text:
Alexander, L. V., 2016: Global observed long-term changes in temperature and precipitation extremes: A review of progress and limitations in IPCC assessments and beyond. Weather and Climate Extremes, 11, 4-16. 10.1016/j.wace.2015.10.007.
Andrys, J., T. J. Lyons, and J. Kala, In Press: Evaluation of a WRF ensemble using GCM boundary conditions to quantify mean and extreme climate for the southwest of Western Australia (1970–1999). International Journal of Climatology. 10.1002/joc.4641.
Donat, M. G., A. D. King, J. T. Overpeck, L. V. Alexander, I. Durre, and D. J. Karoly, 2016: Extraordinary heat during the 1930s US Dust Bowl and associated large-scale conditions. Climate Dynamics, 46, 413-426. 10.1007/s00382-015-2590-5.
Donat, M. G., A. L. Lowry, L. V. Alexander, P. A. Ogorman, and N. Maher, In Press: More extreme precipitation in the world's dry and wet regions. Nature Climate Change. 10.1038/nclimate2941.
Gallant, A. J. E. and S. C. Lewis, 2016: Stochastic and anthropogenic influences on repeated record-breaking temperature extremes in Australian spring of 2013 and 2014. Geophysical Research Letters, 43, 1944-8007. 10.1002/2016GL067740.
Gilmore, J. B., J. P. Evans, S. Sherwood, M. Ekstrom, and J. Fei, In Press: Extreme precipitation in WRF during the Newcastle East Coast Low of 2007. Theoretical and Applied Climatology. 10.1007/s00704-015-1551-6.
Hobday, A. J., L. V. Alexander, S. E. Perkins, D. A. Smale, S. C. Straub, E. C. J. Oliver, J. A. Benthuysen, M. T. Burrows, M. G. Donat, M. Feng, N. J. Holbrook, P. J. Moore, H. A. Scannell, A. Sen Gupta, and T. Wernberg, 2016: A hierarchical approach to defining marine heatwaves. Progress in Oceanography, 141, 227-238. 10.1016/j.pocean.2015.12.014.
Kim, Y.-H., S.-K. Min, X. Zhang, F. Zwiers, L. V. Alexander, M. G. Donat, and Y.-S. Tung, 2016: Attribution of extreme temperature changes during 1951–2010. Climate Dynamics, 46, 1769-1782. 10.1007/s00382-015-2674-2.
King, A. D., M. T. Black, S.-K. Min, E. M. Fischer, D. M. Mitchell, L. J. Harrington, and S. E. Perkins-Kirkpatrick, In Press: Emergence of heat extremes attributable to anthropogenic influences. Geophysical Research Letters, 43. 10.1002/2015GL067448.
Lewis, S. C., In Press: Can public perceptions of Australian climate extremes be reconciled with the statistics of climate change? Weather and Climate Extremes. 10.1016/j.wace.2015.11.008.
Lewis, S. C., D. J. Karoly, A. D. King, S. E. Perkin, and M. G. Donat, In Press: Mechanisms explaining recent changes in Australia’s climate extremes. Climate Extremes: Patterns, Trends, and Mechanisms, American Geophysical Union.
Lorenz, R., D. Argueso, G. D. Markus, A. J. Pitman, B. van den Hurk, A. Berg, D. Lawrence, F. Cheruy, A. Duchame, S. Hagemann, A. Meier, P. C. D. Milly, and S. I. Seneviratne, 2016: Influence of land-atmosphere feedbacks on temperature and precipitation extremes in the GLACE-CMIP5 ensemble. Journal of Geophysical Research. 10.1002/2015JD024053.
Mcinnes, K., C. J. White, I. D. Haigh, M. A. Hemer, R. K. Hoeke, N. J. Holbrook, A. S. Keim, E. C. J. Oliver, R. Ranasinghe, K. J. E. Walsh, S. Westra, and R. Cox, In Press: Natural hazards in Australia: sea level and coastal extremes. Climate Change. 10.1007/s10584-016-1647-8.
Pepler, A., L. Alexander, J. Evans, and S. Sherwood, 2016: Zonal winds and southeast Australian rainfall in global and regional climate models. Climate Dynamics, 46, 123-133. 10.1007/s00382-015-2573-6.
Pepler, A. S., A. Di Luca, F. Ji, L. V. Alexander, J. P. Evans, and S. C. Sherwood, 2016: Projected changes in east Australian midlatitude cyclones during the 21st century. Geophysical Research Letters, 43, 334-340. 10.1002/2015GL067267.
Stockhecke, M., A. Timmermann, R. Kipfer, G. H. Haug, O. Kwiecien, T. Friedrich, L. Menviel, T. Litt, N. Pcikarski, and F. S. Anselmetti, 2016: Millennial to orbital-scale variations of drought intensity in the Eastern Mediterranean. Quarternary Science Reviews, 133, 77-95. 10.1016/j.quascirev.2015.12.016.
Contractor, S., L. V. Alexander, M. G. Donat, and N. Herold, 2015: How Well Do Gridded Datasets of Observed Daily Precipitation Compare over Australia? Advances in Meteorology, 2015. http://dx.doi.org/10.1155/2015/325718.
Dittus, A. J., D. J. Karoly, S. C. Lewis, and L. V. Alexander, 2015: A Multiregion Assessment of Observed Changes in the Areal Extent of Temperature and Precipitation Extremes. Journal of Climate, 28, 9206-9220. http://http://dx.doi.org/10.1175/JCLI-D-14-00753.1.
Gibson, P. B., P. Uotila, S. E. Perkins-Kirkpatrick, L. V. Alexander, and A. Pitman, In Press: Evaluating synoptic systems in the CMIP5climate models over the Australian region. Climate Dynamics. 10.1007/s00382-015-2961-y.
Goldie, J., S. C. Sherwood, D. Green, and L. Alexander, 2015: Temperature and humidity effects on hospital morbidity in Darwin, Australia. Annals of Global Health, 81, 333-41. http://dx.doi.org/10.1016/j.aogh.2015.07.003.
Green, D., H. Bambrick, P. Tait, J. Goldie, R. Schultz, L. Webb, L. Alexander, and A. Pitman, 2015: Differential Effects of Temperature Extremes on Hospital Admission Rates for Respiratory Disease between Indigenous and Non-Indigenous Australians in the Northern Territory. International Journal of Environmental Research on Public Health, 12, 15352-15365. http://dx.doi.org/10.3390/ijerph121214988.
Hirsch, A. L., A. J. Pitman, J. Kala, R. Lorenz, and M. G. Donat, 2015: Modulation of land use change impacts on temperature extremes via land-atmosphere coupling over Australia. Earth Interactions, 19, 1-24. http://dx.doi.org/10.1175/EI-D-15-0011.1.
King, A. D., M. G. Donat, L. V. Alexander, and D. Karoly, 2015: The ENSO-Australian rainfall teleconnection in reanalysis and CMIP5. Climate Dynamics, 44, 2623-2635. http://10.1007/s00382-014-2159-8.
King, A. D., G. J. van Oldenborgh, D. J. Karoly, S. C. Lewis, and H. M. Cullen, 2015: Attribution of the record high Central England Temperature of 2014 to anthropogenic influences. Environmental Research Letters, 10. http://10.1088/1748-9326/10/5/054002.
Lewis, S. C. and D. J. Karoly, 2015: Are estimates of anthropogenic and natural influences on Australia’s extreme 2010–2012 rainfall model-dependent? Climate Dynamics, 45, 679-695. http://10.1007/s00382-014-2283-5.
Lewis, S. C. and A. D. King, 2015: Dramatically increased rate of observed hot record breaking in recent Australian temperatures. Geophysical Research Letters, 42, 7776-7784. http://dx.doi.org/10.1002/2015GL065793.
Perkins, S. E., 2015: Increased risk of the 2014 Australian May heatwave due to anthropogenic activity [in "Explaining Extreme Events of 2014 from a Climate Perspective"]. Bulletin of the American Meteorological Society, 96. http://dx.doi.org/10.1175/BAMS-D-15-00074.1.
Perkins, S. E., 2015: A review on the scientific understanding of heatwaves—Their measurement, driving mechanisms, and changes at the global scale. Journal of Atmospheric Research, 164, 242-267. http://10.1016/j.atmosres.2015.05.014.
Pepler, A. S., A. Di Luca, F. Ji, L. V. Alexander, J. P. Evans, and S. C. Sherwood, 2015: Impact of identification method on the inferred characteristics and variability of Australian East Coast Lows. Monthly Weather Review, 143, 864-877. http://10.1175/MWR-D-14-00188.1.
Pepler, A. S., L. Diaz, C. Prodhomme, A. Kumar, and F. Doblas-Reyes, 2015: The ability of a multi-model seasonal forecasting ensemble to forecast the seasonal distribution of daily extremes. Weather and Climate Extremes, 9, 68-77. http://dx.doi.org/10.1016/j.wace.2015.06.005.
Reeder, M. J., T. Spengler, and R. Musgrave, 2015: Rossby waves, extreme fronts, and wildfires in southeastern Australia. Geophysical Research Letters, 42, 2015-2023. http://dx.doi.org/10.1002/2015GL063125.
Ummenhofer, C. C., A. S. Gupta, M. H. England, A. S. Tashetto, P. R. Briggs, and M. R. Raupach, 2015: How did ocean warming affect Australian rainfall extremes during the 2010/2011 La Nina event? Geophysical Research Letters, 42, 9942-9951. http://dx.doi.org/10.1002/2015GL065948.
