April 22, 2019

Archives for September 16, 2014

Is There a Better Exit Strategy Than Death?—Part II: The Interviews: Anne Vitek—Planning for and Managing Your Retirement Sortie

Editor’s Note: This article appeared in the September 2014 issue of The Colorado Lawyer. This is the second part of a 5-part series on Legal Connection. Click here for Part 1.

Sandgrund-VitekBy Ronald M. Sandgrund, Esq., InQ.

InQ.: Anne, how old were you when you first felt that practicing law was what you wanted do as a career? How old were you when you first had serious thoughts about exiting the full-time practice of law? What prompted this change in your thinking?

Anne: From about age 14, I thought I wanted to be a lawyer. I was 29 when I started practicing law full-time, and did so for thirty-four years, almost to the day. I always knew that I would retire from practicing law. I was probably in my late 40s when I started thinking about where I would retire to.

InQ: How old were you when you first started making concrete plans to exit the full-time practice of law? What was your thought process?

Anne: I was 58 when I started making plans to exit. I had been practicing law for thirty-four years. We all have a limited lifespan and I wanted to do something different with the remainder of my life. My husband and I did a lot of work for the state and our contracts lasted for two years. We timed the contracts so that they were completed as we were closing down the practice. However, we still wanted to earn a living until we were ready to retire, so we took on more hourly work. Since our practice was primarily trial work, we could practice from our home. We did so for the last three years, which substantially reduced our overhead.

InQ: Did you develop any sort of plan as far as how to accomplish your retirement goals?

Anne: My plan was to begin thinking about retirement when I was in my 50s and to try to assure that I would have the financial resources to retire. At that point, and perhaps earlier, I began to assess possible retirement sites and to determine how they would fill my retirement needs. Once we started thinking that we might retire in Paris (around 2002), we began taking French classes at the Alliance Française in Denver. My plan was based primarily on financial considerations. I think it took a little longer to implement than I had anticipated because of the substantial stock market losses in the preceding years. My husband and I purchased our apartment in Paris in 2006 and retired in 2012, so it took about six years from the first concrete step toward retirement in Paris until our actual retirement.

InQ: What sort of obstacles to your plan cropped up, and did you ever think about reversing course?

Anne: The only obstacles that arose were the fluctuations in the stock market and the effect that they had on our ability to have sufficient funds to retire. The only strategies we could employ were to work longer so that we would have additional financial resources, given the volatility of the stock market. Although we had at one time had a law firm that included eight attorneys, in addition to ourselves and numerous staff, we had downsized in anticipation of retirement. So, the only person who was affected by our retirement was our longtime secretary. Fortunately, she was considering plans to stop working, so it worked out well for us and for her.

We did not ever think about reversing course. I think we’d had personally satisfying careers in the legal profession, but we were ready for a change. We had reached a stage in our lives where we wanted to indulge our interests in art, photography, and jazz. We also wanted the opportunity to travel.

InQ: Some say that the biggest obstacles to retreating from the full-time practice are the inability to imagine what life would be like not practicing law full-time, fears of not being able to fill the time, and not having enough money later in life. Did any of these factors affect your thinking?

Anne: I think that for most people who spend the majority of their adult life working at a profession, their sense of self is inextricably woven with their professional life. Thus, I do think that the idea of “not having a profession, not being a lawyer” can be daunting. As to the notion that one will not be able to fill the time, I can only say that we are as busy as or busier than we were when we were practicing law. We have organized our nonprofessional life much as we organized our professional life. The difference is that we are now free to pursue our own interests rather than the interests of our clients. In my opinion, it is essential to try to be as organized in retirement as one was when practicing law. In other words, we have a schedule that includes working out, taking classes, attending lectures, visiting museums, etcetera. We tend to organize our week in retirement much as we organized our agenda when we were trial attorneys.

InQ: What about financial concerns?

