Why I Hate Wednesdays

I was having a pretty good day yesterday. I got a lot of studying done in the morning, corporations was short, and the weather was nice. And then, Pretrial. The class itself was fine if not incredibly boring. Three hours of watching other people depose witnesses. Boring. But I can handle boring.

At the end of class, the adjunct handed back the deposition outlines we turned in last week. Needless to say, my outline was poorly scored. Now I didn't put a whole lot of work into it, but I did sit down for about half an hour and outline what areas I needed to cover with the deponent. I didn't write down any specific questions because the adjunct told us not to. I just wrote down the basic areas to cover and a couple notes about specific lines of inquiry I thought would be promising.

Now a bit about deposition outlines. They are not court documents. There is no specific procedure to follow when preparing one. The only person who would ever see your outline in actual practice is you. Its sole purpose is to help guide your questioning in the deposition.

That being said, during the actual depositions last week, I was the only person in my group who filled the allotted time. I took the whole twenty-five minutes and I could have kept going. I elicited a fair amount of information and caught the deponent in a couple of misstatements.

Now I ask you, If the sole purpose of a deposition outline is to aid you in your deposition, and your deposition goes extremely well, doesn't it follow that the outline was written exactly as well as it should have been? Should actual performance during a deposition not shed some light on the quality of the outline?

GODDAMNED RIGHT IT SHOULD!!!!!!!!!!

Apparently, though, it does not.

By the way, for a really disturbing and actually relevant story, read Arfanser today.

Bummer

I just got to the library with the intention of studying for the next two hours to kill time until Big Brothers. So I sit down, turn on my computer, check my email, and sure enough, there's no BBBS until next week. Now it's 1:20, I have nothing to do for the rest of the day, it's rainy and cold outside, I have no reason or desire to be at school any more, and I have a fifteen to twenty minute walk through said cold rain to get home. I've been in a fairly sour mood all weekend, and this isn't helping.

Mad at Blogger

Damn Blogger just messed up a post I wrote. It was artfully written and rambled poetically about my distaste for Turkey (the country, not the bird). I linked to this article about the success of an anti-american movie there, and talked about a conspiracy theory being spread by the mainstream media in Turkey that the US intentionally caused the giant tsunamis that destroyed a large part of south Asia.

But Blogger ate it. Damn you Blogger!!!

Sunday Study-day

So I've been in the Library at school for the past three-and-a-half hours studying. I started with Tax but I've spent most my time on Family Law. For about the past hour I've been reading stuff on child custody. I only mention this as a lead-in to state that I am mad at my Family Law professor. Her assignments are ridiculously long and contain insupportable amounts of secondary sources discussing people's feelings on various topics. Law is about cases and statutes!!!!! Not people!!!! If I cared about people I'd be a social worker, not a lawyer!!!!

Also, despite the fact that this professor authored the textbook we're using, she still finds it necessary to make us pay an additional $17 (on top of the $100 for the textbook) for about 200 pages of supplementary material. Then, she breaks up the reading assignments so that we read about four pages from the book, then ten pages from the supplements, then ten pages from the book, then two pages from the supplement, then eight pages from the book. It is infuriating. I have to constantly check the syllabus to make sure I don't accidently read a case from the book that she has replaced with a case from the supplement.

That is all.

On Poetry: Part II

So I've decided to post this poem that I like. If you don't like it, that's ok. But try not to rag on it too much until you've read it with some bourbon, at night, when you're a little down.

i want to overthrow the
government
but all i brought down was somebody's wife
by Charles Bukowski


30 dogs, 20 men on twenty horses and one fox
and look here, they write,
you are a dupe for the state, the church,
you are in the ego-dream,
read your history, study the monetary system,
note that the racial war is 23,000 years old.

