§ 6-103.1 Enforcement by Health Officer.
§ 6-103.2 General responsibility for noting violations.
§ 6-103.3 Violations relating to buildings.
§ 6-103.4 Prosecution by Health Officer.
§ 6-103.5 Notice of code violation.
§ 6-103.6 Content of notice.
§ 6-103.7 Service of notice.
§ 6-103.8 Hearing and appeal procedure.
Abatement of public nuisances: see 3rd Class Code § 2320 (53 P.S. § 37320 et seq.).
Board regulations effective as ordinances: see 3rd Class Code § 2309 (53 P.S. § 37309).
Duties of Health Officer: see 3rd Class Code § 2306 (53 P.S. § 37306).
It shall be the duty of the Health Officer or designee to enforce the provisions of this title, rules and regulations adopted in accordance therewith, other ordinances of the City relating to health and sanitation, and statutes of the Commonwealth of Pennsylvania relating to health and sanitation wherein enforcement thereof is given or delegated to local municipalities.
While the Health Officer shall be primarily responsible for the enforcement of health matters assigned to the Health Officer, he/she shall also be responsible for noting violations of any ordinance or rule and regulation and informing appropriate City officials of such violations.
With respect to matters relating to the conditions of dwellings, buildings or land or to minimum standards for facilities, fixtures and equipment, the Health Officer shall issue written notice to the person responsible for compliance of any alleged violation in a manner provided by Chapter 8-107 or this Public Health Code, as may be applicable, and shall note noncompliance with any notice given to the person responsible for compliance.
With respect to matters relating to the conduct or actions of persons in violation of this Public Health Code, all officers and inspectors of the Department of Building and Housing Development shall refer the same to the Health Officer for prosecution.
Whenever the Health Officer determines that there has been a violation of any provision of this Public Health Code or any other applicable ordinance or rule and regulation requiring notice of compliance to be given, he/she shall give notice of such violation to the person responsible for compliance.
Any such notice shall be in writing, shall include a statement of the reasons for its issuance, shall specify a reasonable time (not less than five nor more than 90 days) for performance of any act required and shall inform the person responsible for compliance of the right to a hearing.
All such notices shall be served upon the person responsible by handing a copy to such person or to an adult member of his or her household at his or her place of residence or by sending a copy to such person's last known address or by posting a copy in a conspicuous place in or about the dwelling, building or land affected by such notice.
Editor's Note: Former § 6-103.8, Hearings, which immediately followed this section, was repealed 6-5-2007 by Ord. No. 3-2007.
Any person aggrieved by an order of the Codes Administrator or the Health Officer or designee in the form of a written notice to comply with the Public Health Code of the City may file with the Codes Administrator a written request for a hearing before the Board of Health within 15 days after service of such written notice was effectuated. Where the Codes Administrator or designee determines the violation poses an immediate threat to life or property, the Codes Administrator or designee may limit the time to file an appeal with the Board of Health to not less than three days after service of written notice was effectuated. The written request for a hearing shall be filed on a form which shall be provided by the Codes Administrator or designee and shall be signed by the person so aggrieved.
Within 60 days from the date on which the written request for a hearing was filed, the Board shall schedule a hearing to consider any and all matters relative thereto. The hearing shall be open to the public. The person requesting the hearing shall be sent notice at least 15 days prior to the date on which the hearing is scheduled. Notice to such person shall be given by first-class mail or certified mail, return receipt requested, directed to the last known address of such person.
Whenever a clearly and factually stated written request for a hearing before the Board of Health shall be presented to the Codes Administrator, he/she shall forthwith arrange for convening the Board before otherwise proceeding to enforce such notice, providing that such request for a hearing before the Board is accompanied by a filing fee in the amount of $200 payable to the City Treasurer. However, indigent persons desirous of an appeal may seek to have the appeals fee of $200 waived by filing a petition in forma pauperis. The Administrator shall fix a time for the hearing on the alleged violation(s) as set forth in such notice of compliance.
At the time fixed for such hearing, the Board shall take evidence as may be presented by representatives of the City, by the person or persons who requested the hearing, and by any other persons who can offer evidence relevant to the issues involved.
The cost of abatement of the condition in violation is unduly prohibitive.
The hearing shall be conducted by the Board of Health or the Chairperson of the Board acting as hearing examiner, and the Board shall render a decision and order in writing within 30 days of the hearing, which decision shall be supported by written findings of fact. The person requesting the hearing and the City may agree to waive the requirement of written findings of fact. Such waiver shall be in writing signed by a duly authorized representative of the City and the person who requested the hearing.
The Chairperson of the Board or hearing examiner shall have the power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of documents and papers, including witnesses and documents requested by the person requesting the hearing.
The person requesting the hearing shall have the right to be represented by counsel and shall be afforded the opportunity to respond and present evidence and cross-examine witnesses.
The Board shall keep a record of the proceedings by sound recording, and a transcript of the proceedings and copies of graphic or written material received in evidence shall be made available to the person who requested the hearing at cost.
Within the limits of funds appropriated by Council, the Board may employ or contract for clerical services and may receive compensation for performance of their duties, as may be fixed by Council.
Any appeal from the decision and order of the Board shall be in accordance with the Local Agency Law, Subchapter B of Chapter 5 and Subchapter B of Chapter 7 of Act of April 28, 1978, P.L. 202, as amended, 2 Pa.C.S.A. §§ 105, 551 to 555 and 751 to 754.
See the general code penalty, Chapter 1-301.
In addition to the penalties prescribed for violations of this Public Health Code generally, violations of any provision of this Title may be abated as a public nuisance in the manner provided by law.
Upon conviction for a violation of any provision of this Title, in addition to any fines, fees or penalties prescribed by this Title, an additional neighborhood mitigation penalty shall be levied in the amount of $25. All such penalties levied and collected by any division of the Unified Judicial System existing under Section 1 of Article V of the Constitution of Pennsylvania and 42 Pa.C.S.A. § 301 shall be remitted to the City for deposit into the Neighborhood Mitigation Fund for the purpose of funding mitigation exercises performed by the City on private properties, including but not limited to demolitions, cleanups, clean and seals and light repairs. If the fine is paid on installments, the proportionate amount of the neighborhood mitigation penalty shall be remitted on each installment.
Editor's Note: Subsection A of this section derives from Ord. No. 4-1995; Subsection B derives from Ord. No. 22-1985.


text:
Child endangerment, also known as “child abuse” is charged under California Penal Code 273a(a) and Penal Code 273a(b) making it unlawful to willfully places or permits a child to suffer, or inflicts unjustifiable physical pain or mental suffering or places the child in a situation where their health is endangered. In other words, you could be charged with this offense by active or passive conduct – i.e., child abuse by direct assault on the child or by endangering the child by extreme neglect.
Depending on the circumstances, you could be charged with either a felony or misdemeanor. The critical issue is whether the child was placed in a situation or condition “likely to produce great bodily harm or death”. If the government alleges that scenario then you could be charged with a felony. However, if the situation or condition is not likely to produce great bodily injury or death, then you will face misdemeanor allegations. In either instance, the court will impose a protective order barring you from contacting the child and child protective services may take custody. You will not only find yourself battling criminal charges but additionally litigating to retain custody of the child. This charge is not only applicable to parents but also caretakers as well.
