Before JACOBS, LIVINGSTON, and LYNCH, Circuit Judges. Nicholas F. Soares, Terris, Pravlik & Millian, LLP, Washington, D.C. (Bruce J. Terris, Todd A. Gluckman; James M. Shaughnessy, Alastair Findeis, Milberg LLP, New York, NY, on the brief), for Appellant. Marc S. Cheffo, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY (Hayden A. Coleman, on the brief), for Appellee.
Dr. Jesse Polansky appeals from a partial final judgment of the United States District Court for the Eastern District of New York (Cogan, J.), dismissing his False Claims Act (“FCA”) and state analog causes of action. We have appellate jurisdiction by virtue of certification. Polansky alleges that in and after 2002: his former employer, defendant Pfizer, Inc. (“Pfizer”), improperly marketed Lipitor, a popular statin, as appropriate for patients whose risk factors and cholesterol levels fall outside the National Cholesterol Education Program Guidelines (“NCEP Guidelines” or “Guidelines”); that the Guidelines are incorporated into and made mandatory by the drug's label; and that Pfizer thus induced doctors to prescribe the drug, pharmacists to fill the prescriptions, and federal and state health care programs to pay for “off-label” prescriptions. Judge Cogan dismissed the claims because he determined that the FDA's approval of Lipitor was not dependent upon compliance with the Guidelines.1 We affirm.
The Food, Drug and Cosmetic Act (“FDCA”) forbids pharmaceutical manufacturers from marketing or selling a drug until the Food and Drug Administration (“FDA”) has approved it as safe and effective for its intended use or uses (the drug's “indications”). See 21 U.S.C. § 355(a), (d); United States v. Caronia, 703 F.3d 149, 152–53 (2d Cir.2012); see also 21 U.S.C. § 393(b)(2)(B). The exact wording of the drug's “label” must be approved by the FDA, and thereafter generally cannot be altered without further approval. Wyeth v. Levine, 555 U.S. 555, 568, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009); see 21 U.S.C. § 355(b)(1)(F), (d); 21 C.F.R. §§ 314.105(b), 601.12. The label (which can be quite lengthy) must include, inter alia, the drug's indications, contra-indications, limitations of use, use by specific populations, and dosage instructions. 21 C.F.R. § 201.57.
Polansky contends that prescriptions written for off-label uses are generally not reimbursable by federal and state health care programs. Federal reimbursement for prescription drugs under Medicare and Medicaid is generally limited to drugs prescribed for FDA-approved (on-label) uses or for certain purposes included in any of three drug compendia. See 42 U.S.C. § 1396r–8(k)(2), (3), (6); id. § 1395w–102(e)(1), (4). State Medicaid programs “may exclude or otherwise restrict coverage” if a drug is prescribed off-label unless included in any of those compendia. Id. § 1396r–8(d)(1)(B)(i).
Polansky alleges that Lipitor's approved use is more narrow than these specific indications: that it is approved only when the patient's risk factors and cholesterol levels fall within a framework outlined in the NCEP Guidelines, and that any use by a patient outside that framework is unapproved and off-label. He further alleges that Pfizer widely marketed Lipitor for outside—Guidelines use,4 causing physicians to write Lipitor prescriptions for patients whose risk factors and cholesterol levels fell outside the Guidelines framework, and causing those prescriptions to be submitted for reimbursement by federal and state health care programs. Because government health care programs generally do not reimburse prescriptions for off-label use, see supra, he contends that these requests for reimbursement impliedly certified (falsely) that the prescription was for an on-label use, and thus constituted false claims under the FCA and state laws.
This evidence-based report should not be viewed as a standard of practice. Evidence derived from empirical data can lead to generalities for guiding practice, but such guidance need not hold for individual patients. Clinical judgment applied to individuals can always take precedence over general management principles. Recommendations ․ thus represent general guidance that can assist in shaping clinical decisions, but they should not override a clinician's considered judgment in the management of individuals.
J.A. 33. The full Guidelines report is nearly 300 pages long.
Therapy with lipid-altering agents should be a component of multiple-risk-factor intervention in individuals at increased risk for atherosclerotic vascular disease due to hypercholesterolemia. Lipid-altering agents should be used in addition to a diet restricted in saturated fat and cholesterol only when the response to diet and other nonpharmacological measures has been inadequate (see National Cholesterol Education Program (NCEP) Guidelines, summarized in Table [below] ).
E.g., J.A. 718–19 (2005 label). The Guidelines summary table followed.
The “Dosage and Administration” section of pre–2009 labels contained four-to-six patient subcategories (depending on the date); in one of these patient subcategories, the labels referenced the Guidelines: “The starting dose and maintenance doses of LIPITOR should be individualized according to patient characteristics such as goal of therapy and response (see NCEP Guidelines, summarized in Table [above] ).” E.g., J.A. 729 (2005 label).
In the 2009 label, the summary table does not appear. The Guidelines are not mentioned at all in the “Indications and Usage” section (even though that section includes a restriction based on LDL level for patients between the ages of ten and seventeen, as did pre–2009 labels). The “Dosage and Administration” section retains the same parenthetical reference to the Guidelines as did earlier labels. The Guidelines appear nowhere else in that label.
The FCA is an anti-fraud statute; accordingly, Polansky must plead fraud with particularity pursuant to Federal Rule of Civil Procedure 9(b). See Gold v. Morrison–Knudsen Co., 68 F.3d 1475, 1476 (2d Cir.1995) (per curiam). Judge Korman, to whom this case was originally assigned, reviewed the previous version of the complaint, and dismissed the FCA and state analog claims for failure to satisfy Rule 9(b)'s requirements. United States ex rel. Polansky v. Pfizer, Inc., 04–CV–0704 (ERK), 2009 WL 1456582, at *5–10 (E.D.N.Y. May 22, 2009) (“Polansky I ”).
Polansky then filed the operative complaint, seeking to cure the defects Judge Korman had identified. Judge Cogan, to whom the case was reassigned, again dismissed these claims, but on the different ground that Pfizer had not engaged in off-label marketing as a matter of law and therefore could not have caused false claims to be submitted. United States ex rel. Polansky v. Pfizer, Inc., 914 F.Supp.2d 259, 266 (E.D.N.Y.2012) (“Polansky II ”). Judge Cogan determined that the premise underlying Polansky's FCA claims—that the label required compliance with the Guidelines—was implausible. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (complaint must provide “enough facts to state a claim to relief that is plausible on its face” to survive motion to dismiss).
Pfizer urges that we can affirm on any of several alternative grounds: that the Guidelines are not incorporated into the Lipitor label, as held by Judge Cogan in Polansky II; that the operative complaint failed to cure the Rule 9(b) particularity defect identified by Judge Korman in Polansky I; or that no false claims have been alleged because the complaint fails to plausibly allege that requests for reimbursement impliedly certified on-label use. We expressly endorse and adopt Judge Cogan's carefully considered and thorough analysis, and affirm on that basis.
As Judge Cogan explained, “guidelines” usually provide advice and (unsurprisingly) guidance, “not mandatory limitation.” Polansky II, 914 F.Supp.2d at 262. The NCEP Guidelines themselves expressly disclaimed prescriptive force: Their “general guidance” “need not hold for individual patients” and “should not override” a physician's clinical judgment about appropriate treatment of a particular patient. J.A. 33.
The district court drew the proper inferences. “Once the doctor's clinical judgment is introduced as the determinative factor in the decision making process, it must be apparent that this data serves as a recommendation, not a limitation or prohibition.” Polansky II, 914 F.Supp.2d at 264–65. We “cannot accept plaintiff's theory that what scientists at the National Cholesterol Education Program clearly intended to be advisory guidance is transformed into a legal restriction simply because the FDA has determined to pass along that advice through the label.” Id. at 265.
Where the label imposes cholesterol-level restrictions, it does so only for pediatric patients. This express restriction makes “more conspicuous” the absence of a similar restriction for adults, id. at 263, and shows how easily the FDA could have mandated compliance with the NCEP Guidelines with respect to all patients if it wanted to do so.
This conclusion is reinforced by the 2009 label. Notwithstanding that it is substantively identical to the prior version (as a matter of administrative procedure), it omits the Guidelines table, makes no more than fleeting reference to the Guidelines, and fails to mention them at all in the “Indications and Usage” section of the label, which is where a limitation on approved “usage” would be expected to appear. “A person reading the ‘Indications and Usage’ section of the 2009 label must come away with one clear meaning; the drug is to be used if a physician believes his patient should lower his cholesterol. That is the drug's essential purpose as defined by the label—to lower cholesterol.” Id. For further particulars of the analysis, the reader is referred to Judge Cogan's opinion, which we adopt.
Because we affirm on that basis, we need not wade into the circuit split regarding whether, to satisfy Rule 9(b), an FCA relator alleging a fraudulent scheme must provide the details of specific examples of actual false claims presented to the government (which Polansky does not do). (That split is detailed in the margin.10 ) Nor need we decide whether Polansky has adequately alleged that a request for prescription-drug reimbursement is an implied certification of on-label use.
