US Immigration Lawyer on Naturalization & Tax Return

www.4immigration.comTop US & New York Immigration Lawyer/Attorney Brad Bernstein gives free advice to callers at Immigration Link Show on Linkup Radio 93.5 FM. In this episode, Brad Bernstein answers the following question: Can a permanent resident (green card holder) file for naturalization while having failed to file his/her tax returns? Watch this video to the end to hear the answer of the immigration expert. Immigration Link Radio Show is aired Monday through Friday, 12:00pm-12:30pm EST, on 93.5 FM in New York City and parts of New Jersey. You too can ask a free immigration question from Spar & Bernstein's attorneys by calling 1-718-324-5465 during the hours of the show. To schedule a consultation with The Law Offices of Spar & Bernstein, please call 1-800-LAW-LINK or 1-800-529-5465 (within USA) or 1-212-227-3636 (outside of USA). For more information, please visit Spar & Bernstein's website at www.4immigration.com Also please visit our cool blog, Spar & Bernstein's Law Link sblawlink.com DISCLAIMER This media presentation is an attorney advertisement brought to you by The Law Offices of Spar and Bernstein and Linkup Media. Any information provided in this presentation should not be considered legal advice and does not take the place of consulting with an attorney. The Law Offices of Spar & Bernstein expressly denies that an attorney-client relationship is formed between The Law Offices of Spar & Bernstein and any and/or particular listeners/viewers of this show ...



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Evasion or Avoidance: A Crucial Difference

The old adage, "an ounce of prevention is worth a pound of cure" is particularly true when you are dealing with the tax man.

Although this article assumes that the reader/taxpayer is a Canadian resident, is subject to the Income Tax Act ("ITA") and will be dealing with the Canada Revenue Agency ("CRA") similar principles may cautiously be applied to other common law jurisdiction like the U.S.A. and England.

Taxing statutes are some of the most complex written documents known to mankind; so expert accounting and legal advice is needed to avoid their many pitfalls.

This article is designed to alert the reader to the concerns that should to be addressed before structuring, or restructuring, your business affairs or engaging in a tax reduction strategy you heard was 'great.'

Evasion Versus Avoidance

Evasion is an offence under §239(1)(d) of the ITA and unlike the enforcement provisions creating civil penalties (§§162 - 163 ITA), or regulatory offences (§238), evasion is a true criminal offence: R. v. Knox Contracting Ltd., [1990] 2 S.C.R. 338 at 346-348 and R. v. Klundert (2004), 242 D.L.R. (4th) 644 per Doherty, J.A. at §32.

Avoidance is structuring your affairs to minimize or defer taxes without violating the provisions of the ITA, however, is not a crime (Hickman Motors Ltd. v. Canada, [1997] 2 S.C.R. 336 McLachlin J. at §8).

Structuring Your Affairs

It is a fundamental principle of tax law that "[e]very man is entitled if he can to order his affairs so as that the tax attaching under the appropriate Acts is less than it otherwise would be": Inland Revenue Commissioners v. Westminster (Duke of), [1936] A.C. 1 (H.L.), at p. 19, per Lord Tomlin.

As Wilson J. put it in Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536 (S.C.C.), at p. 540, "[a] transaction may be effectual and not in any sense a sham (as in this case) but may have no business purpose other than the tax purpose".

Tax Policy

Some so-called loopholes in the ITA are actually provisions designed to achieve a particular policy objective for Parliament.

One kind of behaviour may be thought to be beneficial and it is given a preferential tax treatment (e.g., tax shelters) while another may be considered detrimental to public policy objectives or revenue generation and it is subject to a higher level of taxation (e.g., §219 ITA). It is the complexity of these competing interests which help make income tax as complex as it is.

It is imperative that any taxpayer, who wants to structure their affairs to achieve a particular benefit, should consult their tax accountant and/or their tax lawyer to get expert advice before they do anything.

