Taxation

Craig D. Bell *

This article reviews significant recent developments in the law affecting Virginia taxation. Each section covers legislative changes, judicial decisions, and selected opinions or pronouncements from the Virginia Department of Taxation and the Attorney General of Virginia over the past year. Part One of this article discusses legal developments regarding taxes imposed and administered by the Commonwealth. Section II addresses changes made to Virginia corporate and individual tax law, Section III covers legal changes pertaining to retail sales and use taxes, and Section IV covers changes to state tax administration. Part Two of this article documents legal developments of local government taxes. Sections V and VI address changes to the law regarding Virginia real and personal property taxes. Section VII discusses judicial and legislative changes regarding Virginia?s business professional occupation license tax. Section VIII addresses several miscellaneous local taxes and tax administration applicable to local government taxing authorities.

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Wills, Trusts, and Estates

J. William Gray, Jr. *

Katherine E. Ramsey **

The 2011 session of the Virginia General Assembly enacted wills, trusts, and estates legislation that: (i) eliminated a potential federal transfer tax trap in inter vivos marital trusts, (ii) interpreted transfer tax formula clauses in light of recent changes in federal law, and (iii) adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act. Three other legislative enactments and seven opinions of the Supreme Court of Virginia during the twelve months ending June 1, 2011, addressed issues affecting this field. In addition to addressing those developments, this article summarizes a recent federal district court opinion that dealt with a significant issue in Virginia trust administration.

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Bulls, Bears, and Pigs: Revisiting the Legal Minefield of Virginia Fraudulent Transfer Law

Isaac A. McBeth *
Landon C. Davis III **

With the state of the Virginia economy as it is, the law surrounding fraudulent transfers has never been more relevant to members of the Virginia Bar than at the present. There is an old investment truism which states, “Bulls make money, bears make money, pigs get slaughtered.” Admittedly, this quip is more applicable to a financial maverick on Wall Street than it is to a Virginia general practitioner. Nonetheless, it hints at the very real truth that those who are reckless with their property run the risk of losing it. Much in the same way, an attorney who recklessly structures a transfer of a client’s property without giving due regard to risks imposed by fraudulent transfer law could wreak disastrous consequences on the client and find herself in an ethical dilemma. Unfortunately, Virginia’s body of fraudulent transfer law is less than well-defined and acts as a legal minefield—out of sight and capable of harming the unwary who traverse it.

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OSHA Enforcement of the “As Effective As” Standard for State Plans: Serving Process or People?

Courtney M. Malveaux *

Since the passage of the Occupational Safety and Health Act of 1970 (“OSH Act”) in 1971, the federal Occupational Safety and Health Administration (“OSHA”) has perplexed many states tasked with its enforcement. Congress passed the OSH Act to nationalize workplace safety and health standards. It empowered OSHA to enforce these standards, either on its own or through an approved workplace safety and health plan operated by a state (“State Plan”). The OSH Act provides matching funds and oversight for states choosing to operate their own programs on the condition that participating states operate a regime that is “at least as effective as” that of federal OSHA.

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A Vanishing Virginia Constitution?

The Honorable Stephen R. McCullough *

Virginia’s constitution was first established in 1776, when the rift with the mother country thrust upon Virginia colonists the obligation to establish their own government. A rather modest affair when compared to our modern Virginia Constitution, Virginia’s initial charter of government consisted of two documents: a Declaration of Rights and a constitution proper that set forth the more mechanical aspects of operating a government. Chiefly the handiwork of George Mason, the Declaration of Rights called for, among other protections, the separation of powers, religious liberty, freedom of the press, and protections for persons accused of crimes. One writer notes that this “Declaration of Rights is, indeed, a remarkable production. As an intellectual effort, it possesses exalted merit. It is the quintessence of all the great principles and doctrines of freedom which had been wrought out by the people of England from the earliest times.” Although the Virginia Constitution has evolved significantly over the more than two centuries that followed, some of the provisions in the current constitution remain unchanged from the quill of George Mason.

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Virginia Should Abolish the Archaic Tort Defense of Contributory Negligence and Adopt a Comparative Negligence Defense in Its Place

Peter Nash Swisher *

Contributory negligence is conduct on the part of the plaintiff, contributing as a proximate cause to the tortuous harm the plaintiff has suffered, which falls below the standard of care to which the plaintiff is required to conform for his or her own protection. When contributory negligence is found, it constitutes a complete defense to the plaintiff’s negligence cause of action, even though the defendant’s negligence may have greatly exceeded the plaintiff’s negligence.

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Economic Policy After a Lost Decade – From Over-Spending to Innovation

Timothy M. Kaine *

Writings on the economic collapse that began in 2007 are legion.[1] Analysts take different perspectives on the causes of the recession and on the policies that must be implemented to return to prosperity. And, at the national level, the President and Congress vigorously contend over the appropriate strategies to put in place to both grow the economy and guard against future collapses such as we’ve experienced in recent years.

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Mixed Agendas and Government Regulation of Business: Can We Clean Up the Mess?

Thomas M. Arnold*
Jerry L. Stevens**

The history of regulation in the U.S. economy shows a cumulative growth of government involvement in private enterprise that has helped business at times and has been at odds with business at other times. The wavering views on how much regulation is warranted change over time and cut across political and philosophical ideologies. For example, in the first two years of President Barack Obama’s administration there was a push for new and large increases in regulation of healthcare and financial markets along with intervention into public markets with massive spending to bailout automakers and financial institutions. Now, in the second half of the Obama term we are seeing a call for regulatory review with an eye on reducing regulatory burdens on economic growth and job creation.

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The Chapter 13 Alternative: A Legislative Solution to Undersecured Home Mortgages

The Honorable Samuel L. Bufford*

The Great Recession that began in approximately 2008 brought severe financial difficulties to a large number of homeowners in the United States. With a rise in the unemployment rate from 4.6% to 10%,many lost their jobs and their ability to make their home payments. At the same time, with an average 30.3% reduction in housing values (which in some places has approached nearly 60%), many homes are now worth substantially less than the debt owed on mortgages secured by the homes. Some 5 million homeowners are at least two months behind in their mortgage payments, and RealtyTrac predicts that some 1.2 million homes will be foreclosed on in 2011. The housing crisis continues to get worse, not better.

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The Immediate and Lasting Impacts of the 2008 Economic Collapse – Lehman Brothers, General Motors, and the Secured Credit Markets

Edward J. Estrada *

Following the economic meltdown that began in the spring of 2008, immediate and longer term ramifications began to ripple through all aspects of the economy. Clearly, these tremors have not yet subsided, and continued fallout will be felt in the coming years. Importantly, even those companies and industries that have seemingly passed through the most immediate wave of impacts will be susceptible to the ongoing struggle to achieve sustainable growth. Many such companies may experience future defaults, largely dependent upon the strength and vitality of economic growth in the coming year and their industry performance in that time frame.

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