No, that's not dog pee in the carpet. It's a feature.
Wednesday, October 30, 2013
Friday, October 25, 2013
California Ups the Ante On Privacy Policy Disclosures
For the past decade, California law has set the template for commercial website privacy policies. With the passage of a new law, set to take effect January 1, 2014, the state has updated the disclosures required of any commercial website operator who collects personally identifiable information from California residents.
California’s Online Privacy Protection Act. In 2003, California became the only state to require all websites that collect personal information (“PII”) from visitors – in this case, California residents – to post a privacy policy. Until then, there was no generally applicable privacy policy requirement under either state or federal law, and, to this day, neither the other states nor the federal government have imposed such a requirement. Federal privacy policy requirements have been limited to specific kinds of information (such as under Children’s Privacy Protection Act) or industries (under the Health Insurance Portability and Accountability Act). Under the 2003 law, Internet sites need to identify the “categories” of personally identifiable information collected about “individual consumers”; describe the “categories” of third parties with whom the information may be shared; disclose (if there is one) any process for individuals to review or request changes to their personal information; explain how notice is given to consumers of changes in the privacy policy; and post the policy’s effective date. The definition of PII is more expansive than encountered in data breach statutes, and includes email addresses, partial addresses (including street names and towns), and first and last names. The privacy policy also must be “conspicuously” posted, as defined by the statute.
Now, however, the law has been significantly expanded.
The New Requirements. Under recently enacted Assembly Bill 370, the privacy policy requirements of California’s Online Privacy Protection Act have been expanded to include (1) disclosure of how the web site “responds to Web browser ‘do not track’ signals or other mechanisms that provide consumers the ability to exercise choice regarding the collection of personally identifiable information about an individual consumer’s online activities over time and across third-party Web sites or online services, if the operator engages in that collection”; and (2) disclosure of “whether other parties may collect personally identifiable information about an individual consumer’s online activities over time and across different Web sites when a consumer uses the operator’s Web site or service.” The statute was approved by the Governor and chaptered by the Secretary of State on September 27, 2013. It will take effect on January 1, 2014. Fortunately for Internet sellers, the law provides that “[a]n operator shall be in violation of this subdivision only if the operator fails to post its policy within 30 days after being notified of noncompliance.” As a result, potential liability will only attach after a notice of noncompliance. Nonetheless, it is prudent to review and amend privacy policies to conform with the new law to avoid having to implement last minute changes should your company receive notice of non-compliance (which is not defined, and presumably could include a telephone call or email from a consumer).
The Light Still Shines. Companies should also remain mindful of California’s so-called “Shine the Light” Law, which can be found at California Civil Code § 1798.83, and as to which we’ve previously blogged. Violations of this law, which, among other things, requires privacy policy disclosures, have led to class actions being filed against Internet sellers. Customers can be awarded up to $3,000 per each violation, plus attorneys’ fees and costs. Some of these cases have been dismissed, but the costs of defending even an unsuccessful class action lawsuit can be substantial.
The Shape Of Things To Come. California isn’t stopping there. Beginning on January 1, 2015, all web sites that direct services to minors, or have actual knowledge that minors are using their sites, must provide a “delete” button to permit minors to remove all of their online content (together with clear instructions for doing so). The law will also prohibit Internet marketing of a wide variety of products and services to minors, including aerosol paint (apparently to inhibit graffiti), etching creams, BB guns, and tanning services. Unlike the COPPA, which is directed to persons under the age of 13, the California law applies to all persons under the age of 18.
California’s Online Privacy Protection Act. In 2003, California became the only state to require all websites that collect personal information (“PII”) from visitors – in this case, California residents – to post a privacy policy. Until then, there was no generally applicable privacy policy requirement under either state or federal law, and, to this day, neither the other states nor the federal government have imposed such a requirement. Federal privacy policy requirements have been limited to specific kinds of information (such as under Children’s Privacy Protection Act) or industries (under the Health Insurance Portability and Accountability Act). Under the 2003 law, Internet sites need to identify the “categories” of personally identifiable information collected about “individual consumers”; describe the “categories” of third parties with whom the information may be shared; disclose (if there is one) any process for individuals to review or request changes to their personal information; explain how notice is given to consumers of changes in the privacy policy; and post the policy’s effective date. The definition of PII is more expansive than encountered in data breach statutes, and includes email addresses, partial addresses (including street names and towns), and first and last names. The privacy policy also must be “conspicuously” posted, as defined by the statute.
Now, however, the law has been significantly expanded.
The New Requirements. Under recently enacted Assembly Bill 370, the privacy policy requirements of California’s Online Privacy Protection Act have been expanded to include (1) disclosure of how the web site “responds to Web browser ‘do not track’ signals or other mechanisms that provide consumers the ability to exercise choice regarding the collection of personally identifiable information about an individual consumer’s online activities over time and across third-party Web sites or online services, if the operator engages in that collection”; and (2) disclosure of “whether other parties may collect personally identifiable information about an individual consumer’s online activities over time and across different Web sites when a consumer uses the operator’s Web site or service.” The statute was approved by the Governor and chaptered by the Secretary of State on September 27, 2013. It will take effect on January 1, 2014. Fortunately for Internet sellers, the law provides that “[a]n operator shall be in violation of this subdivision only if the operator fails to post its policy within 30 days after being notified of noncompliance.” As a result, potential liability will only attach after a notice of noncompliance. Nonetheless, it is prudent to review and amend privacy policies to conform with the new law to avoid having to implement last minute changes should your company receive notice of non-compliance (which is not defined, and presumably could include a telephone call or email from a consumer).
