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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* Partner, McGuireWoods LLP, Richmond, Virginia; LL.M. in Taxation, 1986, Marshall-Wythe School of Law, College of William & Mary; J.D., 1983, State University of New York at Buffalo; M.B.A., 1980, Syracuse University; B.S., 1979, Syracuse University. Mr. Bell practices primarily in the areas of state and local taxation, and civil and criminal tax litigation. He is a Fellow of the American College of Tax Counsel, a Fellow of the Virginia Law Foundation, a Fellow of the American Bar Foundation, a Barrister of the J. Edgar Murdock Inn of Court (U.S. Tax Court), an adjunct professor of tax law at the College of William & Mary School of Law, and a past chair of both the Tax and Military Law Sections of the Virginia State Bar and the Tax Section of the Virginia Bar Association. Mr. Bell is an Emeritus Director of The Community Tax Law Project, a non-profit pro bono provider of tax law services for the working poor, and is its recipient of the Lifetime Pro Bono Achievement Award for his pro bono work in representing hundreds of Virginians before the IRS and in U.S. Tax Court and federal district court, as well as developing and training many lawyers in the area of federal tax law to expand pro bono tax representation for low-income taxpayers.

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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* Partner, Hunton & Williams LLP, Richmond, Virginia; J.D., 1977, University of Virginia; B.S., B.A., 1973, Rutgers University.

** Partner, Hunton & Williams LLP, Richmond, Virginia; J.D., 1998, University of Virginia; M.S., 1988, Boston University; B.A., 1986, Virginia Polytechnic Institute and State University.

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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*   Associate, Hirschler Fleischer, P.C., Richmond, Virginia; J.D., 2011, University of Richmond School of Law; B.A., 2008, American Military University. The author specifically thanks Professor David Epstein for his invaluable guidance in forming this article and the members of the University of Richmond Law Review for their hard work in bringing it to fruition.

** Associate, Parrish, Houck & Snead, PLC, Fredericksburg, Virginia; J.D., 2011, University of Richmond School of Law; B.S., 2008, University of Mary Washington.

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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* Commissioner, Virginia Department of Labor and Industry, Richmond, Virginia; J.D., 2002, Marshall-Wythe School of Law, College of William & Mary; M.A., 1998, George Washington University; B.A., 1993, Pennsylvania State University. Amanda Blair, W. Glenn Cox, Kathleen Greene, Elizabeth Southall, and Jay Withrow provided research.

 

 

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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*   Judge, Court of Appeals of Virginia. Prior to the author’s appointment to the Court of Appeals of Virginia, he served as State Solicitor General, Office of the Attorney General, Commonwealth of Virginia; J.D., 1997, University of Richmond School of Law; B.A., 1994, University of Virginia.

The views expressed in this article represent strictly the personal views of the author.

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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*   Professor of Law, University of Richmond School of Law; J.D., 1973, University of California, Hastings College of Law; M.A., 1967, Stanford University; B.A., 1966, Amherst College.

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