Blog, Business
Out-of-state Sellers will soon be required to remit Indiana sales tax
The collection and remission of sales tax changed dramatically after the South Dakota vs. Wayfair decision by the US Supreme Court in June 2018. Now, states can collect sales tax from out-of-state sellers even if the seller has no physical presence in the state. The law goes into effect on October 1, 2018 and requires remote sellers to remit sales tax to Indiana if the seller has annual gross revenues from Indiana sales exceeding $100,000, or 200 or more separate Indiana transactions. Out-of-state companies are encouraged to use Streamlined Sales Tax Registration system at www.streamlinedsalestax.org to remit sales tax to multiple states (including Indiana). For those companies seeking to remit sales tax to only Indiana, remote sellers can register through the online portal, INBiz, at www.inbiz.in.gov. More information can be obtained from the Indiana Department of Revenue at https://content.govdelivery.com/accounts/INDOR/bulletins/201d096.
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Blog, Business, Environmental Law
Bona Fide Prospective Purchaser (BFPP) protections
Tucked into the recent 2018 Federal Budget are several items of interest to our environmental and real estate clients. The Brownfields Program can now protect lessees of property under the Bona Fide Prospective Purchaser (BFPP) provisions of the Act. In the past, lessees could only be protected if the lessor/owner had similar BFPP protections. No longer. Those lessees who develop real estate or operate under long term ground leases can now do so without the burden of liability for the pre-existing contaminants on the site. If a lessee is unrelated to the party responsible for a release of contaminants, conducts a Phase 1 Environmental Site Assessment (“all appropriate inquiry”) prior to closing and doesn’t make the situation at the site worse, the lessee is exempt from environmental liability at the site, even if the lessor is not protected as a BFPP. And there’s more good news on Brownfield Grants in the 2018 Budget. Grants may now be made to non-profit organizations. Grants have been increased to $500,000 from $200,000, and EPA can waive that limit up to $650,000. Multi-purpose grants are available for up to $1,000,000, which can include administrative costs. Facilities that generate renewable energy or demonstrate energy efficiency are now eligible for the program. The Environmental Practice Group at KGR can help developers and lessees negotiate the minefield of environmental liability when developing real estate. Call us, we’ll be glad to help.
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Blog, Business
Tax Deed Purchasers Beware: Due Diligence is Required
In a split decision, the Indiana Court of Appeals recently affirmed a trial courts’ decision to revoke a tax deed. In David L. Jenner and Vickie Jenner v. Bloomington Cellular Services, Inc. and Crown Castle South LLC, the majority of the Court determined that because the tax sale purchasers failed to notify interest holders outside the chain of title, they did not comply with the Indiana tax-sale statute, and were therefore not entitled to a tax deed for the property. The property at issue was acquired by Bloomington Cellular Services, Inc., in 1988, (“BCS”) and its title interest was properly recorded. BCS subsequently merged with Westel Indianapolis Company (“Westel”), but Westel’s name was never substituted on the property’s title. In 1999, Westel leased the operation and maintenance of a cell tower on the Property to Crown Castle South, LLC (“Crown Castle”) and in 2000, Crown Castle recorded a supplemental lease agreement outside the Property’s chain of title. Similarly, when Crown Castle subleased the cell tower to T-Mobile in 2009, the sublease agreement was also recorded outside the chain of title. Crown Castle installed a prominently-placed sign on the Property, including its name and contact information, identifying it as the operator of the cell tower. In 2014, the Property was included in Monroe County’s tax sale, and the Jenners purchased the tax sale certificate. As required by the tax sale statute, the Jenners conducted a title search and found only the interest of the original title owner, BCS. The Jenners provided notice of the tax sale to…
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Blog, Business
“I never signed anything, so I don’t have a contract. Right?” Wrong.