The Light Still Shines. Companies should also remain mindful of California’s so-called “Shine the Light” Law, which can be found at California Civil Code § 1798.83, and as to which we’ve previously blogged. Violations of this law, which, among other things, requires privacy policy disclosures, have led to class actions being filed against Internet sellers. Customers can be awarded up to $3,000 per each violation, plus attorneys’ fees and costs. Some of these cases have been dismissed, but the costs of defending even an unsuccessful class action lawsuit can be substantial.
The Shape Of Things To Come. California isn’t stopping there. Beginning on January 1, 2015, all web sites that direct services to minors, or have actual knowledge that minors are using their sites, must provide a “delete” button to permit minors to remove all of their online content (together with clear instructions for doing so). The law will also prohibit Internet marketing of a wide variety of products and services to minors, including aerosol paint (apparently to inhibit graffiti), etching creams, BB guns, and tanning services. Unlike the COPPA, which is directed to persons under the age of 13, the California law applies to all persons under the age of 18.
Thursday, October 24, 2013
Townsville Born "My Property Time Blog" Launched for Investors
Townsville's leading independent real estate Principal and Managing Director of Rapid Realty Australia and Trustee of McLeod Investments and Consultancy (MCINC) firm, Mr Aaron McLeod has launched a new website blog called My Property Time.
Mr McLeod said; "the new website will be administered in North Queensland. It will be a public meeting place like the old bookstore and library with a social atmosphere where useful stories can be told and collaborated."
Mr McLeod expects the My Property Time blog reflects the knowledge and experience of his team of business owners and employees including property managers, real estate professionals, financial planners, mortgage brokers, solicitors, etc. to help new and emerging property investors to achieve success and avoid the many hidden costs and pitfalls of property investing.
From the My Property Time Blog:
Welcome to the new My Property Time Blog created to help investors and property owners with the joy, and dare I say it, the sadness of property ownership. We hope My Property Time adds value to our readers' efforts whether you might be researching, observing or actively investing in real estate across Australia and the world.
My Property Time will source pertinent and trending stories on real estate and property markets impacting investors. Whether you are experienced or new to the property investment industry, this blog aims to be useful for all interest groups. However, My Property Time's target audience and focus by and large will be active investors.
Although some of you may never become an active investor, or at least identify yourself as one, it is this group of people who are more likely to benefit from the My Property Time blog.
Being an active investor means you have an acute need for reliable, pertinent, trustworthy, accurate and timely information and facts about legislative changes, niche market trends, hints and tips on selecting a mortgage broker, real estate professional, property manager, conveyance specialist or even building and pest inspection reports.
Investing in real estate for cash flow, capital gains or tax minimization purposes needs to be purposeful, and often most effective when linked to specific goals. The delivery of investment measures and strategies are constrained by various risks while opportunities are realised more often when the investor has clear investment plans and specific goals.
Almost all successful investors understand these risks, opportunities, strengths and weaknesses, often referred to the SWOT analysis. So if you are a first time investor reading this blog on your mobile device or office PC, understanding the keys to successful property investing is understanding your goals, establishing a clear investment plan, identifying your constraints, risks and appetite for loss or gain, and minimising your assumptions while having the courage and decisiveness to secure your first investment property.
As a first time investor, if this is your situation, you can feel a sense of comfort knowing that My Property Time is at the beginning of your journey, just as this blog is at the beginning of our journey. We hope you have discovered this blog and we share My Property Time together.
As an experienced investor, we trust you can make My Property Time one of your favourite sites to gain knowledge and information but also share your extensive knowledge with our supporters and our team.
So as an opening introduction to our purpose, investment planning, risk management and decision-making is a prelude to what our opening series of stories will cover. Once again, welcome to My Property Time and we look forward to making a small difference in your life. My Property Time is your time!
You can visit the new My Property Time Blog at http://mypropertytime.wordpress.com/
Mr McLeod said; "the new website will be administered in North Queensland. It will be a public meeting place like the old bookstore and library with a social atmosphere where useful stories can be told and collaborated."
Mr McLeod expects the My Property Time blog reflects the knowledge and experience of his team of business owners and employees including property managers, real estate professionals, financial planners, mortgage brokers, solicitors, etc. to help new and emerging property investors to achieve success and avoid the many hidden costs and pitfalls of property investing.
From the My Property Time Blog:
Welcome to the new My Property Time Blog created to help investors and property owners with the joy, and dare I say it, the sadness of property ownership. We hope My Property Time adds value to our readers' efforts whether you might be researching, observing or actively investing in real estate across Australia and the world.
