Personal injury liens constitute a severe problem in resolving cases. As almost everyone knows by now that Medicare is requiring notification to CMS of any and all resolutions in personal injury actions involving Medicare clients. Their position is that they will then determine the amount of related medical they paid and the victim’s attorney then must pay CMS that amount minus attorney fees. Medicaid and all health care providers take the same position that upon a recovery in a personal injury action, the medical provider must be repaid, again, minus attorney fees.
The inherent assumption is that the resolution was “global”. That is, the settlement or verdict included compensation for medical expenses. Before that premise is explored, it is necessary to establish and analyze a few basic definitions and statutes.
A “Right of Subrogation” gives the medical provider essentially the same rights as the insured as against a tortfeasor.
A “Statutory Lien” is an enforceable right that may be filed in the County Clerk’s office and is a binding instrument.
An “Equitable Lien” is predicated upon one individual recovering funds that belong to another. Those funds may not be retained and must be remitted to the subrogee. If they are not, then a suit may be instituted to pursue those funds.
The Medicare statute specifically provides that the Federal government, the Medicare provider, has an independent right of action and “The United States shall be subrogated…” [42 USC § 1395y (b)(2)(B)(iv)] relative to any and all monies it has paid and might in the future pay for treatments relative to a third party liability action.
Medicaid has also been defined as subrogation statute in the Supreme Court case Arkansas Department of Health and Human Services v. Ahlborn, 547 US 268 (2006). There is was held that “the State can require an assignment of the right, or chose in action, to receive payments for medical care.” Note: “chose in action” is a 16th century term for “subrogation”.
Workers’ Compensation statute provides that the failure of the injured party to initiate a claim “shall operate as an assignment of the cause of action”. New York Workers’ Compensation Law§29.2. Furthermore, statute itself has “subrogation” in its title.
Private Health Insurers in New York may have an independent subrogation claim which they may either join with the personal injury action or be initiated independently. The New York Court of Appeals in Fasso v Doerr, MD, et al, 12 NY3d 80, 875 NYS2d 846 (2009) further ruled that the “made whole” doctrine must also be considered. The health insurer assumes a risk of loss when it issues a policy whereas the injured party does not willingly assume the risk of injury. As such, only after the insured had fully recovered may the insurer recover on their reimbursement claim. The insured has the “priority of interests” which takes precedence over the subrogation rights of the insurer.
ERISA, the Employee Retirement Income Security Act of 1974, is a Federal statute that permits multi-state employers to construct their own medical insurance plans for their employees unimpeded and unrestricted by State law and State insurance regulations. 29 USC §1132(a)(3) provides that for plans enacted thereunder, the plan is entitled “to obtain other appropriate equitable relief”.
“A lawyer who represents two or more clients shall not make or participate in the making of an aggregate settlement of or against the clients.” New York Rules of Professional Conduct, Rule 1.8:(g).
“Because the[tortfeasor] took responsibility for the payment of [plaintiff’s] medical services, demonstrated by a…release…for items or services included in a claim…, the government can now seek reimbursement for the medical services …‘from any entity’…including an attorney.” USA v Harris, N.D.W.Va., 2008. Here, the plaintiff’s attorney was ordered to repay Medicare money that had been in his custody which he had given to the client rather than reimbursing the Government for its medical payments.
However, where CMS sought garnishment against social security recipients who had recovered for “pain and suffering only” and there was not allocated recovery for medical expenses, the government accepted the findings of the Court and an Administrative Law Judge and did not further seek reimbursement for their clients. Their right of action was preserved as against the tortfeasor. Merrifield v USA, U.S.D.N.J., 2008.
In the Medicaid realm, the Ahlborn case is clear and is being followed. If there is a recovery in a personal injury action that includes medical expenses and a general release is provided, the State is entitled to reimbursement. If, however, the pleadings and release specifically are for pain and suffering only, then no monies are due or owing to the State. This is the consistent application.
The ERISA language has been interpreted as creating Personal Injury Liens or an “equitable lien by agreement” as opposed to subrogation, Sereboff v. Mid Atlantic Medical Services, Inc., 126 S. Ct. 1869(2006). Contracts that seek “to impose personal liability …for a contractual obligation to pay money” are not equitable for the purposes of §1132(a)(3), Sereboff v. Mid Atlantic Medical Services, Inc., 126 S. Ct. 1869, at 1873-73 (2006). The “equity” component was manufactured by observing that there was a “specifically identifiable fund” from which the plan was “entitled” to a particular share of the recovery. In that specific situation, a “constructive trust or equitable lien” was established for the purposes of §1132(a)(3).
While the case law seems powerful, it should be noted that the attorney is not privy to the ERISA contract. As such, that medical provider has no power or authority over the plaintiff’s attorney. He may distribute all the money recovered on the personal injury claim directly to his client. If the ERISA provider argues that the attorney “must” represent them or protect their interests, the simple counter is that there is a conflict of interests and he may refuse to commit an ethical violation. Let them pursue their own recovery.
The simple conclusion is that there is both an inherent and obvious conflict of interest for an attorney attempting to resolve Personal Injury Liens to represent two claimants for independent claims arising out of the same incident, obtain a single lump sum settlement and then allocate the respective amounts while taking a fee from both clients. Clients tend to be reassured when their attorney tells them that none of their recovery is going to the Government. Clients are reassured when advised that none of their recovery is going to repay the medical provider. The medical provider has its own, independent right of action. Let it represent itself. Clients like this approach. Attorneys would be well advised to seriously consider and analyze these issues.
CPLR 4545 now precludes private health insurers from recovering pursuant to subrogation. GOL 5-355 extinguishes private health insurer recovery rights upon settlement of the injury claim. Medicare, Medicaid, APIP & Workers' Compensation recovery rights are preserved in these statutes. Loopholes exist that could still permit private health insurers to recovery under subrogation. Ethical violations and Conflicts of Interest are going to be strong temptations due to this legislation.


This is an administrative appeal following the denial of the plaintiff, Keith Wayne Fuller's, application for Title II disability insurance benefits (“DIB”). It is brought pursuant to 42 U.S.C. § 405(g).
Plaintiff now moves for an order reversing the decision of the Commissioner of the Social Security Administration (“the Commissioner”), or in the alternative, an order remanding his case for a rehearing. [Doc. # 19]. The Commissioner, in turn, has moved for an order affirming her decision. [Doc. # 23]. The Undersigned heard oral argument on these motions on March 15, 2018. For the reasons discussed below, the Commissioner's decision is affirmed.
“A district court reviewing a final . . . decision [of the Commissioner of Social Security] pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), is performing an appellate function.” Zambrana v. Califano, 651 F.2d 842 (2d Cir. 1981). “The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, [are] conclusive . . . .” 42 U.S.C. § 405(g). Accordingly, the district court may not make a de novo determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. Id.; Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the court's function is to first ascertain whether the Commissioner applied the correct legal principles in reaching her conclusion, and then whether the decision is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Therefore, absent legal error, a decision of the Commissioner cannot be set aside if it is supported by substantial evidence. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Further, if the Commissioner's decision is supported by substantial evidence, that decision will be sustained, even where there may also be substantial evidence to support the plaintiff's contrary position. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).
Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence must be “more than a scintilla or touch of proof here and there in the record.” Williams, 859 F.2d at 258.
Plaintiff filed his DIB application on January 25, 2013, alleging a disability onset date of December 2, 2011. His claim were denied at both the initial and reconsideration levels. Thereafter, Plaintiff requested a hearing. On February 18, 2015, a hearing was held before administrative law judge Robert A. DiBiccaro (the “ALJ”). On August 25, 2015, the ALJ issued a decision denying Plaintiff's claim. The Appeals Council denied review of the ALJ's unfavorable decision. This action followed.
Plaintiff was sixty-two years old on the date of the hearing before the ALJ. (R. 44). He has a bachelor's degree and has completed some graduate-level work. (R. 46). Plaintiff has past work experience as a community counselor and a vocational counselor. (R. 47, 57). He last worked in May 2011; he lost his job when his employer downsized. (R. 432). During the relevant period, Plaintiff primarily underwent holistic treatment methods (specifically osteopathic manipulative treatment (“OMT”)). (R. 65-66). Plaintiff's complete medical history is set forth in the Stipulation of Facts the parties filed. [Doc. # 19-2]. The Court adopts this Stipulation and incorporates it by reference herein.
