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Brave the cold weather and join us this evening for a presentation on Property Tax Reduction with Dusty Rhodes and Chris Finney at REIA

Author By Christopher P. FinneyPosted on

Tonight, Hamilton County Auditor Emerson “Dusty” Rhodes and Finney Law Firm attorney Chris Finney present on “Property Tax Reduction” at the Greater Cincinnati Real Estate Investors Association (REIA) at 6 PM at the Ramada Plaza at 11320 Chester Rd., Cincinnati, OH 45246 on Thursday, January 4 at 6 PM.

A dinner is served beforehand at 5:30 PM.

The meeting is open for free to REIA members and first-time attendees can obtain a free guest pass here.  REIA’s program announcement is here.  REIA’s web site is here.

Please join us!

 

Federal Income Taxes: One more note for pre-payers

Author By Christopher P. FinneyPosted on

Our blog and every major media outlet has been writing about pre-payment of 2018 real estate taxes (see prior blog entries).  So, for procrastinators on pre-payment (how’s that for a mind-bender?), do you have to drive to the Treasurers office today to do that so that the payment is posted in 2017?

No.

Here’s the update from our crack paralegal team today:

According to the Treasurer’s Office, they post the payments as of the date of the postmark from the post office.

Also, they do have options for paying the real estate taxes online (via credit card), however there are convenience fees that are charged (credit card, 2.5%; electronic check, $1.50 per check).

If mailing a check, make sure the parcel number is in the memo of each check.  I would also mail with each check a copy of the summary from the Auditor showing the new annual tax amount.

So, save yourself the trip and wait in line.  Drop that check on the mail.

Federal Income Tax: IRS muddies the waters on pre-payment of 2018 real estate taxes, but our “advice” stands: Pay them now!

Author By Christopher P. FinneyPosted on

Last week, Congress passed and President Trump signed the most sweeping tax reform package in more than two decades.  And one significant provision of that bill as to individuals is the cap on deductibility of state and local taxes at $10,000 in tax year 2018 and going forward.

This led to our “advice” here that Ohio taxpayers may want to pay their entire (both halves) 2018 real estate tax bills before year’s end to attempt to grab that additional (and perhaps final) deduction in 2017.

(Let us emphasize again the word “may.”  Your specific situation may differ.  Consult your tax professional for advice as to your specific circumstance.)

IRS Advisory muddies the waters

Since that advice, the IRS has muddied the waters by issuing this advisory.  In there, they caution that the 2017 deduction (already condition based upon individual circumstances) applies only if taxes are “assessed” and “paid” in 2017.

(OK, this is going to get confusing.  Perhaps we know “too much” about Ohio real estate taxes making this so complicated.)

What does “assessed” mean?

What exactly does “assessed” mean?  In Ohio, taxes are “a lien on the real estate” for the tax year in question on January 1 of that year.  Since the proposed-to-be-pre-paid 2018 taxes in Ohio are in fact the 2017 taxes (confusing we know, but Ohio real estate tax law is intentionally confusing), then they would seem to be “assessed” as of January 1, 2017, at least as to how this author sees things.

But even though taxes are a “lien” and are “assessed” as of January 1, 2017, when they are “determined” as to amount is another matter.

In Ohio, as in most states, property taxes are a product of multiplying the tax rate times the assessed valuation of property.  For every County in southwest Ohio (except Warren) and most major urban counties in Ohio (Hamilton, Butler, Clermont, Montgomery, Franklin, and Cuyahoga), 2017 is a new “re-valuation” year, meaning that the bills coming out in 2018 will have brand new valuations.  Those valuations were only finalized by the various county auditors in September or October of this year.

Then, the rate.  Tax rates are determined in Ohio for the tax year in question only after the November election results have been finalized.  Levies passed in that election apply retroactively to January 1 of that year, here 2017.

Does “assessed” mean “determined”?

Now this is where it gets super-confusing.  From our perspective, taxes have been assessed for 2017 (payable in 2018) as of January 1 of this year, but the amount of the tax bill in some counties was only very recently determined (and as to Warren County as of this writing has not yet been determined).

So, if the IRS means “determined” in terms of amount when saying “assessed,” then it derives the entirely illogical and unfair result that folks who pre-pay their real estate tax bills in 2017 in Hamilton, Butler, and Clermont Counties can deduct those payments, but folks in Warren County, where that determination appears to be lagging for a few days or weeks, cannot.  It makes utterly no sense.

(As we wrote here, In Warren and certain other counties where the amount has not been finally determined, your 2017 tax year payment may be based on the amount you paid for the 2016 tax year payment.)