My Property Time will source pertinent and trending stories on real estate and property markets impacting investors. Whether you are experienced or new to the property investment industry, this blog aims to be useful for all interest groups. However, My Property Time's target audience and focus by and large will be active investors.
Although some of you may never become an active investor, or at least identify yourself as one, it is this group of people who are more likely to benefit from the My Property Time blog.
Being an active investor means you have an acute need for reliable, pertinent, trustworthy, accurate and timely information and facts about legislative changes, niche market trends, hints and tips on selecting a mortgage broker, real estate professional, property manager, conveyance specialist or even building and pest inspection reports.
Investing in real estate for cash flow, capital gains or tax minimization purposes needs to be purposeful, and often most effective when linked to specific goals. The delivery of investment measures and strategies are constrained by various risks while opportunities are realised more often when the investor has clear investment plans and specific goals.
Almost all successful investors understand these risks, opportunities, strengths and weaknesses, often referred to the SWOT analysis. So if you are a first time investor reading this blog on your mobile device or office PC, understanding the keys to successful property investing is understanding your goals, establishing a clear investment plan, identifying your constraints, risks and appetite for loss or gain, and minimising your assumptions while having the courage and decisiveness to secure your first investment property.
As a first time investor, if this is your situation, you can feel a sense of comfort knowing that My Property Time is at the beginning of your journey, just as this blog is at the beginning of our journey. We hope you have discovered this blog and we share My Property Time together.
As an experienced investor, we trust you can make My Property Time one of your favourite sites to gain knowledge and information but also share your extensive knowledge with our supporters and our team.
So as an opening introduction to our purpose, investment planning, risk management and decision-making is a prelude to what our opening series of stories will cover. Once again, welcome to My Property Time and we look forward to making a small difference in your life. My Property Time is your time!
You can visit the new My Property Time Blog at http://mypropertytime.wordpress.com/
Friday, October 18, 2013
Illinois Supreme Court Rules Illinois “Click Through” Nexus Statute Is Void And Preempted By Federal Law
The Illinois Supreme Court issued its decision today in Performance Marketing Association v. Hamer, ruling that the Illinois “affiliate nexus” (also known as “click-through nexus”) law is “void and unenforceable” because it is preempted by federal law. Brann & Isaacson partners George Isaacson and Matthew Schaefer represented the PMA in this case, and Isaacson argued the case before the Illinois Supreme Court on May 22, 2013. The case was on appeal from the Circuit Court, which had had held that the affiliate nexus law was an unconstitutional violation of the Commerce Clause, and was also preempted by the Internet Tax Freedom Act (“ITFA”), because it impermissibly discriminated against electronic commerce. In affirming the lower court’s decision, the Illinois Supreme Court based its holding on a violation of the ITFA, and did not reach the Constitutional argument.
The Illinois law had purported to impose a use tax collection obligation on any out-of-state retailer or serviceman who had a contract with a person located in Illinois that paid a commission based on sales generated from referral links placed on that person’s website, provided the retailer realized a minimum in $10,000 in sales to customers through such links. Under the Internet Tax Freedom Act, states are prohibited from imposing “discriminatory taxes on electronic commerce.” A discriminatory tax is defined as a tax that “imposes an obligation to collect or pay tax on a different person or entity than in the case of transactions involving similar property, goods, services, or information accomplished through other means.” 47 U.S.C. §151 note.
The ruling is a significant victory for online retailers, and for the Illinois individuals who generate income through affiliate links.
The Illinois law had purported to impose a use tax collection obligation on any out-of-state retailer or serviceman who had a contract with a person located in Illinois that paid a commission based on sales generated from referral links placed on that person’s website, provided the retailer realized a minimum in $10,000 in sales to customers through such links. Under the Internet Tax Freedom Act, states are prohibited from imposing “discriminatory taxes on electronic commerce.” A discriminatory tax is defined as a tax that “imposes an obligation to collect or pay tax on a different person or entity than in the case of transactions involving similar property, goods, services, or information accomplished through other means.” 47 U.S.C. §151 note.
The ruling is a significant victory for online retailers, and for the Illinois individuals who generate income through affiliate links.
Friday, October 11, 2013
Litigation News: Colorado and Cook County Update
We have written frequently about the DMA case challenging Colorado’s notice and reporting law. The law, which requires remote sellers to inform consumers of their obligation to self-report sales and use tax and which also requires sellers to hand over Colorado customers’ names to the state’s Department of Revenue, was declared unconstitutional in 2012 by the United States District Court in Denver. See DMA v. Brohl, 2012 WL 1079175 (D. Colo. Mar. 30, 2012). The Court issued an injunction barring enforcement of the law. But, in August, the Tenth Circuit found that the District Court did not have jurisdiction over the case, and issued a decision calling for the case to be remanded to the District Court with instructions to dissolve the injunction. The DMA subsequently filed a petition for rehearing en banc by the Tenth Circuit, thereby staying implementation of the decision. But, on October 1, that petition was denied. As a result, the Court of Appeals’ mandate was issued on October 9. The District Court has not yet implemented the Tenth Circuit’s order, however, so for the time being the injunction remains in place--at least until the District Court acts. In response to the ruling, the DMA intends to refile its challenge to the law in state court in Colorado and seek a new injunction from the state court to prevent enforcement of a law that the federal District Court has found to be unconstitutional on its face. Brann & Isaacson’s George Isaacson and Matthew Schaefer represent the DMA in the case.
