This grand 6 bedroom 2 level Queenslander is located conveniently to schools and shops in Mysterton only 5 minutes to the City.
Situated directly opposite childcare and church, this unquie home would be suitable for an academic or professional family. This gorgeous property is fit for a queen featuring:
Upstairs
* Large master bedroom with en-suite and walk through robe
* Sewing room/change room
* 4 guest bedrooms with built-in robes all air-conditioned
* Main guest bathroom with spa bath
* Front breezy deck and splayed staircase
* High cathedral ceilings and designer architraves
Downstairs
* Large 2nd bedroom with spa en-suite and built in robe
* Large open plan kitchen, dining and lounge opening to swimming pool
* Library/waiting/study room
* Study nook and book repository
* 3rd shower and toilet
* Large internal laundry
* Split system air-conditioning
* Polished timber floors throughout
* Internal polished timber stairwell
* In-ground swimming pool
* Entertainment area and patio
* Large yard and established gardens
* Double lockup sheds
* Carport accommodation for 4 vehicles
* Fully fenced
With such an abundance of lifestyle features so close to shops, schools and transport, this grand lady of Queenslanders is treasured asset in the Mysterton area of Townsville.
Thursday, October 27, 2011
Wednesday, October 26, 2011
Nexus of Subsidiary Not Automatically Attributable to Parent Company
Recently, a number of states have adopted statutes providing that an out-of state retailer is presumed to have nexus in the state by virtue of ownership of a subsidiary that does business in the state. See California (ABX 1, but note its implementation was delayed by AB 155); Colorado (Colo. Rev. Stat. § 39-26-102(3)(b)(II)); and Arkansas (Ark. Code Ann. 26-52-117(b)). While each of these state statutes provides that mere ownership creates only a presumption of nexus, which a retailer can rebut, some commentators have interpreted these laws as attributing the nexus of in-state affiliates to related out-of-state companies.
But an out-of-state retailer’s mere ownership of a company without the company acting as an agent or representative of the retailer will not create nexus for the retailer under the constitutional standard. Quill and a number of cases decided both before and after Quill stand for the proposition that mere ownership of another company that has an in-state presence does not create nexus for the parent, absent the in-state subsidiary engaging in activities on behalf of the parent to create a market in the state for the parent. We wrote an article back in 1996 that discusses the case law. See Defending Against Affiliate Nexus in Sales and Use Tax Collection Liability Cases, State Tax Notes (March/April 1996). In other words, the subsidiary must be acting as an agent or representative of the parent company in the state for the nexus of the subsidiary to be attributed to the parent.
The constitutional standard has not changed since we wrote the article in 1996. In fact, recent position statements issued by the Tennessee Attorney General and the staff of the California Board of Equalization agree that ownership of an in-state company alone does not create nexus for the out-of-state company. The Tennessee statute (Tenn. Code Ann. § 67-6-102(25)(G)), which has been on the books for a number of years, provides that an out-of-state retailer that “maintains, or has within this state, directly or by a subsidiary, sales room or house, warehouse, or other place of business distributing facility or warehouse,” has nexus with Tennessee. Cal. Rev. & Tax Code § 6203(c)(1) similarly provides that “[a]ny retailer maintaining, occupying, or using, permanently or temporarily, directly or indirectly, or through a subsidiary, or agent, by whatever name called, an office, place of distribution, sales or sample room or place, warehouse . . . or other place of business” is required to collect and remit the California use tax.
In Opinion No. 11-71 (dated October 3, 2011), the Tennessee Attorney General opined in a response to a request from the Legislature to interpret the statute that the mere ownership by Amazon.com of a subsidiary that operated a distribution center in Tennessee would not establish nexus for Amazon.com in connection with its sales of products. Something more needs to be established. According to the Attorney General, “nexus is established only if the subsidiary’s in-state activities are significantly associated with the retailer’s ability to establish and maintain a market in Tennessee for sales.” The Attorney General’s opinion cites Tyler Pipe Industries, Inc. v. Washington Department of Revenue, 483 U.S. 232 (1987). In Tyler Pipe, the out-of-state company contracted with sales representatives that conducted in-state solicitation activities on its behalf. These activities, according to the Supreme Court, created nexus because they helped “to establish and maintain a market” in the state. The Tennessee Attorney General’s opinion notes that “the current Supreme Court jurisprudence in this area does not firmly establish whether a subsidiary’s ownership or maintenance of an in-state distributing center or warehouse would be sufficient to create nexus where the subsidiary is not engaged in actual solicitation activities.” See Attorney General’s Opinion No. 11-71 at p. 2.