The ALJ followed the sequential evaluation process for assessing disability claims. At Step One, the ALJ found that Plaintiff has not engaged in substantial gainful activity since the alleged onset date. (R. 25-26). At Step Two, the ALJ found that Plaintiff has medically determinable impairments,  but that he does not have an impairment or combination of impairments that was severe. (R. 26-32). Thus, the ALJ ended the evaluation at the second step and found Plaintiff not disabled.


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Aperture Photometry Tool, v. 2.8.1, Available Now!
Fixed a sign-error bug when converting sexagesimal values that lie in the (-1, 0) range into decimal values. Thanks to Paul Leyland for reporting this problem.
Aperture Photometry Tool, v. 2.8.0, Available Now!
Added logic to function processHeaderCard in the ReadFitsFile class, in order to fix a bug that prevents loading an image from the multi-extension HST-WFPC file w0ji2201t_c0f.fits. Thanks to Richard Nowell (Bristol U.K.) for reporting this issue.
Aperture Photometry Tool, v. 2.7.9, Available Now!
Added logic to better detect HDUs containing image data in FITS files. Thanks to Paul Leyland for reporting this issue.
Aperture Photometry Tool, v. 2.7.8, Available Now!
There is a bug fix and enhancements in this release.
Bug fix: Forgot to divide output attribute ApertureNumRejected by the square of the calculational step size. Recast ApertureNumRejected from integer to double, in order to track fractional pixels.
Interface-change warning: There is a new column included in the output photometry-table file, called Flags, which is an integer that contains bit-wise binary flags for various conditions that affect the results.
lowerSrcDataLimit and upperSrcDataLimit in APT.pref).
with blanks or NaNs (not a number).
in which case, these are not included here).
Thanks to Paul Leyland for suggestions that lead to this improvement.
Aperture Photometry Tool, v. 2.7.7, Available Now!
Bug fix: Modified the WCS class to apply the PC matrix in fixing a CDELT1 sign error, which is needed for Pan-STARRS images. Thanks to Richard Nowell (Bristol U.K.) for pointing out this problem.
Aperture Photometry Tool, v. 2.7.6, Available Now!
There is an enhancement in this release.
Modified APT to check whether the to-be-loaded FITS image is compressed (regardless of filename extension). The allows the software to load Pan-STARRS images, which are compressed, but do not have the .fz filename extension. Thanks to Rick Nowell for raising this issue.
Aperture Photometry Tool, v. 2.7.4, Available Now!
There are enhancements in this release.
Forgot to increase -Xmx1024m to -Xmx2048m in the Info.plist file used for the double-click Mac application, which is normally installed in the /Applications folder (see related upgrade in the revision history for the previous version of APT below).
Increased the default maximum image size from 5Kx5K pixels to 10Kx10K pixels. It takes a minute or so to load an image this large, so be patient!
Modified the code that loads a FITS image to allow FIT and FTS (all letter-case permeatations) as FITS-filename extensions, in addition to FITS and FZ. Thanks to Jim DeYoung for this refinement.
Aperture Photometry Tool, v. 2.7.3, Available Now!
There are enhancements and bug fixes in this release.
Modified the ReadFitsFile class to more generally handle the parsing of multi-extension FITS files that include admixtures of IMAGE and TABLE header-data units (HDUs). Modified the HDU class to add XTENSION and ZTENSION as attributes. Added error checking for the case where a FITS file has no image HDUs.
Increased the default Java heap-space size allocated for APT start up from 1024 to 2048 megabytes, so that APT can load images as large as 10Kx10K pixels.
Completely overhauled the Pick/Zap Tool, in order to dramatically improved its responsiveness. Changed the default pick color from blue to cyan to differentiate it from the default blank color.
Sorted out a bug that prevented the photometry-file table header from being written when individual photometry records are saved. Thanks to Roc Cutri for apprising me of this problem.
Aperture Photometry Tool, v. 2.7.2, Available Now!
Added “Peak pixel (X, Y, value)” to the display of quantities in the “APERTURE MEASUREMENTS” box on the main GUI panel. Thanks to Jim DeYoung for this suggestion.
Modified the ReadFitsFile class to more generally handle the parsing of multi-extension FITS files.

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Findlaw: Trial Explanation of the basic steps.
Famous Trials Extensive information about historic famous trials.
Court TV’s Famous Cases More recent famous trials.
How to Pick A Jury Advice from legendary defense attorney Clarence Darrow on how to pick a jury, as printed in Esquire in 1936.
Decision Quest A trial consulting firm that helps in high-stakes jury cases.
Jury Research Institute Another trial consulting firm providing services such as mock trials, focus groups, surveys, and jury selection.
Batson v. Kentucky (1986) U.S. Supreme Court decision ruling that prosecutors excluding people from juries on the basis of race violates the equal protection clause of the 14th Amendment.
Georgia v. McCollum (1992) U.S. Supreme Court decision ruling that the defense excluding people from juries on the basis of race violates the equal protection clause of the 14th Amendment.
J.E.B. v. Alabama (1994) U.S. Supreme Court decision ruling that excluding people from juries on the basis of gender violates the equal protection clause of the 14th Amendment.
Selena murder trial opening statements Opening statements for the prosecution and defense in a 1995 murder trial.
An Example of a Defense Opening Statement From the same 1996 murder trial.
Circumstantial Evidence Extended definition from the 'Lectric Law Library.
Persuasion at Trial: Cross-examination Tips on conducting an effective cross-examination.
Persuasion at Trial: Direct Examination Tips on conducting an effective direct examination.
Making Better Witnesses-The LOFT Model More tips on making witnesses more effective.
Persuasion at Trial: Closing Arguments Tips on making an effective closing statement.
Closing Argument of John Doar In the 1967 Mississippi Burning case.
Closing Argument of Clarence Darrow In the 1925 case of People v. Ossian Sweet.
Model Criminal Jury Instructions (PDF file) For the Eighth Circuit Court.
Plain Language and Jury Instructions A discussion of the movement to make jury instructions more easily understandable and before-and-after examples.
Finding Jury Instructions Links to many sources of jury instructions.
The Answer Book for Jury Service Prepared for jurors serving in the state of Virginia.
Sandoval v. California and Victor v. Nebraska (1994) Text of the U.S. Supreme Court decision on the definition of reasonable doubt.

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Šimandl, M. and Královec, J. : Cramér-Rao bound for stochastic volatility model . PROCEEDINGS OF THE 15TH IFAC WORLD CONGRESS, p. 173-178, Elsevier, Oxford, 2003.
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Psutka, J. and Iljuchin, I. and Ircing, P. and Psutka Josef V. and Trejbal, V. and Byrne, W. and Hajič, J. and Gustman, S. : Building LVCSR system for transcription of spontaneously pronounced russian testimonies in the MALACH project: initial steps and first results . Lecture Notes in Artificial Intelligence, Lecture Notes in Artificial Intelligence, 2807, p. 327-332, Springer, Berlin, 2003.
Psutka, J. and Iljuchin, I. and Ircing, P. and Psutka Josef V. and Trejbal, V. and Byrne, W. and Hajič, J. and Gustman, S. : Building LVCSR system for transcription of spontaneously pronounced russian testimonies in the MALACH project: initial steps and first results . Lecture Notes in Computer Science, Lecture Notes in Artificial Intelligence, 2607, p. 327-332, Springer, Berlin, 2003.
Železný, M. and Krňoul, Z. : Czech audio-visual speech synthesis with an HMM-trained speech database and enhanced coarticulation . WSEAS Transactions on Computers, Vol. 2, vol. 3, p. 733-738, 2003.
Černý, V. and Hrušák, J. : Separation principle for a class of non-linear systems . The 11th Mediterranean Conference on Control and Automation, p. 1-6, Mediterranean Control Association, Rhodes, 2003.
Fialová, A. : Stabilization dynamical (non-linear) systems by using continualisation . The 7th World Multiconference on Systemics, Cybernetics and Informatics, p. 335-340, International Institute of Informatics and Systemics, Orlando, 2003.