The government normally charges you under this offense with respect to situations including driving while intoxicated with a minor child in the car, making a drug transaction or consuming drugs in the child’s presence or immediate vicinity, physically punishing your child, or getting in a physical altercation with a co-tenant subjecting the child to a dangerous situation. However, just because you’ve been arrested or charged with child abuse does not mean you’re legally guilty of this offense. The laws in regards to child abuse are imprecise leaving situations and evidence to be exaggerated or perhaps misconstrued against you.
What Must the Government Prove for PC 273a?
You inflicted pain or caused the child to be placed in a condition likely to produce great bodily injury (if applicable).
It’s important to note that if you’re being accused of direct infliction of physical pain or mental suffering, then the above element of “criminal negligence” is not applicable.
Great Bodily Harm or Death: The board definition of great bodily injury means significant physical injury beyond moderate or minor harm. Moreover, it is not only measured on individual injury or act but can be violated by your course of conduct. Examples of great bodily injury include broken bones, burns, or concussions. As noted however, a combination of acts such as bruising, cuts, contusions and whipping injuries may suffice to show GBI. However, if the child only suffered minor harm, then you’re not guilty under this statute – e.g., small moderate bruising. But note, this charge does not require you to actually inflict great bodily harm, only that you placed the child in a situation where great bodily harm is likely to occur. This is measured on the totality of the circumstances.
Ordinary Negligence: In the absence of purposefulness, the government may allege then the quantum of negligence required is criminal. Penal Code 273a requires a person to act with criminal negligence when the way “he or she acts is so different from the way an ordinary careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.” In other words, the application involved is the objective test and whether a reasonable person in your position would have been aware of the risk involved. Therefore, if the child was harm or was placed in a situation where injury may occur, then the government must show that you acted with gross, reckless, or culpable departure from the standard of due care. If your conduct does not rise to the level of criminal negligence, rather appropriately proven to be that of ordinary negligence, then it will not suffice to withstand the charge(s) against you.
Willful: If you directly inflicted injury upon the minor, then the government must prove you acted willfully harboring general intent. The term willful is interpreted to describe conduct as being purposeful or with knowledge of consequences. The term does not mean that you intended to cause harm but only that you intended to do the act in which caused harm. Therefore, if you accidentally inflicted injury or injury occurred upon an occurrence of misfortune, then you lacked the required showing of willfulness and thus you’re not guilty of this crime.
Reasonable Discipline: The law permits a parent the right to discipline a child and may impose reasonable punishment, including reasonable corporal punishment. This defense attacks the element of “unjustifiable physical or mental suffering” in the government’s case against you. The amount of corporal punishment allows the expansive consideration taking into account the size and age of the child and any other circumstance that may affect the reasonableness of the punishment. For instance, a parent may spank a child who has misbehaved without being liable under this statute. Therefore, your act of striking a child could be within your lawful scope of parental authority and serve as a viable defense in your case.
False Accusations: The reasons for falsely accusing you of child endangerment can be substantial. There are a number of reasons for seeking to falsely accuse you of a crime against a child. For instance, your former spouse are in a custody battle in family law court and your spouse fabricates an event that leads to the involvement of child protective services. As a result, your spouse plays the upper hand in family court by convincing the judge that you’re a danger to the safety of the children. In the unfortunately instance you’re being false accused, an extensive investigation must be conducted. This shall include obtaining all correspondence between you and your accuser – i.e., text messages, facebook messages, emails, letters, and all court documents. It’s important to exposure all your accuser’s motivation to lie in an effort to discredit her accusations.
What is the Punishment for Child Endangerment?
PC 273a(a) is a wobbler offense which means the government can charge you with a felony or misdemeanor. This conviction is applicable when you inflicted or placed the child in a situation likely to cause great bodily injury. A misdemeanor conviction carries up to 1 year in the county jail as explained above. A felony conviction carries 2, 4, or 6 years in state prison. In the event the child suffers great bodily injury, the government will allege an enhancement under PC 12022.7 carrying up to 6 additional years in state prison. This enhancement is applicable to felonies and not misdemeanors.
PC 273a(b) is a misdemeanor offense carrying up to 1 year in the county jail. This conviction is applicable when the child was not placed in a situation likely to cause great bodily injury. The court normally imposes a period of probation and requires you to complete counseling, community service, and impose a protective order against contacting the child.
EXAMPLE 1: People v. Shockley (1978) 79 Cal.App.3d 669 deals with malnutrition and dehydration of a child holding that a defendant’s act of malnutrition on a child coupled with dehydration was an integral part of murder. In other words, depending on your actions, you could be charged with murder if your child dies as a result of malnutrition or dehydration.
EXAMPLE 2: In People v. Rippberger (1991) 231 Cal.App.3d 1667, the appellate court upheld the conviction of two parents for felony child abuse on the basis of withholding medical attention and treatment from an infant who died of bacterial meningitis. During her illness, her parents only provided prayer treatment from a Christian Scientist. The government proffered treatment from two medical doctors who concluded the illness was treatable with antibiotics, and without treatment, the infant died as a result. The appellate court’s rational for upholding the conviction of the two parents under a criminal negligence theory is that the parents elected spiritual assistance in lieu of medical care during her fatal illness and continued to do so despite her steady deterioration in her physical condition who could have been treated by standard medical treatment.
EXAMPLE 4: In People v. Burton (2006) 143 Cal.App.4th 447, the appellate court upheld a conviction for misdemeanor child endangerment after the defendant engaged in serious domestic violence against the child’s mother while aware that their child was at the scene. Even through the child did not see the attack and the defendant had no intention to directly inflict suffering on his child, the fact that the defendant engaged in serious domestic violence against the mother while aware the child was at the scene and later saw the mother’s injuries, was support to support the conviction.
If you’ve been arrested, charged, or are under investigation for child abuse under PC 273a, then contact an experienced Orange County criminal defense attorney at the Law Offices of John D. Rogers for a free confidential consultation concerning your rights and defenses.
 California Penal Code 273a(a): Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.
 California Penal Code 273a(b): Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.
 See People v. Sargent (1999) 19 Cal.4th 1206.
 See People v. Vargas (1988) 204 Cal.App.3d 1455.
 However, this was disagreed by People v. Benway (1985) 164 Cal.App.3d 505.
 See In re Rocco M (1991) 1 Cal.App.4th 814.

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Is the Presumption of Validity Dead in Substitute Claims Issued as a Result of Motions to Amend After PTAB Proceedings?
In a White Paper published by Askeladden LLC’s Patent Quality Initiative, we analyze the proper role of a the presumption of validity for claims that have been amended in post-issuance proceedings like Inter Partes Review (IPR) proceedings under the Smith-Leahy American Invents Act (AIA). A full copy of our paper is available here. The following is an excerpt discussing our thesis and conclusion that the presumption of validity should not apply to substitute claims, since such claims have never been fully examined and thus not entitled to the presumption that they were.
