New Jersey Lawyers Blog

Published on: May 3, 2016

Bulk Sales Provisions

accounting-761599__180 The Bulk Sales Act was enacted in 2007, expanding upon the prior bulk sales law previously codified in 1995. This law requires the parties in a transaction to notify the New Jersey Division of Taxation regarding certain transfers of property so that the Division can determine if there are any outstanding tax liabilities which can be obtained as part of the sale of the property.

The bulk sales notice requirements generally apply to real property (land and/or buildings) which is owned by a business or which are income-producing. For example, the following types of transactions are subject to Bulk Sales requirements: the sale of real estate used in any trade or business, full-time rental property, real estate owned by a business, transactions where a deed in lieu of foreclosure is being provided (where a lender is taking back income-producing, mortgaged property from a delinquent borrower), auction sales, and business assets such as patents, copyrights, equipment, leases, merchandise, or other inventory not being transferred in the normal course of business. Generally, all transactions transferring business assets (other than in the regular course of business) are included. A typical residential real estate transfer is not subject to Bulk Sales requirements.

When there is a Bulk Sales transfer, the buyer must advise the Division of Taxation of the scheduled transfer at least 10 days prior to the scheduled closing date with the submission of a C-9600 form. The buyer completes this form because the buyer bears the risk of liability – meaning that if there are outstanding tax liabilities owed by the seller of the property, and no notice is provided to the Division regarding the sale, the buyer may become responsible for the amount owed. As a result the Division of Taxation may institute a judgment or levy against the buyer’s property or seize the buyer’s assets.

Published on: May 2, 2016

Filing a Notice of Appeal with the Department of Education: What You Must Do Before Its Too Late

by Robert Chewning, Esq.

knowledge-1052011__180 New Jersey’s Department of Education has issued regulations which govern “controversies and disputes” with public employees such teachers and principals. The “controversies and disputes” cover a wide variety of issues including but not limited to the State Board of Examiner’s (“Board’s”) decision to block, revoke, or suspend a teacher’s certificate.

If you are faced with such a controversy or dispute or have been adversely affected by a decision from the Board or other agency, these regulations provide a legal right to challenge the decision through a petition of appeal. The petition of appeal must be filed in the specific format and must be filed within the time limitations provided under N.J.A.C. §6A:3-1.3(i). Failing to strictly comply with these requirements may prevent you from challenging the Board’s or other agency’s decision or order.

The time period to file a petition of appeal begins from the date you receive a notice of “a final order, ruling or other action” by the Board, a board of education, or other agency. The notice of the final decision must set forth the facts that you have a right to know which the decision is based on. However, the notice may not be clear that the decision is final or provide you with information regarding your right to file a petition of appeal. Therefore, it is extremely important that you address any notice of a decision that affects your employment promptly and seek legal counsel regarding your rights to appeal before they are time barred.

Published on: April 11, 2016

Taxability of Lawsuit Settlements

by Pauline M.K. Young

capitol-22546__180 Lawsuits can settle immediately after a complaint is filed or several years into the litigation process on the eve of trial, or even during the course of a trial. Most cases will settle before a final resolution is determined by a judge or jury. Settlements generally offer a more favorable resolution than trial for several reasons: (1) both parties avoid the risk of loss at trial, (2) both parties avoid the considerable costs, time, and efforts involved in further litigation and trial, and (3) both parties avoid protracted appeals.

Both parties in a suit seeking monetary damages should consider tax implications in agreeing upon a settlement. This is true for defendants (the party who is being sued) and plaintiffs (the party who filed the lawsuit) since the defendant may need to make tax deductions prior to disbursement to the plaintiff and/or a plaintiff may need to include some types of settlement proceeds as taxable income. Further, a defendant may need to issue a 1099 to the plaintiff along with the disbursement of settlement funds. These determinations are highly fact-sensitive and every party should consult their own CPA or other tax professional who would be most familiar with each parties’ particular situation.

Generally, settlement money received for a personal physical injury is not taxable. (There are exceptions, but this is the general rule.) However, it is important to take into consideration that the settlement amounts may be subject to reimbursement to Medicaid/Medicare or medical insurance. Indeed, the Social Security Act requires that Medicare payments be reimbursed by a subsequent lawsuit recovery, such as a settlement or award.

Published on: March 31, 2016

ABLE Accounts Will be Available in New Jersey in October 2016

by Jennifer C. Meusel

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The New Jersey Achieving a Better Life Experience (ABLE) Act became law on January 11, 2016, it becomes effective on October of 2016. While due to its limitations it does not replace the special needs trust, it will be a cost effective way to assist individuals with disabilities.

Under the new Act the New Jersey’s Department of the Treasury and the New Jersey’s Department of Human Services must establish the ABLE Program pursuant to federal law. Under the program, individuals who became disabled before they attained the age 26 and who are also able to meet the disability requirements for Social Security disability benefits are permitted to establish an ABLE account, and they themselves can be the beneficiary of that account. The purpose of an ABLE account is to enable people with disabilities and their families to save and pay for disability-related expenses.

An ABLE account is not subject to state income tax, and it will not be considered to determine the beneficiary’s eligibility for need-based public benefit programs or to determine the level of any benefit provided under such a program. However, a disabled individual can only have one ABLE account established for their benefit.

Published on: March 16, 2016

Our New Jersey Employment Attorneys Represent Teachers and Other School Employee in Tenure Charges

by McLaughlin & Nardi, LLC

Fighting Tenure Charges Against New Jersey Teachers

Our New Jersey employment attorneys represent teachers and other school employees in tenure charges, wrongful discharge, harassment and other wrongful treatment.