Similarly, in an October 14, 2011 discussion paper regarding proposed revisions to Sales and Use Tax Regulation 1684, Board of Equalization staff commented on the state of common ownership nexus. The staff agrees with the Tennessee Attorney General that mere ownership does not establish nexus, citing Current, Inc. v. State Board of Equalization, 24 Cal.App.4th 382 (1994) (a case that we commented on in our 1996 article), and the more recent case of Borders Online, LLC v. State Board of Equalization, 129 Cal. App.4th 1179 (2005), in which the Court of Appeals held that the activities conducted on behalf of the retailer must “enhance the retailer’s sales to California customers and significantly contribute to the retailer’s ability to establish and maintain a market in California.” See Discussion paper at 5. (We disagree with staff’s conclusion that the standard of performing “services in this state in connection with tangible personal property to be sold by the retailer” satisfies Quill.)
In short, as we wrote long ago, the ownership of a subsidiary alone will not create nexus. The in-state subsidiary must be engaged in activities on behalf of the out-of-state company (parent) in order to create the necessary nexus for the out-of-state company. The law has not changed since we wrote the article. The recent wave of legislation does not alter the test in Quill.
But an out-of-state retailer’s mere ownership of a company without the company acting as an agent or representative of the retailer will not create nexus for the retailer under the constitutional standard. Quill and a number of cases decided both before and after Quill stand for the proposition that mere ownership of another company that has an in-state presence does not create nexus for the parent, absent the in-state subsidiary engaging in activities on behalf of the parent to create a market in the state for the parent. We wrote an article back in 1996 that discusses the case law. See Defending Against Affiliate Nexus in Sales and Use Tax Collection Liability Cases, State Tax Notes (March/April 1996). In other words, the subsidiary must be acting as an agent or representative of the parent company in the state for the nexus of the subsidiary to be attributed to the parent.
The constitutional standard has not changed since we wrote the article in 1996. In fact, recent position statements issued by the Tennessee Attorney General and the staff of the California Board of Equalization agree that ownership of an in-state company alone does not create nexus for the out-of-state company. The Tennessee statute (Tenn. Code Ann. § 67-6-102(25)(G)), which has been on the books for a number of years, provides that an out-of-state retailer that “maintains, or has within this state, directly or by a subsidiary, sales room or house, warehouse, or other place of business distributing facility or warehouse,” has nexus with Tennessee. Cal. Rev. & Tax Code § 6203(c)(1) similarly provides that “[a]ny retailer maintaining, occupying, or using, permanently or temporarily, directly or indirectly, or through a subsidiary, or agent, by whatever name called, an office, place of distribution, sales or sample room or place, warehouse . . . or other place of business” is required to collect and remit the California use tax.
In Opinion No. 11-71 (dated October 3, 2011), the Tennessee Attorney General opined in a response to a request from the Legislature to interpret the statute that the mere ownership by Amazon.com of a subsidiary that operated a distribution center in Tennessee would not establish nexus for Amazon.com in connection with its sales of products. Something more needs to be established. According to the Attorney General, “nexus is established only if the subsidiary’s in-state activities are significantly associated with the retailer’s ability to establish and maintain a market in Tennessee for sales.” The Attorney General’s opinion cites Tyler Pipe Industries, Inc. v. Washington Department of Revenue, 483 U.S. 232 (1987). In Tyler Pipe, the out-of-state company contracted with sales representatives that conducted in-state solicitation activities on its behalf. These activities, according to the Supreme Court, created nexus because they helped “to establish and maintain a market” in the state. The Tennessee Attorney General’s opinion notes that “the current Supreme Court jurisprudence in this area does not firmly establish whether a subsidiary’s ownership or maintenance of an in-state distributing center or warehouse would be sufficient to create nexus where the subsidiary is not engaged in actual solicitation activities.” See Attorney General’s Opinion No. 11-71 at p. 2.
Similarly, in an October 14, 2011 discussion paper regarding proposed revisions to Sales and Use Tax Regulation 1684, Board of Equalization staff commented on the state of common ownership nexus. The staff agrees with the Tennessee Attorney General that mere ownership does not establish nexus, citing Current, Inc. v. State Board of Equalization, 24 Cal.App.4th 382 (1994) (a case that we commented on in our 1996 article), and the more recent case of Borders Online, LLC v. State Board of Equalization, 129 Cal. App.4th 1179 (2005), in which the Court of Appeals held that the activities conducted on behalf of the retailer must “enhance the retailer’s sales to California customers and significantly contribute to the retailer’s ability to establish and maintain a market in California.” See Discussion paper at 5. (We disagree with staff’s conclusion that the standard of performing “services in this state in connection with tangible personal property to be sold by the retailer” satisfies Quill.)
