1 June 2015 Newsbriefs 2015 Judges Night Event Judges Night at the Northwest Suburban Bar Association has been a tradition and favorite event for over thirty years. William F. Kelley, President of the Northwest Suburban Bar Association, welcomed 200 attorneys, Illinois Appellate and Cook County Circuit Court judges to the 2015 Judges Night on May 7th at Café Le Cave in Des Plaines. In his final act as President, Kelley welcomed guests, recognized pastpresidents and co-chairs, and assured everyone that the Association will remain in good hands. Nichole Waltz, Judges Night Co-Chair, thanked members for coming out to attend the event. She also thanked her fellow Co-Chair Jay Andrew, and Miriam Cooper, Natasha Adler and Robert Kaplan, who served on the Judges Night Committee. Judges were recognized by Natasha Adler, who asked that they stand according to the number of years they have served on the bench. Michael Rothmann presented the slated officers and Board of Governor candidates for the NWS- BA, as well as the slated Foundation candidates. After a vote, the new members were unanimously voted in with a great amount of applause. The Honorable Bridget J. Hughes was honored for her leadership, Issue Features: President s Page 3 Table of Contents 5 Board Meeting 24 Highlights Bulletin Board 27 Calendar 28 volunteerism and contributions to the community when she received the Northwest Suburban Bar Association s 2015 Public Service Award. Judges Night is our signature event, and has long been our tradition to recognize judges and the collegiality between the Bench and the Bar, said Miriam Cooper, Chair of the NWSBA Award s Committee, who had the honor of presenting Judge Hughes with her award. Judges perform public services every day in their courtrooms, but we are honoring someone whose contributions outside of the courtroom are exemplary as well. Judge Hughes attended The John Marshall Law School in Chicago. After law school, she worked for eight years in the civil and criminal divisions of the Cook County State s Attorney s Office. As a senior trial attorney at the law firm of Thomas M. Tully & Associates, she represented multi-million dollar commercial properties in tax assessment litigation, with a special focus on expert testimony and the valuation of real estate. She joined the bench at the Third Municipal District Court in 2007, and in 2014, Judge Hughes assumed responsibility for the felony trial call. Some of the volunteer work she participates in include providing social services to children in the Chicago area at The Alliance for Early Childhood and After School Matters. Judge Hughes currently sits on the Women s Board for the Lincoln Park Zoo, and was previously a member of the Lincoln Park Zoo s Executive Committee. She and her husband also support the Rehabilitation Institute of Chicago and Ravinia Festival. Continued on Page 6
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3 President s Page By: William F. Kelley Newsbriefs - 3 It truly has been an honor and a privilege to serve as President of the NWSBA this past year. As I complete my term, I would like to take a few moments reflecting upon some of the year s highlights, our association s accomplishments, as well as a few of the many people who made these highlights and accomplishments possible. We consistently provided great opportunities for professional development allowing our members to hone their skills while imbuing a sense of comradery and collegiality among the members of the bar and the bench, hopefully leading to greater civility and respect. The NWSBA remained focused and committed throughout the preceding year on our three long range goals (i) Bringing probate matters to the outlying districts; (ii) Reigning in the power to unilaterally remove divorce cases downtown; and (iii) Endeavoring to establish an attorney s room in the Third District Courthouse. First and foremost, I would be remiss if I failed to acknowledge the exceptional work of Julie Barth, our outstanding Executive Director, and the dedicated staff she assembled, Linda Hamann and Paula Krueger. Julie and her team have a knack for anticipating the needs of our association, cost-effectively implementing our goals and objectives, bringing exceptional value to our members, and letting our members know just how important each of them are and how much they are each appreciated. Be assured that the leadership of our association will rest in the very capable hands of our dedicated officers. Ron Wittmeyer, our incoming president, began putting his mark on the NWSBA a few years ago when he chaired the dinner meeting committee. But I truly believe that the finest of his numerous contributions is Ron s spearheading the Legal Self Help Center at the Third District Courthouse. Nichole Waltz is exceptional at everything she has done for the association, but the rousing success of transitioning Judge s Night from Rosewood to Café La Cave is just one of many examples of where Nichole has consistently gone above and beyond the call of duty. Nichole s tireless efforts along with veteran board member Miriam Cooper in working to revise the Circuit Court rules to reign in the right to unilaterally remove divorce cases downtown is especially noteworthy. Our Treasurer, Jay Andrew, cut his teeth chairing the Mock Trial Competition over the years and has kept a sharp pencil in his fiscal management of our association, keeping us in the black and out of the red. Still, I believe the many hours Jay invested with Nicole to shepherd in Judge s Night was his finest accomplishment this year. Our Secretary, Mike Rothmann has been another workhorse in the NWSBA. Mike and Gary Newland have both performed a yeoman s job spearheading the NWSBA sponsorship committee, always looking for new ways to generate revenue while bringing value to our members. Mike and Gary have also worked closely with the Suburban Bar Coalition endeavoring to bring probate to the outlying districts and reigning in the unbridled power to remove divorce cases downtown. Although these are undoubtedly long range goals, rest assured that a concerted effort is being made along those lines. Our incoming Secretary, Miriam Cooper, has given a tremendous amount of time and energy to the NWSBA over the years and will be a great addition to the Executive Committee. Miriam has done a great job chairing the Awards Committee and Law Day Committee. Given the fact that Miriam has also devoted a tremendous amount of time to High School District 214, where she serves on the board, it is no wonder she has an inclination to broaden the perspective of students with the Law Day activities at our courthouse, championing the rule of law in our society. Continued on Page 13