Walsh, K. J. E., S. J. Camargo, G. A. Vecchi, A. S. Daloz, J. Elsner, K. Emanuel, M. Horn, Y.-K. Lim, M. Roberts, C. Patricola, E. Scoccimarro, A. H. Sobel, S. Strazzo, G. Villarini, M. Wehner, M. Zhao, J. P. Kossin, T. LaRow, K. Oouchi, S. Schubert, H. Wang, J. Bacmeister, P. Chang, F. Chauvin, C. Jablonowski, A. Kumar, H. Murakami, T. Ose, K. A. Reed, R. Saravanan, Y. Yamada, C. M. Zarzycki, P. L. Vidale, J. A. Jonas, and N. Henderson, 2015: Hurricanes and climate: the U.S. CLIVAR working group on hurricanes. Bulletin of the American Meteorological Society, 96, 997-1017. http://10.1175/BAMS-D-13-00242.1.
Yin, H., M. G. Donat, L. V. Alexander, and Y. Sun, 2015: Multi-dataset comparison of gridded observed temperature and precipitation extremes over China. International Journal of climatology, 35, 2809-2827. http://10.1002/joc.4174.
Alexander, L. V. and S. Perkins, 2013: Debate heating up over changes in climate variability.Environmental Research Letters, 8. http://dx.doi.org/10.1088/1748-9326/8/4/041001 (open access).
Alexander, L. and C. Tebaldi, 2012: Climate and weather extremes: observations, modelling and projections. The Future of the World's Climate, 2nd ed. A. Henderson-Sellers and K. McGuffie, Eds., Elsevier, 253-288.
Arblaster, J. M. and L. V. Alexander, 2012: The impact of the El Niño Southern Oscillation on maximum temperature extremes. Geophysical Research Letters, 39, L20702.
Avila, F. B., A. J. Pitman, M. G. Donat, L. V. Alexander, and G. Abramowitz, 2012: Climate model simulated changes in temperature extremes due to land cover change. Journal of Geophysical Research, 117, D04108.
Badlan, R. L., T. P. Lane, G. A. Mills, and S. Caine, 2012: Mesoscale modelling of two 'drying events': governing processes and implications for fire danger. Australian Meteorological & Oceanographic Journal, 62, 143-156.
Donat, M. G. and L. V. Alexander, 2012: The shifting probability distribution of global daytime and night-time temperatures. Geophysical Research Letters, 39, L14707.
Perkins, S. E., L. V. Alexander, and J. R. Nairn, 2012: Increasing frequency, intensity and duration of observed global heatwaves and warm spells. Geophysical Research Letters, 39,L20714.
Seneviratne, S. I., N. Nicholls, D. Easterling, C. M. Goodess, S. Kanae, J. P. Kossin, Y. Luo, J. Marengo, K. McInnes, M. Rahimi, M. Reichstein, A. Sorteberg, C. Vera, X. Zhang, and C. A. L. Alexander), 2012: Changes in Climate Extremes and their Impacts on the Natural Physical Environment. . IPCC.

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A petition from San Diego Gas & Electric to the California Supreme Court, asking for a review of a decision from the California Public Utilities Commission and a subsequent appeal that was denied by California’s 4th District Court of Appeal in San Diego. SDG&E's petition also claims the appeals court judge should have recused herself from the case.
Albers v. Los Angeles Cnty.
Barham v. S. Cal. Edison Co.
Belair v. Riverside Cnty. Flood Control Dist.
Brown v. Legal Found. of Wash.
Bunch v. Coachella Valley Water Dist.
Koontz v. St. Johns River Water Mgmt. Dist.
Lesko v. Valley Presbyterian Hosp.
Pac. Bell Tel. Co. v. S. Cal. Edison Co.
Pacific Tel. & Tel. Co. v. P.U.C.
Ponderosa Tel. Co. v. P.U.C.
In re S. Cal. Gas Co.
In re San Diego Gas & Elec. Co.
2017) Scientific American, at <https://www.scientificamerican.
Reversible Error Not to Self Recuse?
of the California Legislature (Mar. 19, 2018) at <https://newsroom.
under section 451 of the Public Utilities Code?
recuse herself from a petition for review related to the subject matter of her suit?
compensation from a public entity if its property is “damaged” for public use.
Co. (1999) 74 Cal.App.4th 744, 752–753 (“Barham”); Pac. Bell Tel. Co. v. S. Cal.
to resolve this conflict and secure uniformity of decision.
aftermath of the recent Camp and Woolsey Fires.
to serve all ratepayers in their service territory will be gravely undermined.
precluding them from recovering the costs of that liability.
fire-utilities.html> [as of Nov. 24, 2018].).
to over 3.4 million customers in San Diego County and southern Orange County.
that it is legally obligated to serve where the risk of wildfires is significant.
lauded as a “potential example of excellence” (2App822–824).
whether inverse condemnation applies to privately owned utilities.
SDG&E applied for rehearing, which the CPUC denied on July 13, 2018.
harmonizing section 451 of the Public Utilities Code with those decisions.
held strictly liable as a non-governmental entity.
strict liability in a civil litigation setting.
condemnation may not be able recover those costs from the ratepaying public.
warrants this Court’s review and resolution.
supposedly had not satisfied the CPUC’s “prudent manager” standard.
members acknowledged and the Court of Appeal failed to resolve.
“just and reasonable” costs. (Pub. Util. Code, § 451; see also Pacific Tel. & Tel. Co.
below and the decisions in Barham and Pacific Bell.
construed to avoid, not create, constitutional problems. (See, e.g., People v.
identifiable property interest,” the utilities’ transmission facilities. (Koontz v. St.
U.S. 216, 232 [interest on specific fund]; Webb’s Fabulous Pharmacies, Inc. v.
condemnation liability would concentrate the entire burden on SDG&E.
constitutional infirmity, compounding the error in its construction of section 451.
significant portion of the State’s economy.
20180226/video> [as of Nov. 24, 2018].
Premise”of IC Doctrine (Nov. 30, 2017) Deutsche Bank, at p. 3.
Regarding Wildfire-Related Liabilities (Dec. 21, 2017) Evercore ISI, at p. 2.
rating-outlook-to-negative-PR_38074> [as of Nov. 24, 2018].
sticking-a-fork-in-a-socket-1514920990> [as of Nov. 24, 2018].
[as of Nov. 24, 2018].
Electric-to-A2-from-A1--PR_388482> [as of Nov. 24, 2018].
both Northern and Southern California”].
will threaten their financial sustainability.
Energy, Annual Report (Form 10-K), supra, at p. 36.
Session of the California Legislature (Mar. 19, 2018) at <https://newsroom.
courts.ca.gov/news/2018-state-of-the-judiciary-address> [as of Nov. 24, 2018].
18 Harvey, Here’s What We Know About Wildfires and Climate Change (Oct.
13, 2017) Scientific American, at <https://www.scientificamerican.
downloads/fact_sheets/Top20_Destruction.pdf> [as of Nov. 24, 2018].
wildfires “occurring on or after January 1, 2019” (id., § 451.1, subd (a)).
condemnation claims against privately owned utilities.
to recuse was prejudicially unfair and should be reviewed. (See Aetna Life Ins.
These grounds for recusal provide additional reason to grant review.
be counted under Rule 8.504, subd. (d)(3).
been read and considered by Justices Benke, O'Rourke, and Dato.
imprudent manager and (2) SDG&E's conduct caused the Witch Fire.
petitioner under the Constitution of the United States or the California Constitution.' "
" 'There is a strong presumption favoring the validity of a Commission decision.' "
the agency may have "special familiarity with satellite legal and regulatory issues,"
nor a violation of the law, including the Constitutions of the United States and California.
potential strict liability in a civil litigation setting.
Commission's findings under section 451 were not supported by sufficient evidence.
burden to show that it reasonably and prudently operated and maintained those facilities.
claims it asserts. Under these circumstances, we decline to issue the writ of review.
Company for leave to file an amicus curiae brief is denied as moot.


An earlier article on this site discussed the addition to the 2018 Form 1065 instructions that required partnerships to provide tax basis capital account information for partners whose tax basis capital would be negative and which are reporting partners’ capital on the K-1 on basis other than the tax basis (IRS Adds Requirement for Tax Basis Partner Capital Information Reporting to Form 1065 Instructions, February 15, 2019).
Certain partnerships complained to the IRS that they will not be able to provide that information with this year’s K-1s, at least not without delaying the issuance of K-1s to shareholders significantly. In response to these complaints, the IRS in Notice 2019-20 has provided a temporary reprieve to such partnerships.
The IRS has announced it no longer intends to issue amended regulations under IRC §401(a)(9) in Notice 2019-18. The IRS has previously announced in Notice 2015-49 that it had intended to revise the minimum distribution regulations to address the practice of offering a temporary lump sum payment option to beneficiaries of a defined benefit pension plan who were currently receiving annuity payments.
The Treasury Department released a policy statement (Policy Statement on the Tax Regulatory Process) that indicated the agency will rely less on temporary regulations and subregulatory guidance (such as Notices) than it has in the past.
This process allows the public to participate before any final rule becomes effective and ensures that all views are adequately considered. It also enables the public to apprise the government of relevant information that the government may not possess or to alert the government to consequences that it may not foresee.
The Tax Court took a look at what it takes to create a casualty loss in the case of Mancini v. Commissioner, T.C. Memo. 2019-16. In this case the taxpayer argues that his gambling losses were a casualty loss since a drug he had been prescribed caused him to compulsively gamble. While the court agreed he had proven the causal link between the drug and his gambling, it also found that his loss did not meet the requirements under the IRC to be a treated as a casualty loss.
The IRS has published on their website a frequently asked question page dealing with a deduction for legal fees under IRC §162(q) (Section 162(q) FAQ).
