Illegal Drugs That Trigger Mandatory Minimum Sentences in Pennsylvania

July 15, 2014 by

Illicit drugs and paraphernalia

A person does not need to be convicted of having a large quantity of drugs to be subject to the mandatory minimum nor does the person need to actually possess the illegal drugs on their person. All drugs are not treated equally and here is a list of illegal drugs along with the weight required to trigger mandatory minimum sentences.

Marijuana

  • 2 lbs. to < 10 lbs. or 10 to < 21 live plants - 1st conviction is 1 year, subsequent conviction is 2 years.
  • 10 lbs. to < 50 lbs. or 21 to 51 live plants - 1st conviction is 3 years, subsequent conviction is 4 years.
  • 50 lbs. or more or 51 live plants or more – 1st conviction is 5 years subsequent conviction is 5 years.

Heroin

  • 1 gram to < 5 grams - 1st conviction is 2 years, subsequent conviction is 3 years
  • 5 grams to < 50 grams - 1st conviction is 3 years, subsequent conviction is 5 years
  • 50 grams or more – 1st conviction is 5 years, subsequent conviction is 7 years

Cocaine

  • 2 grams to < 10 grams - 1st conviction is 1 years, subsequent conviction is 3 years
  • 10 grams < 100 grams - 1st conviction is 3 years, subsequent conviction is 5 years
  • 100 grams or more – 1st conviction is 4 years, subsequent conviction is 7 years

Methamphetamine

  • 5 grams to < 10 grams - 1st conviction is 3 years, subsequent conviction is 5 years
  • 10 grams to < 100 grams - 1st conviction is 4 years, subsequent conviction is 7 years
  • 100 grams or more – 1st conviction is 5 years, subsequent conviction is 8 years

Amphetamine such as ecstasy

  • 5 grams or more – 1st conviction is 2.5 years, subsequent conviction is 5 years

Methaqualone

  • 50 tables to < 200 tablets or 25 grams to < 100 grams - 1st conviction is 1 year, subsequent conviction is 3 years.
  • 200 tablets or more or 100 grams or more – 1st conviction is 2.5 years, subsequent conviction is 5 years.

School Zone

  • Use, possession, or delivery of drug paraphernalia near a school by non-student (unless it relates to less than 0.5 oz. of marijuana) – 1st conviction is 1 year in addition to any imprisonment for the underlying drug crime.

If you are arrested and convicted of possessing any of the drugs listed here you may still avoid the mandatory minimum as long as the prosecution does not charge you or prove you intended to distribute the drug. Then you may qualify for an intervention program such as Veterans Court or home confinement or through the Accelerated Rehabilitative Disposition Program depending on if it is your first offense and other factors.

If you are arrested for possession or on any drug related charge, please contact Gregory J. Spadea online or at 610-521-0604, of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Filed Under: Criminal Law Tagged With: , ,

Your IRS Taxpayer Bill of Rights

July 11, 2014 by
Stop, pay your taxes!

Stop, pay your taxes!

The Internal Revenue Service announced on June 10, 2014, the adoption of a Taxpayer Bill of Rights that will become a cornerstone document to provide the nation’s taxpayers with a better understanding of their rights. The Taxpayer Bill of Rights takes the multiple existing rights embedded in the tax code and groups them into 10 key categories, making them more visible and easier for taxpayers to understand. The rights will be sent to millions of taxpayers this year when they receive IRS notices on issues ranging from audits to collection. The rights will also be publicly visible in all IRS facilities as well as online at IRS.gov.

The IRS released the Taxpayer Bill of Rights following extensive discussions with the Taxpayer Advocate Service, an independent office inside the IRS that represents the interests of U.S. taxpayers. I have given my opinion after each provision of the Taxpayer Bill of Rights on how I feel the IRS is doing with respect to each provision.

