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The IRS may assess penalties for a person’s failure to file a required FBAR. If the person’s failure to file was willful, the IRS can impose a penalty equal to 50% of the account balance or $100,000, whichever is greater. If an individual dies, can the IRS assess and collect an FBAR penalty for failing to disclose a foreign account?

Absent some specific direction by Congress, whether an action created by federal statutory law survives the death of the plaintiff is a matter of federal common law. Generally . . .

31 Oct 2020

A Co-Maker of a Promissory Note Is Not Always Liable to the Co-Signer [Florida]

In an interesting case, two doctors co-signed a promissory note with others of an LLC where they were members, and that was their employer, payable to a bank. They later left the practice, and the LLC sought to collect from them their share of the liability to the bank. An interesting aspect of suretyship law avoided liability for the doctors.

The doctors were “accommodation parties” under Florida’s Uniform Commercial Code. Florida Statutes 673.4191(1) . . .

27 Oct 2020

Fantasy Sports Is Not a Game of Skill

Fantasy sports generally involves the selection of team members, and then earning points when the selected team players compete in real world sports events – the players with the highest points win. Such games often require an entry fee, and pay cash or other prizes to the winners.

Code Section 165(d) denies a deduction for losses from “wagering transactions” except to the extent they can offset wagering winnings. The IRS Chief’s Counsel recently opined on whether the entry fee to play a fantasy sports event is a wagering transaction subject to this loss limitation.

The opinion concluded. . .

27 Sep 2020

Florida Irrevocable Trust Amendment Mechanisms

For many years, we have published a diagram that lists and provides information on the mechanisms under Florida law available to modify irrevocable trusts, both judicially and non-judicially. There have been 1000+ downloads of the diagram, attesting to the interest in this topic and how often people want to amend an irrevocable trust.

My partner, Jenna Rubin, recently summarized a Florida case (Demircan v. Mikhaylov) on the ability of a settlor and beneficiaries to modify an irrevocable trust.You can read the summary on her Rubin on Probate Litigation blog here.

The summary diagram has now been updated to include the new case.

Previously, the diagram was posted as a PDF or a text file, and not in its native mindmap formula, because of its size. Because of its size, it was hard to read. The mindmap program (MindManager) now allows a cloud posting which allows easier and full access. To view the updated diagram, click on the link: http://RubinOnTax.tinyc.co/IrrevocTrustMechanisms.

25 Sep 2020

Demircan v. Mikhaylov

By Jenna G. Rubin

This Third DCA case addresses several elements of Florida trust law, with a focus on the ability to modify an irrevocable trust under the Florida common law. It involved an irrevocable trust established by the settlor for the benefit of his children, which initially appointed an independent trustee and a third party with trustee removal powers. When disagreements arose between the settlor and the beneficiaries against the trustee and the third party, litigation ensued.

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