well, I remember 20 years ago, sitting with an old Jewish tailor,
his nose in the lamplight like a cannon sighted on the enemy; and
there was an Italian pharmacist who lived in an expensive apartment
in the best part of town; we plotted to overthrow
a tottering dynasty, the tailor sewed buttons on a vest,
the Italian poking his cigar in my eye, lighting me up,
a tottering dynasty myself, always drunk as possible,
well-read, starving, depressed, but actually
a good young piece of ass would have solved my rancor,
but I didn't know this; I listened to my Italian and my Jew
and I went down dark alleys smoking borrowed cigarettes
and watching the backs of houses come down in flames,
but somewhere we missed: we were not men enough,
large or small,
or we only wanted to talk or we were bored, so the anarchy
fell through,
and the Jew died and the Italian grew angry because I stayed
with his
wife when he went down to the pharmacy; he did not care to have
his personal government overthrown, and she overthrew easy, and
I had some guilt: the children were asleep in the other bedroom;
but later I won $200 in a crap game and took a bus to New Orleans,
and I stood on the corner listening to the music coming from bars
and then I went inside to the bars,
and I sat there thinking about the dead Jew,
how all he did was sew on buttons and talk,
and how he gave way although he was stronger than any of us --
he gave way because his bladder would not go on,
and maybe that saved Wall Street and Manhattan
and the Church and Central Park West and Rome and the
Left Bank, but the pharmacist's wife, she was nice,
she was tired of bombs under the pillow and hissing the Pope,
and she had a nice figure, very good legs,
but I guess she felt as I: that the weakness was not Government
but Man, one at a time, that men were never as strong as
their ideas
and that ideas were governments turned into men;
and so it began on a couch with a spilled martini
and it ended in the bathroom: desire, revolution,
nonsense ended, and the shades rattled in the wind,
rattled like sabres, cracked like cannon,
and 30 dogs, 20 men on twenty horses chased one fox
across the fields under the sun,
and I got out of bed and yawned and scratched my belly
and knew that soon very soon I would have to get
very drunk again.

FishFrog on Poetry

I own one book of poetry. Just one. Like everyone else in America, I was forced to study and appreciate poetry in public schools from middle school through high school. I was taught what different forms of poetry were, I was forced to write my own haikus, couplets and sonnets, and I was made to read the writings of the "masters." As a result, I eschewed poetry for many years.

But as an undergrad, I stumbled across some poetry and gave it another chance. I purchase a book from Barnes and Noble, and for the past few years, every once in a while, I crack it open to a random spot and read. Sometimes it really speaks to me, and last night was one of those times.

First, a note on how I now approach poetry. I just read it. Sometimes aloud to myself or to Nell. But I just read it. I don't analyze it for patterns or similes; I don't try to decode any hidden metaphors; I don't try to solve it like a puzzle. I just open the book and read. I find its better to read slowly, not really thinking but just leaving yourself open emotionally. I find this is easier and more rewarding after a couple of shots of bourbon, but it also works if you happen to be in a sensitive state at the time. The best time to read poetry is when your emotions are stimulated; either depressed, happy, regretful, joyful, anything. Also, I prefer to read when it's dark outside.

I want to return to something I just mentioned, which is that I prefer poetry when I'm inebriated. This, I think, really illustrates the problem with the way most public schools teach poetry. In school, I was taught to approach the poem intellectually. To think about whether it had the requisite number of similes and metaphors. Whether it had contrasting themes in opposition. Some poems were good and some were bad. While it's still true that I like some poetry and I dislike most poetry, I now understand that the poetry I don't like isn't BAD, it just isn't for me.

The great thing about the booze is that is forces you into a state in which you can more easily be emotionally receptive to the poem, and it helps shut down (or mute a little) your intellectual facilities. This is especially important to those who, like me, tend to think a little to much. This may mean that the poetry I like would not be very enjoyable to others. But that's ok. There's a lot of poetry out there.

What I really wanted to do in this post was to post this one poem that really makes me feel something. It's a little long, though, so I thought maybe I'd just put up a snippet. But I don't think that's a good idea. So I may post it later, or I may not. I really don't know.

Tax Injunction Act

In my last post I said I was going to summarize the TIA. However, it is quite short so here it is in its entirety:

The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.

The law is codified at 28 U.S.C. 1341. The defendants' argument in the previously discussed case was simply that there was a plain, speedy and efficient remedy to be had in the Tennessee courts. That would only fly though, if the $35 license plate fee was considered a tax. The 6th Circuit held that it was not a tax and therefore the TIA is inapplicable.

Free Speech Case with a Tax Angle

I was going through my daily tax happenings, as I do in the mornings, and I ran across a 6th Circuit case that was decided yesterday. I was confused as to how a speech case turned up in my tax news, so I read the case. Sure enough, there's a minor tax angle.