The Taxpayer Bill Of Rights are as follows:

  1. The Right to Be Informed. The IRS tries really hard to keep taxpayers informed but sometimes stops communicating for various reasons. Therefore, it is very important for you to follow up if you do not hear back from the IRS after 90 days of responding to a notice.
  2. The Right to Quality Service. The IRS is not delivering quality customer service. Whenever I call the IRS on behalf of a client, I am on hold for 30 to 60 minutes due to budget constraints and poor management. The IRS funding and employee headcount has decreased significantly since 2010, while its workload has increased due to health care reform and foreign account reporting rules.
  3. The Right to Pay No More than the Correct Amount of Tax. The IRS does a good job with this right and gives refunds when taxpayers file amended returns as well as billing taxpayers who fail to pay the correct amount of tax.
  4. The Right to Challenge the IRS’s Position and Be Heard. and
  5. The Right to Appeal an IRS Decision in an Independent Forum. Both these rights can be read together. The IRS does a good job giving taxpayers several ways to challenge or appeal its position either through the Taxpayer Advocate service, Appeals including fast track mediation, US Tax Court and the Court for Federal Claims.
  6. The Right to Finality. The IRS does not always provide a written report at the conclusion of a correspondence audit. Therefore, I always request a written report or statement from the IRS at the conclusion of an audit or when payments are applied from different years.
  7. The Right to Privacy. The IRS does a good job of protecting taxpayer privacy.
  8. The Right to Confidentiality. The IRS does a good job keeping your information confidential although it does share information with other federal agencies and state governments.
  9. The Right to Retain Representation. This is your most important right as a taxpayer. I personally know several clients that were not represented at the audit stage and paid more tax than clients I have represented at the audit stage with the same issues. I would never recommend a client go to an IRS audit by themselves.
  10. The Right to a Fair and Just Tax System. I think this right is the responsibility of Congress since they pass all the tax laws which are not always fair.

If you receive an IRS Notice or have any questions about your taxpayer rights feel free to contact Gregory J. Spadea online or at 610-521-0604. Gregory J. Spadea is a tax attorney, former IRS Agent and founding member of the Law Offices of Spadea & Associates, LLC located in Ridley Park, Pennsylvania.

Filed Under: Tax Law Tagged With: , , , , , , ,

Gifting as an Estate Planning Tool

June 20, 2014 by

Person being handed a house

The annual Exclusion for 2014 is $14,000 and is indexed for inflation so it will increase in the future. The person making the gift is the donor and the recipient of the gift is known as the donee. The donee never pays income tax on any gifts received because the Internal Revenue Code Section 102 specifically excludes gifts from income. If you have a large estate and want to use gifting to reduce your estate or inheritance tax you may want to consider one or all of the following strategies:

  • You can gift up to $14,000 in 2014 to any individual or you can make a joint gift with your spouse of $28,000 per year per person without affecting your $5.34 million estate tax exemption or unified credit. Keep in mind if you decide to gift a larger amount than the annual exclusion you can file a form 709 gift tax return and use up some of your $5.34 Million estate exemption.
  • You can also pay a donee’s tuition directly to the school which would not count toward the $14,000 annual exclusion.
  • If you pay a donee’s medical bills directly to the hospital or health care provider which also would not count toward the $14,000 annual exclusion.
  • You can also donate to a donee’s 529 College Savings Plan and give $70,000 individually or $140,000 with your spouse to make a joint gift to reduce your estate. However, if you give the maximum it wipes out your annual exclusion for that specific donee for the next 5 years. You can also change the donee in the future if that donee decides not to attend college. If the donee does attend college the amount withdrawn from the 529 plan to pay for tuition, books and fees are free of income tax.
  • If you have your own corporation or limited liability company (LLC) and you have a child or relative who works in the business, you can gift non-voting shares of the corporation or non- voting units of the LLC to that person over time but maintain control since you own all the voting shares.

