Thursday, September 15, 2016


            The Indiana Court of Appeals in Meridian Health Services Corporation v. Thomas Martin Bell just ruled that a provision of Indiana Law that allows a mental health professional to deny the patient access to his or her records does not apply to a parent obtaining those records.
            This was a custody and parenting time case where Father was seeking access to the child’s mental health records.  The counselor in this case obtained a letter from a medical doctor stating that it was “medically necessary that the records of [the child's] therapy sessions not be released to her parents.”  The doctor and counselor took the position that I.C. 16-39-2-4 prevented the release of the records based upon the providers’ opinions.
            The counselor failed to appear at a deposition and produce the records as Meridian Health had filed a motion to quash the subpoena 3 days before the deposition.  The court had not yet ruled on the motion to quash.  After which father filed a motion for rule to show cause and the court held a hearing on all pending motions.  The court denied Meridian's motion to quash and for a protective order and father subpoenaed the counselor for deposition again.  The counselor again failed to appear at the deposition with the records and Meridian then filed the records with the court and asked the court to hold them under seal pursuant to Indiana Administrative Rule 9(G)(2).  The trial court ordered that the attorneys could review the records in camera but subsequently ordered that the counsel could copy the records.
            On appeal Meridian argued that 16-39-2-4 supported the refusal to deny the release of records and if not then the release was prevented by HIPPA.  The Court of Appeals found under HIPPA there are 3 exceptions to the general rule that health care providers may release records to the parents and that none of the exceptions applied.  The court went on to find that 16-39-2-4 only applies to a provider's denial of access to records to the patient and a parent has access to the records unless there is a court order limiting such.  The trial court ordered that Meridian pay attorneys’ fees and found that the Father should not have had to file the various legal pleadings to obtain the records as he was allowed those records under Indiana law but that he was not to disclose the information to the child.  The court of appeals affirmed the trial court.
            It has commonly been believed by many in the mental health community and the legal community that Meridian’s position was correct as far as the release of the records.  In advising clients who are parents or providers, counsel should read this case carefully and review the citied material in the case as while the Father was given the records in this case there may be other ways hinted at in the opinion to protect the information if that is your client’s position.
            In affirming the award of attorneys' fees the court referenced the trial court’s finding about Meridian filing of the motion to quash shortly before the deposition and then not appearing for the deposition when the court had not granted or ruled upon the motion.  The court made clear that the counselor was required to appear and put their objection on the record.  You cannot simply choose to ignore the subpoena without court order.
Prepared by Richard A. Mann of Richard A. Mann, P.C. Attorneys at Law,

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Tuesday, September 6, 2016



            Under Indiana law there is what is commonly known as a mandatory waiting period after the filing before a divorce can be final. (The legal term is dissolution of marriage but for this article the term divorce is used).  Pursuant to I.C. 31-15-2-10, "in an action for a dissolution of marriage ... a final hearing shall be conducted not earlier than sixty (60) days after the filing of the petition."  
            The last court day of this year is December 29, 2016.  During the holidays, courts are addressing emergencies and other matters, so a non-contested divorce may be pushed aside until after the beginning of the year.  Therefore, your last reasonable date to file for divorce and this means file with the court is October 21, 2016.  Many people think the 60 days starts when you see a lawyer to start your divorce, it does notOctober 21, 2016.  This assumes you will have an agreed divorce.  Otherwise, depending upon the issues and the court involved, it may be too late to file the divorce and have it finalized before the end of the year. 
            While Indiana law allows bifurcation of the divorce versus the other issues, see IC 31-15-2-14, most courts will not grant a bifurcated divorce without agreement of the parties, and many courts will not grant a bifurcated divorce at all, especially if children are involved.  Further, your spouse may not agree as a matter of strategy especially if you are the higher income earner.
    Now you might ask, what does it matter?
The IRS website states, 

1.      Marital Status.  Your marital status on the last day of the year is your marital status for the entire year.
2.      If You Have a Choice.  If more than one filing status fits you, choose the one that allows you to pay the lowest taxes.
3.      Single Filing Status.  Single filing status generally applies if you are not married, divorced, or legally separated according to state law.
4.      Married Filing Jointly.  A married couple may file a return together using the Married Filing Jointly status.  If your spouse died during 2012[6], you usually may still file a joint return for that year.  Dates have not been updated on the IRS website.

