The issue of the taxable status of awards received by a taxpayer from his tax adviser was addressed in the case of Cosentino v. Commissioner, TC Memo 2014-186. While the Tax Court granted the taxpayer a victory, the IRS has announced nonacquiesence with regard to this case (AOD 2016-01).
A key issue when a taxpayer receives a damage award related to negligent tax advice is whether the amounts received will be taxable income to the taxpayer or not. Generally when a taxpayer receives questionable tax advice, the taxpayer will file a claim against the adviser and argue for damages for taxes, interest and penalties. The argument for the tax payment generally is based on the claim that if the taxpayer had known the action the adviser was suggesting would not have led to the claimed tax savings, the taxpayer would have taken other actions to reduce his taxes.
The question of whether or not the payment is taxable is important to the tax adviser against whom damages are sought since the client, to be made whole, will likely seek a higher damage payment in order to cover the tax likely to be due on the settlement, in effect “grossing up” the damages so that after taxes the client is “made whole” in the situation.
That also can pose risk to the parties advising the aggrieved taxpayer in arriving at a settlement of the issue if the potential taxable nature of the settlement isn’t considered.
The fact pattern in this case involved a claim of “bad advice” that caused the taxpayer to pay income taxes which the taxpayer now believes should not have been paid. The taxpayer had entered into a variant of a basis inflation shelter to offset a gain the taxpayer would be incurring from the sale of real estate. When the taxpayer discovered that the IRS had listed this type of arrangement as a potentially abusive one, the taxpayer filed immediate amended tax returns and paid the tax due.
The taxpayer asked for damages from the adviser who suggested the basis inflation shelter arguing that if the taxpayer had not entered into a basis inflation shelter the taxpayer would have entered into a §1031 exchange.
In CCA 201307005 the IRS had considered a similar “I would have done something differently” claim related to receipt of a damage award from a tax adviser and decided the taxpayer would not be able to exclude the amount from income. The IRS distinguished that situation from the holding in the case of Clark v. Commissioner, 40 BTA 333 (1939), acq.
In the Clark case the taxpayer received damages when the adviser gave bad advice causing the taxpayer to file a joint return. Later the error was uncovered and it was found that had the taxpayers filed separate returns there would have been significantly less tax paid. Since the taxpayer’s election to file a joint return could not corrected after the fact, the adviser paid an amount equal to the excess tax. In that case, the Court found that the payment was clearly for taxes that never needed to be paid, thus simply restoring the taxpayer to the state they should have been in—thus, the award was not taxable.
However, in the case in the CCA the IRS pointed out that there was no evidence the taxpayer had abandoned an alternative that would have had the same effect nor any evidence any such arrangement was under consideration. While it was clear in Clark that the taxpayer had relied on the adviser for a simple binary choice (file joint or separate), there was no such binary issue here.
Not surprisingly, the IRS argued the same thing in this case.
But this case had a few unique facts. While the case in the CCA involved a taxpayer who was suggesting they certainly could have found something they could have done, the taxpayer here had previously entered into §1031 exchanges multiple times in the past to avoid taxes.
The IRS objected that this was all fine, but §1031 is simply a deferral mechanism, not ultimately a mechanism that would remove the tax. So the taxpayers were in a better position having avoided ever having to pay this tax.
However, the taxpayer had a clearly outlined plan to continue to enter into §1031 exchanges until the real property passed through an estate, at which point the basis would be stepped up. As the Court noted, this would mean that, if the plan was executed, no tax would ever be paid on the appreciation.
Thus, in this case the Court found the amount of damages related to the tax paid was not includable in the taxpayers’ income.
In April of 2016 the IRS announced that it was issuing a formal notice of nonacquiesence in the result arrived at in the Cosentino case (AOD 2016-01).
…[T]he taxpayers in this case paid the correct amount of Federal income tax based on the transaction they entered into. In this transaction, the taxpayers received taxable boot as part of their consideration upon the disposition of the rental property. When the artificially inflated basis was disregarded, the boot resulted in gain recognition from the exchange and the imposition of tax on that gain. Once this transaction was completed, no choices were available to the taxpayers to reduce this taxable gain. It was the facts of the transaction, and not a failure to make an election or a failure to timely file an appeal, that caused the taxpayers to incur additional tax.
In light of the underlying gain recognition transaction, the amount of tax imposed was not more than what they properly owed on that transaction and, consequently, the taxpayers did not sustain a loss. To the contrary, because the taxpayers received the boot, and because they continued to receive the benefit of both the boot and the basis in the newly acquired real property even after the abusive tax shelter transaction was disregarded, taxpayers financially were in a better (not merely restored) position after the settlement than they were in before entering the transaction.
In reaching its holding, the court considered the taxpayers’ plan to use a lifetime series of tax-free exchanges, followed by a step up in basis at death, to permanently avoid paying taxes on the gain from these transactions. We disagree with the court’s reliance on these facts. The taxpayers’ ability to execute that tax planning strategy was purely speculative, and a change in the taxpayers circumstances, or even a change to the provisions of the Internal Revenue Code, could have altered the strategy at any time.
This can be viewed of a form “burying the lead” by the IRS in this case since this very factor (the lifetime plan) was the key fact the Court relied upon. It’s also important to note that this footnote analysis never actually cites to any supporting authorities justifying this view, rather representing the IRS’s commentary on this way of viewing the situation—a method of viewing the situation the Court clearly accepted.
Nevertheless, the publication of this document puts taxpayers and their advisers on notice that the IRS has announced it is not going to accept the Cosentino case as representing valid authority. Advisers should expect agents to balk at accepting a “lifetime plan” defense to exclusion of negligent tax advice damages based on a supposed alternative that would have been undertaken.


