Articles

Facey Goss & McPhee Attorneys

Some of the content within our articles was published when the firm was under the name of Kenlan, Schwiebert, Facey & Goss, P.C.


International Tax Rules Frequently Encountered in Vermont

by John C. Newman, Esq. with Ron Morgan, Esq., and Matt Getty, Esq. This article was first published in the Spring 2015 edition of The Vermont Bar Journal and features ten international tax and legal issues that our firm frequently encounters.

Common International Legal Issues in Vermont Will and Trust Practice

Attorney John Newman highlights some legal issues when preparing Wills and Trusts for non-US citizens.

What To Do When a Parent Dies Owning Real Estate in Vermont

by John C. Newman, Esq. and Matthew D. Getty, Esq. This article addresses the issues that can arise when a parent dies owning Vermont real estate as well as the various approaches a parent or any other owner of Vermont property might consider as part of their estate planning.

Your Vermont Vacation Home and Estate Planning

We recently met with a new estate planning client who is not a native Vermonter, but a West-coast transplant. This client felt compelled to meet with us after he had read somewhere that Vermont was “not a good place to die owning real property”.

Vermonters With Interests In Foreign Accounts—Time To Come In Out Of The Cold

If you or a member of your family has foreign investment accounts, and/or interests in trusts, corporations or other foreign entities that have not been disclosed to the IRS, I strongly suggest you read on, because there is a growing list of reasons to “come clean” now.

Tax & Estate FAQs

Attorney John Newman gives insight into common questions people have about simple wills, probate disbutes and estate planning.

Are Your Clients Ready for ICE?

Granted, in this strangest of winters we’re all more than ready for the arrival of a little snow and ice. But attorneys in Vermont may also want to think about preparing their clients for the arrival of ICE of a different sort – the federal agency of Immigration & Customs Enforcement, also known as ICE.

Paula's Blog

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U.S. Immigration Waivers for Canadians

In our immigration practice, we receive the occasional call from a Canadian who wishes to enter the United States but cannot due to a criminal conviction. For example, we recently advised on the case of an individual who had been barred from entering the United States because of a conviction for the possession of one marijuana cigarette in the United States 10 or 20 years ago (at a time when President Clinton was admitting that he had smoked marijuana, but “did not inhale”).

Elder Law Ethics and Joint Representation

During our seminar at the March 2008 Bar Meeting, we had a lively exchange on the potential ethical pitfalls of joint representation. To further this discussion, we would like to offer some language that you might consider for your estate planning joint engagement letters.

U.S. Imposes Mark-to-Market Exit Tax

A little history is helpful in understanding the imposition of an exit tax on US citizens and long-term residents who commit a taxable act of expatriation on or after June 17, 2008. Since 1966, the Internal Revenue Code has contained anti-abuse rules attempting to tax individuals who renounce their US citizenship for tax avoidance.

Unauthorized Practice of Law for Elders and Immigrants

To try to foster a state-wide contemplation on the topic of unauthorized practice of law for elders and immigration matters, herein is a rule currently under study by the Vermont Supreme Court.

Workers’ Compensation Coverage for Canadian Inbound Workers

Reading a state’s statutes to try to figure out how they might apply to an international transaction can be difficult. US state legislatures do not often consider international commerce, even though US trade and worker immigration flows with a contiguous country, like Canada can be substantial. One of the issues that has just arisen in our immigration practice is whether workers’ compensation coverage needs to be secured here in Vermont when an individual employed by a Canadian employer enters Vermont to perform services here.

Contempt in Probate Matters

The contempt statute has been in the Vermont statutes for well over a hundred years, but it has been underutilized in recent history.

Planning for the Vermont Estate Tax

By Ron R. Morgan, Esq., and Matthew D. Getty, Esq. It would be an understatement to say that estate planning to minimize potential federal and/or state estate tax liabilities has become considerably more complex in recent years. There are two principal reasons for this.

Information Reporting for Real Estate

As a result of the Small Business Jobs Act of 2010, a person receiving rental income from real estate is treated as engaged in the trade or business of renting property (amended IRC §6041(h), effective for payments made after 31 December 2010).

Living Well on Other People's Money

Co-authored by Paula McCann, Esq., and Ron R. Morgan, Esq. Vermont may be well on its way to a dubious number-one ranking: for that of thefts by fiduciaries from estates of all types. What lawyers need to know about preventing or prosecuting theft by fiduciaries.