    • If you have any questions about any of the gifting strategies listed above, feel free to contact Gregory J. Spadea at 610-521-0604. Gregory is the managing member of Spadea & Associates, LLC located in Ridley Park, Pennsylvania.

Filed Under: Estate Planning Tagged With: , , , , ,

What Should I Do if I Receive an IRS CP2000 Notice Stating I have Unreported Income

June 18, 2014 by

Sign on IRS Building in Washington, DC, United States

After you file your tax return the Internal Revenue Service (IRS) will match your return information with third parties who issued you W-2’s or 1099’s. If a discrepancy occurs the IRS will issue you a CP2000 notice assessing you additional tax on any unreported income. I always tell my tax clients to email or fax me any IRS correspondence they receive immediately, because the IRS typically gives you 30 days to respond.

However, if you ignore the notice, you receive a 90 day letter to petition the tax court. I always recommend petitioning that tax court to preserve your appeal rights. However in the event you fail to petition the tax court within the 90 days, you can still apply for audit reconsideration.

The first thing I do when a client calls me is to review the CP2000 notice and make sure it is accurate because the IRS sends lots of inaccurate notices to taxpayers. In addition I verify that is actually from the IRS and not from an identity thief. I typically will file an amended return if my client has additional expenses relating to the unreported income or has basis in securities sold that generated the CP2000 in the first place. If the IRS is disallowing a deduction I will send in the documentation to substantiate it. I always try to get the accuracy related penalty abated and am successful most of the time, especially if only one year is involved.

If you receive a notice from the IRS under-reporter unit do not panic. Just contact Gregory J. Spadea at 610-521-0604 from Spadea & Associates, LLC in Ridley Park.

Filed Under: Tax Law Tagged With: , , , , , , ,

Admissibility of Hearsay Evidence at a Pennsylvania Preliminary Hearing

June 11, 2014 by

Preliminary Hearing

Hearsay is an out of court statement offered for the truth of a matter asserted by the party attempting to introduce it into evidence. Generally, hearsay is not admissible at trial because it is considered unreliable given that the speaker was not under oath and not subject to the opposing party’s cross examination. While there are a number of exceptions to the Hearsay Rule, the purpose of this blog is to explain the admissibility of hearsay at a preliminary hearing.

At a preliminary hearing a magistrate judge determines if a crime was committed and if the accused was connected to the crime. The evidentiary threshold at a preliminary hearing is the preponderance of evidence standard which is far below the criminal trial standard of proof beyond a reasonable doubt. However, the preponderance of the evidence standard means that more than likely the defendant was connected to the crime. Procedurally, the preliminary hearing is the first screening of a crime and its function is not to try the defendant which is why it does not require the same high degree of proof or quality of evidence that is required at trial.

The prosecution and defense often use experts in presenting their case but those experts are usually not an issue during a preliminary hearing because the standard is simply if the accused is connected to the crime. DUI cases have caused significant controversy given that the “connection” to the crime is often established through the expert and not just the expert report. The expert report provides information of the accused Blood Alcohol Level (BAC) and the scientific method used to determine it. Defense attorneys have argued that a DUI prosecution requires the testimony of the expert as well as the introduction of the expert report, and without the expert testimony the expert report is inadmissible hearsay even with the lower evidentiary standard at the preliminary hearing. The defense argument is that the connection is the expert explaining the scientific method in the report which indicates intoxication which is the foundation for the charged offense. These arguments are usually made when the prosecution cannot present any police or civilian witness testimony of DUI impairment.

