The National Law Forum

Register for the Trademark Infringement & Litigation Summit – April 28 & 29, San Francisco, California

The National Law Review is pleased to bring you information about the upcoming Trademark Infringement & Litigation Summit hosted by IQPC.

When

Monday April 28 & Tuesday April 29, 2014

Where

San Francisco, California, USA

Trademark law may not be changing, but its application certainly has and will continue to do so. Brands are increasingly global, which opens up new possibilities for companies… but also new trademark issues and potential pitfalls. The online experience adds to this global focus and changes the interaction between brands and consumers dramatically.

IQPC’s Trademark Infringement & Litigation Summit will address the topics that you grapple with on a daily basis, including:

How business and infringement concerns guide strategic registration and vigilance
Methods of enforcing your mark, including a “soft approach,” ICANN dispute resolution, cancellation and opposition
Litigation and enforcement management
Evolving company domain name strategy

Perhaps the biggest benefit of attending, however, is the practical, frank conversation about the legal and business choices involved in protecting and maintaining your brand. Attend the Trademark Infringement & Litigation Summit to work through these issues with your colleagues.

Do not miss your opportunity to network and engage with top in-house and outside counsel working in the area. Register today!

NOTE: IQPC plans on making CLE credits available for the state of California (number of credits pending). In addition, IQPC processes requests for CLE Credits in other states, subject to the rules, regulations and restrictions dictated by each individual state. For any questions pertaining to CLE Credits please contact: amanda.nasner@iqpc.com.

Letters Of Intent For On-Site Solar Energy Transactions

An increasing number of retail, office, industrial and warehouse/distribution property owners are utilizing electricity generated by on-site photovoltaic (also referred to as “pv” or “solar”) systems to meet a portion of their properties’ electrical energy needs. The pv systems can be located on the roofs of buildings, in parking fields, on open areas of the property or on two or more of these locations.

One of the most common methods that property owners are using to obtain such on-site solar-generated electricity is to enter into a power purchase agreement, often referred to as a “PPA,” with a solar developer, frequently referred to as a “provider.” In a PPA, the property owner, often called a “host,” provides leasehold or license rights on its property to the provider for the installation and operation of the pv system, and the provider sells the electricity that the pv system generates to the host. The provider generally owns all of the governmental and utility company incentives provided in connection with the pv system, and the host usually owns the net metering rights for the pv system.

However, the negotiation of a PPA frequently takes more time and is more complex than the economic benefits of the PPA to the provider and the host warrant. One of the major reasons for this problem is that the typical initial letter of intent (“LOI”) for a PPA transaction frequently fails to address the issues that often cause the most difficulty when the host and provider attempt to negotiate and finalize the PPA itself. The balance of this article sets forth several of these additional issues that should be included in a PPA LOI and explores methods of ameliorating the conflicts they create between the provider and the host.

Electricity Rate Cap

Many LOIs include a cap on the rate that the provider will charge the host for the electricity that the pv system generates. The cap usually provides that the rate that the provider charges to the host cannot exceed the rate that that host’s regulated local electrical utility, referred to in this article as the “Utility,” or the host’s third-party power supplier, charges the host for electricity at the property in question.

However, in setting this cap, it is important to remember that the Utility charges the host, whether or not the host also has a third-party power supplier, for many items other than the electricity itself, some of which are based on electricity consumption and some of which are static. Accordingly, when the host and provider agree on the rate cap in the LOI, they should clearly state what portions of the Utility and third-party power provider rate are included in determining the cap.

Interconnection Agreement

In order to operate a pv system and to obtain net metering for the excess electricity that the pv system generates, the Utility requires that its customer, usually the host, sign an interconnection agreement. The terms of the interconnection agreement are set forth in the Utility’s tariff and are, hence, non-negotiable. While the host must sign the interconnection agreement, most of the undertakings in the interconnection agreement are the responsibility of the provider under the PPA. Accordingly, the LOI should provide that the host will sign the interconnection agreement and that each party will agree to perform its obligations under the interconnection agreement, while indemnifying the other party for its failure to do so.

