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Lane
Lane, JD, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 3991
Experience:  Juris Doctorate, CFP and MBA, Providing Financial & Tax advice since 1986
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I would like a search of WestLaw and/or LexusNexus for Florida

Resolved Question:

I would like a search of WestLaw and/or LexusNexus for Florida Tax/Business attorneys and law firms that have gone to court for cases involving social security disability and the definition of earned income versus unearned income especially when it comes to stock ownership or business situations. What I want most is the list of attorneys in Florida who have done such cases.
Submitted: 11 months ago.
Category: Tax
Expert:  Lane replied 11 months ago.

Lane :

Will do ... hang with me here

Lane :

Lets start with the actual statute law (which, here will be contained in the Code of federal regulations, Social Security, earned income)

Customer:

Ok.

Lane :

First the citation, so you can take to an atty: 20 C.F.R. §(NNN) NNN-NNNN/span>

Lane :

Here's the statute itself:

Lane :


Effective: September 7, 2010

20 C.F.R. §(NNN) NNN-NNNN/div>

§(NNN) NNN-NNNNWhat is earned income.


Currentness





Earned income may be in cash or in kind. We may include more of your earned income than you actually receive. We include more than you actually receive if amounts are withheld from earned income because of a garnishment or to pay a debt or other legal obligation, or to make any other payments. Earned income consists of the following types of payments:




(a) Wages--




(1) Wages paid in cash--general. Wages are what you receive (before any deductions) for working as someone else's employee. Wages are the same for SSI purposes as for the social security retirement program's earnings test. (See § 404.429(c) of this chapter.) Wages include salaries, commissions, bonuses, severance pay, and any other special payments received because of your employment.





(2) Wages paid in cash to uniformed service members. Wages paid in cash to uniformed service members include basic pay, some types of special pay, and some types of allowances. Allowances for on-base housing or privatized military housing are unearned income in the form of in-kind support and maintenance. Cash allowances paid to uniformed service members for private housing are wages.





(3) Wages paid in kind. Wages may also include the value of food, clothing, shelter, or other items provided instead of cash. We refer to this type of income as in-kind earned income. However, if you are a domestic or agricultural worker, the law requires us to treat your in-kind pay as unearned income.






(b) Net earnings from self-employment. Net earnings from self-employment are your gross income from any trade or business that you operate, less allowable deductions for that trade or business. Net earnings also include your share of profit or loss in any partnership to which you belong. For taxable years beginning before January 1, 2001, net earnings from self-employment under the SSI program are the same net earnings that we would count under the social security retirement insurance program and that you would report on your Federal income tax return. (See §(NNN) NNN-NNNNof this chapter.) For taxable years beginning on or after January 1, 2001, net earnings from self-employment under the SSI program will also include the earnings of statutory employees. In addition, for SSI purposes only, we consider statutory employees to be self-employed individuals. Statutory employees are agent or commission drivers, certain full-time life insurance salespersons, home workers, and traveling or city salespersons. (See §(NNN) NNN-NNNNof this chapter for a more detailed description of these types of employees).





(c) Refunds of Federal income taxes and advance payments by employers made in accordance with the earned income credit provisions of the Internal Revenue Code. Refunds on account of earned income credits are payments made to you under the provisions of section 32 of the Internal Revenue Code of 1986, as amended. These refunds may be greater than taxes you have paid. You may receive earned income tax credit payments along with any other Federal income tax refund you receive because of overpayment of your income tax, (Federal income tax refunds made on the basis of taxes you have already paid are not income to you as stated in §(NNN) NNN-NNNNd).) Advance payments of earned income tax credits are made by your employer under the provisions of section 3507 of the same code. You can receive earned income tax credit payments only if you meet certain requirements of family composition and income limits.





(d) Payments for services performed in a sheltered workshop or work activities center. Payments for services performed in a sheltered workshop or work activities center are what you receive for participating in a program designed to help you become self-supporting.





