2015 Annual Survey: Taxation

2015 Annual Survey: Taxation

William L.S. Rowe *

Emily J.S. Winbigler **

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

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* Partner, Hunton & Williams LLP, Richmond, Virginia. J.D., 1973, University of Virginia School of Law; B.A., 1970, Washington and Lee University.

** Associate, Hunton & Williams LLP, Richmond, Virginia. J.D., 2009, University of Iowa, Order of the Coif; B.A., 2004, The College of William & Mary.

2015 Annual Survey: Taxation

2015 Virginia Annual Survey: Wills, Trusts, and Estates

William Gray, Jr. *

Katherine E. Ramsey **

The inactivity of Virginia’s General Assembly and state courts in the area of wills, trusts, and estates, noted in this summary in 2014,[1] continued this year. Legislation was generally limited to clarifications and technical corrections to existing laws on such subjects as creditor protection for certain trust assets, access to digital assets, qualification of personal representatives, and disposition of dead bodies. Three cases dealt with the doctrine of survivorship for administrators, interpretation of shareholder agreements, and the period for seeking removal of an executor.

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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.

        [1].    J. William Gray, Jr. & Katherine E. Ramsey, Annual Survey of Virginia Law: Wills, Trusts, and Estates, 49 U. Rich. L. Rev. 211, 211 (2014).

 

2015 Annual Survey: Taxation

The Court of Appeals of Virginia Celebrates Thirty Years of Service to the Commonwealth

The Honorable Stephen R. McCullough *

The Honorable Marla Graff Decker **

On June 2, 2015, the Supreme Court of Virginia convened a special session to celebrate the thirtieth anniversary of the Court of Appeals of Virginia. This anniversary affords the opportunity to look back on the court’s creation and to consider its evolution over the last three decades.

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*   Judge, Court of Appeals 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.

** Judge, Court of Appeals of Virginia. J.D., 1983, University of Richmond School of Law; B.A. 1980, Gettysburg College. The views expressed in this article represent strictly the personal views of the author.

2015 Annual Survey: Taxation

The “Test” – or Lack thereof – for Issuance of Virginia Temporary Injunctions: The Current Uncertainty and a Recommended Approach based on Federal Preliminary Injunction Law

The Honorable David W. Lannetti *

Preliminary injunctive relief, where a movant[1] is awarded a court order prior to final judgment on the merits of a dispute, serves a necessary role in equity jurisprudence. Courts typically state that preliminary relief is an extraordinary remedy designed to preserve the status quo, with some courts opining that this purpose simply describes the abstract goal of preliminary relief [2] and others holding that movants must satisfy a higher burden when seeking injunctions that alter the status quo.[3] After significant evolution, federal courts developed a four-part test for preliminary injunctions,[4] which the circuit courts of appeals have universally accepted but inconsistently applied.[5] The Supreme Court of the United States subsequently resolved this circuit split in part,[6] yet the circuit courts still adhere to different approaches when applying the test.[7]

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* Judge, Fourth Judicial Circuit of Virginia. Adjunct Professor, Marshall-Wythe School of Law at the College of William & Mary and Regent University Law School. The views advanced in this article represent commentary “concerning the law, the legal system, [and] the administration of justice” as authorized by Virginia Canon of Judicial Conduct 4(B) (permitting judges to “speak, write, lecture, teach” and otherwise participate in extrajudicial efforts to improve the legal system). These views therefore should not be mistaken for the official views of the Norfolk Circuit Court or the author’s opinion as a circuit court judge in the context of any specific case. The author thanks 2014–15 Norfolk Circuit Court Law Clerks Jennifer Eaton and Gregory Chakmakas for their assistance in the research for and editing of this article.

        [1].    In this article, “movant” refers to the party requesting preliminary injunctive relief. It is meant to have the same meaning as “movant,” “petitioner,” or “plaintiff” as used in other articles pertaining to federal preliminary injunctions and Virginia temporary injunctions.

        [2].    See Thomas R. Lee, Preliminary Injunctions and the Status Quo, 58 Wash. & Lee L. Rev. 109, 110, 113, 115 (2001).

        [3].    See id. at 115.

        [4].    Id. at 111.

        [5].    See Bethany M. Bates, Reconciliation After Winter: The Standard for Preliminary Injunctions in Federal Courts, 111 Colum. L. Rev. 1522, 1529–30 (2011).

        [6].    See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20–24 (2008).

        [7].    See Bates, supra note 6, at 1523, 1535–37.

