I have received several calls regarding how to receive the $250 tax credit.
It appears that Weston Volunteer Fire & Rescue has created and shared an example that your dept. can use.
There is also one that was developed in Word format that I also found on the Nebraska State Fire Fighter’s Association website.
For more specific information please consider reaching out to the association.
Citizens who serve on a governmental board generally have a desire to serve the public interest. In small communities, some agree to serve due to realization that there are a lack of volunteers agreeing to do so, and a vast amount of work to be done. These volunteers rarely have an over abundance of additional time to serve on these boards. This makes it imperative that the time spent be as productive as possible. How can this be accomplished? Your entity needs a Strategic Plan! It will help you have unity prioritizing the challenges the board will be handling. It will also help set the course for new board members who fill vacating positions. This will save time and help give confidence to new board members, as well as give a clear way to measure the progress of a government.
Strengths and Weaknesses: Review the strengths and weaknesses of the jurisdiction, and develop a preliminary understanding as to where the county or city should concentrate efforts to address its deficiencies and build upon its strengths. This presentation should be delivered by the chief administrative officer of the jurisdiction; the chair of the board of county commissioners or the mayor.
Stakeholder Input: Receive a summary of the input from the citizenry or major stakeholders regarding their perceptions relating to the future directions of the county or city. This will validate the importance of the role of these groups as well as reinforce the connection between the elected officials and their constituencies.
Mission Statement: Most counties and larger cities have a mission statement that reads something like “it is the mission of XYZ County to provide a safe and secure environment, encourage balanced economic growth, protect the environment, and nurture the provision of responsive services so as to ensure a high quality of life for its citizenry,” or a variation thereof. The mission statement outlines and defines the aspirations of the jurisdiction in the context of its overall responsibilities. It is basically a statement of priorities for addressing the needs of its constituents. The mission statement sets the frame of reference for establishing the county or city’s vision for the future as well as its goals and objectives. While the mission statement can be altered over time, it is in fact the jurisdiction’s statement of purpose.
Vision: A major strategic planning element of a retreat is to define a vision for the future. That vision normally reflects the strengths and weaknesses of the county or city, changing conditions, and evolving constituent/stakeholder expectations. Examples of vision elements might include, the desire for a more economically diverse population; reduced congestion and single occupant vehicle usage; increased commercial and economic activity; increased financial sustainability, and encouragement of more healthy lifestyles. The vision basically defines the character of the jurisdiction that the elected officials and its stakeholders feel should be achieved at some point in the future. Each of those elements feed back to the mission statement and reflects the consensus of the elected officials regarding their jurisdiction’s future.
Goals: For each element of the vision, the elected officials should develop specific goals. If, for example, the vision is to encourage a more economically diverse population, addressing the needs of those with a more moderate incomes, then a number of specific goals can be defined. Those goals might include incentives for lower cost housing, encouragement of increased lower wage employment opportunities, increased availability of social services, etc. Each of these goals taken separately contribute to achieving a specific element of the vision. Individually they may not encourage the desired outcome, but collectively they can, if achieved, bring about the end result.
Objectives: The objectives are those elements that bring about achievement of the goal. If for instance the goal is to encourage an increased supply of affordable housing, the objective might be achieved by zoning changes that allow higher level multi-family housing in exchange for a given percentage of affordable housing units, or smaller lot residential developments to accommodate smaller and more affordable homes, zoning for mobile home parks, or even taxation concessions.
If you have questions or want help getting started, please feel free to give me a call.
I get questions often about coverages on insurance policies. Often times the answer is simple. Especially if the question has to do with Property Coverage. There are details clearly spelled out in the policy that explain the terms of coverage. Such as, the deductible, limits, causes of loss etc. However, the questions that I get most often have to do with liability. These questions are not as cut and dry. 1st off, just because there is a claimant who says an entity is responsible, does not mean that they public entity IS responsible. Who decides? Not the carrier, not the insured, the courts decide. A general liability policy normally promises to pay DAMAGES for bodily injury or property damage that the named insured is legally liable for. That is determined by a court.
Laws give additional protections to public entities above and beyond what are offered to a private citizen or business. Please see an outline of those protections below.
For claims Against State: State Tort Claims Act, Neb. Rev. Stat. § 81-8,209 et seq.
The State is liable in the same manner and to the same extent as a private individual. Neb. Rev. Stat. § 81-8,215.
Limitations on State liability are listed at Neb. Rev. Stat. § 81-8,219.
For claims Against Political Subdivisions: Political Subdivisions Tort Act, Neb. Rev.Stat § 13-901 et seq.
Subdivisions are liable in the same manner and to the same extent as a private individual. Neb. Rev. Stat § 13-908.
Limitations on Political Subdivision liability are listed in Neb. Rev. Stat. § 13-910.
All tort claims filed with the Risk Manager as prescribed by the State Claims Board. Neb.. Rev. Stat. § 81-8,212.
No suit shall be permitted unless the Risk Manager or State Claims Board has made final disposition of the claim, except that if the Risk Manager or board does not make final disposition of a claim within 6 months after the claim is made in writing and filed with the Risk Manager in the manner prescribed by the board, the claimant may, by notice in writing, withdraw the claim from consideration of the Risk Manager or board and begin suit under such act. Neb. Rev. Stat. § 81-8,213.
Claims must be to the Risk Manager within 2 years of accrual. The time to begin suit is extended by 6 months from the date of mailing of notice to the claimant by the Risk Manager or State Claims Board as to the final disposition of the claim or from the date of withdrawal of the claim under section 81-8,213 if the time to begin suit would otherwise expire before the end of such period. Neb. Rev. Stat. § 81-8,227.
Notice of claim to governing body within 1 year of accrual. Suit filed within 2 years of accrual. The time to file suit is extended 6 months from the date of mailing of notice to the claimant by the governing body as to the final disposition of the claim or from the date of withdrawal of the claim from the governing body under section 13- 906 if the time to begin suit would otherwise expire before the end of such period. Neb. Rev. Stat. § 13-919.
No suit shall be permitted under the Political Subdivisions Tort Claims Act unless the governing body of the political subdivision has made final disposition of the claim, except that if the governing body does not make final disposition of a claim within six months after it is filed, the claimant may, by notice in writing, withdraw the claim from consideration of the governing body and begin suit under such act and sections. Neb. Rev. Stat. § 13-906.
For claims against Political Subdivisions: $1,000,000 per person and $5,000,000 per occurrence. Neb. Rev. Stat. § 13-926.
and property in their communities. Whether fighting to extinguish a fire or responding to an emergency call such as an automobile accident, hazmat situation or other emergency, firefighters are exposed to a number of health and safety hazards. Being aware of these hazards and knowing how to mitigate them can help reduce the frequency and severity of injuries, as well as save lives.
injuries are minor; however, a significant number can be debilitating or career-ending.
how to reduce injuries, minimize the severity, and provide effective post-injury management.
As a member of the Rural Fire Protection District Board of Directors, you are one of five people responsible for providing district residents with the best fire protection the district can afford. It is the board’s responsibility to see that members of your volunteer fire department(s) have the proper equipment and training necessary to serve district residents.
The Rural Fire Protection District Board of Directors was created by Nebraska State Statutes 35-501 through 35-536 RRS 1943. Statute 35-506 states that the district will be governed by a board of five members, all residents of the district. The board will consist of a president, vice-president, secretary/treasurer and two directors. These offices are re-organized annually. Board members serve four-year terms.
