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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 37652
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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Im still in your chat room waiting to be redirected...to get

Customer Question

I'm still in your chat room waiting to be redirected...to get paid I would really like service...I got passed to a tax advisor but it is a real legal question...can You help me?
Submitted: 10 months ago.
Category: Legal
Expert:  Dimitry K., Esq. replied 10 months ago.
Thank you for your post. Please permit me to assist you.

I would be happy to help. What specifically is your question?
Customer: replied 10 months ago.


It's in the chat room sir, been waiting for 1.5 hrs to be redirected back to a lawyer

Expert:  Dimitry K., Esq. replied 10 months ago.
Sir,

I am a legal professional and I will try to help you. What is your question? I apologize but I do not see your initial posts.
Customer: replied 10 months ago.

I've been charged $38 for a redirect to a tax consult...mine is more a legal question Here is the chat history:


Customer:


I have an FSA [tax advantaged]. My medical insur. premium is also tax advantaged. I go to a doctor and he/she charged me a std co-pay and deductible and bills the health insurance provider. I paid the co-pay and deductible with my FSA. The doctor sends billing to my health insurance provider. After final reconciliation with the health insurance provider, the doctor realizes he/she "over charged" me for the co-pay and deductible and now has a surplus on the books. The doctor then sends a reimbursement check for excess money I paid [still tax advantaged money (?)] and I cash the check and spend the money on "milk", "eggs" or gambling in Las Vegas. What law have I broken, if any? What if I do this multiple times to get the tax free cash? Now, what if the FSA belongs to someone else? Is anyone responsible for the taxes?


Optional Information:
Country relating to Question: United States
State (if USA): Georgia
What have you tried so far?: I've always relied on Just answer to be my "go to" point first...I did call the IRS and they said ACA is so confusing...go figure.


Urgency: Medium
Level of Detail: Medium


Sent to Tax Experts Today at 7:40


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Megan C says:


7:43 PM


Hello! I am a CPA here to assist you with your tax questions. My goal is to provide you with excellent service today.


7:43 PM


How are you today?


7:44 PM


The answer to your question is simple - if you receive a refund of tax advantaged funds, and you don't use them for the tax exempt purpose (medical expenses) then you must include those refunds in your taxable income


7:44 PM


Place the receipt on the "other income" line of your tax return.


7:45 PM


If you don't pay tax on these funds, once they are not used for their purpose then that would be tax evasion.


7:48 PM


There's no room here to go around getting refunds on your medical expenses in order to get tax free income


Customer says:


7:49 PM


fine...I kept getting access denied when going to your chat


Megan C says:


7:49 PM


Can you see my response?


7:49 PM


I answered the question


Customer says:


7:49 PM


yes, but the question is far more complicated


Megan C says:


7:49 PM


Okay please let me know what I missed


Customer says:


7:50 PM


U missed nothing, I was being brief...it really is a legal question 'cause I understand the tax consquences about advantaged monies...u got time?


Megan C says:


7:51 PM


Well, I can answer to the tax consequence, but I cannot go in depth with legal issues because I am not an attorney


7:51 PM


This question was put in our tax category


Customer says:


7:51 PM


I know... it got too complicated for the attys


Megan C says:


7:52 PM


Have you been working on this question for some time?


Customer says:


7:52 PM


any way, I am the owner. The court awarded control of my FSA to my ex, for the purpose of Uncovered Med Expenses


7:53 PM


she took my minor son to the doctor twice, and twice she received refund checks and they were cashed


7:53 PM


I also have two adult daughters I cover under my health plan


Megan C says:


7:54 PM


Ok...you got the tax break, so you get the taxable income when there is a refund.


Customer says:


7:54 PM


both have gone to doctors, both twice received refunds


7:54 PM


so 6 checks total


7:54 PM


my ex is the trustee for my FSA for the "children", which includes adults


7:55 PM


I am beside myself, because of the divorce, my adult kids won't talk to me or tell me they have gone to the doctor


7:56 PM


I am just finding this out now after long conversations with the healthcare providers, trying to reconcile my FSA statement with EOBs...the number didn't add up


7:56 PM


so I made multi-calls and ran into HIPPA road blocks for the adults


7:57 PM


so, who is responsible for this tax anyway?


