such a way as to advise, furnish information to or otherwise aid another person, directly or indirectly.

(2) "Government employee" is an officer or employee of the United States or any agency of the United States, including a "special government employee" as defined in 18 U.S.C. 202(a), or the District of Columbia, or of any State, or a member of Congress or of any State legislature.

(3) "Member of a firm" is a sole practitioner or an employee or associate thereof, or a partner, stockholder, associate, affiliate or employee of a partnership, joint venture, corporation, professional association or other affiliation of two or more practitioners who represent non-Government parties.

(4) "Practitioner" includes any individual described in section 10.3(e).

(5) "Official responsibility" means the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and either personally or through subordinates, to approve, disapprove, or otherwise direct Government action, with or without knowledge of the action.

(6) "Participate" or "participation" means substantial involvement as a Government employee by making decisions, or preparing or reviewing documents with or without the right to exercise a judgment of approval or disapproval, or participating in conferences or investigations, or rendering advice of a substantial nature.

(7) "Rule" includes Treasury Regulations, whether issued or under preparation for issuance as Notices of Proposed Rule Making or as Treasury Decisions, and revenue rulings and revenue procedures published in the Internal Revenue bulletin. "Rule" shall not include a "transaction" as defined in paragraph (a)(9) of this section.

(8) "Transaction" means any decision, determination, finding, letter ruling, technical advice, contract or approval or disapproval thereof, relating to a particular factual situation or situations involving a specific party or parties whose rights, privileges, or liabilities under laws or regulations administered by the Internal Revenue Service, or other legal rights, are determined or immediately affected therein and to which the United States is a party or in which it has a direct and substantial interest, whether or not the same taxable periods are involved. "Transaction" does not include "rule" as defined in paragraph (a)(7) of this section.

(b) General rules.

(1) No former Government employee shall, subsequent to his Government employment, represent anyone in any matter administered by the Internal Revenue Service if the representation would violate 18 U.S.C. 207(a) or (b) or any other laws of the United States.

(2) No former Government employee who participated in a transaction shall, subsequent to his Government employment, represent or knowingly assist, in that transaction, any person who is or was a specific party to that transaction.

(3) No former Government employee who within a period of one year prior to the termination of his Government employment had official responsibility for a transaction shall, within one year after his Government employment is ended, represent or knowingly assist in that transaction any person who is or was a specific party to that transaction.

(4) No former Government employee shall, within one year after his Government employment is ended, appear before any employee of the Treasury Department in connection with the publication, withdrawal, amendment, modification, or interpretation of a rule in the development of which the former Government employee participated or for which, within a period of one year prior to the termination of his Government employment, he had official responsibility. However, this subparagraph does not preclude such former employee from appearing on his own behalf or from representing a taxpayer before the Internal Revenue Service in connection with a transaction involving the application or interpretation of such a rule with respect to that transaction: Provided, That such former employee shall not utilize or disclose any confidential information acquired by the former employee in the development of the rule, and shall not contend that the rule is invalid or illegal. In addition, this subparagraph does not preclude such former employee from otherwise advising or acting for any person.

(c) Firm representation.

(1) No member of a firm of which a former Government employee is a member may represent or knowingly assist a person who was or is a specific party in any transaction with respect to which the restrictions of paragraph (b)(1)(other than 18 U.S.C. 207(b)) or (b)(2) of this section apply to the former Government employee, in that transaction, unless:

(i) No member of the firm who had knowledge of the participation by the Government employee in the transaction initiated discussions with the Government employee concerning his becoming a member of the firm until his Government employment is ended or six months after the termination of his participation in the transaction, whichever is earlier;

(ii) The former Government employee did not initiate any discussions concerning becoming a member of the firm while participating in the transaction or, if such discussions were initiated, they conformed with the requirement of 18 U.S.C. 208(b);

(iii) The firm isolates the former Government employee in such a way that he does not assist in the representation.

(2) No member of a firm of which a former Government employee is a member may represent or knowingly assist a person who was or is a specific party in any transaction with respect to which the restrictions of paragraph (b)(3) of this section apply to the former employee, in that transaction, unless the firm isolates the former Government employee in such a way that he does not assist in the representation.

(3) When isolation of the former Government employee is required under paragraphs (c)(1) or (c)(2) of this section, a statement affirming the fact of such isolation shall be executed under oath by the former Government employee and by a member of the firm acting on behalf of the firm, and shall be filed with the Director of Practice and in such other place and in the manner prescribed by regulation. This statement shall clearly identify the firm, the former Government employee, and transaction or transactions requiring such isolation.

(d) Pending representation. Practice by former Government employees, their partners and associates with respect to representation in specific matters where actual representation commenced before publication of this regulation is governed by the regulations set forth in the June 1972 amendments to the regulations of this part (published at 37 F.R. 11676): Provided, That the burden of showing that representation commenced before publication is with the former Government employees, their partners and associates.

Sec. 10.27 Notaries.

No attorney, certified public accountant, enrolled agent, or enrolled actuary as notary public shall with respect to any matter administered by the Internal Revenue Service take acknowledgments, administer oaths, certify papers, or perform any official act in connection with matters in which he is employed as counsel, attorney, or agent, or in which he may be in any way interested before the Internal Revenue Service (26 Op. Atty. Gen. 236).

Sec. 10.28 Fees.

(a) Generally. A practitioner may not charge an unconscionable fee for representing a client in a matter before the Internal Revenue Service.

(b) Contingent fees for return preparation. A practitioner may not charge a contingent fee for preparing an original return. A practitioner may charge a contingent fee for preparing an amended return or a claim for refund (other than a claim for refund made on an original return) if the practitioner reasonably anticipates at the time the fee arrangement is entered into that the amended return or claim will receive substantive review by the Service. A contingent fee includes a fee that is based on a percentage of the refund shown on a return or a percentage of the taxes saved, or that otherwise depends on the specific result attained.

Sec. 10.29 Conflicting interests.

No attorney, certified public accountant, enrolled agent, or enrolled actuary shall represent conflicting interests in his practice before the Internal Revenue Service, except by express consent of all directly interested parties after full disclosure has been made.

Sec. 10.30 Solicitation.

(a) Advertising and solicitation restrictions.

(1) No attorney, certified public accountant, enrolled agent, enrolled actuary, or other individual eligible to practice before the Internal Revenue Service shall, with respect to any Internal Revenue Service matter, in any way use or participate in the use of any form of public communication containing (i) A false, fraudulent, unduly influencing, coercive, or unfair statement or claim; or (ii) a misleading or deceptive statement or claim.

Enrolled agents, in describing their professional designation, may not utilize the term of art "certified" or indicate an employer/employee relationship with the Internal Revenue Service. Examples of acceptable descriptions are "enrolled to represent taxpayers before the Internal Revenue Service," "enrolled to practice before the Internal Revenue Service," and "admitted to practice before the Internal Revenue Service." Enrolled agents and enrolled actuaries may abbreviate such designation to either EA or E.A.

(2) No attorney, certified public accountant, enrolled agent, enrolled actuary, or other individual eligible to practice before the Internal Revenue Service shall make, directly or indirectly, an uninvited solicitation of employment in matters related to the Internal Revenue Service. Solicitation includes, but is not limited to, in-person contacts and telephone communications. This restriction does not apply to (i) Seeking new business from an existing or former client in a related matter; (ii) communications with family members; (iii) making the availability of professional services known to other practitioners, so long as the person or firm contacted is not a potential client; (iv) solicitation by mailings; or (v) non-coercive in-person solicitation by those eligible to practice before the Internal Revenue Service while acting as an employee, member, or officer of an exempt organization listed in sections 501(c)(3) or (4) of the Internal Revenue Code of 1954 (26 U.S.C.).

Any targeted direct mail solicitation, i.e. a mailing to those whose unique circumstances are the basis for the solicitation, distributed by or on behalf of an attorney, certified public accountant, enrolled agent, enrolled actuary, or other individual eligible to practice before the Internal Revenue Service shall be clearly marked as such in capital letters on the envelope and at the top of the first page of such mailing. In addition, all such solicitations must clearly identify the source of the information used in choosing the recipient.

(b) Fee information.

(1) Attorneys, certified public accountants, enrolled agents, or enrolled actuaries and other individuals eligible to practice before the Internal Revenue Service may disseminate the following fee information:

(i) Fixed fees for specific routine services.

(ii) Hourly rates.

(iii) Range of fees for particular services.

(iv) Fee charged for an initial consultation.

Any statement of fee information concerning matters in which costs may be incurred shall include a statement disclosing whether clients will be responsible for such costs.

(2) Attorneys, certified public accountants, enrolled agents, or enrolled actuaries and other individuals eligible to practice before the Internal Revenue Service may also publish the availability of a written schedule of fees.

(3) Attorneys, certified public accountants, enrolled agents, or enrolled actuaries and other individuals eligible to practice before the Internal Revenue Service shall be bound to charge the hourly rate, the fixed fee for specific routine services, the range of fees for particular services, or the fee for an initial consultation published for a reasonable period of time, but no less than thirty days from the last publication of such hourly rate or fees.

(c) Communications. Communication, including fee information, may include professional lists, telephone directories, print media, mailings, radio and television, and any other method: Provided, that the method chosen does not cause the communication to become untruthful, deceptive, unduly influencing or otherwise in violation of these regulations. It shall be construed as a violation of these regulations for a practitioner to persist in attempting to contact a prospective client, if such client has made known to the practitioner a desire not to be solicited. In the case of radio and television broadcasting, the broadcast shall be pre-recorded and the practitioner shall retain a recording of the actual audio transmission. In the case of direct mail communications, the practitioner shall retain a copy of the actual mailing, along with a list or other description of persons to whom the communication was mailed or otherwise distributed. Such copy shall be retained by the practitioner for a period of at least 36 months from the date of the last transmission or use.

(d) Improper associations. An attorney, certified public accountant, enrolled agent, or enrolled actuary may, in matters related to the Internal Revenue Service, employ or accept employment or assistance as an associate, correspondent, or subagent from, or share fees with, any person or entity who, to the knowledge of the practitioner, obtains clients or otherwise practices in a manner forbidden under this section: Provided, That a practitioner does not, directly or indirectly, act or hold himself out as an Internal Revenue Service practitioner in connection with that relationship. Nothing herein shall prohibit an attorney, certified public accountant, or enrolled agent from practice before the Internal Revenue Service in a capacity other than that described above.

