Giving Tuesday

  • November 28, 2016

Giving Tuesday is a global day of giving fueled by the power of social media and collaboration.

Giving Tuesday

Celebrated on the Tuesday following Thanksgiving (in the U.S.) and the widely recognized shopping events Black Friday and Cyber Monday, #GivingTuesday kicks off the charitable season, when many focus on their holiday and end-of-year giving. Learn more at Giving Tuesday.

One of the best ways to get involved is in your own community. In this spirit, Incline Law Group is sharing the organizations that we support with you.

Editor’s note: we might have a thing for snow sports around this office. 

Project MANA – Cassell von Baeyer, Partner

Mission: To reduce the incidence of hunger and its detrimental effects upon individuals, families, the community and the region.  In addition to providing hunger relief, we have developed programs designed to alleviate the causes of hunger and promote nutrition through education and awareness. Learn more at Project MANA.

Diamond Peak Ski Education Foundation – Andy Wolf, Partner

Mission: To offer season-long, affordable, challenging and fun training while fostering a life-long love for the sport of skiing. Training includes the mastery of ski techniques as well as focus in the areas of discipline, responsibility, goal setting, motivation and sportsmanship. Learn more at Diamond Peak Ski Education Foundation.

Far West Nordic Ski Education Association – Stacey Herhusky, Partner

Mission: We believe competitive cross-country skiing offers great benefits to the community and to individuals of all ages and abilities. As a division of the United States Ski Association (USSA), our mission is to promote, develop, and expand cross-country skiing within the USSA Far West Region (California, Nevada, Arizona and Hawaii). We accomplish this by working with ski clubs, ski areas, and directly with our membership of individuals and families. Learn more at Far West Nordic Ski Education Association.

High Fives Foundation – Jeremy Krenek, Associate Attorney

Mission: To support the dreams of mountain action sports athletes by raising injury prevention awareness while providing resources and inspiration to those who suffer life-altering injuries. Learn more at High Fives Foundation.

Tahoe Cross Country Ski Education Association – Heidi Shaughnessy

Mission: To promote the sport of cross country skiing through educational activities for children and adults. Learn more at Tahoe Cross Country Ski Education Association.

Tahoe Safe Alliance – Willow Cornelius, Senior Legal Assistant

Mission: To end the incidence and trauma of intimate partner/domestic violence, sexual violence, and child abuse in North Lake Tahoe and Truckee.  Learn more at Tahoe Safe Alliance.

Kids in Need Foundation – Crystal Lyle, Legal Assistant

Mission: To ensure that every child is prepared to learn and succeed by providing free school supplies nationally to students most in need. Learn more at Kids in Need Foundation.

Lake Tahoe Wildlife Care – Julie Malkin-Manning, Director of Marketing

Mission: To give Mother Nature a helping hand by raising and rehabilitating orphaned and injured wildlife so they may be released back to the wild. Learn more at Lake Tahoe Wildlife Care.

 

7 Tips to Ready Your Business for 2017

  • November 23, 2016

Hard to believe that another new year is just around the corner.  Whether you are thinking about end of year organization or New
7 tips to ready your business for 2017Year’s business resolutions, here are  seven tips for readying your business for 2017:

  • Charitable Giving: Business or personal, charitable giving is not only a tax deductible event it is always better to give than to receive. There are many local non-profits that could especially use your help this time of year. Consider funding a Thanksgiving meal for a family, donating a warm coat or even volunteering some hours.
  • Estate Planning: When is the last time you updated your estate plan? Do you need to accomplish any year end gifting? It is advisable to review you estate plan at least every 5 years and depending on your circumstances more often.
  • Tax Planning: This is the time to call your CPA and discuss any over or under payments for 2016, year-end purchases and retirement account contributions.
  • Business Registrations: Have you renewed all required registrations, licenses and filed all required tax returns?  Business registration renewals of all types should be calendared. If Incline Law Group, LLP serves as your registered agent, we will track your annual business registration and state business license renewal for you.
  • Insurance: As long as the Affordable Care Act (“Obamacare”) remains in place, there is an open enrollment period which runs November 1, 2016 through February 1, 2017. Your employee health insurance plan is now likely to have a year-end renewal date regardless of when you used to renew. Now is the time to renew or shop for new policies.
  • Leases: Commercial leases often run for longer periods of time and new leases or renewals can often take some time to complete. If your lease is expiring in 2017, now is the time to start planning for that.
  • Employment Policies: January 1 is a great time to put new policies in place for employees in place, especially ones that address newer issues like medical marijuana in the work place and privacy issues. You do want to be sure that your employment practices and policies are compliant with state and federal employment law.  Please be sure to consult with your attorney before putting new employment policies in place.
This article was originally published in the Sierra Sun/Tahoe Bonanza in Incline Law Group’s monthly opinion column, Legal Clarity.

