This chapter may be cited as the "General Education Provisions Act".
(1) Except as otherwise provided, this chapter applies to each applicable program of the Department of Education.
(2) Except as otherwise provided, this chapter does not apply to any contract made by the Department of Education.
(1) The term "applicable program" means any program for which the Secretary or the Department has administrative responsibility as provided by law or by delegation of authority pursuant to law. The term includes each program for which the Secretary or the Department has administrative responsibility under the Department of Education Organization Act [20 U.S.C. 3401 et seq.] or under Federal law effective after the effective date of that Act.
(C) any other statute that by its terms expressly controls the administration of an applicable program.
(3) The term "Department" means the Department of Education.
The Department of Education Organization Act, referred to in subsec. (c)(1), is Pub. L. 96–88, Oct. 17, 1979, 93 Stat. 668 , as amended, which is classified principally to chapter 48 (§3401 et seq.) of this title. For the effective date of the Act, see Effective Date note set out under section 3401 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 3401 of this title and Tables.
The Civil Rights Act of 1964, referred to in subsec. (d), is Pub. L. 88–352, July 2, 1964, 78 Stat. 241 , as amended. Title VI of the Act is classified generally to subchapter V (§2000d et seq.) of chapter 21 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000a of Title 42 and Tables.
The Rehabilitation Act of 1973, referred to in subsec. (d), is Pub. L. 93–112, Sept. 26, 1973, 87 Stat. 355 , as amended. Title V of the Act is classified generally to subchapter V (§790 et seq.) of chapter 16 of Title 29, Labor. For complete classification of this Act to the Code, see Short Title note set out under section 701 of Title 29 and Tables.
The Age Discrimination Act, referred to in subsec. (d), probably means the Age Discrimination Act of 1975, which is title III of Pub. L. 94–135, Nov. 28, 1975, 89 Stat. 728 , as amended, and which is classified generally to chapter 76 (§6101 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 6101 of Title 42 and Tables.
1994-Pub. L. 103–382 amended section generally, inserting provision that this chapter not apply to any contract made by the Department of Education, substituting definition of "Department" as meaning Department of Education for definition of "Director" as meaning Director of the National Institute of Education, striking out reference to the Civil Rights Act of 1964, adding references to title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, title V of the Rehabilitation Act of 1973, the Age Discrimination Act, and other statutes prohibiting discrimination, and striking out provision authorizing appropriations for any fiscal year of such sums as may be necessary to carry out the provisions of this chapter.
1974-Subsec. (a). Pub. L. 93–380 redesignated subsec. (d) as (a). Former subsec. (a) provisions "The provisions of this chapter shall apply to any program for which the Commissioner of Education has responsibility for administration, either as provided by statute or by delegation pursuant to statute. Amendments to Acts authorizing such programs shall not affect the applicability of this chapter unless so specified by such amendments" were incorporated in part in subsec. (b).
Subsec. (b). Pub. L. 93–380 incorporated subsec. (a) provisions in subsec. (b), inserting introductory text "Except where otherwise specified,", substituting "an administrative head of an education agency has administrative responsibility as provided by law or by delegation of authority pursuant to law" for "the Commissioner of Education has responsibility for administration, either as provided by statute or by delegation pursuant to statute.", deleting "Amendments to Acts authorizing such programs shall not affect the applicability of this chapter unless so specified by such amendments." Former subsec. (b) definition provisions for "Commissioner", "Secretary", and "applicable program" incorporated in subsec. (c)(1).
Subsec. (c). Pub. L. 93–380 incorporated subsec. (b)(3), (1), (2) provisions in par. (1)(A), (D), (F), respectively; inserted in par. (1)(A) ", under the terms of subsection (b) of this section,"; and added pars. (1)(B), (C), (E), (2), and (3). Former subsec. (c) provisions "There are hereby authorized to be appropriated for any fiscal year, as part of the appropriations for salaries and expenses for the Office of Education, such sums as the Congress may determine to be necessary to carry out the provisions of this chapter," incorporated in subsec. (d).
Subsec. (d). Pub. L. 93–380 incorporated subsec. (c) provisions in provisions designated as subsec. (d), inserting introductory text "Except as otherwise limited in this chapter,", and deleting ", as part of the appropriations for salaries and expenses for the Office of Education," after "fiscal year". Former subsec. (d) redesignated (a).
1970-Pub. L. 91–230, §401(a)(2)(A), provided for definitions and authorization of appropriations in section catchline.
Subsecs. (b), (c). Pub. L. 91–230, §401(a)(2)(B), added subsecs. (b) and (c).
1968-Pub. L. 90–576 substituted general reference to "any program for which the Commissioner of Education has responsibility for administration, either as provided by statute or by delegation pursuant to statute" for specific references to "title I of the Elementary and Secondary Education Act of 1965 (title II of Pub. L. 81–874), titles II, III, V, VI, VII, and VIII of the Elementary and Secondary Education Act of 1965, and the Adult Education Act of 1966 (title III of the Elementary and Secondary Education Amendments of 1966), as now in effect or hereafter from time to time amended" as the areas in which the provisions of this chapter shall apply and inserted provision that amendments to the programs covered shall not affect the applicability of this chapter unless so specified by such amendments.
"(B) for programs that are conducted on a competitive basis, with respect to appropriations for use under such programs in fiscal year 1995 and in subsequent fiscal years."
Pub. L. 93–380, title V, §505(b), Aug. 21, 1974, 88 Stat. 562 , provided that: "The amendments made by subsection (a) [amending this section and section 1221g of this title] shall be effective on the tenth day after the date of enactment of this Act [Aug. 21, 1974]."
Pub. L. 112–278, §1, Jan. 14, 2013, 126 Stat. 2480 , provided that: "This Act [amending section 1232g of this title] may be cited as the 'Uninterrupted Scholars Act (USA)'."
Pub. L. 100–297, title III, §3401, Apr. 28, 1988, 102 Stat. 344 , provided that: "This part [part C (§§3401–3403) of title III of Pub. L. 100–297, amending sections 1221e and 1221e–1 of this title and enacting provisions set out as a note under section 1221e–1 of this title] may be cited as the 'National Assessment of Educational Progress Improvement Act'."
Pub. L. 95–561, title XII, §1211, Nov. 1, 1978, 92 Stat. 2338 , provided that: "This part [enacting sections 1221–3 and 1231g of this title and amending section 1221e–1 of this title] may be cited as the 'Control of Paperwork Amendments of 1978'."
Pub. L. 93–380, title V, §513(b)(2), Aug. 21, 1974, 88 Stat. 574 , provided that: "This section [enacting section 1232g of this title and provisions set out as a note under section 1232g of this title] may be cited as the 'Family Educational Rights and Privacy Act of 1974'."
Ex. Ord. No. 12687, Aug. 15, 1989, 54 F.R. 34127, as amended by Ex. Ord. No. 12741, Dec. 31, 1990, 56 F.R. 475; Ex. Ord. No. 12785, Dec. 26, 1991, 56 F.R. 67451, which established the President's Education Policy Advisory Committee to advise the President with respect to objectives and conduct of overall education policy of the United States, was revoked by Ex. Ord. No. 12869, §4(e), Sept. 30, 1993, 58 F.R. 51751, formerly set out under section 14 of the Federal Advisory Committee Act in the Appendix to Title 5, Government Organization and Employees.


text:
European Union Law: The legislative bodies of the Union and comparisons with British institutions. The effect of European legislation on English law. Supremacy. The European Court of Justice. Examples of relevant case law.
Doughty v. Rolls Royce 1992 (Court of Appeal): Rolls-Royce is not a public body, since it did not provide a public service.
Van Colson & Kannann v. Land Nordrhein Westfalen 1984: legislation (particularly, but not only, legislation intended to implement directives) should be interpreted according to the relevant directives.
Duke v. Reliance Systems Ltd (House of Lords): Previous legislation cannot be interpreted according to subsequent directives.
Cf. Marleasing SA v. La Commercial SA 1990: National courts are required to interpret legislation according to subsequent or previous directives.
Pretore di Salo v. Persons Unknown 1987: the state cannot base criminal proceedings on unenacted directives.
Francovich et al. v. Italy 1991, the state must make good any loss from non-enactment of directives, providing there was a link between the non-enactment and the loss, and that the directive endowed specific rights on individuals.
Directives only have direct vertical effect, and cannot be relied on between individuals.
Acts become law by a Bill being passed.
Bills must have a majority in favour in both Houses, except that there are several conventional and statutory constraints on the Lords' activities that do not exist for the Commons. For example, the Lords, by the Salisbury Convention, will not vote against a government's manifesto commitment, thereby recognising that its democratic legitimacy is limited. There is a further convention, which was breached over the legislation establishing the closed list system for the European Parliament stating that the Lords should not reject any piece of legislation more than three times.
A Bill may be introduced in either House, but Private Bills are conventionally introduced in the Lords to save the Commons' time. In addition, Money Bills are never introduced in the Lords.
The procedure involves either the promoter of the legislation presenting it at the Table of the House or (less usually) passing a motion for leave to introduce it.
A first reading, in which the Clerk of the House will read the title of the Bill only. This 'reading' will last for just a few seconds.
A second reading, after a suitable interval for members to consider the merits of the Bill, in which there is a debate on the Bill's general principles. Details of the Bill will not be changed at this stage - the debate is on whether the idea of the Bill is a good one. Unless the Bill is unopposed, there will be a debate followed by a vote. The second reading is by far the most important of all readings.
The alternative procedure for some Public Bills, including all Private Members Bills, is for a minister to move for the Bill to be referred to a standing Second Reading Committee of about 50 members, who report to the House on whether the Bill should receive a second reading. This procedure will not be used if at least 20 members oppose it. The report of the Committee will be put to House without amendment or debate.
