Briefs And Proposals

Solvency II and Basel II Compared

Basel II included credit, operational, and market risks in its capital reserve requirement under Pillar 1. Solvency II include all of these risks plus insurance and liquidity risk. These additional exposures, captured in Basel 3, were added to Solvency II, because the range of risk exposures varies more across insurance companies than across banks. However, measurement of these additional risks brings additional challenges, and insurers may need assistance in determining how to include some risks in their quantitative models and data capturing infrastructure.

Persuasive Appellate Brief

Persuasive appellate brief require(s) the author to formulate a persuasive writing style in which the facts of a case are marshaled to present the judge with arguments to find in your favor. Persuasive appellate brief must employ a succinct, non-verbose writing style; it is better to leave the judge with the impression that the time [...]

Legal Document Writing

Legal document writing I write legal briefs and legal documents for other attorneys and for parties. If you are interested in learning more about legal document writing, please contact me. On this domain, briefsandproposals.com you will find various links to briefs, law review articles, and other legal writing samples. Legal document writing require(s) the author [...]

Appellate Advocacy Brief Writing

Appellate advocacy brief writing I write legal briefs and legal documents for other attorneys and for parties. If you are interested in learning more about appellate advocacy brief writing, please contact me. On this domain, briefsandproposals.com you will find various links to briefs, law review articles, and other legal writing samples. Appellate advocacy brief writing [...]

Legal Research and Writing

Legal research and writing I write legal briefs and legal documents for other attorneys and for parties. If you are interested in learning more about legal research and writing, please contact me. On this domain, briefsandproposals.com you will find various links to briefs, law review articles, and other legal writing samples. Legal research and writing [...]

Free Speech Violation by NC Dietary Board

Posted by mgadmin on May 10th, 2012

From www.hsionline.com

Do you have a diet that works for you? Does it work so well that it vastly improves your health?
If so, you’d better not share the details of your success. Your local Royal Order of Mainstream Bureaucrats might threaten you with jail time.

Exaggeration? Not at all.

This very scene recently played out in North Carolina. But this could happen anywhere. Petty bureaucrats will come at you tooth and claw to protect their territory. And they get especially aggressive if you challenge their healthcare sacred cows.

———————————————————————
Escape from the pyramid
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In early 2009, Steve Cooksey was middle-aged, overweight and out of shape. He never exercised. He describes his pre-2009 diet as bad fats and bad carbs.

During an emergency room visit, doctors gave him devastating news. They told him he had severe type 2 diabetes. He immediately began taking a diabetes drug and four insulin injections each day.

After his diagnosis, two different nutrition professionals recommended the dietary guidelines of the American Diabetes Association (ADA). In short, they told him to follow the USDA Food Pyramid.

Remember the base of the old Pyramid? They called it the “Bread, cereal, rice and pasta group.” The recommendation was, “6 to 11 servings each day.”

He began using the USDA Food Pyramid as a dietary guide. Fortunately, his doctor had a better suggestion. He recommended a book about low glycemic foods. As I’ve mentioned before, the glycemic index (GI) is a scale that categorizes foods according to their effect on blood sugar.

Steve began a strict avoidance of high GI foods. He ate mostly vegetables and high quality meats. He also began a strict exercise regimen.

His results were wildly successful. Within three months, he lost nearly 50 pounds. More importantly, he reduced his blood sugar to levels that required no drugs and no insulin.

———————————————————————
First Amendment Warrior
———————————————————————

Steve came to realize how appalling it is for anyone to recommend several daily servings of pasta and rice to diabetics.

So he started a blog. He felt an urgency to share his experience with other diabetics so they could break free of drugs and insulin.

He probably never imagined he would ruffle the feathers of some smalltime bureaucrats.

In January 2012, the North Carolina Board of Dietetics/Nutrition informed Steve he was practicing nutrition without a license. They threatened to shut down his blog and haul him into court if he didn’t substantially rewrite his blog posts. He even faced the possibility of jail time.

You see, Steve not only “trespassed” on NCBD/N territory. He also contradicted the status quo of mainstream nutrition. In fact, he gleefully attacks the ADA and anyone else that promotes a grain-based diet for diabetics.

Oh no. No no no. You can’t do THAT!

You can tell people you eat meat and salads. No problem. But you can’t suggest they might be better off eating meat and salads too. No! THEN you’re an unlicensed nutritionist. You know, unlike those LICENSED “nutritionists” who tell diabetics to eat rice and pasta.

On top of that, if you suggest that the ADA is in collusion with drug companies to sell more drugs… Well, let’s just say that strays WAY outside the mainstream party line.

Steve quickly responded to NCBD/N. He included more disclaimers on this website and stopped publishing an advice column. Apparently, that appeased NCBD/N. For the moment, anyway.

Recently, the board informed him that he’s now in compliance. But they’re still monitoring him.

Steve’s response: “All this means is that the board has violated my First Amendment rights by silencing me and altering how I express my opinions.

“I have absolutely no intention of complying with the board’s violation of my free speech rights. I intend to defend those rights, not only for myself, but for everyone.”

That’s a fighter! Steve fought for his health and won. And he’s determined to fight anyone who tries to silence his important message.

Here’s my unlicensed advice: Every diabetic should visit Steve’s website at diabetes-warrior.net.

www.hsionline.com

Wal-Mart and the FCPA

Posted by mgadmin on April 23rd, 2012

Michael Volkov has sent you a message.

Date: 4/23/2012

Subject: Wal Mart and the FCPA

The Impact of the New York Times Report on Wal-Mart’s Bribery Scandal — http://corruptioncrimecompliance.com/2012/04/the-impact-of-the-new-york-times-report-on-wal-marts-bribery-scandal.html

The New York Times report on Wal-Mart’s handling of bribery allegation has shaken the anti-corruption community. The New York Times’ description of what occurred inside of Wal-Mart, if true, is devastating. Here is a link to the article: http://www.nytimes.com/2012/04/22/business/at-wal-mart-in-mexico-a-bribe-inquiry-silenced.html

The impact of this bombshell report will slow business attempts to reform the FCPA and sends an important reminder to every company, even those large companies with state-of-the-art complaince programs, that even they can fall from their pedestal.

The New York Times’ depiction of events underscores several significant points. No matter how much we write, how much we advise companies, and how much we think we are guiding our clients, there is no guarantee that companies will comply, will investigate themselves, and address illegal conduct unless the company is fully committed to compliance.

The Wal-Mart story is an important reminder that no matter how good you anti-corruption compliance program, a company’s commitment to its program, with the support of the board and senior management, is critical to the effectiveness of a compliance program. For large companies that frequently tout their “Cadillac” compliance programs, this is an important reminder of the problems that can easily develop and frustrate compliance efforts. Every large company, no matter how effective they believe their compliance programs are, needs to review, audit and confirm the operation of their compliance program. They need to make sure their compliance program is working effectively.

At its core, the New York Times report demonstrates two significant failures in a compliance program. First, the New York Times report shows the danger to compliance when senior management and the board are not committed to compliance — in fact, the report suggests that senior management sought to prevent a full and fair investigation of the actions in Mexico.