Purchase Of Excess Electricity

Pv systems by their nature cannot provide all of a property’s electricity needs all of the time. Additionally, in most jurisdictions, either the Utility or a government regulator limits the size of the pv system, so that it will not generate more than a maximum percentage (for example, 80 percent) of a property’s electricity usage. However, notwithstanding these circumstances, there are times when the pv system will generate more electricity than the property is using, causing the Utility meter to run backwards, referred to as “net metering.” In many jurisdictions, usually by means of the interconnection agreement, the Utility will pay the host or credit the host’s future electric bills for the amount of this excess electricity.

For this reason, most PPAs provide that the host will purchase all of the electricity the pv system generates and own all the net-metering credits. However, before entering into a PPA, a host should review its third-party electricity supply contracts to make sure that they do not contain prohibitions against pv or other on-site systems or do not contain minimum usage requirements. The PPA and LOI should

also address the situation where the property becomes vacant, because most net-metering programs have limitations on how much excess electricity the Utility has to buy.

Electricity Production Guaranty

Many hosts assume, in their financial planning for a property’s operation, that the pv system will generate a minimum amount of electricity in each calendar year. Accordingly, they request a production guaranty. If the host wants a production guaranty, this should be set forth in the LOI. Additionally, the adjustments to the guaranty for weather, system shutdowns and force majeure events should be spelled out.

Taxes

Many jurisdictions provide limited sales and use tax exemptions on the sale of electricity from on-site pv systems and exclusions from increases in real property taxes by reason of their location on a property. However, other jurisdictions do not provide such exemptions or the exemptions are very narrow and do not apply to every situation. Accordingly, the host and provider should determine whether or not a tax exemption exists or applies before they enter into a LOI. If the exemption is available, the LOI should set forth which party is responsible for obtaining it. If no exemption applies, the LOI should set forth which party is responsible for the particular tax.

SNDAs

Most properties are subject to mortgage secured debt. Under the Uniform Commercial Code, as adopted in most jurisdictions, the PPA can provide that the pv system is the personal property of the provider, not a fixture, and thus not subject to the lien of the mortgage on the property. However, most loan and security agreements for most mortgages also provide for security interests in the personal property located at the property. The language in these documents is often extremely broad. Additionally, the provider needs access rights over the property to install and repair the pv system and rights to place the pv system on the property. PPAs generally provide these rights as leasehold or license rights. Finally, many mortgages require mort- gagee consent for the installation of pv systems on the property.

Accordingly, the LOI should set forth whether or not, and at whose cost, the host will obtain subordination, non-disturbance, attornment and lien waiver agreements (“SNDAs”) from all current and future holders of mortgages on the property. Such a provision can provide for the sharing of the cost to obtain the SNDA between provider and host, with a waiver or cancellation option if the cost exceeds a certain amount.

Non-interference With PV System And Property Access

Many retail tenants, in particular, have consent rights over the roofs of their stores, rights to install HVAC systems and antennas on their roofs and exclusive rights over certain parking lots and common areas. The provider cannot allow its pv system to be moved, damaged or shaded. Additionally, the provider needs laydown, storage and parking areas for its installation, repair and maintenance of the pv system. Accordingly, the LOI should address tenant consents and lease and OEA amendments, if required, in order to insure non-interference with the pv system and necessary provider access. The LOI should also address which party is responsible for obtaining the consents and access and non-interference rights and at whose cost. Additionally, the LOI can provide for a non-penalty termination of the PPA if these consents and rights cannot be obtained.

Temporary PV System Relocation, Removal Or Shutdown Most PPAs have a term of 15 to 20 years. During such a time period, roofs often have to be repaired and parking lots resurfaced. The cost to relocate or temporarily remove and reinstall a pv system is significant. Additionally, the cost to the provider in lost electricity revenue and more importantly lost incentive revenue can be substantial. Accordingly, the LOI should set forth which party will bear these costs or how they will be shared. Cost sharing may shift later in the term of the PPA because the provider’s loss of incentive revenues will likely be less and the need for repairs will be more likely to occur.

PV System Purchase Options

If the PPA is going to provide for a purchase option, the LOI should address at what times in the term the host can exercise its option and set forth the method for determining the fair market value of the pv system at the time of the exercise of the option, including what factors will be used in determining the value of the pv system.