5.      Married Filing Separately.  If a married couple decides to file their returns separately, each person’s filing status would generally be Married Filing Separately.
6.      Head of Household.  The Head of Household status generally applies if you are not married and have paid more than half the cost of maintaining a home for yourself and a qualifying person.
7.      Qualifying Widow(er) with Dependent Child.  This status may apply if your spouse died during 2010[4] or 2011[5], you have a dependent child and you meet certain other conditions." Dates have not been updated on the IRS website.

            Look at paragraphs one (1) and three (3).  Paragraph three (3) is not as simple as it looks as the IRS may require state law to meet certain standards for the term "separated" and it does not mean you just do not live together.  You should consult a Certified Public Accountant (CPA) to verify your situation.   
            If your divorce is final by December 31 (this year December 29), will you be in a higher or lower tax bracket?  If you are not divorced by December 31 (this year December 29), how will the refund or tax liability be handled?  Who gets the exemptions for any children and will you qualify for head of household as described in paragraph 6?  These decisions could mean thousands of dollars difference in your tax liability and should be given consideration.  The IRS has not published the schedules for 2016; however, to obtain an idea of the affect upon you check out the interactive tool offered by the IRS for 2015.
Prepared by Richard A. Mann of Richard A. Mann, P.C. Attorneys at Law,
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This blog does not constitute legal advice nor does it establish an attorney client relationship.  This is for general information purposes as in most legal situations the facts and terms of an agreement between the parties can affect the result.

Thursday, August 25, 2016

Even if you are not wealthy you should be aware of "Tax Effects of Divorce or Separation"

I generally write about these various things.  But the IRS has actually done a good job so I am providing a link to their publications.  You should read this if you have gotten or are getting a divorce.  You should consult your tax adviser even if you are not someone who makes a large income as your subsidy for healthcare insurance can be affected by your divorce.  There are many more things set out in this link.

Tax Effects of Divorce or Separation

IRS Summertime Tax Tip 2016-23, August 24, 2016
If you are divorcing or recently divorced, taxes may be the last thing on your mind. However, these events can have a big impact on your wallet. Alimony and a name or address change are just a few items you may need to consider. Here are some key tax tips to keep in mind:
  • Child Support.  Child support payments are not deductible and if you received child support, it is not taxable.
  • Alimony Paid.  You can deduct alimony paid to or for a spouse or former spouse under a divorce or separation decree, regardless of whether you itemize deductions. Voluntary payments made outside a divorce or separation decree are not deductible. You must enter your spouse's Social Security Number or Individual Taxpayer Identification Number on your Form 1040 when you file.
  • Alimony Received.  If you get alimony from your spouse or former spouse, it is taxable in the year you get it. Alimony is not subject to tax withholding so you may need to increase the tax you pay during the year to avoid a penalty. To do this, you can make estimated tax payments or increase the amount of tax withheld from your wages.
  • Spousal IRA.  If you get a final decree of divorce or separate maintenance by the end of your tax year, you can’t deduct contributions you make to your former spouse's traditional IRA. You may be able to deduct contributions you make to your own traditional IRA.
  • Name Changes.  If you change your name after your divorce, be sure to notify the Social Security Administration. File Form SS-5, Application for a Social Security Card. You can get the form on or call 800-772-1213 to order it. The name on your tax return must match SSA records. A name mismatch can cause problems in the processing of your return and may delay your refund.
Health Care Law Considerations
  • Special Marketplace Enrollment Period.  If you lose health insurance coverage due to divorce, you are still required to have coverage for every month of the year for yourself and the dependents you can claim on your tax return. You may enroll in health coverage through the Health Insurance Marketplace during a Special Enrollment Period, if you lose coverage due to a divorce.
  • Changes in Circumstances.  If you purchase health insurance coverage through the Health Insurance Marketplace, you may get advance payments of the premium tax credit. If you do, you should report changes in circumstances to your Marketplace throughout the year. These changes include a change in marital status, a name change, a change of address, and a change in your income or family size. Reporting these changes will help make sure that you get the proper type and amount of financial assistance. This will also help you avoid getting too much or too little credit in advance.
  • Shared Policy Allocation. If you divorced or are legally separated during the tax year and are enrolled in the same qualified health plan, you and your former spouse must allocate policy amounts on your separate tax returns to figure your premium tax credit and reconcile any advance payments made on your behalf. Publication 974, Premium Tax Credit, has more information about the Shared Policy Allocation.
For more on this topic, see Publication 504, Divorced or Separated Individuals. You can get it at any time.
IRS Tax Tips provide valuable information throughout the year. offers tax help and info on various topics including common tax scamstaxpayer rights and more.
Additional IRS Resources:
IRS YouTube Videos:
IRS Podcasts:
  • Premium Tax Credit: Changes in Circumstances – English | Spanish

