Written by James R. Hinchliff
Starting a business? Thinking about starting a business?
Are you going to have employees?
Are you going to have other investors?
How do you pay business taxes?
How do you form an entity?
These are just a few of the questions that every start-up business should answer and prepare accordingly through planning and legal documentation.
Every business needs a plan, and a person or group willing to execute it. One of the most important things that a startup business can do is seek out advice on how to get a business formed, what documentation is needed to do so, what liabilities a new business faces, and what a new business needs to be prepared for. These are all important elements of a successful new business plan.
Every decision made by a business is important, but none may be as important as choice of entity or type of business on the long-term federal income tax attributes the business retains. In 1997, the Internal Revenue service established a “check-the-box” system for choice of entity through Treasury Regulations. The Regulations apply to entities formed under Iowa law, including corporations, general partnerships, limited partnerships, and limited liability companies. For federal income taxation purposes, entities formed under state law are generally treated as C Corporations, S Corporations, Partnerships, or Disregarded Entities.
Corporations formed under Iowa law are taxed under Subchapter C of the Internal Revenue Code or, if the proper election is made, under Subchapter S of the Internal Revenue Code. Partnerships and LLCs formed under Iowa law with more than one partner or member are taxed as partnerships under Subchapter K of the Internal Revenue Code by default, but may be taxed as a corporation if an election is made. Single-member LLCs or other individually owned entities are taxed as sole proprietorships as a default; tax attributes are reported on Schedule C of the owner’s Form 1040. Sole proprietorships, treated as a disregarded entity for federal income tax purposes, may elect corporate taxation status.
So once you pick your entity and register it with the State of Iowa, what do you do after your entity is established?
A few things to think about are:
- Make sure that your corporate documents are drafted correctly and in place before you start doing business.
- Get a separate business bank account before you start doing business to maintain the separation between you and the entity just created.
- Obtain a method of tracking income and expenses.
- Create a means of invoicing for your work.
- Consult with insurance professionals about your business and about any potential exposure you may have.
- Establish a filing system for documents related to the business.
The list goes on.
Accuracy of corporate documents and formalities that you observe while your business is in operation may save you and your business from financial ruin. Maintenance of corporate formalities are essential for any new business. It seems as if having corporate meetings, keeping minutes of the meetings, and maintaining corporate records are a waste of time and effort. It is not.
As a start-up business, there are several aspects of your day-to-day work that you may not be able to control. Clients, shipping, orders, meetings, cancellations, and other variables that complicate every work day. Maintenance of good records, excellent bookkeeping habits, and a rigorous attention to detail are always within your control as a start-up. These habits create better profits and opportunities for success and growth into a mature business.
Make a plan. Execute the plan. Build a successful business.
Written by Fred Anderson
A buyer of real estate is usually entering into one of the largest financial transactions of their lifetimes and one with a mountain of paperwork. Yet, it’s not unusual for a buyer to show up at the closing and sign documents they have not reviewed, not ask any questions that they may have, and not consult an attorney. Although, financial lenders have many similar goals to the buyer, financial lenders are not representing the buyer on legal issues concerning the purchase issues and are actually in a conflict of interest concerning the lending issues. Although, real estate brokers have the same goal as the buyer of closing the transaction, real estate brokers are definitely not representing the buyer concerning legal issues.
Normally there are two closings for the buyer (i) funding for the transaction (with financial lender) and (ii) purchase transaction (with seller). In both transactions, I suggest to try to get all the documents before closing so that a buyer review can be done before hand and does not occur while everyone is sitting and watching. The lender is not infallible and can make mistakes. The lender has its “forms” and it takes a tremendous effort to have them change language unless it is really wrong. However, some of the form language may be wrong for the transaction. A buyer should make sure the documents reflect what the buyer believes the transaction is.
The settlement statements are the keys to the financial side of the funding transaction and the purchase transaction so the figures should be reviewed for accuracy and questioned as to how calculated. On the financing side, the next key documents should be the promissory note and mortgage. The terms of the deal should be correct. On the purchase side, a key document is a title opinion which is needed to find out who owns the real estate in order to accurately transfer it and whether there are any liens or objections that need to be taken care of before the transfer. The warranty deed needs to accurately reflect the name of the seller who owns and is transferring the real estate, the correct legal description of the real estate, and how the buyer wants to take title.
There are several other documents that may be necessary depending on the closing and issues involved. I encourage my clients to review all the documents in order to understand them as much as they can and ask questions of anything they do not understand. They should use counsel if necessary or if they have questions. They should feel comfortable with the process and the documents before they sign. Be ready to successfully scale the mountain of paperwork.