Megan C says:


7:57 PM


Yes, but you're probably not talking big dollars in terms of taxes...


Customer says:


7:57 PM


and what :kick-back" rules were violated?


Megan C says:


7:57 PM


maybe in the end a few hundred dollars of tax


7:57 PM


I can only speak to tax impacts, I can't get into the details of various laws


Customer says:


7:58 PM


I'm not worried about the tax M...it's what law was broken, that was my original question


7:59 PM


gimme a minute, go to go to the lue


Megan C says:


7:59 PM


I'm truly sorry, but I can't go into the legal details. I would need to recategorize to a legal category


Customer says:


8:00 PM


can yo cut and paste my responses and feed me back to the lawyers?


Megan C says:


8:02 PM


Yes, they will be able to see everything we discussed. Even my responses.


8:02 PM


I'll send it to a moderator to be sent to an attorney. I appreciate your patience and hope things get better for you.


Customer says:


8:03 PM


I appreciate your time megan, I had already researched the tax rules, just can seem to find real tax law


Megan C says:


8:04 PM


No problem. Thanks for your patience. I'll send this to a mod and get you to an attorney. Hopefully one will get back with you in the next few minutes.


Customer says:


8:05 PM


surely...I think there's "kick-back" rules and fiduciary responsibilities and liabilities


8:05 PM


been fun have a great eve


Megan C says:


8:06 PM


You too. Please do not respond until your new expert engages you because it will send the question straight back to me and your wait will be longer.


8:06 PM


Megan C has stepped out of this chat.


8:06 PM


Megan C has entered this chat!


8:06 PM


Megan C has stepped out of this chat.


 

Expert:  Dimitry K., Esq. replied 10 months ago.

Thank you for your follow-up.

 

What you are describing is considered to be fraud and misappropriation of funds (as you have misused them based on the intent to use them for medical reasons). It also happens to be tax fraud since the use of those funds is now treated differently under IRS guidelines.

 

Hope that helps.

Customer: replied 10 months ago.


If you read the entire chat room Q, you will see it's my ex that has done this, not me.. and hs used my adult kids since the ex was processing the FSA transactions with the health care providers, not me...I was originally posing the Q in brief form...to get a generic answer...so, now what citings can I use in a motion? Something to get a judge's attention..

Expert:  Dimitry K., Esq. replied 10 months ago.
My apologies but I am unclear--you wish to use that as a basis for what exactly, to claim that the ex is unfit?
Customer: replied 10 months ago.


no, I already understood the frauds before coming on-line; so I pay you for that right?, just don't know to properly articulate in a motion. I already understood the tax rules. I got charged $38 for an answer I knew before these cessions.. I read p502..What I need to know is what federal rule, US tres rule and or IRS rule is a legit cite? What I can see is: United States Supreme Court case in which the Court reversed the conviction of
John L. Cheek, a tax protester, for willful failure to file tax returns and pay tax.
The Court held that an actual good-faith belief that one is not violating the
tax law, based on a misunderstanding caused by the complexity of the tax law,
negates willfulness, even if that belief is irrational or unreasonable. The
Court also ruled that an actual belief that the tax law is invalid or
unconstitutional is not a good faith belief based on a misunderstanding caused
by the complexity of the tax law, and is not a defense
[http://en.wikipedia.org/wiki/Cheek_v._United_States]. Public
policy would cite: “Ignorance of the law is no excuse.”

Expert:  Dimitry K., Esq. replied 10 months ago.
Sir,

We are perhaps miscommunicating here. WHY do you wish to cite the rules, what exactly are you claiming here? You are not the government so you cannot personally charge someone with tax fraud, and you are not the one being pursued here--so I am at a loss as to what you are seeking to accomplish. The caselaw you found is completely unrelated to this case, so I am trying to understand exactly what it is you need this information for. Thank you.
Customer: replied 10 months ago.


I'm sorry D. If this is a Fed Fraud issue, do I go to DOJ with this? Maybe Superior Court in AK isn't the place I ought to be?

