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npvadvisor
npvadvisor,
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Is it legal for a employer to refuse to buyout an employees

Resolved Question:

Is it legal for a employer to refuse to buyout an employee's home due to a Tax Lien on the mortgage from the IRS when there is clear equity in the home to pay off the lien at closing or to file a Certificate of Discharge, as allowable by the IRS?
Submitted: 12 months ago.
Category: California Employment Law
Expert:  npvadvisor replied 12 months ago.

Lane :

Hi,

Customer:

Hi Lane, any ideas?

Lane :

Hi there, In terms of legality, I can't find anything in the statute or case law (still perusing) that you could to FORCE them to do the buyout, without your taking any action first

Lane :

Have you thought about submitting something that would document the Fair Market Value to them (Market Comparable sales, Realtors can give you ideas from the MLS service too) then put something in writing that you will pay the pay the lien IR fiel the Cert?

Lane :

sorry for the typo: "... OR file the Cert"

Lane :

Whats the situation giving rise to the buyout .. IS this part of an offer made to other employees, etc?

Lane :

OIC the What have you tried so far piece now ...

Lane :

Do you have a firm offer for the new job?

Lane :

And is the ofer to buy in writing?

Lane :

OIC you're typin... I'll wait

Lane :

Now it looks as if you've stepped out of the chat (from my end) ... but, again, if you can give me specifics (was the job offer written, and did it include in the body of the letter the buyout offer, etc) You certainly have some contract law issue if so... Generally of you accept the offer (there's been offer and acceptance, on of the first elements of a contract) ... there must also be quantifiable, discernible terms ... and exchange of consideration of some sort, etc. ... If you can give me more of the specifics e can go from there

Lane :

Sorry for the typo, "IF you accept the offer..."

Lane :

I still don't see you coming into the chat session, so I'll move us to the "Q&A" mode. … Maybe that will help … (We can still continue a dialogue there, just not in real-time chat, as we can here)

Lane :

But, what this will come down to (in terms of anything actionable is a breach of contract issue) BUT for that to apply you will need to accept the offer (and again the details of how the offer was made, was the buyout a PART of that offer, etc., is critical here)

Lane :

You also my have a cash under RESCISSION of contract

Lane :

See this:


As respects right to rescind contract, when ground for suspicion exists, neglect to learn what might be known is counted as knowledge.


Brite v. W. J. Howey Co., 81 F.2d 840 (5th Cir. 1936)

Lane :

Again, still don't see you coming back into the chat here, so i'll post on more piece of research to see if you might be able to use as you discuss the possibilities with you atty


 

Lane :

Here's the grounds for rescission under CA law:

Lane :


West's Ann.Cal.Civ.Code § 1689


§ 1689. Grounds


Currentness






(a) A contract may be rescinded if all the parties thereto consent.





(b) A party to a contract may rescind the contract in the following cases:




(1) If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party.





(2) If the consideration for the obligation of the rescinding party fails, in whole or in part, through the fault of the party as to whom he rescinds.





(3) If the consideration for the obligation of the rescinding party becomes entirely void from any cause.





(4) If the consideration for the obligation of the rescinding party, before it is rendered to him, fails in a material respect from any cause.





(5) If the contract is unlawful for causes which do not appear in its terms or conditions, and the parties are not equally at fault.





(6) If the public interest will be prejudiced by permitting the contract to stand.





(7) Under the circumstances provided for in Sections 39, 1533, 1566, 17851, 17892, 1930 and 2314 of this code, Section 2470 of the Corporations Code3, Sections 331, 338, 359, 447, 1904 and 2030 of the Insurance Code or any other statute providing for rescission.









Cal. Civ. Code Ann. § 1689 (West)

Lane :

But again, if you can provide some specifics, we can go from there

Lane :

Thanks

Lane :

Lane

Customer: replied 11 months ago.

Lane, sorry - my end showed you offline.


 


Yes, my husband accepted the job a YEAR ago. We went through the entire relocation process with the company. Had an appraisal on the home through the relocation co., we were never given access to the appraisal, and in obtaining title information, they told us that because of the Tax Lien, they would be unable to buyout the home. At the time, we had a Tax Attorney handling the lien with the IRS and she offered to explain the Cert of Discharge to them, but they refused to speak with her. Told us we were on our own in selling the home.


 


It has become a great financial burden because our entire family have moved to Louisiana and are having trouble paying for the vacant CA home and trying to live here for an entire year.