Anne: Certainly, there are always financial concerns. Of course, individuals with a pension may have fewer financial concerns than those who were self-employed and who must rely on their investments to fund their retirement. Obviously, there is always going to be uncertainty. I think that one needs to balance the regret of not having enjoyed a change of lifestyle against the possibility that one may not be able to maintain that lifestyle into very old age.

InQ: How did your significant other react during the course of you exploring options other than the full-time practice of law?

Anne: I was fortunate that my husband was as keen to be retired as I was. He was a full partner in the decision to retire as soon as it was financially feasible. He manages our finances and his competence in that regard made retirement a reality for us. My husband and I practiced law as partners for twenty-five years, so we were used to making decisions as a team. We had the advantage of having run a business as a team. I think that this business experience spilled over into our personal relationship. I feel that we have always made decisions in our personal lives as a team. I can quite honestly say that neither one of us has ever had veto power over the choices of the other. There were not any tensions resulting from our retreating from the full-time practice of law.

InQ: How, if at all, did having children affect your decision-making process?

Anne: Because we do not have children, I think our decision to leave the United States was easier. I think that having children would impact one’s decision-making process, if one had financial responsibilities toward those children. However, aging parents are also a consideration. In our case, my mother-in law, who was in the beginning stages of dementia, came to live with us in 2009. By 2010, her condition had deteriorated and we placed her in a nursing home within walking distance of our home. Luckily, she remembered my husband and me, but unfortunately she had no other memory. After consideration, we decided that we would go to Paris as planned in 2012. Our plan was to place my mother-in-law in a facility in Florida near my brother. She had retired to Florida and still had friends there who would visit her. Additionally, my family also would visit periodically. We would make two extended visits to Florida per year to spend time with her. However, she died in the fall of 2011 at the age of 89. I think that aged parents may be more of a concern for many potential retirees than children, especially if they are financially responsible for the parent.

InQ: What sort of activities have you embraced to fill the time you formerly devoted to the full-time practice of law? How satisfying have those activities been, and have you run into any unexpected issues arising from engaging in them?

Anne: We have been very actively engaged in many pursuits since our retirement. We are also actively involved in improving our French, and we are making a new circle of friends in Paris. Of course, this requires us to be sociable and to explore new venues where we might meet people to befriend. I believe this is a real plus in retirement. I think constant exploration is the key to a successful retirement and more important for a fulfilling life.

InQ: During your decision-making and decision-implementing process, what mistakes, if any, do you feel you made?

Anne: I’m sure we made some mistakes, but none of them were significant enough to have impacted our retirement plans. I can honestly say that I would not have done anything differently, except that I might have worked harder on honing my skills in French while I was planning for retirement.

InQ: What assumptions did you make that turned out to be mostly or wholly incorrect?

Anne: I thought I would miss having a professional identification and that I would have more time to pursue other interests than I actually have.

InQ: How happy were you when practicing law full-time? How happy are you now?

Anne: I was happy practicing law and I am happy now.

InQ: How much did financial considerations influence your decision to retreat from the full-time practice of law?

Anne: Obviously, financial considerations do play a large part in the decision to retire, to stop working outside the home, or to change careers. I think financial considerations did delay our retirement. In the end, I think we made the right decision for us, and I think we gave financial considerations the right amount of weight.

Colorado Court of Appeals: No Confrontation Clause Violation where Defendant Not Allowed to Elicit Testimony Regarding Victim’s Truthfulness

The Colorado Court of Appeals issued its opinion in People v. Wilson on Thursday, September 11, 2014.

Sexual Assault—Challenge for Cause—Impeachment—Veracity—Collateral Issue—Prosecutorial Misconduct.

A.M. claimed she was sexually assaulted by defendant and his friend in a parking garage. Defendant claimed the sex was consensual. A jury convicted defendant of two counts of sexual assault.