The next stage is the committee stage. This will be a Standing Committee, consisting of about 2 dozen members in normal party proportions, unless a member moves for the Bill to go to committee of the whole House, to a Select Committee (including examination of witnessess), or to a Special Standing Committee (combining Select and Standing Committee procedure).
Assuming the Bill has gone to Standing Committee, each clause wil be considered one by one, with amendments possible. Each clause must be voted for by the Committee in turn. However, time limits can be set (the main procedural devices are: the Kangaroo (by which only some amendments are debated), the Guillotine (which imposes time limits on debate for each clause), Closure (which places a time limit on total debate)). It should be noted that the Lords does not have Standing Committees, considering all Bills on the floor of the House.
Private Bills and Hybrid Bills have a different (Select) committee procedure, where any interested party may appear, and witnesses may be called. Furthermore, the members of the committee (except for Hybrid Bills) must have no personal interest. This rule of practice is designed to stop members legislating in their own interests where little publicity would be attracted. The Special Standing Committee procedure involves sitting as a Select Committee hearing evidence for four sessions, and then considering the Bill as normal.
The report stage follows, providing the committee amended the Bill, in which the committee presents its report, and the House may amend the Bill, and reverse unliked changes.
The third reading is the last stage, in which there is a final debate on the Bill, where the details, rather than merits of the Bill will be considered, and it is likely that only drafting amendments will be made. As a result of reforms recommended by the Select Committee on Procedure in 1967 the third reading takes place without debate unless at least 6 members object.
After both Houses have passed the Bill, if the second House amended it but approved it in principle, it will be returned to the first House. If the amendments are accepted the Bill will go for the Royal Assent, but if no agreement can be reached the Bill is defeated.
The Lords' powers of delay, amendment and veto are severely restricted by the Parliament Act 1949 .
the Bill has been passed by the Lords within a month of it being sent there providing it was sent to the Lords at least a month before the end of the session.
The Lords may reject any Bill that extends the duration of Parliament beyond five years.
If a Bill is passed by the Commons but is rejected by the Lords, and in the next session is passed again by the Commons, if the Lords does not accept it without amendment (except those approved by the Commons), then the Royal Assent will be given the Lords' opposition not withstanding. There must be at least one year between the second reading of the Bill in the Commons in the first session and the third reading in the Commons in the second session.
This procedure only applies to Public Bills.
Parliamentary supremacy is Parliament's right to make whatever laws it chooses. It is derived (according to Dicey, originator of the concept) from the popular election of MPs. It may be questioned therefore, whether Europe should usurp it.
However, the customary references to parliamentary supremacy are somewhat misleading since the only thing that reigns supreme is the statute - we have statutory supremacy - even post Pepper v. Hart, the debates in Parliament can only be used in certain limited circumstances and even then they are nothing more than aids that need not be used, albeit aids with a somewhat greater weight than usual.
Parliamentary supremacy essentially originates with the Bill of Rights 1689 .
As to the insusceptibility (or otherwise) of parliamentary supremacy, the Court of Appeal in Blackburn v. Attorney General 1971, rejected the argument that to join the European Community would be an illegal surrender of sovereignty, saying that Parliament "can enact, amend and repeal any legislation it pleases."
However, many things act so as to make parliamentary supremacy illusory - international treaty obligations mean that certain legislation would never be passed. In addition, the European Convention on Human Rights and the Human Rights Act (with its provision for statements that legislation is incompatible with the Convention), although not obligating rectification of non-compliant legislation, effectively mean that parliamentary supremacy is largely symbolic. Even so, its importance is such that in the passage of the Human Rights Bill, opportunities to allow judges to strike down offending legislation were spurned.
Membership of the EU is a derogation from parliamentary sovereignty in practice, even if not in theory, since all of the EU's powers flow from Parliament's sovereignty by way of the original Act, and therefore Parliament retains ultimate sovereignty.
There is a limited retention of parliamentary sovereignty in many areas of European concern, since the UK has limited powers to determine penalties for breach of EU law, and since the option is often left open in directives not to implement parts of the directive.
An example of the seriousness of the battering that parliamentary sovereignty has taken was seen in the Factortame 1991 case, where the House of Lords suspended, in a serious derogation from the traditional doctrine of parliamentary supremacy, the Merchant Shipping Act 1988 , while awaiting the European Court of Justice's judgment.
In R. v. Secretary of State for Employment, ex parte Equal Opportunities Commission, the House of Lords gave a declaration that the Employment Protection (Consolidation) Act 1978 did not comply with EU law, and stated that judicial review could be sought as a faster alternative to taking a case to the European Court of Justice, to rectify defects in legislation that followed European law.
Under the European Communities Act , s. 2 all European regulations as well as the Treaty become part of law without further enactment.
For example, in Pickmans v. Freemans PLC 1988, the treaty overruled English law.
Whilst there is no doubt that if an inconsistency with EU law is accidental, then the EU law should have precedence, it seems that if the breach of EU legislation is intentional the UK courts it seems that the courts should follow the UK legislation, since the European Communities Act enjoys no special constitutional supremacy, and later statutes traditionally take precedence, but do so would necessitate the implicit repeal of at least part of the European Communities Act , and so the UK would have to leave the EU. To do so would require explicit orders from Parliament and would be improbable to say the least.
In Maccarthys Ltd. v. Smith 1979 Lord Denning said that "we are entitled to look to the treaty as an aid to construction, but not only as an aid but as an overriding force" unless "Parliament deliberately passes an Act with the intention of acting inconsistently with the Treaty", we shall follow it. This was the case where the Court of Appeal where EU law was applied over the provisions of the Equal Pay Act 1970 .
Recommendations and opinions "have no binding force" according to Article 189 of the Treaty, but in Grimaldi de Fonds v. Maladie Professionelles it was decided that there is a duty to take them into consideration when considering questions of European law.
create criminal offences with a penalty exceeding 2 years and £1000.
bearing in mind that the Court cannot decide questions of fact (Denning said that the facts should be first ascertained (in Bulmer v. Bollinger 1974)), or the application of a point of law - the case should be decided but for the point of law first, and the result of the case should be dependant on the European law before referral is made.
In Church of Scientology v. Customs and Excise , for example, the Court of Appeal elected not to refer, since it was first necessary to decide whether the 'Church' was a genuine non profit-making religion.
bearing in mind that any "court or tribunal" (art. 177(2) of the Treaty) may refer (for example, in R. v. Plymouth Justices ex parte Rogers 1982, the magistrates' court referred the case to the Court of Justice, and the prosecution sought judicial review. The Divisional Court allowed the referral but warned that lower courts must be careful in referral.
In the European Court of Justice case of Rheinmühlen-Düsseldorf v. EVSt 1974, it was decided that "a rule of national law cannot deprive inferior courts of the right to refer to the European Court."
Referral can be on the interpretation of Treaty provisions, or the interpretation and/or its validity (only the European Court of Justice can determine validity of European law, so there is an absolute duty of referral in such circumstances) of European law.
There is no obligation to refer where the matter has been previously decided by the Court, but there remains discretion so to do ( Da Costa v. Nederlandse Belastringadministratie 1963). It was said in Bulmer v. Bollinger (this is not binding, but it is generally followed) that a re-referral should only be made if there are new factors or if the previous decision was felt to be wrong.
There is a duty to refer (subject to the aforementioned conditions and exceptions) in the final appelate court, but otherwise discretion as to referral exists.

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A reprise, but not our friend Erik McBride Thompson, the Truker who found Tax Court habit-forming (see my blogpost of that name, 12/20/11), but rather Joe Insinga, who recently graced my blogposts “Did Nothing”, 3/13/13, and “Perpetual Discovery”, 3/23/13, and who comes back yet again before The Obliging Judge, David Gustafson, in yet another designated hitter, Docket No. 004609-12W, filed 3/29/13.
Joe is at it again; dropping his Rule 81 motion to depose Robert B. Gardner, outgoing Whistleblower Program Operations Manager, as Judge Gustafson suggested he do back on March 23, Joe couples his motion for leave to withdraw same with a motion to request production of documents.
This is a triple-barrel no-no. First, Rule 54(b) requires motions be separately stated. Unlike most courts where, in my experience, omnibus motions, or motions seeking alternative forms of relief, are generally made to speed things up, in Tax Court it’s “one size fits one”.
Second, Tax Court discovery is informal, repeat, informal. See Branerton v. Com’r, 61 T. C. 691 (1974), one of the most, if not actually the-most, cited cases in Tax Court lore. Before anything, you have to play show-and-tell. Motions are only acceptable where “play nice” has failed.
Judge Gustafson: “Petitioner’s motions make no allegation of any prior attempt at informal consultation but rather appear to indicate that the motions are Petitioner’s initial attempts. The Court instructs respondent to treat petitioner’s application filed March 18, 2013, and petitioner’s motion for leave filed March 25, 2013, as informal requests for information and to respond with reasonable promptness. Treated as informal requests, these documents may be an adequate informal predicate for later formal document requests or interrogatories. But until the informal process has been attempted, we cannot tell whether any formal discovery must be attempted or compelled. (Petitioner should also note that Rule 74(c) requires first the service (not the filing) of a notice and an objection, and only then the filing of a motion for an order compelling the deposition.).” Order, pp. 1-2.
Third, a deposition of a non-party witness, like WPOM Bob G., is, as Rule 74(c)(1)(B) instructs us, “an extraordinary method of discovery and may be used only where . . . a nonparty witness . . . can give testimony . . . which [is] discoverable within the meaning of Rule 70(b) and where such testimony . . . cannot be obtained through informal consultation or communication (Rule 70(a)(1)), [or through] interrogatories (Rule 71) ….” Cited in Order, at p. 2.