Despite these defense arguments there are several Pennsylvania Superior Court decisions that firmly hold that hearsay evidence is admissible for the purposes of a preliminary hearing. However, the testimony provided at the preliminary hearing form the basis of most pre-trial motions as well witness impeachment and assessing the credibility of testimony at trial. Although few cases are dismissed at the preliminary hearing stage, a strong defense argument often demonstrates the weaknesses in a case. Since the burden of proof at trial is beyond a reasonable doubt, if defense counsel can show the prosecutor the weaknesses in the prosecution’s case that may substantially reduce or eliminate the number and severity of the criminal charges against a defendant. If you need representation at a preliminary hearing please contact Gregory J. Spadea online or call our office at 610-521-0604 of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Filed Under: Criminal Law, General Tagged With: , ,

Understanding Tenancy And Different Ways to Own Property

May 2, 2014 by

A paper cutout of a house

When two or more individuals own property whether it’s a home, or a piece of land, the relationship between the owners is known as “tenancy.” There are three common ways that a tenancy can be structured, and how it is done will determine such important considerations as whether an interest in the property will pass freely or by operation of law at an owner’s death and whether creditors can claim the property.

Tenancy comes in three common forms: tenancy in common, joint tenancy and tenancy by the entirety. Each has advantages and disadvantages so it is very important that the deed is properly drafted to accomplish its intended purpose. Otherwise, if the deed is not clear the state default rules will determine which form of tenancy applies and in Pennsylvania the default rule is tenancy in common.

Tenancy in common allows an owner the greatest flexibility to transfer the property. Each co-tenant in a tenancy in common has an interest in the property and is free to transfer this interest during life or through a will. The co-tenants can have different ownership interests; for example, three owners could own 3 percent, 27 percent and 70 percent of the property, respectively, as tenants in common. Each tenant can sever his relationship with the other tenants by conveying his interest to another party. This third party then becomes a tenant in common with the other co-tenants.

Joint tenants, on the other hand, must have equal ownership interests in the property. So, three owners would each have a one-third interest in the property. If one of the joint tenants dies, his interest immediately ceases to exist and the remaining joint tenants own the entire property. The advantage to joint tenancy is that it avoids having an owner’s interest probated upon his death since his interest passes by operation of law. This is why jointly owned property is considered non-probate property.

Another advantage is if a joint tenant needs to apply for Medicaid in Pennsylvania the State will not put a Medicaid lien on the property if it is a primary residence of both joint tenants. A disadvantage to both joint tenancy and tenancy in common, however, is that creditors can attach the tenant’s property to satisfy a debt. For example, if a co-tenant defaults on his debts, his creditors can sue in a “partition proceeding” to have the property interests divided and the property sold, even over the other owners’ objections.

A third form of tenancy is tenancy by the entirety which avoids this problem, but it is available only to married or, where applicable, civilly united couples. Tenancy by the entirety is based on the societal value of protecting the family. One tenant cannot convey his interest on his own, unlike with the other tenancies. Upon the death of one spouse, his interest automatically passes to the other spouse by operation of law, as with joint tenancy, and the creditors of one spouse cannot attach the property or force its sale to recover debts unless both spouses consent.

Creditors may place a lien on property held in tenancy by the entirety, but if the debtor spouse dies before the other spouse, the other spouse will take ownership of the property free and clear of the debt. This is why both husband and wife are required to sign the mortgage on their property for the mortgage to be valid.

If you have any questions about tenancy or need a deed updated or prepared feel free to contact Gregory J. Spadea at 610-521-0604 from Spadea & Associates, LLC in Ridley Park Pennsylvania.

Filed Under: Estate Planning, Real Estate Tagged With: , ,

What Business Expenses Are Deductible?

April 14, 2014 by

If you are a self-employed sole proprietor or operate an LLC or S-corporation any expense that your business incurs that is ordinary and necessary is deductible under Section 162 of the Internal Revenue Code. Therefore, please list the total spent on the expense categories listed below:

Accounting, legal and professional fees;

Advertising;

Car expense need total miles driven, business miles plus parking and tolls including business log with date, miles driven, business purpose and destination or
total miles driven, actual fuel invoices, auto insurance, repairs and total miles driven and business miles plus parking & tolls;

Fixed Assets – If you bought a vehicle, computer, equipment, office furniture or placed it in service during the tax year, even if you already owned it, bring in the purchase invoice so we can expense it under IRC Sec. 179;

W-3 – Salaries that your company paid to others. List officer and shareholder salary separately;

Employer share of employment taxes like FICA and FUTA;

Commissions or fees paid to other contractors, Get them to fill in W-9 if not incorporated so we can issue them a 1099;

If you already issued them a 1099, bring in the 1096 – showing total independent contractors paid.