 


All salaried employees are offered the Relocation service which includes the buyout option.

Expert:  npvadvisor replied 11 months ago.

OK, I must tell you firsy that I am not an attorney

As a CFP with 28 years of experience in the tax law, estate law, finace & securities law areas, - and as a final term Law School student having completed all of Contracts, Torts, Employment Discrimination, Federal Taxation, constitutional All and all of the other core classes (finishing up wil Corporate Law, Business Planing, Electronic Legal Research, Cross Profession Ethics and Legal Analysis & Writing this term ...

... I CAN tell you the following:


We are at the point now where you DO need to speak with an attorney IN THE JURISDICTION where the company has it's home office. The disclaimers on our site here will tell you that the attorneys here are not providing actual legl advice. WHAT we CAN do for you is get you ready for an efficient appointement WITH an attorney, licensed in the appropriate state.

Here, the jurisdiciton (unless the contract has a forum saving clause, stating where any legal action must be taken, or an arbitration clause stating where and how an arbitration must be tried before taking legal action) should be the state of the Company's home office - where the offer eminated.

ALSO, now that your husband IS now employed with the company you MAY want to speak with someone calling themselves a labor law attorney. Understand, however, that Employment Law is the body of law that governs the employee-employer relationship, i.e., the right to organize, collective bargaining, Title VII and other employment law issues, such as employment discriminaltion against a protected class, hostile work environment, employment at will iussues, wage & hours, health & safety, etc.

Here, in MY opinion what you have is a contract law issue. Some OVERLAP does exist as EMPLOYMENT CONTRACTS do come under the purview of labor law. What you have HERE, however, is a contract issue relative to the job OFFER (an important, although not neccesarily an overriding, distinction).

As you speak with an attoney, point out that distinction; that you believe that he/she should look at whether this JOB OFFER and acceptance was handled as part of an EMPLOYMENT CONTRACT or stands as a separate contract (that will become abundantly clear when you ask the attorney whether your husban is an at will employee or is WORKING under an employment contract.)




Where you have the most leverage, either way, is in the area of THE CONTRACT.


The essential elements necessary to form a binding contract are usually described as the following: i

• An Offer
• An Acceptance in strict compliance with the terms of the offer
Legal Purpose/Objective
• Mutuality of Obligation – also known as the “meeting of the minds
Consideration
Competent Parties ii


Offer
An offer is defined as the manifestation of the “willingness to enter into a bargain so made as to justify another person in understanding that his assent to the bargain is invited and will conclude it.”iii


Acceptance
Acceptance of an offer can occur in several ways: Acceptance of an offer is a manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer.iv

An acceptance must not change the terms of an offer. If it does, the offer is rejected.v

A material change in a proposed contract constitutes a counteroffer, which must be accepted by the other party.vi


Legal Purpose
The objective of the contract must be for a legal purpose. For example, a contract for illegal distribution of drugs is not a binding contract because the purpose for which it exists is not legal.


Mutuality of Obligation

This element is also known as the “meeting of the minds”. Mutuality of obligation refers to the parties’ mutual understanding and assent to the expression of their agreement.vii

The parties must agree to the same thing, in the same sense, at the same time. The determination of a meeting of their minds, and thus offer and acceptance, is based on the objective standard of what the parties said and did and not their subjective state of mind.viii

Unexpressed subjective intent is irrelevant. In determining whether mutual assent is present, the court looks to the communications between the parties and to the acts and circumstances surrounding these communications.ix

The offer must be clear and definite just as there must be a clear and definite acceptance of all terms contained in the offer.x

Where a meeting ofthe minds is contested, the determination of the existence of a contract is a question of fact.xi

If the fact finder determines that one party reasonably drew the inference of a promise from the other party’s conduct, that promise will be given effect in law.xii

To be enforceable, the parties must have agreed on the essential terms of the contract.xiii

However, parties may agree upon some contractual terms, understanding them to be an agreement and leave other contract terms to be made later.xiv

Full agreement on all contractual terms is the best practice and should be the norm. It is only when an essential term is left open for future negotiation that there is nothing more than an unenforceable agreement to agree.xv

Such an agreement is void as a contract.xvi

Any contract or mutual understanding between parties that differs materially from the original offer is open to legal challenge. Should any component of a negotiation tend toward a final result where a contract or agreement differs materially from the offer, that component of the negotiation should cease. If the component in question is critical to
the provision of a service or goods, the issuance of another offer that incorporates that component should be considered.


