3 Can the IRS Terminate the Streamlined Programs?
5.2 What if I was Willful?
7.1 How to Qualify as a Foreign Resident?
17 Who Decides to Disclose Unreported Money?
20 What Should You Do?
*We are the only State Bar Board Certified Tax Law Firm that specializes exclusively in IRS Offshore Voluntary Disclosure Law.
If your failure to disclose foreign accounts was non-willful (in other words, you were unaware of the requirement to file the form) and/or you can show Reasonable Cause, you generally have two different options available in order to get compliant. The first option is submitting a Reasonable Cause Statement and the second option is to submit to the Streamlined Offshore Disclosure Program.
Each method has its own pros and cons, and oftentimes it will boil down to the specific facts and circumstances of the non-disclosure, coupled by the risk assessment on the part of the account-holder.
The IRS Streamlined Filing Compliance Procedures (aka “Streamlined Program”) are comprised of the Streamlined Domestic Offshore Procedures and/or the Streamlined Foreign Offshore Procedures.
International Tax Compliance is a major enforcement priority for the IRS. With the introduction of FATCA (Foreign Account Tax Compliance Act), more than 110 countries and more than 300,000 Foreign Financial Institutions “FFIs” have agreed to report U.S. Account Holders to the IRS.
Why? because the penalties for failing to comply with even the FBAR Requirements can reach as high as $10,000.00 per account, per year (if you were non-willful) and as high as 100% value of the account if you were willful.
Our International Tax Lawyers represent hundreds of taxpayers annually in Streamlined Domestic Offshore Procedure submissions and Streamlined Foreign Offshore Procedures in over 55 different countries.
The Streamlined Offshore Procedures are a highly cost-effective method of quickly getting you into IRS (Internal Revenue Service) or DOT (Department of Treasury) compliance before it is too late!
Can the IRS Terminate the Streamlined Programs?
Yes. The Streamlined Filing Compliance Procedures can be terminated at any time. While there have been rumblings about the offshore disclosure programs terminating for some time now, it seems to be that the IRS may really be terminating the programs in the near future, as provided by some of the higher-up at the IRS at a recent conference in late 2017.
As a result, we imagine that many individuals will be considering entering the program before it’s too late. Therefore, while we always recommend using an experienced streamlined disclosure attorney to assist you with handling the process, we also like to try to educate individuals – so that if an applicant is going to try to do it themselves, they will at least have the correct information to do so.
The Streamlined Domestic Offshore Procedures are more common than the Streamlined Foreign Offshore Procedures, simply because the IRS put up many roadblocks to meeting the Foreign Resident requirement for SFOP.
The Streamlined Domestic Offshore Procedures are designed for non-foreign residents. In other words, in order to apply to this program, you must be a US resident and not considered a foreign resident. Moreover, the applicant must meet two main requirements.
In order to be non-willful, the individual must show that they…weren’t willful – yes, that’s pretty much the extent of the definition provided by the IRS. In other words, the IRS likes to try to place the burden on you, the individual, to prove that you are non-willful.
In fact, the IRS has gone to great lengths to keep the specific analysis it uses to determine that somebody was willful under lock and key — going so far as fighting it in court. In our experience, we have found that typically, common sense rules dictate.
For example, if you literally had no idea that foreign accounts needed to be reported, and your actions, behavior, and history shows that you did not access the foreign accounts, withdraw any money from them, etc., then chances are you will able to show you were non-willful.
The further you sail away from those shores, the murkier the water becomes, and with it is an increased risk that the IRS may dispute your claim that you are non-willful.
What is your U.S. status?
How long have you been in the United States for?
How many years have you filed U.S. tax returns?
What types of investments do you have overseas?
Do you utilize a financial planner?
Do you have a CPA or EA?
Is your CPA or EA experienced in international tax?
Did the CPA or EA send you questions in writing asking about Foreign Accounts or Income?
Did you respond truthful to the CPA or EA?
Did you complete a schedule B?
Are you tax compliant in the country in which the accounts are maintained?
Did you have unreported income as well?
These are just some of the many questions you should consider prior to determining whether you were non-willful.
What if I was Willful?
*If you were willful, then you should never submit to OVDP. Unfortunately, there has been an influx of inexperienced attorneys who will prey upon you, and convince you to go streamlined instead of OVDP. They will make it seem that if you only have a small amount of income, or were only noncompliant for a few years, that you can still go streamlined.
This is both improper and unethical, and if you come across an attorney trying to sell you on this false bill of goods, you should contact his or her local state bar association. Click Here for a Case Study Example of what happens when the IRS catches you.
In order to qualify for the Streamlined Domestic Offshore Procedures, you must show that you filed your original returns timely. There is some wiggle room regarding the terminology “timely,” and if you filed your returns, but they were filed late — you should consider having a tax attorney contact the streamlined program directly to assess whether you may qualify despite having filed late original returns.
The Streamlined Program requires the applicant to amend and pay outstanding tax liability for the last three (3) years to include unreported foreign income and unreported foreign accounts that were not previously reported on a U.S Tax Return. It also requires the applicant to file six (6) years of FBARs (FinCEN 114) and pay a (relatively) small penalty which equals 5% of the highest year end value for any given year, unless you qualify as a foreign resident for 330-days, in which you can receive a penalty waiver!
File required forms such as 3520, 3520-A, 5471, 8621, 8865, 8938, etc.
You do not have to have filed all prior year tax returns.
How to Qualify as a Foreign Resident?
If you live overseas and qualify as a foreign resident (reside outside of the United States for at least 330 days in any one of the last three (3) tax years or do not meet the Substantial Presence Test in one of the last three (3) tax years) you may obtain a waiver of all FBAR and FATCA penalties.
The Streamlined Foreign “330-day rule,” is a hard and fast rule.
Thus, the Streamlined Foreign “330-day rule” should be distinguished from Internal Revenue Code section 911 which is used by taxpayers trying to claim the Foreign Earned Income Exclusion by showing they qualify for either the physical presence test (330 days) or the bona fide residence test. Thus, even though a person could qualify as a bona fide resident under IRC 911 for the foreign earned income exclusion, it does not mean that they qualify for the streamlined foreign program.
As provided by the IRS: The discussion of the non-residency requirement for eligibility for the Streamlined Foreign Offshore Procedures refers to IRC § 911 and its regulations. Does that mean that anyone who is non-resident under IRC § 911 and its regulations is non-resident for purposes of the Streamlined Foreign Offshore Procedures?
*The reference to IRC § 911 and its regulations is only to the parts of those authorities that define “abode,” which are found in IRC § 911(d)(3) and Treas. Reg. § 1.911-2(b). Non-residency for purposes of the Streamlined Foreign Offshore Procedures is defined in those procedures, and not in IRC § 911 and its regulations.
If you were completely non-willful in your failure to disclosure and were unaware that there was any reporting requirement, then the thought of paying any penalty may sound absurd. Here are three examples in which paying any penalty for your undisclosed foreign accounts may seem unfair.
Example 1: 80-year-old Michael travels worldwide and has 3 accounts in different countries. He only uses the foreign money when he is in the foreign country at issue, he never transfers the money to the US, and there is usually a relatively small amounts of money in each account. The only issue for Michael was that at one point, Michael thought about purchasing a home overseas and left the money in the foreign account for a significant period of time (including 12/31). Foreign taxes were fully paid on the money deposited into the account and foreign taxes were paid on the income the account generated. His only mistake was that he did not report the account and/or the foreign income on his U.S. Tax Return.
Example 2: Michelle, a widow who had never been in trouble with the law, moved to the United States over 30 years ago but has a $1 million USD foreign pension from a private employer through the early 1970s. She has never accessed the account nor has she contributed (or anyone else contributed) since arriving in the United States. The account/earnings are not taxed in the US until distributed, there have been no distributions, and Michelle never reported the account on an FBAR or 8938.
Example 3: David has a foreign account, which he received as an inheritance. He never touched the money, and even though the account earns minimal annual income, there is no tax for passive income in this particular country. He has no other ties to the country and has not used any of the money. David’s son has special needs and he needs to access a large chunk of the money in a short period of time. He has not reported the account on an FBAR or 8938.
As you can see from the aforementioned examples, none of these individuals had any intent whatsoever to perform tax evasion. Moreover, the amount of income earned is relatively minor compared to the outstanding amount in the foreign accounts. In addition, in the case of Michelle, the majority of her money is it a pension account which is not even taxed by the US. Thus, even under the streamlined program she would be paying $50,000 in penalties for an account in which all of the money was earned and reported timely in her foreign country and all foreign taxes were paid on the contributions.
Unlike the Streamlined Program or OVDP where there are strict procedures to be followed, a reasonable cause submission is different. It should be noted that a person can submit a reasonable cause application for any number of different reasons; it is not limited only to offshore money and reporting foreign accounts.
With a reasonable cause submission, the attorney will carefully evaluate and analyze the facts and circumstances of your case in detail. He or she should sit down with you either person or via teleconference if you are non-local and assess the pros and cons of the potential submission in order to determine what the benefits and detriments may be to a reasonable cause disclosure. Thereafter the attorney will amend the returns, prepare the necessary forms, and draft a persuasive Reasonable Cause Letter.
At Golding & Golding, we are Tax Attorneys (with Masters of Tax Law) and Enrolled Agents credentialed by the IRS (Highest Credential awarded by the IRS), so we handle your entire submission (Taxes, Legal, and Audit Defense) in-house, for a flat-fee.
5471 – US Ownership of Foreign Companies.
This may result in a significant savings versus offshore disclosure – especially when you have significant unreported accounts and assets overseas and minimal income.
Reasonable cause does not come without its risks. If the reasonable cause statement is rejected, then you may be subject to fines and penalties that are higher than would have been issued under the Streamlined Program.
Nevertheless, if penalties are issued, then you are entitled to appeal the penalties and thereafter file with the US Tax Court if you are still unsatisfied with the appeals process. Of course, this may take a lot of time and effort – not to mention attorneys fees depending on the seriousness of the fines and the facts of your case – which is counterintuitive.