Under Section 282 of the Patent Act of 1952, “[a] patent shall be presumed valid” and “[t]he burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.” 35 U.S.C. § 282 (2018). As Judge Rich, one of the authors of the 1952 Patent Act explained, the rationale for this presumption is based on “the basic proposition that a government agency such as the [PTO] was presumed to do its job.” American Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1359 (Fed. Cir. 1984). This presumption makes sense in the context of the statutory scheme of the 1952 Act which first codified this presumption, where a patent application follows an “inquisitorial process between patent owner and examiner.” See SAS Institute, Inc. v. Iancu, 138 S. Ct. 1348, 1353 (2018). Thus, the examiner, acting on behalf of the government, can be presumed to have performed his or her job if and when a patent claims issue.
However, in 2011, under the Smith-Leahy American Invents Act (“AIA”), unlike the original prosecution, or even traditional ex parte reexamination, “the petitioner is master of its complaint and normally entitled to judgment on all of the claims it raises, not just those the decisionmaker might wish to address.” Id. at 1355 ; see id. at 1356 (“[T]he petitioner’s petition, not the Director’s discretion, is supposed to guide the life of the [inter partes review] litigation.”). To the extent that all the PTAB is performing is “a second look at an earlier administrative grant of a patent,” Oil States Energy Servs., LLC v. Greene’s Energy Grp., 138 S. Ct. 1365, 1374 (2018) (quoting Cuozzo Speed Techn. LLC v. Lee, 136 S. Ct. 2131, 2144 (2016)), continuing to apply this presumption to claims that survive a PTAB proceeding (like an inter partes review) continues to make sense. After all, the government did its job in the first instance in the original inquisitorial examination, and a third party challenger was unable to demonstrate error.
However, since the Federal Circuit’s decision in Aqua Products, Inc. v. Matal confirmed that the burden of persuasion on a the patentability of amended claims in a motion to amend in an inter partes review proceeding (and presumably other post issuance PTAB proceedings) is placed on the petitioner, the theoretical rationale for Section 282(a)’s presumption of validity is no longer present for such amended claims. 872 F.3d 1290 (Fed. Cir. 2017) (en banc). In particular, there is no government agency that is tasked with performing the inquisitorial examination that gave rise to the original presumption. How can there be a presumption that the government agent charged with examining the patent claims did his or her job, when there is no such person assigned to perform that job?
In Part I of our paper, we examine the historical roots of Section 282(a) and the presumption of validity and its rationale and applicability to claims that issued through original prosecution and traditional inquisitorial reexamination proceedings. In Part II, we examine how previously issued claims and amended claims presented in motions to amend in post issuance proceedings before the PTAB after Aqua Products are addressed and the procedures and duties of the relative participants with respect to testing each such claim. In Part III, we analyze the proper role of the presumption of validity for claims that issue in post issuance proceedings, both previously issued claims and amended claims.
With respect to amended claims in post issuance proceeding, we explain our conclusion as follows.
The Federal Circuit previously determined that the “presumption [of validity] applies to all issued claims,” but “[t]hat does not mean, however, that [a court] should not consider the prosecution history” when there are “quirks in the prosecution history.” Sciele Pharma., Inc. v. Lupin Ltd., 684 F.3d 1253, 1261 (Fed. Cir. 2012). In the case of substitute claims that issue as a result of motions to amend during post-issuance proceedings, there certainly are “quirks in the prosecution history” as there is no prosecution history at all. The fact that an examiner did not engage in the typical inquisitorial examination process or previously consider prior art references could impact the weight that a court or jury assigns to the evidence. “For example, it could be reasonable to give more weight to new arguments or references that were not explicitly considered by the PTO when determining whether a defendant met its burden of providing clear and convincing evidence of invalidity.” Id. at 1260.
Unlike the initial prosecution process, there is no government agent charged with examining substitute patent claims that issue as a result of motions to amend during post-issuance proceedings. Under the logic of Sciele, it would be reasonable in such instances to give more weight to all arguments and references as they were never considered by the PTO. This falls in line with the reasoning of the Supreme Court in Microsoft Corp. v. i4i Ltd. Partnership, 131 S.Ct. 2238 (2011). Specifically, Justice Sotomayor pointed out that there is “[n]othing in [Section] 282’s text suggests that Congress meant to depart from that understanding to enact a standard of proof that would rise and fall with the facts of each case.” Microsoft, 131 S. Ct. at 2250. Further, the Court indicated that in cases where evidence was never considered by the PTO, the cases should be read to reflect the “commonsense principle” that “if the PTO did not have all material facts before it, its considered judgment may lose significant force.” Id. at 2251. Thus, the “challenger’s burden to persuade the jury of its invalidity defense by clear and convincing evidence may be easier to sustain.” Id.
While overcoming Section 282(a)’s presumption of validity should be easier in theory with respect to substitute claims, as a practical matter, it likely will still prove to be difficult. Faced with instructions that all patent claims are presumed valid and that invalidity must be proven by clear and convincing evidence, and an understanding that the Patent Office already took a second look at an asserted patent and issued new substitute claims, a jury will likely have difficulty understanding a further instruction that evidence not presented during an inter partes review proceeding should be weighed more heavily, much less ultimately finding a substitute claim invalid when sufficient evidence has been presented.
Nonetheless, without a full inquisitorial approach, claims amended in an inter partes review proceeding or other post-issuance challenge are likely to be subject to a greater scope of challenges, since the foundation for the presumption of validity that otherwise exists is no longer present. Thus, as Justice Sotomayor explained, challenges on grants not already raised, “may be easier to sustain.” Microsoft, 131 S. Ct. at 2251.
A presumption of validity that is based on the assumption that government officials are presumed to have done their job is reasonable when a government office has been so tasked. However, in the context of amended claims coming out of an inter partes review, the rationale falls apart. No presumption should remain for such claims, at least as long as the burden in an inter partes review rests solely upon a petitioner with respect to substitute claims offered by amendment.
Charles R. Macedo is a Partner at Amster, Rothstein & Ebenstein LLP, where he advises and litigates in all areas of intellectual property law, including patent, trademark and copyright law, with a special emphasis in complex litigation. He also assists clients in obtaining, maintaining and enforcing patent and trademark portfolios. He has successfully recovered domain names registered to others using clients’ trademarks.
Mr. Macedo is also the author of the book, The Corporate Insider’s Guide to U.S. Patent Practice, originally published by Oxford University Press.
For more information or to contact Mr. Macedo, please visit his Firm Profile Page.
Christopher Lisiewski is a Law Clerk at Amster, Rothstein & Ebenstein LLP and recent graduate of Fordham University School of Law. At Amster, Rothstein & Ebenstein LLP, he has worked in all areas of intellectual property law, including patents, trademarks, copyrights, and unfair competition. He has assisted clients in obtaining, maintaining, and enforcing their intellectual property portfolios.