Conclusion

Given the last-minute scramble that Congress created with the passage of tax reform, it is from our perspective inexcusable that the IRS chose to inject this uncertainty into what otherwise should be a straightforward matter.  But that is the nature of this federal agency.  Why make things simple, when they can be hopelessly complicated?

However, as to prepayment of Ohio taxes, our advice set forth in our original email and blog entry stands: Pay them now.  The worst-case scenario is that you will have paid the taxes, respectively, one month and seven months too early.  No real harm.  But if we are “right” that they are deductible if paid this year, but may not be next year, then it means a 25% to 39% “savings” on that payment for you (because of the deduction).

Thus, pay them now!

Read more

Read more about the last-minute confusion created by the IRS below:

Washington Post: If you prepaid property taxes, will you get the deduction? If not, can you get your money back?

New York Times: Prepaying Your Property Tax? I.R.S. Cautions It Might Not Pay Off

We hope this clarified things, and did not further confuse them for you.

Ohio Employment Law: What exactly IS sexual harassment?

Author By Stephen E. ImmPosted on

The term “sexual harassment” is in constant use these days. Hardly a day goes by without a new story about a politician, celebrity, athlete, businessman, or even judge being accused of it. But what exactly does the term “sexual harassment” mean?

The term means something different in the law than it does in ordinary conversation. If we hear an employee made a sexually inappropriate comment in front of coworkers, or hear that he told a sexually explicit joke in the workplace, we are likely to say or think, “That’s sexual harassment.” And most people would understand what we mean, and would agree with our description.

But that’s not what the law means when analyzing a court case of “sexual harassment.”

Why the difference? And what is the legal definition of “sexual harassment?”

Basically, there are two types of sexual harassment under the law. One is called “quid pro quo.” This is a Latin phrase meaning “this for that.” In a quid pro quo case of harassment, the receipt of employment benefits (such as keeping one’s job, getting a promotion, etc.) is made to hinge on granting sexual favors. A classic case of quid pro quo sexual harassment would be an employee being fired because she wouldn’t go out with her boss. The conditioning of benefits in a quid pro quo case doesn’t have to be explicit. In fact, it rarely is. More often the “quid pro quo” is implied, rather than stated openly. Either way, it is completely illegal.

The other type of sexual harassment is called a “hostile work environment.” In this case, the employee is not pressured to give in to sexual advances in order to keep her job or obtain benefits, but rather is subject to a pattern of inappropriate behavior in the workplace. The behavior is usually sexual in nature, and has the effect of causing employees of a certain gender – usually women – to feel threatened, humiliated, or harassed at work. Examples include physical acts like unwanted touching, and non-physical behavior like lewd comments or “jokes,” and the display of sexuality explicit material.

A legal case for a “hostile work environment” requires that the offensive behavior be “severe or pervasive.” The occasional inappropriate joke or comment usually will not – by itself – be enough to create what the law considers a hostile work environment. But if it is happening every other day it can be a different story. And if the behavior crosses over into the physical – unwelcome touching or assault, for instance – or if the language used is physically threatening, a “hostile work environment” can be created by even a single act.

These lines – such as between what is “severe or pervasive” and what isn’t – can sometimes be difficult to see. Both employees and employers should reach out to qualified employment counsel to understand these issues and protect their rights. Now more than ever.

Federal Income Tax: Urgent 2017 year-end notice about real estate taxes

Author By Christopher P. FinneyPosted on

We have a critical federal income tax issue of note for consideration by our clients:

>>> You may benefit from pre-paying your 2017 real estate/property tax bill(s) before year’s end.

>>> County Treasurers in Hamilton County, Butler County, Clermont County and Warren County have confirmed that you can determine and pay your entire 2018 real estate tax liability (both halves) before December 31, 2017.

  1. The just-passed federal tax bill caps deductibility of combined state and local income and property taxes at $10,000 per individual or married couple (the cap is the same regardless) for tax year 2018 and going forward, but that cap does not apply in 2017.
  2. Thus, if your state and local income and real estate tax liability is expected to exceed $10,000 in 2018, you may strongly benefit from pre-paying property taxes due in 2018 right now.
  3. We have checked with Hamilton County, Clermont County, Butler County and Warren County.  Each County allows the prepayment of your entire 2018 property tax bills (technically the 2017 bills payable in 2018) before year’s end.
  4. That means you may have the ability to pre-pay both halves before December 31, 2017 and obtain that deduction for the 2017 tax year.
  5. The 2017 tax year property values have only been calculated for Hamilton County, and those values may be ascertained by going to this link.
  6. For those remaining counties, your 2017 tax year payment may be based on the amount you paid for the 2016 tax year payment.
  7. For more information on how to pay, please click on the relevant link(s) below.