Before convincing yourself that you should be spared any penalty, it’s important to look at the facts and circumstances of your case in the most objective light as possible.
How many forms did you fail to report?
How much unreported foreign income did you have?
For how long did you fail to report these forms?
Did you work with a CPA, Enrolled Agent, or Tax Accountant and prepare your returns?
Did the CPA, Enrolled Agent, or Tax Accountant ask you about your foreign accounts or Foreign Income?
Have you otherwise filed your U.S. tax returns timely?
Are you originally from the United States and how long have you been in the United States filing tax returns?
How much unreported foreign income do you have?
Did a foreign financial institution inform you of your requirement to get FATCA or IRS Tax Compliant?
Are you prepared to go the distance and appeal the matter or even bring it the Tax Court if it is rejected?
IRS Offshore Voluntary Disclosure is ALL we do. While our lead partner, Mr. Golding has been practicing for 20 years as an attorney, and has extensive experience in complex, high-stakes Eggshell Audits, Reverse Eggshell Audits, Criminal and Civil Litigation, we limit our practice exclusively to IRS Offshore Voluntary Disclosure.
We have successfully handled several hundred Voluntary Disclosure cases.
We are the OVDP Attorneys that other CPAs, Attorneys (and even current and former IRS personnel) contact when they need help.
The exam is widely regarded as one of (if not) the hardest tax exam given in the United States for practicing Attorneys.
Unlike other attorneys who call themselves specialists but are not “Board Certified,” handle 5-10 different areas of tax law, purchase multiple keyword specific domain names, and even practice outside of tax, we are absolutely dedicated to Offshore Voluntary Disclosure.


Note: Title II of the District Court Rules was made applicable to Title IV via Supreme Court Order that took effect on June 1, 2014, subject to exclusionary exceptions contained in Rules 9.8, 9.9, and 9.15 of Title II, due to the expedited nature of family law proceedings.
To provide for the expeditious administration of justice to the extent practicable, the court shall hear uncontested matters and the trials of motions or exceptions on days on which trials on the merits are not scheduled.
(a) Uncontested matters, including preliminary defaults.
(b) The trial of motions or exceptions that do not require the testimony of witnesses.
(c) The trial of motions or exceptions that require the testimony of witnesses.
(d) Trials on the merits.
Whenever practicable, matters should be heard in the order placed on the docket. If the trial of a matter is begun but not concluded before court is adjourned, that trial should take precedence the following day, when practical.
If the court is unable to hear a scheduled matter, the matter should be rescheduled for hearing at the next available date and time.
Except as allowed by La. Code Civ. Proc. art. 253.3, all contested matters shall be heard by the judge to whom the matter was allotted. The judge to whom the action has been allotted may designate the order‑signing judge or any other judge to sign such orders and set such hearings, and in his or her absence, to hear such matters where necessary to comply with law, or when deemed to be an emergency, in accordance with La. Code Civ. Proc. arts. 253.2 and 253.3.
Adopted April 1, 2002, effective April 1, 2002; amended November 20, 2009, effective January 1, 2010; amended November 18, 2010, effective January 1, 2011.
All pleadings filed shall be randomly assigned to a particular section or division of the court in accordance with La. Code Civ. Proc. art. 253.1 before presentation of a pleading to any judge. The method of allotment for each district court is set forth in Appendix 9.3. Provided, to the extent allowed by La. Code Civ. Proc. art. 253.3, each district court shall designate in Appendix 9.3: (1) those matters that ordinarily will not be allotted to a particular section or division of the court and instead will be signed by the duty judge or by any judge authorized to sign such pleadings; and (2) those pleadings that, although filed in actions that will be allotted, may be presented for signature to the duty judge or to any judge authorized to sign such pleadings.
Adopted April 1, 2002, effective April 1, 2002; amended April 20, 2010, effective June 1, 2010.
See Watson v. Lane Memorial Hospital, 99-0930 (La. 5/28/99); 743 So.2d 676, adopting Judge Shortess' dissent in Watson, 98-0273 (La. App. 1 Cir. 3/3/99); 734 So.2d 28, writ granted 5/28/99, regarding allotment of medical malpractice actions in which discovery proceedings have been pursued under La. R.S. 40:1299.47.
(a) All pleadings shall be filed with the clerk of court before presentation to the assigned judge. Exceptions to this Rule are noted in Appendix 9.4.
(b) Judge or forum shopping is prohibited. To achieve continuity of case management and avoid the appearance of judge or forum shopping, all subsequent actions asserting the same claim by the same parties, except for cases filed in juvenile courts with concurrent jurisdiction, shall be transferred to the division to which the first case filed was allotted, whether or not the first case is still pending. Any attorney or party who files more than one petition for the same party on the same cause of action shall attach to any subsequent petition a "Notice of Prior Filing or Multiple Filing,"regardless of whether any of the previous petitions were dismissed. This notice shall comply with La. Code Civ. Proc. art. 853.
Adopted April 1, 2002, effective April 1, 2002; amended June 2, 2003, effective July 1, 2003; amended November 3, 2008, effective January 1, 2009; amended November 20, 2009, effective January 1, 2010; amended April 20, 2010, effective June 1, 2010; amended May 15, 2013, effective June 1, 2013.
(a)	All judgments, orders, and rulings requiring the court's signature shall either be presented to the judge for signature when rendered or, if presented later, contain the typewritten name of the judge who rendered the judgment, order, or ruling.
I have allowed at least five (5) working days before presentation to the court.
Certified this ___ day of ____________________, 20__.
(c) The page of the judgment, order, or ruling containing the judge's signature line shall reflect the docket number and title(s) of the pleading(s) at issue.
(d) This rule does not apply to judgments by default.
(e) Requests for written reasons pursuant to La. Code Civ. Pro. art. 1917 shall be communicated to the judge either in open court or in writing. If the request is in writing, it shall: (1) contain a completed Rule 9.5(e) certificate (set forth below); and (2) be contemporaneously provided to the ruling judge in chambers, filed with the clerk of court, and served on all counsel of record and self-represented parties.
I certify that I have delivered this request for written reasons for judgment to the clerk of court for filing into the suit record, and I have contemporaneously provided a copy of this request to the ruling judge in chambers and to counsel for all parties and/or to self-represented parties by [insert method of delivery] on [insert date].
Adopted April 1, 2002, effective April 1, 2002; amended June 2, 2003, effective July 1, 2003; amended October 29, 2003, effective January 4, 2004; amended November 3, 2004, effective January 1, 2005; amended November 3, 2008, effective January 1, 2009; amended November 20, 2009, effective January 1, 2010; amended November 21, 2011, effective January 1, 2012; amended May 15, 2013, effective June 1, 2013; amended December 11, 2018, effective January 1, 2019.
All pleadings shall be typed or printed legibly, double-spaced, on legal-sized white paper, and written in the English language. Margins shall be 2" at the top and 1" on the sides and bottoms. Quotations and footnotes may be single-spaced. Once a matter is allotted, the docket number and the division or section assigned the matter shall be indicated in the caption.
At the commencement of any litigation involving an action for an offense or quasi-offense, counsel for the petitioner, counsel’s representative, or the self-represented litigant, shall complete a Civil Case Cover Sheet Form authorized by the Supreme Court of Louisiana. The Civil Case Cover Sheet Form appears in Appendix 9.6.
Adopted April 1, 2002, effective April 1, 2002; amended November 20, 2009, effective January 1, 2010; amended November 27, 2012, effective January 1, 2013.
The Civil Case Cover Sheet Form may be found in Appendix 9.6 and Part G, § 13 of the Louisiana Supreme Court General Administrative Rules. The clerk of court’s reporting requirement on actions for offenses and quasi-offenses is addressed in La. R.S. 13:4688 and Part G, § 13 of the Louisiana Supreme Court General Administrative Rules.
Each pleading shall be signed by an attorney or by the self-represented party. The correct mailing address, street address, phone number, facsimile number, and e-mail address, if any, of the person signing the pleading, and in the case of an attorney, the Louisiana Bar Identification Number, shall appear below the signature.
Adopted April 1, 2002, effective April 1, 2002; amended November 20, 2009, effective January 1, 2010; amended November 21, 2011, effective January 1, 2012; amended April 29, 2014, effective June 1, 2014; amended May 18, 2016, effective July 1, 2016.
(a) Contradictory Exceptions and Motions. All exceptions and motions, including those incorporated into an answer, shall be accompanied by a proposed order requesting that the exception or motion be set for hearing. If the exceptor or mover fails to comply with this requirement, the court may strike the exception or motion, may set the matter for hearing on its own motion, or take other action as the court deems appropriate. To assist the court in scheduling the hearing, the exception or motion, and any opposition thereto, shall state: (1) whether or not the case is set for trial and, if so, the trial date; and (2) whether testimony will be offered at the hearing.
(b) Time between filing and hearing for motions for summary judgment is governed by see La. Code Civ. Proc. art. 966.
(c) Time between filing and hearing. In cases other than juvenile and family law proceedings, no hearing on an exception or motion will be scheduled until at least fifteen calendar days after filing. A party seeking to have an exception or motion heard less than fifteen days after filing shall show good cause and shall state in the exception or motion the reasons why an expedited hearing is necessary.
(3) motions permitted by law or by these Rules to be decided ex parte.
Any motion that may be decided ex parte shall be accompanied by a proposed order, except a motion for the court to give in writing its findings of fact and reasons for judgment under La. Code Civ. Proc. art. 1917.
(e) Motions and Exceptions Referred to the Merits. If a party filing a motion or exception wishes to refer it to the merits, the party shall file an unopposed motion, accompanied by a proposed order, asking that it be referred to the merits. This Rule does not apply to motions for summary judgment (see Rule 9.10). If the court finds that the interests of justice would be served by referring the motion or exception to the merits, the court may do so.
(f) Unopposed motion. An "unopposed motion" is one to which all affected parties have consented. Before representing to the court that the motion is unopposed, the mover shall contact all parties affected by the motion and obtain their consent. The moving party shall certify in the motion that the consent requirement has been met.
Adopted April 1, 2002, effective April 1, 2002; amended June 2, 2003, effective July 1, 2003; amended October 29, 2003, effective January 4, 2004; amended November 3, 2008, effective January 1, 2009; amended November 20, 2009, effective January 1, 2010; amended April 20, 2010, effective June 1, 2010; amended April 29,2014, effective June 1, 2014; amended October 7, 2015, effective January 1, 2016.
(a) The Louisiana Code of Civil Procedure takes precedence over the District Court Rules. See Comment (a) to Rule 1.0. See also Act 422 (House Bill No. 696) of the Louisiana Legislature’s 2015 Regular Session, which will alter the deadlines for filing requirements and delays for motions for summary judgment effective January 1, 2016.
(b) Rule 9.8(a) provides that the court may strike an exception or motion if not accompanied by an order scheduling the matter for a hearing or may set the matter for hearing on its own motion. See La. Code Civ. Proc. art. 964.
(c) See La. Code Civ. Proc. art. 2593 with regard to exceptions to a contradictory motion, rule to show cause, opposition, or petition in a summary proceeding.
(d) This Rule does not govern the time that an exception shall be pled. La. Code Civ. Proc. art. 928(B) permits a party to plead a peremptory exception "at any stage of the proceeding in the trial court prior to a submission of the case for a decision ...." But under La. Code Civ. Proc. art. 929(B), the trial court has the option of trying and disposing of a late-filed exception "either in advance of or on the trial of the case." This Rule preserves the trial court's option under La. Code Civ. Proc. art. 929(B). Although this Rule generally requires a fifteen day period between the filing and the hearing of an exception, it also gives the trial court discretion to shorten the period "for good cause shown." See also Rule 1.4, which allows a trial judge in a particular case to deviate from a Rule "in the interest of justice and upon notice to all parties ...."
(a) This Rule does not apply to juvenile and family law proceedings. Due to the expedited nature of family law proceedings, time delays shall be at the discretion of the court.
(b) When a party files an exception or motion, that party shall concurrently furnish the trial judge and serve on all other parties a supporting memorandum that cites both the relevant facts and applicable law. The memorandum for motions and exceptions, other than motions for summary judgment, shall be served on all other parties so that it is received by the other parties at least fifteen calendar days before the hearing, unless the court sets a shorter time. The delays for motions for summary judgment filings are set forth in La. Code Civ. Proc. art. 966.
(c)	A party who opposes an exception or motion shall concurrently furnish the trial judge and serve on all other parties an opposition memorandum so it is received at least eight calendar days before the scheduled hearing, except for motions for summary judgment, which delays are established by La. Code Civ. Proc. art. 966.
(d)	The mover or exceptor may furnish the trial judge a reply memorandum, but only if the reply memorandum is furnished to the trial judge and served on all other parties so that it is received before 4:00 p.m. on a day that allows one full working day before the hearing, except for motions for summary judgment, which delays are established by La. Code Civ. Proc. art. 966. For example, if the hearing is set for Friday, the reply memorandum shall be received no later than 4:00 p.m. the preceding Wednesday. If the hearing is set for Monday, the reply memorandum shall be received no later than 4:00 p.m. the preceding Thursday.
(e)	Parties who fail to comply with paragraphs (b) and (c) of this Rule may forfeit the privilege of oral argument. If a party fails to timely serve a memorandum, thus necessitating a continuance to give the opposing side a fair chance to respond, the court may order the late filing party to pay the opposing side's costs incurred on account of the untimeliness.
(f)	Any party may, but need not, file a copy of the memorandum with the clerk of court. See Rule 9.4 and Appendix 9.4 to determine whether a particular judicial district requires that memoranda be filed with the clerk of court or sent directly to the presiding judge.
(1) A motion for an extension of time to perform an act.
(2) A motion to continue a pre-trial conference, hearing, motion, or trial of an action.
(3) A motion to add or substitute parties.
(4) A motion to amend pleadings or to file supplemental pleadings.
(5) A motion to appoint a guardian, curator, or tutor.
(6) A motion to intervene.
(7) A motion to withdraw or substitute counsel of record (but any such motion shall comply with Rule 9.13).
(8) A motion to consolidate.
(9) Any unopposed motion or joint motion.
(10) A motion for the court to give in writing its findings of fact and reasons for judgment under La. Code Civ. Proc. art. 1917.
(11) A motion to compel a response to discovery when no response has been made.
(12) Any motions allowed to be granted ex parte under La. Code Civ. Proc. art. 963.
Any motion listed in (1) through (12) shall state the grounds in support, cite any applicable rule, statute, or other authority justifying the relief sought, and comply with Rule 9.8 to the extent applicable.
Adopted April 1, 2002, effective April 1, 2002; amended June 2, 2003, effective July 1, 2003; amended October 29, 2003, effective January 4, 2004; amended November 20, 2009, effective January 1, 2010; amended April 20, 2010, effective June 1, 2010; amended April 29, 2014, effective June 1, 2014; amended May 28, 2015, effective July 1, 2015; amended October 7, 2015, effective January 1, 2016.
(a)	The Louisiana Code of Civil Procedure takes precedence over the District Court Rules. See Comment (a) to Rule 1.0. See also House Bill No. 696 of the Louisiana Legislature’s 2015 Regular Session, which will alter the deadlines for filing requirements and delays for motions for summary judgment effective January 1, 2016.
(b) See La. Code Civ. Proc. art. 1313 regarding service of pleadings subsequent to the original petition.
(3) A reference to the document proving each such fact, with the pertinent part containing proof of the fact designated.
(2) A reference to the document proving that each such fact is genuinely disputed, with the pertinent part designated.
Adopted April 1, 2002, effective April 1, 2002; amended June 2, 2003, effective July 1, 2003; amended October 29, 2003, effective January 4, 2004; amended November 20, 2009, effective January 1, 2010; amended May 28, 2015, effective July 1, 2015; amended October 7, 2015, effective January 1, 2016.
To assist the court, parties who file suit for executory process should clearly highlight or emphasize the language in the attached exhibits necessary for executory process, such as "confession of judgment" and "waiver of demand for payment."
Adopted April 1, 2002, effective April 1, 2002; amended June 2, 2003, effective July 1, 2003; amended November 20, 2009, effective January 1, 2010.
Failure to comply with Rule 9.11 may, at the discretion of the court, result in delay while pleadings are conformed to the requirements of this Rule.
All licensed Louisiana attorneys in good standing may enroll as counsel of record: (1) by oral notice made in open court when all parties or their counsel are present; or (2) by filing a written Notice of Enrollment or a written Notice of Limited Appearance in accordance with La. Code Civ. Proc. art. 853 with the clerk of court, with copies to all other enrolled counsel or self-represented parties and to the court.
A Notice of Limited Appearance shall specifically state the limitation of legal services by subject matter, proceeding, date, or time period in accordance with Rule 1.2(c) of the Rules of Professional Conduct. See forms in Appendix 9.12A (family law) and Appendix 9.12B (non-family law).
The applicable Appendix Form 9.12 form shall be filed if an attorney is making a limited appearance, with or prior to the initial pleading or prior to the initial hearing. The Notice shall bear the signatures of both the appearing attorney and the client, unless the client is unavailable to sign at filing. If the Notice does not bear the client’s signature, a certificate attesting to the scope of limited enrollment, signed by the client, shall be filed into the record within ten (10) days of the filing of the initial Notice of Limited Appearance.
Adopted April 1, 2002, effective April 1, 2002; amended October 29, 2003, effective January 4, 2004; amended November 3, 2004, effective January 1, 2005; amended November 20, 2009, effective January 1, 2010; amended November 21, 2011, effective January 1, 2012; amended November 27, 2012, effective January 1, 2013; amended May 15, 2013, effective June 1, 2013.
Attorneys enrolling pro hac vice shall comply with Rule XVII, Section 13 of the Rules of the Louisiana Supreme Court.
Filing the initial petition or first responsive pleading constitutes enrollment, and no further notice of enrollment is needed unless the attorney is making a limited appearance as authorized by Rule 1.2(c) of the Rules of Professional Conduct.
Rule 1.2(c) of the Rules of Professional Conduct allows an attorney to limit the scope of the representation if the limitation is reasonable and the client gives informed consent. See also Rule 1.0(e) of the Rules of Professional Conduct.
The use of standard forms for limited appearances makes the notices easily recognizable to judge, court staff, opposing parties and the client. The form notices require the attorney to identify the scope of a limited representation with specificity.
(a) The withdrawing attorney who does not have written consent from the client shall make a good faith attempt to notify the client in writing of the withdrawal and of the status of the case on the court’s docket. The attorney shall deliver or mail this notice to the client before filing any motion to withdraw.
(b) If the action or proceeding has been assigned to a particular section or division of the court, then the motion to withdraw shall be submitted to the judge presiding over that section or division.
(2) If a scheduling order is in effect, a copy of it shall be attached to the motion.
(3) The motion shall state whether any conference, hearing, or trial is scheduled and, if so, its date.
paragraph (a) shall be attached to the motion.
(5) If the motion is to withdraw upon completion of a limited appearance, the motion shall include a certification by the withdrawing attorney that the agreed upon limited services have been completed and that the withdrawing attorney has submitted all judgments or orders resulting from the limited appearance as ordered by the court. A copy of the relevant Notice of Limited Appearance shall be attached to the motion.
(4) The case has been concluded.
(e) The court may also allow an attorney to withdraw by ex parte motion if no hearing or trial is scheduled.
(f) If paragraph (d) does not apply, then an attorney may withdraw as counsel of record only after a contradictory hearing and for good cause. All parties and the withdrawing attorney’s client shall be served with a copy of the motion and rule to show cause why it should not be granted.
(g) If counsel’s withdrawal would delay a scheduled hearing or trial, the court will not allow the withdrawal unless exceptional circumstances exist or limited representation was undertaken pursuant to a Notice of Limited Appearance and completed.
(1) The court may grant the motion without a hearing. Movers shall furnish the court with a proposed order.
