North Carolina’s Superior and District courts are undergoing an operational sea change: electronic filing. For those of us who practice before federal courts and state appellate courts, electronic filing will be nothing new. Federal courts have used PACER since 1988[1] and North Carolina’s appellate courts have used electronic filing since 1998.[2] But for many of our colleagues, the Administrative Office of the Courts’ new journey into electronic filing will be a great departure from our standard practice at the state level and we, as practitioners, have a great deal to learn. To borrow from Homer, even an attorney learns something once it hits him.[3] But this is not something which we must be hit about the head with to accept. It is something we should embrace, as it will strengthen our practice and benefit all involved.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Professional Vitality Committeehttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngProfessional Vitality Committee2021-11-22 13:12:222021-11-22 15:01:19Join Me on an Odyssey to E-Filing, Won’t You?
Alterity ADR, the first national alternative dispute resolution firm to be founded and led by a Black woman, announced that Danae Woodward has joined the firm. Woodward focuses her practice in labor and employment law. She has experience both as a litigator and as an in-house attorney. Woodward practiced law as in-house counsel for 12 years in Charlotte and now practices with Woodward & Woodward PLLC, also located in Charlotte. She is a North Carolina Dispute Resolution Commission Certified Superior Court Mediator. She holds a J.D. from Emory University School of Law and a B.A. from the University Of Texas at Austin.
Campbell Law School Announces April Giancola Will Serve As the New Assistant Dean of Career Services and Professional Development
April Giancola has joined the senior staff of Campbell Law School as the Assistant Dean of Career Services and Professional Development. Giancola has 21 years of experience in legal and program management. She was the Director of Public Interest Advising for the University of North Carolina School of Law’s Career Development Office. She served as the Chief Legal Program Officer for Disability Rights N.C., as well as a civil attorney and post-conviction managing attorney for N.C. Prisoner Legal Services Inc. After earning her J.D. from the New England School of Law, she worked in the Maricopa County (Arizona) Public Defender’s Office as a trial attorney. Giancola also holds a B.S. in speech and communications from Emerson College. Giancola is certified to practice law in the Eastern, Middle and Western District Courts of North Carolina, the Fourth Circuit Court of Appeals and the U.S. Supreme Court. She is a member of the NCBA Minorities in the Profession Committee.
Brock Wolf Joins Hall Booth Smith
Hall Booth Smith announced that Brock Wolf has joined the firm’s Charlotte office. His area of focus is medical malpractice defense, data privacy and cyber security, and general liability litigation. Wolf has experience serving as a law clerk and summer associate with the firm. He received a J.D. from Wake Forest University School of Law. There, he was the managing editor of the Wake Forest Journal of Law & Policy. He obtained a B.A. from Virginia Tech.
The Law Office of Manisha P. Patel, PLLC Welcomes Emily L. Guarascio
Emily L. Guarascio has joined the Law Office of Manisha P. Patel, PLLC. Guarascio will focus her practice on family law. She earned a J.D. from Elon University School of Law, where she was a member of the Innocence Project, the Women’s Law Association, and Phi Alpha Delta Law Fraternity. She also holds a B.A. in Business Administration, magna cum laude, from Adelphi University. Read more
The American Bar Association reported in 2021 that young lawyers in the United States have an average of $108,000 of law school debt. In an effort to assist those lawyers who have dedicated their practice to public service, North Carolina Legal Education Assistance Foundation is offering public service attorneys the opportunity to apply for loan repayment assistance. Decisions will be based on debt load and income.
The application period closes December 3, 2021!
Before applying, please review the following eligibility requirements:
An applicant must be employed full time in North Carolina in a public interest field.
An applicant must have earned a J.D. degree from an ABA accredited law school and be a licensed member in good standing of the North Carolina State Bar.
Preference will be given to applicants with ten (10) years or less of active practice of law. These ten (10) years need not be consecutive.
An applicant’s Annual Gross Income (AGI) from all sources must not exceed $85,000.00 for a single person or $150,000.00 for a couple (spouses and domestic partners included) in the Adjusted Gross Income category of your most recent income taxes. Line 21 on Form 1040A.