In Ohio:

  • For Hamilton County  … Click Here and Here
  • For Clermont County … Click Here and Here
  • For Warren County … Click Here and Here
  • For Butler County … Click Here, Here, and Here

In Kentucky:

  • Property taxes are due in September (City) and October (County) and therefore they cannot be pre-paid.

Your specific situation may differ.  If you are subject to an Alternative Minimum Tax, for example, this pre-payment may not benefit you.

For more information on this and other federal income tax questions, contact Isaac T. Heintz at (513) 943-6654 or Eli Kraft-Jacobs at (513)797-2853.

Ohio Real Property Law: Attorney Chris Finney and County Auditor Dusty Rhodes to present on “Property Tax Reduction” at the Cincinnati Real Estate Investors Association

Author By Christopher P. FinneyPosted on

 

Finney Law Firm attorney Chris Finney and County Auditor Emerson”Dusty” Rhodes present on “Property Tax Reduction” at the Greater Cincinnati Real Estate Investors Association (REIA) at 6 PM at the Ramada Plaza at 11320 Chester Rd., Cincinnati, OH 45246 on Thursday, January 4 at 6 PM.  A dinner is served beforehand at 5:30 PM.

The meeting is open for free to REIA members and first-time attendees can obtain a free guest pass here.  REIA’s program announcement is here.  REIA’s web site is here.

The January 4 meeting is a monthly General Membership meeting of REIA.

For more than ten years, Chris Finney is pleased to have been joined by the County Auditor to present this important topic on legal techniques to reduce your property taxes.  In short, your tax bill is a product of multiplying your tax rate times the subjective value the auditor has placed upon your real property.  There is a quasi-judicial procedure to challenge and potentially reduce the second portion of the equation — the valuation number.  This course addresses the procedures that attorneys or property owners themselves can follow to achieve this annualized savings.

If you can’t make the program, a detailed “How To” video from Finney Law Firm is here.

 

Ohio Employment Law: Are Employers Allowed to Search their Employees?

Author By Stephen E. ImmPosted on
Let’s say a retail store is experiencing a high volume of theft. It suspects that some of its inventory loss may be due to employee theft. So it decides to start searching its employees when they leave the store. This is being done randomly, and is not necessarily based on individualized suspicion of particular employees. Can the employer do this? Is it legal? If so, exactly how far can an employer go in searching its employees?
 
There is a huge difference in this area of the law between government employers and private employers. Government employers are subject to the fourth amendment of the United States Constitution, which prohibits unreasonable searches and seizures. This means that a government employer normally may not search an employee, or his/her personal effects, without “probable cause” to believe the employee has done something wrong.
 
Private employers, however, are not bound by the fourth amendment. They therefore have a much freer hand when it comes to employee searches. Since the worksite is the property of the employer, it ordinarily has the right to inspect any part of that property – desks, lockers, computers, etc. – when it sees fit to do so. This is not an unlimited right, however. The employer cannot, of course, go into areas where its employees have a justifiable expectation of privacy, such as bathrooms.
 
But what about searching employees’ purses or bags or briefcases while the employees are on the employer’s property? This is a little trickier. If an employer has clearly informed its employees, in advance of any searches, that their personal belongings may be subject to search while they are on the employer’s premises, then it is likely that the employees do not have a “reasonable expectation of privacy” with respect to those articles when they are at work. Accordingly, under those circumstances the search of an employee’s personal effects typically will not violate the employee’s rights. Employers must clearly communicate, however, that they reserve the right to conduct these searches. This can be done in an employee handbook, or by clearly posted signs in the workplace, such as in a break room or other common areas.
 
If employees are not informed in advance that their personal effects may be searched while on the employer’s property, an employer’s search of such items as purses or briefcases might be considered illegal by a court.
 
Employers should keep in mind, however, that just because it can conduct a particular search doesn’t mean that it should. As a matter of good employee relations, employers should always be respectful of their employees, and should think carefully before subjecting them to searches that a reasonable person would consider unduly intrusive.
 
If you have questions or concerns about your rights in this area, whether as an employer or employee, be sure to consult competent legal counsel before taking any action or making any decisions.

 

Ohio commercial law: Can a seller sell that which he does not own?