Joseph Story was a member of the U.S. House of Representatives from Massachusetts’s 2nd district (May 23, 1808 – March 3, 1809), Associate Justice of the United States Supreme Court (November 18, 1811 – September 10, 1845), and is the author of the first comprehensive treatise ever written on the U.S. Constitution. Below is the section of Story’s Commentaries on the Constitution that deals with the District of Columbia when it was still a diamond on the map.
POWER OVER SEAT OF GOVERNMENT AND OTHER CEDED PLACES.
to exercise like authority over all places purchased by the consent of the legislature of the state, in which the same shall be, for the erection of FORTS, MAGAZINES, ARSENALS, and other needful BUILDINGS."
§ 1213. The indispensable necessity of complete and exclusive power, on the part of the congress, at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, and one might say of the World, by virtue of its general supremacy. Without it not only the public authorities might be insulted, and their proceedings be interrupted with impunity; but the public archives might be in danger of violation, and destruction, and a dependence of the members of the national government on the state authorities for protection in the discharge of their functions be created, which would bring on the national councils the imputation of being subjected to undue awe and influence, and might, in times of high excitement, expose their lives to jeopardy. It never could be safe to leave in possession of any state the exclusive power to decide, whether the functionaries of the national government should have the moral or physical power to perform their duties. 2 It might subject the favoured state to the most unrelenting jealousy of the other states, and introduce earnest controversies from time to time respecting the removal of the seat of government.
representatives of the whole Union. 3 It is not improbable, that an occurrence, at the very close of the revolutionary war, had a great effect in introducing this provision into the constitution. At the period alluded to, the congress, then sitting at Philadelphia, was surrounded and insulted by a small, but insolent body of mutineers of the continental army. Congress applied to the executive authority of Pennsylvania for defence; but, under the ill-conceived constitution of the state at that time, the executive power was vested in a council consisting of thirteen members; and they possessed, or exhibited so little energy, and such apparent intimidation, that congress indignantly removed to New-Jersey, whose inhabitants welcomed them with promises of defending them. Congress remained for some time at Princeton without being again insulted, till, for the sake of greater convenience, they adjourned to Annapolis. The general dissatisfaction with the proceedings of Pennsylvania, and the degrading spectacle of a fugitive congress, were sufficiently striking to produce this remedy. 4 Indeed, if such a lesson could have been lost upon the people, it would have been as humiliating to their intelligence, as it would have been offensive to their honour.
§ 1215. And yet this clause did not escape the common fate of most of the powers of the national government. It was represented, as peculiarly dangerous. It may, it was said, become a soft of public sanctuary, with exclusive privileges and immunities of every sort. It may be the very spot for the establishment of tyranny, and of refuge of the oppressors of the people. The inhabitants will be answerable to no laws, except those of congress. A powerful army may be here kept on foot; and the most oppressive and sanguinary laws may be passed to govern the district. 5 Nay, at the distance of fourteen years after the constitution had quietly gone into operation, and this power had been acted upon with a moderation, as commendable, as it ought to be satisfactory, a learned commentator expressed regret at the extent of the power, and intimated in no inexplicit terms his fears for the future. "A system of laws," says he, "incompatible with the nature and principles of a representative democracy, though not likely to be introduced at once, may be matured by degrees, and diffuse its influence through the states, and finally lay the foundation of the most important changes in the nature of the federal government. Let foreigners be enabled to hold lands, and transmit them by inheritance, or devise; let the preference to males, and the rights or primogeniture he revived with the doctrine of entails; and aristocracy will neither want a ladder to climb by, nor a base for its support.6"
§ 1216. What a superstructure to be erected on such a narrow foundation! Several of the states now permit foreigners to hold and transmit lands; and yet their liberties are not overwhelmed. The whole South, before the revolution, allowed and cherished the system of primogeniture; and yet they possessed, and transmitted to their children their colonial rights and privileges, and achieved under this very system the independence of the country. The system of entails is still the law of several of the states; and yet no danger has yet assailed them. They possess, and enjoy the fruits of republican industry and frugality, without any landed or other aristocracy. And yet the petty district of ten miles square is to overrule in its policy and legislation all, that is venerable and admirable in state legislation! The states, and the people of the states are represented in congress. The district has no representatives there; but is subjected to the exclusive legislation of the former. And yet congress, at home republican, will here nourish aristocracy. The states will here lay the foundation for the destruction of their own institutions, rights, and sovereignty. At home, they will follow the legislation of the district, instead of guiding it by their precept and example. They will choose to be the engines of tyranny and oppression in the district, that they may become enslaved within their own territorial sovereignty. What, but a disposition to indulge in all sorts of delusions and alarms, could create such extraordinary flights of imagination? Can such things be, and overcome us, like a summer’s cloud, without our special wonder? At this distance of time, it seems wholly unnecessary to refute the suggestions, which have been so ingeniously urged. If they prove any thing, they prove, that there ought to be no government, because no persons can be found worthy of the trust.
§ 1218. The inhabitants enjoy all their civil, religious, and political rights. They live substantially under the same laws, as at the time of the cession; such changes only having been made, as have been devised, and sought by themselves. They are not indeed citizens of any state, entitled to the privileges of such; but they are citizens of the United States. They have no immediate representatives in congress. But they may justly boast, that they live under a paternal government, attentive to their wants, and zealous for their welfare. They, as yet, possess no local legislature; and have, as yet, not desired to possess one. A learned commentator has doubted, whether congress can create such a legislature, because it is the delegation of a delegated authority.7 A very different opinion was expressed by the Federalist; for it was said, that "a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them."8 In point of fact, the corporations of the three cities within its limits possess and exercise a delegated power of legislation under their charters, granted by congress, to the full extent of their municipal wants, without any constitutional scruple, or surmise of doubt.