The Court of Appeals for the District of Columbia reversed a prior lower court ruling that barred the IRS from charging a fee to issue or renew Preparer Tax Identification Numbers (PTINs) in the case of Montrois, et al v. United States, Case No. 17-5204, CA DC.
In June of 2017 the U.S. District Court for the District of Columbia ruled in this case that the IRS, following a ruling in the case of Loving v. IRS, 742 F.3d 1013 (D.C. Cir. 2014), lacked the authority to impose a fee on tax preparers to obtain and renew PTINs. The original case argued that the fee violated the provisions of the Independent Offices Appropriations Act that the IRS used to justify the fee.
The Tenth Circuit denied a taxpayer’s attempt to force the IRS to bear the burden of proof that an LLC operating as an S corporation was trafficking in a controlled substance that would lead to a denial of most business deductions per IRC §280E in the case of Feinberg, et at v. Commissioner, Case No. 18-9005, CA10. The taxpayer argued that, despite the fact that the burden of proof generally falls on the taxpayer to prove the right to a deduction, to do so in this case would involve a violation of the taxpayers’ Fifth Amendment privilege.
This was the second trip up to the Tenth Circuit for the taxpayers in this exam. While their first trip was ultimately successful in the eventual result, if not 100% in the decision, this second trip was not fruitful for the clients.
This week a number of questions arose in different online tax discussion forums regarding the potential taxability of a state income tax refund for taxpayers where the taxpayers had their state tax deductions limited by the $10,000 limit on such deductions under IRC §164(b)(6). The question was whether a portion of the refund equal to the refund amounts times the ratio of income taxes to total state and local taxes subject to the $10,000 limit will be considered taxable in 2019.
The Ninth Circuit Court of Appeals ruled in the case of J.B.; P.B. v. United States of America, No. 16-15999, CA9 that the IRS failed to provide the taxpayers with reasonable notice in advance of the agency’s intent to contact third parties as required by §7602.
Individual farmers and fishermen are subject to special rules under IRC §6654(i)(1)(A) & (B) that exempt them from an underpayment penalty under §6654 if they make a single estimated tax payment in the amount due by January 15 of the year following the year the taxes are due. However, under IRC §6654(i)(1)(D) these individuals get a second chance if they miss that January 15 date for their one estimate. They are still not subject to an underpayment penalty if they file their return by March 1 of the year following the year in question and pay the resulting tax.
On November 27, 2017, petitioners submitted to this Court a purported petition that consisted of a copy of the notice of deficiency, on each page of which they had written “REFUSAL FOR CAUSE.” Petitioners appended various documents containing assertions commonly advanced by tax protesters, including assertions that U.S. currency is not “lawful money” and that they “have no obligations or liability to even file a return” because they “intend to only handle legal money.” Petitioners also advanced the more novel (but equally frivolous) argument that this Court should garnish the wages of the Secretary of the Treasury for an amount equal to petitioners' outstanding tax liability.
Can an LLC Operating a Shopping Center with Triple Net Leases for All Tenants Give Rise to Qualified Business Income?
This article is based on my response to a question raised on an online forum. The person asking the question recognized the issue, but because I’ve encountered some advisers who have come to believe the safe harbor is “the” test for rentals I wanted to clarify matters a bit. Hopefully this helps.
Facts: An LLC operates a shopping center with many tenants. While the leases are all triple net leases, the manager spends over 250 hours a year dealing with items related to the center, including collecting rents, paying the bills, finding new tenants, dealing with vendors and keeping the records of the operation. The operation doesn’t qualify for the safe harbor of Notice 2017-07 due to being a set of triple net leases. Does that mean it cannot be a trade or business for Section 199A purposes?
The U.S. Supreme Court found to be illegal a West Virginia state tax break that provided an exemption from state tax for retired state law enforcement employees but did not offer the same benefit to retired federal law enforcement employees. The Court unanimously ruled in the case of Dawson v. Steager, Case No. 17-419 that the West Virginia court was in error finding that the law was acceptable since it applied only to a narrow class of retirees and did not intend to discriminate against federal marshals.
So why might living in a co-op give taxpayers a way around the SALT cap? In short, co-op owners don’t pay a property tax, or actually buy a property as it’s usually understood, as Pro Tax’s Brian Faler reported. That matters because lawmakers bypassed the section of the tax code that does allow co-op owners to deduct their version of property taxes — essentially a fee paid to the corporation that owns the property, which then pays the taxes — when drafting the TCJA.
The article does caution it’s “not apparent whether co-op owners can assume they’re in the clear, at least for now, on property taxes.” But what exactly is the issue?
Does Having UberEats in the Area Put Employer Provided Meals Into the Employee's Wages? The IRS Thinks It Does in Many Cases.
The IRS indicated that the existence of expanded delivery options for meals in an area may eliminate the ability of an employer to claim that meals are provided to employees for the convenience of the employer in TAM 201903017. While the TAM deals with a number of issues in its 50 pages, the consideration of the impact of delivery services such as UberEats is something new in this area.
Although the case arguably has been rendered effectively moot by the Tax Cuts and Jobs Act, the IRS did announce in Action on Decision AOD 2019-01 that it acquiesced in result only in the case of Jacobs v. Commissioner, 148 T.C. No. 24 (2017).
The Jacobs case, which we detailed when the case was originally released (Full Deduction Allowed to Hockey Team for Meals Provided to Players at Away Games, 6/20/17), held that a profession hockey team that provided meals for its players in areas leased from local hotels for away games qualified as meals provided at an employer’s eating facility under §132(e). Based on the law in effect that time, such employer meals provided at an employer’s eating facility qualified for a 100% deduction for the employer and no inclusion in income for the employee.
Glen Birnbaum, CPA pointed out on Twitter on February 15, 2019 an item referenced in RIA’s Federal Tax Update the same day regarding a new check box has appeared on Schedule E of Form 1040 that applies to S corporation shareholders. The IRS posted information about this change on its website in an article titled “Clarification on line 28, column (e), of Schedule E (Form 1040)” on February 6, 2019.
As stated in Part II of the Schedule E (Form 1040), a taxpayer who owns an interest in an S corporation and reports a loss, receives a distribution, disposes of stock, or receives a loan repayment from the S corporation must check a corresponding box under line 28, column (e), and attach a computation detailing their S corporation basis. The discussion about basis rules for S corporations in the Instructions for Schedule E (Form 1040) for Parts II and III does not limit or modify this requirement.
Note: On March 7 , 2019 the IRS provided temporary relief for partnerships unable to timely provide this information. See our article at this link.
An article published in Tax Notes Today on February 15 highlighted a change in the 2018 Form 1065 instructions that will impact partnerships reporting partners’ capital accounts on Schedule K-1 using other than tax basis capital account reporting.
If a partnership reports other than tax basis capital accounts to its partners on Schedule K-1 in Item L (that is, GAAP, 704(b) book, or other), and tax basis capital, if reported on any partner's Schedule K-1 at the beginning or end of the tax year would be negative, the partnership must report on line 20 of Schedule K-1, using code AH, such partner's beginning and ending shares of tax basis capital. This is in addition to the required reporting in Item L of Schedule K-1.
For these purposes, the term “tax basis capital” means (i) the amount of cash plus the tax basis of property contributed to a partnership by a partner minus the amount of cash plus the tax basis of property distributed to a partner by the partnership net of any liabilities assumed or taken subject to in connection with such contribution or distribution, plus (ii) the partner's cumulative share of partnership taxable income and tax-exempt income, minus (iii) the partner's cumulative share of taxable loss and nondeductible, noncapital expenditures.
The AICPA has written a letter to the IRS requesting that the agency protect certain small businesses that are deemed to be syndicates from the loss of various small business benefits provided in the Tax Cuts and Jobs Act.
The IRS addressed a quirky interaction of bonus depreciation under IRC §168(k) and the luxury auto rules under IRC §280F in Revenue Procedure 2019-13. Absent this safe harbor method, taxpayers who opted not to elect out of §168(k) bonus depreciation for an automobile limited by §280F would find any basis in the automobile in excess of $18,000 would not be deductible until the end of the standard recovery period, which would begin in the seventh year after acquiring the vehicle.
Under the Tax Cuts and Jobs Act, a taxpayer is allowed to deduct 100% of the cost of qualifying assets in the year the asset is placed in service for assets placed in service between September 27, 2017, and January 1, 2023. However, under the provisions most often referred to as the "luxury auto rules" a taxpayer's depreciation and/or §179 deduction for covered vehicles is capped at $10,000 for the first year. This amount is adjusted annually for inflation.


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Philip D. Fraissinet has extensive experience counseling government and private entities and officials in many areas, including government procurement and contracting; minority, women and small business certification; conflicts of interest; nepotism; financial disclosure; ethics; political and campaign activities (including bond elections); and real estate and construction. Mr. Fraissinet also represents government and private clients in disputes and litigation concerning public school finance, construction, eminent domain for public and private entities, public employment, and constitutional and civil rights matters.
Mr. Fraissinet currently represents 84 public school districts that educate over 1.8 million students in the Texas Taxpayer and Student Fairness Coalition, et al vs. Williams et al, lawsuit challenging the current public school finance system as being in violation of the Texas Constitution.
Mr. Fraissinet was a member of the team representing plaintiff school districts in the prior successful challenge to the Texas school finance system at trial and before the Texas Supreme Court in 2005. Prior to joining the firm, Mr. Fraissinet was a partner at Bracewell.