Nonprofit Governance and IRS Form 990

If you are serving on a nonprofit board, you have a fiduciary duty of care in exercising oversight of the organization. One of the ways to ensure an active oversight role for your board is to review the annual filing of IRS Form 990.

New England Condo Q & A with Jack Facey

Firm partner Jack Facey has recently been answering questions for New England Condominium Magazine readers, a magazine published for owners, board members, lawyers and businesses working for condominium associations. The column is called “Ask a Lawyer.” The questions and answers posed to Mr. Facey follow.

Collection Procedures in Probate Court

As part of an article written by our Trust and Estate Department, we are proposing that litigants in probate court be able to use the same tools as are available in the Civil Division of the Superior Court to protect their financial interests when filing a petition and to collect final judgments. Current probate rules do not set forth the normal civil rules “tool kit” of pre-judgment mechanisms for finding assets and securing them until final judgment.

Spousal Share Rule

When the Vermont Legislature was considering the changes to the spousal share rules during the 2009-2010 session, the legislation originally contained a measure that would have criminalized thefts from any fiduciary relationship.

Tax and Medicaid Planning Aspects of the Standard Vermont Estate Plan—2007 Update

Judging from the interest generated by our 2004 CLE offering and by telephone calls and emails we have received since then, our article on the tax and Medicaid planning aspects of what we tongue-in-cheek termed the “standard Vermont estate plan” has led attorneys to explore alternatives to the rather common recommendation of a joint tenancy with a family member to pass a Vermont elder’s home to the next generation. Since the article was published (VBA Bar Journal, Summer 2003), the US Congress passed legislation that radically changes the Medicaid planning aspects of our article. In addition, the Vermont Supreme Court has issued three recent decisions that also must be considered in using the survivorship or remainder features in deeds to pass a home to surviving children.

Homestead Filing Change and Its Implications

By John C. Newman, Esq. & Matthew D. Getty, Esq. There has been a recent change in Vermont's homestead filing law. Read on to see how this affects the creation of life estates and/or transfers to trusts.

Termination of Ancient Endowments

One of the consequences of a prolonged economic downturn is a decrease in the size of institutional endowments just at the time when reliance on those funds may increase.

Disclosure of Foreign Financial Accounts

As has been widely reported in the press, a U.S. citizen or resident individual must file a Foreign Bank Account Report (FBAR) to disclose foreign bank and securities accounts.

Property Transfer Tax Upon Contribution of Property to Business Entity

By Matthew D. Getty, Esq. Anyone planning to transfer real estate into any kind of business entity needs to be aware of the provisions of the Vermont property transfer tax.

Financing Your Condominium Purchase in Vermont

Many of our clients purchase or sell condominiums in and around Vermont's ski areas. A troublesome issue has surfaced recently.

Facing Legal Matters After The Death of a Spouse

Facing legal matters after the death of a spouse is one of the more daunting and emotionally draining tasks a surviving spouse is required to address.

International Real Estate Transactions

Attorneys John Newman, Jack Facey and Ron Morgan discuss various tax implications on U.S. real property owned by a non-resident, non-US citizen.

Top Pitfalls in Preparing Lady Bird Johnson Deeds

The following handout on the pitfalls of preparing LBJ deeds was presented at the 2008 Winter VBA Program in Burlington. It has been updated with information from the Vermont Department of Taxes on the PTR tax imposed on certain of such transfers. We have also added model language for joint representation, an issue raised during the two-hour program.

Vermont Estate Tax: To Decouple or Not?

In a major departure from current tax policy, the Vermont legislature is considering a bill to impose the Vermont estate tax on some estates where currently no federal estate tax would be due.

Congress Reforms Medicaid Asset Planning Rules

Attorneys Paula McCann and Ron Morgan detail the proposed changes to the Vermont Medicaid Manual, potentially affecting whether and to what extent Vermont pays for an individual’s long-term care.

Medicare: Do You Know Your Rights?

Attorney Paula McCann outlines a few basic rights that all Medicare beneficiaries have, starting with the most basic right of all—being treated with respect.