An applicant must currently have at least $10,000.00 remaining in law school debt.
If you meet the above eligibility requirements, this link will bring you to the application page for NC LEAF: https://ncleaf.org/apply-now/. Thank you for your service!
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBA YLDhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBA YLD2021-11-19 16:50:422021-11-19 16:50:42Thank You, Student Loans, For Getting Me Through Law School – I Don’t Think I Can Ever Repay You
Wayne Ronald Boyles III was sworn in as the newest member of the North Carolina Rules Review Commission at its meeting on October 21, 2021, having been appointed to that position by the North Carolina House of Representatives Speaker Tim Moore.
Wayne Ronald Boyles III
Wayne is a native of Mount Airy. He graduated from the University of North Carolina at Chapel Hill in 1980 with a B.A. in political science. He moved to Washington, D.C. in 1981 and served on the United States Senate staff of Senator Mack Mattingly of Georgia from January 1981 until April of 1982 when he joined the staff of United States Senator Jesse Helms, where he served until 2003. He then served at the United States Department of Energy in the George W. Bush Administration from 2003 until 2007, at which time he founded a government relations firm in Alexandria, Va.
In 2018, Wayne and his wife Stephanie moved to Pinehurst, where in 2020 he founded Milvian Bridge Government and Public Affairs, LLC.
Margaret Currin is a retired Professor at Campbell Law School, where she was also Associate Dean, and a former United States Attorney for the EDNC.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Administrativehttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngAdministrative2021-11-19 15:42:502021-11-19 15:42:50Meet the Newest Member of the Rules Review Commission
On November 1, 2021, the Chief Judge of the Office of Administrative Hearings, Donald van der Vaart, issued a memorandum announcing all OAH records of every tax case will be available to the public following an administrative law judge’s final decision. https://www.oah.nc.gov/
The promotion of transparency in North Carolina tax appeals began two decades ago. At that time a taxpayer had the choice of paying an assessed tax and appealing to the Superior Court for de novo review or going through a prepayment administrative appeals process. The latter started with a hearing before an assistant Secretary of Revenue, appointed and employed by the Secretary of Revenue. The hearing at DOR was not governed by the rules of civil procedure, nor the rules of evidence, and taxpayers were rarely granted discovery. Yet, this proceeding set the record for all appeals that followed.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00TAXhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngTAX2021-11-19 12:08:192021-11-19 12:18:52OAH Tax Case Records Become Available to the Public
The Small Business Reorganization Act (“SBRA”), which added Subchapter V to Chapter 11 of the bankruptcy code, has been in effect for about 20 months. Small business debtors – principally defined as debtors with less than $2,725,625 in noncontingent liquidated debts under the Act (although Congress has raised that limit to $7.5 million through March 2022 as part of COVID-19 relief legislation) – may elect to have their cases administered under this new subchapter. A principal goal of the Act was to make Chapter 11 more accessible and affordable for small businesses. The Act does this in several ways, among them: allowing only the debtor to file a plan, generally requiring no disclosure statement, providing for the use of a form plan, eliminating creditors’ committees, eliminating the absolute priority rule, and permitting the court to cram down a plan of reorganization even if all classes of creditors oppose it. The most prominent change, though, is the creation of the Subchapter V trustee.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Bankruptcyhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngBankruptcy2021-11-11 10:20:262021-11-12 15:42:49Understanding the Purpose of the Subchapter V Trustee
The most common penalties assessed by the IRS are the failure to file and failure to pay penalties under Section 6651. However, another common penalty is the failure to pre-pay penalty assessed pursuant to Section 6654 where a taxpayer who is required to make quarterly payments fails to make the payments. Section 6651 penalties can be abated by a showing of reasonable cause and not willful neglect. In contrast, Section 6654 has very specific rules about when a waiver can be granted.
