FAQ # 14 - About Social Security Disability – By Salvador Benavidez

Are there benefits for children?  YOUR child can receive benefits; this includes biological child, adopted child or dependent stepchild.  The following is required for a child to receive benefits:

·         A parent who is disabled, retired and entitled to Social Security benefits;

·         A deceased parent who died after working long enough and paid social security taxes;

·         Child must be unmarried;

·         Under the age 18;

o   18-19, a full-time student (grade no higher than 12)

o   18 or older and disabled if the disability started before the age 22.

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Asset protection of inheritances and windfalls - by Daniel L. O’Neil

There is no one size fits all solution for an unhappily married person to begin contemplating divorce and the impact that might have on a recent inheritance from a recently deceased parent or other family member. This is one of the most common inquiries we get in the overlapping world of my practice (estate planning, probate, and tax controversy) and my law partner Angela’s (all things family law) to take care of the lifetime legal needs of families.

There is no one size fits all solution because it depends on what type of assets they are (cash, land, or stuff) just as much as how it fits into the overall estate plan you have in place just as much as the state of life your beneficiaries and fiduciaries are in just as much as managing the possible tax consequences of one maneuver over another while balancing the potential need to have that cash available in the future to pay medical bills or college tuition for children or grandchildren.

Trusts can be revocable or irrevocable and that is a big difference to appreciate the benefits and burdens of each, especially as they relate to the overall comprehensive estate plan that is already in place. Depending on the size of the inheritance that might force tax planning updates to your estate plan which are relevant for gift, estate, and GST tax reasons unrelated to a possible impending divorce. Trusts cost money to set up. Trusts cost time and energy to set up. Trusts require additional reporting requirements once they are funded. And trusts are not an opaque vessel – it’s a standard request in discovery in a contested divorce case and it is discoverable.

State law marital property concepts are important too: marital property characterization, community property presumption, tracing, commingling, reimbursement, and more can come into play depending on the exact specifics. Inheritances are separate property, until they are not.

“Lawyer in a box” packages you can buy off the internet are usually not asking you any of the important questions to be able to advise you based on the facts and the law, they are just trying to move product. That product is appealing to some people since they can order it off of their phone pretty cheaply and take care of the paperwork in their living room without ever needing to go into a lawyer’s office. But the consequences of taking your legal advice that way can definitely impact you financially later on – those papers you got in the mail or downloaded offline might not be doing what you thought were doing for you and now you have expensive problems in a divorce case, or more serious problems with the IRS with hefty civil penalties and interest; and perhaps an opened tax crimes investigation as well.

There are two kinds of estate plans: comprehensive estate plans and estate plans that are not comprehensive. Asset protection, trusts, and other maneuvers are a part of that conversation if you have received a large inheritance or other windfall, just as much as if you are contemplating divorce and you need someone to explain community property and separate property to you and how that looks in a contested divorce case with boxes and boxes of discovery as we commonly see.

Frye, Oaks, Benavidez & O’Neil, PLLC: Over 105 years of legal experience now under one roof.

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NeNe Leakes: IRS Tax Liens & the new normal - by Daniel L. O’Neil

NeNe Leakes was in the news (on my facebook trending news feed at least) recently over an IRS tax lien of $824,366.01.

Who is NeNe Leakes? She was the Rocky Rhoades character on the brilliant NBC sitcom The New Normal, which was canceled well before its time. She was the production assistant and producer for Bryan in the show on the show he worked on; and she had some of the funniest lines in the show. That is the easy question. Now let’s talk about tax liens.

The Internal Revenue Manual words it interestingly as they describe it this way:

The law generally defines a lien as a charge or encumbrance that one person has on the property of another as security for a debt or obligation. Essentially, this concept can be reduced to a simple metaphor — i.e., a special "sticker" similar to what a moving company puts on the furniture, boxes, and other contents of a house when it takes the owner’s property from one place to another. The lien (or "sticker" ) does not change the ownership or other qualities of the property to which it is affixed; it merely identifies the property as having some kind of claim against it. IRM 5.17.2.2.