So since WPOM Bob G is still at IRS, and as Judge Gustafson says he told the parties in a phonecon on March 25, IRS will consider letting Joe’s counsel talk informally with WPOM Bob G, let’s see what happens. But even if IRS tells WPOM Bob G to clam up, there are still interrogatories; if IRS remains callous and obdurate, there are Rule 104(c) sanctions. And Judge Gustafson’s pretrial memo requires the parties to state what witnesses they propose to call and a detailed summary of such witness’ testimony on jurisdictional issues. Absent good cause, an unidentified witness will be barred.
So, that’s Tax Court discovery. It’s more like a New York State special proceeding, where most forms of discovery, absent special circumstances, are not allowed. And counsel unused to Tax Court rules, and who moreover appear not to have taken the trouble to read them and the cases construing them, will run swiftly hard aground. And perhaps they will encounter a judge less obliging than Judge Gustafson to kedge them off.
That is not going to discuss the IRS “Star Trek” video.
No, not the 2007 Celine Dion album, but rather a lesson to Stanley Cohen, in 2013 T. C. Memo. 86, filed 3/28/12, taught by Judge Halpern.
Stanley was an investor (or maybe an investment; see 2013 T. C. Memo. 86, at p. 7) in a deal called Park Leasing Assoc., P’ship, whose career came to an end in 2006. But Park Leasing’s story goes back to the 1980s, so Stanley owes about $75K in tax, and a whopping $598K in accumulated interest. See my blogpost “Bang – A Warning to Tax Matters Partners (and their advisors)”, 1/5/11.
Stanley claimed the other investors got a better deal than he was offered. He raised that at an equivalent hearing (not a CDP for the tax levy he got, because Stanley sent in his request too late), and his attorney presented evidence of disparate treatment, but Appeals didn’t buy it.
Stanley tried a petition to Tax Court, but that got dismissed for want of jurisdiction.
Now someone at IRS decided to hand Stanley a NFTL, as apparently the levy didn’t get the appropriate quantities of Stanley’s hide. Stanley files the 12153, asks for a CDP and reiterates the “unequal treatment” argument.
Judge Halpern: “[SO]’s conclusion that petitioner was attempting to raise a challenge to the amount of his underlying tax liability is understandable since, on the lien hearing request form, petitioner did not identify an offer-in-compromise or other collection alternative as his reason for disagreeing with the lien notice. He claimed only that he had not been treated the same as other partners who were offered settlements. How [SO] pigeonholed the claim, however, is unimportant. To the extent petitioner was raising a liability challenge, [SO] was correct in concluding that section 6330(c)(2)(B) precluded him from doing so, since he had the opportunity to dispute his liability in response to the levy notice. To the extent he was asking to settle his liability or to compromise the interest assessments, those were the identical issues petitioner had raised during the levy hearing, and the question is one of whether sections 6320(c) and 6330(c)(4) precluded him from again raising them during the lien hearing.” 2013 T. C. Memo. 86, at pp. 13-14.
And Judge Halpern’s answer to question no. 2 hereinabove is yes, it does.
Judge Halpern: “We have held, however, that an equivalent hearing is ‘indisputably an ‘administrative * * * proceeding’ within the meaning of section 6330(c)(4)’ (and, by inference, section 301.6320-1(e)(1), Proced. & Admin. Regs.). See West v. Commissioner, T.C. Memo. 2010-250, 2010 WL 4780323, at *4. Thus, the levy hearing was at least an administrative proceeding within the meaning of section 301.6320-1(e)(1), Proced. & Admin. Regs., and there is no doubt that petitioner claimed at the levy hearing that he had not been treated the same as other partners who were offered settlements.” 2013 T. C. Memo. 86, at pp. 13-14.
And Stanley and his attorney fully aired Stanley’s objections and introduced evidence. They materially participated, and having taken their chance, are precluded from raising that issue again.
Donald B. Meinhardt and Arvilla Meinhardt occasionally stayed at their Minnesota farmhouse, and let family and friends stay in the place rent-free (or maybe in exchange for services like repairs, but never reported income nor kept records). But they did rent out the 140 acres of farmland for cash, and tried to deduct the farmhouse expenses.
This incurred the ire of IRS, and Judge Kerrigan has no sympathy for Don and Arvy in 2013 T. C. Memo. 85, filed 3/27/13.
Section 280(A) avails them not. Judge Kerrigan: “Although neither petitioners nor respondent discussed sec. 280A, we note that no deduction is allowed with respect to the use of a dwelling unit which is used by the taxpayer during the taxable year as a residence. See sec. 280A. A taxpayer is treated as using a dwelling unit as a residence if he used the unit for personal purposes for a certain number of days. Sec. 280A(d)(1). A taxpayer is deemed to have used a dwelling for personal purposes for any day the unit is used by a member of the taxpayer’s family, sec. 280A(d)(2)(A), unless the unit is rented at a fair rental for use as a principal residence. Because the evidence in this case did not establish whether anyone lived in the farmhouse during the years in issue, and because we resolve this case on other issues, we do not resolve the issue of the potential applicability of sec. 280A.” 2013 T. C. Memo. 85, at pp. 7-8, footnote 2.
And of course Don and Arvy have zero records. So we get INDOPCO and Cohan and New Colonial Ice Co. and, as Bob Fosse would put it, all that jazz.
The rental of the land is separate from the farmhouse, as Don and Arvy did no farming, so Don and Arvy had to use Schedule E, supplemental income and expense and not Schedule F, farming. Maybe some farming work might have saved Don and Arvy, but the passive loss rules would have rendered same problematic.
However, the forms used to report this sad tale weren’t chosen by Don and Arvy, but apparently by local attorney and tax guru Mr. Tenney, about more of whom see infra, as the high-priced lawyers say.
In any event, Don and Arvy could show no affirmative act whereby they discontinued personal use (including family use) and devoted to farmhouse to use in a trade or business, or for production of income. Judge Kerrigan: “…even if the taxpayer never used the property as a residence there still must be some affirmative act appropriating the property for the production of income.” 2013 T. C. Memo. 85, at p. 10 (Citation omitted).
So game over on the deductions, and we go to the penalty shot. IRS has Don and Arvy looking at the 20% Little Chop, accuracy.
Enter local attorney and tax guru aforesaid: “Petitioners recognized their unfamiliarity with tax law and approached Mr. Tenney, a practicing attorney during the years in issue, to assist in preparing their Forms 1040. Petitioners testified that Mr. Tenney ‘did a high volume of tax returns for the whole community’. Petitioners also testified that Mr. Tenney ‘asked questions about the farm’. Petitioners gave him ‘all of [the] materials that * * * [they] thought were relevant to * * * [their] taxes’. We conclude that petitioners in good faith took reasonable efforts to assess their proper tax liabilities by seeking advice from a qualified tax return preparer and reasonably relied on Mr. Tenney’s expertise. See Furnish v. Commissioner, T.C. Memo. 2001-286; sec. 1.6664-4(b)(1), Income Tax Regs. Accordingly, petitioners are not liable for the section 6662(a) accuracy-related penalties.” 2013 T. C. Memo. 85, at pp. 16-17.
Wanna bet the returns the aforesaid guru does will get extra helpings of IRS scrutiny?
And speaking of high-priced lawyers, did you see the Victor-DLA Piper story? I don’t know the rights and wrongs, and I won’t hang anybody on the strength of a news article, but e-mails are the plaintiffs’ best friend, and lawyers especially should know this (and that they are discoverable).
This is not a proposition that gets you very far in a CDP, as two designated hitters demonstrate today, 3/26/13, while Tax Court is on break from opinions.
The cases are Shari L. Hart, Docket No. 019120-12 L, filed 3/26/13, and Charles Lavel Stringer, Docket No. 016282-12 L, same date. The Judge With A Heart, Special Trial Judge Armen, drew Shari, and Judge Thornton has Charles Lavel.
For STJ Armen, see my blogpost “Ignorance is Bliss?”, 11/10/11.
Shari was working at Miller & Midyett Realtors, Inc., a Kansas real estate firm. For convenience, she claims, she signed commission checks to salespeople. Larry Midyett and two other people were the honchos of the place, and Larry even gave Shari a written statement that she wasn’t a responsible person. From that, you can see that this is a TFRP case, and though the real estate peddlers weren’t common-law employees, Section 3121 makes them so for FICA-FUTA purposes.
Shari never raises this when she gets the Letter 1153, telling her IRS is going to nail her for the unpaid trust funds. Instead, she sues Larry and gets a default judgment (what does that tell you about Larry’s solvency?). So she asks for a CDP, at which time she asks the SO to wait until she collects from Larry. But it’s a year since she got the judgment, and so far Shari hasn’t gotten the proverbial centavo uno out of ol’ Larry.
STJ Armen: “Petitioner has never sought a collection alternative in the form of an installment payment agreement or an offer-in-compromise. Rather, petitioner has sought forbearance by respondent in order to permit petitioner to execute on her default judgment against Mr. Midyett and presumably remit any proceeds to respondent.
“The fact that petitioner secured her judgment in May 2012 but has yet to successfully execute on it might suggest that petitioner’s ‘collection alternative’ is not particularly realistic. But, regardless, the fact remains that under applicable law petitioner remains secondarily liable for the trust fund portion of the corporate taxpayer’s employment taxes and that respondent, as creditor, is entitled to seek payment from petitioner and not wait for petitioner to secure possible payment from Mr. Midyett. After all, among the responsible officers, petitioner may be the one with the deepest pockets.” Order, p. 8.