Second, the report shows how important it is for senior management to appoint and support an independent investigation. The machinations surrounding the conduct of the internal investigation shows how such an investigation can be easily derailed. Instead, as reported, senior management supported instances to cover-up the allegations or make sure sure they never saw the light of day.

I am sure the shock of the New York Times report will reverberate for months. Congressional support for reform is likely to fade in response to this report. The New York Times’ investigative report will be a “poster child” for why anti-corruption enforcement is critical to our national interest — if true, the report shows that corruption can undermine fair competition in foreign markets to the detriment of consumer welfare and the public interest.

The Department of Justice now faces an important test. They cannot just simply rely on a law firm conducted internal investigation to unearth the truth. With allegations stretching to the highest levels of Wal-Mart, the Justice Department has to conduct its own investigation and not rely on an internal investigation conducted by Wal-Mart’s counsel.

I am sure the Justice Department is up to the test — this is where it operates with professionalism and dedication. Everyone will be watching — especially Congress. It should be interesting

Food and Nutrition Labeling Litigation

Posted by mgadmin on April 19th, 2012

Improper nutrient content claims cited in new wave of class action suits

With class action lawsuits alleging labeling violations now “filed almost daily in California”, food manufacturers are spending “hundreds of thousands of dollars in legal fees and settlement amounts” to resolve cases that are entirely avoidable, according to one leading food law attorney.

http://www.nutraingredients-usa.com/Regulation/Improper-nutrient-content-claims-cited-in-new-wave-of-class-action-suits

Attorney in Muscle Milk lawsuit: ‘You can’t just whip-up a blend of saturated fat and fractionated oil, and slap a ‘healthy’ label on it’

Both sides are claiming victory in a legal dispute over Muscle Milk nutritional bars and beverages after a federal judge ruled a false advertising lawsuit could proceed but dismissed most of the claims made by the plaintiff.

http://www.nutraingredients-usa.com/Regulation/Attorney-in-Muscle-Milk-lawsuit-You-can-t-just-whip-up-a-blend-of-saturated-fat-and-fractionated-oil-and-slap-a-healthy-label-on-it

use the headline, summary and link below:

Bodybuilding.com boss ‘just wants to put steroid spiking case behind him’, says attorney

The boss of a leading online retailer accused of selling dietary supplements spiked with steroids just wants to “put this matter behind himself and continue to move the company forward”, says his attorney.

http://www.nutraingredients-usa.com/Regulation/Bodybuilding.com-boss-just-wants-to-put-steroid-spiking-case-behind-him-says-attorney

Nanotech regulation ‘may become more nuanced in light of experience’, says Hamburg

FDA commissioner Margaret Hamburg has reiterated the agency’s decision not to adopt a definition for nanotechnology, although she said its approach “may become more nuanced in light of experience”… Read

FDA food safety fees will ‘user fee the industry to death’ – food safety law firm

The US Food and Drug Administration (FDA) will “user fee the industry to death” through the proposed implementation of further food firm fees, food safety law specialist FDAImports.com has claimed… Read

Reportable Food Registry has helped target inspection activities, FDA says

The Reportable Food Registry has helped the Food and Drug Administration (FDA) target its food safety strategy and increase the speed with which it has been able to take action, according to a new FDA report reviewing activity during the online reporting tool’s second year… Read

Improper nutrient content claims cited in new wave of class action suits

With class action lawsuits alleging labeling violations now “filed almost daily in California”, food manufacturers are spending “hundreds of thousands of dollars in legal fees and settlement amounts” to resolve cases that are entirely avoidable, according to one leading food law attorney… Read

Subway to FDA: Don’t penalize firms that are ahead of the game on sodium reduction

If the government plans to set sodium reduction targets for food categories it should take into account progress already made by ‘proactive’ firms or risk unfairly penalizing companies that have taken the initiative, Subway has warned… Read

Consumers groups (again) petition FDA to refuse ‘corn sugar’ moniker for HFCS

A coalition of consumer groups has written to the FDA urging it to “act decisively” and refuse the Corn Refiners Association’s petition to allow ‘corn sugar’ as an alternative name for high fructose corn syrup (HFCS) on ingredient lists… Read

Attorney in Muscle Milk lawsuit: ‘You can’t just whip-up a blend of saturated fat and fractionated oil, and slap a ‘healthy’ label on it’

Star-K adds non-GMO certification to its kosher and organic audits

Star-K Kosher Certification has begun providing triple inspections to certify plants and products as non-GMO, organic and kosher, which it says can save companies time and money on individually conducted inspections… Read

‘Tuna scrape’ recalled after Salmonella Bareilly outbreak sickens 116

A US fish processor is recalling nearly 60,000 pounds of frozen ‘tuna scrape’ after the product was linked to an outbreak of Salmonella Bareilly that has sickened 116 people across 20 states… Read

California fish processor suspends production under FDA agreement

A California-based seafood processor has agreed to halt the production and distribution of its fish and fish products over Listeria monocytogenes contamination fears, under an agreement with the US Food and Drug Administration (FDA)… Read

EJF newsletter – The status quo has to go if we are to save our children 3/14/12

Posted by mgadmin on March 15th, 2012

Sent: Wednesday, March 14, 2012 6:08 PM
To: EJF comments
Subject: EJF newsletter – The status quo has to go if we are to save our children 3/14/12

You can’t fix stupid!
Few citizens and even fewer elected officials and bureaucrats are able to distinguish between possibility and probability. As a result extremely unlikely events are often used to impose destructive laws and regulations on the general population. Jeff Koon and Andy Powell in their book You May Not Tie an Alligator to a Fire Hydrant-101 Real Dumb Laws provides some classic examples of this.
The constant refrain of why these insane laws and crushing regulations are required is to preserve public safety, particularly that of our children despite voluminous research showing children are safest with their birth parents.
But as Ayn Rand pointed out in 1957:
“There’s no way to rule innocent men. The only power government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”
Only rarely is there any attempt to measure whether the law or regulation solved the problem. Quite often there is convincing evidence that the unintended consequences made the human condition worse. If there is any measure of effectiveness it is commonly used as a basis for new laws and regulations, and always as a basis for more money and enforcement.
As my friend Erin Pizzey famously pointed out:
“Any country that has tried to create a political solution to human problems has ended up with concentration camps and gulags.”