Professional Liability Insurance, Workmans Compensation Insurance and Health insurance;

Office Supplies;

Materials or Purchase of inventory for resale;

Travel, Hotel, Airfare and Car Rental;

Meals (need date, place, person entertained and business purpose) Only need receipt if you pay more than $75.00 and have a day timer, If you do not have a day timer or digital calendar (such as Outlook or Google Calendar) then you need a receipt for everything;

Telephone include local, long distance, fax, land lines and mobile;

DSL, cable and internet charges;

Postage;

Continuing education and business seminars and conferences;

Interest expense paid on business loans and provide year end balances;

Rent for office space or equipment;

Utilities like electricity, fuel oil, water or gas.

Prior year PA franchise (Capital Stock) tax from Page 2 of the PA RCT-101;

Prior Year Local Income Tax paid;

Total state sales tax paid if you included it in gross sales receipts.

Remember to never pay any personal expenses from your business bank account but instead transfer them to your personal account. Feel free to contact Gregory J. Spadea of Spadea & Associates, LLC at 610-521-0604, if you have any questions or need your tax returns prepared.

Filed Under: Business Law, Tax Law Tagged With: , , , , , , ,

Your Right to Counsel at a Pennsylvania Grand Jury Hearing

March 18, 2014 by

Grand Jury Room Door
Pennsylvania law provides for two types of grand jury: a multicounty investigating grand jury with statewide jurisdiction, convened on the application of the Attorney General, and a county investigating grand jury, generally convened upon the application of a county district attorney and limited in jurisdiction to the county in which it sits.  The word “grand” distinguishes the jury from a “petit” jury of 12 who sit at trial to decide a defendant’s guilt or innocence.

In Pennsylvania there are investigating grand juries composed of 23 citizens who, after hearing testimony from witnesses and reviewing all the evidence, determine if sufficient evidence exists to find that a crime was committed.  Investigating grand juries do not have the power to indict or formally charge a person with a crime.  If 12 or more of the 23 grand jurors agree that sufficient evidence exists, it issues a written document known as a presentment.  A presentment summarizes the evidence and recommends that the prosecutor file charges against the person who is the target or subject of the grand jury’s investigation.  While a prosecutor is not required to act on a grand jury’s recommendation they do in most cases.  The grand jury’s presentment often serves as the prosecutor’s affidavit of probable cause which Pennsylvania requires in order to file criminal charges.

The work of a state grand jury is secret and a defendant along with his defense counsel only becomes aware of its findings upon an indictment.  Once indicted or charged, the defendant and his attorney only have 60 days to prepare a case for trial unless a Court grants a motion for a continuance.  Grand juries are not permitted in all cases in Pennsylvania and in order to utilize this system in place of a preliminary hearing, a prosecutor must formally represent to the Court that the grand jury is needed because of the threat of witness intimidation.

Witnesses testifying before a Pennsylvania grand jury are permitted to consult with counsel at any time following a question.  While defense counsel does not have an absolute right to be in grand jury hearing room, State judges will typically allow it because answers to questions will frequently create a self-incrimination issue under the Fifth Amendment, along with a right to counsel issue under the Sixth Amendment.  If a prosecutor believes that a subpoenaed witness is likely to make a legitimate claim that his testimony will tend to incriminate himself, the prosecutor may apply to the supervising judge of the grand jury for an order of immunity. Such an order gives the witness protection from having his testimony before the grand jury used against himself in a later court proceeding.  If you receive a subpoena for a Pennsylvania grand jury, I do not recommend ever appearing without an attorney because any statement you make could later be used against you at a trial unless you are granted immunity.