But keeps it more buttoned down describing how it arises:

The federal tax lien arises when any "person" liable to pay any federal tax fails to pay the tax after a demand by the Government for payment. IRC § 6321. For federal tax law purposes, a "person" is defined to include individuals, trusts, estates, partnerships, associations, companies, and corporations. IRC § 7701(a)(1). The lien is effective from the date the Government assesses the tax. Thus, if the taxpayer neglects or refuses to pay the assessed tax, then the lien is deemed to relate back to the assessment date. IRC § 6322. The Service is not required to file a NFTL in order for the tax lien to attach. As discussed later in the text, the Service may file a NFTL in order to have priority over the taxpayer’s other creditors. IRM 5.17.2.2.1

For purposes of addressing the basics of a tax lien these are some (not all) of the important things to know:

It’s civil, not criminal. There are criminal avenues to pursue if they want but that’s not this – it’s just money that’s due when there is a lien. At the point the lien originates that means the taxpayer compliance is pretty low. Your taxpayer compliance history with the IRS is important because it is your “permanent record” like when you were in elementary school. Everything is on that. If you have a low taxpayer compliance history score it means you are on the IRS radar. This is something you do not want, unless you think audits are fun.

Also, a lien is not a levy. A levy is more serious because your stuff goes out the door (literally or you know, figuratively) to pay your debt. A lien is just a piece of paper hanging over your head. A levy means the Tax Man blew through town and took your stuff and sold it.

Form 668(Y)(c) is the important form when we talk about tax liens. The Form is filed with the county clerk. This is the form that is public record. This is the form that title companies will find and tell you that you have a problem if you are involved with title companies for one reason or the other such as selling property or something else that our new associate Katherine Van Wagner may be helping you out with over in our Land Department.

These are the important parts of the Form 668(Y)(c):

Kind of Tax – what type of return gave rise to the lien. Very often it is a 1040. Someone got tired of paying personal income tax and well, the IRS didn’t really like that arrangement. So they fired off a tax lien, and you can imagine they shouted “Get good!” as they did it because this is the kinder gentler IRS that is trying to relate to you after acknowledging the public perception issues they have had in the past, choosing enforcement priorities to shake down waiters and bartenders for underreporting tips rather than the investment banks who were doing different stuff with tax consequences during both the Bush and Obama administrations.

Tax Year(s) – this matters for statute of limitations, but tells you how many tax years you are in the doghouse over. If it is an open year there is more that can be done to address penalties and interest. For closed years there are sometimes maneuvers a trained tax lawyer can make to “open” up closed years in the tax controversy process. For instance, I was able to open up 2007 and 2008 recently in one case with a loophole. For open years you might be able to amend your return if you forgot what deductions and credits were on that year. Or if you didn’t file a return for that year you can actually file a real one prepared by a reputable CPA who can give you much more preferential numbers to deal with than what the IRS uses for you if you do not file a return – what is called “substitute for return” numbers, which for essentially hypothetical purposes the IRS theorizes you made the most money possible that is realistic given other information they have about you from other people (e.g. 1099s, W-2s, whatever) and that you decided to not take any deductions or credits on that huge bag of money you made. Obviously, substitute for return numbers are not favorable so if it’s a nonfiling situation you can reduce your tax lien amount considerably by just filing a return.

Date of Assessment – this is important for the clock that gets started from this day. If you ignore the lien (and are able to ignore the lien, and the IRS will let you ignore the lien) there will come a time when the lien might no longer be valid if you wait it.

Last day to refile – this is when the shot clock runs out on the date of assessment mentioned above. If you have ignored the lien and the IRS has let you ignore the lien they need to refile it by this date, or the lien dissolves. These are not super common but they can happen.

Unpaid balance of assessment – this is important for a few different reasons. It tells you how bad things are. Which is good if you can find a way to knock that down quickly by addressing penalties and interest. But it is also bad since you probably know that interest will be running so that number will climb higher if you ignore it.