Your situation is unique and so too is the solution to your circumstances - there is no substitute for expert advice tailored for you. For large transactions your tax advisers may even recommend obtaining an advance tax ruling from CRA (see Information Circular IC 70-6R).

ITA: A Code

The Income Tax Act is designed to be a complete code; that is, if you fall inside its provisions you will be subject to its terms as dictated by Parliament, but if you fall outside its provisions you are free of its strictures.

The ITA taxes on residency (§2(1) ITA) and source of income (e.g., §§5 and §9(1) ITA) so usually if you are a non-resident (not carrying on business in Canada; e.g., §§2(3)(b) and §253) you are subject to taxation here. Similarly, if your receipt of funds is not attributable to a prescribed source (e.g., lottery winnings or gifts) then you are not tax on those receipts.

Here is a caveat for our American readers: the IRS taxes on residency and on citizenship; they also tax 'windfalls' like your winnings in Las Vegas; and 'gifts' may be subject to both federal and state taxes.

The theory is generally the same, if you're in the Act you pay, and if you're out of the Act, you don't. It is this clear demarcation, which permits, tax planning (cf., Hickman Motors Ltd., above).

The theory, however, is subject to some complications. Under Part XVI of the ITA, after September 13, 1988 §245(2) provides a general anti-avoidance rule ("GAAR") which was designed to prevent abusive tax avoidance. It is an anti-avoidance provision of last resort: Canada v. Imperial Oil Ltd., [2004] 2 C.T.C. 190 per Coram at §30.

"Tax minimization is legal and acceptable; abusive tax avoidance is not": Vern Krishna, The Fundamentals of Canadian Income Tax, 7th ed. (Toronto: Carswell, 2002) at 868.

Put this into vernacular CRA is saying that if you're clever enough to come up with a plan Parliament didn't think of (that is, one that doesn't offend a specific anti-avoidance provision), it costs the government too much money in tax revenues, and CRA thinks you did only to avoid paying taxes, they will try to claw it back. Whether the courts permits this, will depend on the facts.

If the scheme considered in the Duke of Westminister was used in Canada today it "would probably be caught" by GAAR: Hogg, Magee and Li, Principles of Canadian Income Tax Law, 4th ed. (Toronto: Carswell, 2002) at 584.
GAAR, however, is not a criminal provision in the ITA.

The Offence Of Evasion: §239(1)(d) ITA

As with all such questions it is necessary to begin with the statutory language: "every person who has ... (d) wilfully, in any manner, evaded or attempted to evade compliance with this Act or payment of taxes imposed by this Act ... is guilty of an offence ..." it is apparent that there are two constituent elements for committing this offence:

* proof of an act or course of conduct (the "actus reus") which has the effect of evading or attempting to evade payment of taxes actually owed under the Act (Klundert, above, §34); and

* a culpable state of the taxpayer's mind (the "mens rea").
The conduct component can usually be established where tax is owed under the ITA and the taxpayer has failed to report, calculate and pay the applicable tax owing (Klundert, §42).

The fault or mental component is found in the word "wilfully": R. v. Docherty (1989), 51 C.C.C. (3rd) 1 (S.C.C.) What will be required is something more than "negligently" or even "recklessly".

Culpability will then follow only where the accused engages in conduct intended to avoid the payment of tax owing under the Act; that is, the accused must know that the tax is owing under the ITA and they must intend to avoid payment of the tax (Klundert, §46).

Mistakes of fact can negate the fault requirement for the offence (e.g., arithmetic errors) but purely legal errors usually won't (e.g., §19 Criminal Code, "CC"). Discuss with your lawyer whether any mistakes of fact, or law, you may have made provide you with a defence to the charge(s). Each case will resolve itself based on its own set of facts.

Tax Planning

There is a "need to distinguish between legitimate tax planning and the crime of tax evasion" (Klundert, §36).