4 Newsbriefs - 4 THANK YOU! The NWSBA and the co-chairs of the Pro-Bono Committee want to extend an extremely grateful thank you to those attorneys that volunteered their time at the Third District Municipal courthouse in May. The NWSBA could not run these voluntary community outreach programs without the generous time given by NWSBA attorneys. The following NWSBA attorneys staffed the Pro Bono Desk, and served as paternity and/or court facilitators during the month of May: Pro Bono Attorneys: Matthew Hess Susan Marks Steve Bogdanov (twice) Paternity Facilitators: Ish Orkar Steve Bogdanov Court Facilitators: Barbara Meyer (twice) Amil Alkass Susan Polachek Shawna Stassen Joel Weiner Attorneys who staff the Pro Bono desk assist pro-se litigants in a wide variety of matters the desk is open from 1:00 p.m. through 3:00 p.m. on Friday afternoons outside courtroom 206. The Paternity Facilitators and Court Facilitator Attorneys assist pro-se litigants and judges in Domestic Relations cases and attorneys volunteer their time on Thursdays from 9:00 a.m. to 12:00 p.m. With spring here filling some of these spots has become more challenging. Please see what you can do to try and fill some of these spots as they are very meaningful to the judges and individuals we are able to assist. The NWSBA Pro Bono Committee is also tasked with overseeing the Legal Self Help Center located at the Rolling Meadows courthouse. The Legal Self Help Center is currently facing a staffing shortage, so if you, or anyone you know, would be interested in volunteering their time to staff the Legal Self Help Center on a Thursday or Friday morning, please contact Ron Wittmeyer or Lance Ziebell. Again, thank you for your service, Pro Bono Committee Co-Chairs: Ronald F. Wittmeyer, Jr. Law Offices of R.F. Wittmeyer, Ltd. Phone: Lance C. Ziebell Lavelle Law, Ltd. Phone:
5 Table of Contents Newsbriefs Newsbriefs - 5 Title Page Published by: NWSBA Judges Night Recap 1 President s Page 3 Volunteer Thank You! 4 Tort Law Meets the Jetsons: Driverless Cars 8 are Coming LAP Article 9 IRS Practice & Procedures 10 Judges Night Photo Recap 12 On This Day Golf Outing Registration Golf Outing Sponsorships 17 Matrimonial Law Recent Cases 18 New & Noteworthy 20 Annual Wine Tasting Event 21 Board Meeting Highlights 22 Office Updates 23 Pub Trawler 24 Bulletin Board 25 Calendar 26 Editor: Scott Zambo Production Editor: Julie Barth Deadline to submit: 15th of the month Advertising Rates: Call Northwest Suburban Bar Association Executive Committee President: William F. Kelley First VP: Ronald F. Wittmeyer Second VP: Nichole M. Waltz Treasurer: Jay A. Andrew Secretary: Michael Rothmann Executive Director: Julie Barth Board of Governors Kenneth C. Apicella Robert Boszko Anna Markley Bush Miriam E. Cooper Joette Doran Allen S. Gabe Colin Gilbert Scott Kuntz Michael Lightfoot Gary Newland Nicholas Richardson Joseph Vito Immediate Past President: Michael A. Meschino Need Help? Call LAP-1233 Lawyers Assistance Program Association Attorney: Matthew Kelley Parliamentarian: Lance Ziebell
6 Newsbriefs - 6 Continued From Page 1 Judges from the Third Municipal District with Chief Judge Timothy C. Evans, center, and Carol Mulroe from the presiding judge s office. Bridget Hughes consistently demonstrates a judicial skill set of the highest standard in approach, competence and fairness for all participants who appear in her courtroom. As a colleague, it is a pleasure to work with Judge Hughes. She possesses a vast variety of professional talents that greatly assist the proper operation of the Court s administration of all proceedings, said Hon. William O. Maki, Presiding Judge, Third Municipal District, Circuit Court of Cook County. Judge Hughes thanked those in attendance, including Judge Evans and Judge Maki, and then challenged everyone to incorporate volunteering in their community, outside the practice of law. She says volunteering is a rewarding experience and brings balance into your life. The courts are unfortunately filled with tragedy and despair. Changing your arena and doing volunteer work is good for your heart; it will bring you optimism and happiness, Judge Hughes told the attendees. Another highlight of Judge s Night was the presentation of the Honorable Timothy C. Evans Scholarship, a financial gift from the Northwest Suburban Bar Association Foundation, the charitable arm of the NWSBA. Jay Andrew, event Co-Chair, introduced The Honorable Timothy C. Evans, Chief Judge, Circuit Court Cook County and Dennis Favaro, President of the NWSBA Foundation. The Hon. Judge Timothy C. Evans with Nichole Waltz, NWSBA 2nd VP and Judges Night co-chair. The NWSBA always distinguishes itself with a high level of commitment to public service, said Favaro. We have presented over $100,000 to recipients throughout the years. Factors considered in choosing a recipient include academic achievement, involvement in extra-curricular activities and financial need. The scholarship was established to honor the commitment and dedication of Chief Judge Evans to the NWSBA and Cook County. His commitment to public service and his passionate pursuit of legal excellence and integrity mirror the virtues embodied by the NWSBA and its members. Two scholarships were awarded this year. Antonia Kopec of DePaul University College of Law received $4,000. In her essay, she demonstrated her commitment to helping the community. I know in my heart that a career in law serving the public is where I belong. I have always wanted to help my community in any way I can. Antonia Kopec, receipient of the $4,000 scholarhsip with Hon. Timothy C. Evans, Chief Judge, left, and Dennis Favaro, NWSBA Foundation president. Continued on Next Page
7 Newsbriefs - 7 Continued From Previous Page Margaret Wojkowski, receipient of the $2,000 scholarhsip, with Dennis Favaro, NWSBA Foundation president, and Hon. Timothy C. Evans. Margaret Wojkowski, a first year student at Chicago- Kent College of Law received $2,000. My professional reputation began the moment I stepped into the school during orientation. Every day is an opportunity to build that reputation by respectful, engaging behavior. I lead by example, said Wojkowski. Judge Evans spoke about how thrilled he was of the caliber of the candidates, and how proud he is to have his name associated with the NWSBA. It s wonderful to be back with the lawyers and judges of this great organization. I d like to thank the NWSBA for allowing me to be associated with such talent. Members of this organization do so much to help the Bar and the Bench and it always impresses me with the volunteerism that permeates throughout. I have attended your seminars in the past, and recognize what wonderful work your organization does, Judge Evans said about the Northwest Suburban Bar Association. NWSBA Treasurer and event co-chair Jay Andrew, left, and Incoming President Ronald F. Wittmeyer, Jr. with scholarship winners Anonia Kopec and Margaret Wojlowski The evening concluded with Ronald F. Wittmeyer Jr., incoming President of the NWSBA, congratulating the Judges Night Committee on an outstanding event, and reminding members to mark their calendars for June 16, 2015 at Rolling Green Country Club for the Installation Dinner. Jay Andrew and Nichole Waltz co-chaired this years NWSBA Judges Night. The Illinois Institute for Continuing Legal Education was the corporate sponsor for this event, while member sponsors included Drost, Gilbert, Andrew & Apicella, LLC; Kelley, Kelley & Kelley; Klein, Daday, Aretos & O Donoghue, LLC; Law Offices of Martin Glink; and Law Offices of R.F. Wittmeyer, Ltd. Left to right: Hon. Judge Thomas Kelley, Chief Judge Timothy C. Evans, and NWSBA President, William F. Kelley Left to right: Michael Rooney, Executive Director of Illinois Institute for Continuing Legal Education, a corporate sponsor of Judges Night, with John O Brien and Elmer Mannina More Photos on Page 12 and on our Facebook Page!