Tuesday, August 16, 2016

EMPLOYEE OR INDEPENDENT CONTRACTOR (Or will you pay twice or more)

(Or will you pay twice or more)

            Many businesses are trying to avoid having employees due to the many regulations, penalties, governmental mandates and what they perceive as costly taxes and insurance.  Is this a trap you are setting for yourself?  Say you run a small law firm and you have a part time secretary, paralegal or assistant. (If not a law firm insert your business i.e. roofer, electrician, butcher, baker, or candle-stick maker)  What if that person also works elsewhere?  Is that person an employee or independent contractor?  You should first look to the IRS for guidance.   When doing so you will find it is not a simple search.  The IRS has 4 categories 1) independent contractor, 2) employee (they call a common law employee), 3) statutory employee, and 4) a statutory nonemployee.

1.       Independent contractor. (click on links to access reference material) People such as doctors, dentists, veterinarians, lawyers, accountants, contractors, subcontractors, public stenographers, or auctioneers who are in an independent trade, business, or profession in which they offer their services to the general public are generally independent contractors. However, whether these people are independent contractors or employees depends on the facts in each case. The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done. The earnings of a person who is working as an independent contractor are subject to Self-Employment Tax. 
2.     Employee (common law employee).  Under common-law rules, anyone who performs services for you is your employee if you can control what will be done and how it will be done. The following 3 factors are also considered Behavioral Control, Financial Control and Relationship of the PartiesThis is so even when you give the employee freedom of action. What matters is that you have the right to control the details of how the services are performed.  Say you have a secretary, roofer, part-time baker etc. who you control their hours of work, where they work, and how they perform the job.  This person is an employee.
3.     Statutory employee.  If workers are independent contractors under the common law rules, such workers may nevertheless be treated as employees by statute (statutory employees) for certain employment tax purposes if they fall within any one of the following four categories and meet the three conditions described under Social Security and Medicare taxes:
i.           A driver who distributes beverages (other than milk) or meat, vegetable, fruit, or bakery products; or who picks up and delivers laundry or dry cleaning, if the driver is your agent or is paid on commission.
ii.          A full-time life insurance sales agent whose principal business activity is selling life insurance or annuity contracts, or both, primarily for one life insurance company.
iii.         An individual who works at home on materials or goods that you supply and that must be returned to you or to a person you name, if you also furnish specifications for the work to be done.
iv.         A full-time traveling or city salesperson who works on your behalf and turns in orders to you from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments. The goods sold must be merchandise for resale or supplies for use in the buyer’s business operation. The work performed for you must be the salesperson's principal business activity.

