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Thomas Brett Duffy

Thomas Duffy’s Answers

146 total


  • Health Insurance Benefits

    Thomas’s Answer

    You should be able to get as much detail as you wish online. There are small brochures to which you could give no credence. Then there is the Summary Plan Description (SPD), which are heavily legally regulated and are usually all most people need to see whether an bill is or is not covered. Then there is the actual contract which can be very difficult to comprehend.

    The best concept, especially with the contract, is to look for the sections that cover your particular health issues. Most insurers have online help programs which allow you put in your various health problems as well as the prescriptions you know you'll be using, etc. The program then tells you your ANTICIPATED premiums and out-of-pockets will be for a given plan.

    With regard to prescriptions, health insurers are required to have a booklet and online listing the drugs in their "formulary." That is simply a list of drugs they cover in their plan with the conditions on obtaining them (e.g. co-pays, etc.). Generally, for common conditions, they cover all of the typical drugs that doctors prescribe -- they need insureds paying premiums so they cannot exclude, say, diabetic meds from the formulary because they'd lose 10%-20% of their insureds, many of whom are otherwise healthy (i.e. the insurer can still make money on them, on average).

    The problem comes up with "specialty medications," such as TNF-Alphas for various autoimmune diseases (IBDs, RA, psoriasis, etc.).as well as certain expensive psychiatric meds. Generally, the patient can obtain some well proven medication but maybe not the exact (and usually new) med for their particular health issues.

    It's not simple but, if you think you've been wronged, it is pretty easy to appeal. But be careful you only usually have 30 days to appeal.

    Good luck.

  • Does attorney for estate have to share trust document along with will if will sends everything into trust?

    Thomas’s Answer

    No one has answered this question yet because it's too confusing. This sentence make no sense: "Her will leaves everything to dad (in nursing home) then to children, but also sends everything into an existing trust." Either the money went into the trust or the Will beneficiary (dad) -- not both. If the money did go into a trust, its terms will determine the distribution to its beneficiaries. They are usually identical to the Will beneficiaries but not always.

    It sounds like naming the children, and probably the trust, were only alternatives if your dad predeceased your mom. Your dad's Will or maybe the trust, if funded, will control the distribution of assets.

    The only thing I can say for certain is, that under Medicaid law, all the money, whether in trust or not, will go to: 1) paying your dad's nursing home bills until he has a very minimal amount of money left; 2) then he will go on Medicaid. This only applies to money assets. If there is a house or other real property involved, they MAY be put under Medicaid liens so, when sold, Medicaid gets its bills paid.

    If anything is "left over" then the beneficiaries of the trust or your dad's Will MAY get distributions.
    I suspect this trust may have been a (not very good) attempt NOT to pay your dad's medical bills or Medicaid liens, as the case may be. If so, it's not going to work because it's going to be void regarding medical bills for violating Medicaid Law.

    You really need to see a lawyer about this. There are a few exceptions to the generally Draconian Medicaid Rules and s/he may be able to help. The specialty would be Estate Planning if your dad is in direct possession of any assets (which seems not to be the case). If it involves your mom's Will or trust, it would be Probate. Either specialty (and many lawyers do both) can advise you on Medicaid rules, which seem to be the big issue in the case as far as I can see.

    Good luck but be aware, if your dad is not a millionaire and lives for another 5-10 years, there will be little, if anything, left for the children.

  • Can I sue my ex wifes attorney for breach of contract?

    Thomas’s Answer

    I generally concur Mr. Cowan's answer. You cannot "force" your spouse to file jointly if only because of the 5th Amendment Right not to incriminate one's self. Married people filing separate returns clearly implies that one spouse does not want to be a party to the other's tax evasion.

    However, I am sure you can agree to file a joint return with your spouse or soon to be ex-spouse, just the same as you can agree to waive your 5th Amendment Privilege. I am going to assume that neither of you has any intention of tax evasion. I will also assume that you are both w-2 wage earning employees and it's virtually impossible for you to cheat on your taxes. It seems obvious that your ex earns quite a bit less than you do or this issue would likely be moot.

    Here is the most important clause in your question: "would not be filed before January 1st to allow me to file taxes as married filing jointly for 2020." While I would prefer if it said "us," instead of "me," I think it is clear you were seeking a perfectly legal concession from your spouse, for which you gave, at least, the due consideration of not reducing the marital estate by hiring an attorney. Translation: if the quote above is reflected (or maybe even implied) in the agreement, it's enforceable.