8 Newsbriefs - 8 Tort Law Meets the Jetsons: Driverless Cars are Coming! By: Charles E. Adler & Rachael E. Stack Driverless cars are coming. Will present tort law be sufficient to grapple with the emerging technology? We asked our research clerk, Rachael E. Stack, to look into the future for us, and this is a condensed version of her report. Charles E. Adler Evolution of Driving Technology The creators of the popular cartoon The Jetsons developed a world that seemed only fictional when they portrayed self-driving and flying cars. While as a society we have yet to implement the technology to fly a vehicle, we have found a way to create autonomous cars. The concept of driverless cars may seem futuristic but the autonomous notion has been around for decades. From 1958, where auto pilot was fervently advertised by Chrysler as a new, fuel efficient way to drive without your foot on the gas pedal, to anti-lock braking systems (ABS) were introduced as a revolutionary safety mechanism. Fast forward to now, where vehicles are equipped with technology from parking assistance, to road sign recognition and night vision. These technologies are designed with the drivers and passengers safety in mind. Technology has now advanced to the point where the federal government has begun setting standards to address this emerging technology. and designed to work together. Level 3 automation allows the driver to surrender complete control of all vital safety functions under specific conditions. Finally, Level 4 is intended to operate all critical safety functions without driver interaction. These varying degrees of automation will be a historical contribution to society, but is relinquishing driver control the correct answer to safer roads? What s the Problem? When the technology designed to save lives ends up malfunctioning, liability becomes an obstacle that that must be addressed. In terms of legislation, several states have started to address the potential liability issues. While Illinois has yet to enact relevant statutes, Florida addresses liability by releasing the manufacturer for any defect in the autonomous technology not present in the original vehicle. California expresses a similar theory in its definition section, which articulates that the manufacturer is whomever installed the autonomous technology. In addition the manufacturers and subsequent modifiers actions, drivers actions regarding control become a liability issue. Whether roadways are safer when vehicles operate without human override should be considered when driving distractions are currently a huge concern. Case Strategy The National Highway Traffic Safety Administration (NHTSA) has classified vehicles according to their levels of automation. Likewise, several states have enacted legislation to authorize operation of such vehicles. NHTSA defines vehicle automation technology as that in which at least some aspects of a safety-critical control function occur[s] without direct driver input and [the technology] act[s] appropriately by effectuating control at some level. Recognizing the fluidity of driverless technology, NHTSA established five classifications of automation, ranging from no autonomy to complete autonomy. Starting with Level 0, where the driver is in exclusive control of vehicle [functions] at all times, and is solely responsible for monitoring the roadway. Level 1 is where the driver remains in overall control, but certain utilities are automated that operate independently (e.g. cruise control, automatic braking). Level 2 combines more autonomy where at least two primary control functions are automated From an attorney s perspective, it is imperative to know the relevant causes of action in a case involving autonomous technology. Recognizing the automation level involved is also crucial to determine liability. For levels where the vehicle operator is still expected to monitor the roadways, the likely cause of action is negligence. However, where the technology is designed to monitor the roadway; the likely cause of action is products liability against the manufacturer of the vehicle and/or the installed technology. While products liability appears adaptable, issues of operator control becomes essential to both causes of action. In terms of negligence, the law will have to adapt to the automation standards and determine whether a duty is still owed by the operator. This is a condensed version of a more detailed article. Please feel free to contact us for a copy of the complete article, with footnotes.