The case is ACLU of Tennessee v. Bredesen. The ACLU and others sued the state to enjoin the issuing of premium-priced license plates (vanity plates) with "Choose Life" inscribed on them. The ACLU's position was that because the state didn't also offer a Pro-Choice themed plate, the state was violating the first amendment. The district court granted summary judgment to the ACLU and enjoined the issuing of the plates. Defendant appealed and the 6th Circuit reversed the district court.

The tax angle is not as interesting as the speech part of the case. The appellant (defendant) argued that the $35 fee for the plate was a tax, and that because it was a tax the Tax Injunction Act deprived the district court of subject matter jurisdiction. The Circuit Court dismissed this argument fairly quickly, citing the Supreme Court in New Jersey v. Anderson (203 US 483, 1906).

I have never heard of the Tax Injunction Act before. I've got a bit of work to do before class at 10, so I can't really look into it now, but I'll check it out later and be back with a brief summary.

Camping Pictures

By popular request, here are some pictures from Nell and my backpacking trip.

This is me at the campsite. ^

My backpacking companions. ^

Wood Carving

About two weeks ago SP mentioned that she was interested in learning how to carve. It just so happens that when I was in college I developed a fleeting interest in carving and so I happened to have some carving tools and basswood in my apartment. After digging them out of the closet, I decided to give it a quick go before handing the materials over to SP. It's two weeks later and I am still carving.

I happen to own a mesh carving glove that prevents supposedly cuts to the hand. The truth of the matter is, though, that I average two cuts per carving session. A session can last between twenty minutes and an hour. I have carved about eight or nine times in the past couple weeks and I have no fewer than twenty cuts. Some are U-shaped (caused by the gouge) and some are straight and small (caused by my carving knife). None are very serious and they heal fairly quickly. They do tend to bleed a lot. As a result, some of my carvings have brown splotches scattered around. I think its pretty cool. And it doesn't really detract from the carvings since I have a total lack of talent and they all look like crap anyway.

Backpacking

Nell and I went Backpacking from Thursday to Saturday last week with the Fuzzy/Panda sisters, and it was immensely fun. Here's a tip to having a enjoyable backpacking trip: bring a small, plastic magnifying glass. Everything is cool when slilghtly magnified. I had hours of fun looking at rocks, bugs, and fungi through the glass.

Speaking of which, fungus is the coolest thing in the world. The amount of work that a fungus does to keep the forest ecosystem running is breathtaking. Immediately upon arriving home I purchased the Audubon Guide to Mushrooms. There is nary a more diverse or cool looking kingdom under the sun. Interestingly, most of the fungus we encountered on the trip turns out to be edible. Gross. You'd have to be pretty hungry to eat that funky looking stuff.

Deuce Bigalow: European Gigolo=Bad Movie

Maybe I just built it up too much in my head, but the movie sucked. There were a few decent laughs, but the bulk of the film centered on coming up with alternate names for male genitalia and male prostitutes. Although I do enjoy "low" humor and I constantly am laughing when I pass gas, its hard to imagine anyone other than a thirteen year old boy enjoying this film.

Elizabethtown=Good Movie

I'm a bit of a sucker for romance movies, and this was a good one. Many of my readers know I have long had a dislike/fear of Kirsten Dunst owing to a frightening dream I had long ago involving raw hippo meat. But Elizabethtown cured me of my fear. Also, Orlando Bloom was looking pretty good (or so Nell tells me). We also rented, but didn't get to see yet, Deuce Bigalow European Gigalo. I was a huge fan of the first Deuce Bigalow movie and I am eagerly anticipating the second.

They Have Returned

My arch-enemies, nonrecourse loans, have returned to plague me again. This time, they have infiltrated subchapter K of the income tax code. If you don't remember, I struggled with nonrecourse loans late last year in the context of basic federal income tax. It took me some time to grapple with the idea that forgiveness of a debt to which you are not personally liable can generate taxable discharge of indebtedness income for you. Conceptually it was difficult for me to understand the fairly circuitous approach taken by Congress, an approach taken only because Congress doesn't want a negative tax basis in property.