To perform their duties effectively, board members should understand the two forms of management practiced by many boards.
Under a reactive management style, a board acts impulsively and does not consider the long-term consequences of its actions. Reactive boards usually fail to make the best use of its resources and meet the desires of the taxpayers.
Operating under a proactive management style, a board takes the needs and desires of its district’s residents very seriously. A proactive board develops long-range plans that consider the implications of their actions. It chooses priorities and makes decisions very carefully. Proactive management is the most successful and cost-effective form of management.
Fire district budgets must be approved by the county board, so it is imperative that the board has a long-range plan in place for future district needs. This is accomplished by developing a Fire Protection Master Plan.
The best type of fire protection is fire prevention. An effective fire prevention program can accomplish this. An effective fire prevention program can decrease annual fire losses, so these types of programs are a wise investment.
Fire prevention will only eliminate a portion of fires, so each district must have the necessary fire suppression equipment. A fire department, regardless of the amount of training, cannot perform at 100 percent without adequate equipment. It is the responsibility of the board to see that the fire fighters have the equipment necessary to do their job. This equipment benefits everyone who lives in and passes through the district, not just the firefighters.
35-1001. Death or disability as a result of cancer; death or disability as a result of certain diseases; prima facie evidence.
For a firefighter or firefighter-paramedic who is a member of a paid fire department of a municipality or a rural or suburban fire protection district in this state, including a municipality having a home rule charter or a municipal authority created pursuant to a home rule charter that has its own paid fire department, and who suffers death or disability as a result of cancer, including, but not limited to, cancer affecting the skin or the central nervous, lymphatic, digestive, hematological, urinary, skeletal, oral, or prostate systems, evidence which demonstrates that (a) such firefighter or firefighter-paramedic successfully passed a physical examination upon entry into such service or subsequent to such entry, which examination failed to reveal any evidence of cancer, (b) such firefighter or firefighter-paramedic was exposed to a known carcinogen, as defined on July 19, 1996, by the International Agency for Research on Cancer, while in the service of the fire department, and (c) such carcinogen is reported by the agency to be a suspected or known cause of the type of cancer the firefighter or firefighter-paramedic has, shall be prima facie evidence that such death or disability resulted from injuries, accident, or other cause while in the line of duty for the purposes of sections 16-1020 to 16-1042, a firefighter’s pension plan established pursuant to a home rule charter, and a firefighter’s pension or disability plan established by a rural or suburban fire protection district.
For a firefighter or firefighter-paramedic who is a member of a paid fire department of a municipality or a rural or suburban fire protection district in this state, including a municipality having a home rule charter or a municipal authority created pursuant to a home rule charter that has its own paid fire department, and who suffers death or disability as a result of a blood-borne infectious disease, tuberculosis, meningococcal meningitis, or methicillin-resistant Staphylococcus aureus, evidence which demonstrates that (a) such firefighter or firefighter-paramedic successfully passed a physical examination upon entry into such service or subsequent to such entry, which examination failed to reveal any evidence of such blood-borne infectious disease, tuberculosis, meningococcal meningitis, or methicillin-resistant Staphylococcus aureus, and (b) such firefighter or firefighter-paramedic has engaged in the service of the fire department within ten years before the onset of the disease, shall be prima facie evidence that such death or disability resulted from injuries, accident, or other cause while in the line of duty for the purposes of sections 16-1020 to 16-1042, a firefighter’s pension plan established pursuant to a home rule charter, and a firefighter’s pension or disability plan established by a rural or suburban fire protection district.
The prima facie evidence presumed under this section shall extend to death or disability as a result of cancer as described in this section, a blood-borne infectious disease, tuberculosis, meningococcal meningitis, or methicillin-resistant Staphylococcus aureus after the firefighter or firefighter-paramedic separates from his or her service to the fire department if the death or disability occurs within three months after such separation.
For purposes of this section, blood-borne infectious disease means human immunodeficiency virus, acquired immunodeficiency syndrome, and all strains of hepatitis.
18-1723. Firefighter; police officer; presumption of death or disability; rebuttable.
Whenever any firefighter who has served a total of five years as a member of a paid fire department of any city in this state or any police officer of any city or village, including any city having a home rule charter, shall suffer death or disability as a result of hypertension or heart or respiratory defect or disease, there shall be a rebuttable presumption that such death or disability resulted from accident or other cause while in the line of duty for all purposes of Chapter 15, article 10, sections 16-1001 to 16-1042, and any firefighter’s or police officer’s pension plan established pursuant to any home rule charter, the Legislature specifically finding the subject of this section to be a matter of general statewide concern. The rebuttable presumption shall apply to death or disability as a result of hypertension or heart or respiratory defect or disease after the firefighter or police officer separates from his or her applicable employment if the death or disability occurs within three months after such separation. Such rebuttable presumption shall apply in any action or proceeding arising out of death or disability incurred prior to December 25, 1969, and which has not been processed to final administrative or judicial conclusion prior to such date.
A strategic plan is a management tool help a department to perform efficiently, safely and consider all potential pitfalls. The plan focuses the energy, resources, and time of everyone on the department in the on a common goal. The best plans are reviewed and amended on a regular basis.
The plan can be as simple or as complex as you wish to make it. It can always be altered by further leadership. Start with a Strengths, Weaknesses, Opportunities and Threats or SWOT Analysis. The more you revise and the more everyone is on board with the common, prioritized goals, the department should work more smoothly. You may event end the arguments about how “this is how we always do it” with a reference to such in the strategic plan.
Create one and/or review on a regular basis before its too late!
Here is a Youtube video showing a strategic plan working though the thought process.
Here are some examples of other departments strategic plans.
Both Agents and Insured need to be VERY CLEAR about who is the NAMED INSURED on a policy. This often requires tedious research. Even if the board members are confident they know their official name or whether or not a partnership exists, sometimes they find out later they don’t. Generally, this is not a big deal until there is a BIG CLAIM. Better to be safe than sorry!
Below are statements I hear all the time, and I believe they are potential examples of shared liability exposures.
Are the other two entities who are not named covered for their own actions relating to Fire Service on their own policy?
If they are not listed as named insured, DO THEY HAVE A General Liability and Errors and Omission policy?
If there other two entities not named have no to General Liability or Errors and Omission policy, could they be ordered to cut the damages check from their own funds?
If they are not a public entity, such as a VOLUNTEER FIRE DEPT. created as a not for profit, and do not have a General Liability and Errors and Omission policy, are they PERSONALLY EXPOSED for actions taken on behalf of the public entity?
Could a carrier still subrogate for a Named Insured. VS Department if the department was listed as a ADDITIONAL INSURED?
Is this a potential E&O claim for an AGENT? If all members of this interlocal agreement are not listed as Named or Additional Insured?
Would it stop subrogation of a interlocal partner if they are listed as a Named or Additional named insured? If so that is a pretty expensive error.
Are you sure all additional insured are named if they are not actually listed as named insured?
Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. Recently wrote about the importance for Fire Law Blog.
So, take some time to look at your policy(ies) to determine if accurate and that all operations and entities you are intending to cover are indeed covered.
If you an insured, ask your agent for guidance or you are welcome to ask us to walk though a few things with you. We welcome questions from agents as well.
“ Saving Our Own ” Taking Action Against Occupational Cancer In The Fire Service Presented by Lieutenant Jennifer Chadwick and Lieutenant.