Sean Reilly is General Counsel of Askeladden and Senior Vice President and Associate General Counsel of The Clearing House Payments Company, where he directs intellectual property issues. He is a registered patent attorney whose principal responsibilities include advising members of The Clearing House’s senior business team on vital cybersecurity, intellectual property and technology law issues and transactions. Mr. Reilly coordinates with industry executives and senior lawyers from the nation’s leading banks on technology law issues and initiatives of concern to the financial services industry. Before joining The Clearing House, Mr. Reilly was in private practice and worked at the United States Patent and Trademark Office as a patent examiner.
There are currently 13 Comments comments.
Nice theft trolling job done by Askeladden. Legally flawed, but when has that stopped anything by the efficient infringement lobby.
Quick point, the amendments in IPR necessarily are more narrow than the original grant. You can’t broaden claims. The original claims were fully examined and during an IPR, there was an attempt to use hindsight logic to combine multiple prior art references and an overly broad (BRI) interpretation of the claims to find the very edges of the patent grant may have been too broad (given the broader interpretation and more advantageous burdens of proof, compared to court). The amendments necessarily “shrink” the already vetted right in light of this outer-boundary attack, which is enabled due to the different standards and burden present in the IPRs instead of in court. Hence, the premise (the claims haven’t been examined) is flawed. Not only have they been examined fully (as original claims, prior to their scope being further diminished by amendment), but they have been size-adjusted so that even with overly expanded boundaries and burdens (differing between the PTAB and court). Even with an exhaustive hindsight based and highly funded attack (placing search depth well beyond what can reasonably be expected in general from the USPTO), the claims have once again been confirmed as valid (by moneyed interest typically against small underfunded entities, so that the legal “doubt” largely favors the funded petitioner with unlimited resources and the right to attack first (i.e., ambush the patent owner) after conducting deep research supported by an paid expert shill during an expedited process with limited discovery) . The presumption of validity should be STRONGER for amended claims, as is evident to any honest practitioner and as expressly noted during the AIA creation (which is why only narrowing amendments are permitted in IPRs).
Ongoing question to Askallen and the PQI (and a point to raise for anyone facing Askelladen in an IPR or Court) – How many paid employees do you have ? Is that number greater than zero. How about the PQI – still zero? Is there complete overlap of “unpaid” PQI employees/members and that of the Clearing House ?Who are the decision makers with regard to IPRs or briefs that Askelladen advocates ? Who pays for these efforts? Under the RPX RPI decision – do you have an even colorable claim of independence from the Clearing House and the underlying banks ? Who is the true real party of interest (RPI) paying the legal fees for your advocacy ? Sunlight is the best disinfectant.
Indeed, there are really two separate but related problems here: 1) we’re talking about claims that are *narrower* than those already vetted/granted, and 2) any said narrowing would’ve come about via a *preponderance* standard – a lower bar than the “clear and convincing” standard that the claims would’ve been entitled to *before* any IPR.
As a push back then, how many legal citations in the main article are objectively applied out of context of their original decisions and intended meanings?
The points made by BKB may then be seen as starting points, to which attempts to take case citations out of context are not only poor advocacy (if done in error), but may well rise to unethical advocacy (if knowingly being misconstrued).
That being said, there is a substantive point here in that claim amendments (even ones purported to be narrower than originally allowed claims) are NOT truly examined.
This is a point that I myself raised long ago (and perhaps was the first in the blogosphere to have raised that point).
One possible problem with such amendments comes from the fact that being “narrower” may not establish just what the proper boundary is.
At the institution decision point, the stick in the bundle of granted property rights of the existence and level of presumption of validity is removed. It no longer exists for the initial set of claims, much less for any amendments (narrower or otherwise).
As to examined veracity if any claim though, I remain wary.
Just because “narrower” does not cut it for me.
It is NOT the case that “narrower than a properly allowed claim” is what is forthcoming.
The problem here is the AIA itself. It is the AIA that takes sticks out of the bundle of property rights in the first instance. Once those sticks are taken (and no longer exist), the process should have included the necessary protocol for providing a same level of “sticks” to whatever is “republished” as a patent.
The AIA did not do that.
The pre-grant limit (from the claim) draws a line in the sand against a spectrum of possibilities. BKB wants that full spectrum of within the prior drawn line to be (automatically) considered to be “proper.” But any such notion inherently rests on that original line being drawn where it was drawn.
So there IS a problem with the AIA.
I do not think that the “proper” solution to that problem is the answer being advanced (which very much harkens to the Efficient Infringer mantras). The “proper” solution is to re-envision entirely the IPR mechanism.
This is even more reason why PTAB needs to be before issuance.
They cancel or invalidate claims and then the whole patent left is in flux – don’t know what my invention is, don’t know what it isn’t.
How can you even move forward in an art with prior art IP invalidated or with uncertain claim territory?
No one knows what standard to go beyond.
You are close, but I think that it is more subtle.
I look at it less of “don’t know what my invention is, don’t know what it isn’t.” since claims are still present and claims (per the words of Congress) dictate what the invention is or is not.
“What the claims are” remains as was previous.
“Are the claims valid” is what is up in the air.
You may be thinking that these two are synonymous, but they are not.
Additionally, moving forward is not “impacted” with prior art invalidated (setting aside the “uncertainty” that you associate with claims). Whether or not the items of prior art retain their validity (in view of OTHER prior art) does not change their ability to serve as prior art of themselves for yet new items.
As to your point as to “No one knows what standard to go beyond,” THIS does bring up perhaps an interesting way of looking at the situation.
Since (per Oil States), patents are merely a Public franchise property right, and the US Government is the Franchisor, then ANY action of the Franchisor putting an item back into circulation as a patent must inure to ALL of the rights of a patent, including both the presence and level of the presumption of validity.
This angle removes the strawman of making the petitioner TO BE the examiner, and re-places the onus on the PTAB, as it is the PTAB that has final say as to whether or not the petitioner has proven their case. Under this line of reasoning, it is STILL the USPTO that is “anointing” the item (here, the amended claims coming out of post grant reviews) AS being a patent.
If the claims aren’t valid or invalid then what is my INVENTION?
How does another inventor or entrepreneur know what they can or can’t infringe upon of my INVENTION?
I’m really tired of your (mis)interpretations of what everyone says.
You’re not king. Pipe down.
As is, you lose even the respect of trying to make a point as you want to cling to an improper understanding of patent law.
Maybe you should take a step away from responding when you feel your emotions are out of control.
As it is, I need not be “King” for my posts to be entirely correct (which they are).
If you want to respond on point, and point out an actual error, then please, I welcome a dialogue. If you just want to say “pipe down,” even as I am correct, then you may — and with all due respect — bite me.
Excuse me. You quoted something I didn’t write.
Learn to read for comprehension and understanding.
If claims are in fuzzy la la land of not valid or invalid (per this decision where allowed claims become narrowed claims that aren’t vetted/allowed) then what is the invention?
Is it not true that an invention that is patented is given rights ( franchise or property) that are based on allowed claims?
Well the allowed claims were invalidated and narrowed to not-examined thus allowed claims…which is why this article is up.
If you don’t know whether a patents claims are valid or invalid then tell me, Anon, what is the invention?
So you’re telling me patent applications declare for everyone what the invention is?