Expert:  Dimitry K., Esq. replied 10 months ago.
Ahh,

Now I understand--you do not need to go to the DOJ for this. What you can do is contact the IRS directly and report fraud to have them pursue an investigation. Here is the link:

http://www.irs.gov/Individuals/How-Do-You-Report-Suspected-Tax-Fraud-Activity%3F


You can also contact the district attorney's office in the county where she is located and have them investigate this on your behalf. Likewise this is something the FBI can also investigate. This is not a court issue, it is a prosecution issue based on whether the state would be willing to pursue charges.

Hope that helps.
Customer: replied 10 months ago.


I really don't want to waste a lot of your time...I'm will to spot a larger fee. I have issue with the ex, violating a domestic relations agreement, she was found in contempt but the judge said nothing legal or practical can be done at this time...weird 'cuz it had to do with a minor child. Isn't the first time. A judge said, the Ms. committed a variety of fraud to the court, he denied 2 MOTSCs cuz' he didn't want to throw "her" in jail. This is on record and I have the court recording. The judge story is longer if you are interested in that, but that is a Alaska Judicial Counsel problem for later...

Expert:  Dimitry K., Esq. replied 10 months ago.

Thank you for your follow-up.

 

I can understand your frustration but in this instance I am not seeing how her behavior toward the IRS would affect her agreement with you--the parties are different. Hence I do not really see this as potent 'ammunition'--you can bring up her contempt directly toward you, but if she is defrauding the government, that is between her and the state, and you really cannot use that as part of your separate negotiation or a means of making her appear worse in front of the judge.

 

Hope that clarifies.

Customer: replied 10 months ago.


understand...I have addressed the pointed violations since she took money that belonged to me: I'm the account owner; she depleted funds rightfully set aside to my kids...but when the adult kids took the funds the same way I got frustraited. She took it in a manner that is more less fraudulent in nature, that DA's stuff is a separate matter and I do understand that...You don't have to read the last part, since we don't have a A-C relation and no retainer, but this is what upset me by the judge..if your in AK, you might be wary.


In the Superior Court at Anchorage Alaska


Media No.: Courtroom 501


[Judge: Frank A. Pfiffner


Date: Wednesday, April 6, 2011.


Case No: 3AN-09-04751CI.


Type of Proceeding: Motion Hearing.


Counsel Present: Plaintiff: XXXXX XXXXXphson – Present w/client Christopher Klein present telephonic . Defendant: Chris Johansen – Present {for Joanie Klein} .


Non-Party Participant: H. Frank Cahill – Present {for Eschbacher Law Firm}


Non-Party Participant: William Artus – Present {for William Barstow}


Non-Party Participant: Gary Spraker – Present w/clients Lynda Limon & Herman Walker


___________________________________________________________________________________


9:40:24 AM, AST Judge: Frank A. Pfiffner ; “-Let me explain to you why I denied your order…Mrs. Klein has committed a variety of fraud on the court and there’s evidence to support that -The fact that I denied the order to show cause…was not planning on throwing her in jail but that doesn’t mean there won’t be a price paid”


9:41:46 AM AST, Judge: Frank A. Pfiffner ; “-The price will be paid by both parties who will probably get nothing, that will be sorted out in the case…”].

Expert:  Dimitry K., Esq. replied 10 months ago.
I am sorry that she took funds that belonged to you. At least on a civil level you could potentially file suit civilly even in small claims for the return of the funds back to you and your children. Beyond that the suggestions I provided should work and help you get the person investigated.

Hope that clarifies.
Customer: replied 10 months ago.


Makes sense...just got to find the right contact; living in Georgia. long distant litigation is very taxing....Hey, since I originally came into just ask for legal opinion, got redirected to a tax consult, who told me things that I know about tax rules, how do I get the original $38 back...I can get it to you with the fee you requested but I think it is spent already...

Expert:  Dimitry K., Esq. replied 10 months ago.

That is not a problem, I have asked the moderators to close out the other question and to request that they issue you a refund already. Should you need to speak with me again, I would be happy to assist you--just ask for me by name and I will do just that. Good luck to you!

Customer: replied 10 months ago.

