San Diego Estate Planning Lawyer Blog

San Diego has many different types of courts. There is the San Diego Superior Court and the San Diego United States District Court and some others. In addition, in California, there is the California Supreme Court and the Court of Appeals. In Washington, D.C. is the United States Supreme Court.

The U.S. Supreme Court has given a victory to freelance authors of newspaper and magazine articles, and a defeat to some major publishers of their work. The publishers hired the authors as independent contractors who would contribute articles to what is known in copyright law as a "collective work," that is, a newspaper or magazine. Under federal copyright law, the publishers were the owners of the copyright in the collective work, giving them the right to reproduce and distribute the contributions as part of the collective work or any revision of that work. The writers themselves, however, retained the rights to their individual articles.

The dispute arose when the publishers, without obtaining the authors' permission or agreeing to provide extra compensation to them, licensed the rights to copy and sell articles to a computerized database of periodicals and to the producer of CD-ROM products. When the authors claimed an infringement of their copyrights in their articles, the publishers defended by arguing that making the articles available on line or in a CD-ROM form constituted simply a "revision" of the collective work that was within the copyright of the collective work held by the publishers.

The Supreme Court sided with the writers. The newly created databases no longer presented and distributed the articles as part of the collective work in which they first appeared, or as part of a revision of that work. Instead, the articles stood alone and out of their original context. Each article had become merely a minuscule part of an ever-expanding database. As the Court put it, "The database no more constitutes a 'revision' of each constituent edition than a 400-page novel quoting a sonnet in passing would represent a 'revision' of that poem[.]" Therefore, the electronic reproduction of the authors' works could not be allowed without their permission.

For all of your legal needs, please feel free to consult our law firm of Pinkerton, Doppelt & Associates, LLP and, if we cannot assist you, we can offer your bar certified referral services. Please feel free to e mail us as well.

Posted by Roy M. Doppelt | Permalink | Email This Post

Posted In: NEWS AND COMMENTARY

Bookmark:

San Diego, California is a very technologically advanced area. There are, in San Diego, may satellites for televisions. In 1996, the Federal Communications Commission (FCC) issued a rule that prohibited certain restrictions on the use of antennas designed to receive direct broadcast satellite service or television broadcast signals. Two years later the FCC expanded the rule to cover lease provisions where the antenna user was the tenant. Associations representing owners and managers of real estate unsuccessfully challenged the expanded rule in federal court.

The argument that the FCC had overstepped the bounds of the authority given to it by Congress failed. Congress has granted the FCC very broad regulatory authority so that it can keep pace with rapidly evolving technologies. As for "direct-to-home" satellite services, in particular, the FCC has exclusive regulatory jurisdiction, and has been charged by Congress to issue regulations to prohibit restrictions that impede viewers from using necessary devices.

In the view of the federal court, it was only a small and appropriate step for the FCC to extend its original authority over local or state land-use restrictions, restrictive covenants, and homeowner association rules to cover provisions in a lease. Given its mandate from Congress to prohibit restrictions on the provision of a regulated means of communication, the FCC can exercise its jurisdiction over a landlord who creates such a restriction even though, in so doing, the FCC alters property rights created under state law.

The FCC's preemptive power over satellite dishes does not leave landlords with no say in the matter whatsoever. First, since the FCC rule only applies to property within the exclusive use or control of the antenna user, a tenant does not have the unfettered right to put equipment on outside walls, rooftops, and other such areas where he may have access but not possession and exclusive control. Second, the rule itself states that a restriction "impairs" installation, maintenance, or use of an antenna if it "unreasonably" delays or prevents such use, "unreasonably" increases the cost of such use, or prevents reception of an acceptable quality signal. Thus, reasonable measures by landlords have their place. Finally, restrictions that would otherwise be prohibited are permitted where they accomplish a safety objective without singling out antennas, or they are necessary to preserve certain historic properties.

Thank you for viewing our blog of the law firm of Pinkerton, Doppelt & Associates, LLP.

Posted by Roy M. Doppelt | Permalink | Email This Post

Posted In: NEWS AND COMMENTARY

Bookmark:

San Diego, California has many small business owners and employees. In fact, in San Diego, the number of small business firms are much more numerous than large business firms. The Internal Revenue Service has lightened the paperwork load for about a million small businesses. Employers are required by the Internal Revenue Code to deduct and withhold Social Security and income taxes from the wages paid to their employees. The withheld taxes are then held by the employer in trust for the benefit of the United States. Depending on the amount of employment taxes withheld, at various time intervals an employer must deposit the withheld amounts in an approved bank.

Before the IRS issued the new regulation, an employer could avoid having to deposit accumulated employment taxes every month if the total amount of such taxes was less than $1,000. The new regulation raises that threshold to $2,500. For quarterly and annual return periods beginning January 1, 2001, businesses with less than $2,500 in employment taxes for a return period may pay the full amount with the regular return for that period, rather than having to make monthly deposits.

At Pinkerton, Doppelt & Associates, LLP we are not accountants however we can refer to accounting professionals and also advise you on legal strategies and techniques. Please feel free to e mail our firm.

Posted by Roy M. Doppelt | Permalink | Email This Post

Posted In: NEWS AND COMMENTARY

Bookmark:

San Diego, California has many schools. In San Diego, there are public schools and private schools. The are schools in San Diego in the University of California San Diego system and also in the San Diego State system as well as the University of San Diego and other schools which are private.

As an estate planning tool in San Diego, for individuals who want more control over their investments, a Coverdell Education Savings Account (formerly called an "Education IRA") may be an attractive alternative to a 529 plan. A contributor to a Coverdell account can choose investments and change them, depending on his or her investment strategy. Earnings are tax-free as long as they are used for qualified education expenses. The 2001 tax law also has improved this method of saving for elementary, secondary, and college education costs. Beginning January 1, 2002, the annual limit on contributions will increase from $500 to $2,000.