Nevada Question No. 1 & the Second Amendment

  • October 27, 2016

State Question No. 1 on the current Nevada election ballot asks whether federal background checks already required in the purchase of firearms at federally-licensed retail firearms dealers should also apply to a variety of other firearms sales and transfers such as those made at gun shows, over the internet and between strangers.

Question 1 includes numerous exemptions and exceptions that cover the most frequent innocent non-commercial transfer of firearms, so that loaning or transferring a firearm to an extended family member is exempt from background checks, as is loaning a firearm to a hunting partner during a hunt, or to a friend at a shooting range.

Opponents argue that Question 1 infringes on the Second Second AmendmentAmendment and punishes law-abiding citizens. In my opinion, the Second Amendment right to keep and bear arms is not affected by Question 1. The Second Amendment provides: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

If you ask 10 people what the Second Amendment means, you are likely to get ten different answers. There is only one interpretation of the Second Amendment that really matters, and that is the late Justice Antonin Scalia’s 2008 majority opinion in District of Columbia v. Heller, 128 S. Ct. 2783 (2008):

“State Question 1, which includes many significant exemptions, does not infringe upon anyone’s constitutional rights and does not punish law-abiding citizens by extending background checks to non-retail sales and transfers of firearms.”

(1) It protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.

(2) It does not limit the right to keep and bear arms for militia purposes, but limits the type of weapon to which the right applies to those in common use for lawful purposes.

(3) It does not provide unlimited rights to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Longstanding prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, and laws imposing conditions and qualifications on the commercial sale of arms remain valid.

Heller, a law enacted for Washington, D.C., restricted residents from owning handguns and required that all other firearms be kept unloaded and disassembled or trigger-locked. Heller ruled this invalid.

The Second Amendment, however, does not guaranty freedom from all regulation of firearms (nor is it a right as some believe to keep arms for an armed insurrection against democratically elected leaders).

In Heller, Justice Scalia — the court’s conservative lion for three decades — specifically ruled that laws imposing conditions and qualifications on the commercial sale of arms do not violate the Second Amendment.

For this reason, State Question 1, which includes many significant exemptions, does not infringe upon anyone’s constitutional rights and does not punish law-abiding citizens by extending background checks to non-retail sales and transfers of firearms.

Andrew Wolf is a Nevada Sportsman and gun owner. 

Defending Fraud Cases with Particularity (Specificity)

  • October 11, 2016

Defending fraud cases – enforcing the requirement of pleading fraud with particularity (specificity).

We often observe that claims in business and real estate disputes include allegations of fraud. Fraud allegations can be both upsetting and costly to resolve.  Fraud claims often assert unethical or criminal conduct, knowingly perpetrated by person accused.  Fraud claims might also be phrased as a negligent misrepresentation, which is just slightly less inflammatory.

Defending fraud claims requires some special strategies. At the most basic level, if requested, courts will require detailed allegations of fraud in comparison to other kinds of claims.  Thus, while it might be sufficient to generally allege that a defendant failed to exercise due care and thus was negligent in operating a vehicle leading to a car accident, courts will typically require considerable factual detail in fraud allegations, including the date, time and place of the fraudulent communication and what exactly was fraudulent or dishonest.  We believe it is most effective to start pursuing this detailed information early in the case.

In our experience, in both business and real estate cases, the alleged
real-estate-listings-fraudfraudulent actions of various parties are often lumped together collectively and are not specifically pleaded. In a fraud case, being lumped together with others’ wrongful conduct is both upsetting and complicates each individual’s defense.  Using procedural rules that require specificity in fraud allegations, we have found that courts are receptive to granting pre-answer motions seeking more detailed fraud allegations so that our clients can identify exactly what is attributed to them as opposed to all of the defendants collectively.