9 Lawyer s Assistance Program By: Chelsy A. Castro Lawyers Helping Lawyers: It Takes One to Know One (Part 2) Talking to another attorney who knew first hand what it was like to experience the same challenges that I was struggling with gave me hope that I could also overcome what had before seemed insurmountable. The legal profession has earned its reputation for being ruthless, tough and over-whelming. Nonstop deadlines, competitive peers, demanding clients and an inherently adversarial nature are among the many reasons that attorneys consistently find themselves at the top of the rankings for professionals struggling with depression, anxiety, divorce, suicidal ideation, and chemical and alcohol abuse. Seeking help is not easy in a profession that strives for perfection, and concerns over confidentiality are often enough to keep attorneys from reaching out for the support that they so desperately need. The IL Lawyers Assistance Program (LAP) was created to address these very needs and concerns. LAP provides totally free and confidential assistance to any Illinois judge, attorney, or law student struggling with addiction or mental health issues. The totally free and confidential nature of LAP exists to eliminate the barriers that keep many attorneys from seeking the support they need. In addition to trained clinicians (often former attorneys themselves) who provide assessments, referrals, interventions and individual and group counseling, LAP relies on an army of over 400 trained volunteers who serve as mentors to fellow attorneys, judges and law students. These trained volunteers are bound by the same level of confidentiality as every LAP employee and are thoroughly vetted by LAP clinicians. The effectiveness of LAP volunteers is supported by both science and anecdote. Studies show that the support of a peer who has overcome a similar struggle significantly increases the likelihood of an individual s success, regardless of the type challenges Newsbriefs - 9 faced. Anecdotes from LAP clients who have taken advantage of this totally free and confidential service consistently support what these studies claim. I didn t really think that he could help me, but I called him anyways. He knew first hand how tough things were and I was surprised by how comforted I felt, said one LAP client. I was unsure that anyone could help and I felt weird about cold-calling a stranger. She encouraged me to stay committed to my goals and gave me good advice, said another. It s up to the LAP Volunteers and their assigned clients to define what they want their mentoring relationship to look like; some have occasional phone calls, while others maintain standing lunch or coffee appointments. Regardless of the frequency or venue, LAP clients and LAP Volunteers work on a variety of issues including but not limited to: career transition, office dynamics, anxiety, alcohol abuse, divorce, grief, etc. The assistance and support that LAP volunteers provide is invaluable to attorneys in crisis. All LAP volunteers participate in a six-hour training session before they provide peer counseling or serve on intervention teams. Participation in a training session does not obligate anyone to become a LAP volunteer, but it is a prerequisite for those who wish to serve in a volunteer capacity. Indeed, many legal professionals attend LAP s training events to improve their understanding of addiction and mental health as it affects the profession of law. If you are interested in finding out more about becoming a volunteer, please call our office or attend our upcoming Volunteer Training Program in Chicago from 8:30 a.m. to 4:30 p.m. on Friday, June 26, 2015 at Loyola School of Law. Six free MCLE professionalism and ethics credits are available for this program. If you are interested in receiving LAP services, including being connected with a LAP Peer Support Volunteer, call 800-LAP-1233, or visit our website at
10 Newsbriefs - 10 IRS Practice and Procedures By: Joshua Nesser, Lavelle Law, Ltd. Petitions filed by dissolved entities Medical Weight Control Specialist v. C.I.R., T.C. Memo (2015) Why This Case is Important: Many corporate taxpayers may not understand the importance of maintaining their corporate status with their state of incorporation by filing annual reports on time, paying annual fees, etc. This case illustrates how failing to do so can impact federal corporate tax issues. Facts In this case, the taxpayer was incorporated in California in In March 2004, due to the taxpayer s failure to pay state taxes, its status as a corporation was revoked by the State of California. On May 22, 2013, the IRS issued a notice of deficiency to the taxpayer for the years of 2009, 2010, and 2011 asserting that it owed over $1.5 million in tax, penalties, and interest. On June 17, 2013, within the 90 day period for doing so, the taxpayer filed a petition with the U.S. Tax Court contesting these assessments. The IRS responded by filing a motion to dismiss for lack of jurisdiction on the basis that the taxpayer lacked the legal capacity to sue at the time its petition was filed. In May 2014, with the taxpayer now having complied with its state tax requirements, the California Franchise Tax Board reinstated its corporate status and issued a certificate of relief from contract voidability, the purpose of which is to maintain the legitimacy of contracts entered into by the taxpayer during the period that its corporate status had been revoked that had not yet been rescinded and/or that were related to the sale of California real property. Law and Conclusion The issue in this case was whether the Court had jurisdiction with respect to a petition filed by a suspended corporation taking into account the issuance of the certificate of relief from contract voidability. The Court first relied on a prior case, in which it concluded that under California law, a suspended corporation is not legally permitted to prosecute or defend an action. Accordingly, the taxpayer in this case did not have the legal capacity to file a valid petition and confer jurisdiction on the Court. Because jurisdiction is a statutory rather than contractual matter and does not involve the sale of real property in California, the Court held that the certificate of relief was irrelevant. Accordingly, the case was dismissed and the taxpayer lost its ability to contest the notice of deficiency in the Tax Court. Taxation of Refundable State Tax Credits - Maines v. C.I.R., 144 T.C. No. 8 (2015) Why this Case is Important Generally, state income tax refunds are generated by overpayments of state income taxes and therefore do not constitute taxable income. This case, however, was related to a refund that was not generated by an actual payment, but by a refundable tax credit. As this case demonstrates, this distinction is important. Facts In Maines, the taxpayers were residents of New York. New York operates the Empire Zones (EZ) Program, which provides incentives to stimulate private investment and business development in impoverished areas. Businesses that qualify for the program may be entitled to receive certain tax credits. With respect to S corporations, these credits are reported on the individual state tax returns of the corporate shareholders. Some of these credits are refundable in that credits in excess of a taxpayer s tax liability are refunded to the taxpayer and are not taxed at the state level. The taxpayers in this case owned two pass-through entities that received tax credits from the EZ Program and the credits were reported on the taxpayers individual state returns for 2005 through Because the taxpayers state tax liabilities in those years were minimal, they received significant refund payments. They did not report these refunds to the IRS as taxable income. The IRS, however, issued notices of deficiency asserting that the refunds did constitute taxable income and assessed the resulting tax liabilities against the taxpayers. Continued on Next Page