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Kolář, J. and Romportl, J. and Psutka, J. : The Czech speech and prosody database both for ASR and TTS purposes . EUROSPEECH 2003 PROCEEDINGS, p. 1577-1580, ISCA, Geneva, 2003.
Mošna, J. and Melichar, J. and Pešek, P. : Polynomial parametrization of multirate dead-beat ripple-free controllers . Control Systems Design '03, p. 1-6, IFAC , Bratislava, 2003.
Padrta, A. : Precise measurement of parameters of glass pipe based on digital image processing . ECMS 2003, p. 393-397, Technical University , Liberec , 2003.
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Prcín, M. and Müller, L. : Speech/non-speech detection using power detector . ECMS 2003 , p. 84-88, Technical University, Liberec, 2003.
Psutka Josef V. and Müller, L. : Optimization of some parameters in the speech-processing module developed for the speaker independent ASR system . Proceedings, p. 414-418, International Institute of Informatics and Systemics, Orlando, 2003.
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Romportl, J. and Tihelka, D. and Matoušek, J. : Sentence Boundary Detection in Czech TTS System Using Neural Networks . Proceeding of the 7th International Symposium on Signal Processing and its Applications (ISSPA), p. 247-250, IEEE, Paris, 2003.
Santarius, J. and Tihelka, D. : Prosody modeling of synthetic speech . ECMS 2003, p. 89-92, Technical University, Liberec, 2003.
Šimandl, M. and Hering, P. : Nonlinear parameter estimation of neural network by Gaussian sum . Proceedings of International Carpathian Control Conference , p. 401-404, Technical University of Košice, Košice, 2003.
Šimandl, M. and Straka, O. : Nonlinear filtering methods: some aspects and performance evaluation . Proceedings of the 22nd IASTED International Conference Modelling, Identification, and Control, p. 67-72, IASTED , Calgary , 2003.
Šimandl, M. and Straka, O. : Sampling density design for particle filters . 13th IFAC Symposium on System Identification, p. 180-185, OMNIPRESS, Rotterdam, 2003.
Šimandl, M. and Švácha, J. : Numerical approach to continuous-discrete filter design for nonlinear stochastic systems . Proceedings of International Carpathian Control Conference, p. 582-585, Technical University , Košice, 2003.
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It is undisputed that, Mr. McGoey, as a director and CEO of UBS, owed the company fiduciary duties. The imposition of fiduciary duties on directors and officers of a corporation is consistent with the origins of the doctrine in trust law. A director or senior officer of a corporation is in a position of trust. He or she is charged with managing the assets of a corporation honestly and in a manner that is consistent with the objects of the corporation. Courts will be loath to interfere with the legitimate exercise of corporate duties, but they will intervene where a fiduciary breaches the trust reposed in him or her.
 Mr. McGoey’s fiduciary duties included an obligation to act in good faith and in the best interests of the corporation. He had a specific obligation to scrupulously avoid conflicts of interest with the corporation and not to abuse his position for personal gain: Peoples Department Stores Inc. (Trustee of) v. Wise, 2004 SCC 68 (CanLII), 2004 SCC 68,  3 S.C.R. 461, at paras. 35 and 42; and BCE Inc. v. 1976 Debentureholders, 2008 SCC 69 (CanLII), 2008 SCC 69,  3 S.C.R. 560, at paras. 39 and 89.
Subsumed in the fiduciary’s duties of good faith and loyalty is the duty to avoid a conflict of interest. The fiduciary must not only avoid a direct conflict of interest but must also avoid the appearance of a possible or potential conflict. The fiduciary is barred from dividing loyalties between competing interests, including self-interest.
 Disclosure of a directors’ interest in a transaction is just the first step. Disclosure does not relieve a director of his or her obligation to act honestly and in the best interests of the corporation: UPM-Kymmene Corp. v. UPM-Kymmene Miramichi Inc. 2002 CanLII 49507 (ON SC), (2002), 214 D.L.R. (4th) 496 (Ont. S.C.), aff’d 2004 CanLII 9479 (ON CA), (2004), 183 O.A.C. 310 (C.A.).
 The subjective intent of one party to a contract “has no independent place” in interpreting contractual provisions: Eli Lilly & Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC),  2 S.C.R. 129, at para. 54.
 While the plain meaning of the words used by the contracting parties is important, the contract must be read as a whole and in the context of the circumstances as they existed when the contract was created: Dumbrell v. The Regional Group of Companies Inc., 2007 ONCA 59 (CanLII), 2007 ONCA 59, 85 O.R. (3d) 616, at para. 52.
 Courts will avoid a contractual interpretation which results in rendering the agreement unlawful. As Blair J.A. discussed in Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust, 2007 ONCA 205 (CanLII), 2007 ONCA 205, 85 O.R. (3d) 254, at para. 57, quoting John D. McCamus, The Law of Contracts (Toronto: Irwin Law, 2005), at p. 729, “where an agreement admits of two possible constructions, one of which renders the agreement lawful and the other of which renders it unlawful, courts will give preference to the former interpretation”; see also Cantor Art Services Ltd. v. Kenneth Bieber Photography Ltd.,  1 W.L.R. 1226 (C.A.).
[w]here words may bear two constructions, the more reasonable one, that which produces a fair result, must certainly be taken as the interpretation which would promote the intention of the parties. Similarly, an interpretation which defeats the intentions of the parties and their objective in entering into the commercial transaction in the first place should be discarded in favour of an interpretation of the policy which promotes a sensible commercial result.
 As stated by the House of Lords in Mannai Investment Co. Ltd. v. Eagle Star Life Assurance Co. Ltd.,  2 W.L.R. 945, at p. 964 (H.L.), commercial contracts should be “interpreted in the way in which a reasonable commercial person would construe them. And the standard of the reasonable commercial person is hostile to technical interpretations and undue emphasis on niceties of language”.
 The interpretation of a contract is a question of law. Accordingly, the standard of review by an appellate court is correctness: Bell Canada v. The Plan Group, 2009 ONCA 548 (CanLII), 2009 ONCA 548, 96 O.R. (3d) 81.


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Numerous occasions arise when it is alleged that an offence under any Act is committed by a company and prosecution is invariably sought to be launched against the company, its directors and some of its executives. As “Company” is an artificial person created by law, and is capable of acting only through human agency occupying the position of directors and executives, it is but natural that all such persons are charged for the offence.
The provisions regarding the liability of the directors and other persons for offences committed by the company are enumerated under various Acts such as Industries (Development and Regulation) Act, Foreign Exchange Regulation Act; MRTP Act, Securities Contracts (Regulations) Act; Essential Commodities Act, Employees’ Provident Fund and Misc. Provisions Act, Workmen’s Compensation Act, Payment of Bonus Act, Payment of Wages Act, The Environment (Protection) Act, Water (Prevention and control of Pollution) Act, Minimum Wages Act; Payment of Gratuity Act, Apprentices Act, Central Excise and Salt Act, Customs Act, 1961, Negotiable Instruments Act etc. etc. and the pro-visions are somewhat identical in nature. Hence, when the provisions qua the directors’ liability are considered under the Income-tax Act, 1961, it is also pertinent to note the law as laid down under other Acts by the Courts.
As per sub-section (1) of section 278B, where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The proviso to sub-section (1) provides that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
Sub-section (2) provides that notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
As per sub-section (3) where an offence under this Act has been committed by a person, being a company, and the punishment for such offence is imprisonment and fine, then, without prejudice to the provisions contained in sub-section (1) or sub-section (2), such company shall be punished with fine and every person, referred to in sub-section (1), or the director, manager, secretary or other officer of the company referred to in sub-section (2), shall be liable to be proceeded against and punished in accordance with the provisions of this Act. The Explanation to section 278B provides that for the purposes of section 278B — (a) “company” means a body corporate, and includes — (i) a firm and (ii) an association of persons or a body of individuals whether incorporated or not and (b) “director”, in relation to — (i) a firm, means a partner in the firm (ii) any association of persons or a body of individuals, means any member controlling the affairs thereof.
Section 278B was inserted by the Taxation Laws (Amendment) Act, 1975 reported in (1975) 100 ITR 33 (ST) w.e.f. 1-10-1975. The object and scope of this section was explained by the Board in its Circular No. 179 dated 30-9-1975 reported in (1976) 102 ITR 26 (ST).