Thanks D...your face is familiar...we've met before. You take care and I'll do your fee...Thanks for the help...even if it makes me move in 3-4 different directions..PTSD and MDD, I got the attention span of a 2 yr old.

Expert:  Dimitry K., Esq. replied 10 months ago.

Not a problem and thank you again! Although I do not believe I helped you in the past, I would be more than happy to help you again in the future.

Customer: replied 10 months ago.


One last word...sorry that is a big character flaw I have: words on perjury? really want to ask this judge why he recognized prior frauds, denied my motions.... but think he'd get upset:“The
court concludes that Ms. Klein quit her job to punish Mr. Klein financially and to retaliate against him for filing the divorce complaint
.”, why “She retaliated by quitting her part time job where she was earning over $56,000 per year and could have been earning $100,000 per year”, why “Ms. Klein quit her job as a Physician's Assistant at Alaska Premier Health within days of receiving service of the summons and complaint in this matter.”,
why: “At trial, Ms. Klein and Laurie Mapes, the owner of Alaska Premier Health, testified that Ms. Klein was laid off” and most noteably why: “Ms. Mapes and Ms. Klein then agreed that they would call Ms. Klein's departure a layoff”...This cost me $100,000 to hear....Yes both paid the price alright...prior txting...

Expert:  Dimitry K., Esq. replied 10 months ago.

I apologize but I am not seeing this as perjury. What I see this as one party claiming that it was a layoff, but the court concluding otherwise--it would not be perjury since it would be a potential evidentiary finding or a contrary ruling. If your ex was receiving unemployment, for example, then it would be more likely to be considered a layoff (as a voluntary termination would not grant benefits).

Customer: replied 10 months ago.


Sorry no unemp. collected...answer to complaint for divorce She reported to the court she was laid off; thought that was a sworn statement but oh well, court of course "Strapped" me with excess pmts to her...later said what you read...“The court concludes that Ms. Klein quit her job to punish Mr. Klein financially and to retaliate against him for filing the divorce complaint.”, See also SUPERIOR COURT FOR THE STATE OF ALASKA, Pulse Publications v.
ASCHR | Case NO. 3AN-09-12728 CR Decision on Appeal pp1-16 ¶4 p11, for the premise “Once a prima facie case of retaliation is established, the burden shifts to the [defendant] to articulate a legitimate, non-retaliatory reason for the action and the reason must be one that existed at the time the [retaliation] was made.” ...I got to let you go....put ur last opinions in and I'll let you ....Thanks D. You'll get an A+ for your time...

Expert:  Dimitry K., Esq. replied 10 months ago.
Thank you most kindly, I appreciate the compliments.

I am still not seeing how this would help you--the issue has been resolved (you got divorced), and her potential perjury is again not against you especially if the judge did not buy it. It would therefore be up to the judge to consider pursuing it or not. I honestly think you might be spending energy toward issues that would not directly help you in this instance.

Hope that helps.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 37652
Experience: Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
Dimitry K., Esq. and 7 other Legal Specialists are ready to help you
Customer: replied 10 months ago.

One quick question on contracts and retaliations listed in my string of questions. Do changes in current public policy or regulation effect an existing [2009] contract? ie can one party take advantage of a policy changes such as ACA [Obamacare policy changes in 2010] to gain a benefit over the other party?

Expert:  Dimitry K., Esq. replied 10 months ago.
Thank you for your follow-up. I would be happy to further answer this for you.

I am unclear as to what you mean by taking advantage. Please allow me to answer what I think you mean but if I am incorrect, kindly clarify and I will do the same.

Contracts between parties remain in force until the terms are executed fully, or all parties mutually elect to void the terms, or if there is a court order voiding the terms, OR in rare instances if the subject matter becomes illegal or impossible to perform. For example if policy changes outlaw cars as personal property to people, and this contract requires you to purchase a car for this person, such clause would be voided and it would be unenforceable. But typically if public policy makes something more or less favorable for one party, but does not affect actual ability to pursue, that term exists and remains. For example many divorce agreements have terms requiring parties to refinance jointly held property so as to remove one person's name from title. Pre-2008 pursuing a refinance was possible and fairly easy. That is not the case any longer. Now, it is very tough to refinance and many parties are unable to perform such a condition. But as refinancing is still essentially possible, so is the condition under the terms. Hence, it survives as a viable option even if current policy makes it harder to accomplish.