We are skeptical, however, that even under Polansky's theory of the case, anyone could be identified who actually submitted a false claim. “[T]he FDA does not prohibit physicians, who are free to do so, from prescribing Lipitor for patients with normal cholesterol.” Polansky I, 2009 WL 1456582, at *10. Accordingly, it is unclear just whom Pfizer could have caused to submit a “false or fraudulent” claim: The physician is permitted to issue off-label prescriptions; the patient follows the physician's advice, and likely does not know whether the use is off-label; and the script does not inform the pharmacy at which the prescription will be filled whether the use is on-label or off. We do not decide the case on this ground, but we are dubious of Polansky's assumption that any one of these participants in the relevant transactions would have knowingly, impliedly certified that any prescription for Lipitor was for an on-label use. Cf. id. at *7 (“[B]ecause the FDA has expressly advised physicians that, ‘unlabeled uses may be appropriate and rational in certain circumstances, and may, in fact, reflect approaches to drug therapy that have been extensively reported in medical literature,’ and because physicians ‘commonly exercise professional medical judgment and prescribe drugs for uses not within the indications articulated by the FDA,’ the entities to which reimbursement claims are made could hardly be understood to have operated on the assumption that the physician writing the prescription was certifying implicitly that he was prescribing Lipitor in a manner consistent with the Guidelines.” (citations omitted)).
“The False Claims Act, even in its broadest application, was never intended to be used as a back-door regulatory regime to restrict practices that the relevant federal and state agencies have chosen not to prohibit through their regulatory authority.” Polansky II, 914 F.Supp.2d at 266. It is the FDA's role to decide what ought to go into a label, and to say what the label means, and to regulate compliance. We agree with Judge Cogan that there is an important distinction between marketing a drug for a purpose obviously not contemplated by the label (such as, with respect to Lipitor, “to promote hair growth or cure cancer”) and marketing a drug for its FDA-approved purpose to a patient population that is neither specified nor excluded in the label. Id. at 265. An FCA relator alleging off-label marketing might be able to satisfy Rule 9(b) and surmount the impediment of implied certification in a case in which it would be obvious to anyone that the use promoted is one that is not approved; but this is emphatically not such a case.
For these reasons, the partial judgment is AFFIRMED.
1. Polansky also challenges Pfizer's termination of his employment as motivated by unlawful retaliation under a number of federal and state laws. This panel dismissed Polansky's prior appeal for lack of appellate jurisdiction because we could not determine whether the district court had meant to dismiss all of Polansky's claims or only those brought under the FCA and analogous state laws. United States ex rel. Polansky v. Pfizer, Inc., 762 F.3d 160, 164–65 (2d Cir.2014) (“Polansky III ”). On remand, the district court clarified that it had only dismissed Polansky's fraud-based claims, certified those claims for appeal under Federal Rule of Civil Procedure 54(b), and entered partial final judgment. As we had instructed, the appeal returned to this panel. Polansky's employment-based claims, which have not been dismissed, remain before the district court.
2. A drug is misbranded if its labeling lacks “adequate directions” for safe use by a layperson “for the purposes for which it is intended.” 21 U.S.C. § 352(f)(1); 21 C.F.R. § 201.5; see also 21 C.F.R. § 201.128 (definition of “intended uses”). In Caronia, this Court construed the FDCA not to prohibit or criminalize “the simple promotion of a drug's off-label use” where that off-label use is not prohibited and where the promotional speech is not false or misleading, to avoid First Amendment concerns. 703 F.3d at 160, 165 & n. 10, 168–69. Caronia left open the government's ability to prove misbranding on a theory that promotional speech provides evidence that a drug is intended for a use that is not included on the drug's FDA-approved label. See id. at 162; see also 21 C.F.R. § 201.128 (“[I]f a manufacturer knows, or has knowledge of facts that would give him notice, that a drug introduced into interstate commerce by him is to be used for conditions, purposes, or uses other than the ones for which he offers it, he is required to provide adequate labeling for such a drug which accords with such other uses to which the article is to be put.”).
3. Beginning in July 2004, Lipitor has also had several “indications” relating to prevention or reduction of risk of various cardiovascular diseases.
4. Polansky was employed by Pfizer as Medical Director for a committee that reviewed the company's marketing strategies for certain drugs, including Lipitor.
5. The NCEP Guidelines were updated in 2004; and in 2013 they were replaced by further updated guidelines issued by the American College of Cardiology and the American Heart Association.
6. For patients in the highest risk category, the Guidelines recommended an LDL cholesterol goal of below 100 milligrams per deciliter (mg/dL); initiation of lifestyle changes at 100 mg/dL or above; and drug therapy at 130 mg/dL or above—but they also advised physicians to “[c]onsider drug options” between 100 and 129 mg/dL, noting differing preferences among authorities and the need for “[c]linical judgment.” J.A. 119. For patients in the middle risk category, the Guidelines recommended an LDL goal of below 130 mg/dL; initiation of lifestyle changes at 130 mg/dL or above; and drug therapy at either [i] 130 mg/dL or above (for patients with a ten-to-twenty percent risk of a coronary heart disease event within ten years) or [ii] 160 mg/dL or above (for patients with a below ten percent risk of a coronary heart disease event within ten years). For patients in the lowest risk category, they recommended an LDL goal of below 160 mg/dL; initiation of lifestyle changes at 160 mg/dL or above; and drug therapy at 190 mg/dL or above—but they also stated that drug therapy was “optional depending on clinical judgment” between 160 and 190 mg/dL. J.A. 121.
7. The 2009 label was promulgated pursuant to the FDA's Physician Labeling Rule, which revised the FDA's requirements for label content and formatting with the intent of making pharmaceutical labels easier for physicians to read and use. See Final Rule, Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products, 71 Fed.Reg. 3922 (Jan. 24, 2006) (codified at 21 C.F.R. § 201.56).
8. Polansky now argues half-heartedly that this is a question of fact, but he also acknowledges that the removal of the Guidelines table “does not appear to have been considered a substantive change.” Br. of Appellant at 48.
9. A claim submitted to the government “is legally false only where a party certifies compliance with a statute or regulation as a condition to governmental payment.” Mikes v. Straus, 274 F.3d 687, 697 (2d Cir.2001). Such certification may be either express or implied. In the medical provider context, “implied false certification is appropriately applied only when the underlying statute or regulation upon which the plaintiff relies expressly states the provider must comply in order to be paid.” Id. at 700 (emphasis omitted).
10. Compare, e.g., United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 504 (6th Cir.2007) (“We hold that pleading an actual false claim with particularity is an indispensable element of a complaint that alleges a FCA violation in compliance with Rule 9(b).”), and United States ex rel. Nathan v. Takeda Pharms. N. Am., Inc., 707 F.3d 451, 457–58 (4th Cir.2013) (“[W]hen a defendant's actions, as alleged and as reasonably inferred from the allegations, could have led, but need not necessarily have led, to the submission of false claims, a relator must allege with particularity that specific false claims actually were presented to the government for payment. To the extent that other cases apply a more relaxed construction of Rule 9(b) in such circumstances, we disagree with that approach.”), with United States ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 190 (5th Cir.2009) (“[A] relator's complaint, if it cannot allege the details of an actually submitted false claim, may nevertheless survive by alleging particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted.”), and Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 156–57 (3d Cir.2014) (adopting same approach, and discussing circuit split).


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D.C. Law Library - § 1–1001.10. Dates for holding elections; votes cast for President and Vice President counted as votes for presidential electors; voting hours; tie votes; filling vacancy where elected official dies, resigns, or becomes unable to serve.
↪ § 1–1001.10. Dates for holding elections; votes cast for President and Vice President counted as votes for presidential electors; voting hours; tie votes; filling vacancy where elected official dies, resigns, or becomes unable to serve.
(a)(1) The elections of the officials referred to in § 1-1001.01(1), (2), (3), or (4) shall be held, at the request of the party, during a primary election already scheduled for other purposes on the date requested; provided, that it does not interfere or conflict with applicable national party rules. The primary under § 1-1001.05(b) shall be held on the 3rd Tuesday in June of each presidential election year.
(2) The electors of President and Vice President of the United States shall be elected on the Tuesday next after the 1st Monday in November in every 4th year succeeding every election of a President and Vice President of the United States. Each vote cast for a candidate for President or Vice President whose name appears on the general election ballot shall be counted as a vote cast for the candidates for presidential electors of the party supporting such presidential and vice presidential candidate. Candidates receiving the highest number of votes in such election shall be declared the winners, except that in the case of a tie it shall be resolved in the same manner as is provided in subsection (c) of this section.
(3)(A) Except as otherwise provided in the case of special elections under this subchapter or § 206(a) of the District of Columbia Delegate Act, primary elections of each political party for the office of Delegate to the House of Representatives shall be held on the 3rd Tuesday in June of each even-numbered year, and general elections for such office shall be held on the Tuesday next after the 1st Monday in November of each even-numbered year.
(B) Except as otherwise provided in the case of special elections under this subchapter primary elections of each political party for the office of member of the Council shall be held on the 3rd Tuesday in June of each even-numbered year, and general election for such offices shall be held on the 1st Tuesday after the 1st Monday in November in 1974 and every 2nd year thereafter.
(C) Except as otherwise provided in the case of a special election under this subchapter or by § 1-204.35(b), primary elections of each political party for the office of Chairman of the Council, Mayor and Attorney General shall be held on the 3rd Tuesday in June of 2018 and every 4th year thereafter, and the general election for such office shall be held on the 1st Tuesday after the 1st Monday in November in 1974 and every 4th year thereafter.
(4) With respect to special elections required or authorized by this subchapter or by § 1-204.35(b), the Board may establish the dates on which such special elections are to be held and prescribe such other terms and conditions as may, in the Board’s opinion, be necessary or appropriate for the conduct of such elections in a manner comparable to that prescribed for other elections held pursuant to this subchapter.
(5) General elections of members of the State Board of Education shall be held on the 1st Tuesday after the 1st Monday in November of each odd-numbered calendar year through 1987, and thereafter in each even-numbered calendar year, on the same day and month.