Assignment

The LOI should state when, under what terms and to whom the parties can assign their rights under the PPA and whether a party and, if applicable, its guarantor, remains obligated under the PPA after an assignment.

Limitations On Liability

The LOI should specify whether the parties will be responsible for consequential damages, whether there will be absolute limitations on all damages, including indemnification obligations, and the dollar amount of these limitations.

Parental Guaranties

Most pv systems are owned through a single-purpose entity whose only asset is the pv system, and most shopping centers are owned by single-asset, single-purpose entities. Accordingly, the provider and the host should determine in the LOI if they are going to provide parental guaranties to each other and under what terms.

Conclusion

While the list of issues this article covers is by no means exhaustive, the author hopes that it will be helpful in streamlining the negotiation of PPAs.

This article appeared in the March 2014 issue of The Metropolitan Corporate Counsel. The views and opinions expressed in this article are those of the author and do not necessarily reflect those of Sills Cummis & Gross P.C. Copyright © 2014 Sills Cummis & Gross P.C. All rights reserved.

Article by:

Kevin J. Moore

Of:

Sills Cummis & Gross P.C.

EEOC & FTC Issue Joint Background Check Guidance

The U.S. Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) issued joint informal guidance concerning the legal pitfalls employers may face when consulting background checks into a worker’s criminal record, financial history, medical history or use of social media. The FTC enforces the Fair Credit Reporting Act, the law that protects the privacy and accuracy of the information in credit reports. The EEOC enforces laws against employment discrimination.

The two short guides, Background Checks: What Employers Need to Know andBackground Checks: What Job Applicants and Employees Should Know, explain the rights and responsibilities of both employers and employees.

The agency press releases state that the FTC and the EEOC want employers to know that they need written permission from job applicants before getting background reports about them from a company in the business of compiling background information. Employers also should know that it’s illegal to discriminate based on a person’s race, national origin, sex, religion, disability, or age (40 or older) when requesting or using background information for employment.

Additionally, the agencies want job applicants to know that it’s not illegal for potential employers to ask someone about their background as long as the employer does not unlawfully discriminate. Job applicants also should know that if they’ve been turned down for a job or denied a promotion based on information in a background report, they have a right to review the report for accuracy.

According to EEOC Legal Counsel Peggy Mastroianni, “The No. 1 goal here is to ensure that people on both sides of the desk understand their rights and responsibilities.”

Article by:

Jason C. Gavejian

Of:

Jackson Lewis P.C.

Does March Madness = Workplace Madness? Some Thoughts on the Legality of NCAA Bracket Pools and the Tournament’s Effect on the Workplace

With the Olympics now behind us (were they ever in front of us?), this time of year usually marks the sports netherworld between the Super Bowl and the NCAA Men’s Division I Basketball Tournament, which is better known as March Madness. This lull provides employers with an excellent opportunity to contemplate the issues that March Madness creates in their workplace. We explore some of those issues below.

Participating in a NCAA Bracket Pool: Everyone Else Does It, So Why Can’t We?

Nothing presages the coming of spring like the NCAA Tournament, and concurrently, perhaps nothing is as ubiquitous in the American workplace during this time period as NCAA bracket pools. Estimates of participating Americans are in the 50-60 million range and we can totally understand why. Even President Obama completes a bracket each year (he even picked last year’s winner correctly). And we expect those numbers to go up because of contests like these: Quicken Loans is offering a $1 billion prize to anyone who completes the perfect bracket. The chances of doing that: 1 in 9.2 quintillion (9 with about eighteen zeroes after it, or the same odds of the Knicks winning the NBA Championship this year. Please come to New York Phil Jackson. Please.).

The typical workplace bracket pool scenario involves an email attaching a bracket or an embedded link to a website that requires you to sign up for and complete an online bracket; think: ESPN.com or cbsports.com (whose home page even promotes “co-worker” participation). Sometimes these e-mails are sent office-wide, other times they are limited to a select group of employees. The typical entry fee can range from $5 to $20 per bracket, with the winner collecting the biggest payout and the second and third place finishers collecting more moderate sums. Some brackets also return the last place “winner” his or her entry fee (see: probably you at least once in the last 10 years). The pool “manager” may also take a cut for dealing with the administrative burden (including having to stop by your cubicle at least twice a day for your entry fee). Of course, all this varies from pool to pool. We’ve heard of pools where the winner gets to donate the collected entry fees to the charity of his or her choice (awwww). We’ve heard of pools going in the opposing direction: $1,000 per entry, winner takes all (grrrrrr). Overall, close to $2.5 billion is wagered on the tournament.