So…The government has already blessed apps with rights just because there are claims?
You don’t understand patent law.
Disclosure of issued patents are nearly prior art against the patents invalidated-amended claims because it was issued. Like filing a continuation with new claims and being barred because the chain was broken due to issuance of a parent app or something.
I just drew the parallel between changing claims without ptab and changing claims with ptab.
If I change my patent claims in a continuation and the parent is issued before that then I’m not allowed. Why?
The same reason the ptab is creating amended-invalidated claim mess.
Let me break it down for you in my emotional state.
A patent with invalid claims IS NOT a patented invention.
A patent with valid claims IS a patented invention.
What is a patent with neither valid nor invalid claims – the claims are in limbo?
Please let me know, dear Anon.
Answer that for me and I’ll stop making you look bad.
I mean this probably helps the author’s arguments for invalidated-amended claims not being valid.
BUT, I really think it’s just more evidence that the PTAB is a major F-up…because it’s in AIA that they ARE VALID.
Think of divisionals and continuations.
If a parent patent issues then it bars the amendments of claims that weren’t co-pending.
An invalidated-amended claim is basically a failed continuation or divisional.
The disclosure stays the same – NO NEW MATTER ALLOWED.
But it’s also not quite a reissue patent either. But that would be in favor of the claims being valid unlike this article argues.
One could claim the “fee” is PTAB defense costs.
And that PTAB is to show “defective” patents for their defectiveness.
So either PTAB invalid-amended claims are more like reissue with 3rd party protest or continuation/divisional with broken chain.
The only reason PTAB reissued patent claims are more likely to be invalidated is that there’s no estoppel.
“Excuse me. You quoted something I didn’t write.
Right back at you – learn the meaning of ipsis verbis, and then realize that what you did state was simply not correct.
To wit: Your inventions IS your claims.
The invention is STILL your claims.
That is what your claims are.
No. The narrowed claims ARE not examined – your use of “thus” is the point of the problem.
Maybe you should take your own advice and “ Learn to read for comprehension and understanding” what I wrote.
2)	Whether or not “known to be valid,” is NOT the point in what I was discussing. You should recognize that courts traditionally use the phrase “not found invalid” instead of “found valid” for a reason.
Your admonition of “You don’t understand patent law.
Retake the bar.” is beyond baseless. That you think otherwise is why your posts here are such a joke.
It appears that you want to insert things into the conversation that are not there. Maybe you might want to clarify (if only for yourself) what are the facts at hand (and to which my comments are directed).
You might find that you are getting upset over things that exist only in your mind.
What you think that you did and what you actually did are two very different things. What you did was jump half-a$$ed into a conversation.
What are you talking about? Again, you appear to be holding a conversation while keeping elements of the conversation all to yourself in your own head.
I explained the mess above. As I noted previously, if you have a reply actually on reply to something I stated, please do more than merely be upset and address the point that I have provided.
“Let me break it down for you in my emotional state.
Except for the fact that the only one here showing a lack of reading comprehension is you (as well as a lack of understanding patent law, which is WHY you have a lack of reading comprehension in regards to my post. By all means feel free to show explicitly in my post the error of law.
“A patent with invalid claims IS NOT a patented invention.
Validity is validity. Invention (valid or not) IS the claims. You may have an invalid invention.
Unexamined claims are just not the same thing as invalidated claims. Claims are only invalid upon being adjudicated so. Adjudication is not the same as examination (in order to arrive at grant). The PTAB in the post grant review mechanisms are expressly NOT acting as examiners. Maybe you should understand the topic that animates you so….
The article discussing presumption is NOT the same as the article stating the claims have been invalidated.
This again is an item of YOUR not understanding patent law.
You are way too full of yourself – as the only one here looking bad is you.
Again, validity and examination are two different concepts.
Yes, the AIA mucks things up. The problem (as I have noted) is that the AIA does NOT provide for examination of replacements claims in a post grant review situation.
No. This is expressly wrong. All that you need for amendments in an active application is for the chain to have been established prior to grant of the parent. Once the parent issues, you are NOT barred from making amendments after that point in a live child.
Your view on this is odd and who knows where it is coming from. Why are you so intent on conflating continuation/divisional practice with post grant review?
Why would you want to conflate yet another different thing?


text:
In television series or movies, police custodial investigation scenes usually depict an arrested person, handcuffed or detained in a small holding room, while being questioned (sometimes even tortured or threatened) by police officers into admitting the commission of a crime.
First: What is custodial investigation?
Second: What are the rights guaranteed to a person under custodial investigation?
Third: What are the effects of, and penalties for, violation of these rights?
Fourth: When do these rights cease to be available?
FIRST: What is Police Custodial Investigation?
Our Supreme Court consistently defines custodial investigation as the stage where an investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police or other law enforcement agents who carry out a process of interrogation that lends itself to elicit incriminating statements. It involves questioning initiated by law enforcement officers after a person has been taken into custody or deprived of freedom of action in any significant way.
However, Republic Act No. 7438, or the Act Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation, has expanded the definition of custodial investigation. Specifically, the law provides that said investigation shall include the practice of issuing an invitation to a person who is investigated in connection with an offense he is suspected to have committed.
Given this, it is incorrect to conclude that custodial investigation is always the consequence of an arrest. Someone can be considered to be under custodial investigation when invited for questioning by law enforcement officers, even though the person has not been formally arrested.
After knowing what’s custodial investigation, the next crucial matter to discuss is the rights of persons subjected thereto.
a. The right to remain silent – A person under custodial investigation has the right to refuse answering any question. If he indeed refuses, this may not be used against him.
b. The right to competent and independent counsel, preferably of his own choice. If the person cannot afford services of counsel, he must be provided with one – In People v. Rapeza (G.R. No. 169431), the Supreme Court held that the purpose of providing counsel to a person under custodial investigation is to curb the police-state practice of extracting a confession that leads suspects to make self-incriminating statements. In order to comply with the constitutional mandate, there should be meaningful communication to, and understanding of rights by the suspect, as opposed to a routine, peremptory and meaningless recital thereof.
Not only does a person under custodial investigation have the right to counsel, but the provision states that said counsel must be an independent and competent one, preferably of his own choice. Jurisprudence explains that the lawyer called to be present during the investigation should be as far as reasonably possible the choice of the individual undergoing questioning. If the lawyer were one furnished in the person’s behalf, he should be present and able to advise and assist his client from the time the latter answers the first question asked by the investigating officer until the signing of the extrajudicial confession, if any. The lawyer should ascertain that the confession is made voluntarily and the person under investigation fully understands the nature and consequences of his confession in relation to his constitutional rights.
c. The right to be informed of such rights – In affording this right to a person under custodial investigation, it is not sufficient that the investigating officer reads out the rights, or merely repeats what is stated in the constitutional provision. The officer is duty-bound to also explain the effects of these rights and ensure the person’s understanding thereof, in a language known to and understood by him.