Sec. 10.31 Negotiation of taxpayer refund checks.

No attorney, certified public accountant, enrolled agent, or enrolled actuary who is an income tax return preparer shall endorse or otherwise negotiate any check made in respect of income taxes which is issued to a taxpayer other than the attorney, certified public accountant or enrolled agent.

Sec. 10.32 Practice of law.

Nothing in the regulations in this part shall be construed as authorizing persons not members of the bar to practice law.

Sec. 10.33 Tax shelter opinions.

(a) Tax shelter opinions and offering materials. A practitioner who provides a tax shelter opinion analyzing the Federal tax effects of a tax shelter investment shall comply with each of the following requirements:

(1) Factual matters.

(i) The practitioner must make inquiry as to all relevant facts, be satisfied that the material facts are accurately and completely described in the offering materials, and assure that any representations as to future activities are clearly identified, reasonable and complete.

(ii) A practitioner may not accept as true asserted facts pertaining to the tax shelter which he/she should not, based on his/her background and knowledge, reasonably believe to be true. However, a practitioner need not conduct an audit or independent verification of the asserted facts, or assume that a client's statement of the facts cannot be relied upon, unless he/she has reason to believe that any relevant facts asserted to him/her are untrue.

(iii) If the fair market value of property or the expected financial performance of an investment is relevant to the tax shelter, a practitioner may not accept an appraisal or financial projection as support for the matters claimed therein unless:

(A) The appraisal or financial projection makes sense on its face;

(B) The practitioner reasonably believes that the person making the appraisal or financial projection is competent to do so and is not of dubious reputation; and

(C) The appraisal is based on the definition of fair market value prescribed under the relevant Federal tax provisions.

(iv) If the fair market value of purchased property is to be established by reference to its stated purchase price, the practitioner must examine the terms and conditions upon which the property was (or is to be) purchased to determine whether the stated purchase price reasonably may be considered to be its fair market value.

(2) Relate law to facts. The practitioner must relate the law to the actual facts and, when addressing issues based on future activities, clearly identify what facts are assumed.

(3) Identification of material issues. The practitioner must ascertain that all material Federal tax issues have been considered, and that all of those issues which involve the reasonable possibility of a challenge by the Internal Revenue Service have been fully and fairly addressed in the offering materials.

(4) Opinion on each material issue. Where possible, the practitioner must provide an opinion whether it is more likely than not that an investor will prevail on the merits of each material tax issue presented by the offering which involves a reasonable possibility of a challenge by the Internal Revenue Service. Where such an opinion cannot be given with respect to any material tax issue, the opinion should fully describe the reasons for the practitioner's inability to opine as to the likely outcome.

(5) Overall evaluation.

(i) Where possible, the practitioner must provide an overall evaluation whether the material tax benefits in the aggregate more likely than not will be realized. Where such an overall evaluation cannot be given, the opinion should fully describe the reasons for the practitioner's inability to make an overall evaluation. Opinions concluding that an overall evaluation cannot be provided will be given special scrutiny to determine if the stated reasons are adequate.

(ii) A favorable overall evaluation may not be rendered unless it is based on a conclusion that substantially more than half of the material tax benefits, in terms of their financial impact on a typical investor, more likely than not will be realized if challenged by the Internal Revenue Service.

(iii) If it is not possible to give an overall evaluation, or if the overall evaluation is that the material tax benefits in the aggregate will not be realized, the fact that the practitioner's opinion does not constitute a favorable overall evaluation, or that it is an unfavorable overall evaluation, must be clearly and prominently disclosed in the offering materials.

(iv) The following examples illustrate the principles of this paragraph:

Example (1). A limited partnership acquires real property in a sale-leaseback transaction. The principal tax benefits offered to investing partners consist of depreciation and interest deductions. Lesser tax benefits are offered to investors by reason of several deductions under Internal Revenue Code section 162 (ordinary and necessary business expenses). If a practitioner concludes that it is more likely than not that the partnership will not be treated as the owner of the property for tax purposes (which is required to allow the interest and depreciation deductions), then he/she may not opine to the effect that it is more likely than not that the material tax benefits in the aggregate will be realized, regardless of whether favorable opinions may be given with respect to the deductions claimed under Code section 162.

Example (2). A corporation electing under subchapter S of the Internal Revenue Code is formed to engage in research and development activities. The offering materials forecast that deductions for research and experimental expenditures equal to 75% of the total investment in the corporation will be available during the first two years of the corporation's operations, other expenses will account for another 15% of the total investment, and that little or no gross income will be received by the corporation during this period. The practitioner concludes that it is more likely than not that deductions for research and experimental expenditures will be allowable. The practitioner may render an opinion to the effect that based on this conclusion, it is more likely than not that the material tax benefits in the aggregate will be realized, regardless of whether he/she can opine that it is more likely than not that any of the other tax benefits will be achieved.

Example (3). An investment program is established to acquire offsetting positions in commodities contracts. The objective of the program is to close the loss positions in year one and to close the profit positions in year two. The principal tax benefit offered by the program is a loss in the first year, coupled with the deferral of offsetting gain until the following year. The practitioner concludes that the losses will not be deductible in year one. Accordingly, he/she may not render an opinion to the effect that it is more likely than not that the material tax benefits in the aggregate will be realized, regardless of the fact that he/she is of the opinion that losses not allowable in year one will be allowable in year two, because the principal tax benefit offered is a one-year deferral of income.

Example (4). A limited partnership is formed to acquire, own and operate residential rental real estate. The offering material forecasts gross income of $2,000,000 and total deductions of $10,000,000, resulting in net losses of $8,000,000 over the first six taxable years. Of the total deductions, depreciation and interest are projected to be $7,000,000, and other deductions $3,000,000. The practitioner concludes that it is more likely than not that all of the depreciation and interest deductions will be allowable, and that it is more likely than not that the other deductions will not be allowed. The practitioner may render an opinion to the effect that it is more likely than not that the material tax benefits in the aggregate will be realized.

(6) Description of opinion. The practitioner must assure that the offering materials correctly and fairly represent the nature and extent of the tax shelter opinion.

(b) Reliance on other opinions -

(1) In general. A practitioner may provide an opinion on less than all of the material tax issues only if:

(i) At least one other competent practitioner provides an opinion on the likely outcome with respect to all of the other material tax issues which involve a reasonable possibility of challenge by the Internal Revenue Service, and an overall evaluation whether the material tax benefits in the aggregate more likely than not will be realized, which is disseminated in the same manner as the practitioner's opinion; and

(ii) The practitioner, upon reviewing such other opinions and any offering materials, has no reason to believe that the standards of paragraph (a) of this section have not been complied with.

Notwithstanding the foregoing, a practitioner who has not been retained to provide an overall evaluation whether the material tax benefits in the aggregate more likely than not will be realized may issue an opinion on less than all the material tax issues only if he/she has no reason to believe, based on his/her knowledge and experience, that the overall evaluation given by the practitioner who furnished the overall evaluation is incorrect on its face.

(2) Forecasts and projections. A practitioner who is associated with forecasts or projections relating to or based upon the tax consequences of the tax shelter offering that are included in the offering materials, or are disseminated to potential investors other than the practitioner's clients, may rely on the opinion of another practitioner as to any or all material tax issues, provided that the practitioner who desires to rely on the other opinion has no reason to believe that the standards of paragraph (a) of this section have not been complied with by the practitioner rendering such other opinion, and the requirements of paragraph (b)(1) of this section are satisfied. The practitioner's report shall disclose any material tax issue not covered by, or incorrectly opined upon, by the other opinion, and shall set forth his/her opinion with respect to each such issue in a manner that satisfies the requirements of paragraph (a) of this section.

(c) Definitions. For purposes of this section:

(1) "Practitioner" includes any individual described in section 10.3(e).

(2) A "tax shelter," as the term is used in this section, is an investment which has as a significant and intended feature for Federal income or excise tax purposes either of the following attributes:

(i) Deductions in excess of income from the investment being available in any year to reduce income from other sources in that year, or

(ii) Credits in excess of the tax attributable to the income from the investment being available in any year to offset taxes on income from other sources in that year. Excluded from the term are municipal bonds; annuities; family trusts (but not including schemes or arrangements that are marketed to the public other than in a direct practitioner-client relationship); qualified retirement plans; individual retirement accounts; stock option plans; securities issued in a corporate reorganization; mineral development ventures, if the only tax benefit would be percentage depletion; and real estate where it is anticipated that in no year is it likely that deductions will exceed the tax attributable to the income from the investment in that year. Whether an investment is intended to have tax shelter features depends on the objective facts and circumstances of each case. Significant weight will be given to the features described in the offering materials to determine whether the investment is a tax shelter.

(3) A "tax shelter opinion," as the term is used in this section, is advice by a practitioner concerning the Federal tax aspects of a tax shelter either appearing or referred to in the offering materials, or used or referred to in connection with sales promotion efforts, and directed to persons other than the client who engaged the practitioner to give the advice. The term includes the tax aspects or tax risks portion of the offering materials prepared by or at the direction of a practitioner, whether or not a separate opinion letter is issued or whether or not the practitioner's name is referred to in the offering materials or in connection with the sales promotion efforts. In addition, a financial forecast or projection prepared by a practitioner is a tax shelter opinion if it is predicated on assumptions regarding Federal tax aspects of the investment, and it meets the other requirements of the first sentence of this subparagraph. The term does not, however, include rendering advice solely to the offeror or reviewing parts of the offering materials, so long as neither the name of the practitioner, nor the fact that a practitioner has rendered advice concerning the tax aspects, is referred to in the offering materials or in connection with the sales promotion efforts.

(4) A "material" tax issue as the term is used in this section is

(i) Any Federal income or excise tax issue relating to a tax shelter that would make a significant contribution toward sheltering from Federal taxes income from other sources by providing deductions in excess of the income from the tax shelter investment in any year, or tax credits available to offset tax liabilities in excess of the tax attributable to the tax shelter investment in any year;

(ii) Any other Federal income or excise tax issue relating to a tax shelter that could have a significant impact (either beneficial or adverse) on a tax shelter investor under any reasonably foreseeable circumstances (e.g., depreciation or investment tax credit recapture, availability of long-term capital gain treatment, or realization of taxable income in excess of cash flow, upon sale or other disposition of the tax shelter investment); and

(iii) The potential applicability of penalties, additions to tax, or interest charges that reasonably could be asserted against a tax shelter investor by the Internal Revenue Service with respect to the tax shelter. The determination of what is material is to be made in good faith by the practitioner, based on information available at the time the offering materials are circulated.

