For purposes of the Bankruptcy Code the classifications for tax debts are: Secured tax claims, General Unsecured tax claims, Priority tax claims, Administrative  claim taxes, Trust Fund taxes, and Penalty tax claims.  Most tax debts are classified as Priority tax claims as provided in 11 U.S.C. 507(a)(8) and are non-dischargeable.  Unsecured tax claims, however, lack the Secured or Priority Claim status and are generally dischargeable in bankruptcy.   

If Priority tax claims are non-dischargeable and Unsecured tax claims may be dischargeable, the obvious question becomes - “how does one go about reclassifying an IRS tax debt from a Priority tax claim to an Unsecured tax claim?”  

In broad-stroked terms the answer is - “with filed income tax returns and the passage of time.”  Unfortunately, exceptions to dischargability are not narrowly drafted statutes, and it is definitely not as simple as that.  On the other hand, and contrary to what you may have heard, it not impossible and sometimes it is as simple as that. 

More specifically, and in layman’s terms, listed below is a brief description of what is required for the dischargability of IRS taxes in Chapter 7 Bankruptcy:

• “The three year rule”
  Income tax returns must have been due at least three years prior to filing the bankruptcy petition.  The three year period starts when the taxes are actually due on April 15, and not the end of the calendar year.  Additionally, if an extension is granted, the due date is continued until the final day of the extension.
• “The 240-day rule”
  Any subsequent assessments within 240 days of filing the petition remain Priority Claims and are not dischargeable. This period of time is tolled while an offer-in-compromise is pending, plus 30 days.
• Income tax debts remain Priority Claims and non-dischargeable if the tax is assessable and the tax arises from:

Unfiled tax returns.  (The tax return must have been filed for the claim to be dischargeable. A return may be deemed as filed when a debtor met with the IRS, calculated the tax liability and agreed to the amounts in a written, signed document, delivered to the IRS).

A delinquent tax return filed within 2 years of the petition.  (The return must have been filed more than 2 years prior to filing the petition).

A fraudulent tax return.

The conditions above are inclusive and each condition must be satisfied for the IRS tax claim to be reclassified from Priority to Unsecured and become dischargeable in Chapter 7 Bankruptcy.     

Filing and completing a Chapter 7 Bankruptcy from petition to discharge can be complicated and should not be taken lightly.  Attention must be paid to every detail as the slightest mistake can cause the case to be dismissed or worse, assets attached and liquidated.  If you are presently considering filing bankruptcy it is strongly recommended that you seek the expertise of an experienced bankruptcy attorney. 

At the Spear Law Firm,  our lawyers are experienced in handling Chapter 7 Bankruptcies and can assist you with these complicated matters.  Our attonreys are knowledgeable about Bankruptcy Laws and the subtle differences between California laws and Federal laws. 

For more information, or to discuss your specific case, contact our attorneys at the Spear Law Firm of the San Fernando Valley in Tarzana today.  Call our Attorneys at (877) 327-5291 / 8-SPEARLAW-1.

The Ninth Circuit found that tattooing is an expressive activity and thus afforded the full protection of the first amendment, meaning that a blanket ban on tattoo parlors is a blanket ban on speech. Judge Jay Bybee wrote the opinion for the three judge panel. “We hold that tattooing is purely expressive activity fully protected by the First Amendment, and that a total ban on such activity is not a reasonable ‘time, place, or manner’ restriction.” Put simply, the crux of the court’s decision was whether the city’s health concerns were great enough to justify a total ban on speech.

For there to be a reasonable “time, place, or manner” restriction on speech, the restriction must serve an important objective (not involving the suppression of speech), that the law is narrowly tailored, and that there remain ample alternative means of communication. In the case at hand it seems pretty clear that the law is not narrowly tailored since it bans all speech and there are no alternative means of communication. However, this case is interesting because the ruling by the Ninth Circuit contradicts numerous other circuit courts that have been faced with an almost identical set of facts. The City of Hermosa Beach indicated that it will analyze the ruling before deciding to appeal, but considering the US Supreme Courts history of accepting free speech appeals and having a considerable split amongst the circuit courts, it seems likely the court would grant certiorari.

that have been faced with an almost identical set of facts. The City of Hermosa Beach indicated that it will analyze the ruling before dec

Your insurance company will begin paying benefits two weeks after submission of an application for PIP benefits so it is paramount that the PIP application is filled out as soon as possible after the accident has occurred. Once the application is approved, medical and other services can be billed directly to the insurer.

One thing to keep in mind is the requirement that the services or treatment must be related to the accident in order to receive payment from PIP. For example, you can receive medical treatment for an injury like PTSD, but if there is no evidence that the PTSD was caused by the accident then your insurer can rightfully cut off benefits. The insurer will make this determination by hiring a medical examiner to determine if the injuries claimed are a result of the accident.

$15,000 is the minimum policy amount an insurer can provide in personal injury protection benefits in Oregon. This number can greatly vary on a state by state basis. There is also a time limit on your PIP benefits, generally one year. So your insurer will pay for accident related expenses until the time limit is up, or you exhaust the policy amount, whichever comes first. As noted, the insurer can also cut-off benefits earlier based on a medical examination. benefits in Oregon. This number can greatly vary on a state by state basis. There is also a time limit on your PIP benefits, generally one year. So your insurer will pay for accident related expenses until the time limit is up, or you exhaust the policy amount, whichever comes first. As noted, the insurer can also cut-off benefi

Upon an arrest for a DUI in California, two separate legal cases are immediately set in to motion.  Most people are aware of the brutal legal battle ahead of them in the criminal court system, but what is not always anticipated it the endless red tape and jumping through hoops required by the Department of Motor Vehicles (DMV).  While both cases are very serious, the DMV case is far more time intensive. 