Payoff amount – this is a different number than what you find on the IRS transcript. This comes from the Centralized Lien Operations unit at the IRS.

Release – this is what you want when you have a tax lien. In a perfect world you pay off your lien one way or another and the IRS timely processes the release within 30 days of you dissolving the lien. In an imperfect world the IRS doesn’t get around to it in 30 days so you then need to take some extra steps to substantiate payment and other details, then you ask the IRS for a certificate of release.

This is a good introduction to the wonderful world of tax liens if you saw NeNe Leakes in the news recently and you wanted to know a bit more about how this all works. There is more to know of course if you have a specific interest – discharge, subordination, withdrawal, installment agreement, fresh start initiative, and more.

If you have a tax problem and you think you might need some help in the tax controversy process you can give us a call and we can see how we can help you today. Frye, Oaks, Benavidez & O’Neil, PLLC: over 105 years of combined legal experience now under one roof.

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USCIS filing fees will go up in December – Michael Dominguez

If you are considering Citizenship and Immigration Services today announced a final rule published in the Federal Register, adjusting the fees required for most immigration applications and petitions. The new fees will be effective Dec. 23, 2016.

The I-129 petition for a Nonimmigrant worker will increase from $325 to $460. The I-140 Immigrant Petition for Alien Worker will increase to $700 from $580. For individuals filing for permanent residency for their family members the filing fee is going to increase from $985 + $85 to $1,140 + $85. Individuals filing for Naturalization will now pay $640 instead of $595.

It is important to note that USCIS is almost entirely funded by the fees paid by applicants and petitioners for immigration benefits. Therefore, USCIS generally reviews their fees every two years to determine the funding levels necessary to administer the nation’s immigration laws. Petitions submitted with the incorrect fees will be rejected. It is always a good idea to discuss any potential immigration process with an attorney to ensure that you are eligible to apply for the benefit sought.

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Family and Friends Loans - By Chris M. Ervin

      When considering making a loan to family or friends, you should consider treating the situation as strictly business.  You should consider drawing up legal papers--an agreement stating that the person will indeed pay the money back. Your loan agreement can specify whether the loan is secured (that is, the lender holds title to part of Borrower’s property) or unsecured, what the payments will be, when they're due and what the interest is. Even if your loan agreement is not complex, it is always a good idea to consult your attorney about the best ways to structure the loan.

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Family Law: What To Do When You Have Been Served – By Angela Oaks

If you have been served with paperwork (original petition for divorce, modification of possession & access, enforcement of child support) – stay calm.  First schedule a consult with an attorney who has experience in this area of the law, and do it quickly; there are deadlines that start counting down the day that you are served.  The consultation should cover all your options and help you decide how to proceed. 

Whether you hire an attorney or proceed on your own, you need to file a response by the deadline.  Failure to file a response tells the court that you are not interested and that can be fatal to your defense. 

Just because you have been sued does not mean “game over;” in fact, being served is just the beginning.   So know your rights, meet your deadlines and move forward strategically to achieve your goals.   

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How to React to Being Pulled Over - By Chris M. Ervin

With all the current news across the nation it has become important to know your rights.  A Police Officer can pull you over for any traffic violation, no matter how minor.  There are some very important things to keep in mind in order to try to prevent the situation from becoming contentious or dangerous.

Once you recognize that you are being pulled over by the Police there are some very important steps to take. 

1.      Look for a convenient spot to pull over.

2.      Relax

            As difficult as it can be, try to remain calm and be as polite as you can. Even if your rights have been violated, you’re not going to argue your way out of the problem.

3.      Roll down your driver's side window

4.      Don't speak first

5.      You have the right to remain silent.

During a traffic stop, you must provide your license, registration, insurance, and name, when asked.  But you’re not required to give a statement beyond that. You can simply say, “I choose not to answer that question.”