Author By Christopher P. FinneyPosted on

An issue that manifests itself in any number of scenarios is the seemingly odd question: Can a seller contract to sell something that he does not own.

Somewhat surprisingly, the answer can be “yes.”

Hypothetical sale of stock

Let’s take a theoretical situation in which a seller promises to sell to a buyer 1,000 shares of the Procter & Gamble Corporation for $100 per share on the 2nd of January, 2018 (a date that as of this writing has not yet come), but the seller does not own any Procter and Gamble at the time of making such agreement.  Is that contract enforceable against the buyer?  As against the seller?

Sure.  If the seller does not own 1,000 shares of Procter & Gamble Corporation at the time of the contract, he had better make arrangements to get that stock under his ownership or to find a party who does own those shares who will fulfill the seller’s promises.

OK, but what about real property?

But come on, that’s perfectly fine as to a publicly-traded stock, but what about property that is entirely unique, not replaceable with “equal or like-kind” property, and under the control of a third party?

Well, the same principle applies.  If the seller is going to make a binding promise to sell that asset, and he wants to avoid being sued for breach of contract, he had better figure out how to either get title to the property before the promised closing date, or otherwise arrange for the cooperation of the property owner.

The basis for fraud?

The story is as old as the bridge.  A gullible tourist goes to New York City and a local shyster sells them the Brooklyn Bridge.  The seller does not own the bridge at the time of the contract, so it’s an enforceable contract, right?

Well, in that classic case, and in the case of other instances of fraud, selling property that the seller does not own could well be a badge of fraud.  If he knew at the time of contracting that he did not have title, and could not obtain title to the property in question, then the promise to sell that asset clearly would be fraud.

What if the seller claims that he thought he would be able to obtain the asset before the promised closing date, but was just unsuccessful.  Depending on his intentions, and the affirmative representations made by seller in conjunction with the sale, the failure of performance could be simple breach of contract, or it could be actionable fraud.

The peril for the seller

The peril for the seller who does not own the asset he promises to sell is that in order to avoid claims both for breach of contract and fraud, he will need to “pay the price” to get that asset into his name before the date of his performance.  In the case of Procter and Gamble Stock, if the price on the NYSE rises of $150 per share before the first of the year, he may just need to take a loss at $50 per share to assure fulfillment of his contractual obligations.  In the case of unique property owned or controlled by a third party, the seller may be in great peril as he will be under the mercy of that seller to “name his price” and terms to transfer the asset to the seller who has promised it any a date certain to a certain buyer.

Conclusion

This concept comes into play in various scenarios.  And the first instinct of parties — and attorneys — is to think you can’t promise to sell that which you don’t own.  A seller can.  But he should carefully consider the consequences of that decision.

Ohio Personal Injury Law: Liability issues in auto accident cases

Author By Casey A. JonesPosted on

Many times, liability in car accidents is not in question. For example, in Ohio, if someone rear ends you, they are almost always cited for failure to maintain an assured clear distance ahead (often abbreviated as “ACDA”) codified in O.R.C. 4511.21(A). Liability is much easier to prove where the allegedly at-fault driver has been cited. That proof may come even easier where the at-fault driver has admitted to the charges or paid the fines associated therewith. In cases where liability is not at issue, the claim becomes primarily a question of damages (i.e., medical bills, lost wages, pain and suffering, etc.), which can often (though not in every case) be resolved with the at-fault driver’s insurance company without the need for litigation. See (LINK TO PI/MED MAL CONSIDERATIONS ENTRY) for more information on statutes of limitation and other considerations.

However, there are instances where liability is in question, especially where no citations have been issued.  The other driver and/or his or her insurance company may dispute that it was his or her actions that caused the accident. Or, perhaps more often, they may argue that you were “comparatively negligent” (i.e., partially at fault). Ohio exercises a Modified Comparative Fault rule, meaning if the plaintiff’s liability exceeds that of the defendant, he or she may be barred from recovery. See O.R.C. 2513.33. Stated simply, if you are deemed to be 51% or more negligent, you can be absolutely barred from recovery – you get nothing. See Power v. Boles, 110 Ohio App. 3d 29, 44-45 (10th Dist. 1996). If you are deemed to be 50% or less negligent, you can still recover, but your recovery is determined according to your percentage of fault. See id.  For example, if you are in an accident and suffer $100,000.00 of damages, but you are deemed to be 40% liable, you may only receive $60,000.00.