text:
Mary Hendricks Gilliam (“Plaintiff”) is appealing the Commissioner of the Social Security Administration's final decision denying her claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). Plaintiff's alleged inability to work is a result of “degenerative disc disease, ” “herniated discs, ” “neuritis, ” “hypertension, ” “peripheral neuropathy, ” “vision problems, ” and “memory loss.” Transcript of Administrative Proceedings (Doc. No. 11; “Tr.” or “administrative transcript”), filed May 24, 2017, at 81, 93, 105, 119, 257 (some capitalization and emphasis omitted). On June 26, 2013, Plaintiff filed applications for DIB and SSI, alleging an onset disability date of June 30, 2011. Tr. at 216-19 (DIB), 220-28 (SSI). Plaintiff's applications were denied initially, see Tr. at 81-89, 91, 92, 134-36 (DIB), 105-16, 117, 118, 137-39 (SSI), and were denied upon reconsideration, see Tr. at 93-102, 103, 104, 146-50 (DIB), 119-31, 132, 133, 151-55 (SSI).
On September 14, 2015, an Administrative Law Judge (“ALJ”) held a hearing, during which the ALJ heard from Plaintiff, who was represented by counsel, and a vocational expert (“VE”). Tr. at 38-80. At the time of the hearing, Plaintiff was fifty-two (52) years old. Tr. at 43. During the hearing, Plaintiff amended her alleged disability onset date to May 31, 2013, and in so doing, Plaintiff recognized she would be ineligible for DIB because she was last insured for DIB through a date prior to the amended onset date. Tr. at 40-41, 43; see also Tr. at 19 (Decision discussing the amendment), 251 (form entitled, “Request to Amend Onset Date”). Plaintiff, therefore, withdrew the DIB claim. Tr. at 251.
The ALJ issued a Decision on October 30, 2015, finding Plaintiff not disabled through the date of the Decision. Tr. at 19-32. Near the beginning of the Decision, the ALJ dismissed the DIB claim; accordingly, the Decision only addresses Plaintiff's SSI claim. Tr. at 19. Plaintiff then submitted additional evidence to the Appeals Council in the form of a brief authored by her counsel, a letter written by William V. Choisser, M.D., J.D., and some medical records. Tr. at 5-6; see Tr. at 337-44 (brief), 345 (letter), 516-21 (medical records). On January 19, 2017, the Appeals Council denied Plaintiff's request for review, Tr. at 1-4, thereby making the ALJ's Decision the final decision of the Commissioner. On March 14, 2017, Plaintiff commenced this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) by timely filing a Complaint (Doc. No. 1), seeking judicial review of the Commissioner's final decision.
On appeal, Plaintiff makes three arguments, and they are all related. See Plaintiff's Brief (Doc. No. 19; “Pl.'s Br.”), filed August 23, 2017, at 1. First, Plaintiff argues that the ALJ “improperly minimized [Plaintiff's] upper extremity limitations identified by not only the state agency consultant in November 2013 but also by two separate consultative examining physicians in July 2013 and August 2015.” Pl.'s Br. at 1; see id. at 8-16. Second, Plaintiff contends that the ALJ “failed to adequately explain why he was rejecting [R. James Mabry, M.D.'s] state agency consultative opinion regarding [Plaintiff's] upper extremity limitations.” Id. at 1; see id . at 16-19. Third, Plaintiff argues that the ALJ's “rationale for rejecting [Kristen Schmits, M.D.'s] examining opinion and Dr. Choisser's examining opinion is not supported by substantial evidence and requires reversal and remand.” Id. at 1; see id. at 19-25. On October 23, 2017, Defendant filed a Memorandum in Support of the Commissioner's Decision (Doc. No. 20; “Def.'s Mem.”) addressing Plaintiff's arguments.
After a thorough review of the entire record and consideration of the parties' respective memoranda, the undersigned determines that the Commissioner's final decision is due to be reversed and remanded for further proceedings.
When determining whether an individual is disabled,  an ALJ must follow the five-step sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining as appropriate whether the claimant (1) is currently employed or engaging in substantial gainful activity; (2) has a severe impairment; (3) has an impairment or combination of impairments that meets or medically equals one listed in the Regulations; (4) can perform past relevant work; and (5) retains the ability to perform any work in the national economy. 20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004). The claimant bears the burden of persuasion through step four and, at step five, the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Here, the ALJ followed the five-step sequential inquiry. See Tr. at 21-32. At step one, the ALJ determined that Plaintiff “has not engaged in substantial gainful activity since May 31, 2013, the amended alleged onset date.” Tr. at 21 (emphasis and citation omitted). At step two, the ALJ found that Plaintiff “has the following severe impairments: cervical disc disease, obesity, hypertension, adjustment disorder with anxiety, degenerative joint disease of the knees, lumbar/thoracic radiculitis, peripheral neuropathy, and chronic obstructive pulmonary disease.” Tr. at 21-22 (emphasis and citation omitted). At step three, the ALJ ascertained that “[Plaintiff] does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. at 22 (emphasis and citation omitted).
[Plaintiff can] perform light work as defined in 20 CFR [§§] 404.1567(b) and 416.967(b), except no more than occasional use of foot/hand controls; no more than occasional overhead reaching; no climbing of ladders and scaffolds or crawling; no more than occasional climbing of ramps and stairs or kneeling; no more than frequent balancing, stooping, and crouching; no work around unprotected heights or moving mechanical parts; no concentrated exposure to dust, fumes, gases, humidity, and wetness; no exposure to temperature extremes; limited to simple tasks, simple work-related decisions with no more than occasional interaction with supervisors, co-workers, and the general public, time off tasks is accommodated by normal breaks; requires a sit/stand option allowing for change of position at least every 30 minutes with  brief positional changes lasting no more than 3 minutes at a time where [Plaintiff] remains at the workstation during the positional change.
Tr. at 24 (emphasis omitted). At step four, the ALJ found that Plaintiff “is unable to perform any past relevant work” as a “cashier” and a “venetian blind assembler.” Tr. at 30-31 (some emphasis and citations omitted). At step five, the ALJ considered Plaintiff's age (“47 years old . . . on the alleged disability onset date”), education (“limited education and is able to communicate in English”), work experience, and RFC, and relied on the testimony of the VE to find Plaintiff is capable of performing work that “exist[s] in significant numbers in the national economy.” Tr. at 31 (emphasis and citations omitted). Namely, the ALJ identified representative jobs of “office helper, ” “towel folder, ” and “garment sorter.” Tr. at 31-32. The ALJ concluded that Plaintiff “has not been under a disability . . . from June 30, 2011, through the date of th[e D]ecision.” Tr. at 32 (emphasis and citation omitted).
This Court reviews the Commissioner's final decision as to disability pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ's conclusions of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence' . . . .” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998)). “Substantial evidence is something ‘more than a mere scintilla, but less than a preponderance.'” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial evidence standard is met when there is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Falge, 150 F.3d at 1322 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the evidence; rather, the entire record is reviewed to determine whether “the decision reached is reasonable and supported by substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991) (internal quotation and citations omitted); see also McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). The decision reached by the Commissioner must be affirmed if it is supported by substantial evidence-even if the evidence preponderates against the Commissioner's findings. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per curiam).

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The notice extends temporary relief under Notice 2014–5 from section 401(a)(4) nondiscrimination testing for closed defined benefit plans through plan years beginning before 2019, and provides that taxpayers may continue to rely on the proposed regulations for the same period.
