Tag Archives: Government

National Taxpayer Advocate Blog

While I was attending the Tax Controversy Forum hosted by New York University’s School of Professional Studies in New York City, I had the pleasure of hearing the National Taxpayer Advocate give a keynote speech.  National Taxpayer Advocate, Nina Olson, started off her talk with the potential impact of upcoming budget cuts on the IRS and the release of her upcoming report on June 28th.  She also informed everyone that the National Taxpayer Advocate Blog has restarted its regular weekly blog postings on Wednesdays.  Check it out for some summer reading.

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Facebook Forced To Turn Over Account Info, Photos, and Conversations

The New York Court of Appeals, its highest state court, approved in a 5-1 decision a search warrant that forces Facebook to turn over material on 381 accounts including account information, private photos, and conversations.  This ruling is based significantly on New York law which the court interpreted to mean search warrants issued by judges cannot be appealed to a higher court and the proper venue for challenging search warrants is during a pretrial hearing when a party argues the search warrant is an illegal search.

Read more about this case in this New York Times article here.  The underlying case deals with disability fraud and the Brennan Center provides a concise summary, along with its amicus brief, on its website available here.

One could argue that this opens the door to New York search warrants giving prosecutors access to users’ data on other social networking sites.

The full slip opinion is available here.

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Bill to Terminate Department of Education

The first question that went through my mind when I saw in the news that there is a bill pending in Congress to terminate the Department of Education:

What will happen to my student loans?

Here is a link to the bill that was introduced by Representative Thomas Massie (R-Kentucky).  The Congress.gov website does not have the text of the bill available yet.  But, a local news outlet reported that this Republican sponsored bill proposes termination of the Department of Education on December 31, 2018.  The article goes further to explain the past history of legislators trying to dismantle the Department of Education with little success.

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Impending Tax Bomb of Student Loans

I posted about this last year, but I think it bears repeating.  Back in 2015, law professor Gregory Crespi coined the term “tax bomb” in reference to student loans.  A “tax bomb” is oftentimes unexpected and seen when a taxpayer has surprise income that will be taxed.  It can blow up a taxpayer’s taxes and result in money owed to the IRS.  This concept of a “tax bomb” is also seen in retirement planning.

In the context of student loans, a “tax bomb” can be when a taxpayer has student loan debt that gets forgiven either through the Public Service Loan Forgiveness Program (PSLF) or Income Based Repayment (IBR).  But, it becomes a bomb when the cancellation of student debt is viewed as income under 26 U.S.C. sec. 108(f) which results in a tax and requires payment to the federal government.  However, in Professor John Brooks’ Tax Notes article, he confirmed that current interpretation allows an exception for PSLF, but not IBR.  This means that if you have student loans forgiven under the PSLF program, then you will presumably not have to pay taxes.  But, if you have student loans forgiven under IBR, then you may be stuck with a tax bill.  The Treasury Department issued guidance on the issue in Rev. Proc. 2015-57.  Brooks’ article does a great job explaining the nuances.  Check it out here.

On a happier note, Senator Bob Menendez (D-NJ), Senator Elizabeth Warren (D-MA), Senator Ron Wyden (D-OR), Senator Debbie Stabenow (D-MI), and Senator Cory Booker (D-NJ) introduced the Student Loan Tax Relief Act which would exclude income created from the cancellation of student debt or student loan forgiveness.  The bill is available here.

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Microsoft Sues DOJ

In order to sue the Department of Justice, Microsoft has brought out the big guns by hiring law firms Covington and Burling LLP, where partner James Garland used to work for former Attorney General Eric Holder, and Davis Wright Tremaine LLP.  Yesterday, Microsoft’s complaint was filed in the Western District Court of Washington State and the complaint is available on the Wall Street Journal website here.  The complaint is also available on Pacer, but the Wall Street Journal has the free version.

In the past, the U.S. government has requested information about certain users from Microsoft, presumably when warranted Microsoft complied with the production of information, and then the U.S. government could temporarily bar Microsoft from telling its users about the request for data.  Under 18 U.S.C. Section 2705, a governmental entity, with a court order, may delay notification to customers for a period not exceeding 90 days if the government has reason to believe that the notification would result in adverse results.  So, a customer would not be notified that a provider, like Microsoft, supplied information to a governmental authority until well after the production of information.  Adverse results include endangering the life or physical safety of an individual, flight from prosecution, destruction of evidence, tampering with evidence, intimidation of a potential witness, or otherwise seriously jeopardizing an investigation or unduly delaying trial.

Microsoft argues that this is unlawful and that tech companies should be allowed to tell their users when their cloud database and private information has been turned over to the government.  The U.S. government may argue that the disclosure to users would compromise an investigation.  However, Microsoft asserts that the U.S. government’s behavior is a violation of the Fourth Amendment.  But, is it?

This lawsuit is no easy feat.  It can be difficult to sue the U.S. government due to sovereign immunity issues.  Furthermore, the lawsuit boils down to a fundamental right to privacy argument that seems almost basic and may merit standard Fourth Amendment treatment regardless of all the discussion about cloud computing and the digital age.