(2) Substitution of counsel will not, by itself, be good cause to alter or delay any scheduled matters or deadlines.
Adopted April 1, 2002, effective April 1, 2002; amended October 29, 2003, effective January 4, 2004; amended November 20, 2009, effective January 1, 2010; amended November 27, 2012, effective January 1, 2013.
Rule 9.13 is not intended to supersede the Rules of Professional Conduct regarding the presentation of false testimony to the court.
Rule 9.13(d)(3) provides for ex parte withdrawal by an attorney upon completion of a limited scope representation. It is intended to facilitate limited representation services as contemplated by Rule 1.2(c) of the Rules of Professional Conduct.
(a) The date on which a motion to fix for trial on the merits may be made, and the method of setting a date for trial or hearing of a matter, including deadlines for scheduling orders, pre-trial briefs, contact with jurors, or any other matter, shall be determined by each district court as set forth in Appendix 9.14.
(b) Any party may request in writing, or the court on its own motion may order, a La. Code Civ. Proc. art. 1551 scheduling conference between counsel and the court to which the case has been allotted. Within thirty days after receiving a request for a scheduling conference, the court shall schedule a conference for the purpose of addressing those matters set forth in La. Code Civ. Proc. art. 1551. The scheduling conference may be held by any appropriate means, including in person, by telephone, or teleconference.
Adopted April 1, 2002, effective April 1, 2002; amended November 20, 2009, effective January 1, 2010; amended April 20, 2010, effective June 1, 2010; amended November 18, 2010, effective January 1, 2011.
(a) La. R.S. 13:1303 requires that the Civil District Court of the Parish of Orleans prescribe the order of preference for the trial of cases. La. Code Civ. Proc. art. 1571(A)(1)(b) states that the district court should prescribe the order of preference "in accordance with the law."
(b) La. Code Civ. Proc. art. 1551 lists the matters that may be considered at scheduling conferences.
(a) In cases other than juvenile and family law proceedings, a request for issuance of a subpoena shall be filed with the clerk of court at least ten days before the desired appearance date, unless a different deadline is set by the court in the pre trial or other order.
(b) In the case of a settlement, counsel on whose client's behalf the witness has been asked to testify should make reasonable efforts to notify the witness.
Adopted April 1, 2002, effective April 1, 2002; amended November 20, 2009, effective January 1, 2010; amended November 21, 2011, effective January 1, 2012; amended November 27, 2012, effective January 1, 2013; amended April 29, 2014, effective June 1, 2014.
La. Code Civ. Proc. art. 1355.1 deals with the reissuance of subpoenas.
(2) made in open court and entered on the minutes.
Adopted April 1, 2002, effective April 1, 2002; amended November 18, 2010, effective January 1, 2011.
(a) The court may grant a continuance of a trial or hearing for good grounds. Among the factors the court will consider are the diligence and good faith of the moving party, the reasonableness of the grounds, the fairness to both parties and other litigants before the court, and the need for the orderly and prompt administration of justice.
(b) The court will grant a continuance in any case where the law so requires.
(c) If the court grants a continuance, each party is responsible for contacting its own witnesses.
See La. Code Civ. Proc. arts. 1601‑1605 regarding the grounds for a continuance.
Oral argument is a privilege, not a right, and is within the court's discretion.
By moving for a preliminary default, the requesting attorney or party is certifying to the court that the defendant in the principal or incidental demand has been properly served and has failed to answer within the time prescribed by law.
Appeals to the district court shall be randomly allotted.
A party shall be allowed to serve upon any other party, without leave of court, thirty‑five interrogatories, as allowed by La. Code Civ. Proc. art. 1457(B). A court may not restrict the parties to fewer than thirty‑five interrogatories except by amendment to these Rules.
See Nathaniel Gaines, et al. v. Avondale Industries, Inc., et al., Parish of Orleans, Civil District Court, Div. M, No. 95‑1823, to the Court of Appeal, Fourth Circuit, No. 2001‑C‑0365, writ denied No. 2001-2348 (La. 11/16/01); 802 So.2d 616, holding that a local rule may not restrict the number of interrogatories to the defendants or plaintiffs in the aggregate.
(a) Before filing any motion to compel discovery, the moving party or attorney shall confer in person or by telephone with the opposing party or counsel for the purpose of amicably resolving the discovery dispute. The moving party or attorney shall attempt to arrange a suitable conference date with the opposing party or counsel and confirm the date by written notice sent at least five (5) days before the conference date, unless an earlier date is agreed upon or good cause exists for a shorter time period. If by telephone, the conference shall be initiated by the person seeking the discovery responses.
The parties or counsel personally conducted a conference on [insert date]. At this conference, there was a substantive discussion of every item presented to the court in this motion and, despite their best efforts, the parties or counsel were unable to resolve the matters presented.
Certified this ___ day of _________________, 20___.
Respondent or counsel has failed to respond or failed to confer in good faith in an attempt to resolve the matters presented.
(c) If the court finds that the parties or counsel have failed to confer in good faith, or have willfully failed to confer, the court may impose, at its discretion, sanctions on the non-conferring party, including attorney fees and costs.
Adopted April 1, 2002, effective April 1, 2002; amended November 20, 2009, effective January 1, 2010; amended November 21, 2011, effective January 1, 2012.
The district courts of Louisiana encourage and support the use of alternative dispute resolution to promote resolution of disputes and refer all counsel to the Louisiana Mediation Act, La. R.S. 9:4101, et seq. Additionally, the district courts of Louisiana encourage and support the use of special masters in appropriate circumstances.
Before submitting a request for mediation under La. R.S. 9:4103(A), a party shall certify that opposing counsel has been contacted and does not object to mediation.
(a) La. R.S. 13:4165 allows the court to appoint special masters in civil actions under the circumstances set forth therein.
(b) See La. R.S. 9:4103(A), which provides that, on motion of any party, a court may order the referral of a civil case for mediation. In the interest of judicial economy, these rules require a certificate of no opposition by opposing counsel before filing a request for court-ordered mediation under La. R.S. 9:4102(A).
In a civil case, the court shall fix an amount to cover the costs related to the jury, clerk of court, and sheriff. The court may not require that the bond be filed or the costs paid more than 180 days before trial. The failure to pay these costs timely will constitute a waiver of trial by jury.
Adopted April 1, 2002, effective April 1, 2002; amended June 2, 2003, effective July 1, 2003; amended November 3, 2008, effective January 1, 2009; amended November 20, 2009, effective January 1, 2010, amended November 21, 2011, effective January 1, 2012.
(a) La. Code Civ. Proc. art. 1734 provides that the jury bond shall be filed no later than sixty days before trial. La. Code Civ. Proc. art. 1734.1 provides that the court may order, in lieu of the bond required in Article 1734, that a cash deposit for costs be made no later than thirty days prior to trial. Rule 12.0 provides further guidance by stating that the bond need not be filed or the costs need not be paid more than 180 days before trial. Of course, the jury bond may be filed at the time of filing, at the discretion of counsel.
(b) La. R.S. 13:3105 sets the compensation to jurors in civil cases in Orleans Parish at $25.00 per day. La. R.S. 13:3049 states that jurors shall be paid $25.00 per day and that they should be reimbursed at a mileage rate not less than $.16 a mile and not more than the rate in effect for state officials.
(c) See La. Code Civ. Proc. art. 1761, et seq., regarding the procedure for calling and examining jurors.
(a) Authorized personnel shall assemble the members of the general venire, present the orientation, call roll, and account for those members present and absent.
(b) The judges shall notify the clerk of court and the clerk of court shall notify the jury commission at least ninety days before the designated jury terms, which sections of the court will participate in each term. The jury commission shall select a general venire in a number directed by the judges. Authorized personnel shall randomly select from the general venire those persons who will comprise the central jury pool and shall determine the number of persons selected to compose the central jury pool based upon the number of civil jury trials remaining on the dockets.
(c) Authorized personnel shall select the required number of panels from the central jury pool. The panels shall be selected at random and indiscriminately from the central jury pool members then available. In civil cases, the number of jurors shall be determined by the judge presiding over the trial for which the panel is selected. If the need arises, the assigned judge may request additional persons from the central jury pool, who also shall be selected at random.
(d) Persons selected to serve on the central jury pool panel and not selected to serve on a jury shall be returned to the central jury pool.
(e) The chief judge, or his or her designee, shall qualify the members of the central jury pool.
(f) Any person requesting to be excused from jury service shall present the reasons in writing to the court, the clerk of court, or to the judicial administrator, when one has been appointed, who shall then communicate that request and the necessary information to the court, which shall determine whether to grant the request.
See Supreme Court Rule XXV, Section 2 regarding Jury Service.


Marquart, Streifzüge, passim; Moravcsik, Zur Geschichte der Onoguren, v.s., § 22.
THE SEATS OF THE V.N.ND.R. Our peoples V.n.nd.r (§ 53) and Mirvāt (§ 46) have direct parallels only in Gardīzī's N.nd.r and M.rdāt. In both the Ḥ.-'Ā. and Gardīzī the V.n.nd.r / N.nd.r are the immediate neighbours of the Majgharī though the latter's habitat is conceived differently: our author places them near the Urals, whereas Gardīzī describes the Southern Magyars as living in the region of great rivers in the north-western corner of the Black Sea. Gardīzī's views on the Magyar territory are supported not only by I.R. and Bakrī but by the consensus of Byzantine and Western European sources as well. Therefore in discussing the location of the V.n.nd.r / N.nd.r territory contiguous on that of the Majgharī we have to depend chiefly on Gardīzī and disregard our author's theoretical constructions.  Such is the conclusion arrived at after a long series of attempts to co-ordinate our data with those of Gardīzī until it became evident that our author's starting-point was based on an error.