Judge with a heart? Sure. STJ Armen offers the following consolation: “Finally, the Court notes that petitioner is not without a judicial remedy in the form of a refund action. However, such an action would lie in the appropriate United States District Court (see 28 U.S.C. sec. 1346(a)(1)) or in the United States Court of Federal Claims (see 28 U.S.C. secs. 1346(a)(1), 1491(a)(1)), but not in the Tax Court. See United States v. Clintwood Elkhorn Min. Co., 553 U.S. 1,4,11 (2008); see also Greene-Thapedi v. Commissioner, 126 T.C. 1 (2006); McCormick v. Commissioner, 55 T.C. 138, 142 (1970). In Bland v. Commissioner, T.C. Memo. 2012-84, at n.13, the Court, citing Flora v. United States, 362 U.S. 145, 170 n.37 (1960), and Davis v. United States, 961 F.2d 867, 870 n.2 (9th Cir., 1992) described how ‘it would be relatively easy for a similarly situated taxpayer [such as petitioner] to effectively obtain a prepayment judicial review of a sec. 6672 penalty assessment in a refund suit’.” Order, p. 9.
So Shari, have another lawsuit. Or pay up. And IRS, have summary judgment against Shari. And go collect.
Charles Lavel’s tale is similar, but it involves income taxes for a year he filed but didn’t pay. He’s fighting the Texas Attorney General over child support monies. A true Texan, like some relatives of mine, Charles Lavel “…attached to the form a typed letter that stated, among other things, that ‘I believe I don’t owe the money to y’all because I filed tax returns for those years.’ Order, p. 1.
Apparently Charles Lavel was due a refund for subsequent year, but IRS sent the money to the Texas AG to pay support for Charles Lavel’s offspring, so Charles Lavel sued the Texas AG.
Charles Lavel has another argument, but it is relegated to a footnote: “In his petition petitioner asserts vaguely that his 2007 tax liability should have been reduced on account of tax deductions and credits he had in his 2008, 2009, and 2010 tax years. But contrary to Rule 331(b)(4) and (5), the petition does not contain a clear assignment of error in this regard and does not adequately state the facts on which petitioner bases any such assignment of error. In particular, even if we were to assume for the sake of argument that petitioner was entitled to claim deductions and credits for years after 2007 (an issue not properly before us in this proceeding), petitioner has not articulated, and we are not aware of, any legal basis for asserting that such alleged tax benefits for later years would affect his tax liability for 2007.” Order, p. 4, footnote 3.
Charles Lavel claims his lawsuit against the Texas AG raises a question of fact, but Judge Thornton isn’t buying. Since Charles Lavel never submitted a Form 656 or a Form 433-A, “…the existence or outcome of the alleged pending lawsuit is not germane to the determination to sustain the proposed levy.” Order, p. 5.
I do have to give Charles Lavel a Taishoff “good try”, though, for he seeks a writ of habeas corpus ad testificandum to get the SO to testify at Tax Court. IRS claims this is an improper way to get a witness to testify in Tax Court, but Judge Thornton ducks by giving IRS summary judgment.
Takeaway– Sue whom you like, but pay your taxes.
That’s the story of the Lipsmeyers, John K., wife Melissa and brother David, and daughter Jennifer, told by Judge Cohen in K & K Veterinary Supply, Inc., 2013 T.C. Memo. 84, filed 3/25/13. K & K is a C corp.
The Lipsmeyers toiled in the family business, which K & K was, along with 85 or so employees; the family ran “…a wholesale distributor of animal health products for large animals, swine, sheep, goats, and horses; lawn and garden products; farm hardware; pet supplies; and products for farm stores and related dealers. Petitioner sold roughly 17,000 to 19,000 different products and had between 550 and 600 vendors.” 2013 T. C. Memo. 84, at p. 2.
John K. alone, as sole shareholder of K &K decided everybody’s compensation, from the family down to the newest employee. John K. was generous; out of a gross profit of $9 million, taxable income about $100K. The expenses were the family’s salaries and rental of properties owned by John K. and brother David.
IRS claimed John K. overcompensated the family.
First comes the battle of the experts, and IRS’ expert wins because he used better data.
Judge Cohen: “Courts have considered various factors in assessing the reasonableness of compensation, such as: employee qualifications; the nature, extent, and scope of the employee’s work; the size and complexity of the business; prevailing general economic conditions; the employee’s compensation as a percentage of gross and net income; the employee shareholders’ compensation compared with distributions to shareholders; the employee-shareholders’ compensation compared with that paid to non-shareholder-employees; prevailing rates of compensation for comparable positions in comparable concerns; and comparison of compensation paid to a particular shareholder-employee in previous years where the corporation has a limited number of officers. No single factor is dispositive.” 2013 T. C. Memo. 84, at pp. 9-10. (Citations omitted).
But where the employee handing out the money is also the sole shareholder, the courts look more closely, because of the lack of bargaining.
Now John K. started the company and was essential, but not essential enough to be worth what he paid himself; and so was brother David. K & K was a big and profitable company, but it paid $30K in dividends when its gross profit was $9 million. Melissa K. was listed as vice president, secretary, and assistant chief financial officer, but she testified that “[i]t’s very hard for me to say what exactly I was doing other than the obvious, which was helping with, you know, like the financial decisions. * * * Well, just have conversations naturally with my husband about, you know, what was going on with the business as far as were there any–you know, where monies were going or anything that was upcoming as far as needs of the company, just in general finances.” 2013 T. C. Memo. 84, at pp. 13-14.
Not enough to justify an average salary of $200K per year, especially as Melissa only worked a thirty-hour week.
And the rest of the family team, though obviously competent, were just as obviously overpaid, when IRS’ expert trotted out the comparables.
So at the end of the day, notwithstanding all the factors (none of which is dispositive), the end result is that, though you supply health products for swine, you shouldn’t imitate them.
This is one for the lawyers, lest they feel neglected. The stymied wannabe whistleblower, Joseph A. Insinga, Docket No. 4609-12W, 3/21/13, for whose sad story see my blogpost “Did Nothing”, 3/13/13, is back before Judge David Gustafson again.
This time, Joe wants to take a deposition, ostensibly to “perpetuate” testimony that might otherwise be lost, per Rule 81. “However, such a deposition ‘shall be taken only where there is a substantial risk that the person ***will not be available at the trial of the case’. Rule 81(a).” Order, p. 1.
So who is the unavailable witness? It’s Whistleblower Program Office Manager Robert B. Gardner. Why is WPOM Bob G substantially at risk of being unavailable at the trial?
Judge Gustafson: “The application alleges that Mr. Gardner ‘is slated to retire from the Internal Revenue Service at the end of June, 2013, or upon some date in July, 2013’, but in so stating petitioner has made no showing of any substantial risk that Mr. Gardner will not be available for a June 2013 hearing. We will nevertheless order respondent to file a response stating whether Mr. Gardner will be available.” Order, p. 1.
Judge Gustafson notes that Joe wants Bob G to produce documents, but those are IRS’ documents, not Bob G’s personal papers. For those, Joe needs to use a Rule 72 demand for documents, after the Rule 70 show-and-tell. Judge Gustafson suggests IRS treat Joe’s present application as a document request, and informally comply.
But Judge Gustafson has a warning for Joe: “…although petitioner’s application is under Rule 81 to perpetuate testimony, the application states that ‘Petitioner will seek to elicit all of Agent Gardner’s properly discoverable knowledge’-making it appear possible that the intended purpose of the deposition is actually discovery. If upon reflection petitioner concludes that what he seeks is discovery and not perpetuation, then he should withdraw his Rule 81 application. The Court would not allow Rule 81 to be employed in such a manner as to frustrate the clear purposes of Rule 70 (requiring informal consultation before formal discovery) and Rule 74(c)(1)(B) (allowing discovery depositions without consent only in ‘extraordinary’ circumstances).” Order, p. 2.
But Judge Gustafson never stops being helpful: “On the other hand, we do not want the June 2013 hearing to be unnecessarily lengthy and inefficient. The Court will therefore invite the parties to suggest, during the upcoming telephone conference, means for assuring fair and efficient informal consultation (under Rule 70), stipulation (under Rule 91), and examination of witnesses at trial.” Order, p. 2.
You can see how Tax Court discovery differs widely from most State Court and even other Federal Court procedure, and how many attorneys came adrift when practicing in the somewhat rarefied atmosphere of 400 Second St, NW.
Nothing exciting out of Tax Court today, 3/21/13, but IRS has formally stated that those taxpayers, whose forms for the 2012 filing season were delayed due to the recent Congressional impasse, who timely pay in good faith based on best available information, will get some relief.
Filing dates cannot be extended past six months for in-country taxpayers, but they will get a bye on Section 6651(a)(2) late-payment penalty for any shortfall in what they paid if they estimated in good faith and needed to file one of the delayed forms. For further details, see Notice 2013-24, which lists the impacted forms.
It’s Judge Gustafson again, anxious to help as always. And here’s a designated hitter from the chambers of The Obliging Judge, George W. & Rosalie F. Lovell, Docket No. 10040-12L, filed 3/20/13, the first day of Spring.
The usual sad story: GW and Rosie failed to petition from the SNOD they got, they petitioned for a CDP, and IRS won summary judgment on 2/14/13, sustaining Appeals’ NOD.
GW and Rosie move to vacate Judge Gustafson’s Order.
Judge Gustafson: “Their motion to vacate admits that ‘[t]he failure to act properly on the 90 day stat notice was an error we made and a missed opportunity’. We sympathize with their regret; but under the statute Congress enacted, we cannot entertain the challenge they now wish to make as to their underlying liability.” Order, p. 1.