In short, as we wrote long ago, the ownership of a subsidiary alone will not create nexus. The in-state subsidiary must be engaged in activities on behalf of the out-of-state company (parent) in order to create the necessary nexus for the out-of-state company. The law has not changed since we wrote the article. The recent wave of legislation does not alter the test in Quill.
Monday, October 17, 2011
FISHERMAN’S RETREAT BEACH HOUSE
Make and Offer to Purchase - Situated only 45 klm to the heart of Townsville City and a short stroll to the beach and waterfront, this tidy, clean and cool 2 bedroom beach house is located in a quiet and friendly fishing village only 400 metes to the water.
As a priceless lifestyle opportunity, the vendor is not able to decide on a suitable price and was wondering if a serious buyer could get the discussion started with an offer.
Positioned on a slightly elevated block, this property could be an excellent lifestyle for the adventurous traveller seeking peaceful retirement or an urban professional looking for a great weekend getaway for the kids and family to enjoy on the door step to the seaside fishing and boating playground.
When you are tired and exhausted from the beach and water, you can return to your own comfortable home and relax on your breezy front veranda with BBQ and coldie or lay back in the air-conditioned living room for a good night’s rest.
With a generous size block, you have plenty of room to grow your own tropical fruit just like the massive paw paws ripening and ready to eat as we speak.
The dwelling itself is serviced by town water, bitumen road and electricity and is constructed from steel with 2 bedrooms, open plan kitchen, dining and lounge with bathroom.
Fulfil your dream today and contact your friendly agent Aaron for more information on 0414 590 110. A Sustainability Declaration is available upon request.
www.rapidrealty.com.au
As a priceless lifestyle opportunity, the vendor is not able to decide on a suitable price and was wondering if a serious buyer could get the discussion started with an offer.
Positioned on a slightly elevated block, this property could be an excellent lifestyle for the adventurous traveller seeking peaceful retirement or an urban professional looking for a great weekend getaway for the kids and family to enjoy on the door step to the seaside fishing and boating playground.
When you are tired and exhausted from the beach and water, you can return to your own comfortable home and relax on your breezy front veranda with BBQ and coldie or lay back in the air-conditioned living room for a good night’s rest.
With a generous size block, you have plenty of room to grow your own tropical fruit just like the massive paw paws ripening and ready to eat as we speak.
The dwelling itself is serviced by town water, bitumen road and electricity and is constructed from steel with 2 bedrooms, open plan kitchen, dining and lounge with bathroom.
Fulfil your dream today and contact your friendly agent Aaron for more information on 0414 590 110. A Sustainability Declaration is available upon request.
www.rapidrealty.com.au
Friday, October 14, 2011
For Sale - Fresh Renovated 2 Bedroom Unit
3/90 DEARNESS STREET GARBUTT - Auction Sat 29-Oct-2011 4pm
This freshly renovated ground floor unit is located only minutes to the Strand, City and Airport, close to shops, schools and parks. With such convenience to everything, owning your own tidy and spacious unit is an excellent achievement for the first home buyer and lifestyle investor.
The lovely property features:
* 2 bedrooms with built-in wardrobes
* New kitchen and appliances
* New floor coverings throughout (tiled living areas)
* Tasmanian Oak feature wall
* New split system air-conditioning to living and ACs in the bedrooms
* Private courtyard with shade cover and lawn
* New bathroom and toilet fittings
* Lock up garage with secure internal access
* Internal storeroom and laundry
* Convenient guest parking
This contemporary design home would be suitable for the professional person or couple or fly in fly out worker.
Contact your local agent Aaron on 0414 590 110 for a viewing today.
Offers will be considered before Auction.
This freshly renovated ground floor unit is located only minutes to the Strand, City and Airport, close to shops, schools and parks. With such convenience to everything, owning your own tidy and spacious unit is an excellent achievement for the first home buyer and lifestyle investor.
The lovely property features:
* 2 bedrooms with built-in wardrobes
* New kitchen and appliances
* New floor coverings throughout (tiled living areas)
* Tasmanian Oak feature wall
* New split system air-conditioning to living and ACs in the bedrooms
* Private courtyard with shade cover and lawn
* New bathroom and toilet fittings
* Lock up garage with secure internal access
* Internal storeroom and laundry
* Convenient guest parking
This contemporary design home would be suitable for the professional person or couple or fly in fly out worker.
Contact your local agent Aaron on 0414 590 110 for a viewing today.
Offers will be considered before Auction.