Hope that helps.

Sincerely,




Dimitry, Esq.
Customer: replied 10 months ago.


D, I don't want to use too much of your time, but thanks for the quick and accurate response. In a "nutshell"; 2010 ACA rule changes modified IRS regs for claiming dependent children; now 26 regardless of the "child's" status. This changed [my emp] company policy regarding health care in Mar 2010. UnitedHealthcare, my ins carrier, also applied these changes in the following year 2011, but deferred to [my emp] company policies for 2010. In 2009, if I couldn't claim a child [even under children of divorced parents], the health care wouldn't allow me to cover that "adult child"; unless a "full time student". Unfortunately, the children in question were already over 18 in 2009. My daughter married ~Apr 2010, so my daughter says; she didn't fit 2009 IRS regs before Mar 2010 anyway. If I agreed [should, not shall] to cover the "qualifying" children in 2009 until age 23 and provide FSA funding for "uncovered health care expenses", can my ex, or a judge say...well the rule changed and now you have to cover the adults regardless of status? Does this Q? make sense? Mind you, these are the very same kids that have accepted "tax advantaged" money from provider reimbursements, due to ex not waiting on UnitedHealthcare to completely reconcile. Lastly and you need not comment if it taxes you too much; courts generally view domestic agreements as contracts [Ford v Ford, Crane v Crane & Hobbs v Young] as long as they meet minimum criteria and both parties agree to be bound by the terms. agreement stipulated 11/2009 "on record". If contempt [6/2013] has [finally] been brought against the ex for violating this agreement since "day one" until "now, and agreement became an order [in 2011], what good was the agreement in the first place? should a judge pursue the order as "law" and slap me for the ex's violations by modifying child support order, based on ex's opinions of the old agreement on the same day [6/2013] the contempt order was let? P.S. The agreement was modified in 7/2010 without objection or motion, original agreement ratified 9/2011, modified 2 days; later exactly same date 1 year later 9/2011 without objection or motion, then again on 3/2013... Ex objected, by motion to the 3/2013 Child support order and the judge gave her a bone by saying "para; it was the ex's opinion" the 3/2013 CS order violated the agreement and order...what agreement and order [same day 6/2013 as the contempt]? I suppose the other 2 uncontested orders must have violated the ex's opinions too? I'm confused...If you have time, please reply.

Customer: replied 10 months ago.


If it requires additional fees to process my previous question, please let me know. The site says, I have already rated you.

Expert:  Dimitry K., Esq. replied 10 months ago.

Thank you for your follow-up.

 

I apologize for the delay, I attempted to answer you yesterday but for whatever reason your post appeared to have been closed out. As for modifying the agreement, keeping someone on insurance is not a requirement, it is an option--and as they are now legal adults, no judge is going to rule and order that you keep them on insurance if the order did not so require. Domestic agreements ARE contracts, and based on contractual language that explains the limitations of responsibility and liability to all parties. Agreements can be modified by court order, but there is no contempt if the existing language does not have terms or conditions that the parties did not follow.

 

 

Good luck.

Customer: replied 10 months ago.

D. The answer was OK but sort of missed my main point; excuse me if I wasn't clear. I'm really no lawyer, as you can tell. Can changes in public policy effect contractual terms, if it allows one party to gain a "newly legislated" advantage? Or are contractual terms limited by the policies that existed "at the time" of the contract?

Expert:  Dimitry K., Esq. replied 10 months ago.

Changes in policy only affect contracts IF the changes are so drastic and material that they make the existing terms impossible to follow. For example if there is a contract under which I agree to provide a service which is later legislated and limited by law, the contract has to change. So in a broad sense public policy can affect contracts. But specifically it can affect it only if the change is direct--this is not a direct change. Contractual terms are usually limited by language that both signed under, public policy comes into play only if terms are somehow voided out or made illegal.

 

Good luck.

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