But is any of this legal? The results are mixed. On the federal level, probably not; on the state level, it depends on the state. Participation in a bracket pool may violate at least two federal laws. NCAA bracket pools that are conducted across state lines (i.e. a company pool involving offices from several states) or which are managed online (the vast majority), could violate the Interstate Wire Act of 1961. There is a “fantasy sports” exception to that law, but bracket pools don’t seem to fit within that exception since they require the individual to bet on the outcomes of the games. Participation in these bracket pools may also violate the Professional and Amateur Sports Protection Act, which prohibits wagers on sports anywhere, except in certain grandfathered states (Nevada, Delaware, Oregon and Montana).

On the state level, while most states ban gambling, their gaming laws provide exceptions for so-called “social” or “recreational” gambling. While the particulars vary, to qualify for these exceptions: (1) all of the money in a pool must go to a winner or a charitable organization (i.e. the “house” does not receive any of the proceeds); (2) there must be a maximum amount a person can wager (like a $20 entry fee), and (3) the pool must be limited to a certain number of people with pre-existing relationships (like co-workers). Thus, in certain states, NCAA bracket pools that meet these requirements may be permissible. In Wisconsin, by contrast, NCAA bracket pools are illegal without exception. Sad, considering the Badgers are set to make a serious run at the NCAA Championship this year.

Based on the above, especially because of the Professional and Amateur Sports Protection Act, the simplest and safest approach for (non-Nevada, Delaware, Oregon and Montana) employers would be to prohibit NCAA bracket pools in the office. But realizing that this will likely not be the majority approach, if you are an employer comfortable enough to allow your employees to run an NCAA bracket pool, we would recommend setting certain parameters, including: (1) requiring employees to complete paper brackets instead of participating online, (2) prohibiting bracket pools that will result in employees participating in offices located across multiple states; (3) prohibiting employees from using company e-mail or printers to administer the pool; (4) limiting the entry fees (i.e. $20 or less), (5) ensuring that the collected entry fees are distributed to the winner(s) (or charitable organization) and no portion goes to the house; and (6) threatening discipline if any employee pressures any other employee to participate in a bracket pool. Another option altogether is to allow your workers to participate in a bracket pool for free, with the winner collecting a prize.

Watching the Games: Everybody Else is Watching, So Why Can’t We?

Completing a bracket is one thing, but watching the games is where the fun really begins. You wake up Thursday morning annoyed that there’s still five hours before the first game tips off. Wait, this is 2014, not 2000; the tournament now boasts of 68 teams and starts on Tuesday with the “First Four” play-in games. But in reality, the tournament “starts” on Thursday, and in anticipation, your employees (and maybe even you) have probably done the following:

(a) downloaded the CBS Sports app onto their computer, tablet or mobile device that will allow them to stream the games into their workspaces

(b) arranged to watch some games at an “extended” lunch with some co-workers

(d) All of the Above

(e) None of the Above (because, instead, they are busy binge-watching the first three seasons of Game of Thrones before the April 6 Season 4 premier)

Regardless of how your employees (or you) would answer that question, the point is that come Thursday (and Friday) they will probably be focused on something unrelated to their job. And when their focus is elsewhere, job productivity suffers. And boy does it suffer. According Challenger Gray & Christmas, an outplacement firm, this equates to $134 million in lost productivity on just the first two days of the Tournament alone where at least 3 million employees will spend between 1-3 hours watching games at work and2/3rds of all workers will track games during the workday. We wouldn’t be surprised if this number climbs again this year as CBS continues to make it easier to stream games live. (And if it really wants that number to climb, it needs to offer a better “boss button” than the one it offered last year. And on that front, when are we going to see a lawyer-friendly boss button – maybe one that clicks away to a draft brief or a redlined employment agreement? C’mon already. But we digress.)