But even Congressional enactments can’t stands in the way of Judge Gustafson’s obliging nature: “Our decision upholding the IRS’s collection determination is without any prejudice to the Lovells’ pursuing other remedies a taxpayer may have before the IRS, outside of the court-reviewable CDP process–including, if applicable, a request for audit reconsideration, a request for abatement on Form 843, an offer-in-compromise based on doubt as to liability, or a claim for refund (court-reviewable in a tax refund suit).” Order, pp. 1-2.
Judge Gustafson is one of my faves.
Be very careful how you draft a stipulation with IRS. Raphael Dang-Quang Cung learns that the hard way (and he’s supposedly a lawyer his own self), in 2013 T. C. Memo. 81, filed 3/20/13.
The tax liability arises out of settlement of a lawsuit Raphael DQC brought against a car dealer. The proceeds clearly aren’t exempt; no bodily injury, so Section 104 is out, and Raphael DQC has no case, statute, regulation or anything else to help him out.
(a) Whether the $15,000 petitioner received is taxable.
(b) Whether petitioner is liable for the I.R.C. § 6662 accuracy-related penalty.
5. All other adjustments are computational.” 2013 T. C. Memo. 81, at p. 7.
Simple, right? $15K on the table, that’s all. Except IRS amends its answer a week before trial to add $2K, that Raphael DQC’s lawyer held back from the settlement proceeds as the lawyer’s fee, and didn’t note on the 1099-MISC he sent Raphael DQC .
Raphael DQC says “we stipulated to $15K, not $17K”.
Judge Wherry: “We disagree with petitioner. The stipulation of settled issues on its face applies only to the notice of deficiency, and the parties could not have settled more than what respondent determined in the notice. Even if we were to find the stipulation ambiguous, the parties clearly did not intend to settle respondent’s increase to income. Respondent, as evidenced by the outstanding motion for leave to amend the answer, did not so intend. In such a case, the overt act of pursuing that motion indicates a lack of mutual assent, without which there is no contract. In addition, the stipulation of facts includes the following statement: ‘either party may introduce other and further evidence not inconsistent with the facts herein stipulated.’ The lack of a similar statement in the stipulation of settled issues further supports the conclusion that respondent did not intend to foreclose the increased settlement amount. Therefore, respondent was free to assert in the amended answer an increased deficiency pursuant to section 6214(a) and a corresponding increase in the section 6662(a) accuracy-related penalty. We overrule petitioner’s oral objection.” 2013 T. C. Memo. 81, at pp.7-8. (Footnote omitted).
But read the footnote ( Footnote 3 at p. 8). Raphael DQC admitted in his petition he got the $17K, $15K in cash and the balance kept by his attorney, but claimed he was unaware of this when the answer was filed. This Judge Wherry found hard to swallow.
Judge Wherry concludes Footnote 3: “Diligence at the pleading stage of this litigation or careful drafting of the stipulation might have prevented this issue from arising.” 2013 T. C. Memo. 81, at p. 8, Footnote 3.
Oh yes, Raphael DQC gets a miscellaneous itemized deduction for the $2K.
Takeaway– Remember our friend Tuwanna Jynne Anthony, from my blogpost “Mitigation and Inventory”, 4/20/11. Be ultra-careful when you stipulate to anything with IRS.


text:
Many farming households turn to casual work to make ends meet between harvests, reducing the amount of time they can invest in increasing their farms’ productivity. In ongoing work in Zambia, researchers are testing how receiving cash or food loans during the lean season affects labor supply and agricultural productivity. In a completed pilot, food loans increased food consumption during the lean season, reduced the portion of households engaging in casual work, and increased wages.
Many farming households turn to casual day labor, typically on other farms, to make ends meet between harvests, which often means that farmers do not have time to invest in their own land. If farmers neglect on-farm activities that are important for production, such as weeding or application of fertilizer, then casual work can result in lower yields on farmers’ own fields. With a poor harvest, families are less able to set aside resources to last through the next season, increasing their reliance on casual work. Providing credit, either in the form of food or in cash, could allow farmers to spend more time on their farms. Farmers would no longer turn to casual labor to feed their families between harvests, and they would therefore be able to spend additional time applying fertilizer, weeding, or harvesting the crop, which could increase yields. In the long run, this gain in productivity might increase incomes by more than farmers could earn through casual labor. Although existing research looks at the impact of agricultural loans on crop productivity, this is one of the first studies to look at the impact of credit on how farmers allocate labor.
Small-scale farming is the primary source of income in rural Zambia, and 72 percent of the work force is employed in agriculture. Most farmers are poor, and in Chipata District, where this evaluation takes place, the average income is less than US$500 per year for a household of six people. Sixty-three percent of households in rural Chipata are classified as “very poor” and almost all households lack electricity and piped water.
Zambia’ s long dry season allows for only one harvest per year, which means that the harvest must generate income to last the entire year. Payments for input loans and other debts are often due at the time of the harvest, exacerbating the difficulty of setting aside resources for the next year. As a result, many households turn to casual day labor during the lean season (January to March) to cope with short-term financial needs. In the study sample, 60 percent of young men reported engaging in casual labor during the previous season.
Researchers are testing the effects of food and cash loans on labor supply and agricultural productivity. They have completed a preliminary, pilot study to establish the relationship between food shortages and labor supply. A larger study is ongoing.
Pilot study: Researchers tested the effect of food loans on farming households’ food consumption, casual labor supply, and wages. The loan program offered households one 25-kilogram of ground maize flour per month during the lean season (January to March). Farmers were expected to repay the loan at harvest (in June) with three 50-kilogram bags of unground maize. Each bag of ground maize was worth about 45 Zambian kwacha (US$9) and each bag of unground maize was worth 50-65 kwacha (US$10-13), resulting in an interest rate of 11-44 percent over the loan period.
Researchers evaluated the loan program in 40 rural villages, each within a day’ s drive of Chipata town and with 15-25 small-scale farmers. In 10 villages, all eligible households (those with 1-5 hectares of land) were offered the loan (“full treatment villages”). In 20 villages, households that expressed interest in the loan entered a lottery, through which half were selected for the loan program (“partial treatment villages”). Ten additional villages served as the comparison group and did not receive loans.
Households that took up the loan could pick up the maize flour at one of ten distribution centers in January, February, and March. To repay the loan, households brought maize for repayment to a central point in each village in June.
Full study: Over the next two planting seasons, researchers will compare the in-kind maize loans with cash loans and test the impact on farmers’ labor allocation and crop yields. As in the pilot study, loans will be disbursed in January and repayment will be due in June. Regardless of loan type, borrowers will be able to repay with either maize or cash. In order to measure how the effect of receiving loans persists over time, some villages will not receive loans during the second year of the full study.
Pilot study: There was high take-up of the loans, and villages where loans were offered saw an increase in food consumption, a decline in the number of households engaging in casual day labor, and an increase in wages for those who did engage in casual labor. The impacts were larger in villages where all eligible households could take out a loan.
Take-up and repayment: In full treatment villages, 90 out of 104 eligible households (87 percent) took out a loan. In partial treatment villages, all 104 households that were offered the loan program took out a loan. Ninety-eight percent of borrowers in full treatment villages and 95 percent in partial treatment villages repaid their loans in full.
Food consumption: In full treatment villages, the probability of missing a meal in the previous week was 16.5 percentage points lower than in comparison villages, where 36 percent reported that a family member had to miss a meal. In addition, the number of meals eaten in the previous 24 hours increased by 0.2, from a base of 1.7 meals in comparison villages. The loans had no significant effect on the probability of missing a meal or the number of meals eaten in partial treatment villages.
Labor supply and wages: The share of households working in casual labor declined in both full and partial treatment villages. In comparison villages, 60 percent of households engaged in casual labor during the agricultural season, but this figure was 9 and 8 percentage points lower in full and partial treatment villages, respectively. Wages also increased in villages where lean season casual labor fell.
Full study: The study is ongoing. Results are forthcoming.

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text:
A recent decision of the Ontario Superior Court underlines the purpose of a borrower obtaining independent legal advice, and what a client can and cannot expect from a lawyer in those circumstances.
In 1998, Jean Webb agreed to lend her ex-husband, Reg Webb, $100,000 so he could purchase an auto-wrecking business. Reg was sure the business was a "goldmine" but needed to borrow the cash to complete the purchase. He had no one else to turn to except his former spouse.
Jean agreed to take out a one-year $100,000 mortgage on her house, which then had a value of about $210,000. She lent the money to Reg, who told her he could pay off the loan within a year.
Reg's lawyer prepared the mortgage documentation on Jean's house, but because he had been the lawyer for both of them for many years, he told her she needed independent legal advice.
An appointment was arranged for Jean to see another lawyer, James Tomlinson.
Jean met with Tomlinson at his office in March 1998. At the end of the meeting, she signed a certificate acknowledging she had received independent advice, explaining the content and effect of the loan, and the rights and remedies of the lender, National Bank of Canada, in connection with the loan. The mortgage was registered, and Jean in turn lent the entire $100,000 to Reg.
Predictably, Reg could not pay off the money within one year, and the loan was extended for a second year. Later, the mortgage was renewed for a third year when Jean's signature was forged on a renewal agreement.
It turned out that the annual sales of the wrecking business had been seriously misrepresented, and by March 2003, Reg had closed the business and declared bankruptcy. Jean was stuck with paying off about $71,000 remaining on the mortgage.
Jean then sued Tomlinson claiming he had provided her with defective and inadequate legal advice. She said she never would have signed the $100,000 mortgage if he had explained to her that she could lose her home in the event Reg's business failed.
The case was tried before Justice Edward Belobaba this past May. Jean testified that her meeting with Tomlinson was very short and he never told her about the risk that the business could fail, that Reg might not pay off the loan, and that she could lose her house.