In California, a criminal case filed against a DUI defendant includes two separate statutes: California Vehicle Code Section 23152 (a), and Vehicle Code Section 23152 (b). 

The first statute concentrates on whether the defendant was under the influence of alcohol or drugs to the extent that they are “unable to drive their car with the same caution characteristic of a sober person, of ordinary prudence, under the same or similar circumstances.” This is the legal standard used for under the influence of alcohol or “DUI” in California courts.

The second statute, or the “per se” count focuses on whether the driver’s blood alcohol content (BAC) was .08 percent or greater.

Motorists arrested for drunk driving DUI/DWI must act quickly. Your license will be confiscated at the scene and you will be given a temporary 30-day license.  You have only 10 days from the date of their DUI/DWI arrest to request a hearing with the DMV to regain your driving privileges.  Additionally, drivers licensed in other states who are arrested in California for DUI / DWI must request a California DMV hearing to protect their driving privileges.

If you are from out-of-state you cannot hide the California DUI from you resident state.  California participates in the Interstate Driver’s License Compact.  The compact is an agreement between 45 states requiring each state to share information about DUI or DWI convictions and driver’s license actions with the other member states.

California has a DUI/DWI “washout” period of 10 years, calculated from arrest date to arrest date. This means that anyone arrested for drunk or drug driving within 10 years of the last arrest date will be charged with a second offense, with increased penalties and punishment.

The punishment in court for additional drunk driving convictions within the same 10 year period is considerably harsher than for the first offense.  Multiple-offense drunk driving convictions have mandatory jail time, an 18-month alcohol/drug education program, a required ignition interlock device and often more.

As you may be aware, the consequences you face from a California DUI are overwhelming.  It is imperative to retain an affordable and experienced DUI lawyer when convicted with DUI or DWI in California.  If you have questions regarding a DUI arrest contact the Spear Law Firm today and schedule a free consultation to discuss your particular case.  Call (877) 327-5291 / 8-SPEARLAW-1.

Premarital or prenuptial agreements are controlled by the California Premarital Agreement Act (CPAA).  The CPAA was enacted in 1988 with the primary purpose of ensuring that premarital agreements were executed and enforced in a fair and equitable manner.

The requirements for a properly executed premarital agreement are:

        1.      In writing and signed by all parties.
        2.     The agreement must be entered into voluntarily. 

For an agreement to be voluntary the person waiving their rights must have;

(a)   independent representation of counsel or explicitly waive representation;
(b)   at least seven days to review the agreement before signing;
(c)   the agreement may not be entered into under fraud, duress, or undue influence; 
(d)   Additional relevant factors may also be considered by the Court. 

         3.     The agreement must not be unconscionable at the time of execution. 

For an agreement to be unconscionable the person waiving their rights must show that before the execution of the agreement;

(a)   they were not provided fair, reasonable and full disclosure of all property and obligations;
(b)   they did not expressly and in writing waive any right of disclosure;
(c)   they did not have, or reasonably could have had, adequate knowledge of the property or financial obligations. 

Additionally, a Court will not enforce an agreement that it considers offensive to justice, encourages divorce, or if the lack of spousal support would force a party to receive public assistance.

If you are presently in contemplation of marriage and are seriously considering a premarital or prenuptial agreement it is strongly recommended that you seek the expertise of an experienced attorney. 

At the Spear Law Firm we can assist you with these complicated matters.  We are knowledgeable of all laws and aspects of the California Premarital Agreement Act and the subtle differences between California and sister state laws.  For more information, contact the Spear Law Firm of the San Fernando Valley in Tarzana today at (877) 327-5291 / 8-SPEARLAW-1.

Children and former spouses are afforded a protected status in our society.  Whereas child support obligations and spousal support obligations can also be paralyzing, the public policy of protecting children and former spouses far outweighs the good achieved by allowing the debt to be discharged in bankruptcy.

Children and former spouses maintain an entirely different relationship with a debtor than a typical creditor.  Generally creditors enter into relationships with debtors voluntarily and with full knowledge of the consequences if the debtor fails to satisfy the debt.   Child Support, on the other hand, is designed for the welfare of the debtor’s child, and society puts great emphasis in providing an atmosphere conducive for their development.  Additionally, Spousal Support is designed to maintain the standard of living for each spouse established during the marriage with the objective that they become self-supporting within a reasonable period of time.

A correlated issue to the non-dischargeability of support payments under Chapter 7 relates to Attorney’s Fees.  Though some debts in family law matters may be dischargeable, attorney’s fees earned while establishing or enforcing spousal and child support, or if designated by the court as relating to support payments, are also not dischargeable in Chapter 7 bankruptcy.

If you have a question regarding Bankruptcy or Family Law in Los Angeles, please contact us at (877) 327-5291 / 8-SPEARLAW-1 or visit our website at www.spearlaw.com and we will put you in contact with one of our experienced lawyers.   After you have spoken with one of our Los Angeles attorneys we will schedule you with a free consultation in our Tarzana office.

Our Lawyers will thoroughly discuss all aspects of your case and assist you with any issues.  If you have a bankruptcy question regarding Chapter 7, Chapter 13, Lien Avoidance or Stripping, or a family law question regarding Divorce, Spousal Support, Child Support, Custody, or Modification, we can help.  Call us immediately for a free consultation and evaluation.