So we know that lost productivity is an issue. But what about the related issue of employee morale? A survey conducted last year by OfficeTeam found that 20% of managers believe that the NCAA tournament has a positive effect on employee morale. Only 4% believed it had a negative effect and 1% didn’t know what effect it had. Perhaps the most shocking statistic is that 75% of the managers surveyed believed that it had no effect whatsoever.

To us, the result of the productivity-morale equation is employer-specific and depends on the nature of your workplace and your business goals. For example, we can certainly see how management at an accounting firm may grow uneasy at a lack of focus from its employees as their clients’ tax filing deadline nears. At the same time, we can also see how management at this firm (perhaps if it’s located by Syracuse or Kentucky) may want to convert this into an employee appreciation moment, gather its employees in a conference room for an extended lunch and game-viewing session and take a breather from their overwhelming workloads (and maybe be lucky enough to catch a top-5 all time buzzer beater.)

Employees in downtown Richmond, Viriginia probably had trouble focusing on their work in 2011.Only you can best gauge what will motivate your workforce against how it will affect your bottom line. If you could care less about employee morale or don’t think it’s a factor, then consider blocking access to the streaming site or mobile app, remind employees of your acceptable computer use policy, and threaten disciplinary action as necessary. If you are concerned about lost productivity, but want to maintain or enhance employee morale, consider allowing employees to wear or display items related to their favorite college teams that day (whether it is Villanova, Wichita St. or “Anyone but Duke”). Consider designating certain times where employees are “free” to check scores, or consider going further and allowing employees a time and place to watch games. By tuning break-room television sets to the NCAA tournament and possibly adding pizza or popcorn to the mix, it represents a cheap investment that may boost employee morale and reduce some of the short-term productivity losses while producing long-term productivity gains.

All right, that is all. We hope this helps you prepare your workplace for the upcoming NCAA tournament so that when it’s over you can proudly belt out One Shining Moment, including…

And when it’s done

win or lose

you always did your best

cuz inside you knew…

(that) ONE SHINING MOMENT, YOU REACHED FOR THE SKY

ONE SHINING MOMENT, YOU KNEW

ONE SHINING MOMENT, YOU WERE WILLING TO TRY

ONE SHINING MOMENT….

Article by:

Michael S. Arnold

Robert Sheridan

Of:

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

EEOC Sues Wal-Mart for Age and Disability Discrimination – Equal Employment Opportunity Commission

Keller Store Manager Harassed and Then Fired Because of His Age; Also Denied a Reasonable Accommodation for His Diabetes, Federal Agency Charges

Wal-Mart Stores of Texas, LLC discriminated against a store manager by subjecting him to harassment, unequal treatment and discharge because of his age, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed in federal court today. The EEOC’s suit also alleges that Wal-Mart violated federal anti-discrimination law when it refused the manager’s request for a reasonable accommodation for his disability.

The EEOC charges in its suit that David Moorman, the manager of a Keller, Texas Walmart store, who was 54 at the time, was ridiculed with frequent taunts from his direct supervisor including “old man” and the “old food guy.” The supervisor also derided Moorman with ageist comments such as, “You can’t teach an old dog new tricks.” The EEOC further alleges that, after enduring the abusive behavior for several months, Moorman reported the harassment to Wal-Mart’s human resources department. The EEOC contends that not only did Wal-Mart fail to take any corrective action, but the harassment, in fact, increased, and the store ultimately fired Moorman because of his age.

The suit also alleges that Wal-Mart unlawfully refused Moorman’s request for a reasonable accommodation for his disability. Following his diagnosis and on the advice of his doctor, Moorman, a diabetic, requested reassignment to a store co-manager or assistant manager position. Wal-Mart refused to consider his request for reassignment, eventually rejecting his request without any dialogue or consideration.

Such alleged conduct violates the Age Discrimination in Employment Act (ADEA) which prohibits discrimination on the basis of age 40 or older, including age-based harassment. It also violates the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities and requires employers to provide disabled employees with reasonable accommodations. The EEOC filed suit, Case No. 3:14-CV-00908-M, in U.S. District Court for the Northern District of Texas after first attempting to reach a pre-litigation settlement through its conciliation process.