(d) For purposes of advising the Director of Practice whether an individual may have violated section 10.33, the Director of Practice is authorized to establish an Advisory Committee, composed of at least five individuals authorized to practice before the Internal Revenue Service. Under procedures established by the Director of Practice, such Advisory Committee shall, at the request of the Director of Practice, review and make recommendations with regard to alleged violations of section 10.33.

Sec. 10.34 Standards for advising with respect to tax return positions and for preparing or signing returns.

(a) Standards of conduct -

(1) Realistic possibility standard. A practitioner may not sign a return as a preparer if the practitioner determines that the return contains a position that does not have a realistic possibility of being sustained on its merits (the realistic possibility standard) unless the position is not frivolous and is adequately disclosed to the Service. A practitioner may not advise a client to take a position on a return, or prepare the portion of a return on which a position is taken, unless --

(i) The practitioner determines that the position satisfies the realistic possibility standard; or

(ii) The position is not frivolous and the practitioner advises the client of any opportunity to avoid the accuracy- related penalty in section 6662 of the Internal Revenue Code of 1986 by adequately disclosing the position and of the requirements for adequate disclosure.

(2) Advising clients on potential penalties. A practitioner advising a client to take a position on a return, or preparing or signing a return as a preparer, must inform the client of the penalties reasonably likely to apply to the client with respect to the position advised, prepared, or reported. The practitioner also must inform the client of any opportunity to avoid any such penalty by disclosure, if relevant, and of the requirements for adequate disclosure. This paragraph (a)(2) applies even if the practitioner is not subject to a penalty with respect to the position.

(3) Relying on information furnished by clients. A practitioner advising a client to take a position on a return, or preparing or signing a return as a preparer, generally may rely in good faith without verification upon information furnished by the client. However, the practitioner may not ignore the implications of information furnished to, or actually known by, the practitioner, and must make reasonable inquiries if the information as furnished appears to be incorrect, inconsistent, or incomplete.

(4) Definitions. For purposes of this section:

(i) Realistic possibility.

A position is considered to have a realistic possibility of being sustained on its merits if a reasonable and well-informed analysis by a person knowledgeable in the tax law would lead such a person to conclude that the position has approximately a one in three, or greater, likelihood of being sustained on its merits. The authorities described in 26 CFR 1.6662-4(d)(3)(iii), or any successor provision, of the substantial understatement penalty regulations may be taken into account for purposes of this analysis. The possibility that a position will not be challenged by the Service (e.g., because the taxpayer's return may not be audited or because the issue may not be raised on audit) may not be taken into account.

(ii) Frivolous.

A position is frivolous if it is patently improper.

(b) Standard of discipline. As provided in section 10.52, only violations of this section that are willful, reckless, or a result of gross incompetence will subject a practitioner to suspension or disbarment from practice before the Service.


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Last updated on October 5, 1998.
Tax Aspects of Business Transactions: A First Course, by Annette Nellen


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EPA Seeks Public Comment on Aircraft Lead Emissions Data

FOR IMMEDIATE RELEASE
April 21, 2010

EPA Seeks Public Comment on Aircraft Lead Emissions Data

Agency will determine if lead in aviation gas poses threat to public health

WASHINGTON - The U.S. Environmental Protection Agency (EPA) is requesting comment on data available for evaluating emissions and potential exposure to lead in gas used in piston-engine aircraft. Lead exposure is of special concern with young children because it puts them at risk for a wide range of health impacts, including lowered IQ and behavioral disorders.

Since 1980, U.S. lead emissions have decreased by more than 90 percent. EPA also recently issued national air quality standards for lead that are 10 times tighter than the previous standards. There is no known safe level of lead in the body. Lead emissions from aviation gasoline accounts for about half the nation’s lead inventory. There are about 20,000 airport, heliports, and similar facilities nationwide that use leaded gasoline. 

The advanced notice of proposed rulemaking being announced today describes the data that are currently available and being collected that would help evaluate health impacts from piston-engine aircraft emissions. This action describes considerations regarding emission engine standards and requests comment on approaches for transitioning the piston-engine fleet to unleaded gas.

This action will be open for a 60-day comment period upon publication in the Federal Register. EPA will review comments and make a determination as to whether aircraft lead emissions cause or contribute to air pollution, which may reasonably be expected to endanger public health or welfare. By law, EPA in consultation with the Federal Aviation Administration would be required to issue standards if a positive finding were made.

More information:  http://www.epa.gov/otaq/aviation.htm

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Indiana Supreme Court: Inverse Condemnation Remedy Exclusive When Government Seizes Land Without Condemnation

Indiana Supreme Court: Inverse Condemnation Remedy Exclusive When Government Seizes Land Without Condemnation

Posted: 21 Apr 2010 12:33 AM PDT

A new opinion from the Indiana Supreme Court that reminds us somewhat of the "bizarre condemnation" case now awaiting decision in the New Jersey Supreme Court. In Murray v. City of Lawrenceburg, No. 15S04-0907-CV-310 (Apr. 20, 2010), the court held the claims of a property owner who asserted that the government wrongly occupied her land and leased it to another are subject to Indiana's six year statute of limitations for inverse condemnation claims.

The plaintiffs alleged they owned a 3/4 acre parcel in Lawrenceberg. In 1995, however, the Central Railroad Company gave the city an affidavit that it owned the property, and quitclaimed its interest to the city. The city then leased it to a casino. In 2005, the plaintiffs filed a lawsuit seeking to quiet title in the parcel to themselves, and to eject all others from occupancy. "It also requested compensation for lost rent under negligence and unjust enrichment theories." Slip op. at 2.

The trial court granted the city's motion for judgment on the pleadings, holding that the only viable cause of action was for inverse condemnation, and that the six year statute of limitations for bringing such actions meant that the lawsuit was filed too late. The court of appeals reversed, holding that inverse condemnation was not the exclusive remedy and that ownership of the parcel had not yet been determined. Murray v. City of Lawrenceburg, 903 N.E.2d 93 (Ind. Ct. App. 2009).

The supreme court reversed, holding that when the government takes property but fails to institute condemnation proceedings, the property owner is entitled to bring an action in inverse condemnation to recover money damages. Slip op. at 4 (citing Indiana Code § 32-24-1-16). Because this was up on a motion for judgment on the pleadings, the court assumed the plaintiffs owned the 3/4 acre lot when the government wrongly acted as the owner and leased it to the casino, which then occupied the property. The court held that this deprived the plaintiffs of their claimed rights and took their use. "As such, it was a proper subject for an inverse condemnation action at least by the end of 1997." Slip op. at 5.

The court then concluded that the inverse condemnation remedy was exclusive. It held that injunction was not available citing two cases. Slip op. at 5-6. In Dible v. City of Lafayette, 713 N.E.2d 269 (Ind. 1999), the court held that property owners cannot enjoin an exercise of the condemnation power that is for public use. In Indiana Dep't of Trans. v. Southern Bells, Inc., 723 N.E.2d 432 (Ind. Ct. App. 1999), the court held that equitable relief was not available when the after-the-fact remedy for money damages (inverse condemnation) was adequate. The court concluded that "inverse condemnation is the only remedy for government’s exercising complete dominance and purported ownership of a piece of land." Slip op. at 7.

In any event, the court determined that it really didn't matter since whether this was viewed as a trespass action or an inverse condemnation action, a six year statute of limitations applied, and had expired. "Giving plaintiffs the benefit of the doubt, the last possible date the action could have accrued was December 1997, when [the casino] began operations at the site. Plaintiffs did not file this suit until November 21, 2005, almost eight years after the action accrued." Slip op. at 8 (footnote omitted).

The result strikes us as a bit odd, since it is hard to square a six year statute of limitations for inverse condemnation or trespass with Indiana's ten year statute of limitations for adverse possession. See Indiana Code § 34-11-2-11 ("An action upon contracts in writing other than those for the payment of money, and including all mortgages other than chattel mortgages, deeds of trust, judgments of courts of record, and for the recovery of possession of real estate, must be commenced within ten (10) years after the cause of action accrues."). If the plaintiffs had ten years to bring an action to confirm their ownership and eject the city, then the property had not yet been permanently "taken" as the court assumed, even if the city has purported to act as owner by leasing it to the casino.

Thanks to The Indiana Law Blog for notice of the opinion.

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April 20, 2010

Residential Homebuilder Settles Clean Water Act Violations in 18 States and D.C.

CONTACT:
Dave Ryan (News Media Only)
ryan.dave@epa.gov
202-564-7827
202-564-4355
FOR IMMEDIATE RELEASE
April 20, 2010
Residential Homebuilder Settles Clean Water Act Violations in 18 States and D.C.
Settlement affects 161 construction sites in Chesapeake Bay watershed
WASHINGTON — Hovnanian Enterprises, Inc., a builder of residential homes nationwide, has agreed today to pay a $1 million civil penalty to resolve alleged Clean Water Act violations at 591 construction sites in 18 states and the District of Columbia, the U.S. Environmental Protection Agency (EPA) and the U.S. Justice Department announced today. As part of the settlement, the company will also implement a company-wide stormwater compliance program designed to improve compliance with storm water run-off requirements at existing and future construction sites around the country.
This case is a result of EPA’s effort to protect local waters by vigorously enforcing the nation’s environmental laws,” said Cynthia Giles, assistant administrator of EPA’s Office of Enforcement and Compliance and Assurance.  Without appropriate onsite pollution controls, sediment-laden runoff from construction sites can pollute local waterways.  This enforcement agreement will mean cleaner water for hundreds of communities across the country.
“Restoring and preserving the Chesapeake Bay is one of EPA’s top priorities, and preventing polluted stormwater from entering the bay watershed is vital to keeping it healthy,” said Peter S. Silva, assistant administrator for EPA’s Office of Water. “This enforcement action will help protect the bay by addressing stormwater pollution at the source.”
“This settlement will bring positive change to construction sites in 18 states and the District of Columbia, said Ignacia S. Moreno, Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division.  “Harmful storm water run-off from construction sites is something that is easily prevented.  The construction industry needs to implement required controls or face the possibility of a federal lawsuit.”
A portion of the settlement helps EPA efforts to protect the Chesapeake Bay, North America’s largest and most biologically diverse estuary. The bay and its tidal tributaries are threatened by pollution from a variety of sources, and overburdened with nitrogen, phosphorus and sediment that can be carried by storm water.  A total of 161 Hovnanian construction sites in the District of Columbia, Maryland, Virginia and West Virginia fall within the bay watershed and are covered by this settlement.
The U.S. government complaint, filed simultaneously with the settlement agreement in federal court in Philadelphia, alleges a pattern of violations that was discovered by reviewing documentation submitted by the company, and through federal and state site inspections. The alleged violations include failure to obtain permits until after construction had begun, or failing to obtain them at all. At sites with permits, violations included failure to prevent or minimize the discharge of pollutants such as silt and debris in storm water runoff.
           