It is the culpable state of mind (i.e., mens rea) that distinguishes the legitimate tax planner from the dishonest tax evader. Both may engage in the same course of conduct that can aptly be described as a deliberate attempt to avoid payment of tax. The difference lies in their respective states of mind. Unlike the tax evader, the tax planner does not intend to avoid the payment of a tax that he or she knows is owed under the Act, but rather he or she intends to avoid owing tax under the Act in the first place (Klundert, §41).

Section 239(1)(d) is part of an Act which is necessarily and notoriously complex. It is subject to ongoing revision. No lay person is expected to know all the complexities of the tax laws. It is accepted that people will act on the advice of professionals and that the advice will often turn on the meanings to be given to provisions in the Act that are open to various interpretations. Furthermore, it is accepted that one may legitimately structure one's affairs so as to minimize tax liability (Klundert, §55).
In other words, if you retain and follow professional advice then it is unlikely you will be charged with tax evasion; or if charged, that you will be convicted.

So essentially we're back to where we began, "an ounce of prevention is worth a pound of cure."

Staff Writer
For Tax Evasion Resources
http://www.taxevasionresources.com

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Jogging Dangers Create Legal Nightmares

Every jogger has the nightmare. You're out for an evening jog when someone's dog jumps a fence or slips its leash. The dog catches your leg and without warning, you're on the ground, in pain and unable to escape.

Even though you may take precautions like wearing a reflective vest or bright clothes, vicious dogs are just one of the many threats joggers face. You can slip and fall on unsalted, icy sidewalks, or be hit by a careless driver or reckless bicyclist. Hazards can come from careless homeowners, dangerous sidewalks or roadways, and anyone you have to share the road with. No amount of preparation or awareness on your part can protect you from the negligence of others.

What's worse is that the dog bite or slip-and-fall nightmare doesn't end once you leave the hospital. You may have missed work, lost wages, or even be unable to return to your job. Suddenly, this healthy past-time has cost you your livelihood.

And what if the injury has left you permanently unable to work, with lifelong scars or unpaid medical bills? Without a personal injury attorney experienced in the laws of your state, you may end up with a bigger nightmare, facing insurance attorneys out to settle your claim for less than you deserve or a dog-owner that refuses responsibility for their pet.

While a good personal injury attorney can't get you back on the road any quicker, your personal injury attorney can help you recover compensation for disability, pain and suffering, or disfigurement.

When you first set out for that jog, a personal injury lawsuit is not what you anticipated, but once you have been injured, you need an attorney on your side that is willing to take your matter through the settlement negotiations and into court if necessary.

If you have just been injured, do you have the time or luxury of trying to navigate a complex legal system? Do you know who needs to be served? Who is really responsible for your bills? Do you know what a fair settlement figure is? Do you know what evidence or information you will need to provide to the Court? Do you know how to collect on a judgment, if you get one?

An experienced accident attorney will help throughout the process. From dealing with insurance companies, negotiating settlements, and filing your claim right through to your day in court. After, your personal injury lawyer will help you collect on and enforce your judgment. A good accident attorney is your best resource and can often be the only thing standing between you and an unfair settlement.

Every day, you run the risk of being injured by a car, motorcycle or being hurt by negligently maintained property. You can't undo the injury, but you can ensure a fair and just result by consulting a personal injury attorney that will help make the legal system work for you when you need it most.

Nick Messe is president of Lead Frog LLC. If you are involved in a Waukesha auto injury contact the experienced Waukesha personal injury lawyers at Gruber law Offices. That is the best way to get the maximum compensation you are entitled to.

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Oklahoma DUI Lawyer John Hunsucker Channel 4 DUI News Story

Oklahoma DUI attorney John Hunsucker is interviewed December 21 2009 by Oklahoma City News Channel 4 about Oklahoma DUI laws. John can be reached at 405-231-5600 or www.okdui.com. This Oklahoma DUI Lawyer has written several books on Oklahoma DUI Defense.