Meanwhile, we wrote in July about Judge Lopez Cepero of the Cook County Circuit Court issuing a preliminary injunction which barred Cook County from enforcing its recently enacted use tax. On October 4, the Appellate Court stayed the preliminary injunction, but on October 8, Judge Lopez Cepero granted the plaintiffs’ motion for summary judgment. The judge’s ruling will be issued in written form today and effectively is a permanent injunction barring Cook County from enforcing the use tax. It remains uncertain, however, whether the County will appeal this decision.
We will continue to update our readers on these and other cases throughout the country.
Meanwhile, we wrote in July about Judge Lopez Cepero of the Cook County Circuit Court issuing a preliminary injunction which barred Cook County from enforcing its recently enacted use tax. On October 4, the Appellate Court stayed the preliminary injunction, but on October 8, Judge Lopez Cepero granted the plaintiffs’ motion for summary judgment. The judge’s ruling will be issued in written form today and effectively is a permanent injunction barring Cook County from enforcing the use tax. It remains uncertain, however, whether the County will appeal this decision.
We will continue to update our readers on these and other cases throughout the country.
Monday, October 7, 2013
Space-age, Spacing-saving Italian Design.
The trend towards smaller condos is here to stay and with it comes a trend towards compact, space-saving furniture. One of my clients was recently looking for a murphy bed for the guest room in her sleek loft near the the Lachine Canal. She wanted something both stylish and practical - a fold-out bed hidden behind a desk and bookshelf set up, for example. This video is making the rounds just a little too late for my canal-side acquaintance, but it might be of interest to someone else out there hoping to add a little Italian brio to their home decor.
Best of all, Montreal's Fraser Furniture is the exclusive retailer for this totally cool line.
Saturday, October 5, 2013
3rd Quarter 2013 Ventura County Market Analysis
3rdQuarter 2013 Ventura County Market Analysis
(July, August September)
Camarillo has seen its’ market shrink significantly this quarter. The total number of homes for sale has dropped from 163 homes in July to 130 homes in September. On a month by month basis we saw the number of homes that came to market drop from 72 single family homes for July to 52 homes in August and finally 28 homes for the month of September. Yikes! Wrong direction!
The number of actual sales dropped from 110 homes in July to 102 homes in August and dropped again to 79 homes in September. This may indicate buyers are a little tired of rising home prices and higher mortgage interest rates which have increased by a point since January.
As home prices have risen (up 15% – 20% over the last twelve months depending on who you choose to quote) the lower priced condo and townhome markets have gotten more popular. The number of townhome properties coming to market has been hovering around 10 homes each month. Also, the average length of time required to sell these condos and townhomes has been dropping from the beginning of the quarter at 71 days in July to 53 days in August and finally 48 days in September. This trend shows fairly strong buyer demand.
Nicer townhome prices now overlap the sale prices of low end single family homes. This puts buyers into the quandry of “Do I buy a nice townhome with a $$$ Home Owners Association Fee or do I buy a fixer upper single family home that needs a lot of work, but which might not have an HOA.” Tough choices.
Oxnardhas had a fairly constant number of properties for sale compared to Camarillo. There were 144 single family detached (SFD) homes on the market in July. Then came a big jump up to 164 homes in August which fell back almost exactly to where it had been before at 143 homes in September. The number of new listings coming to market each month has been relatively constant, ranging from 79 to 86 homes.
The number of properties which have sold each month has increased from 110 homes in July to 125 homes in September. So… where Camarillos’ market has diminished in the last 3 months, Oxnards’ market has been stronger with a big spike in August, returning close to July’s numbers in September.
Ventura is experiencing a steady upward trend in its’ housing inventory. The total inventory of SFD and Condos has grown from 133 homes in July to 140 homes in August and finally 150 homes in September. Most of that increase came from the Single Family Detached (SFD) inventory which rose from 104 homes in July to 113 homes in August and 127 homes in September.
There are a few signs of weakness however, in the increasing length of time it takes to sell a home. The average time to sell an SFD has risen from 54 days to 68 days while condos which used to sell in 36 days, now require an average 51 days to close.
The total number of homes which sold in July was 96 and this number dropped to 78 homes in August and 77 homes in September. So Ventura has more homes coming to market each month but the actual number of homes selling each month has dropped. If this trend were to continue, I would expect to see home prices begin to moderate or soften a bit from the huge monthly increases in home prices that we saw earlier this year.
Santa Paula and Fillmore have seen a very gradual increase in their home inventories (like Ventura). In Santa Paula 33 homes were available in July, 35 homes in August and 42 homes in September.
The number of SFD home sales rose from 11 homes sold in July, peaked in August with 18 homes sold, then dropped back to 14 homes sold in September. Fillmore home sales were 10 homes, 15 homes and back to 10 homes in September. Fillmore is often a smaller carbon copy to Santa Paula’s market. This quarter at least, their inventories followed Ventura’s trend, while the number of their home sales followed Oxnard’s trend.
