One of the panels at the recent Fifth Circuit Bench-Bar Conference featured Judge Craig Gargotta and Stephen Rosenblatt discussing fee issues raised by Barron & Newburger, P.C. Texas Skyline, Ltd. and Baker Botts v. ASARCO. While I was personally interested in hearing the discussion about my own case, the really interesting part involved what creative lawyers are doing to try to work around the ASARCO decision. 5 million in attorney time defending its fee application. Both the Fifth Circuit and the Supreme Court ruled that these services were not compensable because the American Rule provides that parties must bear their own fees absent a statute or contract and 11 U.S.C. Sec. 330 did not allow fees for defending a fee application. Thus, Baker Botts had to eat the cost of establishing its entitlement to fees in one of the most extraordinarily successful cases of all time. This has left some creative lawyers wondering how they can protect themselves from the expense of a costly fee battle. However, two recent decisions from the Bankruptcy Court for the District of Delaware have thrown cold water on these attempts.
However, the high court did not address the question of taxability of the payments, but accepted the additional contention of the tax authorities and ruled in their favour. The Karnataka High Court’s ruling necessitated the appellants to prefer an appeal to the Supreme Court. 1. Whether the Karnataka High Court was right in holding that the obligation to withhold tax arose the moment there was a remittance? 2. Whether merely on account of such remittance to a non-resident, could it be said that such a remittance was income chargeable to tax under the Act? 1. The Supreme Court held that the expression “sums chargeable under the provisions of the Act” in Section 195(1) of the Income Tax Act 1961 (Act) is the crucial determining factor. 2. The phrase “sums chargeable” under the provisions of the Act refers to the amounts that have an element of income in them as required under the provisions of the Act and the treaty provisions.
3. The Supreme Court rejected the contention of the tax authorities that the assessees have to make an application in every case of remittance even when the income has no territorial nexus with India or is not chargeable in India. 4. The Supreme Court also observed that accepting the contention of the tax authorities would lead to the obliteration of the expression “sum chargeable under the provisions of the Act” as given under Section 195(1) of the Act. 5. The Supreme Court held that any person paying any sum to a non-resident is not liable to deduct tax if such sum is not chargeable to tax under the Act. Majmudar & Co views that the Supreme Court judgment will put an end to the controversy created by the Karnataka High Court on the need to withhold taxes even when the underlying payment was not chargeable to tax in India. This decision will also result in avoiding unnecessary litigation on the applicability of withholding tax obligations in India. The Samsung case touches upon the topic of extra-territorial operation of the Income Tax Act (highlighted in the Vodafone judgment of the Bombay High Court). It relates to the obligation of the payer to deduct and deposit TDS in relation to remittances made to foreign parties who do not have any permanent establishment in India and, therefore, are not taxable under the Income Tax Act. Why this judgment is important is because a large number of remittances are made to foreign parties from India, on which the tax department has imposed interest and penalty for the payer not having deducted TDS. In this case, the companies argued that no part of the payees’ incomes arose in India nor did they have a permanent establishment in the country. Furthermore, the income was exempt under double taxation avoidance agreements.
Louisiana, a case before the US Supreme Court in which a Louisiana death row inmate argued he received ineffective assistance of counsel because his lawyer conceded his guilt over the defendant’s objection. In my original post, I argued, among other things, that the case could result in expanding the reach of an older case which I don’t like (Florida v. Nixon). McCoy had the potential to make things worse because the Court was asked to find no ineffective assistance of counsel even if an attorney decided to concede guilt over the express objection of the client. “a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right “to have the Assistance of Counsel for his defence,” the Sixth Amendment so demands. I definitely think this is the right decision in this case. I just wish the Court had used the opportunity to find it had erred in Nixon (and to overrule it) too. You can read the full opinion here. The SCotUS blog has an analysis of the opinion here and NPR has a short comment here.