Under sub-section (1) the essential ingredient for implicating a person is his being “in-charge of” and “responsible to” the company for the conduct of the business of the company. The term responsible is defined in the Black’s Law dictionary to mean accountable. Hence, the initial burden is on the prosecution to prove that the accused persons at the time when the offence was committed were “in charge of” and “was responsible” to the company for its business and only when the same is proved that the accused persons are required to prove that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
Both the ingredients “in-charge of” and “was responsible to” have to be satisfied as the word used is “and” [Subramanyam v. ITO (1993) 199 ITR 723 (Mad.)]. Under sub-section (2) emphasis is on the holding of an offence and consent, connivance or negligence of such officer irrespective of his being or not being actually in charge of and responsible to the company in the conduct of the business. Also, while all the persons under sub-section (1) and sub-section (2) are liable to be proceeded against it is only persons covered under sub-section (1) who by virtue of the proviso escape punishment if he proves that the offence was committed without his knowledge or despite his due-diligence. From the language of both the sub-sections it is also clear that the complaint must allege that the accused persons were responsible to the firm/company for the conduct of its business at the time of the alleged commission of the business to sustain their prosecution. [Jai Gopal Mehra v. ITO (1986) 161 ITR 453 (P&H)].
Standard Chartered Bank v. Directorate of Enforcement (2005) 275 ITR 81 (SC).
The principal liability under section 278B is that of the company. The other persons mentioned in sub-section(1) and sub-section (2) are vicariously liable i.e., they could be held liable only if it is proved that the company is guilty of the offence alleged.
The Apex Court in Sheoratan Agarwal v. State of Madhya Pradesh AIR 1984 S.C. 1824 while dealing with the provisions of section 10 of the Essential Commodities Act which are similar to section 278B has held that the company alone may be prosecuted. The person-in-charge only may be prosecuted. The conniving officer may individually be prosecuted.
The Apex Court in Anil Hada v. Indian Acrylic Ltd. A.I.R 2000 S.C. 145 while dealing with section 141 of the Negotiable Instruments Act held that where Company is not prosecuted but only persons in-charge or conniving officer are prosecuted then such prosecution is valid provided the prosecution proves that the company was guilty of the offence.
The Supreme Court in the case of Girdharilal Gupta v. D. N. Mehta, AIR 1971 S.C. 2162, has held that since the provision makes a person who was in charge of and responsible to the company for the conduct of its business vicariously liable for an offence committed by the company. The provision should be strictly construed.
B. Mohan Krishna v. UOI 1996 Cri.L.J 638 AP it is held that exclusion of mens rea as a necessary ingredient of an offence is not violative of Article 14 of the Constitution of India.
In S. K. Real Estates (2002) Cr.L.J. 1689 (Mad.) it was held that prosecution against a proprietary concern is not maintainable as it is not a legal entity or juridical person.
In Dharma Pratisthan v. Mandal (1988) 173 ITR 487 (Del.) it is held that a Society being a AOP and its members can be prosecuted.
9. Liability of Directors, Managing Directors, Manager, Partners, etc.
From the analysis of the provisions of section 278B, it could be seen that the scope and the exact connotation of the expression “every person who at the time the offence was committed was in-charge of, and was responsible to, the company for the conduct of business of the company” assumes a very important role. If a person i.e. the director or an executive of the company falls within the purview of this expression, he would be liable for the offence of the company, and may be punished therefor. If, on the other hand, the person charged with an offence is not the one who falls within the ambit of that expression, the Court will relieve him of the accusation. Therefore, the essential question that arises is as to who are the persons in-charge of, and responsible to, the company for the conduct of the business of the company. It should be noted that the onus of proving that the person accused was in-charge of the conduct of the business of the company at the time the contravention took place lies on the prosecution.
“It mentions director, who may be a party to the policy being followed, by a company and yet not be in-charge of the business of the company. Further, it mentions manager who usually is in-charge of the business but not in over-all-charge. Similarly the other officers may be in charge of only some part of business”.
Krishna Pipe and Tubes v. UOI (1998) 99 Taxman 568 (All.) it was held that sleeping partners cannot be held liable for offence.
In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors. AIR 1983 SC 67, the accused invoked the jurisdiction of the High Court under section 482 of the Code praying for quashing of criminal proceedings initiated against them under the Prevention of Food Adulteration Act, 1947. Whereas accused No. 1 was manager of the company, accused Nos. 2-5 were directors. A complaint was led by the Food Inspector of the Municipal Corporation, inter alia, alleging that ‘Morton Toffees’ sold by the accused did not conform to the standards prescribed for the commodity. The Metropolitan Magistrate issued summons to all the accused for violating the provisions of the Act. It was contended on behalf of the accused that proceedings were liable to be quashed as it was not shown that accused persons were in-charge of and responsible for the conduct of business. The High Court allowed the petition and quashed the proceedings. Aggrieved Municipal Corporation challenged the decision. The Apex Court held that so far as the manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence, vicarious liability being an incident of an offence under the Act.
12. Company and Directors etc.
In Jamshedpur Engineering & Machine Manufacturing Co. Ltd. & Ors. v. Union of India & Ors. (1995) 214 ITR 556 (Pat.), the High Court of Patna (Ranchi Bench) held that no vicarious liability can be fastened on all directors of a company. If there are no averments in the complaint that any director was ‘in-charge of’ or ‘responsible for’ conduct of business, prosecution against those directors cannot be sustained.
In Mahalderam Team Estate Pvt. Ltd. v. D. N. Pradhan [(1979) 49 Comp. Cas. 529 (Cal.)], a case under the Employees’ Provident Fund, Act, 1952, of which section 14A is pari materia, all the directors of a company were prosecuted for the offence of non-payment of provident fund contributions of the company’s employees, the Calcutta High Court held that under the said section a company is made primarily liable for an offence committed under the Act. The liability may be extended to other persons vicariously only under the conditions laid down in the section. A director of a company may be concerned only with the policy to be followed and might not have any hand in the management of its day-to-day affairs. Such person must necessarily be immune from such prosecutions. Thus, it has to be established by placing before the Court necessary and sufficient material from which the Court can satisfy itself, that the accused directors took some part in the running of the business of the com¬pany and a mere bald statement that the accused persons are directors of the company and hence responsible for the conduct of the business and management of the company will not do.
Tri-Sure India Ltd. [(1983) 54 Comp. Cas. 197 (Bom.)].
(a) It is necessary to specifically aver in a complaint under section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of section 141 cannot be said to be satisfied.
(b) Merely being a director of a company is not sufficient to make the person liable under section 141 of the Act. A director in a company cannot be deemed to be in- charge of and responsible to the company for conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in-charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.
(c) The Managing Director or Joint Managing Director would be admittedly in-charge of the company and responsible to the company for conduct of its business. When that is so, holders of such positions in a company become liable under section 141 of the Act. By virtue of the office they hold as Managing Director or Joint Managing Director, these persons are in-charge of and responsible for the conduct of business of the company. Therefore, they get covered under section 141.
1. Wherever a company is required to deduct tax at source and to pay it to the account of the Central Government, failure on the part of the company in deducting or in paying such amount is an offence under the Act and has been made punishable.
2. From the statutory provisions, it is clear that to hold a person responsible under the Act, it must be shown that he/she is a ‘principal officer’ under s. 2(35) of the Act or is ‘in charge of’ and ‘responsible for’ the business of the company or firm. Where necessary averments have been made in the complaint, initiation of criminal proceedings, issuance of summons or framing of charge, cannot be held illegal and the Court would not inquire into or decide correctness or otherwise of the allegations levelled or averments made by the complainant. It is a matter of evidence and an appropriate order can be passed at the trial.
3. No independent and separate notice that the directors were to be treated as principal officers under the Act is necessary and when in the showcause notice it was stated that the directors were to be considered as principal officers under the Act and a complaint was filed, such complaint is entertainable by a Court provided it is otherwise maintainable.
4. Once a statute requires to pay tax and stipulates period within which such payment is to be made, the payment must be made within that period. If the payment is not made within that period, there is default and an appropriate action can be taken under the Act.
5. It is true that the Act provides for imposition of penalty for non-payment of tax. That, however, does not take away the power to prosecute accused persons if an offence has been committed by them.