Under F.R.C.P. 12, a U.S. governmental agency has 60 days from when they were served to file an answer.  It will be interesting to see who from the DOJ is assigned to the case and what the DOJ’s answer will be.

Furthermore, this case is not likely to settle.  Rather than Microsoft’s typical way of hiring lobbyists to change the law through Congress, it looks like Microsoft is using the courts and this lawsuit to change Fourth Amendment law.  Read more about this new case in this Wall Street Journal article here.

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Upcoming Supreme Court Decisions and the Further Impact of Justice Scalia’s death

While the country is deeply saddened by Justice Scalia’s death, many are still in shock over the loss of a truly influential judge.  It is Article II, Section 2 of the U.S. Constitution that gives the President, with advice and consent of the Senate, the authority to appoint judges of the Supreme Court.  As the current President Obama fights with Republicans in the Senate over the appointment of a new Supreme Court Justice, it will be interesting to see how upcoming case decisions will change due to the loss of such an outspoken legal figure.

Forthcoming Supreme Court decisions will, for the most part, be reviewed as an eight judge panel.  This means that decisions that were originally 5-4 could result in a 4-4 even split.  That being said, Tom Goldstein from SCOTUS Blog wrote a piece addressing this issue.  Read his article here.

Most notable of Goldstein’s post is this:

If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four.  In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case.  Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is “affirmed by an equally divided Court.”  (emphasis added)

Also, please be sure to check out SCOTUS Blog’s other coverage on Justice Scalia’s death available here.

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Justice Scalia passes and the Supreme Court enters a new era

Yesterday, Supreme Court Justice Antonin Scalia passed away.  While I missed my opportunity to meet Justice Scalia in person when he spoke at my school, he has had an impressive impact on all Americans through his literal, originalist, textual interpretations of the law and written decisions.  His death marks the end of an era on the Supreme Court.

Further details about Justice Scalia’s life and passing are detailed in this New York Times article and this NPR broadcast.  While this comes as shocking news to a lot of people since his death was so unexpected, the upcoming presidential election now takes an interesting turn as both parties fight to obtain power to appoint the next Supreme Court justice if current President Obama does not appoint a new justice soon.  Things are about to get a lot more interesting in the current presidency and in the upcoming presidential elections.

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Worcester Community Dialogues on Race

Earlier tonight, I tweeted about the Worcester Community Dialogues Listening Sessions on Race.  You can see my tweets @legalbiscuit.

With the spike of racial tensions across the country, as witnessed by the violent-race-related deaths, the City of Worcester decided to take pre-emptive action and start an ongoing dialogue between community members and leaders.  The hope is that this open dialogue will prevent future race violence in this geographic area.

The seven part series started on Monday, May 18th.  These listening sessions take place every Monday night from 5:30pm to 8:00pm.  They are facilitated by the US Department of Justice’s Community Relations Service and the Massachusetts Attorney General’s Office.

I went to my first listening session tonight.  The theme was “Media and Online Social Networks.”

When you arrive at the listening session or community dialogue, you are assigned a number.  Brief introductions are made in the main foyer area.  Then, participants are divided equally among different listening sessions or break out groups.  You converse with your group for about an hour and a half.  The group facilitator leads the group discussion through a series of race-related questions.  The questions vary week to week and focus on the theme for that session.  Then, the notetaker in the session synthesizes and summarizes the discussion into a 2-3 minute presentation.  At the end of the listening session, all participants converge into the main foyer again.  Each break out group has one person present their group’s discussions to the main audience.  Closing remarks are then made.

Also, importantly, they feed you dinner at the event.

The remaining listening sessions, locations, and themes are listed below:

June 29th, 2015       Economic Development (at Worcester Technical High School, 1 Skyline Drive)
                                     
July 13th, 2015        Report back and next steps (at DCU, enter showcase corner at the intersection of Martin Luther King Jr. and Major Taylor Boulevards)

If you have additional questions about free parking for the event or shuttles, the most recent press release is available here.  Also, the United Way posted a frequently asked questions PDF available here.  Worcester Magazine published an article about the initial event available here.
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FTC’s Unanimous Vote Against Snapchat for Privacy Rights

To round out the year, the Federal Trade Commission (FTC) released their final order involving Snapchat. The unanimous vote, 5-0, reprimanded Snapchat for misrepresentation to consumers and orders changes to encompass more of user’s privacy rights. The FTC pointed out that Snapchat failed to fully disclose the amount of data it was collecting from its users. The full press release is available here. The charges against Snapchat are now settled.

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New Voir Dire Changes in MA State Courts

Starting in early 2015, the Massachusetts State Courts will be changing their voir dire procedures.  Governor Duval Patrick signed a bill into lawG.L. ch. 234, sec. 28, that will allow attorneys to question jurors in their jury trials.  A portion of the new statute reads:

Upon motion of either party, the court shall, or the parties or their attorneys may under the direction of the court, examine on oath a person who is called as a juror therein, to learn whether he is related to either party or has any interest in the case, or has expressed or formed an opinion, or is sensible of any bias or prejudice, therein; and the objecting party may introduce other competent evidence in support of the objection.

A standing order, with additional clarifying details, may be released in January or February of next year.  It will be interesting to see how Superior Court trial practices will develop with this new rule.

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