    The easiest solution would be to amend the Judgment of Dissolution to reflect the terms of the agreement. Most states allow amendments to Judgments for one year. Check with a divorce attorney. There is also an issue that this attorney, knowingly or unknowingly, perpetrated a fraud on the Court in which the Judgment date is totally inconsistent with the terms of the Agreement. (This time to file is controlled by a Rule called "Laches," which will likely give you more than a year -- but do not rely on that possibility. I have consulted with divorce counsel in similar situations and they have successfully made these arguments.

    The IRS has to accept such state court judgments (as amended) -- this is similar to the situation in which the IRS had to accept the fact that two gay people were married under state law.

    If you cannot resolve this by amendment, technically, you may find it useful to obtain an assignment of your ex-wife's possible 3d Party Claim against the attorney for the malpractice causing her to be in breach of contract. Such an assignment should be under the condition that she had nothing to do with the malicious filing. Such an assignment could be against public policy -- I don't know, check with malpractice attorney.

    While you also technically have 4 years to file for breach of contract, the judgment was issued by a Court of Equity so Laches may control every aspect of the case. You understand the concept of standing. I am more interested in jurisdiction. It's clear you have to return to the Family Court to amend the Judgment. What's interesting is, in your motion to amend, ask for leave to file for malpractice in the Family Court (your wife will have to be a Defendant/3rd Party Claimant), This is to keep the case in the same court, without a jury, so it can "wash it's own dirty laundry." This malpractice position will, in my mind, greatly enhance your chances of being granted an amendment. No lawyer, especially including judges, wants to see another lawyer being sued for a stupid mistake (which I think is what happened here).

    Finally, it is possible you had a slight benefit from filing single. They remain in the 35% tax bracket until $518,400 when the rate switches to the max of 37%. The switch for MFS happens at $311,025. Still, you started losing other tax benefits long before reaching either number. Mainly, your suffered from the "bracket creep" being twice as fast as a single v. MFJ.

    Hopefully, your non-confrontational stance in the divorce will reap a rewards in terms of obtaining an amendment or other relief, rather than your "good deed" being punished as is currently the case.

    Good Luck!

  • When signing a trust, if the Grantor trust name is not your real name (ex. ABC Trust), how do you sign it? With your real name?

    Thomas’s Answer

    I concur with Mr. Callahan's answer above. As Grantor, you sign your own name. That will probably be the only time you'll ever sign anything involving the Grantor Trust. However, once that's done, as stated above the trust is a separate entity. Anytime you sign for an entity, you should sign, "ABC Trust (or Corp, LLC, etc.) by J. Smith, Grantor (or President, Managing Member, etc.)." The problem is, the person signing for a trust should be stated as, "by J. Smith, Trustee." (This is a slight oversimplification because the trustee is usually an entity too.)

    Most of my clients name their bank, broker or such as their trustee. They usually obtain a certain amount of money from the trust each month under the terms of the trust (sometimes by formula). If they want an extraordinary distribution (say to buy a new car), they have to call up the banker or broker and ask for a check. That check should be signed, "ABC Trust by J. Banker (or Broker), Trustee."

    The Grantor can serve a his or her own Trustee of a Grantor Trust, hold the trust's checks and disburse money when needed. All of these issues about signatures are not really that important because a Grantor Trust is merely a pure legal fiction. The IRS ignores this fiction and the earnings of the trust go on the Grantor's personal tax return. Mainly, they are a device (or fiction) to avoid probate and, if so, they are usually called "Living Trusts" and hold all the Grantor's worldly possessions (house, cars, you name it).

    If a Living Trust, this makes it critical that their be an several alternate trustees (in case somebody dies) if the Grantor is trustee. It also makes the listed beneficiaries (and proportions, if any) as important as those in a Will since it is a Will substitute. Some thought should be given to the procedure to follow if one of the beneficiaries dies. Otherwise, the Grantor's least favorite spouse-in-law could end up with a largess intended for the Grantor's deceased child.

    Whether a Living Trust or not, you can see how this can get complicated so make sure you consult with an attorney (not an "estate planner," accountant, banker or broker) about any trust you are thinking about forming.

    I hope this helps and good luck!

  • Late Tax Question?