You should consider whether 3 (i) above includes a person who does your typing or research at home or elsewhere?  Does it include a candle-stick maker who works from their garage for you or a baker who works from their kitchen for you

Withhold Social Security and Medicare taxes from the wages of statutory employees if all three of the following conditions apply:
·         The service contract states or implies that substantially all the services are to be performed personally by them.
·         They do not have a substantial investment in the equipment and property used to perform the services (other than an investment in transportation facilities).
·         The services are performed on a continuing basis for the same payer.

4.      Statutory nonemployee.  There are three categories of statutory nonemployees: direct sellers, licensed real estate agents and certain companion sitters. Direct sellers and licensed real estate agents are treated as self-employed for all Federal tax purposes, including income and employment taxes, if:
·         Substantially all payments for their services as direct sellers or real estate agents are directly related to sales or other output, rather than to the number of hours worked; and
·         Their services are performed under a written contract providing that they will not be treated as employees for Federal tax purposes.

Now you may ask:  Why should I care?  You might think "my employee/independent contractor will not turn me in as they are not paying taxes anyway and we are in a friendly relationship."  Have you heard of whistle blower statutes?  One of the biggest causes of IRS audits is from disgruntled associates, employees, and ex-spouses.  The IRS Whistleblower –Informant Award program offers rewards of 15-30% of the amount collected.  The first award in 2011 was four and one half million dollars ($4,500,000.00) to an anonymous accountant.  What if you have been paying the person “under the table”?  Unless you are not reporting income you receive, then you are claiming income but not deducting the valid tax deductions for earning that income.  If you are not reporting the income then you are incurring additional liabilities including possible criminal penalties.  What happens if the person gets injured and files for worker’s compensation and/or social security disability and you have not reported them as an employee?  For social security disability, the person must have paid in for a certain period of time.  If they were not paying the taxes and it was determined you should have been paying the taxes, then you are subject to tax penalties.  Can you then be sued for the benefits they would have received?  You can be liable for all the unpaid taxes, even if you are not the owner of the company.  See Who Can Be Responsible for the TFRP.  These taxes may not even be dischargeable in bankruptcy and may be withheld from your income, wages, and tax refunds in the future.

            Next, if the person files a worker’s compensation claim and is determined to be an employee for who you have not carried worker’s compensation insurance, what can happen?  Pursuant to I.C. 22-3-4-13(f), “In an action before the board against an employer who at the time of the injury to or occupational disease of an employee had failed to comply with IC 22-3-5-1, IC 22-3-7-34(b), or IC 22-3-7-34(c), the board may award to the employee or the dependents of a deceased employee:
(1) compensation not to exceed double the compensation provided by this article;
(2) medical expenses; and
(3) reasonable attorney fees in addition to the compensation and medical expenses.”

So this means if your secretary gets in a car accident when delivering mail to the local post office and you do not have worker’s compensation insurance her health insurance (if she has it) may not cover her as she is working (see our previous blog on worker’s compensation), and you can be held liable for the entire medical expenses, attorney fees and up to double what the worker’s compensation awards would be. 

            Now you have a disgruntled employee who may have to file bankruptcy to discharge medical bills, has no income and does not qualify for social security disability.  Do you think this person may sue you under Title 22 above?  Do you think this person will turn you in to the IRS?

            In my practice I regularly encounter people who think they are saving money by claiming everyone who works for them are independent contractors and as such do not pay withholding taxes, worker’s compensation insurance, and sometimes do not issue 1099’s.  I have not even addressed the state tax penalties, overtime laws, or the additional IRS penalties for failure to file returns or pay taxes, interest on the taxes/penalties, implications of hiring a contractor who does not cover their employees for worker’s compensation and the interest on all of these.  Suffice it to say, not treating an employee as an employee is a dangerous practice.  It is even more dangerous if you pay them under the table and do not report income.  You should consult a Certified Public Accountant or your business attorney to see what advice they will give you.  You may not like the advice but in the long run you may be able to sleep at night without the worries of the possible repercussions.

This is third of a series we will be doing on the issues of sole proprietorships, partnerships and other small business and issues with not complying or handling insurance, tax and other issues that can be found on our blog.