If you have been sued for fraud in a business or real estate transaction, the best time to start seeking specificity is through a pre-answer motion to dismiss or a motion for a more definite statement.  By doing so, there is a good chance the court will require the plaintiff to plead their fraud allegations against you and any other defendants with great specificity (and individualized per each defendant), which will provide better clarity and efficiency in defending your position as the case unfolds.  Incline Law Group LLP has had recent successes in various cases pursuing this strategy to the ultimate benefit of our clients.

Judge Flanagan upholds July Order v. Aaron Katz

Judge Flanagan upholds July Order v. Aaron Katz

  • September 22, 2016

September 21, 2016. Washoe District Judge Patrick Flanagan upholds July Order requiring Aaron Katz to pay IVGID its attorney’s in the sum of $226,466.80.

 On July 15, 2016, after five years of litigation, Washoe District Judge Patrick Flanagan entered an order awarding IVGID its attorney’s fees in the amount of $226,466.80 plus other court costs in the amount of $2,925.95. Within days after the award, Mr. Katz engaged counsel and filed a motion to alter or amend judgment, asking Judge Flanagan to undo his order awarding attorney’s fees. IVGID opposed the motion and the court entered an order on September 21, 2016, denying Mr. Katz’s challenge.

In stern, but somewhat colorful language, Judge Flanagan reiterated that the court has authority to award attorney’s fees against a party who has brought a frivolous or vexatious claim. A “frivolous” claim is one that is both baseless and made without a reasonable and competent inquiry. “Vexatious” is defined as an action without reasonable cause or excuse other than to harass for annoy. The court concluded:

“…this Court can find no other explanation for [Mr. Katz]’s actions other than to unnecessarily prolong this litigation with baseless and unreasonable claims.” …

“Throughout this litigation, [Mr. Katz] has shown that the motives for his claims were nothing more than to harass and burden the Defendant with excessive public records requests. In addition, [Mr. Katz]’s actions throughout this litigation have been nothing short of appalling and a waste of judicial resources. Again, by his actions, [Mr. Katz] has led this court to one undeniable conclusion: this was a frivolous lawsuit.”

The court’s entire order can be read here: katz-v-ivgid_order-09-21-16.

Is the HOA super-priority fight over?

  • September 19, 2016

During the economic downturn we saw many Homeowner’s Associations (“HOA”) pursue foreclosure against member homeowner’s for failure to pay assessments. Nevada state law provides HOAs with a super priority lien right entitling HOAs to recover nine months of dues in the event of a foreclosure sale.

In September 2014, the Nevada Supreme Court in SFR Investments Pool 1, LLC v. U.S. Bank, N.A., 334 P.3d 408, ruled that when an HOA forecloses on an assessment lien, that super priority lien right actually wipes out a mortgage lender because it is deemed a right that is senior to the mortgage loan.

foreclosuresuperleinhoaThis means that the purchaser at an HOA lien foreclosure sale could pick up a property for the amount of past due assessment (often only a few thousand dollars) and take the property free and clear of any mortgage lien.

For obvious reasons, lenders were not too happy about this interpretation of the law and in 2015, the Nevada legislature amended provisions of Chapter 116 (which governs HOAs and common interest communities) to allow lenders to “opt-in” to receive notice of HOA foreclosure sales.

Lenders receiving notice of HOA lien foreclosure sales could then bring the assessments current, avoid being wiped out by the sale and could then pursue their own foreclosure sale on the mortgage.

Since the SFR decision, a battle has raged in the courts regarding the nuances of that decision. On August 12, 2016, the United States Court of Appeals for the Ninth Circuit in Bourne Valley Court Trust v. Wells Fargo Bank, NA, definitively held that the Nevada “opt-in” statute facially violates a lender’s constitutional due process rights under the Fourteenth Amendment to the Federal Constitution, and remanded the case for further proceeding consistent with that decision.

It is interesting to note that the Ninth Circuit also found that long standing statutory language found in NRS Chapter 107 which applies notice requirements for defaults under a deed of trust to foreclosure notices of HOA liens, “would impermissibly render the express notice provisions of Chapter 116 entirely superfluous.” Bourne Valley at P. 11.

The dissenting opinion vehemently disagreed with this application of what is knowns as the “surplusage cannon” (which provides a framework for statutory interpretation that, in essence, suggests that words do have meaning and they would not have been used in a statute if they were not intended).

The Ninth Circuit Bourne Valley decision follows several decisions by the Nevada Supreme Court that favor lenders in this epic battle over lien rights.

