Sneaking Suspicions
 
Archives-- August 24-September 6, 2003

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This page includes posts from August 24-September 6, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

 

September 5, 2003
The Taste of Dover?

Many, many years ago the National Lampoon did a running gag about my state.

Just about every month it would advise its readers (somewhere in the small print) that four out of five scientists know that the capital of Delaware is Dover.

That percentage is probably a bit higher than the general U.S. population would score.

Besides being the state capital, as well as the site of Dover AFB, where Sgt. Stryker and others served with distinction, there are many reasons why Dover is an interesting place.

On the other hand, the restaurants have never been much of a reason to visit Our Capital City.

I don’t mean to be disrespectful--just honest.  In fact, I’m sure that the Sarge will back me up on this.

On the rare occasions that most folks might talk about food in Dover, the usual discussion centers on the amazingly large collection of fast food or other chain operations that dot the small city’s landscape, including but by no means limited to Red Lobster, Olive Garden, KFC, Burger King, Friendly’s, Hardees, McDonalds, Pizza Hut, Dairy Queen, Lone Star, Ruby Tuesday, Subway, TGI Friday’s, Wendy’s, Uno Pizzeria, Arby’s, Sbarro, Papa John’s, Domino’s, Boston Market, Bob Evans, and Applebee’s.

So when I read that there would be a Taste of Dover event tomorrow night, I must admit my smirkmeter went way over to the right side.

The event is for a great cause, a fundraiser for the Dover Art League on the occasion of the opening season event at the Schwartz Center for the Arts.

Thankfully, the list of those who are contributing their dishes to the affair doesn’t include the usual suspects mentioned above:

Participating caterers are 865, In Boca Au Lupo, JW's Restaurant and Sports Lounge, the Maple Dale Country Club, Mary Edwards Caterers, Personal Chef, Rocco's, Some Guy's Bagels, The Nuts Caterers, 33 West and the Wild Quail Country Club.

Tickets for the event are just about sold out.

I’m sure that those who go will have a great time eating what these outfits present to the assembled multitude.

Just saying “Taste of Dover” still makes me smile, though.

September 4, 2003
Whole lotta table-pounding goin’ on

There’s an old saying about litigation tactics that lays out the three basic options:

  1. If you have the law on your side, pound on the law.
  2. If you have the facts on your side, pound on the facts.
  3. If you don’t have either the facts or the law on your side, pound on the table.

That third option should be exercised with great care and discretion.

As described in an Eighth Circuit decision issued today, however, the plaintiffs and their counsel not only pounded on the table; they also tried to set it on fire, on several occasions.

The Empire Bank of Springfield, Missouri loaned $130,000 to the Good Stewardship Christian Center (GSCC) for the purchase of two properties. Unfortunately, the Center proved to be unable to live up to the promise of its name, and defaulted on the loan within a year.

The bank then began foreclosure proceedings. GSCC gave up possession of one of the parcels, and it was sold. The other parcel, however, was a house in which resided A. Louis Vaughn and his family.

Neither the GSCC nor the Vaughns accepted the foreclosure gracefully. About a year after the bank began to seek the collateral on its loan, the GSCC/Vaughn plaintiffs filed a Federal lawsuit. The second amended version of the complaint alleged race discrimination, violations of the Fair Housing Act, and violations of the Equal Credit Opportunity Act, set out among more than twenty separate claims against the bank, the holding company that owned the bank, and three bank officials.

The plaintiffs didn’t stop there. Shortly after filing the second amended complaint, they tried and failed to have one of the bank’s attorneys disqualified. A few months later they began a series of direct communications with some of the defendants, leading to a protective order directing that all such contacts had to be kept between the attorneys.

GSCC then filed a few unsuccessful motions for sanctions against the defendants’ counsel. After the third such denial, the District Court warned that 

"Plaintiffs [should] curb their desire to motion the Court at whim, lest they find themselves on the receiving end of the sanctions they so persistently and unfoundedly request."