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Tinamaan ng LINTIK na ITIK [part 5]

Atty Ernesto Francisco, Jr, lawyer of Senator Ma. Ana Consuelo Jamby Madrigal, presented a summary of evidence during the preliminary inquiry on the ethics complaint filed by Sen. Madrigal against Corruption King Manny Villar. Sen. Madrigal filed an ethics complaint for double-entry in the appropriation of budgets for road projects in areas near real estate properties associated with Villar. On Oct. 8 last year, Madrigal sought to elevate the complaint against Villar to the Committee on Ethics and Privileges, before which she accused the former Senate president of unconstitutional and unethical conduct highly unbecoming of a member of the Senate. Villar requested the realignment of the C-5 road project linking the Coastal Road and the South Luzon Expressway. A substantial portion of the longer, realigned road—from Sucat to Quirino Ave.—is owned by the companies of the Villar family. Atty. Francisco told senators during the hearing that the original road, which is 6.3 kilometers long, costs P2.678 billion in total. The realigned 9.7 km road, excluding the portion from Sucat road to Coastal road, has an estimated cost of P6.9 billion. Francisco said that based on the Department of Public Works and Highways (DPWH) estimates, the Las Piñas-Parañaque link road costs P700 million. An additional P400 million was the estimated cost of the link from Las Piñas to the Coastal road, the lawyer added. Out of the 39 properties that were affected by the road link project, 16 properties ...



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Indianapolis Divorce & Child Custody Lawyer Vanessa López

www.vanessalopezlaw.com 317-634-9484 Espanol: 317-715-1847. Lopez Law Office law primarily deals with family law cases like divorce and child custody. Attorney Vanessa López represents clients in the Indianapolis, IN metropolitan area.



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Win Your DUI Case With Efficient DUI Lawyer

Getting caught up in a DUI case can be an excruciating experience with the loss of not only your personal freedom but your driving privilege, future employment opportunities, auto insurance payments, criminal record and still much more things that will only make your already bad situation much worse. Because the DUI case is treated equal as just as any other major criminal offense. So it makes no difference between a major and minor offenses when it comes to DUI. Nevertheless, you have more ways to defend yourself against DUI charges and get back to normal life. Hiring a lawyer is the best immediate possible way to get a remedy for your case. This article informs you about : why it is essential to hire a DUI lawyer, how to choose a right DUI lawyer, and how can a DUI lawyer help you win the case.

WHY IT IS ESSENTIAL TO HIRE A DUI LAWYER?

Firstly, it is crucial that you consider this matter seriously. DUI defense is a specialized area of criminal defense and is a quite complex. Having an experienced DUI defense lawyers on your side could make a huge difference in the case outcome. So, it is very essential that you hire an experienced DUI defense lawyer after you have been pulled over for a DUI offense.

HOW DO I CHOOSE A RIGHT DUI LAWYER?

This issue is a major concern for any victims who is in search of a lawyer. Choose a lawyer who :

• primarily practice in DUI defense field.


• have taken many DUI cases to trial and won.


• have complete knowledge of any equipment used for testing.


• spends enough time with clients for consultation.


• thoroughly investigates all the facts from the beginning to end of the case.

HOW CAN A DUI LAWYER HELP ME WIN THE CASE?

An experienced DUI defense lawyers can help you win the case. They are always in lookout on how to help win their client's case. The following are some of the things which DUI lawyers will be looking when reviewing your case.

• Did the police officer have a valid reason to stop your vehicle?


• Did he properly carry out field sobriety test?


• Did the preliminary alcohol screening (PAS) test was carried out properly by the officer?


• Whether the police records (FST and chemical test) are unbiased?


• Was your blood alcohol level over the legal limit at the time of your driving?

Thus, your DUI lawyer will be able to bring out many defensive points as possible to help you win the case and you need not worry too much while having the efficient DUI defense lawyer by your side.

The DUI Process manual provides solution related to expunging your DUI record, getting your driver's license back, saving a lot of money on your auto insurance and even saving money throughout your DUI process no matter what state (US) you are located in.

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