Thursday, September 28, 2006

How to Sell A House When the Co-Owner Refuses

Question: My brother and I bought a house together. I want to move out, but he refuses to sell or buy me out. Is there a simple and inexpensive way to do this?

Answer: Unless your brother is willing to negotiate, you have few alternatives besides litigation. As co-owners, you both have the right to possession of the entire house. Co-ownership can often make the co-owners reluctant roommates. Each of you also has a near-absolute right to force a sale (or split) of the property through a specialized kind of lawsuit called "partition."

Partition lawsuits are very difficult without the assistance of an attorney. If your brother decides to fight the lawsuit and take matter to trial, it can become expensive and take a long time. When faced with a partition lawsuit, the once-unwilling owner often becomes much more willing to negotiate an out-of-court solution.

Sometimes the solution is a buy-out; other times, the parties agree on a sale, in which case, if there is an on-going dispute over how much money each is entitled to (the net proceeds in a partition sale are divided the same as the ownership percentages AFTER adjustments for excess outlays made by one co-owner for mortgage payments, property taxes, insurance, necessary repairs, etc. and for rents received by the owner in possession from third-party tenants), the owners may wish to agree to have that handled by post-sale arbitration.

If all else fails, you can hire a lawyer to prepare and file the lawsuit, but you should instruct the lawyer to keep pressing for a negotiated settlement.

About the Author
Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Thursday, September 21, 2006

Skip Tracing the Address of a P.O. Box Holder

Question: I have a client who owes me money, but the only address I have for this person is a P.O. Box. How can I get a physical address to serve the lawsuit?

Answer: You actually have two options to get the lawsuit. If the matter is a small claims lawsuit, California law allows service by certified mail. The court clerk sends a copy of the claim to the defendant. The defendant must sign and return a receipt to the clerk. There is a fee for this type of service.

In cases where service by certified mail is not allowed (which is most cases) or the box holder will not sign for certified mail federal postal allows you to obtain the address information. Click here to download a copy of the required form from the website for the U.S. Postal Service. I recommend going to the post office where the box is located to peronally turn in the form. I also recommend bringing along a copy of subpoena, lawsuit or other legal process in case the postal clerks question you. Once you have the address information, you should be able to effect service on the defendant.

About the Author
Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Wednesday, September 20, 2006

IRS Issues Spring 2006 Statistics of Income Bulletin

WASHINGTON — The Internal Revenue Service today announced the release of the Spring 2006 issue of the Statistics of Income Bulletin. For the first time, the Bulletin takes a detailed look at individual noncash charitable contributions.

The Spring Bulletin also includes information about high-income individual income tax returns for Tax Year 2003, S corporation returns for Tax Year 2003, split-interest trusts for Filing Year 2004, controlled foreign corporations (CFCs) for Tax Year 2002, and the accumulation and distribution of Individual Retirement Arrangements (IRAs) for Tax Years 2001-2002.

Of the 130,423,626 individual income tax returns filed for Tax Year 2003, there were 2,536,439 returns reporting adjusted gross income of $200,000 or more and 2,573,133 with expanded income of $200,000 or more.

In addition, the Bulletin contains articles with the following information:
  • For Tax Year 2003, individuals reported noncash donations valued at $36.9 billion on Form 8283, Noncash Charitable Contribution. This is the form used by individual taxpayers when the amount of taxpayer deductions for all noncash donations on Schedule A, Itemized Deductions, exceeds $500. Of these noncash donations, corporate stock was the largest type, with 37.2 percent of the total value deducted. The average value of these stock donations was $79,279 per return. The largest number of donations reported on this form was for clothing, representing 48.0 percent of all donations. For donations where the organizational type was recorded, the largest amount was donated to foundations, which received 31.1 percent of donations.
  • A total of nearly 3.3 million S corporation returns were filed for Tax Year 2003, an increase of 5.9 percent from Tax Year 2002. S corporations continue to be the single most popular corporate entity choice representing 61.9 percent of all corporate entities. The number of shareholders for S corporations increased to nearly 5.8 million, up 2.9 percent from the previous year. Total net income (less deficit) reported by S corporations increased to $213.7 billion for Tax Year 2003 from $183.5 billion reported for Tax Year 2002. Nearly two-thirds, 62.7 percent of all S corporations, reported positive total net income. Total assets increased $169.9 billion to $2,186.6 billion for Tax Year 2003. Less than one quarter of 1.0 percent of all S corporations reported federal tax liability, for a total tax liability of $380.9 million.
  • A total of 123,205 split-interest trust information returns were filed in Filing Year 2004, an increase of 1.6 percent from Filing Year 2003. The largest group of trusts, charitable remainder unitrusts (CRUTs), increased by 1,958 returns from the previous filing year. The number of returns filed for pooled income funds decreased by 5.0 percent from 2003 to 2004. Total net income reported for charitable remainder trusts decreased by 0.4 percent from 2003 to 2004. Net long-term capital gains made up the largest percentage of total net income reported for Charitable Remainder Annuity Trusts (CRATs) and CRUTs. In Filing Year 2004, charitable remainder trust returns reported $64.0 billion in total accumulations and $6.9 billion in distributions.
  • For Tax Year 2002, the 7,500 largest foreign corporations controlled by large U.S. multinational corporations held $5.8 trillion in assets and reported receipts of $2.3 trillion. About 79.2 percent, or 5,938, of the 7,500 largest CFCs for Tax Year 2002 were concentrated in goods production (28.9 percent), services (26.1 percent) and the finance, insurance and real estate rental and leasing (24.2 percent) sectors. Approximately 52.5 percent, or 3,939, of the 7,500 largest CFCs were incorporated in Europe, which accounted for 61.9 percent of end-of-year assets, 55.7 percent of total receipts, and 57.6 percent of earnings and profits (less deficit) before income taxes. About 91.1 percent of these European CFCs were located in European Union countries.
  • For Tax Year 2002, individual income taxpayers contributed approximately $42.3 billion to IRAs. This represented an 18.3-percent increase over the contributions for 2001. In addition, $204.4 billion came into IRAs during 2002 as rollovers, usually from employer-sponsored plans (such as 401(k) plans). These rollovers represented an 8.8-percent increase over rollovers for 2001. In spite of the increase in funds flowing into IRAs for 2002, the yearend fair market value of those arrangements fell from just over $2.6 trillion for 2001 to just over $2.5 trillion for 2002. For 2002, over one-third ($14.8 billion) of the $42.3 billion in contributions was deductible. Also in 2002, more than 3.9 million taxpayers rolled over $204.4 billion to IRA plans, up from $187.8 billion in 2001. Along with that, $3.3 billion were converted from traditional IRAs into Roth IRAs.