The fun just didn’t stop.

After receiving a fax from “the Vaughn sons” threatening criminal charges against two of the bankers and the bank, the defendants moved to dismiss the case for failure to follow orders. In response, Vaughn sent a racially incendiary letter to the bank’s law firm, and filed a complaint with the Disciplinary Counsel seeking the bank attorney’s disbarment.

Instead of dismissing the case at that point, the judge fined Vaughn $1,000 for violating the prior order, and entered yet another order about ex parte contacts:

"A. Louis Vaughn, or those on his behalf, threaten getting Sue Lasater sent to prison, staging nonviolent rallies, and accuse Mr. Groves of libel and defamation. This type of ex parte communication is not proper, and a violation of the Court's Order."

The antics continued, however. GSCC filed woefully late and incomplete discovery responses, leading to yet another court order and a $250 sanction against plaintiffs’ counsel.

Things didn’t improve. The plaintiffs subjected the bank defendants to extensive questioning totaling over 700 pages of testimony, but balked in less than one hour during Vaughn’s own deposition:

"Vaughn refused to answer simple and straightforward questions, [and] engaged in non-responsive speeches." GSCC's attorney also acted inappropriately, by "fail[ing] to advise his client of his responsibility to cooperate in discovery . . . [and by lodging] constant meritless and inappropriate objections, speeches, and interruptions."

More sanctions followed, and yet the plaintiffs continued their table-pounding. Finally, the District Judge dismissed the suit with prejudice, due to the plaintiffs’ continual violations of the court’s orders.

Faced with this history, the unanimous appellate panel had no difficulty upholding the dismissal:

In the short, but tortured history of this case, GSCC and Vaughn have made inappropriate ex parte communications, in direct violation of a district court order; made numerous baseless motions for sanctions against Appellees' attorneys; failed to properly answer requests for admissions; obstructed discovery during depositions; and failed to pay the sanctions ordered by the district court.

In light of this, we do not think the district court abused its discretion….

We think, in fact, that the district court showed a great deal of patience. The federal courts are not the appropriate arena for puerile retaliation against a bank that has the audacity to foreclose on a defaulted loan.

Boom.

And that’s why one should be very, very careful about what table to pound, how hard to pound it, and especially when to stop all the pounding.

Somebody might pound back, and with good reason.

September 3, 2003
Why isn’t it more a matter of bad pricing?

The past weekend in Rehoboth Beach was surprisingly quiet, especially for a Labor Day holiday.

About the only downtown store that was really busy Saturday evening was Kemp Mill Records, which unfortunately will soon close its doors permanently:

It's been almost two weeks since the store on the corner of First Street and Rehoboth Avenue began posting signs that their location is closing.

Merchandise is being advertised as 25 to 40 percent off and those looking to stock their music and movie libraries are looking for deals.

Music Network, Inc., operating under Chapter 11, recently obtained bankruptcy court approval for the closure of 36 of its stores, including Kemp Mill and several others that will be familiar to bloggers elsewhere in the East and Southeast, such as Turtle’s Music, Willies Music, and Peppermint Music.  

When we went there Saturday night, the place was filled with customers. We bought 6 CDs, normally priced at $17.99 each, for a discounted total of just over $61 (no sales tax, of course--this is Delaware, after all).

Seeing the crowds and the dozens of CDs and DVDs being sold during the 25-30 minutes we were there made me wonder how much of the music industry’s current troubles are a simple matter of bad pricing decisions.

I certainly don’t think I’m alone in deciding that $18 or so for a CD seems a bit steep, especially considering the quality of much of what passes for popular music lately. Knock the unit price down to $11 or so, however, and it’s much easier for me to decide to buy two or three of ‘em.

The industry continues to blame online and other forms of piracy, but seeing those Kemp Mill crowds readily parting with their cash for the bargain CD prices caused me to think there might be a better explanation.