Though the Apex Court did not go into the merits of the case and decided the issue in respect of maintainability of criminal complaint, the decision has given a clear warning to the corporates and their principal officers, the need for strict adherence to time schedules in the matter of payment of taxes, especially TDS. It is time that the taxpayers also realise they have to be extra careful when it comes to remittance of the TDS, as it is money due to the Government, which they have withheld from paying to a third party. However it is important that the Revenue does not take shelter of this decision and launch criminal prosecution even in case of few months of delayed remittance of tax deducted at source.
In Dev v. State of A.P. 2002 Cri.L.J 4770 (Andhra Pradesh) it was held that an Accountant is in-charge of and was responsible to the company for the conduct of its business.

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Thank you for visiting the website hotel-am-ohewehr.de. This Data Protection Declaration is designed to inform you in detail about how your Personal Data is handled.
The following provides you with initial and general information about Data collection and Data Processing when this website is accessed.
This Data Protection Declaration informs you about the scope and purpose of Processing Personal Data (hereinafter called “Data”) when this website is accessed. In the following passages, terms such as e.g. “Processing” or “Data Controller” are used in accordance with the definitions set out under Art. 4 of the General Data Protection Regulation (GDPR).
This Data Protection Declaration is based on the terminology of the General Data Protection Regulation (GDPR). Definitions of the individual terms are listed under Art. 4 GDPR.
3. “Processing” means any procedure or series of procedures, such as collecting, gathering, organising, ordering, storing, altering or amending, reading out, retrieving, utilisation, disclosure through transmission or another form of provision, comparison or linking, restricting, deleting or destruction of Data in conjunction with Personal Data.
9. “Consent” of the Data Subject means every declaration of intent or other unequivocal confirmation issued voluntarily and in an informed manner for the specific case with which the respective person indicates that he or she agrees with the Processing of the Personal Data relating to him or her.
Insofar as the legal basis for the Data Processing is not specified in the following Data Protection Declaration, the following is applicable: The legal basis for obtaining Consent is Art. 6 Para. 1 lit. a and Art. 7 GDPR.
The legal basis for Processing to fulfil the performances of the Data Controller and to conduct contractual measures as well as to answer enquiries is Art. 6 Para. 1 lit. b GDPR.
The legal basis for Processing to fulfil the legal obligations of the Data Controller is Art. 6 Para. 1 lit. c GDPR. The legal basis for the Processing to safeguard the legitimate interests of the Data Controller is Art. 6 Para. 1 lit. f GDPR.
The legal basis in the event that vital interests of the respective person or of another natural person make the Processing of Personal Data necessary is Art. 6 Para. 1 lit. d GDPR.
Access Data is collected each time the server on which the Data of this website is saved is accessed (server logfiles).
For security reasons, such as for example to clarify cases of misuse or fraud, server logfiles are retained for a maximum period of 7 days and are then erased. Data that needs to be retained for evidential purposes is excluded from the erasure until the respective case has been definitively clarified.
This Data Processing is performed in accordance with Art. 6 Para. 1 lit. f GDPR in order to safeguard legitimate interests.
Cookies are used on this website. Cookies support the depiction of this website and make it possible to use certain functions. These are small text files that are saved on your device. Cookies collect Data about your IP address, your browser, your operating system and your internet connection.
Some of the cookies used on this website are erased at the end of the browser session, i.e. when you close your browser (so-called session cookies). Other cookies remain on your device and enable us to recognise your browser the next time you visit (persistent cookies). You can set your browser to be informed about the placement of cookies, enabling you to decide on their acceptance on a case-by-case basis or to exclude the acceptance of cookies in specific cases or in general. If cookies are not accepted, the functions of this website may be restricted.
The duration of the retention is set out in the cookie settings overview of your web browser. You can set your browser to be informed about the placement of cookies, enabling you to decide on their acceptance on a case-by-case basis or to exclude the acceptance of cookies in specific cases or in general.
Cookie settings are managed in different ways by various browsers. The help menu of your browser contains more information about how to alter your cookie settings.
While you can also use our website without deploying cookies, this may limit certain depictions and functions of our service.
Data erasure / Data blocking after the purpose of the collection or retention has expired.
Data retained and Processed by “Hotel am Ohewehr” H & R GmbH is erased or subjected to limited utilisation pursuant to Art. 17 and 18 GDPR. Unless expressly specified within the context of this Data Protection Declaration, the saved Data will be deleted as soon as this is no longer required for its original purpose and this is compatible with statutory retention obligations. Insofar as Data is not erased because it is required for other purposes permitted by law, its Processing shall be limited. In this event, Data will be blocked and not processed for other purposes. This applies, e.g. to Data that needs to be retained for statutory commercial or tax reasons.
In accordance with statutory regulations in Germany, storage periods are 6 years pursuant to § 257 Para. 1 of the German Commercial Code (“HGB”) for commercial records, inventories, opening balance sheets, annual financial statements, commercial letters, booking records etc. and 10 years pursuant to § 147 Para. 1 of the German Tax Code (“AO”) for accounts, records, management reports, accounting records, commercial and business correspondence, as well as documents of relevance for taxation, etc.
Data protection law provides you with many rights vis-à-vis the Data Controller who operates this website. Your rights are set out in the following.
Pursuant to Art. 15 GDPR you have the right to demand confirmation about whether Data relating to you is processed, to be informed about this Data as well as to receive all further information as well as a copy of the Personal Data that is the object of the Processing.
Pursuant to Art. 16 GDPR you have the right to demand the completion of the Data relating to you or the correction of incorrect information relating to you.
Pursuant to Art. 17 GDPR, you have the right to demand that the respective Data is erased without delay. Alternatively, pursuant to Art. 18 GDPR you have the right to demand that the Processing of the Data is restricted.
Pursuant to Art. 20 GDPR you have the right to receive the Data relating to you that you made available in a structured, accessible and machine-readable format, and to demand the transfer thereof to other data controllers.
Pursuant to Art. 77 GDPR you have the right to appeal before the competent supervisory authority.
Pursuant to Art. 7 Para. 3 GDPR you have the right to revoke already issued consent with effect for the future.
Pursuant to Art. 21 GDPR, you have the right to object at any time to the future Processing of Data relating to you. The objection can in particular relate to Processing for direct marketing purposes. If you object to Processing for direct marketing purposes, your Personal Data will no longer be processed for these purposes.
The widely-used SSL (secure socket layer) process in conjunction with the respective highest encryption level that is supported by your browser is used when this website is accessed. As a rule, this involves 256 bit encryption. If your browser does not support 256 bit encryption, we use 128 bit v3 technology instead. You can identify whether an individual section of this website is being transmitted in encrypted format by the key or closed padlock symbol in the lower menu bar of your browser.
We also use appropriate technical and organisational security measures to protect your Data from accidental or wilful manipulation, partial or complete loss, destruction or from being accessed by unauthorised Third Parties. Our security measures continue to be improved on an ongoing basis in accordance with technological developments.
When visiting this website, you have the opportunity to contact “Hotel am Ohewehr” H & R GmbH using a contact form. In this case the information you provide will be retained for the purpose of Processing your contact. The information will not be transferred to any Third Party. The Data collected in this manner will furthermore not be compared with Data that may possibly be collected by other components of this website.
This Data will therefore be processed with your consent in accordance with Art. 6 Para. 1 lit. a) GDPR.
When visiting this website you have the opportunity to leave comments on the individual contributions. In this conjunction, the IP address you use to access this website will be saved.
This Data Processing will be performed in accordance with Art. 6 Para. 1 lit. a) GDPR on the basis of your consent.
In other respects, the IP address will be retained in order to protect “Hotel am Ohewehr” H & R GmbH if comments made by the author breach third-party rights and/or contain unlawful content, raising the possibility that lawsuits are brought against “Hotel am Ohewehr” H & R GmbH on the grounds of these breaches of rights.
This retention therefore serves to safeguard legitimate interests pursuant to Art. 6 Para. 1 lit. f) GDPR. The Processing of this Data will be limited to the possible purpose of defending against such claims.
This website gives you to the opportunity to obtain advertising and information beyond the actual visit, as described below.
The purpose of this Data Processing is to remain in contact with you.
