March 2002 Vol. 11, Issue 1
Refund
of Sales Tax on Equipment Used to Provide a Website A recent Ohio Supreme Court decision addressed the refund provision
of R.C. 5739.071, which allows providers of electronic information services
to receive a 25 percent refund of Ohio sales/use tax paid on purchases
of computers and related equipment. (See Key Serv. Corp. v. Zaino
(2002), The Tax Commissioner argued that since such services occurring between members of an affiliated group are deemed nontaxable sales, a refund is not available. See R.C. 5739.01(X) defining “providing a service” with reference to “anything described in” R.C. 5739.01(B)(3) (which sets forth the taxable services). The Court found that electronic information services were so described, whether or not they were provided between members of an affiliated group. Moreover, Key was a provider of “electronic information services,” defined in R.C. § 5739.01(Y)(1)(c) as “providing access to computer equipment by means of telecommunications equipment for the purpose of either of the following: (i) examining or acquiring data stored in or accessible to the computer equipment; (ii) placing data into the computer equipment to be retrieved by designated recipients with access to the computer equipment.” Extending the Court’s reasoning makes the partial exemption very broad. Exemption would appear to be available to equipment used in providing a Web site (including ancillary equipment and otherwise taxable services) if the primary purpose of the property is to provide electronic information services to business customers. Steven Dimengo is a shareholder and member of the Taxation & Employee Benefits and Business Law Practice Groups. He can be contacted at sdimengo@bdblaw.com or 330.258.6460. Social Security
Disability – Yes, It Could Benefit You Since all wage earners pay into Social Security on an annual basis, the use of disability benefits as a safety net is an entitlement and is of benefit to all regardless of social and economic status. Yet most people think of disability as something that only happens to “the other guy” – until they are confronted by the realities of an illness. Social Security requirements are complex, however, and legal assistance can be most effective in gaining the benefits due to a disabled person. Too often the process of applying for disability benefits is done in a quick interview over the telephone or by simply jotting down information on an application form. Further, a treating physician may simply write a short letter saying, “In my opinion, the claimant is totally disabled” in support of the application for benefits. Such a response fails to meet the rigorous standards set by the Social Security Administration to warrant the finding of disability. Here, also, legal assistance can help the disabled person and his or her family present the correct information and gain the appropriate benefits. To be eligible for Social Security disability, a person must have sufficient or equivalent earnings to be eligible, must have been disabled for at least one calendar year or expect to be disabled for that long, and must be so disabled as to be unable to engage in any substantial gainful employment for which the claimant has training, education or transferable skills. Since the requirement for a finding of disability under Social Security requires either one year of total disability or the expectancy of one year of total disability, medical and legal planning is important. A determination of whether you have sufficient earnings to grant Social Security coverage, the amount of benefits that will be awarded should Social Security disability be granted, and a coordination of medical information should all be done prior to the filing for disability. Often when an employee is transferring from short-term disability insurance into a long-term disability insurance program, the company will require that the employee also file for Social Security disability. This not only ensures the employee of future medical payments under Medicare but also allows a set-off to the long-term disability benefits paid by the insurance company. Many people do not realize that Social Security benefits can be approved for a closed period of disability as long as that closed period of disability exceeds one calendar year. For example, if a person had major surgery or a major illness that had flare-ups or relapses and the rehabilitation time lasted more than one calendar year, even if that person now is fit to go back to work and is indeed working, an application should be filed for the closed period of disability. There are also instances where a person need not have any earnings record and would still be eligible for Social Security benefits. These include disabled widows, certain minor children, disabled widows or widowers, and disabled adult children. Social Security disability is available even if the disabled person is collecting other disability insurance benefits or workers’ compensation benefits. It is also important to note that if the claimant has more than one health problem or disabling problem (even if no one problem is enough to disable the individual totally), all problems combined, including any pain or psychological problems derived from the conditions, can be considered as one for the purposes of determining Social Security disability. For all these reasons, there is no simple answer to the question, “Should I file a Social Security disability claim?” If you or someone in your family is disabled or has experienced a period of disability in the recent past, please feel free to contact me with any questions concerning eligibility for this important benefit. Lawrence Friedlander is an of counsel attorney and member of the Workers’ Compensation and Litigation Practice Groups. He can be contacted at lfriedlander@bdblaw.com or 216.615.7358. Use Trademarks
Wisely on the Web! Many people are unaware that
use of trademarks – both their own and those of their competitors –
in Web sites is regulated by The competitor had violated the law by using keywords in four ways: “creating keyword density” using the trade name of a competitor; creating “header tags” and “underline tags” around sentences using the trade name of the competitor; by using the competitor’s trade name as a keyword; and by using “hot links” to Web sites with information about the competitor. A case involving Terri Welles, a Playboy “Playmate of the Year,” led to an opposite result. The case concerned her use of the Playboy trademark “Playmate of the Year” and stylized logo in her Web site. Ms. Welles’s use of the Playboy trademarks was permitted in her Web site metatags because, the court explained, “[t]here was no other way that Ms. Welles can identify or describe herself or her services.” The court noted that the trademark laws were “intended to protect those who criticize the holder of a well-known trademark as well as those, like Welles, whose notoriety is tied to it.” Louis Wagner is a shareholder and member of the Intellectual Property Practice Group. He can be contacted at lwagner@bdblaw.com or 330.258.6453.
Nicholas
T. George (Buckingham AkronSM)
was recognized as Citizen of the Day on Robert
C. Meyer (Buckingham CantonSM)
was recently appointed to the
Board of Trustees and the Chairman of the Massillon Area Chamber
of Commerce Legal Affairs Committee. He also became a Member
of the Executive Committee of the Massillon Area Chamber of Commerce.
Joel
H. Mirman (Buckingham ColumbusSM)
was elected to The Council of Delegates, one of the major
governing bodies of the Ohio State Bar Association. His term will begin
on Linda Dupuis, Office Administrator at Buckingham ColumbusSM, is the Chair of the Legal Career Development Committee, which was created by the Columbus Bar Association and the Columbus Chapter of the Association of Legal Administrators. Their goal is to develop a recruitment program to attract more people to the legal administrative profession. Ms. Dupuis has been instrumental in the development of course materials to assist in the recruitment process.
On On June 7, 2002 at 7:30 p.m., George Weinstein (Buckingham Boca RatonSM) will appear on "Wealth & Wisdom with Joyce Boyer & Michael Lee." The show will discuss "Insight into Preserving and Growing Your Asset." Please refer to your local listing for day and time. On August 8, 2002, Frederick M. Lombardi, (Buckingham AkronSM), Alan DiGirolamo, Robert A. Hager, and John P. Slagter (Buckingham ClevelandSM) will be presenters at “Using Ohio Construction Laws To Your Advantage” sponsored by Lorman Education Services. They will present on “Legal Aspects of Construction Contracts and Ohio Construction Law.” Please reference www.lorman.com for additional information. On Out and About – Recent Presentations: Business Law Practice Group Robert J. Newbold (Buckingham CantonSM) gave a speech on "Overview of Franchise Law Regulations" to the Mt. Union College Franchise Section of Business Law Class. David J. Lewis (Buckingham
AkronSM) spoke to the Akron Bar Association Real Property
Committee on tax issues related to real estate matters, on Employment Law Practice Group Tod T. Morrow (Buckingham CantonSM) presented at the 2002 Ohio Health Care Association Seminar held this month in Columbus, Ohio. He spoke on Occupational Safety & Health Administration compliance issues. Health Law Practice Group Marian Pearlman Nease (Buckingham
Boca RatonSM) spoke on Florida liability and tort reform
issues at the legal update session of the Spring Legislative Workshop
sponsored by the American Association of Homes and Services for the
Aging in Washington, D.C. on Eric M. Simon (Buckingham ClevelandSM) gave a presentation on “Nursing Home Leases” at the 2002 Ohio Health Care Association Seminar in Columbus, Ohio this month. Litigation Practice Group Real Estate & Construction Law Practice Group Trusts & Estates Law Practice Group
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