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Category: Alaska Law Blawg
Alaska Law Blag is a production of Alaska Law Offices, Inc. Primarily authored and edited by Clayton Walker. The Blawg focuses on recent court decisions in Alaska. The scope includes the 9th Circuit, U.S. Supreme Court and other decisions affect businesses in Alaska. Along with cases, statutes and regulations affecting business litigation in Alaska.
The State of Alaska authorizes municipalities to offer tax relief for disasters affection real property owners.
The Matsu Borough and Anchorage have extended tax relief provisions for Disasters. The Matsu Borough’s relief extends to “fires and natural disasters.” In contrast Anchorage limits its relief to only “Fires.”
In both instances the relief extends only to homeowners of residential property. The damage must exceed one half of the property value before the event. You will need specific evidence to support your claim as provided in the ordinance.
The Matsu Borough requires you to file your claim within 60 days of the event. In contrast Anchorage allows homeowners 120 days to file a claim.
If you or someone you know has suffered substantial earthquake damage, they should apply for real property tax relief. However, time is running out quickly on claims arising from November’s earthquake.
We just spoke at the Alaska Bar Association — Bankruptcy Section on the issue of the Alaska usury statute. We had less than two hour notice to prepare for the presentation. The materials are available at the Bar Office.
The attendees seemed surprised to learn that the Cox v. Cooper decision actually doesn’t have very wide sweeping effect. There are seven state statutes that exempt whole classes of creditors and transactions from the decision. Two Federal acts also limit the decisions scope: The Banking Act of 1864 and the Depository Institutions and Deregulation and Monetary Control Act of 1980. These two acts exempt all federal banks and state banks that compete against federal banks from state regulation. Add to that the Marquette National Bank v. First of Omaha Service Corp. and Smiley v. Citibank decisions and all interest and fees for banks are exempt from state regulation.
The Cox v. Cooper decision only concerns local Alaska credit between private parties. The sky is not falling. Even though the creditors bar insists that it is. I wonder how much money the local and national banks will pay in fees for amicus briefs on a local issue with no bearing on their operations? Indeed, regulating hard money lenders could actually send more business to the banks.
Thank you for the invite, Michelle Boutin, Chair of the Alaska Bar Association — Bankruptcy Law Section.
A superior court abuses its discretion by making a decision that is arbitrary, capricious, manifestly unreasonable, or . . . stem[s] from an improper motive. The court uses the clearly erroneous standard when reviewing factual findings, including findings regarding a party’s income, imputation of income, and voluntary underemployment. Factual findings are clearly erroneous when, after reviewing the record as a whole, the court is left with a definite and firm conviction that a mistake has been made. The court reviews a superior court’s interpretation of the civil rulesand the Alaska Constitutionde novo.
Based upon this standard the Supreme court reversed a superior court ruling ordering the state to certify a ballot initiative on Set netting.
The federal tax code taxes debt forgiveness. The tax code also requires those forgiving debts to file information returns to the IRS, using form 1099-C. So, you lose your house in a foreclosure sale and the bank sends a 1099-C for the loss they take on the house. Many taxpayers and tax preparers simply include the debt forgiveness in the taxpayers return as income. However, there are many exceptions to taxation. Some of the most common are:
Gifts, bequests, devises and inheritances that forgive debts;
Qualified Student Loan forgiveness plans;
Cash basis taxpayers with debt that would qualify as a business deduction;
Price reductions after a purchase;
Required business debts;
Bankruptcy discharged debts;
Forgiveness when insolvent.
If you don’t file your return timely, the IRS may file a substitute for return for you. When the IRS prepares a return they won’t know if an exception applies. The IRS will tax you on the full amount reported. To address the matter you need to file a corrected return where the IRS substitute was filed.
If you don’t report the income on your return it will probably be audited. The IRS auditors have been adding huge tax bills to peoples return on this issue. You use form 982 to claim your exemption from tax for debt forgiveness. The IRS auditor may reject the claim of exemption. To get relief from the bill you may have to file an appeal. The time for filing an appeal to Tax Court is very short. The advantage of tax court is that you don’t have to pay the tax to sue for a refund. If your return was prepared without considering your exemptions we could assist in amending your returns. For help in addressing amended returns, tax audits and appeals, give us a call.
Alaska Overtime law requires covered employers to pay overtime to covered employees. One exemption to the overtime law is the Professional Employee Exemption. The old Alaska exemption was not the same as the Federal Exemption and was particularly vague. The Alaska Supreme Court provided guidance on interpreting the old statute in Dayhoff v. Temsco Helicopters, Inc., 848 P.2d 1367, 1371 (Alaska 1993). In Dayhoff the court provided a four-part test to define whether an employee was an exempt professional. Under Dayoff, an employee was an exempt professional if:
the employee’s primary duty is to perform work requiring knowledge of advanced type,
the work requires consistent exercise of discretion,
the work [is] predominantly intellectual and varied, and
the work [is] compensated on a fee basis.”
Under this test commercial pilots were exempt employees. This position was previously affirmed in Era Aviation, Inc. v. Lindfors,17 P.3d 40 (Alaska 2000). It was also the opinion other states had reached. Paul v. Petroleum Equip. Tools Co., 708 F.2d 168 (5th Cir. 1983); Kitty Hawk Air Cargo, Inc. v. Chao, 304 F. Supp. 2d 897 (N.D. Tex. 2004). But these cases preceded the amendment to 29 C.F.R. § 541.301 in 2004.
The Alaska legislature amended the Alaska Overtime law (Alaska Wage and Hour Act) in 2005. The legislature adopt the federal definition of this exemption. However, the federal code of federal regulation implementing the federal definition was itself amended in 2004. The new federal regulation restricted the exemption to employees in “professions where specialized academic training is a standard prerequisite.” 29 C.F.R. § 541.301(d) (2014).
Since the 2004 amendment of 29 C.F.R. § 541.301(d), every federal court considering whether pilots fall within the professional exemption has concluded that they do not, because commercial piloting does not require specialized academic training as a standard prerequisite. In Pignataro v. Port Authority, the Third Circuit Court of Appeals upheld a trial court’s determination that helicopter pilots did not qualify for the professional exemption under the Fair Labor Standards Act. The appellate court acknowledged the significant credentials required to become a Port Authority helicopter pilot: 2,000 hours of flying time, a commercial helicopter pilot certificate, a second class medical certificate, knowledge of the FAA’s rules and regulations, and a high school diploma or GED. But critically, none of those credentials involved the attainment of an advanced academic degree — the “pilots’ knowledge and skills were acquired through experience and supervised training as opposed to intellectual, academic instruction.” For this reason, the court concluded that the pilots were “not ‘learned professionals’ and . . . not exempt from the provisions of the [Fair Labor Standards Act].
Alaska Pilots are not exempt employees from the Overtime laws. Accordingly, they are entitled to time and a half for any hours over 8 in a day or 40 in a week. How many other professions don’t require specialized academic training as a standard perquisite?