(b)(1) All elections prescribed by this subchapter shall be conducted by the Board in conformity with the provisions of this subchapter. In all elections held pursuant to this subchapter, the polls shall be open from 7:00 a.m. to 8:00 p.m., except in instances when the time established for closing the polls is extended pursuant to a federal or District court order or any other order. The Board may, upon request of the precinct captain or upon its own initiative, if an emergency exists by reason of mechanical failure of a voting machine, an unanticipated shortage of ballots, excessive wait times, bomb threats, or similar unforeseen event warrants it, extend the polling hours for that precinct until the emergency situation has been resolved. Candidates who receive the highest number of votes, other than candidates for election as political party officials or delegates to national conventions nominating candidates for President and Vice President of the United States, shall be declared winners. If after the date of an election and prior to the certification of the election results, the qualified candidate who has received the highest number of votes dies, withdraws, or is found to be ineligible to hold the office, or in the event no candidate qualifies for election, the Board shall declare no winner, and the office shall become vacant as of the date of the beginning of the term of office for which the election was held. With respect to a primary election, the position of candidate shall be vacant until filled pursuant to subsection (d) of this section.
(2)(A) No person shall canvass, electioneer, circulate petitions, post any campaign material or engage in any activity that interferes with the orderly conduct of the election within a polling place or within a 50-foot distance from the entrance and exit of a polling place. The Board, by regulation, shall establish procedures for determination and clear marking of the 50-foot distance.
(B) A person who violates the provisions of this paragraph shall, upon conviction, be fined not less than $50 or more than $500 or imprisoned for not more than 30 days, or both.
(c) In the case of a tie vote, the resolution of which will affect the outcome of any election, the candidates receiving the tie vote shall cast lots before the Board at 12:00 noon on a date to be set by the Board. This date shall be set no sooner than 2 days following determination by the Board of the results of the election which resulted in a tie. The candidate to whom the lot shall fall shall be declared the winner. If the candidate or candidates fail to appear by 12:00 noon on said day, the Board shall cast lots for him or her or them. For purpose of casting lots, any candidate may appear in person, or by proxy appointed in writing.
(d)(1) In the event that any official, other than Delegate, member of the Council, Mayor, Attorney General, member of the State Board of Education, or winner of a primary election for the office of Delegate, member of the Council, Mayor, or Attorney General, elected pursuant to this subchapter dies, resigns, or becomes unable to serve during his or her term of office leaving no person elected pursuant to this subchapter to serve the remainder of the unexpired term of office, the successor or successors to serve the remainder of the term shall be chosen pursuant to the rules of the duly authorized party committee, except that the successor shall have the qualifications required by this subchapter for the office.
(2)(A) In the event that a vacancy occurs in the office of Delegate before May 1 of the last year of the Delegate’s term of office, the Board shall hold a special election to fill the unexpired term. The special election shall be held on the Tuesday occurring at least 70 days and not more than 174 days after the date on which the vacancy occurs which the Board determines, based on a totality of the circumstances, taking into account, inter alia, cultural and religious holidays and the administrability of the election, will provide the opportunity for the greatest level of voter participation. The person elected to fill the vacancy in the office of Delegate shall take office the day on which the Board certifies his or her election.
(B) In the event that a vacancy occurs in the office of Delegate on or after May 1 of the last year of the Delegate’s term of office, the Mayor shall appoint a successor to complete the remainder of the term of office.
(3) In the event of a vacancy in the office of United States Representative or United States Senator elected pursuant to § 1-123 and that vacancy cannot be filled pursuant to paragraph (1) of this subsection, the Mayor shall appoint, with the advice and consent of the Council, a successor to complete the remainder of the term of office.
(e)(1) In the event of a vacancy of an elected member of the State Board of Education, the Board of Elections shall hold a special election to fill the unexpired term of the vacant office. The special election shall be held on the Tuesday occurring at least 70 days and not more than 174 days after the date on which the vacancy occurs which the Board determines, based on a totality of the circumstances, taking into account, inter alia, cultural and religious holidays and the administrability of the election, will provide the opportunity for the greatest level of voter participation. The person elected as a member to fill a vacancy on the State Board of Education shall take office the day on which the Board of Elections certifies his or her election.
(f) Notwithstanding the provisions of subsection (e) of this section, if a vacancy of an elected member of the State Board of Education occurs on or after February 1st of the last year of the term of the vacant office, a special election shall not be held and the State Board of Education may appoint a person to fill such vacancy until the unexpired term ends. Any person appointed under this subsection shall have the same qualifications for holding such office as were required of his or her immediate predecessor.
(g) A vacancy among the appointed Board members shall be filled within 45 days of its occurrence. The Mayor shall submit a nominee to the Council for confirmation within 30 days of the vacancy. Any Board member appointed to fill a vacancy shall serve until the end of the original term.
This section is referenced in § 1-204.114, § 1-309.07, § 1-1001.08, § 1-1001.17, and § 38-2651.
D.C. Law 13-149 in subsec. (e), designated the existing text as par. (1), in par. (1) as so designated, substituted “a vacancy of an elected member of” for “a vacancy on,”, and added par. (2); in subsec. (f), substituted “a vacancy of an elected member of” for “a vacancy on”; and added subsec. (g).
D.C. Law 15-18, in subsec. (a), rewrote par. (1), and substituted “on the 1st Tuesday after the 2nd Monday in September of each even-numbered year” for “on the 1st Tuesday in May of each even-numbered year which is a presidential election year, and in other even-numbered years, on the 1st Tuesday after the 2nd Monday in September” in par. (3)(A).
D.C. Law 15-218, in par. (1) of subsec. (b), inserted “, except in instances when the time established for closing the polls is extended pursuant to a federal or District court order or any other order.” following “7:00 a.m. to 8:00 p.m.”.
D.C. Law 17-353 validated a previously made technical correction in subsec. (a)(1).
D.C. Law 19-7, in subsec. (a)(1), substituted “election year or the 1st Tuesday in April” for “election year or the 1st Tuesday after the 2nd Monday in September” and substituted “The primary under § 1-1001.05(b) shall be held on the 1st Tuesday in April of each presidential election year.” for “The primary under § 1-1001.05(b) shall be held on the 2nd Tuesday in February of each presidential election year.”; and, in subsecs. (a)(3)(A), (B), (C), substituted “shall be held on the 1st Tuesday in April” for “shall be held on the 1st Tuesday after the 2nd Monday in September”.
D.C. Law 19-124, in subsec. (e)(1), substituted “Board of Elections” for “Board of Elections and Ethics”.
The 2013 amendment by D.C. Law 20-60 substituted “or by § 1-204.35(b), primary elections of each political party for the office of Chairman of the Council, Mayor and Attorney General” for a comma and “primary elections of each political party for the office of Mayor and Chairman” in (a)(3)(C); substituted “authorized by this subchapter or by § 1-204.35(b)” for “authorized by this subchapter” in (a)(4); and substituted “Delegate, member of the Council, Mayor, Attorney General, member of the Board of Education, or winner of a primary election for the office of Delegate, member of the Council, Mayor, or Attorney General” for “Delegate, Mayor, member of the Council, member of the Board of education, or winner of a primary election for the office of Delegate, Mayor, or member of the Council” in (d)(1).
The 2015 amendment by D.C. Law 20-167 substituted “State Board of Education“ for “Board of Education“ in (a)(5), (d)(1), and twice in (f); and rewrote (d)(2)(A) and (e).
The 2015 amendment by D.C. Law 20-273 substituted “2nd Tuesday in June” for “1st Tuesday in April” in (a)(1); and rewrote (a)(3).
Advisory Neighborhood Commissions, elections, see § 1-309.05 et seq.
Recall of elected public officials, filling of vacancies, see § 1-204.114.
For temporary (90 days) amendment of this section, see § 2(c) of Primary Date Alteration Congressional Review Emergency Amendment Act of 2017 (D.C. Act 22-106, July 25, 2017, 64 DCR 7388).
For temporary (90 days) amendment of this section, see § 2(c) of Primary Date Alteration Emergency Amendment Act of 2017 (D.C. Act 22-75, June 5, 2017, 64 DCR 6080).
For temporary (90 day) amendment of section, see § 2(b) of Presidential Primary Election Emergency Amendment Act of 2003 (D.C. Act 15-43, March 24, 2003, 50 DCR 2805).
For temporary (90 day) amendment of section, see § 2(b) of Presidential Primary Petition Waiver and Democratic State Committee Elections Emergency Act of 2003 (D.C. Act 15-135, July 29, 2003, 50 DCR 6857).
For temporary (90 day) amendment of section, see § 2 of Presidential Primary State Committee Elections Emergency Amendment Act of 2003 (D.C. Act 15-258, December 5, 2003, 50 DCR 11011).
For temporary (90 day) amendment of section, see § 2(e) of Help American Vote Emergency Amendment Act of 2003 (D.C. Act 15-283, December 18, 2003, 51 DCR 197).
For temporary (90 day) amendment of section, see § 2(e) of Help America Vote Congressional Review Emergency Amendment Act of 2004 (D.C. Act 15-405, March 18, 2004, 51 DCR 3650).
For temporary (90 day) amendment of section, see § 2(e) of Help America Vote Congressional Review Emergency Amendment Act of 2004 (D.C. Act 15-658, December 29, 2004, 52 DCR 492).
For temporary (90 day) amendment of section, see § 2(h) of Omnibus Election Reform Emergency Amendment Act of 2009 (D.C. Act 18-236, November 30, 2009, 56 DCR 9154).
For temporary (90 day) amendment of section, see § 401(g)(5) of Board of Ethics and Government Accountability Establishment and Comprehensive Ethics Reform Emergency Amendment Act of 2012 (D.C. Act 19-298, January 29, 2012, 59 DCR 683).