Moorpark has seen market changes very similar to Oxnard with total home inventory increasing from 49 homes in July, spiking up to 66 homes in August and retracing a bit to 60 homes in September.
The number of home sales has dropped overall from 39 homes in July, with a spike in August to 46 homes and then falling back to 32 homes for September. Also, the time it takes to sell a SFD home has risen during these three months from 44 days in July, to 54 days in August and again to 78 days in September. Buyers here may be responding to the higher interest rates and higher home prices.
Simi Valley & Wood Ranch are still seeing an uptrend in the number of homes for sale. The SFD market has seen its’ inventory climb from 117 homes in July, to 142 homes in August and a slight consolidation back to 138 homes in September.
There were 135 home sales for July, a nice upward spike to 148 homes in August and then a big drop to 120 homes in September. Sound familiar? Also, the length of time it takes to sell a SFD home has basically doubled from Julys’ 37 days to 70 days in September.
Thousand Oaks and Newbury Park have seen their market inventory in Single Family Detached homes (SFD) shrink from 200 homes in July to 186 homes in August and on down to 163 homes in September. This is in stark contrast to the second quarter where the inventory grew from 118 homes in April to 178 homes in June.
Townhome and condo inventory has remained fairly stable at between 33 to 35 homes available each month this quarter.
It appears that the home inventory grew rapidly from Januarys’ 102 homes – peaked in July with 235 homes and is shrinking a bit for the early Fall. I think it is safe to say this is typical of most of the rest of Ventura County as well.
Actual home sales rose from 121 homes in June to140 homes in July. August saw sales spike back downward to 120 homes and bounce back up to 136 homes in September. This is a stronger sales market than most of the other towns in West Ventura County, confirmed with fairly consistent sale times of roughly 55 to 65 Days On Market (DOM).
Westlake Village & Agoura Hills is a slightly smaller market than TO and Newbury Park with a home inventory which has grown from 92 homes(vs 136 for TO/NP) at the beginning of the 2nd quarter to 153 homes (vs 197 for TO/NP) at the end of the 3rd quarter. That is a 62 home increase in inventory in 6 months – or roughly an increase of 10 homes per month. That’s a solid achievement.
Sales continued to increase through July with 54 homes selling, then 64 homes in August. September saw what I’m hoping is just a temporary spike down to 46 homes sold. DOM has risen from July’s 73 days to September’s 89 days for SFD homes. Overall I’d say that Westlake Village and Agoura Hills are fairly strong markets, even allowing for the September drop in sales.
Summary It appears that the major trend in our Ventura County markets is a gradual decrease in the size of our home inventory, with the number of home sales increasing through August. Camarillo’s weak market being one major exception and Westlake/Agoura Hills being a stronger market exception. September saw a decrease in the number of home sales in most local markets. This may be a reflection of weak buyer demand due to high home prices, higher mortgage interest rates or maybe just the natural slowing we often see when summer is over and families get ready to send kids to school again.
I’m not ready to get alarmed by last months weaker trends, but I do think what happens in the next several months will be crucial in determining what direction our market is actually moving. Just the way I see it.
Mark Thorngren
(805)443-3366 mark@movewest.com www.markthorngren.com BRE#01413932 Like me on facebook at www.facebook.com/markthorngrenrealtor
Wednesday, October 2, 2013
Beware of Taxation of Advertising Inserts
During the last legislative session in Maine, the legislature approved, and Governor Lepage signed, a bill to eliminate the exemption from the sales tax for publications. L.D. 1509, 126th Legs., Part P, (Me. 2013). This law went into effect yesterday. The law now requires the taxation of magazines and newspapers. The sleeping dog, however, is the taxation of advertising flyers and other free publications.
Taxation of free advertising materials has become a “hot button” issue in Maine. In an Informational Notice dated September 27, 2013, Maine Revenue Services stated that the costs of printing advertising flyers, including those inserted in newspapers, are now subject to the sales tax if those materials are distributed in Maine. In other words, the publisher will be required to pay a use tax, either to its printer or directly to the state, on the printing charges for advertising flyers.
This caught the Governor and members of the legislature by surprise. In a recent press release, the Governor announced that he, together with legislative leaders, will be introducing legislation in the next legislative session to exempt retroactively the printing costs of free publications and advertising flyers. Please note the next legislative session begins in January 2014. Such legislation may face a rough road ahead, given the State’s fiscal issues, so that whether the exemption is adopted, and its scope and effective date, are up in the air.
In the interim, advertisers should consider their options. Maine Revenue Services’ September 27 Notice does not mean that after October 1 advertisers must pay the sales tax on printing costs of advertising flyers included in newspapers and other advertisements distributed in Maine. Advertisers should consider the availability of other exemptions. For example, in its September 27 Notice, Maine Revenue Services notes that the sales tax will not apply if the advertisers purchase the flyers for resale. Thus, if the advertiser were selling the flyers to newspapers or others, it might be able to argue for exclusion by virtue of the sale for resale exemption. Another potential argument is, if an advertiser used an out-of-state printer, it might assert that it did not make a taxable use of the flyers. The point is that advertisers should carefully weigh their alternatives regarding advertising flyers and other advertising materials circulated in the State of Maine.