Who have been the real pirates?

September 3, 2003

Takes one to know one

The Washington Times ran a story today about Yassir Arafat and an interview he gave off-camera to our friends at CNN, discussing his prognosis of the current "road map" for peace in the Middle East. The news outlet quoted Arafat as blaming the Israelis for the lack of progress, which in itself is hardly a newsworthy comment.

Instead, the headline was the most intriguing thing about the piece:

Arafat declares U.S. plan a failure

Call me crazy, but when it comes to having experienced sufficient personal failures to be able to convincingly identify it in others, I don't believe anyone could possibly top Arafat.

Why, the man's been a total disaster for the Palestinians for decades.

September 3, 2003
Kindred blogging spirits

Thanks to Stuart Buck's recent reference, I learned about City Comforts, a relatively new blog with a focus on several topics similar to many of the posts to be found here. As David Sucher describes it, the site discusses

Cities, architecture, the 'new urbanism,' real estate, historic preservation, urban design, land use law, landscape, transport etc etc from a mildly libertarian stance.

I hesitate to describe my own stances on these issues on the political scale. Nonetheless, Sucher's pieces are fun to read and think about.

So go there already, and see for yourself.

 

September 2, 2003
Take one bite each from two separate apples

Last week the Second Circuit Court of Appeals issued an opinion relating to inverse condemnation claims against government land use planning decisions.

In some respects, the panel decision breaks no new ground. Nonetheless, the court did make it easier for those claiming that a compensable taking had occurred to bring their lawsuits in Federal court.

Evandro Santini is a Connecticut developer. Through his company, Santini Homes, Inc., he sunk several million dollars into a roughly 75-acre project for about 100 homes in Ellington, Connecticut in the mid-1980’s and very early 1990’s. 

Unbeknownst to Santini, the Connecticut Hazardous Waste Management Service was looking at doing something completely different with the same property.

In keeping with Federal mandates and separate state legislation, the quasi-public state agency was responsible for locating suitable properties for disposing of low-level radioactive waste that was generated within Connecticut.

The initial site planning was done in secret, but eventually the Service publicly announced a list of potential locations that included Santini’s land as among the leading candidates.

Now, it just so happens that if you look up the acronym LULU (Locally Unwanted Land Use) in the dictionary, you’ll see a picture of a low-level radioactive waste storage facility.

Naturally, therefore, the people in and around Ellington did not take this news kindly. Instead, they successfully lobbied the Connecticut legislature to pass and the Governor to sign new legislation telling the Service to find another place for this LULU.

In the meantime, however, the Service’s designation of Santini’s property as a potential hazardous waste site had an unfortunate effect on his marketing efforts.

Imagine that.

Testimony from the Service’s own appraiser in a later state court proceeding showed that the siting announcement probably caused about $215,000 hit on the value of Santini’s land, at least while it remained under consideration for that use, and for some time thereafter.

Nonetheless, the state court ruled against Santini’s claim for inverse condemnation damages. The Connecticut Supreme Court affirmed, noting that the Service’s proposal was simply a step in a planning process, and not the kind of fixed decision to acquire land for which the state should be held to pay.

Santini then filed his takings claim in Federal court, arguing that he had specifically reserved the right to bring his Federal claims in a Federal proceeding, instead of combining those claims with his state law arguments in the Connecticut courts.

Over the Service’s objections, the Second Circuit agreed with Santini, at least with respect to this important procedural issue.  The panel decided that inverse condemnation plaintiffs can preserve the option of having a Federal court review any Federal property rights claims relating to state agency land use decisions, regardless of whether those claims were already heard in the state’s inverse condemnation proceedings.

On the other hand, Santini still didn’t have a case:

The fact that Santini’s claim is based on nothing more than the Service’s 1991 siting announcement—perhaps the prototypical precondemnation governmental activity—dooms the claim on the merits, as the Supreme Court has explicitly held that precondemnation activities do not constitute takings.…

We are not unmindful of the economic impact that the siting announcement obviously had on Santini’s efforts to develop and sell his property. Unfortunately for Santini, however, this impact does not necessarily mean that the governmental action of which he complains constitutes a taking….