I often get this question or a variation of it from prospective clients and friends. This is a common misconception that all too often leads to problems. Invariably the next question is: if I haven’t signed anything, then how do I know if I have a contract? There are four basic requirements for the formation of a contract: Offer; Acceptance; Consideration; and Meeting of the minds between the contracting parties on all essential elements or terms of the transaction. Although some of these terms may be intuitive, others are not, so it is useful to consider each of them one by one. The “offer” is an element that’s typically intuitive: you are “offering” to enter into a contract with someone. Examples would include “I will pay you $50.00 to mow my lawn,” and “I am willing to purchase your table for $100.00.” If you receive a contract from someone, such as a loan document from a bank, that document is also considered an “offer” to enter into a contract. “Acceptance” is where the waters can become a bit murkier, and also where the title to this article becomes relevant. All that is required for acceptance is for you to demonstrate that you agree to the important terms of the “offer.” One of the clearest ways to do this would be to sign a document containing important terms (such as the loan document above). However, you can also demonstrate your acceptance of a contract by performing (such as retrieving your lawn mower and mowing the lawn in the…
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Blog, Business, Business Litigation
Commercial Courts, TROs, and Restrictive Covenants…Oh my!
The Court of Appeals recently addressed three issues important to Indiana businesses embroiled in legal disputes: 1) Validity of the Commercial Court, 2) ex parte (no notice) temporary restraining orders, and 3) enforceability of restrictive covenants (noncompete and nonsolicitation clauses) in employment agreements. We will address each in turn. Vickery’s and Ardagh Glass’s Dispute Ardagh Glass is a manufacturer of glass containers and bottles. Vickery worked for Ardagh Glass as a Senior Mold Engineer. As a condition of Vickery coming to work for Ardagh Glass, he signed a Noncompete Employee Agreement in 2004 that explicitly provided that Vickery could not work for a competitor for a one year period following his departure. Vickery was passed over for a promotion in 2016, and soon after applied for a similar position at Owens-Illinois, one of Ardagh Glass’s primary competitors. Vickery was offered and accepted the position at Owens-Illinois. Once Ardagh Glass determined that Vickery intended to go to work for a competitor, it informed him that it intended to enforce the Noncompete Agreement. On Vickery’s last day of work with Ardagh Glass, he was informed that Ardagh Glass was filing suit and seeking an injunction that day. Indiana’s Commercial Courts In 2016, Indiana became the 23rd state to establish commercial courts. The pilot program established commercial courts in six Indiana counties and provides litigants the opportunity to place their legal disputes in front of a judge regularly hearing business disputes. Concentrating business disputes with selected judges is intended to more efficiently resolve those disputes and free up the…
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Blog, Business, News
Ted Nolting selected for Indiana Leadership Forum Class of 2018
KGR attorney Ted Nolting was recently selected for the Indiana Leadership Forum Class of 2018. The Indiana Leadership Forum is a seminar series focused largely on government and political leadership. Participants have the opportunity to meet and interact with elected officials, business and community leaders. The program was created in 1993 by businessman Al Hubbard, political activist Roger Schmelzer and community leader Joe Hale to prepare qualified individuals for civil service and to generate a greater understanding of the political process. Today, in its second decade of operation, the Indiana Leadership Forum is dedicated to preparing Indiana’s most talented free enterprise, limited government minded community and business leaders for greater civic involvement, public service, or leadership roles throughout the state. To date, nearly 500 Hoosiers have graduated from the ILF program and many are actively engaged in various leadership positions across the state. They are teachers, doctors, attorneys and business professionals: men and women with a desire to become more involved in improving their communities. Ted joined KGR in 2016 and practices primarily in the areas of Municipal Law, Corporate Law, Real Estate, and Intellectual Property. With an extensive background in both government and the private sector, Ted serves a number of public and private clients in a wide range of corporate and municipal transactions, including real estate and construction projects, business formations, and minority and women owned business certifications. Ted additionally advises clients on political issues, including campaign and lobbying laws, and currently serves as counsel to the Republican caucus of the Indianapolis City-County Council. Prior…
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Appearances, Business, Corporate Law, Events