6.      Follow any orders given by the officer

            It is also always a good idea to make sure the police can see your hands, and that you don’t make sudden movements, interfere with what the police are trying to do, or give false statements. In other words, don’t give the police an excuse to mistreat you or pile on additional charges.

7.      Know when an officer can legally search your car

            You do not have to consent to a search of yourself or your car. There are many situations in which the police will pull someone over and ask whether the driver would mind if they take a look inside the car. But you don’t have to give that permission.

8.      Be polite, and do not argue if you are given a ticket.

9.      Right to an Attorney

If you are arrested, you have the right to ask for an attorney and should do so immediately. If you have only been stopped temporarily, you’re not entitled to an attorney at that point. But if you’re being held for an extended period of time, either they’re going to have to let you go or place you under arrest.

If you believe that your rights have been violated during a stop by a Police Officer , I have the professionalism and experience to be a vigorous advocate for your issue, large or small.  Call to schedule a consultation today.

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Weekend at Bernie’s: Tax Proposals - by Daniel L. O’Neil

On October 4, 2016 Bernie Sanders publicly announced he would introduce legislation in the next session of Congress aimed squarely at improving the “rigged” tax system and closing “loopholes” that Donald Trump had used in the past. Bernie added the comment at the time that tax breaks for billionaires like the Donald had done nothing to boost the economy or assist the struggling middle and lower classes.

More important than words, the fact sheet from the senator’s office was also released which you can preview here: which includes proposals to exempt real estate from passive loss rules and at-risk rules, as well as the intimation that 1031 exchanges will be done away with entirely. The real estate lobby by itself is a leviathan which explains the history of some tax laws that favor real estate; but the popularity of the 1031 exchange has created a whole cottage industry unto itself. Bernie will face a lot of opposition with these proposals.

Note: This blog was originally drafted on October 6, 2016 and was not updated prior to posting date.

But as always, we are interested to see what happens since we do field a fair share of 1031 exchange questions, and we do work closely with a trusted commercial real estate broker here in Houston.

If the IRS is auditing you based on some real estate transactions please give us a call and let’s talk about the tax controversy process. Frye, Oaks, Benavidez & O’Neil, PLLC: more than 105 years of legal experience now under one roof.

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So you married an American…now what? – By Michael Dominguez

Congratulations you married a U.S. citizen. America and Customs and Border Protection (CBP) will welcome you with open arms right? Well not so fast. Like all things related to our government there is a process, and the process must be respected. If you are already in the U.S. and you entered with inspection, congratulations, there may be (in certain circumstance) a process that will allow you to apply within the U.S. for adjustment of status. However, if you are outside the U.S. do not try to enter as a tourist and announce your intention to move in with your spouse and apply for permanent residency.

People have actually been detained or denied admission for trying to come in as a tourist or even some work visas with their U.S. citizen spouse. On occasion people have been expeditedly removed, requiring them to apply for a waiver in order to come back into the U.S.

I can tell you from professional experience that petitioning for a spouse who is currently abroad can be a time consuming, frustrating experience. At times you are subject to a factors that are completely random. For example, if your spouse lives in a country with a Department of Homeland Security (DHS) office that accepts applications then they can sometimes apply directly at the consulate or embassy. This will literally save 9 months to a year. I once had a client with the good fortune of living in South Africa. His wife’s immigrant visa was ready within three weeks. But this unfortunately is the exception and not the rule.

If you are going to marry a U.S. citizen or if you are a U.S. citizen marrying a foreign national, you should consult with an immigration attorney so that you can discuss the specifics of your situation and craft the right legal strategy.

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FAQ # 13 About Social Security Disability - By Salvador Benavidez

What is Medicare?  Medicare is our country’s health insurance for people 65 and older.  There are exceptions:  People under 65 with certain disabilities can also qualify.  Do not confuse this with Medicaid.  Medicaid and Medicare are different programs facilitated by two different entities.  Medicaid and Medicare are also specifically aligned with SSI or SSDI.

