Annual Survey 2018 | University of Richmond Law Review

Craig D. Bell* & Michael H. Brady**

This article reviews significant recent developments in the laws affecting Virginia state and local taxation. Its sections cover legislative activity, judicial decisions, and selected opinions or pronouncements from the Virginia Department of Taxation and the Attorney General of Virginia over the past year.

* 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 is the immediate past chair of 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 Master 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.
** Counsel, McGuireWoods LLP, Richmond, Virginia. J.D., 2009, University of Texas School of Law; B.S., 2006, Liberty University. Following law school Mr. Brady clerked for Chief Justice Cynthia D. Kinser of the Supreme Court of Virginia from 2009 to 2011. He then served as the assistant solicitor general in the Office of the Attorney General of Virginia from 2011 to 2014, joining McGuireWoods LLP in 2014.

Wills, Trusts, and Estates

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J. William Gray, Jr.* & Katherine E. Ramsey**

The 2018 Virginia General Assembly enacted legislation to conform the interpretation of wills with trusts, revised the recent trust decanting and augmented estate statutes, and provided a procedure for resolving doctor/patient disputes over appropriate medical care. It also confirmed the creditor protection available for life insurance and annuities, and addressed certain entities’ eligibility for real and personal property tax exemptions, annual disclosures of charitable organizations’ administrative and charitable service expenses, virtual nonstock corporation member meetings, bank directors’ stock holdings, the disposition of unused tax credits at the taxpayer’s death, and fiduciary qualification without surety. The Supreme Court of Virginia handed down eight recent decisions addressing the presumption of undue influence, requirements for estoppel and preclusion, the signature requirement for a proper codicil, trust governing law and interpretation, the fiduciary duties of agents, the jurisdiction of Commissioners of Accounts, and appraisal requirements for state tax credits.

* Partner, McGuireWoods LLP, Richmond, Virginia. J.D., 1977, University of Virginia; B.S.I.E., B.A., 1973, Rutgers University.
** Partner, Virginia Estate & Trust Law, PLC, Richmond, Virginia. J.D., 1998, University of Virginia; M.S., 1988, Boston University; B.A., 1986, Virginia Polytechnic Institute and State University.

Closed Meetings Under FOIA Turn Fifty: The Old, the New, and What to Do

Tyler C. Southall*

The Commonwealth of Virginia boasts the location of the first permanent English settlement in the nation and takes pride in its long history of meetings of representative bodies. Since 1968, the Virginia Freedom of Information Act (“FOIA”) has ensured the public access to those meetings in order to provide that “[t]he affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government.” Although FOIA allows meetings to be closed to the public for various topics of discussion,3 one might expect to find that given Virginia’s long history and the law’s expectations of openness, Virginians would have long ago reached agreement on the law and practice surrounding open and closed meetings. However, since the beginning of 2016, legislators have pushed stricter penalties for violating FOIA, an elite public university found itself in a firestorm over a closed meeting, the Supreme Court of Virginia weighed in on a closed meeting case, and the Virginia Freedom of Information Act Advisory Council (“FOIA Council”) issued opinions reminding government entities of the nuances of the law. In a political environment that has become increasingly contentious, elected and appointed officials have reason to fear for the legal, ethical, and political implications of their actions every time they enter a closed meeting.

* County Attorney, Dinwiddie County, Virginia. J.D., 2009, University of Virginia School of Law; B.A., 2006, University of Virginia. All views expressed by the author are his own and not necessarily the views of Dinwiddie County.

Virginia Ranks Forty-Ninth of Fifty: The Need for Stronger Laws Supporting Foster Youth

Nadine Marsh-Carter*, Bruin S. Richardson, III**, Laura Ash-Brackley*** & Cassie Baudeán Cunningham****

In 2017, 446 youths left the foster care system in Virginia without a permanent family. The most recent data shows that nationwide, approximately 20,500 youths leave the foster care system without a permanent family each year. Out of fifty states, Virginia is ranked forty-ninth for the rate at which youth exit the foster care system without permanency. In 2016, Virginia had 19% of foster youth age out of foster care as compared to 8% nationally.

* President & Chief Executive Officer, Children’s Home Society of Virginia, Richmond, Virginia. J.D., 1995, University of Richmond School of Law; B.A., 1986, University of Richmond.
** Chief Advancement Officer, Children’s Home Society of Virginia, Richmond, Virginia. J.D., 1989, University of Michigan Law School; B.A., 1986, Washington and Lee University.
*** Chief Programs Officer, Children’s Home Society of Virginia, Richmond, Virginia. M.S.W., 1989, University of Maryland; B.S.W., 1985, West Virginia University.
**** Policy & Research Analyst, Children’s Home Society of Virginia, Richmond, Virginia. J.D., 2011, University of Richmond School of Law; B.A., 2008, Virginia Commonwealth University.

Private Ordering in the Old Dominion: A Solution to Frivolous Litigation or the Elimination of a Fundamental Shareholder Right?

Rebekah Briggs*

Shareholder litigation is an important mechanism in corporate law for holding directors accountable to shareholders. It provides a method by which shareholders can recover when directors breach their fiduciary duties to the shareholders or the corporation. Additionally, the threat of shareholder litigation acts as a deterrent to future management misconduct. Thus, the right to sue “forms part of the portfolio of monitoring and enforcement tools for policing whether managers are acting as loyal agents.”

*J.D. Candidate 2019, University of Richmond School of Law; B.A., 2015, University of Virginia. I would like to thank Professor Jessica Erickson for her invaluable guidance and feedback throughout the writing process. I would also like to thank the University of Richmond Law Review staff and editors, especially my final editor, Sora Ko, for their assistance in preparing this comment for publication.