For temporary addition of (a-1), see § 2 of the Omnibus Alcoholic Beverage Regulation Emergency Amendment Act of 2012 (D.C. Act 19-598, January 16, 2013, 60 DCR 1015), applicable upon the inclusion of its fiscal effect in an approved budget and financial plan.
For temporary (90 days) amendment of this section, see § 2(b) of the Election Code Conforming Emergency Act of 2013 (D.C. Act 20-143, July 31, 2013, 60 DCR 11799, 20 DCSTAT 1990).
For temporary (90 days) amendment of this section, see § 2(b) of the Party Officer Elections Emergency Amendment Act of 2013 (D.C. Act 20-210, November 7, 2013, 60 DCR 15781).
For temporary (90 days) amendment of this section, see §§ 2(b) and 3 of the Party Officer Elections Congressional Review Emergency Amendment Act of 2014 (D.C. Act 20-286, February 20, 2014, 61 DCR 1606).
For temporary (90 days) amendment of this section, see § 2(d) of the Special Election Reform Emergency Amendment Act of 2014 (D.C. Act 20-617, Jan. 28, 2015, 62 DCR 1908, 21 STAT 794).
For temporary (225 day) amendment of section, see § 2(b) of Presidential Primary Petition Waiver and Democratic State Committee Elections Temporary Act of 2003 (D.C. Law 15-55, December. 9, 2003, law notification 51 DCR 1790).
For temporary (225 day) amendment of section, see § 2 of Presidential Primary State Committee Elections Temporary Amendment Act of 2003 (D.C. Law 15-97, March 10, 2004, law notification 51 DCR 3617).
For temporary (225 day) amendment of section, see § 2(e) of Help America Vote Temporary Amendment Act of 2004 (D.C. Law 15-120, March 30, 2004, law notification 51 DCR 3807).
For temporary (225 days) amendment of this section, see § 2(b) of the Party Officer Elections Temporary Amendment of 2013 (D.C. Law 20-72, February 22, 2014, 61 DCR 30).
For temporary (225 days) repeal of D.C. Law 20-273, § 5, see § 21 of the Fiscal Year 2016 Budget Support Clarification Temporary Amendment Act of 2015 (D.C. Law 21-76, Feb. 27, 2016, 63 DCR 264).
“Section 206(a) of the District of Columbia Delegate Act,” referred to in subsection (a)(3)(A) of this section, is § 206(a) of the Act of September 22, 1970, Pub. L. 91-405, and provided for the nomination and election of the 1st Delegate to the House of Representatives from the District of Columbia.
Section 2(c)(2)(C) of D.C. Law 22-13 purported to strike language changed by D.C. Law 20-273 after it was included in an approved budget and financial plan. The amendment made by D.C. Law 22-13 has been given effect as if the amendment made by D.C. Law 20-273 had not been given effect.
Section 7018 of D.C. Law 21-160 repealed § 5 of D.C. Law 20-273. Therefore the changes made to this section by D.C. Law 20-273 have been given effect.
Voting accessibility for the elderly and handicapped: Public Law 98-435 enacted the Voting Accessibility for the Elderly and Handicapped Act.
Section 3(b) of D.C. Law 17-156 amended this section subject to congressional enactment of section 2 of D.C. Law 17-156. As of the publication of this note, congress has not enacted section 2 of D.C. Law 17-156.
Applicability of D.C. Law 20-273: Section 5 of D.C. Law 20-273 provided (a) that the act shall apply upon the date of inclusions of its fiscal effect in an approved budget and financial plan; (b) that the Chief Financial Officer shall certify the date of the inclusion of the fiscal effect in an approved budget and financial plan, and provide notice to the Budget Director of the Council of the certification; and (c) that the Budget Director shall cause the notice of the certification to be published in the District of Columbia Register and that the date of publication of the notice of the certification shall not affect the applicability of the act.
The Budget Director of the Council of the District of Columbia has determined that the fiscal effect of D.C. Law 20-273 has been included in an approved budget and financial plan.

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On March 7, 2000, the Center received Respondent�s Response by email with hardcopy received on March 9, 2000. On March 10, 2000, the Center sought clarification of certain items in the Response and in correspondence from Complainant. On March 24, 2000, after receiving their completed and signed Statements of Acceptance and Declarations of Impartiality and Independence, the Center notified the parties of the appointment of a three-arbitrator panel consisting of Mr. Richard W. Page as the Presiding Panelist, Mr. Mark Partridge as Complainant�s party-appointed panelist and Mr. G. Gervaise Davis, as Respondent�s party-appointed panelist.
The Panel met by telephone conference call on April 5, 2000. In the Panel�s Procedural Order No.1delivered to the Center and the parties, the Presiding Panelist confirmed the Panel�s finding that the resolution of the present dispute involved extraordinary circumstances warranting the extension of the deadline to deliver the Decision until April 20, 2000.
After Respondent had registered the domain name <crew.com>, an employee of Complainant invited Respondent to join Complainant�s affiliate network. Pursuant to this affiliate program, Respondent was permitted to place a banner ad on Respondent�s website which was linked to Complainant�s website. Complainant promised Respondent a commission for sales made to customers using that link, but has apparently defaulted on its obligation. The only material on Respondent's website was the banner ad linked to Complainant's website.
E. Respondent contends that it has rights and legitimate interest in <crew.com> because of Respondent�s legitimate business of developing domain names for its own use and for sale to its clients.
F. Respondent contends that its registration and use of <crew.com> is in good faith because it had no actual knowledge of the CREW or J. CREW trademarks when it registered the domain name and because it was asked to join Complainant�s affiliates group.
The domain name presently at issue is <crew.com>. The "crew" portion of this domain name is identical to Complainant�s trademark CREW. Therefore, a majority of the Panel finds that the requirement of the Policy paragraph 4(a)(i) is satisfied.
Respondent has given various justifications for its registration of <crew.com>, claiming that the domain name could be used for rowing or for construction teams. Shifting justifications for the selection of a domain name has been deemed to support a finding of bad faith. See Northern Light Technology, Inc. v. Northern Lights Club, 2000 U.S. Dist. LEXIS 4732 (D. Mass. March 31, 2000)(finding the defendant�s various explanations to be mere pretext).
Respondent's registration prevents Complainant from using the <crew.com> or <j.crew.com> domain names corresponding to Complainant�s registered trademarks. We recognize that Complainant has registered the domain name <jcrew.com>. However, the ability of the Complainant to obtain alternate domain names should not make this provision inapplicable. Otherwise, the provision would always be inapplicable for it would nearly always be possible for the Complainant to obtain an alternative domain name or even to register the same name as its trademark in another gTLD or ccTLD.
A majority of the Panel has considered the decision in General Machine Products Company, Inc. v. Prime Domains, ICANN Case No. FA0001000092531, finding that registration of the domain name <craftwork.com> was not an abusive registration. In General Machine, Respondent�s alter ego Telepathy, Inc. (then known as Prime Domains) was in the business of selling generic and descriptive domain names. Respondent demonstrated that the phrase "craftwork" was commonly used as a descriptive term, and claimed that it registered the domain name without actual knowledge of the complainant's trademark because it had widespread use as a descriptive or generic term.
In reaching our opinion we are well aware that trademarks are not "rights in gross" and we do not think our opinion grants trademark owners rights beyond those recognized under applicable law, particularly in the United States where Congress has enacted the Anti-Cybersquatting Consumer Protection Act ("ACPA"), in part, to prevent trafficking in domain names that are the same as the trademarks of another. See, for example, Cello Holdings, L.L.C. v. Lawrence-Dahl Companies, 2000 U.S. Dist. LEXIS 3936 (S.D.N.Y. March 30, 2000)(denying cross motions for summary judgment due to factual disputes); Northern Light Technology, Inc. v. Northern Lights Club, 2000 U.S. Dist. LEXIS 4732 (D. Mass. March 31, 2000)(refusing to modify preliminary injunction against northernlights.com domain name based on ACPA). In Cello Holdings, the Court stated that a reasonable fact finder could conclude the defendant had a bad faith intent to profit from registration of a domain name that matched the plaintiff's CELLO mark because " he had no proprietary rights to the �Cello� mark when he registered �cello.com,� he had not previously used it, and he had engaged in a pattern of registering domain names that could be of interest to others and then trying to sell them." Thus, our conclusion--that the Respondent's registration of <crew.com> was an abusive registration--is consistent with the scope of protection afforded consumers and trademark owners under U.S. law.
Unfortunately, the biased test the panel has used here automatically creates a situation, in every case, where there is only one element left to test, if the Complainant has a registered trademark and the domain registered by the Respondent is similar to the Complainant�s registered trademark. Since every ICANN case, by definition, has to have these two other elements the decision obviates two thirds of the tests set up under the ICANN Policy. The majority view boils each case down to the single question, "Did the Respondent have a specific bona fide purpose or use in mind prior to acquisition of the domain name?" It rejects the idea that someone might not know exactly how he or she intends to use the domain name, and makes such uncertainty bad faith registration. That is not what the Policy we, as rule bound arbitrators, are directed to apply by the Rules.
The majority has identified the second element as "knowledge." This test, however, is always satisfied per se by what the majority identifies as automatic "constructive" notice of another's trademark rights. This is not a test, since this element would be satisfied for all registered trademarks by virtue of the simple fact of registration under the majority�s logic.
