Detroit Business Law

Religion and Civil Rights Act Exception

The Elliott-Larsen Civil Rights Act (“CRA”), which prohibits discrimination on the basis of race, sex, religion, etc., does not apply to “ministerial” employees of religious organizations.  The Michigan Court of Appeals recently ruled that if an employee’s position can be characterized as ministerial, then this employee falls under the ministerial exception and cannot file a discrimination or retaliation claim under the CRA.  In Weishuhn v. Catholic Diocese of Lansing (2010), a teacher filed a claim under the CRA for retaliatory discharge. The plaintiff was a teacher at a Catholic school, and taught more mathematics classes than religious classes. However, because her duties at the school included religious activities, and because she admitted to incorporating religion into everything she taught, her position was found by the Court of Appeals to be ministerial in nature. As a result, a complaint could not be sustained under the CRA. The Court of Appeals affirmed the dismissal of her lawsuit.

Click here for a PDF copy of the Court’s Decision.

This article was written by Mark S. Demorest, Managing Member of Demorest Law Firm.

New Energy Credits Available on your 2009 Michigan Tax Return

There are two new energy credits available to eligible taxpayers on their 2009, 2010 & 2011 Michigan tax returns. I am frankly shocked that these two credits where maintained during the budget cuts that came out of Lansing in October. In fact the state would have been far better off taking the tax monies from these credits and transferring them to its national award wining “Pure Michigan” advertising campaign.

Home Improvement/Appliance Credit

The credit is equal to 10% of EPA energy star certified appliances; the maximum credit is $75 for single taxpayers and $150 for married tax payers. This credit can be claimed on Michigan form 4764.

Energy Cost Recovery Surcharge Credit:

This non-refundable credit is available to both homeowners and renters who pay electric bills and is capped at $9 per meter in 2009. This credit can be claimed on Michigan Schedule 2.

For more information on these credits, including eligibility and income limitations please visit click here to visit the Michigan.gov taxes page.

This article was written by Jay Kossen, CPA at Numerico, PC. Click here to view Numerico’s website.

When is a License Fee Really an Illegal Tax?

Faced with tighter budgets, Michigan cities and townships are looking for additional ways to raise revenue.  Due to the Headlee Amendment, property tax increases are severely restricted.   However, a municipality may establish or increase a fee without violating the Headlee Amendment.  The question is:  Where is the dividing line between a permissible fee and an illegal tax increase?

A tax is solely to raise revenue.   A permissible fee (typically a permit or license fee) has three characteristics: (a) the fee serves a regulatory purpose; (b) the amount of the fee is proportionate to the necessary costs for the municipality to provide that service, and (c) payment of the fee is voluntary.

Several years ago, we were involved in litigation that resulted in the Wayne County Circuit Court declaring a license fee imposed by Sumpter Township illegal.  The Court decided that the fee for a sand excavation license was really being used by the Township to discourage additional landfills from being located in the Township, and that the amount of the fee was excessive in relationship to the Township’s costs to regulate and inspect sand excavation sites.  The Ordinance was set aside.

On January 21, 2010, the Michigan Court of Appeals issued its decision in Wolf v City of Detroit.    The plaintiff claimed that a new Solid Waste Inspection Fee adopted by the City of Detroit was really just a disguised tax.  The inspection fee was imposed on properties that did not use the City’s Department of Public Works for solid waste pick-up.  The Court of Appeals analyzed the three criteria for a fee and decided that the fee was permissible.   A copy of the Court of Appeals’ decision is attached.

Whenever a municipality imposes a new fee, or dramatically increases the amount of a fee, then one should analyze whether the three criteria for a fee are met.  If not, the fee may be challenged as a hidden tax.

Click here to download a PDF copy of the Court of Appeals Decision.

This article was written by Mark S. Demorest, Managing Member of Demorest Law Firm.