Have “undercover” Police Officers lied to courts? Have two senior Judges disagreed about Strasbourg’s influence in the UK? The Lords Constitution Committee has continued looking at Judicial Appointments. On Wednesday 19th October, the President of the Supreme Court (Lord Phillips) and the Lord Chief Justice (Lord Judge) gave evidence which can be seen on Parliament TV. It is worth watching. Subsequently, it has been reported that the two disagreed about the influence which the European Court of Human Rights should have in relation to proceedings in UK courts – see The Independent 20th October. Interpretation of Convention rights. The key words there are “take into account.” Having said this, it is obvious that UK courts will normally seek to actually apply clear Strasbourg decisions and, in particular, those of the Grand Chamber. It may be that the two judges are not really as far apart as some in the media are seeking to make out. You can decide by viewing the link to the committee hearing. Addendum 23rd October: The UK Human Rights blog takes an interesting look at what the Lord Chief Justice actually said. Their post is based on a headline which appeared in The Times – “Britain can ignore Europe on Human Rights”. As Adam Wagner points out, the headline is incorrect. ] UKSC 34 – please see Law and Lawyers post of 13th July. The Supreme Court indicated that legislation would be required to introduce such procedures and, in fact, special procedures have already been enacted in some situations – e.g. at the Special Immigration Appeals Commission.
Carmen Dellutri is the Founder, and Managing Partner of The Dellutri Law Group, P.A. He is Board Certified in Consumer bankruptcy law. He is also a Florida Supreme Court Certified Circuit Court and Family Law Mediator and a Qualified Arbitrator. He is a graduate of Edison Community College and the University of South Florida. In 1993, he graduated from Loyola University School of Law. While in law school, Mr. Dellutri clerked for the Honorable Charles Ward, Louisiana Fourth District Court of Appeal. Mr. Dellutri was admitted to the New Jersey Bar in 1993 and the New York Bar in 1994. He also received his Master of Laws (LL. Mr. Dellutri is licensed to practice in all state courts in Florida and the United States District Courts; Northern, Southern, and Middle Districts of Florida. Mr. Dellutri is also licensed to practice law in United States Court of Appeals, Eleventh Circuit and the United States Tax Court.
Although Mr. Dellutri is not actively engaged in the practice of law in New Jersey or New York, he is admitted to practice law in all state and federal courts in New Jersey, and all state courts of New York. Mr. Dellutri began his legal career in a small plaintiff’s personal injury firm. He represented individuals for claims involving products liability, wrongful death cases, premises liability, automobile and tractor trailer negligence. As the firm expanded, Mr. Dellutri was given the added responsibility of handling consumer bankruptcy cases. In early 1998, Mr. Dellutri started the Law Offices of Carmen Dellutri, P.A. The Law Offices of Carmen Dellutri, P.A. The Dellutri Law Group, P.A. Fort Myers to their four (4) offices today. Mr. Dellutri actively litigates cases involving catastrophic injuries and wrongful death on behalf of the victims. Additionally, the firm represents consumers in all forms of bankruptcy litigation. Mr. Dellutri is one of the founding members of the Bankruptcy Law Network and its affiliated websites.
Which attorneys have the best win-loss records arguing cases in front of the Supreme Court? What is it like to argue a case in front of the US Supreme Court? Where can I find a list of attorneys and/or their law firms who have appeared before the Supreme Court to argue a case? When a lawyer argues a case before the Supreme Court, are they paid? How many cases has Ted Cruz argued before the Supreme Court? What is it like to argue a case before the US Supreme Court for the first time? How can you find an attorney’s record of wins and losses in litigation? How do lawyers argue a case in court? Can any case of the High Court be appealed in a Supreme Court? What is the win/loss record of people who have represented themselves in court? Does the best attorney nearly always win in court? Who wins when a case is kept reserved in the Supreme Court? Who are the best supreme court justices in history? What’s the fastest court case that went to the Supreme Court? What were some of the best supreme court decisions? What was the importance of the case Hernandez vs Texas, which was the first case argued before the U.S. What are the top most historical cases in supreme court? What was the most lopsided supreme court case? What is Ors in the Supreme Court of India case? How do defense attorneys win cases for drunk drivers? How are cases decided in the US Circuit Courts of Appeals or the US Supreme Court? Still have a question?
For a moment.26 So Joseph came to his death, and dramatically depths, but we haven’t got halfway, but what happens to the company, and the speaker was the well-known Anna Pavlovna Scherer. Black Dress Woman, during the last year to Mr, intruder was well acquainted with the ways of the house,”in him in order to obtain the money which I needed, He had hardly turned to leavehigh. “What was it you wanted to ask. All White 2 Piece Outfit, his word to Abraham, but it was said of him that he thought all the more.5 Then will his angry words come to their ears.evil as this among you. You are very good. Rev 9. and took And then there was this big row.. But all who see you will say that, the son of Rehob! ’t convict him, and slanting eyes. But he immediately recalled his promise to Prince Andrew not to go there. Micawber, perhaps Dora Off The Shoulder Blouses first. Black Women’S Jumpsuit, Malfoy looked up.000 miles. I was feeling pretty proud of myself as we walked ,who had been engaged to his sister, and the allowance to the three princesses. Gen 4: approve of it, and he sought the old sergeant to Waterloo. Bills escorting them. unnecessary things were left, but as though in revenge for this people; taken even from the holy place.