Section 6654(e) provides narrow exceptions for the failure to pre-pay penalty. First, subsection (e)(1) provides an exception where the tax shown on the return is less than $1,000. Second, subsection (e)(2) provides an exception for U.S. citizens and residents who did not have any tax liability in the prior year. Third, subsection (e)(3)(A) provides a waiver may be granted where there is a casualty, disaster, or some other unusual circumstances that would cause the imposition of the penalty to be against equity and good conscience. That standard is unclear.
The fourth exception, which is in subsection (e)(3)(B), is for reasonable cause and not willful neglect, but only if the taxpayer either (a) retired after having attained the age of 62 within the year for which the estimated payments were required to be made or the year prior to such year or (b) became disabled within the year for which the payments were required to be made or the year prior to such year. Qualifying for either (a) or (b) does not automatically waive the penalty, but it allows the taxpayer to argue reasonable cause exists for a waiver of the penalty.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00TAXhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngTAX2021-11-10 11:21:272021-11-10 11:21:27Penalty Waiver for Failure to Pre-Pay Penalties
All the divorce laws are still wrong. Nothing has changed in the past 90 days. Only two people responded to my last post, and both basically said “Ketan, you are right.” I’m 2-0.
The softball issues are over. Remember, I’m trying to point out black holes in how things operate within our family law world.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00FamilyLawhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngFamilyLaw2021-11-10 09:21:202021-11-22 09:50:57Equitable Distribution: Laws are Still Wrong, Says Ketan
If you regularly practice construction law, as I do, you are likely used to client requests for contract reviews, delay claims, defect claims, and the like. However, you may also find yourself receiving requests outside what we typically view as construction law – requests by your construction clients for assistance with licensing boards. With over 300 boards and commissions established in North Carolina, it is hardly surprising that the construction industry is subject to state licensure and regulation. This regulatory framework leads to a complex collision of construction law and administrative law.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Constructionhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngConstruction2021-11-09 09:43:392021-11-09 09:43:39Representing Your Clients Before Licensing Boards
With Veterans Day around the corner, I thought it would be timely to highlight the Military & Veterans Law (MVL) Section. The MVL Section was recently featured in Attorney at Law Magazine NC Triangle, Vol. 9, No. 4. The article highlights the work of our section and the important mission that drives our members. “When we needed them to safeguard our rights, these men and women answered the call to service. Now, it is our responsibility to protect their rights,” said Matthew Wilcut, past president of the section. Check out the full article in Attorney at Law Magazine here!
As a veteran, I am so proud to be a part of this section because of my fellow members. They are selfless legal professionals who are truly passionate about and committed to serving North Carolina’s military and veteran community. If you are interested in getting involved with the MVL Section or if you’re a legal professional who serves military members and veterans, join us on November 18 for a live webcast entitled “Helping Our Heroes: Representing Veterans Before the VA, BVA, CAVC and DoD.” This program will discuss a wide range of topics, including issues related to VA disability advocacy, military disability retirement pay, and early lease termination. This program has been approved for 7.00 MCLE hours.
Current president of the section, Patrick Wilson, reflected on the mission of the section in conjunction with the upcoming observance of Veterans Day stating, “We at the MVL especially value the occasion of Veterans Day to thank and honor those men and women in uniform who have sacrificed so much and that we take the opportunities available with the MVL to do right by them.”
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00MilitaryandVeteranshttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngMilitaryandVeterans2021-11-09 09:43:102021-11-10 10:41:39November Update: Recent Article Highlights MVL Section, Plus Register for This Month's CLE
Join Me on an Odyssey to E-Filing, Won’t You?
Featured PostsNorth Carolina’s Superior and District courts are undergoing an operational sea change: electronic filing. For those of us who practice before federal courts and state appellate courts, electronic filing will be nothing new. Federal courts have used PACER since 1988[1] and North Carolina’s appellate courts have used electronic filing since 1998.[2] But for many of our colleagues, the Administrative Office of the Courts’ new journey into electronic filing will be a great departure from our standard practice at the state level and we, as practitioners, have a great deal to learn. To borrow from Homer, even an attorney learns something once it hits him.[3] But this is not something which we must be hit about the head with to accept. It is something we should embrace, as it will strengthen our practice and benefit all involved.
Read more
Checking In: Nov. 23, 2021
Checking InCompiled by Jessica Junqueira
Alterity ADR Welcomes Danae Woodward
Alterity ADR, the first national alternative dispute resolution firm to be founded and led by a Black woman, announced that Danae Woodward has joined the firm. Woodward focuses her practice in labor and employment law. She has experience both as a litigator and as an in-house attorney. Woodward practiced law as in-house counsel for 12 years in Charlotte and now practices with Woodward & Woodward PLLC, also located in Charlotte. She is a North Carolina Dispute Resolution Commission Certified Superior Court Mediator. She holds a J.D. from Emory University School of Law and a B.A. from the University Of Texas at Austin.
Campbell Law School Announces April Giancola Will Serve As the New Assistant Dean of Career Services and Professional Development
Brock Wolf Joins Hall Booth Smith
The Law Office of Manisha P. Patel, PLLC Welcomes Emily L. Guarascio
Read more
Thank You, Student Loans, For Getting Me Through Law School – I Don’t Think I Can Ever Repay You
Young Lawyers DivisionThe American Bar Association reported in 2021 that young lawyers in the United States have an average of $108,000 of law school debt. In an effort to assist those lawyers who have dedicated their practice to public service, North Carolina Legal Education Assistance Foundation is offering public service attorneys the opportunity to apply for loan repayment assistance. Decisions will be based on debt load and income.
The application period closes December 3, 2021!
Before applying, please review the following eligibility requirements:
If you meet the above eligibility requirements, this link will bring you to the application page for NC LEAF: https://ncleaf.org/apply-now/. Thank you for your service!
Meet the Newest Member of the Rules Review Commission
Administrative LawBy Margaret Currin
Wayne Ronald Boyles III was sworn in as the newest member of the North Carolina Rules Review Commission at its meeting on October 21, 2021, having been appointed to that position by the North Carolina House of Representatives Speaker Tim Moore.
Wayne Ronald Boyles III
Wayne is a native of Mount Airy. He graduated from the University of North Carolina at Chapel Hill in 1980 with a B.A. in political science. He moved to Washington, D.C. in 1981 and served on the United States Senate staff of Senator Mack Mattingly of Georgia from January 1981 until April of 1982 when he joined the staff of United States Senator Jesse Helms, where he served until 2003. He then served at the United States Department of Energy in the George W. Bush Administration from 2003 until 2007, at which time he founded a government relations firm in Alexandria, Va.
In 2018, Wayne and his wife Stephanie moved to Pinehurst, where in 2020 he founded Milvian Bridge Government and Public Affairs, LLC.
Margaret Currin is a retired Professor at Campbell Law School, where she was also Associate Dean, and a former United States Attorney for the EDNC.
OAH Tax Case Records Become Available to the Public
Tax SectionBy Linda Nelson
On November 1, 2021, the Chief Judge of the Office of Administrative Hearings, Donald van der Vaart, issued a memorandum announcing all OAH records of every tax case will be available to the public following an administrative law judge’s final decision. https://www.oah.nc.gov/
The promotion of transparency in North Carolina tax appeals began two decades ago. At that time a taxpayer had the choice of paying an assessed tax and appealing to the Superior Court for de novo review or going through a prepayment administrative appeals process. The latter started with a hearing before an assistant Secretary of Revenue, appointed and employed by the Secretary of Revenue. The hearing at DOR was not governed by the rules of civil procedure, nor the rules of evidence, and taxpayers were rarely granted discovery. Yet, this proceeding set the record for all appeals that followed.
Read more
Understanding the Purpose of the Subchapter V Trustee
BankruptcyThe Small Business Reorganization Act (“SBRA”), which added Subchapter V to Chapter 11 of the bankruptcy code, has been in effect for about 20 months. Small business debtors – principally defined as debtors with less than $2,725,625 in noncontingent liquidated debts under the Act (although Congress has raised that limit to $7.5 million through March 2022 as part of COVID-19 relief legislation) – may elect to have their cases administered under this new subchapter. A principal goal of the Act was to make Chapter 11 more accessible and affordable for small businesses. The Act does this in several ways, among them: allowing only the debtor to file a plan, generally requiring no disclosure statement, providing for the use of a form plan, eliminating creditors’ committees, eliminating the absolute priority rule, and permitting the court to cram down a plan of reorganization even if all classes of creditors oppose it. The most prominent change, though, is the creation of the Subchapter V trustee.