Prepared by Richard A. Mann of Richard A. Mann, P.C. Attorneys at Law,
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This blog does not constitute legal advice nor does it establish an attorney client relationship.  This is for general information purposes as in most legal situations the facts and terms of an agreement between the parties can affect the result.

Saturday, August 6, 2016

Are You Incurring Liability For People You Hire for Your Business?

Are You Placing You or Your Company in Jeopardy?

Are you placing you or your company in jeopardy?
Are you having work done in your office?  Is you IT contractor installing a new computer system, telephone system etc.? Are you paying more than $1,000.00?
The Indiana Court of Appeals has held that a person or business may be liable for injuries sustained by the employee of a tree trimming service when that employee was injured. A little known statute which is Indiana Code 22-3-2-14(b), requires that when you hire someone to perform any activity on your company’s behalf exceeding one thousand dollars ($1,000.00), such as tree trimming, lawn service, plumbing, electrical service and the like, that you require them to provide you with proof from such contractor a certificate from the worker's compensation board showing that such contractor has complied with section 5 of this chapter, IC 22-3-5-1, and IC 22-3-5-2. If you fail to do so you shall be liable to the same extent as the contractor for compensation, physician's fees, hospital fees, nurse's charges, and burial expenses on account of the injury or death of any employee of such contractor, due to an accident arising out of and in the course of the performance of the work covered by such contract. There are some exceptions that apply to your owner occupied residence but you should obtain the certificate in any case.
The interesting question raised in this case was the tree trimming service was only being paid six hundred dollars ($600.00). Part of the agreement between the tree trimming service and the business was that the tree trimming service was allowed to keep the wood that resulted from cutting up the downed tree. The employee of the tree trimming service argued that the wood was valued at more than four hundred dollars ($400.00) and therefore the true value of the contract was in excess of one thousand dollars ($1000.00).
Therefore, under this case, if a computer installer, painter, roofer, chimney sweep, or the like is injured while performing work for you in the amount in excess of one thousand dollars ($1000.00), you could be personally liable for compensation, physician's fees, hospital fees, nurse's charges, and burial expenses on account of the injury or death of any employee of such contractor, due to an accident arising out of and in the course of the performance of the work covered by such contract.
Also, another insurance that you should require them to provide is proof of liability insurance, which also covers you.  You can purchase at your own cost as part of your business insurance to protect you from the above issues.  You should consult you insurance professional to see if your current policy covers you.
This is one of a series we will be doing on the issues of sole proprietorships, partnerships and other small business and issues with not complying or handling insurance, tax and other issues.

Prepared by Richard A. Mann of Richard A. Mann, P.C. Attorneys at Law,
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This blog does not constitute legal advice nor does it establish an attorney client relationship.  This is for general information purposes as in most legal situations the facts and terms of an agreement between the parties can affect the result.

Tuesday, July 5, 2016

Indiana has 2 Child Support Calculators. Make sure you understand them (Updated from Previous post)


Recently there was a question posed as to why The Indiana Support Master Software and the Indiana Supreme Court Calculator resulted in different support amounts with the seemingly same numbers.  The example given, involved a Father who was designated as the non-custodial parent exercising 190 overnights per year, leaving Mother with 175 overnights.  As the designated custodial parent, Mother was to pay the amount commonly known as the 6% rule amount for uninsured health expenses and the controlled expenses.  Based on Father making a gross income of $2,500 a week and Mother making a gross income of $750 a week and no other variables, what is the support amount?  When calculating child support you must pay close attention to all the factors.  It appears that using the Support Master when you designate who the Payor is, you are basically deciding who will be attributed the parenting time credit and who pays the controlled expenses.  If the person is the Payor then that person receives the parenting time credit and the other pays the controlled expenses.  If you want the person with more than 183 overnights to receive the credit for the additional overnights then in the Support Master you must list the other person as the Payor.  You would then need to address the controlled expenses if the person with the most overnights is not paying them.  A person who is not the “custodial parent” may have more overnights in a situation where that person does not work in the summer and has more overnights as a result of time in excess of the guidelines in the summer.  In the Supreme Court calculator, you can put both at 183 and then you are asked to select who pays the controlled expenses.  By switching who is designated to pay the controlled expenses, you can see the difference it causes in the support amount and then adjust your support order accordingly.

