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Cypen & Cypen
NEWSLETTER
for
September 5, 2013

Stephen H. Cypen, Esq., Editor

1.   CALPERS ISSUES STATEMENT ON SAN BERNARDINO BANKRUPTCY RULING: California Public Employees’ Retirement System issued the following statement after a U.S. Bankruptcy Judge ruled that the City of San Bernardino is eligible for bankruptcy protection: 
 
          We are disappointed with the Judge’s ruling but CalPERS will continue to participate in the bankruptcy process in good faith. CalPERS will also continue to work with the City of San Bernardino so it can hopefully resolve its financial problems and also deliver promised benefits to their City employees and retirees. However, CalPERS must and will continue to aggressively pursue all past due contributions, resulting interest and penalties owed by the City. These payments are statutorily required and necessary to deliver on the pension benefits promised to San Bernardino employees as a form of deferred compensation. They have worked for and earned these benefits, and CalPERS will uphold its fiduciary duty to deliver a secure retirement to our San Bernardino members. CalPERS is considering its options for appeals.
 
It aint over ‘til it’s over. 
 
 2. TREASURY AND IRS ANNOUNCE THAT ALL LEGAL SAME-SEX MARRIAGES WILL BE RECOGNIZED FOR FEDERAL TAX PURPOSES; RULING PROVIDES CERTAINTY, BENEFITS AND PROTECTIONS UNDER FEDERAL TAX LAW FOR SAME-SEX MARRIED COUPLES:  On August 29, 2013 The U.S. Department of the Treasury and the Internal Revenue Service ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage.  The ruling implements federal tax aspects of the June 26, 2013 Supreme Court decision invalidating a key provision of the 1996 Defense of Marriage Act.  (See C & C Special Supplement Newsletter for June 28, 2013). Here are the issues raised in the ruling and the holdings: 
 

  • Whether, for Federal tax purposes, the terms “spouse,” “husband” and “wife,” include an individual married to a person of the same sex, if the individuals are lawfully married under state law, and, whether, for those same purposes, the term “marriage” includes such a marriage between individuals of the same sex.  

Holding: For Federal tax purposes, the terms “spouse,” “husband and wife,” “husband” and “wife” include an individual married to a person of the same sex if the individuals are lawfully married under state law, and the term “marriage” includes such a marriage between individuals of the same sex. 
 

  • Whether, for Federal tax purposes, the Internal Revenue Service recognizes a marriage of same-sex individuals validly entered into in a state whose laws authorize the marriage of two individuals of the same sex even if in the state which they are domiciled does not recognize the validity of same-sex marriages.

 
Holding: For Federal tax purposes, the Service adopts a general rule recognizing a marriage of same-sex individuals that was validly entered into in a state whose laws authorize the marriage of two individuals of the same sex even if the married couple is domiciled in a state that does not recognize the validity of same-sex marriages.  
 

  • Whether, for Federal tax purposes, the terms “spouse,” “husband and wife,” “husband” and “wife” include individuals (whether of the opposite sex or same sex) who have entered into a registered domestic partnership, civil union or other similar formal relationship recognized under state law that is not denominated as a marriage under the laws of that state, and whether, for those same purposes, the term “marriage” includes such relationships.

 
Holding: For Federal tax purposes, the terms “spouse,” “husband and wife,” “husband” and “wife” do not include individuals (whether of the opposite sex or the same sex) who have entered into a registered domestic partnership, civil union or other similar formal relationship recognized under state law that is not denominated as a marriage under the laws of that state, and the term “marriage” does not include such formal relationships.
 
The holdings of this ruling will be applied prospectively as of September 16, 2013.  (IR-2013-72 August 29, 2013).
 