11 Continued From Previous Page Law and Conclusion The Court first explained that when taxpayers itemize their tax deductions and deduct their state income taxes paid, to the extent those taxes are refunded the following year, the refund is taxed in such year. However, in this case the taxpayers did not itemize their deductions. Therefore, they argued that just like any other taxpayer who does not itemize but receives a refund of a state tax overpayment (and New York law specifically referred to these refunds as overpayments ), their refunds were not taxable. The IRS argued that just because New York called the EZ Program refunds overpayments did not mean that for federal income tax purposes, they actually were, in substance, overpayments. The IRS s position was that because the refunds in question were not actually returning amounts paid by the taxpayers, they should not be treated as overpayments and instead should be taxed as income. The Court relied on Section 61(a) of the Internal Revenue Code, which defines gross income for tax purposes to include all income from whatever source derived, and the rule that payments that are undeniable accessions to wealth, clearly realized, and over which- the taxpayers have complete dominion are taxable income unless an exclusion applies. Based on its determination that the refunds received by the taxpayers were not actual refunds of overpayments but instead accessions to wealth for which no tax exclusions applied, the Court held that the credits were taxable in the years received. The Court did note that credits used to reduce a state tax liability, meaning that they do not generate a refund, are not taxable. Tax Dependents Related to Foster Families Cowan v. C.I.R., T.C. Memo (2015) Why This Case is Important: This case explains the qualifying child test for purposes of income tax exemptions as such test relates to foster-family relationships. Facts In Cowan, the taxpayer was the former foster parent of Marquise Woods. Woods lived with the taxpayer his entire life starting in 1986 when he was six weeks old. The court order appointing the taxpayer as the guardian of Woods stated that the taxpayer would remain his guardian until he reached the age of majority, at which time the case would be closed. Woods Newsbriefs - 11 reached the age of majority in At that time, the taxpayer s guardianship of Woods legally terminated. The taxpayer never legally adopted Woods. Still, Woods continued to live with the taxpayer and the taxpayer continued to financially support Woods. In 2006, Woods had a child. In 2011, the year at issue, Woods lived with the taxpayer the entire year and the child lived in the house for 11 months, with the taxpayer supporting all three of them. On her 2011 return, the taxpayer claimed dependency exemptions for both Woods and his child. The IRS issued a notice of deficiency disallowing the exemption deduction for the child and the related tax credits. Law and Conclusion A taxpayer is allowed an exemption deduction for each individual who is a dependent of taxpayer for the taxable year. Section 152(a) of the Internal Revenue Code defines the term dependent to include a qualifying child and a qualifying relative. For purposes of this case, the taxpayer conceded that the child did not meet the requirements to be qualifying relative, but contended that she did meet the requirements to be a qualifying child. One of the requirements to be a qualifying child under Section 152(c) is that the individual must be either (1) a child of the taxpayer, or a descendant of a child of the taxpayer; or (2) a brother, sister, stepbrother, or stepsister of the taxpayer or a descendant of one of those relations. A child is defined as a son, daughter, stepson, stepdaughter, or an eligible foster child of the taxpayer, meaning an individual who is placed with the taxpayer by an authorized placement agency or by judgment, decree, or other order of any court of competent jurisdiction. The taxpayer s contention was that Woods, as her foster child, was her child for purposes of this requirement and that Woods daughter therefore had the necessary relationship with the taxpayer to be her qualifying child. The Court held that because the taxpayer s guardianship of Woods terminated in 2004 under Ohio law, he was no longer considered to have been placed with the taxpayer. Therefore, he was not her eligible foster child for tax purposes and his daughter did not have the necessary relationship with the taxpayer to be the taxpayer s qualifying child. For that reason, the taxpayer could not claim her as a dependent and the notice of deficiency was upheld. The NWSBA Federal Tax Committee meets the second Wednesday of every month, except during the summer, from 12:15 p.m. to 1:15 p.m. The location of upcoming meetings is to be determined. Please feel free to contact the committee chair Tim Hughes with any questions at or
12 Newsbriefs - 12 Judges Night 2015 Photo Recap
13 President s Page Continued From Page 3 Among the most enduring legacies left to the NWS- BA by my predecessor, Mike Meschino, is Newsbriefs. Mike passed the torch to Scott Zambo when he assumed the presidency of our association. Scott has done an exemplary job editing Newsbriefs, authoring some incredibly topical and timely articles. Among my favorite lead articles has been The Case of Vivian Maier, and the ensuing battle over the treasure trove of this world class photographer s negatives and prints acquired by auction. Scott has an uncanny ability to bring Intellectual Property Law issues to the forefront of our minds, elucidating how they may dramatically impact our daily lives in counterintuitive ways. Given the fact that Scott Zambo obtained an LLM in Intellectual Property Law, it is evident that he has found an area of the law where he is able to blend his passion and reason. The great news is that Newsbriefs and our association reap the benefits of Scott s hard work. While we are on Newsbriefs, I would be remiss if I did not mention all of our regular columns including (i) Joette Doran on recent developments in Employment Law, (ii) Howard Bernstein on recent decisions in Matrimonial Law, (iii) Joshua Nesser on IRS Practice and Procedure, and (iv) Robert Stoller- On This Day All of these articles, as well as others, make Newsbriefs a first rate legal publication. Whether or not you have already done so, please consider writing an article for submission. One suggestion is to take one of your recent briefs and turn it into an article. I am confident your fellow practitioners will be most appreciative. The committee chairs are the backbone of our organization. At the risk of overlooking many of the committee chairs and co-chairs who do a commendable job, oftentimes year in and year out, I want to take a few moments to highlight some committees that have been absolutely outstanding. First on my list is the Golf Committee. Allen Gabe and his team have done an exceptional job at turning our signature event into a major source of revenue for our association. Brian Heise chairing the wine tasting counterpart to the golf outing helped make this event even more inclusive. Between the wine tasting, newly added bags competition, and craft beer tasting, I am sure there will be something for everyone. If you have not already done so, please mark your calendar for August 19th. The substantive law committees of the NWSBA have really notched up the professionalism of our association. Jay Andrew and Gary Seyring have done a great Newsbriefs - 13 job following the long tradition of informative monthly breakfast meetings for the Estate Planning and Probate Committee. Thomas Winkler, Matt O Connor and John Sprenzel have done an awesome job hosting monthly lunch meetings of the Real Estate Committee. Scott Kuntz stepped up to the plate, calling special meetings of the Debtor/Creditor Committee in response to the 7th Circuit opinion in Suez earlier last year and has consistently convened regular meetings. Robert Ross and Jeff Wilson, convening regular lunch meetings of the Business Law and Intellectual Property Committee, are both much appreciated. Mike Rothman and Gary Newland have done a great job convening regular meetings of the Civil Litigation Committee they co-chair. Anna Bush and Rebecca Zeilenga have consistently hosted outstanding seminars for the Matrimonial Law Committee. They also throw a great Holiday party for the family law bar. Co-chairs Colin Gilbert and Rick Karwaczka coordinated our 19th annual Mock Trial Competition, with 24 teams and over 400 students. No small feat. Joe Vito has done a phenomenal job with Pub Trawlers. Mike Lightfoot, as always, has done a great job with our website and IT needs throughout the year. Nicole Waltz and Janet Maxwell-Wickett ran another great Holiday Party. The NWSBA Foundation was restructured and reinvigorated. Special thanks go to the foundation s outgoing president, Dennis Favaro, and board members, Lee DeWald, Ernie Blomquist, and Marty Glink for their selfless dedication and service. Adra Campbell graciously agreed to stay on as a board member. A special debt of gratitude goes to all of the retiring foundation board members, each of whom is also a past president of the NWSBA. Looking back, I was especially proud and impressed by the NWSBA s response last summer to the Suez opinion, countering an effort by the downtown collection firms to have all of the collection cases transferred downtown. I do believe our entire community, not just our local practitioners, were well served by our successful effort. As far as the most fun, that memory goes to the Destination CLE in Austin, Texas that Nicole Waltz coordinated. Although the year has gone by much quicker than I anticipated, I will have many fond memories to carry with me. The pleasure was all mine.