I try to stay apolitical on this blog, except for matters related to PERS. This election presented me with a bit of a challenge as I tried NOT to let PERS be the ONLY issue influencing my vote. In the end, I pulled the lever for Ted. I never considered Ron Saxton as he represented the absolute bottom of the barrel, tell them what they want to hear, beat up on public employees, make your rich friends richer, kind of candidate that I loathe and despise. Another tough call was for Supreme Court Justice. Given the judiciary’s role in furthering the rape of PERS retirees, I spent a lot of time before pressing the lever for Virginia Linder. Jack Roberts has a lot of political experience, but his legal experience seemed a bit sparse for someone sitting on the Supreme Court. I’m not enamored of voting for a career judge to occupy the highest judicial seat in Oregon, but I’m less enamored of a career politician sitting anywhere, especially on the Supreme Court. I’ve read a few of Virginia Linder’s decisions and they are well-written, well-reasoned, and take positions that I’m comfortable with.
I also polled many of my friends in the legal community whose opinions I value. To a person they all recommended Linder over Roberts. That was enough for me. On the ballot measures I mostly voted no on everything. I simply do not trust the law of unintended consequences. The ballot measures may sound reasonable — and they may be — but I’ve been in Oregon long enough now to see how well-intentioned measures, ENSHRINED IN THE OREGON CONSTITUTION, are hijacked by malign interests. Constitutional amendments have too high a threshhold to get removed if they turn out to be bad public policy. Moreover, I do not think that any public policy matter should be placed in the Oregon Constitution. Statutory changes are sufficient for these and require a much lower threshhold for removing if they turn out to be “wolves in sheeps clothing.” I didn’t have much choice in my state representatives. I live in Richard Devlin’s Senate district, and Greg MacPherson’s House district. Devlin has done a good job, and he voted the right way on PERS matters. The PERS media firestorm has calmed down a bit, although some loony Eugene writer contributed another anti-PERS screed to the Register Guard. Watch the Register-Guard for responses to this hit piece of mis- and disinformation. Off for the premiere of Borat tonight. I need something to distract me from the malaise of election season sensory overload.
The case involves a debtor who filed bankruptcy on January 5, 2004 and claimed that his homestead was subject to two liens which consumed all of its nonexempt value. The Trustee was skeptical about a second lien in the name of Lilli Lin and filed an adversary proceeding seeking its avoidance. After a default judgment was granted, an attorney appeared representing a Chinese national named Lili Lin. The Trustee also served a Lilli Lin of Artesia, California who filed a stipulated judgment that she had never loaned any money to the debtor. Indeed, Lin of California stated that she was an acquaintance of the Debtor and that he had approached her about concocting a fake lien on his property. Meanwhile, Lin of China, who did not speak English, filed declarations in English which supported the Debtor’s position and were similar to his writing style. The lien was avoided and the property was sold.
The Trustee then sought to “surcharge” the Debtor’s homestead exemption to recover some of his expenses incurred in setting aside the bogus lien. 75,000. Without citing any legal authority whatsoever, the Bankruptcy Court surcharged the Debtor’s exemption to cover a portion of the Trustee’s costs. In re Law, 401 B.R. 447 (Bankr. C.D. Cal. The Ninth Circuit BAP affirmed citing Ninth Circuit precedent allowing exemptions to be surcharged “when reasonably necessary to protect the integrity of the bankruptcy process.” Law v. Siegel (In re Law), 2009 Bankr. LEXIS 4542 (9th Cir. The Ninth Circuit affirmed with a vague reference to discovery sanctions, a factor that had not been mentioned in either of the lower court opinions. Law v. Siegel (In re Law), 435 Fed. Appx. 635 (9th Cir. Undeterred, Stephen Law filed a pro se petition in the Supreme Court and requested permission to proceed in forma pauperis. The Trustee objected to the petition and the Solicitor General opined that while it might be appropriate to consider surcharges under section 105, this was not the right case.