Notice 2017–47 provides penalty relief to partnerships and REMICs that filed certain untimely returns or untimely requests for extension of time to file those returns for the first taxable year that began after December 31, 2015, by the fifteenth day of the fourth month following the close of that taxable year.
Safe Harbor for Inadvertent Normalization Violations. This revenue procedure provides a safe harbor concerning inadvertent or unintentional uses of a practice or procedure that is inconsistent with §§ 50(d)(2) and 168(i)(9) of the Internal Revenue Code of 1986, as amended, which require the use of the Normalization Rules. If the safe harbor provided in this revenue procedure applies, the Internal Revenue Service will not assert that a taxpayer’s inadvertent or unintentional use of a practice or procedure that is inconsistent with §§ 50(d)(2) and 168(i)(9) constitutes a violation of the Normalization Rules. This revenue procedure does not limit or change the process by which a taxpayer may request a letter ruling or a referral for a technical advice memorandum that the taxpayer’s proposed practice or procedure is consistent or inconsistent with the Normalization Rules.
This notice extends the temporary nondiscrimination relief for closed defined benefit plans that is provided in Notice 2014–5, 2014–2 I.R.B. 276, by making that relief available for plan years beginning before 2019 if the conditions of Notice 2014–5 are satisfied.
Notice 2014–5 provides temporary nondiscrimination relief for certain “closed” defined benefit pension plans (i.e., defined benefit plans that provide ongoing accruals but that have been amended to limit those accruals to some or all of the employees who participated in the plan on a specified date). Specifically, for plan years beginning before 2016, Section III.B of Notice 2014–5 permits a DB/DC plan that includes a closed defined benefit plan (that was closed before December 13, 2013) and that satisfies certain conditions set forth in the notice to demonstrate satisfaction of the nondiscrimination in amount requirement of § 1.401(a)(4)–1(b)(2) on the basis of equivalent benefits even if the DB/DC plan does not meet any of the existing eligibility conditions for testing on that basis under § 1.401(a)(4)–9(b)(2)(v).
Notice 2015–28, 2015–14 I.R.B. 848, and Notice 2016–57, 2016–40 I.R.B. 432, extend the temporary nondiscrimination relief provided in Notice 2014–5 by applying that relief to plan years beginning before 2018 if the conditions of Notice 2014–5 are satisfied. Notice 2015–28 further provides that, during the period for which the extension applies, the remaining provisions of the nondiscrimination regulations under § 401(a)(4) continue to apply.
Proposed regulations relating to nondiscrimination requirements for closed plans were published in the Federal Register on January 29, 2016 (81 FR 4976). The proposed regulations set forth relief for closed plans under §§ 1.401(a)(4)–4, 1.401(a)(4)–8, and 1.401(a)(4)–9 (subject to satisfaction of certain conditions set forth in the regulations), and contain other proposed nondiscrimination rules. The regulations are proposed to apply generally to plan years beginning on or after the date of publication of the final regulations. The proposed regulations provide that taxpayers are permitted to apply certain provisions of the proposed regulations (including all of the provisions that apply specifically to closed plans) for certain plan years beginning before the proposed applicability date.
Many comments have been submitted on the proposed regulations, including oral comments at a public hearing held on May 19, 2016. The Internal Revenue Service (IRS) and the Treasury Department expect that the final regulations will include a number of significant changes in response to those comments. However, it is anticipated that the final regulations will not be published in time for plan sponsors to make plan design decisions based on the final regulations before expiration of the relief provided under Notice 2014–5 (as last extended by Notice 2016–57). Accordingly, the IRS and the Treasury Department have determined that it is appropriate to extend the relief provided under Notice 2014–5 for an additional year.
The temporary nondiscrimination relief for closed plans that is provided in Notice 2014–5 is hereby extended to plan years beginning before 2019 if the conditions of Notice 2014–5 are satisfied. This extension is provided in anticipation of the issuance of final amendments to the § 401(a)(4) regulations. In addition, it is intended that the final regulations will provide that the reliance granted in the preamble to the proposed regulations may be applied for plan years beginning before 2019.
Notice 2014–5, Notice 2015–28, and Notice 2016–57 are modified.
The principal author of this notice is Diane S. Bloom of the Office of the Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the IRS participated in development of this guidance. For further information regarding this notice, please contact Ms. Bloom or Linda Marshall at (202) 317-6700 (not a toll-free number).
This notice provides penalty relief to partnerships and real estate mortgage investment conduits (REMICs) that filed certain untimely returns or untimely requests for extension of time to file those returns for the first taxable year that began after December 31, 2015, by the fifteenth day of the fourth month following the close of that taxable year.
Section 2006 of the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 (the Surface Transportation Act), Public Law 114–41, 129 Stat. 443 (2015), amended section 6072 of the Internal Revenue Code (the Code) and changed the date by which a partnership must file its annual return. The due date for filing the annual return of a partnership changed from the fifteenth day of the fourth month following the close of the taxable year (April 15 for calendar-year taxpayers) to the fifteenth day of the third month following the close of the taxable year (March 15 for calendar-year taxpayers). The new due date applies to the returns of partnerships for taxable years beginning after December 31, 2015.
Partnerships filing Form 1065, “U.S. Return of Partnership Income,” and Form 1065–B, “U.S. Return of Income for Electing Large Partnerships,” are affected by the Surface Transportation Act amendment. These partnerships may also file Form 8804, “Annual Return for Partnership Withholding Tax (Section 1446),” and Form 8805, “Foreign Partner’s Information Statement of Section 1446 Withholding Tax,” which are generally due to the IRS on the same date as the partnership’s Form 1065 or Form 1065–B. Filers of Form 1065 must furnish their partners with Schedules K-1, “Partner’s Share of Income, Deductions, Credits, etc.,” by the due date of the Form 1065, and filers of Form 1065–B must furnish their partners with Schedules K-1 by the first March 15 following the close of the partnership’s taxable year. Filers of Form 8804 that are required to file Forms 8805 must also furnish their partners with their respective copies of Forms 8805 by the due date of the Form 8804. Some partnerships must also file additional returns, such as Form 5471, “Information Return of U.S. Persons With Respect to Certain Foreign Corporations,” by the due date of the Form 1065 or Form 1065–B.
Partnerships can obtain a six-month extension of time to file Form 1065, 1065–B, or 8804 by filing Form 7004, “Application for Automatic Extension of Time to File Certain Business Income Tax, Information, and Other Returns,” by the statutory due date of those returns. Partnerships that receive an extension of time to file Form 1065 receive a concurrent extension of time to furnish their partners with Schedules K-1. Also, partnerships that receive an extension of time to file Form 8804 receive concurrent extensions of time to file Forms 8805 and to furnish respective copies of the Forms 8805 to their partners. The six-month extension may apply to additional returns that partnerships may be required to file by the due date of their Forms 1065 or 1065–B, but it does not affect the due date for partnerships filing Form 1065–B to furnish their partners with Schedules K-1.
Partnerships that fail to timely meet their obligations to file and furnish returns are subject to penalties. Partnerships that fail to file Form 1065, 1065–B, or 8804 by the due date (with regard to extensions) are subject to penalty under section 6698 or 6651 of the Code. Partnerships that fail to file Forms 8805 by the due date (with regard to extensions) are subject to penalty under 6721 of the Code. Partnerships that fail to furnish Schedules K-1 or the partner copies of Forms 8805 by the due date are subject to penalty under section 6722 of the Code. Partnerships that fail to file Form 5471 by the due date are subject to penalty under section 6038 or 6679 of the Code. Partnerships that fail to file additional returns that they are required to file by the due date of their Forms 1065 or 1065–B may also be subject to other penalties.