While the Bourne Valley decision my signal the beginning of the end of the battle, there is no doubt there is more to come, if not from the courts then perhaps from the Nevada legislature which will meet in 2017.

**This post originally appeared in the Sierra Sun/Tahoe Bonanza.

Project MANA – Stella Foodie Event & Fundraiser

Project MANA – Stella Foodie Event & Fundraiser

  • August 8, 2016

It’s no secret that I am a “foodie” and that I proudly serve on the Board of Trustees for Project MANA. I don’t want my favorite food-related fundraising event of the year, Project MANA’s 3rd Annual Stella Foodie Event & Fundraiser, to be a secret either.

That’s why I am inviting you to join me at this delicious event on Tuesday, August 23 at Stella in the The Cedar House Sport Hotel, Truckee, to show your support for Project MANA. You’ll enjoy a terrific meal while supporting our community –  just take a look at the menu! I urge you to register today as this event always sells out!

As Lake Tahoe’s main local food pantry, Project MANA has been serving the needy, the ill, the elderly and children for 25 years now. Food distribution occurs four times weekly in North Lake Tahoe/Truckee region and totals nearly 2,500 meals weekly, 10,000 meals monthly, and 130,000 meals annually. Project MANA also offers other resources including weekly home deliveries for those in need that cannot get to distribution centers, and emergency and cooking compromised non-perishable food supplies. And each Fall they host the Let’s Talk Turkey food distribution that provides Thanksgiving meals to hundreds of local families.

This year, Project MANA’s 25th, brought big change – we moved our food distribution warehouse and some offices from Incline Village to Truckee. In doing so, Project MANA needs to raise additional funds this year, in the form of a capital campaign, to cover hard costs such as the move, the new warehouse space and necessary refrigeration, and to ensure there is no gap in services provided.

If you cannot attend the Stella event but would like to contribute to Project MANA, you can do so here.

Welcome to Nevada Commerce Tax!

  • July 14, 2016

Did you get that letter from the Nevada Department of Taxation? The one that says, “Welcome To Nevada Commerce Tax”.Dept of Taxation Letter1

If you have a business entity or state business license registered in the State of Nevada, you probably just received a “Welcome to Nevada Commerce Tax” letter.  Generally, “Welcome To” and “Tax” are not words we like to see together.

The commerce tax, previously discussed here, imposes annual commerce tax on business gross revenues generated in Nevada over $4,000,000 during the previous fiscal year.  The amount of the tax is based on your registered industry code. Each business category is assigned its own gross receipts tax rate with rates ranging from 0.051 percent to 0.331 percent. Businesses which do not fit into any other category are taxed at the 0.128 percent rate for Unclassified businesses.

Business Category Tax Rate Business Category Tax Rate
Rail Transportation 0.33% Management of Companies 0.14%
Educational Services 0.28% Utilities/Telecommunications 0.14%
Waste Management Services 0.26% Other Transportation 0.13%
Publishing, Software, Data Processing 0.25% Warehousing and Storage 0.13%
Real Estate 0.25% Unclassified 0.13%
Arts, Entertainment, and Recreation 0.24% Retail Trade 0.11%
Truck Transportation 0.20% Financial Activities 0.11%
Accommodation 0.20% Wholesale Trade 0.10%
Food Services (includes restaurants) 0.19% Manufacturing 0.09%
Health Services 0.19% Construction 0.08%
Professional Services 0.18% Agriculture 0.06%
Administrative and Support Services 0.15% Air Transportation 0.06%
Other Services 0.14% Mining 0.05%

Regardless of the amount of gross revenue, each business is required to file a return. August 15, 2016 is the due date for the first return and any payment which may be due.

Since the commerce tax legislation was enacted, Incline Law Group LLP has been counseling clients on its potential impact on their businesses. Of particular concern to many of our real estate clients is the impact of the tax on the sale or leasing revenues of real estate holdings. There are a number of ways that such holdings can be held and structured to minimize the impact of commerce tax on these ventures.  Likewise, careful planning can minimize the impact of these taxes on non-real estate related ventures or businesses which own a mix of real estate and provide other goods or services.

Businesses that may be subject to the new commerce tax are highly advised to consult with their legal and tax advisors prior to filing their first return in August. We would also highlight that the return is based on a fiscal, rather than calendar, year which may prove inconvenient for businesses operating on a calendar year tax election.

If you have questions about the commerce tax you may find information at www.nevadatax.nv.gov or feel free to call our office.