These three rights, widely known as the “Miranda rights”, were adopted by Philippine jurisprudence and later on included in the drafting of the 1987 Philippine Constitution, following the 1966 decision of the United States Supreme Court in the landmark case of Miranda v. Arizona (384 U.S. 436). Here, the defendants made confessions or admissions without any evidence of them being apprised of their constitutional rights during the interrogation process. The US Supreme Court held that no statements stemming from questioning initiated by law enforcement officers may be used by the prosecution, unless it demonstrates the use of procedural safeguards effective to secure the constitutional rights of a person under custodial interrogation.
These rights may not be waived unless made in writing and in the presence and assistance of counsel.
But note that not all types of investigatory situations are classified as custodial investigations where these rights may be invoked.
In People v. Gamboa (G.R. No. 91374), the Supreme Court held that subjection to paraffin test does not require that the right to have competent and independent counsel be afforded as this is necessary only in testimonial compulsions, not when it is the body of the accused which is proposed to be examined. Another example would be People v. Rueras (G.R. 174471), where the Supreme Court reiterated the view that police lineups are not part of custodial investigation; therefore, the right to counsel cannot be invoked at this stage.
Article III, Section 12 of the Constitution further provides that no torture, violence threat, intimidation, or any other means which vitiate the freewill shall be used against a person under investigation for the commission of an offense. It further states that the use of secret detention places, solitary, incommunicado or other similar forms of detention are prohibited.
In addition to the constitutional rights, Republic Act No. 7438 provides that a person under custodial investigation shall be allowed visits by or conferences with any member of his immediate family (spouse, fiancé or fiancée, parent or child, sibling, grandparent or grandchild, aunt or uncle, niece or nephew, guardian or ward), or by counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights, or by any international non-governmental organization duly accredited by the Office of the President.
THIRD: What are the Effects of, and Sanctions for, Violation of these Rights?
Article III, Section 12(3) of the Constitution states that any confession or admission in violation of the above rights shall be inadmissible in evidence. This is called the exclusionary rule. A confession or admission should be given voluntarily, free from any suspicious circumstances tending to cast doubt upon the integrity thereof. Otherwise, the same cannot be used as evidence in any proceeding against the source of confession or admission.
Confessions or admissions covered by this provision need not be explicit, as long as they are part of evidence communicative in nature. In People v. Jungco (G.R. No. 78531), the Supreme Court applied this rule to participation of the accused in a re-enactment of the crime scene. In People v. Enriquez (G.R. No. 90738), the High Court held that the marijuana cigarettes where the accused wrote his name without the assistance of counsel is inadmissible as evidence.
If the constitutional rights of a person under custodial investigation are violated, there are corresponding penal and civil sanctions, as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. These sanctions are provided for in different statutes, i.e., civil sanctions, in the form of damages, covered by Article 32 of the New Civil Code, and penal sanctions covered by the penal clause of Republic Act No. 7438, where a fine, penalty, or both, may be imposed upon an erring officer.
Custodial investigation does not include quasi-judicial or judicial investigations conducted by the fiscal or the judge. Thus, in People v. Ayson (G.R. No. 85215), Justice Andres Narvasa discussed that the rights of a person under custodial interrogation do not apply or extend to persons under preliminary investigation, or those already charged in court for a crime.
Having said all these, you might be thinking that custodial investigation is probably (read: definitely) not a situation you would imagine or choose yourself to be in.
However, preparedness is always key.

matches: v. v. v. v. v. v. v.


The Missouri House of Representatives approved a bill providing amnesty from assessment or payment of all penalties, additions to tax, and interest on delinquencies with respect to unpaid Missouri income taxes and sales and use taxes due on or before December 31, 2010.
A taxpayer must apply for amnesty, file a tax return for each tax period for which amnesty is requested, pay the unpaid taxes in full from January 1, 2012, to February 29, 2012, and agree to comply with state tax laws for the next eight years from the date of the amnesty agreement.
The amnesty would apply regardless of whether the taxes were previously assessed, except for penalties, additions to tax, and interest paid before January 1, 2012. The amnesty would not extend to any taxpayer who at the time of payment is a party to any criminal investigation or to any civil or criminal litigation pending in any U.S. or Missouri court for nonpayment, delinquency, or fraud relating to any tax imposed by the state.
If a taxpayer fails to comply with the state tax laws at any time during 8 years following the date of the agreement, all penalties, additions to tax, and interest that were waived under the agreement would become due and owing immediately.
A taxpayer’s elects to participate in the amnesty program is an express and absolute relinquishment of all administrative and judicial rights of appeal. No tax payment received under the amnesty program would be eligible for refund or credit.
H.B. 2a, as passed by the Missouri House of Representatives, First Extraordinary Session, on September 9, 2011.
I will join with Dr. Sandra Byrd, director of the Low Income Tax Clinic at MSU, MSU graduate students, and the Springfield Greene County Library auditorium at 7:00 P.M., Wednesday, September 28, 2011 to present a seminar on dealing with IRS collection.
Your business owe taxes ?
After attending the June 2, 2011 IRS Practitioner Liaison meeting, I toured the IRS Kansas City Campus (formerly “Service Center”), which is not generally accessible to the public.
The change to the two-year limit is effective immediately, and details are in Notice 2011-70, posted today on IRS.gov.
A total of 74 Taxpayer Assistance Centers will be open in 34 states, Washington, D.C. and Puerto Rico from 9 a.m. to 2 p.m. local time. Taxpayers can find participating offices by visiting the Saturday Service Locations page on IRS.gov. This special event is particularly intended for people who want to make a “fresh start” by taking steps to have liens withdrawn. It also provides an opportunity to those who cannot visit an IRS walk-in office during regular weekday hours to speak with IRS personnel about their tax issues.
Transferable Colorado state conservation easement income tax credits sold by individuals were capital assets and the holding period for the credits began when the taxpayers received them, not when they acquired the real property that was subject to the conservation easement. The state conservation easement tax credits qualified as capital assets because the credits were NOT included in one of the Code § 1221 excluded property categories. Also, the credits were not a substitute for ordinary income because the credits did not represent a right to income.
The credits were never part of the taxpayers’ real property rights. The state granted the credits only after the easement donation was complete, so that the holding period for the credits began when the taxpayers received the credits from the state and not when they acquired the property.
IRS Chief Counsel has issued internal guidance that explains how to calculate the tolling (suspension) of the state of limitations under Code §§ 6501 and 6531, involving civil assessments or criminal prosecutions when the IRS issues a summons to a third-party who fails to comply with the summons. The suspension applies if the third-party does not fully comply with the summons within six months after it is served. The six-month period begins on the exact day the summons is served on the third-party. The end of the six months and the beginning of the suspension period start exactly six months after the summons is served. The suspension period is added onto the original Assessment Statute Expiration date (ASED) to calculate the new ASED (the last day on which the IRS could take a particular action against the taxpayer).
Generally, the IRS has three years to assess taxes in a civil proceeding or initiate criminal proceedings, although the limit can be longer (or indefinite) in more egregious circumstances.
The third-party does not adequately respond to the summons ( Code § 7609(e)(2)).