The status quo has got to go!
There is little question that our freedom and liberties have been disappearing at an accelerating rate since the turn of the century. Nowhere is this trend more despotic than in the destruction of our families and children.
In the United States we turn to our elected officials to act in a manner that preserves our rights. But in far too many cases these officials and the bureaucrats they employ have proven to be the enemy rather than defenders of liberty.
I am hardly the only one, or the first to recognize this. Dr. Chuck Baldwin in a recent column summarized the issue with the statement The Status Quo Must Go. He makes some cogent observations. He points out that:
³It is far more important who is elected as your governor than who is elected President. It is far more important who is elected as your State attorney general than who is appointed US attorney general. It is far more important who is elected to your State legislature than who is elected to the US House and Senate. It is far more important who is elected as your sheriff than who is appointed as the Director of the FBI…
The problem in Montana, however, is similar to that of most states: the ³good-old-boy,² ³politics-as-usual,² ³scratch-my-back-and-I¹ll-scratch-yours² politicians are ensconced in the State political infrastructure. And it¹s going to take some political dynamite to blast them out! And that dynamite is a courageous constitutionalist (or better yet, a host of courageous constitutionalists) who is not afraid to take on these arrogant elitists and restore the principles of liberty to their states. In short, the status quo has to go!”
I think there is little question that the most corrupt agency in most counties in the United States goes under a title of, or similar to the Department of Human Services (DHS), which includes child “protective” services (CPS). From all around the country, as well as locally, I am repeatedly told the local DHS/CPS has legalized kidnapping of our children and is running an adoption ring with federal, state, and local financing.
In the EJF newsletter In The Face Of Great Evil I documented many of the problems with DHS/CPS in El Paso County, Colorado. With that we come down to the issue of the performance of a local despot who is fighting to maintain the status quo.

El Paso County Commissioner District 3 – Sallie Clark
Sallie Clark is the elected official directly responsible for oversight of the Department of Human Services or DHS in El Paso County, Colorado. She has now held that position for eight years and despite a two-term limit in place when she took office she is now attempting to get reelected for a third term. Thus, a review of her performance in office is well justified.
My best estimate is that during Sallie Clark’s eight years in office DHS has spent over $500 million dollars of federal, state, and county funds.
Yet by any measure DHS is in much worse shape than when she took over.
Parents are scared to death of DHS and child ³protective² services. Any resistance to DHS’ imperious demands are met by threats to take their children. Families have fled the county after a single contact by a DHS caseworker. Parents home school their children so they can’t be taken without notice from the schoolroom. In this reign of terror kids are taught to hide in the back room if there is a knock at the door.
Apparently there are now at least four full-time county attorneys working to take children from the control of their parents, or to put the children in foster care.
Under Commissioner Clark’s direction DHS has set up a special group tasked with taking children from military families. You might ask how they do that? First, they establish a Memorandum of Agreement with the Army in which “child abuse” is defined (p. 3) as virtually anything that might happen to a kid. Then the soldier is charged with a “crime.” In two cases I’ve observed a rash was sufficient to claim the child was abused, the soldier confined to barracks, and restrained from seeing his little one. If the mother so much as suggests she won’t testify against the soldier DHS/CPS threatens to take the kids and put them in foster care, and it is not an idle threat. If the mother then takes the stand and testifies in favor of the father DHS/CPS tells the court she is not providing adequate protection for the children and he is kept under restraint and away from his children. Since DHS caseworkers are known to write out the restraining orders themselves without troubling the court, and the Army follows the civilian lead in these cases, the soldier has few options unless he can afford a competent attorney (scarce as hen’s teeth) willing to fight DHS. All this ruins the soldier’s military career and he is often chaptered out of the military and loses all benefits. Job prospects for a discharged veteran, especially if the discharge was less than honorable, are not great. Even if the mother qualifies for continued support under 10 USC § 1059 that ends in a year or two and DHS has kept the children under their control and typically ordered the mother not to take them out of El Paso County. So now the family is destitute, even in the unlikely event it is still together, and living conditions aren’t great. When the home fails “inspection” (and your house would probably fail as well) the solution is to put the kids in foster care. All this keeps the courts and DHS funding coming.
The Denver Post has been running a series of articles describing problems with DHS and reforms proposed by the Colorado Department of Human Services for many months. Predictably, Commissioner Clark has fought bitterly against any reforms or intrusions into her domain.
Because DHS bases its approach to child abuse on fear and making parents afraid of losing their children, only about 10% of parents who may actually need help are in contact with DHS. The EJF has previously noted that from 1995 to 2002 twelve children died in El Paso County. But after eight years of Sallie Clark, and the expenditure of at least $500 million by the county DHS, eleven children died in just the year 2011 in this county, often while at the tender mercy of DHS. In response to this disgrace, Commissioner Clark formed a CYA commission to investigate the problems that she is responsible for.
Since this commission is largely composed of the bureaucrats responsible for the problems, their proposed solution is entirely predictable: more money and more bureaucrats with more children taken from their parents.
It is also quite predictable that if Sallie Clark is reelected that more children will die needlessly as essential reforms will not be undertaken.

Conclusion
As stated at the beginning, the status quo must go. And soon before more of our children die or are taken needlessly from their parents. You have a voice and a vote, use them to protect our families and children.
Sallie Clark and El Paso County, Colorado, are not the only places with a local despot destroying families and children. As Chuck Baldwin does in his article, identify and speak out against the status quo and the destruction it is wreaking on our once great country. This is an election year and it is your local and state races that will have the greatest impact on your future.
Charles E. Corry, Ph.D., F.G.S.A.

About the author
Dr. Corry is a Fellow of the Geological Society of America and an internationally-known earth scientist whose biography has appeared in Who’s Who in the World, Who’s Who in America, Who’s Who in Science and Engineering, among others, for thirteen consecutive years.
After service with 1 st Marines he became involved with the early space program in 1960, doing preflight testing and failure analysis on Atlas and Centaur missiles, including all the Project Mercury birds. In 1965 he switched to oceanography and did research at both Scripps Institution in San Diego and Woods Hole Oceanographic on Cape Cod. He has also taught geophysics at university and worked as a research manager for a Fortune 500 company.
He has climbed high mountains, been shipwrecked and marooned on an unexplored desert island, ridden horseback through Utah, Arizona, and Colorado, among other adventures during his career.
Presently Dr. Corry is president and founding director of the Equal Justice Foundation.
___________________________________
DISCLAIMER
NOTE: If you would like to be removed from our mailing list please respond to this message with REMOVE in the subject line. Comments or criticisms of our policies or Web sites should be addressed to mailto:comments@ejfi.org.
You are receiving this message because (1) you asked to be added to our mailing list; (2) you sent the EJF an e-mail or requested help from us; (3) you are known to work on issues related to human rights; (4) you are known to be interested in civil liberties and equal justice; (5) your name and address appeared as an addressee on email sent to us; (6) you are a member of or contribute to the Equal Justice Foundation, or (7) you are on a distribution list that forwards EJF newsletters.
Most prior EJF newsletters are archived at http://ejfi.org/Press_releases.htm after a few days.
______________________________________________________________________
Issues of interest to the Equal Justice Foundation are:
Civilization http://ejfi.org/Civilization/Civilization.htm
Courts and Civil Liberties http://ejfi.org/Courts/Courts.htm
Domestic Violence http://ejfi.org/DV/dv.htm
Domestic Violence Against Men in Colorado http://dvmen.org/
Emerson case http://ejfi.org/emerson.htm
Families and Marriage http://ejfi.org/family/family.htm
Prohibitions and the War On Drugs http://ejfi.org/Prohibition/Prohibition.htm
Vote Fraud and Election Issues http://ejfi.org/Voting/Voting.htm
______________________________________________________________________
The Equal Justice Foundation (EJF) is a non-profit 501(c)(3) public charity supported entirely by members and contributions. Dues are $25 per year and you may join at http://ejfi.org/Join.htm or by printing and mailing in the application at http://ejfi.org/Application.htm. Contributions are tax deductible and can be made on the web at http://ejfi.org/join2.htm or by sending a check to the address below.
Federal employees can contribute through the Combined Federal Campaign. The EJF is listed in Colorado , Utah, Idaho, and Wyoming and the agency number is #18855.
______________________________________________
Charles E. Corry, Ph.D., F.G.S.A., President
Equal Justice Foundation http://ejfi.org/
455 Bear Creek Road
Colorado Springs, Colorado 80906-5820
EJF on Facebook: http://facebook.com/ejfi.org
Personal home page: http://corry.ws
Facebook: http://facebook.com/charles.corry