If you receive a subpoena to appear before a grand jury or are charged with a crime you should contact Gregory J. Spadea at 610-521-0604 of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Filed Under: Criminal Law Tagged With: , ,

Blood Evidence and the 2 Hour Rule in DUI Cases

March 11, 2014 by

Whiskey with car keys and handcuffs concept for drinking and driving

A blood sample is often a key piece of evidence in a DUI case. While you can refuse to supply a blood sample after an arrest, you risk a one year license suspension simply based on your refusal. The license suspension is a civil sanction carried out by the Pennsylvania Department of Transportation (PENDOT) and therefore outside the scope of a criminal prosecution. Therefore, the Pennsylvania District Attorney could withdraw charges against you and still suspend your license simply because you refused to submit to a blood test. Therefore, I never recommend refusing a blood test under any circumstance since it is better to have your attorney dispute the admissibility of the blood test with pretrial motions and arguments at trial. This article, however, focuses on the use of blood after a certain period of time.

The Pennsylvania DUI statute section 3802(a) (1) does permit the Court to convict someone based on general impairment without the presentation of blood evidence but if the prosecution is pursuing a case under general impairment it forces the prosecution to rely on the testimony of a law enforcement officer and his subjective observations at the time of the alleged incident. Subjective observations, unlike objective blood evidence, are open to interpretation since there are several reasons to explain the unusual movements of an automobile or a person’s demeanor following a traffic stop on a suspicion of DUI.

The presentation of blood evidence at a DUI trial requires the prosecution to present testimony regarding the analysis of whole Blood Alcohol Content (BAC). It is important to understand that to calculate whole BAC, the prosecution must present evidence which mathematically converts blood serum to whole blood BAC utilizing a predetermined conversion factor. In other words, the officer must get your blood drawn and have your BAC tested within two hours after you last drove. If the arresting officer does not obtain your BAC within two hours, the prosecution must show your BAC using a Breathalyzer or the presence of another prohibited substance outside the two hour limit. Next, the prosecution has to show good cause why a blood test could not be obtained within two hours. Finally, it has to prove that you did not ingest any alcohol or drugs between the time of arrest and the time the sample was obtained.

This makes the case much harder for the prosecution but even if the judge allows the prosecutor to go forward, you must fight the good cause showing why the officers could not take your blood test within two hours. If the prosecution shows that the delay was your fault, the judge will rule against you.

It is important to remember, however, that in many DUI cases a person’s BAC level is just above the percentage cutoff and so a successful defense argument could lead to a full acquittal or, in the alternative, a conviction for a lesser offense under the statute allowing a person to avoid jail time and a license suspension in some cases. If you are charged with a DUI contact Gregory J. Spadea at 610-521-0604 of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Filed Under: Criminal Law Tagged With: , ,

Admissibility of Hearsay Evidence at a Pennsylvania Preliminary Hearing

February 25, 2014 by

Hearsay is an out of court statement offered for the truth of a matter asserted by the party attempting to introduce it into evidence. Generally, hearsay is not admissible at trial because it is considered unreliable given that the speaker was not under oath and not subject to the opposing party’s cross examination. While there are a number of exceptions to the Hearsay Rule, the purpose of this blog is to explain the admissibility of hearsay ata preliminary hearing.

At a preliminary hearing a magistrate judge determines if a crime was committed and if the accused was connected to the crime. The evidentiary threshold at a preliminary hearing is the preponderance of evidence standard which is far below the criminal trial standard of proof beyond a reasonable doubt. However, the preponderance of the evidence standard means that more than likely the defendant was connected to the crime. Procedurally, the preliminary hearing is the first screening of a crime and its function is not to try the defendant which is why it does not require the same high degree of proof or quality of evidence that is required at trial. Read More

Filed Under: Criminal Law

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