Taxation of free advertising materials has become a “hot button” issue in Maine. In an Informational Notice dated September 27, 2013, Maine Revenue Services stated that the costs of printing advertising flyers, including those inserted in newspapers, are now subject to the sales tax if those materials are distributed in Maine. In other words, the publisher will be required to pay a use tax, either to its printer or directly to the state, on the printing charges for advertising flyers.
This caught the Governor and members of the legislature by surprise. In a recent press release, the Governor announced that he, together with legislative leaders, will be introducing legislation in the next legislative session to exempt retroactively the printing costs of free publications and advertising flyers. Please note the next legislative session begins in January 2014. Such legislation may face a rough road ahead, given the State’s fiscal issues, so that whether the exemption is adopted, and its scope and effective date, are up in the air.
In the interim, advertisers should consider their options. Maine Revenue Services’ September 27 Notice does not mean that after October 1 advertisers must pay the sales tax on printing costs of advertising flyers included in newspapers and other advertisements distributed in Maine. Advertisers should consider the availability of other exemptions. For example, in its September 27 Notice, Maine Revenue Services notes that the sales tax will not apply if the advertisers purchase the flyers for resale. Thus, if the advertiser were selling the flyers to newspapers or others, it might be able to argue for exclusion by virtue of the sale for resale exemption. Another potential argument is, if an advertiser used an out-of-state printer, it might assert that it did not make a taxable use of the flyers. The point is that advertisers should carefully weigh their alternatives regarding advertising flyers and other advertising materials circulated in the State of Maine.
Montreal Real Estate Board says Buh-bye to Cdn Real Estate Association
The Greater Montreal Real Estate Board, Canada's second largest, has served notice that it will withdraw from the Canadian Real Estate Association at the end of 2013. Quebec members pay about $3.4 million in CREA dues annually.
The GMREB represents 10,000 or so brokers, roughly a tenth of all CREA's membership. The national organization represents boards across Canada. The two have been at odds for years, with Montreal complaining about CREA's weak defense of Quebeckers' interests, spending, dues increases and the services members receive in return.
The big item is CREA's unwillingness or inability to block "for sale by owner" (FSBO) properties from the realtor.ca system in Quebec. These listings are legal in other jurisdictions but not in Quebec, where only brokers licensed through the provincial licensing agency, the OACIQ, are allowed to market and sell properties on behalf of a third party. This makes Quebec different from the rest of Canada.
Quebec's 12 boards were worried enough about the possibility of FSBOs being listed on the realtor.ca that they launched their own property-search website, centris.ca. It has asked CREA to default to Centris rather than Realtor for all Quebec property searches. So far, no response.
In a letter to members, the GMREB included links to two Montreal area FSBO listings recently posted to realtor.ca through a Toronto listing service affiliated with the Toronto Real Estate Board. That back door move bypasses Quebec's licensing and professional oversight requirements.
You can see how there would be irritation and hurt feelings, right?
But FSBOs aren't the only irritant. Montreal is also reluctant to take part in a national data distribution system that would put information collected by GMREB members into the hands of cut-rate sales firms and FSBOs. Data like average selling prices, days on the market, etc is gold to real estate professionals and, presumably to those who would feast on our labour. We've paid to have it collated by our association. We aren't about to give it away to the Du Proprios of the world.
There are other issues, as well. CREA wants to create a national code of ethics for real estate professionals. GMREB opposes the idea because its primary role is to protect and promote its membership. Quebec brokers are bound by a code of ethics administered by the OACIQ. The OACIQ fields complaints from the public, investigates, adjudicates and punishes brokers who break the rules. Best of all, every broker pays dues to maintain the agency even though we get no benefit from it. Needless to say, GMREB has no interest in paying for the implementation of a second code of ethics.
Finally, GMREB has been asking questions about where the CREA dues end up. Remember, this is Quebec, where we know a thing or two about expense-account padding, lavish dinners, cocktail parties, exotic meeting locales etc etc. Quebec's federation of real estate boards complained about lavish spending and duplication of services. For its part. GMREB managed to claw back $1.5 million in CREA dues in the last two years and has used the money to promote centris.ca and for other advertising tailored to the Quebec market.
Talks have been ongoing, but now the time of talking seems to be over. CREA is having a special general meeting later this month in Vancouver. According to the Montreal board, despite promises to the contrary, none of Quebec's concerns are addresses on the meeting's agenda.
Unless something changes between now and then, Quebec will cut itself loose from CREA's mothership. Says GMREB president Patrick Juanèda:
The board reserves the right to change its mind, especially if CREA responds to its concerns at the upcoming general meeting. Stay tuned.
************************************************************
While we're on the topic of people being annoyed by the way in which their dues are spent, there's a petition going around that takes issue with the way the OACIQ is spending brokers' money.