Certainty of Subject Matter
In general, a contract is legally binding only if its terms are sufficiently defined to enable a court to understand the parties’ obligations.xvii

The rules regarding indefiniteness of material terms of a contract are based on the concept that a party cannot accept an offer so as to form a contract unless the terms of that contract are reasonably certain.xviii

Thus, the material terms of a contract must be agreed upon before a court can enforce the contract.xix

Each contract should be considered separately to determine its material terms.

As a general rule, an agreement simply to enter into negotiations for a contract later also does not create an enforceable contract. Parties may agree on some of the terms of a contract and understand them to be an agreement, and yet leave other portions of the agreement to be made later. xx

Sometimes terms are omitted from contracts and assuming the omitted term is not an essential term, the courts have implied terms to preserve the enforceability of the contract should a legal challenge arise. A court may uphold an agreement by supplying missing terms.xxi

Historically, courts prefer to validate transactions rather than void them, but courts may not create a contract where none exists and they generally may not insert or eliminate essential terms. Whether or not a court will imply or supply missing contract terms will depend on the specific facts of the transaction. An example of terms that have been implied or supplied are time and place of performance.xxii


Consideration
Consideration is an essential element of any valid contract.xxiii

Consideration consists of either a benefit to the promisor or a detriment to the promisee.xxiv

It is a present exchange bargained for in return for a promise. It may consist of some right, interest, profit, or benefit that accrues to one party, or alternatively, of some forbearance, loss or responsibility that is undertaken or incurred by the other party.xxv

It is not necessary for a contract to be supported by a monetary consideration.xxvi


Competent Parties

Parties to a contract must be competent and authorized to enter into a contract.




ALSO, it is important that you understand that contracts are analyzed using an objective (rather than sunjective) standard ... What hat means is that intent doesn't matter. (It's what a reasonable person on the sidelines hearing this contract take place or reading this contract would think that matters, NOT what one of the parties was TRYING, or intended, to do).

You may also want to remind your sttaorney that the STATUS of FRAUDS does not require that a job offer need to be in writing (the EMPLOYMENT, possibly, but a simple job offer? no). See this: http://en.wikipedia.org/wiki/Statute_of_frauds



Given your situation about having to carry the California house, you may also want to discuss the concepts of Detrimental Reliance and Estoppel.

Volumes have been written about all of the possible ins and outs of contracts, but the botXXXXX XXXXXne here is that a promise was made and not carried out.


Below, in fine print are the legal citiations supporting the Contract elements breakdown above.

Sorry for the Data dump but having this basic inderstanding should help you have a much more efficient exchange with an attorney and get you thinking about some of the avenues you may pursue here.


Hope this helps

Lane

If this HAS helped,
I would appreciate a feedback rating of 3 (OK) or better … That's the only way they will pay us here.

HOWEVER, if you need more on this, PLEASE COME BACK here, so you won't be charged for another question.

i See Buxani v. Nussbaum, 940 S. W. 2d 350, 352 (Tex App.-San Antonio 1997, no writ); and Hallmark v Hand, 885 S.W.2d 471, 476 (Tex.App.-El Paso 1994, writ denied): see also McCulley Fine Arts Gallery, Inc. v “X” Partners, 860 S.W.2d 473, 477 (Tex. App. - El Paso, 1993, no writ).


ii See Roark v. Stallworth Oil and Gas Inc., 813 S.W.2d 492,496 (Tex. 1991); and see also Federal Sign v. Texas Southern University, 951 S.W.2d 401,408 (Tex. 1997) rehearing of cause overruled (Oct 02, 1997).


iii Restatement (Second) of Contracts §24 (1981).


ivRestatement (Second) of Contracts §50 (1) (1981).


v United Concrete Pipe Corp. v Spin-Line Co., 430 S.W.2d 360, 364 (Tex. 1968).


vi Antonini v. Harris County Appraisal Dist. 999 S.W.2d 608, 611 (Tex.App.-Houston [14th Dist] 1999, no pet.)


vii Weynand v Weynand, 990 S.W.2d 843, 846 (Tex. App.-Dallas 1999, pet. denied).


viii Copeland v Alsobrook, 3 S.W.2d 598, 604 (Tex. App. - San Antonio 1999, pet. denied).