In Jones v. Comm., CA 4, 107 AFTR 2d ¶2011-930, the 4th Circuit Court of Appeals upheld the validity of Reg. § 1.6015-5(b)(1), applying 2-year deadline to Code § 6015(f) innocent spouse relief claims, and reversed and remanded the Tax Court decision to contrary, striking the regulation down and granting taxpayer’s request for Code § 6015(f) relief that taxpayer filed outside 2-year deadline The 4th Ciruit found that Code § 6015(f) was sufficiently ambiguous to leave room for agency interpretation and that such interpretation, reflecting IRS determination that no deadline would create uncertainty and that instead 2-year timeline should apply, was reasonable. The Court rejected taxpayer’s arguments that regulation was unnecessarily and inappropriately narrowed the relief that Congress had intended to provide in Code § 6015(f). However, taxpayer was entitled to be heard on her alternative argument that even if regulation were valid, she should still be given time extension under Reg. § 301.9100-3, and the case was remanded for consideration of that issue.
The IRS normally updates the mileage rates once a year in the fall for the next calendar year, but the IRS made this special adjustment for the final months of 2011 in recognition of recent gasoline price increases. The rate will increase 4.5¢ from the 51¢ to 55.5¢ a mile for all business miles driven from July 1, 2011, through Dec. 31, 2011. Revenue Procedure 2010-51.
The Third Circuit in Mannella, 107 AFTR 2d 2011-519, 2011-1 USTC ¶50159 (CA-3, 2011), reversed the Tax Court’s decision and held that the taxpayer’s innocent spouse suit under Section 6015(f), filed more than two years after she was notified that the IRS was initiating collection procedures against her, was untimely under Reg §1.6015-5(b)(1). The Third Circuit remanded the case to the Tax Court to allow the taxpayer to bring an equitable tolling claim.
The Tax Court in Pullins, 136 TC No. 20, reiterated that Congress did not impose a two-year limitations period when it enacted Code Sec. 6015(f) and the IRS should not have imposed one by regulation.
In Mayo Foundation (2011-1 USTC ¶50,143), the Supreme Court held that the appropriate standard of deference to review challenged regulations is the standard in Chevron USA (467 U.S. 837, 1984). Under Chevron, regulations are generally entitled to significant deference. The Tax Court in Pullins found that when it decided Lantz, it had used the Chevron standard, and concluded there was no need to reconsider Lantz in light of Mayo.
A number of Lantz-type Code Sec. 6015(f) cases are scheduled for argument in the circuit courts of appeal: Coulter (Docket No. 10-680) in the Second Circuit on June 14; Jones (Docket No. 10-1985) in the Fourth Circuit on May 12; other cases pending include Buckner (Docket No. 10-2056) and Hall (Docket No. 10-2628) in the Sixth Circuit, and Payne (Docket No. 10-72855) in the Ninth Circuit.
Three senators wrote to Shulman on April 18, 2011 expressing concern that [t]]he two-year limitations period on claims for equitable innocent spouse relief prevents innocent spouses from receiving the relief they deserve,” In a separate letter, 50 members of the House said that Congress did not intend to impose a two-year limitations period under Code Sec. 6015(f).
Commissioner Douglas Shulman told lawmakers in an April 29, 2011 letter that the IRS is reviewing the two-year limitations period on claims for equitable innocent spouse relief.
The Senate previously passed the bill. If signed by the governor, the bill would provide small businesses (fewer than 50 employees) a $10,000 income tax deduction for each new full-time job created with an annual salary of at least the average annual county wage, or $20,000 if the business offers health insurance for new employees and pays at least 50% of the premiums of all full-time employees who opt into the plan. Generally, a full-time job means the employee works at least an average of 36 hours per week for a 16-week period. There is some relief where the employee’s hours did not meet the 36 hours per week requirement because of weather-related delays if (1) the taxpayer documents the cause of the delay and the date upon which it occurred and (2) the employee for whom the deduction is sought has worked an equivalent of 576 hours within a 20-week period. H.B. 45, as passed by the Missouri General Assembly on April 27, 2011.
The Comprehensive 1099 Taxpayer Protection and Repayment of Exchange Subsidy Overpayments Act of 2011 eliminated new information reporting requirements that were created by previous legislation.
The Patient Protection and Affordable Care Act of 2010 expanded information reporting to include payments to corporations, “amounts in consideration of property,” and “other gross proceeds” made in the course of a trade or business (including operation of a governmental entity), beginning in 2012. The new law repeals these requirements. You are not required to file Form 1099-MISC for these payments for any year.
Existing information reporting requirements remain in effect. Payments of $600 or more for nonemployee compensation made in the course of a trade or business are generally required to be reported on Form 1099-MISC. Certain payments to corporations are required to be reported. See the Instructions for Form 1099-MISC for more information.
The Small Business Jobs Act of 2010 provided that anyone receiving rental income from real estate would be treated as receiving income from a trade or business of renting property; therefore, information return requirements applicable to small businesses would be in effect. This provision also is repealed; you are not considered to be in a trade or business solely because you receive rental income. See IRS Publication 527 for more information on rental income and expenses.
The Comprehensive 1099 Tax Protection Act of 2010 (H.R.4) now goes to the White House for President Obama’s expected signature. H.R. 4 repeals a provision under the 2010 health care reform legislation requiring businesses to file a Form 1099 for all payments aggregating $600 or more in a calendar year to a single provider of goods, other than a tax-exempt payee, for payments made after December 31, 2011, the reporting of payments to corporations by businesses in exchange for either goods or services, and information reporting for rental property expense payments made after December 31, 2010. As a revenue offset, related to a premium assistance under the health care reform legislation, H.R. 4 waives the amount of any overpayment of the health care credit that is subject to recapture.
The IRS recently issued final regs. on TAOs that apply to TAOs issued on or after April 1, 2011 and make only minor changes to proposed regs. issued in 2009, which reflect updates made to TAOs by legislation enacted since 1998. A TAO will not be issued to IRS Criminal Investigation division (CI), if the action ordered in the TAO could reasonably be expected to impede a criminal investigation. IRS CI to determines if the TAO could reasonably be expected to impede an investigation.
The IRS recently released final regs. on the validity and priority of federal tax liens, which track proposed regs. issued in 2008 except for a refinement of the rules for refilling of a notice of federal tax lien (NFTL). Most NFTLs contain a certificate of release that automatically becomes effective on the date the required refiling period ends if the NFTL is not refiled, and at which time the lien is extinguished and the NFTL is ineffective. The required refiling period is the one-year period ending 30 days after the expiration of 10 years after the date of the assessment of the tax; and the one-year period ending with the expiration of 10 years after the close of the preceding required refiling period for such notice of lien. Under the final regs., neither failure to timely refile the NFTL, nor the release of the lien, shall alter or impair any right of the United States to property or its proceeds that is the subject of a levy or judicial proceeding commenced prior to the end of the refiling period or the release of the lien, except to the extent that a person acquires an interest in the property for adequate consideration after the commencement of the proceeding and does not have notice of, and is not bound by, the outcome of the proceeding.