As lead trial lawyer, obtained unanimous jury verdict for school district in breach of contract lawsuit involving school construction issues. TL Mechanical vs. Corpus Christi Independent School District, Carrier Corporation, Stridde Callins & Assc., and Bob Calder, in the County Court at Law Number Four, Nueces County, Texas; Cause No. 2010-CCV-62262-4; In the U.S. District Court, Southern District of Texas, Corpus Christi Division, 2015.
Successfully defended school district in breach of contract lawsuit. Xpediant Educational Solutions, LLC vs. Katy Independent School District; Cause No. 2008-68672; In the 334th Judicial District Court, Harris County, Texas.
Lead attorney in successful defense against discrimination lawsuit. Bobby Thomas vs. Corpus Christi Independent School District; Civil Action No. 6:07-CV-00068; In the United States District Court, for the Southern District of Texas, Victoria Division.
Lead attorney in successful defense against injunction proceeding regarding school graduation ceremonies. Brem, et al. vs. Corpus Christi Independent School District; In the 94th Judicial District Court of Nueces County, Texas.
Successfully defended City of Houston in lawsuit challenging City’s legal authority to implement red light camera program. 2007-2008.
Member of team retained by Texas Attorney General and Texas Southern University to investigate high-profile matters involving President and Chief Financial Officer. 2006-2007.
Attorney for primary plaintiff school districts that successfully challenged constitutionality of Texas school finance system in six-week trial and before Texas Supreme Court. Neeley v. West Orange-Cove Cons. Ind. Sch. Dist., 176 S.W.3d 746; Tex. 2005.
Lead trial attorney for public school district in federal district court involving successful defense against challenge to school consolidation plan. Brooks, et al. v. Corpus Christi Indep. Sch. Dist., C.A. H-05-234, in the U.S. District Court, Southern District of Texas, Corpus Christi Division, 2005.
Lead attorney for plaintiff school district in successful construction arbitration. Palacios Indep. Sch. Dist. v. Callahan Architects, 2004.
Co-counsel in school prayer case successfully resolved for school district at the federal court of appeals level. Ward v. Santa Fe Independent School District, 393 F.3d 599; 5th Cir. 2004.
Lead attorney for large energy company in numerous eminent domain cases to acquire property for construction of 20-mile pipeline in South Texas, 2004.
Trial and appellate attorney for numerous government entities in eminent domain cases to acquire property for public projects. Pizzitola v. Houston Indep. School Dist., 2006 WL 1360838, 2006; Houston Independent School District v. J. Montgomery, et al., Cause No. 738,672, in the County Court No. 3 of Harris County, Texas, 2003.
Lead appellate attorney in successful appeal of tax dispute for public school district. Aldine Independent School District v. B. Baty, 999 S.W.2d 113; Tex. App. — Houston, 1999.
Co-counsel at trial and appeal for successful public school district in attorney fee lawsuit. Jason D.W. v. Houston Independent School District, 158 F.3d 205, 5th Cir. 1998.
Lead appellate attorney in successful appeal for public school district in Texas Open Meetings Act and Public Information Act Lawsuit. Martin, et al. v. Victoria Independent School District, 972, S.W.2d 815; Tex. App. — Corpus Christi 1998, rev. denied.
Numerous presentation on public school finance in Texas.
“Moving Forward or Rolling Back: School District Tax Rate Elections” Texas Association of School Administrators Mid-Winter Conference (January 2010) and Texas Association of School Boards Annual Conference (October 2009).
“Red Light Cameras – Continuing Implementation Issues,” Texas City Attorneys Association Conference, South Padre Island, June 2008.
“Attorney Fees in Pro Bono Cases: For the Public Good?” Practicing Law Institute Eighth Annual School Law Institute, New York City, May 2008.
“Anatomy of School Finance Litigation,” American Education Finance Association Annual Conference, Denver, April 2008.
“The Closing of Solomon Coles – A Case Study,” Education Law Association Conference, October 2006.
“Legislative Update After House Bill 1,” Region XIII Education Service Center, June 2006.
“Analysis of Texas Supreme Court Opinion in Neeley et al v. West Orange Cove et al, No. 04-144,” Texas, November 22, 2005.
“School Finance Litigation,” Education Law Association, November 2005.
“Understanding Government Contracts,” Texas School Law – A Practical Guide, Second Edition, 2004.
“Discipline Management and Student Responsibilities under the Texas Education Code: The Basics of Chapter 37,” Region IV New Principals Workshop, January 1999.
“Race in Public School Student Assignments: Which Way is the Pendulum Swinging?” ELA Conference, Charleston, South Carolina, November 1998.
“Diversity and Discrimination in the Workplace: Preventing Legal Problems and Creating a Welcome Environment,” Region IV Training Workshop, October 1998.

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text:
Several recent circuit court and tax court cases provide further support to Gallenstein v. United States (1992 CA6, 70 AFTR 2d 92-5683, 975 F2d286) on the estate tax treatment of spousal joint interests created prior to 1977. All of these decisions hold that the full value of jointly held spousal property is includable in the estate of the spouse who contributed to the purchase of the property. Therefore, a survivor of such an interest that did not contribute toward the purchase of the property is entitled to a full step-up in basis for the property upon the death of the contributing spouse. These precedents are particularly noteworthy, as the IRS instructions for the Federal Estate Tax Return, Form 706, continue to require the inclusion of only one-half of the value of spousal joint property, regardless of which spouse purchased the property or when the joint interest was created.
The estate tax treatment of spousal joint interests is controlled by IRC section 2040. Prior to 1976, that section stated that a decedent's gross estate was required to include the entire value of all jointly held property. An exception to this rule was permitted where a survivor established that he or she acquired the interest in the property from the decedent for full and adequate consideration. Basically, a survivor had to track the amount he or she had contributed to the purchase of the jointly held property in order to keep a portion of it out of the decedent's estate. IRC section 2040 applied to all types of joint interests.
In 1976, IRC section 2040 was amended to include subsection (b), which created a new rule for spousal joint interests. Subsection (b)(1) provided that spouses who created joint interests after 1976 were required to exclude 50% of the value of the qualified joint interest from the estate of the first spouse to die, regardless of who had provided the consideration for the purchase of the property. Subsection (b)(2) defined qualified joint interests to essentially be joint interests between spouses, held as tenants by the entirety or as joint tenants with rights of survivorship, which constituted a gift when created. In 1978, the statute was further amended through the addition of subsections (c), (d), and (e), which included a provision for an election to apply subsection (b) to joint interests created prior to 1977.
The Economic Recovery Tax Act of 1981 (ERTA) eliminated all estate and gift taxes between spouses by providing for an unlimited marital deduction. ERTA amended the definition of a qualified joint interest under IRC section 2040(b)(2) to include any interest in property held by the decedent and the decedent's spouse as either tenants by the entirety or joint tenants with right of survivorship. It eliminated the requirement that a gift be created in order for the joint interest to qualify. The amendment adopted in 1978 providing for the election to apply the 50% inclusion rule to spousal joint interests created prior to 1977 was also repealed. All of the 1981 amendments are applicable to estates of decedents dying after December 31, 1981.
With the establishment of an unlimited marital deduction, the estate tax treatment of spousal joint interests is essentially irrelevant. Regardless of the value assigned to the qualified joint interest, no estate tax will be paid on the transfer of this property to a surviving spouse. However, the impact of a 50% versus full fair market valuation creates an income tax issue for the surviving spouse. The higher the step-up passed from the estate, the lower the taxable gain on the spouse's return when the property is sold. Should the property remain unsold at the time of the surviving spouse's death, the estate tax would be computed based on the fair value at that time.
With respect to qualified joint interests created after 1977 for decedents dying after 1981, the rules are quite clear: Only a 50% step-up in basis is available. However, the question arises as to the appropriate treatment of pre-1977 qualified joint interests: Should they be included in the estate of the decedent based on the contribution rule or the 50% inclusion rule?
The Gallenstein case addresses the issue of how to treat spousal joint interests created before 1977 where the deceased joint tenant died after 1981. The taxpayer had originally reported a gain on her income tax return on the sale of real property she had held jointly with her husband since 1955. The gain had been computed using only a 50% basis step-up from her husband's estate. The taxpayer's amended income tax return sought a refund of the taxes paid on this gain, which the IRS denied. The taxpayer filed suit for the refund on the premise that the entire value of the property should be included in the decedent's estate, as the spousal joint interest was created prior to 1977 and the surviving spouse did not contribute to the purchase of the joint interest.
The IRS argued that the 1981 change in the definition of qualified joint interests in subsection (b)(2) acts to repeal the original effective date of subsection (b). The IRS maintained that the 50% inclusion rule applied to all spousal joint interests of decedents dying after December 31, 1981. The premise asserted was that it was Congress's intention to eliminate tracing for all qualified joint interests when it amended the code in 1981. The IRS concluded that Congress's actions in providing a new definition of qualified joint interests, establishing the unlimited marital deduction, and repealing the election subsections were clearly evidence of this intent. The IRS also referred to the discussion in the legislative history in supporting this conclusion.
The Sixth Circuit Court of Appeals ruled in favor of the taxpayer. The court found inconsistencies in the IRS's arguments. The court concluded that the repeal of subsections (c), (d), and (e) in 1981 indicated that when Congress wished to repeal a particular IRC section, it did so expressly. Thus, the court concluded it would be inappropriate to use the express repeal of these sections as a basis for interpreting what Congress did not expressly enact.
The court also concluded that the government's appeal to legislative history was inappropriate. Referring to past precedent, the court concluded that, as Congress enacted the plain language of the statutes and not the accompanying reports, the use of the legislative history to find an express repeal exceeds its judicial role.