§ 1224. "In the enumeration of the powers of congress, which is made in the eighth section of the first article, we find that of exercising exclusive legislation over such district, as shall become the seat of government. This power, like all others, which are specified, is conferred on congress, as the legislature of the Union; for, strip them of that character, and they would not possess it. In no other character can it be exercised. In legislating for the district, they necessarily preserve the character of the legislature of the Union; for it is in that character alone, that the constitution confers on them this power of exclusive legislation. This proposition need not be enforced. The second clause of the sixth article declares, that ‘this constitution, and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land.’ The clause, which gives exclusive jurisdiction, is unquestionably a part of the constitution, and, as such, binds all the United States. Those, who contend, that acts of congress, made in pursuance of this power, do not, like acts made in pursuance of other powers, bind the nation, ought to show some safe and clear rule, which shall support this construction, and prove, that an act of congress, clothed in all the forms, which attend other legislative acts, and passed in virtue of a power conferred on, and exercised by congress, as the legislature of the Union, is not a law of the United States, and does not bind them.
§ 1225. "One of the gentlemen sought to illustrate his proposition, that congress, when legislating for the district, assumed a distinct character, and was reduced to a mere local legislature, whose laws could possess no obligation out of the ten miles square, by a reference to the complex character of this court. It is, they say, a court of common law, and a court of equity. Its character, when sitting as a court of common law, is as distinct from its character, when sitting as a court of equity, as if the powers belonging to those departments were vested in different tribunals. Though united in the same tribunal, they are never confounded with each other. Without inquiring, how far the union of different characters in one court may be applicable, in principle, to the union in congress of the power of exclusive legislation in some places, and of limited legislation in others, it may be observed, that the forms of proceedings in a court of law are so totally unlike the forms of proceedings in a court of equity, that a mere inspection of the record gives decisive information of the character, in which the court sits, and consequently of the extent of its powers. But if the forms of proceeding were precisely the same, and the court the same, the distinction would disappear.
§ 1226. "Since congress legislates in the same forms, and in the same character, in virtue of powers of equal obligation conferred in the same instrument, when exercising its exclusive powers of legislation, as well as when exercising those, which are limited, we must inquire, whether there be any thing in the nature of this exclusive legislation, which necessarily confines the operation of the laws, made in virtue of this power, to the place, with a view to which they are made. Connected with the power to legislate within this district, is a similar power in forts, arsenals, dock-yards, &c. Congress has a right to punish murder in a fort, or other place within its exclusive jurisdiction; but no general right to punish murder committed within any of the states. In the act for the punishment of crimes against the United States, murder committed within a fort, or any other place or district of country, under the sole and exclusive jurisdiction of the United States, is punished with death. Thus congress legislates in the same act, under its exclusive and its limited powers.
§ 1227. "The act proceeds to direct, that the body of the criminal, after execution, may be delivered to a surgeon for dissection, and, punishes any person, who shall rescue such body during its conveyance from the place of execution to the surgeon, to whom it is to be delivered. Let these actual provisions of the law, or any other provisions, which can be made on the subject, be considered with a view to the character, in which congress acts, when exercising its powers of exclusive legislation. If congress is to be considered merely as a local legislature, invested, as to this object, with powers limited to the fort, or other place, in which the murder may be committed, if its general powers cannot come in aid of these local powers, how can the offence be tried in any other court, than that of the place, in which it has been committed? How can the offender be conveyed to, or tried in, any other place? How can he be executed elsewhere? How can his body be conveyed through a country under the jurisdiction of another sovereign, and the individual punished, who, within that jurisdiction, shall rescue the body? Were any one state of the Union to pass a law for trying a criminal in a court not created by itself, in a place not within its jurisdiction, and direct the sentence to be executed without its territory, we should all perceive, and acknowledge its incompetency to such a course of legislation. If congress be not equally incompetent, it is, because that body unites the powers of local legislation with those, which are to operate through the Union, and may use the last in aid of the first; or, because the power of exercising exclusive legislation draws after it, as an incident, the power of making that legislation effectual; and the incidental power may be exercised throughout the Union, because the principal power is given to that body, as the legislature of the Union.
§ 1228. "So, in the same act, a person, who, having knowledge of the commission of murder, or other felony, on the high seas, or within any fort, arsenal, dockyard, magazine, or other place, or district of country within the sole and exclusive jurisdiction of the United States, shall conceal the same, &c. he shall be adjudged guilty of misprision of felony, and shall be adjudged to be imprisoned, &c. It is clear, that congress cannot punish felonies generally; and, of consequence, cannot punish misprision of felony. It is equally clear, that a state legislature, the state of Maryland for example, cannot punish those, who, in another state, conceal a felony committed in Maryland. How, then, is it, that congress, legislating exclusively for a fort, punishes those, who, out of that fort, conceal a felony committed within it?
§ 1229. "The solution, and the only solution of the difficulty, is, that the power vested in congress, as the legislature of the United States, to legislate exclusively within any place ceded by a state, carries with it, as an incident, the right to make that power effectual. If a felon escape out of the state, in which the act has been committed, the government cannot pursue him into another state, and apprehend him there; but must demand him from the executive power of that other state. If congress were to be considered merely, as the local legislature for the fort, or other place, in which the offence might be committed, then this principle would apply to them, as to other local legislatures; and the felon, who should escape out of the fort, or other place, in which the felony may have been committed, could not be apprehended by the marshal, but must be demanded from the executive of the state. But we know, that the principle does not apply; and the reason is, that congress is not a local legislature, but exercises this particular power, like all its other powers, in its high character, as the legislature of the Union. The American people thought it a necessary power, and they conferred it for their own benefit. Being so conferred, it carries with it all those incidental powers, which are necessary to its complete and effectual execution.