Acquisitions of Privately Held Companies
KGR partner Brian Bosma authored Representing Buyers and Sellers in Acquisitions of Privately Held Companies for a Continuing Legal Education seminar, and is making the paper available for download here. The paper informs the reader of issues typical faced by attorneys in purchase and sale transactions. It is not intended to be a comprehensive treatise on asset or stock purchase sales or procedures, but does provide a basis for discussion with a qualified professional and informs the reader of issues to be aware of and to discuss with a qualified professional to determine how they apply to the reader’s situation. The paper is not to be considered as legal advice or as a substitute for legal advice, and it is not intended to create, nor does it create, an attorney-client relationship. We encourage you to download the paper and learn about: The attorney’s role: The various roles an attorney plays in business and real estate transactions as well as the preparation necessary to fulfill the roles and be knowledgeable in diverse areas of the law and skilled at recognizing issues requiring special expertise and assistance. Setting client expectations: Understanding the client’s needs and identifying the nature of the engagement. Drafting transaction documents: A well drafted agreement ensures the parties deal with and resolve problems initially and prevents disagreements and closing delays. The drafting process requires identifying the details of the transaction, controlling the process, using forms when appropriate, drafting with clarity (identifying the seller and purchaser, defining terms, outlining the transaction, client review, and revisions and…
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Blog, Business, Employment Law
Pitfalls of Social Media Policies in the Workplace
Are you thinking about adopting a company-wide social media policy? Be careful what you prohibit. A client recently asked if the company could prohibit employees from discussing the company on social media. The client wanted to avoid negative publicity from disgruntled employees and thought a change to the employment manual would be helpful. The First Amendment guarantees freedom of speech, but only prevents government restrictions on speech, it does not relate to private actions. Consequently, clients often think that they are free to limit employees’ speech. But the National Labor Relations Board (“NLRB”) has held that restrictions that “chill” speech are unlawful (and actionable). Therefore, an employer must be careful when crafting restrictions to avoid unlawful restrictions. Social Media Policies Cannot “Chill” Speech Protected by the National Labor Relations Act The NLRB’s many decisions on this issue center around two sections of the National Labor Relations Act (“NLRA” the “Act”) (codified at 29 U.S.C. §§ 151-169). First, Section 7 of the Act (29 U.S.C. §§ 157) provides that employees “have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for … mutual aid or protection.” Second, Section 8 of the Act (29 U.S.C. §§ 158) prohibits any action by an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Over time, Section 8 has been applied to prohibit not only explicit restrictions on protected activities, but also to prohibit…
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Blog, Business
Small Business Ownership – Opportunities and Challenges
Ted Nolting and I recently met with a small group of professionals who are all members of the Public Relations Society of America – Independent Practitioners Alliance to discuss issues facing small business owners. We had a good Q&A about the benefits of certification as a minority-owned or woman-owned business as well as the process involved to obtain certification. A few points of emphasis: There are reciprocal agreements status in some nearby states such as Illinois and Kentucky; for new business owners, in order to obtain certification you must prove your business has a likely prospect for success; and make sure your application is complete and accurate as a denial requires waiting 12 months before applying again. We also discussed protective governing actions for your business. First, some of the steps necessary to avoid “piercing the corporate veil” in the unfortunate circumstance that the business is the subject of litigation. We stepped through the eight factors a court looks at when considering whether to pierce the veil: (1) undercapitalization; (2) absence of corporate records; (3) fraudulent representation by corporation shareholders or directors; (4) use of the corporation to promote fraud, injustice or illegal activities; (5) payment by the corporation of individual obligations; (6) commingling of assets and affairs; (7) failure to observe required corporate formalities; and (8) other shareholder acts or conduct ignoring, controlling, or manipulating the corporate form. Finally, we covered the governing documents required (and recommended) for all small businesses. From articles of incorporation/organization, to bylaws and operating agreements, to buy-sell agreements, and often…
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