(e) Certain royalties and honoraria. Royalties that are earned income are payments to an individual in connection with any publication of the work of the individual. (See §(NNN) NNN-NNNNb) if you receive a royalty as part of your trade or business. See §(NNN) NNN-NNNNc) if you receive another type of royalty.) Honoraria that are earned income are those portions of payments, such as an honorary payment, reward, or donation, received in consideration of services rendered for which no payment can be enforced by law. (See §(NNN) NNN-NNNNif you receive another type of honorarium.)








20 C.F.R. §(NNN) NNN-NNNN/div>
Lane :

This, by the way, is an excellent way to search for attorneys, both by region, and by specialty

Lane :

.

Lane :

Scott D. YOUNG, Plaintiff,

v.

Jo Anne B. BARNHART, Commissioner of Social Security, Defendant.




Young v. Barnhart, 415 F. Supp. 2d 823 (M.D. Tenn. 2006)

Lane :

From Barnhard:

Lane :
On judicial review of a determination of the Commissioner of Social Security in a disability benefits proceeding, the court is limited to determining whether substantial evidence supports the Commissioner's findings and whether the Commissioner applied the correct legal standards. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g).


Young v. Barnhart, 415 F. Supp. 2d 823 (M.D. Tenn. 2006)

Lane :
If substantial evidence supports the ALJ's conclusion in a disability benefits proceeding, a reviewing court cannot reverse the ALJ's decision even if substantial evidence exists in the record that would have supported an opposite conclusion. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g).


Young v. Barnhart, 415 F. Supp. 2d 823 (M.D. Tenn. 2006)

Lane :
On judicial review of agency's statutory interpretation, pure legal issues may be decided by the courts, but where the relevant statute is silent or ambiguous with respect to the specific issue, then courts must sustain the agency's statutory interpretation, i.e., regulation, if it is based on a permissible construction of the pertinent statute.


Young v. Barnhart, 415 F. Supp. 2d 823 (M.D. Tenn. 2006)

Lane :
On judicial review of a determination of the Commissioner of Social Security in a disability benefits proceeding, if the statutes and regulations at issue are unambiguous, then they must be applied by the court according to their plain meaning, without requiring further input from the Commissioner, but if the statutes or regulations are ambiguous, however, then remand will be required in order to permit the Commissioner to make the first pass at articulating the pertinent interpretation and applying it to the facts presented in light of the significant policy considerations at issue.


Young v. Barnhart, 415 F. Supp. 2d 823 (M.D. Tenn. 2006)

Lane :

For purposes of judicial review of an agency's statutory interpretation, a statute is ambiguous if it does not speak directly to the precise question at issue, and the agency must use its discretion to determine how best to implement the policy embodied by the statute, and, likewise, a regulation is ambiguous if it is reasonably susceptible of more than one interpretation or if it does not expressly address a given situation

Lane :

And finally (the last holding (point of law) here:

Lane :

Social Security

[IMAGE][SRC][/SRC][ALT][/ALT][WIDTH]100[/WIDTH][HEIGHT]100[/HEIGHT][STYLE][/STYLE][/IMAGE]


Particular cases



On petition for review of a decision of the Commissioner of Social Security, which affirmed ALJ's termination of claimant's disability insurance benefits under the Social Security Act, based upon a finding that his self-employment earnings had exceeded the permissible maximum, remand was required for Commissioner to determine whether ALJ's decision to consider certain commissions as earned income was reasonable, where ALJ presumed without analysis or discussion that commissions were part of claimant's “net earnings from self-employment.” Social Security Act, § 223(d)(4)(A), 42 U.S.C.A. § 423(d)(4)(A); 20 C.F.R. §(NNN) NNN-NNNNa)(1).






Young v. Barnhart, 415 F. Supp. 2d 823 (M.D. Tenn. 2006)

Lane :

... not finding a lot re: stock ownership ... that's why the points above are pertinent (esp. as relates to what will be done in an ara of ambifuity)

Lane :

.

Lane :

Next, you should have the Evaluation Guide for business situations:

Lane :

.

Lane :



§(NNN) NNN-NNNNEvaluation guides if you are self-employed.