2. The Federalist, No. 43; 2 Elliot’s Debates 92, 321,322, 326.
3. The Federalist, No. 43; 2 Elliot’s Debates 92, 321, 322, 326, 327.
Cameo on the History Channel's "How the States Got Their Shapes"


On September 15-17, 2014, the U.S. Food and Drug Administration (FDA) conducted an investigation of your dairy operation located at 1350 South 2250 East, Hazelton, Idaho 83335. This letter notifies you of the violations of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) that we found during our investigation of your operation. You can find the FD&C Act and its associated regulations on the Internet through links on FDA’s web page at www.fda.gov.
We found that you offered for sale an animal for slaughter as food that was adulterated. Under section 402(a)(2)(C)(ii) of the FD&C Act, 21 U.S.C. §342(a)(2)(C)(ii), a food is deemed to be adulterated if it bears or contains a new animal drug that is unsafe under section 512 of the FD&C Act, 21 U.S.C. § 360b. Further, under section 402(a)(4) of the FD&C Act, 21 U.S.C. § 342(a)(4), a food is deemed to be adulterated if it has been held under insanitary conditions whereby it may have been rendered injurious to health.
Specifically, our investigation revealed that on or about February 18, 2014, you sold a dairy cow identified with ear tag (b)(4), back tag (b)(4), and retain tag (b)(4) for slaughter as food. On or about February 18, 2014, (b)(4), slaughtered this animal. United States Department of Agriculture, Food Safety and Inspection Service (USDA/FSIS) analysis of tissue samples collected from this animal identified the presence of 0.17 parts per million (ppm) of ampicillin in the kidney tissue. FDA has established a tolerance of 0.01 ppm for residues of ampicillin in the uncooked edible tissue of cattle as codified in Title 21, Code of Federal Regulations (C.F.R.), Section 556.40, 21 C.F.R. 556.40. The presence of this drug in edible tissue from this animal in this amount causes the food to be adulterated within the meaning of section 402(a)(2)(C)(ii) of the FD&C Act, 21 U.S.C. § 342(a)(2)(C)(ii).
We also found that you adulterated the new animal drugs Polyflex (Ampicillin, Injectable Suspension, NADA #055-030), Di-Methox (Sulfadimethoxine Injection 40%, Antibacterial, ANADA #200-038), Tetroxy-LA (Oxytetracycline, Injectable, ANADA #200-117), and Excede (Ceftiofur Crystalline Free Acid, Sterile Suspension, NADA #141-209). Specifically, our investigation revealed that you did not use Polyflex, Di-Methox, Tetroxy-LA, and Excede as directed by their approved label or by the servicing veterinarian’s prescription. Use of these drugs in this manner is an extralabel use. See 21 C.F.R. 530.3(a). We have enclosed a copy for your reference.
Our investigation found that you administered Polyflex (Ampicillin, Injectable Suspension, NADA #055-030) to your dairy cow, ear tag (b)(4), back tag (b)(4), and retain tag (b)(4), without following the dose set forth in the approved product labeling. Your extralabel use of Polyflex was not under the supervision of a licensed veterinarian, in violation of 21 C.F.R. 530.11(a) and your extralabel use of Polyflex resulted in illegal residues, in violation of 21 C.F.R. 530.11(d). Because your use of this drug was not in conformance with its approved labeling and did not comply with 21 C.F.R. Part 530, you caused the drug to be unsafe under section 512(a) of the FD&C Act, 21 U.S.C. § 360b(a), and adulterated within the meaning of section 501(a)(5) of the FD&C Act, 21 U.S.C. § 351(a)(5).
Our investigation found that you administered Di-Methox (Sulfadimethoxine Injection 40%, Antibacterial, ANADA #200-038), to your lactating dairy cows without following the dose set forth in the approved product labeling. Your extralabel use of Di-Methox was not under the supervision of a licensed veterinarian, in violation of 21 C.F.R. 530.11(a). In addition, sulfonamide drugs, which include sulfadimethoxine, are prohibited by 21 CFR 530.41(a)(9), for extralabel use in lactating dairy cattle.
Our investigation found that you administered Tetroxy-LA (Oxytetracycline, Injectable, ANADA #200-117) to your lactating dairy cows without following the dose and species class (i.e. not for use in lactating dairy animals) as set forth in the approved product labeling. Your extralabel use of Tetroxy-LA was not under the supervision of a licensed veterinarian, in violation of 21 C.F.R. 530.11(a).
Our investigation found that you administered Excede (Ceftiofur Crystalline Free Acid, Sterile Suspension, NADA #141-209) to your lactating dairy cows without following the dose as set forth in the approved product labeling. Your extralabel use of Excede was not under the supervision of a licensed veterinarian, in violation of 21 C.F.R. 530.11(a). In addition, the use of a cephalosporin, by not following the approved labeled dosage rate, is prohibited for extralabel use in cattle by 21 C.F.R. 530.41(a)(13)(ii).
Because your use of these drugs was not in conformance with their approved labeling and did not comply with 21 C.F.R. Part 530, you caused the drugs to be unsafe under section 512(a) of the FD&C Act, 21 U.S.C. § 360b(a), and adulterated within the meaning of section 501(a)(5) of the FD&C Act, 21 U.S.C. § 351(a)(5).
Your written response should be sent to Patricia A. Pinkerton, Compliance Officer, U.S. Food and Drug Administration, 22215 26th Avenue SE, Suite 210, Bothell, Washington 98021-4425. If you have any questions about this letter, please contact Compliance Officer Patricia A. Pinkerton at (425) 302-0428.