The Bulletin includes historical data on income, deductions and tax reported on returns filed by individuals, corporations and unincorporated businesses, with selected data presented for estates. In addition, this issue presents the annual individual income tax return statistics by state for returns filed for Tax Year 2004. Statistics are also presented on tax collections, including excise taxes by type, and refunds for recent years.

The Statistics of Income Bulletin is available from the Superintendent of Documents, U.S. Government Printing Office, P.O. Box 371954, Pittsburgh, PA 15250-7954. The annual subscription rate is $53 ($74.20 foreign), single issues cost $39 ($48.75 foreign). For more information about these data, write the Director, Statistics of Income (SOI) Division, RAS:S, Internal Revenue Service, P.O. Box 2608, Washington, DC 20013-2608; call the SOI Statistical Information Services office at (202) 874-0410; or fax, (202) 874-0964.

Spring 2006 Statistics of Income Bulletin

Saturday, September 16, 2006

California Bans Use of Hand-Held Cell Phones

Drivers in California will soon be banned from using their cell phones while driving unless they use a headset or a speaker. The new legislation, signed into law by Governor Arnold Schwarzenegger on Friday, will not take effect until July 1, 2008 to allow to time to educate the public.

First time violators will be fined $20 and then $50 for each violation after that. The new law makes exceptions for emergency phone calls.

According to the National Highway Traffic Safety Administration ("NHTSA), nearly 80 percent of crashes and 65 percent of near-crashes involved some form of driver inattention within three seconds before the event. Primary causes of driver inattention are distracting activities, such as cell phone use, and drowsiness. A 2005 study released by the NHTSA showed that hand-held cell hone usage increase by 20% from 2004 to 2005.

The most common distraction for drivers is the use of cell phones. However, the number of crashes and near-crashes attributable to dialing is nearly identical to the number associated with talking or listening. Dialing is more dangerous but occurs less often than talking or listening.

Connecticut, New York, New Jersey and the District of Columbia each have enacted a jurisdiction-wide ban on driving while talking on a handheld cellular phone.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.

Monday, September 04, 2006

Stopping Spam

The Federal Trade Commission receives about 300,000 samples of deceptive spam – forwarded by computer users – each day, and stores it in a database. The FTC and its law enforcement partners use the database to generate cases against people who use spam to spread false or misleading information about their products or services. To better handle the high volume of spam forwarded to the database, the FTC recently opened a new email box – SPAM@UCE.GOV. The old email address ( will be phased out.

For More Information:

Friday, September 01, 2006

California Law: Should I Get a Restraining Order?

Question: I have a neighbor who has been harassing me for two years. Every time I call the police, they tell me there is nothing they can do without more proof. They advised me to get a restraining order. What should I do?

Answer: If a police officer or sheriff's deputy advises you to get a restraining order, you would do well to heed the advice. Neighbor-to-neighbor disputes are very difficult on law enforcement officers because the officers often have little evidence to go on. A harassment restraining order is a court order signed by a judge that gives law enforcement officers very clear instructions regarding the prohibited activities. A court order gives law enforcement officers and objective standard to uphold, which is much easier to enforce than subjective complaints.

You can obtain a civil harassment restraining if you are being harassed by someone who does not live with you such as a friend, neighbor or even a stranger. If someone lives with you or if you have a "domestic relationship" with the person who is harassing you, then you should obtain a domestic violence restraining order.

A civil harassment order can last up to three years. The court will charge a filing fee, but the court can waive this fee based on your ability to pay or if the abuser has caused physical harm to you.

You may qualify for a civil harassment order if the harasser has intentionally commits a series of acts (more than one) which are frightening, annoying or harassing, and which have caused you "substantial emotional distress". The harasser does not have to be related to you in any way, but you must be able to identify the person and find him or her to serve the papers.

A civil harassment order can order the harasser:
  • to stay away from the victim, the victim's home, school, work or children's school;
  • not to telephone or contact the victim;
  • not to frighten, intimidate, annoy or harass the victim;
  • not to threaten or make any physical contact with the victim;
  • not to keep the victim under surveillance or follow the victim; and
  • not to block the victim's movement in public places.

It can also protect the victim's family or anyone else in the home from the harassment and can order the person who lost the case (either the harasser or the victim) to pay the other person's court costs and attorney's fees.

If you have been the victim of harassment, please contact us if you need further assistance.

About the Author: Carl H. Starrett II has been a licensed attorney since 1993 and is a member in good standing with the California State Bar and the San Diego County Bar Association. Mr. Starrett practices in the areas of bankruptcy, business litigation, construction, corporate planning and debt collection.