“Hotel am Ohewehr” H & R GmbH reserves the right to use your first name and last name as well as your address to send in-house advertising by post, e.g. to send interesting offers and information about our products. You can block the retention and use of your Data for these purposes at any time by contacting the “Data Controller” specified above.
This Data Processing is consequently performed in accordance with Art. 6 Para. 1 lit. f) GDPR to protect legitimate interests.
The below-specified Google services are integrated in this website.
The provider of the respective service is the company Google LLC, 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA.
The purpose of the Data Processing is to enable this website to be found using the Google search engine and further Google online services.
The “Google Maps” service is integrated in this website.
Each time “Google Maps” is accessed, Google places a cookie in order to process the user settings and data integrated in the “Google Maps” component. As a rule, this cookie is not erased when the internet browser is closed, but instead continues to run for a specific period of time, unless it is first erased manually.
If you do not agree to this Processing of your Data, you can deactivate the “Google Maps” service to prevent the transmission of Data to Google. For this purpose, you must deactivate the Java Script function in your browser. In this event, however, you may not be able to use the “Google Maps” service, or only in part.

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April 12, 2014 | The Law Office of James P. Yudes, P.C.
In the landmark case of Merenoff v. Merenoff, 76 N.J. 535 (1978), the New Jersey Supreme Court overturned the doctrine of interspousal immunity, which prevented one from suing one’s spouse for injuries proximately caused by the conduct of that spouse. Later, in the case of Tevis v. Tevis, 79 N.J. 422,(1979), the Supreme Court held that “that the abolition of the doctrine [of interspousal immunity] pertained to tortious conduct generally encompassing not only conventional negligence but also intentional acts, as well as other forms of intentional behavior such as gross negligence, recklessness, wantonness, and the like.” The law on interspousal torts further was developed in the case of Giovine v. Giovine, 284 N.J.Super. 3, 13 (App.Div. 1995), where the Appellate Division recognized the right of a spouse to sue the other spouse under the tort of intentional infliction of emotional distress where the measure of damages was not dependent upon physical injury to the plaintiff, but could be established through competent evidence showing the perpetrator’s’s outrageous or otherwise actionable conduct. The Appellate Division ultimately concluded “that the plaintiff must be permitted to present proofs of all acts of cruelty which occurred during the course of her marriage to the defendant. Those prior acts may be offered to prove plaintiff’s cause of action for divorce predicated on the grounds of extreme cruelty, or they may be offered as relevant evidence in conjunction with Plaintiff’s claim for damages attributable to battered women’s syndrome, intentional infliction of emotional distress and negligence.” Id. at 22.
In order to establish a claim for damages, the injured spouse must show “that the act was the proximate result of the distress, and that the distress is severe”. Buckley v. Trenton Savings Fund Soc’y, 111 N.J. 355, 366 (1988). In Buckley, the court determined that an act meets the threshold necessary to be “outrageous” when the conduct is “so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim ‘Outrageous!'” Id. (Quoting Restatement (Second) of Torts (1965), Section 46). The Court further explained that the distress must be “so severe that no reasonable man could be expected to endure it.” Id. Also, for liability to attach, one must prove that the perpetrator acted intentionally or recklessly both in committing the act of emotional distress and in producing said distress. Id. Liability will also attach when perpetrator acts recklessly in deliberate disregard of a high degree of probability that emotional distress will follow. Id.
In Segal v. Lynch 413 N.J. Super. 171 (App. Div. 2010), the Appellate Division saw no “legal impediment in permitting one spouse to bring an action against the other which asserts only emotional distress as the measure of damages.” Id. at 186 In Segal, a father brought a claim of intentional infliction of emotional distress against his children’s mother, citing parental alienation, because she relocated and cut off communication between him and the children. Id. at 177. The court found that the father’s action for intentional distress on behalf of himself and his two minor children was “objectively reasonable” and that his claim of parental alienation raised “profound public policy questions.” Id. at 194. Ultimately, however, the Appellate Division affirmed the trial court’s decision to dismiss the complaint, reasoning that as a matter of public policy, the father’s grievances should have been brought as an action for custody or parenting time, where the governing principle would be the best interests of the children. Id. at 192. The Court found that the Plaintiff’s complaint failed to allege conduct under Buckley that was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community.” The Court’s decision in Segal did note that “cases involving prolonged parental child abduction, where children are intentionally removed to foreign jurisdictions for the purpose of frustrating an innocent parent’s custodial rights, is one example of a factual scenario “that may satisfy the outrageous conduct requirement under Buckley. Id.
On April 7, 2014, the Appellate Division approved for publication the case of Innes v. Marzano-Lesnevich. The case was part of a continuing litigation surrounding the case of Innes v. Carrascosa, 391 N.J. Super. 453 (App.Div. 2007), in which parents separated in 2004 when their child, Victoria, was one and a half years old. The child and her mother were citizens of both the United States and Spain. Soon after the separation, the parties entered into an agreement regarding custody and parenting time, where one of the provisions required the mother’s attorney to hold the child’s passport in trust. The mother hired new counsel and had her file transferred to her new lawyer’s office. Upon transfer of the file, and unbeknownst the father, the mother gained access to the child’s passport, left the United States with the child on January 13, 2005 and refused to return the child to the U.S. since that time despite both criminal and civil orders requiring her to do so. The child, now fourteen, remains living with her maternal grandparents in Spain outside the reach of her father. The mother, while visiting the United States, was arrested and incarcerated in 2006 for violation of court orders and interference with child custody. She remains jailed in New Jersey while serving out at 14 year jail term.
In the present case, the Innes court ultimately upheld a count of negligent infliction of emotional distress against the Marzano-Lesnevich law firm for their negligent release the child’s passport to the mother in violation of the Agreement, finding that the mother’s actions in abducting the child had been “egregious” and “extraordinary.” The Court affirmed the trial court’s reliance on the Segal. The court also found that the father’s “testimony was sufficient to permit the jury to award him emotional distress damages proximately caused by the defendants’ breach of their duty.” The Court reversed the jury’s speculative award of damages to the parties’ child, who did not testify and who could not be examined by the father’s expert.
Raising and defending the marital tort claim of intentional and/or negligent infliction of emotional distress is a complex process. The attorneys and James P.Yudes, P.C. are here to assist you in all facets of family law litigation.

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Home Trial Procedures When Might a Request for Rehearing of Final Decision Be Worthwhile?
When Might a Request for Rehearing of Final Decision Be Worthwhile?
In an earlier blog post from last June, we were unable to find any successful Requests for Rehearing or Reconsideration of a Final Written Decision and concluded that, in most instances, such requests are generally a waste of resources. However, while the PTAB has continued to deny the vast majority of motions for rehearing of a final written decision, it has now granted a few. Those limited number of successful rehearing requests demonstrate that, where you can point to something specific that the Board has overlooked, a request for rehearing may be worthwhile. However, where the Board merely disagrees with your argument, don’t bother.
In Square, Inc. v. REM Holdings 3, LLC, IPR2014-00312, the petitioner’s request for rehearing was granted as to two claims, but denied with respect to three others. For claims 4 to 9, the petitioner successfully argued that the Board erred when it stated that the petitioner did not rely upon a particular prior art reference, Odagiri, as disclosing a housing. To the contrary, the petitioner was able to identify the portion of its claim chart that specifically stated that Odagiri illustrated a housing. Accordingly, the Board modified its final written decision to find claims 4 and 9 obvious over a combination including Odagiri. However, petitioner’s request for rehearing as to three other claims was denied where the petitioner was unable to point to such a clear statement that had been overlooked.
In Valeo North America, et al v. Magna Electronics, Inc., IPR2014-00220, the petitioner sought very narrow rehearing on the grounds that the Board erred when it found that one claim, was unpatentable despite its near identity with another, slightly broader claim the Board found patentable. The Board granted the petitioner’s rehearing request and modified its final written decision to conclude that the narrower claim was likewise patentable. It should be noted, however, that the petitioner did not oppose the rehearing request.