Our decision also makes for sound public policy…. We do not believe the Takings Clause requires a state to choose among planning in secret, not planning at all, and exposing itself to takings claims from every property owner whose land might be affected by its plans.

The Second Circuit’s decision will be of cold comfort to the folks at Santini Homes, Inc., who look to be out somewhere in the low six figures for all the trouble this siting announcement caused them. On the other hand, future inverse condemnation plaintiffs owe Evandro Santini a debt of gratitude for pushing his case as far as he did.

The government agencies that must defend themselves against these claims may not feel so grateful.

August 29, 2003
Labor Day Weekend

The traditional end of summer here in some respects simply marks the transition to a different focus on the recreation opportunities that are a major economic element for the region.

Instead of sitting on the beach, soaking up the rays, folks will now be seen sitting in their boats or on beach chairs facing the water, holding fishing poles.

The fishing during September and October, both offshore and in the Inland Bays, can be truly phenomenal. The local FM station runs a daily report from Bill's Sport Shop that goes into remarkable and lengthy detail about what's running where, who's catching what with what kind of bait, and so on.

The weekend also includes a related local tradition--a huge boat sale at Shorts Marine. Somewhere between 300 to 400 new and used boats are on display, along with piles of fishing gear and other nautical stuff.

My plan is to reach the sale just as it opens tomorrow at 8 a.m., to see if there's a boat there with my name on it. Even if there isn't, there might be a good deal on a surf pole or two or three.

Otherwise, the long weekend will be devoted to finishing three books I started reading a couple weeks ago.

Blogging will resume here on Tuesday.

Have a great holiday!

UPDATE: It wasn't as if there weren't enough boats. It's just that none of them were inspirational enough to loosen my grip on my wallet.

The warning I saw on one of the used boats was pretty stark, however:

"Both pontoons leak. Major repairs required!!!"

I'll bet that explains why that particular 24-footer was offered for sale at only $1200.

August 29, 2003
Trusting Mom to do the wrong thing for you

Jon Rey Hurtado loved his mom, and she loved him.

So when Jon Rey and his wife Denice found themselves in a tight jam financially, his mother Barbara was a pillar of strength, on which the couple knew they could rely.

The IRS, the state of Michigan, and several banks simply didn’t have the same relationship with Jon Rey and Denice, and it showed.

The couple owed about $110,000 to the Feds, an additional pile to one bank, and far smaller debts to several other creditors, including the state. On the other hand, they had also settled a lawsuit against Blue Cross and Blue Shield for over $130,000.

Jon Rey then did an interesting thing. He and Denice handed the settlement money over to his mom.

Barbara put the cash in her credit union savings account, with her husband the only other person with legal access to the money. Whenever Jon Rey and Denice needed some of the cash, however, Barbara was right there with the checkbook. Over the course of a few years, Jon Rey and Denice relied on this account for their living expenses.

Barbara never took any of the money for herself. She never even charged a fee for holding the money. What a mom!

Some might find this arrangement a little unusual, especially since Jon Rey and Denice filed for bankruptcy not long after the money ran out.

Others found this arrangement more than a little illegal, especially since Jon Rey and Denice didn’t mention it in any of their filings with the IRS or the Bankruptcy Court.

To his credit, as it were, Jon Rey was pretty blunt about the reasons for this set-up in his deposition:

“Well, several reasons. Number one, I mean I’ve got creditors and creditors. I will just be very candid with you, you know, judgments and so forth, and I needed to survive.”

When the Chapter 7 bankruptcy trustee learned about the bank account and how Barbara used the money, he filed for two specific forms of relief under the bankruptcy code—first, to formally avoid the transfer as fraudulent; and second, to obtain a judgment to recover the money from the person who first held it--in this case, Barbara.