3. Gardīzī simply describes the facts and our author forces them into a geographical scheme. His error arises the moment that he tries to dispose his materials in map form.
that it stretched in a northern direction. The river from the eastern (or northern) bank of which the Majgharī could see the N.nd.r on the opposite bank is most probably the Danube, or alternatively its northern affluent Sereth mentioned in Const. Porph.'s description of Atelkuzu (v.s., § 22). Consequently the N.nd.r lived west of the last mentioned river, or south of the Danube, with the Transylvanian Carpathians standing "above" them. Gardīzī adds that the N.nd.r lived in the direction (bar janb "on the side") of the Saqlāb. As stated in § 43 the latter term may refer to the western Slavs (or even to the Macedonian Slavs, § 42, 17.).
Our author, in spite of his cartographical error, preserves the original disposition of the peoples with regard to one another, but this goes only as far as the original triad Majgharī - V.n.nd.r - Mirvāt is concerned. In § 46, north [east?] of the Mirvāt are named "some of the Inner Bulghār and [!] the V.n.nd.r mountains". As the Inner Bulghār belong definitely to the Iṣṭ. < Balkhī tradition which does not know the V.n.nd.r, this combination may be disregarded as the author's own guess. See diagram on p. 440.
1. In his translation of § 52 (in annex to Markov's work) Toumansky illustrates V.n.nd.r by found in Ibn al-Athīr, i, 243 ( < Mas'ūdī, Murūj, ii, 58-64). On other similar hints cf. now Kokovtsov, o.c., 92.
2. Cf. Barthold's Preface, p. 43. Marquart, Streifzüge, 172, 517, knew only a stray quotation from the Ḥ.-'Ā through Westberg's Beiträge, p. 215.
Širakac'i, VII. Jahrh.) > W(u)ł(u)ndur Bułkar (Ps. Moses Chorenac'i, letztes Drittel des IX. Jahrh.), Wunundur (Ḥudūd al-'Ālam, Ende des X. Jahrh.), bereits mit prothetischem w vor labialem Vokal, wie im čuwaschischen; Wulundur (al-Mas'ūdī, 943-4 n. Chr.) = magy. Nándor Fejérvár = Belgrad."
The exact references of this cryptic passage are: Nicephori Archiepiscopi Constantinopolitani Opuscula, ed. de Boor, Lipsiae 1880, p. 24; Yāqūt,ī, 404: Japhet's sons: Yūnān, al-Ṣaqlab, (sic),  Burjān, Jurzān, Fārs, Rūm; Géographie de Moïse de Corène [attributed sometimes to A. Shirakats'i], ed. by Soukry, Venice 1881, p. 25, transl. p. 34 (Marquart's translation in Streifzüge, 57); Moses of Khoren, History, book ii, ch. 6. The reference to the Ḥ.-'Ā. evidently hails from Westberg's Beiträge. Mas'ūdī mentions both in the Murūj, ii, 58-64, and in the Tanbīh, 180, 183 (see in detail Streifzüge, 60-74).
1. Not in the general index of Wüstenfeld's edition.
2. Marquart, Chronologie, pp. 89-96, Streifzüge, pp. 126, 505; Bury, A History of the later Roman Empire, 1889, ii, 333; Moravcsik, o.c., pp. 65, 71—2, 89.
3. The name Onoghundur (Onoghur, &c.) may be responsible for the western designation of the Magyars as Hungar-. See Munkácsi and Németh quoted by Moravcsik, o.c., 81, note 3.
began their westward trek which finally brought them into the present-day Hungary, cf. Moravcsik, o.c., 89.
1. The Khazar king's letter (v.i.) refers to the events of A.D. 679, but this detail may point to the literary origin of the passage.
2. Unless the name V.n.nd.r < Onoghundur refers to some special Bulghar territory, such as the original occupied by Asparukh ?
3. Was then the original source on Eastern Europe, or the text in which it was available, in Persian? The absence of underground canals (kārīz) in the M.rdāt country, mentioned in Gardīzī, could hardly strike any one except an Iranian. Cf. also the strange transcription of the name (§51) (§ 52). These facts still await an explanation. Mas'ūdī, Murūj, ii, 59, says that dissensions among the W.l.nd.rī tribes arose in connexion with the presence among them of a Muslim merchant from Ardābīl. Consequently Persian traders penetrated into the southern Russian steppes and could be the source of information for their coreligionists.
5. Were it not for the name *Vunundur one might consider as the Magyars' neighbours the Rumanian Vlachs, see Kunik in Izvestiya al-Bakri, ii, 16, and Niederle, Manuel, Map.
6. The Danube Bulgars were baptized under King Boris in A.D. 864. If indeed our data refer to them ( = Burjān = Inner Bulghār = Bulghari), their weakness in comparison with the Magyars could be explained by the fact that the latter were moving westwards and their forced energy (under the Pecheneg impact) could be mistaken for strength.
1. The form W.l.nd.r peculiar to Mas'ūdī results from the dissimilation n.n>l.n. Cf. the Armenian form Vłəndur.
2. See Marquart, Streifzüge, 60-74, 499-500, 527.
4. Marquart, o.c., 74: "verblasste Erinnerungen".
5. See now V. Zlatarski, Istoriya na Bŭlgarskata dŭržava, Sofia, 1927, i. 25: the frontier left Develt to the Byzantine Empire.
from some colony of Onoghundurs with whom the Greeks were in relations since the times of Kobrat, Streifzüge, 529, or because it was directed against the Vulundur (in Arabic one might say: 'alā thaghr al-Wulundur), and consequently Mas'ūdi's term *Wulunduriya (referring to all the four, or even five different tribes), most probably has to be taken in the sense of "the coalition attacking on the *Vulundur front".  Whatever the explanation of the raid,  the survival of the name *Vulundur in Mas'ūdī is a firmly established fact interesting as a parallel to our *Vunundur.
THE KHAZAR KING'S LETTER. Among the parallels to the name V.n.nd.r it remains for us to consider V.n.nt.r found in the Hebrew letter supposed to have been sent by the Khazar king Joseph in answer to that of Chasdai ben Shafrut, an agent to the Cordovan caliph 'Abd al-Raḥmān (A.D. 912-61). The year 961 is the terminus ante quem of Chasdai's original letter and the king's reply must have followed it within a not too long period. As has been recently discovered (1924), the existence of King Joseph's letter was known already to Yahuda ben Barzillai (lived towards A.D. 1100) who wondered "whether it was genuine or not". The question is complicated by the existence of two versions of the document:  the one (A) in a shorter form was published in Constantinople in 1577 (this text is very close to the Christ Church College MS. 193); the other (B) in a more complete form came to light only towards 1873 among the manuscripts collected by Firkovich. This fact, in view of this collector's suspect practices, was not in favour of a blind acceptance of the contents of this particular version.
1. Unless the coalition was formed on some special territory, v.s., = Bujaq.
3. See Prof. P. K. Kokovtsov, Yevreysko-khazarskaya perepiska v X veke, ed. by the Academy of the U.S.S.R., 1932, which gives the originals of all the documents bearing on the correspondence with the Khazar king with translation and a very valuable commentary. The third document discovered lately in Cambridge does not concern us here.
4. Kokovtsov's transl., pp. 75 and 92.
In a later passage the king gives an account of the Khazar boundaries and, immediately after a very detailed enumeration of the localities belonging to the Crimea [Firkovich's home!], the frontier is said to turn northwards to the country of Batsra ( most probably *Bačna referring to Bajnī or Bajnā whom Mas'ūdī associates with the Pechenegs, v.s., p. 469, n. 3). The (inhabitants) of this country lived near the river V.zg (A. spells Y.zg, very probably *Uzu = Dniepr) and wandered in the steppe down to the limits of the H.gry'īm (A. Hyndy'īm), i.e. evidently Hungarians *H.ng.r. Consequently the lands of a (Turkish) tribe and those of the Magyars stretched to the west of the Khazar and separated the latter from the Danube. The writer clearly refers to the expulsion of the V.n.nt.r beyond the Danube as a remote past (events of A.D. 679), whereas the account of the Khazar frontiers presupposes the arrival of the Pechenegs in the second half of the ninth century. The form W.n.nt.r has a striking resemblance to our V.n.nd.r, and on the other hand considerably differs from the forms attested in Greek and Armenian sources. Numerous names in version B seem to have been borrowed from Muslim geographers  and the question arises whether such is not the case of W.n.nt.r as well. The interpolator could not possibly know the Ḥ.-'Ā. or Gardīzī [which in Europe have come to light at a very recent date] but could he not have seen their common source? The text of the Khazar letter as it stands, if confronted with our two Persian authors, would confirm the interpretation of our Rūtā/Dūbā as Danube  and, on the other hand, suggest the identity of our V.n.nd.r with the Danubian Bulgars. However, the origin of the Hebrew interpolation remains obscure and the clever interpolator may have read his own sense into his source. Therefore in our own explanation of the Muslim texts we have to go principally by their internal evidence.
1. The most striking example is the Arabic form *Ṣlawiyūn, Kokovtsov, o.c. 98-9.
2. See, however, supra, p. 217.


text:
EUGENIO BASBAS, TEOFILO ARAS, RUFINO ARAS, GERVACIO BASBAS, ISMAEL ARAS, EUGENIO ARAS, SIMFRONIO ARAS, FELICIANO ARAS, ROSITA ARAS, EUGENIO BASBAS, JR. AND SPOUSES PABLITO BASARTE AND MARCELINA BASBAS BASARTE, PETITIONERS, VS. BEATA SAYSON AND ROBERTO SAYSON, JR., RESPONDENTS.
Petitioners seek to prevent the revival of a judgment rendered in favor of the respondents more than two decades back.
This Petition for Review on Certiorari assails the February 17, 2004 Decisionof the Court of Appeals (CA) in CA-G.R. CV No. 72385 which denied the appeal filed before it and affirmed in toto the May 21, 2001 Order of the Regional Trial Court of Ormoc City, Branch 35. Also assailed is the April 19, 2006 Resolution denying the Motion for Reconsideration thereto.