Generally, Medicaid is a State facilitated program and each state has its own rules.  Medicare has four parts and can be specifically designed around your needs.

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The Indian call center gambit - by Daniel L. O’Neil

Scammers and fraudsters are getting more sophisticated in their gambits. Recent news out of Mumbai that a criminal ring of nine call centers were impersonating Internal Revenue Service officials and demanding money from American taxpayers. This scheme went on for nearly a year, ending in 70 arrests in Mumbai along with another 600 individuals under investigation. The scheme was taking in nearly $150,000 USD per day so it was clearly more sophisticated than the Nigerian Prince e-mails we all have been receiving since we registered our first AOL account in the 90s. There are ways to protect yourself though.

Some of the common hallmarks of IRS fraud schemes include:

·       There was no official written correspondence to your true mailing address relating to what the phone calls were about

·         There are threats that the “local police” would come arrest you if you didn’t pay immediately

·         There are threats that IRS agents would raid your home if you didn’t pay immediately

Reality:

·         The IRS does not officially communicate by you with e-mail.

·         There are processes and procedures, including notice to you, that the IRS must follow before they can take drastic measures like liens or levies, so they have even less authority to shake you down over the telephone for money.

·         The IRS is a federal agency, they do not use “local police” for enforcement.

·         Except for referrals to CI for investigation of tax crimes, when you deal with the IRS you are dealing with revenue agents, appeals officers, settlement officers, Chief Counsel lawyers … these people do not carry guns in the ordinary course of business or kick down your doors. Taxes are civil matters until two special agents (carrying guns) show up on your door step and ask to talk to you. That’s when you have moved from the civil side to the criminal side.

The IRS has to comply with rules and regulations designed to protect American taxpayers. Even if you owe a lot of money to the IRS the odds are if “someone” calls you and demands money on the phone immediately, it’s not the Real IRS.

If you are being audited by the Real IRS or two special agents show up on your door step and you want to talk to a lawyer with a Master of Laws in Taxation that had advanced coursework beyond the J.D. in Tax Crimes & Money Laundering and other matters, give us a call and let’s start the conversation. Frye, Oaks, Benavidez & O’Neil, PLLC: more than 105 years of legal experience now under one roof.

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Core principles of our law firm - By Katherine Van Wagner

For those of you unfamiliar with our law firm, our core principles are anchored in championing for equal respect and dignity for all human beings, particularly those in the LGBTIQ community.  (If you ever stop by our office you will discover we also have a lot of love for our four-legged friends.)

On September 16^th and 17^th, I had the privilege of attending my first Gender Infinity Conference and Unity Banquet.  The Gender Infinity Conference brought together transgender individuals, their families, educators, providers, and advocates in furtherance of learning about and helping the transgender community.  One of our partners, Phyllis Frye, spoke at the conference about the legal history and current legal climate of transgender law and her own experiences as a transgender individual.  She is the first openly transgender judge in the nation and possibly the world.

The Unity Banquet was held at a local Houston hotel and focused on celebrating and recognizing all those who have made a positive impact in Houston’s transgender community.  Since Frye, Oaks, Benavidez & O’Neil, PLLC, participated as a featured vendor at both the Gender Infinity Conference and Unity Banquet, members of our firm were able to connect with many members of the transgender community, their families, and advocates.

At both the Gender Infinity Conference and Unity Banquet, I met lovely individuals and learned a lot more about the plight of the transgender community.  I want to thank the brave and beautiful souls who took the time to share their stories and enlighten and educate me.   They helped me better understand issues related to being transgender.  Before attending the Gender Infinity Conference and Unity Banquet, I did not fully consider and comprehend all the obstacles facing transgender individuals and the psychological impact those obstacles can have.  Things that many of us take for granted, like the sex on our driver’s license or the choice of restroom to use, serve as daily reminders to transgender individual of the battles they still face.