The parties to this dispute are not unfamiliar with each other. Long prior to this dispute, Respondent was solicited by Complainant to become part of Complainant�s affiliate network advertising its goods. Respondent agreed to permit Complainant to place banner ads on Respondent's Web site that were linked to Complainant�s web site. Complainant promised Respondent to pay a commission on sales made to customers using that link, but defaulted on its obligation to pay the commission. At one time Complainant�s attorney apparently unilaterally offered to purchase the <crew.com> domain name from Respondent. When it became clear that Respondent would not sell the domain name for a nominal sum, Complainant revoked Respondent's participation in the affiliate network and instituted this action. One might question whether this does not suggest that, in fact, this is a case of reverse domain name hijacking in which the Complainant has unilaterally decided this is a domain it would now like to have, after encouraging its use by another, and that it is now trying to use the ICANN rules to achieve what it cannot do by negotiations for the purchase of the name.
CREW2 (kr�) v. Chiefly British. A past tense of crow2.
As discussed below, the fact that CREW is a generic term permeates any analysis for trademark purposes. The majority's contention that any trademark registration by Complainant means that Respondent should automatically be imbued with constructive knowledge of the existence of the registration for purposes of the ICANN Policy, while incorrect in and of itself, is particularly inappropriate for a generic term. Additionally, as numerous courts have stated, a trademark owner is not by definition entitled to all domain names incorporating their trademark or even those identical to their trademark. See, Judge Pregerson�s excellent discussion of this issue in Lockheed Martin Corp. v. Network Solutions, Inc., 985 F.Supp. 949 (C.D. Cal. 1997), aff'd, 194 F.3d 980 (9th Cir. 1999). This is especially so where the mark is generic and a common term. See, Cello Holdings, LLC v. Lawrence-Dahl Companies, 2000 U.S. Dist. LEXIS 3936 (S.D. N.Y. 2000), denying cross motions for summary judgment because the Court felt the Plaintiff could not prove bad faith registration under the ACPA because of the generic nature of the word Cello, as a musical instrument. In Cello the defendant even acknowledged that it had sought to sell the domain name to others, as part of his business of selling domain names for generic use. This is exactly the situation here, and the same logic should apply.
Furthermore, the majority seems to assume that a trademark owner has some sort of God given right to use the trademark to the exclusion of others. As Justice Holmes observed, "A trademark does not confer a right to prohibit the use of the word or words�. A trademark only gives the right to prohibit the use of it so far as to protect the owner's goodwill against the sale of another's product as his." Prestonettes, Inc. v. Coty, 264 U.S. 359 (1924). In short, the Complainant does not own all rights to the generic word CREW by virtue of its trademark registration.
Despite the majority's contention that Complainant�s registration of the CREW trademark somehow automatically imputes to the Respondent a violation of this element, there is absolutely no such evidence before this panel. While it is possible that the Respondent acquired the domain name for the purpose selling renting or otherwise transferring the domain name, because CREW is a common word, it cannot merely be assumed that Respondent's intent was to sell and transfer the domain name to the Complainant.
This element of the bad faith analysis also fails for two reasons. First, the name is generic and as such does not have an immediate relationship to the Complainant any more than it does to thousands of CREW teams around world or any of a number of its other meanings. (Again, see the Hasbro decision supra). Second, there is no evidence that the Respondent in any way attempted to create confusion as to the source of origin, sponsorship, or ownership of the domain name. Any confusion which may have occurred was at least, in part, due to the conduct of the Complainant whose own solicitation of the link on the web site of www.crew.com caused an implied relationship. As noted above, at the behest of Complaint�s own representative, the Respondent was encouraged by an offer of a commission, to, and did, place a banner ad on the CREW.com web site to direct traffic to the Complainant�s web site. In my judgment, it is highly illogical to find that by placing the banner ad, solicited and sanctioned by the Complainant, that directing traffic to the Complainant�s business should be considered an intentional attempt to create confusion as to the source of the domain. To the contrary, it seems an admission by Complainant that there is no confusion likely.
We are not legislators, but arbitrators. The majority, in an effort to stop a practice that it seems to take upon itself to believe is an unstated purpose of the ICANN Policy, has completely over-stepped its mandate as arbitrators. The decision creates a new and unauthorized test out of whole cloth, based on assumptions of fact by arbitrators without evidence on the subject, instead of using the appropriate and carefully crafted three step test for required evidence set out by the ICANN� Policy and Rules. In my judgment, the majority's decision prohibits conduct which was not intended to be regulated by the ICANN policy. This creates a dangerous and unauthorized situation whereby the registration and use of common generic words as domains can be prevented by trademark owners wishing to own their generic trademarks in gross. I cannot and will not agree to any such decision, which is fundamentally wrong. I respectfully dissent from the majority decision of my fellow professional panelists.
1. Found in part in 15 U.S.C. �1125(d).

matches: v. v. v. v. v. v. v. v.


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Еще значения слова и перевод TURN с английского на русский язык в англо-русских словарях.
Что такое и перевод TURN с русского на английский язык в русско-английских словарях.
More meanings of this word and English-Russian, Russian-English translations for TURN in dictionaries.
TURN — (v. t.) To translate; to construe; as, to turn the Iliad.
TURN — (v. t.) Hence, to give form to; to shape; to mold; to put in proper condition; to adapt.
TURN — ( v. t. ) To translate; to construe; as, to turn the Iliad.
TURN — ( v. t. ) To sicken; to nauseate; as, an emetic turns one's stomach.
TURN — ( v. t. ) Hence, to give form to; to shape; to mold; to put in proper condition; to adapt.
TURN — ( v. i. ) To undergo the process of turning on a lathe; as, ivory turns well.
TURN — ( v. i. ) To result or terminate; to come about; to eventuate; to issue.
TURN — ( v. i. ) To change from ebb to flow, or from flow to ebb; -- said of the tide.
TURN — ( v. i. ) To bring down the feet of a child in the womb, in order to facilitate delivery.
TURN — ( v. i. ) To become inclined in the other direction; -- said of scales.
TURN — ( v. i. ) To become giddy; -- said of the head or brain.
TURN — ( v. i. ) To become acid; to sour; -- said of milk, ale, etc.
TURN — ( v. i. ) To be nauseated; -- said of the stomach.

matches: v. v. v. v. v. v. v. v. v. v. v.


text:
Book: H. Derksen and G. Kemper, “Computational Invariant Theory”, Encyclopaedia of Mathematical Sciences 130, Springer, Heidelberg, second edition, 2015 (first edition 2002).
H. Derksen and V. Makam, “Polynomial degree bounds for matrix semi-invariants”, Adv. Math. 310, p 44-63, 2017.
H. Derksen and V. Makam, “Generating invariant rings of quivers in arbitrary characteristic”, J. Algebra 489, p. 435-445, 2017.
H. Derksen and V. Makam, “Degree bounds for semi-invariant rings of quivers”, J. Pure Appl. Algebra 222 (10), p. 3282-3298, 2018.
H. Derksen and G. Kemper, “Computing invariants of algebraic groups in arbitrary characteristic”, Adv. Math.217 (5), p. 2089-2129, 2008.
H. Derksen, E. Jeandel and P. Koiran, “Quantum automata and algebraic groups”, J. Symbolic Comput. 39 (3-4), 357-371, 2005.
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H. Derksen and G. Kemper, “On global degree bounds for invariants”, In Invariant Theory in all characteristics, CRM Proc. Lecture Notes 35, p. 37-41, Amer. Math. Soc., Providence, RI, 2004.
H. Derksen, “Constructive invariant theory”, In Invariant Theory in all characteristics, CRM Proc. Lecture Notes 35, p. 11-36, Amer. Math. Soc., Providence, RI, 2004.
H. Derksen, “Restrictions of algebraic group representations to finite subgroups”, Bull. London Math. Soc. 34 (2), p. 165-173, 2002.
H. Derksen, “Polynomial bounds for rings of invariants”, Proc. Amer. Math. Soc. 129 (4), p. 955-963, 2001.
H. Derksen, “Computation of invariants for reductive groups”, Adv. Math. 141 (2), p. 366-384, 1999.
H. Derksen and H. Kraft, “Constructive invariant theory”, In Algèbre non-commutative, groups quantiques et invariants (Reims 19995), Sémin. Congr. 2, p. 221-244, Soc. Math. France, Paris, 1997.
Book: H. Derksen and J. Weyman, “An Introduction to Quiver Representations”, Graduate Studies in Mathematics 184, American Mathematical Society, 2007.
H. Derksen and J. Fei, “General presentations of algebras”, Adv. Math. 278, p. 210-237, 2015.
H. Derksen, B. Huisgen-Zimmermann and J. Weyman, “Top-stable degenerations of finite-dimensional algebras II”, Adv. Math. 259, p. 730-765, 2014.
H. Derksen and J. Weyman, “The combinatorics of quiver representations”, Ann. Inst. Fourier (Grenoble) 61 (3), p. 1061-1131, 2011.
H. Derksen, J. Weyman and A. Zelevinsky, “Quivers with potentials and their representations II: applications to cluster algebras”, J. Amer. Math. Soc. 23 (3), p. 749-790, 2010.
H. Derksen, J. Weyman and A. Zelevinsky, “Quivers with potentials and their representations I: Mutations”, Selecta Math. (N.S.) 14 (1), p. 59-119, 2008.
H. Derksen and T. Owen, “New graphs of finite mutation type”, Electron. J. Combin. 15 (1): Research Paper 139, 15, 2008.
H. Derksen, A. Schofield and J. Weyman, “On the number of subrepresentations of a general quiver representation”, J. London Math. Soc. (2) 76 (1), p. 135-147, 2007.