Employee Time Theft – You Can’t Afford To Ignore It

Do you have an employee who is always late? One who makes or receives personal phone calls daily or one who sneaks out a couple of minutes early on a regular basis? What about an associate that is on their cell phone texting through out the day or who clicks off the computer screen as soon as you walk into their office? If you do you have an employee that is stealing time pure and simple.

Have you ever stopped to consider what these types of employee time theft are costing you? An employee who robs you of 5 minutes per day 5 days per week is stealing the equivalent of approximately 2.8 days per year assuming an 8 hour work day.

If you pay an employee $15 an hour and that employee is stealing 2.8 days per year, it’s costing you $396 per year considering a factor for payroll taxes and employee fringe benefits.

If your employee steals an hour a day 5 days per week the cost of the theft has just skyrocketed to 33 days per year and $4,680 again considering a factor for payroll taxes and employee fringe benefits.

How can you control expensive employee time theft? Clearly state policies in the personnel guide and have employees sign it to be sure they have read the guide and understand the policies. The guide should include policies on personal phone calls, cell phone use, internet use and working hours as well as policy relating to tardiness.

Let your employees know how much you are willing to tolerate—you can disallow personal phone calls except in the case of an emergency. Talk to “tardiness” offenders—tell them their pay will be docked or worse—remind them that everyone in the office is a professional, and professionals don’t punch a time clock. Make it clear that cell phone use of any sort or “surfing the net” will not be tolerated UNLESS it is business related.

The key is to be aware of the situation, bring it to the employee’s attention, specify the ramifications should they fail to modify their activities, and consistently enforce the penalty you have set. If it’s clearly a matter of policy, you take the emotion out of your reaction and simply make a good business decision.

This article was written by Gary Field, CPA at Numerico, PC. Click here to view Numerico’s website.

Update on the Asian Carp Dispute

On December 23, we posted an article about the Lake Michigan Asian carp dispute.  In December, Michigan Attorney General Mike Cox asked the United States Supreme Court to close all waterways from Illinois leading to Lake Michigan, to prevent Asian carp from reaching the Great Lakes.

Last week, the Supreme Court refused to immediately close the waterways.  However, the Court did not explain the reasons for its ruling, nor did it indicate whether it would rule to close the waterways at some point.

Just hours after the Court issued its ruling, it was announced that Asian carp DNA had been detected in Calumet Harbor, part of Lake Michigan near Chicago.  It is unclear whether this finding will influence the Supreme Court, or cause it to reconsider its prior ruling.

Michigan has been joined in its fight by Ohio, Indiana, Wisconsin, Minnesota, Pennsylvania, and New York (all the Great Lakes border states except Illinois), as well as Ontario.  President Obama has invited the governors of these states to a summit to be held next month regarding these issues.

Various members of Congress are also looking at possible solutions for the Asian carp problem.  A bipartisan group is looking at measures to poison the Asian carp; to strengthen an electronic barrier in the Chicago waterways; and other options.  Additionally, U.S. Rep. Dave Camp (Midland), introduced a bill called the Carp Act, which would close the waterways, and strengthen protections against Asian carp within the waterways, without the Supreme Court’s involvement.

Not surprisingly, the shipping industry opposes the closure of the waterways leading from Chicago to Lake Michigan.  At this point, it appears to be up to the Supreme Court, Congress, and/or the President to decide whether protecting the Great Lakes from Asian carp is more important than allowing commercial shipping between the Great Lakes and the Mississippi River (through Chicago).

Stay tuned for further updates.  Also, see these articles in The Detroit News for more information: http://bit.ly/cfUu7V, http://bit.ly/83fqws, http://bit.ly/6WoS1, and http://bit.ly/aSDOEd.

This article was written by Melissa L. Demorest, Associate at Demorest Law Firm.