While I have in no way personally experienced the struggles of the transgender community and do not want to diminish their particular difficulties, most of us have experienced times in our lives where we struggled to feel accepted and included.  I think we can all empathize with the basic desire to feel loved and accepted for who we are.  With coverage of the seemingly endless tragedies bombarding us on social media these days, isn’t it time we all learn to reconnect with our humanity and show some compassion and understanding?  Despite all of our differences, one thing will always bind us; we are all human beings. 

If you are a human being with a legal matter that needs attention, I hope you will consider contacting us.  We have a team of attorneys ready to assist you with a wide variety of legal needs.  We strive to make our office a welcoming environment for people of all races, religions, genders, sexual orientations, and sexual identifications. We promise to reserve our judgment and discrimination for the sports teams you support (just kidding!).

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Debt Collection - by Chris M. Ervin

It can happen to anyone: you suffer a financial set-back like the loss of a job, and you are unable to make timely payments on a debt. What can you do?

Validate

                If a debt collector contacts you request information such as the amount owed and date of last payment.

Challenge it

You can write the creditor to say you’re disputing the debt. Be as specific as possible in your letter. Say why the debt collection attempt is not valid, including information about payment history or why the debt may not be yours and any other relevant information.

Pay it off?

Although you may think paying at least a little bit will get the creditor off your back, it can make things much worse. Making even a single payment on time-barred debt can bring it back from the dead and reset the statute of limitations.

Harassment and Fraud

State law prohibits the use of harassment and abusive collection tactics. It is illegal for any debt collector to:

threaten violence or other criminal acts;

use profane or obscene language;

falsely accuse the consumer of fraud or other crimes;

threaten arrest of the consumer, or repossession or other seizure of property without proper court proceedings;

use the telephone to harass debtors by calling anonymously or making repeated or continuous calls;

make collect telephone calls without disclosing the true name of the caller before the charges are accepted.

The use of fraudulent or deceptive practices is also prohibited, including:

using a false name or identification;

misrepresenting the amount of the debt or its judicial status;

sending documents to a debtor that falsely appear to be from a court or other official agency;

failing to identify who holds the debt;

misrepresenting the nature of the services rendered by the collection agency or the collector;

falsely representing that the collector has information or something of value in order to discover information about the consumer.

If you believe that your rights have been violated by a Debt Collector, I have the professionalism and experience to be a vigorous advocate for your issue, large or small.  Call to schedule a consultation today.

Frye, Oaks, Benavidez, and O’Neil

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Jury Trial In Family Law - Angela Oaks

Some clients would like a jury to make the decisions in their family law trial. But jury trials are not always an option family law cases, and generally, a judge decides the issues.  This is because the Texas Family Code limits the issues that a jury can hear.

A jury may hear:

·         * Whether a common-law marriage exists

·         * Fault in the breakup of the marriage

·         * Attorney’s fees

·         * Which parent will be appointed sole managing conservator, joint managing conservator, or possessory conservator

·         * Which joint managing conservator has the exclusive right to designate a child’s primary residence

·         geographic restriction

·         * Termination of parental rights

·         * Whether property is separate property or community property

·         * The value of property

·         reimbursement claims

A jury may not decide the following issues:

·         * Visitation schedule

·        *  Child support

·         * Parental rights and duties

·         * Division of community property

·         * Spousal maintenance

·        *  Adoption

·        *  Paternity

·         * Enforcement of a prior order

A family lawyer can help you decide if a jury trial is right – or even an option - for your case.

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FAQ # 12 About Social Security Disability - by Salvador Benavidez

Is there a program or assistance when people need help managing their money?  Yes, Social Security’s Representative Payment Program provides a program for the Social Security and SSI payments for those beneficiaries who are not capable of managing their funds.

 

I have participated as a Representative Payee for a client in order to gain insight about the process.  Generally, Social Security will turn to family/friends of the beneficiary; otherwise, Social Security will authorize other qualified persons or organizations.

Keep in mind, the person taking on the roll as a Representative Payee is acting as a fiduciary and has to report to the Social Security Administration.