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The Federal Income Tax Consequences of Property Settlements in Common Law States and Under the Uniform Marriage and Divorce Act: A Proposal
Get PDFGenerally, during marriage, most of the property of husband and wife is held in the husband\u27s name. Then, if there should be a divorce, the husband often finds himself required to transfer some of this property to his wife as a property settlement. If the transferred property has appreciated in value while held by the husband, this appreciation may be treated as taxable income to the husband. Whether the appreciation is so treated depends on the marital property law of the taxpayer\u27s domicile. In the United States, two different systems of marital property law have developed. Most states have evolved a system based upon the common law of England. These states consider the husband and the wife to own respectively the property each has purchased with his or her earnings or has received by gift, bequest, devise, or descent. The wife\u27s rights in the property owned by her husband are generally limited to a dower or statutory dower right in all realty acquired during covertures and a right to an intestate share of the property at his death. Both of these rights are contingent upon the wife surviving her husband. If there is a divorce, her interest in her husband\u27s property is limited to a possible right to alimony arising out of his marital obligation to support her financially. A small number of states have developed a community property marital property system based upon the civil law of continental Europe. These states carve out of the husband\u27s and the wife\u27s separately owned properties a third class of property called community property. Community property consists of all property acquired during marriage by the efforts of either spouse except that acquired by either of them by gift, bequest, devise, or descent. Although the wife\u27s rights in her husband\u27s remaining separate property are similar to her rights in common law states, her rights in the community property are more substantial. She is deemed a one-half owner of this property, is entitled to a share of it upon divorce, and may devise one-half of it at her death. Thus, if she and her husband divorce, her marital rights include both a right to a share of the community property and a possible right to alimony out of her husband\u27s separate property. The federal income tax consequences of a divorce-forced transfer of appreciated property from husband to wife may vary according to the marital property system of their domicile. Thus, traditionally, divorce-forced transfers of appreciated property have been accorded differing federal income tax treatment depending on the applicable marital property system. Taxable transfers were the rule in common law states; only in community property states could nontaxable transfers occur. In two recent Tenth Circuit decisions, Collins v. Commissioner and Imel v. United States, however, transfers of appreciated property in common law states have been held to be nontaxable divisions of property between co-owners. These states had altered the traditional common law marital property system by incorporating the concept of jointly-acquired or marital property. Marital property refers to the same class of property as community property, but is a concept used solely with reference to divorce proceedings. As in community property states, upon divorce a wife is entitled to a share of the marital property in addition to her possible right to alimony. Thus, these common law states had adopted a community property system solely for the purpose of property allocation upon divorce. To ascertain whether Collins and Imel are correct, it is necessary to determine whether the transfers in those cases were properly deemed in satisfaction of the wife\u27s property interest in the marital property. Essentially, this question can be answered by ascertaining whether the hybrid marital property systems there at issue more resembled common law or community property systems when considered in the context of the federal income tax law respecting divorce-forced transfers
Reassessing Confiscation Under Section 305 of Maine\u27s Public Utility Law
Get PDFOn March 11, 1975, the Maine Public Utilities Commission (PUC) denied a petition by the New England Telephone and Telegraph Co. (the company) for an interim rate increase. The company had sought to increase its revenues by 21 million annually. After the PUC refused the company a rehearing on its denial of the interim rate increase, the company appealed to the Maine Supreme Judicial Court, alleging that the PUC had acted so as to leave in effect rates which were unreasonable, unlawful, and confiscatory. New England Telephone and Telegraph Co. v. Public Utilities Commission is an example of what has become a common challenge to rate-making decisions of the PUC: that the rates allowed by the Commission under its statutory powers are unconstitutional in causing a confiscation of the utility\u27s property. By alleging confiscation, the utility is able to invoke, in addition to the traditional appeal of questions of law under Maine Revised Statutes, title 35, section 303, the special appeal provisions of Maine Revised Statutes, title 35, section 305. Under section 305, when confiscation or other violation of constitutional right is alleged, the Law Court is required to exercise its own independent judgment as to both law and facts and may order the taking of additional evidence beyond the record on appeal from the PUC. Thus, raising the issue of confiscation has significant advantages for the utilities by allowing them essentially to relitigate the entire rate case before the Law Court. The Law Court itself has recognized the problems raised by an increased reliance on section 305. It has consistently pursued a path of limiting the availability of the special relief provided under that section. If the Law Court is to continue to avoid functioning as a rate-making tribunal in utility law, it is necessary to find a uniform solution to the problems raised by the special appeal provisions of section 305. In order to restore perspective to Maine\u27s utility scheme and to avoid the problems noted above, the grounds for invoking the special appeal provisions of section 305 should be more narrowly defined. A reassessment of confiscation in utility law suggests that the special provisions of section 305 properly should be limited to the rare instances when a PUC rate-making decision results in confiscation in the traditional sense of a taking of property or in a violation of constitutional right