Before HENRY, BALDOCK and LUCERO, Circuit Judges.
determination of this appeal. See Fed. R. App. P. 34(a)(2)(c). The case is therefore ordered submitted without oral argument.
Michael Scott Morgan was convicted of three counts of unlawful possession of a firearm after former conviction of a felony, 18 U.S.C. § 922(g)(1), two counts of giving false statements to a licensed firearms dealer, 18 U.S.C. § 922(a)(6), and three counts of possession of a firearm while subject to the terms of a judicial protective order, 18 U.S.C. § 922(g)(8). He was sentenced to 42 months' imprisonment, three years of supervised release, a fine of $1,000, and a monetary assessment of $100 per count. We exercise our jurisdiction under 28 U.S.C. § 1291 and affirm.
At trial and on the initial stages of appeal, Mr. Morgan was represented by counsel. During his appeal, however, Mr. Morgan fired his attorney and proceeded pro se. Upon receipt of Mr. Morgan's appellate brief, we determined Mr. Morgan should have counsel and appointed one to represent him. After counsel made several attempts to contact Mr. Morgan, Mr. Morgan finally responded on April 23, 2001 and identified four additional issues that are before us. Mr. Morgan did not file a separate pro se brief.
Counsel for defendant has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), indicating his belief that the record contains no meritorious issues for appeal. Defense counsel has also filed a motion requesting leave to withdraw as counsel, stating his belief that the issues raised on appeal are frivolous. As required, a copy of counsel's Anders brief and motion to withdraw were provided to defendant, see id. at 744.
In his Anders brief, counsel related that defendant wished to raise several issues. The first two issues were raised in Mr. Morgan's initial pro se appellate brief: (1) whether he must abide by laws that are allegedly repugnant and unconstitutional; and (2) whether as a descendant of participants in the American Revolution that Mr. Morgan, as a "peacemaker," must suffer at the hands of those who have impugned his character. Aplt's Anders Br. at 15 (quoting pro se opening br. at 3). The next five issues were raised at the suggestion of Mr. Morgan after conferring with appointed counsel; they include: (3) ineffective assistance of counsel; (4) unfair enhancement of sentence; (5) malicious and selective prosecution; (6) Mr. Morgan lacked the mental capacity to understand the charges against him; and (7) his prosecution was pursuant to an illegal Bill of Attainder. Finally, counsel raised an insufficiency of the evidence claim, culling together various strands of Mr. Morgan's pro se filings. The record indicates that none of the above issues was raised before the district court.
Pursuant to our duty under Anders, 386 U.S. at 744, we have conducted an independent review of Mr. Morgan's conviction and sentence and we agree with counsel's conscientious review of the record and conclusion that the appeal is frivolous.
As to Mr Morgan's ineffective assistance of counsel claim, for which he provides no legal argument or record cites, we note that this "claim should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed." United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc) (citing Beaulieu v. United States, 930 F.2d 805, 808 (10th Cir. 1991)). Our review of the record confirms that this is not one of those "rare instances" permitting consideration of ineffective assistance claims on direct appeal. Id. Therefore, we dismiss Mr. Morgan's ineffective assistance claims, while noting that this does not bar its assertion in a petition pursuant to 28 U.S.C. § 2255. See id. at 1241-42.
After a thorough review of the record, this court also agrees that Mr. Morgan's sufficiency-of-the-evidence claim is frivolous. In evaluating challenges to the sufficiency of evidence, this court applies the following standard: "[E]vidence both direct and circumstantial, together with reasonable inferences to be drawn therefrom, is sufficient if, when taken in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. Garcia- Emanuel, 14 F.3d 1469, 1472 (10th Cir. 1994) (quotations omitted). We will overturn a jury's finding only if no reasonable juror could have reached the disputed verdict. United States v. Carter, 130 F.3d 1432, 1440 (10th Cir. 1997). This purposefully high hurdle, faced by a party challenging a jury verdict, "reflects a deep respect for the fact-finding function of the jury." United States v. Evans, 42 F.3d 586, 589 (10th Cir. 1994) (quotation omitted).
There is evidence that Mr. Morgana convicted felon, according to an ATF determinationin fact purchased a rifle, a pistol, and ammunition for both, and that he intended to purchase a third firearm. After this purchase, a police officer stopped Mr. Morgan, who had a loaded shotgun in his possession in his truck, along with other devices. The testimony at trial showed that Mr. Morgan had been served with protective orders by officers who witnessed the same. Mr. Morgan also testified about his prior felony conviction and that he indeed pleaded guilty and possessed firearms. Without restating all of the evidence adduced at trial, we simply note that the evidence, and the reasonable inferences drawn therefrom, is more than sufficient to support Mr. Morgan's conviction.
As to the remaining challenges, we have reviewed the entire record, all of the briefs filed, and agree they are frivolous challenges. Therefore, we AFFIRM Mr. Morgan's conviction and GRANT counsel's request to withdraw.


329 Main Street, 2nd Floor, Carbondale, CO 81623.
All parents, whether married or not, owe a duty of financial support to their children who are under the age of 19 or still in high school, or disabled. When the parents are no longer together, the law still requires them to continue to provide financial support to their children. This is called “child support”.
In calculating child support, the court must first determine each parent’s “gross income”. Gross income, for purposes of determining child support (as well as spousal maintenance) is not the same as the definition of “gross income” provided by the Internal Revenue Service. The definition of gross income under the Col. Rev. Stat. §14-10-115(5)(A)(I) includes, but is not limited to: wage; salary; commissions; dividends; rental income; alimony/spousal maintenance received; pension and/or retirement benefits; monetary gifts; social security benefits; disability benefits; and etc. Courts require documentation verifying the parents’ gross income, including but not limited to W-2, federal and state tax returns, 1099, year-to-date paystubs, etc.
