Monthly Archives: May 2011

Andra Rubene made a presentation at the Conference “Current commercial law issues in the European Union”

On 18 May 2011 Andra Rubene participated in the conference of law scientists and practitioners on the commercial law in the European Union organised by the Ministry of Justice in cooperation with the Riga Graduate School of Law.

Andra Rubene provided an overview on the types of moving the registered address within the scope of the EU law.

The attorney at law analysed the respective EU case law – cases Daily Mail and General Trust, Centros, Überseering, Inspire Art, SEVIC Systems and Cartesio. Andra Rubene stated in the aforementioned cases the ECJ had concluded that due to the fact that the EU law does not provided for a unified definition on the joining factor prescribing the law applicable to companies, such factor is determined by the laws applicable in the member states. In order to determine unified principles for cross-border movement of the registered address within the EU, a directive or a convention of the member states would be necessary for harmonisation of the laws of the member states. However, since such laws and regulations have not yet been developed, there are differences in the legal regulations among the member states. Due to such differences and due to lack of the necessary laws and regulations harmonising the differences the articles of the Treaty on the European Community do not contain prohibition of the laws of the member states denying the rights of the companies moving their head office to another country concurrently maintaining its registration in accordance with the laws of the country of registration.

The attorney at law concurrently pointed at the interruption in the work at the EU legislation initiative with respect to the cross-border movement of the registered address of a company.

Andra Rubene has concluded that until development of a special regulatory enactment on the cross-border movement of the registered address of a company:

  • The companies subject to the laws of the member states may in principle move their head office, while the movement of the registered address is not possible → Article 49 of the Treaty on the Functioning of the European Union (Article 43 of the EC Treaty) and Article 54 of the Treaty on the Functioning of the European Union (Article 48of the EC Treaty) do not fully resolve that situation;
  • Companies – EEG (European Economic Interest Grouping), SE (Societas Europaea) and SCE (Societas Cooperativa Europaea), subject to the EU regulations may move their registered address in accordance with the respective regulations;
  • Companies – SPE (Societas Privata Europaea), which are intended to be subjected to the EU regulation, will be able to move their registered address in accordance with the respective regulation;
  • (implicitly) Companies of other types may be moved by liquidating the current company and establishing a new one;
  • (implicitly) SIA, AS and others may be moved in principle by establishing a new company in the host country, which will be merged with the existing company by way of cross-border merger;
  • (implicitly) AS, which has had a daughter company in another member state for a period of at least 2 years and has a share capital adequate for SE, as well as which has complied also with other requirements, may be moved by transforming the company into SE, which will thereafter move the registered address abroad.


Please see the presentation here (available in Latvian language).

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CMS Issues Medicare EHR Incentive Checks

CMS begins writing checks for Medicare EHR Incentive payments.

For more information please visit www.omwhealthlaw.com or click on the headline above.

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Ask Friday! Marketing Budgeting Edition

This week’s Ask Friday! question comes to us from Jennifer Herendeen, the Marketing Manager for Wyrick Robbins Yates & Ponton.  She asks “What are typical items included in a marketing/business development budget? I’m trying to create a first ever budget at my firm.”

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ILN Today Post

Fladgate advises Esporta on £77m sale to Virgin Active Health

Fladgate LLP has advised on the property aspects of the disposal of the Esporta Health Clubs’ (Esporta) business to Virgin Active Health (Virgin Active) for £77.6m.  The sale is subject to the approval of the Office of Fair Trading.  Following completion of the deal Esporta may seek to sell the freehold racket club sites, which Virgin Active is leasing for £13.1m a year, and which are expected to be worth about £200m.

Fladgate previously advised on Esporta’s disposals to Virgin Active in 2004 and 2005.

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ILN IP Luncheon – It’s All About Relationships

Today, we held our annual luncheon at the INTA conference for ILN members. I always enjoy this lunch because I get to meet and reconnect with attorneys who are not necessarily attendees of our Regional and Annual Meetings.