C. Chindris, H. Derksen and J. Weyman, “Counterexamples to Okounkov’s log-concavity conjecture”, Compos. Math. 143 (6), p. 1545-1557, 2007.
H. Derksen and J. Weyman, “Quiver representations”, Notices Amer. Math. Soc. 52 (2), p. 200-206, 2005.
H. Derksen and J. Weyman, “Semi-invariants for quivers with relations”, J. Algebra 258 (1), p. 216-227, 2002.
H. Derksen and J. Weyman, “On the Littlewood-Richardson polynomials”, J. Algebra 255 (2), p. 247-257, 2002.
H. Derksen and J. Weyman, “On the canonical decomposition of quiver representations”, Compositio Math. 133 (3), p. 245-265, 2002.
H. Derksen and J. Weyman, “Generalized quivers associated to reductive groups”, Colloq. Math. 94 (2), p. 151-183, 2002.
H. Derksen and J. Weyman, “Semi-invariants of quivers and saturation for Littlewood-Richardson coefficients”, J. Amer. Math. Soc. 13(3), p. 457-479, 2000.
H. Derksen, “A general theory of singular values with applications to signal denoising“, SIAM J. on Applied Algebra and Geometry, to appear, 2018.
H. Derksen, V. Makam, “Explicit tensors of border rank 2d-2 in K2oK2oK2 in arbitrary characteristic“, Linear and Multilinear Algebra, p. 1-13, 2018.
H. Derksen and V. Makam, “On non-commutative rank and tensor rank”, Linear and Multilinear Algebra 66 (6), p. 1069–1084, 2018.
H. Derksen, “On the equivalence between low-rank matrix completion and tensor rank”, Linear and Multilinear Algebra 66 (4), p. 645-667, 2018.
H. Derksen, “On the nuclear norm and the singular value decomposition of tensors”, Found. Comput. Math. 16 (3), p. 779-811, 2016.
H. Derksen, “Matrix completion and tensor rank”, Linear and Multilinear Algebra 64 (4), p. 680-685, 2016.
H. Derksen and Z. Teitler, “Lower bound for ranks of invariant forms”, J. Pure Appl. Algebra 219 (12), p. 5429-5441, 2015.
H. Derksen, “Kruskal’s uniqueness inequality is sharp”, Linear Algebra Appl. 438 (2), p. 708-712, 2013.
H. Derksen, R. Eggermont and A. Snowden, “Topological Noetherianity for cubic polynomials”, Algebra & Number Theory 11 (9), p. 2197-2212, 2017.
H. Derksen, “Hilbert series of subspace arrangements”, J. Pure Appl. Algebra 209 (1), p. 91-98, 2007.
H. Derksen, “Universal denominators of Hilbert series”, J. Algebra 285 (2), p. 586-607, 2005.
H. Derksen and J. Sidman, “Castelnuovo-Mumford regularity by approximation”, Adv. Math 188 (1), p. 104-123, 2004.
H. Derksen, “The fundamental theorem of algebra and linear algebra”, Amer. Math. Monthly 110 (7), p. 620-623, 2003.
H. Derksen and J. Sidman, ”A sharp bound for the Castelnuovo-Mumford regularity of subspace arrangements”, Adv. Math. 172 (2), p. 151-157, 2002.
H. Derksen, A. van den Essen and W. Zhao, “The Gaussian moments conjecture and the Jacobian conjecture”, Israel J. Math. 219 (2), p. 917-928, 2017.
H. Derksen, A. van den Essen, D. R. Finston and S. Maubach, “Unipotent group actions on affine varieties”, J. Algebra 336, p. 200-208, 2011.
H. Derksen. O. Hadas and L. Makar-Limanov, “Newton polytopes of invariants of additive group actions”, J. Pure Appl. Algebra 156 (2-3), p. 187-197, 2001.
H. Derksen, F. Kutzschebauch and J. Winkelmann, “Subvarieties of Cn with non-extendable automorphisms”, J. Reine Angew. Math. 509, p. 213-235, 1999.
Derksen and F. Kutzschebauch, “Global holomorphic linearization of actions of compact Lie groups on Cn”, In Complex geometric analysis in Pohang (1997), Contemp. Math. 22, p. 201-210, Amer. Math. Soc., Providence, RI, 1999.
H. Derksen and F. Kutzschebauch, “Nonlinearizable holomorphic group actions”, Math. Ann. 311 (1), p. 41-53, 1998.
H. Derksen, “Quotients of algebraic group actions”, In Automorphisms of affine spaces (Curaçao, 1994), p. 191-200, Kluwer Acad. Publ., Dordrecht, 1995.
H. Derksen, “Inverse degrees and the Jacobian conjecture”, Comm. Algebra 22 (12), p. 4793-4794, 1994.
H. Derksen, “The kernel of a derivation”, J. Pure Appl. Algebra 84 (1), p. 13-16, 1993.
H. Derksen and A. Fink, “Valuative invariants for polymatroids”, In 22nd International Conference on Formal Power Series and Algebraic Combinatorics (FPSAC 2010), Nancy, 2010.
H. Derksen, “The graph isomorphism problem and approximate categories”, J. Symbolic Comput. 59, p. 81-112, 2013.
H. Derksen and A. Fink, “Valuative invariants for polymatroids”, Adv. Math. 225 (4), p. 1840-1892, 2010.
H. Derksen, “Symmetric and quasi-symmetric functions associated to polymatroids”, J. Algebraic Combin. 30 (1), p. 43-86, 2009.
H. Derksen, “Error-correcting codes and Bh–sequences”, IEEE Trans. Inform. Theory 50 (3), p. 476-485, 2004.
H. Derksen, C. Eggermont and A. van den Essen, “Multimagic squares”, Amer. Math. Monthly 114 (8), p. 703-713, 2007.
H. Derksen and D. Masser, “Linear equations over multiplicative groups, recurrences, and mixing III”, Ergodic Th. Of Dyn. Systems, p. 1-19, 2017, online.
H. Derksen and D. Masser, “Linear equations over multiplicative groups, recurrences, and mixing II”, Indag. Math. (N.S.) 26 (11), p. 113-136, 2015.
H. Derksen and D. Masser, “Linear equations over multiplicative groups, recurrences, and mixing I”, Proc. London Math. Soc. (3), 104 (5), p. 1045-1083, 2012.
H. Derksen, “A Skolem-Mahler-Lech theorem in positive characteristic and finite automata”, Invent. Math. 168 (1), p. 175-224, 2007.
S. Ansari, N. Farzaneh, M. Heung, K. Oldham, H. Derksen K. R. Ward and K. Najarian, “Real-time detection of intradialytic hypotension using a novel polyvinylidene fluoride based sensor”, In IEEE-EMBS International Conference on Biomedical and Health Informatics (BHI), 2016.
R. Fazlali, N. Karimi, S.M. R. Soroushmehr, S. Samavi, B. Nallamothu, H. Derksen and K. Najarian, “Robust catheter identification and tracking in X-ray angiographic sequences”, Engineering in Medicine and Biology (EMBC), 37th Annual International Conference of the IEEE, p. 7901-7904, 2015.
S. Kazeminia, N. Karimi, S.M.R. Soroushmehr, S. Samavi, H.Derksen and K. Najarian, “Region of interest for lossless compression of bone X-ray images”, Engineering in Medicine and Biology (EMBC), 37th Annual International Conference of the IEEE, p. 3061-3064, 2015.
S.M.R. Soroushmehr, A. Bafna, S. Schlosser, K. Ward, H. Derksen and K. Najarian, “CT image segmentation in traumatic brain injury”, Engineering in Medicine and Biology (EMBC), 37th Annual International Conference of the IEEE, p. 2973-2976, 2015.
C. Biwer, A. Rothberg, H. IglayReger, H. Derksen, C. F. Burant and K. Najarian, “Windowed persistent homology: a topological signal processing algorithm applied to clinical obesity data”, PLOS one 12 (5): e0177696, 2017.
M. Nejati, S. Samavi, H. Derksen and K. Najarian, “Denoising by low-rank and sparse representation”, J. Vis. Commun. Imag. R. 36, p 28-39, 2016.
A. Belle, S. Ansari, M. Spadafore, V. Convertino, K. R. Ward, H. Derksen and K. Najarian, “A signal processing approach for detection of hemodynamic instability before decompensation”, PLOS one 11 (2):e014544, 2016.
Y. Ma, A. Y. Yang, H. Derksen and R. Fossum, “Estimation of subspace arrangements with applications in modeling and segmenting mixed data”, SIAM Review 50 (3), p. 413-458, 2008.
Y. Ma, H. Derksen, W. Hong and J. Wright, “Segmentation of multivariate mixed data via lossy coding and compression”, IEEE Trans. On Pattern Analysis and Machine Intelligence (PAMI) 29 (9), p. 1546-1562, 2007.
J. Wright, W. Hong, Y. Ma and H. Derksen, “Segmentation of multivariate mixed data via lossy coding and compression”, In SPIE conference on Visual Communications and Image Processing (VCIP), 2007.

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Entitlement to service connection for diabetes mellitus type II due to herbicides is granted.
Entitlement to service connection for Parkinson’s disease due to herbicides is granted.
1. Affording the Veteran the benefit of the doubt, based on his statements and their consistency with the available records, the Veteran is presumed exposed to herbicides in Korat, Thailand during the Vietnam era.
2. The Veteran has a current diagnosis of diabetes mellitus type II and Parkinson’s disease.
1. Resolving reasonable doubt in the Veteran’s favor, diabetes mellitus type II was incurred as a result of service.  38 U.S.C. §§ 1101, 1110, 1113, 1116, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).