Written by Brian O. Marty
Iowa law provides that a bar can be held liable if a patron is overserved and then injures someone. These cases, known as “dram shop” cases, most commonly arise in situations involving drunk-driving car wrecks and drunken assaults.
In order to hold a bar liable in a dram shop case, the injured person has to show (1) the bar sold and served alcohol to the person who caused the injury, and (2) the person who caused the injury was intoxicated or became intoxicated by the alcohol served. Like other injury cases, dram shop cases have a two-year statute of limitations. However, Iowa law also requires the injured person to give written notice to the bar of his or her intent to bring a dram shop claim within six months of the injury.
A person’s best source of recovery in an injury case is usually insurance proceeds. Unfortunately, drunk-driving car wrecks and drunken assaults often involve limited or no insurance coverage. For this reason, a dram shop claim against a bar can be an additional source of insurance proceeds to more fully compensate an injured person for his or her damages. The injured person must act quickly, though, in order to ensure that relevant evidence remains available and the six-month notice requirement is met.
Written by Brandon M. Bohlman
When a person is injured in a motor vehicle accident, it is common that he or she was not wearing a seatbelt. We find that clients are concerned that they do not have a case now. They think that just because they were not wearing a seatbelt, they caused their injuries.
However, that is not the case in Iowa. Iowa Code § 321.445(4)(b)(2) provides that a person injured in a motor vehicle accident can only have their claim reduced by 5%. That means that if you are injured in a motor vehicle accident, and a jury would award you $100,000.00, you can still recover $95,000.00.
While you should always wear a seatbelt, if you didn’t and were hurt in a car accident don’t let that stop you from filing a personal injury claim. Contact us today to schedule a free consultation with a skilled Shindler Anderson personal injury lawyer.
Written by Tara L. Hofbauer
Why is he doing this?
She is freaking crazy.
I’m pretty sure he is bipolar.
Accusations that one’s spouse is “crazy” are pervasive in divorce cases—especially on the frontlines of a heated custody battle. It is not difficult to see why. Your once-loving, now estranged spouse is exhibiting behaviors you could not have foreseen in your wildest dreams when you said “I do”, when you held hands on an all-inclusive resort in Cancun on your first anniversary, nor when you celebrated upon finding out you were going to be parents after a long fight with infertility. Divorce is inherently emotional, confrontational, and messy. It often forces us to fly our defensive flag in ways we have never had to. Suddenly, moments you once held sacred with your one-and-only are held under an electron-microscope, studied, scrutinized and used against you in order to prove you are an unfit parent. Preparing new divorce clients for the lizard part of their brains to take over and giving them tools to deal with it are often overlooked, but incredibly important parts of the process.
Clients are caught off guard when I answer the “Why is she so crazy” question with a blunt, “I don’t know-you married her.” This brash reality-check is a just a method to snap a client out of their prehistoric emotional state and into a more business-like, logical one. Has your husband actually been clinically diagnosed as bipolar? The odds are against it. Without an actual diagnosis, and evidence of that mental health issue directly affecting his parenting, no, we will not be using that in your custody case.
Are your actions strategically calculated in order to push her buttons and elicit a certain response? Spouses have inside information into their partners’ deepest emotional flaws. Are you using this inside information in order to bring out the “crazy” in the person with whom you once vowed to spend eternity? On the other hand, are you allowing your lizard brain to take over and your spouse to victoriously rope you into emotional-as opposed to logical-responses over and over? In either case, you are causing the issues in your divorce to multiply and grow like mold spores, compounding one issue on top of the other. Inevitably, you are setting you and your spouse up for a costly war, with civilian casualties, often in the form of your children.
Recognizing the emotional hurdles in a divorce is just one invaluable tool in getting to a successful resolution. Have a support system in place. Be sure you have that friend or family member who can bring you back to reality and not flame the fires of your basest emotions. Call that therapist that your sister recommended. Most importantly, be sure that your legal team provides you with the proper tools and resources. Avoid the casualties of divorce war by arming yourself with methods of dealing with the emotional ups and downs of this very important, life-changing event.
Written by Sam Charnetski
A tale as old as time. A couple meets, they fall in love, and get engaged. Three years later: no wedding and the rose tint fades. The couple has been together for years, accumulated lots of property and now they are left wondering “what happens next?” Although not as clear cut as a dissolution, couples who cohabitate, engaged or not, have property rights in a break up.
The most frequent question asked is whether or not the engagement ring has to be returned. In 1990, the Iowa Court of Appeals ruled that an engagement ring given in the contemplation of marriage is impliedly a conditional gift. Fierro v. Hoel, 465 N.W.2d 669, 671 (Iowa App. 1990). In other words, yes, if the marriage does not occur, there is not a completed gift and therefore the Donor (person giving the ring) has the right to demand the return of the ring.