Wednesday, October 12, 2011
What is in a Name? Revised Article 9's Treatment of Individual Debtor Names
While Article 9 of the UCC is one of the most recently amended articles of the UCC having just undergone revision in 2001 (the “2001 Revision”), the complexity of the code and changing practices in commerce have necessitated further revision. The ALI and ULC have now approved amendments which the states will now adopt toward an effectiveness date of July 1, 2013 (the Revision). All is well on the adoption front, but what does this really mean on key issues? As I am teaching a Commercial Law Survey Spring 2012, I've started to think about what hurdles the the Revision will set up for our students and practicing attorneys.
One of the issues that led to the Revision was disagreement about how a creditor should best specify the name of the debtor on the financing statement, with states such as Texas passing non-uniform amendments to address the problems. See, e.g., TEX.. BUS. & COM. CODE ANN. § 9.503 (2011); TENN. CODE ANN. § 47-9-503 (2011). Section 9-503 generally provides that a financing statement is not seriously misleading if it lists the name of the debtor indicated on the public record or the debtor’s jurisdiction for organizations or simply the name of the individual debtor. The model form provided in section 9-521 added merely that this be the “exact full legal name.” While this might initially appear sufficient guidance, it became apparent that issues remained, such as the inclusion of trade names and how to identify an individual’s name where the individual is commonly known as more than one name. Creditors who incorrectly identified the debtor soon found that their financing statement was ineffective because it was seriously misleading. Quite simply, these name errors can be fatal to the creditor’s attempted filing of a security interest. See, e.g., Peoples Bank v. Bryan Bros. Cattle Co., 504 F.3d 549 (5th Cir. 2007)(Cornerstone Bank obtained a security interest in the cattle, but failed to file a financing statement in the legal name of the debtor, “Brooks L. Dickerson,” having instead named “Louie Dickerson” as the debtor on the financing statement.)
To alleviate this problem with respect to individuals, the rules of the Revision allow for two alternatives. Revision § 9-503(a)(4)-(5) (2011). Alternative “A” sets up a hierarchy for individual names which requires a creditor to use the name on the most recent driver’s license, if the debtor has one. In the event the debtor has no driver’s license, then the creditor can use the individual name or surname and first personal name. Alternative “B” allows the creditor more flexibility in listing the individual debtor’s name, allowing the creditor to identify the debtor on the financing statement by the individual name, the surname and personal name, or the name on the debtor’s most recent driver’s license. Under this alternative, no one name designation takes precedence. Comment 2(b) explains that when driver’s license is required, but contains an error, the creditor must still use the name on the license in full when it is required, despite the error. The challenge that creditors which operate in more than one state will now face with individuals is getting the rules correct such that if the state uses Alternative A, the creditor must use the driver’s license if the individual has one and should not rely on the other manners in which names might be equally acceptable in Alternative B states.
Irrespective of Alternatives A or B for individuals, the use of the most recent driver’s license in the state where the financing statement was filed does not eliminate the potential pitfalls for creditors. First, has the debtor indeed provided the most recent driver’s license, rather than a replaced or expired one? Will creditors be able to search the driver’s license records to make sure the name is the most recent? Second, the name on the driver’s license may not in fact even be the debtor’s correct name, such as errors on the driver’s records or in the case of persons who change their name for marriage or other reasons. This may lead to confusion when later creditors search records. Third, driver’s license names are changed from time to time by the individual. Tying debt records to driving status may not be the most hassle free solution for creditors. Will creditors have to inquire into the marital status of women frequently to guard against name changes that either have or have not been made in driving records? For individuals that don’t have driving records, the Revision has not really changed the rules to address nicknames and similar issues.
When it comes to individuals, it seems that Alternative A and B would pose a potential pitfall for creditors operating in more than one state, unless the creditor simply makes it a practice to use a driver’s license in all instances. The challenges of ensuring that the creditor has the debtor’s correct drivers licenses may pose problems to ensuring a valid filing. Even under Alternative B, determining the debtor’s name and surname can pose difficulties, particularly with surnames comprised of multiple names. Creditors should not attempt to automatically rely on the name on a birth certificate, as the debtor may have changed names and foreign birth certificates sometimes contain different ordering of names. Moreover, filings for unincorporated business entities that are debtors will have the same issues as those for individuals. The pitfalls for individuals is heightened here as creditors will have to get the name correct (often the driver’s license of multiple individuals). Choosing the correct name for a financing statement is not a mechanical task. See, Revision 9-503 cmt. d.