Many partnerships filed the returns discussed above or Form 7004 for the first taxable year beginning after December 31, 2015, by the date previously required by section 6072. If not for the Surface Transportation Act, these returns and requests for extension of time to file would have been timely.
(2) the partnership filed Form 7004 to request an extension of time to file by the date that would have been timely under section 6072 before amendment by the Surface Transportation Act and files the return with the IRS and furnishes copies (or Schedules K-1) to the partners (as appropriate) by the fifteenth day of the ninth month after the close of the partnership’s taxable year (September 15, 2017, for calendar-year taxpayers). If the partnership files Form 1065–B and was required to furnish Schedules K-1 to the partners by March 15, 2017, it must have done so to qualify for relief.
This relief will be granted automatically for penalties for failure to timely file Forms 1065, 1065–B, 8804, 8805, and any other returns, such as Form 5471, for which the due date is tied to the due date of Form 1065 or Form 1065–B. Relief will also be granted to REMICs, which file Form 1066, “U.S. Real Estate Mortgage Investment Conduit (REMIC) Income Tax Return.“ Partnerships and REMICs that qualify for relief and have already been assessed penalties can expect to receive a letter within the next several months notifying them that the penalties have been abated. For reconsideration of a penalty covered by this notice that has not been abated by February 28, 2018, contact the number listed in the letter that notified you of the penalty or call (800) 829-0115 and state that you are entitled to relief under Notice 2017–47. Taxpayers who qualify for relief under this notice will not be treated as having received a first-time abatement under the IRS’s administrative penalty waiver program.
This revenue procedure provides a safe harbor concerning inadvertent or unintentional uses of a practice or procedure that is inconsistent with §§ 50(d)(2) and 168(i)(9) of the Internal Revenue Code of 1986, as amended (Code), which require the use of the Normalization Rules (as defined in section 4.04 of this revenue procedure). If the safe harbor under section 5 of this revenue procedure applies, the Internal Revenue Service (Service) will not assert that a taxpayer’s inadvertent or unintentional use of a practice or procedure that is inconsistent with §§ 50(d)(2) and 168(i)(9) of the Code constitutes a violation of the Normalization Rules. This revenue procedure does not limit or change the process by which a taxpayer may request a letter ruling or a referral for a technical advice memorandum that the taxpayer’s proposed practice or procedure is consistent or inconsistent with the Normalization Rules.
In general, normalization is a system of accounting used by regulated public utilities to reconcile the tax treatment of the Investment Tax Credit (ITC) or accelerated depreciation of public utility assets with their regulatory treatment. Under normalization, a utility receives the tax benefit of the ITC or accelerated depreciation in the early years of an asset’s regulatory useful life and passes that benefit on to ratepayers ratably over the regulatory useful life in the form of reduced rates. The remainder of this section 2 describes the intent of Congress in adopting the Normalization Rules and their operation under the Code and Income Tax Regulations.
.01 Congressional Intent. Congress had two principal objectives in adopting the Normalization Rules. The first objective was to preserve the utility’s incentive to invest. Congress enacted the ITC and accelerated depreciation to stimulate investment. These incentives were not intended to subsidize the consumption of any products or services, including utility products or services. Recognizing that public utility rates are set based on the utility’s costs incurred to provide the utility service, including federal income tax expense, Congress enacted a set of rules to assure that some or all of the value of the incentives it provided for utility capital investment would not be diverted from investment by utilities to lower prices for consumption by customers of utilities.
The second objective was to protect the government’s tax revenue. Congress reasoned that when a utility elected accelerated depreciation and its regulator lowered rates to reflect the resulting tax benefit, the federal government would experience a reduction in tax revenue twice: once from the added accelerated depreciation deductions taken by the utility, and again from the decline in the revenue received by the utility as a result of its lower rates. See S. Rep. No. 91–552, at 17 (1969). The same impact results if a utility is permitted to flow through the benefit of its ITC to customers.
.02 Depreciation. Section 168 of the Code provides taxpayers generally with the benefits of the accelerated cost recovery system in the computation of their depreciation deduction for federal income tax purposes. Section 168(f) provides the description of certain property for which the benefits of § 168 do not apply. Section 168(f)(2) provides that § 168 does not apply to any public utility property, as defined in § 168(i)(10), if the taxpayer does not use a normalization method of accounting. In general, § 168(i)(10) defines “public utility property” as property used predominantly in the trade or business of furnishing or selling (A) electrical energy, water, or sewage disposal services, (B) gas or steam through a local distribution system, (C) certain communications services, or (D) the transportation of gas or steam by pipeline, if rates for such furnishing or sale are established or approved by a State (including the District of Columbia) or political subdivision thereof, any agency or instrumentality of the United States, or a public service or public utility commission or other body of any State or political subdivision thereof.
Section 168(i)(9) describes what constitutes a “normalization method of accounting.” The rules provided in § 168(i)(9) recognize that the rates a regulated public utility is permitted to charge its customers are established or approved by regulators based on the utility’s cost of service taking into account the depreciation of assets and federal income tax expense. The Normalization Rules under § 168(i)(9)(A)(i) require the taxpayer to compute the federal income tax expense taken into account in setting its rates using a depreciation method that is the same as, and a depreciation period that is no shorter than, the method and period used to compute the depreciation expense for purposes of computing rates. Under § 168(i)(9)(A)(ii), a taxpayer must account for any difference between its federal income tax expense taken into account in computing its rates and the actual federal income tax it pays as a reserve for deferred taxes. If the taxpayer uses estimates or projections in determining for rate-making purposes its tax expense, depreciation expense, or reserve for deferred taxes, the Normalization Rules under § 168(i)(9)(B) require the use of consistent estimates or projections with respect to the other two items and rate base.
Section 1.167(l)–1(a)(1) of the Income Tax Regulations provides that the normalization requirements for public utility property pertain only to the deferral of federal income tax liability resulting from the use of an accelerated method of depreciation for computing the allowance for depreciation under § 167 of the Code and the use of straight-line depreciation for computing tax expense and depreciation expense for purposes of establishing cost of services and for reflecting operating results in regulated books of account.
.03 Investment Tax Credit. Section 46 of the Code sets forth certain investment credits against income tax. Section 50(d) provides special rules for certain taxpayers to qualify for those credits, including § 50(d)(2), which provides that rules similar to the limitations provided under former § 46(f) applicable to public utility property prior to the enactment of the Revenue Reconciliation Act of 1990, Pub. L. No. 101–508, Title XI, 104 Stat. 1388, shall apply to certain regulated companies. The Tax Reform Act of 1986, Pub. L. No. 99–514, 100 Stat. 2085, repealed the ITC generally with respect to public utility property placed in service after 1985; however, due to the long useful life of much public utility property, these provisions retain their vitality.
Under the general rule of former § 46(f), those regulated companies are not entitled to the ITC if either the taxpayer’s cost of service or rate base for ratemaking purposes is reduced by any portion of the credit. However, the statute provides important exceptions. Former § 46(f)(1) provides that the ITC may not be used to reduce the taxpayer’s cost of service, but may be used to reduce rate base, if such reduction is restored not less rapidly than ratably. Former § 46(f)(2) provides an election under which a taxpayer is permitted to take into account a ratable portion of the ITC for purposes of determining cost of service, but is not permitted to reduce the base to which the taxpayer’s rate of return for ratemaking purposes is applied by any portion of the credit. A utility taxpayer elects either former § 46(f)(1) or former § 46(f)(2) and that choice applies to all public utility property of the taxpayer. A taxpayer that does not specifically elect former § 46(f)(2) is subject to the general rule of former § 46(f)(1).