    Thomas’s Answer

    Notices of Levy only occur when you have totally ignored all previous attempts to address your tax issues. I am concerned about your exact status with the IRS. If you have received a 90 day letter stating that IRS will assess you $X if you don't pay now or file petition in the Tax Court, you really must see a lawyer about that.

    However, if seems that filed your '16, '17 & 2020 tax returns self-assessing your tax liability and just did not pay some or all of the tax. That is not a Tax Court situation. Still, you have been ignoring their requests for payment. Go to https://www.irs.gov/payments/online-payment-agreement-application and fill out the forms to put yourself in a payment plan. Have all your up to date financial balances and monthly expenses ready to put on the forms. That SHOULD (see below) stop all collection activity.

    Generally, the IRS wants a plan to be as short as possible but 24-36 months is usually acceptable to them. If you owe a total of $8.5K, this would mean a payment of $355 (24 mos) to $236 (36 mos). This is all automated so the computer program has different "offers" it makes depending on your situation.

    Most of the time, the program wants you to make your first payment right then and there when you accept a payment plan so they know you are not playing games with them. So have $250 to $500 ready to be paid via a bank account or a credit card. (I think they take credit cards (CCs). I do not recommend putting tax debt on CCs because the IRS' interest rate is 4%-5% v. 20%+ for CCs but, if it avoids a levy, it's probably worth it, especially if it's only the first payment of $1000 or less.)

    If you are concerned about disclosing your banking information on the payment forms, don't worry about it -- I guarantee you the IRS already knows every bank account you have. DO NOT try to open a new bank account to fool them. First, it won't work for long, maybe a month or two. Second, it will really aggravate them. Third, and most importantly, changing bank accounts to avoid a levy IS TAX EVASION and you could go to prison for it. Right now, they just have a civil (non-criminal) case against you for money -- it's only slightly more serious than money owed on your CCs mainly due to the IRS' vast powers of collection.

    I take that you owe a total of $8.5 for all three years. You may take some solace in the fact that most of my clients owe around 5 to 10 times that much (or more). If you owe a total of $25.5K (i.e. $8.5 for each year), the computer MAY allow you 60 month to pay or about $425/mo. Keep in mind all the payment numbers above DO NOT take interest into account, which will keep accruing on the outstanding balance. The computer, obviously, does this automatically so the actual payment will be 10%-15% higher due to interest.

    The computer will usually ask you if you are going into a payment plan to avoid a levy or liens. Obviously, answer the question, "yes." It will probably ask for the various numbers on your Notice of Levy and it may ask you to upload the Notice so have it scanned and ready to upload. It does this so the IRS can attempt to stop collection activity. Still, you should probably still call the Collection Division and see if it's been cancelled. If your are told it is, it's probably true but neither the IRS' computers nor its employees are infallible so call backs may be warranted. You won't be "safe" until they cancel or suspend the Notice of Levy in three to six months.

    As to "write offs," if you have a sufficient excuse, they MAY waive the penalties (but not interest or the money actually owed). This can only be done with a real person by phone. Penalties typically amount to 40% to 50% of the total money owed so having them forgiven is really helpful. (For sure, you owe between 22.5% and 25% extra for paying late. Then there are other penalties on top of that.) Any penalties accrue interest just the same as the amount actually owed. Good luck!

  • Can I sue a tax company for not filing my taxes?

    Thomas’s Answer

    This is all too common a situation with "tax companies." I know it costs more but use an accountant or attorney. But, if they pulled a stunt like this, they'd be in big professional trouble. They would almost certainly give you your money back and pay the possible 5% penalty you may owe (see below).

    If the IRS owes you a refund, what has happened, while unprofessional, is of no consequence. Just get the return in and get your refund. (There are a few technical penalties for late filing but they are tempered by the IRS' policy not to criminally charge (or usually civilly fine) taxpayers who have "turned themselves in.")

    Now if you do owe money, you are liable for 5% per month, or part thereof, up to 25% total. This penalty is only assessed on what your owe. So if you paid in $20,000 but your total tax is $25,000, you'd only owe the penalty on the $5000 or $250 total. If you owe that 5%, you should be able to recover it from them as damages for negligence or malpractice. However, you have a duty to mitigate your damages. You have at least 25 days to get your taxes in with only a 5% penalty. If you incur a second 5% penalty on November 15th, that would be "on you."