The settlement requires Hovnanian to develop improved pollution prevention plans for each construction site, conduct additional site inspections and promptly correct any problems detected. The company must properly train construction managers and contractors, and will be required to designate trained staff for each site. Hovnanian must also implement a management and internal reporting system to improve oversight of on-the-ground operations and submit annual reports to EPA.
The Clean Water Act requires that construction sites have controls in place to prevent pollution from being discharged with storm water into nearby waterways. These controls include simple pollution prevention techniques such as silt fences, phased site grading, and sediment basins to prevent common construction contaminants from entering the nation’s waterways.
Improving compliance at construction sites is one of EPA’s national enforcement initiatives. Construction projects have a high potential for environmental harm because they disturb large areas of land and significantly increase the potential for erosion. Without onsite pollution controls, sediment-laden runoff from construction sites can flow directly to the nearest waterway and degrade water quality. In addition, storm water can pick up other pollutants, including concrete washout, paint, used oil, pesticides, solvents and other debris.  Polluted runoff can harm or kill fish and wildlife, degrade aquatic habitat, and affect drinking water quality.
This settlement is the latest in a series of enforcement actions to address storm water violations from construction sites around the country. Similar consent decrees have been reached with multiple national and regional home building companies.
Along with the federal government, the District of Columbia, the states of Maryland and West Virginia and the Commonwealth of Virginia have joined the settlement. The District and each of the states will receive a portion of the $1 million penalty.
The consent decree, lodged in the U.S. District Court for the Eastern District of Pennsylvania, is subject to a 30-day public comment period and approval by the federal court.
More information on the settlement:
http://www.epa.gov/compliance/resources/cases/civil/cwa/hovnanian.html

R122

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April 17, 2010

cALIFORNIA cUTIE

http://activerain.com/blogsview/1604970/california-cutie
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A Who's Who of FRAUD

Sue) Susan M. Potteiger, mai aPPRAISAL, MAI[ Follow Ups ] [ Post Followup ] [ Appraisers Talk Back ]

Posted by COCHISE@JUSTICE.COM on April 16, 2010 at 20:39:50: http://www.hwforums.com/2191/messages/664.html

SHE RUINED WASHINGTON MUTUAL THEN WHEN ON TO DO THE SAME FOR FANNIEMAE. (Sue) Susan M. Potteiger, mai aPPRAISAL, MAI. WILL THE FED'S INVESTIGATE HER? i DOUGHT!!!!!!! INCLUDE HER IN YOUR LAW SUITE MAYBE THE ONLY WAY WE SEE JUSTICE.

Former WAMU Chief Appraiser joins FANNIE

Discuss Former WAMU Chief Appraiser joins FANNIE Page 4 on the Fannie Mae, Freddie Mac, USPAP forum at AppraisersForum.com, the premiere community for real estate appraisers. Former WAMU Chief Appraiser joins FANNIE. Sue is a Collateral Risk Manager for Fannie Mae in Washington, DC. Her current responsibilities include supporting the planning and development of the Collateral Data Delivery System (CDD). CDD is a system that will require the submission of appraisal reports to Fannie Mae prior to loan delivery. The goal is to improve appraisal report quality, processes and collateral risk management policies and procedures.

For 15 years, prior to joining ARC, Sue was senior vice president and chief appraiser for Washington Mutual Bank. During her career at Washington Mutual Bank she was responsible for designing and implementing an Internet based collateral valuation management system, developed and implemented AVM testing procedures, vigorously pursued and implemented AVM cascade logic, introduced “bump logic”, and was responsible for maintaining collateral risk and appraisal policies and procedures for the bank. Sue managed a staff in excess of 800 appraisers and technical employees that produced appraisal reports in 50 states. She was responsible for the design and implementation of alternative valuation products that included desktop appraisals and appraiser assisted AVM reports. She also participated in 38 mergers and acquisitions that expanded mortgage lending into 50 states.

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April 13, 2010

Federal Judge Green-Lights Trial Lawyers' Suit Against Wachovia

Federal Judge Green-Lights Trial Lawyers' Suit Against Wachovia
The National Law Journal

A federal judge has cleared the way for a lending dispute between the nation's top plaintiffs lawyers group and Wachovia Bank to go to trial. In a redacted opinion issued last week, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia ruled there were valid questions as to whether Wachovia acted legally when it terminated an $89 million real estate loan it had negotiated with the American Association for Justice

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NH&RA's Spring Policy Forum
...Are Speaking At NH&RA's Spring Policy Forum

If you are a tax credit developer of any size, involved in LIHTC, Historic Rehab, NMTC or Energy Credits, major decisions about your future are being made by federal policy makers.

But laws and regulations are not made in a vacuum. They are made after consultation with experts in the field, constituents, and consumers. You can be – and should be – a part of the conversation.

That’s why NH&RA is pleased to invite you to our Spring Policy Forum, located at the Liaison Hotel in the shadow of the dome on Washington’s Capitol Hill.

Join your fellow developers and take advantage of this rare opportunity to meet with officials from Congress, HUD, the Department of Energy, IRS and the White House. You will also learn the latest developments in the debt and equity markets, trends at the state housing finance agencies, innovative case-studies and more.

Key policy makers participating on the program include:

  • Helen Kanovsky, General Counsel, HUD
  • Carol Galante, Deputy Assistant Secretary, Office of Multifamily Housing Programs, HUD
  • Chris Tawa, Senior Advisor to the Deputy Assistant Secretary, Office of Multifamily Housing Programs, HUD
  • Ben Metcalf, Senior Advisor to the Deputy Assistant Secretary for Multifamily Housing Programs, HUD
  • Sue Wilson, Director, HOPE VI Division, HUD
  • Paul Handleman, Office of Associate Chief Counsel (Passthroughs and Special Industries), IRS
  • Scott Olson, House Financial Services Committee (Democratic Committee Staff)
  • Tallman Johnson, House Financial Services Committee (Republican Committee Staff)
  • John Sheiner, House Ways & Means Committee (Democratic Committee Staff)
  • Nick Wyatt, Senate Finance Committee (Republican Committee Staff)
  • Derek Dorn, Senate Finance Committee (Democratic Committee Staff)
  • Laura Hogshead, House Appropriations Committee (Democratic Committee Staff) INVITED
  • Meaghan McCarthy, Senate Appropriations Committee (Democratic Committee Staff) INVITED
  • ...and more to be announced soon

The program will offer a mix of analytical discussion on policy along with NH&RA’s hallmark transaction-oriented program, including updates on the debt and equity markets, innovative new case studies and a deeper understanding of how new policy developments will impact your next deal.

NH&RA Spring Policy Forum
May 20-21, 2010
The Liaison Hotel
Washington, DC
EARLY REGISTRATION ENDS NEXT WEEK (APRIL 21)!

Click here to view the conference agenda
Click here to register online
Click here to reserve your hotel room

Questions? Contact Thom Amdur at 202-939-1753 or tamdur@housingonline.com.


NH&RA Thanks Our Gold Conference Sponsor:

Housing Online


Important Links

NH&RA & NCAHMA Events

Spring Policy Forum Agenda

Conference Registration

Hotel & Travel Information

Continuing Education

Cancellation Policy

DON'T DELAY--EARLY REGISTRATION ENDS 4/21/2010!
 


Other Upcoming Events

NH&RA Summer Institute
July 21-24, 2010
Ritz-Carlton Laguna Niguel
Dana Point, CA

 

NH&RA Summer NMTC Symposium
July 21, 2010
Ritz-Carlton Laguna Niguel
Dana Point, CA
 

Continuing Education

NH&RA sessions typically fulfill other continuing education requirements for appraisers, accountants, attorneys and real estate professionals. NH&RA will work closely with you and your CE certifying body to insure you receive the maximum number of CE hours. Questions and/or complaints may be submitted to NH&RA directly by contacting Thom Amdur (202) 939-1753 or tamdur@housingonline.com or Greg Sidorov (202) 939-1773 or gsidorov@dworbell.com.

NH&RA is registered with the National Association of State Boards of Accountancy (NASBA) as a sponsor of continuing professional education on the National Registry of CPE Sponsors.  State boards of accountancy have final authority on the acceptance of individual courses for CPE credit.  Complaints regarding registered sponsors may be addressed to the National Registry of CPE Sponsors, 150 Fourth Avenue North, Suite 700, Nashville, TN, 37219-2417.  Web site:www.nasba.orgwww.nasba.org.

Click here for information on teaching methods & prerequisites, special assistance, learning objectives and our refund/cancellation policy.

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April 12, 2010

Abbott & Kindermann Land Use Law Blog] No Fooling: A Facially Valid NOD Triggers a 35-Day Statute of Limitations

[Abbott & Kindermann Land Use Law Blog] No Fooling: A Facially Valid NOD Triggers a 35-Day Statute of Limitations

Monday, April 12, 2010 10:58 AM

From:
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Summary:
In the second time in two months, the California Supreme Court announced that once a Notice of Exemption ("NOE") for a project is filed, the applicable statute of limitations is 35 days - regardless of the circumstances surrounding the NOE. On April 1, 2010, the Court held that a citizens' suit challenging a project under the California Environmental Quality Act was barred by the 35-day statute of limitations contained in Public Resources Code section 21167 subdivision (d) because the City of Stockton had filed a facially valid NOE.

View the entire entry:
http://blog.aklandlaw.com/2010/04/articles/ceqa/no-fooling-a-facially-valid-nod-triggers-a-35day-statute-of-limitations/index.html

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Read the Article

REITs and infrastructure projects
The next investment frontier?