The good men may do separately is small compared with what they may do collectively.
Benjamin Franklin

Issues on Wrongful conviction for Child Molestation: Lack of Evidence, hearsay

Posted by mgadmin on February 21st, 2012

From: kim hamberger [mailto:kimhamberger at hotmail.com]
Sent: Friday, February 17, 2012 5:36 AM
To: mike at briefsandproposals.com
Subject: RE: General Question

yes sir, that would be just the best! Thank you for your time.

Kim Hamberger

________________________________________
From: mike at briefsandproposals.com
To: kimhamberger at hotmail.com
Subject: RE: General Question
Date: Thu, 16 Feb 2012 11:59:48 -0500
Would you like me to publish your letter below on my web site so others can contact you?

Mike Guth

From: kim hamberger [mailto:kimhamberger hotmail.com]
Sent: Thursday, February 16, 2012 10:54 AM
Subject: General Question

February 16, 2012

Blessings :

My name is Kim Hamberger. I live in Texas and I am certified Christian Counselor. I as well do other work with Servants For Christ Ministry International. I was online, looking at others in Colorado that have been abused by the system there. What a corrupt state of affairs. Please read this letter and if you can help in any way possible please let me know. Thank you.

My best friend’s name is Miguel Bishop. He is being held in Yuma County Jail in Wray, Colorado. I am not asking you to let him out of jail, I just want to explain some of the things that have taken place for this man, for one thing, due to the color of his skin. Our prisons are full of persons who have been convicted of child molestation without any physical evidence ever introduced against them at trial. In other words, the typical evidence in which the state offers to convict a defendant, such as body fluids, blood, semen, hair, DNA, are not introduced at trial to link the accused to a crime. That is terrible! Criminal law codes have been rewritten to where in many cases, the child accuser does not even have to appear in court and face the accused. Instead, the state can offer the child’s testimony through a video tape made by agents of the prosecution CPS and corrupt Police. Instead of physical and medical evidence, the falsely accused are convicted upon theories, inferences, and speculation. Prosecutors secure convictions by manipulating the juries fear of releasing a child molester back into the community. To support this speculation, a biased child protective services caseworker will produce a video taped interview of the child. This is an outcry, it is easy to find witnesses who can place the accused in circumstances in which he was alone with the alleged victim. I say that because the step mom in this case has 2 times before had the same child lie and try to do this to others. I have the recordings and paper work for everything I state in here.

I know that if we can bring home our military from overseas in an area so needed of protection, we can help send this in the right direction to get help with getting Miguel out and those involved with the lies and not listening, like the Sheriff’s office and Guardian Ad Litem, and CPS. Reports have been made with the ABA, Child Welfare in Colorado, CBI and FBI. They say and act like there is nothing they can help with. THEY CAN STOP THE USE OF THE “N” WORD for one! No report allowed by Miguel when he was continually threatened and harassed by another and called out his name. That is a hate crime! Yuma County Jail records every phone call and will not do a report with evidence from the phone call of this man. Instead they make the hate crime criminal a TRUSTEE!!! See the outcry here? This man can not even have family send hair product or facial cream for shaving bumps, yet they do not even put on commissary! Not only my niece, but myself as well have been asked absurd stereotypical question from the Detective “What does that man got that makes you girls love him more than a child?” Also but CPS with” Miguel sure did something for you that you would lie and call your great niece the liar. What was it that made you love him more than your family?” Now, with the Guardian Ad Litem, is the straw that broke the camel’s back! See, my daughter was molested by my nieces ex husband, 21 years ago. She was 7 when it took place. We only found out back in August. I tried to tell the Guardian Ad Litem and she made fun of my daughter, who is disabled! On top of that, my great niece that told this lie, is living in Scottsbluff, Nebraska, with her molesting dad and molesting brother! The step mom is there as well. My two nephews were molested by the step mom’s nephew and was sentenced to one year in prison (for 6 counts!) and served only 7 months and is registered sex offender. He still comes around the boys. This has been told and those in control brush it off. Do you see the injustice here?

I could keep going sir but I will stop and pray you call me, or someone does. May be that no one listens or reads this or maybe just that one will and the right thing can get done. Here as well are phone numbers for further information needed. Miguel Bishop, Yuma County Jail, Wray, Colorado, Tami Hamberger (970) 466-1565 and Kim Hamberger (940) 322-3232 or (940) 636-0401. God bless this country and God bless you.

Sincerely,

Kim Hamberger

Read More »

Testimonial

Posted by mgadmin on April 9th, 2011

“I have been very impressed with you since the first time you assisted me in a case regarding a collection company and their unfair business practices. Of all the attorneys i have spoken with i truly feel you are one of the most talented and knowledgeable You have the ability to to recall pertinent cases, laws and the application of them.”

Francis De La Rocha, 11167 Kingston Pike, Farragut, Tennessee

Read More »

Solvency II and Basel II Compared

Posted by Michael A. S. Guth on March 20th, 2011

Solvency II might be thought of as Basel II-like banking risk management regulations applied to the insurance industry. Both set of regulations have similar objectives for their respective industries:

• promoting a ‘safe and sound’ ﬁnancial system

• ﬁrms will hold capital relevant to the risks in their business

• improved risk management and corporate governance

• improved global supervision and capital adequacy reporting.

Solvency II shares about 75% in common with Basel II, but insurance firms are often most interested in the 25% differences. First, by way of introduction, Solvency II is promulgated by the Committee of European Insurance and Occupational Pensions Supervisors (CEIOPS). Solvency II uses the same three pillars concept as Basel II. The first pillar is the risk-based capital reserve, also known as the Solvency Capital Requirement (SCR) in Solvency II.

Diversiﬁcation of risk lies at the core of the insurance business, and the extent of diversification varies widely from firm to firm. While Basel II recognizes some implicit reduction in risk through diversiﬁcation, any significant reduction in calculated regulatory capital would require very strong justification. As a general rule, Basel II does not give banks much credit for diversification risk reductions, and looking back in hindsight after the financial market meltdown of 2008/09, it appears many banks were fooled into believing their investment holdings were more diversified than turned out to be the case. Solvency II aims to recognize diversiﬁcation beneﬁts more transparently and in a manner unique to each firm. Under Pillar 1, the SCR would take account of diversiﬁcation effects across risks — which is vital to the underwriting aspect of insurance.