    If they are unlicensed (they may be "enrolled agents" with the IRS, which is not a "license" under NJ law), you can sue them for treble damages plus attorney's fees under the Consumer Fraud Act (CFA) for the return of your $2500+ you paid them (possibly trebled to $7500+), possibly including the late filing and late paying combined penalty of 5%. The main point of the CFA is to get your money back under the threat of treble damages and to pay your attorney to end the matter. Only if the defendant is incredibly stubborn will you actually receive the $7500+. See a lawyer about this.

    You should certainly file with a note about the above malpractice but the computers automatically assess the 5%/month and it's nearly impossible for an individual IRS agent to vacate that penalty when they read your note (if they ever read it). There is also the factor that YOU chose this fly-by-night company to save a few bucks so the IRS isn't going to have a lot of sympathy that you are now paying a fine due to that choice. Still, if the fine is over $500, they will probably mitigate it so that the penalty is proportionate to your slight negligence in not using a truly professional firm.

    If they are IRS "enrolled agents," (EA) the IRS does bear some responsibility for issuing them that credential and you can push that fact for a reduced penalty. If they are EAs, file a complaint with the IRS' credentialing service. If they have no credentials, file a complaint with the NJ Consumer Protection Agency but they will probably tell you to file a CFA action with a private attorney as discussed above.

    Good luck and I hope you did not owe very much money.

  • Can my soon to be ex wife access my kids' phones or iPads that are my property?

    Thomas’s Answer

    I take it she is just physically accessing the kids' phones -- going through them while they are not using them screen by screen or message by message. If she is accessing them through iCloud, just change your password. Under those assumptions, she is not hacking. She also has a great case that she'd be derelict as a parent if DID NOT check the kids' phones to see if they are being messaged or emailed by pedopiles, are buying drugs, etc.

    The U.S. Supreme Court has decided cases like this on whether there is "a reasonable expectation of privacy." You certainly have such an expectation in your personal phone. But once you gave what is arguably your property to your (plural) kids, they have no expectation of privacy due to their minority and neither do you, whether they are minors or not. (If 18+, they may have an expectation of privacy tempered by the fact you own the phone and they leave is available to their mom for her inspection while they live in the same house that she does.)

    This should not be a big deal. If you have been texting your kids untrue messages about their mother, you deserve to have them disclosed. Likewise, if she has been defaming you, tell her to quit doing it or you'll subpoena the messages from YOUR phones.

    Talk to your lawyer about a strategy for this issue. However, I think you are probably making a mountain out of mole hill if you are just sending typical "dad" messages and emails to your children.

    Good luck.

  • What can we do?

    Thomas’s Answer

    I'd have to see the letter but most mailings sent to estates are ripoffs. They are hoping to take advantage of a grieving (usually older) person. You seem to be aware that your dad's estate may owe some money to Medicaid. If your dad was truly "in and out" of nursing homes -- staying less than 100 days at a time or within the same benefit year, medicare picked up the tab. His estate may owe some 20% co-pays, etc. but I doubt it's a lot of money.

    Even if it is Medicaid, go read the rules: your mom gets to live in the house until she passes or is also in long-term care. Medicaid doesn't put widows/ers out on the street. You and your siblings may be affected such that your share of the estate (whether your mom's or dad's) may be reduced by a Medicaid lien (and other debts).

    Finally, "estate recovery" usually means that the company has found some money or property they think the estate doesn't know about but they'll help get it for a 30% fee. They usually just look in the unclaimed property website for PA (or anywhere else he may have lived). There is an "all states" property website on the PA site, only about 5 states don't participate. You can easily do this yourself.

    I suspect that the "lost" asset is YOUR MOM'S HOUSE. They look for property still in the decedent's name. With a house, they wait 6-12 months so it looks like maybe the estate doesn't know about it. (You did not say when your dad died.) If your dad had a will, I trust he left the house (and everything else) to your mom. If he did not have a will, your mom owns the house 100% under the PA laws for intestate estates (but subject to any liens).

    You should change the owner to your mom. Any lawyer can do it. You'll a Certificate from the State regarding who is executor (or administrator), your dad's death certificate, his will (if any) and maybe their marriage certificate. A thorough lawyer will attach all those items to the new deed so there are no questions 20 year from now that your mom owns it.

    As I mentioned above, the only heirs who may "lose out" on property or money from the estate will be you and your siblings (or nieces or nephews if a sibling is dead). Your mom ought to be fine, even if there is a large Medicaid lien on the house (which I doubt).