Sex Offenses
Get PDFA central theme of the Maine Criminal Code is to distinguish behavior that is merely socially undesirable from that which is sufficiently threatening to require the specialized effort of the criminal law to prevent it. Nowhere in the Code is this distinction more apparent than in the area of sex offenses, which encompasses a wide spectrum of degrees of social harm. At one end of this spectrum are acts which clearly involve dangerous behavior, such as non-consensual sexual acts and acts of sexual imposition on minors and incompetents. At the other end of the spectrum are sexual acts done in private between consenting competent adults. In between these two extremes are acts defined as public indecency and prostitution. The sex offenses sections of the new Code reflect the Maine Criminal Law Revision Commission\u27s efforts to prevent an overbroad extension of the criminal law in this area and to limit criminal sanctions to those areas where such sanctions are widely and strongly supported by the community and where uniform enforcement is widely expected and encouraged. The sex offenses sections also reflect some generally accepted goals of codification, including simplification and organization of the laws, articulating rules unexpressed by statute and incompletely developed by the judiciary, eliminating vague, archaic, and ambiguous language, and effecting proportionality between the gravity of the harm and the penalty imposed
Postjudgment Procedures for Collection of Small Debts: The Maine Solution
Get PDFDebtors\u27 rights and the due process of debt collection have received increasing attention recently in legislative as well as judicial spheres. There have been many efforts to rectify basic contractual inequities, to abolish summary prejudgment remedies and to limit extra-judicial collection abuses. However, comparatively little scrutiny has been focused on postjudgment or post-hearing remedies in the later stages of the collection process. Until recently, Maine\u27s legal remedies for postjudgment debt collection were notorious for their harshness. Jail, the principal sanction, was freely used as a creditors\u27 club to make debtors settle claims. Although inability to pay was not in itself grounds for imprisonment, inability to pay combined with certain procedural defaults or failure to assert rights at a disclosure hearing was often tantamount to submitting to arrest, Under pressure of national publicity, legislative unrest and a successful constitutional assault, Maine\u27s 130-year-old debtor disclosure statute was repealed in 1971. In its place a subcommittee of the Maine Bar Association drafted and sponsored through the legislature an Act Relating to the Enforcement of Money Judgments which differs significantly from other state laws in the carefully restrained way it makes remedies available to the judgment creditor. As the Maine experience indicates, there is a need to reconsider state collection and disclosure procedures which follow judgment. Although few states have laws permitting the abuses prevalent under the former Maine statute, many states continue to rely on traditional methods and procedures for collection which have not been reevaluated in light of modern permissive credit practices. Maine provides an excellent case study because of the sudden shift from a creditor-oriented set of laws to a statute which protects debtors in the postjudgment phase of collection while still providing effective remedies against debtors who are unwilling to pay, rather than unable. The new system, in effect since September 1971, has generated diverse reactions from courts, creditors\u27 attorneys and consumer interest groups; but despite the discomforts of adjustment, there is consensus that the statute at least works. Evaluating how well it works in comparison to conventional remedies is the purpose of this comment
Pierce and Arlana Hasler
Get PDFPierce Barnard Hasler, professor of law at the University of Maine School of Law, and his wife, Arlana Kogut Hasler, an engineer with International Business Machines Corporation in Portland, were killed in a plane crash in Juneau, on September 4, 1971, as they were returning to Maine from a hunting trip in northern Alaska. Their colleagues, Pierce\u27s students at the law school, their many friends and, of course, their families have found the loss of those two fine young persons even yet almost insupportable
State Power and the Passamaquoddy Tribe: A Gross National Hypocrisy ?
Get PDFBecause of their strategic location on the sparsely settled Canadian border, the Passamaquoddy Indians were of great importance in the American Revolution, and played a decisive role in securing eastern Maine for the United States. As soon as the hostilities had ended, however, the federal government promptly forgot about these Indian allies in what is now the State of Maine and, whether intentionally or not, left the Passamaquoddy Tribe in its dealings with the dominant society to the mercy of Massachusetts and, after 1820, Maine. The Passamaquoddy Tribe is a relatively small one, but there are approximately 120,000 other tribal Indians, mostly residing in the Eastern United States, who also have been ignored by the federal government. As a result, these Indians are denied services which the federal government provides for Indians, and are prevented from invoking the protections provided by federal Indian law. In analyzing the validity of the dichotomy between federal and state Indians, this article examines the effects, and questions the possible sources, of Maine\u27s power to deal with the Passamaquoddy Tribe exclusive of the federal government
In Memoriam Harry P. Glassman
Get PDFHarry Paul Glassman was a remarkable lawyer, scholar, teacher, judge, colleague, and friend, whose untimely death has been deeply felt by all who knew him. The editors of the Maine Law Review have brought together in this issue a wide-ranging and moving col- lection of essays that illuminates each of these aspects of Harry\u27s multifaceted life