In Chicago Mercantile Exchange, Inc. v. 5th Market, Inc., CBM2013-00027, the Board granted a request to rehear its previous denial of patent owner’s Motion to Amend. In its final written decision, the Board concluded that a challenged claim was not unpatentable over prior art, but was indefinite under § 112, ¶ 2. The proposed substitute claim contained the same expressly recited limitations as the challenged claim but corrected the indefiniteness problem. In originally denying the motion to amend, the Board found that 5th Market had not shown the amended claims patentable over the prior art. In the decision on rehearing, however, the Board was convinced by 5th Market’s argument that, where the claim that is sought to be amended was not found unpatentable over the prior art, no further showing by the patent owner was needed to amend the claim to correct the indefiniteness problem. Both parties have appealed the decision to the Federal Circuit.
In BioMarin Pharmaceutical, Inc. v. Duke University, IPR2013-00535, the Board agreed with the requester that one of the references cited in its original obviousness analysis did not actually disclose the limitation for which it was cited, but then determined that the limitation would have been a predictable variation of what was disclosed in that reference.
Similarly, in Athena Automation Ltd. v. Husky Injection Molding Systems Ltd., IPR2013-00290, the Board supplemented its analysis of petitioner’s incorporation by reference argument, but ultimately declined to modify its earlier decision.
In Captioncall v. Ultratec, Inc., IPR2013-00542, 00543, and 000544, the Board modified its earlier analysis regarding the rationale for combining references without altering its conclusion. Similarly, in Captioncall v. Ultratec, Inc., IPR2013-00549, while the Board agreed that it misspoke in characterizing one prior art reference, it found that the correction did not affect the Board’s analysis.
In each instance, the requester may have made a victory on appeal more difficult by having sought the rehearing because, ultimately, the Board did not change its conclusion and arguably better supported its original conclusion. Thus, even in light of these more recent decisions granting rehearing, such requests should be used sparingly and only in instances where a party can point to a clear mistake make by the Board.


Arturo ANDRADE–ZAMORA, Petitioner v. Loretta E. LYNCH, Attorney General of United States, Respondent.
Gail E. Boliver, argued, Marshalltown, IA, for Petitioner. Aaron Nelson, Argued, Washington, DC, for Respondent.
Gail E. Boliver, argued, Marshalltown, IA, for Petitioner.
Aaron Nelson, Argued, Washington, DC, for Respondent.
Arturo Andrade–Zamora petitions for review of a decision by an immigration judge (IJ)—affirmed without opinion by the Board of Immigration Appeals (BIA)—pretermitting his application for cancellation of removal. The IJ pretermitted Andrade–Zamora's application for cancellation of removal because Andrade–Zamora committed theft in the fourth degree, a crime involving moral turpitude. Andrade–Zamora argues he is eligible to apply for cancellation of removal despite this conviction because (1) a state court vacated his conviction for theft in the fourth degree; and (2) his conviction for a crime involving moral turpitude would preclude him from applying for cancellation of removal only if he was admitted to the United States within five years of committing the offense, which he was not. We deny the petition for review.
Arturo Andrade–Zamora was born in Villachuato, Mexico. He came to the United States at an unknown date and has lived in the United States since without ever being lawfully admitted.
In February 2014, the government served Andrade–Zamora with a Notice to Appear for removal proceedings, charging him with being a removable alien because he was present in the United States without having been admitted or paroled. At a hearing in May 2014, Andrade–Zamora, through counsel, admitted the factual allegations and conceded he was removable, but indicated he would seek cancellation of removal.
Three months later, Andrade–Zamora pled guilty in Iowa state court to one count of theft in the fourth degree and two counts of falsifying a driver's license or non-operator's identification application. The state court sentenced him to one year of probation and ordered him to pay a fine. As a result of these convictions, on November 7, 2014, the government filed a second notice charging Andrade–Zamora with being a removable alien, this time for committing a crime involving moral turpitude.
Andrade–Zamora denied this allegation and filed a motion for cancellation of removal. Along with the motion, Andrade–Zamora filed an order from the Iowa state court that made his conviction for theft in the fourth degree and one of the two counts of falsifying a driver's license “a ity” because the parties had discovered “material evidence” that could not have been discovered before Andrade–Zamora pled guilty. On the remaining count of falsifying a driver's license, the state court modified Andrade–Zamora's sentence to a suspended sentence of 179 days of incarceration. The state court vacated Andrade–Zamora's convictions on November 21, 2014—two weeks after the government filed its notice alleging Andrade–Zamora was removable as a result of these convictions.
The government moved to pretermit Andrade–Zamora's application for cancellation of removal, and after a hearing, the IJ granted the government's motion. The IJ held that although the state court vacated Andrade–Zamora's conviction for theft in the fourth degree, this conviction still qualified as a crime involving moral turpitude because Andrade–Zamora had not met his burden to prove the conviction was vacated on the merits, rather than for immigration purposes. Therefore, the IJ found this conviction prohibited Andrade–Zamora from applying for cancellation of removal, and it ordered Andrade–Zamora removed to Mexico.
The BIA affirmed the IJ's decision without opinion on April 30, 2015. Andrade–Zamora timely petitioned for review.
Andrade–Zamora argues the IJ erred by finding his conviction for theft in the fourth degree qualified as a crime involving moral turpitude even though (1) a state court vacated this conviction; and (2) he had not been “admitted” to the United States when he committed the offense. We review the BIA's factual determinations under a substantial-evidence standard and its legal conclusions de novo. Gonzalez Cano v. Lynch, 809 F.3d 1056, 1059 (8th Cir.2016). We give “substantial deference to the BIA's interpretation of the statutes and regulations it administers.” Spacek v. Holder, 688 F.3d 536, 538 (8th Cir.2012). Where, as here, the BIA adopts the findings or reasoning of the IJ, we review the IJ's decision as part of the final agency action. Singh v. Lynch, 803 F.3d 988, 991 (8th Cir.2015).
Andrade–Zamora argues his conviction for theft in the fourth degree does not qualify as a crime involving moral turpitude because a state court vacated the conviction. If a court vacates an alien's criminal conviction for a reason unrelated to the merits of the case—such as to avoid immigration consequences or for rehabilitative reasons—rather than to correct a procedural or substantive defect, the conviction will still stand for immigration purposes despite its vacatur. In re Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003), rev'd on other grounds, Pickering v. Gonzales, 465 F.3d 263, 271 (6th Cir.2006); see also Viveiros v. Holder, 692 F.3d 1, 3 (1st Cir.2012) (noting circuit courts have “uniformly” followed this rule). The parties dispute (1) which party bears the burden to prove the reason for vacatur, and (2) whether that party met its burden.
Under the Immigration and Nationality Act (INA), the alien bears “the burden of proof to establish that [he] ... satisfies the applicable eligibility requirements” for cancellation of removal, 8 U.S.C. § 1229a(c)(4)(A)(i), including that he was not “convicted of an offense” that would disqualify him from cancellation of removal, 8 U.S.C. § 1229b(b)(1)(C). An alien stands “convicted of an offense” that disqualifies him from cancellation of removal if the conviction was vacated to avoid immigration consequences. Pickering, 23 I. & N. Dec. at 624. Thus, the INA places the burden on the alien to prove not only that he has no current disqualifying convictions, but also that he has no prior disqualifying convictions that were vacated to avoid immigration consequences. This statutory burden necessarily requires the alien to prove the reason his prior conviction was vacated. As such, we hold that in order to apply for cancellation of removal, the alien must prove his conviction was vacated for a substantive or procedural reason, not for immigration or rehabilitative purposes.
Andrade–Zamora argues that when the alien applies for cancellation of removal the government bears the burden to prove the reason the disqualifying conviction was vacated, as it does when it charges the alien with being deportable for committing an offense that is later vacated. See Cardoso–Tlaseca v. Gonzales, 460 F.3d 1102, 1107 (9th Cir.2006). But deportation cases are inapposite, because the burden of proof is different. While the government bears the burden to prove the alien is deportable or removable, it is the alien's burden under the INA to prove he is eligible for cancellation of removal. Thus, the burden properly falls on the government to prove the reason for vacatur when it also bears the burden to prove the alien committed a deportable offense. But the burden does not fall on the government to prove the reason for vacatur when it is the alien's burden to prove he did not commit an offense that disqualifies him from cancellation of removal. In that instance, the alien must prove the reason for vacatur.