On appeal, defendant contended that the trial court erred in denying one of his challenges for cause and granting two of the prosecution’s challenges for cause. All three of the challenged jurors expressed a possible bias. Because Juror R indicated that she thought she could fulfill her duties as a fair and impartial juror, the court did not abuse its discretion in denying defendant’s challenge for cause as to this juror. The court also acted within its discretion in removing Jurors W and S based on its conclusion that it was not satisfied that they would render an impartial verdict after expressing bias.

Defendant also contended that the trial court erred in not allowing him to impeach A.M.’s testimony that she had truthfully answered all of a detective’s questions in an interview regarding a previous narcotic’s arrest. However, because the subject of A.M.’s narcotics arrest raised a collateral issue, the trial court acted within its discretion in precluding defendant from inquiring of A.M. whether she had been truthful to the detective on that subject. It follows that defendant’s constitutional right to confront adverse witnesses was not violated.

Defendant further argued that reversal was required because of prosecutorial misconduct in closing argument. However, the prosecutor was drawing reasonable inferences from the evidence rather than professing her personal opinion as to A.M.’s veracity. Although asking the female jurors to conduct an experiment to determine whether the evidence was credible was improper, no plain error occurred. In asking the jury to evaluate the evidence, based on the experience of its female members, the prosecutor was not asking the jury to decide the case on impermissible grounds.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Plain Language of Sexual Abuse Statute Includes Abuse of Sexual Organs

The Colorado Court of Appeals issued its opinion in People v. Lovato on Thursday, September 11, 2014.

Child Abuse—Sexual Assault on a Child—Equal Protection—Prosecutorial Misconduct—Merger—Assault—Lesser Included Offenses.

Defendant adopted the male victim when the victim was 13. Over the next couple of years, defendant punished the victim for not properly completing chores. Punishment included beating the victim with a belt, punching him with a fist, and striking him with a meat tenderizer.

Defendant asserted that his conviction for sexual assault on a child (SAOC) for stomping on the victim’s testicles violated his right to equal protection because the child abuse statute prohibits the same conduct and carries a lesser penalty. Here, the statutes do not violate equal protection on their face because they do not proscribe identical conduct. Notably, the SAOC charge requires “sexual contact” and the child abuse statute requires “serious bodily injury.” Further, because both statutes contain standards for a person of ordinary intelligence to determine permissible and prohibited conduct, neither statute is void for vagueness as applied to defendant’s conduct. Finally, although either assault could have been charged under the child abuse statute or the SAOC statute, the charging decision was a proper exercise of prosecutorial discretion.

Defendant also asserted that his convictions must be reversed because the prosecutor’s repeated statements of personal opinion, inflammatory remarks, and appeal to the jury to send a message to the community deprived him of his rights to a fair trial by a fair and impartial jury. The prosecutor referred to defendant’s actions as “systematic torture,” which was a proper description of the routine and severe beatings defendant inflicted on the victim over the course of several months. Additionally, it was not an abuse of discretion for the court to sustain defendant’s objection regarding the prosecutor’s comments that defendant liked child abuse and to instruct the jury to disregard the statement. Finally, any additional comments by the prosecutor were reasonable inferences based on the evidence introduced at trial. Therefore, any potential prejudice was cured by the trial court’s ruling and instruction to the jury to disregard the remark.

Defendant argued that his three convictions for second-degree assault must merge into three of his convictions for first-degree assault because they are lesser included offenses. The elements of first-degree assault and second-degree assault are almost identical; one difference is that proof that the defendant caused serious bodily injury is required for first-degree assault. Because the prosecution proved that defendant intended to cause, and did cause, serious bodily injury to the victim, the prosecution also proved that defendant intended to cause, and did cause, the lesser degree of bodily injury. The case was remanded to the trial court to amend the sentencing mittimus to merge the convictions on three counts of second-degree assault.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Debtor’s Participation in Tax Evasion Scheme was Willful

The Tenth Circuit Court of Appeals issued its opinion in In re Vaughn: Vaughn v. United States on Tuesday, August 26, 2014.

