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Read about legal detention of a citizen - and more... Email your questions to: dtebaldi@tebaldiesq.com
by Demian David Tebaldi, Esq. December 27, 2006 Dear ITL: This may be a question for the Supreme Court. If a bank or store is robbed and I am seen by police running down the sidewalk in front of the business is that cause for the police to stop and question me? I have nothing to do with the robbery I am just running down the sidewalk. E.T. Dear E.T.: A question for the Supreme Court indeed. This issue was, in fact, visited by the Supreme Court of the United States in 1968. An 8-1 decision with Justice Douglas dissenting, Terry v. Ohio established that a police officer may temporarily detain a person for questioning or investigation if there are specific, articulable facts which would lead a reasonable police officer to believe that a crime might be occurring, and that the person detained is either a witness to or a suspect in that crime. While a police officer would need probable cause to arrest, search, or seize property from a suspect, only reasonable suspicion – somewhere between probable cause and a mere “hunch” – need exist for an officer to detain and question a person under circumstances such as those presented in your question. So, to answer those circumstances directly, not only may a police officer detain a person for running past the building during or after a robbery, provided that in doing so, that person gives the officer reason to be suspicious, but the officer may also detain for questioning a person who is just standing around or acting furtively. In addition, if the person detained gives the officers any reason to feel that their safety is threatened, the officers may pat down the person, and remove from the person’s pockets anything which feels like a weapon or contraband (drugs, etc.). At such a point, a “Terry” stop very well may become a full custodial arrest. And just what is a ‘temporary detention?’ It depends upon all the circumstances, and what may be viewed as ‘temporary’ in one situation may be deemed an all-out ‘custodial interrogation’ in another. Up to ten or twenty minutes will likely be viewed by a court as a reasonable amount of time for a questioning, while thirty to forty five will likely not. READ ENTIRE COLUMN
Dear ITL: I own a condominium interest in a beach club. If I were to add someone to the deed would the value of the property be subject to gift tax? Is it possible to do this in a real estate trust? C.C. Dear C.C.: Assuming you are referring to the federal gift tax mandated by Section 2501(a) of the Internal Revenue Code, the answer to your question is “it depends.” I’m not trying to be glib, understand; nowhere in the entirety of the U.S. Internal Revenue Code is the term “gift” actually defined. The courts, therefore, have had to fine-tune the concept on many occasions. The last word is that, where a gift and resulting federal taxation are concerned, the existence of a gift hinges not on whether the donor had donative intent at the time of the transfer, but rather whether the donor continues to maintain “dominion and control” over the property which is the subject of the gift after the time of transfer. In plain terms, a gift exists (and is taxable) when the power of revocation ceases. In the question you present, then, at first glance, it would appear that adding an individual to a deed as a joint tenant for no consideration would incur no federal gift tax at the time of the transfer. As a joint tenant himself, one would continue to enjoy equal “dominion and control” over the property which is the subject of the transfer (the condominium), and no federal gift tax would be incurred. However, it could be argued that when a person adds another to a deed as a joint tenant, the transferor at that time loses “dominion and control” over a fifty percent interest in the property, thereby completing the gift and incurring federal gift tax. Either way, at the time of the transferor’s death, when the joint tenant added to the deed becomes the sole owner of the property (assuming a joint tenancy), a federal gift tax would become an issue to contend with. If ownership of the condominium interest were instead to be transferred to a trust, that may delay the taxation process. Again, it depends. The key question is this: when is the transfer of property, along with all rights to control it, complete? If, as the settlor of such a trust, a transferor grants himself power to revoke or amend the trust, or names himself trustee, then the gift of property is not complete until the settlor dies or loses control over the trust property. If a settlor’s power of revocation ceases only at the time of his death, no gift tax will be due at all on the value of the property transferred into trust, but the trust property may be included in the settlor’s gross estate and be subject to the federal estate tax. If the settlor creates an irrevocable trust, or one which is revocable at someone else’s discretion, the gift is complete at the time of transfer, and would therefore be taxable immediately.
*Disclaimer: The answers provided in this column are not in any way to be construed as legal advice. While the author is an attorney admitted to practice law in the Commonwealth of Massachusetts, the questions presented do not come from clients, but from anonymous members of various Massachusetts communities. The answers presented merely describe what the law is, and do not contain specific strategies for dealing with the situations presented. If you have questions regarding these or other legal issues, please contact Attorney Demian David Tebaldi at 508-435-5576. |
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