The parties didn’t really disagree that the initial transfer into mom’s bank account was fraudulent, intended to frustrate the debt collection efforts of Jon Rey and Denice’s creditors. On the other hand, Barbara argued that she shouldn’t have to pay back the $130,000 to the trustee, because she was merely an agent of the couple.

The bankruptcy court agreed with her, but the District Court sided with the trustee.

Yesterday, a Sixth Circuit panel unanimously agreed that under these circumstances, the “trust account” was entirely bogus, and that Barbara was now responsible for the $130,000. 

Barbara took the cash initially, but it wasn’t because her son owed her any money. She also had the formal legal authority to spend it in any fashion once it went into her bank account, and her son could not have stopped her. Since the transfer to her was admittedly part of a illegal scheme to play keep-away with the banks and the IRS, however, and since she was the first person to hold the money under this arrangement, she now owed the cash to the bankrupt estate for the sake of those who were legally entitled to it.

Periodically one hears or reads about parents who do just a little too much for their kids. 

This case certainly seems to qualify as yet another example.

August 27, 2003
Annals of marketing

I'm sure the folks at Clarke Environmental Mosquito Control, Inc. weren't trying to be funny.

It just came out that way.

I was doing some research for an upcoming golf column on pest control on golf courses, and read the company's webpage description of Biomist®, which kills adult mosquitoes among other nasty critters.

 

Two golf course superintendents I interviewed praised the stuff for its mosquito-killing qualities, as well as for its effectiveness against flies. Even so, neither one told me about another interesting aspect of the product that the company apparently thought deserved to be mentioned on its web site.

 

Bear in mind that the writers of this ad copy weren't being figurative--they were being completely literal:

Knocks Their Legs Off
Like other pyrethroids, field and laboratory tests have shown that Biomist® at sub-lethal doses causes mosquitoes to lose their legs. This interferes with successful flight and feeding.

I imagine it would.

 

Nothing like trying to land on somebody's arm or ear for a quick bite, and just rolling right off instead.

 

August 27, 2003
Close call on a Rails-to-Trails fight

Administrative law cases usually involve efforts by disappointed regulatory participants to overturn an agency decision.

These folks have an uphill battle, and that’s by design.

The American regulatory process frequently sloughs off some of the really tough social policy decisions onto the administrative agencies, after the legislature sets out the broad parameters of a decision-making framework in a particular area. Once an agency makes the call, judicial review on appeal is normally (and sometimes remarkably) deferential.

The courts typically first defer to the agency’s designated expertise in the area. The judiciary then compounds the appellants’ difficulties by normally requiring only that the agency decision be based on “substantial” evidence—less than a preponderance, but at least the equivalent of what would be required to avoid a directed verdict in a routine civil case.

The main reason for all the judicial deference is that at heart, the agency is carrying forward the fundamental policymaking role the legislature assigned to it. Overturning agency decisions based on a disagreement with an admittedly reasonable legal interpretation, or a disagreement with a reasonable view of the evidence, is tantamount to having the judges take over the legislative policymaking function in the guise of a judicial appeal.

Most judges are actually a tad reluctant to assume that role, with of course some notable exceptions.

Yesterday the Third Circuit issued a 24-page opinion upholding a close call made by the Surface Transportation Board (STB) over what to do with a 2.5-mile-long stretch of rail line in Lancaster County, Pennsylvania, with competing claimants for dominion over the property. 

Local activists and the local government sought to take advantage of the Rails-to-Trails Act and convert the line to an attractive addition to their community.

Unfortunately for them, the law tends to favor those who seek to continue the use of the railroad right-of-way for its original purposes.

A local salvage/scrap operator whose property was adjacent to part of the line filed the paperwork to make an Offer of Financial Assistance (OFA). The OFA gave him the chance to buy the line for a price eventually set by the STB. 

