Recent Developments

◙
Americans with Disabilities
Act.

The House of Representatives
approved the ADA Amendments Act on 9/25/08 expanding protections against
workplace discrimination under the Americans with Disabilities Act. The measure
is expected to be signed into law by President Bush. It overturns Supreme Court
decisions that narrowly construed the original ADA’s definition of the term
“disability”. The new law prohibits consideration of measures taken
to overcome the effects of an employee’s condition (e.g., medication, prosthetic
device, etc.) in the analysis of whether such a person is “substantially
limited in a major life activity.”
This will now include brain and neurological functions. As before,
employers should endeavor to reasonably accommodate employee disabilities,
document the attempts to do so, and document performance issues that are
independent of the disabilities. If you’re seeking to cut an employee because
of the economic downturn, these changes are yet another minefield to navigate.

◙
CRT
Sales.

You know the old adage about too much of a good thing… While selling
your income interest in a CRT to raise money and accelerate the charities
interest might be viable, some taxpayers have abused this to the point that the
IRS identified such transactions, when the selling taxpayer recognizes little
or no gain, as “transactions of interest”. If you engage in such a transaction
you have to disclose it appropriately, and your tax advisers will have both
disclosure and record (list) retention requirements. Notice 2008-99, 2008-47
IRB.

◙ Daughter had a joint bank account with a
right of survivorship with her mother. The presumption that the daughter as joint
tenant did not trump because the account and signature cards did not contain
survivorship language. The daughter had the burden of proving that the bank
account was a joint tenancy or gift to her. Because the intent of the deceased
mother, as expressed in her will, was to divide her estate equally among her four
children, all of the account in issue should have been deemed assets of the
estate and subject to distribution in accordance with decedent’s will.
Matter of Degnan.
10/3/08.