An increase in the phase-out income range for married taxpayers filing jointly will allow more taxpayers to contribute to a Coverdell account. For beneficiaries with special needs, rules stopping contributions when the beneficiary turns 18 and requiring that the account be emptied when he or she turns 30 have been removed. As with 529 plans, a contributor to a Coverdell account can claim an education tax credit, though not for the same educational expenses for which Coverdell account money was used.

One note of caution: The changes to both 529 plans and Coverdell accounts made by the 2001 tax legislation will expire on December 31, 2010, unless Congress acts before then to continue them. As such, please consult with our firm of Pinkerton, Doppelt & Associates, LLP for a updated status on this law. Also feel free to e mail our firm.

Posted by Roy M. Doppelt | Permalink | Email This Post

Posted In: ESTATE PLANNING

Bookmark:

Sa Diego, California has many different schools both public and private. The ever increasing tuition and fees in schools in San Diego, California has made the planning of the costs part of estate planning as many persons use their assets in their estate plan to pay for school for their children.

In San Diego, California, many financial institutions offer these types of 529 plans. Some financial institutions in San Diego which may provide these include the Bank of America, Wells Fargo, Washington Mutual and others.

The ever-rising cost of a college education has led to the creation of college savings plans that have been given various federal tax advantages. Among these are "529 plans," named after the section of the Internal Revenue Code that sets forth requirements for favorable tax treatment of qualified state tuition programs. 529 plans vary from state to state with regard to investment options, contribution maximums, and state income tax treatment. One type of 529 plan allows taxpayers to purchase tuition credits for a designated beneficiary, thereby locking in today's college costs. A second type allows the donor to contribute to an investment account to pay for a beneficiary's higher education expenses, such as tuition and room and board.

Individuals can contribute up to $50,000 to a 529 plan in one year on behalf of a beneficiary ($100,000 for married couples) without being subject to gift tax. In effect, the $50,000 contribution is treated as five separate $10,000 annual exclusion gifts. Gift tax is avoided so long as no other gifts are made to the beneficiary in the same five-year period.

Anyone can contribute to a 529 plan on behalf of the beneficiary. Grandparents, other relatives, or friends of the family can use 529 plans as an effective estate planning tool. The plans are unusual in that donors still can retain control over the account, and even take it back if necessary, while reducing the size of their estates. Under current law, earnings in a 529 plan are tax deferred, but the 2001 tax law provides that, beginning January 1, 2002, earnings taken out to pay college expenses will be tax free.

Other important changes in 529 plans were made by the 2001 federal tax legislation. Whereas plans previously had to be sponsored by a state or state agency, one or more educational institutions, including private schools, can set up prepaid tuition programs. Under the new law, money from one 529 plan can be rolled over into another such plan up to three times for the same beneficiary without having the transaction considered to be a distribution. A penalty of at least 10% of earnings formerly was imposed if the donor took back the money or the money was used for anything other than qualified expenses, but now there is a flat 10% penalty. Lastly, the new law allows a taxpayer to claim a federal tax credit for paying for a child to go to school while excluding from gross income funds distributed from a 529 plan for the same student, as long as they are used for different expenses.

Please contact our law firm of Pinkerton, Doppelt & Associates, LLP if you would like a complimentary consultation on estate planning. Please also feel free to e mail us.

Posted by Roy M. Doppelt | Permalink | Email This Post

Posted In: ESTATE PLANNING

Bookmark:

In San Diego, California, there has never been mass public transportation as in other major cities. As such, in San Diego, most commuters rely on theirr automobiles. Given the high number of uninsured drivers in San Diego, it is important to make sure that you have both uninsured and underinsured coverage on your automobile. This has relevance in estate planning as all of your assets can be seized if you owe for medical bills or for other damages and your insurance does not cover. You need to report to the Department of Motor Vehicles if there is a personal injury in an accident or if the property damage meets the reporting requirements. Always make sure that the legal name of the vehicle is in the name of your living trust.

In one case, a woman called the insurance agency she had done business with for 10 years and told the agent she needed "full" automobile coverage. According to her, no one discussed what level of insurance would provide adequate protection. Instead, she was sold a policy that provided only the minimum amounts required by state law for uninsured and underinsured motorist coverage. The woman and her husband sued the insurance agency for negligence after their son was seriously injured when he was struck by an underinsured motorist and their expected damages exceeded their insurance coverage. The insurance agency, whose line of work is more used to criticism for overzealous selling, was instead in the position of being sued for not selling enough of its product. It is always advisable to contact the California Board of Insurance to make sure that the agent is licensed to sell the type of insurance you are purchasing.

Insurance agents are not personal financial counselors or risk managers for their customers. They generally fulfill their duty to the insured simply by providing the coverage requested by their customers, who typically know more about the extent of their assets and their ability to pay premiums. The agents do not have a duty to advise a client to obtain different or additional coverage. In this case, though, the court ruled that an exception to this no-duty rule arose because there was a "special relationship" between the insured and the insurance agent.

Such a relationship can come about in several ways. The theories that applied in this case were the failure of an agent to respond appropriately to an inquiry or request about a particular type or extent of coverage and the failure to clarify an ambiguous request before providing coverage. Although there were factual issues to be resolved, the court ruled that the woman should have a chance to present her case to a jury.

If you have been injured in an automobile accident, please do not hesitate to contact our law firm of Pinkerton, Doppelt & Associates, LLP or e mail us.

Posted by Roy M. Doppelt | Permalink | Email This Post

Posted In: ESTATE PLANNING

Bookmark: