Sneaking Suspicions
 Archives-- October 13-19, 2002

October 19, 2002
Notes from the Jazz Festival

Last night we really enjoyed listening to Will Downing and Patti Austin.

Downing opened the Jazz Festival show at Rehoboth's sold-out Convention Center, and his smooth delivery had dozens of ladies calling out to him almost immediately. During his set Downing displayed a remarkable range and a winning stage presence. He did great treatments of songs such as Don't Talk to Me Like That and Grandma's Hands, and finished with a wonderful rendition of Stop, Look, and Listen (to your heart).

Downing received a standing ovation from most of the audience, some of whom then began to move toward the back of the convention hall for the intermission we were told would occur between acts. They quickly took their seats, however, as Austin came out immediately to begin her headline act.

It was as if she didn't want the good vibes Downing created to drift away before she started her own performance.

Austin brought the crowd to roaring laughter within the first few minutes by comparing her upbringing on Bayshore, Long Island to Rehoboth--just a little locals versus tourists stuff, but effective.

She continued her comedic efforts between songs with very funny riffs about Oprah and Dr. Phil, being unmarried and "barren", and the dubious joys of menopause.

The crowd rocked with laughter as she sang a short song, "Cramps and Hot Flashes", with the band playing the perfect melody from the Moody Blues to fit the lyrics.

Austin also did a fabulous and funny, self-described "medley of my hit song" version of Baby Come To Me, including her impression of James Ingram seamlessly worked into the "duet".

The long-time performer also talked about September 11, in part because she "dodged a bullet" by missing her scheduled Flight 93, the one that landed in Pennsylvania. Her comments reflected a realistic but patriotic assessment of her country, with a level-headed tone we don't hear often enough expressed.

Austin was really impressive with her tender cover of Steven Bishop's It Might Be You--and I'm not just saying that because I'm a sucker for certain kinds of romantic songs.

She finished her set with a rousing version of Quincy Jones' The Dude, which won a Grammy in 1982. Since she sang it on the original recording, I suppose you could say she covered herself. It was a great performance, and capped a fine evening's entertainment.

Tonight, it's Chaka Kahn. More notes tomorrow.

October 18, 2002
Today's the day the teddy bears have their recall*

Our friends at IKEA find themselves forced to recall 57,000 teddy bears. According to news reports, the colorful Indonesian imports use plastic beads for filling that

could come out, posing a hazard to young children who might accidentally inhale them.

Fortunately, there were no actual reported incidents, according to the Consumer Product Safety Commission.

The bears were sold from August 2001 through just last September, and as expected with IKEA products, had a distinctive name:

SNUTTIG

The sound of that one would surely roll right off a ten-year-old child's tongue, now wouldn't it?

*A bit of word play with the famous song. This link includes a MIDI rendition.

Click here for this week's golf column, if you'd like. It's about how golf and geese don't go together.

October 17, 2002
Sometimes having your papers in order just isn’t enough

The tax code is a marvelously detailed device for raising revenue, a fact which often frustrates those who treasure simplicity. In at least some beneficial respects, however, the tax law’s complexity is not a bug, it’s a feature.

In part that’s because the level of taxation sometimes charged against a taxpayer can also reduce one’s, shall we say, public-spiritedness, and replace it with an equally impressive interest in schemes to evade responsibility.

Therefore, as detailed in a recent Eleventh Circuit decision affirming a Tax Court ruling, the IRS code and regulations sometimes require strict compliance with highly detailed arrangements, because a simpler scheme actually invites abuse.

In addition, this opinion re-affirms a principle that applies to many other endeavors—what you actually did is far more important than whether your paperwork is in order.

Melvine B. Atkinson was a wealthy philanthropist. In 1991, her advisors arranged her affairs such that her estate would eventually make a large charitable contribution, after first setting up two separate trusts required under the complicated IRS rules governing “charitable remainder annuity trusts” (CRATs).  Ms. Atkinson was the primary beneficiary, and after her death a series of other beneficiaries then became eligible to receive certain trust assets before the remainder of the trust estate went to the charity.

To be a valid CRAT, the IRS requires that a minimum of 5% of the amount initially going into the “annuity remainder trust” had to be paid out to the initial beneficiary each year.  In this case, the annuity trust started with $4 million in stock, and therefore $200,000 was to go to Ms. Atkinson annually. The second trust agreement, called the “administrative trust,” was established with $1 million in stock to handle other debts of the estate, Ms. Atkinson’s funeral expenses, and any estate taxes that might be due.

Once she died, the other beneficiaries had the option to receive money from the annuity trust. They could also refuse the offer if they didn’t also agree to assume any estate tax liability.

The charities would only receive the money from the trust once all the beneficiaries either refused their portions, or took it and eventually died themselves.

This CRAT setup is legal, but the detailed code requirements reflect the potential pitfalls for both the charities and the IRS, as the appellate court noted:

[W]en a decedent donates a remainder interest in property to charity, the valuation of the charitable deduction becomes more difficult. The estate tax return might be filed before the charity's interest in the property becomes possessory and can be conclusively valued for purposes of claiming a charitable deduction. This temporal disconnect provides an avenue by which unscrupulous estates may claim a large charitable deduction, then manage the split-interest property in such a way that the benefit to the non-charitable beneficiaries is maximized, with the charity ultimately receiving much less value than that claimed as a deduction on the estate tax return. 

Imagine that.

After Ms. Atkinson died, her caretaker was the only beneficiary who agreed to take the money. Even so, she sued the estate to keep from paying the estate tax. Eventually, the trustee settled the claim. The caretaker never did pay the estate taxes.

Before her claim was settled, however, the estate tax returns had to be filed. On the combined gross estate value of the two trusts and other assets totaling over $6.1 million, the estate claimed a charitable deduction of just under $3.9 million.

The IRS picked the Atkinson return for an audit, however, and its officials were not happy: 

The Tax Court found that no annuity payments were ever actually made to Atkinson from the assets of the annuity trust. The estate continues to claim that checks were sent to Atkinson, but that Atkinson saw no need to cash them because her material needs were amply met by non-trust assets. However, this claim is undercut by the fact that the estate produced no copies of these checks or the cover letters that supposedly accompanied the checks to Atkinson, nor did the annuity trust's ledger reflect any outgoing annuity payments to Atkinson during her lifetime. 

Based on non-compliance with the remainder trust rules, the IRS disallowed the charitable deduction, leading to an eventual estate tax bill of $2,654,976.

The Tax Court upheld the agency, and this appeal followed.

The Eleventh Circuit panel did not feel particularly generous in reviewing this case: 

To preserve the estate's ability to claim a charitable deduction for a remainder interest in property, the trust must not only be set up as a CRAT, but it must also comply with the CRAT statutory requirements from its formation to the final disposition of the trust's assets. Treas. Reg. § 1.664-1(a)(4) (as amended in 2001).… 

The documents that establish the Atkinson annuity trust track the CRAT requirements to the letter. However, the Atkinson annuity trust failed to comply with the CRAT rules throughout its existence. Yearly annuity payments to Atkinson were not made during her lifetime. Accordingly, since the CRAT regulations were not scrupulously followed through the life of the trust, a charitable deduction is not appropriate….

In exchange for the significant benefits of allowing a present charitable deduction, even when the actual charitable donation is not to occur until the remainder interest in the property becomes possessory, and in allowing the assets of the trust to grow tax-free, the Code requires adherence to the CRAT rules. It is not sufficient to establish a trust under the CRAT rules, then completely ignore the rules during the trust's administration, thereby defeating the policy interests advanced by Congress in enacting the rules themselves.

Ouch.

Based on this decision, I imagine that a few CPAs, trust companies, and estate tax attorneys will be closely checking their files.

Some might also need to make sure they are paid up on their errors and omissions policies.

October 16, 2002
Jazz Festival Time

In the last decade or so, the local tourist industry where we live tried several ways to expand the beach-oriented economy as much as possible, on both sides of summer. The Rehoboth Beach Jazz Festival is now among the most successful events on what's called "the shoulder season calendar" around here.

The folks who put this together expect between 15,000 to 20,000 jazz fans to come to Rehoboth from October 17-20 for a great weekend of music.