Former § 46(f)(6) provides that for purposes of determining ratable portions, the period of time used in computing depreciation expense for purposes of reflecting operating results in the taxpayer’s regulated books of account is to be used. Under § 1.46–6(g)(2) of the Income Tax Regulations, “ratable” is determined by considering the period of time actually used in computing the taxpayer’s regulated depreciation expense for the property for which a credit is allowed. “Regulated depreciation expense” is the depreciation expense for the property used by a regulatory body for purposes of establishing the taxpayer’s cost of service for ratemaking purposes.
.04 Application of Sanctions for Failure to Use a Normalization Method of Accounting. Former § 46(f)(4)(A) provides that there is no disallowance of a credit before the first final inconsistent determination is put into effect for the taxpayer’s former § 46(f) property. Section 1.46–6(f)(4) provides that the ITC is disallowed for any former § 46(f) property placed in service by a taxpayer (a) before the date a final inconsistent determination by a regulatory body is put into effect, and (b) on or after such date and before the date a subsequent consistent determination is put into effect.
Section 1.46–6(f)(7) provides that the term “determination” refers to a determination made with respect to former § 46(f) property (other than property to which an election under former § 46(f)(3) applies) by a regulatory body described in former § 46(c)(3)(B) that determines the effect of the credit (a) for purposes of former § 46(f)(1), on the taxpayer’s cost of service or rate base for ratemaking purposes, or (b) for a taxpayer that made an election under former § 46(f)(2), on the taxpayer’s cost of service, for ratemaking purposes or in its regulated books of account, or on the taxpayer’s rate base for ratemaking purposes.
Section 1.46–6(f)(8)(i) provides that “inconsistent” refers to a determination that is inconsistent with former § 46(f)(1) or former § 46(f)(2). For example, a determination to reduce the taxpayer’s cost of service by more than a ratable portion of the ITC would be a determination that is inconsistent with former § 46(f)(2). Section 1.46–6(f)(8)(ii) provides that the term “consistent” refers to a determination that is consistent with former § 46(f)(1) or former § 46(f)(2). Section 1.46–6(f)(8)(iii) provides that the term “final determination” means a determination by a regulatory body with respect to which all rights of appeal or to request a review, a rehearing, or a redetermination have been exhausted or have lapsed.
The Senate Finance Committee Report to the Tax Reduction Act of 1975 addressed the importance of the final determination by stating that “if a regulatory agency requires the flowing through of a company’s additional investment credit at a rate faster than permitted, or insists upon a greater rate base adjustment than is permitted, the additional investment credit is to be disallowed, but only after a final determination . . . is put into effect.” S. Rep. No. 94–36, at 44–45 (1975).
Unlike most tax provisions the sanctions imposed under the Normalization Rules were not intended to directly increase or decrease federal tax revenues. They were intended to discourage the flow through of tax benefits to customers in order to allow utilities to benefit from the underlying depreciation and ITC provisions and prevent the loss of revenue the federal government would suffer if the benefits were flowed through to customers.
In addition, in discussing the limitations on the ratemaking treatment of the ITC under § 46(e)(1) and (e)(2), the Senate Finance Committee Report concerning the Revenue Act of 1971, P.L. 92–178, 85 Stat. 497, indicates that the Committee hoped that the sanctions of disallowance of the ITC would not have to be imposed. S. Rep. No. 92–437, at 41 (1971).
(4) retains contemporaneous documentation that clearly demonstrates the effects of the Inconsistent Practice or Procedure and the change to a Consistent Practice or Procedure adopted or approved by the Taxpayer’s Regulator.
.02 For purposes of section 3.01(2) of this revenue procedure, a taxpayer’s Inconsistent Practice or Procedure is neither inadvertent nor unintentional if the Taxpayer’s Regulator specifically considered and specially addressed the application of the Normalization Rules to the Inconsistent Practice or Procedure in establishing or approving the taxpayer’s rates even if at the time of such consideration the Taxpayer’s Regulator did not believe the practice or procedure was inconsistent with the Normalization Rules.
Taxpayer’s Regulator means a State (including the District of Columbia) or political subdivision thereof, any agency or instrumentality of the United States, or a public service or public utility commission or other body of any State or political subdivision thereof that establishes or approves the rates of the taxpayer.
Rate Proceeding means a proceeding in which the Taxpayer’s Regulator establishes or approves the taxpayer’s rates.
Public Utility Property has the meaning provided in former § 46(f)(5) or in § 168(i)(l0), and the applicable Income Tax Regulations.
The Normalization Rules mean, in the case of the ITC, the rules provided by former § 46(f), as in effect on the day before the date of enactment of the Revenue Reconciliation Act of 1990, and the Income Tax Regulations thereunder, and, in the case of the accelerated cost recovery system for depreciation, the rules provided by § 168(i)(9), as in effect on the day before the date of enactment of the Revenue Reconciliation Act of 1990, and the Income Tax Regulations thereunder.
A Consistent Practice or Procedure means a practice or procedure followed by the taxpayer and the Taxpayer’s Regulator that is consistent with the Normalization Rules.
An Inconsistent Practice or Procedure means a practice or procedure followed by the taxpayer and the Taxpayer’s Regulator that is inconsistent with the Normalization Rules.
(1) In the case of a taxpayer without a Rate Proceeding pending before the Taxpayer’s Regulator, the Next Available Opportunity means the next Rate Proceeding.
(2) In the case of a taxpayer with a Rate Proceeding currently pending before the Taxpayer’s Regulator, the Next Available Opportunity means the currently pending proceeding, unless the rules of the Taxpayer’s Regulator or applicable state or federal law (at the time the Inconsistent Practice or Procedure is identified) preclude the taxpayer from initiating a change from an Inconsistent Practice or Procedure to a Consistent Practice or Procedure in the currently pending proceeding, in which case the currently pending proceeding shall not be the Next Available Opportunity, and the Next Available Opportunity means the next Rate Proceeding.
(3) If, at the conclusion of a Rate Proceeding, the taxpayer has a private letter ruling request pending before the Service to address whether or not a practice or procedure addressed in the Rate Proceeding is a Consistent Practice or Procedure, and the Taxpayer’s Regulator later establishes or approves rates subject to adjustment from the effective date of the unadjusted rates in order to conform to the Service’s ruling, the taxpayer shall have corrected its Inconsistent Practice or Procedure at the Next Available Opportunity.
.01 For any taxpayer described in section 3 of this revenue procedure, the Service will not assert that the Inconsistent Practice or Procedure constitutes a violation of the Normalization Rules and will not deny that taxpayer the benefits of the ITC and/or accelerated depreciation. In any tax year ending after the taxpayer has identified an Inconsistent Practice or Procedure, but in which the taxpayer has not changed to a Consistent Practice or Procedure because the taxpayer has not reached the year that presents the taxpayer with its Next Available Opportunity, the taxpayer must include in its return a statement described in section 5.02 of this revenue procedure. If the taxpayer makes the representation described in section 5.02(3) of this revenue procedure, the Service will not assert that the Inconsistent Practice or Procedure is a violation of the Normalization Rules and will not challenge the taxpayer’s use of the identified Inconsistent Practice or Procedure unless the taxpayer does not change to a Consistent Practice or Procedure at the Next Available Opportunity.