Important Supreme Court Decision on Corporate Free Speech

Last week, the Supreme Court issued an important decision on the free speech rights of corporations.  The law has long recognized that, just like individuals, corporations are protected by the First Amendment to the Constitution.  However, in 1990 (Austin v Michigan Chamber of Commerce) and in subsequent decisions, the Supreme Court had ruled that the government may restrict corporate expenditures to support or oppose political candidates.   The Supreme Court overruled those earlier decisions in Citizens United v Federal Election Commission.  Justice Kennedy wrote:  “The Government may regulate corporate political speech through disclaimer requirements, but it may not suppress that speech altogether.”  In other words, the government may require that the sponsor of the advertisement be disclosed, and whether it was approved by a particular candidate.  However, the government may not prohibit or limit the amount of money spent by a corporation to support or oppose a particular candidate or issue.

Corporations previously used political action committees (PAC’s) to get involved in political activities.  Based on the Supreme Court’s decision, the use of PAC’s may no longer be necessary.

Click here to download a PDF copy of the Supreme Court Decision.

This article was written by Mark S. Demorest, Managing Member of Demorest Law Firm.

IRS Proposes New Rules for Tax Preparers

The IRS has recently announced a new set of proposed rules for tax preparers. If enacted, the new rules would become effective January 1, 2011.  According to the proposed rules, all paid tax preparers would be required to:

1. Register with the IRS and obtain a preparer tax identification number. Once a preparer is registered, the IRS will be able to verify that the preparer has filed his or her personal tax returns and business and employment tax returns, along with paying the taxes on those returns. If the paid tax preparer has not filed those returns timely or paid the taxes due, penalties can be imposed by the IRS, including a prohibition on filing tax returns for clients.

2. Submit to a competency test. This rule does not apply to attorneys and certified public accountants that are active and in good standing with their licensing agencies.

3. Obtain continuing professional education. Again this rule does not apply to the attorneys and certified public accountants of Demorest Law Firm, PLLC, or Numerico, P.C. since we have our own requirements from the Michigan Bar Association and the Michigan Association of Certified Public Accountants.

In my opinion, the proposed new rules are long overdue. Currently, only certified public accountants, attorneys and enrolled agents have standards that are implemented by their individual associations. For far too long, tax preparers have been able to put a sign up that says Joe’s Tax Service, yet they were not required to have any formal training, testing or registration requirements. The IRS is beginning to understand the complexities and dangers involved in regulating an industry with certain unregulated components.

Hopefully these proposed regulations will add a serious deterrent to the fraudulent or incompetent preparers that we hear about far too often in stories from individual taxpayers such as “I don’t know why I got such a large refund, my preparer just had me sign the return and I didn’t get all of the reported refund.” “ I didn’t know that I hadn’t been filing returns, I thought my preparer had already filed them.” “What do you mean that I have not paid my employment taxes for my business or filed my employment tax forms? I gave my paid tax preparer access to my Company’s bank account and electronic withdrawals for the employment taxes were taken from my bank account.”

To read the IRS proposed regulations please click here.

How to Succeed Where Others Have Failed

Stop anyone you meet and ask “what’s the biggest mistake a new business owner can make?”  Odds are they won’t know. A more insightful respondent (perhaps one who knows from personal experience) might mention “undercapitalization” or “lack of cash flow”.  They’re usually right. But the truth is, the biggest mistake is usually not one but a combination of the following maladies: “being overly optimistic when projecting revenue”, “having a weak (or nonexistent) business plan”, “pricing problems”, “a failure to seek professional advice”, “rushing to market”, “insufficient experience”… the list goes on.

On the other hand, ask them what makes an entrepreneur succeed, and you should hear statements like “owner’s self-confidence”, ”emphasis on service (quality) rather than price”, “working hard”, ”luck”, “devoting full time to the business”, “industry expertise”, and “making a significant capital investment”…

The point is, to succeed, you need not only the desire, but a well-rounded understanding of the pros, the cons, and how to exploit or avoid them.

A prudent business owner does his homework by considering the possibilities mentioned earlier and determining, in advance of their occurrence, how to avoid the “pitfalls” and ensure success. One of the keys to success is turning to experts for professional advice.