Having finally come to an understanding, I had no fear when I approached the chapter in my text entitled "Partnership Treatment of Nonrecourse Liability." Hey, I kicked its ass once and I can do it again. Or so I thought...

Some Initial Tax Analysis

Note: The following is meant for my own educational purposes only and is not intended and should not be taken as legal advice. Acting on any legal analysis contained within is done at your peril. Filing incorrect tax returns can result in fines and even jail time. Also, the following may be boring for people who aren't interested in federal income tax.

I have spent the past week or so delving deep into unexplored regions of the tax code, treasury regulations, and tax court cases in order to figure out the proper tax treatment of the following hypothetical situation:

Taxpayer A (TPA) is the parent of Taxpayer B (TPB). TPA is in the habit of giving as a gift $10k a year to TPB, because TPA loves TPB and wants TPB to be able to buy groceries during a time of TPB's life where TPB has no income and considerable expense. It comes to pass that TPB need a new car, but needs something with some hauling capacity and thus needs a minivan. But a minivan costs $30k. TPA doesn't want TPB to have to get a loan from the dealer at a high interest rate (nor could TPB get a loan with no income). So TPA lends TPB $30k with the understanding that the loan will be paid back at a rate of $10k per year by way of TPA simply not giving TPB the usual $10k gift and instead applying that amount to the outstanding loan.
That's the hypo.

So now some background. The tax code provides that a donor (gift-giver) can give up to $10k dollars per year per donee (gift-getter) without being subject to the gift tax. However, if the donor gives more than $10k in a year to a single donee, then the donor has to pay the gift tax on the amount of the gift exceeding $10k. So we can see that TPA does not want this loan reclassified by the IRS as a gift.

However, the IRS has in the past reclassified intra-family loans as gifts. The most common case where this happened prior to 1984 was in no interest (or below market interest) demand loans. A demand loan is a loan with no specified repayment date that the lender can demand be repaid at any time (presumably a parent would exercise this power sparingly). The service (with approval of the courts) would reclassify the loan as a gift in the amount of the present value of the use of the loan money. This is kind of a weird distinction, but those of you who have finished your first year of law school and remember from the analogy of property rights as a bundle of sticks may understand. The IRS considered that the donor gave and the donee received a property right in the use of the loan money at less than fair market interest rates. So the amount that would be considered a gift of property is less than the actual amount loaned, but how much less is beyond my mathematical abilities.

In 1984, following a Supreme Court decision (Dickman v. Comm'r, 104 S. Ct. 1086) (the opinion was written by Burger and isn't much of a read, but the dissent was written by Powell (Rehnquist joining) and is a good read and fairly persuasive) approving of the above treatment of below market loans, Congress codified and slightly broadened the Court's holding by enacting section 7872.

Section 7872 says that any below market loan which is a gift loan or a demand loan will be considered a gift to the extent of either (1) the foregone interest on the loan or (2) the excess of the amount loaned over the present value of all payments which are required to be made under the terms of the loan. To check out the full text of the section, click on the US Tax Code link on my side bar.

So back to our hypo. In our case the first of the two treatments under the previous paragraph would apply, but for 7872(d)(1), which swoops in to save the day for our taxpayers. Said subsection provides that 7872 will not apply to loans that do not exceed $100k. Our taxpayers' transaction escapes the gift tax, to the detriment of society which is deprived of much needed revenue for social programs.

As a side note, the loan between TPA and TPB should be evidences by a writing which provides for a date of repayment.

Unlawful Recording in Missouri

Note: This is a fairly long post with some legal citations, but it has a story at the end that I think is worth the time.

I was having a conversation the other day with Matt and SP in which I told them that in Missouri, its illegal to sell a burned CD which does not contain the name and address of the manufacturer. SP called me a liar, and I will now vindicate myself. Following is the Missouri Statute saying as much:

Section 570.241
No person shall advertise, or offer for rental, sale, resale, or rent, sell, resell, or cause to be sold, resold, or possess for such purposes any article that has been produced in violation of the provisions of section 570.240, knowing, or having reasonable grounds to know, that the article has been produced in violation of the provisions of section 570.240.

Section 570.240
The label, cover, box or jacket on all phonograph records, discs, wires, tapes, films, videocassettes or other articles or medium now known or later developed on which sounds or images are recorded shall contain thereon in clearly readable print the name and address of the manufacturer.