As a result, her lawyer argued that Tomlinson breached his duty to Jean and should pay her damages.
Jean admitted that she knew what a mortgage was and understood that the bank could sell her property if payments were not made.
She told the court she was willing to take that risk because she had confidence in Reg's business abilities.
When he gave evidence, James produced a checklist that had been published by the Lawyers' Professional Indemnity Company, the Law Society's insurer. James had completed the checklist during his meeting with Jean. He also produced four pages of notes that confirmed that he had fully explained the nature and consequences of the mortgage to Jean, and the risks to the client if her ex-husband defaulted in payment.
In his decision at the end of May, Justice Belobaba ruled in favour of Tomlinson. He quoted an earlier Ontario court decision involving a loan by Toronto-Dominion Bank. "People are free to take risks and make bad deals," that court said, "as long as they are aware of those risks and the possible adverse consequences."
Given the conflict in evidence provided by Jean and Tomlinson, Justice Belobaba decided to accept the testimony of the lawyer, as it was based on extensive notes made at the time.
Courts in the past have said that "the purpose of requiring independent legal advice is to assure that there is an appreciation of the nature and consequence of completing a transaction with potential adverse results."
"In my view," Justice Belobaba ruled, "Jean knew what she was doing. Her decision to mortgage her home and lend Reg the money was not rash or ill-considered. She knew that she was getting nothing tangible in return.
"She probably understood the risks of mortgage default even before she attended the meeting with Tomlinson and she certainly understood them after the meeting was over. She executed the mortgage because she believed in her ex-husband; she believed his business would succeed and that the mortgage would be paid off. She understood and willingly accepted the risk of non-payment."
Justice Belobaba ruled that lawyers providing independent legal advice are generally not required to go beyond the mortgage transaction to assess the financial feasibility of how the mortgage funds will be spent.
Lawyers giving independent legal advice are not required to give business advice along with advice about the nature and consequences of a mortgage.
In any event, Tomlinson did explain to Jean that she could lose her home if the mortgage went into default.
I have found that clients tend to view independent legal advice as a mere formality, and approach the lawyer with an attitude of "let's get this over with quickly."
The reality, however, is that if the client isn't listening or doesn't take the advice seriously, she assumes the risk of a negative result.
In this case, Jean got stuck with the unpaid mortgage on her house, her own legal fees, and a costs award of $17,500 in favour of Tomlinson.
 The issue in this action is the extent of a lawyer s obligation in providing independent legal advice to a client who mortgages her home in order to loan money to her ex-husband for his business venture. Is it sufficient that the client understands the nature and consequence of the mortgage agreement and, in particular, that she may lose her home if her ex-husband fails to make the mortgage payments? Or is the lawyer also required to make clear that business ventures are inherently risky and her ex-husband s business venture could fail?
 In 1998, Jean Webb agreed to loan her ex-husband $100,000 so that he could purchase an auto wrecking business. She had been divorced from Reginald Webb for 14 years. At the time, she was 57 years old and working as a human resources assistant at North York General Hospital. She earned about $40,000 a year. Her only substantial asset was her home in Scarborough. The home had a value of about $210,000.
 Reg came to see Jean in February, 1998. Their divorce had been amicable and their relationship remained civil. He told her about his plan to buy an auto wrecking business. According to the financials, the business was generating about $500,000 in annual sales. Reg s accountants thought it was a solid business opportunity. His lawyer, Brian McMurter, agreed. For his part, Reg was sure it was a gold mine . But he needed to borrow $100,000 to complete the purchase. He had no one else to turn to. He asked Jean if she would put a mortgage on her home and loan him the money for one year. Reg was sure that he could pay off the loan in full in one year s time.
 Jean knew that Reg had always been a hard worker and she had confidence in his business abilities. She trusted him. She said she would think about it. She discussed the request with her three adult children. They reassured her that Dad wouldn t screw you . She agreed to take out a one-year mortgage and lend Reg the money. She knew she would get no financial benefit. She did this as a favour to her ex-husband. Reg had no security to give and nothing was put in writing.
 Reg s lawyer, Brian McMurter, prepared the necessary documentation. Mr. McMurter had been Reg and Jean s lawyer for years and was well-known to Jean. He advised Jean that she needed independent legal advice ( ILA ) on the mortgage and that he had arranged a meeting with a nearby lawyer, the defendant, James Tomlinson ( Tomlinson ).
 Jean met with Tomlinson at his office on March 4, 1998. At the conclusion of the meeting she signed the Certificate of Independent Legal Advice and the mortgage documents. Then she went over to Mr. McMurter s office to finalize some remaining details.
 Reg was very grateful. He offered to pay down the $5000 balance on Jean s car lease and he dutifully made all of the required monthly mortgage payments. Unfortunately, after he purchased the new business, he realized that the annual sales figures had been seriously misrepresented. The business was not nearly as profitable as he had been told. He was unable to pay off Jean s mortgage after one year. He told Jean that he needed a bit more time, and he asked her to renew it for another year. Reluctantly, she agreed to do so. Reg did not tell his ex-wife that the business was not doing well. He kept reassuring her that everything was okay.
 For her part, Jean continued to assume that all was well and that Reg had paid off the mortgage by the end of the second year. All of the correspondence from the bank was routinely forwarded to Reg for his review. If there were letters advising that the mortgage had not been discharged or needed to be renewed, Jean did not see them.
 It was only in September, 2001, when she was inquiring at her own bank about a possible home renovation loan that she learned that Reg had not paid off the mortgage and that it was still registered on title. She also learned that Reg had renewed the mortgage for a third year by forging her name to the renewal document. When she confronted her ex-husband, he told her that he was not in a position to pay off the loan.
 Reg also told Jean that he was trying to sell the business and he had a couple of offers that looked promising. He persuaded Jean to give him a bit more time so that he could sell the business and pay off the mortgage. As things turned out, he was unable to sell the business. In March, 2003, Reg Webb and his second wife, Nelly Webb, declared bankruptcy.
 Jean sold her Scarborough home. She moved into a smaller house in Oshawa and refinanced the unpaid mortgage. After deductions for the mortgage payments, the $5000 that Reg had paid on her car lease, and the dividends received from Reg and Nelly s bankruptcy, Jean lost about $64,635. With prejudgment interest, the total amount of the loss sustained to date is $71,404.62.
 Jean now seeks to recover this amount from Tomlinson.
 Jean says that Tomlinson failed to provide the required ILA. Jean says she would never have agreed to mortgage her only asset and loan Reg the $100,000 if Tomlinson had explained the risks, and in particular, the risk that she could lose her home if Reg s business failed and he was unable to pay off the mortgage.
 Tomlinson denies that he failed to provide the required ILA. Quite the contrary, he says he followed the ILA Checklist recommended by the Lawyer s Professional Indemnity Company ( LPIC ), did exactly what was required and made detailed notes about what was said.
 Jean testified that she attended Tomlinson s office on March 4, 1998, with her daughter Lori. They got there around 4.30 pm. The meeting was quite short, maybe 20 minutes. Lori talked about Reg and the new business venture. Jean asked Tomlinson what would happen if the mortgage was not paid off and he replied, it will be discharged in a year at the end of one year, you will be free and clear . Both Jean and Lori testified that nothing was said about the risks to Jean if Reg could not pay off the mortgage; nothing about the risk that Reg s business could fail; nothing about the risk that she could lose her home. Jean signed the ILA Certificate and then went to meet with Mr. McMurter where she signed the mortgage documents.
 Tomlinson is 52 years old. He was called to the bar in 1995. Law is his second career; his first was in government services. Tomlinson testified that he learned as an articling student to take ILA retainers very seriously. He articled with a senior practitioner in Windsor who taught him about the importance of the ILA meeting and the need to take detailed notes. During his articling year, he observed six ILA meetings involving his principal, and between 1995 and March 4, 1998 when he met with Jean Webb, he had also conducted three or four ILA meetings on his own in his practice as a sole practitioner.
 Tomlinson testified that only Jean attended the meeting in his office he says he would never have permitted her daughter or any other family member to be present at a meeting where he was retained to provide ILA to a mortgagor.
 He began the meeting by introducing himself and telling Jean that she was there to be advised on the mortgage transaction. He used an ILA Checklist that he had reviewed and photocopied from a 1997 LPIC newsletter.
 He produced the Checklist that he had filled in during the course of the meeting. The Checklist indicates that the meeting lasted from 4:35 pm to 5:20 pm and that the following items were noted: Jean s address, her marital status, her net worth and that the reason for the ILA was mtge 100K by NB of C , the latter referring to the mortgagee, the National Bank of Canada.
 The Checklist also shows Tomlinson s check marks and his hand-written insertions apparently indicating that the following items were explained to Jean: the nature and consequences of the mortgage; the effect of the power of sale, judicial sale and foreclosure remedies; the risks to the client should Mr. Webb not be able to fulfill obligation . Tomlinson noted that Jean was satisfied the business would do well and she would be repaid fully . This was Tomlinson s understanding of why Jean consented to the mortgage loan.
Initially client advised she knew what the financial obligation with National Bank of Canada was about and she just wanted to sign the documents. I insisted that I first satisfy myself as to whether she understood the consequences of her actions regarding the mortgage.
Client advised of the risk she face should the debtor not able to make the payments. Client confirms she knew what she was doing and wanted to proceed with the deal. Client said transaction should have closed February 98.
I advised client she could eventually lose her asset (house) if the payments became in default I advised client she could lose other property if there was insufficient equity in the house.
Advised client that if payments were not made, the result following default would P of sale, advised client of power of sale. Client indicates she understood she was fully responsible for the payments under the mortgage.