Currentness






(a) If you are a self-employed person. If you are working or have worked as a self-employed person, we will use the provisions in paragraphs (a) through (e) of this section that are relevant to your work activity. We will use these provisions whenever they are appropriate, whether in connection with your application for disability benefits (when we make an initial determination on your application and throughout any appeals you may request), after you have become entitled to a period of disability or to disability benefits, or both.




(1) How we evaluate the work you do after you have become entitled to disability benefits. If you are entitled to social security disability benefits and you work as a self-employed person, the way we will evaluate your work activity will depend on whether the work activity occurs before or after you have received such benefits for at least 24 months and on the purpose of the evaluation. For purposes of paragraphs (a) and (e) of this section, social security disability benefits means disability insurance benefits for a disabled worker, child's insurance benefits based on disability, or widow's or widower's insurance benefits based on disability. We will use the rules in paragraph (e)(2) of this section to determine if you have received such benefits for at least 24 months.




(i) We will use the guides in paragraph (a)(2) of this section to evaluate any work activity you do before you have received social security disability benefits for at least 24 months to determine whether you have engaged in substantial gainful activity, regardless of the purpose of the evaluation.





(ii) We will use the guides in paragraph (e) of this section to evaluate any work activity you do after you have received social security disability benefits for at least 24 months to determine whether you have engaged in substantial gainful activity for the purpose of determining whether your disability has ceased because of your work activity.





(iii) If we have determined under §(NNN) NNN-NNNN(a)(1) that your disability ceased in a month during the reentitlement period because you performed substantial gainful activity, and we need to decide under §(NNN) NNN-NNNN(a)(2)(i) or (a)(3)(i) whether you are doing substantial gainful activity in a subsequent month in or after your reentitlement period, we will use the guides in paragraph (a)(2) of this section (subject to the limitations described in §(NNN) NNN-NNNN(a)(2)(i) and (a)(3)(i)) to determine whether your work activity in that month is substantial gainful activity. We will use the guides in paragraph (a)(2) of this section for these purposes, regardless of whether your work activity in that month occurs before or after you have received social security disability benefits for at least 24 months.






(2) General rules for evaluating your work activity if you are self-employed. We will consider your activities and their value to your business to decide whether you have engaged in substantial gainful activity if you are self-employed. We will not consider your income alone because the amount of income you actually receive may depend on a number of different factors, such as capital investment and profit-sharing agreements. We will generally consider work that you were forced to stop or reduce to below substantial gainful activity after 6 months or less because of your impairment as an unsuccessful work attempt. See paragraph (d) of this section. We will evaluate your work activity based on the value of your services to the business regardless of whether you receive an immediate income for your services. We determine whether you have engaged in substantial gainful activity by applying three tests. If you have not engaged in substantial gainful activity under test one, then we will consider tests two and three. The tests are as follows:




(i) Test one: You have engaged in substantial gainful activity if you render services that are significant to the operation of the business and receive a substantial income from the business. Paragraphs (b) and (c) of this section explain what we mean by significant services and substantial income for purposes of this test.





(ii) Test Two: You have engaged in substantial gainful activity if your work activity, in terms of factors such as hours, skills, energy output, efficiency, duties, and responsibilities, is comparable to that of unimpaired individuals in your community who are in the same or similar businesses as their means of livelihood.





(iii) Test Three: You have engaged in substantial gainful activity if your work activity, although not comparable to that of unimpaired individuals, is clearly worth the amount shown in §(NNN) NNN-NNNNb)(2) when considered in terms of its value to the business, or when compared to the salary that an owner would pay to an employee to do the work you are doing.







(b) What we mean by significant services.




(1) If you are not a farm landlord and you operate a business entirely by yourself, any services that you render are significant to the business. If your business involves the services of more than one person, we will consider you to be rendering significant services if you contribute more than half the total time required for the management of the business, or you render management services for more than 45 hours a month regardless of the total management time required by the business.