With respect to considering that there had been an implied repeal of the effective date of subsection (b), the court found that neither of the special circumstances of implied repeal had been met. An implied repeal of an earlier act is allowed where the provisions of two acts are in irreconcilable conflict. The court concluded that, although the statutes produce a different result when applied to the same factual situation, they are not mutually exclusive. Thus, no irreconcilable conflict exists to support implied repeal.
The second special circumstance of implied repeal requires that the new statute cover the whole subject matter of law such that the prior statute has no effect. For this circumstance to apply, the intent of the legislature to repeal must be clear and manifest. The court concluded that this criterion was also not met. The 1981 amendments do not prevent the 1976 statute from remaining effective. Congress also did not expressly repeal the effective date of subsection (b)(1) although it did make other express repeals to subsections of IRC section 2040.
The Fourth Circuit Court of Appeals also ruled in favor of the plaintiff, Patten, the administrator of the estate of Marjory L. Blaney (1997 CA 4, 80 AFTR 2d 97-5108, 116 F3d 1029). The decedent was the sole owner of real property left to her upon her husband's death in 1989. The property had been held jointly by the couple since 1955. Both the estate tax return and the income tax return of the surviving spouse reflected only a 50% step-up in basis for the property. Upon the death of the surviving spouse, Patten filed an amended income tax return seeking a refund on the taxable gain reported from the sale of the property. Patten's premise was that the property should have been passed to Blaney at full fair market value given that it was held jointly prior to 1977 and she had not contributed toward its purchase. The IRS refused the refund and Patten filed suit.
The court affirmed the decision reached in Gallenstein: There was no evidence of express or implied repeal of the effective date of IRC section 2040(b)(1). The court also did not find merit in an additional argument offered by the government that was not presented in Gallenstein. The IRS suggested that leaving the 1976 amendment intact would provide an unintended windfall to the taxpayer. The government argued that the elimination of estate and gift taxes between spouses in 1981 encourages surviving spouses to include the full value of the property in the decedent's estate so as to maximize the step-up. As there is no corresponding cost by way of an increase in the estate tax, this could not have been Congress's intent. The court found that this premise, "if something is good for the taxpayer, it cannot be Congress's intent," was an unacceptable legal argument.
The IRS issued a notice of deficiency to Hahn in 1996 regarding her 1993 income tax return (110 TC No. 14). Hahn had reported no taxable gain on sale of property inherited from her husband's estate. The estate had included the full market value at the date of death for the property which had been held jointly by the decedent and Hahn since 1972 and for which Hahn had given no consideration toward the purchase price. The IRS asserted that Hahn was only permitted a 50% step-up on this property pursuant to IRC section 2040(b)(1).
On March 4, 1998, the Tax Court ruled for the taxpayer, concluding that the IRS's arguments regarding legislative history, potential for abuse, and express repeal of the other subsections did not satisfy the criterion for implied repeal. The court noted that the Gallenstein decision rejecting both express and implied repeal has been followed by every other court that examined this issue, including Patten v. U.S., Baszto v. U.S. [80 AFTR 2d 97-7 440 (Florida 1997)], Wilburn v. U.S. [80 AFTR 2d 97-7553, 97-2 USTC par. 50881 (Maryland 1997)], and Anderson v. U.S. [78 AFTR 2d 96-6555, 96-2 USTC par. 60235 (Maryland 1996)].
The Tax Court also addressed the IRS contention that the statutes create a potential for abuse. The IRS had argued that surviving spouses would be more likely to assert that the decedents had provided full consideration for jointly held property to achieve a full basis step-up, regardless of how the property was actually acquired. The Tax Court concluded that the IRS misunderstood the burden of proof in this situation. Although IRC section 2040(a) does raise a rebuttable presumption that the decedent furnished the entire consideration for the jointly held property, this section applies to estate tax filings only. For income tax purposes, however, IRC section 1014(b)(9) allows a step-up in basis only for property required to be included in the decedent's gross estate. Thus, in the income tax setting where the step-up is utilized to compute taxable gain, the burden of proof is on the taxpayer. The surviving spouse must prove that the decedent furnished the consideration for the jointly held property in order to receive the step-up. The Tax Court referred to Madden v. Commissioner [52 TC 845 (1969)] in reaching these conclusions.
E--Jointly Held Property, Qualified Joint Interests--indicates that only one-half of the total date-of-death value of these interests should be included in the estate regardless of when the property was acquired. The instructions to Schedule E do not address the issue that pre-1977 spousal joint interests might qualify for different treatment (i.e., 100% inclusion).
Margaret Conway, CPA, is an assistant professor at Kingsborough Community College.

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Nina Y. Wang Magistrate Judge.
This civil action comes before the court on the Administrative Record, [#16, filed April 28, 2017], and the Parties' Joint Motion for Determination on the Record (“Joint Motion”). [#38, filed November 27, 2017]. The Joint Motion was referred to the undersigned Magistrate Judge pursuant to the Order Referring Case dated February 6, 2017, [#12], and the memorandum dated November 27, 2017, [#39]. The undersigned Magistrate Judge has reviewed the Administrative Record, the associated briefing, the case file, and the applicable law, and, for the reasons stated below, respectfully RECOMMENDS that the court REMAND the decision to the Plan Administrator.
On December 13, 2016, Plaintiff Cara Denney (“Plaintiff” or “Ms. Denney”) initiated this action pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1101, et seq., seeking long-term disability benefits pursuant to a Group Long Term Disability Plan (“Plan”), administered by Defendant Unum Life Insurance Company of America (“Unum”), and made available through Plaintiff's employer, Wagner Equipment Company (“Wagner”). The Parties agree that Plaintiff's claim is governed by ERISA, and the court exercises subject matter jurisdiction pursuant to 29 U.S.C. § 1132(a)(1)(B).
Plaintiff previously worked full-time for Wagner as a Computer and Technology Instructor. [#1 at 3]. She asserts that the position “required extensive computer use” and “the ability to instruct employees on the use of various computer systems, ” [id.], and further required that she travel up to 50 percent of the time, stand and/or walk more than one third of the workday, and lift up to twenty-five pounds. [#23 at 2; #16-5 at 80-82].
Plaintiff was 37 years old in 2015 when she underwent bilateral reconstructive surgery on her feet. June 22, 2015 marked Plaintiff's last day of full-time work; she underwent surgery on her left foot the following day, and underwent surgery on her right foot on July 20, 2015. [#1 at 3; #16-1 at 12-15; #16-28 at 848-851; #16-46 at 1567-1568]. During this time, Plaintiff sought and received short-term disability benefits under the Plan. [#1 at 3]. Her surgeon, Joseph Mechanik, D.P.M., predicted that Plaintiff would require an extended recovery period of up to six months, and that she could return to work on December 31, 2015. [#16-5 at 67-69, 73; #16-1 at 13-14; #16-4 at 53; #16-17 at 464; #16-28 at 848-851]. With Dr. Mechanik's approval, Plaintiff began working part-time beginning October 5, 2015. [#16-1 at 12-14; #16-4 at 51-55; #16-5 at 68, 73].
Plaintiff has a history of lower back pain dating to the occurrence of two herniated disks, for which she underwent an L4-S1 lumbar fusion in October 2001. See, e.g., [#16-16 at 435]. While she reported to her physicians that she had experienced intermittent “flareups, ” since having the lumbar fusion, and that she had been diagnosed with “failed back surgery syndrome, ” she stated that she had had good results from the lumbar fusion “and overall improvement of her severe pain from the surgery.” [Id.] While participating in physical therapy following the bilateral reconstructive surgery on her feet, Plaintiff began to experience severe neck and back pain. See [#16-1 at 13-15]. Dr. Mechanik referred Plaintiff to Michael Gesquiere, M.D., a Pain Management Specialist, whom Plaintiff first saw on September 10, 2015. [#16-16 at 433-434]. Plaintiff received care from Dr. Gesquiere for chronic low back pain related to the lumbar fusion and for neck pain. Dr. Gesquiere subsequently referred Plaintiff to Christopher LaFontano, D.O., a neuromuscular specialist, for evaluation and osteopathic manipulation treatment for her neck and back pain, and she was initially evaluated and treated by Dr. LaFontano on October 19, 2015.
Following an exam on December 14, 2015, Dr. Mechanik restricted Plaintiff to no more than fifteen minutes of standing per hour, for a total of forty-five minutes per day, and maintained Plaintiff's restriction of part-time work, extended through February 2016. [#16-1 at 13-15; #16-4 at 54-55; #16-5 at 74-75; #16-28 at 848-851; #16-30 at 941]. Due to the neck and back pain that Plaintiff was experiencing, Dr. Mechanik restricted Plaintiff from lifting weight over ten pounds and from bending or stooping. [#16-43 at 1446]; see [#16-16 at 412-414]. Plaintiff continued working part-time until January 11, 2016, when, following a medical exam, Dr. LaFontano recommended that she stop working entirely. He wrote that he had treated Plaintiff on five occasions since October 19, 2015, which he identified as the onset of her back condition, and that she was unable to sit or stand for prolonged periods of time, could not lift more than ten pounds, and should not extend her arms for more than ten to twenty minutes. [#16-5 at 77; #16-39 at 1302-1303]. Dr. LaFontano opined that Plaintiff's neck and back pain was disabling and he restricted her from working altogether. [#16-5 at 78]. See [#16-1 at 12-15; #16-3 at 45; #16-4 at 46-47]. In the following months, Dr. LaFontano opined that these restrictions were likely permanent, and that another surgery may be required. [#16-4 at 45-47; #16-37 at 1226-1229; #16-38 at 1231-1234, 1239-1243; #16-39 at 1302-1307]. On January 26, 2016, Dr. Gesquiere opined that Plaintiff suffered from a chronic pain syndrome, lumbar postlaminectomy syndrome, cervicalgia with myofascial pain, and a C5-6 right side para-central disc protrusion. [#16-16 at 435-436].