    If you get a collection or lien notice from Medicaid, act on it immediately. Most Medicaid liens can be settled for 25 to 50 cents on the dollar if the family pays now. They have little patience for waiting around for someone to pass. They want to close lien cases in the present so the official involved gets "credit" for a recovery and the case isn't on their "books" for years.

    Sorry about your dad but make sure his wishes are followed by going to see a lawyer.

  • Am i be liable for the lost of investments that we are agreed on. Im a US citizen and they are Canadians?

    Thomas’s Answer

    I agree with everything stated by the two counsel above. I add that you may have pulled off the somewhat incredible feat of violating both the 1933 Registration Act (for initial sales, unusually by underwriters and their agents) & the 1934 Exchange (or Trading) Act (for fraud that occurs after registration in the exchange (or trading) of securities). Regarding the former you mainly need to refer to Section 11 and, for the latter, to Section 12(g). Taking a look at Regulation 10b-5 of the '34 Act (17 CFR Section 240.10b-5) is probably a good idea too.

    If, after reading these statutes and rules (and further researching them and the relevant case law on the internet), you don't get a chill down your spine, you are probably clinically dead. Try to find a lawyer who understands these statutes, especially from a defense standpoint. Such lawyers usually charge between $500-$750/hour, if you're lucky. I would recommend settling this case before your investor reads the above sections and finds out that he has a really good case.

    The investor still may lose his case but "winning" will probably cost you between $100K-$250K. BTW, if you lose, you'll have to pay his or her attorney's fees, etc. in addition to damages (generally what he lost). Generally, I have found most investors will realize they have been stupid and will settle for 50% of their losses. If the person does not want his business associates finding out what a fool s/he has been, s/he just want "to save face" and may l settle for 25% -- maybe less. You do not mention amounts of money involved but such a settlement will usually be much less than the attorney's fees you'd pay "to win."

    What Mr. Devereux says above about risk is true. And the disclosure of risk WITH THE PROPER PAPERWORK, forms a formidable defense. You don't seem to have such '33 or '34 Act paperwork. Under the above Sections 11 & 12, the mental abilities, knowledge of risk, etc. do not matter. You could have a Ph.D. in economics or finance and still recover your loses.

    Get some advice from a lawyer "in the background," about settling this case. Most investors are willing to settle for $X/month for Y months. If you have even some of the required paperwork, you may be able to force the plaintiff into securities arbitration, which is generally more merciful than the courts (e.g. they rarely award attorney's fees). (The key word being "securities:" if you have any paperwork, it seems it doesn't comply with the Securities Laws so your offer, sale or exchange is just Common Law fraud (research on internet) and not securities fraud.) From what you say, it seems you'd be "stuck" with a court case.

    Good luck -- from what you have stated about the situation, you are going to need it.

  • Should I add $600 PUA to my income in form I912?

    Thomas’s Answer

    I am sure Ms. Barlow's answer above is correct. I am a tax attorney and I am used to clients having to fill out a form that really has more questions than answers. The IRS, attorneys, economists and accountants argue about the definition of income all the time. Don't panic. Perhaps one issue that is confusing you is that NJ unemployment benefits are not taxable by the state. They are taxable by the IRS at the Federal Level.

    This ICE question is not like an IRS definition of income where there are many, many exceptions. They want EVERYTHING to tell what your resources are. The interesting question: is the $1200/person emergency payment income on ICE's Form I912? You are on strong ground not including it in ICE I912 income because Congress made it non-income and non-taxable. (Technically, it's a refund on past taxes.)

    However, the interviewers will probably be trained to ask about the $1200 refund. What they do after that with the information: who knows? As above, if they don't ask, you have Congress on your side that the $1200 isn't income if there is an "audit."

    Finally, I'd like to emphasize what Ms. Barlow said about all these income problems being bad for your application for citizenship. They are not going to admit people who will become wards of the state. The sole exception may be if you are seeking asylum from severe danger if you go home. RIght now, I assume Trump will not allow any asylum (unless it's his Russian buddies who have angered Putin and may "disappear.") This will change if (hopefully, when) Biden becomes President but it would not be immediate.

    Thank you for getting me educated on immigration. Mainly, that the ICE fees themselves are so expensive. I thought people were talking about legal fees -- which I am sure are more than the ICE fees -- but still are formidable.

    Good luck -- i think you will need it at least until January 20, 2021.