Whether the Revision will ultimately alleviate a substantial amount of litigation in this area over time is uncertain, but the new rules will help resolve some outstanding issues regarding debtor names. Despite any criticisms of the Revision regarding debtor names, the rules at least give some further guidance that should eliminate some of the litigation in this area.
One of the issues that led to the Revision was disagreement about how a creditor should best specify the name of the debtor on the financing statement, with states such as Texas passing non-uniform amendments to address the problems. See, e.g., TEX.. BUS. & COM. CODE ANN. § 9.503 (2011); TENN. CODE ANN. § 47-9-503 (2011). Section 9-503 generally provides that a financing statement is not seriously misleading if it lists the name of the debtor indicated on the public record or the debtor’s jurisdiction for organizations or simply the name of the individual debtor. The model form provided in section 9-521 added merely that this be the “exact full legal name.” While this might initially appear sufficient guidance, it became apparent that issues remained, such as the inclusion of trade names and how to identify an individual’s name where the individual is commonly known as more than one name. Creditors who incorrectly identified the debtor soon found that their financing statement was ineffective because it was seriously misleading. Quite simply, these name errors can be fatal to the creditor’s attempted filing of a security interest. See, e.g., Peoples Bank v. Bryan Bros. Cattle Co., 504 F.3d 549 (5th Cir. 2007)(Cornerstone Bank obtained a security interest in the cattle, but failed to file a financing statement in the legal name of the debtor, “Brooks L. Dickerson,” having instead named “Louie Dickerson” as the debtor on the financing statement.)
To alleviate this problem with respect to individuals, the rules of the Revision allow for two alternatives. Revision § 9-503(a)(4)-(5) (2011). Alternative “A” sets up a hierarchy for individual names which requires a creditor to use the name on the most recent driver’s license, if the debtor has one. In the event the debtor has no driver’s license, then the creditor can use the individual name or surname and first personal name. Alternative “B” allows the creditor more flexibility in listing the individual debtor’s name, allowing the creditor to identify the debtor on the financing statement by the individual name, the surname and personal name, or the name on the debtor’s most recent driver’s license. Under this alternative, no one name designation takes precedence. Comment 2(b) explains that when driver’s license is required, but contains an error, the creditor must still use the name on the license in full when it is required, despite the error. The challenge that creditors which operate in more than one state will now face with individuals is getting the rules correct such that if the state uses Alternative A, the creditor must use the driver’s license if the individual has one and should not rely on the other manners in which names might be equally acceptable in Alternative B states.
Irrespective of Alternatives A or B for individuals, the use of the most recent driver’s license in the state where the financing statement was filed does not eliminate the potential pitfalls for creditors. First, has the debtor indeed provided the most recent driver’s license, rather than a replaced or expired one? Will creditors be able to search the driver’s license records to make sure the name is the most recent? Second, the name on the driver’s license may not in fact even be the debtor’s correct name, such as errors on the driver’s records or in the case of persons who change their name for marriage or other reasons. This may lead to confusion when later creditors search records. Third, driver’s license names are changed from time to time by the individual. Tying debt records to driving status may not be the most hassle free solution for creditors. Will creditors have to inquire into the marital status of women frequently to guard against name changes that either have or have not been made in driving records? For individuals that don’t have driving records, the Revision has not really changed the rules to address nicknames and similar issues.
When it comes to individuals, it seems that Alternative A and B would pose a potential pitfall for creditors operating in more than one state, unless the creditor simply makes it a practice to use a driver’s license in all instances. The challenges of ensuring that the creditor has the debtor’s correct drivers licenses may pose problems to ensuring a valid filing. Even under Alternative B, determining the debtor’s name and surname can pose difficulties, particularly with surnames comprised of multiple names. Creditors should not attempt to automatically rely on the name on a birth certificate, as the debtor may have changed names and foreign birth certificates sometimes contain different ordering of names. Moreover, filings for unincorporated business entities that are debtors will have the same issues as those for individuals. The pitfalls for individuals is heightened here as creditors will have to get the name correct (often the driver’s license of multiple individuals). Choosing the correct name for a financing statement is not a mechanical task. See, Revision 9-503 cmt. d.
Whether the Revision will ultimately alleviate a substantial amount of litigation in this area over time is uncertain, but the new rules will help resolve some outstanding issues regarding debtor names. Despite any criticisms of the Revision regarding debtor names, the rules at least give some further guidance that should eliminate some of the litigation in this area.
-JSM
Monday, October 10, 2011
Commercial Law has been nominated a top business law blog
The LexisNexis Business Law Community has nominated Commercial Law as one of its top 25 business law blogs for 2011. Commercial Law very much appreciates the nomination and hopes that its readers will post a comment in support of this honor.
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