2. Resolving reasonable doubt in the Veteran’s favor, Parkinson’s disease was incurred as a result of service.  38 U.S.C. §§ 1101, 1110, 1113, 1116, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017).
The Veteran served on active duty from March 1965 to January 1991.
This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2013 rating decision of the Reno, Nevada, Regional Office (RO) of the Department of Veterans Affairs (VA).
1. Entitlement to service connection for diabetes mellitus type II due to herbicides is granted.
2. Entitlement to service connection for Parkinson’s disease due to herbicides is granted.
The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  Given the favorable outcome in this decision that represents a full grant of these issues, further explanation of how VA has fulfilled the duties to notify and assist is not necessary.
Pertinent VA law and regulations provide that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017).  Generally, this requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303(d).
Alternatively, service connection may be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service.  38 C.F.R. § 3.303(b).  When a chronic disease becomes manifest to a degree of 10 percent within one year of a veteran’s discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran’s period of service.  38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017).
VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected if they manifest to a compensable degree at any time after service.  38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a).  Diabetes mellitus type II and Parkinson’s disease are listed among the diseases presumed to be associated with Agent Orange exposure.  38 U.S.C. § 1116(a)(2)(H); 38 C.F.R. § 3.309(e).
The Veteran has claimed exposure to herbicides while stationed in Thailand.  VA procedures for verifying exposure to herbicides in Thailand during the Vietnam Era are detailed in the VBA Adjudication Manual, M21-1, IV.ii.2.C.  VA has determined that there was significant use of herbicides on the fenced-in perimeters of military bases in Thailand intended to eliminate vegetation and ground cover for base security purposes as evidenced in a declassified Vietnam era Department of Defense document titled “Project CHECO Southeast Asia Report: Base Defense in Thailand.”  Special consideration of herbicide exposure on a facts-found or direct basis should be extended to those Veterans whose duties placed them on or near the perimeters of Thailand military bases.  This allows for presumptive service connection of the diseases associated with herbicide exposure.
The majority of troops in Thailand during the Vietnam Era were stationed at the Royal Thai Air Force Bases of U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, and Don Muang.  If a veteran served on one of these air bases as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by MOS (military occupational specialty), performance evaluations, or other credible evidence, then herbicide exposure should be acknowledged on a facts-found or direct basis.  This applies to the Vietnam Era, from February 28, 1961, to May 7, 1975.  See M21-1, M21-1, IV.ii.1.H.5.b.
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b) (2012).
A March 2015 VA memo states that the Veteran’s Military Personnel Records confirm the Veteran’s military specialty was 30170, Aircraft Radio Technician, and he was stationed at Korat Royal Thai Air Force Base (RTAFB) from November 1970 to October 1971.  Military personnel records in the claims file support these facts.
During the Veteran’s April 2018 Board hearing, the Veteran credibly testified that he served in Korat Air Base, Thailand.  He stated he was an Aircraft Radio Repairman.  He stated he worked on the flight line which is at the perimeter of the airbase.  He also stated he lived, ate, and worked within the draft zone.
The Board credits the Veteran’s statements and gives the Veteran the benefit of the doubt in finding that his service included the air base perimeter.  The Veteran’s statements are consistent with the evidence of record.
As such, the Board finds that the Veteran served near the air base perimeter in Korat, Thailand during the Vietnam era.  Herbicide exposure is conceded on this basis.  See M21-1, M21-1, IV.ii.1.H.5.b.
VA treatment records confirm that the Veteran has a current diagnosis of diabetes mellitus type II and Parkinson’s Disease.  Based on the finding of in-service exposure to herbicides, diabetes mellitus type II and Parkinson’s Disease are presumed to have been incurred in service.  38 C.F.R. §§ 3.307, 3.309 (2017).  Service connection for diabetes mellitus type II and Parkinson’s Disease therefore has been established.  38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017).


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As this week comes to a close, LISI provides members with Jeff Baskies’ “Top 10” planning ideas to contemplate in the remainder of 2010.
Jeffrey A. Baskies is an honors graduate of Trinity College and Harvard Law School. He is a Florida Bar certified expert in Wills, Trusts and Estates law who practices at Katz Baskies LLC, a Boca Raton, FL, boutique trusts & estates, tax & business law firm. Jeff has been a frequent LISI contributor. In addition, his articles have been published in Trusts & Estates, Estate Planning, Probate and Property, the Florida Bar Journal, Lawyers Weekly USA and other journals. He's been frequently quoted as an expert estate planner in the Wall Street Journal, the New York Times, the Boston Globe, Forbes Magazine and other news publications. Jeff is listed in Best Lawyers in America, in the Worth magazine list of the Top 100 attorneys, in Florida Trend's Legal Elite, in Florida SuperLawyers (Top 100 in Florida) and in other similar publications. He can be reached at www.katzbaskies.com.
There is no doubt 2010 has been a watershed year for transfer tax planning. Some would say it has been a watershed year because so many clients have shed so many tears trying to figure out what to do.
Actually, and more literally, 2010 is and has been a transition year. While we still don’t know what type of tax reality we are transitioning to, we can reasonably expect that the tax cost of transferring wealth with be higher in the near future. In other words, after December 31, 2010, we have reason to expect that the tax situation for transferring wealth is likely to be worse – not better - for clients.
Nevertheless, and perhaps as a result, there are still important opportunities for clients to consider before the end of the year.
10. Review All Estate Plans as Well as Nuptial agreements: It’s Not Too Late, Is It?
Also, it is important for those of us who work with our clients on nuptial agreements (and for all of our clients with nuptial agreements) to have them reviewed in case of death in 2010. In particular, clients should beware of provisions in nuptials tied to the federal estate tax and/or the estate or GST exemption. For example, a nuptial might say that the 1st spouse to die is free to leave “the maximum amount that will pass free of GST tax to his grandchildren.” And the wife may have waived all of her rights based upon the assumption that the husband’s estate after the GST tax exemption portion would be more than sufficient to support her. Such a plan must be reconsidered in light of 2010 tax laws.
While reviewing nuptials, it is also a good idea to revisit any “altered net worth” provisions in nuptials. Some nuptial agreements have “savings” clauses that are tied to the net worth of the wealthier spouse which may have been impacted or triggered by the dramatic market declines of the past few years.
Nuptial agreements could be ticking time bombs if they are not reviewed. Ultimately courts could choose to void them, if it turns out one spouse fails to receive the “benefit of the bargain” because of a changed tax law nobody realistically contemplated when the document was drafted.
For clients with GST non-exempt trusts, this is the year to consider taxable distributions/terminations. If clients have non-exempt trusts, it is imperative that they consider making distributions before the end of the year. Even if they chose not to do so, advisors will benefit from at least discussing the issue with any clients managing non-exempt trusts.
For clients considering gifting, outright gifts to grandchildren (and lower generations) should also be part of the discussion. There appears to be a significant probability there will be no GST tax applied on 2010 transfers so gifting “down multiple generations” may be more favorable in 2010 than ever before or after. Some have suggested outright gifts of FLP or FLLC interests or non-voting corporate stock, for example, but have warned that transfers to trusts or UTMAs may wind up “caught up” in the GST tax when it returns in 2011 (as taxable distributions some day).
· Making loans to the ILIT instead of gifts in 2010 and then making gifts in 2010 to pay off the loans (and applying exemption to those gifts, of course).
· Using cash value to carry the policy until next year.
· Before making major decisions regarding life insurance policies in trusts (including the advisability of borrowing against cash value to pay premiums in 2010) it is prudent for the trustee to investigate or audit the policy/policies to review their likelihood of achieving their anticipated objectives. In fact, a periodic life insurance policy audit is a good idea for any ILIT.
· For clients with GST exempt ILITs, advisors should check to see if premiums have been paid this year and if any planning needs to be done either now or early next year to deal with the consequences.
Like the Roth IRA discussion and the gift tax discussion (both hereinabove), some clients may wish to recognize gains in 2010 in order to avoid future taxes at potentially higher rates. The logic is fairly simple and generally quite similar to the arguments for making taxable gifts and/or Roth conversions. If a client does elect to increase income/gains in 2010, then please note the potential to defray some of that via charitable gifting below.
7. Consider a Roth Conversion?
As indicated in the newsletters/articles cited directly above, deciding on whether or not to convert is a complicated matter requiring clients and advisors to probe certain assumptions and complex issues in order to make informed decisions. Obviously it makes the most sense for clients who can afford to pay the tax from other assets and who would not have needed/wanted to make withdrawals from the IRAs after age 70 1/2. Nevertheless, some clients have indicated they will not convert based on their fear that the IRS will ultimately change the rules and tax the growth in their Roth IRAs someday in the future, and there are no guarantees, of course, that the IRS will not do so.
However, for those clients inclined toward converting, 2010 is a good year to consider Roth conversions in particular since income tax rates will likely be rising in 2011 and again in the near future, (with the extra 3.8% surtax starting in 2013. Converting a traditional IRA to a Roth IRA also gives clients a “free bite at the apple” – as they can re-convert by October 15, 2011, if they file their 1040s on extension.
Some commentators have urged clients converting large enough IRAs to consider segmenting the conversions by asset classes, like some clients fund GRATs. If some asset classes over-perform while others under-perform, the client can pick and choose which to re-convert next year.
· Steve Leimberg's Employee Benefits and Retirement Planning Email Newsletter - Archive Message #532: The Intentionally Excess IRA: Worst Roth Planning Idea Yet?
· Steve Leimberg's Employee Benefits and Retirement Planning Email Newsletter - Archive Message #539: Using Charitable Giving Techniques to Offset Income Tax from Roth IRA Conversions.