On September 2, 1976, respondent Beata Sayson (Beata) and her husband Roberto Sayson, Sr. (Roberto Sr.) filed a Petition for Registration of an agricultural land located in Cagbatang, Balagtas, Matag-ob, Leyte docketed as Land Registration Case No. 0-177. The said application was opposed by the Republic of the Philippines and herein petitioners Eugenio Basbas (Eugenio Sr.), Teofilo Aras (Teofilo) and Rufino Aras (Rufino). On March 22, 1979, the Court of First Instance (CFI) of Leyte, Branch V (Ormoc City) rendered a Decision adjudicating to the spouses Sayson said agricultural land and approving its registration under their names.
The oppositors filed their appeal to the CA docketed as CA-G.R. No. 66541. In a Decision dated July 24, 1985, the appellate court affirmed in toto the Decision of the CFI. This CA Decision became final and executory on August 21, 1985 and, accordingly, a Writ of Possession was issued on November 21, 1985, which was never implemented.
The following year or on September 17, 1986, Original Certificate of Title (OCT) No. 2496 was issued to the spouses Sayson pursuant to the March 22, 1979 CFI Decision. An Alias Writ of Possession was issued on April 6, 1989 but this could also not be implemented in view of the refusal of Eugenio Sr. and his son Eugenio Basbas, Jr. (Eugenio Jr.). Claiming that the land they occupied is not the same land subject of the CFI Decision, they demanded that a relocation survey be conducted. Hence, a relocation survey was conducted by order of the Regional Trial Court (RTC), Branch 12, Ormoc City.
[R]espondents are directed to vacate the portion of Lot No. 1, Psu-08-000235 covered by OCT No. 2496 and subject of the final decree of registration which, [up to the] present, said respondents are still possessing pursuant to the final and executory judgment of the Court of Appeals and as particularly defined in the Commissioner's report submitted on August 3, 1989 x x x.
Respondents are reminded that under Rule 71 of the New Rules of Court, failure on their part to so obey this order may make them liable for contempt of this Court.
This September 13, 1989 Order was, however, not implemented within the five-year period from the time it became final. Hence, respondent Beata and her son Roberto Sayson, Jr. (Roberto Jr.), as successor-in-interest of the late Roberto Sr., filed on August 18, 1995 a Complaint for Revival of Judgment before the RTC of Ormoc City, Branch 12, docketed as Civil Case No. 3312-0. Impleaded as defendants were Eugenio Sr., Teofilo, Rufino, Gervacio, Ismael, Eugenio, Simfronio, Feliciano, Rosita, and Eugenio Jr. Petitioner-spouses Pablito Basarte and Marcelina Basbas-Sabarte (spouses Basarte), who, although not identified in the September 13, 1989 Order as principal oppositors in the land registration case, were likewise impleaded as defendants since they also allegedly harvested, processed, and sold the coconuts found in the subject property.
Upon receipt of summons, Gervacio, Rufino, Ismael, Eugenio, Feliciano, Rosita and Eugenio Jr. filed a Motion to Dismiss on the ground that the Complaint states no cause of action. This was, however, denied so the same set of petitioners, except for Feliciano, filed an Answer with Counterclaim.
`WHEREFORE, decision is hereby rendered x x x [and] the land described under Plan PSU-08-000235 dated September 10, 1973 of Geodetic Engineer Nestorio Encenzo already APPROVED by the Acting Regional Director on June 27, 1974 is hereby adjudicated and registered in the names of the Spouses ROBERTO SAYSON and BEATA O. SAYSON, of legal ages, Filipinos, spouses and residents of Campokpok, Tabango, Leyte, Philippines and as soon as this decision becomes final, let a decree of registration be issued by the Land Registration Commission.
`WHEREFORE, PREMISES CONSIDERED, finding no merit in this appeal the decision appealed from is hereby AFFIRMED in toto.
and the said decision has become final and executory on August 21, 1985 per Entry of Judgment issued by the Court of Appeals x x x.
2) paragraph 14, with respect to the allegation on the retirement of the Deputy Sheriff and the heart condition of the Clerk of Court, for lack of sufficient knowledge and information sufficient to form a belief thereon.
2) paragraph 15, on the ground that the property they are cultivating is owned by them, hence, respondents cannot suffer losses and damages.
15. That despite their knowledge of the Court[`s] [September 13, 1989] Order, the same [having been] dictated in open court, the respondents had continued to occupy the land of the plaintiffs and for more than five (5) years since this Order for them to vacate the land in question was issued, they had harvested the coconuts growing thereon and such other produce of the land herein involved. And until the decision of the Court of Appeals is executed, plaintiff will continue to suffer losses and damages by reason of defendants' unlawful occupation and possession and their continued harvesting of the produce of this land of the herein plaintiffs.
By way of special and affirmative defenses, said petitioners contended that the Order sought to be revived is not the "judgment" contemplated under Section 6, Rule 39 of the Rules of Court, hence the action for revival of judgment is improper. Also, except for Rufino, petitioners averred that they cannot be made parties to the complaint for revival of judgment as they were not parties to the land registration case. They thus believed that the September 13, 1989 Order sought to be revived is not binding upon them and hence, the complaint states no cause of action with respect to them. As to the counterclaim, petitioners prayed that respondents pay them moral and exemplary damages, attorney's fees and litigation expenses.
Pre-trial conference was thereafter set but since not all petitioners were served with summons, this was reset and alias summons was issued and served upon Simfronio and the spouses Basarte. Upon receipt of summons, Simfronio adopted the Answer with Counterclaim of Gervacio, Rufino, Ismael, Eugenio, Feliciano, Rosita and Eugenio Jr. while the spouses Basarte filed a Motion to Dismiss on the ground of lack of cause of action. As said motion was also denied, the spouses Basarte later filed a Manifestation that they were also adopting the Answer with Counterclaim filed by Gervacio and the others.
In today's pre-trial conference, manifestations and counter-manifestations were exchanged. All the parties and their counsels are present. x x x [P]laintiffs' counsel presented a Special Power of Attorney by Beata Sayson but the Court observed that same was not duly acknowledged before the Philippine Consulate or Embassy in Canada. However, this matter is not so important[.] [W]hen the Court tried to dig and discuss with the parties on their real positions, it turned out that the plaintiffs are seeking revival of the previous final judgment, the original parties of which were Eugenio Basbas, Teofilo Aras and Rufino Aras. Eugenio and Teofilo are all dead, leaving Rufino Aras alive. It is quite complicated considering that in this action, the plaintiffs relied on the Order of this Court penned by the previous judge dated September 13, 1989 which was made after or consequent to the final judgment aforementioned, wherein the names of the other defendants were mentioned in the body thereof. After considering the merits of the various contentions, the Court is of the view that the complaint had to limit itself to the names of the original parties appearing in the original judgment now being sought for revival. The interest of the plaintiffs in seeking implementation or execution of the judgment sought to be revived which would involve the other defendants can be taken when the judgment shall have been revived.
In this connection therefore and as part of the matters to be made part in the pre-trial conference, in the exercise of the authority granted to it by law, this Court directs the plaintiffs to make the necessary amendment and/or to submit a manifestation first to this Court on the point above raised regarding amendment of the designation of the parties having in mind the objection of the defendants who manifested that should there be an amendment, this counter-claim shall be disregarded since they were brought in unnecessarily in this kind of action.
Plaintiffs therefore are given a period of ten (10) days from today within which to submit the requisite manifestation furnishing copy thereof to the defendant who upon receipt shall also be given a period of ten (10) days within which this Court will make the necessary resolution before allowing any amendment.
Hold the pre-trial conference in abeyance.
The Manifestation of plaintiffs and the Counter-Manifestation of defendants having already been submitted and duly noted, the Court hereby directs that henceforth in the denomination of this case, the names of the original parties, Eugenio Basbas and Teofilo Aras (in Land Registration Case No. 0-177) shall still remain to be so stated as defendants for purposes of the present case but with additional names of their respective heirs to be included and stated immediately after each name as heirs in substitution, namely: for Eugenio Basbas - 1) Gervacio Basbas, 2) Marcelina Basbas Basarte, and 3) Eugenio Basbas, Jr.; and for Teofilo Aras - 1) Ismael Aras, 2) Vicente Aras, 3) Ligaya Aras, 4) Rosendo Aras, and 5) Daina Aras.
Since from the records, only Gervacio Basbas, Eugenio Basbas, Jr. and Ismael Aras were duly served with summons, the Branch Clerk of Court is hereby directed to serve summons on the other heirs, namely: Marcelina Basbas Basarte, Vicente Aras, Ligaya Aras, Rosendo Aras, and Daina Aras.
Whether judgment on the pleadings is allowed or is tenable.
Respondents subsequently filed an Omnibus Motion for Judgment on the Pleadings and/or Summary Judgment. They contended that since petitioners' Answer failed to tender an issue, they having expressly admitted the material allegations in the complaint, particularly paragraphs 4 to 12, a judgment on the pleadings or summary judgment is proper.
Petitioners filed an Opposition Re: Omnibus Motion for Judgment on the Pleadings and/or Summary Judgment and Memorandum Re: Failure of Plaintiff Beata Sayson to Appear in the Pre-trial Conference. They argued that the case cannot be decided based on the pleadings nor through summary judgment considering that the controverted stipulations and issues defined in the Pre-Trial Order must be proven by evidence. In addition, they questioned the Special Power of Attorney (SPA) executed by Beata in Canada empowering her son Roberto Jr. to appear on her behalf in the pre-trial conference. They argued that since said SPA has not been authenticated by a Philippine Consulate official, it is not sufficient authorization and hence, Beata cannot be considered to have attended the pre-trial conference. The case must, therefore, be dismissed insofar as she is concerned.
Wherefore, finding merit in the motion, judgment is hereby rendered for and in favor of the plaintiffs and against the defendants ordering the revival of the decision of the Court of Appeals promulgated on July 24, 1985 affirming the decree of registration of this Court in the decision of the Land Registration Case No. 0-177 dated March 22, 1979, and of the final Order of this Court dated September 13, 1989 and upon finality of this Order, ordering the issuance of Writ of Possession for the lot made subject of the decision. Without pronouncement as to costs.
Petitioners thus filed a Notice of Appeal which was approved in an Order dated June 06, 2001.
