Wednesday, March 29, 2006

Is the IRS going too far this year?

A major dilemma that has arisen this tax year is the bartering of body parts. There have been reports stating that two women connected through the Paired Donation Consortium, (which facilitates matching between living organ donors), are donating kidneys to the other's husband.

So what does all of this mean?

Considering the trillion dollar deficit our government has, the IRS can and might possibly force these women to pay taxes on the kidneys that helped save their husbands' lives. These women are not donating to their own husbands because of blood type mismatches. Because the women are bartering kidneys, they do in fact have gross income. These are not gifts, because each has conditioned donation on getting something in return. Each has a basis of zero in the exchanged kidney.

Surprisingly, each woman has an amount realized equal to the fair market value of a kidney. These days, a kidney can be worth as much as $10,000.00 on the black market in countries like India and China due to many indigent families who are searching for income in order to feed their families. However, the lack of cash value of the kidneys is not an obstacle to the taxation of bartered exchanges in the U.S.

IRS rulings suggest that the sale of blood and blood products would be ordinary income and perhaps personal services compensation income as ruled in the United States v. Garber, 607 F.2d 92 (5th Cir. 1979). There's no charitable contribution deduction because no charity receives the kidneys. The substance over form doctrine treats the exchange as a swap of kidneys between the two women, each then making a gift to her husband.

The only way I can imagine that someone could possibly mitigate the burden would be to list the medical expenses that were incurred during the surgery and hope that the expenses would reduce the amount owed to the IRS. However, I really doubt that the IRS will pursue the taxation considering that this was a surgery that happened once and did not lead to a consistant pattern. But I did find this story to be extremely interesting.

Posted by: Craig J. Springer

Tuesday, March 28, 2006

Monday, March 27, 2006

No Phone Service

We are currently among the 900 Verizon customers in Newark that still do not have phone service. We apologize for the inconvenience.

The NewsJournal has a short piece on the situation here.

We are hoping that service will resume shortly.

Shipping Clerk

Small Professional Newark Office in need of organized, responsible person to learn and grow with the company. Full time, entry level position with the opportunity to demonstrate a variety of skills. Position offers significant growth potential for the right applicant. Good computer skills a must. Benefits.

Please forward resumes to or fax to 302-286-6337.

Thursday, March 23, 2006

Spreading the Yankee hate...

Richard Roberts, Jr., Esquire of Roberts & Roberts, a New Jersey intellectual property firm, pointed me towards an article about a case that he is working on. Rich is a big New York Yankees fan, but he's working against the Bronx Bombers on this one.

A Red Sox fan named Mike Moorby has decided to fight back against the high and mighty New York Yankees. He created a company to sell hats and shirts with his Yankees Hater logo. Now the "Evil Empire" is saying that his logo, a Y and H with devil horns, is infringing upon their trademarked NY logo. The case is scheduled to go before the Trademark Trial and Appeal Board before the end of the year.

I have to admit to being a Yankees hater myself, so I can't help but root for Mr. Moorby. But, as a lawyer, I think that he is right. There should be no confusion between his logo and the Yankees' logo and it should be obvious to consumers that they are not purchasing Yankees Hater hats directly from the New York Yankees.

You can purchase Yankee Hate gear at . I might have to get myself one of those Baltimore hats.

Wednesday, March 22, 2006

Video Games and Violence: Delaware to Criminalize Sale of Video Games

A piece of legislation before the House of Representatives in Delaware is taking a stand against violence in video games. The Bill, An Act to Amend Title 11 of the Delaware Code Relating to Video Games and Obscenity, would make the sale, rental, or "providing access" by an owner, operator, or an employee of a business of games without ratings a class A misdemeanor.

Title 11 is the part of the Delaware Code which involves Criminal Offenses, and many of the statutes listed provide specific details involving those crimes, including the elements of the crimes that must be listed in an indictment of information, and which need to be proved "beyond a reasonable doubt."

