Food For Thought: State of the State, Volkswagon and Tax Extenders

As the cold months are upon us, I find I have a bit more time to sit and ponder. Here are a few items for you to think about should you find yourself in the same position:

In a recent poll conducted by Politico, Colorado came out pretty well.  It was ranked the 6^th strongest state.  The criteria included the following: Annual per capita income ($31,674); percentage of unemployed (3.5%); percentage below poverty level (12%); home ownership (63.9%): percentage of high school grads (90.5%); life expectancy (80) with Infant deaths/1000 (4.79).  Denver was also just recently ranked the 8^th most future ready city.  Tell me, in your businesses, are you experiencing the same positive trending?

In a recent tour of the country, the CEO of Volkswagen said, after California rejected its remediation plan, that his Company did not lie to the EPA; it was a technical misunderstanding…  In my previous newsletter I suggested that perhaps criminal sanctions might be in order.  I think in a court of law, the CEO’s recent statement could be a pivotal moment in a trial.

Congress has just finished passing The Tax Extension bill.  There are tax breaks for certain special interests with strong lobbying influence.  Interestingly, over the years, tax extenders have grown in popularity.  The very first tax extender bill was passed in 1988.  There were 8 provisions.  By 1992, there were 12. This year there are 50 provisions, costing $85 billion.  One reason for tax extenders is that line item inclusion in the budget requires lawmakers to consider the 10-year cost of the provision.  Tax extenders are usually passed for one or two years.   

My favorite is the provision promoted by Senator McConnell of Kentucky: it allows depreciation of race horses over 3 years rather than 7.  For those of you in small business, there is the bonus depreciation extender.  It allows businesses to write off a large share of investment in new equipment by immediately taking an expense deduction up to $500,000 (indexed for inflation) for new equipment.  Another extender would allow startups that are not profitable to qualify for a tax credit for research and development. 

In my humble opinion, special interests win out again.  How do we even it out? How about balancing it out with a higher earned-Income tax credit, increased child tax credits, subsidies for people who wanted to move in search of work and exemption of the first $20,000 in earnings from the Medicaid payroll tax?

If you have any interest in following up on a tax extender that might benefit you, please call me. I look forward to it.

Should corporations that break laws in a significant manner be allowed to exist?

The recent corporate scandals at Volkswagen and thePeanut Butter Corporation got me thinking about just when it was that corporations got constitutional rights. The answer is that over time, our Supreme Court has incrementally granted Corporations certain Constitutional rights, mostly in controversial political situations. Corporations are creatures of state statues, whose sole purpose is to provide for an association dedicated to making profit. Those statutes grant them certain rights such access to the courts to sue and be sued. Corporate existence is dependent on complying with law and paying fees and taxes. Corporations would not exist but for their statutory creation.

While some complain about corporations paying extraordinary taxes, they are well represented by their influence on regulatory and administrative agencies and lobbying efforts in congress. Shareholders have been told that these expenses are a necessary cost of doing business and a legitimate expense against profits. 

Two recent Supreme Court cases newly granted corporations the right of free speech (Citizens United) and religious rights (Hobby Lobby). There are 8 other cases that in one way or another grant corporations constitutional rights. How do corporations deserve our precious citizen's inalienable rights given that their very existence was granted by a state legislature? 

 

Going back to status for the moment, if corporations are statutorily created creatures subject to law, and if they violate the law in a significant way, should they be allowed to continue in existence? Corporations have not been granted a fifth amendment right against self-incrimination. Corporate Records and testimony by corporate executives should be totally available to prosecutors. In the Volkswagen Case, the facts are not yet out, but it would appear likely that the creation and installation of this software device was not an act of negligence. It was intentional. The Peanut Butter Corporation produced its a food product in plants known to be unsanitary and resulted in death and serious illness to many consumers. Corporations can's go to jail, so why should these two corporations, having committed or alleged to have committed felonious acts be allowed continued existence? Wouldn't the threat of ending a corporation's existence send a message? 

 

Your thoughts?

I look forward to hearing from you. 

 

Sincerely,

 

Len Goldstein
Attorney at Law

Is There A Way? Development Versus Impact

In one of my very first blogs, I talked about the "need to make a difference" as a strong motivator to stay engaged in the practice of law.  In the last blog, I mentioned my local governmental committee work and hinted at the battle between a developer's special interest and protecting the community assets of the Highline Canal trail and open space.  The developer has now presented to both the Parks and Trails Committee and the Planning and Zoning Committee.  One committee has recommended in favor and the other recommended against.

I have taken up the battle against a part of the development that puts a vehicular bridge carrying construction and local traffic in the way of a trail over which 100,000 people per year hike.  There are alternatives but other neighbors object to increased traffic, or the developer objects to the increased costs. I am deeply involved and will continue the good fight.

That being said, it is interesting to compare our local neighborhood fight to what is going on in Washington.  Polarization seems to prevail over compromise. So in our local case, you are either in favor of the development or against it.  One of my neighbors said it well when she said, while she would prefer the open space, she understands the rights of a landowner to develop a piece of land in a way that does not harm others. 

Is there a centrist or compromise position that allows development but minimizes harm?  I tend to be a centrist.  The Centrist position seems to repel many on the hard left or right but I think common sense should prevail over ideological positions.  I tend to think the commonwealth should prevail over special interest.  So... I will continue the good fight that will hopefully result in a solution that benefits all.  What are your thoughts on this topic? I truly am soliciting your feedback on this one so email me and let me know where you stand. 

  

I look forward to hearing from you. 

Sincerely,

Len Goldstein
Attorney at Law

A Treasure Trove of Malapropisms

Now here is a fun job. Two lawyers Charles Savilla and Lee Lorenz have amassed a treasure trove of malapropisms from actual trial transcripts and put them into several books called Disorder in the Court.  This sample will tickle your funny bone.