WHEREFORE, premises considered, the present appeal is DENIED. The May 21, 2001 Decision of the Regional Trial Court of Ormoc City, Branch 35 is AFFIRMED.
Their Motion for Reconsideration having been denied in a Resolution dated April 19, 2006, petitioners are now before this Court through the present Petition for Review on Certiorari.
2. The Honorable Court of Appeals clearly committed serious errors of law in its Decision and Resolution dated February 17, 2004 and April 19, 2006 when it affirmed the Order of the Regional Trial Court of Ormoc City dated May 21, 2001 and declared that petitioners' argument that respondents' complaint failed to state a cause of action has no merit.
4. The Honorable Court of Appeals clearly committed serious errors of law in ruling that the duly notarized Special Power of Attorney in favor of Roberto Sayson[,] Jr. is valid and the latter is authorized to represent his mother, Beata Sayson[,] which is contrary to the ruling in the case of ANGELITA LOPEZ, represented by PRISCILLA L. TY vs. COURT OF APPEALS, REGIONAL TRIAL COURT OF QUEZON CITY x x x (G.R. No. 77008, December 29, 1987).
is not proper in this case since the controverted stipulations and the first three issues enumerated in the pre-trial order involve facts which must be threshed out during trial. They also claim that the Complaint for Revival of Judgment states no cause of action because the September 13, 1989 Order which it sought to revive is not the "judgment" contemplated under Section 6, Rule 39 of the Rules of Court and, therefore, cannot be the subject of such an action. Moreover, they argue that the CA Decision in the land registration case should not have been revived as same was not prayed for in the Complaint for Revival of Judgment. Lastly, petitioners assail the SPA which authorized Roberto Jr. to represent his mother, Beata, during the pre-trial conference, it not having been authenticated by a Philippine consulate officer in Canada where it was executed. Citing Lopez v. Court of Appeals, they contend that said document cannot be admitted in evidence and hence, Beata was not duly represented during said pre-trial conference. The case, therefore, should have been dismissed insofar as she is concerned.
For their part, respondents point out that the RTC's basis in granting the Motion for Judgment on the Pleadings and/or Summary Judgment was petitioners' admission of practically all the material allegations in the complaint. They aver that Section 1, Rule 34 of the Rules of Court clearly provides that where an answer fails to tender an issue or otherwise admits the material allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on the pleadings. Also, the test for a motion for summary judgment is whether the pleadings, affidavits or exhibits in support of the motion are sufficient to overcome the opposing papers and to justify a finding as a matter of law that there is no defense to the action or the claim is clearly meritorious. And since, as found by the CA, petitioners' Answer did not tender an issue and that there is no defense to the action, the grant of the Motion for Judgment on the Pleadings and/or Summary Judgment was appropriate. Respondents likewise contend that if their prayer in the Complaint is taken in its proper context, it can be deduced that what they were really seeking is the implementation of the CA Decision dated July 24, 1985 and the orders ancillary thereto. With respect to the SPA, they submit that the law does not require that a power of attorney be notarized. Moreover, Section 4, Rule 18 of the Rules of Court simply requires that a representative appear fully authorized "in writing". It does not specify a particular form of authority.
I. The instant case is proper for the rendition of a summary judgment.
Petitioners principally assail the CA's affirmance of the RTC's Order granting respondents' Motion for Judgment on the Pleadings and/or Summary Judgment.
The existence or appearance of ostensible issues in the pleadings, on the one hand, and their sham or fictitious character, on the other, are what distinguish a proper case for summary judgment from one for a judgment on the pleadings. In a proper case for judgment on the pleadings, there is no ostensible issue at all because of the failure of the defending party's answer to raise an issue. On the other hand, in the case of a summary judgment, issues apparently exist - i.e. facts are asserted in the complaint regarding which there is as yet no admission, disavowal or qualification; or specific denials or affirmative defenses are in truth set out in the answer - but the issues thus arising from the pleadings are sham, fictitious or not genuine, as shown by affidavits, depositions, or admissions. x x x.
Simply stated, what distinguishes a judgment on the pleadings from a summary judgment is the presence of issues in the Answer to the Complaint. When the Answer fails to tender any issue, that is, if it does not deny the material allegations in the complaint or admits said material allegations of the adverse party's pleadings by admitting the truthfulness thereof and/or omitting to deal with them at all, a judgment on the pleadings is appropriate. On the other hand, when the Answer specifically denies the material averments of the complaint or asserts affirmative defenses, or in other words raises an issue, a summary judgment is proper provided that the issue raised is not genuine. "A `genuine issue' means an issue of fact which calls for the presentation of evidence, as distinguished from an issue which is fictitious or contrived or which does not constitute a genuine issue for trial."
because petitioners' Answer tendered issues.
In this case, we note that while petitioners' Answer to respondents' Complaint practically admitted all the material allegations therein, it nevertheless asserts the affirmative defenses that the action for revival of judgment is not the proper action and that petitioners are not the proper parties. As issues obviously arise from these affirmative defenses, a judgment on the pleadings is clearly improper in this case.
However, before we consider this case appropriate for the rendition of summary judgment, an examination of the issues raised, that is, whether they are genuine issues or not, should first be made.
hence rendition of summary judgment is proper.
To resolve the issues of whether a revival of judgment is the proper action and whether respondents are the proper parties thereto, the RTC merely needed to examine the following: 1) the RTC Order dated September 13, 1989, to determine whether same is a judgment or final order contemplated under Section 6, Rule 39 of the Rules of Court; and, 2) the pleadings of the parties and pertinent portions of the records showing, among others, who among the respondents were oppositors to the land registration case, the heirs of such oppositors and the present occupants of the property. Plainly, these issues could be readily resolved based on the facts established by the pleadings. A full-blown trial on these issues will only entail waste of time and resources as they are clearly not genuine issues requiring presentation of evidence.
Petitioners aver that the RTC should not have granted respondents' Motion for Judgment on the Pleadings and/or Summary Judgment because of the controverted stipulations and the first three issues enumerated in the Pre-trial Order, which, according to them, require the presentation of evidence. These stipulations and issues, however, when examined, basically boil down to questions relating to the propriety of the action resorted to by respondents, which is revival of judgment, and to the proper parties thereto - the same questions which we have earlier declared as not constituting genuine issues.
In sum, this Court holds that the instant case is proper for the rendition of a summary judgment, hence, the CA committed no error in affirming the May 21, 2001 Order of the RTC granting respondents' Motion for Judgment on the Pleadings and/or Summary Judgment.
II. The Complaint states a cause of action.
September 13, 1989 Order sought to be revived is not the judgment contemplated under Section 6, Rule 39 of the Rules of Court. They also aver that the RTC erred when it ordered the revival not only of the September 13, 1989 Order but also of the July 24, 1985 CA Decision, when what was prayed for in the complaint was only the revival of the former.
The body of the Complaint as well as the prayer mentioned about the executory decision of the Court of Appeals promulgated on July 24, 1985 that had to be finally implemented. So it appears to this Court that the Complaint does not alone invoke or use as subject thereof the Order of this Court which would implement the decision or judgment regarding the land in question. The Rules of Court referring to the execution of judgment, particularly Rule 39, Sec. 6, provides a mechanism by which the judgment that had not been enforced within five (5) years from the date of its entry or from the date the said judgment has become final and executory could be enforced. In fact, the rule states: "...judgment may be enforced by action."
So in this Complaint, what is sought is the enforcement of a judgment and the Order of this Court dated September 13, 1989 is part of the process to enforce that judgment. To the mind of the Court, therefore, the Complaint sufficiently states a cause of action.
III. Any perceived defect in the SPA would not serve to bar the case from proceeding.
Anent the SPA, we find that given the particular circumstances in the case at bar, an SPA is not even necessary such that its efficacy or the lack of it would not in any way preclude the case from proceeding. This is because upon Roberto Sr.'s death, Roberto Jr., in succession of his father, became a co-owner of the subject property together with his mother, Beata. As a co-owner, he may, by himself alone, bring an action for the recovery of the co-owned property pursuant to the well-settled principle that "in a co-ownership, co-owners may bring actions for the recovery of co-owned property without the necessity of joining all the other co-owners as co-plaintiffs because the suit is presumed to have been filed for the benefit of his co-owners."
While we note that the present action for revival of judgment is not an action for recovery, the September 13, 1989 Order sought to be revived herein ordered the petitioners, among others, to vacate the subject property pursuant to the final and executory judgment of the CA affirming the CFI's adjudication of the same in favor of respondents. This Order was issued after the failure to enforce the writ of execution and alias writ of execution due to petitioners' refusal to vacate the property. To this Court's mind, respondents' purpose in instituting the present action is not only to have the CA Decision in the land registration case finally implemented but ultimately, to recover possession thereof from petitioners. This action is therefore one which Roberto Jr., as co-owner, can bring and prosecute alone, on his own behalf and on behalf of his co-owner, Beata. Hence, a dismissal of the case with respect to Beata pursuant to Sec. 5, Rule 18 of the Rules of Court will be futile as the case could nevertheless be continued by Roberto Jr. in behalf of the two of them.
WHEREFORE, the Petition for Review on Certiorari is DENIED and the assailed Decision of the Court of Appeals dated February 17, 2004 and Resolution dated April 19, 2006 in CA-G.R. CV No. 72385 are AFFIRMED.
Corona, C. J., (Chairperson), Leonardo-De Castro, Brion,* and Villarama, Jr., JJ., concur.
* In lieu of Associate Justice Lucas P. Bersamin per Raffle dated August 8, 2011.
 CA rollo, pp. 102-109; penned by Associate Justice Elvi John S. Asuncion and concurred in by Associate Justices Godardo A. Jacinto and Lucas P. Bersamin (now a Member of this Court).
 Records, pp. 440-442; penned by Judge Fortunito L. Madrona.
 See first page of CA Decision dated July 24, 1985 in CA-G.R. No. 66541, records, p. 8.
 Id. at 8-13; penned by Associate Justice Leonor Ines Luciano and concurred in by Presiding Justice Ramon G. Gaviola, Jr., and Associate Justices Edgardo P. Caguioa and Ma. Rosario Quetulio-Losa.
