 December 2002 Vol. 11, Issue 6
Are Your Cell
Phones Dialing Up Liability For Your Business? It is often said that talk is cheap, but not when it’s on a cell phone and the distraction leads to a motor vehicle collision. Throughout the country, courts are holding employers responsible for injuries to third parties caused by their employees’ negligent use of cell phones, pagers, and other electronic communication devices. A recent study revealed that cell phone users cause 2,600 deaths and 330,000 injuries each year in motor vehicle accidents in the United States. Some areas, including the State of New York, and the City of Brooklyn, Ohio, have banned or have restrictions cell phone use while driving. In order to avoid potential workers’ compensation claims from employees injured while using cell phones while driving, and potential negligence claims from the third parties, many employers have implemented policies restricting employee use of cell phones while driving a vehicle or operating other equipment. Obviously, employers need to weigh the value of employee use of cell phones while driving, including increased efficiency and productivity, with the potential danger of motor vehicle collisions. Should you need assistance in drafting a personnel policy on this issue, the members of our Employment Law Practice Group are available to assist you. Natalie Grubb is an Associate in our Employment Law Practice Group. She can be contacted at ngrubb@bdblaw.com or 216.453.4289. 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 insures 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 or widowers, certain minor children, 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. Family Financial
Planning – The Best Tax Shelter Year-round financial planning can help move your family toward its financial goals. An attorney or financial advisor has many strategies that may assist you in accumulating wealth, preserving it from loss through current and future taxation, and transmitting it to the younger generation of your family. Permanent tax savings, deferring taxes, and making certain types of gifts are all potential financial strategies, but they must be tailored to your specific family situation, and some may have significant disadvantages as well. Nevertheless, effective family financial planning can be the best tax shelter. A primary financial strategy is to achieve permanent tax savings where possible, and to defer other taxes to future years when the expected rate would be lower. Permanent savings on income tax include reduction or elimination of the minimum tax on tax preferences. You should also consider taking steps to reduce the estate tax your family would have to pay upon your death by transferring some of your property now to a family member whose future estate will be below $1,000,000 at death. You can defer income taxes by accelerating deductions and deferring income or by utilizing the marital deduction. Be aware that this type of deferral will cause a tax upon your spouse’s death. The end result of any of these strategies will be a shelter, but you will not run the risks inherent in the notorious “tax shelters” promoted so vigorously in prior years. Another important way to reduce the total taxes paid by your family as a whole is to give property within the family before your death. This strategy may yield substantial income and estate tax savings, depending on how you structure your gift. Currently, a donor may give $11,000, and gifts may be split between spouses. Family financial planning in this category also includes non-gifts such as paying a child’s tuition directly to the school. What, when and how much a parent should give to a child during the parent’s lifetime is a matter of individual judgment, tax considerations notwithstanding. You must consider carefully whether your own financial condition might worsen in future years. Most parents want to have becoming financially dependent on a child. This fear is reflected in the saying, “One parent can take care of ten children, but ten children cannot take care of one parent.” In addition, you must be aware of some disadvantages that may arise concerning family gift giving. For income tax purposes, the IRS considers a gift to be “unearned” income. In 2002, the unearned income above $750 of a child under age 14 is taxed at the parents’ marginal tax rate, which will most likely be higher than the child’s. Potential “basis” and “step-up basis” issues should also be addressed with your financial advisor. Whether you are planning to make a gift or are writing your will, you should also be aware of the generation-skipping transfer tax. This is levied at the highest estate and gift tax rate, currently 50%, on certain transfers to those below the first generation (that is, the generation following your own children). Currently there is a $1,100,000 exemption per transferor, or gift-giver. Careful planning is necessary to minimize or eliminate such taxes. You and your family will benefit from a comprehensive financial approach that offers you the most effective strategies and addresses your specific needs. It is important that such planning be done year-round, not just near April 15th. With effective planning, your family can become the best tax shelter and tax saving opportunity you can find George Weinstein is an Of Counsel attorney and member of the Trusts & Estates Practice Group. He can be contacted at gweinstein@bdblaw.comor 561.995.2981.
