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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Thursday, November 9, 2017

GOP Tax Plan Eliminates Alimony Deduction

The recently-proposed GOP tax plan eliminates an above-the-line deduction for alimony payors. This proposal would reverse 75-year-old legislation that protects spousal support payors, and divorcing families in general, with a significant tax break.

Characterizing the existing deduction as a "divorce subsidy", the House Ways and Means Committee proposal, at section 1309, states:
Alimony payments would not be deductible by the payor or includible in the income of the payee. The provision would be effective for any divorce decree or separation agreement executed after 2017 and to any modification after 2017 of any such instrument executed before such date if expressly provided for by such modification.
One of the Committee's stated considerations in proposing the elimination of the alimony tax deduction is that a divorcing couple receives better tax treatment than a married couple under the current tax code.

In their commentary on the House proposal, joint-committee legislative staffers had this to say about section 39:
Under the proposal, alimony and separate maintenance payments are not deductible by the payor spouse. The proposal repeals sections 61(a)(8) and 71 of the Code. These sections specify that alimony and separate maintenance payments are included in income. Thus, the intent of the proposal is to follow the rule of the Supreme Court’s holding in Gould v. Gould, in which the Court held that such payments are not income to the recipient. The treatment of child support is not changed.
Well, we here at the Law Blogger note that the SCOTUS case relied on by the legislative staffers was decided in 1917, and was subsequently wholly supplanted by IRC sections 61(a) and 71.

Today, the Senate releases its version of the tax proposal. Legislators in both chambers point-out that the specific tenets contained in the proposals, including section 39 of the House plan, are up for discussion.

To the extent that the provision would require the support payor to pay his obligation with after-tax dollars, it hurts divorcing families just as they are at their most financially vulnerable. A spousal support recipient will always have a lower marginal tax-rate then the support payor.

Although the support recipient currently pays taxes on the "income" received in the form of alimony, that payee pays significantly less in taxes due to the lower marginal rate. By closing this gap, the GAO estimates the United States would re-capture approximately $8.3 billion in additional tax revenue over the next decade; truly, the proverbial "drop-in-the-bucket".

This government savings would come at great cost and confusion to divorcees, say many divorce and tax professionals. The loss to the payor under the proposal would be much greater than the paltry gain to the payee. Some critics of the GOP's plan say this amounts to a morality-tax imposed on divorcees.

As a policy matter, elimination of the alimony deduction cuts against the progression and liberalization of divorce laws since the 1950s, seriously complicates spousal support negotiations, and would, in most cases, hurt both the support recipient and the payor. If the alimony deduction is eliminated, spousal support negotiations would become an exercise in "sharing-the-pain".

We will do what we do here at this blog; monitor the legal developments and report-back to our readers.

Post #610

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Tuesday, November 7, 2017

Roadside Saliva Testing for Marijuana is Here

People are going to abuse marijuana just as they do alcohol. Keeping drivers that are too stoned off the road, just like with drunk drivers, is the task at hand for law enforcement.

The Michigan State Police will soon begin administering roadside saliva tests for THC; the one-year pilot program rolls-out this month in 5 counties, unnamed in last year's enabling legislation. The five counties finally were revealed this week: Berrien, Delta, Kent, Washtenaw, and St. Clair.

This new law enforcement tool comes in an era of decriminalization and at the end of the prohibition of marijuana. For example, Canada will legalize marijuana for recreational use this summer for all 9 provinces. In the process, they too are rolling-out a roadside saliva test designed to catch stoned drivers.

Despite ever more progressive marijuana policies among the states, the drug nevertheless affects driving. Consequently, its use is addressed in the Motor Vehicle Code here in Michigan; criminal sanctions can result from stoned driving.

A challenge for legislators, prosecutors, judges and law enforcement is measuring the quantity of the drug in the driver's body. There is no consensus among experts regarding how much marijuana impairs driving skills.

Unlike alcohol, THC and other controlled substances are difficult to measure with the accuracy required to support a conviction. Today, officers are trained to watch for and observe signs of impaired driving.

A .08 blood alcohol level -which can be easily and reliably determined- is universally accepted as a threshold for the legal operation of a motor vehicle. There is no comparable standard when it comes to marijuana.

Because driving under the influence of marijuana is difficult to detect, Michigan is utilizing specially trained state troopers known as Drug Recognition Experts. These DREs use a 12-point evaluation in making the determination of a driver's impairment by drugs.

Part of the DRE training involves administration of the saliva test. The test is designed to detect marijuana, amphetamines, methamphetamines, benzodiazepines, cocaine and opiates.

Defense lawyers are calling foul, characterizing the saliva tests as "junk science". Not even preliminary breath tests for alcohol -also administered at the roadside- are admissible in court. Rather, the preliminary test results may establish probable cause to conduct a more accurate but more intrusive search: a blood test.

Refusing the saliva test is treated in the same manner as refusing a preliminary breath test when suspected of drunk driving: liability of a civil infraction and exposure to law enforcement being able to use the refusal as a component of the probable cause to arrest calculation.

Obviously, officers making routine traffic stops cannot haul everyone they suspect of driving under the influence of drugs into a nearby hospital for a blood draw. If the saliva test is positive for any of the above-referenced substances, then probable cause is established to conduct a blood screen; a seizure under the 4th Amendment.

Last July, the National Highway Traffic Safety Administration sent a detailed report to Congress calling into question whether the roadside saliva tests could even properly detect THC, let alone verify an amount per milliliter of blood deemed to be officially "stoned". The report concluded:
Many studies, using a variety of methods, have attempted to estimate the risk of driving after use of marijuana. While useful in identifying how marijuana affects the performance of driving tasks, experimental and observational studies do not lend themselves to predicting real-world crash risk.
Some studies suggest that a person's tolerance of marijuana has a significant impact on whether they can drive while stoned -i.e. the more you smoke, the better driver you become while high- while other studies point to the increased number of crashes where the driver had some level of THC in their bloodstream.

The current state of the law is that any amount of active THC in a driver's bloodstream is illegal. As we know, however, the Devil is in the details. False positives, based on residual amounts of THC in the bloodstream, are far too common with saliva swabs.

With the science of the available testing devices lagging behind, we will monitor this pilot program and report on its progress and relevant developments. A scientific breakthrough relative to the collection and processing of forensic data could come at any time.

Meanwhile, if you use marijuana, do us all a favor and don't drive stoned.

Post #609

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