In addition to the headline acts, such as Chaka Khan, Patti Austin, and Boney James, there will be plenty of other opportunities to hear jazz in the many participating restaurants all weekend. It's a great feeling to walk around town and hear the live music pouring out the doors of so many places all at once.

We attended the opening event for the festival tonight, at Sydney's Blues and Jazz Restaurant. Sydney Arzt hosted her annual Young Musicians Concert, which featured the Cape Henlopen High School Jazz Ensemble and several other young performers, including a young lady we know very well.

In my completely unbiased view as a proud parent, she and the rest of the kids were great.

October 15, 2002
Some deals just can’t be made

This one is right up my alley, so to speak.

A three-judge panel of the Tenth Circuit Court of Appeals issued a fascinating First Amendment decision that limits Salt Lake City’s attempt to have its cake and eat it, too.

Main Street runs north and south through Utah’s biggest city. Not surprisingly, the Church of Jesus Christ of Latter-Day Saints (LDS) owns a lot of property in the area, including two city blocks to the west and east of Main Street, where both North and South Temple Streets intersect Main.

The Mormon Tabernacle Church is on the west side of Main Street, and LDS Church offices are on the east side. As one might imagine, the area is a huge tourist attraction.

Some years ago, the Church bought the subsurface rights under this portion of Main Street from the City, and built a huge underground parking garage there.

In the late 1990s, the Church and the City discussed the possibility of having the church buy up the remaining rights in Main Street. By 1999, the two entities had worked out the details, including the following:

• Main Street would be sold to the LDS Church and become the Main Street Plaza.

• The City reserved an easement “for pedestrian access and passage only” through the area to other parts of Salt Lake's downtown area.

• The Church would not erect any perimeter fences or gates along the North or South Temple rights of way.

• Nothing in the passageway easement was to be “deemed to create or constitute a public forum, limited or otherwise, on the Property.”

• The Church obtained the right to regulate any other activities on the area other than passage through it, such as restrictions on demonstrating, drinking, erecting signs and displays, or soliciting.

• A view corridor blocked construction of buildings on what would become the pedestrian plaza.

After the City Council passed the ordinance consummating the deal, the LDS Church spent millions of dollars to spruce up its little part of Main Street. The Church installed paved walking areas through the site, in keeping with the City easement, as well as benches, landscape planters, a reflecting pool, and other amenities.

What the new arrangement no longer provided for, however, was a place for Unitarians with a potential interest in sharing their own religious message on the newly “private” part of Main Street.

Faced with this new limitation on their right to proselytize in Salt Lake City, the local Unitarian church, the Utah chapter of NOW, and other organizations sued. The Federal District Judge ruled in favor of the City and Church concerning the “ecclesiastical park,” as the Church described it, and the inevitable appeal followed.

The Tenth Circuit panel reversed. The following summarizes the basic holding:

• The City’s interest in maintaining the public right of use of Main Street through the area was for traditional transportation purposes, to enable pedestrians to walk through the area to reach other parts of Salt Lake City.

• This section of Main Street was not a dead-end or single-destination access pedestrian area.

• Given the City’s desire to maintain this right of passage, it couldn’t avoid the other obligations that inevitably accompany meeting that objective, such as the obligation to recognize and respect the free speech rights of others.

• Main Street Plaza remains a public forum, and the easement giving the LDS Church the right to control any such expressive conduct is simply invalid.

Here’s the nut graf, as our journalist friends would call it:

In retaining the easement, the City not only retained the most important functions of the property, but also the functions most often associated with speech activities. [citation omitted.] Thus, while the government has the power to change the status of a forum, "when property is a protected public forum the State may not by fiat assert broad control over speech or expressive activities; it must alter the objective physical character or uses of the property, and bear the attendant costs." ISKON, 505 U.S. at 700 (Kennedy, J., concurring in judgment) (emphasis added); see also Hawkins, 170 F.3d at 1287-88 (to eliminate public forum state must alter physical characteristics and bear attendant costs) (quotation and citation omitted). We are convinced the City has attempted to change the forum's status without bearing the attendant costs, by retaining the pedestrian easement but eliminating the speech previously permitted on the same property. In effect, the City wants to have its cake and eat it too, but it cannot do so under the First Amendment.