 3. HHS ANNOUNCES FIRST GUIDANCE IMPLEMENTING SUPREME COURT’S DECISION ON THE DEFENSE OF MARRIAGE ACT:  The U.S.  Department of Health & Human Services issued a memo clarifying that all beneficiaries in private Medicare plans have access to equal coverage when it comes to care in a nursing home where their spouse lives. This guidance is the first issued by HHS in response to the recent Supreme Court ruling, which held section 3 of the Defense of Marriage Act unconstitutional (See C & C Newsletter Special Supplement for June 28, 2013). The announcement is the first of many steps that will be taken over the coming months to clarify effects of the Supreme Court’s decision, and to ensure that gay and lesbian married couples are treated equally under the law.  Under current law, Medicare beneficiaries enrolled in a Medicare Advantage plan are entitled to care in, among certain other skilled nursing facilities, the SNF where their spouse resides (assuming that they have met the conditions for SNF coverage in the first place, and the SNF has agreed to the payment amounts and other terms that apply to a plan network SNF).  Seniors with Medicare Advantage previously may have faced the choice of receiving coverage in a nursing home away from their same-sex spouse, or dis-enrolling from the Medicare Advantage plan, which would have meant paying more out-of-pocket for care in the same nursing home as their same-sex spouse.  The guidance clarifies that this guarantee of coverage applies equally to all married couples. The guidance specifically clarifies that this guarantee of coverage applies equally to couples who are in a legally recognized same-sex marriage, regardless of where they live.
 
4. ONCE-SECRET FISA COURT OPINION REVEALS UNLAWFUL SPYING:  An 85-page once-secret court ruling released publicly revealed that intelligence authorities unlawfully collected the e-mail communication of tens of thousands of Americans over several years, violating constitutionally protected privacy interests. The National Law Journal reports that the advocacy group Electronic Frontier Foundation sued to obtain a copy of the Foreign Intelligence Surveillance Court ruling, which was issued in October 2011. The Obama administration, having pledged recently to declassify and publish select opinions of the court and other National Security Agency information, posted online a redacted version.  The opinion, written by U.S. District Judge John Bates, presiding FISA court judge at the time, addresses the government's collection of "upstream" Internet transactions, data that are being transmitted, containing "multiple communications." The government contends it was unable then, as now, to segregate domestic e-mail communication of Americans from that of foreign targets of surveillance. The court was troubled that the government's revelation regarding NSA's acquisition of Internet transactions marks the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program. Judge Bates said the unlawful data collection implicated criminal law statutes -- federal law makes it a crime to conduct electronic surveillance under color of law except as authorized. The court, last year, in a separate ruling that was released to the public the same day, said that issues the unlawful collection raised have been resolved. Bates pointed to the NSA's "subsequent purge of that collection from its repositories" and the amended minimization procedures that were put into place.  EFF said that release of the opinion is just one step in advancing a public debate on the scope and legality of NSA's domestic surveillance programs.
 
5.  FPPTA TRUSTEES SCHOOL:  Florida Public Pension Trustees Association Trustees School will take place on September 29 – October 2, 2013 at the PGA National Resort & Spa at Palm Beach Gardens, Florida. To access information please log on to www.fppta.org.  All board of trustee members, and anyone interested in the administration and operation of the Chapters 112, 175 and 185 pension plans should attend trustee school.
 
6. FLORIDA DIVISION OF RETIREMENT ANNUAL POLICE OFFICERS’ AND FIREFIGHTERS’ PENSION TRUSTEES’ FALL CONFERENCE: The 43rd Annual Police Officers' and Firefighters' Pension Trustees Fall Conference will take place on October 22-24, 2013. You may access information and updates about the Fall Conference, including area maps, a copy of the program when completed, and links to register with at the Doubletree by Hilton Hotel Orlando at Seaworld. Please continue to check the FRS website for updates regarding the program at www.myflorida.com/frs/mpf. All police officer and firefighter plan participants, board of trustee members, plan sponsors, and anyone interested in the administration and operation of the Chapters 175 and 185 pension plans should take advantage of this unique, insightful and informative program.
 
7.  RETIRED HEALTH MESSAGE: It's hard to make a comeback when you have not been anywhere.
 
8.  PONDERISMS: Do illiterate people get the full effect of Alphabet Soup?
 
9. TODAY IN HISTORY: In 1966, Jerry Lewis’s 1st Muscular Dystrophy telethon raises $15,000.
 
10. KEEP THOSE CARDS AND LETTERS COMING: Several readers regularly supply us with suggestions or tips for newsletter items. Please feel free to send us or point us to matters you think would be of interest to our readers.  Subject to editorial discretion, we may print them.  Rest assured that we will not publish any names as referring sources. 
 
11. PLEASE SHARE OUR NEWSLETTER: Our newsletter readership is not limited to the number of people who choose to enter a free subscription.  Many pension board administrators provide hard copies in their meeting agenda. Other administrators forward the newsletter electronically to trustees. In any event, please tell those you feel may be interested that they can subscribe to their own free copy of the newsletter at http://www.cypen.com/subscribe.htm.

 

 

 

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Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.


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