(2) If you are a farm landlord, that is, you rent farm land to another, we will consider you to be rendering significant services if you materially participate in the production or the management of the production of the things raised on the rented farm. (See §(NNN) NNN-NNNNof this chapter for an explanation of material participation.) If you were given social security earnings credits because you materially participated in the activities of the farm and you continue these same activities, we will consider you to be rendering significant services.






(c) What we mean by substantial income.




(1) Determining countable income. We deduct your normal business expenses from your gross income to determine net income. Once we determine your net income, we deduct the reasonable value of any significant amount of unpaid help furnished by your spouse, children, or others. Miscellaneous duties that ordinarily would not have commercial value would not be considered significant. We deduct impairment-related work expenses that have not already been deducted in determining your net income. Impairment-related work expenses are explained in §(NNN) NNN-NNNN We deduct unincurred business expenses paid for you by another individual or agency. An unincurred business expense occurs when a sponsoring agency or another person incurs responsibility for the payment of certain business expenses, e.g., rent, utilities, or purchases and repair of equipment, or provides you with equipment, stock, or other material for the operation of your business. We deduct soil bank payments if they were included as farm income. That part of your income remaining after we have made all applicable deductions represents the actual value of work performed. The resulting amount is the amount we use to determine if you have done substantial gainful activity. For purposes of this section, we refer to this amount as your countable income. We will generally average your countable income for comparison with the earnings guidelines in §(NNN) NNN-NNNNb)(2). See §(NNN) NNN-NNNN for our rules on averaging of earnings.





(2) When countable income is considered substantial. We will consider your countable income to be substantial if--




(i) It averages more than the amounts described in §(NNN) NNN-NNNNb)(2); or





(ii) It averages less than the amounts described in §(NNN) NNN-NNNNb)(2) but it is either comparable to what it was before you became seriously impaired if we had not considered your earnings or is comparable to that of unimpaired self-employed persons in your community who are in the same or a similar business as their means of livelihood.







(d) The unsuccessful work attempt--




(1) General. Ordinarily, work you have done will not show that you are able to do substantial gainful activity if, after working for a period of 6 months or less, you were forced by your impairment to stop working or to reduce the amount of work you do so that you are no longer performing substantial gainful activity and you meet the conditions described in paragraphs (d)(2), (3), (4), and (5) of this section. We will use the provisions of this paragraph when we make an initial determination on your application for disability benefits and throughout any appeal you may request. Except as set forth in §(NNN) NNN-NNNN(a), we will also apply the provisions of this paragraph if you are already entitled to disability benefits, when you work and we consider whether the work you are doing is substantial gainful activity or demonstrates the ability to do substantial gainful activity.





(2) Event that must precede an unsuccessful work attempt. There must be a significant break in the continuity of your work before we will consider you to have begun a work attempt that later proved unsuccessful. You must have stopped working or reduced your work and earnings below substantial gainful activity because of your impairment or because of the removal of special conditions which took into account your impairment and permitted you to work. Examples of such special conditions may include any significant amount of unpaid help furnished by your spouse, children, or others, or unincurred business expenses, as described in paragraph (c) of this section, paid for you by another individual or agency. We will consider your prior work to be “discontinued” for a significant period if you were out of work at least 30 consecutive days. We will also consider your prior work to be “discontinued” if, because of your impairment, you were forced to change to another type of work.





(3) If you worked 3 months or less. We will consider work of 3 months or less to be an unsuccessful work attempt if it ended, or was reduced below substantial gainful activity, because of your impairment or because of the removal of special conditions which took into account your impairment and permitted you to work.





(4) If you worked between 3 and 6 months. We will consider work that lasted longer than 3 months to be an unsuccessful work attempt if it ended, or was reduced below substantial gainful activity, within 6 months because of your impairment or because of the removal of special conditions which took into account your impairment and permitted you to work and--




(i) You were frequently unable to work because of your impairment;





(ii) Your work was unsatisfactory because of your impairment;





(iii) You worked during a period of temporary remission of your impairment; or





(iv) You worked under special conditions that were essential to your performance and these conditions were removed.