 See Entry of Judgment, id. at 14.
 See the (Sheriff's) Progress Report, id. at 16-17.
 See RTC Order dated June 16, 1989, id. at 18.
Sec. 6. Execution by motion or by independent action. - A final and executory judgment or order may be executed on motion within five (5) years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. x x x.
 The case was later transferred to Branch 35 of RTC, Ormoc City per Order dated September 22, 1997, id. at 80.
 Later amended to read as "Basarte" per Order dated July 3, 1998, id. at 120.
 See the RTC's Order dated May 9, 1997, id. at 49-50.
 See Notice of Pre-Trial, id. at 85.
 See Orders dated March 9, 1998 & May 20, 1998, id. at 102 & 112 respectively; Alias Summons dated June 1, 1998, id. at 113; and Officer's Return, id. at 115. See also the Summons served to the spouses Basarte, id. at 148, and the Officer's Return thereof, id. at 147, after the spouses' surname was amended to read as spouses Basarte instead as Sabarte.
 See Simfronio's Manifestation and Second Manifestation, id. at 116-119.
 See RTC Order dated February 9, 1999, id. at 186.
 One of the Spouses Basarte.
 See 1st page of Pre-Trial Order, id. at 348. The Rufino Aras declared in default in said Pre-Trial Order is actually Rosendo Aras. Rufino filed his Answer together with Gervacio and the others.
 240 Phil. 811 (1987); In this case, an SPA was executed abroad by the real party in interest in favor of a representative here in the Philippines to initiate an action for ejectment. Finding said SPA to be without the authentication of an officer in the foreign service of the Philippines stationed in that foreign country pursuant to Sec. 25, Rule 132 of the old Rules of Court (now Sec. 24, Rule 132 of the Revised Rules of Court, see footnote 63), this Court declared the same as not admissible in evidence. Hence, the litigation was considered not commenced by the real party-in-interest or by one duly authorized to do so, making the entire proceedings before the lower courts null and void.
 G.R. No. 168809, March 10, 2006, 484 SCRA 538, 550-551.
 Tan v. De la Vega, supra note 52 at 545.
 Wood Technology Corporation v. Equitable Banking Corporation, 492 Phil.106, 116 (2005).
 Particularly the (1) Complaint, records, pp. 1-7; (2) Answer, id. at 73-77; (3) respondents' Manifestation with Prayer, id. at 231-233; and (4) petitioners' Counter-Manifestation, id. at 237-239.
 Carandang v. Heirs of De Guzman, G.R. No. 160347, November 29, 2006, 508 SCRA 469, 487 citing Baloloy v. Hular, 481 Phil. 398, (2004) and Adlawan v. Adlawan, G.R. No. 161916, January 20, 2006, 479 SCRA 275, 283.
 Sec. 5. Effect of failure to appear. - The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be caused for dismissal of the action. The dismissal shall be with prejudice, unless otherwise ordered by the court. x x x.

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Authorized attorney shall mean an attorney (1) employed by the county subject to the approval of the county board, (2) employed by the Department of Health and Human Services, or (3) appointed by the court, who is authorized to investigate and prosecute child, spousal, and medical support cases. An authorized attorney shall represent the state as provided in section 43-512.03.
Source:Laws 1985, Second Spec. Sess., LB 7, § 24; Laws 1987, LB 573, § 3; Laws 1991, LB 457, § 20; Laws 1994, LB 1224, § 65; Laws 1996, LB 1044, § 202; Laws 1997, LB 307, § 78.


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The validity of the statute has been sustained as one enacted for a public purpose and providing for the management of the enterprise by the commonwealth. Boston v. Treasurer and Receiver General, 237 Mass. 403, 413, 420, 130 N.E. 390, 392; Boston v. Jackson, 260 U.S. 309, 314, 316, 43 S.Ct. 129, 67 L.Ed. 274. The Supreme Judicial Court of Massachusetts has characterized the 'public operation' as 'undertaken by the commonwealth, not as a source of profit, but solely for the general welfare.' Boston v. Treasurer and Receiver General, supra. The trustees are the administrative agents of the commonwealth in this enterprise, and we may assume, as the Circuit Court of Appeals has held, that the trustees come within the general category of 'public officers' by virtue of their appointment by the Governor, with the advice and consent of the council, and their tenure and duties fixed by law.1 United States v. Hartwell, 6 Wall. 385, 393, 18 L.Ed. 830; Metcalf & Eddy v. Mitchell, 269 U.S. 514, 520, 46 St.Ct. 172, 70 L.Ed. 384. See Opinion of the Justices, 261 Mass. pages 542, 543, 550, 159 N.E. 55.
While the undertaking is for the public benefit, it is still a particular business enterprise—the operation of a street railway and the functions of the trustees are limited accordingly. The property remains in private ownership. The act, accepted by the company, constitutes in substance an agreement between the company and the commonwealth that the latter shall temporarily take over the management and operation and pay specified amounts by way of compensation. While the commonwealth may be called upon to bear losses that may occur, if the fares as fixed prove to be insufficient, the operation by the trustees is intended to be self-sustaining. The transportation service is to be rendered, as respondents' counsel say, 'under such a flexible system of rate-making as would allow the fixing of fares equal, as nearly as might be, to the cost of service.' The compensation of the trustees is undoubtedly a part of that cost. 'The main design of the act,' as stated by the Supreme Judicial Court, 'is public operation of the railway company at such rates of fare to be fixed by the trustees from time to time as shall afford revenue sufficient to defray all charges and the dividends established by the act.' Boston v. Treasurer and Receiver General, supra. The authority given to the trustees 'to regulate and fix fares,' and the further authority to ascertain such losses as may be incurred, which are to be borne by the commonwealth, are both incident to that main purpose.
We come then to the question whether the Congress has the constitutional power to impose an income tax upon the compensation of public officers of the character here involved. We do not regard that question as answered by mere terminology. The roots of the constitutional restriction strike deeper than that. The term 'public office' undoubtedly implies a definite assignment of public activity, fixed by appointment, tenure, and duties. But whether that field of activity, in relation to a state, carries immunity from federal taxation is a question which compels consideration of the nature of the activity, apart from the mere creation of offices for conducting it, and of the fundamental reason for denying federal authority to tax. That reason, as we have frequently said, is found in the necessary protection of the independence of the national and state governments within their respective spheres under our constitutional system. Collector v. Day, 11 Wall 113, 125, 127, 20 L.Ed. 122; Ambrosini v. United States, 187 U.S. 1, 7, 23 S.Ct. 1, 47 L.Ed. 49; Indian Motocycle Company v. United States, 283 U.S. 570, 575, 51 S.Ct. 601, 75 L.Ed. 1277. The principle of immunity thus has inherent limitations. Metcalf & Eddy v. Mitchell, supra, pages 522—524 of 269 U.S., 46 S.Ct. 172; Willcuts v. Bunn, 282 U.S. 216, 225, 226, 51 S.Ct. 125, 75 L.Ed. 304, 71 A.L.R. 1260; Indian Motocycle Company v. United States, supra, page 576 of 283 U.S., 51 S.Ct. 601; Fox Film Corporation v. Doyal, 286 U.S. 123, 128, 52 S.Ct. 546, 76 L.Ed. 1010; Board of Trustees v. United States, 289 U.S. 48, 59, 53 S.Ct. 509, 77 L.Ed. 1025. And one of these limitations is that the state cannot withdraw sources of revenue from the federal taxing power by engaging in businesses which constitute a departure from usual governmental functions and to which, by reason of their nature, the federal taxing power would normally extend. The fact that the state has power to undertake such enterprises, and that they are undertaken for what the state conceives to be the public benefit, does not establish immunity. South Carolina v. United States, 199 U.S. 437, 26 S.Ct. 110, 50 L.Ed. 261, 4 Ann.Cas. 737; Flint v. Stone Tracy Company, 220 U.S. 107, 172, 31 S.Ct. 342, 55 L.Ed. 389, Ann.Cas. 1912B, 1312; Murray v. Wilson Distilling Company, 213 U.S. 151, 173, 29 S.Ct. 458, 53 L.Ed. 742; Metcalf & Eddy v. Mitchell, supra; Indian Motocycle Company v. United States, supra; Ohio v. Helvering, 292 U.S. 360, 368, 369, 54 S.Ct. 725, 78 L.Ed. 1307. The necessary protection of the independence of the state government is not deemed to go so far.
The provision of section 1 of chapter 159 of the Massachusetts Special Acts of 1918 that the trustees shall not be considered public officers within the meaning of section 25 of chapter 514 of the Acts of 1909, and that section 1 of chapter 7 of the Revised Laws shall not apply to the trustees, creates special limitations of such a nature as not to derogate from their general status. See Opinion of the Justices, 261 Mass. page 543, 159 N.E. 55.

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I’ve been at this TAB thing in my classroom for about 2 weeks. I have implemented it in my Art 1, and my Art 2. My ceramic classes aren’t quite there yet, but they will be. I started Art 2 first on the TAB path. I showed short demos and had them practice using the techniques. We talked about out main theme of man/machine. I plan on revisiting tomorrow.
I feel I made some mistakes in my approach, so after a week of monster pinch pots and bobble heads in Art 1, I had a chance to have a mulligan. I changed how I had them practice. And after the first day, I even added a practice exercise that I didn’t do with my Art 2.
As I go along, I am learning just as much, if not more than my students. I think that is important in the TAB classroom. You have to be flexible. You have to take a step back and re-evaluate. And, if you are lucky, like I am, you can get a mulligan and try a new way within a few days and not have to wait until the next unit in a few weeks to try something new.
However, as I watched my Art 2 students finished the final practice before re-visiting our brainstorm session of man/machine, I felt that how I was having them practice just wasn’t right. I feel they weren’t really having a good go at the different techniques/media. I plan on finishing up with Art 1 how I completed Art 2, but over the course of the next few weeks, I will come up with some new ideas on how to practice. Because hey, what worked at one time may not work at another time. That’s just how the TAB classroom works.

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