New Jersey Lawyers Blog

Published on: January 18, 2017

Business Partnerships: Taxes and Other Considerations

A partnership is an unincorporated association of two or more people who act as co-owners of a business for profit. Under New Jersey business law, a partnership may be created even when there is no written partnership agreement between the parties (this is known as “defacto partnership.” However, just like any other business venture, a partnership is required to register their business with the State of New Jersey Secretary of State and obtain an employer identification number for tax purposes.

While a partnership agreement under New Jersey partnership law is not necessary, in the event that there is no partnership agreement, the default rules for partnerships will govern a partnership. Every partnership which has either income or loss from sources within the State of New Jersey, or in which any partner resides in New Jersey must file tax forms with the State of New Jersey. Beginning on January 1, 2015, the New Jersey Division of Taxation discontinued the use of tax Form PART-100 (which was previously used to report the gross income tax filing fee and the corporation business tax) and created two new partnership tax forms (Forms NJ-1065 and NJ-CBT-1065.)

For tax purposes, each partner received profits and losses just as though it were personal income, but set forth on a Schedule K-1. (This is different from a corporation which is separately and additionally subjected to taxes on the business’s earnings.) A partnership with more than 2 owners must pay a filing fee per owner. The fee is currently $150 per partner. The fee is applicable to any owner notwithstanding the fact that the owner may only be a partner for part of the year.

Published on: January 16, 2017

Estate and Elder Care Planning after Being Diagnosed with Dementia

by Jennifer C. Meusel

Frequently, when you or a family member are first diagnosed with dementia, you still have the capa testament-1183175__340-300x200 city and are legally “competent” to make your own estate planning decisions. The four documents discussed here will assist a person with dementia and their loved ones as the disease progresses and they no longer have the mental capacity under the law to execute these documents and are no longer able to make decisions for themselves. If a person has not already made these planning decisions and executed the necessary documents, they must act immediately while they still have the mental (and legal) capacity to do so.

In order to be legally capable to sign estate planning documents a person must have “testamentary capacity” – they must be able to understand the import and consequences of what they are signing. They must understand the mechanisms being put in place and the who they are appointing to make decisions for them. Even if a person only has periods of lucidity it does not mean they automatically lack the required mental capacity. That can be complicated, as they need to review and execute the documents during a period of lucidity. Sometimes meetings with their attorney will need to be rescheduled to accomplish this goal.

The most important documents for a person who has been diagnosed with dementia are the Durable Power of Attorney, the Living Will, the Health Care Proxy and the Last Will and Testament.

Published on: January 9, 2017

Forfeiture of Public Employment for Conviction of a Crime, and the Supreme Court’s Decisions on Waivers of Forfeiture of Public Employment

by Maurice W. McLaughlin

supreme-court-building-1209701__340-300x200 Our employment attorneys represent New Jersey Civil Service employees in appeals of disciplinary action. Recently, New Jersey’s Supreme Court had the opportunity to clarify some of the circumstances in which a government employee can obtain a waiver of the rule that he forfeit his job when convicted of a criminal offense.

In the case of Flagg v. Essex County Prosecutor, the New Jersey Supreme Court had the opportunity to review the effect of a public employee’s conviction for a disorderly persons offense (the equivalent of a misdemeanor) on their government job. New Jersey’s forfeiture law requires that employees forfeit their public employment if the conviction is for a crime (the equivalent of felony) of dishonesty, is required by the New Jersey Constitution, or is a disorderly persons offense “involving or touching such office, position or employment.” However, a subsection of this law provides an exception. This provides that “forfeiture or disqualification… which is based upon a conviction of a disorderly persons or petty disorderly persons offense [misdemeanors] may be waived by the court upon application of the county prosecutor or the Attorney General and for good cause shown.” The law is silent about what standard a prosecutor should use to review such applications.

Flagg was a maintenance worker for the City of Newark. He was convicted in municipal court of illegal disposition of solid waste, a disorderly persons offense. He did this in the course of his job at the direction and in the presence of his supervisor. He was sentenced to a six month loss of his drivers license, a $5,000 fine, and five days of community service. He was not sentenced to jail, nor did the statute provide for jail for this solid waste violation.

Published on: January 3, 2017

The Effect of the Automatic Stay in Bankruptcy: Benefits, Exceptions and Limitations

by Robert Chewning, Esq.

town-sign-96612__340-300x225 Bankruptcy provides relief to a debtor who may be struggling to keep a house, keep the lights on, or pay credit card or medical bills. The relief provided is in the form of an automatic stay, exemptions to protect your most essential assets, and a discharge of a portion of the debtor’s debts. It is important to determine to understand the benefits and limitations of the relief that bankruptcy provides before you make the decision to file for bankruptcy.

Benefits of an Automatic Stay.

The automatic stay is the first form of relief provided after a debtor files for bankruptcy. The stay stops almost all collection actions by creditors to allow the debtor time to reorganize, rehabilitate, and prepare for the fresh start that bankruptcy provides. The following are examples of the actions which a debtor’s creditors must cease as a result of the automatic stay:

Published on: December 28, 2016

The Consequences of “Liars Loans”

by Maurice W. McLaughlin

keys-1317391__340-300x279 Our transactional attorneys handle many types of commercial and real estate transactions, from closings on homes, office buildings, factories, to commercial transactions including the sale of all or part of a business. The overwhelming majority of these transactions require the purchaser to take out a loan to finance the purchase. Whether a buyer qualifies for the loan is one of the main contingencies in the transactions.