Plaintiff filed a claim for long-term disability (“LTD”) benefits, based on the condition of her feet and back. [#23 at 19]. Plaintiff represented in the Disability Claim Form dated January 12, 2016 that her medical condition was “back pain, pinched nerve (2), radiating pain, ” and she described first experiencing the symptoms after the bilateral foot surgery, “I had bilateral foot surgery…while I was recuperating I started having excessive back pain, radiating pain and numbness.” [#16-3 at 40]. On April 22, 2016, Defendant denied the claim, finding that Plaintiff was disabled from June 23, 2015 through December 14, 2015, and thus for only 175 days of the 180-day elimination period, which ended December 19, 2015. The denial notice stated, “We have determined you are able to perform the duties of your occupation on a full-time basis prior to the end of the 180 day elimination period and benefits are not payable.” [#16-29 at 910-915]. The Parties agree that Plaintiff's disability extended 175 days, [#23 at 10; #16-1 at 13-15], but disagree as to whether she was thereafter disabled.
Does the available information support a loss of functional capacity relating to established medical conditions noted above and the insured's reports of symptoms including (chronic back, neck and foot pain), so as to prevent reliable sustained functional activity (as noted below) as of 6/23/15-12/19/15 (EP) and beyond?
[#29 at 17; #16-45 at 1546-47]. Unum denied the appeal by letter dated August 19, 2016, and states in its Response Brief that it found that Plaintiff “was able to perform the duties of her occupation as of December 14, 2015, prior to the date that LTD benefits begin.” [#29 at 20; #16-47 at 1589-96]. Plaintiff filed a second, voluntary appeal, see [#16-48 at 1620-1622, 1625, 1636-1637], and Unum issued its final decision denying the claim on November 21, 2016. See [#16-48 at 1649].
Unum issued Group Policy No. 418405 002 (the “Policy”) to Wagner to fund the LTD benefits under the Plan. [#16-7 at 128; #16-8 at 163]. The “summary plan description and the policy constitute the Plan.” [#16-8 at 162].
- you have a 20% or more loss in your indexed monthly earnings due to the same sickness or injury.
After 36 months of payments, you are disabled when Unum determines that due to the same sickness or injury, you are unable to perform the duties of any gainful occupation for which you are reasonably fitted by education, training or experience.
You must be under the regular care of a physician in order to be considered disabled.
[#16-7 at 142] (emphasis in original).
You must be continuously disabled through your elimination period. The days that you are not disabled will not count toward your elimination period.
Your elimination period is 180 days.
In addition, if you return to work while satisfying your elimination period, and are no longer disabled, you may satisfy your elimination period within the accumulation period. You do not need to be continuously disabled through your elimination period if you are satisfying your elimination period under this provision. If you do not satisfy the elimination period within the accumulation period, a new period of disability will begin.
Your accumulation period is 360 days.
Id. (emphasis in original). The Policy defines elimination period to mean “a period of continuous disability which must be satisfied before you are eligible to receive benefits from Unum, ” and accumulation period to mean “the period of time from the date disability begins during which you must satisfy the elimination period.” [#16-8 at 158]. The Policy provides that if a person works while disabled, “the days you are disabled will count toward your elimination period.” [#16-7 at 142].
Unum has discretionary authority to determine claims for benefits under the Policy, including the discretionary authority to determine whether a claimant meets the definition of disability. [#16-7 at 142, 133; #16-8 at 162-164]. Ordinarily, the fact that the Plan delegates discretionary authority to Unum would result in review of the administrator's decision by the court pursuant to an abuse of discretion standard. Murphy v. Deloitte & Touche Group Ins. Plan, 619 F.3d 1151, 1157 (2010) (citations omitted); see Weber v. GE Group Life Assurance Co., 541 F.3d 1002, 1011 (10th Cir. 2008) (describing terms “arbitrary and capricious” and “abuse of discretion” as interchangeable in this context). Under such a standard, the court will uphold the administrator's determination “so long as it was made on a reasoned basis and supported by substantial evidence, ” Van Steen v. Life Ins. Co. of N. Am., 878 F.3d 994, 997 (10th Cir. 2018). “Substantial evidence is such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the decisionmaker, ” Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1282 (10th Cir. 2002) (alteration, quotations omitted), and “[t]he substantiality of the evidence is evaluated against the backdrop of the administrative record as a whole.” Adamson v. Unum Life Insurance Co. of America, 455 F.3d 1209, 1212 (10th Cir. 2006) (citations omitted). Interpretation of the terms in a plan is arbitrary and capricious if it is unreasonable based on the plain language in the plan, made in bad faith, or severely undermines the policy concerns underlying ERISA. Torix v. Ball Corp., 862 F.2d 1428, 1429 (10th Cir. 1988). So long as the basis for the administrator's decision is reasonable, the decision “need not be the only logical one nor even the best one.” Nance v. Sun Life Assur. Co., 294 F.3d 1263, 1269 (10th Cir. 2002). In applying this standard of review, the court considers the evidence before the plan administrator at the time it made the decision to deny benefits. See Id. Indicia of arbitrary and capricious decisions include lack of substantial evidence, mistake of law, bad faith, and conflict of interest by the fiduciary. Caldwell, 287 F.3d at 1282. There are also instances where the court must exercise de novo review, even when the plan administrator is vested with discretionary authority. See Gilbertson v. Allied Signal, Inc., 328 F.3d 625, 631 (10th Cir. 2003). “[T]o be entitled to deferential review, not only must the administrator be given discretion by the plan, but the administrator's decision in a given case must be a valid exercise of that discretion.” Id.
Here, Defendant contends that the Parties agree that the arbitrary and capricious standard applies. [#29 at 2]. Plaintiff argues in her Opening Brief that “the policy language is not entirely clear, ” but that it is “at least arguable” that Defendant has such discretion. [#23 at 22]. On Reply, Plaintiff does not respond to Defendant's arguments regarding the applicable standard of review. [#37]. In any event, it is clear the Parties do not agree as to the amount of deference owed to Unum's decision, and Plaintiff argues that Unum's decision “should be given little, if any, deference.” [#23 at 25].
An insurance company's dual role as both the claim administrator and the source funding the benefits of an ERISA plan constitutes a conflict of interest for ERISA purposes. Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 114, 128 S.Ct. 2343 (2008) (holding an insurer's dual role as administrator and payer of benefits “creates a conflict of interest [such that] a reviewing court should consider that conflict as a factor in determining whether the plan administrator has abused its discretion in denying benefits.”). The conflict is given more weight “when circumstances suggest a likelihood that it affected the benefits decision, ” and less weight “when the conflicted party has taken active steps to reduce potential bias and to promote accuracy.” Cardoza v. United of Omaha Life Ins. Co., 708 F.3d 1196, 1202 (10th Cir. 2013). Put another way, “the reviewing court ‘must decrease the level of deference given to the conflicted administrator's decision in proportion to the seriousness of the conflict.” Caldwell, 287 F.3d at 1282.


Robert H. Jackson, Atty. Gen., and Thomas E. Harris, of Washington, D.C., for appellants.
Mr. J. Ninian Beall, of Washington, D.C., for appellees.
In the broad domain of social legislation few problems are enmeshed with the difficulties that surround a determination of what qualifications an employee shall have and how long his hours of work may be. Upon the proper adjustment of these factors within an industry and in relation to competitive activities may well depend the economic success of the enterprises affected as well as the employment and efficiency of the workers. The Motor Carrier Act lays little emphasis upon the clause we are called upon now to construe, 'qualifications and maximum hours of service of employees.' None of the words are defined by the Section, 203, devoted to the explanation of the meaning of the words used in the Act. They are a part of an elaborate enactment drawn and passed in an attempt to adjust a new and growing transportation service to the needs of the public. To find their content, they must be viewed in their setting.
It is important to remember that the Commission has three times concluded that its authority was limited to securing safety of operation. The first interpretation was made on December 29, 1937, when the Commission stated: '* * * until the Congress shall have given us a more particular and definite command in the premises, we shall limit our regulations concerning maximum hours of service to those employees whose functions in the operation of motor vehicles make such regulations desirable because of safety considerations.' 40 This expression was half a year old when Congress enacted the Fair Labor Standards Act with the exemption of Section 13(b)(1). Seemingly the Senate at least was aware of the Commission's investigation of its powers even before its interpretation was announced. 41 Under the circumstances it is unlikely indeed that Congress would not have explicitly overruled the Commission's interpretation had it intended to exempt others than employees who affected safety from the Labor Standards Act.
One amendment made to the then pending Motor Carrier Act has relevance to our inquiry. Section 203(b) reads as set out in the note below. 43 The words, 'except the provisions of section 204(304) relative to qualifications and maximum hours of service of employees and scafety of operation or standards of equipment,' italicized in the note, were added by amendment in the House after the passage of S. 1629 in the Senate with the addition of the disputed clause to Section 204(a)(1) and (2). 44 It is evident that the exempted vehicles and operators include common, contract and private carriers. It seems equally evident that where these vehicles or operators were common or contract carriers, it was not intended by Congress to give the Commission power to regulate the qualifications and hours of service of employees, other than those concerned with the safety of operations.
49 Stat. 543, 49 U.S.C.A. § 301 et seq.
S.Doc. No. 152, 73rd Cong., 2d Sess., Regulation of Transportation Agencies, p. 350. See p. 25, for discussion of the preliminary steps of motor carrier regulation. Hearings on Regulation of Interstate Motor Carriers, H.R. 5262 and H.R. 6016, before the House Committee on Interstate and Foreign Commerce, 74th Cong., 1st Sess.; Hearings on S. 1629, Senate Committee on Interstate Commerce, 74th Cong., 1st Sess.