I inquired as to whether client had obtained security, client advised that Mr. Webb had no security to provide to her, however, she was confident/satisfied he would repay the full amount of the obligations to her husband s business was a good venture.
Advised client that if business became financially unable to pay its debts (Mr. Webb) the whole amount would have to be paid by her if Mr. Webb could not pay. Client advised she would not have attended at Institution NB of Canada and sign mortgage papers if she thought she would not get back the $100,000.
Client advised prior to agreeing to the mortgage being placed on her home she knew what the money was being used for and she would not have agreed to put charge on her home otherwise.
I reviewed C of ILA with Ms. Webb, she confirmed that she understood what she was doing and the financial consequences of the transaction.
 At the conclusion of the meeting, Jean signed the ILA Certificate acknowledging that she had retained Tomlinson in regard to a mortgage and that he had explained its content and effect, and in particular, the rights and remedies of the National Bank of Canada in connection with said mortgage . She also signed the mortgage documents that Mr. McMurter had delivered to Tomlinson s office several days earlier. Tomlinson is certain the mortgage and directions were signed in his office because he had made several hand-written insertions that remain apparent on the face of the documents.
 Jean did not bring any materials pertaining to the auto wrecking business to the meeting and Tomlinson admits that he did not discuss the auto wrecking business venture with her in any detail. Nor did he say specifically that business are inherently risky or that Reg s business could fail .
1. Did Tomlinson explain the nature and consequences of the mortgage?
 Banks typically require mortgagors to obtain ILA in order to prevent later claims of non est factum, undue influence or unconscionability. The lawyer that is retained to provide the ILA is required to ensure that the mortgagor fully understands the nature and consequences of entering into a mortgage transaction and is doing so voluntarily. Once the mortgage is explained and the risks of non-payment and the possibility of losing the property that is being secured are understood, and the mortgagor signs the ILA Certificate, she is free to do as she wishes. As noted in Orlando v. Toronto Dominion Bank,  O.J. No. 349 (S.C.J.) at para. 34, [p]eople are free to take risks and make bad deals, as long as they are aware of those risks and the possible adverse consequences .
 In this case, there is no suggestion of undue influence, misrepresentation or unconscionability. There is no evidence that Jean had a language difficulty or any other handicap. The allegation against Tomlinson is that he breached his duty of care in not telling Jean that she could risk losing her house if Reg failed to make the mortgage payments.
 I accept that Jean Webb is not an experienced or sophisticated business woman. But nor is she unsophisticated or uninformed. She was employed as human resources assistant at North York General Hospital. When she was married to Reg she did all of the invoicing for his trucking company and she handled the financial matters relating to a small cottage rental business that they operated over the summers.
 She testified that she knew what a mortgage was, having signed or co-signed several over the years. She said she understood that if mortgage payments were not made, the bank could sell the mortgaged property that there was a risk that one could lose her home.
 She also gave evidence that she was willing to take this risk because she had confidence in Reg s business abilities. She didn t think that Reg s business venture would fail.
The purpose of requiring independent legal advice is to assure that there is an appreciation of the nature and consequence of completing a transaction with potential adverse results. However, where the understanding is complete without independent advice, the objective is still achieved and the purpose of the rule satisfied.
 For my part, I would prefer to base my decision on whether or not the various risks and consequences were in fact fully and properly explained by Tomlinson, even though Jean may well have already understood them.
 The evidence of Jean and Tomlinson as to what was discussed at the ILA meeting is diametrically opposed. However, as between the two parties, I prefer and accept the evidence of Tomlinson. I do so for two reasons. First, Jean was attempting to remember the details of a meeting that took place more than 8 years ago. She did not take notes. She was also mistaken in a number of important respects. She was adamant that it was a very short meeting; but given the issues that were discussed as recorded in the notes that were taken by Tomlinson, I find it more likely that the meeting was at least 45 minutes as indicated in the Checklist and in the notes. I also find, given Tomlinson s principled position that he would never allow family members into an ILA meeting, that Jean was mistaken when she said that her daughter Lori was present. And, given Tomlinson s evidence of his hand-written insertions on the face of the mortgage documents, I conclude that these were signed in Tomlinson s office, and not in McMurter s office as Jean recalled. Given these errors, I do not have a great deal of confidence in Jean s recollection of what was or was not discussed.
 Secondly, and more importantly, I accept the evidence of Tomlinson as based on his Checklist and his hand-written notes. I find that Tomlinson fully satisfied all of the requirements for ILA he assured himself that Jean was signing the mortgage of her own free will and that she understood the nature and consequences of so doing. In particular, he explained that if the mortgage payments were not made by Reg, the bank would pursue its rights under the mortgage and Jean could lose her home. In my view this is more than apparent from both the Checklist and the excerpts from the hand-written notes that were quoted above.
2. Was Tomlinson required to make clear that business ventures are risky and that Reg s business could fail?
 Jean s counsel submits that because Jean was about to mortgage her only asset simply as a favour to her ex-husband and get nothing in return, this was a presumptively improvident transaction. The lawyer providing ILA was therefore required to ensure not only that his client understood the nature and consequences of taking out the mortgage, but also that business ventures are inherently risky, Reg s business venture could fail and she could lose her home.
 Jean s counsel agrees that Tomlinson had no obligation to review the business plans or financial statements of Reg s auto wrecking business. The caselaw is clear that lawyers providing ILA in the execution of a mortgage loan are generally not required to go beyond the mortgage transaction to assess the financial feasibility of how the mortgage funds will be used. Lawyers giving ILA are required to explain to prospective mortgagors the legal responsibilities and liabilities arising from the execution of the mortgage. They are not required to give business advice: see Fasciani v. Banca Commerciale Italiana of Canada,  O.J. No. 2631 (Gen. Div.) at para. 26 and Accurate Fasteners Ltd. v. Gray,  O.J. No. 4175 (S.C.J.) at para. 11.
 Here, however, and at the very least, says Jean s counsel, Tomlinson should have clearly brought to Jean s attention that business ventures are risky and that any business venture, including Reg s auto wrecking business, can fail. Jean should have been told in no uncertain terms that if this happens, Reg would not be able to pay off the mortgage and Jean could lose her home. It was Tomlinson s responsibility, says Jean s counsel, not only to do so orally but to set out these risks in writing so that Jean could have fully understood the dangers of embarking on what was a most improvident transaction.
 I do not agree with this submission for the following three reasons. First, many mortgage loans that are taken out to lend money to a family member or friend are not commercially sensible. But this does not mean that they are improvident (that is, rash or ill-considered) transactions. The loan is often discussed and seriously considered. The lender knows that she is getting nothing out of the transaction, other than the pleasure of helping, and the thanks of, the borrower. The money is being loaned as a favour and nothing more. Oftentimes, as here, the lender trusts the borrower and believes that the money will be paid back, and, in any event, is willing to accept the risk of non-payment.
It is for adult persons of competent mind to decide whether they will do an act, and I do not think that independent and competent advice means independent and competent approval. It simply means that the advice shall be removed entirely from the suspected atmosphere; and that from the clear language of an independent mind, they should know precisely what they are doing.
 In my view, Jean knew what she was doing. Her decision to mortgage her home and lend Reg the money was not rash or ill-considered. She knew that she was getting nothing tangible in return. She probably understood the risks of mortgage default even before she attended the ILA meeting with Tomlinson and she certainly understood them after the meeting was over. She executed the mortgage because she believed in her ex-husband; she believed his business would succeed and that the mortgage would be paid off. She understood and willingly accepted the risk of non-payment.
 Secondly, the additional obligation that is being imposed upon Tomlinson to explain to Jean that Reg s business could fail and she could lose her home was in my view satisfied when Tomlinson told Jean that if Reg didn t make the mortgage payments, she could lose her home. If Reg couldn t make the mortgage payments as promised, it would probably be because his business was failing. The latter point about the business failing is surely subsumed in the former point about Reg not being able to make the payments.
 I therefore conclude that even if Tomlinson was required to tell Jean explicitly that Reg s business could fail and she could lose her home, he did so. There is nothing further that Tomlinson could or should have done. He did not breach the standard of care in providing ILA to Jean Webb on March 4, 1998.
 The action against the defendant James Tomlinson is dismissed with costs.
 If the parties cannot agree on costs, I will be pleased to receive written submissions not exceeding four pages within 30 days of the release of this Endorsement.
1 E.P. BELOBABA J.: In the Endorsement released on May 31, 2006, I dismissed Jean Webb's action against her lawyer, James Tomlinson for allegedly breaching the appropriate standard of care in providing independent legal advice on a mortgage transaction. I found that Tomlinson did what was required of a lawyer providing independent legal advice and did not breach any duty or standard of care in doing so.
2 I have now reviewed the parties' costs submissions.
3 The successful party, Tomlinson, submits that he is entitled to costs on a substantial indemnity basis of some $100,000, and about $77,000 on a partial indemnity basis. He would, however, be content with a costs award of $60,000. The unsuccessful party, Webb, argues that no costs should be awarded, or if any costs are awarded, they should be nominal.
4 For the reasons set out below, the submissions of both parties are, in my view, untenable.
5 I begin with the observation that this was a three and a half day trial. The amount in dispute, i.e. the damages being claimed by Webb, was about $65,000. If costs are to be awarded on a partial indemnity basis, the costs award must reasonably reflect these two realities.
6 Tomlinson suggests that costs should be a substantial indemnity basis because of the allegation that his hand-written notes of the meeting with Webb were fabricated and that this is tantamount to an allegation of fraud. However, not every unproven allegation of fraud or dishonesty necessarily results in costs being awarded on a substantial indemnity scale. I accept Webb's submission that the case law requires a high standard of misconduct before costs on a substantial indemnity scale can be justified, i.e. conduct that is reprehensible, scandalous or outrageous. Such was not the case here.