The property amassed by couples who cohabitate can be divided through a process called Partition. Partition is an equitable proceeding (meaning the Court has broad power to do what’s fair) that is available for both real and personal property wherein the Court divides the property or the proceeds from the sale of the property.
Break ups can be messy, but with the right advice you can protect yourself and make sure you receive all of the property you are entitled to.
Written by Fred Anderson
When drafting legal documents, it is critically important to use correct punctuation, accurate grammar, and proper phrasing. A good example of this rule is a Maine case about overtime pay that hinged on a missing comma. In O’Connor v. Oakhurst Dairy, US Court of Appeals (1st Circuit May, 13, 2017), delivery drivers sued their employers over whether the drivers qualified for overtime pay. The Court found in the drivers’ favor, holding that the employers must pay overtime because certain clauses of Maine’s overtime laws were grammatically ambiguous due to the absence of a comma.
The serial comma, also known as the Oxford comma, is used just before the coordinating conjunction (“and” or “or,” for example) when three or more terms are listed. You will see a serial comma in the first sentence of this article: it’s the comma after “grammar.” Such a serial comma was missing in the language of the Maine law at issue in the O’Connor case. According to that law, the following types of activities were among those that do not qualify for overtime pay:
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
1) Agricultural produce;
2) Meat and fish products; and
3) Perishable foods.
The case rested on the comma-less space between the words “shipment” and “or.” Is packing (for shipment or distribution) a single activity that is exempt from overtime pay? Or are packaging and distribution two different activities, both of which are exempt?
If lawmakers had used a serial comma, it would have been clear that distribution was an overtime-exempt activity on its own. But without the comma, the court held that the law was ambiguous as to whether distribution is a separate activity or whether the whole last clause—“packing for shipment or distribution”—is one activity, meaning only the people who pack the dairy products are exempt. The drivers did distribute, but did not pack, the perishable food.
Given the amount of information available on the web, it is tempting to cut corners by downloading a legal form from the web. Using a do-it-yourself legal website to maneuver legal needs may save time and money in the moment but there is a very good chance that it will cause problems and will end up far more expensive in long run. The smallest omission can invalidate a document, much like the example from the O’Connor case. Knowing what to look for is crucial to avoid penalties and to ensure the language and applicable laws are up to date and applicable to your state of resident. Hiring a lawyer is key to evade a costly mess.
The lawyers here at Shindler, Anderson, Goplerud & Weese draft a lot of documents. We know how to draft and punctuate your documents. Grammar is not a mystery to us, and we will not misplace your commas.
Written by Katie Gallo
Any of these means of electronic communication can, and frequently are, used as evidence in court during a dissolution of marriage or modification proceeding. When going through a divorce or modification action, expect that your electronic communication and social media will be scrutinized.
Be cognizant of the potential risks to your case before your next Facebook post or text message. Consider the following:
- Always assume your communication will eventually be seen by the Court. Only include information that is necessary and be sure your language and tone are such that you would not be concerned if it were seen by a judge.
- Be calm and collected before sending any communication. Never send a text message, email, Facebook message or post in a moment of anger. Your hostility will be evident and once it’s out there, it can’t be taken back.
- Rough drafts can be useful. Start with a draft of what you would like to communicate to your spouse or ex-spouse. Before you send it, review it closely to be sure it relates only to necessary communication, conveys your message in a concise and straightforward manner, your demeanor is appropriate, and your message cannot be misinterpreted.
In addition, remember that your electronic communications and social media activity can be used in a variety of ways. It can be used as evidence of your state of mind, to undermine your credibility, to demonstrate your character or habits, or to show where you were at a particular date and time – amongst many other uses.
Remember, once you hit post or send, there is no going back – your message is permanently backed up and accessible to the opposition.
Written by Fred Anderson
The following is not our firm’s case, but is typical of ones we become involved in.
Lake Forest Property Owners Association v. Regina Gebauer and Taylor (Ala. App Court) The question the Court was asked to answer was whether a pig was livestock or a pet? The Association sued Gebauer claiming a 135 pound Vietnamese potbellied pig violated the neighborhood’s restrictions on livestock and constituted a nuisance or inconvenience to neighbors. The lower court ruled Taylor (the pig) constituted a nuisance and was livestock and should be banned. The appellate court found Taylor didn’t smell, didn’t wander outside the yard and didn’t make noise (except for an oink oink here and an oink oink there). Taylor’s expert (a veterinarian) testified that potbellied pigs do not fit veterinarians definition of livestock animals raised for consumption. The Court found Taylor was not livestock and not a nuisance.