Gross income does not include various benefits received through public assistance programs, such as certain social security benefits received by or on behalf of the child. Although retirement distributions fall into the definition of gross income, retirement earnings or gains are not. Child support payments for children from another relationship are also excluded. Spousal maintenance payments are excluded from the payor’s gross income, while the same are included in the recipient/payee’s gross income. See Col. Rev. Stat. §14-10-115(5)(A)(II).
For those parents who are self-employed, there will be an extra layer of scrutiny over their “business expenses”. Any personal expenses treated as business expenses will be added back as income. In addition, any reimbursements received that reduce a parent’s personal expenses will also be added back as income subject to support calculation.
If a parent is voluntarily unemployed or underemployed, child support must be calculated based on the parent’s potential income. However, a parent may not be considered voluntarily unemployed if he or she is physically or mentally incapacitated. See Col. Rev. Stat. §14-10-115(III)(b)(I).
(C) The parent is enrolled in an educational program which is reasonably intended to result in a degree or certification within a reasonable period of time and which will result in a higher income, so long as the educational program is a good faith career choice which is not intended to deprive the child of support and which does not unreasonably reduce the support available to a child. See Col. Rev. Stat. §14-10-115(7)(b)(III).
In determining whether a parent is voluntarily underemployed or employed, the court will consider all circumstantial facts, including but not limited to: firing and post-firing conduct; the amount of time the parent spent looking for a job of equal caliber before accepting a lower paying job; whether the parent refused an offer of employment at a higher salary; whether the parent sought a job in the field in which he or she has experience and training; the availability of jobs for a person with the parent’s level of education, training, and skills; the prevailing wage rates in the region; the parent’s prior employment experience and history; and the parent’s history of child support payment. See People v. Martinez, 70 P.3d 474, 481 (Colo. 2003).
Once the court has determined both parents’ gross income or earning potential, the court will look to the Colorado Child Support Guideline, to determine the parents’ child support obligation. For example, under the Colorado Child Support Guideline, two parents whose combined monthly gross income is $6,000 owe a combined child support obligation of $920 if they have one child; $1,404 if they have two children; $1,696 if they have three children, so on and so forth. Parents’ combined child support obligation will vary in accordance with their combined income and the number of children between them. Each parent’s obligation is determined in proportion to each parent’s adjusted gross income and their parenting time, as well as other variables discussed below. Keep in mind that child support does not go up or down dollar for dollar with the parents’ incomes. Thus, just because a parent’s income goes up by $500, that does not mean the child support obligation increases by the same amount. It should also be noted that child support for multiple children does not get divided by the number of the children. For example, where there are three children subject to child support, if one of the three children becomes emancipated, it does not mean that the child support obligation becomes 1/3 less. See Col. Rev. Stat. §14-10-115(7).
The court may deviate from the guidelines if application would be inequitable, provided the court makes specific findings regarding the reasons such deviation is warranted. See Co. Rev. Stat. §14-10-115(3)(a); see also In re Marriage of Ford, 851 P.2d 295 (Colo.App.1993).
Child support obligation can vary pending how much parenting time each parent exercises. Where a parent spends less than 93 overnights a year with the children, the other parent is deemed to have sole physical care of the child. However, where a parent spends more than 92 overnights a year with the children, such parent is deemed to have shared physical parenting time and there will be an adjustment reflecting the parenting time spent with the children. When parenting time is nearly equal, each parent’s obligation will be offset against each other and the parent with the greater support obligation will owe child support to the other parent. See Co. Rev. Stat. §14-10-115(8)(a)-(b).
Where there is more than one child and each child spends a different amount of time with each parent, the child support calculation will incorporate the parenting time spent with each parent. See Co. Rev. Stat. §14-10-115 (8)(c).
Some of children’s expenses will also affect the parents’ child support obligation. Those expenses include childcare costs (due to either parent’s work schedule or academic pursuits), health insurance premiums, and extraordinary medical expenses (including but not limited to co-pays, reasonably necessary treatments for orthodontia, dental treatment, asthma treatments, physical therapy, vision care, psychiatric therapy and counseling, etc.). In addition, the court may also consider any special or private education expenses as well as cost of transportation of the child needed to transport the child between the parents’ homes. The court will consider any additional factors by agreement of the parties or on its own discretion if such factors diminish the basic needs of the child. These expenses will be added and incorporated into the child support calculation and will be shared by the parents. See Co. Rev. Stat. §14-10-115(15)(c).
Child support calculations can become complicated where there are multiple children’s expenses and the parents dispute the validity or necessity for such expenses. For example, while one parent may consider horseback riding lessons to be crucial and necessary for the child, the other parent may disagree. For a comprehensive child support calculation or a review of any existing child support order, you should consult an attorney before appearing in court.
College or any other post secondary expenses (i.e. expenses associated with education programs following high school) will not be ordered by the court unless there is a written agreement by the parents and the court approves the same. However, child support orders entered between July 1, 1991 and July 1, 1997 which might have included post secondary expenses, may be modified pursuant to Co. Rev. Stat. §14-10-115(15)(c).
A parent may seek to modify his/her child support obligation only upon showing of a substantial and continuing change of circumstances. For example, a loss of income due to involuntary unemployment, or increase of income due to change of employment or promotion, constitute are typical change in circumstances that warrant modification of child support. However, if the difference in the new child support order is 10% or less, then the change(s) in circumstances will not be considered substantial or continuing. See Co. Rev. Stat. §14-10-122(1)(b).
* Please note that all information contained herein is general and should not be considered as customized legal advice for you. Should you have any questions regarding your case, please call our office at (970) 340-4977 to schedule a consultation with attorney Joo Y. Park.