14 Newsbriefs - 14 Hattie McDaniel was born June 10, 1895, in Wichita, Kansas. She was the youngest of 13 children. Her father, Henry McDonald had been a slave and joined the Union Army when it arrived around the Elk River in Lincoln County, Tennessee in the summer of Hattie s mother, Susan Holbert was also a slave and Henry and Susan would meet at a contraband camp. After the Civil War, Henry was a Baptist minister who played the banjo and performed in minstrel shows. Susan performed as a gospel singer. In 1901, McDaniel and her family moved to Denver, Colorado. McDaniel attended the 24th Street Elementary School, in Denver, where she was one of only two black students in her class. Her natural flair for singing-in church, at school and in her home was apparent early on, and gained her popularity among her classmates. While still in high school, McDaniel started professionally singing, dancing and performing funny skits in minstrel shows. In 1910 she decided to leave school in order to train with her father s minstrel troupe full time. In 1920, she became a member of Professor George Morrison s orchestra, and toured with his and other vaudeville troops for the next five years. In 1925, she was invited to perform on Denver s KOA radio station. The performance gave McDaniel the illustrious distinction of being the first African-American woman to sing on the radio in the United States. In 1931 McDaniel s brother, Sam, and sister, Etta convinced her to move to Los Angeles, where they had managed to procure minor movie roles for themselves. Sam was also a regular on KNX radio show called The Optimistic Do-Nuts. Not long after arriving in L.A., McDaniel had a chance to appear on her brother s radio show. She appeared on radio as Hi-Hat Hattie, a bossy maid who often forgets her place. Her show became extremely popular, but the salary was so low that she had to continue working as a maid. Her first film appearance was in The Golden West (1932) as a maid; her second was in the highly successful Mae West film, I m No Angel (1933), as one of the black maids West interacted with backstage. She received several other uncredited film roles in the 1930 s, often singing in choruses. In 1934, McDaniel joined the Screen Actors Guild (SAG). She began to attract attention and finally landed larger films that began to win her screen credits. Fox Film Corporation put her under contract to appear in The Little Colonel (1935) with Shirley On This Day... By: Robert Stoller Temple, Bill Bojangles Robinson and Lionel Barrymore. Judge Priest (1934), directed by John Ford and starring Will Rogers, was the first film in which she played a major role. She had a leading part in the film and demonstrated her singing talent, including a duet with Rogers. McDaniel and Rogers became friends during filming. McDaniel had a featured role as Queenie in Universal Pictures s 1936 version of Show Boat, starring Irene Dunne, and sang a verse of Can t Help Lovin Dat Man with Dunne, Helen Morgan, Paul Robeson, and the black chorus. The competition to play Mammy in Gone with the Wind (1939) had been almost as stiff as that for Scarlett O Hara. Eleanor Roosevelt wrote to film producer David O. Selznick to ask for her own maid, Elizabeth McDuffie, be given the part. McDaniel did not think she would be chosen because she had earned her reputation as a comic actress. One source claims that Clark Gable recommended the role go to McDaniel, in any case she went to her audition dressed in an authentic maid s uniform, she won the part. As Selznick reviewed the final cut of the film, he discovered something unexpected. While he was pleased with the performances of all the featured players, that of Hattie McDaniel astonished him. Rather than sinking into background, Mammy as interpreted by McDaniel, emerged as one of the film s strongest characters. With an eye towards taking advantage of all promotional opportunities, Selznick planned a gala opening for the film in Atlanta on December 15, Atlanta was abuzz with the arrival of Vivian Leigh, Olivia de Havilland and Clark Gable however city officials proved extremely touchy on the inclusion of the black cast members. The presence of the African American performers at the premiere posed a threat to their long standing Jim Crow traditions, Atlanta s leaders, in particular the mayor s office made it clear: the black players, including Hattie McDaniel were not welcome. At a program a day or two before the film opened, the curtain rose, revealing a re-creation of Tara. On the steps stood the choir of Ebenezer Baptist Church costumed as slaves and singing spirituals. One of the members of choir was Martin Luther King Jr. Gone with the Wind would win 10 Academy awards. Hattie McDaniel won an Academy Award for Best Supporting Actress, making her the first African American to win an Academy Award.