In many instances the purchasers will have already obtained financing before they talk to us about the transaction. However, once we are involved in the transaction one of the things we stress most, based on long experience, is that the application for the loan must be one hundred percent honest. Anything less than perfect honesty with the bank is a crime. The days when “Liars Loans” was acceptable are now over – in fact, that day existed only in fiction. Our transactional attorneys’ extensive experience in New Jersey real estate and business transactions has convinced us that honesty with the bank is the only way to go.

Federal law makes it a felony to “execute a scheme… to defraud a financial institution.” More particularly, the federal statute states that:

Published on: December 21, 2016

Fighting New Jersey’s Rule of Three

by Maurice W. McLaughlin

One of the prime methods of hiring, firing, promotion and discipline of public employees is New Jersey’s civil service. Attorneys from our firm represent employees in appeals from actions by their civil service employers. One of the most significant issues in the civil service hiring process our employment attorneys have encountered is when government employers exercise the “Rule of Three.”

New Jersey’s Constitution requires that hiring in the civil service system must be based on merit and fitness, and that a candidate’s merit and fitness be determined by a competitive examination. The system put in place by New Jersey’s Civil Service Act and the regulations drafted by New Jersey’s Civil Service Commission provide that impartial tests which examine a candidate’s competency are announced, qualified candidates take the test, and then the Civil Service Commission creates a list of “eligibles” from which the candidates must be hired. The highest scorers will receive the top spot on the list. Candidates are to be hired in accordance with their place on the list.

However, an exception applies to this process. Public employers may use the “Rule of Three” to pass over the highest scorer. In the recent case of In re Foglio, New Jersey’s Supreme Court had the chance to examine the Rule of Three. The first thing the Supreme Court did was to explain what the Rule of Three was all about. The Supreme Court explained: “Under the Rule of Three, after a list of at least three candidates is certified, the appointing authority has the discretion to select from among the top three candidates in filling a vacancy. The Rule of Three recognizes employment discretion and seeks to ensure that such discretion is not exercised in a way inconsistent with `merit’ considerations. While ensuring that competitive examinations winnow the field of candidates, the Rule of Three does not stand as ‘an immutable or total bar to the application of other important criteria” by a government employer’.”

Published on: December 20, 2016

Fair Labor Standards Act Regulations

by Maurice W. McLaughlin

Background: New Regulations Adopted

In 2014 the United State Department of Labor issued new regulations governing overtime exemptions. The regulations did not change the main overtime exemptions, but it did raise the salary threshold for them to apply.

Existing Exemptions

Published on: December 13, 2016

Changes to the Fair Labor Standards Act

by Pauline M.K. Young

dollar-1889027__340 The Fair Labor Standards Act (“FLSA”) is a federal statute enacted in 1938 with the goal of setting national standards for employees, including minimum wage, overtime requirements, child labor restrictions, and other protections. Our employment attorneys represent management and employers in litigation under FLSA violations and litigation about its state counterpart, the New Jersey Wage and Hour law. Our

Many changes have been made to the FLSA over the years to try to keep up with the changes in inflation the socioeconomic climate of the country. On March 13, 2014, President Obama published a Presidential Memorandum directing the DOL to review and revise the regulations protecting workers through minimum wage and overtime standards. In May of 2016, the United States Department of Labor (“DOL”) responded by updating the FLSA to extend overtime pay protections and minimum salaries – which would mark the first significant change in 40 years.

The rule sets a minimum salary requirement of $47,476 for salaried workers – which more than doubled the prior minimum of $23,660. Generally, employees are paid on an hourly basis and then paid one and a half times their regular hourly pay for all hours worked in excess of 40 hours per week. However, certain employees are “exempt” from the hourly pay and overtime requirements. Some of the most comment exemptions are for: professionals (lawyers, accountants, engineers, etc.) executives or administrators (managers, officers, etc.), and commissioned salespeople. For employees not being paid on commission, these exempt workers are generally paid an annual salary as opposed to an hourly wage.

Published on: December 12, 2016

Chapter 7 Bankruptcy: How to Protect Your House

by Robert Chewning, Esq.

debt-1157824__340 In a Chapter 7 bankruptcy, a trustee will be appointed to liquidate the assets of a debtor’s estate to satisfy the creditors of the debtor. Therefore, it is important to understand that if you file a Chapter 7 bankruptcy, all of your assets including your house may sold to satisfy your creditors. However, the Federal Bankruptcy Code, U.S. Code Title 11, provides ways for debtors to protect their most important and essential assets through a variety of exemptions. Our New Jersey bankruptcy attorneys use these exemptions to the full extent of the law to protect your assets while helping you lift the crushing burden of debt.

The Federal Bankruptcy exemptions are referenced in 11 U.S.C. 522(d)(1)-(11). These exemptions cover a variety of assets which you may own and want to protect from being sold by the trustee, ranging from your home to life insurance payments. However, these exemptions do not provide an absolute protection to your assets and are limited in their use.

Probably the most important asset and the one that people are most concerned with is their home. The Federal Bankruptcy Code provides for an exemption for your primary residence under 11 U.S.C. 522(d)(1), (5). The exemption provides protection up to $23,675 in New Jersey. This amount is doubled if you are filing jointly with your spouse for a total of $47,350. This exemption can be used to exempt a portion of the equity in your home.

Published on: December 8, 2016

Solid Waste Registration

by Maurice W. McLaughlin

hauler Businesses wishing to transport solid waste in New Jersey are required to strictly comply with the registration process governed by the New Jersey Department of Environmental Protection. Our attorneys help solid waste haulers in complying with these requirements, and obtaining approval to haul solid waste in New Jersey.

This is a brief overview of the solid waste registration and application process with the NJDEP.

Is it “Solid Waste?”