The Indiana Support Master lists on page 1 the third line of item 7 “credit for parenting time for 190 overnights” and the result is credit of $90.60 for Father.  This results in Father paying $149.40 or $149 per week as it is rounded down to the nearest even dollar amount.  It then lists Mother as paying the first $973.44 of uninsured medical i.e. the 6% rule.  Now go to the parenting time credit worksheet on line 1PT it says 183.  This is because the child support guidelines parenting time credit table does not go beyond 50-50 or 183 overnights.  It appears that the guidelines assume if you have more than 183 overnights you are the custodial parent.  So if you make Father the custodial parent with Mother having the 175 overnights the resulting support is $98.35 and Father pays the 6% amount.  If you use 183 overnights each such as in an equal time arrangement and Mother is the custodial parent under Indiana Support Master, Father still pays the $149, and Mother pays the 6% amount and all controlled expenses.  If Father is designated the custodial parent he pays $103 per week, the 6% amount, and all controlled expenses.  It should be noted that controlled expenses account for approximately 15% of the cost of raising a child.


If you use the same scenario as above and use those numbers into this calculator, in the first example you have Father paying $94 and the calculator automatically defaults and assumes the Father is custodial parent.  The issue with the default in the program is that in the comments on the worksheet it says Custodial Parent Annual Obligation is $973.44 on the 6% rule.  It does not identify which parent is presumed to be Custodial in the calculation.  One might say well it is obvious is it not?  We all know that at times designation as to who is custodial is very important to people unrelated to the support obligation.  In the second scenario above this calculator asks you who will pay the controlled expenses and changes the support by approximately $45 a week.  To obtain a number closer to credit with 190 overnights, you select one person at 184+and the other at 181-183 and designate the person who you want to pay controlled expenses.

The point of this article is that if you are using shared custody arrangements in an agreement, you must also designate who pays the controlled expenses that include, but are not limited to, the uninsured medical expenses.  It appears that neither calculator will give you a number, which gives the person not paying controlled expenses, more than 183-184 overnights. 

Prepared by Richard A. Mann of Richard A. Mann, P.C. Attorneys at Law,
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This blog does not constitute legal advice nor does it establish an attorney client relationship.  This is for general information purposes as in most legal situations the facts and terms of an agreement between the parties can affect the result.

Sunday, July 3, 2016

Landmark Decision in Indiana grants Equal Rights to Parenthood of Married Same-Sex Couples for Children Born to Them During Marriage

Thursday, June 30, 2016,  the United States District Court for the Southern District of Indiana held that married same-sex spouses must be afforded equal rights as opposite-sex spouses as parents to the children born of their marriage.  While Indiana has long recognized husbands to be the father and legal parent of children born into their marriage, previously wives to the birth mother were not afforded this same recognition and would be forced to go through the lengthy and expensive adoption process.  With today's ruling, the children born to same-sex spouses will now have two parents.  This grants the children and these families the protection and stability previously only granted to opposite-sex couples.  Our firm is proud to continue to fight for equality for all families.  This case was brought by  5 Indianapolis Lawyers including Megan Gehring and Richard Mann of  Richard A. Mann, P.C.Karen Celestino-Horseman, William Groth and Raymond Faust.  To see the ruling following these links:

 We are also proud to announce that two of our same-sex married clients had their child on Thursday afternoon as the decision was being released.  They were able to use the links above to convince the hospital personnel to place both of their names on their child's birth certificate.

Prepared by Richard A. Mann of Richard A. Mann, P.C. Attorneys at Law, 
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This blog does not constitute legal advice nor does it establish an attorney client relationship.  This is for general information purposes as in most legal situations the facts and terms of an agreement between the parties can affect the result.