Taxation

Craig D. Bell *

This article reviews significant recent developments in the laws affecting Virginia taxation. Each section covers legislative changes, judicial decisions, and selected opinions or pronouncements from the Virginia Department of Taxation (the “Tax Department”) and the Virginia Attorney General over the past year.

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* Partner, McGuireWoods LLP, Richmond, Virginia. LL.M., 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, chair of the McGuireWoods Tax and Employee Benefits Department, 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 (United States 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 nonprofit 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 United States 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

William Gray, Jr. *

Katherine E. Ramsey **

After an unusually busy year in 2013, Virginia’s General Assembly and state courts were relatively quiet in 2014 in the area of wills, trusts, and estates. Legislation was generally limited to clarifications and technical corrections to existing law, with the most extensive bills devoted to adjusting various statutory amounts to reflect cost-of-living adjustments and consolidating the rules governing the disposition of dead bodies. Four cases dealt with questions of charitable immunity, presumption of undue influence, inheritance rights of half-blood collateral heirs, and contracts to make a will.

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  *    Partner, Hunton & Williams LLP, Richmond, Virginia. J.D., 1977, University of Virginia; B.S.I.E., 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.

Appellate Law

The Honorable Marla Graff Decker *

In every attorney’s career, there is likely to be a time when that attorney believes that a judge or jury erred in a decision that negatively impacts his or her client. Virginia has a specific set of laws and rules that guide attorneys through the appellate process and provide for appropriate review of these legal challenges.

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* Judge, Court of Appeals of Virginia. J.D., 1983, University of Richmond School of Law; B.S., 1980, Gettysburg College. Prior to the author’s appointment to the Court of Appeals of Virginia, she served as Assistant Attorney General for the Commonwealth of Virginia in the Criminal Litigation Section. Judge Decker is also an Adjunct Professor for the University of Richmond School of Law.

 

A Recount of the Recount: Obenshain v. Herring

The Honorable Beverly Snukals *

Maggie Bowman **

On November 25, 2013, following one of the closest races in Virginia history, the Virginia State Board of Elections (the “SBE”) certified Democratic State Senator Mark Herring as the winner of the 2013 race for the office of Attorney General of Virginia by a record few 165 votes, less than one-hundredth of a percent of the votes cast.[1] Two days later, Herring’s opponent, Republican State Senator Mark Obenshain, filed a petition in the Richmond City Circuit Court of Richmond seeking a recount of the election pursuant to Virginia Code section 24.2-801.[2] Within a few short days, each party filed hundreds of pages of pleadings and memoranda. Hearings had to be held and orders had to be endorsed.

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*    Judge of the Richmond City Circuit Court. J.D., 1981, University of Richmond School of Law; B.A., 1978, Hollins College.

** J.D., 2013, University of Richmond School of Law; B.S., 2008, Virginia Tech; Law Clerk, 2013–14, Hon. Beverly W. Snukals & Bradley B. Cavedo in the Circuit Court of the City of Richmond.

        [1].    Laura Vozzella & Ben Pershing, Obenshain Concedes Virginia Attorney General’s Race to Herring, Wash. Post (Dec. 18, 2013), http://www.washingtonpost.com/local/virgin ia-politics/obenshain-to-concede-virginia-attorney-generals-race-on-wednesday-in-richmon d/2013/12/18/fe85a31c-67e7-11e3-8b5b-a77187b716a3_story.html.

        [2].    See Ben Pershing, Obenshain Camp Asks for Recount in Va. Attorney General’s Race Against Herring, Wash. Post (Nov. 27, 2013), http://www.washingtonpost.com/local/ virginia-politics/obenshain-camp-asks-for-recount-in-va-attorney-generals-race-against-herring/2013/11/27/c5e33aa6-577a-11e3-ba82-16ed03681809_story.html; see Va. Code Ann. § 24.2-801 (Repl. Vol. 2011).