(3) The statement includes a representation by the taxpayer of its intention to change to a Consistent Practice or Procedure at the Next Available Opportunity.
This revenue procedure is effective for taxable years ending on or after December 31, 2016. However, the Service will not challenge any Inconsistent Practice or Procedure in any earlier taxable year provided that the requirements of sections 3 and 5 of this revenue procedure are satisfied by the taxpayer with respect to the Inconsistent Practice or Procedure in such taxable year.
The collections of information contained in this revenue procedure have been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1545-2276.
The collections of information are in sections 3 and 5 of this revenue procedure and are required for a taxpayer to apply the safe harbor provided by this revenue procedure. This information is required to be collected and retained to clearly demonstrate the effects of a taxpayer’s Inconsistent Practice or Procedure and the taxpayer’s change to a Consistent Practice or Procedure adopted or approved by the Taxpayer’s Regulator. The taxpayer must also include a statement in its federal income tax return identifying the Inconsistent Practice or Procedure and representing its intention to change to a Consistent Practice or Procedure at the Next Available Opportunity. The likely respondents are corporations or partnerships that are regulated public utilities.
The estimated total annual reporting burden is 1,800 hours.
The estimated annual burden per respondent varies from 10 hours to 14 hours, depending on individual circumstances, with an estimated average burden of 12 hours to collect and retain contemporaneous documentation and to complete the statement required under this revenue procedure. The estimated number of respondents is 150.
The principal author of this revenue procedure is Jennifer C. Bernardini of the Office of Associate Chief Counsel (Passthroughs & Special Industries). For further information regarding this revenue procedure contact Ms. Bernardini on (202) 317-6853 (not a toll free number).
If on the other hand a suit for declaratory judgment has been timely filed, contributions from individuals and organizations described in section 170(c)(2) that are otherwise allowable will continue to be deductible. Protection under section 7428(c) would begin on September 18, 2017 and would end on the date the court first determines the organization is not described in section 170(c)(2) as more particularly set for in section 7428(c)(1). For individual contributors, the maximum deduction protected is $1,000, with a husband and wife treated as one contributor. This benefit is not extended to any individual, in whole or in part, for the acts or omissions of the organization that were the basis for revocation.


Mary L. Sfasciotti (argued), Chicago, IL, for Petitioners.
Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL; David M. McConnell, Marshall T. Golding (argued), Kristal A. Marlow, James A. Hunolt, Department of Justice, Washington, DC, for Respondent.
Before CUDAHY, EASTERBROOK and DIANE P. WOOD, Circuit Judges.
Petar and Anka Mojsilovic, who are Serbian, left the former Yugoslavia in June 1991 and entered the United States as visitors for pleasure. They were authorized to remain in the country until June 1992, but failed to depart when their authorization expired. They both filed applications for asylum and withholding of deportation, which were denied after asylum office review. In March 1994, Petar and Anka received an Order to Show Cause and Notice of Hearing from the Immigration and Naturalization Service (INS). At the hearing, which was held in July 1994, their attorney conceded deportability and asked for leave to file an amended request for asylum. The Immigration Judge (IJ) granted this request, and Petar and Anka each filed new applications on August 31, 1994. Petar's application stated that it included his two children but not his wife; Anka's application stated that it included her children and her husband. Anka's application left many questions unanswered and contained no supporting materials; Petar's application was a bit more detailed and contained a one-page addendum explaining why he believed he deserved asylum.
INS: I would move to sequester them if they're going to be both testifying.
INS: Then I think we have to do separate cases. We're doing two things here then and if she's also going to be testifying, it seems to me that they've had--they should have two separate asylum cases then.
IJ: Well, let me ask you this, Mr. Spraker, is there--well, if she would waive--if you don't have any problem with it--I mean because I think the due process requires her as a respondent to be present.... In this case, if they're both claiming the same thing ... you know I think it would bolster the credibility of their case if they were separated; but I think that because they are both respondents, that it be--that each of them has a right to be here.
IJ: [D]o you have any objection to her having a seat in the area in the event that we have anything we can have her come in?
Spraker: Oh, no, Your Honor, the purpose of her being present would be the--if it pleases the Court for her being present because of due process consideration--whether she's present or not means nothing to us and--I don't know that her testimony will conflict with his. It may--it may be become an important issue.... I don't know.
R. 89-90. The IJ then instructed Anka to sit in the waiting area while Petar testified.
Petar informed the IJ that he was 45 years old and had worked in a state-owned bookstore in Belgrade prior to coming to the United States. Although he is not a member of a political party, in March 1991 Petar participated in a demonstration against Slobodan Milosevic. Between 30,000 and 50,000 people also took part in the protest. Petar explained that "whoever participated in the demonstration was either beaten up--or attacked with water cannons or--in a way punished on the spot." R. 105. Petar also testified that he had served in the military in 1970 and 1971, and had received a draft notice from the Yugoslav Army soon after he departed for the United States. He stated that he did not wish to fight because "I'm against killing my own people. Because I live with those people until recently; and the politicians who are running the country now, they are actually killing their own people." R. 109. He further explained that the government was probably unaware of his feelings about the war but that, according to his friends and acquaintances, those who were drafted and did not serve "were all proclaimed deserters and the sanctions will be taken against them." R. 105.
[M]a'am, your husband has just finished testifying. And he testified that there may be two important bases for his Request for Asylum. One of which is that he does not agree with the possible requirement that he be reinducted into the service and to kill his own people. And the other is that he indicated that he participated in a demonstration--a march of 1991--in Belgrade in front of the national theater. And that was in protest of the government. Ma'am, is there anything that concerns you about what has happened in Yugoslavia that is different than these two reasons that your husband has stated?
R. 116. Anka replied that she "would completely agree with" Petar's testimony. Id.
The IJ proceeded to rule on the Mojsilovics' claims. He stated that Petar was credible, but had failed to establish past persecution or any likelihood of future persecution. The IJ accordingly denied the applications for asylum and withholding of deportation, and designated Yugoslavia as the country of deportation. After some procedural maneuvering that is irrelevant for our purposes, the Mojsilovics presented their case to the Board of Immigration Appeals. They argued that Petar had demonstrated a well-founded fear of persecution, and that the IJ had violated Anka's due process rights by sequestering her during Petar's testimony.
The Board affirmed the IJ's decision on the merits, but changed the country of deportation to Serbia. The Board found that Petar--who was not a member of a political party or organization, had participated in only one demonstration (along with at least 30,000 other people), and had testified that the government is unaware of his political beliefs--could not reasonably fear persecution upon return to Serbia. The Board also noted that a government is entitled to require military service and to enforce the requirement with reasonable penalties. See Order of 8/15/97 at 2 (citing Matter of A-G-, 19 I & N Dec. 502, 1987 WL 108955 (BIA 1987)); cf. Rhoa-Zamora v. INS, 971 F.2d 26, 31 n. 2 (7th Cir.1992). With respect to Anka, the Board stated that an IJ has discretion to sequester witnesses, and further commented that Anka had not demonstrated that she was prejudiced by the IJ's action.