The EEOC seeks injunctive relief, including the formulation of policies to prevent and correct age and disability discrimination. The suit also seeks damages for Moorman, including lost wages and an equal amount of liquidated damages for Wal-Mart’s willful conduct. The EEOC will also seek damages for harms suffered as a result of the non-accommodation.

“Employers should be diligent about preventing and correcting conduct that can amount to bullying at the workplace,” said EEOC Senior Trial Attorney Joel Clark. “They have an obligation to stop ageist harassment after it is reported. The company’s failure to take remedial action to stop the harassment, as well as the denial of a reasonable accommodation for a disability, and the ultimate termination of the discrimination victim demonstrate a disregard for equal opportunity laws. The EEOC is here to fight for the rights of people like Mr. Moorman.”

Robert A. Canino, regional attorney for the EEOC’s Dallas District Office, added, “The open mockery and insulting of experienced employees who have committed themselves to work for a company are totally unacceptable. It’s unfortunate when supervisors and managers lose sight of the importance of valuing employees. But we are hopeful that a constructive resolution which promotes the common goal of achieving a respectful work environment will emerge from this process.”

Article by:

U.S. Equal Employment Opportunity Commission

Of:

U.S. Equal Employment Opportunity Commission

The Complicated Landscape of US Estate Tax

Canadians who own assets in the U.S. may be subject to U.S. estate tax.

This tax is based on the fair market value of all U.S. assets owned at the time of death. It can reach 40%, depending on the value of U.S. assets and the world-wide estate.

But not all Canadians who own U.S. assets will be subject to U.S. estate tax. A close look at the new U.S. estate tax rules will help you determine whether your Canadian clients are exposed to U.S. estate tax.

New U.S. estate tax rules

On January 2, 2013, President Obama signed the American Taxpayer Relief Act of 2013 (the Act) into law. The Act resolves many of the issues raised by the fiscal cliff.

Pursuant to the Act, U.S. estate tax liability of non-U.S. residents depends on the answers to the following two questions:

Is the value of the U.S. estate more than $60,000?
Is the value of the worldwide estate greater than $5,250,000?

If the fair market value (FMV) of U.S. assets is less than $60,000 on the date of death, then there is no U.S. estate tax. If the value of U.S. assets on death exceeds $60,000, a Canadian’s estate may still be exempt from U.S. estate tax if the value of his or her worldwide estate upon death is less than what is known as the “exemption.”

Worldwide exemption for 2013 and beyond

The Act provides an exemption from U.S. estate tax if a non-resident dies with a worldwide estate with a FMV of less than $5,250,000. This exemption amount is inflation-adjusted. Everything counts when calculating a Canadian client’s worldwide estate—including RRSPs and life insurance.

Additionally, when advising a married couple about U.S. estate tax exposure, it’s important to calculate the value of both spouses’ estates combined.

Clients often ask whether the U.S. estate tax is on the worldwide estate. The answer is no; the IRS does not tax a Canadian resident (who is not a U.S. citizen) on his or her worldwide estate.

The only assets that are subject to U.S. estate tax for Canadians are U.S. assets.

What are U.S. assets?

Common U.S. assets include real estate in the U.S. and personally held stocks of U.S. corporations, both public and private.

Here’s a complete list of U.S. assets subject to U.S. tax:

real estate property located in the U.S;
certain tangible personal property located in the U.S., such as furniture, vehicles, boats and airplanes;
golf club equity memberships;
shares of U.S. corporations, regardless of the location of the share certificates (even inside RRSPs or RRIFs);
interests in partnerships owning U.S. real estate or carrying on business in the U.S.;
U.S. pension plans and annuity amounts (IRAs and 401K plans);
stock options of a U.S. company;
U.S. mutual funds;
money owed to Canadians by American persons; and
money market accounts with U.S. brokerage firms.

The following is a list of U.S. assets not subject to U.S. estate tax:

U.S. bank deposits;
certain debt obligations, such as U.S. government bonds;
American depository receipts;
term deposits/guaranteed investment certificates;
real estate situated outside the U.S.;
Canadian mutual funds denominated in U.S. dollars that invest in U.S. stocks;
life insurance proceeds payable on the death of a Canadian citizen and resident who is not an American citizen; and
non-U.S. stocks, bonds and mutual funds.