The Power Paradox: The Need for Alternative Remedies in Virginia Minority Shareholder Oppression Cases

Stephanie Martinez *

Without advanced planning, minority shareholders in a closely held corporation can find themselves in the unenviable position of being up a creek without a paddle. Minority shareholders often invest in a corporation with the belief that the investment will provide them with a steady stream of income, either from a job or from payment of dividends.[1] Yet many fail to protect themselves with employment contracts or buy-sell agreements,[2] leaving them vulnerable to a majority shareholder who may decide to fire them or withhold dividends.[3] Without a source of income, a minority shareholder can face an indefinite period when there is no return on his or her investment.[4]

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*   J.D., 2014, University of Richmond School of Law; B.A., 2010, James Madison University. A special thank you to Professor Jessica Erickson, who never seemed to tire of my constant questions and office visits. I am also deeply indebted to the staff of the University of Richmond Law Review, who spent countless hours, during the summer no less, working on this comment. Finally, I would like to thank my friends and family, and especially my husband Jonathan, for their support and encouragement.

[1].    See Robert B. Thompson, The Shareholder’s Cause of Action for Oppression, 48 Bus. Law. 699, 702 (1993).

[2].    See Michael K. Molitor, Eat Your Vegetables (Or At Least Understand Why You Should): Can Better Warning and Education of Prospective Minority Owners Reduce Oppression in Closely Held Businesses?, 14 Fordham J. Corp. & Fin. L. 491, 495–96 (2009).

[3].    Thompson, supra note 1, at 703.

[4].    Id.

 

Virginia’s Gap Between Punishment and Culpability: Re-Examining Self-Defense Law and Battered Woman’s Syndrome

Kendall Hamilton *

“Truly humane societies are those . . . that have decided to begin the long march down the road toward the abolition of violence . . . . [and] every once in a while, stop along the way to take stock, and then decide to continue.”[1]

Our criminal justice system rests upon the fundamental notion that a defendant’s punishment will match her level of culpability.[2] In other words, the defendant should be a “fair candidate for punishment.”[3] Accordingly, when punishment outweighs culpability, effectively over-punishing a defendant, the legitimacy of our criminal justice system erodes because the system in which we have bestowed our trust has not produced a fair candidate for punishment. The intersection between Virginia’s self-defense laws and the realities surrounding domestic violence demonstrate this over-punishment problem.

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*   J.D., 2014, University of Richmond School of Law; B.A., 2007, Johns Hopkins University. Thank you to my family for their support before, during, and after law school. Their continued guidance and encouragement is truly invaluable. Special thanks to Professor Tate for helping develop this comment in the early stages, and to Jonathan Tan and Samantha Fant for encouraging me to take the final steps towards its completion. Lastly, thank you to Tara Badawy and the University of Richmond Law Review’s editors and staff for their hard work throughout this process.

[1].    Lenore E. Walker, Terrifying Love: Why Battered Women Kill and How Society Responds 15 (1989) [hereinafter Walker, Terrifying Love].

[2].    See Kyron Huigens, On Commonplace Punishment Theory, 2005 U. Chi. Legal F. 437, 445 (2005) (“Notice that we refer to the absence of culpability in cases in which a person is not a fair candidate for punishment . . . . In contrast, in cases in which fault is at issue, we talk not only about the absence of culpability, but also—on the positive side, so to speak—about the varying degrees of culpability.”).

[3].    Id.; see also Michael Tonry, Obsolescence and Immanence in Penal Theory and Policy, 105 Colum. L. Rev. 1233, 1241 (2005) (“Herbert Wechsler, Paul Tappan, and Louis Schwartz, . . . developed the Model Penal Code . . . [and] understood the Kantian argument that respect for offenders’ moral autonomy requires that they be punished in proportion to the seriousness of their crimes.”). This comment recognizes that legal scholars disagree as to the exact theory of punishment to be utilized, but despite such disagreement, most are still interested in incorporating a theory of punishment that is fair; namely, a punishment that is “politically legitimate, morally just, or otherwise institutionally necessary.” Marc O. DeGirolami, Against Theories of Punishment: The Thought of Sir James Fitzjames Stephen, 9 Ohio St. J. Crim. L. 699, 706 (2012).

 

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