This statement, which is from a 1940 decision of the Connecticut Supreme Court, encapsulated a principle firmly established and incorporated into Connecticut personal injury law, known as the "eggshell plaintiff doctrine."
The eggshell plaintiff doctrine essentially means that a defendant tortfeasor (i.e. the person at fault for the accident or negligent conduct) "takes the victim as he finds him." Put another way, the eggshell plaintiff doctrine requires that a defendant who proximately (legally) caused injury to another person is responsible for new injuries, of course, but also for exacerbations or worsening of any pre-existing or prior health conditions that the victim was suffering from prior to the time they were newly injured.
Every person is physically and mentally a product of their life experiences. It is not often the case that someone who is injured due to the negligence of another driver, property owner, doctor or other person was a "clean slate," without any prior injuries or health conditions. For many people the eggshell plaintiff doctrine means that a defendant does not get off the hook for his or her negligent conduct merely by claiming that the victim had already suffered injury to the effected body part. Instead, the tortfeasor is responsible to compensate the victim fairly for the proximate consequences of their tortious conduct.
It is also noteworthy that the eggshell plaintiff doctrine is not a mechanism to shift the burden of proof to the defendant3. This means that the plaintiff is still legally responsible to prove his or her case, including nature and degree of damages that resulted from the negligent conduct as well as the causal connection between those damages and the negligent conduct of the tortfeasor. However, it allows a victim to present evidence that he or she was more susceptible to injury, or suffered otherwise unanticipated degree of injury, as a result of the preexisting health issue or condition. The plaintiff must also be sure to plead the aggravation or exacerbation of the preexisting condition, as a precursor to putting on evidence of the same at trial.
The plaintiff is entitled to full compensation for all injuries and losses proximately caused by the defendant's negligence even though those injuries and losses are more serious than they otherwise would have been because of a pre-existing condition. You may not compensate the plaintiff for the pre-existing injury itself. However, the aggravation of such an injury, proximately caused by the defendant's negligence, is a proper item of noneconomic damages.
This jury instruction, which is derived in part from the 1997 Connecticut Supreme Court case Tuite v. Stop and Shop Companies, Inc., takes into account both the preexisting condition, which is not compensable to the victim, and the exacerbation or aggravation of that condition, which is compensable.
By way of example: Joe was in a car accident in 1994 that resulted in a significant injury to his lumbar (lower) spine, including a bulging. He underwent physical therapy and chiropractic care throughout the 1990s whenever his back would "go out" or he was uncomfortable. In the late 1990s and early 2000s Joe’s pain and discomfort in his back became worse and persistent and started to radiate from his back into his buttocks and left leg and foot. In 2001 he could not take the pain and discomfort and decided to undergo a lumbar discectomy and fusion operation in an attempt to alleviate his pain. Joe’s surgery went well and he followed a typical post-operative course, with further physical therapy in 2001 and 2002. His surgery was a great success and he was generally asymptomatic for many years.
Unfortunately, Joe was stopped at a stoplight in South Windsor in 2019 when he was rear-ended by another car. While the impact was not high velocity, and the damage to the vehicle was not extensive, the impact and bracing for impact jarred Joe’s lower back, causing him immediate pain and discomfort. Joe has to return to his orthopedic doctor for injection therapy, physical therapy and a further possible surgery.
Joe brings a claim and then a lawsuit against the driver who rear-ended him. Both sides agree that Joe was only injured to such an extent because of his pre-existing lumbar back issues from the 1990s and early 2000s. Nevertheless, the eggshell plaintiff doctrine applies in Joe’s case. Joe cannot recover from the driver who rear-ended him in 2019 any damages related to his 1994 car accident. However, Joe is entitled to fully recover damages, including pain and suffering, from the driver who rear-ended him in 2019 causing his exacerbation injury despite the fact that his damages are greater or more serious than they would have been if he had not been in the car accident in 1994.
This example is relatively straightforward. However, oftentimes the intersection of preexisting medical conditions or prior injuries and new injuries that are the result of another person’s negligence can be blurred and nuanced. If you, a family member, or friend have questions or concerns about how a preexisting injury or condition affects an injury you suffered because of someone else’s negligence, do not hesitate to contact me, Attorney Cody N. Guarnieri, for answers to your questions.
1. Flood v. Smith, 126 Conn. 644, 647 (1940).
2. Iazzetta v. Nevas, 105 Conn. App. 591, 593, FN4 (2008)(Citation omitted; internal quotation marks omitted.) citing Rowe v. Munye, 702 N.W.2d 729, 741 (Minn.2005); see also W. Prosser & W. Keeton, Torts (5th Ed.1984) § 43, p. 292.
4. Connecticut Judicial Branch Civil Jury Instructions, § 3.4-1.


The purpose of this post is to provide a brief synopsis of the Miller Act’s purpose and required procedures. Under the Miller Act, the prime contractor awarded a government contract is required to post a payment bond, generally in the amount of its total contract price. See 40 U.S.C. § 3131(b)(2). If a subcontractor is not paid for its completed work, it may request a copy of the prime contractor’s payment bond from the project’s contracting officer. The subcontractor must then demand payment from the prime contractor and surety.
To obtain a copy of the payment bond, a subcontractor must submit an affidavit to the project’s contracting officer stating that (1) it supplied labor or material for work described in the contract and (2) it has not been paid for that work. See 40 U.S.C. § 3133(a). A subcontractor may also obtain a copy of the payment bond by submitting an affidavit stating that it is being sued on the bond. See id. Before providing a copy of the payment bond, the contracting officer may request a copy of the subcontractor or sub-subcontractor’s contract relating to the project.