 

2015 Annual Survey: Taxation

The McDonnell Case: A Clarification of Corruption Law or a Confusing Application of Corruption Law

Henry L. Chambers, Jr. *

On September 4, 2014, Governor Robert F. McDonnell and his wife, Maureen G. McDonnell, were convicted in federal court of various crimes related to their relationship with Jonnie Williams, a Virginia businessman, and his company Star Scientific.[1] Earlier in the year, the McDonnells were charged in a fourteen-count indictment primarily consisting of public corruption charges.[2] Governor McDonnell faced one count of conspiracy to commit honest-services wire fraud, three counts of honest-services wire fraud, one count of conspiracy to obtain property under color of official right, six counts of obtaining property under color of official right, and two counts of providing false statements, one on a financial statement and one on a loan application.[3] Governor McDonnell was convicted on all counts except the two false statement charges.[4] Mrs. McDonnell faced the same charges as Governor McDonnell, except she faced only one of the two false statement charges and was also charged with obstructing an official proceeding.[5]

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*   Professor of Law, University of Richmond. The author thanks Kelsey Martin for her research assistance.

        [1].    Verdict, United States v. McDonnell, 64 F. Supp. 3d 783 (E.D. Va. 2014) (No. 3:14cr12-JRS), 2014 WL 4383056; see Rosalind S. Helderman & Matt Zapotosky, Ex-Va. Governor Robert McDonnell Guilty of 11 Counts of Corruption, Wash. Post (Sept. 4, 2014), https://www.washingtonpost.com/local/virginia-politics/mcdonnell-jury-in-third-day-of-del iberations/2014/09/04/0e01ff88-3435-11e4-9e92-0899b306bbea_story.html.

        [2].    Indictment ¶¶ 108–23, United States v. McDonnell, 64 F. Supp. 3d 783 (E.D. Va. 2014) (No. 3:14cr12), 2014 WL 223601.

        [3].    Id. Conspiracy to commit honest-services wire fraud is codified at 18 U.S.C. § 1349 (2012). Honest-services wire fraud is codified at 18 U.S.C. § 1343 (2012). See also 18 U.S.C. § 1346 (defining scheme to defraud under the mail and wire fraud statutes to include a scheme “to deprive another of the intangible right of honest services”). Conspiracy to obtain property under color of official rights and obtaining property under color of official right, also known as Hobbs Act violations, are codified at 18 U.S.C. § 1951 (2012). The false statements statute at issue is codified at 18 U.S.C. § 1014 (2012).

        [4].    Verdict, supra note 1.

        [5].    See Indictment, supra note 2, ¶¶ 108–23. The relevant obstruction charge is codified at 18 U.S.C. § 1512(c)(2) (2012).

 

2015 Annual Survey: Taxation

Developments in Animal Law: An Evolving Area in Virginia Law

Ryan Murphy *

On December 15, 2013, my wife and I welcomed a puppy into our family. We love dogs, grew up with them, but we had never raised one (or any living creature for that matter). As I drove to our Richmond Fan apartment from the foster home in Goochland, I felt helpless while he scratched at the carrier, frantic and screeching. During his first weeks with us, he smelled, relieved himself frequently and anywhere, and exhibited signs of abdominal distress that sent us on a trip to the companion animal equivalent of an emergency room.

Two years later he chases cats, retrieves sticks, splashes in mud, and chews and consumes things too obscene to mention. He learns tricks and the names of his toys.[1] He ignores commands. He has also begun grunting (no other word could describe the peculiar emanation) at 6:00 PM until I let him outside.[2] And I think he loves us.[3]

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*   J.D., 2014, University of Richmond School of Law; B.A., 2007, University of Virginia. I am grateful to Assistant Attorney General Michelle Welch for discussing the newly created Animal Law Unit and her comments on Part I of this article. Thank you also to Sarah Murphy, who provided comments and suggestions, and the University of Richmond Law Review staff. The views and opinions expressed herein are those of the author and do not necessarily reflect the position of his employer.

        [1].    See generally Monique A.R. Udell & C.D.L. Wynne, A Review of Domestic Dogs’ (Canis Familiaris) Human-Like Behaviors: Or Why Behavior Analysts Should Stop Worrying and Love Their Dogs, 89 J. Experimental Analysis of Behav. 247, 249, 253 (2008) (citing examples of dogs building “vocabularies”).

        [2].    See id. at 251–52 (citing a study indicating that dogs “cue” humans).

        [3].    See Gregory S. Berns, Andrew M. Brooks & Mark Spivak, Scent of the Familiar: An fMRI Study of Canine Brain Responses to Familiar and Unfamiliar Human and Dog Odors, 110 Behav. Processes 37, 44 (2015); Luke E. Stoeckel, Lori S. Palley, Randy L. Gollub, Steven M. Niemi & Anne Eden Evins, Patterns of Brain Activation when Mothers View Their Own Child and Dog: An fMRI Study, 9 PLOS ONE 1, 6, 9 (2014); cf. Marc Bekoff, Animal Emotions: Exploring Passionate Natures, 50 BioScience 861, 861, 864, 868 (2000) (positing that animals feel a variety of emotions, while recognizing arguments that humans indulge in a certain amount of projection).

 

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