Coming out of the economic downturn, private investors are seeking new avenues to generate tax-efficient returns on their invested funds. Could the use of Real Estate Investment Trusts (REITs) as a funding mechanism for major U.S. infrastructure projects provide such an opportunity? The Infrastructure sector is continuing to attract private investor interest, particularly as more governments look to Public-Private Partnerships ("PPPs" or "P3s") to provide much-needed funding to rehabilitate, maintain, and develop crucial U.S. infrastructure assets.

Historically, private investment in PPPs has been made through a partnership entity, but the release of recent Internal Revenue Service Private Letter Rulings may now make it more favorable for investors to use Real Estate Investment Trusts (REITs) as an investment structure. Our latest article discusses how REITs provide a good alternative for infrastructure financing, due to their access to capital markets and the ability for the public to participate in owning qualifying infrastructure assets, aspects which may be attractive to both the public and private sector.

Read the Article

 

Related links

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Notice of Public Auction Sale

http://www.treas.gov/auctions/irs/laca_real_4203.htm

Notice of Public Auction Sale Under the authority in Internal Revenue Code section 6331, the property described below has been seized for nonpayment of internal revenue taxes due from Taxpayer. The property will be sold at public auction as provided by Internal Revenue Code section 6335 and related regulations. Date: 2/16/2010 Time: 11:00 AM Bidder Registration Time: 10:30 a.m. Sale Location: 111 N.Hill Street, Los Angeles CA90012(Outdoor courtyard area in the park behind Starbucks) Title Offered: Only the right, title and interest of the Taxpayer in and to the property will be offered for sale. If requested, the Internal Revenue Service will furnish information about possible encumbrances, which may be useful in determining the value of the interest being sold. Description of Property: Multi-unit residential property: 922, 924, 926, 926 ¼, 926 ½, and 928 Fraser Avenue, Los Angeles, California 90022 Property May Be Inspected at: Drive-by only: 922-928 Fraser Avenue, Los Angeles, CA – DO NOT DISTURB THE OCCUPANTS Legal Description: The following real property is in the City of Los Angeles, County of Los Angeles, State of California: LOT 123 AND 124 OF TRACT NO. 5433, AS PER MAP RECORDED IN BOOK 58, PAGE 33 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY Minimum Bid: $231,000.00 Click here for Notice of Encumbrances This file will need Adobe Acrobat Reader. If your browser is not configured for pdf files the Adobe Acrobat Reader is free to download. Click here for photos of property The Terms of Payment: Deferred payment as follows: 20% upon acceptance of high bid and balance due in full by Friday, March 12, 2010. Form of Payment: All payments must be by cash, certified check, cashier´s or treasurer´s check or by a United States postal, bank, express, or telegraph money order. Make check or money order payable to the United States Treasury. For additional information about the property and proposed sale, please contact the following office: Name: Karola Jenkins Title: Property Appraisal and Liquidation Specialist Bureau: Internal Revenue Service Address: 300 N. Los Angeles St. Stop 5850 Los Angeles, CA, 90012 Phone: (213) 576-4380 Email: Karola.Jenkins@irs.gov

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UBS Client Pleads Guilty to Failing to Report Over $1 Million in Swiss Bank Accounts

Department of Justice
Office of Public Affairs
FOR IMMEDIATE RELEASE
Monday, April 12, 2010
UBS Client Pleads Guilty to Failing to Report Over $1 Million in Swiss Bank Accounts

WASHINGTON - Harry Abrahamsen, a resident of Oradell, N.J., pleaded guilty today to failure to file a Report of Foreign Bank or Financial Accounts (FBAR), the Justice Department and Internal Revenue Service (IRS) announced. In his plea, Abrahamsen admitted that he concealed over $1 million in Swiss bank accounts.

Abrahamsen made his first appearance in federal court and pleaded guilty before U.S. District Judge Dennis M. Cavanaugh to a one-count Information which charges him with willful failure to file a report of foreign bank and financial accounts.

At his plea hearing, Abrahamsen admitted that he failed to file an FBAR for calendar year 2005. Abrahamsen also failed to report his account at UBS AG in Switzerland on his individual income tax return for that year and failed to report a second account opened in his daughter’s name. Additionally, Abrahamsen failed to report income deposited in and earned on the UBS bank accounts. The UBS accounts, originally opened in 1992, were transferred into the name of Primrose Properties S.A., a nominee Panamanian corporation, in 2000. Abrahamsen established Primrose in early 2000 with the assistance of a Swiss lawyer and Swiss banker, in order to hide these accounts from the IRS.

Abrahamsen also admitted that he funded the UBS accounts with approximately $1.3 million in false and inflated expenses paid by his pre-press printing business, SJT Imaging Inc., to a Swiss company. The inflated expenses were then deducted on SJT Imaging’s corporate tax returns, which allowed Abrahamsen to under report personal income for the years 1999 through 2003.

Judge Cavanaugh released the defendant on a $300,000 bond pending sentencing, which is scheduled for July 27, 2010. Abrahamsen faces a maximum potential penalty of five years in prison and a maximum fine of $250,000 or twice the amount of financial gain to the defendant or loss to the IRS. Additionally, Abrahamsen has agreed to pay a civil FBAR penalty based on 50% of the highest balance contained in his UBS account for calendar years 1999 through 2007.

Acting Assistant Attorney General John DiCicco and U.S. Attorney Paul J. Fishman commended the investigative efforts of the IRS agents involved in this case, as well as Trial Attorney Michael C. Vasiliadis, and Assistant U.S. Attorney Stacey A. Levine, who are prosecuting the case.

In February 2009, UBS entered into a deferred prosecution agreement pursuant to which the bank admitted to helping U.S. taxpayers hide accounts from the IRS. As part of their agreement, UBS provided the United States government with the identities of, and account information for, certain U.S. customers of UBS’s cross-border business.

United States citizens who have an interest in, or signature or other authority over, a financial account in a foreign country with assets in excess of $10,000 are required to disclose the existence of such account on Schedule B, Part III of their individual income tax return. Additionally, U.S. citizens much file an FBAR with the United States Treasury, disclosing any financial account in a foreign country with assets in excess of $10,000 for which they have a financial interest in or signature authority, or other authority over.

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April 08, 2010

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Recent Update on Vacancies

Recent Update on Vacancies

HUD DatasetsAn update of the Metropolitan Area Quarterly Residential and Business Vacancy Report, based on the HUD Aggregated USPS Administrative Data, has been released for the fourth quarter of 2009. Vacancy rates and changes from the previous quarter and previous year, similar to those shown below, are reported for metropolitan areas across the country. For purposes of this research, properties are deemed to be vacant when no one has taken in (or been available to receive) mail for 90 days or longer. This timeframe is seen as reflecting longer-term vacancy, rather than normal turnover.

Metropolitan Area

CURRENT RESIDENTIAL VACANCY RATE

Rate Change Sept. 2009 - Dec. 2009

Rate Change Dec. 2008 – Dec. 2009

CURRENT BUSINESS VACANCY RATE

Rate Change Sept. 2009 – Dec. 2009

Rate Change Dec. 2008 – Dec. 2009

Lake Havasu City-Kingman, AZ

6.86%

(0.10%)

0.64%

12.1%

(1.34%)

2.90%

Pocatello, ID

3.51

0.07

(0.06)

14.63

1.18

1.53

Bangor, ME

4.74

1.99

2.21

12.68

1.76

2.29

Wichita Falls, TX

5.28

0.47

0.35

18.16

0.65

0.16

Stockton, CA

2.97

0.05

0.18

11.81

0.75

2.78

Detroit-Livonia-Dearborn, MI

10.29

0.36

0.33

19.46

0.21

0.55

Atlanta-Sandy Springs-Marietta, GA

3.86

0.08

0.18

13.42

0.13

1.25

These data — representing the "known universe" of all deliverable addresses in the United States — are displayed on new Metropolitan Area Quarterly Maps that provide a regional or metropolitan perspective on residential and business vacancies and, more importantly, their change over time (between quarters and from year-to-year). Through a special agreement with the USPS, HUD also aggregates and publishes the data at the census tract level, thus providing another viable indicator for use in assessing the well-being of America's communities.

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April 06, 2010

Bexar appraiser is facing appraisal

Bexar appraiser is facing appraisal

 

Karisa King - Express-News

A battle over tax breaks for affordable housing developers has divided the board of directors at the Bexar Appraisal District and spurred speculation the agency’s director could be forced out of his job.

Chief Appraiser Michael Amezquita faces increasing pressure from the housing groups and local officials who are pressing him to grant more than three dozen of the lucrative property tax exemptions, which he revoked last year.

But Amezquita contends some housing developers are abusing the tax incentive and fail to offer below-market rents.

"They rent to poor people, but they’re not giving them a break in the rent," Amezquita said. "If I get fired for doing the right thing, that is not going to make these properties any more eligible" for the exemptions.

The rift among the five-member appraisal board, which can hire or fire the chief appraiser, coincides with the December election of ? two new trustees who are skeptical of Amezquita’s tough approach to the exemptions.

The new members, Bexar County Tax Assessor-Collector Sylvia Romo and Tomas Uresti, a board member of the Harlandale Independent School District, also have expressed concerns with other aspects of how Amezquita heads the agency. http://www.mysanantonio.com/news/local_news/Bexar_appraiser_is_facing_appraisal.html

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New Cert Petition: Is The "Undivided Fee" Rule Unconstitutional?

New Cert Petition: Is The "Undivided Fee" Rule Unconstitutional?

Posted: 06 Apr 2010 03:02 AM PDT

When is a lease that everyone agrees is worth more than a million dollars totally worthless? When it's an eminent domain case and the court applies the "undivided fee" rule, that's when.

Most eminent domain attorneys know about the infamous undivided fee rule (aka as the "unit rule" in some jurisdictions), a legal fiction which requires a trial court to calculate valuation of property as if a single owner possessed everything, even when it is held by more than one interest. Under the rule, the condemnor is not required to compensate each separate interest in the property, but treats the property as if it had one owner.

For example, if a condemned building is being leased to tenants, compensation is measured by the value of the undivided fee simple absolute value of the building, not the aggregate value of the building and the leases. The building owner and the tenants must divide up the condemnation award by contract. In many if not most cases, the rule is uncontroversial. But in a few cases its rigid application works very unusual and unfair results.

A recently-filed cert petition challenges the rule's constitutionality, asserting that when it is applied to deprive a property owner of a valuable lease, it violates the Fifth and Fourteenth Amendments' guarantees of Just Compensation.