(5) If you worked more than 6 months. We will not consider work you performed at the substantial gainful activity level for more than 6 months to be an unsuccessful work attempt regardless of why it ended or was reduced below the substantial gainful activity earnings level.






(e) Special rules for evaluating the work you do after you have received social security disability benefits for at least 24 months.




(1) General. We will apply the provisions of this paragraph to evaluate the work you are doing or have done if, at the time you do the work, you are entitled to social security disability benefits and you have received such benefits for at least 24 months. We will apply the provisions of this paragraph only when we are evaluating that work to consider whether you have engaged in substantial gainful activity or demonstrated the ability to engage in substantial gainful activity for the purpose of determining whether your disability has ceased because of your work activity (see §§(NNN) NNN-NNNN(a)(1) and (3)(ii) and(NNN) NNN-NNNNd)(5) and (f)(1)). We will use the countable income test described in paragraph (e)(3) of this section to determine whether the work you do after you have received such benefits for at least 24 months is substantial gainful activity or demonstrates the ability to do substantial gainful activity. We will not consider the services you perform in that work to determine that the work you are doing shows that you are able to engage in substantial gainful activity and are, therefore, no longer disabled. However, we may consider the services you perform to determine that you are not doing substantial gainful activity. We will generally consider work that you were forced to stop or reduce below substantial gainful activity after 6 months or less because of your impairment as an unsuccessful work attempt. See paragraph (d) of this section.





(2) The 24–month requirement. For purposes of paragraphs (a)(1) and (e) of this section, we consider you to have received social security disability benefits for at least 24 months beginning with the first day of the first month following the 24th month for which you actually received social security disability benefits that you were due or constructively received such benefits. The 24 months do not have to be consecutive. We will consider you to have constructively received a benefit for a month for purposes of the 24–month requirement if you were otherwise due a social security disability benefit for that month and your monthly benefit was withheld to recover an overpayment. Any months for which you were entitled to benefits but for which you did not actually or constructively receive a benefit payment will not be counted for the 24–month requirement. If you also receive supplemental security income payments based on disability or blindness under title XVI of the Social Security Act, months for which you received only supplemental security income payments will not be counted for the 24–month requirement.





(3) Countable income test. We will compare your countable income to the earnings guidelines in §(NNN) NNN-NNNNb)(2) to determine if you have engaged in substantial gainful activity. See paragraph (c)(1) of this section for an explanation of countable income. We will consider that you have engaged in substantial gainful activity if your monthly countable income averages more than the amounts described in §(NNN) NNN-NNNNb)(2) for the month(s) in which you work, unless the evidence shows that you did not render significant services in the month(s). See paragraph (b) of this section for what we mean by significant services. If your average monthly countable income is equal to or less than the amounts in §(NNN) NNN-NNNNb)(2) for the month(s) in which you work, or if the evidence shows that you did not render significant services in the month(s), we will consider that your work as a self-employed person shows that you have not engaged in substantial gainful activity.









20 C.F.R. §(NNN) NNN-NNNN/div>
<span class="JA_chatAuthorName"Customer:

Lane, I am confused on what to do next.

Lane :

Here's an issue that may be pertinent .... Return on capital is NOT considered earned income, but in this holding, it came down to the expertise and service provided that differentiated between (1) purely return on an investment and (2) earned income:

Lane :

(ok let me get this one to you really quickly) Not very long and makes a crucial point:

Lane :

Return on capital 



Claimant's disability, and his entitlement to disability insurance benefits, ceased due to his substantial gainful activity as sole owner of insurance agency operated through his home;  claimant's expertise generated the business revenues, and the income was not merely a return on invested capital.  Social Security Act, §§ 216(i)(2)(D)(ii), 223(c), (d)(1)(A), (d)(2)(A), (f), as amended, 42 U.S.C.A. §§ 416(i)(2)(D)(ii), 423(c), (d)(1)(A), (d)(2)(A), (f);  Social Security Administration Regulations, §§ 404.1574(b)(2),(NNN) NNN-NNNNa)(2, 3), (b)(1), (c)(1),(NNN) NNN-NNNNd)(4),(NNN) NNN-NNNNb, e),(NNN) NNN-NNNN(NNN) NNN-NNNNd)(5), (f)(1), 42 U.S.C.A.App.  Barber v. Sullivan, 1991, 765 F.Supp. 58.