Solvency II takes this recognition of risk reduction through diversification one step further. It allows insurers to recognize the effect of risk mitigation techniques in their actuarial models as long as counterparty, credit, market, and other risks are properly captured.

Basel II included credit, operational, and market risks in its capital reserve requirement under Pillar 1. Solvency II include all of these risks plus insurance and liquidity risk. These additional exposures, captured in Basel 3, were added to Solvency II, because the range of risk exposures varies more across insurance companies than across banks. However, measurement of these additional risks brings additional challenges, and insurers may need assistance in determining how to include some risks in their quantitative models and data capturing infrastructure.

Since the financial market meltdown, the solvency position of many financial services firms has come under the scrutiny of the market and financial media. Insurers have been focusing on what amount of capital Solvency II will require them to hold. Another major focus of recent activity is getting their internal models approved for Solvency II compliance. Insurers rely on these models to understanding exactly what their capital positions are going forward, to understand what the future implications of those positions are under differing scenarios, and to evince any decisions they need to take over the next few years regarding their solvency positions. Until the insurers are comfortable with both the SCR and their models’ ability to capture changes in their liabilities and exposures, the firms will not welcome the new regime being ushered in with Solvency II.

Pillar 2 in Basel II concerns setting up internal risk reporting and financial controls and requiring key officers, such as the Chief Executive Officer and Chief Financial Officer, to be held accountable for the accuracy of these numbers. Pilar 2 in Solvency II comprises these same internal risk policies and financial controls, but it also includes wider qualitative risks. Essentially, any risk that cannot be adequately captured in Pillar 1 falls into Pillar 2 by default. Pillar 2 includes corporate governance, governance cultures, risk management and frameworks, the own risk and solvency assessment (ORSA), and incorporating risk management practices into every level of the business.

Some insurers have focused on risk management in the underwriting process but not in the wider business, which means they are underestimating the true risks posed by new product lines or mergers and acquisitions. Risk managers should be providing advice and financial control guidance at every level of the firm. Instead we see a pattern in which risk managers interface with front line underwriters, investment managers, and strategic teams (the so-called “Front Office”), but they have little input to C-level executives or informing the Board about the risks they are taking and how they are being managed. Solvency II is meant to correct that misalignment of risk management resources.

Solvency II shares the disclosure requirement (Pillar 3) in common with Basel 2. Solvency II introduces major new public disclosure requirements and expectations for the insurance industry. Basel II had similar disclosure requirements, and the insurance industry can learn from the banking industry on how to handle these requirements. Basel II requires, inter alia, firms to disclose the approach being used for regulatory capital – whether standardized, partial, or full modelling. No bank or insurance ﬁrm wants to be seen as using less sophisticated modeling than its peers. The most sophisticated insurers will utilize full modeling and disclose the elements of the model to regulators and the public. Like their counterparts in the banking industry, insurance firms will find that Solvency II disclosures frequently come from product and risk systems, but these systems are not perfectly matched and reconcilable to the accounts and general ledger contained in the firms’ quarterly balance sheet filings. Yet all of this information will be in the public domain making it easier for the financial media to pose questions about the discrepancies between the product/risk systems and the financial statements.

Solvency II Three Pillars

Source: http://www.solvency-2.com/news/whatissolvency2.php

Technorati Tags: Basel II, CEIOPS, credit risk, diversification risk, internal model approval, liquidity risk, solvency capital requirement (SCR), Solvency II

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Federal Income Tax Advice Part 4

Posted by Michael A. S. Guth on March 13th, 2011

QUESTION 18: A British national received a relocation package when he moved from London to New York. Under the terms of his employment contract, he would have to reimburse the company for this relocation assistance if he left within the first year, and reimburse the company 50% if he left within the second year. He plans to move at the start of his second year. The client wanted to know the quickest way he could get his tax refund for the reimbursed relocation package. The relocation package was added to his gross income in 2006, and the company withheld federal income taxes from the gross amount of actual wages + relocation benefit.

ANSWER: It is now June 2007, and the client expects to repay the 50% relocation assistance by mid-December. The reimbursement will be completed in 2007 and should be reflected in his W-2 income statement from his employer. The fastest way to get a refund then is to file his 1040 Form for Tax year 2007 as soon as he receives his W-2 statement from his employer in January 2008. The client’s situation is more complicated in that he will also have to file a state and city income tax return and seek a refund of taxes paid to those entities as well as the federal IRS.

In the meantime, I told the client that he should file an amended W-4 form showing that his allowances (measured in $3,400 increments) have increased. With approximately 17 allowances, the client should not have federal income tax withheld from his salary for the remainder of his time working for the employer through September 2007. The amount of taxes already withheld this calendar year will more than cover his tax bill. Upon completing the reimbursement for relocation expenses, he should receive a tax refund in the spring of 2008 covering taxes paid in 2007.

QUESTION 19: I have a client that I prepare tax returns for that is going to be having a taxable event that we need advice on how to minimize both federal & state taxes. They are married filing joint with one dependent. Their income (before the taxable event will be around $100K). They have probably $60K in home interest expense write offs each year. The wife has won a disability claim that she has been working on for the last seven years. She was born in 1958 & the husband was born 1964. She is going to receive a check in the amount of $179,645.32 this month and will be W-2d for these taxable benefits. They are from 2000 to present. She will be receiving $2614.31 per month (adjusted for COLA) going forward until death, the disability is resolved, or her income exceeds 80% of her pre disability income. She will also be receiving a check for $38,350.16 interest on the $179K above.

We need advice on how to minimize their tax burden. Since these payments were from 2000-2007 can we go back and spread the payments out over the years they were actually for, to minimize our marginal tax rate, even though they will be W-2s for this year?

Do you have any ideas that will minimize their tax burden for both federal and state?

ANSWER: Yes, I have many ideas that would help minimize their tax burden, but it may be too late to put them into effect. The time to put tax strategies into effect is long before the tax liability is incurred. Once the income is received a certain way, it is often too late to adopt tax minimizing strategies.

First, if the client has filed some type of worker’s compensation claim, then the $179K payment might be interpreted as compensatory damages from a lawsuit. As a general rule, compensatory damages as well as special damages for suffering, if any, are not taxable, because they are viewed as restoring a person to his or her former self. Punitive damages, in contrast, are fully taxable. So the first idea is to have one or both of these payments declared as compensatory damages, thus obviating the filing of a W-2 information return on that payment to the IRS.

Second, assuming that these payments represent wages that should have been earned in the prior six years, then any settlement could require the employer to go back and file corrected W-2 statements to show the additional income in each of those years totaling the $179K. Your client is going to lose out on the Social Security taxes that would have been paid by the employer for those six years, if instead she receives a single lump sum payment in 2007. Why? Because $179K is greater than the threshold income beyond which FICA taxes must be paid. For example, the employer will only have to pay FICA taxes on the first $90,000 of income in 2007, not the full $179K. So my second suggestion is to require corrected W-2 forms from the employer for years 2000 – 20006.

