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The Deductibility of FCA Payments in Light of <b><i>Kokesh</i></b>
In negotiating False Claims Act (FCA) or similar settlements with the government, one key consideration is the tax treatment of any payment. While business expenses (including compensatory damages) may be deducted, deductions may not be taken for fines or penalties paid to the government for a legal violation or for payments made to the government to settle such potential liability. See 26 U.S.C. § 162(a), (f); 26 C.F.R. § 1.162-21. Taxpayers and the Internal Revenue Service (IRS) have litigated the deductibility of settlement payments, with courts adopting differing approaches to determine if a payment is punitive and thus a nondeductible penalty.
While not in the context of deductibility, the Supreme Court this year, in Kokesh v. SEC, analyzed whether disgorgement in an SEC enforcement action was punitive or compensatory. The Court's approach in Kokesh may provide a template for tax cases for analyzing if a settlement payment is deductible.
Disgorgement: Punitive or Not?
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Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?