15 Newsbriefs - 15 The premier lawyer service organization for the benefi t of the profession and the public. Thank you for your support
16 Newsbriefs - 16 Northwest Suburban Bar Association Annual Golf Outing In Partnership with the NWSBA Foundation OFFICIAL SPONSORS OF THE 2015 OUTING: Wednesday August 19, :30 AM - Registration & Lunch 12:30 PM - Shotgun Start 2:00 PM - Bags Tournament 3:30 PM - Wine Tasting 5:30 PM - Dinner & Awards Schaumburg Golf Club 401 N. Roselle Road Schaumburg, IL $ per person NWSBA Annual Golf Outing 2015 R.S.V.P. by August 12, 2015 NAME OF GOLFER: I am paying for Myself ($150) I am paying for my foursome ($600)to include the following golfers: Name & Name & Name & NOT A GOLFER? I would like to attend the NWSBA Golf Outing DINNER ONLY ($50) Sign me up for the BAGS TOURNAMENT & CRAFT BEER TASTING ($15) Sign me up for WINE TASTING Only ($25) Sign me up for BAGS TOURNAMENT, BEER TASTING, & WINE TASTING ($40) I would like to participate in ALL OF THE ABOVE ($85) Name Credit Card # MC VISA (circle one) Billing Address on Card Exp. Security Code (Required) Checks and Registration Forms can be mailed to: NWSBA, 800 E. Northwest Highway, Palatine, IL 60074
17 Newsbriefs - 17 NWSBA Annual Golf Outing 2015 The Northwest Suburban Bar Association in Partnership with the NWSBA Foundation 2015 Golf Outing Sponsorship Form Wednesday, August 19, 2015 Schaumburg Golf Club Please submit this form to the NWSBA office by August 1, 2015 Please check the sponsorship package of your choice. Package A - $250 per sponsor (one or more per tee or green) Name displayed on a 24 x24 sign at tee or green - Multiple Sponsors per Hole Recognition of Sponsorship During Dinner, in Program Booklet & in Newsbriefs Package B - $500 per sponsor (exclusive for tee & green of choice) Name displayed on a 24 x24 sign at tee or green - One Sponsor Per Hole Option to have a representative present at hole to meet and greet golfers Opportunity to distribute marketing materials/giveaways Recognition of Sponsorship During Dinner, in Program Booklet & in Newsbriefs Premier Specialty Hole - $350 per sponsor PLUS cost of materials One sponsor per hole. Contact the Association office for details. Recognition of Sponsorship During Dinner, in Program Booklet & in Newsbriefs Raffle Prize Donation (Value of $250 or more) Opportunity to draw winning raffle ticket and address attendees Recognition of Sponsorship During Dinner, in Program Booklet & in Newsbriefs For any sponsors wishing to attend the dinner portion, there will be an additional $50.00 charge per person Make checks payable to NWSBA, 800 E. Northwest Highway, Suite 502, Palatine, IL Phone: / Fax: / Sponsor Name: Contact Name: Address: Address: Phone: Fax: OFFICIAL SPONSORS OF THE 2015 OUTING:
18 Newsbriefs - 18 CHILD CUSTODY - UCCJEA V. FORUM STATE CROUCH V. SMICK, 2014 IL App (5th) (Dec. 23, 2014) The parties were divorced in Madison County, Illinois. Petitioner was awarded sole custody of their two children and Respondent was awarded visitation rights. Petitioner was granted leave to move with the children to the State of California. A few years later, Petitioner remarried a man in California and filed a petition in San Diego to terminate Respondent s parental rights and her new husband filed a petition to adopt the two children of Petitioner s first marriage. Respondent filed a motion to have the case heard in Madison County, Illinois because Illinois still had jurisdiction of the custody issue. The Illinois judge and the California judge agreed that Illinois had continuing jurisdiction of the case but the Illinois judge applied California law in arriving at a decision to terminate the parental rights of Respondent. Respondent appealed and the Appellate Court reversed the trial court stating that the UCCJA, now the UCCJEA was enacted to prevent forum shopping and the jurisdiction should apply the law of that state. The case was remanded to give Petitioner an opportunity to file her petition to terminate Respondent s parental rights in the Illinois Court and the hearing on this new petition should apply Illinois law. CHILD SUPPORT - SUB-CHAPTER S EARNINGS IRMO DEEPALAKSHMI MOORTHY V. CHARNNA MALLIK ARJUNA, 2015, IL App (1st) Matrimonial Law Committee By: Howard Bernstein petition for an increase in child support alleging that the child was eight years older and required additional support in addition to Respondent s increase in income. At the hearing on the petition, Respondent s K-1 tax forms indicated he had income in six figures in addition to a salary of $50, Respondent and his expert witness testified that Respondent had purchased 91% of a company in 2007 and that all of the money listed on the K-1 forms was not take home income but was retained by the company and the tax was paid through a company bank account. Respondent testified he had remarried, had a child and lived modestly on an income (salary) of $50, Respondent further testified the K-1 money was necessary to cover the salaries of 5 employees and taxes. Petitioner did not offer any testimony to rebut Respondent s evidence that the retained earnings were necessary and appropriate business actions and were not excessive. The trial court, observing decisions from other jurisdictions, held it would be unfair to include retained corporate profits to the salary of a shareholder when it is necessary for the corporation to keep profits for future business growth. The trial court stated that Respondent, who owned 91% of the corporation shares, had a fiduciary obligation to the 9 per cent minority shareholder and demonstrated legitimate reasons for not distributing the company s earnings. The Appellate Court noted that these cases must be decided on a case-by-case fact specific analysis to determine whether retained earnings of a corporation should be imparted to the sole or majority shareholder. While the Appellate Court held this was a case of first impression, there are several cases that have held the retained corporate profits are included in a shareholder s income where the shareholder has the authority to determine whether or not to distribute corporate earnings. The parties were divorced and Petitioner was awarded sole custody of the parties minor child and child support was fixed at 20% of Respondent s income of $45, Eight years later, Petitioner filed a Continued on Next Page