Section 202; Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. -, decided April 22, 1940.
Sections 202, 216, 217, 218, 49 U.S.C.A. §§ 302, 316318.
Services, § 203(a)(19); brokers, § 203(a)(18), § 204(a)(4); security issues, § 214; insurance, § 215; accounts, records and reports, § 220.
Maurer v. Hamilton, supra; Regulation of Transportation Agencies, supra, Highway and Safety Regulations, p. 32; Hearings on S. 1629, supra, pp. 122123, 184.
52 Stat. 1060, 29 U.S.C.A. § 201 et seq.
Interpretative Bulletin No. 9, Wage & Hour Manual (1940) 168.
Section 204(a)(1), (6) and (7), (e); Rules of Practice I.C.C., April 1, 1936, Rule XV.
Section 205(h), Motor Carrier Act; Urgent Deficiencies Act, 38 Stat. 220, 28 U.S.C. 47, 47a, 28 U.S.C.A. §§ 47, 47a.
Cf. Securities & Exchange Comm. v. United States Realty & Improvement Co., 310 U.S. 434, 60 S.Ct. 1044, 84 L.Ed. -, decided today.
Judicial Code § 238, 28 U.S.C.A. § 345; 38 Stat. 208, 219 220, 28 U.S.C.A. §§ 43, 44, 47; 49 Stat. 543, § 205(h), 49 U.S.C.A. § 305(h).
Story, J., in Minor v. Mechanics Bank, 1 Pet. 46, 64, 7 L.Ed. 47: 'But no general rule can be laid down upon this subject, further than that that exposition ought to be adopted in this, as in other cases, which carries into effect the true intent and object of the legislature in the enactment.' Pennington v. Coxe, 2 Cranch 33, 59, 2 L.Ed. 199; James v. Milwaukee, 16 Wall. 159, 161, 21 L.Ed. 267; Atkins v. Fiber Disintegrating Co., 18 Wall. 272, 301, 21 L.Ed. 841; White v. United States, 191 U.S. 545, 551, 24 S.Ct. 171, 172, 48 L.Ed. 295; Ozawa v. United States, 260 U.S. 178, 194, 43 S.Ct. 65, 67, 67 L.Ed. 199; United States v. Stone & Downer Co., 274 U.S. 225, 239, 47 S.Ct. 616, 620, 71 L.Ed. 1013; Gulf States Steel Co. v. United States, 287 U.S. 32, 45, 53 S.Ct. 69, 74, 77 L.Ed. 150; Royal Indemnity Co. v. American Bond & M. Co., 289 U.S. 165, 169, 53 S.Ct. 551, 553, 77 L.Ed. 1100; Lincoln v. Ricketts, 297 U.S. 373, 376, 56 S.Ct. 507, 509, 80 L.Ed. 724; Foster v. United States, 303 U.S. 118, 120, 58 S.Ct. 424, 425, 82 L.Ed. 700.
Cf. Davies, The Interpretation of Statutes in the Light of their Policy by the English Courts, 35 Columbia Law Review 519; Radin, Statutory Interpretation, 43 Harvard Law Review 863; Landis, A Note on 'Statutory Interpretation', 43 Harvard Law Review 886; R. Powell, Construction of Written Instruments, 14 Indiana Law Journal 199, 309, 324; Jones, The Plain Meaning Rule, 25 Washington University Law Quarterly 2.
Taft v. Commissioner, 304 U.S. 351, 359, 58 S.Ct. 891, 895, 82 L.Ed. 1393, 116 A.L.R. 346; Helvering v. City Bank Co., 296 U.S. 85, 89, 56 S.Ct. 70, 72, 80 L.Ed. 62; Wilbur v. United States, 284 U.S. 231, 237, 52 S.Ct. 113, 114, 76 L.Ed. 261; Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156; United States v. Missouri Pac. R.R., 278 U.S. 269, 278, 49 S.Ct. 133, 136, 73 L.Ed. 322; Van Camp & Sons v. American Can Co., 278 U.S. 245, 253, 49 S.Ct. 112, 113, 73 L.Ed. 311, 60 A.L.R. 1060; Caminetti v. United States, 242 U.S. 470, 490, 37 S.Ct. 192, 196, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.1917B, 1168; Pennsylvania R.R. v. International Coal Co., 230 U.S. 184, 199, 33 S.Ct. 893, 896, 57 L.Ed. 1446, Ann.Cas.1915A, 315.
Armstrong Co. v. Nu-Enamel Corp., 305 U.S. 315, 332, 59 S.Ct. 191, 199, 83 L.Ed. 195; Sorrells v. United States, 287 U.S. 435, 446, 53 S.Ct. 210, 214, 77 L.Ed. 413, 86 A.L.R. 249; United States v. Ryan, 284 U.S. 167, 176, 52 S.Ct. 65, 68, 76 L.Ed. 224.
Ozawa v. United States, 260 U.S. 178, 194, 43 S.Ct. 65, 67, 67 L.Ed. 199.
Helvering v. Morgan's, Inc., 293 U.S. 121, 126, 55 S.Ct. 60, 61, 79 L.Ed. 232; Johnson v. Southern Pacific Co., 196 U.S. 1, 14, 25 S.Ct. 158, 160, 49 L.Ed. 363; Popovici v. Agler, 280 U.S. 379, 50 S.Ct. 154, 74 L.Ed. 489; Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795; Williams v. United States, 289 U.S. 553, 53 S.Ct. 751, 77 L.Ed. 1372; Maurer v. Hamilton, supra, 309 U.S. 598, 60 S.Ct. pages 733, 735, 84 L.Ed. -.
Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48, 49 S.Ct. 52, 53, 54, 73 L.Ed. 170.
Helvering v. New York Trust Co., 292 U.S. 455, 465, 54 S.Ct. 806, 809, 78 L.Ed. 1361.
United States v. Jefferson Electric Co., 291 U.S. 386, 396, 54 S.Ct. 443, 446, 447, 78 L.Ed. 859; United States v. Arizona, 295 U.S. 174, 188, 191, 55 S.Ct. 666, 670, 672, 79 L.Ed. 1371; Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381, 394, 59 S.Ct. 516, 520, 83 L.Ed. 784; Ozawa v. United States, supra.
34 Stat. 1415, 45 U.S.C.A. §§ 6164.
38 Stat. 1164, 1169, 11701184.
52 Stat. 1007, § 601(a)(5), 49 U.S.C.A. § 551(a)(5). This authority has apparently been exercised only as to pilots and copilots. Dept. of Commerce, Bureau of Air Commerce, Civil Air Regulations, No. 61, Scheduled Airline Rules (Interstate), as amended to May 31, 1938, §§ 61.51861.5185.
That the word 'employees' is not treated by Congress as a word of art having a definite meaning is apparent from an examination of recent legislation. Thus the Social Security Act specifically provides that 'The term 'employee' includes an officer of a corporation,' 42 U.S.C. 1301(a)(6), 42 U.S.C.A. § 1301(a)(6), while the Fair Labor Standards Act specifically exempts 'any employee employed in a bona fide executive, administrative, professional, or local retailing capacity * * *.' 29 U.S.C. 213(a)(1), 29 U.S.C.A. § 213(a)(1). In the Railroad Unemployment Insurance Act, Congress expressly recognized the variable meaning of employee even when defined at length and used only in a single act: '* * * 'employee' (except when used in phrases establishing a different meaning) means * * *.' 45 U.S.C. 351(d), 45 U.S.C.A. § 351(d). In a statute permitting heads of departments to settle claims up to $1000 arising from the negligence of 'employees of the Government,' Congress gives recognition to the fact that the term is not on its face all-inclusive by providing: "Employee' shall include enlisted men in the Army, Navy, and Marine Corps.' 31 U.S.C. 215, 216, 31 U.S.C.A. §§ 215, 216. See also the varying definitions of 'employees' in the following statutes: Railroad Retirement Act, 45 U.S.C. 228a(b)(c), 45 U.S.C.A. § 228a(b, c); Interstate Commerce Act, 49 U.S.C. 1(7), 49 U.S.C.A. § 1(7); Emergency Railroad Transportation Act, 49 U.S.C. 251(f), 49 U.S.C.A. § 251(f), Act June 16, 1933, 48 Stat. 211; Communications Act, 47 U.S.C. 210, 47 U.S.C.A. § 210; National Labor Relations Act, 29 U.S.C. 152(3), 29 U.S.C.A. § 152(3); Maritime Labor Relations Act, 46 U.S.C. 1253(c), 46 U.S.C.A. § 1253(c); Classification Act of 1923 (Civil Service), 5 U.S.C. 662, 5 U.S.C.A. § 662; U.S. Employees' Compensation Act, 5 U.S.C. 790, 5 U.S.C.A. § 790; Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. 902, 33 U.S.C.A. § 902; Boiler Inspection Act, 45 U.S.C. 22, 45 U.S.C.A. § 22; Railway Labor Act, 45 U.S.C. 151(5), 45 U.S.C.A. § 151(5).