Two “tiers” of subcontractors may file lawsuits against a prime contractor’s payment bond: a subcontractor (first tier) and a sub-subcontractor (second tier).
A subcontractor that has not been paid in full within 90 days after completing its work may file a lawsuit for payment on the prime contractor’s payment bond. 40 U.S.C. § 3133(b)(1). The Miller Act defines a subcontractor as one who has a direct contractual relationship with the prime contractor. See id. The United States Supreme Court has further defined a “subcontractor” as “one who performs for and takes from the prime contractor a specific part of the labor or material requirements of the original contract” which excludes “ordinary laborers and materialmen.” Clifford F. MacEvoy Co. v. U.S. for the Use and Benefit of Calvin Tompkins Co., 322 U.S. 102, 107 (1944).
Because the subcontractor has a direct contractual relationship with the prime contractor, the Miller Act does not require the subcontractor to provide the prime contractor with notice that it has not been paid. However, it is recommended that a subcontractor send a notice similar to the one described below that a sub-subcontractor would provide to the prime contractor.
A sub-subcontractor may file a lawsuit against the payment bond only if it provides a written notice to the prime contractor within 90 days after completing its work. 40 U.S.C. § 3133(b)(2). The Miller Act defines a sub-subcontractor as one who has a direct contractual relationship with a subcontractor. Id. If a sub-subcontractor does not have contract with a “subcontractor” as defined above, it may not bring an action against the payment bond.
The Miller Act requires that a sub-subcontractor’s notice to the prime contractor meet three conditions: (1) notice must be given within 90 days of the sub-subcontractor’s last work; (2) the notice must “stat[e] with substantial accuracy the amount claimed”; and (3) the notice must include “the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed” (i.e. the name of the subcontractor). 40 U.S.C. § 3133(b)(2) (emphasis added). In Indiana, the notice does not require an explicit demand for payment (i.e. a statement notifying the prime that the sub-subcontractor wants payment for its completed work). See U.S. ex rel S And G Excavating Inc. v. Seaboard Sur. Co., 236 F.3d 833, 885 (2001). However, other states may require an explicit demand. As such, it is recommended that an explicit demand for payment from the prime contractor be included in the notice.
The Miller Act states that the sub-subcontractor’s notice to the prime contractor must be sent “by any means that provides written, third-party verification of delivery to the [prime] contractor” (i.e. certified mail or other similar means) and can be sent to the prime contractor’s office, to the location where it conducts business or to its residence. Because the Miller Act is meant to be construed most favorably to those who performed work on a project and have not been paid (see id.), courts may be lenient about the method used to serve the notice, but the recommended practice is certified mail with a request for a return-receipt.
The Miller Act does not require that any notice be sent to the surety that posted the prime contractor’s payment bond. See 40 U.S.C. § 3131 et seq. However, because an unpaid subcontractor or sub-subcontractor may be paid by the surety without having to file a lawsuit, it is recommended. A notice to the surety may also let the prime contractor know that the subcontractor is serious about its request for payment. A notice should be sent to the surety concurrently with the notice sent to the prime contractor seeking payment from the bond. The surety will likely require that the subcontractor provide copies of its contract, invoices, change orders, etc. The subcontractor should compile the requested documents and return them to the surety. If the surety does not pay the claim, a lawsuit may be required.
Lawsuits against payment bonds must be filed in a federal court in the district where the project was located and in the name of the United States for the use of the unpaid subcontractor or sub-subcontractor. 40 U.S.C. §§ 3133(b)(3)(A) and (b)(3)(B). A lawsuit filed against the bond may only seek the unpaid amount as of the date the lawsuit is filed. 40 U.S.C. §§ 3133(b)(1) and (b)(2). A lawsuit by a subcontractor against the prime must be filed within one year from the date the subcontractor’s work is completed. 40 U.S.C. § 3133(b)(4). Furthermore, the Miller Act does not provide an award of attorney’s fees to the prevailing party in a civil lawsuit. See 40 U.S.C. § 3131 et seq. However, the Miller Act does not prohibit recovery of attorney’s fees; there must be some other basis (either contractual or statutory) for recovery of attorney’s fees. See F. D. Rich Co., Inc. v. U. S. for Use of Indus. Lumber Co., Inc., 417 U.S. 116, 131 (1974).


A person who assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs or attempts to rob any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned not more than twenty-five years.
A person who receives, possesses, conceals, or disposes of any money or other property that has been obtained in violation of this section, knowing the same to have been unlawfully obtained, shall be imprisoned not more than 10 years, fined under this title, or both.
Based on title 18, U.S.C., 1940 ed., § 320 (Mar. 4, 1909, ch. 321, § 197, 35 Stat. 1126; Aug. 26, 1935, ch. 694, 49 Stat. 867).
The attention of Congress is directed to the mandatory minimum punishment provisions of sections 2113(e) and 2114 of this title. These were left unchanged because of the controversial question involved. Such legislative attempts to control the discretion of the sentencing judge are contrary to the opinions of experienced criminologists and criminal law experts. They are calculated to work manifest injustice in many cases.
1996—Pub. L. 104–294 amended Pub. L. 103–322, § 320602. See 1994 Amendment note below.
1994—Pub. L. 103–322, § 320903(a)(3), inserted “or attempts to rob” after “robs” in subsec. (a).
Pub. L. 103–322, § 320602, as amended by Pub. L. 104–294, § 604(b)(17), designated existing provisions as subsec. (a), inserted heading, substituted “A person who” for “Whoever”, and added subsec. (b).
1990—Pub. L. 101–647 inserted a comma after “money” in section catchline.
1984—Pub. L. 98–473, which directed insertion of “not more than” after “imprisoned”, was executed by making the insertion after “imprisoned” the second time appearing.