If you make a practice of turning to objective professionals early on in the planning process, you’ll increase your likelihood of finding the avenues which will lead to your success.  For example, a good banker can be very helpful in identifying credit needs, an insurance agent in identifying risks that need covering, an attorney concluding on the appropriate business form (sole proprietor, partnership, LLC and “C or S” corporations) and CPA can advise as to cash flow needs, accounts receivable control, tax planning direction and much, much more. Consider bringing your local banker, insurance agent, attorney and CPA on board sooner than later. By doing so what you will find is you can focus on what you do best – managing your business – knowing you’ve got a team working with you to handle matters outside your realm of expertise.

This article was written by Gary Field, CPA at Numerico, PC. Click here to view Numerico’s website.

Effective Cross Default Provisions

Many contracts have default provisions.  These provisions set forth what actions or inaction must occur for a party to default under the Agreement and for the non-defaulting party to be entitled to recover damages and/or terminate that particular Agreement.

In some circumstances, and often in the context of a loan, parties may enter into multiple agreements with one another. When there are multiple agreements between the same parties, one party may want to negotiate the inclusion of  “cross default” provisions in those agreements.  A cross default provision provides that a party’s default under one agreement triggers an automatic default of all of the other agreements between the parties. Banks or Lenders often include a cross default provision in their loan documents to protect their financial interests.  Once the cross default provision is invoked, the defaulting party is not likely to have many options for recourse.

In order to be effective, the cross default provision must be included in each of the agreements subject to the cross default. Eagle Ridge LLC v Albert Homes LLC, 2009 Mich App, LEXIS 2382 (November 17, 2009).  In the recent case of Eagle Ridge LLC v Albert Homes LLC, the Michigan Court of Appeals refused to enforce a cross default provision that was found in only one of two simultaneously signed agreements.

The Michigan Court of Appeals used basic contract principals to support its decision.  Quoting Randolph v Reisig, 272 Mich App 331 (2006), the Court found that “an unambiguous contractual provision is reflective of the parties’ intent as a matter of law, and if the language of the contract is unambiguous, we construe and enforce the contract as written.”  Therefore, because one of the agreements at issue did not contain a cross default provision, the Court concluded that the parties must not have intended that the agreement be subject to a cross default provision.

This article was written by Natalie C. Najarian, Associate at Demorest Law Firm.

Save Yourself

Even smart people make mistakes. Many people who have picture perfect careers are taking photographs with the lens cap on when it comes to their personal finances.

Or, if they have the lens cap off, they are too busy taking pictures to pay enough attention to the subject matter – their personal financial affairs. Either way, the result is – they make mistakes – big mistakes that can cost them a great deal of money.

AMONG THE WORST MONEY MISTAKES IS:

*NOT SETTING GOALS. Rather than saving what is left after paying the bills (which for many may be close to nothing) make a commitment to yourself to save a specific amount of money – and then do it.

The first thing to do is set easily attainable short-term goals that are going to have a positive outcome. For example, decide how much money you want to save in one year and cut it up into bite size pieces.  Allocate a fixed amount of your net income as savings and pay yourself first. Use the remaining cash to figure your personal budget. Be realistic so you don’t fall into the trap of saying “since I can’t save xxx dollars, I might as well not save any…” and “… I don’t know where all my money goes, but I don’t have any left for savings…”

Be successful in reaching your savings goal by creating a workable savings plan. Take your annual savings goal and divide by twelve. Then promise yourself that every month you will save that amount. Allow yourself some flexibility while guaranteeing your success. If you get paid bi-weekly, plan to save an equal amount out of every check, while allowing for minor setbacks – promise yourself you will make up any deficiency from one paycheck by the end of the month – to reach your monthly savings goal.

The key is to set realistic, attainable goals, make them manageable, and keep a promise to yourself. Once you get started on a positive savings trend you won’t want to quit, and before you know it, you will have reached your goal… just in time to set another one.

This article was written by Gary Field, CPA at Numerico, PC. Click here to view Numerico’s website.