In 2012, the TEACHNJ Act, pushed through the Legislature by Governor Christie, made major changes to New Jersey’s tenure laws. Among other changes, it revamped the appeal process for New Jersey tenure charges. Instead of having New Jersey Department of Education make the final determination of tenure charges after a fact-finding trial by an administrative law judge, appeals of tenure charges are now decided by binding arbitration. Because of the finality of these arbitration decisions, and the limited grounds for appeal, it is important to have experienced New Jersey employment attorneys representing you.

Published on: March 8, 2016

What Happens If You Die Without A Will?

by Jennifer C. Meusel

This is called dying intestate and if you die without a Last Will and Testament as a resident of the the State of New Jersey your estate will be distributed according to the New Jersey laws of intestacy. hand-229777__180 Since there is no will to probate, your nearest living relative who is willing to do so will need to be appointed as administrator of your estate by the surrogate’s court.

However, not all of your assets will be distributed through the process of estate administration. There are many assets which, through contract law, pass automatically to a designated beneficiary. Examples of assets that pass automatically are:

Real estate owned with another person as joint tenants

Published on: February 22, 2016

Representing Homeowners in Defending Construction Lien Claims

by McLaughlin & Nardi, LLC

Representing Homeowners in Defending Construction Lien Claims

Our New Jersey construction attorneys represent homeowners who, through no fault of their own, have construction liens (called “mechanics liens” in years past) filed against their property.

Typical Scenarios Where Homeowners Get it Trouble

Published on: February 19, 2016

The Regulation of Solid Waste Transportation

by Pauline M.K. Young

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Virtually every business in New Jersey is regulated in some way, shape, or form. Accounting firms are regulated by the Department of Law & Public Safety and regulations require accounting firms to have certified public accountants. Home improvement contractors are often required to be registered with the Department of Labor and Department of Treasury. Health clubs are required to register and issue a security bond with the Department of Law and Public Safety. Restaurants are regulated by local health departments. However, businesses which involve the transportation, storage, or disposal of solid waste are some of the most regulated and highly scrutinized businesses in the State of New Jersey.

Solid waste haulers or transporters are regulated by the New Jersey Department of Environmental Protection (“NJDEP”), Division of Solid Waste Management and/or the Division of Solid & Hazardous Waste Management.

However, first, for tax and liability purposes, a business will generally form a company or business entity (such as a corporation or limited liability company). In doing this, the company will likely file for a Certificate of Formation and a request a FEIN (or Federal Employer Identification Number).

Published on: February 16, 2016

McLaughlin & Nardi, LLC Attorneys Recover $289,918 For Homeowners in Construction Arbitration

by McLaughlin & Nardi, LLC

McLaughlin & Nardi’s New Jersey construction attorneys recently completed a construction arbitration in the American Arbitration Association. After hearing the evidence, the arbitrator awarded our clients $289,918. Maurice McLaughlin was the lead trial attorney. He was assisted throughout by Pauline Young and Robert Chewning, who second chaired the hearings.

Background

The case involved Essex County homeowners who had contracted for extensive renovations to their kitchen. The total cost of the kitchen renovations was $152,725. The homeowners paid $126,362.50. However, the contractor never completed the job.

Published on: December 11, 2015

New Jersey Durable Power of Attorney

by Jennifer C. Meusel

The general durable power of attorney is an important and powerful document. New Jersey law, N.J.S.A. 46:2B8-1, et seq., provides this mechanism so that you may appoint another to handle your affairs. A durable power of attorney is effective during the lifetime of the person who signs it (the “principal”). Its purpose is to appoint another person (or multiple people) who can stand in the shoes of the principal and act on their behalf. The designated person is referred to as the “agent”.

In a general durable power of attorney the principal designates one or more people to act on the principal’s behalf. If the principal appoints more than one persons, he can require that the designated agents must act together, or structure the power so that each person can act alone without the knowledge or consent of the co-agent. Appointing two agents who can act individually can however have drawbacks. If both do not agree on a proposed course of action, it can lead not only to discord and infighting, but to litigation. If one agent feels it is in the principal’s best interest to sell his home, but the co-agent disagrees, the co-agent might bring an action in court to block the sale. The situation would be more difficult if one of the agents had signed a contract for sale with a buyer, as now, the buyer may join the litigation to force the sale. If the agents were required to act jointly they would be forced to come to an agreement before third parties and/or the courts were involved. Finally, it is always recommended that the principal name a successor agent who can act if the first named agent is unwilling or unable to do so.

The most difficult decision the principal has is deciding who to name as agent. Since the agent under a power of attorney must handle the financial affairs of the principal, it is important to choose someone who is organized, responsible and financially savvy. Obviously, it should be a person the principal trusts implicitly. The principal should speak with the proposed agent prior to the appointment to ensure that the person would be willing to take on the responsibilities if it becomes necessary.

However, it is important to make this difficult decision and execute a power of attorney because without one there is no one who can make financial decisions for person once they are no longer capable of handling their own affairs. Unless appointed by a power of attorney, even a spouse does not have the power to handle her spouse’s affairs. For example a spouse cannot access IRA or 401K accounts, cannot mortgage or sell real estate and cannot speak to social security or the motor vehicle commission. Once a person is incapacitated and no longer able to handle their own affairs, they in all likelihood no longer have the capacity to execute a general durable power of attorney. At that point, the only option is to have a guardian appointed for the incapacitated individual. To appoint a guardian, a court action is required which, even if it is uncontested takes considerable time and expense.
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