The panel was even more blunt near the end of its opinion:

If it wants an easement, the City must permit speech on the easement. Otherwise, it must relinquish the easement so the parcel becomes entirely private….The City's attempt to create a public throughway but withhold speech rights on that throughway is ineffectual simply because the City has attempted to exercise power the First Amendment does not afford.

Click here for two local reports of the reaction in Salt Lake City to this decision. At least one non-LDS preacher is pretty pleased at the result. However, the LDS Church is reportedly considering a request for an en banc rehearing of the panel decision, instead of seeking immediate Supreme Court review.

Considering the money the Mormon Church spent on the Plaza, that kind of response is understandable.

On the other hand, based on my experience with First Amendment issues and public rights-of-way the City’s deal with the Mormons was a flawed concept from the beginning. The only way that kind of control could have been ceded to the Church was to make a clean break of it, at least with respect to public access.  

If Main Street Plaza became a cul-de-sac with no access to any place other than Church property, the deal could have worked, including the provision that gave the LDS Church effective jurisdiction. As long as the City wanted to keep the way open for those walking through downtown, however, Main Street Plaza’s status as a public forum had to be respected.  

Predicting court decisions is a dicey proposition at best. Nonetheless, I believe the position set forth by this Tenth Circuit panel will be the eventual final disposition of this interesting case.

October 15, 2002
Two important posts you should read

If you haven't already, please click to the following posts, read them, and pass them along to others.

First, on the domestic front, Jim Henley wrote a haunting, thoughtful essay that suggests a type of worker whose schedule could fit the timing of the killings in the DC area, including last night's killing at the Home Depot in Falls Church.

Second, on the international front, Gary Farber explains the need for concerted, ruthless, and complete action against smallpox weapons and those who threaten to use them.

October 14, 2002
Diet and Fashion Tip

This morning’s statewide paper carried once again the usual advertisement for a weight-loss business that shall remain nameless and URL-less on this site. Among other interesting enticements, the ad suggested that a certain Nancy H. went from a Size 16 to a Size 4 in Seven Weeks.

Accomplishing this or even a slightly less daunting goal may be easier than one might imagine. Here’s a seven-week method that could work, but without adhering to the particular path to improvement offered by this company:

• Follow the diet regimen chronicled by Jane Galt, but for the first five weeks instead of just two, as Jane attempted.

• During that same time frame, obtain a second job that will earn you extra money while also keeping you from ready access to your home's pantry or refrigerator.
• Quit the second job and the diet on the same day, but do not spend your new money on all the food you’ve successfully avoided during those five weeks.
• Instead, take the money from the second job, and begin an intensive two-week search of higher-end fashion stores, such as Versace or Ann Taylor. Buy yourself a few outfits.
• This may take the entire fourteen days, depending on your available time and the season, but you should be able to drop from a 14 or 16, as sold in places like Value City, down to at least a pleasant 6 or 8.

Some might call this vanity sizing.

I call it a workable diet and fashion tip.

October 14, 2002
Rally Time

Congratulations to the Anaheim Angels and their biggest fan, Matt Welch, on the team's stunning victory in the ALCS.

Among other impressive sights and sounds of the playoff series, I thought the Rally Monkey and the red sound tubes used by the fans were just great.

I don’t follow baseball religiously, but it seems that recently some baseball teams have a much-improved sense of how to involve the fans in the game, with stuff that’s much more fun than an organ or a taped trumpet bleating through the loudspeakers.

Our first exposure to this new attitude occurred in the 1993 inaugural season of the Colorado Rockies. We went to a Sunday afternoon game against the Cardinals, and were seated far up in the right field seats, but with a good view of the field and the scoreboard.

In the top of the ninth, the Rockies managed to give away their lead to St. Louis, as is often expected with expansion teams.