An STB-approved OFA can trump any filings for conversion under the Rails-to-Trails Act, if the evidence supports the offer.

In this case, the OFA applicant was not a railroad; was a single shipper; had no definitive prospects for others to use the line; and, at best, claimed that once he opened it up again, he could better serve customers in the South. The Greenway folks argued that the applicant would have to spend up to $300.000 to restore the line to full use, and that it was essentially uneconomical to go through the effort. 

The STB noted, however, that the OFA applicant had legal restrictions on what he could do with the property for at least two years. Given the time limits and other conditions, the STB determined that the Congressional directive to try to keep rail lines open overrode the separate Rails-to-Trails policy directive to permit another appropriate transportation use for the corridor if rail wasn’t a realistic option anymore.

Even the appellate panel majority noted this was a close case:

We do not suggest that the evidence supporting the STB’s decision is overwhelming. It is, manifestly, modest. A reasonable factfinder could have found Sahd’s demonstration in support of the OFA unpersuasive. Indeed, it is not inconceivable that the members of this panel, had we been members of the STB, would have arrived at a conclusion different from that arrived at by the STB. But as members of a reviewing court we are limited to inquiring whether the STB’s decision had some evidentiary support and was reasonably consistent with the agency’s own precedent. And we hold that the STB has not acted arbitrarily and capriciously in this case, since the decision has some support in the record and the agency’s explanation of how its decision comports with agency precedent is not unreasonable….

The STB applied the OFA statutory provisions established by Congress to serve the public use. In light of the precedent granting Congress a wide berth in determining what constitutes public use, we are loath to second-guess the factual determinations of the agency to which Congress has assigned decision-making responsibility in OFA proceedings.

Judge Rosenn’s nine-page dissent was fairly sharp:

Sahd may have used the line in the past, but not in the last thirteen years. Sahd may “desire to resume using rail service” but mere desire is not proof of feasibility, a need for the service, that there is sufficient traffic for a viable line, and that Sahd has the capability to operate a railroad. Sahd’s unsupported wish is a feeble basis on which to reject important and bona fide local, county, and state plans for trails and open space….

The STB’s judgment in this case has the effect of seriously obstructing the public interest. … As it now stands, there is no evidence to suggest that the track will be used for the public benefit, either for environmental and recreational purposes or for continued rail service.

In my experience, this was about as close as I’ve seen an agency like the STB ever come to having its decision reversed on evidentiary grounds. Reversals based on legal interpretations are far more common. On rare occasions, however, the courts will rule there was just not enough evidence to uphold the agency ruling.

In this instance, it looks to me like the OFA applicant won because of the deferential standard of review on appeal.

If his plans fall through, however, there will still be an opportunity for the state and local government to take the legal steps necessary to create a greenway corridor in the same spot.

August 26, 2003
Annals of alleged local crime

Whenever I write about life in and around Rehoboth Beach, I’m usually wary of coming across as a bit too boosterish.

Considering its miniature size compared to most metropolitan areas, there’s always a concern that anything I say about where I live will come off along the lines of “Everything’s up to date in Kansas City.”

In fact, we really do love living here, and it’s been a great place to raise our family. Sometimes, however, even Rehoboth’s fondest admirers must admit that it’s not a complete and utter paradise.

Last June, for example, I wrote about how a defunct Ames store was being reopened as an after-hours dance club. The entrepreneurs who began this new project included Rob Dick and Eric Tewes, already well known to the Rehoboth community for their extremely popular Blue Moon restaurant.