Federal tax liens recorded before the judgment creditors secured their abstract of judgment or had perfected their lien took priority over a judgment creditor’s lien with respect to surplus proceeds derived from the nonjudicial foreclosure sale of delinquent taxpayers’ real property. Federal law governs the relative priority of federal tax liens and state-created liens, and the tax lien did not lose its priority because the government did not comply with state (California) law and does not depend on when the government filed a claim relative to a competing claimant. The federal tax liens were filed more than 30 days before the nonjudicial foreclosure sale, and there was no evidence that the IRS received notice of the sale as required by Code § 7425(c)(1), the liens survived the sale and attached to the surplus proceeds. Quality Loan Service Corp., Petitioner v. 24702 Pallas Way, Mission Viejo, CA 92691, All Claimants to Surplus Funds After Trustee’s Sale of Real Property Located at, Respondent, and Mark V. Franzen; Debra A. Franzen, Claimants-Appellants, and United States of America, Claimant-Appellee., U.S. Court of Appeals, Ninth Circuit, 2011-1 U.S.T.C. ¶50,299, (Mar. 24, 2011).
In Tucker v. Comm., Dkt. No. 3165-06L, TC Memo. 2011-67, 3/22/11, the Tax Court has found that the IRS can include dissipated assets in a taxpayer’s reasonable collection potential (RCP) when evaluating an offer-in-compromise (OIC), and money lost while day trading was considered dissipated. Not only was the investment itself highly speculative, but the taxpayer had no experience and compounded the risk by trading on margin. The Tax Court found that the IRS did not abuse its discretion when it rejected the taxpayer’s OIC because the taxpayer’s RCP exceeded his tax liability.
The IRS won the battle, and won the war, but did not receive any tax payments. The taxpayer’s offer would have paid over 90% of his tax liability. The offers rejection demonstrates the IRS’s tough approach to handling OICs.
The first $1,500 on purchases of new Energy Star-qualified appliances in Missouri during the holiday period, are exempt from sales tax. Qualifying appliances that have the Energy Star label on them are clothes washers, refrigerators, freezers, dishwashers, water heaters, furnaces, air conditioners, and heat pumps. If an appliance costs more than $1,500, the regular sales tax rate is in effect for any of the purchase price above $1,500.
Appliances not eligible for the exemption include clothes dryers, trash compactors, conventional ovens, ranges, and stoves, lighting fixtures, office equipment, and home electronics.
Several local governmental entities have also opted to participate in the holiday.
All IRS forms, schedules and related instructions are available on IRS.gov. The draft Form 941 with a new line 5e, § 3121(q) Notice and Demand, Tax due on unreported tips, is now on IRS.gov. This month’s IMRS Hot Issues answers questions about Form 941 versus Form 944 filing requirements and more.
Revenue Procedure 11-20 provides information to any individual who failed to meet the eligibility requirements of § 911(d)(1) of the Code because adverse conditions in a foreign country precluded the individual from meeting those requirements for taxable year 2010.
Notice 11-14 provides guidance on the federal tax consequences of payments made to or on behalf of financially distressed homeowners under programs established pursuant to the Treasury Department’s Housing Finance Agency Innovative Fund for the Hardest-Hit Housing Markets and the Department of Housing and Urban Development’s Emergency Homeowners Loan Program. This notice also provides guidance on the information reporting requirements for these payments.
The Missouri House of Representatives approved H.B. 76 on March 3, 2011, that would phase out the state corporate franchise tax over a five-year period, beginning in 2012.
for 2016 and thereafter, no annual franchise tax would be imposed.
Also, the annual corporate franchise tax liability of a corporation for 2011 through 2015 would be limited to the amount of the corporation’s tax liability for 2010. If a corporation did not have a corporate franchise tax liability in 2010 because the corporation was not doing business within the state or did not exist, the corporation’s annual franchise tax liability would be limited to the amount of the corporation’s franchise tax liability for its first full taxable year of existence.
For tax returns filed on or after January 1, 2012, the bill would also allow any financial institution that is a limited liability company or a limited liability partnership to claim the banking institution tax credit against its annual franchise tax liability.
The Missouri Senate approved S.B. 19 that would similarly phase out the corporate franchise tax and cap corporate franchise tax liabilities.
The Missouri House of Representatives passed H.B. 116 on March 3, 2011, which would provide an amnesty from the assessment or payment of all penalties, additions to tax, and interest with respect to unpaid state income taxes and sales and use taxes due prior to December 31, 2010, that are reported and paid in full from August 1, 2011, through October 31, 2011. The amnesty would apply regardless of whether the taxes were previously assessed.
nor to any taxpayer who at the time of payment is a party to any criminal investigation or to any civil or criminal litigation pending in any U.S. or Missouri court for nonpayment, delinquency, or fraud relating to any tax imposed by the state.
agree to comply with the state tax laws for the eight years following the date of the amnesty agreement.
If a taxpayer fails to comply with the state tax laws at any time during the eight years following the date of the agreement, all penalties, additions to tax, and interest that were waived under the agreement would become due and owing immediately.
Furthermore, taxpayer’s election to participate in the amnesty program as evidenced by full payment of the tax due would constitute an express and absolute relinquishment of all administrative and judicial rights of appeal.
No tax payment received under the amnesty program would be eligible for refund or credit.
provide for offsets from Missouri tax refunds for non-tax amounts due to the federal government and vice versa.
These IRS Taxpayer Assistance Centers are your source for personal tax help when you believe your tax issue cannot be handled online or by phone.
Audits – two applications graphically display changes in the number of field and correspondence audits, both individual and corporate, for fiscal years 1992 through 2010.
Graphical Highlights – national enforcement trends for corporate and individual audits along with information about levies, liens and seizure activities.
Criminal Enforcement – the latest figures from the Department of Justice on the criminal enforcement of cases referred by the IRS, presented with detailed maps, ranking tables, and individual district tables for the United States and each of 90 federal judicial districts.
U.S. Code – an updated list of the most frequently cited lead charges that eventually led to formal charges or convictions.
TRACFED – expanded information and exclusive data analysis tools are available on TRAC’s newly expanded subscription site.
Proceeds of refinanced debt used for other purposes ? for example, to pay off credit card debt ? do not qualify for the exclusion.
Debt forgiven on second homes, rental property, business property, credit cards or car loans does not qualify for the tax relief provision. In some cases, however, other tax relief provisions ? such as insolvency ? may be applicable. IRS Form 982 provides more details about these provisions.
Note: Taxpayers can use the Online Payment Agreement application on IRS.gov to set-up with Direct Debit Installment Agreements.
The IRS announced that nearly 100 IRS offices will be open on Saturday, February 26, and Saturday, March 26, to help taxpayers. The location of participating offices is listed on IRS.gov. IRS offices will be open from 9 a.m. to 2 p.m. local time. See IR-2011-19 for more.
Do you want to become a § 501(c)3 organization but are having trouble getting started?
Have you begun the § 501(c)3 application process, but run into roadblocks?
The lien attached when the property was jointly held and was not extinguished when the wife received the property in dissolution of marriage. Jones, DC Calif., 2011-1 USTC Par. 50,167.