What we didn’t expect at that time was the sudden appearance of a video clip from Animal House on the scoreboard. There in full glory was John Belushi as Bluto, giving his stirring speech to his frat brothers, in a modified, PG rendition:

Bluto: Over? Did you say "over"? Nothing is over until we decide it is! Was it over when the Germans bombed Pearl Harbor? Hell no!
Otter: Germans?
Boon: Forget it, he's rolling.

The clip worked great for the fans. They roared and cheered.

I wish I could say it also worked for the Rockies that day, but it didn’t.

I’m sure it helped on other occasions, though.

October 14, 2002
Warehouse Architecture

Speaking of baseball, the warehouse picture James Lileks posted today on his Bleats page called to mind the famous Baltimore & Ohio Warehouse that forms the backdrop for the Baltimore Orioles, as well as a tempting target for homerun hitters who can blast beyond right field.

Finding a picture that would prove the point turned out to be a bit daunting, but if you look carefully you can see the same rounded window tops on the brickface.

October 13, 2002
Today’s Spam

A huge amount of spam is delivered every day to my HoleByHole.com e-mail address.

I’ve had this address listed on the site for contact purposes for over five years. At the time I started it, that kind of helpfulness toward one’s readers was considered the norm.

Now, of course, a vast collection of sphincters have collected the address and blithely send along their stuff for me to delete. It’s also the reason I can’t make it quite so easy for readers of this site to send me e-mail.

I once made the mistake of sending “do not send” messages back to the spammers. This attempt to reduce spam increased the number of pieces coming to me by about one-third.

Some of these folks not only took my address to send me stuff. They now use it as the alleged source of the spam. I occasionally receive these e-mails, and it’s pretty startling.

Nonetheless, I know these particular e-mails are bogus, because I have no investment interest in the bust enhancement industry and the other dodges used to separate money from the hopeful but clueless.

The spam is delivered off-site onto a host server, and I don’t have a way to filter it.

In the meantime, this is a typical morning’s harvest:

Have everything you ever wanted.
Top Notch Attorneys For Pennies.  
Feel better fschranck. 
Win a Tablet PC - ENTER TODAY.
Need a better future? 
How I Raked In $260,907.25 Singlehanded.
Boost your life with free Money. 
Enter to Win a Tablet PC. 
Freee business cards [with that attitude toward spelling? I don’t think so.]
Your Credit is CONFIRMED!  
Credit Card Issuance WIN $25,000,000 dollars.....!!
PhotoSuite Digital Software
All natural breast enhancer
Quick-bust breast enhancer.
Al... Quit Smoking in 21 Days Guaranteed
Turbo boost your sex life
Stressed About Cash? 

All of which leads inevitably to the following:

ATTENTION: Your mailbox is over its limit. 

Sigh.

October 12, 2002
Leave the Greyhounds to Us

This place is full of dogs.

That's not an aesthetic judgment about the tourists.

It's just the truth.

This is the eighth annual Greyhounds Reach the Beach weekend, and it's a visually stunning event.

The organizers expect about 3,000 retired racing greyhounds and 1,500 of their owners to fill all of the pet-friendly accommodations in Rehoboth and Dewey Beach.

The dogs are inordinately well-behaved. They are very, very quiet, and very, very thin. Their current owners are clearly dedicated to their animals, not least of which because the alternative for dogs who can no longer compete is not a pleasant one.

The greyhounds are often decked out in protective clothing, which, considering the last few days of steady rain, is a good thing.

The local merchants are more accepting of their canine customers this weekend than is usually the case, most likely because of the breed's calm demeanor. I spoke with a perfume store manager last night, and she told me that she's fine with the dogs coming into her store: "They're better behaved than the kids," she grinned.

There will be special presentations for the dog owners at various meeting spots, and some vendors are here to sell their greyhound-related wares.

As a local, however, the impressive thing is to see so many dogs of one kind milling about the town, with their very kind, very proud owners enjoying the sights with so many like-minded folks.

NOTE: Click here for the latest golf book review. Driver, by Tim Southgate, is an entertaining novel about a troubled British country club and its new Club Secretary.

Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969
USA

fschranck-at-
sneakingsuspicions.com

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Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients.

That fact may become obvious later on, but it needs to be said here anyway.

© Frederick H. Schranck 2002