Third, assuming your client does not have outstanding medical bills and needs a lump sum payment immediately, these funds could be partially shielded from taxation by having a portion deposited into a tax free pension account, such as a 401K. Although there are limits on how much income a person can contribute to a 401K plan each year, when restitution for a disability is made, it may be possible to finesse the contribution amount to be higher than what the person could deposit with earned income. Another option would be to have the employer deposit the funds into a defined benefit plan outside the control of your client. The $179K + interest payment could then be used to fund a defined benefit paid to your client each year. There would be no $179K W-2 information tax return under this scenario, so no taxes would be due. However, the income received from the defined benefit pension would be taxable, of course, but at a much lower rate than the lump sum $179K will be.

Fourth, if any of the $179K is going to be used to pay third parties such as physical therapy offices, hospitals, doctors, etc., then you could structure the settlement for the company to pay the third parties directly. That would reduce the total lump sum payment given to your client and thus reduce her taxes. If the company pays the medical providers directly, then she effectively pays them with pre-tax dollars. If the money is paid to her and then she pays taxes on it, then she is paying her medical debts with after-tax dollars.

QUESTION 20: The client is a tax accountant preparing personal and business federal income tax returns for a man who is sole or principal shareholder of an S corporation. In 2005 or early 2006, the S corporation acquired $30,000 in assets to improve a car wash station in Florida. The S corporation was leasing the property as a car wash and did not own it. At the end of 2006, the S corporation sold the $30,000 in capital assets for $120,000 and also transferred lease of the car wash facility to the buyer. The client now wants to know what IRS forms he must file for his underlying client to report the $90,000 capital gain. As a tax accountant, our client is relatively sophisticated and wants to know specifically what forms are appropriate with Form 1120S, and what numbers should appear on what lines of Schedule K to report this gain.

ANSWER: A few preliminary observations are in order. First, the client is asking in July 2007 about income taxes that were due on April 15, 2007, or sooner, if the provisions of estimated tax payments were triggered by this windfall gain. Second, it is astounding that this client achieved a 400% return in less than one year on his investment in car washing equipment and canopies and related peripherals. The accountant said this enormous gain is due in part to the car wash’s location, which is somewhat doubtful as there must be competing car washes in a 2-mile radius, and also represents goodwill for the established client base. The latter explanation is more plausible, but it still defies reason to pay four times the acquisition cost of equipment and peripherals one year later. Finally, this client apparently intends to declare a basis in the capital goods of $30,000. If he had engaged in appropriate tax planning prior to this transaction, he would have found the means to increase his basis in the equipment so that his tax burden would not be so high.

We begin the tax analysis with IRS Form 4797 Sales of Business Property. This form is used to report gains from the sale of business property generally held over one year. With the fact pattern expressed above, it appears the car wash equipment was held less than one year. The first part of this form applies to property held for over a year. It turns out that the IRS treats “capital gains” income on the sale of most, but not all kinds of, assets held by a business less than a year as ordinary income. Accordingly, you will need to report the car wash equipment should be listed on Line 10 of Form 4797 together with the date of acquisition, date of sale, gross proceeds, cost basis, and any depreciation. Under the facts above, column G of Line 10 should show a $90,000 capital gain. That same amount of $90,000 should be listed on Line 17. As you move down the form, you will list 0 on line 18a, and then $90,000 on Line 18b. This same amount is then reported on Line 14 of the shareholder’s 1040 income tax return.

Line 14 reports business asset sales income apart from the capital gains disclosed on Schedule D. Schedule D gains are reported directly above Line 14 on Line 13 of the 1040 form. Therefore, it will not be necessary for your client to list the $90,000 on Schedule D, because he is already reporting this “capital gain” as ordinary income on Line 14 of the 1040 form.

Because the $120,000 payment by the buyer includes approximately $90,000 in goodwill, it will be necessary for both the buyer and the seller to fill out IRS form 8594. The purpose of Form 8594 is to show the basis in the car wash equipment has jumped from $30,000 to $120,000, and to allow the buyer to claim $120,000 as her basis on some future transaction when she eventually sells the car wash equipment or fully depreciates her cost basis.

Finally, the S Corporation needs to report the $120,000 pass through payment by the corporation to its shareholder. The S Corporation will use Schedule K-1 of IRS Form 1120S. Box 1 of that form is for Ordinary Income. Following the instructions for Part II of Form 4797, it would be consistent for the S Corporation to report the $120,000 proceeds as ordinary income and allow the shareholder to subtract his basis using Form 4797.

We note Congress amended the tax code to impose a maximum taxable rate of 15% on (long term) capital gains through 2010. In an alternative scenario, the S Corporation would report the $120,000 proceeds under Box 7 (Short Term Capital Gains) of Schedule K-1 of Form 1120S. The shareholder will then declare the $120,000 as gross proceeds under the short term capital gains part on line 5, column F, Schedule D to his 1040 Form. Short term capital gains are taxed at the same marginal rate as ordinary income, so the shareholder is unlikely to receive any preferential tax treatment from realizing a short-term capital gain of $90,000. This scenario eliminates the need for filing Form 4797 to show the after-basis proceeds of the sale of business assets, as the basis is declared and subtracted on Schedule D instead of Form 4797.

Technorati Tags: federal income tax, minimize taxes, relocation package, tax advice, tax refund, W-2 wages

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Federal Income Tax Advice Part 3

Posted by Michael A. S. Guth on March 13th, 2011

QUESTION 12: The client is a radiologist who received business income from a hospital, which he turned over to his Radiology Associates partnership. He is treated as both a partner and an employee of the partnership. Problem: the hospital has issued a 1099-MISC form to him for tax year 2006, which indicates he received various fees totaling $35,000. In fact, he turned over these funds to his partnership.

ANSWER: From the IRS’s perspective, it appears that the client received wage income from his partnership and, in addition, miscellaneous business income as an independent contractor from the hospital. The transfer of the income from the doctor to the partnership appears on first impression to be a gift. No information return has been sent to the IRS to indicate otherwise.

The client advised me he is under a legal obligation to transfer the partnership any administrative fees he receives from the hospital. Taking that fact as true, I advised the client to do the following: (1) on the dotted line of Line 13 of the 1040 form for busines income, write in “(35,000)”. (2) Fill out Schedule C and include $35,000 as gross receipts for income. (3) Under the expenses section of Schedule C, write in $35,000 for the category “Other Expenses,” and explain the expense on the reverse side of Schedule C. (4) Use the phrase “I was legally obligated” to turn over the money to the partnership as per my partnership agreeement. (5) Obtain from the partnership a receipt showing that every cent he received from the hospital was deposited to the partnership. (6) *** Most important *** place a copy of that receipt directly behind Schedule C. The purpose of Item 6 is to forestall the IRS from sending out an information request asking for verification that the money was actually transferred to the partnership and not consumed by the client. Declaring the income this way will comply with the IRS’s expectations that no taxpayer ignore or disregard information returns concerning income.

QUESTION 13: The client called about where to report his investment expenses including such things as purchasing financial data, paying for an investment consultation service, using 60% of his computer for investing, etc. He planned to put these expenses on Schedule A under the miscellaneous category.