Many Canadians own assets subject to U.S. estate tax with vacation homes and shares of U.S. corporations topping the list. How can you help clients who own these assets?

The following scenario provides some answers.

Strategies for Canadians who own U.S. assets

Richard is a Canadian citizen and resident, single, with a worldwide estate of $10 million. He owns an $800,000 property in Ft. Lauderdale, Fla.

Richard’s inherited 25% of the shares of four Florida corporations from his deceased father, which he estimates have a value of $200,000. Each corporation owns an apartment building in South Florida.

The chart “Example estimates” (this page) approximates Richard’s 2013 exposure to U.S. estate tax.

Tax planning for U.S. real estate

The goal of any tax-planning for a Canadian owner of U.S. real estate is to ensure the estate of the Canadian decedent is not subject to U.S. estate tax. Consequently, title should not be in his or her name. Alternative ownership structures include:

corporation;
cross-border trust (irrevocable or revocable); and
limited partnership.

These ownership structures avoid probate and guardianship proceedings in the case of incapacity and can defer or avoid U.S. estate tax.

Tax planning for stocks

Although Richard’s shares of U.S. stock are considered U.S. assets, there are tax-planning techniques for avoiding U.S. estate tax.

01 Sell

This may trigger capital gains tax in Canada, though Richard may have some capital losses to apply against it.

02 Create a Canadian holding corporation

Transfer the shares of U.S. stocks on a tax-free basis into a Canadian corporation, of which Richard is the shareholder.

Should Richard pass away with U.S. stock in his Canadian holding company, there will be no U.S. estate tax because Richard no longer owns shares of a U.S. company; he only owns shares of a Canadian holding corporation that owns shares of the Florida companies that Richard’s father passed on to him.

The U.S. Foreign Investment in Real Property Tax Act (FIRPTA) may apply to Richard’s transfer of U.S. stocks into a Canadian company. FIRPTA requires that 10% of the sale price or transfer value of U.S. real estate by a non-resident of the U.S. be withheld and remitted to the IRS. Richard can avoid this with proper structuring and reporting, which we’ll explain next time. No withholding will be required and no disposition will have occurred.

Example estimates of U.S. Estate Tax Payable for 2013

Article by:

David A. Altro

Of:

Altro Levy LLP

Chief Litigation Officer Summit Spring 2014 – March 20-22, 2014

The National Law Review is pleased to bring you information about the upcoming Chief Litigation Officer Summit hosted by Marcus Evans.

When

Thursday March 20 – Saturday March 22, 2014

Where

Las Vegas, Nevada

America’s In-house Litigators Network and Benchmark in Vegas
Here are the nuts and bolts.

The summit is complimentary to in-house Chief Litigation Executives who come from companies with a minimum of $750 million revenue. Though titles also include AGC-Litigation, Head of Litigation, SVP/VP Litigation and so forth. Inquire within!
There are only around 100 total heads of litigation and all have similar profiles, which means similar challenges and opportunities. You will be meeting with and talking with some of the brightest thinkers in the legal industry
Speakers include:
Lily Yan Hughes, VP and AGC – Corporate, Ingram Micro Inc.
Eva Lehman, VP Litigation and Chief Compliance Officer, Western Digital Corporation
Frederick Egler Jr., Chief Counsel – Litigation, The PNC Financial Services Group
Steve Taub, Assistant General Counsel, U-Haul International, Inc.

And more

Your delegate package at the Chief Litigation Officer Summit includes all the essentials needed for a productive and rewarding event. As a delegate at the summit, you will receive:
A three-day streamlined agenda
Access to the secured event website
A comprehensive directory of solution providers
An experienced event management team
All meals and networking activities
Two nights’ accommodation at a luxury five star venue

For the event brochure visit: http://www.marcusevans-conferences-northamerican.com/chieflitigationofficer_assetpage

Contact Jenny Keane, marketing manager at
j.keane@marcusevansch.com
+1312-540-3000 x6515

IP Law Summit – March 20-22, 2014

The National Law Review is pleased to bring you information about the upcoming IP Law Summit hosted by Marcus Evans.