In City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 2006AP2866 (July 17, 2009), a sharply divided Wisconsin Supreme Court applied the rule to conclude first that a tenant who owned an admittedly valuable long term lease ($1 rent per year, plus goodies) was not entitled to any compensation because the value of the building was zero.

We deconstructed the Wisconsin Supreme Court's opinion in this post: Wisconsin Supreme Court: The Whole Is Lesser Than The Sum Of Its Parts.

The petition presents the following issues:

When the Milwaukee Redevelopment Authority took by eminent domain the 11-story downtown building that housed the offices of Post 2874 of the Veterans of Foreign Wars (VFW) as a long-term lessee, the Wisconsin Supreme Court held 4 to 3 that—as a matter of law—the VFW was not entitled to present any evidence of value, nor entitled to recover any compensation whatever for its concededly valuable long-term leasehold.

The questions presented are:

1. Does it violate the 5th and 14th Amendments for Wisconsin—like some jurisdictions, but in conflict with others and with this Court’s repeated insistence that the appropriate question in an eminent domain proceeding is "what has the owner lost, not what has the taker gained"—to apply its "undivided fee rule" in such circumstances?

2. Did the court below violate VFW’s constitutional right to due process of law by precluding it, as the owner of a valuable interest in property being taken through eminent domain, from introducing any evidence of the value of its leasehold property?

The petition points out the split of authority in the lower courts on the applicability of the undivided fee rule. Some twenty states (Hawaii included) apply the rule regardless of the circumstances. Seven other jurisdictions never apply the rule. Still others (eight states and several federal courts) apply the rule, but are willing to deviate from it when its application would deny just compensation. A split of authority is one of the surest tickets to Supreme Court review. To add to this case's chances, the Court has appeared to be interested in the question of just compensation recently. During the oral arguments in Kelo v. City of New London, for example, two Justices asked counsel about it, even though just compensation was not at issue in that case.

The petition sums up the basic issue, and the equities:

The question is whether valuation by this fictional technique satisfies the 5th and 14th Amendments’ guarantee that those whose property is commandeered for public use will receive just compensation, usually defined as fair market value. The result below speaks eloquently. The Veterans of Foreign Wars received $0 as compensation for a long-term lease, a lease that the majority opinion had to concede had value, even though application of the  undivided fee rule forbade the VFW from presenting any evidence as to that value or receiving any compensation from the Redevelopment Authority for its taking.

Petition at 4-5. More to follow if and when a brief in opposition -- currently due no later than May 5, 2010 -- is filed.

The case is docketed as No. 09-1204 (docket entry here). This is one worth watching closely.

This posting includes an audio/video/photo media file: Download Now

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April 03, 2010

Cost Segregation Audit Techniques Guide - Chapter 1 - Introduction

Cost Segregation Audit Techniques Guide - Chapter 1 - Introduction http://www.irs.gov/businesses/article/0,,id=134180,00.html

 

Note: Each chapter in this Audit Techniques Guide (ATG) can be printed individually. Please follow the links at the beginning or end of this chapter to either return to the Table of Contents or proceed to the next chapter.

Table of Contents | Chapter 2

 

CHAPTER 1 - INTRODUCTION

PURPOSE OF THE COST SEGREGATION AUDIT TECHNIQUES GUIDE

This ATG has been developed to assist Internal Revenue Service (Service) examiners in the review and examination of cost segregation studies. The primary goals are to provide examiners with an understanding of

  1. why cost segregation studies are performed for federal income tax purposes;
  2. how cost segregation studies are prepared; and,
  3. what to look for in the review and examination of these studies.

The ATG was developed by a cross-functional team of Service engineers and agents and is not intended as an official IRS pronouncement. Accordingly, it may not be cited as authority.

hrefback to the top

BACKGROUND
In order to calculate depreciation for Federal income tax purposes, taxpayers must use the correct method and proper recovery period for each asset or property owned. Property, whether acquired or constructed, often consists of numerous asset types with different recovery periods. Thus, property must be separated into individual components or asset groups having the same recovery periods and placed-in-service dates in order to properly compute depreciation.

When the actual cost of each individual component is available, this is a rather simple procedure. However, when only lump-sum costs are available, cost estimating techniques may be required to "segregate" or "allocate" costs to individual components of property (e.g., land, land improvements, buildings, equipment, furniture and fixtures, etc.). This type of analysis is generally called a "cost segregation study," "cost segregation analysis," or "cost allocation study."

In recent years, increasing numbers of taxpayers have submitted either original tax returns or claims for refund with depreciation deductions based on cost segregation studies. The underlying incentive for preparing these studies for federal income tax purposes is the significant tax benefits derived from utilizing shorter recovery periods and accelerated depreciation methods for computing depreciation deductions. The issues for Service examiners are the rationale used to segregate property into its various components, and the methods used to allocate the total project costs among these components.

The most common situation is the allocation or reallocation of building costs to tangible personal property. A building, termed "section (§) 1250 property", is generally 39-year property eligible for straight-line depreciation. Equipment, furniture and fixtures, termed "section (§) 1245 property", are tangible personal property. Tangible personal property has a short recovery period (e.g., 5 or 7 years) and is also eligible for accelerated depreciation (e.g., double declining balance). Thus, a faster depreciation write-off (and tax benefit) can be obtained by allocating property costs to § 1245 property, or by reallocating § 1250 property costs to § 1245 property.

A simple example illustrates the tax benefits of a cost segregation study. In general, a turnkey construction project includes elements of tangible personal property (e.g., phone system, computer system, process piping, storage tanks). It is relatively easy to identify these items as § 1245 property and allocate a portion of the total project costs to them. However, a cost segregation study may also report certain building occupancy items, such as carpeting, wall coverings, partitions, millwork, lighting fixtures, suspended ceilings, doors, as § 1245 property. These items may or may not constitute qualifying § 1245 property depending on particular facts and circumstances, such as the location of the assets and the specific activities for which the project was designed.

In addition to identifying specific project components that qualify as § 1245 property, cost segregation studies may treat portions of building components as § 1245 property. For example, a study may conclude that 15 percent of a building’s electrical system directly supports § 1245 property, such as specialized kitchen equipment. Based on that conclusion, the study will then treat 15 percent of the electrical system as § 1245 property. The allocation of building components to § 1245 property is often a contentious issue.

Property allocations and reallocations are typically based on criteria established under the Investment Tax Credit (ITC). A plethora of legislative acts, court decisions and Service rulings have produced complex and often conflicting guidance with respect to property qualifying for ITC, resulting in no bright-line tests for distinguishing § 1245 property from § 1250 property. Related issues, such as the capitalization of interest and production costs under IRC § 263A and changes in accounting method, add to the complexity of this issue.

In a recent landmark decision, the Tax Court ruled that, to the extent tangible personal property is included in an acquisition or in overall costs, it should be treated as such for depreciation purposes. The court also decided that the rules for determining whether property qualifies as tangible personal property for purposes of ITC (under pre-1981 tax law) are also applicable to determining depreciation under current law. [See Hospital Corporation of America, 109 T.C. 21 (1997)] The Service acquiesced to the use of ITC rules for distinguishing § 1245 property from § 1250 property.

Based on these developments, the use of cost segregation studies will likely continue to increase. Unfortunately, there are no standards regarding the preparation of these studies. Accordingly, studies vary widely in terms of the methodology, documentation, depth, format, and expertise of the study’s preparer. This lack of consistency, coupled with the complexity of the law in this area, often results in an examination that is controversial and burdensome for all parties.

Examiners reviewing cost segregation studies must determine the proper classification and correct costs of property. In some cases (e.g., small projects) examiners may be able to evaluate a study without assistance. However, other studies may require specialists with expertise, industry experience and specialized training (e.g., Engineers, Computer Audit Specialists and/or Technical Advisors). Examiners should perform a risk analysis as early as possible to determine the depth of an exam and the need for assistance.href

back to the top

SUMMARY AND CONCLUSIONS

Depreciation issues involving cost segregation studies cross all LMSB industry lines and impact SB/SE taxpayers as well. The lack of consistency in cost segregation studies and the absence of bright-line tests for distinguishing property contribute to the difficulties of this issue. The purpose of this ATG is to provide the foundation to a better understanding of cost segregation studies and to provide the examination steps that will facilitate the audit process and minimize burden on taxpayers, practitioners and Service examiners alike.

Table of Contents | Chapter 2

 
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April 02, 2010

Upcoming Events

Upcoming Events

2010 Montgomery College Money Management Day

April 5, 2010 (Rockville, Md.)
April 6, 2010 (Germantown, Md.)
April 14, 2010 (Takoma Park/Silver Spring, Md.)

Montgomery County Coalition for Financial Literacy hosts this one-day campus outreach event, where Montgomery College students and staff can learn about money management and personal finance.

Weathering the Storm: Have IDAs Helped Low-Income Homebuyers Avoid Foreclosure?

April 6, 2010 (Nationwide)

CFED hosts this webinar that discusses research analyzing the foreclosure rates of over 800 low-income homebuyers who participate in IDA programs. Participants will also learn how to perform research on post-purchase asset retention.

New Consumer Protection Regulations, Including the Credit Card Accountability Responsibility and Disclosure Act

April 8, 2010 (Philadelphia, Pa.)

Federal Reserve Bank of Philadelphia hosts a meeting that focuses on credit scores and reports; the Credit Card Accountability Responsibility and Disclosure Act of 2009; overdraft fees; and the Mortgage Forgiveness Debt Relief Act.

Investing in Our Future: Financial Education and Washington

April 8, 2010 (Washington, D.C.)

Greater Washington Jump$tart Coalition’s Financial Literacy Month kickoff event discusses ways to improve youth financial literacy throughout the country.

Your Money Bus Tour

April 8-9, 2010 (Columbus, Ohio)
April 20-22, 2010 (Chicago, Ill.)
April 27, 2010 (Lubbock, Texas)
May 6-8, 2010 (Ft. Worth, Texas)
May 20-22, 2010 (Austin, Texas)

National Association of Personal Financial Advisors’ Consumer Education Foundation’s 2010 Your Money Bus Tour helps educate consumers about decreasing debt and increasing savings.

Financial Boot Camp for Life

April 10, 2010 (Philadelphia, Pa.)

Philadelphia Saves’ Financial Boot Camp for Life, is a half-day program, which provides free workshops and an informational expo.