As we have often explained, the Attorney General of the United States has discretion to grant asylum to any person who demonstrates past persecution or a well-founded fear of future persecution "on account of race, religion, nationality, membership in a particular social group or political opinion." See 8 U.S.C. § 1101(a)(42)(A); § 1158(b)(1). In addition, the Attorney General is required to withhold deportation if there is a clear probability that an alien's life or freedom would be threatened on account of any these factors. See 8 U.S.C. § 1253(h); INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). An alien who fails to qualify for a discretionary grant of asylum under § 1158(b)(1) cannot qualify for the more stringent mandatory withholding of deportation. See Iliev v. INS, 127 F.3d 638, 641 (7th Cir.1997). And whether an alien is a "refugee" and therefore eligible for asylum is a factual determination that we review under the substantial evidence test. Accordingly, we will not overturn the Board's decision about the merits of the Mojsilovics' asylum claim unless "no reasonable fact-finder could fail to find the requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
The Mojsilovics argue that Petar demonstrated "a well-founded fear of persecution on account of his objections to military service in an army that has been universally condemned for committing crimes against humanity." Petitioner's Br. 33. There are a number of responses to this argument; perhaps the most obvious is that this is not quite what Petar testified at the deportation hearing. When asked why he opposed military service, Petar explained, "I don't wish to fight with people that I lived with until yes--yesterday." R. 102. He later elaborated, "I'm against killing my own people. Because I live with those people until recently; and the politicians who are running the country now, they are actually killing their own people." R. 109. At least on the surface, these comments only reflect the unpleasant realities of civil war and seemingly do not contemplate the ethnic cleansing and other atrocities that have taken place during the Balkan conflict. But even if we accepted Petar's assertion that in light of the "elementary facts of contemporary history," Petitioner's Br. 33 (citing Osmani v. INS, 14 F.3d 13 (7th Cir.1994)), the Board should have understood him to be opposed to service in a "universally condemned" army, Petar's claim for asylum still fails.
Not every [political, religious or moral] conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in light of all other requirements of the definition, in itself be regarded as persecution.
Handbook, p 171. Herein lies the problem with Petar's claim.
This excerpt explains that it is the punishment for refusing to serve in an internationally condemned military--not the mere summons to serve--that constitutes persecution. Therefore, when an alien does not wish to be associated with a military that engages in universally condemned acts of violence, "the only relevant factor is the likelihood that the alien will be punished." M.A. A26851062 v. INS, 858 F.2d 210, 214-15 (4th Cir.1988). Here the bulk of the evidence suggests that the Yugoslav Army will not sanction Petar for failing to respond to his draft notice. The State Department reports that many males avoid compulsory service, that draft dodgers are not pursued aggressively, and that approximately 100,000 eligible males are living abroad and there is no pattern of arrest or harassment when they return home. R. 126-27. Although aliens are free to rebut the Department's information--here Petar testified that those who avoid military service are punished--this sort of unsubstantiated testimony is not enough to cast doubt on the findings of the State Department. See Gramatikov v. INS, 128 F.3d 619, 620 (7th Cir.1997). And when one considers that Petar will be at least 50 years by the time he returns to Serbia, the likelihood of punishment seems especially remote. Accordingly, on this record, Petar has failed to establish a "well-founded fear of persecution" upon his return to Serbia.
We have commented before that asylum cases are difficult, in part because they "move so sluggishly through the administrative and judicial process that by the time they reach us, the relevant political circumstances may have significantly changed." See Balazoski v. INS, 932 F.2d 638, 643 (7th Cir.1991). Indeed, Petar filed his first asylum application in 1993, when conditions in the former Yugoslavia were far different from what they are now. See generally Michael Moodie, The Balkan Tragedy, 541 The Annals of the American Academy of Political and Social Science 101 (Sept.1995), Valerie Epps & Michael Scharf, The International Trial of the Century? A "Cross Fire" Exchange on the First Case Before the Yugoslavia War Crimes Tribunal, 29 Cornell Int'l L.J. 635 (1996). And even since the briefing of the appeal, fighting has broken out between Serbian forces and ethnic Albanians in Kosovo. As "foreign affair novices," Balazoski, 932 F.2d at 643, we do not know whether these latest developments will affect the treatment Petar receives upon his return to Serbia. But because courts of appeal do not take evidence, and because of "[t]he extremely fact-intensive nature of these inquiries and the relatively underdeveloped shape in which they reach us," our role in asylum proceedings is necessarily limited. Id.; cf. Asani v. INS, 154 F.3d 719, 726-27 (7th Cir.1998).
Anka's ineffective assistance of counsel claim is based largely on the fact that her attorney allowed her to be sequestered during her own deportation hearing. Of course, deportation hearings are civil proceedings and therefore aliens do not have a right to counsel under the Sixth Amendment. See Castaneda-Suarez v. INS, 993 F.2d 142, 144 (7th Cir.1993). But we have held that "counsel at a deportation hearing may be so ineffective as to have impinged upon the fundamental fairness of the hearing in violation of the fifth amendment due process clause." Id. (internal quotation marks and citation omitted).
Unfortunately for Anka, we lack jurisdiction over her ineffective assistance claim because she did not raise it before the Board.1 An alien must exhaust her administrative remedies before seeking review of a deportation order, see 8 U.S.C. § 1105a(c), and an alien who fails to raise an issue before the Board has not fulfilled this exhaustion requirement, see Vargas v. INS, 831 F.2d 906, 907-08 (9th Cir.1987). Although due process claims do not usually require exhaustion because the Board cannot adjudicate constitutional issues, the requirement applies when the "petitioner's claim involves procedural errors correctable by the administrative tribunal." Castaneda-Suarez, 993 F.2d at 144 (internal quotation marks and citations omitted). Here, of course, the Board had the authority to remand the case to the IJ and order him to conduct a deportation hearing with Anka in the room.
Normally we would end our discussion of the ineffective assistance of counsel claim here, but the peculiar events at the hearing compel us to say a bit more about Anka's claim. Cf. Kossov v. INS, 132 F.3d 405, 408 (7th Cir.1998). It seems as if Anka would have been unable to prevail on her ineffective assistance claim, even if she had presented it to the Board. To be successful, Anka would have to demonstrate not only that her counsel was ineffective, but also that she was prejudiced by this ineffectiveness. See Saleh v. INS, 962 F.2d 234, 241 (2nd Cir.1992). In other words, Anka would have to demonstrate that if she had been present for the entire deportation hearing, she would have done or said something that would have changed its outcome. The record leaves little doubt that the performance of Anka's attorney (and, for that matter, the IJ) was abysmal. We should not need to explain that a hearing--which is supposed to provide the alien with an opportunity to be heard--is not to be conducted while the alien is standing outside the room. And even if Anka's claim was derivative of, not separate from, Petar's claim--and there was some discussion of this at the hearing, see R. 86--relegating her to the hallway was utterly pointless. A judge sequesters witnesses "to prevent falsification and to uncover fabrication that has already taken place." Weinstein's Federal Evidence, § 615.02, (2nd edition) (footnotes omitted). In other words, the whole purpose of sequestration is to ensure that a witness is untainted by the testimony of others. Accordingly, nothing is gained by sequestering a witness, summarizing the testimony she was not allowed to hear, and then asking her whether she has anything to add. But, as we have explained, regardless of how badly Anka's attorney (and the IJ) bungled the simple concept of sequestration, Anka does not have an ineffective assistance claim (or a due process claim, for that matter) unless she can show prejudice. And there is no evidence in the record--or indeed, even a suggestion independent of the record--that the outcome of the hearing would have been different if Anka had been allowed to stay in the room. We hope, however, that the ineptness demonstrated at the Mojsilovics' hearing was an anomaly that will not reoccur.