Results of the case:
(1) This is one little pig that didn’t go to market; and
(2) Taylor’s attorney can now claim he truly brought home the bacon.
Association Restrictive Covenants bind the members of the Association. Covenants are necessary for the protection of the members and their property setting up standards and rules for the community. When questions arise, as they often do, about the interpretation or meaning of the Association covenants, courts generally rely on contract law to interpret the Covenants. Litigation, as is illustrated above, often becomes necessary to find out what the meaning is and what to do.
As condo and townhouse developments become more popular, clients and associations are calling attorneys with more questions and issues caused by Covenants. If agreement cannot be reached to resolve the issue, litigation or arbitration is used to get a resolution.
It is always good advice to review the Covenants prior to purchasing a condo or townhouse because there may be restrictions that you cannot live with, i.e. no fence allowed when you need or want a fence in your yard, not allowed to plant certain plants or vegetation, not allowed to conduct a business, or even not allowed to have the pet you want. Our firm invites questions about these and your issues. We know how frustrating it can be when you buy the place of your dreams and you can’t have “this little Piggy.”
Our firm represents both Associations and Members of Associations. Sometimes controversies arise between them concerning the Association Restrictive Covenants. Our firm handles such controversies.
Written by Michael P. Mallaney
You have just gone through the misery of an emotionally draining divorce. The State Court by virtue of Decree after trial or by agreement has established the rights and liabilities related to marital debt — the unpaid credit cards, car loans, first and second mortgages on the house that neither you nor your ex-spouse can now afford as the family is no longer a two-income family. The dissolution decree entered by the State Court Judge ordered your former spouse to hold you harmless on certain joint credit card debt, to pay the car loan, and to be responsible for the debt on the home which your former spouse is to refinance. The Court further directs that your former spouse pay you a specified sum of money by a certain date as part of the property settlement provisions of the decree. Your ex-spouse is also to pay alimony and child support. You believe you are done and that this matter is concluded and over, and you can move on with your life. Not so fast!
Your ex-spouse drops a bombshell on you. He or she cannot make the credit card payments as directed, and cannot refinance the house and pay the property settlement. Your former spouse further advises that he or she is going to file for bankruptcy. You then receive in the mail two weeks later a Notice of Bankruptcy Filing from the Bankruptcy Court indicating the fact that your former spouse has filed bankruptcy. What should you do?
You should first contact your divorce attorney and provide him or her a copy of the Bankruptcy Notice. This is very important as you are now in a different Court (Federal Court). Bankruptcy Court and Divorce Court are competing systems with competing and confusing rules. There are deadlines for filing claims and contesting your former spouse’s bankruptcy if warranted. The deadlines are short when compared to the deadlines you faced in the State Court dissolution proceeding requiring the bankruptcy of your former spouse be given immediate attention. Your divorce attorney, who probably knows nothing about bankruptcy, will refer you to a bankruptcy attorney.
When you meet with your bankruptcy attorney for the first time you will probably ask him and/or her whether or not the credit card debt holders and the mortgage company can pursue you when the dissolution Court has already ordered your ex-spouse to pay these debts. Your bankruptcy attorney will tell you that divorce settlements and divorce decrees do not bind creditors who can collect the debt from either of you. If your ex-spouse does not pay his or her share of the debt the creditor can come after you for payment. Your former spouse’s bankruptcy could very well send you into bankruptcy yourself. Your bankruptcy attorney will tell you that there are several kinds of bankruptcy. The most commonly known form is a Chapter 7 and the other is a Chapter 13 bankruptcy. The procedure and your rights and/or liabilities are different depending on what Chapter of bankruptcy is filed. Your bankruptcy attorney will tell you the good news that in a Chapter 7 bankruptcy proceeding alimony, child support and property settlement remain non-dischargeable. This means your former spouse will have to honor the Dissolution Decree and pay the support and/or property settlement. The non-dischargeability of these debts is automatic and no court order is needed from the Bankruptcy Court.
Chapter 13 bankruptcy is a different story. It’s more misery. Alimony and child support remain non-dischargeable which your former spouse will have to pay; however, property settlement may be modified and discharged and/or forgiven by the Bankruptcy Court which means your former spouse may not have to pay all or some of the property settlement. Every case is different and determined on the facts and the law. Chapter 13 issues will be decided by the Bankruptcy Court not the State Court in which you obtained your Dissolution Decree.
While the divorce process brings its own set of miseries, you may not be out of the woods if bankruptcy knocks on the door. Be sure to consult with an experienced divorce attorney in hopes of avoiding the misery that an ex-spouse may bring with the bankruptcy down the road. Sometimes this misery is inevitable. Be sure you have a trustworthy bankruptcy attorney to wade through the murky waters of misery.