The straw that broke the camel's back is a recently announced mandatory course for all real estate brokers on the importance of "collaboration". Collaboration is what happens when one broker calls another broker to see a property. If you show it, you are collaborating. If you ignore the call or multiple calls, you are not collaborating. Pretty simple. The OACIQ is requiring all license holders to take take this 2-hour on-line course at a cost of $150 each.
$150 each and they don't even have to rent a room, put on a pot of coffee or lay out a tray of danish. That's an easy $2.6 million for the licensing agency. That's on top of the $16.3 million it collected in annual dues from saps like me in 2012.
People see this training as little more than a cash grab. They are concerned that if the OACIQ gets away with this it will implement more and more "imporatant" mandatory training at extra cost to the dues payers. It's the Quebec way, right? Can't balance your budget? Raise fees! Implement surcharges! Create a new tax! Easy money, right? The English version of the petition has 450+ signatures. The French version, nearly 2,900.
Here's the petition.
The GMREB represents 10,000 or so brokers, roughly a tenth of all CREA's membership. The national organization represents boards across Canada. The two have been at odds for years, with Montreal complaining about CREA's weak defense of Quebeckers' interests, spending, dues increases and the services members receive in return.
The big item is CREA's unwillingness or inability to block "for sale by owner" (FSBO) properties from the realtor.ca system in Quebec. These listings are legal in other jurisdictions but not in Quebec, where only brokers licensed through the provincial licensing agency, the OACIQ, are allowed to market and sell properties on behalf of a third party. This makes Quebec different from the rest of Canada.
Quebec's 12 boards were worried enough about the possibility of FSBOs being listed on the realtor.ca that they launched their own property-search website, centris.ca. It has asked CREA to default to Centris rather than Realtor for all Quebec property searches. So far, no response.
In a letter to members, the GMREB included links to two Montreal area FSBO listings recently posted to realtor.ca through a Toronto listing service affiliated with the Toronto Real Estate Board. That back door move bypasses Quebec's licensing and professional oversight requirements.
You can see how there would be irritation and hurt feelings, right?
But FSBOs aren't the only irritant. Montreal is also reluctant to take part in a national data distribution system that would put information collected by GMREB members into the hands of cut-rate sales firms and FSBOs. Data like average selling prices, days on the market, etc is gold to real estate professionals and, presumably to those who would feast on our labour. We've paid to have it collated by our association. We aren't about to give it away to the Du Proprios of the world.
There are other issues, as well. CREA wants to create a national code of ethics for real estate professionals. GMREB opposes the idea because its primary role is to protect and promote its membership. Quebec brokers are bound by a code of ethics administered by the OACIQ. The OACIQ fields complaints from the public, investigates, adjudicates and punishes brokers who break the rules. Best of all, every broker pays dues to maintain the agency even though we get no benefit from it. Needless to say, GMREB has no interest in paying for the implementation of a second code of ethics.
Finally, GMREB has been asking questions about where the CREA dues end up. Remember, this is Quebec, where we know a thing or two about expense-account padding, lavish dinners, cocktail parties, exotic meeting locales etc etc. Quebec's federation of real estate boards complained about lavish spending and duplication of services. For its part. GMREB managed to claw back $1.5 million in CREA dues in the last two years and has used the money to promote centris.ca and for other advertising tailored to the Quebec market.
Talks have been ongoing, but now the time of talking seems to be over. CREA is having a special general meeting later this month in Vancouver. According to the Montreal board, despite promises to the contrary, none of Quebec's concerns are addresses on the meeting's agenda.
Unless something changes between now and then, Quebec will cut itself loose from CREA's mothership. Says GMREB president Patrick Juanèda:
Your Board of Directors has evaluated the situation carefully and considers that, at this time, the risks and disadvantages outweigh the benefits of our membership in CREA. It is important to note that the code of ethics and data distribution rules are already in place. If we stay in CREA, we must ensure that we implement the necessary structures and have all of our members comply with them.
The board reserves the right to change its mind, especially if CREA responds to its concerns at the upcoming general meeting. Stay tuned.
************************************************************
While we're on the topic of people being annoyed by the way in which their dues are spent, there's a petition going around that takes issue with the way the OACIQ is spending brokers' money.
The straw that broke the camel's back is a recently announced mandatory course for all real estate brokers on the importance of "collaboration". Collaboration is what happens when one broker calls another broker to see a property. If you show it, you are collaborating. If you ignore the call or multiple calls, you are not collaborating. Pretty simple. The OACIQ is requiring all license holders to take take this 2-hour on-line course at a cost of $150 each.
$150 each and they don't even have to rent a room, put on a pot of coffee or lay out a tray of danish. That's an easy $2.6 million for the licensing agency. That's on top of the $16.3 million it collected in annual dues from saps like me in 2012.
People see this training as little more than a cash grab. They are concerned that if the OACIQ gets away with this it will implement more and more "imporatant" mandatory training at extra cost to the dues payers. It's the Quebec way, right? Can't balance your budget? Raise fees! Implement surcharges! Create a new tax! Easy money, right? The English version of the petition has 450+ signatures. The French version, nearly 2,900.
Here's the petition.