Because the percentage by which you are deemed to have been comparatively at fault may operate to bar any recovery or drastically reduce your recovery, this is often a factor to which we give significant weight when evaluating your claims and negotiating with the other driver’s insurance company. In the foregoing example, you may not be thrilled with the idea of only recovering 60% of your damages, and understandably so. However, this exposes you to some risk because, if a jury ultimately determines that you are even more at fault and, thus, assigns to you 55% of the liability, you could end up receiving nothing. Accordingly, any possibility that you could be assigned a portion of the fault may likely warrant some serious consideration.

Kentucky’s Pro Hac Vice Procedure

Author By Finney Law FirmPosted on

Written By: Kyle M. Winslow

Today, appearance of lawyers on a pro hac vice basis is more common than ever.  Our law firm serves as local counsel for out-of-state attorneys in a variety of litigation cases.  Additionally, we often work with local counsel who serve our clients in other jurisdictions.  Because of the time-sensitive nature of litigation, this article seeks to simplify the pro hac vice procedure in Kentucky state and federal courts.

Admission to practice before a Kentucky state court

Out-of-state lawyers who are not licensed to practice law in the Commonwealth of Kentucky and seek to appear before a Kentucky court must comply with Kentucky’s pro hac vice rule, Supreme Court Rule (“SCR”) 3.030.

First, the attorney seeking admission must submit a pro hac vice certification form through the Kentucky Bar Association (“KBA”).  This form can be found here. At the same time, the KBA requires a per case/per attorney fee in the amount of $310, plus an administrative processing fee of $10.85.

Second, the party wishing for counsel to appear pro hac vice must file a motion requesting permission for its out-of-state lawyer to appear in the case.  While SCR 3.030 does not explicitly state that a motion is required, it implies as much. SCR 3.030(2) (“No motion for permission to practice…shall be granted without submission…of a certification from the Kentucky Bar Association of receipt of this fee”) (emphasis added).  The motion must contain specific information to ensure compliance with SCR 3.030.  Prudent attorneys typically attach an affidavit with the following statements from the attorney seeking pro hac vice admission:

  • The lawyer subjects himself or herself to the jurisdiction and rules of the Supreme Court of Kentucky.
  • The lawyer paid the one-time per case fee required by SCR 3.030. The motion or the affidavit must attach a certification from the KBA of receipt of this fee.  The receipt is in the form of an invoice sent from the KBA.
  • The lawyer has engaged a member of the KBA as co-counsel.
  • The Kentucky attorney serving as co-counsel will attend all trials and will be present at any other times when required by the court.

In addition to the above, the party seeking admission of an out-of-state lawyer should also review the applicable local rules to determine if any additional requirements exist.

Admission to practice in Kentucky federal courts

Joint Local Rule 83.2 governs pro hac vice admission in Kentucky federal courts.

Local Rule 83.2 also requires a party wishing for counsel to appear pro hac vice to file a motion.  The attorney seeking admission must also pay a pro hac vice admission fee in the amount of $125 to the Clerk of Court.  Unlike the state-court requirements, a lawyer seeking pro hac vice admission does not need to pay the one-time case fee imposed by the KBA for state-court cases.  Additionally, the federal fee is paid when you submit the motion through the court’s electronic filing system.  Accordingly, fee payment and filing of the motion can be completed in one process.

Like the state-court motion, a motion for pro hac vice admission must include specific information.  An affidavit should be attached to the motion with the following statements from the attorney seeking pro hac vice admission:

  • Identification of each bar in which the attorney is a member. Additionally, the attorney must attach a certificate of good standing issued by the highest court of the state in which the attorney is a resident.  The certificate of good standing must be issued no more than ninety (90) days before the filing of the motion.
  • Whether the attorney is currently or has ever been disbarred, suspended from practice, or subject to other disciplinary action by any court, state, territory, or the District of Columbia.
  • That the attorney consents to be subject to the jurisdiction and rules of the Kentucky Supreme Court governing professional conduct.
  • Identification of the method of training completed by the attorney before the use of the Court’s electronic filing system. For those attorneys who have been trained on the federal electronic filing system, we simply state that the attorney “has been trained on the use of the CM/ECF systems by the other federal courts in which he has been admitted to practice and has a working familiarity with CM/ECF systems employed by the federal courts.”

A party’s compliance with the above requirements should pave the way to pro hac vice admission.  It bears mentioning, however, that judges require strict compliance with the admission requirements.  In fact, at a recent “cattle-call” docket, the author of this article observed a judge deny multiple pro hac vice motions for failure to attach the KBA receipt.  Additionally, this office has seen federal judges deny opposing parties motions for pro hac vice admission for failure to attach the requisite certificate of good standing.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

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