Where the term 'employee' has been used in statutes without particularized definition it has not been treated by the courts as a word of definite content. See Metcalf & Eddy v. Mitchell, 269 U.S. 514, 520, 46 S.Ct. 172, 173, 70 L.Ed. 384 (consulting engineers performing services for states, municipalities, and water districts held not to be 'employees' under statute exempting 'officers and employees under * * * any state, * * * or any local subdivision thereof' from the income tax); Waskey v. Hammer, 223 U.S. 85, 32 S.Ct. 187, 188, 56 L.Ed. 359 (mineral surveyor, appointed by the surveyor but paid by private persons, is within prohibition of statute prohibiting 'employees in the General Land Office' from purchasing public land); Nashville, C. & St. L. Ry. v. Railway Employees' Dept., etc., 6 Cir., 93 F.2d 340 (furloughed railroad workers entitled to priority in rehiring held 'employees' within meaning of Railway Labor Act), discussed in 51 Harv.L.Rev. 1299; Latta v. Lonsdale, 8 Cir., 107 F. 585, 52 L.R.A. 479 (attorney not 'employee' within meaning of statute giving 'employees' preference against assets of insolvent corporations); Vane v. Newcombe, 132 U.S. 220, 10 S.Ct. 60, 33 L.Ed. 310 (contractor who built lines for telegraph company not 'employee' within statute giving employees liens against corporate property); Malcomson v. Wapoo Mills, C.C., 86 F. 192 (same); cf. United States v. Griffith, 55 App.D.C. 123, 2 F.2d 925 (War Department clerk receiving disability compensation held employee of government within common law rule of the District of Columbia that employee of a litigant cannot be a member of jury); see also, Hull v. Philadelphia & Reading Ry., 252 U.S. 475, 40 S.Ct. 358, 64 L.Ed. 670; Louisville, etc., R.R. v. Wilson, 138 U.S. 501, 11 S.Ct. 405, 34 L.Ed. 1023; Campbell v. Commissioner, 7 Cir., 87 F.2d 128; Burnet v. Jones, 8 Cir., 50 F.2d 14; Burnet v. McDonough, 8 Cir., 46 F.2d 944.
S. Doc. 152, 73rd Cong., 2nd Sess., p. 352, § 304(a)(1).
'The regulation of the hours of service of bus and truck operators is far more important from a safety standpoint than the regulation of the hours of service of railroad employees because the danger is greater. * * * This could be accomplished by inserting in section 304(a)(1) and (2), lines 9 and 15, page 8, following the word 'records' in both lines, the words which appear in S. 394, as follows: 'qualifications and maximum hours of service of employees."
'In order to make the highways more safe, and so that common and contract carriers may not be unduly prejudiced in their competition with peddler trucks and other private operators of motor trucks, a provision was added in subparagraph 3 giving the Commission authority to establish similar requirements with respect to the qualifications and hours of service of the employees of such operators. * * *' 79 Cong.Rec. 5652.
S.Rep. 482, 74th Cong., 1st Sess. The report stated: 'No regulation is proposed for private carriers except that an amendment adopted in committee authorizes the Commission to regulate the 'qualifications and maximum hours of service of employees and safety of operation and equipment' of private carriers of property by motor vehicle in the event that the Commission determines there is need for such regulation. Other amendments adopted by the committee confer like authority upon the Commission with respect to common and contract carriers.' Safety of operation and equipment was in the original bill.
See last paragraph of remarks of Senator Wheeler, note 32 supra.
Norwegian Nitrogen Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796.
Hassett v. Welch, 303 U.S. 303, 310, 58 S.Ct. 559, 563, 82 L.Ed. 858.
The pending legislation is S. 2009, 76th Cong., 1st Sess., 84 Cong.Rec. 3509. As to the point here under discussion, the report of the Senate Committee said: 'Paragraph (1) of section 34 of the bill is based on the provisions of subparagraphs (1), (2), and (3) of section 204(a) of the Motor Carrier Act. In the original draft, there was inserted at the beginning of the paragraph the clause 'in order to promote safety of operations.' thus making clear that the Commission's power to regulate qualifications and maximum hours of service of employees is confined to those who have anything to do with safety of operation. This is a question with respect to which considerable doubt seems to have arisen under the wording of the present law. Upon the strenuous objection of the truckers claiming conflict between this law and the Fair Labor Standards Act, the bill (i.e., the committee amendment) restores the law to the present provisions of the Motor Carrier Act.' S.Rep. No. 433, 76th Cong., 1st Sess., p. 24. The bill passed the Senate. The House bill left § 204(a)(1), (2) and (3) of the present act unchanged. 84 Cong.Rec. 9456; H.R.Rep. No. 1217, 76th Cong., 1st Sess., 84 Cong.Rec. 10125.
While the bills were in conference the Chairman of the Legislative Committee of the Interstate Commerce Commission sent to the chairmen of the House and Senate Committees a letter on the House and Senate bills which suggested that both bills explicitly limit the Commission's jurisdiction over qualifications and hours of service of employees to considerations of safety. The letter stated: 'While the subsection (in the Senate bill) follows the existing language of section 204 * * *, a controversy has arisen in regard to the meaning of that language. * * * This controversy has now reached the Supreme Court. We think it may well be determined in this new legislation. In our judgment, if restrictions on hours of labor for social and economic reasons are to be imposed, this should be done by Congress, and no duty in that respect should be delegated to the Commission, which has no experience which particularly fits it for the performance of such a duty. Our authority over qualifications and hours of service of employees should, therefore, be confined to the needs of safety in operation. * * *' On April 26, 1940, the House conferees reported to the House a compromise bill agreed on by the conference committee which left § 204(a)(1), (2), and (3) of the Motor Carrier Act unamended. 86 Cong.Rec. 7847; H.R.Rep. No. 2016, 76th Cong., 3d Sess. On May 9, 1940, the House because of disagreement with sections of this bill not here relevant voted to recommit the bill to the conference committee. 86 Cong.Rec. 8986.
F. Clark HUFFMAN, et al., Petitioners v. WESTERN NUCLEAR, INC., et al.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Petitioner v. COMMERCIAL OFFICE PRODUCTS COMPANY.
UNITED AIR LINES, INC., Petitioner, v. Harris S. McMANN.
TERRITORY OF ALASKA, Petitioner, v. AMERICAN CAN COMPANY, Fidalgo Island Packing Company, Libby, McNeill & Libby, Inc., et al.
John P. PETERS, Petitioner, v. Oveta Culp HOBBY et al.
UNITED STATES et al. v. N. E. ROSENBLUM TRUCK LINES, Inc. SAME v. MARGOLIES.
HARRISON v. NORTHERN TRUST CO. et al.
NOBLE v. UNITED STATES et al.
SOUTHLAND GASOLINE CO. v. BAYLEY et al. RICHARDSON v. JAMES GIBBONS CO.
COLGATE-PALMOLIVE-PEET CO. v. UNITED STATES (two cases).
Warren W. PERRY, Petitioner, v. COMMERCE LOAN COMPANY.
IDAHO SHEET METAL WORKS, INC., Petitioner, v. W. Willard WIRTZ, Secretary of Labor. W. Willard WIRTZ, Secretary of Labor, Petitioner, v. STEEPLETON GENERAL TIRE COMPANY, Inc., et al.
SCHWABACHER et al. v. UNITED STATES et al.
LEVINSON v. SPECTOR MOTOR SERVICE.
W. A. SHIELDS, Petitioner, v. ATLANTIC COAST LINE RAILROAD COMPANY.
COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. STATE of Louis STERNBERGER, The Chase National Bank of the City of New York, Executor.
BINDCZYCK v. FINUCANE et al.
Danny L. GRIFFIN, Petitioner v. OCEANIC CONTRACTORS, INC.
NATIONAL LABOR RELATIONS BOARD v. HEARST PUBLICATIONS, Inc. (two cases). SAME v. STOCKHOLDERS PUB. CO., Inc. SAME v. TIMES-MIRROR CO.
CHATWIN v. UNITED STATES. ZITTING v. SAME. CHRISTENSEN v. SAME.
BOUTELL et al. v. WALLING, Administrator of Wage and Hour Division, U.S. Dept. of Labor.
INTERSTATE COMMERCE COMMISSION, Appellant, v. J-T TRANSPORT COMPANY, Inc., et al. U.S.A.C. TRANSPORT, INC., et al., Appellant, v. J-T TRANSPORT COMPANY, Inc., et al.


California Civil Code §3339, Government Code §7285, Labor Code §1171.5.
What are the remedies if a present or former employee exercises such rights? I would start by bringing suit under the general anti-retaliation, whistleblower protection laws of California Labor Code §§98.6, 1102.5, and the specific anti-retaliation, whistleblower protection laws of California Labor Code §§244 and 1019.
I would also bring a common law cause of action for retaliatory discharge/demotion under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167; Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654; Turner v. Anheuser Busch, Inc. (1994) 7 Cal.4th 1238; and Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454; and Garcia v. Rockwell Int’l Corp. (1986) 187 Cal.App.3d 1556.
Also, “Any person who believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner may file a complaint with the division within six months after the occurrence of the violation.
“In the enforcement of this section, there is no requirement that an individual exhaust administrative remedies or procedures.” Cal. Labor Code §98.7.
Labor Code §98.6 and 1102.5 are general employee whistleblower statutes. These statutes prohibit employers from retaliating against employees for exercising their rights under the law including complaining about what the employee reasonably believes is a violation of the law.
A tortious termination (Tameny claim) subjects the employer to, ‘liability for compensatory and punitive damages under normal tort principles.’ ” Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1101.
Under Cal. Labor Code §1019(d)(1), “An employee or other person who is the subject of an unfair immigration-related practice prohibited by this section, or a representative of that employee or person, may bring a civil action for equitable relief and any damages or penalties, in accordance with this section.
Under Labor Code §1019(d)(2), the Court may order the appropriate government agencies to suspend up to 90 days all licenses that are held by the violating party.
I would also seek punitive damages against the employer and any other person violating such statutory rights. After all, it is a crime under §1103 to violate such whistleblower rights under §1102.5.