Tidbits From the Law – May 2011

The following are items in the law that might be of interest to you:

Sometimes one of your neighbors whose property abuts yours may be using a portion of your property. It may be that you did not know that part of your neighbor’s driveway is actually on your property or a shed that was erected by your neighbor is actually on your property. There is a concept in the law known as adverse possession which states that if the neighbor is using your property openly and continuously for a period of 20 years or more, that neighbor may be able to claim that part of the property that they have used belongs to them. The courts may uphold their view that the property then belongs to them. If you are willing to have your neighbor use a portion of your property for some reason, it is best to contact a qualified attorney to prepare an agreement for such use that will acknowledge that the neighbor is able to use such property, but neither of you intends this to be a transfer of the property by adverse possession and you may take the use of the property back.

If you are planning to buy a condominium or a townhouse, make sure to check out the minutes of the association meetings to make sure that there are no special assessments that may be taking place for a new roof or resurfacing a parking lot. Another issue in this economy is how many units are empty and perhaps in the midst of foreclosure. The immediate repair needs of the condo association may fall on the other owners.

In this economy, there are times that a business may go out of business owing the bank more money than it has. The business may abandon the machinery or other equipment or leasehold improvements in the rented facility where it operated. Who has superior rights to such improvements? In a recent case, the court determined that the landlord had superior rights to the bank, even though the bank has a UCC financing statements recorded with the Secretary of State. This was due to the fact that these improvements and equipment were permanently affixed to the real estate and were therefore considered a fixture, which then belonged to the landlord.

You have probably seen the commercials of companies who claim that they can resolve your tax issues with the IRS for pennies on the dollar and wondered if these are real. Although the IRS is not spending a lot of time going after these organizations, it appears that the Fair Trade Commission is taking action and filing suits against these groups, assessing substantial penalties. The old adage is still true that if is sounds too good to be true, it probably is!

If your return is selected for audit by the IRS, remember that is it sometimes the case that the IRS is incorrect, so don’t rush to pay the amount. If you have a tax practitioner who did the return, take the notice to that person and let them check it out. Better yet, ask the tax practitioner to represent you at the audit. That will keep you from talking too much when you answer the questions of the IRS agent. A qualified CPA or tax attorney is also adept at talking with IRS agents. That qualified CPA or tax attorney can also help to organize the documents that will be necessary to prove your case to the IRS. After all, you want to obtain the best result, preferably a “no change letter” which means that you owe no additional taxes.

Congress has finally repealed the Form 1099 Reporting Requirements that was enacted as a part of the federal health reform law. This law required all business to report on a 1099 form all purchases made from any vendor who was paid $600 or more. This was a really unpopular provision as it required the business to spend much more time reporting on its vendors to the IRS. The Small Business Jobs Act of 2011 also required owners of rental properties who were not engaged in business to issue 1099 forms for any purchases made from any vendor where such owner paid over $600 in a calendar year. This provision was also repealed by Congress.