ATTORNEY: What was the first thing your husband said to you that morning?
WITNESS: He said, 'Where am I, Cathy?'
ATTORNEY: And why did that upset you?
WITNESS: My name is Susan!
_______________________________
ATTORNEY: What gear were you in at the moment of the impact?
WITNESS: Gucci sweats and Reeboks.
____________________________________________
ATTORNEY: Are you sexually active?
WITNESS: No, I just lie there.
____________________________________________
ATTORNEY: What is your date of birth?
WITNESS: July 18th.
ATTORNEY: What year?
WITNESS: Every year.
_____________________________________
ATTORNEY: How old is your son, the one living with you?
WITNESS: Thirty-eight or thirty-five, I can't remember which.
ATTORNEY: How long has he lived with you?
WITNESS: Forty-five years.
_________________________________
ATTORNEY: This myasthenia gravis, does it affect your memory at all?
WITNESS: Yes.
ATTORNEY: And in what ways does it affect your memory?
WITNESS: I forget.
ATTORNEY: You forget? Can you give us an example of something you forgot?
___________________________________________
ATTORNEY: Now doctor, isn't it true that when a person dies in his sleep, he doesn't know about it until the next morning?
WITNESS: Did you actually pass the bar exam?
____________________________________
ATTORNEY: The youngest son, the 20-year-old, how old is he?
WITNESS: He's 20, much like your IQ.
___________________________________________
ATTORNEY: So the date of conception (of the baby) was August 8th?
WITNESS: Yes.
ATTORNEY: And what were you doing at that time?
WITNESS: Getting laid.
____________________________________________
ATTORNEY: She had three children, right?
WITNESS: Yes.
ATTORNEY: How many were boys?
WITNESS: None.
ATTORNEY: Were there any girls?
WITNESS: Your Honor, I think I need a different attorney. Can I get a new attorney?
____________________________________________
ATTORNEY: How was your first marriage terminated?
WITNESS: By death.
ATTORNEY: And by whose death was it terminated?
WITNESS: Take a guess.
___________________________________________
ATTORNEY: Can you describe the individual?
WITNESS: He was about medium height and had a beard.
ATTORNEY: Was this a male or a female?
WITNESS: Unless the Circus was in town I'm going with male.
_____________________________________
ATTORNEY: Is your appearance here this morning pursuant to a deposition notice which I sent to your attorney?
WITNESS: No, this is how I dress when I go to work.
______________________________________
ATTORNEY: Doctor, how many of your autopsies have you performed on dead people?
WITNESS: All of them. The live ones put up too much of a fight.
_________________________________________
ATTORNEY: ALL your responses MUST be oral, OK? What school did you go to?
WITNESS: Oral.
_________________________________________
ATTORNEY: Do you recall the time that you examined the body?
WITNESS: The autopsy started around 8:30 PM.
ATTORNEY: And Mr. Denton was dead at the time?
WITNESS: If not, he was by the time I finished.
____________________________________________
ATTORNEY: Are you qualified to give a urine sample?
WITNESS: Are you qualified to ask that question?
______________________________________
And last:
ATTORNEY: Doctor, before you performed the autopsy, did you check for a pulse?
WITNESS: No.
ATTORNEY: Did you check for blood pressure?
WITNESS: No.
ATTORNEY: Did you check for breathing?
WITNESS: No.
ATTORNEY: So, then it is possible that the patient was alive when you began the autopsy?
WITNESS: No.
ATTORNEY: How can you be so sure, Doctor?
WITNESS: Because his brain was sitting on my desk in a jar.
ATTORNEY: I see, but could the patient have still been alive, nevertheless?
WITNESS: Yes, it is possible that he could have been alive and practicing law. 

Is incarcertaion the answer to immigration?

I did some follow up research on the immigrant kid issue I discussed in a previous blog.  The Office of Refugee Resettlement recently reported that for fiscal year 2014 68, 541 kids unlawfully entered the US.  It is expected that for fiscal year 2015 74,000 kids will enter.  Kids from Mexico are taken right back across the border.  The highest percentages of kids come from Honduras followed by Guatemala. Most kids ride a train through Mexico called La Bestia.  Neither the Mexican government nor the railroads do anything about it.  When the kids are caught at the border, the average time in a shelter is 45 days.  All kids are scheduled for a deportation hearing; there were no statistics on the average time for a hearing or the percentage of kids that are allowed to stay. There is neither legislation nor administrative action to address this situation.

The pattern of the US Justice Department in collecting fines without admissions of guilt continues.  There are currently several pending settlements over foreclosure and interest rate collusion pending, involving billions in fines.  The DOJ practice on collecting fines without admissions of wrong doing is not a deterrent. I did some research on the problem and the following statistics come from the Pew Center.   In 1980 the prison population in the US was approximately 500,000.  Currently, the population is 2,300,000.  We currently have more inmates than the combined 35 European nations.  The average cost per inmate in $40,000/year.  We now have over 70,000,000 people with criminal records.  There are now 3 pieces of legislation in Congress that looks at this problem, more importantly questions are being addressed that look at the relationship between higher incarceration rates and crime reduction and the relationship between wrongdoing and overregulation.

So getting back to the  question about jail time for breaches of regulatory matters:  I would lean against incarceration except for the most aggravated of economic crimes and in favor of individual civil and criminal liability and corporate and individual loss of license.

On a more personal level, and in the vein of making a difference, I am currently serving on the Greenwood Village Parks and Trails commission.  I had thought it would not be very contentious and I might contribute something that made a difference.  Oh how wrong I was.  Quickly into my term I ran smack into the dilemma of growth versus open space preservation: regulation versus free market.  Stay tuned for results in the next newsletter. Sign up for the latest updates if desired.