The two sections working together make it a crime to sell a burned CD without putting the name of the manufacturer on it. These sections are backstopped by the following laws.

Section 570.230
No person shall advertise, or offer for sale, resale, or sell or resell, or cause to be sold, resold or process for such purposes any article that has been produced in violation of the provisions of section 570.225 or 570.226, knowing, or having reasonable grounds to know, that the sounds thereon have been so transferred without the consent of the owner.

The crossreferenced sections in 570.230 say that you must have authorization from the original publisher (read record label).

So here's the thing: Missouri has decided to use its legal system and police force to prevent me from violating a major record label's copyright on music. In other words, the record labels have co-opted the government to enforce what has always been and should be a private cause of action. The state legislature has made was has always been a civil action into a criminal one.

The punishment for violating the labeling requirement of section 570.240 is a felony if you are found with more than 100 such CDs. That was recently amended. Prior to last year you had to have more than 1000 CDs for it to be a felony. And now let me tell a story that humanizes a little bit the effect of this law.

Last summer I had an opportunity to second-chair (on the defense side) a prosecution by the city of St. Louis of an indigent man whose car was searched under questionable circumstances. During the search, the police looked in his trunk and discovered a few thousand CDRs with musical artist names written on with permanent marker. He was arrested for violation of section 570.240.

The evidence was clearly stacked against him (I mean COME ON, he was clearly selling boot-legged CDs) and he didn't take the stand in his defense, notwithstanding the fact that he had no prior convictions that the prosecution could have dragged out to unfairly predjudice him in the eyes of the jury. The defense stategy was jury nullification (which is when the jury sees the prosecution as a huge waste of time and ignores the law). The jury convicted fairly quickly and sentenced the defendant to the minimum fine. Talking to the jury afterwards, most of them thought it was a big waste of time to prosecute a poor black man for selling boot-legged CDs. If it weren't for the fact that the jury got to choose the sentencing, two of the jurors would have voted not to convict, hanging the jury.

Personally, I sympathize with the jury. As a juror you're asked to determine what the facts are, what exactly happened. You are instructed that it is not your job to decide whether a law is wrong or right, just whether the facts of the case bring the defendant under a given statute. It's hard to imagine the verdict coming out any other way.

So our guy was convicted and received a fine. So what's the big deal, one may ask. Well, as I said, this guy was indigent, meaning he made less than $187 dollars a week. But over the course of the year since he was arrested, he had gotten a job teaching at a religious school. He was starting to turn his life around and help the community. However, as is the case nearly everywhere, a felony conviction precludes one from teaching children. As he was now a convicted felon, our guy lost his job.

I worked on this case over the course of about a month and a half prior to trial. It was the first prosecution under the statute in St. Louis. Two prosecutors worked the case, aided by one investigator and two interns. I'm not sure how many man hours they had to put into the case, but the trial itslef took two full days, about four times as long as the average drug possession case. Was it worth the man-hours of the prosecutor's office, the public defenders, the judge, jurors, court reporter, and court staff to convict a poor black man of selling improperly labeled CDs, making him dependent on the state in the process? Did the benefit to the record industry offset the loss to the community of St. Louis of a teacher?

Peacock Bass Fishing

One of my favorite types of shows is the fishing show. I used to fish a fair amount and I even took a yearly trip to Minnesota to fish with my old paint store friends. But honestly, I enjoy watching fishing more than actually fishing. I'm always a little afraid to fall in the water or get sunburned while actually fishing.

So I was flicking between two fishing shows this morning. One was a fishing competition in which they were fishing for large mouth bass (largies, we used to call them). Large mouth bass were my primary quarry on the Minnesota trips, though I also enjoyed the occasional Small mouth bass and pike.

The other show was in some other country and the guy was fishing for something called a Peacock Bass. I had never heard of this fish before, but now that I've seen it, I will never watch a large mouth bass fishing show again. Peacock Bass are AWESOME. Hers's what one looks like:

This picture is from www.peacockbassfishing.com. They have a ton of other great pictures there. The Peacock Bass is gorgeous and seems to put up a great fight. Just look at the size of that fish!!!