· Steve Leimberg's Employee Benefits and Retirement Planning Email Newsletter - Archive Message #534: "Roth" the Traditional IRA or Give to Charity?
The reasons for making taxable gifts are well documented, and mostly stem from the nature of the gift tax as being “tax-exclusive” as compared to the more expensive “tax-inclusive” estate tax. All of those arguments and the time value of making gifts now so they grow outside clients’ estates are equally - if not more - apt in 2010.
Some clients are not comfortable “giving up” their money (paying taxes electively) even if they acknowledge the net benefit of doing so tax-wise. For those clients, an opportunity to make the gifting more “tolerable” might be terminating a QTIP trust. If the client is the surviving spouse and has enough other assets, perhaps he/she would be willing to give up the marital trust today and trigger a gift at the 35% rate. The termination of the QTIP is a taxable gift pursuant to section 2519. Generally, the termination is taxed as a net gift, although some commentators have suggested also disclaiming/giving up the right of reimbursement to increase the net amount of the gift to the family.
Even for clients willing to make taxable gifts before year end, it is important to discuss the timing of such gifts. Clients need to weigh the risks of (i) waiting until late December to be sure they live to year-end, versus (ii) starting the 3 year rule/clock ticking. It seems prudent to time a large 2010 gift for late December to make sure the client doesn’t die in 2010 (no tax) after a large taxable gift is made (big tax/headache). On the other hand, the 3 year inclusion period to bring the tax back into the estate will not begin until the gift is made. So the longer the client waits the longer the 3 year window stays open.
Some planners have suggested using revocable trusts that become irrevocable on December 31, 2010 as a means to set up the gift, pre-fund it and not miss the opportunity. Others have suggested executing all of the documentation and setting up the transfers via an escrow arrangement with a direction to consummate a closing as of December 31, 2010.
5. Time to consider a Financed, Net Gift?
An idea presented at the University of Miami Heckerling Institute this year – but not much discussed, really – was “Financed Net Gifts”. If you have not looked at it, there is a very interesting discussion (and reasonable in length) by David Handler in the 2010 Heckerling materials.
The financed net gift concept works as follows: a client makes a net gift (which further reduces the effective gift tax rate and perhaps makes paying the tax more tolerable for certain clients) typically to an irrevocable, “grantor” trust, and then finances the gift tax payment via an AFR-rate loan from the grantor to the trust. This technique is favorably compared to a sale to a dynasty trust since the amount being financed is only the tax (about 26% of the total amount transferred) and clearly avoids any debt/equity ratio (90/10%) issues associated with grantor trust sales. Plus, the payments back to the grantor are much less, leaving more in the trust to appreciate/grow for the family.
Further, for clients considering gifts, but on the fence about writing a check, the net gift has the effect of reducing the effective gift tax rate to about 31% when the gift rate was 45% and all the way down to about 26% for net gifts in 2010 based on the current 35% gift tax rate environment.
· Steve Leimberg's Estate Planning Email Newsletter - Archive Message #1669: GRATs on the Chopping Block - Again.
· Steve Leimberg's Estate Planning Email Newsletter - Archive Message #1656: FLASH - GRATs - Time Running Out?
If there is some estate tax reform passed either before the end of 2010 or in 2011 which has the effect of increasing the estate tax exemption from $1 million and/or decreasing the top rate below 55%, revenue raisers would likely be introduced at the same time. As changing the terms of GRATs has already been discussed frequently, if there is a need for revenue enhancers to go along with an estate tax reform, the time for GRATs is definitely now.
As an aside, if Congress does change the rules and require 10 year GRATs, a rather obvious option to consider for some clients will be tying 10 year GRATs with 10 year ILITs (probably funded with term life insurance – perhaps using convertible term life insurance in case the client subsequently wants to convert to permanent insurance).
Like GRATs, there has been a reasonable amount of discussion this year (including the President’s budget proposal) regarding the elimination of intra-family discounts. If that happens, nobody can be sure what will be “grandfathered” - if anything.
Thus, for clients with FLP or FLLC interests, now seems like the time to consider gifting and/or selling those interests in an attempt to lock-in discounts before the laws change and take the discounts away. Now is the time for clients to consider gifts, GRATs (both discussed above) and sales (discussed below) as a means to transfer interests in FLPs and FLLCs.
However, note that transferring FLP or FLLC interests with the intent to qualify for the annual exclusion from gift tax became a bit harder this year, due to the Price case. Walter M. Price, et ux v. Comm’r, T.C. Memo. 2010-2 (January 4, 2010); The IRS successfully argued that the restrictions on transferring the interests in FLPs gave the recipients no present economic interest, and thus did not qualify for annual gifting. Some have suggested modifying operating agreements and partnership agreements to give some current economic benefit such as a right to transfer (perhaps limited in time, however). Others suggest having the donor give the recipient a “put” right to put the interest to the donor and get cash for a limited time, and presumptively that would satisfy the IRS’s arguments.
· Steve Leimberg's Estate Planning Email Newsletter - Archive Message #1668: Scroggin & Douglas: Should Clients Consider Gifting Before the End of 2010?
· Heckerman v. United States., 104 AFTR 2d 2009-5551 (W.D. Wash, 2009); Pierre v. Comm’r, 133 T.C. No. 2 (2009); and Pierre v. Commissioner, T.C. Memo. 2010-106 (2010).
Considering the October 2010 AFR ties February 2009 for the lowest AFR ever recorded, now is a great time to implement sales of assets to “grantor” or “dynasty” trusts. For example, we noted above that now is the time for clients to lock in FLP and/or LLC discounting opportunities. For clients unwilling to pay gift taxes, the sale technique will likely resonate.
In addition, now is an important time to consider sale transactions as a means to lock in depressed asset values before there is too much of a recovery. While I won’t predict the economy, it appears property values may have stabilized a bit (based on recent appraisals) and closely held business valuations seem on an uptick as well. However, it is still possible for clients to capture the recent market declines in value by using dynasty trusts sales as soon as possible.
One confusing issue for those without already funded and GST exemption dynasty trusts will be the application of GST exemption. Some commentators have suggested that on January 1, 2011 clients can make late allocations and thus fully exempt dynasty trusts funded in 2010.
For more on the Stewart case, with a focus on the potential for using tenancy in common agreements (including a model co-tenancy/TIC agreement form), see Baskies and Zaritsky, Second Circuit Boosts Residence Tenancy-in-Common Gifts, Probate Practice Reporter, Vol 22 No. 9 (Sept. 2010).
Tenant-in-Common discounts are a developing area in the law, and the IRS’s partition arguments are still being sorted out by the courts, but evaluators still seem to point to the LeFrak case as a model. In that case a 20% minority discount plus a 10% marketability discount were provided by the Tax Court. Samuel J. LeFrak v. Commissioner, T.C. Memo. 1993-526.
· Steve Leimberg's Estate Planning Email Newsletter - Archive Message #1562: Petter v. Commissioner - Defined Value Formulas, Do They Work and How!
2010 is a unique and important year for charitable planning. High income earners can optimize the federal income tax deduction in 2010, as the phase-out rules – Sec 68(a) IRC – do not apply in 2010. However, they do return in 2011. For clients who have groaned in the past about how “pesky” hidden taxes like the phase-out have limited their interest in philanthropy, 2010 is the year to put up. We should expect many high-income clients will take advantage of the opportunity to make large tax deductible gifts this year, and we should plan for major gifts to flow into private foundations as well as donor advised funds at community foundations.
In the past, as a result of the 80% phase-out of itemized deductions for certain clients, the effect of the deduction was that it was reduced to only 7%. As a result, for charitable gifts, the clients effectively paid 93% and the government only paid 7%. For charitable gifts in 2010, it is possible these same clients will only effectively pay 65% and the government will pay 35%.
Obviously the charitable gifts are still limited to 50/30/20% of adjusted gross income, so clients must consider those caps. Some clients may still wish to modify their estate planning documents in case they die in 2010, to reduce charitable legacies paid directly from their estates preferring to give more to the children with a direction (one outside the documents and thus moral, although not legally binding) to make gifts to charity. Such a switch may mean the difference between leaving a large charitable gift via the estate in 2010 for which no estate tax deduction is afforded to a situation where the same amount passes to charity after death (but from the children) and an income tax deduction is created.
Due to the low AFR, the low gift tax rate for 2010, and the availability of reduced value assets, the last few months of 2010 presents a perfect time to consider Charitable Lead Trusts (“CLTs”). In some respects, however, the opportunities presented right now turn the conventional wisdom on CLTs on its head.
For example, commonly when looking at CLTs, many have suggested creating “zeroed-out” gifts. However, in 2010, perhaps paying some gift tax (at 35%) makes sense. Also, many clients prefer “non-grantor” CLTs for a few reasons, not the least of which being a fear that any deduction will be “shaved” by the Sec 68 phase-out. Well, in 2010, the opposite is true. There is no phase-out, so large income tax deductions may be preferred, and more clients might be more inclined toward “grantor” CLTs.
All things considered, it does not seem like much of a stretch to wonder if 20 years from now we will look back at the last few months of 2010 as the most interesting and important months in the modern history of estate planning. The confluence of forces and opportunities that have come together at this moment in time present a unique opportunity for our clients to transfer wealth at a substantially reduced tax cost. Now is the time for advisors to alert clients of this closing window and to prepare for a very busy 4th quarter of planning.
LISI Estate Planning Newsletter #1711 (October 21, 2010) at http://www.leimbergservices.com Copyright 2010 Leimberg Information Services, Inc. (LISI). Reproduction in Any Form or Forwarding to Any Person Prohibited – Without Express Permission.

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