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Allan Goldberg explains Cooperative Apartment Shares case ruling

Allan Goldberg

Chicago partner Allan Goldberg authored  ” Cooperative Apartments Shares May be Held as Tenants by the Entirety”.  In his article Mr. Goldberg  reviews the outcome of the case Maher v. Hams Trust & Savings Bank.

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TARK GRUNTE SUTKIENE Tallinn office advised Webmedia on acquisition of Finnish software company CCC

Estonia’s largest software developer Webmedia purchased a 97 per cent stake in the Finnish software company CCC Corporation. CCC is a medium-sized Finnish company founded in 1985. The last year’s turnover of CCC amounted to 22 million euros and the company employs nearly 200 professionals. The consolidated company is the biggest IT firm in the Baltics and among the 25 largest in the Scandinavian countries. Webmedia will continue its operations in Finland under the name CCC, and the acquisition also means an expansion in the firm’s activities in Russia. Webmedia has been active on the Russian market since last spring and, by the end of this year, its turnover in Russia is expected to reach 2 to 4 million euros.

The transaction was partly financed by equity and partly by a bank loan. TARK GRUNTE SUTKIENE partner Risto Vahimets and senior associate Andres Siigur assisted Webmedia with both conducting the purchase transaction and arranging a loan for the transaction.

Please read Webmedia’s press release HERE.

 

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Social media and the workplace: don’t get caught in the web!

Two recent employment tribunal decisions highlight the importance and usefulness of a business having a properly drafted policy on the use of social media by their employees.
In Preece v JD Wetherspoons plc ET2104806/10, the tribunal found that a pub manager was fairly dismissed for gross misconduct after she made inappropriate comments on Facebook about two of her customers, who had verbally abused and threatened her. The manager was found to be in breach of the employer’s e-mail and internet policy, which specifically referred to employees’ use of social media (including Facebook) while at work.
In Gosden v Lifeline Project Ltd ET/2802731/2009, the tribunal held that an employee was dismissed fairly for sending an offensive e-mail from his home computer to his colleague’s home computer. No privacy attached to the e-mail as it was a chain e-mail asking recipients to pass it on. The employer was entitled to treat his actions as gross misconduct justifying the dismissal.
With the ever increasing use and awareness of social media it is important for businesses to adopt a social media policy clearly setting out the standards expected of employees when using such sites, whether for personal or business reasons. Our employment team have now prepared a style social media policy which will assist employers in monitoring and responding to the use employees make of social media which will help to ensure that there are no implications for, or risks created to, an organisation’s business interests.
If you would like any further information on this matter, or are interested in obtaining our social media policy, please contact Stephen Connolly on 0141 227 6090.
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Multistate Tax Alert: Attention Ohioans with homes in Florida or elsewhere:Deadline to file your Non-Residency Affidavit in Ohio is May 31, 2011.

Many former Ohio residents are aware of Ohio’s days in/days out “Bright Line” residency test, and therefore, have changed their domiciles to Florida, Texas, or other states for tax and other reasons. However, to qualify for the days in/days out treatment, an affidavit must be executed and delivered to the Ohio Department of Taxation (ODT) by May 31, 2011. Otherwise, the days in/days out test will not be available.

Ohio’s “Bright Line” residency test provides that an individual will be presumed to be not domiciled in Ohio for income tax purposes for the 2010 tax year for Ohio, and hence, not an Ohio resident for that year, if all the following are satisfied:

  1. The individual had no more than 182 contact periods in Ohio during the taxable year (a contact period, in general, is created whenever an individual spends any part of two consecutive days in Ohio while away from his or her non-Ohio abode);
  2. The individual had at least one abode outside Ohio during the entire taxable year;
  3. On or before May 31, 2011 the individual submits a statement, under penalties of perjury, to the tax commissioner verifying that he or she was not domiciled in Ohio for the entire taxable year, verifying that he or she had at least one abode outside Ohio, and specifying the location of each non-Ohio abode; and
  4. The required statement is not false.

If the four elements above are met, then the individual will not be required to pay Ohio income tax with respect to any income that is not earned or received in Ohio. For many, this distinction can result in tremendous Ohio tax savings.