The Bill has two sections that would be added to Title 11. The first, as I noted above, would make it illegal for businesses to provide access to video games that don't include ratings. The second would make it against the law for a person to sell or rent a game to an underage person, and requires checking proof of age prior to sale or rental.

I know my brother has sold nintendo video games through eBay. I'm not sure if this Bill would cover him, but I'm also not sure that the games he sells have ratings on them. It's also difficult to check ID online. Will this legislation apply to him?

More importantly, I've seen a few people refer to video games as free speech. Does this law criminalize free speech?

The Bill leaves a lot of questions open. I have more, and I'm sure that the folks who make video games, the folks who sell them, and the people who buy them will also have questions.

Here's the first section of the Bill:

Section 1367. Sale, rental, or providing access to unmarked video games; Class "A" Misdemeanor.

(a) No owner, operator or employee of a business shall sell, rent or otherwise provide to another a video game unless:

(1) The official rating of the video game is clearly displayed on the outside of its cassette, case jacket or other covering; or

(2) If the video game has no official rating, the video game is clearly and prominently marked as 'not rated'.

(b) As used in this section:

(1) 'Official rating' means the rating of the Entertainment Software Rating Board.

(2) 'Video game' means any copy of a video game that is meant to be played with a hand-held gaming device using a television or computer.

(c) A person who violates this section shall be guilty of a Class "A" Misdemeanor.

As I was looking around the web for information about video game ratings, I came across an excellent page on the wikipedia titled Video game controversy, which goes into a lot of depth covering issues involving criticism and censorship issues involving video games. I'm not convinced that violent video games cause violent children, and I'm also not convinced that a State should step in and act in place of parents when it comes to determining whether or not they should play certain games.

But it's good to be informed about the issues surrounding games.

The legislation surrenders responsibility for determining whether or not a game is harmful to a child by relying upon guidelines set up by a private company, the Entertainment Software Rating Board. The ratings from this Board were intended to be used as advisory information for parents when deciding whether or not to purchase a game. But, they weren't intended to be the determining factor in deciding whether or not criminal charges should be tied to the purchase of a game, or the sale of a game to a minor.

The second section from the Delaware House of Representatives does impart criminal offenses to those sales:

Section 1368. Unlawfully providing access to mature or adult only video games; Class "A" Misdemeanor.

(a) It shall be unlawful for a person to sell at retail or rent or attempt to sell at retail or rent, to:

(1) A person under the age of 17 any video game with an official rating of "M" for mature audiences;

(2) A person under the age of 18 any video game with an official rating of "AO" for adult only audiences; or

(3) Any person any video game rated for mature or adults only audiences without first requiring the person to show an identification card that provides a date of birth.

(b) As used in this section:

(1) "Official rating" means the rating of the Entertainment Software Rating Board.

(2) "Video game" means any copy of a video game that is meant to be played with a hand-held gaming device using a television or computer.

(c) A person who violates this section shall be guilty of a Class "A" Misdemeanor.

Microsoft has a nice guide to ratings for video games, and it's good to see that some thought went into this system. But I'm not sure if the ratings should be tied to criminal offenses. Some interesting discussion on this topic over at gamepolitics. Another thread from there on this topic generated more than 400 comments from readers - Dishing More Dirt on Last Week's Delaware Hearing

I will say that I'm convinced after reading those that a game is as much free speech as a music CD or a book. A Wall Street Journal article from this past December, Courts Lift Curbs on Kids Buying Violent Games appears to take the same stance, and points to court battles over the subject, including a passage from District Court Judge Richard Posner:

"Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture," Judge Posner wrote. "To shield children right up until the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to deal with the world as we know it."

From: American Amusement Machine Ass'n v. Kendrick, 244 F.3d 572 (7th Cir. 2001)

The Wilmington News Journal has offered an editorial on the subject. I can't say that I agree with all of their editorials, but I think they are spot on with this one: State shouldn't assume parent's role in picking which games kids play.

Thursday, March 16, 2006

International Law a Threat to Freedom?