Lane :

Want to tell me about nyour situation (no personally identifyig information please)

Customer:

How to do this for tax lawyers instead of ssdi lawyers: http://lawyers.findlaw.com/lawyer/practicestate/social-security-disability/florida

Lane :

sure just a sec

Customer:

How to do this for tax lawyers instead of ssdi lawyers? http://lawyers.findlaw.com/lawyer/practicestate/social-security-disability/florida

Customer:

I may be given some stock in a start-up. Will not work, but might get some value of the stock eventually.

Lane :

Providing any expertise or services to the startup?

Customer:

Give them my patent and explain it.

Lane :

THe very best way to document tht is for it not to be regular and done as a gift

Customer:

Explain this more: THe very best way to document tht is for it not to be regular and done as a gift

Customer:

and then should we stop?

Lane :

In my estimation, your problem there will be the exchange ... I think that there are a few different ways to treat intellectual property ... BUT if you give up all I believe it would be treated as a sale, (rather than licensing, which would probably not fly for SSDI purposes

Lane :

sorry for the typo (give up all rights) this is like selling an asset (not earned incme)

Customer:

Any Florida lawyer on just that in what you found above?

Lane :

Just a sec

Lane :

A couple of issues first - (1) Terms of service here don't allow us to recommend BUT I can do a search based on a give criteris ... and (2) ABA's rules of conduct (and FL's state regulatory bar) make it very hard for them to publish results ... but hang on

Customer:

Ok

Lane :

Yes, I think if you treat this as a sale of your intellectual property, this will be a capital gain and it will be most important to document this this way (as opposed to licensing or any future service or expertise

Lane :

You already have this, above, but here's a good synopsis

Lane :

Hang with me a minute

Customer:

Ok.

Lane :

Yes, HEre is the definition in title 26 (IRS code) of a capital asset (intellectual property is there) This is important, because if you exchange it, it is a capital gain and that is ot earned income

Lane :


(a) In general.--For purposes of this subtitle, the term “capital asset” means property held by the taxpayer (whether or not connected with his trade or business), but does not include--




(1) stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business;





(2) property, used in his trade or business, of a character which is subject to the allowance for depreciation provided in section 167, or real property used in his trade or business;





(3) a copyright, a literary, musical, or artistic composition, a letter or memorandum, or similar property, held by--




(A) a taxpayer whose personal efforts created such property,





(B) in the case of a letter, memorandum, or similar property, a taxpayer for whom such property was prepared or produced, or





(C) a taxpayer in whose hands the basis of such property is determined, for purposes of determining gain from a sale or exchange, in whole or part by reference to the basis of such property in the hands of a taxpayer described in subparagraph (A) or (B);







26 U.S.C.A. § 1221 (West)

Customer:

Excellent. Thank you.

Customer:

I will finish out now. Thanks. Excellent work.

Lane, JD, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 3991
Experience: Juris Doctorate, CFP and MBA, Providing Financial & Tax advice since 1986
Lane and 4 other Tax Specialists are ready to help you
Expert:  Lane replied 11 months ago.


Thanks much

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

Thanks again,
Lane
Expert:  Lane replied 11 months ago.


Hi,

If you will look at the answer above I think you'll find all the research is there, but we can certainly go over it all again.

Including the FL disability and Tax lawyers...

I've asked the moderators to open up the new question you've asked to me...

BUT we can do this here OR you can ask for me in the finance category and we'll just let the research category question time out.

Let me know.

I'll be here.

Lane
Customer: replied 11 months ago.

Lane,


Yes. I wanted you to take it and finish it.


I don't see the list of lawyers and firms in Florida who have gone to court on pertinent cases. But I am weak and may have to review tomorrow.


Thank you.

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