ANSWER: I advised the client that the IRS did not expect to find investment related expenses in that category. In fact, the IRS publishes a list of other expenses on the instructions for Schedule A, and investment income expenses are not included.

Instead, I told him that these costs should be spread out over the cost basis for the stocks and commodities that he trades and reported in the basis column on Schedule D. Thus, if he spent $200 on consultation services and completed 5 transactions, he might add $40 to the cost basis for each of the 5 transactions.

Depreciating his computer will be more problematic, because he will need to file Form 4562 on depreciation of capital assets, determine the dollar value of the depreciation for this tax year for that asset class, and then spread 60% of that number across his various cost bases.

Finally, he believes his broker is underreporting his investment income, because the broker failed to report income where he sold an option and it expired worthless. I told him that SEC and IRS regulations require brokerage firms to have accurate reporting systems for their clients. It would be surprising if a licensed broker did not have proper accounting for clients who sold options that expired worthless — something that happens millions of times each month. The brokerage firm would be in serious trouble if it permitted these trades to go unreported. He is going to check with his brokerage firm and see if the error is in his calculations or with the broker.

QUESTION 14: The client fathered a child out of wedlock in 2006 and began making voluntary child support payments to the ex-girlfriend. He would like to claim the child as a dependent exemption on his 2006 return, but he knows his ex-girlfriend will claim the child as well. He wanted to know the consequences.

ANSWER: I told him it might take some time, e.g., up to two years, for the IRS to realize the same child has been claimed as an exemption on two different returns. The IRS would then disallow one of the exemptions, require taxes be paid, plus interest, which is usually 10%. Therefore, if he lost the exemption battle, he might have to pay back taxes + two years interest (or however long it takes the IRS to note the problem), but probably not a penalty.

I told him the preferred way to resolve this dispute is to petition the court in Florida where he is battling his ex-girlfriend for custody to issue an order concerning the tax exemption for Tax Year 2006. If he loses the exemption for 2006, he should ask the judge for the right to use the exemption in odd-numbered calendar years.

Although payment of federal income taxes is a federal issue, the IRS defers to the judgment of state courts as to which of two parents can claim the exemption for a dependent child.

QUESTION 15: The client had questions about whether he could expense $25,000 in costs associated with rental property when his income from the property was only $15,000. In particular, he felt he was excluded from excluding the total loss, because his AGI exceeded $200,000 per year.

ANSWER: I told the client this was a case of first impression for me in which AGI factored into whether expenses on rental property could be fully deducted. As a general rule, the expenses of maintaining rental property that generates income are fully deductible. However, to verify that the client did not meet an income test for the deductions, I asked him to fill out IRS form 6198 and sent him the link to both the IRS form and the instructions for the form. http://www.irs.gov/pub/irs-pdf/f6198.pdf The instructions are at http://www.irs.gov/pub/irs-pdf/i6198.pdf.

Once the client fills out the form, the bottom line on the form will indicate what percentage of the 25,000 in expenses he can deduct. I expect that the client will be able to deduct 100% of the expenses. However, if there is an income limitation, it will show up on that form, and the client will have the answer to his question.

QUESTION 16: ISSUE: The client rolled over 401(K) funds from one account to another. The new custodian of his 401(K) funds failed to file an information return with the IRS showing his deposit. The IRS then filed suit against him in Tax Court.

ADVICE: I told the client to obtain a written receipt from the new custodian of his 401(K) funds, Fidelity Guaranty of Lincoln, NE. Under these circumstances, the IRS should have verified the deposit with Fidelity Guaranty and withdrawn its lawsuit. However, the IRS is refusing to withdraw the Tax Court suit. Accordingly, I advised the client to file a Motion for Summary Judgment in the Tax Court case and attach the deposit fund receipt as an exhibit to his motion. American taxpayers rollover funds from IRA accounts and 401(K) plans probably hundreds of thousands of, if not a million, times per year. The IRS knows that is a perfectly legitimate transfer of funds authorized by statute. This client deposited his roll-over funds within 30 – 90 days. It looks like an open-and-shut case in favor of the client.

QUESTION 17: We have an S-corporation, an Internet software company and have some confusion about prepaying taxes. We are signed up through EFTPS but do not know whether to prepay through EFTPS as an individual or an S-corp S-corp taxes are filed as part of the individuals tax return so shouldnt the prepay be done for the individual not the corporation? Also does the self employment tax and state tax apply to even Internet commerce companies? We know that Internet companies do no have to pay state tax but when filing as part of the individuals taxes does the state tax have to be paid?

ANSWER: Generally, an S corporation is exempt from federal income tax other than tax on Excess Net Passive Investment Income, Capital Gains, or Built-in Capital Gains. Is your S Corporation paying you a salary? Will it issue you a W-2 form? If so, then the corporation needs to being paying FICA taxes to the federal government as it pays you or anyone else a salary.

Without seeing what kind of income and expenses your S Corporation has, I cannot definitively say whether it needs to prepay any taxes. Most S Corporations end up passing all their income to the shareholders, who in turn declare this income on their individual returns.

If you are an S corporation then you may be liable for… Use Form…

Income Tax 1120S (S corporation)

Estimated tax 1120-W (corporation only) and 8109

Employment taxes:

Social security and Medicare taxes and income tax withholding

Federal unemployment (FUTA) tax

Depositing employment taxes

941 ( 943 for farm employees)

940
8109

Employment Taxes

If the business has one or more employees, various employment taxes may be required. These could include: 1) the federal income tax withheld from your employees’ wages; 2) social security (FICA) tax, both the amount withheld from employees’ wages and the amount paid as an employer; 3) federal unemployment (FUTA) tax. Social security (FICA) and withheld income taxes are reported together quarterly on IRS Form 941. See Circular E, Employer’s Tax Guide, IRS Publication 15 for deposit rules.

Federal Unemployment Tax (FUTA) is reported and paid separate from FICA and withheld income tax. IRS Form 940, an annual return, is used to report FUTA tax. Quarterly deposits are required if unpaid tax exceeds $100. For more information on FICA, FUTA and income tax withholdings, see Circular E, Employer’s Tax Guide, IRS Publication 15.

Excise Taxes

The federal government imposes excise taxes on certain business activities. Your software company does not manufacture or sell alcoholic beverages, tobacco, or firearms. You also would not have to pay excise taxes for operating large vehicles on public highways.

If an S Corporation is required to pay tax at the federal level, it may be required to pay tax at the state level. Normally, S Corporations are subject to corporate income tax due to Excess Net Passive Investment Income, Capital Gains, or Built-in Capital Gains.

We are signed up through EFTPS but do not know whether to prepay through EFTPS as an individual or an S-corp S-corp taxes are filed as part of the individuals tax return so shouldnt the prepay be done for the individual not the corporation?

For ordinary income, the prepay should be done on the individuals who will ultimately receive the S Corporation’s income at the end of the year.

Also does the self employment tax and state tax apply to even Internet commerce companies?

Yes of course. Someone ultimately receives that income, it does not float around in cyberspace. The federal and state governments have a right to tax that income when it is received within their territorial jurisdictions.