Andrade–Zamora did not meet his burden to prove the Iowa state court vacated his conviction for a substantive or procedural reason, and not for immigration purposes. First, the order itself does not establish that the state court vacated Andrade–Zamora's conviction for a substantive or procedural reason. The state court vacated the conviction based on “material evidence,” but it did not explain what “material evidence” the parties discovered that led it to vacate the conviction, and the term “material evidence” is not self-defining. For instance, “material evidence” could mean the parties discovered Andrade–Zamora was factually innocent of the offense (a substantive reason for vacatur), or it could mean the parties discovered Andrade–Zamora would be removed from the country due to the offense (an immigration reason for vacatur). There is simply nothing in the order to indicate the reason the state court vacated the theft conviction, and therefore the order alone does not prove the conviction was vacated for a substantive or procedural reason. See Rumierz v. Gonzales, 456 F.3d 31, 41 (1st Cir.2006) (“On its face, the order fails to show, as required by Pickering, that the prior conviction was vacated because of ‘a defect in the underlying criminal proceedings.’ ”).
Second, we find the timing and effect of the order relevant because they suggest the state court vacated the conviction for immigration purposes. The state court vacated Andrade–Zamora's conviction only two weeks after the government moved to remove Andrade–Zamora based on this conviction. And the state court modified Andrade–Zamora's sentence on the remaining count of falsifying a driver's license to 179 days' imprisonment, which appears to be an attempt to fit the conviction within the “petty offense” exception to removal for a crime involving moral turpitude. The timing and effect of the order therefore raise an inference the state court did not vacate the conviction on a substantive or procedural ground, but rather to avoid the immigration consequences of the conviction.
Under the INA's petty offense exception, an alien convicted of a crime involving moral turpitude may still be admitted to the United States if the maximum term of imprisonment for the crime does not exceed one year, and the alien was not sentenced to a term of imprisonment in excess of six months. 8 U.S.C. § 1182(a)(2)(A)(ii)(II). Thus, Andrade–Zamora's modified sentence of 179 days' imprisonment for falsifying a driver's license fit within the 180–day limit for the petty offense exception.
More importantly, Andrade–Zamora provided no information to prove why the state court vacated his conviction. He maintained the order spoke for itself and never presented any other evidence on the issue, even though he was in the best position to do so. See In re Chavez–Martinez, 24 I. & N. Dec. 272, 274 (BIA 2007) (“In this regard, we note that the respondent was a direct party to the criminal proceeding leading to the vacation of his conviction and is therefore in the best position to know why the conviction was vacated and to offer evidence related to the record of conviction.”). Without presenting any evidence, he failed to meet his burden, and the IJ properly found his conviction for theft in the fourth degree qualified as a crime involving moral turpitude despite its vacatur.
Andrade–Zamora next argues that even if his vacated conviction for theft in the fourth degree qualifies as a crime involving moral turpitude, this conviction does not preclude him from applying for cancellation of removal because he had not been “admitted” to the United States when he committed the offense.
The Attorney General has discretion to cancel removal of an alien who is inadmissible or deportable. 8 U.S.C. § 1229b(b)(1)(C). Before the alien can apply for cancellation of removal, he must prove he “has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3),” 8 U.S.C. § 1229b(b)(1)(C), which includes “crimes involving moral turpitude” under § 1227(a)(2)(A). That section provides, “Any alien who-(I) is convicted of a crime involving moral turpitude committed within five years ... after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.” 8 U.S.C. § 1227(a)(2)(A) (emphasis added).
Andrade–Zamora argues the cross-reference in § 1229b(b)(1)(C) to an “offense under section ... 1227(a)(2)” incorporates all of the requirements in § 1227(a)(2), including that the alien must commit the crime involving moral turpitude within five years “after the date of admission.” Andrade–Zamora, however, was never lawfully admitted to the United States, and therefore he argues his conviction for a crime involving moral turpitude does not preclude him from applying for cancellation of removal because he did not commit the offense within five years of the date of admission. In other words, the IJ erred when it found he was “convicted of an offense under section ... 1227(a)(2),” because § 1227(a)(2) only applies to aliens who have been lawfully admitted to the United States, not unlawful entrants like him.
This Court has not addressed whether an alien is precluded from applying for cancellation of removal for being “convicted of an offense under section ... 1227(a)(2)” if he was never admitted to the United States. 8 U.S.C. § 1229b(b)(1)(C). The BIA takes the position that the cross-reference in § 1229b(b)(1)(C) to an offense under § 1227(a)(2) should be read only as a cross-reference to the list of offenses in the statute, not as a cross-reference to the statute as a whole. Matter of Cortez, 25 I. & N. Dec. 301, 307–08 (BIA 2010) (citing Gonzalez–Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir.2004)). Therefore, this statute applies regardless of the alien's admission status. Id.
We must decide whether the BIA's interpretation of this statute is entitled to Chevron deference. Chevron, U.S.A., Inc. v. Nat'l Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Chevron is a familiar two-step framework. First, we use traditional tools of statutory construction to determine if Congress has unambiguously spoken to the question at issue. Hawkins v. Cmty. Bank of Raymore, 761 F.3d 937, 940 (8th Cir.2014). If the statute is unambiguous, we simply apply the statute. Id. If the statute is ambiguous, we proceed to the second step of Chevron and apply the agency's interpretation if it “is based on a permissible construction of the statute.” City of Arlington v. FCC, ––– U.S. ––––, 133 S.Ct. 1863, 1868, ––– L.Ed.2d –––– (2013).
First, we find the statute ambiguous. It does not expressly specify whether it incorporates § 1227(a)(2) in its entirety—including the immigration characteristics—or merely the list of offenses. Congress has not unambiguously spoken to the issue, and we must defer to the BIA's interpretation if it is based on a permissible construction of the statute.
We hold it is. Section 1229b(b)(1)(C) prohibits an alien from applying for cancellation of removal if he has been “convicted of an offense under” § 1227(a)(2). That § 1229b(b)(1)(C) refers only to “an offense under” § 1227(a)(2) suggests it incorporates only the list of offenses and not the entire section—otherwise, it would prohibit an alien from applying for cancellation of removal if he violates § 1227(a)(2).
The structure of § 1227(a)(2) supports this construction as well. Section 1227(a)(2) lists various offenses and punishes the alien with an immigration consequence if he commits the offense. So if an alien is convicted of a crime involving moral turpitude (the offense), he is deportable if he committed the offense within five years of his date of admission (the immigration consequence). Section 1229b(b)(1)(C) only prohibits an alien from applying for cancellation of removal if he is “convicted of an offense” under § 1227(a)(2), and given the structure of § 1227(a)(2), the natural reading of this cross-reference is that it refers only to the list of offenses in 1227(a)(2), not the immigration consequences. After all, it is not possible to be “convicted” of being deportable (the immigration consequence)—only to be “convicted” of a crime involving moral turpitude (the offense). The structure of § 1227(a)(2) therefore supports the BIA's construction that § 1229b(b)(1)(C) incorporates only the list of offenses without incorporating all the immigration characteristics in § 1227(a)(2).
Finally, it is reasonable to apply § 1227(a)(2) to all aliens applying for cancellation of removal regardless of their admission status. Otherwise, if an alien committed a crime involving moral turpitude, he could only apply for cancellation of removal if he entered the country unlawfully, not if he went through proper immigration proceedings and was lawfully admitted to the United States. The unlawful entrant would benefit simply because he did not follow proper entry procedures. The BIA's construction of § 1229b(b)(1)(C) avoids this illogical result.
Every circuit that has interpreted § 1229b(b)(1)(C) has agreed with the BIA, either on the grounds that the statute is unambiguous or that the BIA's construction is permissible and entitled to Chevron deference. See Hernandez v. Holder, 783 F.3d 189, 195 (4th Cir.2015) (Chevron deference); Mancilla–Delafuente v. Lynch, 804 F.3d 1262, 1265 (9th Cir.2015) (same); Coyomani–Cielo v. Holder, 758 F.3d 908, 915 (7th Cir.2014) (same); Nino v. Holder, 690 F.3d 691, 697 (5th Cir.2012) (unambiguous). We join our sister circuits and find the BIA's construction of § 1229b(b)(1)(C) is permissible and therefore entitled to Chevron deference.
The IJ did not err when it pretermitted Andrade–Zamora's application for cancellation of removal on the grounds that he committed an offense under § 1227(a)(2), even though he was never admitted to the United States.


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