Small Businesses Sometimes Learn Hard Lessons About Check Fraud
Dr. Luis Fabelo, a Miami Dentist, recently found out that he'd lost about $500,000 in a check fraud scheme perpetrated by an employee (now former employee). The employee, Elizabeth De Leon, allegedly stole patient checks made out to the dentist and then deposited the checks into her own account through Wells Fargo's ATM machines. The dentist discovered the losses when alerted by a patient whose payment was not posted. The dentist then checked the security cameras on premises and was able to uncover the wrongdoing. The employee had deleted account records while at the office or during social functions. After she left his employ, she did the same fraud at another office. De Leon is now facing charges for grand theft and fraud. Wells Fargo refused to return the funds to Dr. Fabelo.
But what about the losses of Dr. Fabelo? Dr. Leon has brought suit against Wells Fargo claiming it "has no system, policy, and/or procedure in place to verify the depositor/account holder, was entitled to cash the checks." Sure the theft of the checks appears to raise the issue of a conversion claim under UCC 3-420, but there is more to this. Under UCC 3-405, where an employee delegates responsibility to an employee and entrusts the employee with indorsing checks, if the employee converts the check for his own use, the bank is generally not liable. So, the message to employers is take care in hiring those entrusted office employees. The rule is not absolute, though, it continues on:
Here is the heart of Dr. Fabelo's argument against Wells Fargo, I suspect (unless the employee was not actually an entrusted employee). Does a bank exercise "ordinary care" when it allows ATM deposits of checks deposited into an account other than that of the payee (i.e. third party checks)? Alternatively, does a bank take the loss when it takes these items. This is a far less clear issue than the general rule of employer responsibility. In today's marketplace thieves have the ability to avoid discovery of check fraud through ATM, smart-phone and other remote deposit mechanisms where identity is not verified by banks. I suspect that Wells Fargo is not alone in permitting deposit of third party checks remotely. If banking practice includes this type of remote deposit of third party check, then Dr. Fabelo will have a tough case to make out.
The ability of a customers to do remote depositing surely is a convenience benefit, but also carries with it a potentially higher increase in fraud as there is convenience for the thieves as well. See, Mobile Check Boom Brings Risks. Many banks put daily and monthly limits on the higher risk deposits, though, as well as placing holds on account funds. In the case of Dr. Fabelo, the types of security procedures used by Wells Fargo will surely be at issue. With the rapid changes in banking pushing more customers into remote banking features, banks are well advised to continue to assess risk strategies to reduce the level of fraud in this area. UCC 3-405 makes clear that banks have a role to play in mitigating the risk of emerging banking practices to put in place the right safeguards.
As to small business owners, UCC 3-405 makes clear that they should continue to carefully screen employees to ward off this type of theft as well. Otherwise, the hard lesson of substantial loss may come as a hard one.
But what about the losses of Dr. Fabelo? Dr. Leon has brought suit against Wells Fargo claiming it "has no system, policy, and/or procedure in place to verify the depositor/account holder, was entitled to cash the checks." Sure the theft of the checks appears to raise the issue of a conversion claim under UCC 3-420, but there is more to this. Under UCC 3-405, where an employee delegates responsibility to an employee and entrusts the employee with indorsing checks, if the employee converts the check for his own use, the bank is generally not liable. So, the message to employers is take care in hiring those entrusted office employees. The rule is not absolute, though, it continues on:
If the person paying the instrument or taking it for value or for collection fails to exercise ordinary care in paying or taking the instrument and that failure substantially contributes to loss resulting from the fraud, the person bearing the loss may recover from the person failing to exercise ordinary care to the extent the failure to exercise ordinary care contributed to the loss
Here is the heart of Dr. Fabelo's argument against Wells Fargo, I suspect (unless the employee was not actually an entrusted employee). Does a bank exercise "ordinary care" when it allows ATM deposits of checks deposited into an account other than that of the payee (i.e. third party checks)? Alternatively, does a bank take the loss when it takes these items. This is a far less clear issue than the general rule of employer responsibility. In today's marketplace thieves have the ability to avoid discovery of check fraud through ATM, smart-phone and other remote deposit mechanisms where identity is not verified by banks. I suspect that Wells Fargo is not alone in permitting deposit of third party checks remotely. If banking practice includes this type of remote deposit of third party check, then Dr. Fabelo will have a tough case to make out.
The ability of a customers to do remote depositing surely is a convenience benefit, but also carries with it a potentially higher increase in fraud as there is convenience for the thieves as well. See, Mobile Check Boom Brings Risks. Many banks put daily and monthly limits on the higher risk deposits, though, as well as placing holds on account funds. In the case of Dr. Fabelo, the types of security procedures used by Wells Fargo will surely be at issue. With the rapid changes in banking pushing more customers into remote banking features, banks are well advised to continue to assess risk strategies to reduce the level of fraud in this area. UCC 3-405 makes clear that banks have a role to play in mitigating the risk of emerging banking practices to put in place the right safeguards.
As to small business owners, UCC 3-405 makes clear that they should continue to carefully screen employees to ward off this type of theft as well. Otherwise, the hard lesson of substantial loss may come as a hard one.
-JSM
Subscribe to:
Posts (Atom)