Thomas M. Zaino, Ohio’s Tax Commissioner, whochairs a special committee created by the legislature to study Ohio taxes, recently asked Steve Dimengo, a shareholder and chair of the Firm’s Taxation section of the Business Practice Group, to testify concerning potential improvements in Ohio's tax climate. This committee includes several state senators and representatives. In March, the committee will submit a report to the General Assembly with its recommendations. Dimengo commented, “It was pretty impressive in Columbus, to testify before probably a hundred people - including legislative representatives and members of state government - in one of the Senate hearing rooms.” Steve was honored to be chosen to give recommendations to the committee and provided many ideas for improvements in Ohio’s tax climate.
On January 22, 2002, Rhonda L. Warren (Buckingham CantonSM) will be a presenter at a National Business Institute sponsored seminar titled “Medical Records for Attorneys” in Akron, Ohio. Please reference www.nbi-sems.com for additional information. On February 5, 2002, Joseph J. Feltes and Shila Nalawadi (Buckingham CantonSM) will be speaking at the Lorman Education Services sponsored seminar titled “HIPAA Compliance-Understanding and Implementing the Security and Privacy Regulations in Ohio” in Akron, Ohio. Please reference www.lorman.com for additional information and registration. On February 27, 2003, Buckingham’s Real Estate & Construction Law Practice Group will be holding their Annual Seminar at the Hilton West – Akron/Fairlawn. To register on line visit www.bdblaw.com/seminars.asp or contact Maria Denisiak at mdenisiak@bdblaw.com or 330.258.6478. Out and About – Recent Presentations: Employment Law Practice Group Natalie F. Grubb, Douglas J. Paul and John P. Slagter (Buckingham ClevelandSM) presented “Legal Issues Involving Ohio Local Governments” at a National Business Institute sponsored seminar. Vincent J. Tersigni (Buckingham AkronSM) gave a presentation on "Effective Personnel Practices for Medical Offices” for the Cleveland Ophthalmological Society in Independence, Ohio. Health Law Practice Group Joseph J. Feltes and Rhonda L. Warren (Buckingham CantonSM) gave a presentation on “HIPAA Compliance for Nursing Professionals in Ohio” at the Holiday Inn Express in Akron, Ohio. Litigation Practice Group Michael D. Mopsick (Buckingham Boca RatonSM) appeared on a local cable show titled “Wealth and Wisdom,” sponsored by State Street Bank. He spoke on selected topics related to “Probate and Trust Litigation.” Medical Malpractice Defense Practice Group Christopher S. Humphrey (Buckingham CantonSM) gave a presentation at the Community Healthcare Coalition Annual Meeting. His presentation was on medical malpractice insurance related issues. Real Estate & Construction Law Practice Group James L. Fisher (Buckingham AkronSM) presented “Important Terms and Conditions of Commercial Purchase Agreements,” at the 2002 Real Property Law Forum sponsored by the Akron and Cuyahoga County Bar Associations. Kenneth A. Fisher (Buckingham ColumbusSM) spoke on “The Basics of Project Delivery Systems” at The American Institute of Architects Columbus Convention. He also presented “ARE Preparation: Contract Documents” to The American Institute of Architects - Columbus Chapter and “Mechanics’ Lien Law and Strategies” for the National Business Institute. Robert A. Hager and John P. Slagter (Buckingham ClevelandSM) spoke on “Lien Law” and “Bonding Off Liens and Notice to Commence Suit on Liens” for Lorman Education Services. Donald B. Leach, Jr. (Buckingham ColumbusSM) presented a program on “Ohio’s Mechanics Lien Law” for the Central Ohio Chapter of the Associated Builders and Contractors. He also presented Ohio Mechanics’ Lien Law: The How’s and Why’s of the Paperwork,” for the Builders Exchange of Central Ohio and “Economic Loss Rule in Construction” and “Design Build Contract and Insurance Considerations” for the Professional Education System Institute, LLC. Craig B. Paynter (Buckingham ColumbusSM) gave a presentation on “Anatomy of Public/Private Collaboration” at Buckingham’s Finance & Public Law Seminar in Columbus, Ohio. Trusts & Estates Practice Group Phylip J. Divine (Buckingham AkronSM) presented at the Akron Tax Club on “Section 529 College Savings Plan.” David W. Woodburn (Buckingham AkronSM) spoke on “Estate Planning for Young Professionals” at a leadership training seminar for Cohen & Co.
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