19 Continued From Previous Page CONTRIBUTION FOR COLLEGE EXPENSES IRMO SARACCO, No IL APP (3rd) (Nov. 25, 2014) The parties were divorced in The judgment was modified in 2010 requiring Respondent to pay 60% of their eldest child s college expenses. Three years later, Respondent (Mother) filed a petition to modify or terminate her obligation to pay for their son s college expenses alleging: 1. Her income was $80,000.00; 2. Petitioner s disability income of $23, increased by $11, for his duty to support their minor daughter; 3. Their son s college grades were average, not better; 4. Their son did not get along with her; 5. Their son refused to get a job to contribute to the expenses, although he had applied for all loans, scholarships, grants, etc. The trial court held that taking into account the factors, the financial resources of both parents, the child support being paid and a relative equal income of the parties, the Respondent s obligation to contribute to the college expenses of their son was terminated. Petitioner appealed and the trial court s decision was reversed with instructions to reinstate the original order for contribution. The Appellate Court ruled that none of the allegations contributed substantial changes in circumstances that would warrant a modification or termination of Respondent s obligations. REMOVAL OF CHILD - INJUNCTIVE RELIEF RYAN HEDRICH v. ASHLEY MACK, No IL App. (2d) (Feb. 17, 2015) The parties were not married to each other but were living together with the 18 month old child. One day, Respondent, using Petitioner s auto, took the minor child to the State of Minnesota, stating she would return to Illinois in two days. On the day after Respondent left, her father returned the auto to Petitioner advising Petitioner that Respondent was not returning to Illinois with their minor daughter. Three days later, Petitioner filed a petition to establish paternity of their child. The parties stipulated that Petitioner was the biological father of their child. Fifteen days after filing his petition to establish paternity, Petitioner filed Newsbriefs - 19 a petition for injunctive relief pursuant to 750 ILCS 45/13.5 seeking to have Respondent return their child to Illinois and enjoin Respondent from further removing the child from Illinois until all issues in his pending petitions were resolved. Respondent filed a motion for directed finding against Petitioner s s emergency petition seeking to require her return to Illinois with their child. The trial court granted Respondent s motion stating that the only right that can be protected under 750 ILCS 45/13/5 is to enjoin removal, not to return a child when there is no case pending. Petitioner appealed and the Appellate Court reversed the trial court stating that nothing in Section 13.5 requires that a petition seeking to enjoin must be filled prior to the child s actual removal. BREACH OF PROMISE ATUM ADKINS v. ERIC EDWARDS No IL App (5th) (Feb. 17, 2015) Plaintiff and Defendant were engaged to be married. In anticipation of the wedding, Plaintiff incurred costs for purchases and non-refundable deposit in anticipation of the wedding. Shortly prior to the wedding, Plaintiff learned that Defendant was having intimate relations with a co-worker. Plaintiff filed suit alleging that he breached his promise to marry her and she had actual out-of-pocket expenses of approximately $10, Defendant filed a motion to dismiss the action because all of the alleged expenses incurred by Plaintiff were actually paid for by Plaintiff s parents and were a gift to Plaintiff. The trial court granted the Defendant s motion to dismiss and Plaintiff appealed. The Appellate Court reversed the trial court for two reasons. First, a motion to dismiss admits all facts are well pleaded and a motion to dismiss should not be granted unless it is apparent that no set of facts can be proved to support Plaintiff s claim. Second, a breach of promise action can be maintained for actual financial costs that were expended. It doesn t matter that the expenses in this case were paid by Plaintiff s parents. Plaintiff s is not entitled to punitive damages or for pain and suffering. Howard Bernstein is a partner at Schwartz, Wolf & Bernstein LLP, in Buffalo Grove and specializes in Domestic Relations and Family Law, Bankruptcy and Real Estate.
20 Newsbriefs - 20 By: Crystal Bush Please welcome the following new members: MICHAEL P. BARTOW Michael is an attorney with the Winkler Group, LLC where he practices in the areas of estate and tax planning, business and transactional law. Michael received his Law degree in 2014 from the University of Illinois College of Law. While in law school he was a member of the Order of the Coif and received the J. Nelson Young Award for outstanding performance in Tax Law. He also received a CALI Award for the highest grade in decedent s estates and trusts, as well as a CALI award for antitrust white collar crime and securitized litigation. Michael received his undergraduate degree from Loyola University in finance in Michael always had an interest in finance but it wasn t until law school that he discovered he had a natural talent at tax law. What Michael likes about his practice area is that tax planning is not a cookie cutter area of the law, that is, you are constantly learning new things. For example, with a closely held business, he enjoys crafting solutions to tax problems with a view towards future events while at the same time, considering family dynamics. A lot of his clients are fairly wealthy self-made business owners, who have built substantial companies over one or two generations. Now they face significant tax issues that require sophisticated tax planning. He also provides advice on all types of commercial and business transactions from buy-sell agreements to assistance with corporate books and records. He credits his success in law school to simply showing up and working hard. He also had a couple of key professors that facilitated his interest in tax law. He credits the partner at the firm where he currently works, as being a great mentor. He would advise a law student to find a subject that piques their interest as early as possible. This can make the law school experience more exciting. Michael was fortunate in New & Noteworthy that he discovered a passion for tax law early. What sets him apart as an attorney is his attention to detail and proclivity to tax law. He finds it easy to grasp relatively complex matters. His biggest challenge as a lawyer is that lay people have a narrow vision of what an attorney is. For instance most people perceive an attorney as strictly a litigator, whereas transactional attorneys are somewhat off their radar. When he is not practicing law he enjoys being outdoors, as well as playing tennis, football and disc golf. KRISTIN EDMONDS-FLANAGAN Kristen is an associate attorney at The Law Office of Miriam Cooper. She practices in the areas of domestic relations and real estate law. Kristen received her law degree from John Marshall in May of She received her undergraduate degree from Purdue University in political science and sociology in Kristen has always had an interest in the law, and especially domestic relations because her father is a domestic relations attorney. In fact, she initially worked with her father after she graduated from law school. Kristen also has an uncle who is an attorney. Law clearly runs in her family, as she also has a brother who is a law student at DePaul. Still, in order to make certain that a career in law was a good fit for her, Kristen attended the College of DuPage where she obtained her paralegal certificate. She then worked as a paralegal for a couple of years prior to law school. What Kristen likes most about the practice of law, and her area in particular, is the ability to help people. She is an empathetic and caring attorney, which is often needed in the field of domestic relations. For her, money is not a motivating factor, and she prefers to work collaboratively when possible. Continued on Page 23