Recently, however, Dick and Tewes managed to increase their local visibility even further--but not in a good way:

Rehoboth Beach police and federal drug agents said Monday they are continuing their investigation of drug sales in the beach resort, following a sweep last week that netted 18 people, including the co-owners of the Blue Moon restaurant….
Authorities identified the alleged drug traffickers as … Robert J. Dick, 37, … charged with trafficking methamphetamine.
Also arrested on assorted drug offenses [was]: … Eric C. Teves, 33, … of Rehoboth….
Dick and Teves are co-owners of the popular Blue Moon restaurant at 35 Baltimore Ave., and business partners in the after-hours dance club A.M. on Del. 1 north of Rehoboth Beach.
According to court records, police and federal agents raided Dick's home early Friday and seized 5.4 grams of crystal methamphetamine, 30 Ecstasy tablets, a plastic bag of cocaine and assorted drug paraphernalia.

The local FM morning talk show today was abuzz (as it were) about the arrests. The discussion when I was listening centered on the drug bust's potential impact on the Blue Moon’s liquor license and other ancillary effects.

The criminal cases will shake out over the winter, and we’ll just have to wait and see what comes of this enforcement action and any others that this sweep might trigger.

At best, these arrests are sobering reminders that not even tiny beach towns are immune to the drug trade—not that any of us locals really needed the reminding.

August 25, 2003
The prudent tax collector

Beverly Luxton faced a nasty double-whammy.

Thanks to an ugly combination of serious cancer and significant past-due tax liabilities, in the mid-1990s it looked like she would soon be the embodiment of Benjamin Franklin’s famous quote,

in this world nothing is certain but death and taxes.

Luxton owed nearly $800,000 in taxes, penalties, and interest to the IRS. On the other hand, she also owned three State Farm life insurance policies worth $327,000.

Despite her awful personal circumstances, the IRS was in no position to cancel the money Luxton owed the government. Instead, the tax collectors filed a lien for the entire amount, but also accepted Luxton’s collateral assignment of the policy proceeds, to be paid when she died.

The terms of the insurance assignment language put the IRS in a favorable position compared to any named beneficiaries. In addition, the Feds adopted a flexible approach to managing their new assets.

For example, the IRS permitted some of the money from the sale of Luxton’s residence to be applied toward the insurance premiums. Later on, the tax collectors gave the okay for Luxton to borrow policy dividends to pay for medical expenses, and also used other policy dividends to keep up the premium payments.

The IRS didn’t have to do any of these things. It could have simply surrendered the policies for their cash value.

By doing so, of course, the Feds would have also walked away from a few hundred thousand dollars.

Luxton died in September 1999, and her children filed suit to collect on the policies. They argued that state law barred the IRS from receiving the proceeds instead of the named beneficiaries.

Last Friday the Eighth Circuit disagreed:

[The IRS] Agent … did what many prudent creditors would have done under the circumstances, accepting an assignment of the right to insurance policy proceeds that exceeded Luxton’s available assets, paying premiums to keep the policies in force, and deferring more aggressive collection actions. Luxton benefited from the arrangement, at least to the extent she was permitted to borrow against the policies to pay medical expenses. The beneficiaries were not harmed because the IRS could have effectively cancelled the policies by foreclosing on their cash surrender values before Luxton’s death.

… It is counterintuitive to posit that Congress would arm the IRS with a powerful tax lien and other formidable collection tools, but would deny the agency the authority to employ other devices commonly used by creditors to improve their position, such as securing interests in collateral by means other than a lien. And in fact, the Internal Revenue Code refutes the beneficiaries’ contention, expressly authorizing the agency to employ “such other reasonable devices or methods as may be necessary or helpful in securing a complete and proper collection of the tax.”

Beverly Luxton’s last years were not the sort to be wished on anyone.  It’s also a shame that her tax troubles eliminated a significant inheritance for her children.

Nonetheless, at least in this one case the IRS seems to have handled its tax collecting responsibilities with both sensitivity and sensibility.

August 24, 2003
Nice Day

 

No new blog posts today--it's just too nice outside, and the golf course is beckoning.

 

In the meantime, here's the link to my latest golf book review of Golf's Greatest Eighteen, and a link to last Friday's golf column.

 

Have a great day!


   

Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969
USA

fschranck-at-
sneakingsuspicions.com


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