3rd Annual Financial Fair

April 10, 2010 (Washington, D.C.)

Capital Area Asset Builders hosts its annual Financial Fair, which provides attendees with free tax preparation, credit counseling, and financial planning.

Money Smart Week Chicago

April 17–24, 2010 (Chicago, Ill.)

Federal Reserve Bank of Chicago’s Money Smart Week Chicago provides a series of free classes and activities designed to help consumers better manage their personal finances.

Money Smart Week Illinois

April 17-24, 2010 (Illinois)

Federal Reserve Bank of Chicago’s Money Smart Week Illinois provides a series of free classes and activities designed to help consumers better manage their personal finances.

Money Smart Week Iowa

April 17-24, 2010 (Iowa)

Federal Reserve Bank of Chicago’s Money Smart Week Iowa provides a series of free classes and activities designed to help consumers better manage their personal finances

Money Smart Week Michigan

April 17-24, 2010 (Michigan)

Federal Reserve Bank of Chicago’s Money Smart Week Michigan provides a series of free classes and activities designed to help consumers better manage their personal finances.

Money Smart Women’s Investing Conference

April 17, 2009 (Des Moines, Iowa)
April 23, 2009 (Bettendorf, Iowa)

Money Smart Women Investing Conference, part of the Money Smart Week Iowa campaign, provides information on money management and investing.

National Credit Union Youth Week

April 18–24, 2010 (Nationwide)

During National Credit Union Youth Week, the Credit Union National Association provides ideas and resources to help youth participate in the National Youth Savings Challenge.

Money Week Houston

April 18-24, 2010 (Houston, Texas)

Money Week Houston is Houston’s largest citywide financial education event. Presented during National Financial Literacy Month, the event provides financial education to help people create household budgets, initiate savings plans, manage debt, and make strategic investment decisions for retirement.

Financial Literacy and Education Summit 2010

April 19, 2010 (Chicago, Ill.)

Federal Reserve Bank of Chicago and Visa present the fourth annual Financial Literacy and Education Summit. The theme “Advancing Financial Stability and Responsibility” addresses the key issues in the fields of education and personal finance and covers such topics as improving our collective economic health and bolstering global financial education.

OCC and the Topic of Wealth Building

April, 21, 2010 (Satellite Radio - Nationwide)

The OCC’s Director of Compliance Calvin Hagins will talk about financial literacy month on the Joe Madisom Show, XM radio, channel 169, from 8:15 to 8:30 a.m. ET., on April 21, 2010.

Money Smart Week of Greater Kansas City

April 23-30, 2010 (Kansas City, Mo.)

Money Smart Week of Greater Kansas City is an annual community outreach initiative designed to promote financial awareness. The initiative provides workshops, seminars, programs, and other events to help community members, including individuals, families, students, homeowners, businesspersons, and employees, improve financial literacy.

Michigan Jump$tart Coalition’s 2010 Professional Development Conferences

April 24, 2010 (Mackinaw City, Mich.)

Michigan’s Jump$tart Coalition presents two one-day conferences that provide educators with financial education tools, resources, updates, and ideas to teach financial literacy in their classrooms.

Money Smart Colorado

April 24–May 1, 2010 (Colorado)

Money Smart Colorado is a public awareness campaign designed to help consumers better manage their personal finances. Organizations across the state, including businesses, financial institutions, schools, libraries, nonprofit organizations, government agencies, and the news media, come together to stress the importance of financial literacy, inform consumers where they can get help, and provide free educational seminars and activities throughout the week.

Teach Children to Save Day

April 27, 2010 (Nationwide)

Teach Children to Save, an American Bankers Association Education Foundation program, brings together students and bankers to promote savings education. The Foundation organizes bank volunteers to visit local classrooms and share with students information about fundamental money skills.

2010 Symposium on Financial Literacy: Implications for Retirement Security and the Financial Marketplace

April 29–30, 2010 (Philadelphia, Pa.)

Pension Research Council’s symposium is intended to inform policy makers, academics, actuaries, plan sponsors, and benefits specialists about what has been learned and what remains to be done to take advantage of the “teachable moment” resulting from the financial crisis.

Consumer Decisionmaking: Insights from Behavioral Economics

April 29-30, 2010 (Dallas, Texas)

Federal Reserve Bank of Dallas presents Consumer Decisionmaking: Insights from Behavioral Economics. This conference examines factors that guide consumers’ decision-making process—such as immediate gratification, inertia, or a lack of knowledge and understanding about the costs and benefits of financial services. Leading scholars present their research, focusing on low- to moderate-income consumers, and attendees discuss how to develop better, products, services, and policies.

Colorado Jump$tart Coalition’s Teachers Workshop

May 1, 2010 (Denver, Colo.)

Colorado Jump$tart Coalition presents a teachers workshop on budgeting, saving, investment, debt management, and the importance of economic and personal finance education.

Fostering Financial Literacy in Maine Schools: Best Practices, Innovative Approaches

May 7, 2010 (Augusta, Maine)

Maine presents its first Financial Literacy Summit for teachers, administrators, and counselors to help Maine students and other youth understand the basics of earning, saving, spending, and investing.

22nd Annual Personal Finance Seminar for Professionals

May 12-14, 2010 (Annapolis, Md.)

University of Maryland Extension presents the 22nd Annual Personal Finance Seminar for Professionals. The seminar provides practical strategies from expert speakers and communication with high-ranking officials from federal agencies and commissions on today’s most critical consumer-spending issues.

2010 Tennessee Jump$tart’s Personal Financial Education Teachers Conference

June 9-11, 2010 (Gatlinburg, Tenn.)

2010 Tennessee Jump$tart’s Personal Financial Education Teachers Conference provides workshops on personal finance curriculum and related subjects.

5th Annual Underbanked Financial Services Forum

June 9–11, 2010 (Miami, Fla.)

Center for Financial Services Innovation and the American Bankers Association features concurrent tracks focused on credit, payments, and deposits. The event offers opportunities share experiences, ideas, and connections and learn new approaches to implement optimal programs quickly and cost-effectively.

2010 Financial Literacy Summit: Dollars and Sense for Kids

June 15-16, 2010 (Louisville, Ky.)

Kentucky Council on Economic Education’s third annual Financial Literacy Summit provides sessions designed to help teach economic, entrepreneurship, or personal finance content and the curricula or resources needed to teach these programs in the classroom.

Making Sense of Money and Banking: A Course for Teachers

July 19-23, 2010 (Philadelphia, Pa.)

Federal Reserve Bank of Philadelphia presents a five-day course on money, banking, and the Federal Reserve System. The course includes grade-level-specific breakout sessions with lesson plans that teachers can implement right away in their classrooms. Emphasis is on active- and collaborative-learning teaching methods and curricula for teaching money and banking in the K–12 classroom.

Iowa Jump$tart Coalition’s 2010 Personal Financial Literacy Conference

July 22–23, 2010 (Des Moines, Iowa)

Iowa Jump$tart Coalition provides teachers with information, materials, and new ideas for their classes so they can improve students’ prospects for financial success.

2010 Assets Learning Conference

September 22-24, 2010 (Washington, D.C.)

Corporation for Enterprise Development (CFED) presents the 2010 Assets Learning Conference: Creating the Save and Invest Economy. The conference builds on innovative asset-building strategies, products, and services to expand economic opportunity.

5th Annual Conference on Financial Education

October 6-8, 2010 (Boston, Mass.)

Institute for Financial Literacy presents the 5th Annual Conference on Financial Education. The conference provides professional development opportunities for individuals who work with financial literacy education. In addition to being a critical networking event for financial educators, the conference offers attendees the opportunity to learn about current trends, promote best practices, and advance the cause of financial education.

Protect Your Identity Week

October 17-23, 2010 (Nationwide)

National Foundation for Credit Counseling and the Council of Better Business Bureaus are sponsoring the third annual Protect Your Identity Week. Identity theft protection events are held in communities across the nation, where consumers can take advantage of education workshops, the shredding of documents, and credit report reviews—all free of charge and open to the public. A Spanish-language version (http://www.cuidesuidentidad.org/) also highlights the week’s events and provides valuable identity theft awareness and prevention education.

Get Smart About Credit Day 2010

October 21, 2010 (Nationwide)

Get Smart About Credit, an American Bankers Association Education Foundation program, connects bankers with students and other young adults to help them to develop a stronger understanding of credit and how to use it responsibly.

Financial Literacy Teacher Training Workshop Series

Visit Web site for class schedule (Twin Falls, Idaho)

Idaho Council on Economic Education and Wells Fargo Bank present teacher training workshops on Saturdays at locations around the state. The workshops feature lessons and materials appropriate for grades K–12. Tools include the Hands on Banking program, Stock Market Game, and the Classroom Mini-Economy program.

 

New Initiatives

Washington Money Smart Week

April 25-May 1, 2010 (Washington)

Jump$tart Washington is organizing the first Money Smart Week Campaign in Washington state, a public awareness campaign designed to help consumers better manage their personal finances. Several groups from across the state collaborate and coordinate their efforts to stress the importance of financial literacy. Businesses, financial institutions, schools, libraries, nonprofit organizations, government agencies, and the news media help inform consumers where they can get help. The campaign also provides free educational seminars and activities throughout the week.

 

New Resources

Adding Automatic Enrollment to Section 401(k) Plans, Sample Amendments (Notice 2009-65)

Internal Revenue Service provides notice 2009-65, which facilitates automatic enrollment by providing two sample plan amendments for sponsors, practitioners, and employers who want to add certain automatic contribution features to their 401(k) plans.

Blank Checks From Your Credit Card Issuer Carry Risks and Costs

Federal Deposit Insurance Corporation provides information on the potential problems when using blank “convenience checks” from credit card companies. Do your research before relying on convenience checks as a quick way to get a loan, pay bills, or transfer other loans to credit card accounts.

ChexSystems Consumer Assistance

ChexSystems network comprises member financial institutions working together to centralize information about mishandled checking and savings accounts. ChexSystems shares this information among member institutions to help them assess the risk of opening new accounts. This Web site provides consumer information on how to obtain a free copy of your annual consumer reports and offers frequently asked questions, a consumer education section, and more.

Consumer Alternatives for Receiving Income Tax Refunds

OCC’s Consumer Advisory explains that direct deposit into savings and checking accounts is a quick, efficient, and secure way to receive income tax refunds. The advisory also describes some of the risks of using refund anticipation loan products. To spread the message to consumers, the OCC sponsors public service advertisements in print media and radio stations across the country in English and Spanish.