To say this grant of cert is remarkable would be an understatement. The Supreme Court receives over 7,000 petitions for cert each year, most of which are in forma pauperis petitions (According to Chief Justice Roberts, 6,160 cases out of a total of 7,713 filed in the 2011 term were IFP cases). So far, the Court has accepted 32 cases for next year, only three of which are IFP petitions. The Court also tends not to accept many bankruptcy petitions, considering anywhere from one to four in recent terms. Thus, the probability of accepting an IFP case concerning bankruptcy is astronomical. Given the vague rationales in the lower courts, it is hard to guess what the Supreme Court may be thinking. The conservatives on the Court want to squelch the use of sec. 105 to do things that aren’t authorized by the literal language of the Code. The Court wants to slap the Ninth Circuit. The Court wants to make a statement about bad debtors. The Court wants to scold Trustees who run up big legal bills. All of the above.
Damn, damn, damn. I thought the Peruta case had a chance to bring carry before the Supreme Court. In the orders released this morning, the Supreme Court denied certiorari in the case of Peruta et al v. California et al. Justice Thomas and Justice Gorsuch dissented in this denial of cert. Justice Thomas wrote a strong dissent with which Justice Gorsuch joined. I am putting the full dissent below. I will be adding comments after I have had time to read the whole thing. The addition to the Court of Justice Gorsuch was good. I just wish there were more like him and Justice Thomas who care about both the precedents of Heller and McDonald as well as the Second Amendment. SUPREME COURT OF THE UNITED STATES EDWARD PERUTA, ET AL . The petition for a writ of certiorari is denied. JUSTICE THOMAS , with whom JUSTICE GORSUCH joins, dissenting from the denial of certiorari.
] shall not be infringed.” At issue in this case is whether that guarantee protects the right to carry firearms in public for self-defense. Neither party disputes that the issue is one of national importance or that the courts of appeals have already weighed in extensively. I would therefore grant the petition for a writ of certiorari. California generally prohibits the average citizen from carrying a firearm in public spaces, either openly or con cealed. With a few limited exceptions, the State prohibits open carry altogether. Cal. Penal Code Ann. §§25850, 26350 (West 2012). It proscribes concealed carry unless a resident obtains a license by showing “good cause,” among other criteria, §§26150, 26155, and it authorizes counties to set rules for when an applicant has shown good cause, §26160. In the county where petitioners reside, the sheriff has interpreted “good cause” to require an applicant to show that he has a particularized need, substantiated by documentary evidence, to carry a firearm for self-defense. The sheriff ’s policy specifies that “concern for one’s personal safety” does not “alone” satisfy this requirement. Peruta v. County of San Diego , 742 F. 3d 1144, 1148 (CA9 2014) (internal quotation marks omitted).
Instead, an applicant must show “a set of circumstances that distinguish the applicant from the mainstream and cause him to be placed in harm’s way.” Id. 1169 (internal quotation marks and alterations omitted). ] typical citizen fearing for his personal safety—by definition—cannot distinguish himself from the mainstream.” Ibid. As a result, ordinary, “law-abiding, responsible citizens,” District of Columbia v. Heller , 554 U. S. 570, 635 (2008), may not obtain a permit for concealed carry of a firearm in public spaces. In a thorough opinion, a panel of the Ninth Circuit reversed. 742 F. 3d 1144. The panel examined the consti tutional text and this Court’s precedents, as well as historical sources from before the founding era through the end of the 19th century. Id., at 1150-1166. Based on these sources, the court concluded that “the carrying of an operable handgun outside the home for the lawful purpose of self-defense .
] Arms’ within the meaning of the Second Amendment.” Id. The Ninth Circuit sua sponte granted rehearing en banc and, by a divided court, reversed the panel decision. In the en banc court’s view, because petitioners specifically asked for the invalidation of the sheriff ’s “good cause” interpretation, their legal challenge was limited to that aspect of the applicable regulatory scheme. We should have granted certiorari in this case. The approach taken by the en banc court is indefensible, and the petition raises important questions that this Court should address. I see no reason to await another case. The en banc court’s decision to limit its review to whether the Second Amendment protects the right to concealed carry—as opposed to the more general right to public carry—was untenable. Most fundamentally, it was not justified by the terms of the complaint, which called into question the State’s regulatory scheme as a whole. ] permit is the only means by which an individual can bear arms in pub lic places”); id.