When

Thursday March 20 – Saturday March 22, 2014

Where

Las Vegas, Nevada

Intellectual Property is the bedrock of many contemporary companies and with the growth of the internet and a global market, having a smart IP strategy is more essential than ever. Every business decision that involves IP is a legal decision and every legal decision is also a business decision. Counsels are constantly pressed to promote innovation and must keep up-to-date with any worldwide regulatory changes ensuring the future growth and protection of their company’s IP.

The IP Law Summit is the premium forum for bringing senior IP Counsel within the largest corporations and mid-market organizations together with service providers. As an invitation-only event taking place behind closed doors, the Summit offers an intimate environment for a focused discussion of cutting-edge technology, strategy and products driving the IP marketplace.

2nd Conflict Minerals Reporting and Supply Chain Transparency – June 23-25, Chicago, IL

The National Law Review is pleased to bring you information about the 2nd Conflict Minerals Reporting and Supply Chain Transparency Conference, June 24-25, 2014, presented by Marcus Evans.

Click here to register.

Where

Chicago, IL

When

June 24-25, 2014

What

The 2nd Sustaining Conflict Minerals Compliance Conference will break down each SEC filing requirement as well as examine direct filing examples from specific companies. Discussions will tackle key issues including refining conflict minerals teams to create a more successful conflict minerals management program, managing and developing consistent communication within the supply chain, and building an IT program that will continue to secure data from the various levels of the supply chain.

This conference will allow organizations to benchmark their conflict minerals management program against their peers to more efficiently meet SEC expectations and amend their program for future filings. Seating is limited to maintain and intimate educational environment that will cultivate the knowledge and experience of all participants.

Key Topics

Scrutinize the Securities and Exchange Commission (SEC) requirements and evaluate external resources for a more efficient conflict minerals rule with Newport News Shipbuilding, Huntington Ingalls Industries
Engineer a sustainable conflict minerals program for future filings with Alcatel-Lucent
Integrate filings and best practices from the first year of reporting with BlackBerry
Maintain a strong rapport with all tiers of your supply chain to increase transparency with KEMET
Obtain complete responses moving throughout the supply chain with Global Advanced Metals

Only 1 week until the NAWL 2014 Mid-Year Meeting – March 19-20. Register today!

The National Law Review is pleased to bring you information about the upcoming 2014 Mid-Year Meeting of the National Association of Women Lawyers (NAWL).

When

Wednesday March 19 – Thursday March 20, 2014

Where

Washington, D.C.

Join us at the 2014 Mid-Year Meeting in Washington, D.C. on March 19-20, 2014 at the Renaissance Washington, DC Downtown Hotel.

This year’s program is Leadership through Change: Lessons from D.C. and Beyond. The hard work and collaboration of the entire Mid-Year Meeting Planning Committee have produced a comprehensive and rich program relevant to Women in all fields of legal practice. Topics we will cover include a mix of professional development and substantive sessions: Navigating in a Majority Environment: Clearing the Hurdles to Success; Cyber & Data Security; Developing Lawyers as Leaders; 50th Anniversary of the Equal Pay Act: Where We Stand; and Power: How To Get It and How To Wield It. We will be announcing our keynote and other speakers soon, so please stay posted on the website. Finally, as always, there will be networking time built in throughout the event.

While we hope that you learn a lot from the meeting, we also want you to enjoy yourselves in our nation’s capital—and, with luck, enjoy the height of the cherry blossom season after a very long winter. We believe that you will leave the 2014 NAWL Mid-Year Meeting inspired and look forward to seeing you in D.C.

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Electricity Rate Cap

Interconnection Agreement

Purchase Of Excess Electricity

Electricity Production Guaranty

Taxes

SNDAs

Non-interference With PV System And Property Access

PV System Purchase Options

Assignment

Limitations On Liability

Parental Guaranties

Conclusion

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Participating in a NCAA Bracket Pool: Everyone Else Does It, So Why Can’t We?

Watching the Games: Everybody Else is Watching, So Why Can’t We?

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New U.S. estate tax rules

Worldwide exemption for 2013 and beyond

What are U.S. assets?

Strategies for Canadians who own U.S. assets

Tax planning for U.S. real estate

Tax planning for stocks

01 Sell

02 Create a Canadian holding corporation

Example estimates of U.S. Estate Tax Payable for 2013

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