Read more
Penalty Waiver for Failure to Pre-Pay Penalties
Tax SectionThe most common penalties assessed by the IRS are the failure to file and failure to pay penalties under Section 6651. However, another common penalty is the failure to pre-pay penalty assessed pursuant to Section 6654 where a taxpayer who is required to make quarterly payments fails to make the payments. Section 6651 penalties can be abated by a showing of reasonable cause and not willful neglect. In contrast, Section 6654 has very specific rules about when a waiver can be granted.
Section 6654(e) provides narrow exceptions for the failure to pre-pay penalty. First, subsection (e)(1) provides an exception where the tax shown on the return is less than $1,000. Second, subsection (e)(2) provides an exception for U.S. citizens and residents who did not have any tax liability in the prior year. Third, subsection (e)(3)(A) provides a waiver may be granted where there is a casualty, disaster, or some other unusual circumstances that would cause the imposition of the penalty to be against equity and good conscience. That standard is unclear.
The fourth exception, which is in subsection (e)(3)(B), is for reasonable cause and not willful neglect, but only if the taxpayer either (a) retired after having attained the age of 62 within the year for which the estimated payments were required to be made or the year prior to such year or (b) became disabled within the year for which the payments were required to be made or the year prior to such year. Qualifying for either (a) or (b) does not automatically waive the penalty, but it allows the taxpayer to argue reasonable cause exists for a waiver of the penalty.
Equitable Distribution: Laws are Still Wrong, Says Ketan
Family Law SectionAll the divorce laws are still wrong. Nothing has changed in the past 90 days. Only two people responded to my last post, and both basically said “Ketan, you are right.” I’m 2-0.
The softball issues are over. Remember, I’m trying to point out black holes in how things operate within our family law world.
After reading this next post, you can click here to send me your comments and change my mind.
Read more
Representing Your Clients Before Licensing Boards
Construction Law SectionIf you regularly practice construction law, as I do, you are likely used to client requests for contract reviews, delay claims, defect claims, and the like. However, you may also find yourself receiving requests outside what we typically view as construction law – requests by your construction clients for assistance with licensing boards. With over 300 boards and commissions established in North Carolina, it is hardly surprising that the construction industry is subject to state licensure and regulation. This regulatory framework leads to a complex collision of construction law and administrative law.
Read more
November Update: Recent Article Highlights MVL Section, Plus Register for This Month’s CLE
Military & Veterans LawBy Jocelyn Mitnaul Mallette
With Veterans Day around the corner, I thought it would be timely to highlight the Military & Veterans Law (MVL) Section. The MVL Section was recently featured in Attorney at Law Magazine NC Triangle, Vol. 9, No. 4. The article highlights the work of our section and the important mission that drives our members. “When we needed them to safeguard our rights, these men and women answered the call to service. Now, it is our responsibility to protect their rights,” said Matthew Wilcut, past president of the section. Check out the full article in Attorney at Law Magazine here!
As a veteran, I am so proud to be a part of this section because of my fellow members. They are selfless legal professionals who are truly passionate about and committed to serving North Carolina’s military and veteran community. If you are interested in getting involved with the MVL Section or if you’re a legal professional who serves military members and veterans, join us on November 18 for a live webcast entitled “Helping Our Heroes: Representing Veterans Before the VA, BVA, CAVC and DoD.” This program will discuss a wide range of topics, including issues related to VA disability advocacy, military disability retirement pay, and early lease termination. This program has been approved for 7.00 MCLE hours.
Current president of the section, Patrick Wilson, reflected on the mission of the section in conjunction with the upcoming observance of Veterans Day stating, “We at the MVL especially value the occasion of Veterans Day to thank and honor those men and women in uniform who have sacrificed so much and that we take the opportunities available with the MVL to do right by them.”