ix Wiley V. Bertelson, 770 S.W.2d 878,882 (Tex. App.-Texarkana 1989, no writ).


x Gulf Coast Farmers Co-op v. Valley Co-op Oil Mill. 572 S.W.2d 726, 737(Tex. Civ. App. - Corpus Christi 1978, no writ).


xi Runnells v. Firestone 746 S.W.2d 845, 849 (Tex. App. - Houston [14th Dist.] 1988), writ denied per curiam, 870 S.W.2d 240 (Tex. 1988).


xii Copeland, 3 S.W.3d at 605


xiii T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992).


xiv Komet v. Graves, 40 S.W.3d 596, 602 (Tex. App.-San Antonio 2001, no pet.); Hardin Constr. Group, Inc. v Strictly Painting, Inc. 945 S. W. 2d 308, 313 (Tex App. - San Antonio 1997, orig. proceeding): Texas Oil Co. v. Tenneco Inc., 917 S.W.2d 826, 830 (Tex. App.-Houston [14th Dist.] 1994), rev’d on other grounds sub nom. Morgan Stanley & Co., Inc. v. Texas Oil Co., 958 S.W.2d 178 (Tex. 1997).


xv T.O. Stanley Boot Co., 847 S.W.2d at 221; Scott v. Ingle Bros. Pac., Inc. 489 S.W. 2d 554, 555 (Tex. 1972); Texas Oil Co, 917 S.W.2d at 830; Komet, 40 S.W.3d at 602.


xvi Texas Oil Co, 917 S.W.2d at 830. T.O. Stanley Boot Co. v Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992).


xvii Fort Worth Indep. Sch. Dist. V. City of Fort Worth, 22 S.W.3d 832, 846 (Texas. 2000) (quoting Texas Oil Co. v. Tenneco Inc., 917 S.W. 2d 826, 830 (Tex. App.-Houston [14th Dist] 1994), rev’d on other grounds, 958 S.W.2d 178 (Tex. 1997)).


xix T.O. Stanley Boot Co., 847 S.W.2d at 221.


xx Scott v. Ingle Bros. Pacific., Inc., 489 S.W.2d 554, 555 (Tex. 1972); City of Fort Worth v. Gene Hill Equip. Co., 761 S.W.2d 816, 820 (Texas.App.- Dallas, 1991).


xxi Texas Oil Co., 917 S.W.2d at 830.


xxii When a contract leaves open the time and place of performance, the law may imply that the time of performance was to be reasonable time. Moore v. Dilworth, 142 Tex. 538, 542 179 S.W.2d 940, 942 (1944). What is reasonable depends on the facts and circumstances as they existed at the date of the contract. Heritage Resources, Inc. v. Anschutz Corp., 689 S.W.2d 952, 955 (Tex.App.-El Paso 1985, writ ref’d n.r.e.). See also Solomon v. Greenblatt, 812 S.W.2d 7 Tex.Appl.-Dallas, 1991) (court implied the time and place of performance in a ‘consulting services’ contract for management consulting.).


xxiii Smith v. Renz, 840 S.W. 2d 701, 704 (Tex.App.-Corpus Christi 1992, writ denied).


xxiv Roark, 813 S.W.2d at 496.


xxv Solomon V. Greenblatt, 812 S.W.2d 7, 15(Tex.App.-Dallas 1991, no writ).
City of Crystal City v. Crystal City County Club, 486 S.W.2d 887,888 (Tex.Civ.App.-Beaumont 1972, writ ref’d n.r.e.); see also Jennings v. Radio Station KSCS, 96.3 FM, Inc., 708 S.W.2d 60, 61 9Tex.App.-Forth Worth 1986) rev’d on other grounds, 750 S.W.2d 760 (Texas 1988) (plaintiff/listener entitled to collect contest proceeds; consideration to radio station was gain in new listeners who hoped to win contest).

npvadvisor,
Satisfied Customers: 4026
Experience: 
npvadvisor and 2 other California Employment Law Specialists are ready to help you
Customer: replied 11 months ago.
It all helps so much. Thanks for taking the time to explain! Your weekend time means so much!
Expert:  npvadvisor replied 11 months ago.

No... Thank YOU

I hate seeing Employers begave this way.

Good luck with it.

If you'd like to
work with ME again just say "For Lane only," at the beginning of your next question.


Thanks again,

Lane



Lane


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