Supreme Court Justice Ruth Bader Ginsburg acknowledged recently that she has received death threats during her time on the court.

One threat in particular, posted online, railed Ginsburg and former Supreme Court Justice Sandra Day O'Connor for their use mention of international law in some of their opinions. The author of the threat says that their use of international law in their rulings is "a huge threat to our republic and constitutional freedom," the author then goes on to threaten their lives.

What this person does not realize is the bitter irony in his statements, even if the author does not follow through on his death threat the mere writing and publishing on the internet of such a statement is more damaging to our republic and our Constitution than all of Ginsburg's international law references combined, regardless of whether you agree with her judicial opinions or not.

Our founding fathers designed a Constitution that was nearly perfect, and from and within that Constitution sprung many important ideals which are necessary for our republic to function the way we expect it to. One of the most important of these ideals is the notion of judicial independence.

Our founding fathers recognized that this was important, which is why Judge is the only office in the federal government that is given an irrevocable life term. Short of breaking the law Justices and federal Judges cannot be removed from office by anyone. These life terms, in theory, give justices the necessary independence to make their decisions free of political constraints.

Whereas politicians are not apt to make unpopular decisions, no matter how right that decision may be, Judges have the freedom to make unpopular decisions in theory, because they do not have a constituency to please, as does a politician.

What the person who threatened Justice Ginsburg did was threaten judicial independence. No matter how unlikely it is that someone would actually assassinate a Supreme Court Justice, the threat and Justice Ginsburg's knowledge of it are enough to possibly affect her future decisions, and that is "a huge threat to our republic and constitutional freedom."

Posted by:
Frank Molfetta

Wednesday, March 15, 2006

New Family Court Rule 16.2

Rule 16.2 of the Family Court Civil Rules has been amended, effective March 1, 2006.

Here is a link to the new rule: Rule 16.2(a)(4)

The amendment added the language "for the petitioner and children." This relates to Rule 16.2(a)(2) that states that "Children between the ages of eight and sixteen at the time of filing shall participate in a Court approved education program with either parent." Normally when a parent completes the Parenting Education Course, they receive a certificate that is filed with the Court. According to the amended rule, that certificate must now also state that the children attended the course if they are between the ages of eight and sixteen.

I don't think that this new rule will affect parents taking the course pursuant to 13 Del. C. Section 1508(h). Under that section, when there are children of a marriage under 17, and the parents are getting divorced, the parents must attend the Parenting Education Course. If neither party is seeking custody or visitation, then the children would not have to attend the course.

The strange section is 13 Del. C. Section 1508(g) also known as the Affidavit of Children's Rights. This section requires that a divorcing parent sign an affidavit showing that the parent has read or been advised of certain children's rights. The strange thing is that there is no age cut-off for this rule. Therefore, even if the children are grown, the parent still needs to file the Affidavit of Children's Rights before the Court will grant a divorce.

Congratulations to Craig!!!

Congratulations go out to our legal assistant, Craig Springer, for being accepted into the Thomas M. Cooley Law School in Lansing, Michigan.

Named for the former Michigan Supreme Court Justice, the school was accredited by the American Bar Association in 1975.

Wednesday, March 08, 2006

Making a federal case of Delaware's prisons

The Wilmington News Journal reports this morning that the US Department of Justice will be taking a very close look at Delaware's prison system.

We've been hearing about inadequate health care at the Delaware facilities for many months now, and other issues surrounding Delaware's prisons. While it's sad that the federal government has to step in, it's good to hear that they are.

Amnesty International has also leveled criticism of the treatment of women in Delaware's correctional institutions. In addition to a report on the treatment of pregnant women in prisons, they also look closely at specific Delaware issues (pdf) involving Custodial Sexual Misconduct and pregnancy in custody.

The practices we've been hearing about in Delaware's prisons through the News Journal paint a grim and inhumane picture of how people are being treated once entrusted to the State's care. Prisoners and citizens alike deserve better from their government. Let's hope that this is the start.