In the mid-1990s, James Charles Vaughn was the CEO of FrontierVision Partners, L.P., a cable television acquisitions company. In 1999, Vaughn sold FrontierVision for roughly $2.1 billion. He received approximately $20 million cash and $11 million in the purchasing company’s stock from this transaction. Vaughn contacted KPMG LLP regarding tax planning and learned of a tax strategy called Bond Linked Issue Premium Structure (“BLIPS”), in which relatively small cash contributions were made to an investment fund with a non-recourse loan and loan premium in order to facilitate a high tax loss without a corresponding economic loss. Vaughn utilized the BLIPS strategy for his 1999 taxes. In September 2000, the IRS issued Revenue Bulletin Notice 2000-44, which specifically disclaimed BLIPS-type practices, although not naming BLIPS. Vaughn was notified of the IRS’s position by KPMG in 2000. In 2001, another BLIPS participant was audited by the IRS, and contacted Vaughn to inform him of the audit. KPMG was audited in 2002, and at that time informed Vaughn that he likely would face an audit as well. KPMG representatives suggested to Vaughn that he participate in an IRS voluntary disclosure program.

Meanwhile, Vaughn divorced his first wife, Cindy Vaughn, in 2001, and the couple’s assets were divided. Vaughn married Kathy St. Onge shortly thereafter and made large purchases with her. In 2002, three weeks before filing his voluntary disclosure with the IRS, Vaughn created an irrevocable trust for his stepdaughter and transferred $1.5 million to the trust. Vaughn and St. Onge spent large amounts of money from 2001 through 2003. When the couple divorced in 2003, St. Onge received many of the remaining assets.

The IRS notified Vaughn in 2003 that Cindy had requested innocent spouse relief for her 1999 tax return. Vaughn requested the same relief, stating that the divorces had depleted his assets but neglecting to mention the trust for the stepdaughter or the unequal division of assets in his divorce from St. Onge. In June 2004, the IRS notified Vaughn of an approximately $8.6 million tax deficiency relating to the BLIPS transaction, and notified him of a further $200,000 deficiency regarding carryover from 2000.

Vaughn filed his Chapter 11 bankruptcy petition in November 2006. The IRS subsequently filed a proof of claim in that action for the 1999 and 2000 tax deficiencies for approximately $14.3 million. Vaughn initiated an adversary proceeding, seeking to have the taxes declared dischargeable. The bankruptcy court found that Vaughn had both filed a fraudulent tax return and willfully evaded his taxes, and his tax liabilities were non-dischargeable. Vaughn appealed to the federal district court, which affirmed the bankruptcy court. Vaughn then appealed to the Tenth Circuit, arguing that the district court erroneously employed a “holistic” review to support the bankruptcy court’s determination of willful evasion of taxes, and also arguing that the bankruptcy court’s finding of willful evasion was based on conduct that was negligent, not willful.

The Tenth Circuit first addressed the “holistic” review argument, and noted that the bankruptcy court made no mention of employing a “holistic” review, instead applying a two-pronged approach. Turning next to the argument that Vaughn’s conduct was negligent, not willful, the Tenth Circuit found that the bankruptcy court made specific findings regarding Vaughn’s intentions in participating in the BLIPS scheme. The Tenth Circuit rejected Vaughn’s argument that his conduct was negligent because he did not know the exact amount of taxes due, finding instead that the assessment of tax is not required for debtor’s conduct to be willful.

The Tenth Circuit affirmed the district court and the bankruptcy court.

Tenth Circuit: Opinion Amended Upon Request for Rehearing

The Tenth Circuit Court of Appeals released its amended opinion in Bayless v. United States on Friday, September 12, 2014. In this case, the United States filed a petition for panel rehearing, which was granted in part. Modifications were made to pages 2 and 23 of the published opinion. The request for rehearing was otherwise denied. To read the summary of the original opinion, click here.

Tenth Circuit: Unpublished Opinions, 9/15/2014

On Monday, September 15, 2014, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Sanchez v. State of Wyoming

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.