7 Tomlinson also submits the proceedings were lengthened and made more costly because of certain issues that were raised by Webb and later withdrawn or not pursued and by the jousting over experts' reports. Tomlinson says he is entitled to at least $77,000 on a partial indemnity but would be content with a costs award of $60,000.
8 Webb is at the other end of the spectrum and urges that this is a case where no costs or at most nominal costs should be awarded. Webb says that this case was akin to a public interest lawsuit, or a test case where courts have often declined to award costs against the unsuccessful party.
9 I do not agree. Although no doubt important to the actual litigants, this is not a case that falls into either of these categories. This was not a public interest litigation as normally understood and as described in the cases cited by counsel for the plaintiff. Nor can it fairly described as a test case. The action was not brought to vindicate the public interest. This was a conventional claim for damages against a solicitor for breaching the applicable standard of care in the provision of independent legal advice. Webb says that her argument that Tomlinson should have warned Webb that business ventures can fail is "novel". This may well be so, but no more so than any legal argument in any case that attempts to persuade the court that the defendant's action or inaction was in breach of the applicable standard of care.
10 I therefore do not agree that this is the kind of case where no costs or nominal costs should be awarded. The unsuccessful plaintiff should be required to pay some costs on a partial indemnity basis. The question is how much.
11 Webb says that if costs are awarded, the costs award should not exceed $10,000. She asks the court to take into account her financial circumstances. She is already burdened by an $80,000 mortgage from which she got no benefit, and her modest home is her only asset. A large costs award, she says, would be financially devastating.
12 The case law is clear that hardship and the personal circumstances of the parties are factors that may be taken into account in assessing costs: Stronge v. London Life Insurance Company,  O.J. No. 103 (Ont. Ct. Gen. Div.), Gagro v. Morrison (1995), 43 C.P.C (3d) 11 (Ont. Ct. Gen. Div.), and Coughlin v. Comery,  O.J. No. 2253 (Ont. Ct. Gen. Div.).
14 On the other hand, one must remember that the overall objective in fixing costs is to fix an amount that is fair and reasonable to the unsuccessful party rather than an amount fixed by the actual costs incurred by the successful litigant: Boucher v. Public Accountants Council of Ontario, (2004) 71 O.R. (3d) 291 at para 26.
15 I note that that in her settlement offer of March 3, 2005, Webb would have accepted $50,600 plus interest, plus another $15,000 to cover her legal costs to date on a partial indemnity basis. Granted, this offer to accept $15,000 in costs was contingent on receiving a further $50,000 to settle the action. Nonetheless, it provides some indication Ms. Webb's expectation had she been successful in this action. If one adds another $5000 for the three and a half day trial, then the appropriate costs award, using Ms. Webb's template, is somewhere in the range of $20,000.
16 I recognize Ms. Webb's limited financial circumstances and I am prepared to make an adjustment in this regard. In my view, a costs award of $17,500 is fair and reasonable having regard to the issues, the amount in dispute, the various disbursements incurred and the fact that the trial lasted three and a half days.
17 Costs are therefore fixed in the amount of $17,500, inclusive of disbursements and GST, and are made payable forthwith to the defendant Tomlinson by the plaintiff Webb.

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Akhmetshin R. R., Anisenkov A. V., Aulchenko V. M., Banzarov V. S., Bashtovoy N. S., Berkaev D. E., Bragin A. V., Eidelman S. I., Epifanov D. A., Epshteyn L. B., Erofeev A. L., Fedotovich G. V., Gayazov S. E., Grebenuk A. A., Grigoriev D. N., Gromov E. M., Ignatov F. V., Karpov S. V., Ivanov V. L., Kazanin V. F., Khazin B. I., Kirpotin A. N., Koop I. A., Kovalenko O. A., Kozyrev A. N., Kozyrev E. A., Krokovny P. P., Kuzmenko A. E., Kuzmin A. S., Logashenko I. B., Lukin P. A., Lysenko A. P., Mikhailov K. Yu, Okhapkin V. S., Pestov Yu N., Perevedentsev E. A., Popov A. S., Popov Yu S., Razuvaev G. P., Rogovsky Yu A., Romanov A. L., Ruban A. A., Ryskulov N. M., Ryzhenenkov A. E., Shebalin V. E., Shemyakin D. N., Shwartz B. A., Shwartz D. B., Sibidanov A. L., Shatunov P. Yu, Shatunov Yu M., Solodov E. P., Titov V. M., Talyshev A. A., Vorobiov A. I., Yudin Yu V., Zharinov Yu M.
© 2014 IOP Publishing Ltd and Sissa Medialab srl. Since December 2010 the CMD-3 detector has taken data at the electron-positron collider VEPP-2000. The collected data sample corresponds to an integrated luminosity of 60 pb-1 in the c.m. energy from 0.32 up to 2 GeV. The preliminary results of the luminosity measurement are presented in various energy ranges. The current accuracy for integrated luminosity is estimated to be 1%.

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The right of Floridians to keep and bear arms is protected under both state and federal law, but firearms and weapons are prohibited from being carried into certain protected locations. Additionally, only licensed individuals are allowed to carry concealed weapons or firearms.
People who carry concealed firearms or weapons without a valid license can face criminal charges, and some alleged crimes can be felony offenses that can result in possible loss of the right to possess firearms. Many individuals accused of this crime committed violations unknowingly and may be able to have criminal charges reduced or dismissed through certain defenses.
Were you recently arrested for allegedly carrying a concealed firearm or weapon in South Florida? Do not say anything to authorities without legal counsel. Contact Meltzer & Bell today for help protecting your legal rights.
Fort Lauderdale criminal defense attorneys Lawrence Meltzer and Steven Bell represent clients accused of firearm and weapons offenses in Pembroke Pines, Hollywood, Miramar, Coral Springs, Pompano Beach, Davie, Plantation, Fort Lauderdale, and many surrounding areas of Broward County. Call (561) 557-8686 right now to have our lawyers provide a complete evaluation of your case during a free, confidential consultation.
Is there a difference between a concealed firearm and concealed weapon?
Where can I learn more about carrying a concealed weapon in Broward County?
Concealed Firearm, Florida Statute § 790.001(2) — Any firearm—defined in Florida Statute § 790.001(6) as “any weapon (including a starter gun) which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; any destructive device; or any machine gun (“firearm” does not include an antique firearm unless the antique firearm is used in the commission of a crime which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person)—that is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.
Concealed Weapon, Florida Statute § 790.001(3) — Any dirk, metallic knuckles, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.
A person who carries a concealed weapon, or a person who may lawfully possess a firearm and who carries a concealed firearm, on or about his or her person while in the act of evacuating during a mandatory evacuation order issued during a state of emergency declared by the governor pursuant to chapter 252 or declared by a local authority pursuant to chapter 870. As used in this subsection, the term “in the act of evacuating” means the immediate and urgent movement of a person away from the evacuation zone within 48 hours after a mandatory evacuation is ordered. The 48 hours may be extended by an order issued by the governor.
A person who carries for purposes of lawful self-defense, in a concealed manner a self-defense chemical spray or a nonlethal stun gun or dart-firing stun gun or other nonlethal electric weapon or device that is designed solely for defensive purposes.
First-degree misdemeanor convictions for carrying a concealed weapon or electric weapon or device are punishable by up to one year in jail and/or a fine of up to $1,000. Third-degree felony convictions for carrying a concealed firearm are punishable by up to five years in prison and/or a fine of up to $5,000.
It is important to note that Florida Statute § 790.07 makes it a third-degree felony if an alleged offender carries a concealed weapon while committing or attempting to commit any felony or while under indictment. If a person carries a concealed firearm while committing or attempting to commit any felony, he or she can be charged with a second-degree felony punishable by up to 15 years in prison and/or a fine of up to $10,000.
Florida Statute § 790.23 also makes it a second-degree felony for any person who is a convicted felon to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device. If any alleged criminal offense was committed for the purpose of benefiting, promoting, or furthering the interests of a criminal gang, Florida Statute § 874.04 establishes that penalties will be enhanced by one level, such that a first-degree misdemeanor becomes a third-degree felony, a third-degree felony becomes a second-degree felony, and a second-degree felony becomes a first-degree felony punishable by up to life in prison and/or a fine of up to $10,000.
Florida Concealed Weapon License Application Information | Florida Department of Agriculture and Consumer Services — Concealed carry permits are issued by the Florida Department of Agriculture and Consumer Services. Visit this website to check the status of your application, renew your license, and find answers to frequently asked questions. You can also find reciprocity information concerning states recognizing Florida licenses.
Is Florida’s statutory scheme related to the open carry of firearms constitutional?
Do the exceptions to the prohibition against open carry constitute affirmative defenses to a prosecution for a charge of open carry, or does the State need to prove beyond a reasonable doubt that a particular defendant is not conducting himself or herself in the manner allowed[, meaning that they are elements of the crime]?
Does the recent “brief and open display” exception unconstitutionally infect the open carry law by its vagueness?
If you were arrested for allegedly carrying a concealed firearm or weapon anywhere in Broward County, it is in your best interest to immediately seek legal representation. Meltzer & Bell defends residents and visitors all over South Florida, including Deerfield Beach, Weston, Tamarac, Margate, Coconut Creek, Hallandale Beach, Wilton Manors, Sunrise, and several other nearby communities.
Lawrence Meltzer and Steven Bell are experienced criminal defense lawyers in Fort Lauderdale who will work diligently to help you achieve the most favorable resolution to your case, including possibly having the criminal charges minimized or completely eliminated. They can review your case and help you understand all of your legal options when you call (561) 557-8686 or fill out an online contact form to receive a free initial consultation.