The $75,000 Question

The Supreme Court’s 2005 decision in Estate of Mainolfi, 178 Vt. 588, illustrates the antiquated nature of Vermont’s probate laws and the need for reform efforts to instill certainty in the results of modern estate planning methods. Specifically, Mainolfi deals with the transfer of a home for estate planning purposes and the resulting implications of the statutory homestead interest for the surviving spouse. Neither the facts nor the law of the case are very clear from this 2-page decision, but the ruling casts uncertainty over any conceivable estate plan that involves the transfer of a home.

Know Your Rights Before You Reserve Them

Situation: You are engaged in a good faith dispute over how much money someone owes you. That person writes you a check, and writes across it some words indicating that the payment is made in full satisfaction of the claim. If you intend to continue to dispute the claim, do not cash the check. An attempt to reserve rights and cash a check offered in satisfaction of a claim will not be effective.

Estate Planning Law Update

These are interesting times for individuals trying to plan their estates. State and federal laws continue to be in flux. We would like to highlight some of the most significant changes.

Vermont’s Land Gains Tax

This article was first published in Vermont Property Owners Report, a Montpelier-based subscription newsletter about Vermont and Vermont real estate.

Buying Real Estate in Vermont

Buying a home in Vermont has never been more challenging. But with the right guidance, you can still come out ahead.

Rental Housing in Vermont

Many people owning Vermont real estate today are not aware that the Vermont Department of Public Safety, Division of Fire Prevention (hereinafter, “DFP” and formerly known as “Labor and Industry”) has jurisdiction over their homes.

Taking Title in Vermont: Exploring the Differences Between Various Forms of Ownership

There are have always been three methods of taking title to real estate in Vermont, “tenants in common,” “tenancy by the entirety” and “joint tenancy with the right of survivorship.” Recently the Legislature passed legislation allowing “civil unions” which, essentially, created a fourth type of title, “partners to a civil union.”

Reaffirmation Agreements

Although the reaffirmation process can be somewhat technical, debtors and their secured creditors have much to gain by going through the process.

Creditor Beware: The Notice of A Bankruptcy Filing

Sooner or later, it is bound to happen. Your company receives a notice that one of your vendors has filed for bankruptcy. This vendor owes you money. What do you do? First, don’t despair.

Equal Employment Opportunity: Investigating Discriminatory Hiring Practices

Facey Goss & McPhee recently responded on behalf of a client (the “Company”) to an inquiry by the State of Vermont Office of the Attorney General, Civil Rights Division, regarding allegations of discriminatory hiring practices. The recent inquiry involved allegations that the Company discriminated against an applicant during the hiring process based upon her gender.

“On the Record” Proceedings Before Municipal Panels: A Solution in Need of Fixing

In Vermont, hearings before a municipality’s planning commission, zoning board, or development review board historically have been relatively informal affairs. Whether participants appear before the panel to propose development, to respond to an alleged zoning violation, to object to a proposed project, etc., they frequently will appear without legal representation, and rarely will come armed with much more than a survey or building plans – sometimes only sketch drawings – of the property in question and/or of the work to be done. At the hearing, participants typically will present an unrehearsed narrative describing their reasons for being there. Otherwise, no formal presentation or exhibits are prepared for or submitted at the meeting.

Nonprofit Organizations and Gambling

Question Presented: Are there any laws allowing or regulating a non-profit organizations’ ability to organize, conduct, administer or otherwise facilitate gambling events or activities?

Owners of Pre-1978 Buildings, Take Notice

In 2008 the Vermont Legislature amended 18 V.S.A. Chapter 38 in an effort to better protect individuals from lead poisoning within the State. Owners of pre-1978 housing have a duty of reasonable care to prevent exposure to or creation of lead hazards.

FG&M’s Litigation Group Obtains Ruling for Client Before the Second Circuit Court of Appeals in NYC

Because of this ruling, Mr. Baechle can pursue his original assertion that the Town of Mendon failed to take efforts to notify him of the tax sale.

Church Property Tax Decision

Download the Church Property Tax Decision PDF.

Alden Decision

This case stems from a dispute over the 1973 William C. Alden Trust (the Trust) benefiting grantor’s second wife Nancy Alden, his two children by Nancy Alden, and his three children from his first marriage. Todd Alden and Julia Alden Dee, two of grantor’s children by his first marriage, allege that Nancy Alden, who was [...]