We know that Internet companies do no have to pay state tax but when filing as part of the individuals taxes does the state tax have to be paid?

Internet companies do not pay state sales taxes if they have no physical presence in the state. However, Internet companies have to pay income taxes just like any other company that earns income. If your S Corporation owes no federal income tax in 2007, then it will probably owe no state income tax. However, that does not mean your S Corporation can avoid paying FICA taxes on wage income. If you owe federal income tax on the income you receive in distribution from the S Corporation, then you will likely have to pay state income tax on this same money. It is only taxed once (at the individual level) and not taxed at both the corporate and individual level when the business entity is an S Corporation.

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Court of Appeals Decision on Child Support Debtor Brief Case

Posted by mgadmin on March 12th, 2011

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

E1999-00205-COA-R3-CV

STATE OF TENNESSEE, EX REL.,

) C/A NO. 03A01-9906-JV-00209

MICKEY PHILLIPS,

)

)

Plaintiff-Appellee, )

)

)

) APPEAL AS OF RIGHT FROM THE

v.

) ANDERSON COUNTY JUVENILE COURT

)

)

)

GWEN KNOX,

)

) HONORABLE PATRICIA HESS,

Defendant-Appellant.) JUDGE

For Appellant

For Appellee

DR. MICHAEL A. S. GUTH

PAUL G. SUMMERS

Oak Ridge, Tennessee

Attorney General and Reporter

Nashville, Tennessee

DOUGLAS EARL DIMOND

Assistant Attorney General

Nashville, Tennessee

O P I N I O N

VACATED AND REMANDED

Susano, J.

FILED

February 25, 2000

Cecil Crowson, Jr.

Appellate Court Clerk

Page 2

1

In view of our decision in this case, we do not find it necessary to

address the seven other issues raised by Knox, all of which pertain to the

validity of the trial court�s finding of contempt.

2

This appeal arises out of an order of the Anderson

County Juvenile Court finding the defendant Gwen Knox in contempt

for failing to pay child support. Within 30 days of the entry of

the order, Knox filed a petition that she entitled �Respondent�s

Second Petition to Vacate and Modify the Court�s Orders.� The

trial court dismissed the petition because it found that there

was no authority allowing a �[s]econd petition� to be filed.

Knox appeals the dismissal of her petition. Because we construe

Knox�s petition to be one pursuant to Rule 59.04, Tenn.R.Civ.P.,

i.e., a motion to alter or amend the trial court�s order of

February 4, 1999, we vacate the trial court�s order of dismissal

and remand this case for further proceedings.

1

I.

The record before us does not contain a transcript or

statement of the evidence. Therefore, our review in this case is

limited to the pleadings and orders transmitted to us by the

clerk of the trial court. We must determine if that record

reflects reversible error on its face.

This case arises from a child custody dispute between

Knox and Mickey Phillips (�Father�), the parents of Kelly Ann

Phillips (DOB: January 28, 1989). In an order entered February

28, 1996, the trial court granted Father custody of Kelly. On

September 24, 1996, the State of Tennessee, as Father�s assignee,

filed a petition seeking to modify the order of custody to

include an award of child support to Father. On February 18,

Page 3

2

The petition is not dated nor does it bear a date stamp; however, it

appears from its location in the record that the petition was filed in either

January or February, 1998.

3

1997, the trial court granted the State�s petition and ordered

Knox to pay child support of $100 per month.

In early 1998,

2

Knox filed a document entitled

�Petition to Vacate or Modify Order,� in which Knox asked the

trial court to vacate the order directing her to pay child

support. On April 13, 1998, the State filed a petition for

contempt against Knox based upon her alleged failure to pay child

support. A hearing was scheduled on the pending matters for

September 10, 1998. Knox, however, failed to appear on this

date. On November 13, 1998, the trial court issued an order of

attachment for Knox.

On February 4, 1999, a contempt hearing was held.

Following the hearing, the trial court opined as follows:

The Court finds [Knox] in willful contempt

due to the fact that she has had jobs and

earned money and failed to pay support.

Court finds her testimony to be of

questionable credibility. She is able bodied

and has 2 sources of child care for her 3

children while she works (her mother and DCS

benefits). The Motion to Vacate or Modify

Support is denied since [Knox] is capable of

working.

The trial court ordered Knox to be jailed for 30 days. The court

further ordered that Knox could purge herself of contempt by

paying $1,000 on the child support arrearage.

On March 2, 1999, within 30 days of the order of

February 4, 1999, Knox filed the petition referred to in the

Page 4

4

first paragraph of this opinion, in which Knox alleges that the

February 4, 1999, contempt hearing violated her constitutional

rights. The trial court dismissed this petition on May 21, 1999,

finding as follows:

No authority is offered, nor does the Court

know of any authority which would allow a

Second petition of this type to be filed.

The prior order stated that the �First�

petition or request to modify or vacate was

denied. The Court does not reach any other

issues raised due to this procedural issue

which is dispositive.

This appeal followed.

II.

The apparent basis for the trial court�s dismissal of

Knox�s petition was the court�s perception that the petition was

another attempt by Knox to challenge the trial court�s initial

order directing her to pay child support. We do not agree with

the trial court�s interpretation of this pleading. In construing

post-judgment motions, substance must prevail over form.

Tennessee Farmers Mut. Ins. Co. v. Farmer, 970 S.W.2d 453, 455

(Tenn. 1998). Upon reviewing Knox�s �[s]econd petition�, we find

that this pleading is, in substance, a motion to alter or amend

the order of the trial court finding Knox in contempt. See Rule

59.04, Tenn.R.Civ.P. Knox properly filed this pleading within

thirty days of the entry of the challenged order. See Rule

59.02, Tenn.R.Civ.P. Accordingly, we hold that the trial court

erred in failing to consider Knox�s post-judgment pleading. The

trial court should have ignored the misnomer of Knox�s pleading

and focused instead on the substance of that document. To the

extent that it challenges the correctness of the February 4,

Page 5

5

1999, order finding her in contempt, it was properly filed and

should have been considered by the trial court. We now remand

for this purpose.

III.

In accordance with the above analysis, we vacate the

trial court�s dismissal of Knox�s post-judgment pleading and

remand this case to the court below for further proceedings.

Costs on appeal are taxed to the appellee.

__________________________

Charles D. Susano, Jr., J.

CONCUR:

______________________

Herschel P. Franks, J.

______________________

D. Michael Swiney, J.

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Food and Nutrition Labeling Litigation

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Issues on Wrongful conviction for Child Molestation: Lack of Evidence, hearsay

Testimonial

Solvency II and Basel II Compared

Federal Income Tax Advice Part 4

Federal Income Tax Advice Part 3

Employment Taxes

Excise Taxes

Court of Appeals Decision on Child Support Debtor Brief Case

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If you are an S corporation then you may be liable for…	Use Form…
Income Tax	1120S (S corporation)
Estimated tax	1120-W (corporation only) and 8109
Employment taxes: Social security and Medicare taxes and income tax withholding Federal unemployment (FUTA) tax Depositing employment taxes	941 ( 943 for farm employees) 940 8109

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