Consumer Tip of the Week

Federal Deposit Insurance Corporation’s (FDIC) Consumer Tip of the Week addresses topics ranging from saving and borrowing money to protecting money with FDIC insurance and avoiding financial fraud.

Consumers Guide to Credit Cards

Federal Reserve Board helps consumers better understand the new credit card protections that took effect in February 2010. This Web site summarizes main provisions of the rules and explains how they affect credit card users. Two interactive features help consumers learn the terms and fees of credit card offers and new features of their monthly statements.

FDIC Consumer News Winter 2009/2010 Edition

The Winter 2009/2010 issue of FDIC Consumer News, published by the Federal Deposit Insurance Corporation, offers 10 ways to protect against theft and errors online, new federal rules on overdraft services, managing medical debts and small business financing.

Find a Credit Counselor

National Foundation for Credit Counseling offers an online credit counselor locator.

Home Loan Learning Center

Mortgage Bankers Association’s Home Loan Learning Center provides information to consumers on credit reports and scores; the true cost of owning a home; and how to compare the costs of owning versus renting a home. The Web site provides in-depth, easy-to-read home loan product information; information on how to qualify for a loan, what the documents mean and what’s in a mortgage payment; along with mortgage calculators to help consumers plan their payments.

How to File a Complaint

Federal Trade Commission (FTC) provides a video that shows people how to file a complaint and offers examples of the types of complaints the FTC handles. This video is also offered in Spanish>. Idaho Financial Literacy Coalition

Idaho Financial Literacy Coalition provides consumer resources and materials for personal financial education.

Money Market Accounts

Practical Money Skills presents Economy 101: Money Market Accounts, an article explaining key differences between deposit accounts and mutual funds.

New Overdraft Rules for Debit and ATM Cards

Federal Reserve Board presents What You Need to Know: New Overdraft Rules for Debit and ATM Cards. The article explains that banks, credit unions, and other financial institutions must offer the ability to make decisions about overdraft services for transactions made with your debit or ATM (automated teller machine) cards.

Partner Outreach Corner

Internal Revenue Service’s Partner Corner Outreach provides information and products on the Mortgage Forgiveness Debt Relief Act of 2007.

Savings Quest

Wells Fargo presents Savings Quest, a savings game and slide show that teaches children how to save money.

10 Facts About Mortgage Debt Forgiveness

Internal Revenue Service presents fast facts about mortgage debt forgiveness. For example, if your mortgage debt is partly or entirely forgiven during tax years 2007 through 2012, you may be able to claim special tax relief and exclude the debt forgiven from your income.

U.S. Savings Bonds

Internal Revenue Service explains how to purchase inflation-protected savings bonds with a portion of or all of your income tax refund. This information is also available in Spanish (http://www.irs.gov/pub/irs-pdf/p4830sp.pdf).

Working With Older Clients

AARP presents a Financial Professional’s Guide to Working with Older Clients. The guide addresses information that all financial professionals should be prepared to offer clients and potential clients. The guide reviews key social, family, generational, physical, and mental characteristics that may affect older clients’ approaches to financial issues.


HelpWithMyBank.gov:The OCC’s HelpWithMyBank.gov Web site provides answers to approximately 300 commonly asked banking questions. While targeted at national bank customers, the site answers many questions common to all banking consumers and provides useful information about contacting regulators of state banks, thrifts, and other financial institutions. A link from HOPE NOW to HelpWithMyBank.gov has been established.
MyMoney.gov: - The U.S. government's Web site dedicated to teaching all Americans the basics of financial education. The site houses important information from 20 federal agencies on such topics as buying a home, foreclosure prevention, deposit insurance, privacy, fraud, scams, balancing a checkbook, and investing in a 401(k).
Subscribe:: Sign up for the OCC’s “Financial Literacy Updates” by visiting the OCC’s Web site.
Have a notable financial literacy event coming up? Rolling out a new financial literacy initiative? Developing a new tool or product? Have general feedback? E-mail us at communityaffairs@occ.treas.gov.

The information contained in the Financial Literacy Update was obtained from publicly available sources. Inclusion of a non-OCC event, activity, product, or hyperlink in this e-newsletter does not constitute an endorsement by the OCC. The OCC does not exercise editorial control over any of the information you may find when linking to non-OCC Web sites and cannot guarantee the accuracy of the information.

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Inspection Gagdets

http://www.harriscompanyrec.com/MA2010Gadgets.pdf

Inspection Gagdets

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FixtureVs. TradeFixtureRely on the law to resolve these landlord/tenant disputes

http://www.harriscompanyrec.com/MA2010COLUMNLegalEase.pdf

 

FixtureVs. TradeFixtureRely on the law to resolve these landlord/tenant disputes

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Are You Ready To Head To The Hill?

Are You Ready To Head To The Hill?

Markyourcalendar! OnMay5, 2010, IREM Members, joinedbymembersoftheCCIM Institute, willbringissuesthataffectcommercialrealestatetoCapitolHill.

The credit crisis has put immense pressure on the commercial real estate industry. Liquidity in the commercial real estate market has been considerably hampered by one of its key lending vehicles–the nearly frozen $900 billion commercial mortgage-backed securities (CMBS) market.

Currently, banks and the CMBS market represent most of all outstanding commercial real estate loans. In addition to banks tightening their loan volumes, the CMBS market has ceased to function with respect to new issuance until more recently. Even with the recent new issuance of CMBS, this market continues to be plagued by systemic dysfunction. Without a functional CMBS market, many property owners across the country will face a growing challenge to refinance an estimated $1.4 trillion worth of commercial real estate loans which are set to mature over the next few years.

The liquidity crisis has been exacerbated by certain Fair Value Accounting (FVA) standards, known as mark-to-market. In particular, the interpretation and application of FAS 157 led banks to mark down their mortgage-backed securities as they declined in value, forcing them to report hundreds of billions of dollars in losses over the last year. However, in early April 2009, the Financial Accounting

http://www.irem.org/pdfs/JPM/MA2010-InSession.pdf

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U.S. EPA, DOJ announce $3.87 million settlement for cleanup work at OII Superfund site // Over $600 million now dedicated to cleanup

U.S. EPA, DOJ announce $3.87 million settlement for cleanup work at OII Superfund site // Over $600 million now dedicated to cleanup

 

For Immediate Release: April 1, 2010, Contact: Francisco Arcaute, (213) 244-1815, cell (213) 798-1404, arcaute.francisco@epa.gov 


LOS ANGELES - The U.S. Environmental Protection Agency and the U.S. Department of Justice today announced that 12 parties have agreed to pay a $3.87 million settlement for their share of cleanup costs related to the Operating Industries, Inc. (OII) Superfund site in Monterey Park, California.

    The settlement, which was entered by the U.S. District Court for the Central District of California, addresses 12 companies’ liability for past and future cleanup work and other costs at the OII Superfund site.  According to EPA, each of these companies contributed more than the equivalent of 110,000 gallons of commercial, liquid waste to the OII Superfund site.

    The 12 settling companies are: Ameron International Corporation; B&C Plating Company; California Dairies, Inc.; Casex Co., a Partnership; Energy Production & Sales Co.; Halliburton Energy Services, Inc. (on behalf of four generators); International Extrusion Corporation; Jaybee Manufacturing Corporation; Luxfer, Inc.; Princess Cruises Limited (on behalf of two generators); Thompson Drilling Company; and YRC, Inc. (on behalf of four generators). 

     "With this latest settlement at the Operating Industries Inc. Superfund site, more than $600 million have been dedicated to the cleanup of this site," said Jane Diamond, Superfund Division Director for EPA’s Pacific Southwest region.  "EPA has used the Superfund law’s ‘polluter pays’ provision to ensure that hundreds of millions of dollars in cleanup costs for the OII Superfund site will be paid by the corporations responsible for the contamination, and not by the taxpayers."

     A190-acre landfill, Operating Industries Inc. operated between 1948 and 1984, during which time the landfill received residential and commercial refuse, liquid wastes, and a variety of hazardous wastes.  More than 300 million gallons of liquid hazardous wastes, and approximately 38 million cubic yards of refuse were disposed of at the Operating Industries, Inc., site.

    Operating Industries Inc. was placed on the National Priorities List in May 1986; this list tracks hazardous waste sites potentially posing the greatest long-term threat to public health and the environment.

    For more information, please visit:  www.epa.gov/region09/operatingindustries

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April 01, 2010

Understanding First-Time Homelessness

Costs Associated with First-Time Homelessness for Families and Individuals HUD's Office of Policy Development and Research has released three important studies on homelessness in the United States: examining the cost of first-time homelessness, life after transitional housing for homeless families, and strategies for improving access to mainstream benefits and services. Taken together, the findings of these studies have significant policy implications as HUD seeks to understand the most effective and efficient ways of addressing homelessness among individuals and families.

Strategies for Improving People's Access to Mainstream Benefits and ServicesHUD's cost study is the most comprehensive research on the price tag associated with first-time homelessness and creates a foundation for comparing the costs of various homeless interventions. Costs Associated with First-Time Homelessness for Families and Individuals examines how much it costs to house and serve nearly 9,000 individuals and families in six areas of the country — Des Moines, Iowa; Houston, Texas; Jacksonville, Florida; Washington, DC; Houston, Texas; Kalamazoo, Michigan; and a large area of upstate South Carolina. Two additional studies have also been released: Strategies for Improving People's Access to Mainstream Benefits and Services and Life after Transitional Housing for Homeless Families.

Life after Transitional Housing for Homeless FamiliesThe first study documents how seven different communities (Albany/Albany Co., NY; Albuquerque, NM; Metropolitan Denver; Miami-Dade Co., FL; Norfolk, VA; Portland, ME; and Pittsburgh/Allegheny Co., PA) mobilized to improve homeless people's access to mainstream benefits and services. The second study followed 195 families in transitional housing programs across five communities (Cleveland/Cuyahoga County, Ohio; Detroit, Michigan; Houston and Harris and Benton Counties, Texas; San Diego City and County, California; and Seattle/King County, Washington) for 3, 6, and 12 months after leaving the program in an effort to document the impacts of participation in a transitional housing program. The study looks at housing status, employment and education outcomes associated with the service-intensive transitional housing programs for families with children.

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