Many individuals, however, forget that the test is a “year-by-year” test and that the affidavit (item #3 from above) must be filed each year. The ODT has promulgated Form IT DA, which is commonly referred to as the “Affidavit of Non-Ohio Residency/Domicile.” The affidavit is very important for individuals that are claiming that they are non-residents of Ohio for Ohio personal income tax purposes under the “Bright Line” residency test. If the affidavit is filed and the four elements are met, the individual shall be considered a “non-resident” of Ohio for personal income tax purposes, thereby eliminating Ohio income tax on a portion of the income of the non-resident.

Example:

Edward Quinn has a home in Ohio and a home in Florida. He has owned the Florida home since at least December 31, 2009. During the calendar year of 2010, Mr. Quinn spent five consecutive months at his home in Florida, and spent five consecutive months at his home in Ohio. Mr. Quinn spent two months traveling in Europe. Mr. Quinn considers Florida to be his domicile or state of legal residence. During 2010, Mr. Quinn had income from a partnership that had operations in Ohio and in other states. Mr. Quinn also had interest income, dividend income, and capital gain income, none of which were sitused to Ohio for personal income tax purposes.

Although Mr. Quinn has no more than 182 contact periods in Ohio, he may still be taxed as an Ohio resident unless he also files Form IT DA by May 31, 2011.

If Mr. Quinn files the Form IT DA and meets the other tests, the only income that Ohio can tax for the 2010 tax year is the Ohio-sitused income from the partnership. Mr. Quinn would not have to pay Ohio income tax with respect to the interest income, dividend income, and capital gain income that was not sitused to Ohio.

On the other hand, even though Mr. Quinn had no more than 182 contact periods in Ohio during 2010, if he does not file the Form IT DA, then he would not be protected from ODT attempting to impose Ohio income tax on the interest, dividend, and capital gain income under the “Bright Line” residency test.

The affidavit Form IT DA should be filed separate from the taxpayer’s income tax return and mailed to the address on the Form IT DA’s instructions. Taxpayers wishing to take advantage of the “Bright Line” residency test should keep careful records to substantiate their whereabouts and for purposes of being able to sign the Form IT DA, which is signed under penalties of perjury.

Other states

Residency for personal income tax is an issue in every state that imposes a personal income tax. Many states have similar days in/days out tests for ascertaining whether the individual is considered a resident of that state, but each state maintains its own version of the relevant test for determining residency. It is important to carefully review the residency rules that apply in the state in which you may be required to file and pay income tax.

Our multistate tax attorneys and estate planning attorneys have experience in state tax residency disputes and planning and we would be happy to discuss this or any other state and local tax matter with you. For more information, please contact:

Stephen K. Hall
614.458.0026
shall@mcdonaldhopkins.com

Thomas M. Zaino
614.458.0030
tzaino@mcdonaldhopkins.com

Jeffrey P. Consolo
216.348.5805
jconsolo@mcdonaldhopkins.com

Multistate Tax Practice

Businesses must be vigilant and careful in managing their state and local tax liabilities and exposures. This can be a daunting task. We provide a broad range of state and local tax services to our clients, including tax planning, tax controversy, real estate tax abatement and exemption, and tax policy advocacy. With attorneys who have worked both inside and outside government agencies, our multistate tax team leverages its knowledge and experience for the benefit of our clients.

Estate Planning

Our estate planning and probate services for individuals and families are focused on helping clients meet their estate planning objectives through income, estate and gift tax minimization. Our services include preparation of wills, living trusts, financial powers of attorney, charitable trusts, and related documents. We take a comprehensive approach to the planning process to ensure that the goals of the family are carried out and that the estate is appropriately managed.

 

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ILN Today Post

corporate risk and insurance update

APRA keeps insurers on their toes:

Refinements to the prudential framework for general insurance discussion paper

By Greg Moss of Gadens Lawyers, Sydney

The Australian Prudential Regulation Authority (APRA) has released a discussion paper (the paper) entitled Refinements to the prudential framework for general insurance groups identifying a ‘small number of areas’ where the prudential and reporting framework for general insurance groups domiciled in Australia (Level 2 groups) require refinement.

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